Con Law Standards Application

Judicial Review- Marbury v. Madison - Judicial branch cant meddle with political discretion of executive branch but can get involved in anything that acts contrary to constitutional law o Court decides when something is political discretion or governed by law - Constitutional is supreme law of the land because popular sovereignty (which created Constitution) prevails over legislative sovereignty o Judiciary deals with law- therefore business of the judiciary to determine constitutional law Therefore- Constitution as interpreted by Supreme Court is supreme law

Federal Legislative Power

McCoulloch v. Maryland o Federal government is supreme over states, cant negate federal action Federal power comes from the people so cant be limited by the states o Broad definition of Congress powers- may choose any means to carry out its lawful ends Necessary and proper clause Allows what is convenient, useful or essential to carrying means (in the minds of Congress) Language and location means it was meant to expand Congress power To Determine the Constitutionality of Any Act of Congress: - Is it a Power of Congress? o 1) Enumerated powers o 2) Implied power to execute the enumerate powers Test for Congresss power End is legitimate, within the scope of the constitution o Does the law violate another Constitutional provision such as:? Infringing on state autonomy/sovereignty Interfering with individual liberties By means which are appropriate- plainly adapted to the end - State Legislative Power o Have power to create any law, unless there is specific rule that says they cant Power reserved to states was power the states had before the constitution Cant add to constitutional requirements needed to be a member of Congress because didnt exist before Only limitation: does it violate the Constitution?

Commerce Clause
Article 1, Section 8- Congress shall have the power to regulate commerce with foreign nations and among the several states o Concurrent power- if federal government doesnt regulation then state can But: state law cant discrimination against interstate commerce, states may not excessively or unduly burden interstate commerce 1

Kinds of Commerce Government May Regulate - 1) Channels of interstate commerce (Gibbons v. Ogden) - 2) Instrumentalities of interstate commerce and things related to those instrumentalities - 3) All matters having substantial relationship to interstate commerce (Shreveport Rate Case- direct/US v. Darby) o Economic activities with Direct but Unsubstantial effect on commerce can be looked at in the aggregate to be substantial (Wickard v. Filburn) Economic: involves production, consumption and distribution (even if noncommercial- Gonzales) o Economic vs. Non-economic Activities (usually criminal) US v. Lopez (gun control) and US v. Morrison (violence against women)doesnt have enough of an effect Other factors: No jurisdictional element, traditionally within the state domain o Used to apply to discrimination Deny to blacks in the aggregate has substantial effect on travel (Heart of Atlanta Motel v. US) and restaurants (if serve interstate travelers/get food from out of state- Katzenbach v. McClung) Standard of Review- Rational Basis - Defer to congress o But: Congressional findings on impact on interstate commerce alone not sufficientCourt determines if activity is sufficient related (Morrison) - Dont need to show that activities in the aggregate substantially affect interstate commerce, only whether rational basis exists for thinking so (Gonzales v. Raich) Spending Power - Not limited by enumerated powers, limited only by requirement that it is for the general welfare o General welfare is what Congress decides is general welfare - Cant be used as coercion/interfere with states ability to choose o Cant use if looks like a regulation (US v. Butler) o Temptation of credit okay (Steward Machine v. Davis), must exercise choice knowingly o Must be related to federal interest in particular project/program (South Dakota v. Dole- drinking age and highway funds)

State Sovereignty and Regulation

State Sovereignty - Federal government cannot infringe on state sovereignty - No objective criteria for fundamental elements of state sovereignty o Structure of Constitution o Principles of federalism- framers established role of states through structure of government

Indirect influence through house of representatives and electoral college, direct through election of Senators o 10th amend- powers not delegated to federal government are reserved for states Important because: greater choices for people in what power they want, laboratories of experimentation, more responsive to local constituencies, checks on abuse of power

Is the Statute Telling the States What to Do? If, so- Is it Constitutional? - Federal government can regulate states when subject to same regulation as private parties (Garcia v. San Antonio Metropolitan Transit Authority) o State sovereign interest are more properly protected by political process than by judicially created limitations on federal power Because state interest is adequately represented in Congress, people elect representatives who have state sovereignty in mind, role in electoral college Courts role: judicial backstop o AND, line of state sovereignty is too difficult to draw - Federal government cant regulate state as a legislature (New York v. US) o Why cant Congress tell state legislatures what to do? Can only regulate people- constitution replaced going through the states with going straight to the people If constitution expressly provides that Congress can commandeer state courts, then would have expressly provided that Congress could tell state legislatures what to do Compelling state legislatures to adopt policies blurs accountability Core of state sovereignty is the ability to chose how to spend the money that it raises from its constituents o BUT CAN regulate when: Merely creates incentives to induce state action Gives state the choice between regulating themselves according to federal standards or being re-empted by federal regulation (federal government will do it) Prohibits states from engaging in harmful conduct Ask states to engage in ministerial duties - Federal government cant compel state executive official what to do (Printz v. US) o Undermines presidential authority/separation of powers argument o Puts burden on states, impairment of state autonomy o Historically it was never done Privileges and Immunities Clause - Article 4 Section 2- privileges and immunities clause o Protects non-residents, citizens of other states traveling to other states from against being deprived of rights of that citizens of those states enjoy Doesnt apply for discriminatory practices against residents o When a state discriminates against out-of-staters with regard to constitutional right or important economic activities - What are Privileges and Immunities? o Must be fundamental right (not a benefit) 3

Fundamental to the preservation of the union Constitutional rights Ability to earn a livelihood Not absolute: discrimination will be allowed if it is substantially related to achieving a substantial state interest

14th Amendment
Substantive provision (Privileges and Immunities) o No state shall make or enforce any law that abridges the privileges and immunities of citizens Addresses legislatures- dont interfere with citizens fundamental rights Procedural Provision (Due Process) o No state shall deprive any person of life, liberty or property without duty process of law Procedural protections before you take anything away from anyone o Focus on individual, deprivation of liberty Quality Provision (Equal Protection) o Nor deny anyone in your jurisdiction equal protection of the laws Executive branch- Make sure you apply the laws to include everyone o Focus on individual in comparison to others who are similarly situated

State/14th Amendment Privileges and Immunities - Slaughter House Cases- Removed as a basis for applying the bill of rights to the state or for protecting any rights from state interference o Privileges and immunities clause doesnt: Protect individuals from state government actions Not a basis for federal courts to invalidate state law o Only protects limited set of national privileges/protection from federal government interference o Dont want federal government as perpetual censor of states - So have to do it some other way (due process and equal protection) Incorporation - Partial/selective incorporation- only incorporates fundamental rights o Standard for fundamental rights (Duncan v. Louisiana): Fundamental principles of liberty and justice which lie at the base of all our civil and political institutions, basic in our system of jurisprudence, whether it is a fundamental right essential to a fair trial o McDonald Standard: 1) Whether a particular Bill of Rights guarantee is fundamental to our scheme of ordered liberty and system of justice Our- because rights can be fundamental and unique to a system of ordered liberty (not other countries) Ordered liberty: Balance of freedom as foundation of system and ability for government to regulate and control 2) Whether the right is deeply rooted in the Nations history and tradition 4

Not incorporated: o 3rd amendment- Quartering soldiers, 5th amendment- right to jury trial does not extend to state civil case, 2nd amendment- right to bear arms

Economic Due Process

Lochner Era - Implied economic theory in constitution- freedom of contract is basic right of liberty/property - Government can interfere with freedom of contract only to further valid police power (protecting public health, safety, morals) - Judiciary should carefully scrutinize legislation for direct, substantial relationship to ensure it truly serves valid police purpose/real motive Rational Basis Test - Test o 1) Does the economic regulation serve a legitimate purpose? Legitimate purpose: to promise public welfare Purpose of redistributing bargaining power/labor laws is proper (West Coast Hotel v. Parrish) o 2) Are the means rationally related to the purpose? Cant be arbitrary, discriminatory, or demonstrably irrelevant - Role of Court- Deference o Court leaves itself power to determine if purpose is proper/improper but o Defer to legislature (Nebbia v. New York) Dont look into motive of legislature (Daniel v. Family Sec. Life Insurance) Just need conceivable/hypothesized legitimate purpose (Willams v. Lee Optical) Not courts place to decide if legislation is wise/correct (Ferguson v. Skrupa)

Equal Protection
1) What is the Classification? - Who is disfavored class and who is favored class: Distinction based on particular characteristic of group of people (race, gender, citizenship) - Facially neutral laws that have discriminatory impact + discriminatory purpose o Must be proof of discriminatory purpose- not enough to prove government took action with knowledge it would have discriminatory consequences Equal protection is about stopping discriminatory acts by the government, not bringing about equal results o If want to make discriminatory purpose argument, must show: 1) Impact of law so clearly discriminatory- no other explanation (statistical pattern) 2) Historical background of the decision 3) Legislative or administrative history 4) If series of actions taken for invidious purpose 5) Departures from normal/standard, change the rules 5

(Arlington Heights)

2) What is the Appropriate Level of Scrutiny? - Criteria to decide level of scrutiny: o a) Immutable characteristics: race, national origin, gender o b) Ability of group to protect itself in political process o c) History of discrimination o d) Real/Actual Differences in groups - Strict scrutiny o Race/national origin/aliens (some exceptions) o Necessary to achieve a compelling government purpose, government has burden)presumption of unconstitutionality How necessary is necessary? Levels- depends on intensity of strict scrutiny test applied o Highest: Exhausted all other possibilities that would achieve this purpose o 2) Other better alternatives to achieve purpose o 3) Could imagine legitimate reasons for necessity Necessary goes beyond necessary of necessary and proper in McCullouch and more necessary than rational basis test o Requires definite and close relationship to pressing public necessity (Korematsu) o Higher burden to prove law is not arbitrary or invidious because law is based on race What makes discrimination invidious? Premised on ideology of white supremacy, reflects a racial caste system (Loving v. Virginia) based on community prejudices (Palmore v. Sidoti) o Exceptions with classification disadvantaging aliens 1) Political Function- alienage classifications related to self-government and the democratic process- rational basis review Job must be one that exercises authority, discretionary, important government function, broad discretionary power over public policy (Bernal v. Fainter) 2) Federal laws and presidential orders only subject to rational basis test because Congress has plenary power to regulate immigration Issues based on immigration and naturalization are political questions properly left to congress and executive (Mathews v. Diaz) 3) Government actions against undocumented immigrants with regard to education- intermediate scrutiny (Pyler v. Doe) Elements of suspect classification + somewhat fundamental right = intermediate level of scrutiny - Intermediate Scrutiny o Gender/nonmarital children o Substantially related to important government purpose, government has burdenpresumption of unconstitutionality Cant be based on: overbroad generalizations (United States v. Virginia), stereotypes (Craig v. Boren) 6

Can be based on: real distinctions/biological differences (Michael M.), if making up for past discrimination or differences in opportunities (Califino v. Webster, Kahn v. Shevin) o Why gender is intermediate: Like racial classifications: long history of discrimination, tend to be based on stereotypes, immutable, underrepresented in politics Unlike: biological differences, women are actually political majority, gender was not purpose of 14 amendment Rational Basis Test o Rationally related to legitimate government purpose, challenger has burdenpresumption of constitutionality Relation needs to be plausible (something one can at least imagine)- no inquiry beyond that (FCC v. Beach Comm.) o Applies to most type of discrimination, potential exception- if it involves fundamental rights

3) Does Government Act Meet the Level of Scrutiny? - Does it imply inferiority/what is the social meaning? - What is the compelling interest?- often depends on scope o Is the statute narrowly tailored to meet the end/purpose? Over inclusive/under inclusive, neutral means to achieve purpose, other better ways to achieve purpose Affirmative Action - Is this a classification that disfavors or favors a classification? - If favors a group- Standard of review: strict scrutiny minus o Must be cautious with racial classification-playing with fire, hard to tell impermissible from permissible o Federal law subject to same strict standard as local and state (Adarand) o Must consider race-neutral laws (but dont actually have to try them) - Compelling government purposes: o To remedy past discrimination Allowed up to proven violator provide remedy to group was subject to discrimination, even though benefits are not limited to proven victims o Enhancing diversity in education May use race as a factor to ensure diversity (must still be individualized/full consideration) but quotas or numerical quantification of benefits is impermissible Deference to university in education (Grutter)