Legend

Yellow = Law Green = Element Blue = Cases Purple = Study Aid

Constitutional Law Outline

General Info Jurisdiction of the Federal/State Courts I. Federal Courts (limited Jurisdiction) a. Cases Involving i. Federal question ii. Diversity Cases (parties from two different states) b. Supreme Court i. Original Jurisdiction 1. Cases involving Ambassadors or state officials 2. Cases involving the state as a party ii. Appellate Jurisdiction 1. All other cases (as granted by congress) II. State Courts (General Jurisdiction) a. Can here all cases regarding state criminal, civil law General Framework of the Constitution I. Article I: Congressional Powers a. Section 8: Powers of congress i. Allows congress to create courts by legislation The judicial power of the United States shall be vested in the Supreme Court and such inferior courts as the congress shall from time to time establish. b. Section 9: Limits on congressional powers c. Section 10: Limits on State powers II. Article #2: Executive Powers a. Section 2: Allows for the president to appoint federal judges with the advice and consent of the congress. i. Lifetime appointments unless impeached III. Article #3: Judicial Powers IV. Article #4: Interstate Relations V. Article #5: Amending the Constitution VI. Article #6: Supremacy Clause a. Constitution is the Supreme Law of the Land VII. Amendments Applicable to this class 1

a. 13th: b. 14th: Due Process/Equal Protection c. 15th:

--------------------------------------------------------------------------------------------I. Judicial Review Marbury v. Madison Facts: Marbury was given a Justice appointment by John Adams and Marshall (the secretary of state) failed to deliver the appointment. Jefferson came into office and directed his secretary of state not to deliver the commission. Suit was filed by Marbury asking for a writ of mandamus to enforce the appointment against Madison (not Jefferson because it was not his job). Questions asked by the court o (1) Has the applicant a right to the commission he demands? Yes, because the commission had been affixed with a seal, Madison had a vested legal right to the position. o (2) If he has a right and that right has been violated do the laws of his country afford him a remedy? Yes o (3) If they do afford him a remedy is it a mandamus issued from this court? Rule: When a commission has been signed by the President, the appointment is made; and that commission is complete when the seal of the US has been affixed to it by the secretary of state. Rule: When the government takes away someones vested right, the very essence of civil liberty (implicit in the Constitution) the law will provide a person with an appropriate remedy. Rule: The court can not decide on an issue based on a political question but only a question at law. The distinction is whether the matter is regarding a discretional issue (it is political) or if there is a distinguished right provided (then it is a question at law). o If the law imposes a clear duty on a public official and that official violates the law, then thee court may intervene. Illegality and Public Officials

o If a public officer is acting legally, performing his duties, the officer is protected by his position. o If a public officer acts illegally, he is stripped of the color of his office and is no longer acting as a public officer. He may be sued like any other person Statute Law o The laws of the United States which shall be made in pursuance thereof must be made in compliance with the Constitution. o The court has the power to determine whether a given legislative statue is in compliance with the United States Constitution. (Judicial Review) o The court is granted this power because they take an oath to support the Constitution and by enforcing an unconstitutional law, they would be breaking their oath to the court. --------------------------------------------------------------------------------------------II. Congressional Power/State Law Rules: Congressional Conveyance of Jurisdiction Supreme Court (Original Jurisdiction) o Article III section II of the US Constitution grants that there will be one Supreme Court of the land, which is granted original jurisdiction in all cases related to Ambassadors & State officials Cases where the state is a party. o Legislation limiting or revoking the original jurisdiction of the Supreme Court would be struck down as Unconstitutional because the jurisdiction is granted by the Constitution. Supreme Court (Appellate Jurisdiction) o The constitution grants the power to convey affirmative appellate jurisdiction upon the Supreme Court o If a jurisdictional power has not been conferred it is assumed that it is not within the courts jurisdiction. o If one is trying to file an appeal, it best to first look to see if there is a statute that confers the jurisdiction on the court for that particular cause of action. Lower Federal Courts (Original Jurisdiction) o Congress has the power to confer classes of cases, and set jurisdictional

amounts and otherwise regulate the lower federal courts. o Congress has the power to create lower federal courts at their discretion.

Ex Parte McCardle (Jurisdiction Conferred by Congress to the Courts) Facts: During the time of construction McCardle was a newspaper editor and published anti-reconstruction editorials. McCardle was arrested and his case was tried in the federal court. He filed a writ of habeas corpus under a statute that was passed by Congress in 1867, which provided that if someone was being detained they could bring a habeas corpus action to the federal court (which was denied and then appeal to the supreme court. After his writ was denied by the lower court he appealed to the Supreme Court. Right before the decision was to be rendered, congress repealed the act which said the Supreme Court did not have the appellate jurisdiction over writs of Habeas corpus. Courts Opinion o Congress has the right to repeal legislation conveying jurisdiction appellate jurisdiction. o Therefore, Congress was within its power to repeal the legislation and the court no longer had jurisdiction to grant the writ. Rules: The Supremacy Clause (10th Amendment): The Constitution is the supreme law of the land and although each state is their own sovereign, the Supremacy clause limits their power. (10th Amendment strips some of the sovereignty from the states and therefore, the constitution act upon the states) o Not in regards to State Law unless it is an appeal from a state court involving a Federal Law.

Martin v. Hunters Lessee (Supremacy Clause) Facts: Lord Fairfax owned most of Northern Virginia but was a loyalist and when he fled to England, his land was confiscated. His heir claimed that he owned the land, but Virginia had taken the land and sold them to other parties. After the war a federal treaty returned all land back to its British owners. Virginia refused to comply with the treaty. Supreme Court held that constitution and laws and treatys are the supreme law of the land. Therefore, the treaty trumps the Virginia court decision. But, the Virginia court still did

not honor the decision and would not enforce it because they were the highest court of Virginia (no jurisdiction). Courts Opinion o Because the United States Constitution, Treaties, and Legislation trumps state law, the court has the power to issue the writ. o The court did not issue the writ of mandamus against the court of Virginia because they issued their opinion and therefore, they feel that the court will recognize what they lawfully should do without being forced. (Which they did)

Rules: Supreme Court Jurisdiction in State Cases When federal law is included in a state court decision (which is alleged to be based predominantly on state law, it will not be reviewed by the Supreme Courtwhen o (1) There is clear and express indication that it is alternatively based on a separate adequate and independent ground; or, o (2) The opinion makes a clear statement that federal law is only used as guidance and does not compel the decision the court has reached. (plain statement) Rules: Diminishment/Enhancement of Federal Rights A state court cannot diminish federal rights and at the bare minimum, each individual is entitled to rights provided under the US Constitution. But, States can provide more rights to their citizen that what is provided in the Constitution if it is based solely and independently on state law. But, if there is a congressional statute or a treaty, it will trump state law.

Michigan v. Long (Federal Jurisdiction over State Cases Using Federal Law) Facts: D was convicted when Marijuana was found in his car. Police had searched his car under a Michigan statute that allowed them to look for weapons if probable cause. Michigan Supreme Court found this unconstitutional because it was an illegal search due to a lack of probable cause which was a violation of the US Constitutions 4th Amendment and the Michigan State Constitution. State appealed to the Supreme Court who reversed the State Supreme Courts ruling. Michigan Supreme Court refused to apply the ruling

arguing that the US Supreme Court could not decide over cases which were based on State Law, even if there was Federal Law used in the opinion. Courts Opinion: o Apparent that the State Courts decision was not based independently on the Michigan Constitution, and that it relied heavily on federal law. o Therefore, it became a federal issue because the State Judges are not qualified to interpret federal law. o Had the Michigan Court expressly stated that they were basing their decision based on state law, then the decision would have been valid. --------------------------------------------------------------------------------------------III. Case or Controversy (Article III Sec II) Questions To Determine Whether A Case May be Heard by the Court 1. Is there a dispute? 2. Is the Plaintiff/Petitioner a party to the dispute (standing)? 3. Is the timing right (ripe/moot)? 4. Is the dispute regarding a political question or a question at law? Cases & Controversies Article III Sec II: Federal courts only have jurisdiction to hear cases or controversy. Elements of a Case/Controversy (1) Must be a dispute between two parties (Adversarial) (2) Must be a proper party to the Dispute (Standing) (3) Ripeness (Matter of Timing) To early to bring case to the courts (4) Mootness (Matter of Timing) To late to bring to the court (5) Question at law Must not be a political question Element #1: Adversarial There must be an adversarial dispute that the court can rule on When there are multiple parties, the court is able to base their opinion off of the best arguments provided. (If only one sided, then argument is not complete) The court will not grant advisory opinions (decisions that are not final) Will not based on either the constitution or legislation unless they are presented in a concrete form. Acts as a check on Judicial Review

Element #2: Standing Standing: The party coming before the court must be the proper party to the dispute There are two types of standing (Constitutional, Prudential) Constitutional (Article III) Standing o (1) P must be injured-in-fact Injury to a legal right Injury to finances Physical or intangible injury which can be articulated o (2) Injury-in-fact must be caused by D (the injurer) o (3) Injury must be redressed by the court (a remedy can be assigned) Prudential Standing o As a matter of policy, the court will refuse to recognize standing in particular cases even though in a constitutional sense, the person has been injured-in-fact. o Prudential Limitation #1: The harm to an individual is too general P has suffered something in common with everybody else in society. Court says that there are too many people injured and therefore the person should go through the political process. o Prudential Limitation #2: The party in coming in front of the court is asserting the rights of a 3rd party. Exception: In some cases a 3rd party may bring suit on behalf of another party if it is based on discrimination or a 1st amendment issue. Congressional Conference of Standing o If there is no Constitutional standing Congress CANNOT confer standing through legislation (against he constitution) o If there is no Prudential standing Congress CAN confer standing through legislation This is so even if the original case has been retired, future cases of a similar nature may be granted standing. Craig v. Boran (Prudential Standing Challenge; 3rd Party Issue) Facts: State law prohibited the selling of a product to men at an older age then woman. Suit was brought by underage boy, and a distributor of the product.

Reasoning: The boy turned 21 and no longer had standing (no longer an injury-infact; Article III). The suit by the distributor was allowed because although she was a 3rd party, she still was bringing a claim on a 1st Amendment issue.

Warth v. Seldon (Prudential v. Constitutional Standing) Facts: A zoning restriction was passed which only allowed single family houses. Three groups attempted to gain standing to litigate in this case. Reasoning o Group #1: Argued discrimination against low income families, but none lived within the area. No Standing. Ps did not live in the area, and only contended that they may want to in the future. (Constitutional) o Group #2: Lived in the area and paid taxes and said that the zoning made their taxes too high. No Standing. The complaint was too general to be granted standing (Prudential) o Group #3: White people brought alleged that they were denied the right to live in a diverse environment because the zoning ordinance kept minorities out. No Standing. White people cannot bring suit on behalf of a 3rd party, who were the minorities. (Prudential) Lujan v. Defenders of Wildlife (Constitutional Challenge to Standing) Facts: Congress passed an endangered species act and P asserted that it applied to countries outside the US and brought suit. Reasoning: No Standing. The fact that the Ps may want to watch birds in the future does not entail a specific injury (injury-in-fact).

Element #3: Ripeness Rule of Ripeness: The power of the courts to pass upon the constitutionality of acts of Congress arises only when the interest of litigants require the use of this judicial authority for their protection against actual interference. o If a case is brought too early, then the court will not render a decision (they dont want premature cases) o Most of the time, the cases have had the problem of ripeness due to a prudential reasoning being, that as a matter of policy, the time is not right to here the matter. However, recently the courts have relied on Article III to state that there is no case or controversy because the case is not ripe. o A hypothetical threat is not enough.

Rule of Illegal Conduct: Past exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief. o If unaccompanied by any continuing, present adverse effect. o Past wrong were evidence bear on in whether there is a real and immediate threat of repeated injury

United Public Workers v. Mitchell (Ripeness) Facts: An act did not permit workers to participate in political campaigning. Ps brought action alleging that it was discouraging them from participating and asked for an injunction. Reasoning: Not Ripe. The court could not speculate on what activities the Ps may want to take part in. Since they had not tried to participate in any political campaigning the suit was brought to early. City of Los Angeles v. Lyons (Ripeness) Facts: P was pulled over and was assaulted by the police when he was placed in a choke hold. P brought alleging the choke hold was unconstitutional suit asking for an injunction to stop the police from using this type of force without reasonable necessity. Reasoning: Not Ripe. There was no immediate threat that it would happen again and therefore, the case was not ripe. But, if the P were asking for damages, they could be assigned.

Element #4: Mootness Rule of Mootness: The controversy must touch the legal relations of the parties having adverse legal interest which are definite or concrete. Exception #1: A case which may be moot in respect to one plaintiff may be brought in the form of a class action. o However, the plaintiffs in the case may have to be switched at different points where, the legal issue is no longer applicable to a particular plaintiff. Exception #2: An exception to the requirement that there be a live controversy at the time of decision exists for those controversies capable of repetition yet evading review. (The case will keep coming in front of the court, but never will be resolved because it is ALWAYS moot by the time it is heard)

o Applies in those cases where the litigated issue will always be mooted by the passage of time in litigation and the plaintiff will be subject to the challenged action in the future. o Is not as applicable to cases where the issue may come before the court again but NOT by the same plaintiff. Defunis v. Odegaar (Mootness) Facts: P challenged the affirmative action policy of a Law School and was entered the class while the case was pending in the court system. Case went on for years and by the time it came in front of the court, he was near graduating and the school was had no intention of making him leave regardless of the courts decision. Reasoning: Moot. The injury was not existent anymore since the law school was letting him graduate. Also, even though other people may come before the court with the same complaint, it was very unlikely that the P in this case would ever bring the same case before the court (wont need another law degree). Therefore, it does not fall within the exception (may come up again but not the same plaintiff)

Element #5: Question at Law (Not Political Question) Rule Regarding Political Questions: A court will not hear a case that is based on a political question because political questions USUALLY do not entail a case or controversy. o But, just because a lawsuit involves a political process does not mean it is a political question. o Some questions clearly raise separation of powers concerns that are of Article III dimension and are more presumably able to be heard by the court. (This does not occur that often) Question at Law v. Political Question: A question at law which involves a political topic will be heard if there is a judicially manageable standard that the court can re-apportionment and it has not been committed to another branch. Example of a Political Question: Is a particular government a republican form of government?

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Baker v. Carr (Question at Law) Facts: Each county had one representative in the state legislature but the Ps (a group of citizens) felt that there should be equal representation in proportion to the population of each county. Ds argued that this was a political question. Reasoning: Not Political Question (Question at Law). Just because the question had to do with politics, it was still judicable. The question entailed interpreting the Constitution because it had to with an equal protection issue (not a violation of Article IV). Nixon v. United States (Political Questions) Facts: Federal judge was impeached because he gave false statements to a jury. The congress appointed a group of senators (therefore, did not come before the entire senate). He argued that this violated the Constitution and wanted the court to decide the case. Reasoning: Political Question. The senate has the power to determine how they will review evidence for an impeachment case. This power was NOT given to the court, and was granted solely to the senate. The framers designed the system this way because o (1) Judge could be tried on criminal charges and would appear again in front of the court. This could invite a bias decision. o (2) Places a check on the judicial branch Dissenting Opinion: Dissent felt that this was a question at law because it called for the interpretation of the constitution as to what the word try means. Goldwater v. Carver (Political Question) Facts: In order for a treaty to be formed it is made by the president and confirmed by the senate. However, the president (without the consent of congress) ended a treaty. Congressman brought suit alleging that the president was outside his power when he unilaterally ended the treaty. Reasoning: Political Question. The court allowed for the president to end the treaty without the consent of congress. This was decided because there have always been issues between congress and the executive branch and the issues should be settled at the political level (the constitution never addresses how treaties should be ended). o Also, foreign affairs are an issue where the courts generally dont get involved. ---------------------------------------------------------------------------------------------

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IV. Congresss Power (Article I Sec 8) Congressional Power to Enforce/Create Laws 10th Amendment Supremacy Clause: The Federal Government makes the SUPREME LAW of the Land. o A state may not place regulations on powers granted to the federal government without consent from the federal government (includes all federal instrumentalities) o Even if the state has a concurrent power, they cannot interfere with the federal execution of that power. (Fed is represented by all, the state only represents the people of that particular state) o All powers not expressly granted to the government or incidentally granted to the government through the necessary & Proper Clause are reserved by the states. Congressional Power: Congress has the power to execute all powers expressly enumerated in the constitution under Article I Sec 8. As well as laws/powers that are implied by the constitution if they are the means of for the purpose of enforcing an enumerated power. o (Laws that are incidental to carrying out one of the enumerated powers) Necessary and Proper Clause: The sound construction of the constitution must allow to the national legislature that discretion with respect to the means by which the powers it confers are to be carried into execution, which will enable that body to perform the high duties assigned to it in the manner most beneficial to the people. They may do this by enforcing incidental powers which are necessary to enforce enumerated powers. o Necessary = Convenient or useful to another o Congress can determine this based on what they find convenient and they are their own judge. It should be asked what is the best way to carry out this power? Formula: Congress may create powers that are not enumerated by the constitution which are necessary to enforce or carry out enumerated powers if. (Political Question) o (1) The means are constitutional (not specifically restricted or prohibited by the constitution) o (2) The end is an enumerated power (legitimate end)

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McCulloch v. Maryland (Necessary & Proper Clause) Facts: Congress chartered a national bank (supported by Alexander Hamilton and apposed by Jefferson). Became a major controversy both legal and political as to whether the federal government should be able to charter a national bank in a State. Maryland and several other states fought the bank and came up with the idea to make the bank less competitive by imposing a state tax on the federally chartered bank. McCulloch refused to pay the state tax because it was federally funded and as a result he was arrested and jailed. Reasoning: Court found that the States COULD NOT impose a tax on a federally chartered Bank and that the Federal Government did have the power to create a federally chartered bank in order to enforce the enumerated power of regulating commerce. Question #1: Does the Federal Government have power to charter a bank? o States Argument: Not enumerated and therefore reserved for the state. Necessary should be viewed restrictively and the chartered bank was not an absolute necessity to regulating commerce. o Courts Holding: Regulating commerce is an enumerated power granted to the Federal Government by the Constitution. Creating a federally chartered bank was a means necessary to the convenient and efficient regulation of interstate commerce even though it may not be ABSOLUTELY necessary. Question #2: Does a state have the power to tax a federal instrumentality (the bank)? o States Argument: The federal government does not have the power to lay direct taxes on anything within the state. Therefore, because the state is located within the state, they have the power to lay taxes on the bank. The right to tax the bank is a concurrent power. o Courts Opinion: The 10th Amendment enumerates that Federal Law is Supreme. The federal government may place regulations (i.e. taxes) concurrently on a state because that state has representation within congress. However, a state cannot regulate the federal government without the federal governments consent because they are not a representative of the entire nation and only of that one state. (only their own states interest in mind)

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Because the national bank is federally chartered, the state cannot place taxes on it, even though it is within their borders. (it effects multiple states) -------------------------------------------------------------------------------------------- V. National Commerce Power (Article I Sec 8(3)) National Commerce Power Article I Sec 8(3): Congress shall have the power to regulate commerce with foreign nations, and among the several states, and with the Indian Tribes. o The power to regulate commerce, like all others vested in congress is complete in itself, may be exercised to its utmost extent and acknowledges no limitations, other than are prescribed in the Constitution. o Commerce includes the intercourse between the different states which encompasses navigation between the states. Plenary Power: Congress has the power to regulate commerce so long as the intercourse affects more states than just one. o If the commerce issue is purely local and effects are never felt outside the states borders; the states can regulate the issue. o But, the federal government can regulate commerce that occurs solely within one state if it has an effect on other states. (Matter of a broader Concern/Issue) o Federal regulations of interstate commerce are NOT a concurrent power, and the state may not regulate any sort of interstate commerce even though it has an effect inside that particular state. But, the state has the police power to regulate thing that are within their jurisdiction. If the police power conflicts with the commerce power then because of the 10th Amendment Supremacy Clause, the federal power governs. o If the federal government has not created legislation regarding a certain issue, the state government is free to govern that issue, until legislation has been created. Determining When there is a Matter of National Concern or Local Concern o Matters related to national concern occur when there is a need for uniformity in the law. Matters related to local concern occur when there is a need for diversity in the law. 14

Historical Background of Commerce Regulations o Throughout the 19th Century, the question of federal regulatory power over commercial transactions rarely came up. Most issues were resolved locally or at the state level. o In the late 1800s-1936 changes due to the progressive movement pushed for more federal regulation of commercial activities. Congress set up the Interstate Commerce Commission in 1887. In 1890 Congress enacted the Sherman Anti-Trust Act to protect consumers and small business from mega business (monopolies). Original Application of the Commerce Clause Only applied to issues involving commerce and not towards issues involving production, manufacturing, or processing. Modern Application of Commerce Clause (1937) If a production or manufacturing of a product has an effect on the national economy, the congress may regulate the activity. o This is a case by case determination Three Major Ways Congress Can Find A Commerce Law Violation o (1) Using the channels of interstate commerce o (2) Any instrumentality of interstate commerce o (3) Anything that has a substantial relationship to interstate commerce Civil Rights & The Commerce Clause o History 1880 The court ruled that congress has no power to regulate discrimination in private business under the 14th Amendment. This made discrimination a state issue and the federal government could not step into regulate. 1964 The federal government began to use the Interstate Commerce Clause to regulate the issue of discrimination. They did this by arguing that certain practices of discrimination had an impact on interstate commerce and therefore, was in their realm to regulate.

Gibbons v. Ogden (Federal Regulation of Navigation) Facts: New York State granted Ogden exclusive rights to use the New York waters. Gibbons was also running a boat through the waters and had been licensed under the laws of the US for carrying on the coasting trade. Ogden

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attempted to get an injunction denying Gibbons the right to use the waterway and Gibbons contended that New York had no right to grant the monopoly. Reasoning: Held for the Fed Gov o States Argument: The word commerce is limited to the buying and selling and interchange of commodities. o Courts Opinion: Commerce includes a commercial intercourse between the states. The federal government regulates all commercial transactions amongst the states (refers to outside the state where as within would refer to inside the state) Commerce is only furthered by navigation and includes it and therefore, the right is granted to the Federal Government as if it were expressly written. Also, feds must govern because it applies to all the states and not just one (need for uniformity) Every district has the right to be involved in commerce

Wilson v. Black-Bird Creek Marsh Co.(Unlegislated Federal Powers, 1829) Facts: State of Delaware authorized a company owning marshy lands to build a damn to keep venom from destroying occupiers health. Owner of a Sloop registered under Federal Navigation laws broke the damn to get their vessel through and the owner of the Marsh brought suit. Reasoning: The court found in favor of the Marsh owner stating that the Federal government had not legislated over that particular Marsh and therefore, it remained within the state power. o But, if there had been federal commerce legislation enacted then the state power to regulate would be void. Cooley v. Board of Wardens (Diversity in the Law, 1851) Facts: Congress passed a law allowing states to pass laws regulating pilots on boats. A Pennsylvania law was enacted that required a state licensed pilot to be stationed on a ship when entering their harbors. D was sued because he did not comply with this restriction and brought suit alleging that it was unconstitutional because states cannot regulate commerce. Reasoning: Court held in favor of Pennsylvania. Matters of local concern that do not have effects on other states may be regulated by both the federal government and the states.

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o This was an example of a local issue where diversity in the law may have been necessary (Pennsylvania may have different needs then in New York) o There was NO need for a uniform rule United States v. E.C Night Company (Pre-1937 Non-Commerce Ex., 1908) Facts: E.C controlled the processing of about 98% of the sugar in the US, and therefore, they were able to control the price. The justice department argued that they were controlling the sugar industry thus forming a monopoly which was a violation of the Sherman Anti-Trust Act by restraining trade. Reasoning: Court held that this was not a violation because the complaint had to do with the production of sugar and not the distribution of the product (precedes commerce). o Indirect to US commerce US v. Darby (Post-1937 Effects on Commerce, 1941) Facts: Fair Labor Standards Act of 1938 prohibited the shipment in interstate commerce of lumber which was manufactured by employees who were not paid the minimum wage. State contended that the power to regulate wages and permitted work hours was left to the state and were not directly related to interstate power. Reasoning: Court did away with the indirect and direct distinction and held that the activities were so interrelated to interstate commerce and had an effect on the national government, and therefore, could be regulated by the feds. Wickard v. Filburn (Post-1937 Effects on Commerce, 1938) Facts: Congress (as a result of the great depression) created legislation regulating the amount Farmers could plant so that they could raise the prices by limiting supplies. A small farmer in Ohio grew crops solely so that he and his wife could live off of them (never went to the market) and needed to plant more then what was allowed. Reasoning: Supreme Court ruled that the federal government could regulate the farmer even though is actions were not directly related to interstate commerce because they would have an effect on interstate commerce. o If all farmers were allowed to do this, then it would have a GREAT EFFECT on interstate commerce and the economy as a whole.

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Gonzales v. Raich (Federal Supremacy) Facts: California allowed the use of medical marijuana with a prescription for medical purposes. However, under federal law, the positional of marijuana was ABOLSUTLEY ILLEGAL. D grew her own pot in her home, for her own use, and was arrested by the federal government. Reasoning: Court held that even though the state of California allowed for the legal use of marijuana, the federal law trumps because of the Supremacy Clause. Furthermore, the law was valid because even the private usage of marijuana has an affect on the underground drug market for interstate distribution of marijuana which has an effect on the national government. Heart of Atlanta Motel v. United States (Commerce Clause & Civil Rights) Facts: A motel was situated in downtown Atlanta which was close to many interstate entities (buses, highway, etc.) The hotel was also advertised nationally through billboards. The restaurant of the hotel only would seat whites and made blacks get food in the back (no seating). Suit was brought alleging that the discrimination affected interstate commerce and therefore, was in violation of the constitution and was subject to congressional regulation. Reasoning: Court held that racially discriminatory measures restrict customers and therefore, affect interstate commerce. If blacks were allowed in the restaurant business would be even greater, and more meat would be required. Although this is one case, it is applicable at a larger level. Lopez & Morrison Cases (Limitations on Commerce Clause Application) Facts: In Lopez, Congress enacted a statute which made it a federal crime to have a gun within 1000 feet of a school. In Morrison, Congress enacted a statute which made it a federal crime to commit an act of violence against women. In both cases, the court based their enactments on the negative affects guns on school grounds and violence has women have on interstate commerce. Congress reasoned that violence on woman restricts them from going into certain neighborhoods to conduct business, or traveling. Lopez was based on the idea that violence in schools impacts education which eventually affects the economy. Reasoning: In both cases, the court held that Congress had exceeded their limitations of their power and that the statutes were invalidated because they had nothing to do with an economic issue and they were not commercially based. ---------------------------------------------------------------------------------------------

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VI. Other National Powers Power of Taxation Article I Sec 8(1): The Congress shall have the power to lay and collect taxes. Indirect v. Direct Taxes o Indirect Taxes: Must be uniform throughout the US o Direct Taxes: Must be made in proportion to the census. Includes (1) Poll Taxes (taxes on individuals) (2) Property Tax (made locally) Taxation for Regulatory Purposes o A tax that has regulatory purposes is valid if upon the doing an act or gaining a possession there is an automatic tax. (Looks like a tax then it is a tax) Congress can use the taxation power to destroy o If the tax is only payable depending upon the scienter (persons state of mind) or intent of the person, then it is not a tax, but it is a regulation and therefore, not valid. (Looks like a penalty then not a tax). Hilton v. United States (Indirect Taxation) Facts: All citizens who had a carriage were taxed. It was argued that because it was aimed towards property, it was a direct tax. Reasoning: Court found that it was not a direct tax because the use was being taxed and not the actual carriage. Therefore, it must be applied equally to everyone. Bailey v. Rexal (Invalid Regulatory Tax) Facts: Congress was unable to regulate child labor through interstate commerce laws. They then attempted to impose a tax on goods that were produced by child laborers. Suit was brought alleging that such taxes were purely regulatory having nothing to do with revenue and were therefore, invalid. Reasoning: Court struck down the taxes holding that they were purely regulatory. Congress cannot impose taxes that are only assignable depending on a persons knowledge or intent (knowledge that person is under 18).

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Sonzinsky v. United States (Valid Regulatory Tax) Facts: Every dealer of firearms had to register with the Collector of Internal Revenue and pay a special tax of $200. P alleged that the tax was not for revenue but rather to suppress the traffic of firearms which was not within their powers. Reasoning: Court held the tax to be within the power of congress to assign. This was because the tax was payable towards all people who wanted to distribute firearms regardless of knowledge or intent. The tax was automatic. It may have had regulatory purpose but that is not an issue.

Spending Power Article I 8(1): Congress shall have the power to pay the debt and provide for the general defense and provide for the general welfare. Congresss Spending Power: Congress may distribute money for any purpose as long as it is for the benefit of the general welfare. o This spending power is not limited to items in which congress can regulate under Article 1 Sec 8. o Congress does not have the power to regulate the general welfare. Conditions Placed on Federal Funds: Congress may place conditions on the money provided for the general welfare, for which if they are not complied with, will result in money not being distributed. o Examples: 1965 Civil Rights Act Congress decided that any public institution could only receive federal funding with the condition that they do not partake in discriminatory practices. United States v. Butler (Spending Power) Facts: Congress passed the 2nd Agricultural Control Act which imposed a special tax on agriculture which was placed in a special fund. The money was then distributed to pay farmers for leaving land vacant to avoid surplus during the great depression (to help the economy). Suit was brought alleging that congress could not spend money on agricultural production. Reasoning: The court held that this act was unconstitutional. However, congress does have the right to place conditions on the money that they give out for the general welfare.

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War Power/Treaty Power War Power: Congress has a great amount of legislative power under the war power. o Congress may regulate all types of activities that, in the absence of war, they would not be able to do so. o These regulations may remain in place as long as the effects of war are still felt in the United States. (At this point there is no standard to determine this) Treaty Power: The president enters into treaties with foreign nations and Congress has the power to confirm them and regulate them. o Treaties are Supreme Law of the Land and DO trump state law and police powers. o Treaties DO NOT supersede the Constitution and must be made in pursuance of the Constitution. Woods v. Cloyde (War Powers) Facts: During WWII Congress enacted the Housing and Rent Act of 1937 which regulated the amount of rent people could charge due to the shortage of housing (rent control measure). Suit was brought alleging that because the war was over, Congress no longer had the power to enforce the act. Reasoning: The Court held that congress could use the war powers for as long as it was necessary and proper. The Act could be enforced for so long as the effects of war were still being felt. Missouri v. Holland (Treaty Power v. States Power) Facts: In the 1920s the United States entered into a treaty with Japan that they would not shoot a type of endangered geese. To enforce this treaty, Congress created an Act protecting the bird. Missouri brought suit alleging that the Act infringed on a State power to regulate. Reasoning: Court held that all laws must be in pursuance to the treaty clause and therefore they trump state police powers. Reid v. Covert (Treaty Power v. Constitutional Rights) Facts: Two women in England killed their husbands on military grounds (husbands were in the military). Both women were civilians. The women were tried and convicted by Court Marshall with no jury. The US had entered into a treaty with England and Japan, that people on military grounds would be tried

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by Court Marshall. However, the women brought suit alleging that this violated their constitutional right to a trial by jury. Reasoning: Court held that the treaty could not be enforced. Treaties do not supersede rights guaranteed to American citizens by the US Constitution.

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VII. Sovereign Immunity History of Sovereign Immunity Article III 2: Originally, suits could be brought against the state in Federal Court under Article III 2: Supreme Court can hear cases (1) Between a State and citizens of Another State (2) Cases in which the state would be a party. 11th Amendment: The Judicial power of the United State shall not be construed to extend to any suit in law or in equity commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State. o A suit could still be brought against another state in Federal Court for redress of violations of Federal Law (not domicile state). o However, citizen of a state could not bring claim to Federal Court alleging violation of Federal Law against their domicile state. Hans Case (19th Century): 11th Amendment does not only repeal the CitizenState/and Alien-State Clauses Article III, but instead was designed to incorporate the principle of sovereign immunity under which a state may not be sued in Federal Court without the states consent. STILL GOOD LAW Chism v. Georgia (Pre-11th Amendment; 1793) Facts: A suit was filed in the Supreme Court against the State of Georgia was by two citizens of North Carolina to collect on a Pre-Revolutionary War debt. When individuals tried to collect on the bonds, they would not honor them. Reasoning: Supreme Court held that under Article III 2 the Supreme Court could hear the case because it was between a State and citizen of Another State and came within the original jurisdiction because it was a case in which a State shall be a Party o This was not a popular decision opinion amongst the states

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Cohen v. Virginia (Post 11th Amend; Federal Violation Suit Against State) Facts: Reasoning: Court held that under the 11th Amendment, a suit could be brought in federal court regarding a violation of federal law. But, this is not extended to a person within one state suing their own state for violation of federal law. Hans v. Louisiana (Modern 11th Amendment Interpretation) Facts: Louisiana citizen alleged that the state had violated the Contracts Clause of Article I 10 by reneging on bonds that the state had issued during Reconstruction. The P had brought the suit through the federal question door (since the 11th amendment boarded up other access to the Federal court). Reasoning: Court did not allow the suit to be heard. They held that the 11th Amendment was intended to secure state immunity (which was brought through the English Common Law). Exceptions to 11th Amendment Sovereign Immunity Suits brought by the United States o The US as the Superior Sovereign must of necessity at times bring suits against a state. o Congress has from time to time allowed private parties to bring a civil suit on behalf of the US. Suits Filed By Another State o A state may bring a suit against another state if the plaintiff state is suing to redress either (1) An injury to itself, or (2) An injury suffered by a large proportion of its citizens who would otherwise have no means of obtaining redress. o This only applies to suits brought by a US State and other countries are still subject to the 11th Amendment. Supreme Court Review of State Court Decisions o When a state consents to being sued in their own state court, the review of that court may be heard by the Supreme Court o This is so, even though they may not have been able to hear the case through original jurisdiction. The Stripping Doctrine Ex Parte Young o The Stripping Doctrine allows a suit to be brought to enjoin a state official from violating the Constitution or laws of the US.

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o This is explained through a legal fiction that when a state official acts contrary to federal laws, the official is stripped of their title, and is then a private citizen in the eyes of the law. o Stripping Doctrine rests on Article VI 2 of the Constitution which prohibits the state from violating the Constitution. Since the state has no right to violate the Constitution they cannot confer this write onto their officials. o Suit must be brought against the official in both by name and must he/she must be sued in both the Official capacity and (Purposes of Const. Violation) Individual capacity (Purpose of proving fiction) o This doctrine ONLY applies to a state official in violation of federal law and does not apply to a state official in violation of state law. Alden v. Main (Suit Brought By US) Facts: Group of probation officers sued their employer (the state of Maine) alleging that the state had violated the overtime provision of the 1938 Fair Labor Standards Act. The suit was dismissed in Federal District Court but they then brought the suit again in State court. Reasoning: Court held that under the idea of sovereign immunity, states are immune from suits in their own courts and case was dismissed. However, the case could have been successful if the suit was brought on behalf of the United States. Ex Parte Young (Stripping Doctrine) Facts: Young was the attorney general of Minnesota and it was alleged that laws were unconstitutional and so Young was sued for an injunction to prevent him from enforcing the Minnesota law on the grounds that they were violating the constitution. Young argued that he could not be sued because nobody can sue the state of Minnesota from enforcing their laws. Reasoning: Court held that the suit could be brought because the laws were violating the Constitution. Therefore, the official was acting outside the color of his office and was not protected by sovereign immunity. This was not considered a suit against the state because he was not acting in representation of the state.

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Retroactive v. Prospective Relief (Stripping Doctrine) Prospective Relief Rule: A plaintiff who brings suit against a state official under the Stripping Doctrine is only entitled to prospective relief and not retroactive relief. The prospective relief may include: o (1) An injunction to modify future behavior of the D o (2) Prospective monetary relief for attorneys fees or costs for suits, or where a state official is fined for contempt in violation of a federal injunction. Stripping Doctrine does not allow retroactive relief for monetary damages, compensation, or an injunction directed at undoing a completed transaction. o Retroactive relief would require payments to be maid from the state treasury which is barred by the 11th Amendment. Edelman v. Jordan (Prospective v. Retrospective Relief) Facts: Alleged that the Illinois department of public aid was receiving federal money for welfare but was not following federal restrictions for processing in a timely manner as required. Suit was brought against the director of public aid for an injunction to compel him to comply with the federal statute. Because he had not acted in a timely manor there were back payments that the state owed the recipient. The court issued a prospective injunction compelling the director to comply with federal law in the future but also an injunction requiring the director to pay back payments to the P and members of the Ps class (payments that the state owed because they had not processed applications in a timely manor) This was appealed to the US Supreme Court. Reasoning: Court affirmed the prospective injunction but disaffirmed the retroactive injunction requiring payments out of state funds. The court held that by requiring the retroactive damages, it would turn the suit into one not against he director but rather against the state because it was taking the money out of the state treasury. Official Immunity (Common Law) The 11th Amendment does not bar the recovery of retroactive damages from state officials personally, and therefore, they are shielded by Common Law Immunity. o Purpose: To assure that government officials will not be unduly inhibited in discharging their duties out of fear that they could be subject to personal monetary liability.

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Absolute Immunity Protection under ANY circumstances o Applicable To: Legislative (state only), Prosecutorial, Judicial government positions. o Examples (1) Judge orders that someone be sterilized even though that was against Indiana Law (she was retarded). She sued the judge but the court said that no matter how stupid the judge was she could not sue judges for damages. (2) Prosecutes someone who they know is innocent for publicity and personal gains you cannot sue the prosecutor for damages but only for an injunction. Limited/Qualified Immunity More of an objective good faith immunity but not subjective and only bars immunity in certain circumstances. Applicable To: Executive Officials (Ex. State Police, Directors of Public Aid) o Also applicable to a legislature or judicature who is acting in an executive capacity (not based on job title) Immunity In situations where the law is objectively uncertain and a reasonable person in the executives position would not have realized that the challenged conduct was in violation of federal law. No Immunity If there is a violation of a certain law and a reasonable official would have know that the law was certain. o Ex. If a police officer arrests someone and hits him over the head with a nightstick. All police officers know that it is illegal to assault arrestees.

Congressional Abrogation/Expansion Expanding States Rights Under 11th Amendment: Congress may direct that the stripping doctrine not be employed in selected federal question cases, with the result that these claims against state official would be barred from federal court. o Congress has the power to narrow the lower federal courts subject matter jurisdiction by excluding certain cases, even those that may arise under federal law. Narrowing States Rights Under 11th Amendment: An attempt by Congress to abolish the states sovereign immunity from suit will only be upheld if two requirements are met: o (1) Clear Statement Rule: Congress must have made its initiation to abrogate the immunity unmistakingly clear in the language of the statute.

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 Severs as notice to the states o (2) Enacted Under 14th Amendment: Legislation may not have been enacted under one of Congresss enumerated Article I powers but rather pursuant to the 14th Amendment. Congress CANNOT expand the federal courts subject matter jurisdiction beyond the limits defined by the Constitution by using Article I powers. 14th Amendment allows congress to enforce the amendment by appropriate legislation which includes allowing suits to be brought against a state. Pennhurst () Facts: Alleged that in a school for the mentally disabled was violating the 8th and 14th amendments of the Const. The sued the school under federal law 1973 where institutions could not be discriminatory when receiving federal aid, as well as state law. Lower court found the school liable and the first time and when it went to the Supreme Court it was remanded and it was affirmed under state law. If you can find something illegal under state law they will decide that first before determining the constitutional law. State then appealed to the United States Supreme Court. Reasoning:

Seminole Indian Tribe v. Florida (Expansion) Facts: Seminole Tribe brought suit against the State of Florida for violating the good faith negotiations requirement of the Indian Gaming Regulatory Act. Florida moved to dismiss the Tribes action, alleging that the lawsuit violated Floridas Sovereign immunity. Court of appeals held that the 11th Amendment did shield Florida from federal suit and that under the Ex Parte Young decision the party could not enforce its right to good faith negotiations by naming Floridas governor as party to the suit. Reasoning: Court held that stripping doctrine could not be used and that congress did not have the power to abrogate the states sovereign immunity. Court could not use the commerce clause to allow suit to be brought against the state.

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State Waiver of Consent to Suit State Waiver Rules: A suit may be brought against a state in federal or state court if the state has waived its 11th Amendment immunity by consenting to the suit. The waiver must be o Voluntary o Express o Unequivocal This is usually accomplished by the legislature and cannot be done through using Congresss enumerated power such as the commerce clause. State can waive their right to immunity in state court but maintain their immunity in federal court. --------------------------------------------------------------------------------------------VII. State Regulatory Powers Subtopic #1: Power of Taxation Types of State Taxes (1) Property Tax o Direct tax on the ownership of property o Generally computed by a % of the value of the property (2) License Tax/Occupation Tax o One pays a tax for engaging in certain activities or occupations o Ex. Lawyers pay a tax to get their license to practice law (3) Net Income Tax o Can be taxed either as an individual or a corporation o Usually a % of ones income (4) Sales Tax/Use Tax o Tax on the sale of an item o Tax on the use of an item Limits on the States Ability to Tax (1) Commerce Clause: If a state tax is either discriminating or placing a burden on interstate commerce, it will be limited or enacted. o Discriminating occurs when one a state favors their own products at the expense of the national economy or other states.

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o Four Factors: (1) Does the activity that is being taxed have a sufficient nexus to the state? Substantial activity within the state (2) Does it discriminate against interstate commerce? If discriminatory, it will be struck down unless a state can show that there was no less discriminatory way to achieve a legitimate state interest. (3) Is the tax fairly apportioned? Apportionment States must apportion their taxes so that each state is getting fair share of the revenue. Income Tax Formula = Payroll % + Property % + Sales %/3 Not all apportionments are identical and this is allowed as long as the apportionment is in accordance with a uniform formula made in good faith (4) Is the tax related to some service? The measure of the tax must be reasonably related to the extent of the activities or presence of the taxpayer in the state. NOT based on whether the amount of the tax exceeds the value of the benefits the state has afforded the taxpayer. (2) Due Process Clause o A state can only tax where they have jurisdiction (cannot tax outside of jurisdiction) o A state has jurisdiction over what is within their borders or that has some nexus to the state. (3) Equal Protection Clause (4) Article I 10 Imports/Exports: A state CANNOT tax imports or exports o Placing taxes on imports would discourage trade within a state. o However, this is a limit to this regarding when at item ceases to be an import for taxation purposes. o Old Package Doctrine: An item is an import while it is still in the original package. But, once it has been removed and used, it is mixed property and can be taxed. (NOT GOOD LAW ANYMORE) o Modern Standard: An imported item may be taxed once it has been commingled with other products within a state.

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Limbock Facts: Producers of gasoline where getting tax credit so long as the tax credits were reciprocated. P alleged that this is discriminatory because if they do not give the tax credit, the Indiana companies will not get the credit for what they have done. Reasoning: Court said that the reciprocity argument does not hold here because you are giving an advantage to companies in Ohio. However, Ohios remedy must be to sue and not to take matters into their own hands. They cannot do a retaliatory measure.

Subtopic #2: Regulations in Violation of the Commerce Clause Article I 8 & The History of State Regulations Article I 8 o (1) Grants congress the power to enact federal legislation to regulate interstate commerce. o (2) Grants congress the right to strike down state laws that discriminate or burden interstate commerce. (West Lynn Creamery) Cooley Doctrine (Outdated Law) o Exclusive Zone (where uniformity in federal law is needed) Federal Government possesses the exclusive power to regulate. Any state law that regulates subjects falling in this zone violated the commerce clause even if there was no conflicting federal legislation. o Concurrent Zone (does not demand uniformity in the law) The states possess a concurrent power to regulate and may do so as long as the federal commerce power has not been enacted. If congress decides to regulate the area itself then any conflicting state laws will be struck down under the Supremacy Clause. o Problem with the method: Offered no clear way to determine which activities require a uniform national rule, falling within the exclusive zone. Indirect/Direct Test (Outdated Law) o Laws that place a direct burden on interstate commerce were invalidated. o Laws that only indirectly burdened interstate commerce were upheld. The Modern Test Three ways that laws are in violation of the Interstate Commerce Clause

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o (1) Purpose is to control out of state transactions o (2) Discriminate against interstate commerce o (3) Laws that burden interstate commerce Legitimate State Interest (Rational Relationship Test) o (1) The law must have a legitimate purpose or goal, and Purpose or goal must fall within the states police powers to regulate the safety, morals, and general welfare of the public. State police powers are constrained by the state and federal constitution as well as preemptive federal law. It is enough that a state might be perusing a police power purpose. There are two purposes that a state may not pursue and will cause a law to be struck down even if there were other actual purposes of the law (1) Laws may not be enacted to regulate interstate or foreign commerce. (2) Law may not be enacted for the purpose of shielding a state from the effects of interstate commerce or economic protectionism o Will not allow a state to shield residents from the consequences of free trade among the states. o Per se if it directly produces economic protectionism o Not per se if the indirect affect is economic protectionism, and not struck down in all cases o (2) The means chosen by the state must be reasonably adapted to attain that end. Courts are unlikely to find that a statute lacks a rational basis Question is whether a reasonable legislator might have though that the law should achieve the desired end. Not, whether the law in fact furthers the purpose

Baldwin v. State (Economic Protectionism; Per Se) Facts: In the 1930s states were providing support to local farmers so that they would not go out of business. In New York, the state set up a minimum price for milk, so that farmers could survive. However, the law would be ineffective if lower priced milk could be brought in from out of state. So, New York prohibited the sale of milk in New York from by sellers of another state, unless, the price paid for the milk was equal to the price in New York.

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Reasoning: Court found that the statute violated the commerce clause even though there was a legitimate state interest of keeping an adequate supply of milk during a shortage (health measure). Because the statute created a barrier of trade at the states borders, and the means to achieve the state purpose was through economic protectionism, the law was held to be unconstitutional. This was a per se violation because the law had a direct affect.

Mince v. Baldwin (Economic Protectionism; Not Per Se) Facts: New York regulation required that cattle be tested and free of disease prior to entering the state from another state. Federal government argued that the state was erecting a trade barrier at border by requiring only out of state cattle to be tested. Reasoning: Court upheld the statute even though it was in fact erecting a barrier at the states borders. The legitimate state goal was to protect the health of the citizens from diseased cows as well as the local cattle herds. They held this to be a sufficient restriction even though it indirectly had an effect that could be related to economic protectionism.

Further Limitations on State Regulations (1) Discrimination against Interstate Commerce (2) Burdens on Interstate Commerce (3) The Market Participant Doctrine Discrimination against Interstate Commerce (Try This 1st) State laws that are rationally related to a legitimate state purpose but involve discrimination against interstate commerce will be invalidated under the dormant Commerce Clause if the state has less discriminatory ways to accomplish its purpose. Discrimination Discrimination occurs when one state favors local over out-ofstate interests. If a state places the same restrictions on in state activity as it does on out of state activity, it is not discriminatory. o But, a law may be found to discriminate against interstate commerce even if some of its burdens fall on local interests. A state law will only be invalid per se if the purpose of the discrimination measure was for economic protectionism.

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Three Ways that a state law is discriminatory o (1) On its face Discriminatory by the way it was written Example: Law that required only apples from another state to be labeled in a certain way. o (2) Impact on Interstate Commerce A law that is facially neutral but whose practical effect is to place greater burdens on out-of-state economic interests than it places on their local competitors. o (3) As Applied Less Discriminatory Alternatives o If a state law is found to be discriminatory against interstate commerce it will be invalidated under the dormant clause unless there are no less discriminatory way to achieve the states goal. o The party challenging the law to suggest that there are less discriminatory ways and once this is done, the state must show that the alternative would be less effective in achieving the states end.

Sporhase v. Nebraska (Non-Discriminatory Restriction) Facts: Nebraska law barred the shipment of ground water out of state if the water was needed locally. Reasoning: Court upheld the law even though it was because it placed equal regulations on in state shipments and transferring water, therefore, not being discriminatory against other states. Dean Milk Co. v. City of Madison (Burden on local Interests; Struck Down) Facts: Madison enacted legislation stating that Milk manufacturers could only pasteurize them in Madison or the Milk plant has to be inspected by Madison but they would only go 25 miles outside the city. Dean Milk was located in Illinois and they wanted to sell Milk in Madison and they were denied a license. Madison argued that they need to make sure that the milk is properly pasteurized because they needed to protect the babies. Reasoning: Court held that the health concerns would make a viable argument but they were not using the least discriminatory means. The means that they were using, although they placed an equal burden on the state of Madison (they had to have the cows tested as well) placed more of a burden on out of state venders, and also could be seen as enforcing the interest of keeping milk sales local to help local economy.

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Burdens on Interstate Commerce (Try this 2nd) Balancing Test: A state law that is rationally related to a legitimate goal and that does not discriminate against interstate commerce may still be invalidated if the burdens placed on interstate commerce heavily outweigh whatever benefits to the state. Test is useful if the burden is considerable and the benefit is low or nonexistent but not useful when they are more equal. A plurality of courts has adopted the approach of making states find an alternative measure that places less burden on interstate commerce. o However, this represents a very strict standard of judicial review because it can be seen as undermining legislature (acting as a super legislature) Southern Pacific Co. v. Arizona (Burden Outweighs Benefit) Facts: An Arizona law limited the length of trains that could operate in the state. Government argued that the regulation placed a heavy burden on interstate commerce since trains that to be broken up into shorter ones well before entering Arizona. Arizona argued that the purpose was for safety. Reasoning: Court held that the regulations burden outweighed the benefit because it ended up increasing rather then increasing due to the fact that a larger number of trains operated in the state. Kassle c. Consolidated (Least Burdensome Alternative) Facts: The state of Iowa enacted a law that barred trucks longer than 55 feet from using the states highways. The statute was enacted to provide for the safety of Iowa citizens. This was challenged by a trucking company who argued that a 65 foot truck was as safe as a 55 foot truck and it placed a burden on interstate commerce. Reasoning: Court held that the state did have a legitimate interest in providing for the safety of their citizens and that you could not balance safety and burden on interstate commerce. But, because allowing 65 foot trucks was no more dangerous then allowing 55 foot trucks on the highway, and it was less burdensome, the 55 foot limit violated the commerce clause and they had to use the least burdensome regulation.

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The Market Participant Doctrine Market Participant If a state enters the marketplace as a participant, its actions are treated as being like those of a private party, and the state is exempt from the restraints of the commerce clause. This applies when the state is engaged in buying, selling, or dispensing of goods or services. o State Subsidies: States may also be able to claim market participant status when they distribute subsidies. If funded by general tax revenues then probably not a problem. But, if funded by special tax funded by local and out of state business, then there is a problem (more like a rebate or exempt) When a state distributes tax credits or exemptions they are acting in their sovereign capacity and not as a market participant. Market Regulator If the state attempts to exercise control over the actions of private parties beyond the market in which it is a participant, the state will no longer be except from the commerce clause.

South Central Timber (Market Regulator) Facts: Alaska had state owned timber and said they would only allow the timber to be sold to buyers who would process it within the state of Alaska. Alaska argued that they were being a market participant and that the company was all state owned and therefore, they could sell it to whomever they want and they would naturally favor those who support local processors (keeps the money in the state). Reasoning: Court held that Alaska can choose to only sell the timber to Alaska residents as market participants but they could not use their ownership of the lumber to set regulations and conditions on how the lumber could be processed. By doing so they are acting as market regulators and violating the commerce clause. Reeves v. Stake (Market Participant) Facts: State of South Dakota was selling cement from a state owned cement plant and restricted their sales to only citizens of South Dakota. Reasoning: Court held that when the state is acting as a market participant, they are acting as any other private property and they can decide only to sell to local residents. If they go into business using state resources they can go around the anti- discriminating and burden rule to keep the product in the state.

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Camp Loophenum v. Main (Tax Exemption; Struck Down) Facts: The state of Maine set up a program to service Maine residents where a local resident were entitled to charitable exceptions on their property taxes if they serviced people within the state but not if the organization serviced exemptions outside the state. The P was a camp that serviced mostly children from outside the state and brought suit because they were not entitled to the tax exemption. Reasoning: Court struck law down as discriminatory. There is a distinction between a tax exception and a state subsidy. If the state had been granting a state subsidy they would have been exempt through the market participant doctrine. Alexandria Scrap (State Subsidy; Upheld) Facts: State set up program where any instate junkyard that picks up a junk car will get a bounty for picking it up and recycling it. But, out of state junkyards could only collect the bounty if they showed title to the car. Out of state junkyard argued that this discriminated against out of state junkyards. Reasoning: Court said that Maryland was not erecting trade barrier, they were merely trying to protect the environment and there is nothing to prevent the state from operating their own program (subsidy or bounty). In doing so, they can favor their own residents over out of stators. This does not violate the commerce clause. Subtopic #3: Privileges & Immunities Clause Article IV 2: The citizens of each state shall be entitled to all privileges and Immunities of citizens of the several states. o Meaning: States are prohibited from engaging in certain types of discrimination against citizens of another state. o You must be a citizen of a state to be protected by Article IV and Aliens and foreigners are not protected under this clause. Corporations are not citizens for purposes of this clause o The clause is only triggered when dealing with a fundamental right o Even so the discrimination may be upheld if the state can demonstrate that there is a substantial reason for treating out of stators differently. (Must ask three questions when addressing this issue)

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(1) Does the challenged law affect a fundamental right, privilege, or immunity that falls within the purview of the clause? o (1) The right to pass through or travel in a state (travel freely) o (2) The right to reside in a state for business or other purposes o (3) The right to do business within the state (work freely) o (4) The right to take hold or dispose of property within a state o (5) The right to speak freely o (6) The right to contract o (7) The rights enumerated in the Bill of Rights (2) Is the laws discrimination of a type that is prohibited by the Clause? o Partially excluding out of stators from fundamental right is considered discrimination under this clause. (3) Does the state have a substantial reason that justifies its discrimination against citizens of another state? o A law that is discriminatory against a fundamental right is not automatically invalidated. o If defender of the law is granted the opportunity to justify the measure by showing that there is a substantial reason for the difference in treatment. o Test for Substantial Reason: State must show that (1) There is a substantial reason for the difference in treatment; and (2) The discrimination is closely related to the states objectives, and there are no less discriminatory or restrictive ways of achieving the states goal.

Baldwin v. Montana Fish & Game (Non-Fundamental Right) Facts: A Montana statute restricted the sports hunting of elk to Montana citizens only. Reasoning: Court held that because the case regarded sports hunting which was not a fundamental right, that it was not protected by the privileges and Immunity clause and could remain instituted. United Building v. Council of Camden (Fundamental Right; Substantial Reason) Facts: The Camden city council passed an ordinance that required 40% of all employees of contractors and subcontractor working on city projects to be Camden residents.

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Reasoning: Court held that the ordinance was in violation of the privileges and immunities clause because it restricted out of stators right to work within the state. This was so even though, under the commerce clause, the regulation would be upheld because the state was acting as a market participant. The case was remanded back to the state supreme court because it had to be determined if the state had a substantial reason that would justify such discrimination (burden of proof switches to the state at this point).

Crandall v. Nevada (Right to Travel) Facts: The state of Nevada instituted a tax on persons leaving the state. Reasoning: Supreme Court held the tax to be unconstitutional on the grounds that it restricted what the court said was the fundamental right to travel. One of the arguments for the right to travel was that it was protected by the commerce clause but this was not convincing to the court. But rather, it is a basic right that is implicit in our constitutional structure. If you start taxing the right to travel then the 1st Amendment right to petition the government is disturbed because they cannot travel to petition. Barriers infringe upon the right to go to Washington and petition the federal government. Edwards v. California (Right to Travel) Facts: A California law was passed in the 1930s prohibiting individuals from moving to California who were not self supporting or holding a job. This was to prevent too many people without jobs from moving to California due to the Dust Bowl in the Midwest. Reasoning: Court held that the law should be struck down because it was in violation of the commerce clause. People had the right to move to get jobs and better themselves and that had an effect on the national economy. Furthermore, the right to travel was a fundamental right granted by the privileges and Immunities clause.

Subtopic #4: The Doctrine of Preemption Doctrine of Preemption Valid federal law, including statutes, treaties, executive agreements, administrative rules, and common law, supplants or supersedes state law that is inconsistent with the specific terms or overall objectives of federal law.

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Express Preemption: Congress expressly describes the extent to which a federal enactment preempts state law. o Any state law contrary to that express design will be preempted Implied Preemption Intent of congress must be inferred from the circumstances. o (1) Conflict Preemption: When a state law clashes with federal law by imposing inconsistent obligations on affected parties or by interfering with the objectives of a federal scheme. Physical Impossibility Congresss intent is implied based on the fact that it would be physically impossible to conform to both federal and state standards. Ex. State statutes mandate that all cancer patients get scripts for weed. Federal law prohibits prescribing weed to cancer patients. Because you cannot do both, congressional intent to preempt is implied. Obstacles A state law may conflict with federal law by creating an obstacle to the accomplishment and execution of the full purpose and objectives of Congress. Steps to determine (1) Identify the federal objective (2) Determine the extent to which state law interferes, if at all, with the realization of that objective. (3) Considering the strength of the state interest judged by standards of traditional practice, when deciding how serious a conflict must be shown before declaring the state law preempted. o Preemption may be more difficult to prove where a state has viewed the issue as within their domain for a longer time as apposed to a new matter. o (2) Field Preemption: If a state law operates within a field of law that Congress intends the federal government to occupy exclusively, the state law will be preempted by federal law.

Gade v. National Solid Waste Management Association (Conflict Preemption) Facts: Illinois enacted a Hazardous Waste statute for people working and operating hazardous waste. It was for the purpose of protecting the workers and the general public. However, there was a federal regulation OSHA which regulated the same area, but adhered to different requirements. Illinois contended that their regulations were for the purpose of policing.

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Reasoning: Court held that the OSH Act preempts all state law and constitutes a direct clear and substantial way regulation of worker and heath safety. Furthermore, the Illinois law did not work with the overall scheme of a uniform federal standard and stood in the way of full implementation of the federal law.

Nelson v. Pennsylvania Facts: Congress passed the Smith Act which prohibited the violent overthrow of the US government. After that, each state, to show their patriotism, passed similar state laws that were getting the credit. Reasoning: Court held that although there was no direct conflict between the state laws and the federal law, Congress had preempted the field and therefore, the state law was preemptive by federal law. ============================================================================ VIII. Article II: Presidential Powers Subtopic #1: Domestic Powers Lawmaking Powers Article I 1: All legislative Powers herein granted shall be vested in a Congress of the United States. o President may recommend legislation or veto measures that have been approved by congress. o President may act as either (1) Executor of the law of the Land; and (2) Commander-in-chief of the armed forces Power to Execute Law of The Land (If there is no power granted from either source, then there is nothing for the President to execute) o (1) An Act of Congress; or o (2) The Constitution Commander-in-Chief of the Armed Forces: The President is commander of the military (although he does not declare war) o The President may execute orders, not authorized by Congress, during a declared war, when they are within The Theater Of War (See WWII Example) Presidential Power Speculum (From the Youngstown Concurrent) o (1) Highest Presumption of Power When he acts pursuant to an Act of Congress

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By express statute or implied statutory authorization Courts rarely will take on both the President or Congress o (2) No strong presumption against or for power When President in acting on one of his independent power without any congressional authorization. Congress could have acted but has NOT done so Twig light Zone (fuzzy as to whether president can act or not) o (3) Minimal Presumption of Power Where the President acts contrary to what Congress has ordered. Actions will prevail if what the President is doing is within the Constitutional power and is beyond the scope of power congress holds. o President will also have MORE power when he is of the same political party as the majority of Congress (President is the leader of his political party) Emergency Situations: The President cannot execute laws that have not been enacted by the legislature even in the time of a national emergency. o They theory is that through the Constitution, the President has been granted all the power necessary to deal with an Emergency. Theater of War

Youngstown Sheet v. Sawyer (Domestic Powers/Lawmaking Powers) Facts: In the midst of the Korean War steal workers began to go on a wartime strike. Steel was needed for war efforts and for national defense. President Truman issued an order directing the secretary of commerce to take control of the steel mills and grant all workers an immediate raise. However, the TaftHartley Act governed that the President should get an injunction against the Union preventing them from striking. The Act had specifically left out, the President being able to take over private businesses. However, Truman had vetoed this act, and being a Democrat, wanted to avoid problems with the Union. Reasoning: Court held that the action taken by Truman was outside his power. In an opinion written by Justice Black, the court held that the Presidents power is derived from either an act of congress, or from the constitution. o The Constitution does not grant the President the power to act outside such grants in the time of emergency. Therefore, because congress did not enact an act that allowed for such seizures and in fact, had opted out of allowing such seizure when creating the Taft-Hartley Act, the President was acting contrary to congress.

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o Additionally, his role as commander-in-chief of the military, did not grant such power. Seizing Private American mills was outside the theater of war and too remote from the actual war. o Example of Theater-of-War seizure In WWII the US had possession of the Philippians and it was known that the Japanese were going to Conquer. The President ordered the steel mills destroyed to prevent the enemy from utilizing it to their advantage. This was held to be okay because the seizure was made within The Theater of War. Dissent: Dissent argued that there was a long line of Presidential past behavior acting in such matter. The unbroken pattern of presidential behavior is relevant to the Constitutionality of such an order and may act as basis for utilizing such power. Concurrent: Justice Jackson wrote a concurrent (which is often cited to more then Justice Blacks opinion). Jackson argued that there is a speculum of presumption of powers (listed above). He placed Trumans order in a minimal presumption of power due to the fact that it was contrary to the orders of congress due to the fact they had specifically not included authorization of such seizures in the Taft-Hartley Act. Subtopic #2: International Powers

International Power(s) The President maintains powers over foreign affairs as derived from the Constitution and the English Tradition. Treaty Power: The President can negotiate treaties and then must hand them over to the senate for ratification. o Termination: At this point, the President may terminate the treaty without the consent of Congress (based on the idea that appointments have to be affirmed by congress but President can terminate them without consent). o Court has held this to be a non justiciable issue because it is a political question. Executive Agreements: An accord reached by the President that does not need the consent of congress. o Such accords are more likely to be held as constitutional if they are granted by the use of a power that is already granted to the President. o Benefits

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(1) Executive agreements can take effect even in the face of Senate opposition that would doom a treaty. (2) Even where adequate Senate support may exist, executive agreements can take effect immediately without delay o Deficit (1) If the accord requires the implementation of legislation or funds, congress may not be willing to go along. (2) Congress may respond by passing a law that overrides the executive agreement or requires renegotiation. o Goldwater v. Carter (Treaty Power) Facts: President Carter recognized the Peoples Republic of China as the sole government of China; he announced that he was terminating the 1954 Mutual Defense Treaty between the United States and the Republic of China (Taiwan). Members of Congress filed suit in federal court challenging the Presidents action claiming that a President may abrogate a treaty only with the consent of 2/3 of the senate or a majority of both houses of congress. Reasoning: Court dismissed the suit on the grounds that it was not a political question. However some judges said that because the Constitution was silent on the matter he did not need consent. Others thought that based on the appointment termination without consent, the President was granted this power as well. Reagan Case (Executive Orders) Facts: An agreement was made with Iran to release American hostages pursuant to an agreement with the Soviet Union. The agreement allowed for termination of all charges against Iran prisoners in American courts, and arbitration of claims against them would instead be brought in an International Tribunal. One of the companies that had a claim against Iran said that President did not have any authority to make such an order. Reasoning:

Subtopic #3: War Powers War Powers Article I 8: Congress shall have Power to declare War

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o The founders did not want the President (like the King) to be able to lead the country into a state of war without their consent. o President acts as commander-in-chief of the armed forces, but must wait for congress to declare war before entering into battle. Foreign Invasion (Prize Cases): If a war be made by invasion of a foreign nation, the President is not only authorized but bound to resist force by force. o He is bound to accept the challenge without waiting for any special legislative authority. o This has been looked at as a curse on the president though, because they are worried that by not taking action, they are not fulfilling their duty to protect the nation. The War Powers Resolution (1973): In the case of national emergency where the President cannot consult with Congress before initiating military action, he must notify Congress within 48 hours after troops have been introduced into the territory, airspace, or water of a foreign nation, while equipped for combat, unless the deployment is merely a supply, replacement, repair, or training. o The President is obligated to terminate their use within 90 days UNLESS Congress in the interim has declared war, specifically authorized the use of troops, or extended the 90 day period. Military Court Marshals: Civilians arrested during times of war cannot be court marshaled and tried in military tribunals if they were apprehended outside the Theater of War. o This is especially so, civilian courts are available. o Heresy evidence WILL be admitted, if due to war it would be inconvenient to produce witnesses, ect.

The Prize Cases (Presidential Response to Foreign Invasion) Facts: When the South succeeded from the Union and captured military ports, President Lincoln declared a blockade of southern ports without a formal declaration of war from Congress (they had been out of session for some time and he did not call them back). British ships that were going or coming were captured and auctioned. The legality of these captures and the blockade was brought to the courts. It was argued that because Congress had not declared any war, the captures were illegal. Reasoning: The court held that proclamation of the blockade itself is official evidence that a state of war existed, which demanded and authorized the president to take such measures. The court further held that, if a war be made

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by invasion of a foreign nation, the President is not only authorized but bound to resist force by force. Dissent: Basically argued that without a declaration, you CANNOT have a war.

Ex Parte Milligan Facts: An Indiana resident was secretly assisting the south during the Civil War. Milligan was court marshaled and sentenced to death through military tribunal, where he was not entitled to a trial by jury by his own peers. The case came before the Supreme Court at the end of the War. Reasoning: The court held that the arrest had occurred outside the Theater of War where there were no raging battles, civilian authorities maintained control, and the civil courts were open. Therefore, military court was not the place that the case should have been brought. Subtopic #4: Line Item Veto Line Item Veto Article I 7(2) The President can reject or approve a bill as a whole. Line Item Vito (1996) Gave the President the authority to unilaterally cancel certain provisions contained in the bills AFTER they had already been signed into law rather then when it was first presented to the President for his approval or rejection. o The cancellation would take effect immediately President could elect to o Cancel item of new spending o Rescind any dollar amount of discretionary budget authority o Cancel any new limited tax benefit Unconstitutional (1998) The Supreme Court declared the Line Item Vito unconstitutional because it gave the President the practical and legal authority to amend acts of Congress by unilaterally repealing portions thereof. o The court (Clinton v. New York), held that this violated Article I 7 of the Constitution which required that before a law may be enacted, amended or repealed, it must be approved by both the Houses of Congress and either signed by the President or repassed over his veto. o This authorized the President to create a different law then what was presented or approved by congress.

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Clinton v. City of New York (Line Item Veto; Unconstitutional) Facts: Dealt with the question of whether or not the Line Item Veto Act was constitutional and whether the President actually had the authority to amend a law, after it was already enacted by Congress. Reasoning: The Supreme Court declared the Line Item Vito unconstitutional because it gave the President the practical and legal authority to amend acts of Congress by unilaterally repealing portions thereof. o Presidents Argument #1 Presidents authority was granted by the Balance Budget Act and the Tax Relief Act and Field v. Clark which granted the president the power certain spending measures. Courts Holding: NO. The Acts referred too were the equivalent of the President doing what congress wanted him to do. Line Item Vito would be allowing the president to change statutes created by congress. o Presidents Argument #2 The President has discretion as to how to allocate money and this is an explicit recognition of this po9wer by the President. Courts Holding: No. This would be granting the President a Unilateral power which he was not entitled to under the Constitution. In Curtis Wright (where the President unilaterally allowed shipments of arms to Bolivia), the President was dealing with foreign policy which is different then domestic policy Concurrent (Kennedy): The Line Item Vito violated the separation of powers because not only because it was unauthorized by the text of the constitution but because it enhances the Presidents power beyond what the framers would have endorsed. Subtopic #5: Legislative Veto Legislative Veto The courts have insisted that congress adhere strictly to the letters of the Constitution when exercising their legislative powers. o Bicameralism Mandates that a legislative act of Congress must be approved by both the house and the senate.

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o Presentment requires that before any measure approved by the House and Senate can become a law, it must be presented for approval to the President. If the President vetoes the measure it may become law only if it is repassed by a 2/3 majority vote in both houses of Congress. Legislative Veto Provision which allows either or both Houses of Congress to disapprove action taken by the executive branch. o Will normally violate one or both of the requirements set out by the Constitution. There are certain items that DO NOT have to follow this process BUT, it has been spelled out in the Constitution. o Appointment Clause o Treaty Clause

Immigration and Naturalization Service v. Chadha Facts: The House of Representatives had passed a resolution locking the attorney generals decision to suspend the deportation of an alien. The attorney general had acted pursuant to a statute authorizing such suspensions in cases where deportation would result in extreme hardship. Reasoning: The court held that the one-house veto amounted to a legislative action because it affected the rights and duties of both the alien and the attorney general (Chadha was deprived of the right to remain in the US, and the Attorney General was placed under a duty to deport him). The house action was Unconstitutional because it violated o Bicameralism Court held that the veto decisions must be done through bicameralism. By keeping the power to veto to itself, they have included both houses. Although it would be easier, it was not the way the power was designed and violated checks and balances. o Presentment The Bill has to be presented to the President to either be signed or vetoed. This acts as a check on congress. Here, the legislative veto bypassed this process. One house of Congress can stop what is going on here it its tracks and bypass the whole process which is spelled out in the Constitution. Concurrent (Powell): The action taken by the House bight more properly have been characterized as being judicial rather than legislative in nature. Instead of adopting a general rule, the House made its own determination that Chadha did not comply with certain statutory criteria.

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o The houses actions were unconstitutional NOT because of the bicameralism and presentment issues but because of the violation of separation of powers. o This power of congress would be completely unchecked and not subject to the procedural safeguards (such as right to counsel and a hearing before an impartial tribunal) which are not present in this type of congressional action. Dissent (White): Under Article I, no bill, or order or resolution may become law unless it has met bicameralism and presentment but it is not clear form the text that PURSUANT to a properly enacted law, congressional actions must satisfy these requirements. Subtopic #6: Appointments/Termination

Appointment of Federal Officers Article II 2(2) Three types of appointments o (1) A principal officer of the United States (i.e. Cabinet members, attorney general, Includes: Cabinet members, attorney general, secretary of state, ect. Supervision: Supervised directly by the President Authority: Policymaking authority, great deal of power Appointment Method: Must be appointed by the President with the advice and consent of the senate. o (2) An inferior officer of the United States Includes: Usually those who work directly for someone appointment by the President. Supervision: Supervised by someone appointment by the President Appointment Method: Same appointment as principal (nominated by president and confirmed by senate) or, Vest the appointment in the President alone, or in the courts of law, or in the Heads of Departments. o (3) A mere employee Includes: mail carriers, prison guards, and computer programmers Supervision: Far down the executive hierarchy Authority: Implementation rather then policymaking Appointment Method: No restrictions or directions

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Factors In Determining Which Category Position Falls Into o (1) The nature an extent of the officials duties and whether or not they include policymaking functions; o (2) The amount of independence and source of supervisions (whether the official answers directly to the President, to a principal officer, or to someone lower in the government hierarchy; and o (3) The potations tenure in terms of whether it is continuing, temporary, intermittent, and the circumstances under which the official may be removed. Interbranch Appointments: Appointments can me made regarding the minor positions within a given branch, without having to go through the confirmation processes. o Appointments can be made by one branch for another branch, if the position is within realm of their constitutional function (CHECK THIS POINT OUT)

Morrison v. Olson Facts: Congress passed the independent council act which allows the attorney general to investigate the governments unethical practices. If there was somebody major in the administration that was accused of doing something in violation of the law the attorney general would go to a special panel of the court which would then appoint an independent council to investigate and prosecute such crimes. This was because attorney general is in the Presidents cabinet and therefore, is answerable to the president. The independent council would be removed once the investigation was complete the independent prosecutor was terminated. Reasoning: The court held that judicial appointment of inferior executive officers might be invalid I they would impair the constitutional functions of either branch, or if there is an inherent incongruity because the officer is to be appointed in a field where judges do not have special knowledge or expertise (executive position). But, in this case, the role of a prosecutor is not so far outside the role of a judge as to make this a huge problem.

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Subtopic #7: Executive Privilege Executive Privilege Executive Privilege: The President possesses an EXECUTIVE PRIVILEGE against compelled disclosure of presidential and other high-level executive branch communications. o This constitutionally based privilege for presidential conversations and correspondence reflects the reality that without some assurance of confidentiality, those who advise the President may feel a need to temper condor with a concern for appearances and for their own interests to the determent of the decision-making policy. Qualified v. Absolute: The executive privilege for Presidential communication IS QUALIFIED and not absolute. o It is a PRESUMTIVE privilege that may be REBUTTED under certain circumstances. o If the President invokes the privilege, then the court can apply a balancing test to determine if the privilege prevails. Balancing Test: Court will consider Executive Interests v. Interest of Disclosure o Executive Interest: The basis on which the President claims the privilege and the degree of disclosure sought Need to protect military or diplomatic secret CERTAIN TO PROVAIL. General interest in confidentiality PRIVILAGE MAY HAVE TO YEILD o Disclosure Interests: Purpose for which the information is sought Pending Criminal trial DISCLOSURE MORE LIKELY Pending Civil Dispute DISCLOSRE NOT LIKELY Government Administration DISCLOSURE MORE LIKELY US v. Nixon (Criminal Proceedings) Facts: Nixon was served with a Subpoena for the President to turn over documents related to the criminal prosecution he was involved in. Nixon contended that the documents and conversations were protected under executive privilege and that he did not have to turn them over. Reasoning: The court employed the balancing test and rejected President Nixons claim of executive privilege. The court further held that the Presidents presumptive privilege which was base only on the generalized

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interest in confidentiality could not prevail over the fundamental demands of due process of law in the fair administration of criminal justice. Nixon v. Administrator of General Services Facts: Congress passed a statute saying that all Presidential papers would go over to the library of congress where it would be kept confidential for a period of year and then opened up to the public. Nixon argued that they were his personal papers and should be given directly to him. Reasoning: The court sustained the legislation. They held that Nixons assertion of privilege rested solely in a general interest in promoting candid communication of views by discloser since the archives were party of the Executive Branch. The court further held that there was no violation of separation of power because the papers were going to remain in the executive department of the library. Furthermore, there was an interest in allowing future presidents access to such papers and documents. The court concluded that given the minimal nature of the intrusion into the confidentiality of the Presidency, the claims of Presidential privilege clearly must yield to the important congressional purpose of preserving the materials and maintaining access to them for lawful governmental and historical purposes. Clinton v. Jones (Presidential Lawsuits) Facts: Private activities that the president did were brought to suit and the President argued that he should not be brought to court for civil proceedings for things done before he was in office, during the time in which he was in office. President argued that the suit would take him away from his job as president and that the case could proceed after he was done in office. Reasoning: The court allowed the suit to proceed. They held that the President is not immune for civil lawsuits predating the time that he became president and that they would not divert him from his normal duties. --------------------------------------------------------------------------------------------IX. The Bill of Rights & Post Civil War Amendments ---------------------------------------------------------------------------------------------

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X. The Incorporation Controversy Fundamental Rights (Two Views) The liberties granted in the Bill of Rights were originally designed to only apply to the federal government and NOT the individual states. 14th Amendment: o This brought about debates as to whether the bill of rights were incorporated through the 14th Amendment to apply to the states due to the Conflicting Views Until the 1960s there were two conflicting views based on two theories of law being Positive and Natural. Originally, the natural law (subjective) view seemed to prevail. However, it was eventually overcome by the positive law (objective) view which has been seen more predominantly today. o If a liberty is included in the bill of rights, it is incorporated through the 14th Amendment to apply to the states. Subjective Analysis Shocks the Conscious (Cordozo, Frankfurter) Independent right that exists independent of any government. You can be aided by what is granted in the bill of rights but each case really should be addressed on a case by case basis in determining what is really ESSENTIAL TO THE SCHEME OF ORDERED LIBERTY. o Natural Law Argument Being human beings you have certain rights and liberties that the government cannot deny you. Objective Inclusion View Look to the Letter (Black) If a right is fundamental it is written included in the bill of rights. If it is not fundamental, then it has not been included. o Positive Law You DO NOT have a right unless it has been granted by the government, or is written within the Constitution. Rights That Are NOT Incorporated Towards the State o Jury trial in civil cases o 2nd Amendment (Right to Bear Arms) Palko v. (Natural Law View) Facts: There was a Connecticut statute that allowed the state appeal a nonguilty verdict. This was argued to be a way to get around double jeopardy (the state cannot take may further action once found not guilty). Palko argued that this statute violated his due process right under the 14th Amendment to not be tried twice for the same offense being that it was a basic fundamental right. Palko argued that this right was granted through the 5th Amendment but that it

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is applied to the states through the incorporation of the 14th Amendments use of the word liberty. Congress therefore intended to apply the bill of rights to the states through the enactment of the 14th Amendment. Reasoning (Cordozo): The court held that being free from double jeopardy was NOT a fundamental liberty and therefore, was not intended to be incorporated through the 14th Amendment. It was not a fundamental liberty because it is possible to have a fair legal system even though people are allowed to be tried more then once. Whether or not a liberty is fundamental should be determined on a case by case basis and should not rest merely on its inclusion in the bill of rights. IMPORTANT NOTE: TODAY, all individuals, whether it be a state or federal action are protected against double jeopardy. Blacks analysis (positive law) has overcome most decisions relying on the natural law analysis.

Rocan v. California (Natural Law View) Facts: The police arrested a man who was wanted for a drug violation. When the police came to his home, he swallowed the capsules containing the drugs. The police took the man to the ER where they had the drugs pumped out of his stomach and then arrested him for possession. The defendant argued that this was prohibited by due process. Reasoning (Frankfurter): The court agreed that the evidence was barred under the 14th Amendment because it shocked the conscious that the police would be able to invade someones body and therefore, it was a violation of a fundamental liberty. Duncan v. State of Louisiana (Positive Law) Facts: Defendant was incarcerated on charges of battery for two years before he was actually tried for the crime. Reasoning: The court held that under the bill of rights, the right to a speedy jury trial was a fundamental right under our system of law. --------------------------------------------------------------------------------------------XI. State Action Relevant Amendments 13th Amendment (a) Neither slavery nor involuntary servitude except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States or any place subject to their jurisdiction.(b)

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Congress shall have the power to enforce this article by appropriate legislation. o This amendment applies to EVERYONE (states, federal government, and individual) th 14 Amendment All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the US and of the State wherein they reside. No state shall make or enforce any law which abridges the privileges or immunities of citizens of the United States nor shall any state deprive any person of life liberty or property without due process of the law nor deny any person within its jurisdiction equal protection of the law o This amendment ONLY applies to the STATES o Nullifies and voids all state legislation & state action that 1. Impairs the privileges and immunities of US citizens; 2. Injures their life, liberty or property without due process of law; or 3. That denies them of equal protection of the laws. o Invests Congress with the power to enforce the 14th Amendment through appropriate legislation. 1. It does NOT invest Congress with the power to legislate upon subjects which are within the domain of state legislation. 2. It does NOT authorize Congress to create a code of municipal law for the regulation of private rights. th 15 Amendment (a) The right of citizens of the US to vote shall not be denied or abridged by the Untied States or by any State on account of race, color or previous condition of servitude. (b) The congress shall have power to enforce this article by appropriate legislation. o This Amendment applies to BOTH the state and the federal government but does not say anything about the individual.

State Action State Action: If a private act is supported by state authority, it can be determined to be a state action. There must be a nexus between the individual and the state action in order to justify in saying that the private person or entity was acting for/on behalf/or under state authority. The wrongful act of an individual is a private wrong if they were not sanctioned by the state or done under state authority.

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o The wronged Perons rights remain in full force and may be vindicated by resorting to the laws of the states for redress. Defining State Action (2 approaches) 1. Whether the person in question is performing a state function a. The function has to be something that ONLY the government would do. b. MUST be a traditional function that would have been contemplated by the founders. (CHECK THIS POINT) 2. Situations where the private activities and the public activities are so intertwined that the government is facilitating or assisting in the private persons violation of the 14th Amendment right. a. In these cases a private person will be found to be acting pursuant to a state action. b. This is seen in cases where: State is a joint participant The state is NOT maintaining a natural stance Ex Parte Virginia Facts: In 1880 a Virginia law prohibited African Americans from sitting on juries (only allowed for white males). An African American male was accused of a crime and brought before a Virginia jury. He tried to have the matter removed to federal courts (where blacks were allowed to sit on juries) on the grounds that Virginia was denying him his right to trial by jury. The justice department ended up indicting the state judge who was excluding blacks from sitting on the juries. Reasoning: The court held that the judge was not protected under absolute immunity and could be prosecuted under civil right laws for violating someones civil rights. This was because the 14th Amendment prohibits the state from denying any person equal protection under the law. Therefore, the judge was acting outside the color of office by allowing such discriminatory practices and was therefore not protected by absolute immunity. Marsh v. Alabama (State Action Under Approach #1) Facts: A corporation owned a town where a Jehovahs Witness was going around from house to house and was arrested for trespass. The JW said that he had freedom of speech and religion. The town argued that this was private property and not a public town.

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Reasoning: The Supreme Court held that although the town was public property it looked like any other municipality. An outside observer would not know that the town was not publicly owned. The town had acquired many attributes of a municipality and therefore, the 1st-14th Amendment would apply.

Shelley v. Kramer (State Action Under Approach #2) Facts: In 1911 a group of property owners signed a restrictive covenant prohibiting individuals who were not white from inhabiting the property they currently owned on a street in St. Louis for a term of fifty years. In 1945 Shelley bought a piece of property on this street without knowledge of the covenant. When Shelly tried to inhabit the land, Kreamer brought suit to enforce the covenant. Reasoning: The court held that judicial intervention in enforcing a restrictive covenant that deprives an individual property rises to the level of state action, and therefore affords the deprived individual the rights and privileges afforded by the 14th Amendment. o The restrictive covenant alone, could not be held as a violation of the 14th Amendment. However, active intervention of the state court constitutes a state action because the court was denying the African American occupants equal protection of the law, the right of ownership. Brentwood Academy v. Tennessee School Athletics (State Action) Facts: A private association of secondary schools was formed to regulate athletics. Both public schools and private schools belonged to the association. They argued that the were not performing exclusive private or public functions but rather that they were representing a wide variety of school and they should not be subject to the 14th Amendment. Reasoning: The court held that this could be classified as a state action. They reasoned that even though the association members were not paid by the state, there were many who were employees of the state and worked at public high schools. Furthermore, there were significant connection to state money, and football was a HUGE part of going to school in Tennessee. Burden (State Action) Facts: A private restaurant was located in a public parking garage (state building). In accordance with the restaurant policy, African Americans were not served.

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Reasoning: The court held that this constituted a state action. o Main Reason The restaurant had received the space in the parking garage because they had submitted a bid, and it had been approved by the state. The state had PICKED and APPROVED the bid which discriminated and therefore, they were a joint participant. o Other contributing reasons (1) Lease for the restaurant helped the survival of the public garage (2) Restaurant was leased from the city and the lease did not put any clause into it that required all individuals to be served no matter what race they were.

Moose Lodge (No State Action) Facts: African American male was not served a drink at the Moose Lodge Bar which was a private and exclusive club which did not allow for African Americans to join. At trial the Plaintiff argued that because the state licensed Moose Lodge to serve liquor they are therefore a joint participant (due to the fact that they only give a limited amount of licenses). Reasoning: The court held that there was no state action. The mere licensing of the Moose Lodge by itself did not amount to a state action. The only way that a state could be considered a joint participant is if they were specifically giving out licenses to restaurants or establishments that participated in discriminatory practices. Metropolitan Medical (No State Action) Facts: The Plaintiffs electricity was shut off without her being given any notice. She argued that there was state action due to the depravation of due process because o (1) The state had allowed for the electric company to form a monopoly Courts Holding: NO. The creating of a monopoly does NOT lead to state action. o (2) There was state action because providing electricity was a typical state function. Courts Holding: NO. A state function has to fall within what a sovereign would provide as a Traditional State Function. In 1789, there was no electricity and therefore, it was not contemplated or included as a sovereign function.

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o (3) Providing Electricity has a strong effect on the public interest, and therefore, creates a state action. Courts Holding: Just because something creates a strong effect on public interest does not create a state action. o (4) The commission did to take any action once the company turned off the electricity without notice and so their inaction became state action. Courts Holding: Wrightman (State Action) Facts: Proposition 14 was enacted by California voters and was then amended into the California Constitution. The proposition was interpreted to mean that the state could not deny anybody the right to discriminate as to the sale of property (allowed for discrimination). The amendment eliminated all antidiscrimination laws as applied to the sale of rental or rental of property. Everyone in California, in an essence, was allowed to discriminate. Reasoning: The court held that the state of California was doing more then simply repealing all of their state anti-discrimination laws. If proposition 14 had merely done that there may have been a different outcome (this would have left things neutral and up to the individual). However, by incorporating it into the Constitution they were establishing a right to discriminate in California and were NOT staying neutral. By doing so they were encouraging discrimination. This turns ALL Private discrimination into a state action. --------------------------------------------------------------------------------------------XII. Civil Rights Legislation Congressional Acts/Statutes Civil Rights Act (1866) o Passed under the 13th Amendment and then repassed after Congress enacted the 14th Amendment. 42 USC 1983 Allows for a civil action to be brought against any person acting under the color of state law, who violates any individuals constitutional rights. o You can sue 1. An agent, employee, official of the state (judge, legislature, executive)

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If they are sued for damages they may be protected under qualified or absolute immunity (Executive, Legislature Qualified; Judicial Absolute) City cannot be held liable unless they have a policy that supports the specific misconduct. 2. Private Party but only if 1. They are serving an exclusive and traditional state function; or 2. There is a nexus or support provided by the state (state action) o Passed under the 14th Amendment o State Action/NO Specific Intent 18 USC 242 Allows for a criminal action to be brought against any person acting under the color of state law, who violates any individuals constitutional rights. o Passed under the 14th Amendment o State Action/Specific Intent 42 USC 1985/18 USC 241 Allows for a civil/criminal action to be brought against any persons (two or more) who conspire to deprive another of their constitutional rights. o Passed under either 1. The 13th Amendment as a badger or incident of slavery; or 2. As a privilege and immunity as defined by the slaughterhouse cases. (Interstate Travel, write to petition government) o Was NOT passed under the 14th Amendment because there is no state action requirement. (No equal protection or due process) o NO State Action/Specific Intent Title 2 Prohibits discrimination in public accommodations (NO State Action) Title 7 Prohibits employment discrimination, if occurring in the public workplace. (State Action) o If through a private employer then must rely in commerce clause Title 6 Prohibits racial discrimination of anyone receiving federal funds (spending power) o Ex. If a business or school is receiving federal money, they cannot discriminate based on race. Fair Housing Act Prohibits discrimination in the selling and leasing of property (commerce clause).

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Voting Rights Act (1965) Act enacted to eliminate racial discrimination that was preventing African Americans from participating in the election process. o Included two provisions 2 A broad statute that applied nationwide and prohibited discrimination on the basis of race or color. 5 A unique provision categorized as preclearance In certain areas where the proportion of minority voters was substantially lower then their population local voting laws were frozen. If a state wanted to change the law, they had to pre-clear them with the Justice Department. If the proposed law is either discriminatory in its intent OR its effect they were not to be enacted. Religious Freedom Restoration Act Due to Scalias decision to NOT grant strict scrutiny to neutral laws that infringe on freedom of religion. Congress passed this act which allows for a neutral law that substantially impairs religious practice to trigger strict scrutiny. In such case, the government must show a compelling government interest to rebut the presumption that the law is discriminatory.

Remedial Legislation 14th Amendment 5/15th Amendment 2 Allows congress to enact legislation for the purpose of enforcing the 14th & 15th Amendment (remedial legislation). Limits on Remedial Legislation o 1. Test: The legislation MUST BE proportional to the problem. o 2. Congress May remedy 14th and 15th Amendment violations but cannot independently define a right or privilege, or determine what the exact violation is. (that is the job of the court) 1. Congress is not bound the rules of evidence and Civil Procedure, and is able to hear any case they want. They will view the bigger picture, while the court is limited to the particular case. 2. They may find that there was NO discrimination in a certain case, while their WAS discrimination in general. o 3. Congress CANNOT take away Constitutional rights. o 4. Congress CANNOT create remedial legislation for areas of state law that are not concurrently governed by the federal government and ONLY by the state. (Ex. Zoning Law)

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South Carolina v. Katzenbach (Remedial Legislation; Voting Act) Facts: In 1966 the state of South Carolina sued the Federal Government to declare that the preclearance provision was Unconstitutional. Reasoning: The Supreme Court sustained the Acts provision relying on the 14th Amendment 4 and the 15th Amendment 2 which allow for Congress to enact remedial legislation to remedy a voting regulation. Katzenbach v. McClung (Remedial Legislation; Voting Act) Facts: Congress suspended the literacy requirement in any area covered by 5. New York had a literacy test and was covered by 5 which affected PuertoRican voters. The state argued that congress did not have to make this suspension, because in 1954 there had been a broad challenge to the legality of literacy tests. The Supreme Court had held that literacy tests were Constitutional and a valid requirement for voting purposes. But, if it was used as a means to discriminate, then they may have an argument under 14th Amendment 5. Reasoning: Court held in favor of congress and allowed for the suspension of the literacy test. They reasoned that o 1. There had been a long history of literacy tests being used to discriminate on the basis of race. Congress had the power under 14th Amendment 4 & 15th Amendment 2 to outlaw such test. o 2. The court analogized with the necessary and proper clause (regarding interstate commerce), and reasoned that the right to vote is an important right and congress can pass affirmative legislation under 14th Amendment 5 based on its remedial powers. 1. Means must be constitutional; and 2. End must be an enumerated power. In this case City of Rome v. United States (Remedial Legislation; Voting Act) Facts: The city of Rome, Georgia has a commission form of government. They submitted a plan to the Department of Justice to amend their government by reduce the amount of Aldermen, which was rejected on the grounds that it had a discriminatory affect on African Americans. The city brought suit challenging the Justice Departments Decision. Reasoning: The court held that

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City of Mobile Under the 14th and 15th Amendment the Constitution is only violated if there is intentional discrimination. Actions that have a discriminatory effect but were NOT pivoted racial discrimination. Employment Division v. Smith Facts: For fifty years prior to this decision the court has held that they will carefully examine state and federal laws that infringe upon the free exercise of religion and apply strict scrutiny. This entails treating the law as presumptively illegal, but allow for the government to rebut this presumption by showing a compelling governmental interest. In this case, Native Americans in Oregon, who were using Peyote for religious purposes, were found guilty of violating federal laws outlawing narcotics. Smith was then fired from his state job due to the conviction. Smith argued that the Peyote use was party of his religious practice and there had to be a compelling state interest rebutting his religious practice. Reasoning: The court held that the law was a neutral law being that nobody could use Peyote, just as nobody could smoke pot. In applying a neutral law to a religious practice strict scrutiny is NOT triggered. If it were a law outlawing Peyote for the purpose of religious services then the outcome would have been different. Boerne v. Florida Facts: There was a church that wanted to receive a zoning variance so that they could expand the structure of their building. The zoning law, being neutral in nature, was brought to court under the RFRA. The state argued that the RFRA was Unconstitutional. Reasoning: The Supreme Court held that zoning law was a matter of state law, and applying the RFRA towards areas of state law not concurring with federal law was I violation of federalism and the Constitution. o Congresss Argument The free exercise of religion is a liberty protected by Due Process under the 14th Amendment. Congress has the power to define what is protected by the 14th Amendment. Therefore, Therefore, state restrictions on the free exercise of religion that are NOT justified by compelling reasons violates the 14th Amendment. o Courts Holding The court did not buy this argument. They reasoned that Congress has the right to create remedial legislation to provide remedies for 14th Amendment violations but CANNOT independently

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determine what a 14th Amendment violation is. This is a judicial matter. Additionally, under the Courts proportionality test, it was determined that there was not a pervasive history of religious discrimination comparable to the problems of racial discrimination. Therefore, there was no violation to provide a remedy for. The Act WAS STILL APPLICABLE to federal legislation that violated the 14th Amendment. Congress not bound to the rules of civil procedure and evidence Congress can base their decision on broad social or general discrimination, and not based on the individual controversy at hand (which may not be discriminatory) o Test Congresss remedial legislation must be proportional to the problem. Garrett Facts: A suit was brought under the Americans With Disabilities Act, because the state failed to accommodate a disabled person. Congress, through their remedial powers, had authorized damages against the state. Reasoning: The court held that it was NOT proportional legislation because there was not a distinct history or pattern of state discrimination against person with disabilities. The ADA was not proportional enough to bypass the 11th Amendment and allow for the state to be sued for damages. o Same was determined for age discrimination and appropriation of intellectual property. Hibbs Facts: A suit was brought under the Family and Medical Leave Act, which prohibited relatioation against people who needed medical leave to care for family members. A state violated this law and was sued for damages. The lower court held that the law was not proportional to the problem. Congress argued that it was for the purpose of protecting work discrimination against women. Reasoning: The court held that the law was appropriate becaseu there had been a historic pattern of discrimination against women in the state workplace. Congress is therefore, authorized in providing a remedy in violation of such constitutional rights. Tennessee v. Lane Facts: A suit was brought under the Americans With Disability Act which requires equal access to government buildings and services. A courthouse had a

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large amount of stairs and a peropoligic litigant was forced to crawl up the stairs in order to get to court. He brought suit for damages. The state argued that the damages were barred by the 11th Amendment. Reasoning: The court held that the suit was legitimate. First, because there was a long history of disabled individuals being barred from public accommodations. Equal protection guarantees equal access to the courts for any reason. Title 2 allows for an action to be brought and it is proportional in accordance with this case.

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