The United States Constitution

1. Article I – Legislative Branch 2. Article II – President 3. Article III – Judiciary 4. Article III

1. § 1 – Judicial Power of US i. Establishes the one supreme court

ii. Allows congress to create inferior courts iii. Judges have life tenure

2. § 2 – Jurisdiction

i. Clause 1 – Judicial power extends to cases in law and equity

1. Arising under Constitution, laws, or treaties of US 2. Of admiralty and maritime jurisdiction 3. In which the US is a party 4. Between two or more states 5. Between a state and a citizen of another state

1. But see 11th Amendment

6. Between citizens of different states 7. Between citizens of the same stat claiming lands under grants of

different states, and

8. Between a state or citizens thereof and foreign states citizens, or

subjects

ii. Clause 2 – Original Jurisdiction 1. Cases affecting Ambassadors and other public ministers and consuls 2. United States is a party

iii. Clause 3 – Trial of crimes except impeachment by jury

c. § 3 – Treason Against United States (Congress’ power: declare punishment)

i. Consisting in levying War against hem ii. Adhering to enemies

iii. Giving enemies aid or comfort

1. Note: limits scope of treason

5. Article IV

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1. §1 – Full Faith and Credit 2. §2 – Privileges and Immunities 3. §3 – New states admitted by Congress 4. §4 – Guarantee Clause

i. Guarantee Republican form of government 1

6. Article V – Amendmentsa. 2/3 of House and 2/3 of Senate

7. Article VI

a. Clause 2 – Supremacy Clause

i. This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

Federal Judicial Power

Judicial Review (Article III)

I. Definition: II. SCOTUS Jurisdiction: Original

a. Ambassadorsb. Public ministers and consulsc. Cases in which the state is a party

III. Review of Federal Statutes a. Marbury v. Madison: The Supreme Court has the power, implied from Article VI,

§ 2 of the Constitution, to review acts of Congress and if they are found repugnant to the Constitution, to declare them void.

IV. Review of State Appellate Decisions (Martin v. Hunter’s Lesee)a. Federal Courts may hear other (non-original jurisdictional) cases that come to the

court on appeal. V. Supreme Court Review

a. Discretionary Review/Writ of Certiorari: cases may be petitioned for review by writ of certiorari. Supreme Court has discretion to hear or refuse.

VI. Review of State Statutes

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a. Under Article III and the Supremacy Clause federal courts have the power to review state decisions and to review the constitutionality of state laws in criminal proceedings.

VII. Judiciary’s Role in Interpreting the Constitutiona. Cooper v. Aaron: states must defer to federal court’s constitutional rulings.b. Dickerson v. U.S.: Congress cannot use a statute to overrule a Supreme Court

decision interpreting the Constitution. IF Congress opposes a SCOTUS decision it can initiate the constitutional amendment process.

VIII. Federal Jurisdiction under Article III, § 2:a. Cases in which the parties' diversity of citizenship determines the jurisdiction:

cases between citizens of different states, where the amount in controversy exceeds $75,000;

b. Cases in which the subject matter determines the jurisdiction: cases that arise under the Constitution, federal law, or treaties (“federal question” jurisdiction); and

c. Cases in which the identity of the parties determines the jurisdiction:d. Cases between a state and a citizen of another state;e. Cases in which the United States is a party (don't forget that the United States

may only be sued with its consent, usually provided by federal statute);f. Cases between two or more states; org. Cases between a state or its citizens and a foreign country or its subjects.

Constitutional Limits on Judicial Review (Article III § 2)

I. Congressional Limitsa. Principles of separation of powers—Legislative Power

i. Ex parte McCardle: although the Supreme Court derives its appellate jurisdiction from the Constitution, the Constitution also gives Congress the express power to make exceptions to that appellate jurisdiction.

b. Principles of separation of powers—Executive Poweri. United States v. Klein: a statute violates the separation of powers by

commanding a court to draw a certain conclusion from evidence before it and by directing the court to dismiss an appeal for lack of jurisdiction when it encounters such evidence.

c. Congress is expressly granted the power to regulate the appellate (but not original) jurisdiction of federal courts in Article III, §2 of the Constitution. Ex parte McCardle, 74 U.S. 506 (1869). While it's not clear how broad this power is, it's not unlimited; therefore, it's possible that even if Congress eliminated Supreme Court review of certain types of cases, it would have to permit some lower federal court to retain jurisdiction over such cases. U.S. v. Klein, 80 U.S. 128 (1872)

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II. Cases and Controversies a. Constitutional Source: Article III

i. In order to have standing to proceed in federal court, a plaintiff must establish that she has a sufficient stake in the litigation to be a presumably effective litigant.

b. There must be an active case or controversy for the court to hear. c. Federal courts have judicial power over all cases and controversies:

i. Arising under the Constitution, laws, or treaties of the U.S. ii. Of admiralty and maritime jurisdiction

iii. In which the U.S. is a partyiv. Between two or more statesv. Between a state and citizens of another state

vi. Between citizens of different statesvii. Between a state or citizens thereof and foreign states, citizens, or subjects

III. Justiciability The justiciability doctrines determine which matters federal courts can hear and

decide and which must be dismissed. Justiciability includes:

o (1) the prohibition against advisory opinions, o (2) standing, o (3) ripeness, o (4) mootness, and o (5) the political question doctrine.

a. Prohibition of Advisory Opinionsi. A case or controversy requires an actual dispute between adverse litigants.

ii. Plaut v. Spendthrift Farm, Inc.: Congress may not retroactively command the federal courts to reopen final judgments without violating the separation of powers doctrine.

b. Standing (Constitutional) Standing issues always arise when a plaintiff is seeking injunctive or

declaratory relief. Usually when a plaintiff is seeking damages it is for an injury, so standing is not as big of an issue to prove.

Standing issue can be raised at any point during the case, or can be raised sua sponte.

Constitutional Standing requirements cannot be overridden by Congress by statutes. i. Injury

1. Concrete and particularized. 2. Injury must be actual and imminent, not hypothetical. 3. Plaintiff must allege a distinct and palpable injury.

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4. It can be economic, aesthetic, environmental, recreational, or reflect a “spiritual stake” in the First Amendment rights of free exercise and establishment.

5. Cases a. Allen v. Wright: One does not have standing to sue in

federal court unless he can allege the violation of a right personal to him.

ii. Causation1. D’s illegal action is legal cause of P’s injury2. Injury must be fairly traceable to the challenged action 3. Not the result of independent action of some third party not before

the court. 4. Cases

a. MA v. EPA: a plaintiff has standing if it demonstrates a concrete injury that is both fairly traceable to the defendant and redressable by judicial relief.

iii. Redressability 1. Likely that injury will be redressed by a favorable decision2. Remediable by court3. Inability to alleviate injury is tantamount to rendering an “advisory

opinion”4. Cases

c. Standing (Prudential) Congress may override prudential standing requirements by statute.

i. No generalized grievances1. Taxpayers do not have an undifferentiated interest in ensuring

money is spent in a constitutional manner — or at least that interest is not sufficient to maintain a suit in federal court.

2. A party claiming only a general grievance about government, unconnected with a threatened interest of its own, does not state an Article III case or controversy.

3. U.S. v. Richardson: a taxpayer does not have standing to bring a generalized grievance challenging a statute regulating a federal agency’s accounting and reporting procedures.

4. Flast v. Cohen: federal taxpayers have standing to challenge government expenditures that are claimed to violate the Establishment Clause. (the constitutional provision prohibiting the government from favoring any one religion over others, or engaging in religious activities or advocacy)

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ii. No assertion of third party standing1. Exceptions:

a. The relationship between the litigant and the person who holds the right must be inextricably bound through the activity the litigant wishes to pursue.

i. Singleton v. Wulff: a litigant has standing to bring suit where the litigant’s relationship with a third party whose rights he wishes to assert is very close and where there are genuine obstacles to the third party’s suing on its own behalf.

b. The third party is fully, or very nearly, as effective a proponent of the right as the latter

c. The inability of the third party to assert his/her own rightd. Establishment clause challenge to government spending

(also, generalized grievances)

iii. Zone of interest 1. If plaintiff is litigating pursuant to a statute that provides a cause of

action, the plaintiff must show that he is within the “zone of interest” (the group of aggrieved the right is intended to protect)

d. Ripenessi. ROL: ripeness means that an issue presents an immediate threat of harm,

rather than the injury being speculative and possibly never occurring. 1. Suits cannot be based upon contingent future events that may not

occur as anticipated, or indeed may not occur at all. ii. A constitutional question is ripe for judicial review only when the

government act being challenged has a direct adverse effect on the plaintiff making the claim.

iii. Criteria for Evaluating Ripeness in Administrative Determination: 1. Fitness of the issues for judicial decision2. Hardship to the parties of withholding court consideration.

iv. Cases: 1. Poe v. Ullman: Criminal statutes that are not enforces are not ripe

for constitutional adjudication. 2. Abbott Labs v. Gardner: a pre-enforcement review of challenged

regulations is ripe for judicial determination where the issue involved is a purely legal one and the impact of the regulation on the challenger is direct and immediate.

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e. Mootnessi. ROL: Changes in fact or law after lawsuit has commenced that resolve

controversy or obviate need for relief. The federal courts will not adjudicate a case that does not present an actual ongoing dispute between the parties, an actual controversy must exist at all stages of review.

ii. Exceptions1. Cases involving continuing harm2. Harms that have ended but may reoccur

a. Friends of the earth Inc. v. Laidlaw Environmental Services: voluntary compliance moots a case only if the improper behavior is not capable of being repeated.

b. US Parol Commission v. Geraghty: an action brought on behalf of a class does not become moot upon expiration of the named plaintiff’s substantive claim, even though the class certification has been denied.

3. Cases capable of repetition but evading review a. Roe v. Wade

f. Political Questioni. ROL: SCOTUS has declined to hear certain cases that would (in the

court’s view) require it to make decisions that are more appropriately decided by other branches of the government.

ii. Issues are considered “non-justiciable” because they are:1. Issues the constitution commits to another governmental branch

(based on separation of powers principles) or2. Issues the judicial process is inherently incapable of resolving and

enforcing because there are no standards for resolving the dispute. iii. Criteria for determining whether a case presents a political question (at

least one must be present: Baker v. Carr 1. A “textually demonstrable” constitutional commitment of the issue

to Congress or the executive branch;2. Lack of “judicially discoverable and manageable standards”;3. Need for a single pronouncement from the branches;4. Difficulty or impossibility of devising effective judicial remedies.

iv. Recent Decisions: 1. Textually demonstrable constitutional commitment of issue to

coordinate political department. a. Article I impeachment rules, Congressional qualification

rules. Powell v. McCormack.2. Lack of judicially discoverable and manageable standards for

resolving questions. a. Gerrymandering claims, extending time or rescinding state

ratification of constitutional amendment, impeachment rules. Vieth v. Jubelirer

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3. Impossibility of deciding questions without an initial policy determination of a kind clearly for non-judicial (political) discretion.

a. Guaranty clause…leave to political branches determination of what constitutes “a republic form of government”. Luther.

4. Impossibility of resolving without expressing lack of respect owed to coordinate branches of government

a. Nixon v. U.S5. Unusual need for unquestioning adherence to political question

already made. 6. Potentiality of embarrassment from multifarious pronouncements

by various departments on one question. v. Cases:

1. Baker v. Carr: a. Whether the constitution seems to have committed the

power to another branchb. Whether the question presents difficulties in the creation of

standards by the courts. 2. Vieth v. Jubelirer: 3. Powell v. McCormack: 4. Goldwater v. Carter:5. Nixon v. U.S.:

IV. 11th Amendment a. The Judicial power of the United States shall not be construed to extend to any

suit in law or equity, commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state

b. Sovereign immunity: cannot bring the the king to court. c. Basic 11th Amendment: citizens of other states cannot sue a state in federal court. d. 11th Amendment: What is barred?

i. citizens of a state cannot sue the state in federal court. Hans v. LA. ii. Citizens of the state cannot sue the state on federal grounds in state court

without the state’s consent. Alden v. Maine. iii. Congress cannot make states subject suits for money damages or

injunctions (abrogate sovereign immunity) even when states violate federal rights, if the legislation is enacted under Congress’ power to regulate commerce. Seminole Tribe v. Florida.

e. What is not barred?i. Congress can make states subject to suits for money damages when states

violate federal rights (as determined by SCOTUS) if the legislation is a legitimate exercise of Congress’ power to enforce the 14th Amendment and if Congress clearly states its intention to abrogate state sovereign immunity. Nevada Dept. of Human Resources v. Hibbs.

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ii. Actions against local governments. The 11th Amendment only protects state governments, not local.

iii. Actions by the United Statesiv. Bankruptcy proceedings

f. Exceptions to the 11th Amendment: i. Certain actions against state officers

1. Actions against state officers for injunctions. Ex parte young2. Actions against state officers for monetary damages from officer

for violations of federal law if the monetary damages are to be paid out of the officer’s own pocket.

g. Summary: The 11th Amendment will prohibit federal court from hearing a claim for damages against a state government (although not against state officers) UNLESS:

i. The state has consented to allow the lawsuit in federal courtii. The plaintiff is the United States or another state

iii. Congress has clearly granted federal courts the authority to hear a specific type of damage action under the 14th Amendment (under a civil rights statute).

Federal Legislative Power

I. Congressional Powersa. No general police power, only those areas enumerated in the Constitution. b. Aided by a broad reading of the Necessary and Proper Clause. c. McCulloch v. Maryland: defines the scope of federal legislative power and

relationship to state authority i. (1) Certain federal powers, giving Congress the discretion and power to

choose and enact the means to perform the duties imposed upon it, are to be implied from the Necessary and Proper Clause.

ii. (2) The federal Constitution and the laws made pursuant to it are supreme and control the constitutions and the laws of the states. States do not retain ultimate sovereignty because they ratified the Constitution.

d. U.S. v. Comstock: Congress has the power under the Necessary and Proper Clause to enact laws in furtherance of its constitutionally enumerated powers.

i. There must be a “means-ends” rationality. ii. Allowed to make a modest addition to a longstanding federal statutory

framework.

II. Enumerated Powersa. Interstate commerce b. Taxing and Spending for the General welfare

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c. Amendment enforcement provisions

III. Necessary and Proper Clause: a. McCulloch held that the power need only be helpful or useful.b. Under the Necessary and Proper Clause application of a rational basis test should

be at least as exacting as it has been in the Commerce Clause cases, if not more so. Those precedents require a tangible link to commerce, not a mere conceivable rational relation, as in the due process cases. The rational basis referred to in the Commerce Clause context is a demonstrated link in fact, based on empirical demonstration.

c. The question then is whether Congress may pass laws that are necessary to another law that was necessary to an enumerated power?

d. Such a law is a “necessary and proper” regulation of a particular instrumentality of commerce that Congress may regulate because regulation of these are “necessary and proper” to the regulation of interstate commerce.

e. Not only may Congress pass laws necessary and proper to execution of its own powers, but it may also pass laws necessary and proper to ‘‘other powers vested by this constitution in the government of the United States, or in any department there-of.’’

IV. The Commerce Power/Clause (Article I § 8)Congress has the power to regulate commerce between the states.

a. “Commerce”: any activity may be regulated, even if it is not commerce in the traditional sense, as long as that activity:

i. Takes place within interstate commerce. ii. Uses the channels of interstate commerce.

iii. Uses the instrumentalities of interstate commerce. 1. If the regulated activity could be framed as a regulation of

channels or instrumentalities, then no inquiry into the activity’s substantial effects is necessary.

iv. Substantially affects interstate commerce. 1. Underlying Economic Activity

a. no: there is a strong presumption against Congress’s authority to regulate.

b. yes: Look at whether the activity in the aggregate is going to have a substantial effect on interstate commerce.

2. Looking at it in the aggregate a. Does the challenged statute contain a jurisdictional element

that ensures a close connection to interstate commerce?b. Are there Congressional findings concerning the activity’s

effect on interstate commerce?c. Is the activity’s link to interstate commerce is too

attenuated?

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d. Is the regulated activity is something that the states have traditionally regulated?

b. Interstate v. Intrastate: Congress may clearly regulate any activity that affects interstate commerce. Congress may regulate some activities that take place wholly intrastate, due to their effects on, or relationship to, interstate commerce. U.S. v. Morrison: Commerce clause regulation of intrastate activities may be

upheld ONLY where the activity regulated is economic in nature. 4 National Labor Relations Board v. Jones & Laughlin Steel Corp.: Under the

Commerce Clause, Congress has the power to regulate any activity, even intrastate production, if the activity has an appreciable effect, either direct or indirect, on interstate commerce.

U.S. v. Darby: Congress has the power to regulate the hours and wages of workers who are engaged in the production of goods destined for interstate commerce and can prohibit the shipment in interstate commerce of goods manufactured in violation of the wage and hour provisions.

Wickard v. Filburn: Farm production that is intended for consumption on the farm is subject to Congress’s commerce power, since it may have a substantial economic effect on interstate commerce.

Gibbons v. Ogden i. If a state law conflicts with a congressional act regulating commerce, the

congressional act is controlling. 1. Any intrastate activity which has a substantial effects commerce. 2. Any individual activities that have an aggregate effect on interstate

commerce. 3. All parts of an enterprise, even if only a part of the enterprise

affects interstate commerce, where the nonregulated part may adversely impact the part affecting commerce.

c. Scope of Poweri. May do so to protect the national economy.

ii. As a means to achieve health, safety, or welfare aims. 1. To a degree, Congress can regulate what happens after interstate

commerce has taken place. a. United States v. Sullivan

2. Congress may regulate and protect the instrumentalities of interstate commerce, such as vehicles, transportation terminals, even if the threat comes from interstate activities.

a. Southern Railway Co. v. U.S.3. Congress’s conclusion that an activity affects interstate commerce

need only be reasonable.

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a. Heart of Atlanta Motel, Inc. v. U.S.: Congress, under the Commerce Clause, may regulate businesses local in scope, if their business activities have some impact on interstate commerce.

b. Hodel v. Virginia Surface Mining & Reclamation Assn4. Once Congress finds that a class or aggregate of activities affects

commerce, that activity may be regulated regardless of whether any particular instance of that activity affects commerce.

a. Katzenbah v. McClung, Sr. & McClung Jr.: Although an activity is local and may not be regarded as commerce, it may still be reached by Congress if it exerts a substantial economic effect on interstate commerce.

b. Perez v. U.S. iii. Congress may not regulate something that is purely a local matter.

1. U.S. v. Lopez: The 1990 gun-free school zone act exceeded Congress’s Commerce clause regulatory powers. The act punished possession of a gun, and the mere act of possessing a gun did not have an effect on interstate commerce.

V. The Tax and Spending Power (Article I, § 8)

a. Spending: Article I, § 8 grants Congress broad power to spend funds for the common defense and to advance the general welfare.

i. Congress by conditioning receipt of funds on compliance with federal regulations is able to indirectly regulate what it cannot regulate directly.

ii. Sabri v. U.S.: The absence of a nexus between federal funding and prohibited conduct does not result in a statute’s presumed unconstitutionality.

iii. Congress may “regulate” states through he spending power by imposing conditions on the grant of money to state or local government. This does not violate the 10th Amendment, so long as the conditions:

1. Are clearly stated2. Related to the purpose of the program3. Are not unduly coercive.

b. Taxing: Article I, § 8—Congress can regulate or limit activities by imposing taxes on them, effectively prohibiting them where the tax is substantial.

i. As long as the tax produces revenue, it may be enacted for any motive, even purely regulatory ones that have no genuine money-raising purpose at all.

ii. A tax will generally be valid if it actually produces revenue or if Congress intended that it do so.

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iii. The determination of whether a legislative enactment imposes a tax does not depend on the label congress gives it, but rather on its function. National federation of independent business v. Sebelius.

iv. Uniformity requirement: there must be geographical uniformity. v. A tax measure will be upheld if it bears some reasonable relationship to

revenue production or if Congress has the power to regulate the taxed activity.

vi. U.S. v. Butler: Congress may not, under the pretext of exercising the taxing power, accomplish prohibited ends, such as the regulation of matters of purely state concern and clearly beyond its national powers.

vii. Article I, § 9, forbids Congress from taxing exports.

c. N.Y. v. U.S.: The federal government may not order a state government to enact particular legislation. They may not use their spending/taxing power in a way that is coercive to get the states to do what they want.

d. How to analyze a Spending Power Problem/If Congress Grants Money to States Upon Compliance with a Condition, Analyze the Condition:

i. Is the spending in pursuit of the general welfare?ii. Is there even an condition? If it is a must—then there technically is not a

condition. iii. Is the condition Related to the expenditure?iv. Is the condition expressed in an unambiguous manner?v. Is there some other constitutional provision that is violated by the

condition? vi. If the financial inducement so great as to be coercive or compulsory?

1. 10% too much. 2. Does the condition have an affect on money that you have already

received in the past or would otherwise receive? Preexisting spending program?

3. 5% of a specific program, Dole said that it not too much (not unduly coercive)

4. there has to be some amount/some persuasion left to the government to help persuade a state to comply with a specific program.

e. Delegation of Legislative Poweri. Congress has discretion to delegate its legislative power to executive

officers and/or administrative agencies. ii. Limitations of Delegation: Touby v. U.S.

1. Power cannot be uniquely confined to congress. The power to declare war and the power to impeach cannot be delegated.

2. Clear standard: delegation will be upheld only if it includes intelligible standards for the delegate to follow.

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a. Whitman v. American Trucking Assn.: providing agencies some level of discretion in setting regulations is not an unconstitutional delegation of law.

iii. Congress delegating legislative power to the president: 1. A.L.A. Schechter Poultry Corp. v. U.S.: congress cannot delegate

its legislative power to the president. When the president’s discretion is unfettered by congressional standards, the code-making authority is an unconstitutional delegation of legislative power.

2. Panama Refining v. Ryan: Congress cannot delegate its powers to the president or his agencies without providing policy standards and guidance for the delegated powers.

VI. Congress’ Ability to Abrogate State Sovereign Immunity a. Except for statutes enacted by Congress pursuant to its special powers to enforce

the Thirteenth, Fourteenth, and Fifteenth Amendments, or the Bankruptcy Clause of Art. I, §8, Congress has no power to abrogate the Eleventh Amendment. Seminole Tribe of Fla. v. Fla.

b. The Seminole Tribe case means that the states are immune from private money-damage suits in federal court brought under federal copyright statutes, trademark statutes, environmental laws, and any other statutes that are not supported by the Thirteenth, Fourteenth, and Fifteenth Amendments, or the Bankruptcy Clause of Art. I, §8.

c. The 11th Amendment does not protect states against a private suit by an individual for an injunction, or damages brought by the federal government.

d. Suits NOT barred by the 11th Amendment: i. Suits by the federal government or other states against a state;

ii. Suits in which injunctive/declarative relief is sought against state officials for federal law violations;

iii. Suits by anyone against subdivisions of states (e.g., cities and counties);iv. Suits looking for prospective relief instead of damages for past conduct;v. Suits in which the claim is that a state official violated federal law

(constitutional or otherwise), not state law;vi. Suits brought against a state in state court (although a parallel principle of

state immunity may protect a state if sued in its own courts on a federal right);

vii. Damages sought against state officials personally (it's damages payable by the state that are barred); and

viii. Suits under federal statutes enacted under §5 of the Fourteenth Amendment (which gives Congress the power to enforce the Fourteenth Amendment).

e. Analyzing 11th Amendment Problems (How to analyze a question in which a state is being sued in federal court)

i. Who is the plaintiff?

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1. 11th Amendment applies to all private plaintiffs. 2. 11th Amendment does not apply to another state or the federal

government as plaintiff. ii. Is the state a defendant? 11th Amendment applies only to cases against the

states.1. Yes state government, agencies of the state. 2. No political subdivisions, municipal corporations, counties,

school boards, or state officers sued in their personal capacity (unless the action requests the officer to be ordered to pay funds from the state treasury for wrongful acts of the state or return property in the state’s possession, in which case the state is the real party in interest).

iii. What relief is sought?1. 11th Amendment applies to damages, past debt, retroactive relief

of any type. 2. 11th Amendment does not apply to injunctive or declarative relief

or suits against state officials if suit seeks to force them to conform their conduct to federal (not state) law.

iv. Has the state waived immunity?1. The state may waive immunity expressly (in legislation itself) or

impliedly (willfully engaging in federally regulated activities that are not essential to state functions).

2. No: participation in a federal program (accepting federal funds in the absence of an explicit congressional requirement that doing so constitutes a waiver).

v. Does congressional grant of jurisdiction apply?1. Federal statutes based on congressional power to enforce the 14th

Amendment are not subject to the 11th Amendment bar.

Federal Executive Power

I. Executive Powers a. Executive power: Constitution confers the executive power on the president to

administer and carry out the laws, and act in times of national, not domestic, emergencies without authorizing congressional legislation. (Article II § 1)

b. Article Ic. Article II

i. § 1: executive power vesting in President of USii. § 2: commander in chief: army, navy, militia of several states

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1. treaty power with 2/3 senate2. appointments of inferior officers

iii. § 3: take care clause—that law faithfully executed, commission of all officers

d. 12th Amendment: electoral collegee. 20th Amendment: term dates, succession before swearing inf. 22nd Amendment: two term limitg. 25th Amendment: case of removal by death or resignation – VP.h. Power as Chief Executive,

i. The president is vested with the power to execute, to administer, and to enforce the laws that have been duly enacted by Congress. The President has an obligation to ensure that the laws of the United States are adequately enforced.

1. Where the President acts with the express or implied authority of Congress, his authority is at is maximum and his actions are likely valid

2. Where the president acts where Congress is silent, his action will be upheld as long as the act does not take over the powers of another branch of the government or prevent another branch from carrying out its tasks (U.S. v. Nixon)

3. Where the president acts against the express will of Congress, he has little authority and his action will likely be invalid

ii. Youngstown: the president, as the leader of the executive branch, is bound to enforce the laws within the limits of the authority expressly granted to him by the Constitution, and he cannot usurp the lawmaking power of congress by an assertion of an unspecified aggregation of his specific powers.

1. Under Youngstown, to assess the President’s power minus that of Congress over the matter

II. Domestic Power

a. Presidential Pardon (Article II § 2): the president can pardon individuals or whole classes of persons any time after offense is committed. Effect of pardon is to preclude conviction or to mitigate or remove any penalties that result from conviction. The power to pardon cannot be limited by Congress.

b. Presidential Veto (Article I § 7): president has power to disapprove of any legislation passed by Congress. President has power to override.

i. Congress needs a vote of two-thirds of each house to override a veto.

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ii. Line item veto unconstitutional: the veto power allows the president to approve or reject a bill in total; he cannot cancel part and approve other parts. Clinton v. City of NY.

c. Presidential Appointment (Article II § 2): President has the ability to vest executive power in certain government officers through the power of appointment.

i. Officers of the United States: President can appointment officers who exercise significant authority under the laws of the United states. Includes persons who formulate government policy, enact rulemaking and adjudication, or otherwise have have broad governmental power. (Buckley v. Valeo)

ii. Inferior Officers: power to appoint belongs to congress.

d. Removal Power: the Constitution is silent as to removal of appointees, except for ensuring tenure of all Article III judges “during good behavior.”

i. In general, the president may remove executive officials unless removal is limited by statute.

ii. Congress may not limit the president’s removal of a superior officeriii. Congress may limit removal both if it is an office where independence

from the president is desirable, and if the law does not prohibit removal but, rather, limits removal to instances where good cause it shown.

1. Congress cannot completely prohibit removal2. Congress cannot give removal power to itself3. Congress cannot prescribe a double layer of protection from

presidential removal whereby “inferior officers” may be removed only for just cause by “officers” who may be removed by the president only for just cause.

iv. How to approach an issue concerning removal power?1. Step 1: is the office one in which independence from the president

is desirable? Are there good reasons why the office should be independent from the president?

a. If yes, then Congress may limit the reval power. 2. Step 2: are Congress’s limits on removal constitutional?

a. Congress cannot completely prohibit presidential removal, but can limit removal to where there is “good cause.”

b. Congress cannot give itself the sole power to remove an executive official or structure removal so that there is a double layer of insulation from presidential removal.

v. How to determine whether an officer is inferior or superior? 1. Who can remove?

a. If the office can be removed by someone other than the president, it is an inferior office.

2. What are the duties of the officer? a. How much executive power is invested in the office?

Broader duty would be a superior officer, for example

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formulating policies. Superior officers have more discretion.

3. What is the officer’s jurisdiction?a. Limited jurisdiction = inferior officer.

4. What is the tenure of the office? a. Limited tenure/no ongoing duties = inferior officer.

e. Executive Orders: executive orders are legally binding orders given by the President, acting as the head of the Executive branch, to federal administrative agencies. Executive orders are generally used to direct federal agencies and officials in their execution of congressionally established laws or policies.

III. Foreign Affairsa. Treaties: an agreement between the U.S. and a foreign country that is negotiated

by the president and is effective when ratified by the Senate.b. Executive agreements: an agreement between the U.S. and a foreign country that

is effective when signed by the president and the head of the other government. Binding on international law. But not binding on subsequent administrations.

i. Constitutional Authority for Executive Agreements: 1. The president’s duty as chief executive to represent the nation in

foreign affairs2. The authority to receive ambassadors and other public ministers3. The authority as commander in chief4. The duty to “take Care that the laws be faithfully executed.”

ii. Cases 1. United States v. Belmont2. Dames & Moore v. Regan3. Medillin v. Texas

c. War: although the president lacks the power to declare or initiate “formal” war, the President has extensive military powers.

i. The president may act militarily under his power as commander in chief of the armed forces, in actual hostilities against the U.S. without a congressional declaration of war.

d. Boumediene v. Bush: i. Congress must act in accordance with the formal requirements of the

Suspension Clause to deny the writ, which the Military Commissions Act in Boumediene failed to do.

ii. Justice Kennedy's opinion concluded that the jurisdiction-stripping of the MCA violated the Suspension Clause.

e. Hamdi v. Rumsfeldi. Facts:

1. In response to the Second World War, Congress passed the Non-Detention Act, which states that “no citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress.”

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2. In response to the terrorist attacks of September 11, 2001, Congress passed the Authorization for Use of Military Force (AUMF)

3. President George W. Bush issued an executive order providing that non-U.S. citizens who were suspected of aiding the war on terrorism would be tried by special military commissions.

ii. Holding1. The AUMF provided congressional authorization for the

President's detention of Hamdi, and that the President had not violated the Non-Detention Act.

2. Congress had not authorized the tribunals and that the President did not have independent authority to create them.

IV. Executive Immunity a. Sitting and former presidents are entitled to absolute immunity from damages

liability predicated on official acts. i. Nixon v. Fitzgerald: the president has absolute immunity from civil

damages liability for all official actions taken while in office. b. A sitting president is not immune from a suit for damages based on actions that

occurred before taking office. c. Former presidents are not immune from criminal prosecution. d. Executive privilege: the right of the executive branch to refuse to disclose

confidential communications if such exemption is necessary for the effective discharge of its official duties.

e. Presidents do indeed possess an executive privilege—that is, a right to maintain the confidentiality of communications to which they become a party during their performance of their official duties. However, this privilege is “qualified,” not absolute.

V. Executive Branch’s Role in Lawmaking a. The president’s powers in the area of legislation are limited to proposing new

laws to Congress or vetoing laws that he deems inadvisable. b. An exercise of legislative power is subject to the bicameralism and presentment

requirements: i. Bicameralism: every bill shall have passed the House of Representatives

and the Senate. ii. Presentment: every bill whish shall have passed the House of

Representatives and the Senate, shall, before it became a law, be presented to the President of the United States, and if the President approves he shall sign it. (if not, veto power)

c. How to determine if something is an exercise of legislative power:i. Whether they contain matter which is property to be regarded as

legislative in character and effect.

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1. An action is legislative in character and effect if it has the purpose and effect of altering the legal rights, duties, and relations of persons.

ii. INS v. Chada: the constitution does not permit Congress to statutorily authorize a one-house veto of a decision the attorney general makes, pursuant to authority delegated to him by Congress.

VI. Impeachment Processa. The house of representatives shall have the sole power of impeachment (Article I,

§ 2, Clause 5)i. The house of representative must first pass, by a simple majority of those

present and voting, articles of impeachment, which constitute the formal allegation(s). upon passage, the officer has been impeached.

b. The senate shall have the sole power to try all impeachment. When sitting for that purpose they shall be on oath or affirmation. When the president of the United States is tried, the Chief Justice shall reside. And no person shall be convicted without concurrence of two thirds of the members present. (Article 1, § 3, Clause 6).

Constitutional (Federalism-Based) Limits on State Legislative Powers

I. Two aspects of the term federalism: a. The power of the federal government as sovereign over the states:

i. Article I: Congress’ Enumerated Powersii. Article IV: Supremacy Clause

b. The independence of states in all matters not enumerates/assigned by the constitution to the federal government

i. 9th, 10th, 11th Amendments

II. Federalism Limits: the 10th Amendment

a. ROL: reserves those powers therein, not expressly delegated to the federal government or prohibited to the states, to the states or to the people.

b. Casesi. N.Y. v. U.S.: The federal government may not order a state government

to enact particular legislation. ii. Printz v. U.S.: The federal government may neither issue directives

requiring the states to address particular problems, nor command the

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states’ officers or those of their political subdivisions, to administer or enforce a federal regulatory program.

iii. Reno v. Condon: Congress may regulate the states’ activities where the regulation does not require the states in their sovereign capacity to regulate their citizens. DMV had to hand over citizens’ personal info. The states had to comply because it was not forcing them to regulate their own citizens.

III. Federalism Limits: the 11th Amendment

a. ROL: the 11th Amendment prohibits the extension of the judicial powers of the federal courts to suits brought against a state by citizens of another state, or of a foreign state, without the states’ consent.

i. Citizens of the state cannot sue the state in federal court. Hans v. Louisiana

ii. Californians cannot sue the state of California on federal grounds in state court. Alden v. Maine

iii. Congress cannot make states subject to suits for money damages OR injunctions (abrogating state sovereign immunity) even when the states violate federal rights, if the legislation is enacted under Congress’s power to regulate interstate commerce (any Article I powers) (same goes with a breach of patent or breach of copyright—state is still immune) Seminole Tribe v. Florida

iv. Congress CAN make states subject to suits for money damages when states violate federal rights (as determined by SCOTUS) if the legislation is a legitimate exercise of Congress’s power to enforce the 14th amendment and if Congress clearly states its intention to abrogate state sovereign immunity. Nevada Dept. OF Human Resources v. Hibbs (2003).

b. How to bypass sovereign immunity: i. State consents to suit.

1. It might be politically popular, but if they are sued for damages, the tax paying citizens are the ones who end up paying.

2. They may be forced to waive there sovereign immunity as a condition to receive federal funding.

3. They will waive sovereign immunity in order to do business. They do it in contracts.

ii. Suits against state officials seeking injunctive relief have been allowed.

iii. Cities and counties are not states for the 11th amendment purposes.

c. 14th Amendment Bypass

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i. Must be a legitimate exercise of their 14th amendment rights. (Must be “appropriate” under § 5)

1. Identify the 14th Amendment “evil” or “wrong” that Congress intended to remedy

2. Whether the statute enforces these rights is guided by the principle that the purpose of any § 5 legislation “must be judged with reference to the historical experience it reflects.”

3. § 5 allows Congress to enact reasonably preventative/remedial legislation, the appropriateness of the remedy depends on the gravity of the harm it seeks to prevent.

ii. The court reads the 14th amendment very narrowly.iii. The exercise of Congress’s remedial and preventative powers and

creation of a cause of action have to be proportionate and congruent with the violation. It has to be proportionate to the scope of the problem being addressed. Borne

iv. Congress can only remedy what the court has recognized as a violation of the 14th amendment. Their power is to “enforce”, not to determine what constitutes a constitutional violation. Borne.

v. The court calls the shots when it comes to the scope of the rights covered under the 14th amendment.

How to analyze whether Congress can abrogate states’ sovereign immunity under the 14th Amendment:

o Identify what power congress used to enact a law to determine their ability to abrogate sovereign immunity

o The power has to be one that came into existence after the ratification of the 14th amendment, except for bankruptcy.

Cases: o Morrison: Congress cannot create a civil damages remedy for the

Violence Against Women Act that enables individuals to sue other individuals.

o Katzenbach v. Morgan & Morgan: A federal statute enacted pursuant to the Enabling Clause of the 14th Amendment supersedes any state constitutional statutory provision that is in conflict with the federal law. (voting restrictions)

o Kimel: Age discrimination, not enough. o Garrett: ADA accommodation, not enough. o Lane: ADA Title II/Fundamental Rights: yes. (right to access to the

justice system/courthouses)o U.S. v. Georgia: ADA Title II prison: yes.

d. Casesi. Fitzpatrick v. Bitzer: Congress may use its enforcement power under

the 14th Amendment to abrogate the states’ sovereign immunity and to permit private suits against the states in federal court.

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ii. City of Boerne v. Flores: The Religious Freedom Restoration Act unconstitutionally exceeds Congress’s enforcement power under the Due Process Clause of the 14th Amendment.

iii. Fitzpatrick v. Bitzer: Congress may use its enforcement power under the 14th Amendment to abrogate the states’ sovereign immunity and to permit private suits against the states in federal court.

iv. Seminole Tribe of Florida v. Florida: Congress lacks the power under Article I to abrogate states’ sovereign immunity. Congress cannot make states subject to suits for money damages OR injunctions (abrogating state sovereign immunity) even when the states violate federal rights, if the legislation is enacted under Congress’s power to regulate interstate commerce (any Article I powers) (same goes with a breach of patent or breach of copyright—state is still immune).

v. Alden v. Maine: Congress’s Article I power does not authorize it to abrogate the states’ immunity from federal claims in their own courts (state court).

vi. Reno v. Condon: distinguishes federal laws that regulate the states and federal laws that dictate to the states how they must regulate. If a law of general applicability regulates private businesses and individuals, as well as the states, then there has been no 10th Amendment violation.

vii. Nevada Dept. of Human Resources v. Hibbs: Congress can make states subject to suits for money damages when states violate federal rights (as determined by SCOTUS) fi the legislation is a legitimate exercise of Congress’ power to enforce the 14th Amendment and if Congress clearly states its intention to abrogate state sovereign immunity.

IV. Preemption

a. ROL: the doctrine holding that matters of national interest take precedence over matters of local interest; the federal law takes precedence over state law. Preemption is an issue whenever the federal government and a state regulate the same matter, or when a state regulates something that is has no authority to regulate.

b. Two situations where preemption occurs: In both cases, the key is discerning congressional intent.

i. Where a federal law expressly preempts a state or local law. Bruesewitz v. Wyeth.

ii. Where preemption is implied by a clear congressional intent to preempt state or local law.

1. Field preemption: where the scheme of federal regulation is so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it.

a. “field preemption” occurs only when the federal government has regulated in an area comprehensively, leaving no room for supplementary regulation by states.

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b. Federal law is exclusive in the area and preempts state law, even if the state law compliments and doe not impede federal law.

c. Arizona2. Conflict preemption: where compliance with both federal and

state regulations is a physical impossibility, or where state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.

a. Federal and state laws are mutually exclusive if the federal regulation is seen as setting the exclusive standard.

b. Federal and state law are not mutually exclusive if the federal regulation is viewed as setting only the minimum standard, with states allowed to set stricter standards.

c. State law will be deemed preempted if it stands as an obstacle to the accomplishment and execution of the full purposes or objectives of Congress.

i. Arizona: Permitting that provision to stand “would interfere with the careful balance struck by Congress with respect to unauthorized employment of aliens” therefore the law “is an obstacle to the regulatory system Congress chose.”

d. Wyath v. levine e. Florida lime and avocado growersf. Lorillard tobacco v. Reilly

c. There is a presumption against implied preemption in order to protect the state’s police powers.

d. States cannot tax or regulate federal government activities. These state laws are invalidated by the supremacy clause, but this type of preemption does not depend on congressional intent.

e. If Congress provides for regulation intended to cover the whole area in question, and the area is one in which both Congress and the states have power to regulate (e.g., commerce, with federal power coming from the Commerce Clause and state power from police powers), then the federal law supersedes the state law, regardless of whether the state law directly conflicts with the federal law.

f. If a state statute impacts interstate commerce and there is relevant federal legislation, you analyze the problem under the Supremacy Clause:

i. Did Congress expressly authorize or prohibit state regulation (or does the Constitution expressly bar state action—e.g., coining money, conducting foreign affairs)?

1. If so, that authorization or prohibition controls. If not, go on to #2.

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ii. Is there a direct conflict between the federal and state regulation (e.g., joint compliance isn't possible, or the objectives conflict)? If so, federal law automatically preempts. If there's no direct conflict (i.e., the federal and state statutes merely cover the same subject matter), go on to #3.

iii. Was the federal law intended to occupy the entire field?1. If so, the federal law preempts the state law. If not, the state

law stands.g. Supreme Court cases indicate that Congress will be deemed to have

preempted an area only where its intent is unmistakable, or where the nature of the regulated subject matter does not permit any other conclusion. Florida Lime & Avocado Growers v. Paul

h. If the regulations have different purposes, and Congress has not expressly preempted state law, the two regulations can usually co-exist.

V. Dormant Commerce Clause a. ROL: Absent congressional authorization, states generally may not regulate or

tax in a manner that either discriminates or unduly burdens interstate commerce.

i. Purpose of DCC is to prohibit protectionist state laws because, although they may benefit one state, they harm the wellbeing of the nation as a whole. It creates trade barriers that result in significant inefficiencies, increasing the costs of production for reasons unrelated to the underlying value of the economic activity.

ii. Non-discriminatory regulation is allowed as long as it meets this balancing test—the burden on interstate commerce (e.g., cost and difficulty of compliance, inefficiency created) is weighed against the strength of the state interest in the regulation to determine whether the burden on interstate commerce is “clearly excessive.”

iii. State regulations affecting interstate commerce must satisfy the following three requirements:

1. The regulation must pursue a legitimate state end2. The regulation must be rationally related to that legitimate state

end3. The state’s interest in the regulation must outweigh the

regulatory burden iv. Categories of State Laws that Violate the Dormant Commerce Clause:

1. State laws that facially discriminate against out of state commerce

2. Facially neutral state laws that were enacted with a discriminatory purpose or effect on commerce originating in other states

3. Facially neutral state law with disproportionately adverse effect on out of state commerce.

b. DCC Framework: Two Questionsi. Whether the law discriminates against interstate commerce?

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1. A law may discriminate on its face, which would make it per se unconstitutional. It will only survive judicial review if it is necessary to achieve a non-discriminatory, non-protectionist governmental objective.

ii. Does the challenged state law place an “undue burden” on interstate commerce?

1. Involves a balancing test that weighs the burden the law imposes on interstate commerce against the law’s putative local benefits.

c. Facially Discriminatory i. The state must demonstrate a legitimate, non-protectionist reason for

the law, and the state must lack any practicable, non-discriminatory alternatives for achieving that interest.

1. Philadelphia v. New Jersey: law prohibited the importation of waste generated outside of the state. Statute drew clear geographic distinction between waste collected or generated outside of the state. Law was unconstitutional.

2. Hughes v. Oklahoma: state law that forbade the transport of minnows captured in the state for the purpose of selling them outside of the state. If their true goal was to protect their minnow population, they could have done it in a geographically neutral way. Law was unconstitutional.

3. Dean Milk v. Madison: statute that make it unlawful to sell milk in Madison that was not pasteurized and inspected within a five-mile radius. Those advantaged were in-state producers. There were other practicable non-discriminatory alternatives. Law was unconstitutional.

4. Maine v. Taylor: a law that prohibited the importation of a certain fish. State asserted that the reasons were ecological because their fish were at risk and introducing nonnative species would harm the state’s aquatic ecology. Law was constitutional because it was necessary to achieve a non-protectionist objective.

5. C.A Carbone v. City of Clarkstown: can the locality show under rigorous scrutiny that no other means exists to advance a legitimate local interest.

d. Laws with a Discriminatory Purpose i. ROL:

1. West Lynn Creamery v. Healey: tax on all distribution of a good that was then disbursed to local producers only. Unconstitutional.

e. Laws that Discriminate in Practical Effect – Disproportionately Adverse Effects on Out of State Commerce

i. ROL: a facially neutral is discriminatory if it has discriminatory effects.

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1. Hunt v. Washington State Apple Adverting Commission: NC’s laws regarding the grading apple system said that no state grade could appear on apples shipped into the state. The law disadvantaged interstate commerce because it increased the costs of doing business in NC for WA apple growers, while leaving the NC apple growers unaffected, and it stripped WA from their competitive advantage that it had earned for itself through the development of its inspection system. Unconstitutional because it discriminated on interstate commerce.

2. Exxon Corp. v. Gov. of Maryland: the fact that the burden of a state regulation falls on some interstate companies does not, by itself, establish a claim of discrimination against interstate commerce.

f. Does the law create an “undue burden” on interstate commerce? i. Involves a balancing test that weighs the burden the law imposes on

interstate commerce against the law’s local benefits. 1. Loren J. Pike v. Bruce Church Inc.: a nondiscriminatory law

that places burdens on interstate commerce that clearly exceed the local benefits is unconstitutional. Law that required all cantaloupes grown in Arizona be packaged there.

2. Kassel v. Consolidated Freightways Corp.: the burden on truck drivers having to avoid the state if they had a certain truck was “clearly excessive” in relation to the safety benefits to Iowa.

3. MN v. Clover Leaf Creamery: law that prohibited the sale of milk in certain kinds of disposable containers for environmental reasons. Does not unduly burden interstate commerce.

g. Presumptions of non-discriminatory statutes: i. There is a strong presumption of validity of non-discriminatory

statutes where the state interest is health, safety, or social welfare; on the other hand, a court is not likely to uphold the statute where the state interest is economic (i.e., aiding local business interests).

ii. Non-discriminatory regulation enjoys a presumption of constitutionality that can only be overcome by a clear showing that the state benefit is outweighed by a national interest in uniformity or the free flow of commerce.

iii. Congress can't authorize state violations of constitutional provisions other than the Commerce Clause (e.g., Due Process and Equal Protection).

h. How to analyze a statute affecting interstate commerce: i. Is there relevant federal legislation? If so, there's a preemption issue,

not a Commerce Clause issue. If not, go on to #2.

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ii. Does the statute discriminate against interstate commerce—that is, does it either intentionally or unintentionally favor local economic interests over the economic interests of other states?

1. If it does, the statute is invalid without Congress' consent to so discriminate, regardless of whether the burden would otherwise be permissible, unless either (a) it is designed to protect health and safety interests, it is reasonable, and no non-discriminatory alternatives are available; or (b) the state is a “market participant,” in which case it can discriminate in favor of local businesses as long as it doesn't violate the interstate Privileges & Immunities Clause of Article IV (watch for this any time a state or city interferes with private sector employment).

iii. If the statute is non-discriminatory in both intent and effect, a balancing test is used to determine whether the burden on interstate commerce is unreasonable, thus invalidating the regulation: the burden on interstate commerce (e.g., cost and difficulty of compliance, inefficiency created, existence of less burdensome alternatives) versus the strength of the state interest in the regulation.

i. Market Participant Doctrine i. Exception to the DCC

1. A state may favor its own citizens in receiving benefits from government programs or in dealing with government-owned businesses

2. United Haulers v. Oneida: if the law favors a state created public benefit corporation, it can be constitutionally valid, even if it is facially discriminatory.

VI. Privileges and Immunities Clause (Article IV, § 2)a. ROL: the citizens of each state shall be entitled to all privileges and

immunities of citizens in several states. b. Generally:

i. Prohibits states from discriminating vs nonresidents with respect to constitutional rights or important economic activities fundamental to national union

ii. Designed to ensure that a citizen of State A who ventures into state B will receive the same privileges that state B enjoys

iii. Corporations and aliens cannot sue under this clause. iv. Recreational activities NOT protected

1. discrimination vs citizens/residents in re: economic right/liberty Privileges and Immunities Clause

2. general economic discrimination vs. business/entity Commerce Clause

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v. Only “fundamental rights” regulated – private employment, right to own property, access to courts (not exhaustive list)

c. Privileges and Immunities Clause review requires only intermediate scrutiny—substantial interest to which government interest is closely related.

d. Analysis: i. When a challenge is brought under this clause, ask

1. Has the state discriminated against out-of-staters with regard to privileges and immunities that it accords its own citizens?

2. If there is such discrimination, is there a sufficient justification for the discrimination?

3. Does the degree of discrimination bear a close relation to the reasons for the discrimination.

e. Privileges and Immunities of Citizenship, two primary contextsi. When a state is discriminating against out-of-staters with regard to

constitutional rights; andii. When a state is discriminating against out-of-staters with regard to

important economic activities1. Toomer v. Witsell:

a. SC required payment of a fishing license fee for out-of-staters that was much higher than the fee imposed on in-staters

b. Rule: A law that discriminates against out-of-staters violates the Privileges and Immunities Clause where there is no substantial reason for differential treatment. The inquiry is whether such reasons exist and whether the degree of discrimination is closely related to those reasons

2. United Bldg. v. Mayor and Council of the City of Camden: a. A municipal ordinance required that 40 percent of all

workers on city construction projects be residents of the city

b. Rule: The Privileges and Immunities Clause applies to municipal ordinances that discriminate on the basis of municipal residence because it affects the livelihoods of non-residents

3. Lester Baldwin v. Fish and Game Commission of Montana: a. Montana imposed a higher license fee for elk hunting

on nonresidents than on residentsb. Rule: A discriminatory law regulating recreational

activity does not violate the Privileges and Immunities Clause. If its not basic to the maintenance or well-being of the Union, nor are the nonresidents deprived of their livelihood, then it doesn’t violate the Clause

f. Analyzing a Privileges and Immunities Clause Problem:

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i. Is the person being discriminated against an out-of-state citizen or resident? If so, he's covered by the clause, go on to #2. (Corporations and aliens are not protected by the clause.)

ii. Is the activity regulated a right “fundamental to national unity”? (Essentially, this means the right to earn a living or otherwise pursue a commercial activity, and probably also means rights like receiving medical care, owning property, and accessing the judicial system.) If it is, go on to #3. If not, it's not protected.

iii. Is the discrimination closely related to a substantial state purpose (e.g., protecting the state's natural resources)? If it is, go on to #4. If not, it violates the clause.

iv. Is the discrimination a reasonable means of protecting the substantial state purpose—namely, are there no less-restrictive means reasonably available? If so, the discrimination is permissible. If not, the discrimination violates the clause.

g. Differences between DCC and PICi. Corporations are not covered by PIC—only citizens

ii. Congress can authorize state practices that would otherwise be impermissible under DCC, PIC cannot be waived.

iii. No market participant exception under PIC

Dormant Commerce Clause Privileges and Immunities ClauseCan be used to challenge state and local laws that burden interstate commerce regardless of whether they discriminate against out-of-staters

Can be used only if there is discrimination against out-of-staters

Corporations and aliens can be sued under this clause

Only citizens can be sued under this clause

Two Exceptions:1. If congress approves the state laws, then they do not violate this clause2. Market participant exception

1.

These exceptions do not apply

Eminent Domain and Takings

I. 5th Amendment Takings: a. No taking of private property for public use without just compensation. 5th

Amendment is not a grant of power, rather a limitation on power.

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b. This prohibition is applicable to the states through the 14th Amendment.

II. Two Kinds of Takings: a. Possessory Takings: occurs when the government confiscates or physically

occupies property. b. Regulatory Takings: occurs when the government’s regulation leaves no

reasonable economically viable use of the property.III. “Public Use” Limitation:

a. ROL: basis for government taking of property pursuant to its power of eminent domain so that the property taken may be utilized for the benefit of the public at large.

b. A use will be held to be “public” as long as it is rationally related to a legitimate public purpose (e.g. health, welfare, safety, moral, social, economic, political, or aesthetic ends). The government may even authorize a taking by a private enterprise, as long as the taking will redound to the public advantage (e.g. railroads and public utilities).

i. Kleo v. City of New London: a taking is for public use so long as the government acts out of a reasonable belief that the taking will benefit the public, and taking private property to promote economic development has long been accepted as a public use.

ii. Midkiff: the forced, compensated transfer by a state of title to land from landlords to tenants to reduce the concentration of fee ownership in the state is a taking related to a public use.

IV. Possessory Takinga. A taking will almost always be found if there is an actual appropriation or

destruction of a person’s property or a permanent physical invasion by the government or by authorization of law.

i. Loretto v. Teleprompter Manhattan CATV Corp.: ordinance requiring landlords to allow installation of cable TV in their rental units but limiting to $1 the fee landlords could charge for this access.

1. Rule: a permanent physical occupation of private property authorized by the government constituted a taking of property to which just compensation is due under the 5th Amendment.

ii. Kaiser Aetna v. U.S.: Requirement that public be given free access to a privately developed waterway.

b. Emergency Exception—a taking is less likely to be found in an emergency situation, even when there is destruction of property.

i. Miller v. Schone: the government does not effect a taking when it decides to destroy one class of property in order to preserve another class of property that it deems of greater value to the public. (additionally, it is not a taking when government regulates property to prohibit nuisances). Apple tree case.

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V. Regulatory Takings a. In General:

i. Pennsylvania Coal v. Mahon: while private property may be regulated to a certain degree, a taking under the 5th Amendment will be found if the regulation results in a severe diminution of value. At a certain magnitude, there must be an exercise of eminent domain and compensation to sustain the regulatory act. While considerable deference is to be given to the legislature’s judgment, each case will turn upon its particular facts.

1. Extent of diminution in value2. Extent of public interest 3. Reciprocity of advantage

ii. The government would not be able to function if it had no compensate every person whose property values decreased because of government action, but if the regulation goes too far, it will be recognized as a taking.

iii. Government regulation is not a taking simply because it decreases the value of a person’s property, so long as it leaves reasonable economically viable uses.

iv. Deciding if something is a taking involves the nature and extend of the interference with rights in the parcel as a whole, not discrete parts of the parcel (like air rights). Penn Central

v. Palazzolo v. Rhode Island: a property owner who takes title after a government regulation restricts the property’s use can assert a taking claim for the property.

1. A regulatory restriction that allows a property to retain 6% of its total development value, where the permitted use is a substantial residence, does not constitute a total taking of the property.

b. General Criteria to determine whether a regulation is a taking: i. The economic impact of the regulation on the claimant

1. Diminution alone cannot establish a taking, even if some land owners are burdened more than others.

2. TDRs lessen the amount of economic impact of the regulation. Penn

ii. The extent to which the regulation has interfered with investment-backed expectations, and

iii. The character of the government action

c. Nuisance Exception: i. A regulation adopted under the police power to protect the public health,

safety, or welfare is not a taking as defined by the 5th amendment, even if it reduces the value of the property.

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ii. If the government can justify the regulation by saying they are removing a nuisance, the regulation will not be considered a taking. Lucas.

iii. When a land-use regulation is designed to prevent serious public harm, no compensation is due, regardless of the regulation’s effect on the property’s value.

VI. Exactions a. The government can require exactions—a requirement that the developer provide

land or fees to offset the impacts of the project—as a condition of discretionary land use approvals.

b. An exaction will be a taking unless: i. There is an essential nexus between the exaction and a legitimate state

interest, andii. The exaction is roughly proportional to the project’s impact.

c. Nollan v. California Costal Commission: the court found no essential nexus between the view problem and an easement allowing the public to walk along the beach behind the house. Abridgement of property rights through police power must be a substantial advancing of a legitimate state interest.

d. Dolan: exactions imposed by a municipality’s permit conditions must be roughly proportionate to the impact of the proposed development. There was an essential nexus between preventing flooding and limiting the development in a flood plain, and between traffic reduction and providing alternative means of transportation.

VII. Takings Analysisa. Does the government action constitute a physical invasion of private property? If

so, i. Was there a permanent physical invasion and, therefore, a taking per se?

Loretto 1. Includes when government gives public access to private property.

Nollan v. California Costal Commn.ii. Was there a temporary physical invasion in which the harm to the owner

outweighs any public benefit conferred? Balancing testiii. Was the government’s action either arbitrary or disruptive of basic

expectations?

b. Has the government regulated the use of private property? if so, i. Is there a taking because the regulation striped the property of all use or

value? Lucas 1. Temporary regulation that denies the owner all economically

beneficial use of the land is usually not a taking. Tahoe-Sierra PreservatPortia3212ion Council v. Tahoe Regional Planning Agency.

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ii. Is there a taking because the regulation substantially diminished the value of the property? Penn Central

1. Economic impact of the regulation2. Extent to which the regulation has interfered with investment-

backed expectations3. Character of the government action

iii. If the regulation caused a taking, does the nuisance exception apply?

c. Has the government attached to a building permit a condition that would have effected a taking had the condition been imposed outright? (Exaction). If so, the condition amounts to a taking unless the following two inquiries are answered in the affirmative:

i. Does the condition bear an essential nexus to a legitimate government purpose?

ii. Are the nature and extend of the condition roughly proportional to the impact of the proposed development?

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