Beruflich Dokumente
Kultur Dokumente
I.
ii) District of Columbia v. Heller: The District of Columbia has a ban on handguns,
and in addition prohibits them from being in the home unless they are disabled.
Respondent Heller brings an action claiming that this complete ban violates the 2nd
Amendment right to keep and bear arms. He applied for a license under the act, but
was denied despite being a policeman. Licenses available for 1 yr periods
a. Heller follows this "we are guided by the principle that "[t]he
Constitution was written to be understood by the voters; its words and
phrases were used in their normal and ordinary as distinguished from
technical meaning" Doesn't allow for change of the times. We are fixed
into the social norms of when it was created
b. The Right Is Not Unlimited - not a right to keep and carry any weapon
whatsoever in any manner whatsoever and for whatever purpose
i.
Limits are dangerous and unusual weapons & prohibitions on
possession by felons, mentally ill, or carrying in sensitive places
c. Varieties
i.
"original intent" discern the intent of the authors (Stevens
dissent) -- Relies on the original drafts from Madison who wrote
the Bill of Rights
ii.
"original public meaning" discern the understanding of the
public (Court)
1. Discerned by looking at dictionaries and literature during
the time
iii) Non-Originalism: the meaning of the Constitution may change over time, evolving
as social conditions and values change
a. "Living Constitution"
b. "Translation" translating the social intents into ones for the current
society
c. Says that originalism is doomed to failure
3) Constitutional Structure: The Constitutional Structure Method seeks to decide cases based
on: a) the Constitutions maintenance of separation of powers or b) the Constitutions
federalism framework. The Court will decide if a particular result is implicit in the structure
of the Constitution.
4) History and Tradition: The History and Tradition Method looks at the historical backdrop
around which a particular Constitutional provision was adopted. As far as tradition, the Court
may grant protection based upon traditional societal needs.
5) Political Theory: The Political Theory Method may seek analysis based on principles of our
democratic system.
6) Social Policy: (Fairness/Justice): The Social Policy Method seeks to construe the
Constitution in a light that creates sound social policy.
7) Precedent and Doctrine: The Doctrine Method focuses on the pattern and practice that has
worked and is largely Stare Decisis or the Rule of Precedent. The Court may wish to adhere
to a previous decision. As Brandeis said, Stare decisis is usually the wise policy, because in
most matters it is more important that the applicable rule of law be settled than be settled
right. The court may also choose to revoke precedent. In ignoring precedent, the Court is
freer in Constitutional Law than other areas of law.
B. Historical Foundation: The Constitution came about after dissolution of the Articles of
Confederation. The Constitution is designed to simultaneously: a) strengthen government and b)
weaken government.
1) Problems in 1787: The Articles of Confederation, ratified in 1781, plagued the young country
with several problems.
i)
ii) Extreme Populism: There was a lack of protective property rights, and other
problems such as states creating their own currency, which triggered inflation
(which was good for debtors but bad for creditors).
iii) Uncertainty: There was a general feeling that the federal government was
incompetent, unable to govern and that there was a need for structure. Regional
differences mired the country in squabbling as autonomously-acting states
undermined and undercut the federal government.
2) Goals of the Constitutional Convention: The Framers brought two distinct notions to the
Convention.
i)
Limited, Enumerated Powers: Rather than living under the idea that the
government held all the power regardless, the Constitution a) weakened government
in that it encompassed the idea that the people were actually giving power to the
government. The limited, enumerated powers b) strengthened government in that
they were considerably broader than the power held under the Articles of
Confederation.
1) (Who?): A Party with Standing: Only a party with Standing to Sue may bring an action
over an issue to be decided by the Court. Additionally, the case must (usually) be appealed to
the Court (unless the Court has original jurisdiction). Certain factors can show standing.
[Lujan v . Defenders of Wildlife (1992): Wildlife organization sued Interior Department for
not following Endangered Species Act, curtailing their ability to observe wild animals in their
native habitat. Held, The plaintiffs do not have standing to sue because they fail black letter
law requirements: a) No injury in fact; b) No causation; c) No redressability.]
i)
Injury in Fact: The plaintiff must suffer concrete harm, not vague, uncertain
harm. Such harm can be physical, economic or deprivation of a particular right.
[Lujan] An association can sue for non-monetary loss if any of its members can,
as well.
1. Injury in fact does not include procedural irregularity, but harm. [Lujan,
Concurrence.]
2. Two types of injury
i) Personal
i. If they could show that their school really isn't integrated
ii. Any person in the black race could sue if this was the
case!
ii) Stigmatic
i. Though a stigma may be true, you have to show that it
affected you! The psychic effect is not an adequate injury,
but if it leads to another injury (if they applied and were
denied)
3. The Dimensions of injury: "Speculative" and "Imminent" Injury
i) Speculative
i. Los Angeles v. Lyons: choked by police and knocked
unconscious, brings suit to injunct the use of chokeholds
by the police. Had standing for the damages, but not for
choking b/c unlikely he would be chocked again
1. RULE: YOU NEED STANDING FOR EACH
CLAIM! (but no one would have standing here)
ii) Imminence
i. Lujan: denies standing because the members had only
some-day intentions to visit the affected areas. The
asserted injury lacks imminence.
1. No Real Definition Given for Immenence
4. Associated Standing Rule members of a corporation harmed
significantly enough to affect the organization [See Hunt v. Washington
Apple Advertisers]
i) An organization has standing if:
i. One or more of a groups members meet Art. III standing
requirements (injury, traceability, redressability)
ii. Relief requested is germane to the organizations purpose
iii. Neither the claim asserted nor the relief requested requires
participation of individual members
1. For example, you cant seek damages for injury
to a members property
2. Court can't regulate where the remedy would go
(goes to corp, but can't make it go to the
members)
ii) Causal Connection: The But For Test: would harm against plaintiff continue?
there must be a causal connection between the injury and the conduct complained of
1. Linda R.S. v. Richard D.: Mother alleged that a certain individual was the
father of her illegitimate child, that he refused to pay support, and that the
2.
3.
district attorney refused to enforce art. 602 against him because illegitimate
children were outside of the statute's scope
i) HELD: mother made an insufficient showing of a direct
connection between the vindication in her interest in her child and
the enforcement of state criminal law no standing
i. If found guilty, he would go to jail and not pay anyway
Warth v. Seldin: Petitioners, various organizations and individuals, brought
an action against respondent town, and against members of respondent
town's planning and zoning boards. Petitioners claimed that respondents'
zoning ordinances effectively excluded persons of low and moderate
income from living in the town
i) HELD: the facts alleged failed to support an actionable causal
relationship between respondents' zoning practices and petitioners'
asserted injury
ii) petitioners were unable to demonstrate that unless relief from the
allegedly illegal actions was forthcoming, their immediate and
personal interests would be harmed
i. unlike cases where housing was intended for certain
income levels (public housing)
Duke Power Co. v. Carolina Environmental Study Group Inc: Appellant
power company sought review of a judgment from the United States
District Court for the Western District of North Carolina, which determined
that appellees, environmental organizations and individuals who resided
within close proximity to a planned nuclear power facility, had standing to
bring a claim for declaratory relief, and that the Price-Anderson Act,42
U.S.C.S. 2210 et seq., was unconstitutional
i) HELD: But for the act, the plant wouldn't be built!
i. They had proof! Deposition had their statements saying
that they built because of the legislation
iii) Redressability: Even if the plaintiff sought relief they wanted, would they get the
state of the world they want? it must be likely that this injury will be redressed
by a favorable decision.
iv)
2.
3.
iii. Notes
1.
2.
3.
2.
Constitutional (Art III Non-Discretionary) Standing Limitations
i) Party raising claim must allege and prove the party has suffered a
(What do they have to prove for standing)
i. Personal Injury that is
1. Fairly traceable to the 's conduct
2. The injury must be likely to be redress by
favorable decision
Example: A city ordinance prohibits the display of murals on the exterior
of buildings in an historic district unless approved by the local historic
preservation officer. Artie painted a mural and sold it to a Bibi, who owns a
nightclub in the historic district. The historic preservation officer concluded
that the mural could not be displayed on the exterior of the nightclub. Artie
sues the city, alleging that the ordinance violates his First Amendment
rights and those of Bibi
i) Standing? Injury in fact no cognizable interest, once he sold the
mural, the right to display was conveyed to the purchaser so NO
STANDING! [See Burke v. City of Charleston]
ii) Court does not addrerss whether he can raise Bibis 1 st Amend.
rights
v) Allen v. Wright: Parents of black public school children brought suit against the
Internal Revenue Service (IRS), alleging that insufficient denial of tax-exempt
status to racially discriminatory private schools interferes with their childrens ability
to receive an education in public schools.
1. ISSUE: Does the harm alleged by the respondents fulfill the constitutional
requirement of standing?
2. RULE: Article III standing requires that a plaintiff allege a harm directly
traceable to specific action on the part of the defendant.
3. HELD: Ps lack standing
i) The injury is "beyond any doubt, not only judicially cognizable
but, one of the most serious injuries recognized in our legal
system"
ii) The court says the alleged injury is not "fairly traceable" to the
IRS's enforcement policies. The link is too attenuated
iii) If could show personal injury, then maybe
4. Challenge is not the law, but the execution/enforcement of the law/guideline
i) Challenge would run afoul the structural principle that "ART II
assigns the President and not to the courts a duty to take care that
the laws be faithfully executed" [Marbury]
ii) RULE: Presidential actions are justiciable only when they are
non-discretionary (by law) and not discretionary
5. Simon v EKWRO: organizations challenged an IRS Ruling which permitted
some hospitals to deny admission to non-emergency indigent patients
without jeopardizing their tax-exempt status. Claim rule encouraged nontreatment. (suggests suits btwn tax payers and IRS can have some 3 rd party
challenges)
i) HELD: Ps failed to establish that the denial of treatment was
fairly traceable to the revised revenue ruling
i. Purely speculative whether denials are attached to the rule
or hospital decisions made w/o tax implications (no causal
connection)
ii) Distinguished: "The [Allen] complaint suggests no substantial
likelihood that victory in this suit would result in respondents'
receiving the hospital treatment they desire"
i. respondents claim no injury dependent on taxpayers'
actions: "[t]hey claim indifference as to the course private
schools would take."
vi) Massachusets v. EPA: In order to protect the States interest in the land on the coast,
the State of Massachusetts petitions the EPA to regulate gas emissions from cars.
There is much research to show such emissions add to green house gases that effect
or cause global warming which in turn affects the water on the coast. The EPA
denied the request. Now the State of Massachusetts is suing the EPA for not
enforcing the Clean Air Act.
1. Distinguished from Allen v. Wright State versus individual; Congress
has provided a procedural right to persons in the position of Mass.
2. Congress says that anyone can challenge and therefore gives the right for
the state to do so has the power to define injuries and articulate chains of
causation that will give rise to a case or controversy where none existed
before within Art III bounds
3.
vii) Notes
1.
2.
3.
Held: There are incremental changes, doesn't have to fix it all at once!
("likely to redress") diffivulty = its a global problem
From Allen and Massachusetts, obstacles to ones ability to obtain services
in a non-discriminatory manner and damages to property are injuries that
are seen as such by the courts they are cognizable injuries that will
support standing
Likewise, loss of economic opportunities or pocketbook losses are readily
accepted as injuries by the courts
Less tangible hurts
i) Deprivation of the experience of viewing an endangered species in
its native habitat [See Lujan v. Defenders of Wildlife]
ii) Deprivation of access to information
i. It is a cognizable injury - absent congressional action to
create the right to seek the information, it's doubtful that
the court would treat this as a cognizable injury [See
Akins v. FEC AIPAC failed to register expenditures to
and on the behalf of federal candidates b/c they believed
they fell within an exception to the statute]
iii) Being subject to a racially gerrymandered system of representation
i. Cognizable? Yes if you live in the jurisdiction. Seems odd
because they are affected by the gerrymander [See U.S. v.
Hays State's congressional redistricting plan was
challenged by the voters, only those personally affected
had standing, but they couldnt live there b/c of
gerrymander]
2) (What?): Only Legal Questions are Reviewable: The Court can only review legal
questions, not political acts that are within Presidential or Congressional discretion.
Political does not mean political issues, but issues that are to be decided with finality by one
of the other branches [Roots in Marbury].
i)
Ripeness: Ripeness requires that the plaintiff show that there is an adversarial
situation that actually exists. This can be shown through the fact harm that has
happened. Generally addresses the timing of review. Is litigation premature? (is the
threatened injury speculative? Ripeness (unlike standing) usually associated with a
challenge to a law (or administrative rule) before any enforcement action
commenced)
1. Basic question: Is it unfair to require a person to wait until enforcement
action is taken against them before the offending law may be challenged?
i) The Imminence of the Law
2. Two part inquiry (Both elements reqd)
i) Are the issues to be litigated "fit" for judicial resolution? AND
i. If the answer to the question is a question of law (purely
legal issue) then it is "fit"!
ii) Would denying review impose hardship on the party seeking
review?
i. Should be immediate obligation or court might find an
absence thereof
3. Cases
i) Poe v. Ullman: State Statute prohibits the use of contraceptive
devices and the giving of medical advice in the use of such
devices. 3 Ps including the doctor bring suit. The law has never
been enforced! Contraband is regularly exchanged over the counter
i. RULE: A penal statute is not ripe for constitutional
challenge unless it is enforced by the state enacting the
statute (State obviously wasnt worried about it)
10
11
1.
Two types
1. Actions in which there is no actual dispute beetween parties for the Court to
resolve
i) Opinion of the Justices: Gov asking questions on how to act where
the conflict arose between France and England
2. The relief requested by a party will not have final and binding effect on the
litigants
i) Judicial decisions subject to approval or revision by executive
officials
ii) Hayburn's Case 2 U.S.: Revolutionary War veterans to file pension
claims were permitted by congress.
ii) Plaut v. Spendthrift Farm: Supreme Court changes law (shortens statute of
limitations) that federal courts were using. Congresss amendment requires cases to
resume prosecution after judgment has been rendered
1. Legislation purports to "revive" lawsuits previously dismissed by federal
courts by changing applicable stature of limitations retroactively
2. If our opinions are not the final opinions on the matter, then they serve as
an advisory opinion, and we prohibit those
iii) Declaratory Judgement ~= Advisory Opinions!
1. Declaratory Judgement A binding judgment from a court defining the
legal relationship between parties and their rights in the matter before the
court with no enforcement.
2. Distinguishing factor An actual legal issue!
iv) Notes
1. Two types of Consitutional Challenges
i) "As Applied" - party seeks an exclusion from the operation of a
law on grounds that, as applied to the party, the law is
unconstitutional. The law may still pass in other applications
ii) "Facial" - Party claims that the law is unconstitutional in all
applications
i. Differs in scope of the judgement, "As applied" means
that it stays in effect, Facial challenge is not
6) Notes
i)
12
4) Congressional Control over the Supreme Court's Jurisdiction: Art III , cl. 3:
i) "with such exceptions, and under such Regulations as the Congress shall make"
ii) Art I, 8 cl. 9, Art. III, congress given power to structure the judicial system!
iii) Exceptions Clause - Congress can reduce Supreme Courts jurisdiction (if it was
granted by the constitution in the first place) within their constitutional limits
1. Ex Parte McCardle: After writing a series of articles that were highly
critical of Reconstruction, federal officials arrested McCardle under the Act
of 1867. McCardle contended the Act was unconstitutional in providing
military trials for civilians and claimed his prosecution violated provisions
of the Bill of Rights (Act of 1789), including the First, Fifth, and Sixth
Amendments of the United States Constitution (Constitution). Before the
Supreme Court ruled on the merits, Congress passed a law repealing
Supreme Court appellate review of writs of habeas corpus. Sought Writ of
Habeas corpus
i) Had been repeated efforts by various interests for the Supreme
Court to review the constitutionality of the Reconstruction Act.
McCardle files under one statute that allows his to seek habeas
corpus, and Congress knows what's going on and repeals the Act
that allows him to sue. Congress trying to keep the court from
assessing the Constitutionality of the Reconstruction Act.
ii) After the Supreme Court had already began oral arguments,
Congress adopted a rider to an inconsequential tax bill that would
make the Supreme Court not have jurisdiction over the McCardle
case.
iii) Congress was afraid the Supreme Court ruling would be
obstruction or invalidation of Reconstruction.
2. General Issue - "Jurisdiction Stripping"
i) Congress does not have the authority to strip the authority to hear
certain kinds of cases
ii) Congress would effectively prevent the Supreme Court from
protecting constitutional rights! Unresolved politically
iii) Could limit the substance of the law (restricting the precedence
"The Constitution Restoration Act of 2005") or put a punitive
component in
3. Klein v. United States: During Reconstruction Congress enacted a law
permitting persons whose property was seized during the civil war to
recover their property or compensate them if given a presidential pardon.
The challenged legislation makes pardons inadmissible as evidence that the
claimant had not aided the enemy
i) Pardon is proof that claimant aided enemy (attempt to overrule
Paddleford) Gov. Wins
ii) Court Holds the law is not an exercise of Congress's "exceptions"
power
i. Violates separation of powers by telling the S Ct how to
decide a particular set of cases
1. Impairs the effect of a pardon and thus infringing
the constitutional power of the Executive
ii. IF it simply denied the right of appeal in a particular class
of cases then it would be an "exception"
4. Robertson v. Seattle Audubon Society: Congress passes legislation that
references two pending cases challenging decisions of the Bureau. Congress
said so long as BLM manages the lands in accordance with two new statute
provisions.
i) Court says Congress is not directing the outcome of cases pending
before the court, but instead, was simply changing the law
13
Inhibits State Abuse: Leaving Federal Questions up to the Supreme Court inhibits
abuse. [Martin: Held, State attachments, state jealousies, and state interests, might
sometimes obstruct or controlthe regular administration of justice.]
a. Cohen
i. Establishes a federal forum for vindication of constitutional rights
and federal interests when state courts might be less hospitable.
(State court hearing a case where the state is a party)
ii. Solidifies the Courts role in constitutional interpretation
ii) Allows Uniformity: Leaving federal questions up to the Supreme Court brings
uniformity. [Martin: Held, If there were no revising authority to control these
jarring and discordant judgments, and harmonize them into uniformity, the laws, the
treaties and the constitution of the United States would be different in different
states.]
a.
Political Principles
i. State courts are more prone to political influence (elected vs. life
terms)
ii. State courts may be biased and favor state over federal interests
14
ii. The Constitution permits the national government to act upon the
people, not the States
iii. State courts are not inferior to federal courts; they are institutions
of separate sovereigns over which the federal courts have no
authority (Strong states rights argument by Virginia)
B. Federal Government Power under the Necessary and Proper Clause:
1) The Necessary and Proper Clause: The Necessary and Proper Clause (Art. I, 8, cl.
18), Congress shall have Power To make all Laws which shall be necessary and proper for
carrying into Execution the foregoing Powers, is not a specific power but a power
enabling Congress to select the best route to achieve Congressional goals.
i)
Express Powers: Express powers are the powers specifically enumerated in the
Constitution, such as building roads and post offices.
ii) Implied Powers: Implied powers are not enumerated but given to Congress, such as
delivering the mail.
iii) Constitutional provisions
a. Art I, 1 all HEREIN granted legislative power is given to Congress
i.
Art I 8 power for taxes, borrow money, regulate commerce
ii.
Art I 8 can make necessary and proper laws under Const
iii.
Art VI cl 2 laws shall be the supreme laws of the land
iv.
Amendment X power not delegated by Const. is left to the
states
iv) The rule [See McCulloch v. Maryland]:
a. Let the end be legitimate, let it be within the scope of the constitution
is the object of the legislation consistent with the powers conferred
(attempting to regulate commerce)?
b. "all means which are appropriate which are plainly adapted to that end but
consist with the letter and spirit of the constitution are constitutional" is
the legislation conducive to a constitutional objective?
c. "which are not prohibited" is the legislation of the type found in textual
limitations on congressional power - Art I 9, Bill of Rights?
2) Definitive Necessary and Proper Means: Different meanings of Necessary and Proper
appear throughout the Constitution, the Necessary and Proper clause has been interpreted to
mean a legitimate ends to achieve a Congressional power. [McCulloch v. Maryland (1819):
Congress chartered the Bank of the United States, a national bank designed to regulate the
money supply, generally a pre-cursor to the Federal Reserve, Maryland excessively taxed the
Bank, the Bank refused to pay. Held, Marylands tax on the bank was unconstitutional,
Congress has very broad powers to select the means to implement its powers (taxing,
spending, borrowing, national defense), Congress has power under the Constitution to
incorporate a bank pursuant to the Necessary and Proper clause; Court says that the collective
people (all states) voted on how this should be carried out when they made the constitution
the supreme law of the land. No taxation without representation]
Necessary and Proper Pretext Warning: Though Congress may implement its
powers through Necessary and Proper means, it cannot enact a law under the
pretext of exercising one of its powers if Congress does not indeed have that
enumerated power.
ii) Deference: Court owes deference to Congressional judgements about what is
necessary (risk of treading on legislative ground)
a. Cautions that should congress pass laws for the accomplishment of objects
not entrusted to the government, then they have to call it unconstitutional
i)
15
b.
c.
d.
e.
16
sold only to NYC retailers, and bought from NYC market, but nearly all
poultry came from out of state. Held Local activities that are at the end of
the stream of commerce (chickens raised v handled) do not have a direct
effect upon interstate commerce. Carter v. Carter Coal Co. (1936): Statute
imposed maximum hours and minimum wages for coal miners. Nearly all
the coal produced would be sold in interstate commerce. Held the Act seeks
to control certain activities that are not commerce; the Act also affects
intrastate commerce to a large degree. Congress may not regulate activity
that does not have a direct, logical, and linear link to interstate commerce.]
ii) The 1937-1995 The Commerce Power, the Tenth Amendment, and
Constitutional Change: Post 1937, Court expanded commerce.
a.
Close and Substantial Relations Test: [NLRB v. Jones & Laughlin Steel
Co.: the National Labor Relations Board charged the Jones & Laughlin
Steel Co. with discriminating against employees who were union members
under the National Labors and Relations Act of1935 Held law was
necessary to prevent impediments to interstate commerce (though indirectly
strikes and riots effect commerce)]
b.
c.
17
a.
b.
c.
iii) The Modern Commerce Clause: Since 1995, a restricted view of commerce.
limited by the 10th Amendment [See Tenth Amendment Cases]
a.
c.
18
a.
3.
4.
b.
19
c.
d.
20
Law is Constitutional
or Product Directly Affect IC?
Yes
No
Is there a Substantial/Indirect
Law is Unconstitutional
Effect on IC (Individual
No
Aggregation)
Yes
Is the Activity
Economic in Nature? [Lopez; Morrison]
No
21
2) The Taxing Power: The Power to Tax (Art. I, 8, cl. 1), Congress shall have Power to Lay
and collect Taxes, Duties, Impost and Excises is independent of other powers. Taxes
create revenue, can dissuade certain activity (tobacco). Gov spending can encourage people to
engage in activities. Court adopts the view that its for the general welfare unrestricted by
the enumerated powers
i)
Duties, imposts, and excises must be uniform throughout the US and Capitation
and Direct Taxes must be apportioned according to the census, Art I 9, cl 4.
Income taxes not to be apportioned
a. Voters will vote the rascals out if taxing power is abused Functional
limit on the taxing power
Spending with Supporting Regulation: Congress can regulate and impose penalties
using the spending power. [Sabri v. United States (2004): Petitioner was charged
for offering bribes to a city councilman. Petitioner moved to dismiss was
unconstitutional on its face for failure to require proof of a connection between the
federal funds and the alleged bribe Held the Spending Clause authorizes Congress to
spend money for the general welfare, and that the Necessary and Proper Clause
authorizes it to take any reasonable steps to prevent such money from being
misspent; it was within Congress's power to prohibit all bribes to all federally-funded
organizations]
22
ii) Conditional Spending: Congress can use conditions on money to regulate states.
[South Dakota v. Dole (1987): Congress withheld 5% of federal highway funds
from South Dakota because state allowed 19 year olds to buy 3.2% beer. Held,
Congress can withhold in order to make SD enforce 21 drinking age if within Limits
to Conditional Spending: 1) is in pursuit of the general welfare, by which it is up
to Congress to decide; 2) is unambiguous so the state can exercise a choice; 3) is
related to the national interest, (drinking age goes up, drunk driving goes down); 4)
cannot conflict with other constitutional rights (14th Amend Equal Protection); 5)
cannot be coercive upon the state (Anti-Commandeering principle). Dissent: The
condition of 21 drinking age is not necessarily related to safer highways, for instance
juveniles who dont drive are penalized; conditional spending is fine as long as
Congress tells how money should be spent.]
a. Notes
a. Application of South Dakota v. Dole
i. Program advances the "general welfare"
ii. The conditions are unambiguous
iii. The conditions are "reasonably calculated to address [a]
particular impediment to a purpose for which the funds
are expended" - the highway conditions
1. Kind of a necessary and proper clause
iv. Not independently unconstitutional, and not "coercive"
1. Congress may "indirectly" achieve through the
spending power objectives it could not otherwise
"directly achieve
2. Not coercive because funds are a relatively small
percentage of highway funding. Claim of
coercion is "more rhetoric than fact"
a. If you don't meet these requirements,
you lose funding for this and this
4) Notes
i) National Federation of Independent Business v. Sebelius: Affordable Care Act Case
a. Public Policy: Cost shifting problem people unable to afford healthcare
or young and healthy so don't buy insurance They go to Emergency
room and docs under obligation not to turn them away Nation incurs
costs Shifts the burden to those who are insured instead of the nation
(higher rates)
b. Jurisdiction
a. Anti-Injunction Act prohibits congress from collecting taxes
until it's time to collect the taxes. Congress can determine what
falls under the act
i. Court interprets labeling the shared responsibility
payment as a penalty as intentions to exclude if from
the act
c. Issue: The Individual Mandate And The Commerce Clause
a. Commerce Clause Can regulate anything that substantially
affects interstate congress (if its necessary and proper)
i. Power to regulate does not include creating commerce (CJ
Roberts) "Slippery slope" the Brocolli Argument,
mandate everyone to eat brocolli
ii. There's a political limit the people won't stand for
some things!
b. Case is not litigated on the theory that it might violate individual
rights
c. HELD: The individual mandate, by contrast vests congress with
the extraordinary ability to create the necessary predicate to the
23
D. State Defenses to the Federal Government: The Tenth and Eleventh Amendments:
1) The Tenth Amendment: The Tenth Amendment provides, The powers not delegated to the
United States by the Constitution, nor prohibited by it to the States, are reserved to the States
respectively, or to the people. Thus powers not given to the federal government are
maintained by the states.
i)
24
a.
b.
25
a.
b.
b.
c.
Express Preemption: the text of a federal statute expressly precludes or limits state
regulation of particular activities Congress decides if States have power
A.
ii) Conflict Preemption: where it is impossible to comply with both federal and state
authority, either in law or in regulations, thus frustrating the federal purpose; OR
where state law stands as an obstacle to the accomplishment and execution of the full
purposes and objectives of Congress [Gade v. National Solid Waste Management
Association: Illinois and Congress both had legislation that regulated safety and
health for people working with hazardous waste material Held conflict preemption
because although the goal of both laws were the same, the states law stood in the
way of the full implementation of the federal law] [Crosby v. National Foreign
Trade Council (2000): Massachusetts enacted a law that forbid state agencies from
buying goods or service from companies doing business with Burma. Congress
26
enacted a statute that imposed mandatory and conditional sanctions on Burma. Held,
the Massachusetts statute was struck down because it presented an obstacle to the
accomplishment of Congresss full objectives under the federal Act, whereby 1) the
President had control, not Massachusetts; 2) there were limited sanctions; 3) there
was gradualism in the sanctions. Note, Court decided on narrowest ground possible.]
[Florida Lime & Avocado Growers, Inc.: Federal regulation had one standard for
certifying ripe avocados, California had a stricter one (prohibits less than 8% oil
content) Held, compliance with both regulations was not impossible, there is
neither such actual conflict between the two schemes of regulation that both cannot
stand in the same area, nor evidence of a congressional design to preempt the field.]
[Geier v. American Honda Motor Co. (2000): Motorist was injured after collision
in which car did not have an airbag (passive restraint) which made manufacturer
negligent under DC tort law. Held, 1) federal law (National Traffic and Motor
Vehicle Safety Act) does not preempt common law tort actions; 2) the Act does not
limit ordinary preemption principles; 3) NTMVSA preempts the DC safety standard
because the standard conflicts with Department of Transportation standard requiring
that some, but not all, 1987 automobiles have airbags, DOT studied extensively and
had 7 reasons, etc. Dissent, Court should be careful about making incursion onto
state grounds; clear statement should be made.]
B.
iii) Field Preemption: Displacement of state law is inferred from the scheme of federal
regulation "so pervasive as to make reasonable the inference that Congress left no
room for the States to supplement it. [Pacific Gas & Electric co. v. State Energy
Commission (1983): PGE challenged a California regulation that forbid the
construction of nuclear plants until a state agency determined that there was a
demonstrated method for the disposal of the nuclear waste as preempted by the
Atomic Energy Act. Held, Congress had not sought to regulate the economic aspects
of nuclear power through the AEA, just the safety aspects, thus California regulation
was not preempted. Not an obstacle to preventing Congressional intentions]
[Lorillard Tobacco Co. v. Reilly: Federal law governs tobacco sales through
FCLAA. Massachusetts has ordinances prohibiting in part the outdoor advertising of
tobacco near school playgrounds. Argued MA law violates 1 st Amend. Rights Held
FCLAA's pre-emption provision did not permit a distinction between concern about
minors and cigarette advertising and the more general concern about smoking and
health in cigarette advertising Field Preemption same as pacific gas?
Presumption of preumption] [Arizona v. United States: Arizona immigration law
(1) makes failure to comply with federal registration requirements a state
misdemeanor; (2) criminalizes unauthorized alien attempt to find or engage in work
in the state; (3) authorize police to arrest w/out warrant a person when probable
cause that a crime that would make the perpetrator removable from the U.S. has been
committed; (4) authorize police to stop, detain and arrest to verify immigration status
Held: (1) Court affirms Hines v. Davidowitz Congress has preempted all state law
pertaining to registration of aliens. It has occupied the field leaving no room for
state law. Registration misdemeanor is unconstitutional. It doesnt matter that state
law doesnt conflict with federal law. But note Courts concern about possible
conflict. (2) The work misdemeanor is also unconstitutional. Federal law
deliberately declined to criminalize such conduct. Thus, the Arizona law stands as
an obstacle to the accomplishment and execution of the full purposes and objectives
of Congress.]
iv) Notes
a.
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b.
2) The Dormant Commerce Clause: Because of the Commerce Clause, the states are barred
from regulating interstate commerce even in the absence of federal legislation concerning the
area of interstate commerce or preemption. States, however, are given power in health and
safety.
i)
a.
ii) Rationale for Restrictions on States: Stopping states from behaving badly.
a. Historical: State protectionism should be restrained.
b. Economic Theory: Most agree (conservatives and liberals) that federal
markets are better; country should essentially be Federal Free Trade
Zone.
c. Political Theory: Accountability should be sought, Court should prevent
states from imposing burdens on out-of-staters just because out-of-staters do
not vote. Preemption by silence
iii) The Early Approach: Exclusive congressional power -- a strict version of dual
federalism : [See Gibbons v. Ogden] THE EARLY CASES [South Carolina v.
Barnwell Brothers: S.C. law prohibited the use of trucks over a certain width and
weight on the states highways. Held Court sustains the law against a dormant
commerce clause attack. Court reluctant to weigh competing interests. States
should regulate the size and weight of trucks more of a legislative than judicial
function] [Southern Pacific v. Arizona: Arizona law limits the size of trains within
the State. Held The Court invalidates the law on grounds that its local benefits were
at most slight and dubious and the burden on interstate commerce obvious and
extensive. Worker safety due to railcar slack. If states are allowed to do this, will
place incredible burdens between states (think different lengths, etc)]
iv) The Balancing Approach (After 1938): Court uses a balancing approach with
two levels of scrutiny: one for discriminatory state laws and another for neutral
ones:
a. Discrimination presumptively unconstitutional: valid only if the state can
demonstrate that discrimination is necessary to achieve a legitimate
objective and there are no other practicable, less discriminatory means to
achieve that objective.
a. State has the Burdon of Proof
b. A proxy to protectionism
b. Evenhanded regulation presumptively constitutional: A state may regulate
evenhandedly in ways that incidentally burden interstate commerce. A
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On Its Face: the state law explicitly classifies things e.g., companies,
goods, services --- on the basis of whether they are in-state or out-state
and regulates them differently, typically in ways that advantage the instate class. [Philadelphia v. New Jersey (1978): New Jersey law made
outright prohibition on importation of out-of-state waste. Held, New Jersey
law was a facially discriminatory despite health, safety and environmental
reasons. N.J. law discriminates against out-of-state waste for no reason
other than the wastes geographic origin. Protectionist means of an
otherwise legitimate state objective unconstitutional under the commerce
clause in-staters benefit from less demand of waste & land cheaper
rates] [C&A Carbone v. Clarkstown: City ordinance (discriminates
against others in state) is a waste "flow control" law requiring all nonrecyclable waste within the town be deposited at a single, designated waste
transfer facility owned privately Held Though it treats all waste alike The
immediate effect is local, but its economic effects is interstate in reach
deprives outsiders to city market (unlike Philadelphia). Immaterial that instate residents are also discriminated cant do when financing through
open market] [Dean Milk Co v. Madison: City ordinance forces all milk
sold in Madison must be process within five miles of the city Held Erected
an economic barrier protecting a major local industry against competition
from without the state - plain discrimination; Rule Establishes that local
government actions (cities, counties, etc.) as well as state actions (like
Philadelphia) are subject to dormant commerce clause Local Procession
almost always unconstitutional] [Chemical Waste Mgmt. v. Hunt (1992):
Alabama law had fee on the disposal of hazardous waste generated outside
of state, no fee on disposal of waste generated in Alabama. Held,
Differential fee was facially discriminatory.] [Oregon Waste Systems v.
Dept. of Environmental Quality (1994): Oregon law charged $2.25 per
ton on out-of-state waste disposal, $0.85 per ton on in-state waste disposal
to make up for difference paid by in-state taxes. Held, Difference in fees
was not equivalent, law thus invalid.]
a.
b.
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a.
30
b.
c.
31
on public works projects are "fundamental") Seen less of now since test is
more strenuous than the Dormant clause
i.
ii.
iii.
iv.
32
Executive relies exclusively on his powers may have concurrent authority with Congress
or distribution is uncertain; 3) Power is at its Lowest Ebb when Congress expressed or
implied says dont do but president acts Congressionally anyway May be sustained
"only by disabling the Congress from acting upon the subject ]
i)
ii) Limiting Presidential Authorization: The War Powers Resolutions of 1973: The
Act authorizes the president to use armed forces only when there is: 1) a declaration
of war; 2) specific statutory authorization; 3) a national emergency created by attack
upon the United States, its territories or possessions, or its armed forces.
a. Requires President to consult with Congress before deployment in every
possible instance and regularly consult until troops withdrawn
b. President must report within 48 hours
c. Must withdraw within 60 days unless Congress approves, gives an
extension, or is unable to meet.
d. Resolution based on the necessary and proper clause
e. Hamdi v. Rumsfeld: Hamdi, an American citizen. Detained him as an
enemy combatant. Thought he was a member of the Taliban. Claims
detention violates the Non-Detention Act and is otherwise unconstitutional.
Files habious corpus to get release. Non-Detention Act specifically
denies President power to detain someone. Needs to be an act of Congress
Unconstitutional? hasn't been given due-process (procedural protection)
to do his rights
i.
HELD: AUMF authorized Presidents actions.
1. Category 3 if statutory intepretation issue went the other
way
2. No constitutional barrier to holding of a citizen as an
enemy combatant
3. Really kicks in when he is continuously detained with no
crime alleged
ii.
Having determined that Hamdi's initial detention was
constitutional, the court then considers whether his continued
detention violates his right of due process 5th Amend
1. Holds that citizen-detainee must receive adequate notice
and a "fair opportunity" to challenge status determination
before a "neutral decision maker"
2. Rejects the gov's view that the role of the courts should be
severely limited in such cases
f. Boumedience v. Bush: Aliens classified as enemy combatants in custody at
Guantanamo Bay request the court to determine whether they have the right
to file a writ for habeas corpus, which is a constitutional privilege not
revoked except if the Suspension Clause is in effect
i.
Holds that the Detainee Treatment Act unconstitutionally
suspended habeas corpus
ii.
Notes that neither the Combatant Status Review Tribunal (CSRT)
procedures nor judicial review of determinations of the CSRT
provide an adequate substitute for habeas corpus relief. Why not?
1. Their review is restricted to questions of law and
procedure, not to questions of fact.
2. Not an adequate substitute for habeas corpus
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iii) Authorized Presidential Action: The court can infer legislative [Dames & Moore
v. Regan (1981): President Reagan issued an executive order that suspended claims
pending against Iran to release US hostages. Held, President was authorized to act
accordingly by Congress, vaguely however. (Category 1 of Youngstown gov as a
whole lacks the authority to do this) ]
iv) Presidential Authority in Foreign Affairs: May Congress Restrict Presidential
Authority in Foreign Affairs? Most cases this is dismissed as political Zone of
Twilight [U.S. v. Curtiss-Wright Export: Congress passes law authorizes
President to prohibits sales of arms to foreign nations in this region President
orders Curtiss-Wright violates (THIS IS BAD LAW!) Held Delegation,
smellagation, doesn't need this b/c he could have done it on some other grounds ]
B. Presidential Privileges and Immunities:
1) Executive Privileges: Privileges deal with the protection of certain information; privileges
cabin off certain areas from judicial or legislative proceedings; privileges arise from
relationships or status. Broadly, privilege concerns anything under Art. II, narrowly
privileges may just pertain to the military, etc. [United States v. Nixon (1974): President
Nixon had secret tapes of conversations pertaining to Watergate, Court ordered the tapes
turned over, Nixon claimed he had absolute executive privilege to withhold the information.
Held, Nixon did not have executive privilege to the information; in deciding whether a
president has privilege, the court will balance the need for confidentiality with the need for
information.] [GAO v. Cheney: GAO wants names or people who met over Energy Task
Force, Cheney claims executive privilege of the names. Suit different than in Nixon because
Congress want information, not court. President needs a damn good reason not to disclose.
There really is no hard and fast rule. Esp. In criminal proceeding! ]
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