Constitutional Law - Hassel - Fall 2011

8/2/2019 Constitutional Law - Hassel - Fall 2011

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Hassel_Constitutional Law I_ Fall 2011

Hassel_Constitutional Law Outline_Fall 2011

Court doesn't get involved in political questions, advisory opinionsor discretionary duties.

CHAPTER 1: The Supreme Court's Authorityand Role

The Power Of Judicial ReviewMARBURY v. MADISON "Marshall Opinion" JUDICIAL REVIEWAdams- President (Federalist) - more controlJefferson- New President (Republican) more liberalFederalists passed the Sedition Act of 1798 - couldn't criticize the government

passed by the Federalists. Jefferson pardons all convicted over Sedition Act, andrules unconstitutional since at time judicial review didn't play a role.Facts: Adams appoints "midnight judges" to keep alive the Federalists in the

judiciary. Marbury was a last minute judicial appointee whose commission wasnot delivered to him before Adams left office; Jefferson declined to deliver thecommission.

Issues: 1. Has the applicant a right to the commission that he demands?Yes, he gained commission as soon as it was signed and sealed.

2. Does he have a legal remedy?Yes, court has power over people holding office under the

authority of the United States.Writ of Mandamus- issued by a superior court to compel a lower court or agovernment officer to perform mandatory or purely ministerial dutiescorrectly. Ministerial duties are individual rights assigned by laws orconstitution.

Judiciary Act of 1789 gave the court the power to do writ of mandamus.3. Is the legal remedy a writ of mandamus issuing from the Supreme Court?

NO, Article III of the Constitution explains that in somesituations the Supreme Court has original jurisdiction and in other situations ithas appellate jurisdiction

Holding: No law original jurisdiction for Supreme Court to order writs ofmandamus.

Marshall uses the three ways to interpret the constitution:


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1. Text- language2. Intent- meaning3. Structure- where it's placed in constitution.

Narrow Holding ofMarbury: Court will follow constitution when confliction withstatute.Broad Holding ofMarbury: Court has power to interpret Constitution for all

branches. (judicial review)COOPER v. AARON

Issue: Whether the governor and legislature of Arkansas were bound by theholding in Brown v. Board of Education.Holding: The rulings of the Court can't be openly or indirectly nullified.

Article VI -Constitution is Supreme Law of the Land.Rationale: Saves judicial economy.

Indispensable for the protection of freedoms guaranteed by ourfundamental charter for all of us.

Dickerson v. United States:Note Case on p. 21.Issue: May Congress overrule Supreme Court interpretations

binding on Congress by statute?NO, Miranda rights are Constitutionally required so legislaturecan't add an alternative test or interpretation.

Scalia DISSENT: statutes should get an interpretation of whetherconstitutional on their own merits, not on constitutionality as relatestoMiranda ruling.

MARTIN v. HUNTER'S LESSEE

Facts: Virginia gives land to Hunter, U.S./treaty gave land to Martin.Article 25 of Judiciary Act of 1789, if you lose federal claim in thehighest courts in state, then you can go to Supreme Court.

Article VI gives state courts general jurisdiction because they mustfollow the Constitution since it is the Supreme Law of the Land.

Holding: For uniformity of decisions the United States Supreme Court is thesingular revising authority to control discordant state court judgments andharmonize them into uniformity so that they arent applied differently bydifferent states.


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Political Restraints on the Supreme Court (p27)1. Judicial selection2. Impeachment for conviction of treason, bribery, or other High Crimesand Misdemeanors.

3. Constitutional AmendmentArticle V gives two methods:a. Congressional Proposal

b. State-initiated convention4. Court Stripping- Article III, Section 2 gives Congress the power tomake "exceptions" to the Supreme Court's appellate jurisdiction.5. Court packing- setting size and budget for the court is given toCongress in Article III, Section 2

The "Case or Controversy" RequirementsArticle III, section 2, clause 1

The judicial power should extend to a list of enumerated "cases" and

"controversies".

Court has refused to give:

Advisory opinions- opinions on the legality of executive or legislativeaction that did not involve and actual "case".

*Some state supreme courts are authorized to issue advisoryopinions.

STANDING

*Advocacy is need to have both sides presented. When a party has staked aclaim it will be able to articulate injury more vigiously then if there is just a

general question presented to the court.*

Textual Approach- the fact that put in the limit for standing and court must look atword meaning to try and determine.Structural Approach- don't want to infringe on other branches of the government.

LUJAN v. DEFENDERS OF WILDLIFE "Scalia Opinion"Plaintiff's needed to show redress ability and actual injury. Court rejectedview that Plaintiffs' had standing due to procedural injury.

Rule: A plaintiff raising only a generally available grievance about government-claiming only harm to his and every citizens' interest in proper application of theConstitution and laws, and seeking relief that no more directly and tangibly

benefits him than it does the public at large - DOESN'T state an Article III case or


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controversy. Congress cant give standing where there shouldn't be any throughcase or controversy provision.

Standing Elements:

1. It suffered at "concrete andparticularized" injury that is actual orimminent.2. Injury is fairly traceable to thedefendant. (Causation)3. A favorable decision could redressthat injury.

MASSACHUSETTS v. ENVIRONMENTAL PROTECTION AGENCYInjury- greenhouse gases causing water to rise, plaintiff is losing land.

States can have standing due to interests of citizens.Mootness- When litigants who clearly had standing to sue at the outset of thelitigation are deprived of a concrete stake in the outcome by changes in the facts orin the law occurring after the lawsuit has gotten underway.Ripeness Doctrine- When the dispute is insufficiently developed and is instead tooremote or speculative to warrant judicial action.

POLITICAL QUESTION

Two Strands of political question doctrine:1. Some matters are committed to the unreviewable discretion ofthe political branches.2. Some otherwise legal questions ought to be left to the other

branches as a matter of prudence.a. Textual commitment to another branch.

b. Lack of standards.c. Need for finality

Avoidance of chaos or confusion.BAKER v. CARR

Rule: The Guaranty Clause may not be used as a source of a constitutionalstandard for invalidating state action, but an equal protection claim may be soused where it doesn't implicate a political question.

Facts: Plaintiff's want reapportionment of votes.Guaranty clause: all states must be republic.

Guarantee Clause is non judiciable because whether a state is a republic or not is aquestion for Congress.


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Could have brought suit underEqual Protection Clause is judicable becauseit's not committed to another branch, and the 14th Amendment allows it to beenforced by the judiciary.

DISSENT: People of the state should have ability to enforce amount of

representation.Luther v Borden (p 51): Guaranty Clause can't be used by the judiciary toidentify a state's lawful government. Court says that's the judgment forCongress.

*Political question comes up when its questions of whether something in another

branch is right.*

CHAPTER 2: The Nation and the States in the Federal

SystemVertical separation of powers between nation and the states and horizontal

separation of powers among the federal branches.Dual sovereignty results in more individual liberties.

The 10th Amendment to the Constitution: the powers not delegated to the UnitedStates by the Constitution, nor prohibited by it to the States are reserved to theStates respectively, or to the people.

Article I, Section 10- Forbidden acts of the States.McCULLOCH v. MARYLAND

Congress can incorporate a bank because of implied power that it needs to bein charge of money so if a bank is useful to Congress than they canincorporate it. The whole can tax the parts but the parts can't tax the whole.

The States can't tax the federal government because it would defeat thepurpose of the government being able to accumulate money through taxation.

Necessary and Proper clause expands Congresses power.Can't tax operations of the federal government but federal government has to

pay real estate taxes because those taxes can be controlled by representativereinforcement, which is that representatives elected by the people of the statecan be made to enforce fair rules of the state or they will not be reelected intooffice.

U.S. TERM LIMITS, INC. v. THORNTON (p76)

Arkansas wanted to end eligibility after 3 terms in House of Representativesor 2 terms in the Senate. A state can't add qualifications (i.e. non-incumbency) to terms.

Rationale: 1. Power to add qualifications is not within the "originalpowers" of the States, and thus not reserved to the States by the 10thAmendment.


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2. Powers divested by the Constitution since it wasintended by the Framers to be the exclusive source ofqualifications for members of Congress.

The people and Congress have the power to add qualifications by amending the

Constitution. CHAPTER 3: The Commerce Power and Its Federalism-

Based LimitsCommerce Clause - Article I, Section 8- Congress shall have the power toregulate Commerce with foreign Nations, and among the several States, andwith the Indian Tribes.

Commerce power is most used federal power.GIBBONS v. OGDEN

Facts: Ogden given sole permission to ferry boat by N.Y.

Gibbons given permission to ferry boat by federal statutes.Commerce clause gives power to federal government to regulate commerce andnavigation.

Note Cases:

U.S. v. E.C. Knight Co.

Sherman Act- illegal to monopolize or engage inanticompetitive conduct.

Court- Sherman Act can only regulate things that only directly effectinterstate commerce.

Here buying up sugar plants only goes to the

refineries, not the actual commerce of sugar.Shreveport Rate Case

Train company had different rates between interstate andintrastate. Congress made them regulate the rate.

Court- Transportation can be regulated. Substantial economicseffects test.Champion v. Ames (lottery case)

Congress can regulate morality of goods. Don't want one statesmorality to affect another state.

Court- Congress can regulate morality in transportation.Hipolite Egg Co. v. United States

Court- Ability to confiscate outlaws of commerce even after nolonger within interstate commerce.Hoke v. United States

Mann Act- prohibited the transportation of women in interstatecommerce for immoral purpose.


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Court- upheld Mann Act under the principle that Congress haspower over transportation 'among the several states', that power iscomplete in itself and that Congress, as an incident to it may adopt,not only means necessary but convenient to its exercise, and the

means may have the quality of police regulation.HAMMER v. DAGENHART "The Child Labor Case"Congress can't use laws to make states regulate unfair competition between

places that allow child labor and those that don't. Here Congress tried tostandardize the ages of child employment, which it can't do under this type ofAct over states.

1. Congress can't have the power to regulate state child laborhours.2. Transends authority for Congress to regulate commerce.

Similar to a Knight argument, that child labor doesn't directly enough fall into

commerce.DISSENT: (Holmes) once a business moves across state lines it can be regulatedand Congress has right to carry out views of public policy.THE COMMERCE POWER AND THE NEW DEAL

Schechter Poultry v. U.S. "The Sick Chicken Case"Act unconstitutional. Wages and hours aren't subject to federalcontrol under Commerce clause. Applied the Hammer v.Dagenhart rule that goods are regulated, not all aspects of

business.Carter v. Carter Coal Co.-Production of coal is a purely local activity so can't regulatewages and maximum hours.

DISSENT- "Cardozo"- Interstate prices are directly affected.National business would effect commerce. Direct/intimacy onimpact of commerce.

THE COMMERCE POWER AFTER THE NEW DEAL

NLRB v. JONES & LAUGHLIN STEEL CORP.

NLRB wanted federal government to enforce the board's order for the

defendant to end discrimination and coercion in their unfair labor practices.Supreme court enforced the order, reversing the lower court's opinion that theorder lay beyond the range of federal power.

Rule: Government has the power to protect interstate commerce fromburdens and obstructions. Can regulate activity if it is closely andsubstantially related to interstate commerce.


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Rationale: Congressional power can be used to reach activities thatare deemed burdensome or obstruct commerce.

DISSENT- Effect on interstate commerce too remote.UNITED STATES v. DARBY Overruled Hammer

Once a business gets into interstate commerce Congress can regulate it toprotect against unfair competition. Can regulate wage and hour requirementbecause Congress has power over things that substantially effect on interstatecommerce. Congress can control means to carry out policies against unfaircompetition.

Two holdings in Darby:1. Permitted Congress to regulate theliteral shipment of goods across state lineseven if the motive of the regulation was tocontrol aspects of local production.

(Overruled Hammer v. Dagenhart)2. Substantial effects of local economicactivity on interstate commerce as basis forcongressional authority.

Note Cases:

Wickard v. Filburn " The Wheat Quota Case"Congress regulating amount of wheat that plaintiff can sell.Marketing quota held constitutional.

Court- Congress can reach anything that exerts a substantial

economic effect on interstate commerce. In the absence ofregulation the price of wheat in the U.S. would be effected byworld conditions.Heart of Atlanta Motel v. U.S.

African American were being discriminated against inhotels.

Court- Commerce power extended to include motels.Interference with free flow of interstate travel sincediscrimination discourages travel in the African Americancommunity.

Test: 1. Whether activity sought to be regulated affectsmore states than one.

2. Whether there is a real and substantial relationto the national interest.

Katzenbach v. McClung


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Congress can regulate restaurants that get their food fromother states. 46% of restaurant's meat was bought fromlocal merchants that purchased it from another state.14th Amendment couldn't be applied because it doesn't

cover discrimination by private parties, only by thegovernment.Perez v. United States

Federal criminal statutes also covered by CommerceClause.

Court- Extortion has economic effects on economy due toconnection to organized crime.

THE REHNQUIST COURT'S REVIVAL OF INTERNAL LIMITS

ON THE COMMERCE POWERUNITED STATES v. LOPEZ

Government tries rationale for restricting guns in school: Reduced travel to "unsafe" areas. Cost of violent crimes shared. Bad educational environments cause worse students so worse futureeconomy.

Rationale:3 categories of commerce regulation:

1. Channels of interstate commerce. "means and movement"2. Instrumentalities of interstate commerce. "items moving"

3. Activities having a substantial relation to interstate commerce.Here Test applied was substantial effect on commerce test.

Act EXCEEDED commerce clause power. People need to know who to holdaccountable for unjust laws so judiciary has to limit legislative power.Law not a

part of a larger scheme to regulate commerce.CONCURRENCE- too much rides on modern interpretation ofcommerce power to rid of substantial effects to commerce test.DISSENT- 1. Majority's holding is contrary to case law.

2. Distinction shouldn't be made between commercial andnoncommercial in this case since schools can fall on commercialside.

3. Creates a legal uncertainty in this area of law.Law was amended, and found constitutional, to say that it's a federal crime to be

found with a gun that has traveled in interstate commerce.

Could have also been amended to say that it was unlawful to purchase a gun fromanother state that you intend to bring to school.


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UNITED STATES v. MORRISON

Violence Against Women Act- all persons should have a right to be free fromcrimes of violence motivated by gender.

Doesn't go to activity that is economic in nature. If accepted, reasoning

would have allowed Congress to regulate any crime as long as thenationwide, aggregated impact of that crime has substantial effects onemployment, production, transit, or consumption.

Only states can enact a law such as this.GONZALES v. RAICH

Controlled Substance Act- prevents people from possessing, obtaining, ormanufacturing cannabis for personal medical use.

Court says CSA is like Wickard, but Wickard regulated wheat after a certainamount is produced, but here want to regulate to the point that no amount can be

produced. Even though used domestically rather than sold on the open market, it

is still subject to federal regulation, because the court refuses to excise individualcomponents of a larger scheme and given the finding of the CSA and themagnitude of the commercial market for marijuana, the act is constitutional.

CONCURRENCE- "Scalia"- Necessary and proper clause makesconstitutional because for a large regulatory scheme, it may be necessary toregulate smaller things to carry out the larger theme and purpose.DISSENT- "O'Connor"- No interstate commerce effect. Non-commercial.Inconsistent with Wickard. Indistinguishable from Lopez and Morrison.

EXTERNAL LIMITS ON THE COMMERCE POWER:

FEDERALISM AND THE 10th AND 11th AMENDMENTSTenth Amendment - "The powers delegated to the United States by theConstitution, nor prohibited by it to the states, are reserved to the Statesrespectively, or to the People."

Possible structural marker for state sovereignty.Eleventh Amendment - "The judicial power of the United States shall not beconstrued to extent to any suit in law or in equity, commenced or prosecutedagainst one of the United States by citizens of another State, or by Citizens orSubjects of any Foreign State."

Can't sue your state as an individual.Note Cases:

National League of Cities v. Usery " Traditional Control"Congress can directly displace the States' freedom tostructure integral operations in areas oftraditionalgovernmental functions.


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Garcia v. San Antonio Metropolitan Transit Authority

"Overruled National League of Cities"Rejected whether governmental function is integral ortraditional.

NEW YORK v. UNITED STATESCongress tried to make states take care of radio active waste in 3 ways:1. Monetary incentives which allowed states with disposalsites to impose a surcharge on waste received from other states.(Court Affirms)2. Access incentives, which allowed states to increase thecost of access to their sites and then deny access altogether towaste generated in states that did not meet federal deadlines.(Court Affirms)3. Take Title sanction, providing that a state that failed to

provide for the disposal of all internally generated waste by aparticular date must take title to the waste and become liable forall damages suffered by the waste's generator or owner. ( CourtDenies)

Congress can't compel states to enact federal regulatory programs. Accountabilityis diminished when state officials aren't the ones regulating.

Constitutional committee chose the Virginia Plan that Congress wouldexercise legislative authority directly upon individuals without employing thestates as intermediaries.

The Tenth Amendment stands for political accountability.Printz v. United StatesCongress can't pass laws to commandeer state executive

branch officials either.ELEVENTH AMENDMENT

Ex parte Young

Can't sue state but can sue state officials for injunctiverelief.

Congress may abrogate the 11th Amendment in cases where Congress usesCommerce power or Due Process Clause.

Seminole Tribe of Florida v. FloridaTook away power of Congress to abrogate (override) the11th Amendment because state sovereignty is protected bythe 11th Amendment. People can't sue state because thenfinancial danger might ensue and that will encroach onstate sovereignty.

Can't sue state in State or Federal Court.


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Federal Agencies can sue the States. Individuals can sue for injunctive relief.

CHAPTER 4: Taxing, Spending, War, Treaties, and

Foreign AffairsTaxing Power- Article I, Section 8, Clause 1 - Congress has the power to layand collect Taxes, Duties, Imposts, and Excises, to pay the debts and providefor the common defense and general welfare of the United States.

CHILD LABOR TAX CASE {Bailey v. Drexel Furniture Co.} "tax v.penalty"

Child Labor Tax of 1919 - Imposed a federal excise tax of 10% of annualnet profits on every employer of child labor in the covered businesses.

Rule - Can't allow congress to enact regulations and to just enforce them by

using taxes. (Unconstitutional)Here the tax has become more of a penalty since as soon as a businesshas one child laborer, that company must pay a 10% tax.

Taxes are occasionally imposed in the discretion of the legislature on propersubjects with the primary motive of obtaining revenue from them and with theincidental motive of discouraging them by making their continuance onerous. Butthis time the extension of the penalizing features of the so-called tax when it losesits character as such and becomes a mere penalty with the characteristics ofregulation and punishment.

SPENDING POWER

UNITED STATES v. BUTLER

Agricultural Adjustment Act of 1933 - Authorized the Secretary ofAgriculture to make contracts with farmers to reduce their productiveacreage in exchange for benefits payments. The payments were to bemade out of a processing tax paid by the processor "upon the firstdomestic processing" of the particular commodity. (Unconstitutional)

Two different views of the Taxing Powerclause:1. Madison View:

The grant of power to tax and spend for the general

national welfare must be confined to the enumeratedlegislative fields committed to Congress. (Spending powerlimited to other enumerated power.)

2. Hamilton View:Confers a power separate and distinct from those laterenumerated, is not restricted in meaning by the grant ofthem, and Congress subsequently has a substantive power


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to tax and to appropriate, limited only by the requirementthat it shall be exercised to provide for the general welfareof the United States. (Spending power is its ownenumerated power.)

Court adopts the Hamilton View.The limit of Congresses power to tax is confined in the clause whichconfers it.

Act here cant be enforced because of another principle embedded in theConstitution. The act invades the reserved rights of the states. It is a statutory planto regulate and control agricultural production, a matter beyond the powersdelegated to the federal government.

Act not voluntary because:1. Loss of benefits with non compliance.2. Conditional appropriation of money.

DISSENT: Gives incentives but isn't coercive. The standard from clause isnational purpose, not coercion.

Charles C. Steward Machine Co. v. Davis "THESOCIAL SECURITY CASES"

The Social Security Act is found Constitutional.Cardozo distinguishes from Butler: (p160)1. Proceeds not earmarked for a special group.2. The unemployment compensation law which is acondition of the credit has been approved by the state

and could not be law without it.3. State has power to revoke contract.4. Not directed to the attainment of an unlawful end.

SOUTH DAKOTA v. DOLE

National Minimum Drinking Age Act - Directed the Secretary ofTreasury to withhold 5% of the federal highway funds otherwise payableto states from any state that permitted the purchase of alcoholic

beverages by persons less than 21 years old. (Constitutional)Congress can attach conditions to federal funds as long as: DOLE Four-

Part test:

1. The exercise of the spending power must be in pursuit of the generalwelfare.2. Must made the condition of funding clear and enable to States toexercise their choice knowingly cognizant of the consequences of their

participation.3. Must be related to the federal interest in particular national projects or

programs.


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4. Congress may not require the States to violate due process, equalprotection or the ban on cruel and unusual punishment.

THE WAR AND TREATY POWERS AND IMPLIED POWER OVER

FOREIGN AFFAIRS

WOODS v. CLOYD W. MILLER CO.Title II of the Housing and Rent Act of 1947 - (Constitutional) Need toremedy deficit in housing caused by the heavy demobilization of veteransand by the cessation or reduction in residential construction due to thewar.

Rule: Congress can use war powers to cope with conditions caused directlyand immediately by war.CONCURRENCE: War powers can't last as long as the consequences ofwar because those consequences may be indefinite.

MISSOURI v. HOLLAND

Migratory Bird Treaty Act - prohibited that killing, caputuring, or sellingany of the migratory birds included in the treaty.

Rule: When state action wouldn't be enough, the government may form atreaty or statute to regulate.

Congressional Power Over "Foreign Affairs" (p 172)

THE DORMANT COMMERCE CLAUSEFederal Limits on State Regulation of Interstate Commerce

In dormant Commerce Clause analysis, court asks whether challenged law

discriminates against interstate commerce, in which case the law is virtually per se

invalid, and survives only if it advances legitimate local purpose that cannot beadequately served by reasonable nondiscriminatory alternatives; absent

discrimination against interstate commerce, the law is upheld unless burdenimposed on interstate commerce is clearly excessive in relation to putative local

benefits

Consent to State Laws: congress may affirmatively consent to state interference w/interstate commerce.

Market Participant Exception to the Dormant Commerce ClauseThe state may not impose conditions, whether by statute, regulation, or K, thathave a substantial regulatory effect outside of that particular market. Wunnicke.A. The Dormant Commerce Clause- not just a grant to Congress, but also limit onstates

1. Congress says nothing, federal govt still regulates; state cant fill void


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i. creates chaos if states regulate their ownii. commerce delegated to C; implies states dont have poweriii. no action means Congress doesnt want anything to happeniv. structural argument- you cant have two sovereigns in one field

2. Dormant Commerce Clause CasesGIBBONS v. OGDENMeaning of congressional silence: states could regulate commerce in a particularway if there was no actual conflict between the state regulation and an act ofCongress.

Look at intent of state(1.) health, safety, protection- probably okay(2.) to get an economic advantage- not cool

Taxation v. Commerce: Tax : Power of taxation is indispensable to the existence of the states

and the states constitute an important part of the federal govt. Taxation can be exercised by different authorities at thesame time. When each state exercises its own tax power, its notexercising that power of the others.

Commerce : When a state proceeds to regulate interstate or foreigncommerce, it is exercising the very power that is granted to congress andis doing what congress is authorized to do.

Wilson v. Black-Bird Creek Marshall Co. - Delaware damned anavigable creek

a. Congress is silent, state can do itb. State is doing this to bolster property on waterway-okayCOOLEY v. BOARD OF WARDENS

State can discriminate for health, not for purposes of putting more money inlocals pockets

National v. Local Matter: States can regulate local, but notnational.

PHILADELPHIA v. NEW JERSEY "New Jersey waste ban."Health concerns about New Jersey trash. Out-of-state landfill owners wouldget money from

people who can't bring trash into New Jersey. In-state dump owners would getprofits.Unconstitutional because impermissibly protectionist.Rule: A virtually per se rule of invalidity against state discrimination against out-of-state commerce.

Court takes high amount of scrutiny and gives no difference to the state.

Congress could pass law like this but not State.


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Representative Reinforcement- Court needs to represent minority or stateswho's rights are violated.

Maine v. Taylor "Bait Fish"Want to protect ecological effects on possible presence of parasites

and non-native species. Court says legitimate environmental effects.Local v. national concern possibility.Alternatives v. only solution.West Lynn Creamery, Inc. v. Healy

Taxing everyone okay, but state was giving back to state producers;basically only taxing out of staters. Can't do it.

DEAN MILK Co. v. MADISON

Madison ordinance: Barred sale of pasteurized milk unless it had beenprocessed and bottled at an approved pasteurization plant within 5 miles ofcentral square of Madison.

Rule: Can't discriminate against interstate commerce if reasonable, nondiscriminatory alternatives are available that conserve local interests.C & A CARBONE, Inc. v. CLARKSTOWN

Flow control ordinance. All garbage needs to go to new facility (privatelyowned).

Rule & Exception- Discrimination against interstate commerce in favor of localbusiness or investment is per se invalid.

But, in a narrow class of cases in which the municipality candemonstrate, under rigorous scrutiny, that it had no other means

to advance a legitimate local interest.THE MARKET PARTICIPANT EXCEPTION TO THE DORMANTCOMMERCE CLAUSE

Market participant exception- a state or city may discriminate in favor of itsresidents when it is a market participant.

(1.) State is acting as an individual company.(2.) Congress is still regulating interstate commerce.(3.) Voters have say about how much things can cost.

SOUTH-CENTRAL TIMBER DEVELOPMENT Inc. v. WUNNICKE

Alexandria Scrap - state is participating as buyer and okay

to control. (Scrap Case)Reeves - state is selling to in-staters only. (Cement Case)White - city demanding people work for contractors, allworking for city.

Requirement for Market Participation DoctrinePermits a state to influence "a discrete, identifiable class ofeconomic activity in which it is a major participant.


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BALDWIN v. G.A.F. SEELIG, Inc.

Rule - Protectionism is per se invalid. Exclusion of competition is invalid.(Wouldn't allow sale of out-of-state milk if bought for cheaper than local

price.)

H.P. HOOD & SONS v. Du MONDRule - Can't prevent destructive competition. States are not separableeconomic units. (Wouldn't give license to out-of-state milk depot.)

Exxon Corporation v. Governor of M.D.MD prohibited producers and refineries of petroleum products.OK because allows national chains and locals to have gas stations,

just not producers or refineries. Not favoring MD because doesn'thave its own refineries or producers so has to get gas from out ofstate anyways.

KASSEL v. CONSOLIDATED FREIGHTWAYS CORP.

Balancing interstate harm against local benefit. (Pike balancing test (p213))1. Kind of facially discriminatory. {Iowa trying to protect highways bylimiting truck size}2. Protectionist purpose is safety.3. Benefit to state is small compared to burden to interstate travel.Inefficient flow of traffic.

PRIVILEGES AND IMMUNITIES CLAUSE OF ARTICLE

IVPrivileges and Immunities - Article IV, Section 2: The Citizens of each State shall

be entitled to all Privileges and Immunities of Citizens of the several States.Like the Dormant Commerce Clause, it serves as a restraint on state efforts to bar

out-of-staters from access to local resources. Corporations have no protection under P&Iclause Congress may not waive P&I clause P&I extends only to fundamental rights No Market Participant exception

UNITED BUILDING & CONSTRUCTION TRADE COUNCIL v. MAYOR

AND COUNCIL OF CAMDENA Camden statute provided that 40% of all employees working on city funded

projects must be Camden residents.Two steps with privileges and immunities clause:

1. Whether effects a fundamental right. {Court here holds right tobe employed is a fundamental right.}


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2. Must be asubstantialreason for the discrimination. {Courtremanded to investigate if high unemployment rate is enough.}Supreme Court of New Hampshire v. Piper

Law limited out-of-state bar admissions. Being able to practice law

is a privilege.PREEMPTION

Three different kinds of Preemption:1. Express preemption.2. Implied pre-emption

a. Field pre-emptionFederal rules seem to want to be sole regulator.Rice v. Santa Fe Elevator Corp.- Congress must be

pervasive, makes it clear no room for State to supplementb. Conflict pre-emption: compliance w/ both State and fed lawis physically impossible; Congress trumps

CHAPTER 6: Separation of PowersArticle II Vests executive power to President without qualification.Article I Delegates to Congress all legislative powers granted "herein".YOUNGSTOWN SHEET & TUBE Co. v. SAWYER {The Steel SeizureCase}

Commander-in-Chief doesn't give president power to seizure. Congressrejected the idea of giving the president the right to take steel mills eventhough threat of national strike.

FORMALIST APPROACH- Black doesn't care about consequences, only aboutthe law. Only powers given by constitution.FUNCTIONALIST APPROACH- If Congress hadn't rejected the idea and therewas a history of presidential seizures, then president would be able to. (SilentConsent) (Justice Frankfurter- implied consent) Look at politics, potential effects,and tripartite system.

JUSTICE JACKSON'S TRIPARTITE SYSTEM (most used)1. When the president acts pursuant to an express or implied authorization ofCongress, his authority is at its maximum, for it includes all that he possesses in his

own right plus all that Congress can delegate.2. (Zone of Twilight) Congressional inertia, indifference, or quiescence maysometimes, at least as a practical matter, enable, if not invite, measures onindependent presidential responsibilities.3. When the president takes measures incompatible with the express or impliedwill of Congress, his power is at its lowest ebb, for then he can only rely upon his


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own constitutional powers minus any constitutional powers of Congress over thematter.DAMES & MOORE v. REGAN

Rule: President has power to suspend pending claims against foreign

countries where such action is necessary to the resolution of major foreignpolicy and Congress has given implied consent to act. (Falls under zone oftwilight.)

Executive Order - Doesn't need approval from Senate, just order from President.Can be given statutorily (Congressional power). Can use implied power or consentfrom Congress to give orders.

THE PRESIDENT, CONGRESS, AND WAR POWERS

Article I, Section 8, Clause 11 - Gives Congress to "declare war".Article I, Section 8, Clause 12 & 13 - Gives Congress power to raise and supportarmies and navies.

Article II, Section 2 - Confers upon the President the authority to act asCommander-in-Chief of the armed forces.(Unitary Executive theory- President controls the entire executive branch.)

War Powers Resolution of 1973President may introduce troops into hostilities for sixty days only to:

1. A declaration of war.2. Specific statutory authorization.3. A national emergency created by attack upon the UnitedStates.

After 60 days President must terminate use of ArmedForces unless the Congress:1. Has declared war or has enacted a specificauthorization for use of Forces.2. Has extended by law such 60-day period.3. Is unable to meet due to attack on UnitedStates.

Habeas Corpus- power to go to court to see if rightfully detained. (Scalia- Habeascorpus doesn't apply extra-territorially.

Article I, Section 9, clause 2 - The privilege of Habeas Corpus shall not

be suspended unless when in cases of rebellion or invasion the publicsafety may require. (Congress has power to suspend writ.)

Ex parte Milligan

Milligan was a citizen and was caught in state of U.S. that was non-rebellious. He was not a confederate soldier so he had a right totrial.

Ex PARTE QUIRIN


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Saboteurs are unlawful enemies. Unlawful enemies are not entitled to prisoner ofwar status so denied right to jury trial before civilian courts and subject to trial

before military tribunals.HAMDI v. RUMSFELD

Rule: The government may detain citizens as enemy combatants, but dueprocess demands that they be afforded meaningful opportunity to contestfactual basis for detention before a neutral decision maker.

HAMDAN v. RUMSFELD

Rule: Accused terrorists are entitled to hearings before regular tribunals.Can only use military commissions in 3 contexts:

1. Martial law is declared.2. When temporary government exists.3. Violation of law of war. (Conspiracy not triable as law of warviolation.)

Guantanamo Bay detainees have right to trial. (in supplement)CONGRESSIONAL CONTROL OVER THE ACTIONS OF THE

EXECUTIVE BRANCH

Principle of Non-delegation - Congress may not constitutionally delegate itslegislative power to another branch of the government.INS v. CHADHA

Only times when one house of Congress may act alone and is not subject toPresident's veto.

1. The chief justice referred to the power of the House to initiate

impeachments.2. Senate's power to conduct trials on impeachment charges.3. The Senate's power over presidential appointments.4. Senate's power to ratify treaties.

Statute must fall into one of the 4 constitutional provisions in order to authorizeone house to act alone.FORMALIST APPROACH - Statute violated Presentment clause and

bicameralism.Presentment Clause - Article I, Section 7, clause 3 - Every order, vote, orresolution passes through the House andthe Senate, then presented to the

President.Bicameralism - Article I, Sections 1 & 7 - No law may take effect withoutmajority concurrences from House and Senate.

CLINTON v. NEW YORK

Line-Item Veto- Gives the President the power to disallow particular items ofnational spending without vetoing the entire bill.


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Rule- Line-item vetoes are equivalent to partial appeals of Acts of Congress thatfail to satisfy Article I, Section 7.FORMALIST APPROACH - President can only veto and send back, not justchange the law before he passes it.

DISSENT "Scalia"- Look to history, have been done before, can be donenow.DISSENT "Breyer"- Not a presentment violation

FUNCTIONALIST APPROACH - How is act really causing problem?Separation of powers, not aggrandizing Congresses power. Not encroachment.Limited Congress still retains control.

CONGRESSIONAL CONTROL OVER EXECUTIVE OFFICERS

Appointments Clause - Article II, Section 2, clause 2 - The President shallnominate, and by and with the Advice and Consent of the Senate, shall appointAmbassadors, Judges of the Supreme Court, and all other Officers of the United

States whose Appointments are not herein otherwise provided for, and which shallbe established by Law: but the Congress may by Law vest the Appointment ofinferior Officers, as they think proper, in the President alone, in the Courts of Law,

or in the Heads of Departments.

Congress can't appoint inferior officers because then they'd be able tocontrol who enacts their laws and how.

BOWSHER v. SYNAR

Rule: Congress can't remove executive officers.FORMALIST APPROACH - Legislative branch control the executive branch.

Would permit Congress to intrude into executive function which isunconstitutional.MORRISON v. OLSONCourts appointed an inferior office in Special Agent

(1.) Superior v. Inferior Officers(i.) superior has independent relationship w/ Pres(ii.) inferior has supervisor who reports to P

b. Indpt counsel is only removal able by AG for good cause(1.) Ct didnt want P to have power to remove ppl whowere investigating him

(2.) this is okay b/c its indpt of Presc. Law sunsetted and no longer exists

(1.) possibly seems like a waste of $; potential for abuseDISSENT "Scalia" FORMALIST APPROACH

(1.) Sep of power- Act takes power away from P(2.) What stops bad P? impeachment and political pressure(3.) if special P goes bad, weve got no way to stop him


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EXECUTIVE PRIVILEGES AND IMMUNITIESUNITED STATES v. NIXON

Rule: The President can't use separation of powers to enjoy an absolutegeneralized privilege which would be allowed him to shield all

communications from a subpoena in a criminal proceeding. Only nationalsecurity and diplomatic information is protected.

Nixon v. Fitzgerald

Rule: Absolute immunity from civil liability for his official acts.CLINTON v. JONES

Rule: A sitting President doesn't enjoy temporary immunity from all civillawsuits based on his unofficial acts.CONCURRENCE: President has burden to present court need for

postponement.

CHAPTER 7: Post-Civil War Amendments: "Fundamental"Rights and the "Incorporation" DisputeBARRON v. MAYOR AND CITY COUNCIL OF BALTIMORE

Rule: The just compensation provision of the 5th Amendment doesn't applyto the states.

Marshall: First 9 amendments limited to the government.Privileges and Immunities - 13th AmendmentEqual Protection - 15th Amendment SoImportant, called 2nd Framing of Constitution.Due Process Clause- 14th AmendmentSLAUGHTER-HOUSE CASES

Could be a dormant commerce clause problemi. First argument is that it violates 13th Amend

a. being forced to work for someone else, Ct says yeahright

ii. Next tries Equal Protection Clause- nice try this is treatingppl fairlyiii. Privileges and Immunities

a. Art. VI Sec. 2- fundamental rights

(1.) protect by govt, right to prop, happiness andsafety(2.) States decides individual rights are

b. 14th Amend refers to rights granted to citizens of US(1.) NOT fundamental rights(2.) only fed. Can provide them

c. Allowing Fed govt to control would be radical


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(1.) ct is hesitant to create more rights underconstitution(2.) Dissent points out that 14th Amend doesnt addanything under this interpretation

d. Privileges and Immunities are only those enumerated inConstitution.SAENZ v. ROE

3 Components to Right to Travel:1. Right to travel from one place to another. (Commerce Clause)2. Right to be treated as a welcome visitor. (Privileges and Immunities -Article IV, Section 2 - state citizenship)3. Right of new citizen to privileges and immunities of old citizens.(Privileges and Immunities - 14th Amendment - national citizenship)

Citizenship is equated with residency. Citizen's can chose state, state cant chose

citizens."INCORPORATION" OF THE BILL OF RIGHTS THROUGH THE DUE

PROCESS CLAUSE

Palko v. Connecticut "SELECTIVEINCORPORATION""CARDOZO"- Apply amendments when states violating

Scheme of ordered liberty. Fairness and justice.

Adamson v. California

"BLACK'S DISSENT"- total incorporation of the Bill of Rights.Discretion should be given to Congress not to judiciary."FRANKFURTER"- If total incorporation then lose ability to addnew methods and lose of autonomy of the state.

DUNCAN v. LOUISIANA

Trial by jury is fundamental to the American scheme of justice. 14thAmendment requires the right to jury trial through the 6th Amendment.

DISTRICT OF COLUMBIA v. HELLER

Possible incorporation of right to bear arms.

CHAPTER 10: State Action & Congressional Power to

Enforce Civil RightsThe 14th Amendment applies to state action, not individuals. Commerce clausegives power to attack individuals discrimination.The Civil Rights Statutes of the Reconstruction Era (p675)

THE REQUIREMENTS OF STATE ACTION

CIVIL RIGHTS CASES


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Limits amendments to apply to state action. Redress has to be from the lawsof the States not Congress.

SHELLEY v. KRAEMER

Rule: Covenants are private actions but once courts are needed to uphold, it

becomes a state action and violates the 14th Amendment.ENTANGLEMENT EXCEPTION- state action if governmentauthorizes, encourages, or facilitates private conduct that violatesConstitution.

Evans v. Abney

Town can't run park for "whites only" even though park willed totown with that restriction. Since town can't comply, it reverts backto heirs.Burton v. Wilmington Parking Authority

The public building and parking of a private restaurant made it

financially interdependent with the State so discrimination was 14thAmendment violation.Moose Lodge No. 107 v. Irvis

Liquor license doesn't sufficiently implicate the state in thediscriminatory guest policies of Moose Lodge.

JACKSON v. METROPOLITAN EDISON CO.

Test for state action: Whether there is a sufficiently close nexus between theState and the challenged action of the regulated entity so that the action of thelatter may be fairly treated as that of the State itself. {symbiotic relationship

standard}DeShaney v. WinnebagoDue process doesn't require state to protect the life, liberty, and

property of its citizens against invasion by private actors.CONGRESSIONAL POWER TO ENFORCE CIVIL RIGHTS UNDER

SECTION 5 OF THE 14TH AMENDMENT

1. After Civil Wari. Minorities not allowed to vote unless they could pass a literacy testii. many states altered tests to allow certain illiterates to pass

2. Voting Rights Act of 1965

i. banned all literacy tests and focused on the SouthKATZENBACH v. MORGAN

Act says if you finished 6th grade in Puerto Rico you can vote.a. NY says you cant speak English, youre limited to how youcan learn about candidates and their position so you cant vote.

b. Congress can prevent discrimination against Puerto Rico b/cthe literacy test is a mechanism to discriminate.


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(1.) Congress uses the necessary and proper clause:(i.) they can prohibit a literacy test b/c its necessaryto promote equal protection.

(2.) Congress can reform one step at a time.

(3.) Congress can ensure more than Constitution requires,but cannot take away more.Rule: Congress may override a state law if it could find a reasonable basis to

percieve that the law is violating equal protectionCITY OF BOERNE v. FLORES

RFRA requires that any time a state creates a law that interferes w/someones religious rights the govt MUST prove they have a goodreason

b. Whats the difference b/t this and Katzenbach?(1.) History & 14th show Congress fixes problems not

create them(2.) Katzenbach- obvious 14th amend is being violated(3.) no evidence states trying to prevent religious freedoms

c. Created two part test(1.) congruence- must be fixing constitutional power(2.) proportionality- remedy must fix a specific problem;cant be too broad

d. Federal Government is still subject to RFRACongress can pass laws against itself but cant pass a law that take away right

given to state by the Constitution.UNITED STATES v. MORRISONCt found civil damages of Violence Against Woman Act unconstitutional.

Statute here is not corrective in its character and not meant to redressstate officer's wrongful conduct.Kimel v. Florida Board of RegentsState employees cant sue for violations of Age Discrimination inEmployment Act.

a. Ct applied Bourne test(1.) no evidence that states are violating the rights

(2.) no widespread problem or a solution that will work(i.) applies to private employers through commerce

Nevada Department of Human Resources v. Hibbs

Family Medical Leave Act was appropriate for genderdiscrimination.

a. Evidence that states are violating these rightsb. Gender-based discrimination has a higher level of scrutiny


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(1.) history shows women has been disadvantaged in work(2.) big problem and this is just a small step to make better

c. back to Katzenbach- gender and voting rights are importantA law passed under Sect. 5 is only valid if it is remedial; not a discrimination

deterrent.CHAPTER 8:Due Process

NATURAL LAW - Pre-exists written law, generally accepted way things shouldbe/ framework of rights that exist as a part of being a society, pre-political law.Sense of some extra constitutional source of rights even though they arent writtenin Constitution.POSITIVE LAW - Only law is that which is set forth in Constitution. Look at textof the Constitution.LOCHNER v. NEW YORK

Law passed to limit hours bakers work to help the baker's health. Court:STRICT SCRUTINY.Natural Law Applied here. NO DEFFERENCEGIVEN TO STATE.

Bakers can represent themselves. Court adopts economic liberty (laissez faire).Problems with Lochner: States should be free to adopt whatever economictheory they want and here court adopts laissez faire/ economic Darwinism.

Privacy should have been taken into account, noteconomic freedom which isn't an individual right.

Wrong to have a complete lack of deference.Coppage v. Kansas "yellow dog kt"

Law unconstitutional. Let individuals kt how they want to. Right tojoin a union, but also have a right to kt away your right to join theunion.Muller v. OregonCan set hours for women to work because need to protect women.

Need to be healthy to make good babies.Adkins v. Children's Hospital

Can't make wages for women. Now that the 19th Amendment(women's suffrage) passed, don't need to protect women.

Departure From Lochner:NEBBIA v. NEW YORK

NY set minimum price for milk because people selling milk for too low. Milknot as healthy because businesses trying to cut cost to keep up. (NOT DCC

problem because effects everyone.)COURT GIVES DEFERENCE TO STATE.Rational Basis Test: If both than allow.


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1. Proper legislative purpose.2. Means must rationally relate to ends.

Only going to interfere if arbitrary, capricious, or unreasonable.West Coast Hotel v. Parrish

Overrules Adkins. Minimum age law for women. Court acceptsequalizing of labor relations as an acceptable goal for the statesbecause if not bad things will happen.

Legal realism- laws are responsible to political power.Carolene Footnote 4

Court should get involved when discrete minorites rights are atstake. Depends on when courts need to correct political marketfailures.

WILLIAMSON v. LEE OPTICAL

States free to regulate economic relations and the court will not overturn such

laws unless there is (standard) no conceivable rationale justification for thelegislature.

Punitive Damages and Substantive Due Process: 1:1 ratio for punitive damages.(Exxon Mobile case in supplement.)

THE TAKINGS CLAUSE

The Takings Clause, 5th Amendment - private property shall not be taken forpublic use, without just compensation.

Berman v. Parker - Authorized the taking of private property forthe purpose of redeveloping blighted urban areas.

Hawaii Housing Authority v. Midkiff- Eminent domain can beused to solve the problem of concentrated land ownership.KELO v. CITY OF NEW LONDON

Economic development is a public use.Private to private transfers only not allowed if for a private purpose. Must be for a

public purpose.DISSENT: Went too far.

"Thomas"- land needs to be put to public use that is open to thepublic, not for houses or private transfers. Minorities will always betaken advantage of.

"O'Connor"- would have applied Midkiff.Regulatory taking- When property is regulated too far it will be recognized as ataking.PENNSYLVANIA COAL Co. v. MAHON

Rule: Regulations go too far when property made economically worthless orwhen substantial "bundle of rights" are infringed upon.


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Lochner-like move for court to say what a takings is by using expectations, bundleof rights as part of constitution. NATURAL LAW argument.

Miller v. Schoene

Red cedar trees could be destroyed because weren't substantial part

of economic value of property.Penn Central Transportation v. NYCPenn Central balancing Test

(1.) economic impact of regulation onclaimant

(i.) investment expectations areconsidered too

(2.) character of govt regulation(i.) physical invasion is more likely ataking

(ii.) what is states purpose?Loretto v. Teleprompter Manhattan CATV Corp.perm physical occupation is taking regardless of public interest that

government is promoting.Lucas v. South Carolina Coastal CouncilRegulations prohibiting all economic benefits are per se takings.Palazzolo v. Rhode Island

Owner could challenge regulatory taking when he brought propertyw/ restriction on it

(1.) future generations have a right tochallenge unreasonable limitations-remanded for Penn central test.

The Kts Clause - Article I, Section 10: Prohibits any state "Law impairing theObligations of Contracts"HOME BUILDING & LOAN ASS'N v. BLAISDELL

Rule: The protection power of the State, its police power, may be exercised indirectly preventing the immediate and literal enforcement of contractualobligations by a temporary and conditional restraint, where vital publicinterests would otherwise suffer.

Level of Scrutiny: Deference to state.Economic due process.

United States Trust Co. v. New Jersey

An impairment of state obligations may be constitutional if it isreasonable and necessary to serve an important public purpose.SUBSTANATIVE DUE PROCESS AND PRIVACY

Meyer- allowed teacher to teach foreign language at school.


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Pierce- allowed choice for children to attend private, parochial, or public schools.Lochner/ Natural RightsSkinner- invalidated sterilization of third conviction felons.

GRISWOLD v. CONNECTICUTIllegal to use contraception. CT trying to stop extramarital affairs. Violationof due process.

Penumbras - inherent or emanating rights.Throughout the 1st (right to assemble), 3rd (home protection), 4th (leavehome and things alone), 5th (self-incrimination), and9th Amendments (rights can't be infringed upon, and other rights out there)isthe right to privacy.

Connecticut law is unconstitutional because laws can't invade areas of protectedfreedoms and right to privacy is protected.

CONCURRENCE "Goldberg"- Right to privacy is a fundamental rightin the 9th Amendment.CONCURRENCE "Harlan" Poe v. Ullman DISSENT

Due process- history, tradition, conscious. Martial rights should beuntouched.

DISSENT - Right to privacy just not there. 9th Amendment just protectspeople from government infringing on rights.

EisenStadt v. Baird

Rights extended from marital rights to individuals and minors

(Carey v. Population Services, International.) Now an individualright to privacy.ROE v. WADE

Liberty is based on 14th Amend in due process by relying on past casesFetus doesnt have right b/c at time of 14th amend, wasnt personState has interest in protecting maternal health

a. 1st trimester: state cant do anythingb. 2nd trimester: must be reasonably related to mothers healthc. 3rd trimester: can regulate and prohibit unless to save momslife

DISSENT "Rhenquist": abortion becomes public; removes right toprivacy

a. this is ct legislating; does state have rational basis? Let it go.Post- Roe- almost all limitation struck down except parental consent

Govt doesnt have to provide funds to get an abortionPLANNED PARENTHOOD v. CASEY


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Court moves to undue burden test- is state creating an undue burden onindividuals right to abortion/privacy

a. Ct doesnt overturn Roe b/c of Stare decisis. Four timescourt shouldn't overrule doctrine:

(1.) people rely on it.(2.) Roe isnt unworkable, states dont have problems w/ it.(3.) no evolution of principle.(4.) Cts legitimacy, we wont back down b/c dont like

b. State can b/come more involved via undue burdenc. 24 hr waiting and informed consent- not undue burdend. Spousal notification not allowed to be required.

(1.) husband should have a say in this b/c he has rights(2.) in marriage, husband would abuse her if he knew shewas going to get abortion

(3.) this is a flashback to a woman being a piece ofproperty

e. Parental consent okay as long as judicial bypass in place.f. Collection of patient information is ok.

DISSENT "Blackmun" - strict scrutiny is better standardDISSENT "Rhenquist"

(1.) abortion is intentional termination of life(2.) State has valid interest in terminating life(3.) rejects stare decisis argument

"Scalia" - rational basis test betterStenberg v. Carharr- language too vague; can refer to any type ofabortion

a. state has not introduced health exception for motherGONZALEZ v. CARHART "Partial Birth Abortion" case

Congress passes law banning partial birth abortions and court findsConstitutional.

Rule: A law limiting abortions is not invalid on its face where there is uncertaintyover whether the banned procedure is even necessary to preserve a woman's health,given the availability of other abortion procedures that are considered to be safer

alternatives.DISSENT - patronizing women, know what theyre doing letem

3 Modern Challenges to DCC:1. Facially discriminatory state laws to out of staters.2. Laws with impermissible protectionist purpose or effect.


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3. Disproportionate adverse effects on state commerce.

Documents

Constitutional Law - Hassel - Fall 2011