Constitutional Law - Amar - Sprin 2012 - Outline

Con Law I Outline Amar Spring 2012
[DOCTRINAL OVERVIEW]
METHODOLOGY Must ask several questions when interpreting and analyzing the constitution and other relevant documents. WHAT does it mean? Deciding on the best meaning of the words used (ex: interpretation of the commerce clause) WHO decides what it means? Judicial Review (see Marbury) HOW do you use the necessary tools to answer the WHAT and HOW questions? Use constitutional interpretation tools to argue in favor of particular substantive parts of the constitution / methods of constitutional discourse. 1. Originalism Look to text itself / good starting point / only works for concrete provisions (35 years old to be the President / two thirds majority vote requirements) 2. Original Intent Legislative history or situational factors behind particular section or words used / look to the substantive understanding of the people who ratified a provision / use dictionaries of the day, specific policy discussions, historical context (ex: 14th is about slavery) 3. Pragmatism Use common sense when evaluating the document (ex: constitution didnt give power to create the Air Force BUT its reasonable to do so) / fill the blanks with common sense 4. Past Precedent Can be judicial or otherwise / maintain stare decisis and judicial uniformity (ex: Blakey) 5. Structural No clause or article is invoked BUT a value that runs through the document may be at issue (ex: privacy rights OR presidential impeachment and chief justice oversight, not VP) CONSTITUTIONAL HISTORY Declaration of Independence 1776 13 colonies revolt and declare their independence from Great Britain / tired of over taxation without representation and enslavement Philosophical Implications - government is not ordained by God / no more King - God endows PEOPLE with individual sovereignty (popular sovereignty) and those PEOPLE then establish ordered government / sovereignty from the bottom up (compare with GB top down) - Which people? Sovereignty applied to the people of the INDIVIDUAL states, not the people of the whole states collectively (not truly united yet) Articles of Confederation Problematic for several reasons: weak centralized government / no power to tax / no meaningful executive branch / couldnt raise troops effectively 1776 1787 it becomes clear that the states need a new framework of government in order to secure their safety militarily and economically Philadelphia Convention 1787 originally established to revise the articles of confederation (legality question) but it ended up creating an entirely different system of government / must be ratified by the people of each state / establishes the electoral college / sovereignty transformed from the people of each state to the United States collectively / strong executive / separation of powers Fundamental Dilemma

How do you empower government in a way that creates stability and good order WITHOUT giving government so much power that it becomes a threat to liberty and autonomy? Constitutional Solutions 1. Judicially Enforceable Rights certain rights are articulated and they are enforced by the courts / independent body to enforce constitutions boundaries 2. Limited Enumerated Power federal government only has powers given to it and NO more (see 10th Amendment) / no general power subject to various limitations (too broad) / BUT commerce clause is pretty far reaching 3. Bill of Rights first 8 identify individual rights that the federal government must respect 4. Institutional Competition federalism & separation of powers ideas / increased possibility for whistle blowers, horizontal competition by 3 branches of government AND vertical competition by the states and the federal government / churches and other community orgs play a role as well Bill of Rights Proponent Arguments Really part of the constitution itself many states wouldnt have ratified had they not been assured that the BOR would be soon after enacted as well Opposition Arguments Some thought the BOR would be dangerous / "no u turn sign" analogy (we look for a NO sign and if one does not exist the we think something is OK to do therefore if there isnt a no rights sign then the gov should have the power to do something, i.e. if a protection isnt laid out in the BOR then the gov is free to trample over it) / this logic undermines the limited enumerated powers doctrine Ex: P. 19 Mr Sherman note / power of the press * BOR eventually applied to the State (contrast the fact that it was originally intended to stop the federal government from infringing on the peoples rights) after the civil war i.e. slavery

[JUDICIAL REVIEW] Federal Judiciary Federal Government LEGITIMACY It is emphatically the province of the judiciary to determine the meaning of the laws. The Supreme Court is therefore able to review the constitutionality of all acts from Congress. They have the final word. Marbury v. Madison (1803, 25) FACTS: President Adams commissions Marbury as a justice of the peace / Jefferson (new pres) repeals a law establishing the circuit court Marbury was affiliated with / Marbury sues Madison (Jeffersons secretary of state) seeking a writ of mandate to compel Madison to deliver his commission / Marbury goes right to the Supreme Court ISSUE: Section of the Judiciary Act which seeks to give the Supreme Court ORIGINAL JX, in addition to its APPELLATE JX HOLDING: 13 of 1789 Judiciary Act (which gave SC authority to issue writs of mandamus) was void as unconstitutional / "Congress cant add to the original jurisdiction of the Supreme Court, beyond that which the Constitution originally gives it" Issue #1: Does Marbury have a right to his commission? o Held: yes Marbury has right to commission b/c signed and sealed Issue #2: If so, does the law afford Marbury a remedy? o Held: yes where theres a right, theres a remedy o Some decisions where pres only has to answer to voters (veto) o But once theres a legal right, pres must answer to courts o This dicta has not been followed Issue #3: If so, can the mandamus be issued by the SC? o Held No, SCOTUS doesnt issue mandamus here but preserves the power o Ct can issue secretary to do something: important o SCOTUS has no jxn conflict b/t Art III & 13 of 1789 Judiciary Act Why is Mandamus appropriate for the Supreme Court? (1) Is there a statute authorizing it? o If not, SC cant issue it (would have avoided problem) o But Marshall stays there is a statute: the Judiciary Act (2) Does the statute really try to give the SC jxn? o Marshall reads statute as Cong attempting to give jxn to SC (later found unconstitutional) o Amar other readings would have avoided this conclusion (3) If the statute is valid, does it conflict with Art III? o Art III, 2 identifies instances of ORIGINAL JX and these are exhaustive Reading provision as exhaustive isnt absolutely necessary but Marshall says its the only way to read the phrase o Marshall thus finds a CONFLICT w/ Art III & the Judiciary Act How does Marshall apply the Supremacy Clause? - Article VI Sec II Supremacy Clause - State vs. Federal Law Federal law ALWAYS wins when a conflict arises - Federal Law vs. Constitution Supremacy clause only states that the Constitution laws and treaties of the United States are supreme. Marshall argues that since the Constitution is mentioned first, it is

supreme. He also argues that a law or treaty in conflict with the Constitution is not pursuant thereof the constitution and therefore unconstitutional. The Constitution wins after Marbury . Marshall 3 Step Argument 1. Judiciary must decide what law is in question 2. The Judiciary can hear all questions arising under the Constitution (Art III) 3. The law at issue must be in pursuance thereof otherwise it conflicts with the Constitution and is therefore UNCONSTITUTIONAL Why is the Supreme Courts interpretation supreme? - Textual Argument Art III gives judges power; Art VI says that judges have to follow Constitution - Structural Argument Why else would the framers have written it down? Who decides what happens in the case of conflict? - Judges take an oath of office to uphold the constitution / the document is written so that judges preside over it / the essence of judicial duty is to interpret conflicts between laws/ Art III - gives courts the power / Art VI - gives courts discretion to make independent determinations What are the criticisms of Marshalls decision? - Marshall's decision is open to several questions: (1) Manner in which he took the case (2) Order in which he sequences the questions (3) important dicta (4) never goes to the question if the court should independently evaluate the constitutionality of a statute / he only addresses that the constitution prevails when a conflict arises CRITICISMS Judicial Review, even to this day, is a controversial judicial practice. Major criticisms include: Counter-Majoritarian - Unelected judges striking down laws passed by elected officials / people elect officials to make laws and judges shouldnt unilaterally impede them from acting on the will of the people Weak Justifications - JR is often based on interpretation cannons that are not expressly identified in the constitution such as spirit, intent, history, common sense, structure, etc - When the text / history of a law or issue is murky, the court's independent review is more contentious Frequency - 1 statute was found unconstitutional in the 1800s (Dread Scott, 1857). But between 1995 and 2000, the SC found 24 acts of Congress as unconstitutional. Who is Bound Andrew Jackson Opinion Didnt feel bound by SCs ruling that Congress (McCulloch v. Maryland) had authority to preserve national bank / congress has just as much control over the constitution as the judiciary. In effect, any branch can stop a law because they think it is unconstitutional. Lincoln Litigants bound by SCs decisions; everyone else doesnt necessarily have to embrace what SC says / Judicial Review, while important, isnt exclusive in interpreting the constitution Varying Approaches Narrow Understanding The Supreme Court (all courts) can't be asked to implement a statute that the court finds to be in conflict with the constitution

Broad Understanding The Supreme Court is the exclusive (most important) interpreter of the constitution; once they rule on a constitutional issue, all other courts and agencies must fall in line / adopt that reading Middle Approach cases where the SC says a statute doesnt violate Constitution to do Y is different than a situation where the SC says doing X violates the Constitution Allowable (y) vs. Required (x) Violating a law you know the SC would uphold (y) is DIFFERENT than enforcing a law you know the SC would strike down (x) AMAR- JR is a one-way ratchet there is no obligation to pass a law, but there is an obligation not to violate it EX: McCulloch the court doesnt say that congress has to create a national bank BUT that it is constitutionally allowable CONGRESSIONAL CONTROL Ex Parte McCardle (1868, 38) FACTS: journalist is detained by the military for alleged libel / congress amends the Judiciary Act to grant federal courts power to grant writs of habeas corpus in ALL situations / McCardle requests such a grant / before case gets to the Supreme Court, congress repeals a part of the Act covering habeas corpus writs ISSUE: If Congress has the power to take away the docket of the federal judiciary, then how meaningful is the judicial review that is the end result (holding) of Marbury? HOLDING: Court has NO jurisdiction to hear case. RULE: The exceptions and regulations clause in Article III gives congress a lot of power --> Court has to listen to Congress and therefore the Court cannot exercise jurisdiction over this case (due to the legislative repeal) o The Court cant ask why it was that congress took away appellate jurisdiction - can't inquire into the motives of the legislature / they can only inquire into the constitutionality of their actions o Takeaway: Congress can choke off one path to the Supreme Court, but not all paths. Was the repeal of the statute constitutional? o YES Cong has broad powers to control SCs docket / Art III, 2: Exceptions & Regulations Clause Gives cong near absolute power to manipulate appellate docket of the SC All cases on appeal...just cant mess w/ original JX Note: McCartle = appellate jx / Marbury = original jx Was McCardle barred from the federal courts? NO he had his day in court at the federal level just NOT at the Supreme Court. JURISDICTION STRIPPING Because the Supreme Court is only guaranteed to have original jurisdiction in certain cases, Congress has the power to substantially limit the kinds of cases that they can hear. There are three schools of thought on the scope of such jurisdiction stripping: Essential Functions (Narrowest) Congress can regulate the lower federal courts BUT because the Supreme Court is established by way of the Constitution, it is special and therefore should hear all important cases. Congress should let the Supreme Court fulfill its essential functions

Total Control (Broadest) Congress can ALWAYS take any case away from the Supreme Courts appellate docket. And, because Congress has the power NOT to create any lower federal courts, they wield substantial power over the Supreme Court. The only thing protected is the SCs original JX (i.e. what was upheld in Marbury) Federal Forum (Most Accepted View) Congress should look to the federal judiciary as a whole and not just as the supreme court. At a minimum, there should exist some federal court capable of dealing with the disputes outlined under Article III Sec II: the judicial power of the federal courts SHALL (i.e. must) extend to all cases If Congress chooses NOT to create lower federal courts THEN their ability to use the exceptions and regulations clause as it relates to the Supreme Court is therefore LIMITED (i.e. they must let SCOTUS hear the case b/c they didnt allow the lower courts to & vice versa) Federal Questions go to (1) the Supreme Court or (2) lower Federal Courts / Congress cant cut off both avenues Note: means that congress could potentially give final adjudicative power to the lower federal courts so that SCOTUS would NEVER hear particular cases (ex: federal abortion court & no SCOTUS appellate review) U.S. v. Klein (1871, 40) FACTS: statute allowed seizure of property of those who aided in the rebellion / SC originally says that those pardoned by the President DIDNT aid in the rebellion / congress is pissed and passes a law saying the pardon is evidence that those people DID aid in the rebellion ISSUE: Is the law congress passed (pardon law) constitutional? HOLDING: No the law prescribed how a court should decide an issue and denied the effect of a presidential pardon. NOTE: potential conflict with McCartle here the court doesnt listen to congress but it showed lots of deference in McCartle RULE: Congress cant tell the Supreme Court how to rule in particular situations How do you reconcile Klein with McCardle? Reading #1 Klein is about Presidential Pardon power It has nothing to do with congressional jurisdiction stripping (like McCartle). Congress just misunderstood the power of a pardon. Reading #2 No jurisdiction language used in Klein Opposed to McCartle where congress specifically addressed the courts appellate power / Words congress used in 1870 Act are DIFFERENT than the words in the 1867 Act / McCartle didnt address the MERITS of the case whereas Klein does How could attempts to strip Jx backfire on Congress? Gay Marriage Example congress wants to NEVER allow gays to get SCOTUS to grant marriage rights / issue is exclusively with the states now / states are more amenable to allowing such rights / will eventually be lots of judicial recognition * Act of Congress did not deny Jx, but demanded they dismiss the cases (telling them how to decide cases v. denying jx over them)
[FEDERAL JURISDICTION] Federal Judiciary State Judiciary SCOTUS REVIEW OF STATE COURTS The Constitution sets out the types of cases the Supreme Court can review from the State courts. The most relevant section is Article III & the Judiciary Act of 1789. Article III US Constitution Federal judicial power extends to cases arising under this Constitution, the laws of the US, and Treaties made... 25 of Judiciary Act (45) Allows for Appellate JX in the SC of the highest judgment of a State court. One of 3 circumstances must exist for this to apply: (1) Where STATE ct strikes down FEDERAL law as unconstitutional Drawn into question the validity of fed treaty or statute...and the decision was against the validity (2) Where STATE ct upholds STATE law against a FEDERAL law Drawn into question the validity of state treaty or statute...and the decision is in favor of its validity This is what happened in Martin (3) When person is asserting FEDERAL right under STATE law and loses When construction/meaning of any fed provision is drawn into question and the person asserting the fed right loses This could be the case in Martin Martin v. Hunters Lessee (1816, 45) FACTS: Hunter claims property by VA forfeiture law / Martin claims property by federal law (peace treaty) / Martin loses at first but then SC reverses / VA doesnt listen (claims the SC cant control state SC decisions Sec. 25 appellate review is unconstitutional) to SC ruling and the case goes back to the SC. VA court did not think there was a conflict between the peace treaty and the VA statute, and that they get the final word on the meaning of the treaty. ISSUE: Whether 25 of Judiciary Act of 1789 is constitutional / main issue concerns the supremacy of federal law & Supreme Court determinations HOLDING: 25 of Judiciary Act of 1789 is constitutional / the appellate power of the Supreme Court does extend to cases arising in state courts (in this case the VA SC) Why SCOTUS can review state court decisions: Parody Argument (structural) If federal courts can review actions of State Legislators and executives, why cant they do the same with State courts? Separation of Powers if all branches are equal the analysis should stay the same Uniformity Argument (structural) SC must be able to review state decisions for uniformity purposes keep the circuit courts in line with one another (note: not always the case; SC doesnt take up every conflict case)

Lower Federal Courts Argument (textual) SC has to be able to review state ct decisions b/c congress is not required to make lower federal courts / because congress did create lower fed courts, it is clearly possible for federal review of state decisions / it makes sense, then, that SCOTUS can review much like lower fed cts can Enumerated Powers Argument (textual) Even though the federal government is one of limited enumerated powers (10th Amend) we shouldnt read this over narrowly.
Why did 25 of the Judiciary Act apply in this case? - Questioning the validity of a statute is in question (N/A here) - Questioning the validity of a state statute on the ground that it conflicts with the constitution and the state law wins (applies) - When you assert a right under the US Const or treaties or other federal law and that right is rejected (applies) RESULT: Both categories 2 and 3 apply in this case, NOT category 1 Why didnt Story come down more harshly on VA when they took the case the second time? Story wanted to stay politically neutral / decision relates to federal power in a broad sense, it wasnt directed toward the VA SC / Story assumes the VA court will fall in line, no need to be overly harsh Adequate & Independent State Grounds Doctrine concerns instances where STATE courts deal with interpreting FEDERAL laws Federal law issues resolved by State courts will NOT be reviewed by federal courts if the State court judgment rests on an Adequate and Independent State grounds. Adequacy if the procedural decision by a State court not to decide a federal issues is Adequate, the Supreme Court cant review the State court decision Independence a decision invalidating both State and Federal constitutional grounds cant be reviewed by the Supreme Court even if a bulk of the decision concerned the US Constitution. Michigan v. Long (1983, 52) FACTS: D arrested under a MI drug law / D wanted to exclude evidence under the 4th Amendment AND a MI constitutional provision / MI SC held that there was an illegal search and the evidence was gathered in a way that violated BOTH the US and MI constitutions / MI SC didnt make it clear whether they were relying on STATE or FEDERAL grounds in making their final decision RULE: In cases of ambiguity, SCOTUS will default (presumption) in favor of federal review UNLESS the state court expressly states it is relying on adequate and independent state law. [OConnor] What was the basis for the default rule? - Avoid advisory opinions (where outcome wouldnt change) - Respect the independence of State Courts (they have an opportunity to say what they are doing) What were the problems with the default rule? - Doesnt follow the rationale upon which it is based - AMAR (1) The presumption should disfavor federal review if SCOTUS really wanted to respect the independence of state court decisions (2) It is unclear what constitutes fairly and primarily / no bright line as to when a state court fairly and

primarily relies on state law rather than federal law Where could the US Supreme Court NOT have properly taken the case? (1) If the MI SC had decided the case based on the MI Constitution SCOTUS couldnt have questioned the MI SC reasoning, it was based solely on state law (2) If the MI SC had ruled on BOTH the MI and US Constitutions SCOTUS couldnt have questioned the US Constitution grounding b/c the MI Constitution grounding would still stand. The opinion would be purely advisory. What were Stevens DISSENT points? - Didnt see a problem with the MI SC over-reading the scope of federal rights (problem: uniformity / national interest in ensuing the US Constitution is read the same by all the states) - Case shouldnt be reviewed regardless of state or federal law because Long won! - As long as MI isnt cheating Long out of his 4th Amendment rights, we shouldnt be involved AMAR: But what about the rights of the people of Michigan? Cant just look at the rights of the defendant.
Were there any political aspects of the case? - The MI SC was trying to stay politically neutral (do not have to own the result) when they ambiguously referenced both state and federal laws This way the MI Supreme Court can blame the outcome on SCOTUS instead of taking the blame themselves after the case is over and done with MI SC thinking about elections / voters What if the State Court has rejected Long's interpretation of the 4th Amendment (upheld the search)? - Then SCOTUS COULD EASILY have taken the case / SCOTUS could have changed the outcome of the case by granting cert. / AND the D would have implicated a federal law which was denied JUSTICIABILITY The idea that a case is only properly bringable / hearable in federal court if certain criteria are met. Justiciability is the ability of a federal court to entertain the merits of a lawsuit in the first place. Policy Justifications - Article III limits the Federal Courts to only those cases presenting CASES & CONTROVERSARIES - Separation of Powers demands that the courts dont intrude on other branches and become legislatures - the Adversarial System demands that there be real clashes in opinions among interested parties that are actually affected - the courts dont want to be bogged down with sham disputes AMAR Criticisms - The doctrine is not rooted in any real authority (prudential limitations and not constitutional limitations). - Every time the court strikes a statue down as unconstitutional it steps on the other branch's toes - Public interest groups with funding/interest often dont have standing, while people with 1 penny claims and unskilled lawyers have standing. Doctrine Elements (1) Standing parties must show (a) injury in fact (b) but for causation and (c) redressability (2) Ripeness unripe cases are not true Cases and Controversies (C&C) (3) Mootness Art III requires a lack of mootness for C&C (note: $ cases are never moot) (4) Political Question There are some issues courts will just leave to congress to decide

Advisory Opinions Traditional View- Federal judiciary was not for the president to use in an advisory capacity, like all other departments (sec of state, interior, etc) Modern View - Prohibits true pieces of litigation from being filed in Fed court unless some preconditions are satisfied (no longer limited to situation where the president is seeking advice) Flast v. Cohen (1968, 60) RULE: Justiciability is a term of art expressing dual limitations placed on federal courts by the case and controversy doctrine (1) It limits the JX of federal courts to certain questions (see elements) (2) Ensures the Federal Courts wont intrude into other branches (issue advisory opinions) TYPES OF STANDING General standing addresses the who question. Parts of the doctrine is 'constitutionally mandated' (found in Art III) and others are 'prudentially mandated (subject to input or overruling by congress) Constitutional Requirements (Article III) (1) Injury in Fact either past or present injury (2) Causation Ps injury must have been caused by the D in a but for sense (3) Redressability an injunction or damages must remedy the Ps injury / otherwise out of luck Prudential Requirements (Congress/Judiciary) (1) Issue better resolved in Congress (e.g. 1 dollar tax imposed on everyone). (2) Third Party Standing general rule is that there cannot be third party standing in a suit (exceptions: citizen standing waived by Congress OR waiver by the court) Warth v. Seldin (1975, 62) FACTS: Ps challenge city's zoning and building approval processes as a violation of the 14th Amendment's equal protection clause. It has been intentionally maintained to prevent poor people from living in the city (class / race discrimination claim) HOLDING: SCOTUS holds that the Ps lack standing / no case and controversy (Ps specifically lose on causation under Art III) RULE: Article III U.S. Constitution - the asserted injury must be the consequence of the defendants actions [causation], or that prospective relief will remove the injury. Case or controversy requirement - must be shown to exist between the party bringing suit and the defendant party (harming party). "A party will not be granted standing in a case where they are asserting the rights of third parties" (must be some personal stake) Even though the Ps had some injury (they werent able to live in Penfield) they couldnt prove causation (but for) The injury caused by the lack of housing would exist EVEN absent the citys zoning policies they couldnt afford to live there. Even if the court ordered an injunction, Ps cant point to a low income project that would be built for them P himself must have suffered some injury (injury in fact) which is caused by the D and can be relieved by the court (redressability)
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Injury in fact + causation + redressability = STANDING Why couldnt the other plaintiffs bring suit? Prudential Barriers against Third Party Standing! 1. Builders who wanted to build low income housing Injury in Fact yes Causation no, wasnt a project in the first place (nothing at stake) Prudential 3rd party standing, cant assert rights of the poor Ps 2. Tax Payers in Neighboring Cities Injury in Fact yes, tax burden is higher b/c they absorb the poor people Causation maybe, but for the citys policies, maybe 1 poor P would have lived there Prudential 3rd party standing, cant assert rights of the poor Ps 3. City Residents wanting more Diversity Injury in Fact maybe, not able to live in a diverse environment Causation maybe, just have to show but for city, 1 poor P would live there Prudential 3rd party standing, cant assert rights of the poor Ps Note: the courts STANDING reasoning comes very close to reasoning on the MERITS (Amar) What was Brennans DISSENT about? - Felt the court was manipulating standing to avoid with class discrimination - At a minimum, the court should allow discovery before making a standing determination Conflicting Standing Cases Arlington Heights v. Metropolitan Housing, 1977 (70) - Similar factual situation to Warth BUT one of the Ps would have qualified for the project - Court does have to take up 14th amend claim on merits - No 3rd party standing problem b/c there was 1st party standing - Already was one P who would qualify for project but-for Arlington Heights actions. Simon v. Eastern KY (1973) // Allen v. Wright (1973) - Both very much like Warth: SC holds Ps lack standing - Injury in fact: yes BUT the injury has to run through intermediaries (causation) SCOTUS isnt so sure the intermediaries would do what P's think theyd do In Simon, even if IRS threatened to get rid of tax credits unless hospitals provided emergency care to the poor, the hospitals might not provide such care to the poor. In Allen, maybe the schools would still refuse to accept blacks - Court suggests that tax benefits dont change peoples behavior. - Decisions criticized as being result-oriented US v. SCRAP (1972) - P's argue there would be less littering if the ICC increased its rates - Case requires many causation assumptions (just like Simon) and the SCOTUS indulged them in this case (arbitrary decision) - SCOTUS therefore found adequate causation (and therefore standing) through the intermediary organization which is the opposite of Simon & Allen (contrasting decisions) - SCOTUS distinguishes this case from the Lujan and Sierra Club cases by stating that the plaintiff law students provided particularized allegations of harm (i.e. they used the land and would be affected by it getting littered) Associated General v. City of Jacksonville (1993) - P is a white bidder challenging an affirmative action plan / SCOTUS finds injury despite causation problems - Causation problem: even if the affirmative action program was removed, there is no guarantee that the P would get the contract
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- SCOTUS gets around causation problem by changing the injury it is the inability to compete for 100% of the spots (unequal competition) rather than not getting the contract NOTE: SCOUTS implicitly overrules Warth b/c the same could be said about the poor people Lujan Cases (1972-3) // Sierra Club v. Morton (1972) - Cases involve lack of specificity in allegation of injury or causation - Suing defendants for degrading the environment that s enjoy for recreation or professional purposes - Degrading environment counts as an injury - Problem is that plaintiffs werent specific enough that they used the environment in question (weak allegations) Note: they need to show which animals in which areas they are interested in studying Texas v. Lesage (1973) - White challenging affirmative action program - Court says there IS standing but NO damages: school would have made same decision anyway - Case is similar to Associated General: injury with no compensation Note: How can it be an injury if theres no compensation? Linda R.S. v. Richard D. (1972) - Only example where redressability is a problem - Discrimination against kids born out of wedlock / Mother of a child born out of wedlock wanted the DA to enforce the state's deadbeat father laws / Injury - loss of money in the form of child support - Even if Ct finds caused injury, all the state can do is thrown him in jail (and this wont redress , who requires money) Note: Amar thinks that threatening the D with jail could, in fact, redress the Ps $$$ requests. Perhaps the issue is one where courts cannot order prosecutors to prosecute (would violate separation of powers). However, judges can rectify an inequality by telling prosecutors not the prosecute (e.g. until you rectify this inequality, you cannot prosecute anybody). THIRD PARTY STANDING As a general rule, third party standing is NOT allowed. Third parties cant assert the rights of others, except in specific circumstances. Craig v. Boren (1976, 74) [standing OK to assert rights of third parties] FACTS: Alcohol vendors suing based on law that allows women 18-21 to buy alcohol but NOT men of the same age / vendors challenge under equal protection clause / by the time the case gets to SCOTUS the men are of age (mootness issues) / do the vendors have standing? HELD: Vendors do have third party standing, even though their claim on the merits really does concern the law as it relates to the young men ANALYSIS: Vendors had Article III standing they had injury in fact / causation / and redressability BUT did they have prudential standing asserting the rights of others (the young men). Why did the vendors have third party standing? - Prudential Standing is softer than Constitutional Standing - Vendors are being used as agents and therefore have a stake Court analyzes whether legislature would prefer both men and women to buy alcohol at 21 or to make the age 18. - Court has to place itself in the position of the legislature to determine what they intended when determining a remedy. Massachussetts v. EPA (2007, 75) FACTS: State brings suit against EPA because the EPA does not prosecute for the emission of four specific
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greenhouse gasses. The climate change was impacting their shorelines and reducing their shoreline (harm to property). HELD: In a 5-4 decision, the court holds that the plaintiffs have standing to sue the EPA for failing to prosecute for the emission of specific greenhouse gasses. - Not clear why the court decided as it did. Not clear if the court will rule this way in the future. - Court does not order the EPA to prosecute for the greenhouse gasses. It merely asks them to look into it in more detail. TAX PAYER & CITIZENSHIP STANDING Tax Payer Standing The general rule is that a P cant challenge government regulations that are unconstitutional simply because the P is a tax payer and therefore has a stake court says its too small of an interest Citizenship Standing Courts have been reluctant to uphold congressional provisions which create a right to sue for all citizens when they dont have any other injury in fact or standing in a case NOTE: congress can ALWAYS confer standing by creating actionable injuries but they just cant go too far past removing prudential barriers Establishment Clause Exception: Government cannot give money to religious organizations. However, property can be given. Also, the executive branch, but not the legislative branch, can make discretionary decisions to perform religious spending. Flask v. Cohen (77, 1968) HELD: The Establishment Clause is a special provision that is designed to limit how the government spends its money / Establishment Clause one exception; religious spending IS actionable Amar Questionable reasoning by court because other provisions that have similar restrictions are not treated this way. Exception carved out in Flask is SIGNIFICANTLY narrowed by later holdings Valley Forge Fed program that gave land to a religious college was OK / court rejected tax payer standing argument (Flask) saying the giving property is different than spending tax payer dollars Hein v. Freedom From Religion Foundation Tax payers challenge Bushs religious fundraising events / court says its OK and says that executive discretion is different than congressional directive and therefore it wasnt the tax payers money Amar Pine doenst even try to link reasoning to establishment clause values / further narrowing of Flask holding Est. Clause is no longer a real limitation Arizona Christian Schools v. Winn - Taxpayers dont have standing to challenge tax credits given to religious organizations.
Lujan v. Defenders of Wildlife (1992, 76) FACTS: Ps challenge Bushs interpretation of a Wildlife Protection Act / Bush didnt think that it applied overseas / Ps claimed that it did / example of a congressional CITIZEN SUIT provision HELD: Congress citizen suit provision was unconstitutional because it attempted to circumvent Article III standing rules / the Ps had not suffered any injury in fact and therefore couldnt bring suit.
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Why was there no Injury? - It was too abstract and was not individualized / and ideological interest (dont harm animals) wasnt good enough for the court, no matter how strongly alleged.
Limiting Citizenship Based Standing - Separation of Powers Concerns? - Courts dont want to hear cases like this because Article III (standing) would end up swallowing parts of Article II (president takes care clause) It is the presidents responsibility, and not the courts, to take care that the laws are not violated except when the order is needed to preserve the rights of someone. Why is Lujan different than Trafficante? - Court says that in Trafficante the Ps had ACTUAL injury (congress made it injury for a white to be deprived of the opportunity to live in a diverse community) and in Lujan there was NO actual injury Amar citizenship suit provisions are ok IF congress creates actionable injury / congress cant override Article III injury in fact requirements Federal Election Commission v. Akins (1998, 87) FACTS: Political groups are supposed to disclose specific information to the FEC for regulation purpose / Ps sue the FEC in an attempt to get them to regulate more stringently and do their jobs. HELD: Ps had standing to the extent they were being deprived of information that greater FEC enforcement would allow them to receive How is FEC different from Lujan? - Very difficult (but possible) to distinguish the two cases. - Although congress created a right of the people to political info in FEC, this right is NOT an injury in fact / court could have made similar arguments in Lujan: people have a right to healthy wildlife reg. Raines v. Byrd (1997, 81) [Line Item Veto Act]
FACTS: A congressman challenges the line item veto act which allows the president to remove certain parts of a bill, opposed to approving or rejecting the bill in full
HELD: The Congressman did NOT have standing to sue RULE: Political injury is distinguishable from personal injury and will not serve as a basis for standing / although the Ps vote may be impacted, his person was not injured by the Act How is Byrd different than Powell? - Powell was excluded from his actual seat (wages, job) whereas Byrd was not able to allege similar personal injuries - Even if Powell got wages and just no voting rights, the lack of voting rights associated with a job is an injury whereas the loss of prestige in Byrd is not an injury. How is Byrd different than Coleman v. Miller? - Miller involved a majority of state senators suing collectively (functioned like an institution) b/c the governor had reported to DC that the senate had voted in favor of a bill they actually defeated Amar difficult to distinguish the two cases and SCOTUS should really just overturn Miller How is Byrd different than Clinton?
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- In Clinton it was a CITY that sued over the line item veto act (they were deprived of federal funds due to the presidents line item veto power) / the city DID have standing because it has suffered personal injury in fact STANDING GENEARLLY Mootness Article III demands that cases not be moot / there must be a live case or controversy / suits for damages ($) are NEVER moot Amar Criticism the constitution makes things hard so why do we make this exception in the face of Article III? Other aspects of standing dont have similar exceptions so why mootness? Capable of Repetition, yet Evading Review Exception to the requirement against mootness / courts hear otherwise moot cases ONLY because, due to logistical time constraints, the case couldnt make it to the court before the issue went moot. Court doesnt want the practical reality of litigation prevent a case from being heard / Example: abortion cases (only last for 9 months) Class Actions these cases do not need this exception to the mootness requirement / even if the lead P becomes moot, there are other class members who have live claims Defunis v. Odegaard (1974, 89) FACTS: P was denied admission at UW law school and sued under the equal protection clause for an admission quota situation / by the time the case got to SCOTUS the P had been admitted to the school and was about to graduate HELD: case is moot - the Ps case did not fall into the capable of repetition yet evading review exception to the mootness requirement and therefore didnt have standing Why didnt the case fall within the exception of capable of repetition yet evading review? - The case could not recur as to the P because he would never have to apply to law school again
Ripeness Presents the flipside temporal problem that mootness encompasses: a case thats moot is no longer appropriate for judicial resolution a case thats unripe does not present a meaningful conflict appropriate for judicial resolution. Amar mootness and ripeness are two sides of the same temporal coin Note: suits for damages ($) are never unripe Injunctive Relief typical situation where ripeness will be a big factor What makes a case unripe? (1) Uncertainty about whether a P will violate a law EX: either I stop my reproductive rights OR I go to jail (2) Uncertainty about whether a State will prosecute a P for violating a law Poe v. Ulman no chance the State would prosecute the P under an ancient law (3) Uncertainty concerning other future occurrences City of Los Angeles v. Lyons (1983, 95) FACTS: P suing city over a police chokehold policy allowing cops to use maneuver on citizens. P endured a chokehold. P wants an injunction against the LAPD barring them from using the chokehold move HELD: Ps case was unripe the likelihood the P, himself, would be choked again was too small so the
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case wasnt ripe (no case or controversy as to the P) / P still got damages RULE: the issue of ripeness must be evaluated on a case by case basis / the P must be personally affected by the outcome of a judicial decision / P not likely to be repeat victim Why didnt the court award the injunction? - too coercive a ruling / wasnt direct enough damage to the P Why not find a capable of repetition yet evading review exception here? - only applies to mootness, not ripeness - Amar: same arguments can be made here / also class action possibility n/a in this case Problems with only awarding damages?
- allows the city of LA to just buy their way around the constitution
DISSENT: Effectively prevents ever getting an injunction against LAPDs potentially unconst. practice P has a damages claim which is always judiciable!! *Court is basically setting up a toll system for violating the Constitution (you can break the law, but you just have to pay when you do buy your way out). *An injunction would make non-compliance contempt of court making the consequences a lot greater than damages Other ripeness cases Younger v. Harris Syndicalism law that prevents communism is not ripe if you haven't been prosecuted [doesn't even matter that their friend is being prosecuted] Cannot challenge anti-birth control law because it was never enforced. If others had been prosecuted, then law could be challenged. AMAR: Unsatisfactorily conclusion because no way to contest the law before taking the risk of being punished if they are wrong on the constitutional issue. Law created against political activity. Plaintiffs that want to engage in political activity claim do not have a ripe claim because not clear they are doing something that implicated the law. But if one is being prosecuted because of the political activity that claim is ripe. Law requiring teachers who are part of subversive groups to be discharged is ripe Adler is a facial challenge--law is unconstitutional. Mitchell is an as applied challenge--law cannot be applied to you as consistent to constitution Perhaps more concreteness is necessary when challenging it as applied to you.
Poe v. Ullman
Mitchell
Adler
Political Question Some disputes are better suited for resolution by the political branches of government / determined before the court reaches the merits of a case / aspects of both prudential (judicial discretion) and constitutional (text) considerations Possible Types of Review Non-Justiciable court punts to political branches Justiciable political question is reviewed de novo Middle Ground justiciable but court is highly deferential to political question (rational basis) Baker v. Carr (1962, 102) FACTS: Ps sue over a reapportionment law that created districts based on geography rather than
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population, the affect would be to diminish the votes of big cities / D thought the court couldnt hear the case because it fell with the political question doctrine HELD: the court did NOT find any political question doctrine concerns / the reapportionment law violated the equal protection of states to draw districts this way TEST: Political Question Factors 1. Textually Demonstrated Commitment to Another Body Is power given to a body in the constitution? 2. No Law to Apply Is there a judicially discoverable standard? 3. Law Cannot Translate to Doctrine Even if a legal right exists, can the court explain a doctrinal ground its ruling? Can the court offer an objective rationale? 4. Political Embarrassment If the court got involved, would it result in political damage / lessen gov credibility? Powell v. McCormack (1969, 104) FACTS: P elected to House but was not permitted to take his seat / House passed a resolution to preclude him from doing so after they found out he had illegally diverted funds / gov argued the court couldnt hear case because it fell under the political question doctrine HELD: no political question and therefore the case was judiciable / court held that congress was acting too broadly / court rejects the govs textually demonstrable power argument under Article I Section V Why couldnt congress remove the P under Art I Sec V? - qualifications language apply to a representatives age, citizenship, residence, etc. Here the House voted on more subjective characteristics and they were out of line Nixon v. United States (1993, 107) FACTS: P was a judge who was impeached / P claims his trial was not by the full senate (it was only by a committee) and therefore the impeachment is not valid / P claims the case falls under the political question doctrine HELD: case falls under the political question doctrine so the court cant hear it / as long as the senate said he had a trial, the court was satisfied Did the Court get to the merits? - Even though it was held nonjusticiable, the court seemed to discuss the merits / Amar thinks the case may have been justiciable but that the court just granted the senate lots of deference Slippery Slope Concerns? - Souters DISSENT points out that, if the case really is nonjusticiable b/c it falls under the political question doctrine, then the court would have to accept a coin toss from the senate for impeaching members Goldwater v. Carter (1979, 112) FACTS: President breached a treaty with Taiwan / a senator sued claiming the president couldnt do that / president argued the case was nonjusticiable HELD: case falls under the political question doctrine b/c it involved the president and a foreign nation / it wasnt justiciable (Note: NO majority opinion)
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Can Senators sue the President? - Probably not / harm inflicted is too remote and attenuated (no standing) / also case wouldnt be ripe yet b/c the senate would have to first vote, otherwise its not clear if they are really upset Can Senators waive rights of SOP? - Unclear b/c congress really belongs to the people Bush v. Gore (2000)
AMAR: courts should stay out of picking the President because the President picks justices the case could have easily been nonjusticiable under the political question doctrine / Amar says this is why no justices stepped down during Bushs 1st term because of taint.
[THE SCOPE OF FEDERAL / NATIONAL POWER] Federal Government State Government Enumerated powers Federal government can only exercise powers that are given to it, and none that are not given to it 10th AMENDMENT The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. Powers not given to federal government are reserved to the states and the people respectively Major clashes occur when the federal government passes laws which affect how state governments function. There are several important questions that need to be asked when these situations occur. Doctrinal Questions 1. Is Congress Acting Within its Enumerated Authority? - federal gov is one of limited enumerated powers (see 10th amend) 2. Are States Limited When Congress Hasnt Acted But Could? - see preemption doctrine / certain realms of regulation are reserved to congress, not states 3. What Happens When One Level of Government Regulates Another? - minimum wage laws, state regulations of federal business 4. Does the Government Enjoy Immunities From Private Suits? - see doctrine of sovereign immunity
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GOVERNMENT REGULATION McCulloch v. Maryland (1819, 134) FACTS: Congress creates the countrys first national bank to help the nation deal with fiscal issues MD passes law requiring Bank of US to pay state tax, which Bank refused to pay ISSUES: Does Congress have the power to establish a national bank? [YES] Can state regulate a federal entity? [NO] HELD: Although the federal government is one of limited enumerated powers, these powers are not to be narrowly defined. - Purposive: Congress has inherent implementation powers so long as a law: (1) has a legitimate end; and (2) the means adapted are in furtherance of that end / court looks to congressional intent in upholding the law Bank is helpful in implementing and facilitating enumerated powers - Textualism: Necessary and Proper / General Welfare [Art. I, 8] N&P Clause adds to/supports enumerated powers, doesnt act as a limit *N&P Clause is listed in section w/ other powers granted to Congress *N&P Clause not phrased as a restriction *The word necessary does not always mean an indispensable requirement. The Constitution itself uses modifiers to necessary (e.g. absolutely necessary) when something is an indispensable requirement. - Structural: Congress should have broad implementation powers because the framers could not have possibly anticipated every power congress would need to effectively run the country - Pragmatism: If you give someone a job, you should give them the power to execute that job. - Populist: In considering this question, then, we must never forget it is a constitution we are expounding. One cannot construe Constitution narrowly because it should be readable and understandable by the public. State cannot regulate a federal entity, but federal government can regulate states Taxation without representation: States represented in Congress; federal taxpayers not represented w/in state legislatures States cant impose direct regulatory limits on federal activities -States can impose non-discriminatory regulations on everyone, but cant single-out Feds. General tax laws, such as normal tax to property are fine per McCulloch. However, since this decision the law has precluded states from taxing federal entities. -Hard to determine when regulations of states apply to federal entities. State cannot require a federal mail carrier to have a license from their state. But federal mail carriers must comply with state speed limits. Also, states can tax income of federal employees. Power to tax involves the power to destroy If entity taxes something, it can change the incentives and operations has control If taxation power was allowed here, difficult to draw the line of where it couldnt tax
Where does the Constitution say Congress can do this?
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United States v. Comstock (2011, Supplement 4) FACTS: Plaintiff was 6 days away from completing 37 month prison term for child pornography when he was civilly committed by the U.S. Attorney General for being a sexually violent predator. Law allowing for the civil commitment was challenged on grounds of it being unconstitutional under the Necessary and Proper Clause. HELD: Congress has the authority under the Necessary and Proper Clause to create the civil commitment law. The court bases this conclusion on five considerations. The five considerations are as follows: First, the Necessary and Proper Clause grants Congress broad power to enact laws that are "rationally related" and "reasonably adapted" to executing the other enumerated powers. Second, the statute at issue "constitutes a modest addition" to related statutes that have existed for many decades. Third, the statute in question reasonably extends longstanding policy. Fourth, the statute properly accounts for state interests, by ending the federal government's role "with respect to an individual covered by the statute" whenever a state requests. Fifth, the statute is narrowly tailored to only address the legitimate federal interest. US Term Limits v. Thornton (1995, 144) FACTS: State-imposed regulations regarding candidate electoral qualifications Arkansas tried to regulate the term limits for their elected representatives HELD: States cannot regulate their federal representatives / states dont own their congressmen Why dont states have this power? - 10th Amendment didnt give states the power to impose qualifications - Constitution has specific qualifications for Congress = floor and ceiling on what is required States cannot impose or decrease qualifications as they see fit - See McCulloch: part cant control the whole / majority believes that the state doesnt own their senators senators are part of the whole fed gov, who happen to be from specific states Who do federal legislators work for? [US REPRESENTATIVES REPRESENT ENTIRE COUNTRY] - Articles of Confederation = congressmen paid by the state / recallable by the states (states only) - Constitution = congressmen paid by federal treasury / not recallable (represent all) DORMANT COMMERCE CLAUSE What is the dormant commerce clause?(State of law today): State and local laws may not place an undue burden on interstate commerce. Balancing Test. Do burdens outweigh benefits? Law needs to be necessary to achieve an important government purpose. Unexercised (i.e., dormant) federal power is left to the states, as long as states do not act in overtly protectionist way [protectionist = protecting local producers barrier to interstate commerce] Situations where Congress has been given a power but Congress has not exercised it where congress could act but did not NOTE: few dormant commerce clause issues today Federal government has grown so large it has passed virtually all types of laws Exclusivity vs. Concurrency
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Exclusivity Congress HAS power and the states LACK power [federal > state] Concurrency Congress HAS power and the states also HAVE power (ex: taxation) [no conflict] *States just must not act inconsistently with federal government Constitutional vs. Statutory Preemption Constitutional Preemption Occurs when Congress has NOT acted upon a constitutionally vested power State is preempted simply because Congress has the power even though they havent exercised it Statutory Preemption Occurs when congress ACTS by passing a statute (not a dormant issue) Federal statute always wins over a state statute (e.g., Gibbons = statutory preemption) Bibbs v. Navajo Freight Lines FACTS: Illinois law required all trucks to use curved mud guards. No evidence that curved mudguards are beneficial. HELD: Law is unconstitutional because the benefits of using curved mudguards are negligible while the burden of changing mudguards to drive through Illinois is significant. Gibbons v. Ogden (1824, 148) FACTS: Ogden sued to enforce his monopoly on ferry boats in NY b/c the NY legislature gave him this right Gibbons argues the NY law granting Ogden the monopoly is unconstitutional ISSUE: Can the NY legislature regulate these waterways OR does US Constitution preempt it? HELD: Federal law trumps state law. Thus, the NY legislation is unconstitutional What is commerce and what does among the several states mean? - Court broadly defines commerce to include all aspects of a business transaction and not just the transaction itself. - Commerce is among the several states if it affects or concerns more than one state. - Things affect more than one state even if the activity occurs in only one state. Why wasnt this a dormant clause issue? - Congress HAD acted: they passed a federal law regulating the waterway - Where Congress actively legislates something w/in its power, it takes power from states - Court leans towards EXCLUSIVITY model for interstate commerce. - Cf. Taxation which is a CONCURRENT federal power. - BUT because Congress had actively regulated the issue, there was no dormant clause issue. Thus, no need to determine whether interstate commerce is an exclusive or concurrent federal power. Johnsons Concurrence: Supports an exclusivity model. Johnson was a heavy states rights activist. He likely supported a exclusivity model because doing so would force the court to define commerce among the several states very narrowly. Wilson v. Black Creek (1829, 157)
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FACTS: State authorizes the construction of a dam Congress could have regulated the waterway if it wanted to [perfect dormant commerce clause situation] HELD: Just because Congress COULD have regulated doesnt mean the states CANT regulate - Because Congress had not regulated the issue, this case fell within the dormant commerce clause. State has concurrent power to regulate interstate commerce. Cooley v. Port of Philadelphia (1851, 158) FACTS: PA statute required vessels leaving their ports to hire local pilots Cooley refused to accept a local pilot, so PA sues Cooley HELD: SCOTUS upholds state law, despite dormant commerce clause (weird holding) EXCEPTION to dormant commerce clause - Protectionist state law OK b/c Congress has affirmatively allowed type of protectionist law through passage of federal legislation permitting future protectionist laws of the type. - Not a dormant commerce clause case because Congress allowed this type of law. Any exclusivity / concurrency problems? [YES] - If exclusivity, Congress has the power to regulate the waterways (broad) - If concurrency, the state law looks protectionist and may fail there Protectionist State Laws & Dormant Issues Laws that on their face tend to discriminate against out of staters will be invalidated regardless of whether Congress has acted or not [dormant commerce clause not an issue b/c the law itself is invalid]. - Sovereign Exception: But state can favor buying from local businesses/etc. EX: CA law disallows selling out-of-state milk in Sac / favors local milk producers over others / discourages interstate commerce / invalid even if Congress hasnt acted in this area. But state can choose to buy from local milk producers over out of state producers. COMMERCE CLAUSE [Art. I, 8, Cl. 3]
The Congress shall have power to . . . regulate commerce with foreign nations, and among the several states
What is the commerce clause? Congress has power to regulate commerce among the several states according to Article I *Basis for a huge number of federal laws Commerce Categories [from Lopez] 1. Channels Roadways, air, maritime are all channels of commerce 2. Persons/Things [instrumentalities, persons, or things of interstate commerce] Goods and people crossing state lines 3. Activities [activities that have a substantially effect or relate to interstate commerce] If economic activity being regulated, then need substantial effect to interstate commerce. Congress cannot regulate non-economic activity by finding that the cumulative impact has an
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economic effect (Morrison). Historical Developments 1800 1875 - Majority of case law is around this time period - SCOTUS goes from an exclusivity model to a concurrency model 1875 New Deal (1937ish) - SCOTUS develops ungenerous attitude toward federal power [vast restriction of federal power] - SCOTUS uses binary oppositions [this analysis ends during New Deal era] Manufacture vs. Distribution distribution is commerce but manufacture is local Regulation vs. Prohibition you cant do something vs. you have to do it a certain way Product vs. Process [bad food is bad product vs. child labor is just bad process] - States have lots of power and the economy starts to fail (depression) / need federal regulation - See Schechter Poultry (below) for pre-New Deal, strict commerce clause philosophy New Deal Era (1937-1995) - SCOTUS gives broad power to Congress to regulate commerce If something crosses state lines it can be regulated no matter what - Effects test was relaxed Could be attenuated (farther removed) than before for Congressional regulation to be permissible - Aggregate effects are allowed as a basis for Congressional regulation [Effects Test] Small effects of a law or policy in aggregated affect national commerce (Wickard; Heart of Atlanta; Katzenbach) New Federalism (1995-today) - New test: need to ask if it is an economic activity being regulated in order to employ aggregation / otherwise the effects of a policy cannot be aggregated (restriction on fed power) - Morrison, Lopez, Raich fall under this era of testing (Congress cannot regulate; restricts pwr.) Schechter Poultry v. US (1935) FACTS: National Industrial Recovery Act of 1933 = min. wage; max. hours; unfair competition; union protection NIRA gave President/Executive unprecedented powers; company challenged constitutionality HELD: SCOTUS refuses to expand Presidents powers, despite Depression; rejects effects test NOT interstate b/c bought and sold mostly in intrastate Congress couldnt legislate, even if indirect effects were felt in intrastate commerce [STRICT COMMERCE CLAUSE APPROACH] Wickard v. Filburn (1942, 169) FACTS: Farmer didnt follow federal quota re wheat production [Agricultural Adjustment Act of 1938] Farmer argued he didnt sell his extra wheat, but personally consumed it so it wasnt commerce HELD: Congress still had the power to regulate his wheat consumption b/c it effects interstate wheat market Aggregation of effect if every farmer did this, there would be a large effect on wheat commerce Wickard = 'high water mark' for federal regulatory leeway under the Commerce Clause [very broad] *Under the aggregation theory, virtually anything can be regulated by Congress Was SCOTUS overly broad in interpreting Commerce Clause? - According to Amar, YES. SCOTUS could have argued that his wheat was fed to cows which were in turn sold
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* SCOTUS couldve used narrower, more economic analysis Heart of Atlanta v. US (1964, 172) [Regulating non-economic activity through Commerce Power] FACTS: Locally operated hotel refused to serve blacks in violation of the Civil Rights Act ( Com. Cl. based) Hotel argued it was intrastate, local activity Congress couldnt regulate it under Commerce Clause HELD: Congress has power to regulate this activity under the Commerce Clause because segregation and racism have an effect on interstate travel (i.e., interstate commerce) SCOTUS must defer to Congress determination that an activity affects commerce when there is any rational basis for such a determination [RATIONAL BASIS TEST] What was the affect on commerce? - Congress thought that the discriminatory policies prevented people from traveling to the area and therefore affected interstate commerce *As long as activity affects interstate commerce in some way, Congress can regulate it - If blacks cant get place to stay, they are less likely to travel affects interstate commerce What about enumerated powers? [almost limitless expansion?] - Heart seemingly guts enumerated powers doctrine / very broad application (Lopez changes this) Katzenbach v. McClung (1964, 178) FACTS: Restaurant discriminated against black customers INTERSTATE = located on state highway and near interstate highway; bought interstate food supplies HELD: Like in Heart of Atlanta, applies rational basis test [benefit of doubt given to Congress re real effects] *Not serving blacks affects interstate commerce (increases/decreases restaurants demand of food supply) US v. Lopez (1995, 179) [NEW FEDERALISM; CURRENT PERSPECTIVE ON COMMERCE CLAUSE] [REHNQUIST opinion] FACTS: convicted of violating Gun Free School Zone Act (crime to knowingly possess gun in school zone) Congress argued that the Act fell under the Commerce Clause *In aggregate, gun violence affects commerce (lower graduation rates, enrollment, etc.) HELD: Gun Free Act was invalid; no proximate cause of guns affecting the economy; connection too attenuated NOTE: there were no congressional findings pertaining to its economic and interstate effects (as opposed to the findings made for the Civil Rights Act) What is economic? - SCOTUS didnt establish a test for economic activity, BUT made it clear that aggregation rule would no longer be acceptable Congress must regulate only economic activities - NOTE: this is the FIRST case where the court invalidated congressional regulation since 1930s What can Congress regulate? 1] Channels of interstate commerce; 2] Instrumentalities of interstate commerce and persons or things in interstate commerce;
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3] Activities that have substantial effect on interstate commerce GSA wasnt properly limited to instances where gun had been a part of interstate commerce [too broad] TEST Whether valid effort to use Commerce Clause to regulate activities that affect interstate: 1] Whether the activity was non-economic as opposed to economic activity; 2] Jurisdictional element: whether gun had moved in interstate commerce; 3] Whether there had been Congressional findings of an economic link between guns and education; 4] How attenuated the link was between the regulated activity and interstate commerce DISSENT: [Breyer w/ Stevens, Souter, and Ginsburg] Commerce Clause includes power to regulate local activities that significantly affect interstate comm. - Presence of guns affect insurance rates which affect interstate commerce - Safer schools result in a more vibrant and productive interstate economy SCOTUS should consider not only individual act being regulated, but cumulative effect of similar acts Single case of gun possession VERSUS effect of all guns possessed in or near schools Rational basis test doesnt require proof of affect on interstate commerce, but just rational basis for it SCOTUS shouldnt abandon 60+ years of precedent! US v. Morrison (2000, 179) [REHNQUIST opinion] FACTS: was victim of gender-motivated violence and sued under the federal Violence Against Women Act HELD: Congress didnt have power to regulate gender motivated crimes b/c not an economic activity *Too attenuated for SCOTUS to uphold VAWA Congress can only aggregate the effects of a particular activity so long as that activity is economic HERE, activity wasnt economic aggregation didnt work SCOTUS invalidates law notwithstanding the fact that Congress used findings from testimony *Third prong of Lopez test (above) ignored? Traditionally, gender-motivated crimes = STATE LAW, federal law Morrison and Lopez DO NOT overturn previous cases - Activity regulated in both of these cases wasnt purely economic like the activities regulated in Katzenbach, Wickard, and Heart of Atlanta DISSENT: [Souter] - SCOTUS shouldnt police Congress - States have enough representation under the Constitution that laws like VAWA should be upheld if implemented by Congress [states protected by procedural and political safeguards] *Congress in best position to get testimony and consider interstate impact [rational basis] DISSENT: [Breyer] - Nation is knit-together almost all activity affects interstate commerce *Impossible for SCOTUS to develop meaningful tests without drawing arbitrary lines - EXAMPLE: factories (economic)/fireplaces (non-economic) = same pollutants should be treated the same. Lopez & Morrison - Findings issue: no findings in Lopez, lots of findings in Morrison Findings arent dispositive but they do help the court determine if something affects commerce or was intended to do so
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- SCOTUS doesnt disagree with Congress arguments just too attenuated - Lopez is a stand alone law UNLIKE Raich (see below) Gonzales v. Raich (2005, 192) [STEVENS opinion] FACTS: Congress passes law making it a crime to smoke or possess marijuana uses medical marijuana and therefore is not participating in the economic market (home grown) HELD: Intrastate production of a commodity sold in interstate commerce is economic activity and substantial effect can be based on cumulative/aggregate impact Marijuana is considered economic and therefore Congress can regulate it Definition of economic *Activities that involve consumption, distribution, and possession of commodities Single subject statute (Raich) vs. comprehensive legislation (Lopez) [Raich Lopez?] (p. 199) *In Lopez, Gun Free School Zone Act only has one subject *In Raich, Controlled Substance Act is lengthy, detailed; comprehensive regulatory framework s only attack one piece of it here, not entire law CONCURRENCE: [Scalia] Necessary and Proper Clause gives Congress power aside from Commerce Clause. *Cannot meaningfully regulate the sale or distribution of marijuana without managing its homegrown cultivation. DISSENT: [OConnor] Congress now has an incentive to regulate broadly b/c stand alone regulations are weaker (Lopez) than those clumped together with economic regulations (Raich) SCOTUS gives Congress drafting exercise (has to jump through hoops to get laws upheld) DISSENT: [Thomas] If congress can regulate this (home grown weed) they can regulate anything. *Effectively Congress would not be limited by the enumerated powers doctrine. *Wickard + Raich Both deal w/ local production and consumption of crop sold across state lines Wickard = legal crop; Raich = illegal crop Pierce County v. Guillan (2003, 207) FACTS: In order to get funding for unsafe roads, states had to conduct a study first States didnt want to follow law b/c if someone got hurt and they admitted unsafe conditions, they would be liable Congress allows states to a federal privilege to decline to disclose the information other than for the purposes of the federal program HELD: Congressional regulation is OK if its a regulation of a channel of commerce (roads) Was this economic activity? - NO; the immunization of reports is really a litigation activity - Dont compare with Morrison, Lopez, and Raich, it falls into a different category *Does not apply to the activities that effect interstate commerce, but the channels of interstate commerce category. Courts more differential here.
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Why not spending power case? - People thought this would be a huge spending power decision *Court didnt want to limit the Dole spending power test which is broad (see below) - Easy for SCOTUS to say Congress is regulating channels and not litigation because the issue directly involved roads (see Commerce Clause categories above, from Lopez) *About improving safety and channels of commerce
Commerce Clause Table Case Wickard Heart of Atlanta Lopez Morrison Raich Issue personal wheat consumption local discrimination by hotel Gun Free School Zone Act Gender discrimination Controlled Substances Act (home-grown marijuana) Held regulation OK aggregation of effects regulation OK rational basis inquiry regulation NOT OK econ args were too attenuated regulation NOT OK discrim. is not economic / can only aggregate if activity is economic to start regulation OK definition of economic: consumption, distribution, and possession of commodities
GENERAL FEDERAL POWERS The Taxing Power [Art. I, 8, Cl. 1] The Congress shall have power to lay and collect Taxes, Duties, Imposts and Excises . . . but all Duties, Imposts, and excises will be uniform throughout the United States The power to tax was one of the biggest problems with the Articles of Confederation. It is an inherently legislative power and courts demonstrate deference to congressional taxing. 16th Amendment = federal income tax power Uniformity Clause = federal taxes must be same anywhere in US (feds cant discriminate geographically) Sonzinsky v. US (1937, 193) [taxes as a regulatory tool] FACTS: sues government over the National Firearms Act which imposed a $200 tax on firearm dealers refused to pay the tax and argues Congress trying to regulate gun possession, not generate tax revenue HELD: SCOTUS upholds the tax b/c it was within the scope of congressional taxing power RULE: Congress can use tax to regulate as long as tax produces some meaningful revenue SCOTUS will not attempt to discern the hidden or secret motives of congressional taxation Was the tax too much of a regulation? - Every tax constitutes a regulation of some form (changes peoples incentives to buy, not to buy) *All congress needs is a rational basis and the court will defer NOTE: Similar to Katzenbach & Heart of Atlanta but NOT similar to McCulloch where court says they can look to motive US v. Ptasynski (1983, 195) (Uniformity Clause Case)
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FACTS: Congress imposes oil tax but exempts Alaskan oil sues alleging the tax violates the Uniformity Clause (re geographic uniformity) HELD: SCOTUS upholds the tax and doesnt read the uniformity clause literally Heightened/Strict Scrutiny Review (opposite of rational basis test for Uniform Taxes) *Court looks at what legislature did and insists on empirically strong justification Why is heightened scrutiny applied here? *Non-uniform tax raises the presumption of illegitimacy and the court will look into the motives behind the tax a bit closer than normal Why wasnt the tax invalid? - Alaska was still paying more taxes than the other states - Other states werent ganging up on Alaska (helping, not hurting Alaska) *Disuniformity burdening Alaska would likely not have been upheld. - SCOTUS says that Congress isnt prohibited from taking geographically isolated problems into account when exercising their taxing power How is Ptasynski different from Sozinsky? - Tax was uniform in Sozinsky but it wasnt uniform in Ptasynski The Spending Power [Art. 1, 8, Cl. 1] The Congress shall have the Power to . . . pay the Debts and provide for the common Defence and general Welfare of the United States Congress spending power is the flip side of congress taxing power. Courts are typically very deferential to the motivations and reasons behind congress spending power. US v. Butler (1936, 210) FACTS: Agriculture Adjustment Act allowed govt to pay off farmers to produce less crops than possible Issue concerns to what extent Congress can spend that money HELD: Congress can spend money for the general welfare even if such spending is in furtherance of objectives not expressly referred to in Article I (court endorses Hamiltons broad interpretation). *But still has to be consistent with the idea that the rights of states are not impugned (this second part is no longer valid). Hamilton vs. Madison? Hamiltonian View general welfare is broad Modern Position. As long as Congress spends for good of country and dont violate any other laws, its OK Madisonian View general welfare is narrow Congress must spend in furtherance of one of the enumerated powers, otherwise not ok Helvering v. Davis (1937, 215) HELD: The concept of general welfare is determined by Congress and not the States Sabri v. US (2004, 215)
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FACTS: Congress made it a crime for local officials to give/take a bribe if they were receiving federal funds charged with the crime and argues there must be some nexus b/t the bribery and the federal funding HELD: SCOTUS upholds the broad application of the general welfare clause Why uphold the law? - Even if the bribe took had nothing to do with the federally-funded program, the money is fungible *Bribed officials are untrustworthy stewards of fed funds South Dakota v. Dole (1987, 217) FACTS: Congress conditioned federal funds for highway repair if states agreed not to sell alcohol to minors under age 21 [conditional funding = states only get federal funds if] South Dakota challenged the law due to the conditional language used HELD: Congress can condition the receipt of funding so long as Congress is acting in furtherance of the general welfare TEST: Conditional spending is subject to 4 restrictions: 1] General Welfare Exercise of spending power must be in pursuit of general welfare Spending must further the general welfare 2] Clear Statement Rule Conditions must be open and unambiguous Congress must make it widely known what a state must do to get funding *Gives states a choice and leads to public transparency 3] Reasonable Relation Conditions must be rationally related to general welfare w/ plausible condition The condition must be reasonably related to the federal interest in a given area 4] Other Constitutional Provisions No independent constitutional problem w/ spending There must not be another independent constitutional bar to the condition *Never in the general welfare to do something unconstitutional Links to the takings clause? - Yes, both involve deferential tests that favor federal usages that promote the public good DISSENT [OConnor] Objects to the reasonable relation prong of the test Would have liked to strengthen the federal interest requirement when spending money Potential for limitless federal power The War Powers [in federalism (state/federal) context] US v. Curtiss-Wright (1936, 204) FACTS: Congress authorized President to embargo sale of arms to countries engaged in conflict with Chaco argues the resolution attempted an unconstitutional delegation of legislative power to the executive
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HELD: SCOTUS upheld the embargo as constitutional Federal government has inherent international powers, but enumerated domestic powers *Must be able to operate as a nation-state in the community of nations regardless of specific enumerated powers in the Constitution Implicit grant of all foreign policy powers to the federal government Do states have similar powers? - States never possessed international powers so the doctrine of limited enumerated powers (applied domestically) does not apply to external powers NOTE: inherent powers logic does not extend to the executive branch/President (see Steel Seizure Case)
Woods v. Cloyd Miller Co. (1948, 205) FACTS: Challenge to the Housing and Rental Act which regulated housing prices during war time Landlord violated the act by raising rent, despite WWII being over HELD: Congress has the power to pass the act under the war powers b/c rent control was related to the war RULE: War powers dont necessarily end with the cessation of physical hostilities so long as there is a traceable rationale between the war-related effect and the power being exercised War power extends to the effects of the war. Why not a Commerce Clause case? - In 1948 Congress wasnt sure if SCOTUS would uphold the Act under the Commerce Clause (due to recent restrictive holdings) *Today, it would be a Commerce Clause issue (rent = $) CONCURRENCE: [Jackson] - Narrow the test for war powers application *Under majoritys test, anything might be traced back to war b/c it has lasting effects *Like minority in Lopez, he is worried that this reasoning destroys the doctrine of limited enumerated powers *The majority identifies this as a concern, but decides to deal with this issue in the future The Treaty Powers Hierarchy of Authority [Supremacy Clause; Art. VI, Cl. 2] Constitution Fed statutes/treaties Fed exec agreements State law Supremacy Rules o Constitution prevails over federal statute (Marbury) o Constitution prevails over federal treaty (Reid v. Covert) o Federal statute prevails over state law (Martin v. Hunters Lessee) o Federal treaty prevails over state law (Hauenstein v. Lynham) o Executive agreements prevail over state law (Belmont; Pink)
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o Executive agreements fail when conflicted w/ fed statutes/treaties (even if executive agreement is later in time)
What if federal statute conflicts with federal treaty? o The one later in time prevails o Same rule as resolving two conflicting statutes o Treaties can replace statutes even though House of Representatives is cut out of process NOTE: if conflict between a federal statute and a treaty, whichever was passed LAST prevails *Same result when there is a conflict between two treaties Types of international agreements o Treaties; (Hauenstein) o Executive agreements (Belmont; Pink) Missouri v. Holland (1920, 222) FACTS: Missouri wants to prevent the US game warden form enforcing the Migratory Bird Treaty w/ Canada Congress passed it once and a District Court struck it down as violative of federalism President takes the idea and gets it passed via his treaty power ISSUE: How can Congress be said to violate the Constitution when it passes the bird regulation BUT when the president does it things are OK? HELD: SCOTUS upholds the federal treaty Federal treaty power is broader than Congress power to make federal statutes Federal treaty gave 10th Amendment basis to pass Congressional statute regulating Migratory Birds What is the difference between treaties and statutes? Statutes must be in pursuance of the Constitution Treaties valid under the Supremacy Clause whenever made under the authority of the Constitution CONSTITUTION > TREATIES Are treaties inferior to the constitution? - YES, although treaties may trump federal statues, they are not exceptions to the Constitution Reid v. Covert FACTS: President makes an executive agreement with Britain permitting the court martial of United State civilians who commit crimes in Great Britain. HELD: Executive agreement (or treaty, if it had been) unconstitutionally violated individual 5th amendment rights under the constitution invalid The Property Power [Art. IV, 3, Cl. 2] The Congress shall have power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State. Federal and state governments have broad powers regarding the regulation of all things w/in US territories Police power The police power is an inherent residual power that states have to regulate Police power is always a regulatory power
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Con Law I Outline Amar Spring 2012 The needful language in the property power is akin to the necessary language in McCulloch. Necessary could mean just something helpful. Thus, needful can be similarly interpreted.
Kleppe v. New Mexico (1976, 228) FACTS: NM challenges the Free-Roaming Horses Act Ranchers argue that b/c the horses were not federal property (they only happened to be on federal lands) the government couldnt regulate them Ranchers had permission to graze their cattle on federal land. NM law = ranchers had rounded the horses up on federal property b/c they were interfering with the grazing of their cattle. HELD: Property Clause allows the federal government to regulate all things on federal lands, even if the things themselves are not federal property Federal government can regulate federal properties any way it wants Amar: regardless of who owned them, they were having an effect on a federal property interest
[STATE SOVEREIGNTY & FEDERAL REGULATION] Federal Government State Government Previous section dealt with federalism issues / the relationship between the federal government and the state government with respect to regulations of the PEOPLE. This section concerns the federal government regulation STATE government. STATE IMMUNITY Main issue is whether states should be exempt from federal regulation / until 1976 constitutional attacks on federal regulations were rejected (court favored fed regulation over states objections) / National League of Cities was the first case to overturn a federal statute based on state immunity grounds National League of Cities v. Usery (1976, 237) FACTS: Federal minimum wage law imposed on state and local government employees Federal regulation of state government employees HELD: SCOTUS invalidated federal regulation [overruled Wirtz (and previous cases)] RULE: Federal govt cant limit the freedom of States to make decisions in areas that are traditional government functions [states have limited immunity from federal govt regulation] How is federalism (federal v. state) different from Lopez, Morrison, Reich, etc? - This case involves federal regulation of STATE employees, the other cases involve federal regulation of individual CITIZENS ( different federalism concerns) What is a traditional government function? - Difficult to define; government doesnt always do the same thing b/c tradition can change
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EXAMPLE: historically, states didnt regulate education, but today they definitely do - Very arbitrary rule ( overruled in Garcia) Garcia v. San Antonio Metropolitan Transit Authority (1985, 238) FACTS: Congress imposed a federal minimum wage law that applied to state and local government employees San Antonio Metro challenged the law (FLSA) claiming state immunity HELD: SCOTUS upheld the federal regulation and the state had to abide by the minimum wage [overturns National League of Cities b/c unworkable, arbitrary and court shouldnt get involved] RULE: When a law burdens everyone equally, it is less likely the court will invalidate it even if it applies to states (AKA the more generally applicable a law, the more it is likely to serve a valid goal) State government employees are subject to federal employment regulation b/c state = EMPLOYER *State is acting not in its sovereign capacity, but as an employer regulated as an employer What was wrong with the traditional government functions test? - There is nothing traditional about state government b/c it is constantly evolving *Too difficult to draw lines between traditional and non-traditional state activity - Inconsistent federalism principles b/c federalism is about state and federal interaction, not judicial boundary placing How are states protected in the political process? *States enjoy structural protections that serve as leverage over federal govt: (1) House elected by states people; (2) state governments draw Congressional districts; (3) electoral college; (4) US Senators chosen by state govts *Amar Criticisms: 2 senator guarantee has nothing to do with federal versus state power After 1960 state legislatures could no longer choose electors (17th Amendment) Indirect control over presidency is too far attenuated to amount to anything of substance Was the courts decision a good one? - YES; despite its reasoning problems / the law applied to EVERYONE equally - Also, there probably was procedural and structural safeguarding / the law was so monumental that it must have taken lots of support to pass it through congress DISSENT: [Rehnquist] - Criticizes majority for abandoning the balancing test approved in National League of Cities. - States he is confident the dissent position will eventually command support of the majority. New York v. US (1992, 246) FACTS: Congress enacts a radioactive waste statute that applies to how the states handle waste Take Title Provision = state is punished by forcing it to take title of waste if it doesnt create storage HELD: SCOTUS invalidates federal regulation on grounds of violating the 10th Amendment. [unconstitutional b/c it is too specific; doesnt apply equally to states and private parties] RULE: Commandeering violates federalism (commandeer = compel state govts to participate in Fed. program]
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[Congress cant tell the states HOW to regulate on behalf of the government] Majority arguments? - Articles of Confederation: replaced by Constitution / Feds can regulate people BUT NOT states - Legislative: Congress hadnt done something like this before; if it had the power, why hadnt it? - Structural: Constitution doesnt let the federal government push states around to this extent - Accountability: if state is forced to do this, who will the people hold accountable? *Federal govt isolates own liability by forcing states to be blamed for policies What was the problem with the take title provision? - Congress was telling the state how to be a state *It didnt regulate waste management (unlike Garcia that was state as an employer) *Nor did it just offer monetary incentives to states that regulated waste management - Traditional government function is to BE a government (National Legaue of Cities test would be satisfied here) What else could Congress have done? [ALTERNATIVES to this statute] - Commerce Clause: Regulate waste directly / nuclear waste is inherently economic / this way Congress could regulate Stanford like CA due to generality of the regulation (see Garcia) - Carrot approach: - Stick approach: If States want $$ they have to regulate a particular way (see Dole) If States dont regulate in a particular way, Congress will preempt them via the Supremacy Clause (state would have to deal with it however congress chose to do it)
What is the difference between commandeering (bad) and bribing or pre-empting (ok)? - Example of a new federalism situation - General policy is to leave the state laboratories alone so forcing them to act a certain way is the most evil of the three options *Amar: but the preemption option (by supremacy power) doesnt leave states alone at all - Commandeering is so harsh that it prevents states from forming any form of an identity at all NY VERSUS Garcia *NY: law doesnt regulate anything but state governments; targeted law [TOO SPECIFIC] *Garcia: law is general and regulates all employers Printz v. US (1997, 261) FACTS: Congress passed the Brady Gun Control Act to require states perform background checks to buy guns Act forced state and local law enforcement personnel to do the background checks States objected claiming the fed govt couldnt force them do to the background checks HELD: The background check portion of the Act was unconstitutional [the requirement was like commandeering in NY] Legislative vs. Executive vs. Judicial commandeering? - Federal government CANNOT commandeer a state executive or legislative branch NY Congress was telling the state legislature how to legislate Printz Congress was telling the state executive branch how to execute - Federal government CAN commandeer the state judiciary *State courts have to process federal causes of action if told to do so
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*State courts do the business of the federal courts *Courts dont really carve out identities like state legislatures and executive branches do DISSENT: [Stevens] - Majority compromises Separation of Powers *President should be able to regulate state sheriffs so background check provision should have been upheld *President is therefore cut out of the enforcement loop *NOTE: similar logic is expressly rejected in Morrison v. Olson [President cant control independent council] Other ways to enforce background check provision? - Regulate itself / use a federal agency to do the background checks, not state officials - Condition the receipt of federal funding / if you want $ then do the checks (see Dole) - BUT congress cant just say you have to do it (see NY) Garcia VERSUS New York VERSUS Printz How does OConnor (majority writer) distinguish the cases? - NY and Printz laws were not generally applicable b/c they singled out states - Garcia law was generally applicable b/c it applied to the state and private citizens How does Amar distinguish the cases? - Garcia overruled the National League of Cities traditional government functions test - BUT NY and Printz cases bring the traditional test back in a limited fashion Garcia state is acting as an employer NY / Printz state is acting as government does (regulating) / being a government that regulates is TRADITIONALLY a government function Reno v. Condon (2000, 271) FACTS: Fed law prevented state DMVs from disclosing the personal information of drivers without their consent State objected claiming the federal government couldnt limit them like this HELD: The DPPA does not require the states to regulate their own citizens. Neither does it require the South Carolina legislature to enact any laws or assist in the enforcement of federal statutes regulating private citizens. As the DPPA only restricts state government action, it cannot be said to commandeer state government in violation of the Tenth Amendment. Requiring a State not to do something is different from requiring a state to expend resources and do something.
Fed / State Regulation Table Case Nat. League of Cities Garcia New York Printz Reno Law Federal Minimum Wage Federal Minimum Wage Radioactive Waste Brady Gun Act / background check DMV Disclosure Holding Unconstitutional Constitutional Unconstitutional Unconstitutional Constitutional Scope General Application BUT traditional gov function test was applied here General Application (applied to citizens and the state) Specific Application (commandeering / take title provision) Specific Application Specific Application, but Constitutional
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ELEVENTH AMENDMENT The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State. The 11th Amendment immunizes states from lawsuits initiated by private citizens / it is one of the ONLY amendments Congress passed to directly REVERSE a SCOTUS decision (another ex: Dred Scott free blacks were not considered citizens by the Supreme Court so Congress passed the citizenship clause) *Clarifies Art. III, 2, Cl. 1 [re SCOTUS original jurisdiction] 11th Amendment Basic Rules (1) Individuals cant sue a state itself (but they can sue state officials) (2) Individuals cant receive backward-looking relief (only prospective/future compliance with fed law) a. Injunctive relief okay. (3) Individuals cant sue state agencies (but they can always sue local county agencies / officials) (4) Federal government can abrogate the 11th Amendment immunity only where Congress is acting under its power under the 14th Amendment. Can be WAIVED by federal statute that allows private individual to sue states for $$ damages [e.g., Fed. Tort Claims Act; 1983; Family & Med. Leave Act] (5) Only private entities are barred from suing states (but federal government can always sue states) (6) State can consent to suit. 11th Amendment is an affirmative defense that can be waived if not raised Chisholm v. Georgia (1793, 272) FACTS: South Carolina citizen sues the state of Georgia in a breach of contract re Revolutionary War debts files case in SCOTUS b/c Art III provides for original jx when the state is a party to a case * If case was today, would apply STATE law under Erie [under GA law, GA would win] HOLDING IS PROBLEMATIC: SCOTUS applied FEDERAL law rather than the STATE law diversity action (SC citizen vs. state of GA = SC citizen wins under federal CL) [Pre-Erie] RULE: Chisholm leads to passage of the 11th Amendment What does the 11th Amendment do? - Removes the basis on which this case got into federal jurisdiction in the first place: suits between a STATE and a CITIZEN from ANOTHER STATE Cannot sue a state in federal court, under diversity jurisdiction, unless the state consents NOTE: as written the 11th Amendment says nothing about when someone is in federal court suing a state (not on diversity) BUT on a federal question [see Hans v. Louisana] Hans v. Louisiana (1890, 272) FACTS: Louisiana citizen sues Louisiana (NOT like Chisolm) for violating Federal constitution ( F.Q.) argued that Louisiana was impairing the obligations under a contract (under Contract Clause) HELD: SCOTUS reads the 11th Amendment to NOT be about just diversity access to federal courts BUT about a principal of STATE IMMUNITY from lawsuits in federal court [state immunity in general] RULE: Federal courts CANNOT hear lawsuits from a CITIZEN against his OWN state
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[Sovereign immunity is a limitation on federal judicial power] Any problems? - Hans has the potential to give states too much power How to ensure states live up to constitutional obligations if cant be sued in fed court? EXCEPTIONS TO 11th AMENDMENT Legal Fiction [established in Ex Parte Young] Cities and counties are NOT considered the state for purposes of the 11th Amendment City OFFICIALS may be sued in their OFFICIAL capacity Ex Parte Young (1908, 273) FACTS: response to the Hans decision limiting individuals ability to sue a state RULE: If party sues a state official, they are not suing the state itself can get around the 11th Amendment [*Named party must be the individual responsible for enforcing policy, and NOT the state itself*] AMAR: Necessary FICTION to escape what would be an otherwise unacceptable sweep of state power Could Ex Parte Young engulf Hans? - YES; if you cant sue the state but you can sue AG or Governor, basically eliminate sov. imm. Limits to Ex Parte Young: Edelman v. Jordan (1974, 273) FACTS: sued IL state re disbursement of disability funds violated fed laws and 14th Amend. RULE: Limits the relief you can seek under the Ex Parte Young doctrine Can ONLY be forward looking (injunction); CANT be backward looking ($ damages) *Basically, you can ONLY sue a state official to get them to comply with a federal law or the Constitution but no damages for past wrongs EXAMPLE: LA Choke-Hold Case [City of Los Angeles v. Lyons] (not raised by prof) Involved BOTH injunction & damages - How could get damages if he sued the city? *Cities are NOT protected by the 11th Amendment AMAR: Party CAN sue the SF Police Dept. but you CANT sue the Highway Patrol Pennhurst Hospital v. Halderman (1984, 256) FACTS: sues for an injunction (forward-looking) against a state official (hospital admin) re state law ISSUE: Can federal courts award injunctions against state officials on the basis of state laws? HELD: SCOTUS applies 11th Amendment and does NOT extend Ex Parte Young fiction to this case [ loses and the state is not enjoined]; [11th bars relief against state officers on basis of state law]
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Why doesnt Ex Parte Young apply? - Policy behind Young is about protecting FEDERAL laws and not STATE laws *Doesnt apply here b/c the only issue in the federal court is the STATE law - SCOTUS doesnt want to intrude into state territory and tell them how to enforce their own laws *SCOTUS protects state sovereign immunity Seminole Tribe of Florida v. Florida (1996, 263) FACTS: Federal law authorized tribe to sue state in federal court (under Commerce Clause) to compel performance of negotiating in good faith brings suit under this federal provision; FL objects claiming sovereign immunity HELD: 11th Amendment prevents Congress from making a state suable in federal court here [Congress didnt have the power to strip FLs sovereign immunity in this instance] RULE: Congress cant strip states of their sovereign immunity under the guise of the Commerce Clause When CAN congress strip states of their immunity? - Look to the chain of passage of the following things: [reverse chronological order] Section V (14th Amendment) 11th Amendment Commerce Clause (etc) The only basis for doing so is under Section V powers (equal protection / due process) because it was passed before the 11th Amend, therefore $ possible - ASK: was the federal law passed under 5 of 14th Amendment? YES state immunity may be compromised in favor of $ damages & injunctions NO state sovereign immunity may only be compromised in favor of injunctions Garrett (2001, 258) FACTS: Nurse sues Alabama hospital claiming violations under the ADA for $ and injunction HELD: injunction is OK (see Young) BUT the damages are NOT OK [ADA was not passed under Section V and therefore the 11th Amendment prevails] AMAR: Although states are obligated to follow their own laws (see Garcia) the ONLY way to enforce them is through forward-looking prospective relief if the federal law did not come by way of Section V of the 14th Amendment TYPES OF IMMUNITIES *Official immunity: suing state official can get at state treasury $, but not personal $ of state official *Qualified immunity: Under 1983, govt officials are shielded from liability for violating fed. constitutional rights * must show (1) clear const. norm violated; and (2) reasonable official wouldnt have done harm *Absolute immunity: Cannot sue certain officials in their official capacity (e.g., President; Judges; Legislators) *Only applies to money damages (not injunctions against officials; see Linda R.S. v. Richard D.) [SCOPE OF STATE POWER] PREEMPTION DOCTRINE Supremacy Clause federal law is supreme over state law in cases of CONFLICT (see Gibbons v. Ogden) / courts always look to congressional intent in determining if a federal law was intended to preempt at state law General Rule if congress doesnt expressly state it intends to preempt, the court will rule in favor of the state in NOT finding preemption by a federal law (see Rice) where there is not a direct conflict Note state laws that regulate in a broad / liberal fashion are recent targets of the preemption doctrine
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Preemption Examples - federal regulation may be so PERVASIVE that there is no room for states to regulate - federal regulation may touch a field where there is a DOMINANT federal interest - a state regulation may be INCONSISTENT with the intent behind a federal regulation or act Gade v. National Solid Wastes (1992, 378) ISSUE: whether a state duel impact statute that protected workers and the general public was preempted by federal OSHA HELD: the federal law impliedly preempted the state law / court focuses on congressional intent o Express Preemption: Federal law explicitly states that the federal law is exclusive. o Implied Preemption: If federal law and state law are mutually exclusive, state law is preempted. If it is impossible to comply w/ both the State and Federal laws. State may set stricter environmental standards than the Federal law, unless prohibited. If state law impedes the achievement of a federal objective, federal law preempts state law. If Congress evidences a clear intent (based on legislative history) to preempt state law o Types of implied preemption? Field Preemption: the federal regulation is so pervasive that a reasonable inference is that congress intentionally left NO room for the states to regulate Conflict Preemption: compliance with both the federal and state laws is logically impossible in which case the federal law prevails (see Supremacy Clause) Guire v. American Honda (p. 389) FACTS: a state law attempted to place additional safety restrictions on airbag requirements / the federal law didnt have as many restrictions HELD: the state law concerning was PREEMPTED by the federal law / compliance with the federal requirements would lead to a violation of the state requirement so there was a direct CONFLICT SEPARATION OF POWERS Separation of Powers Questions = Executive vs. Legislative vs. Judicial (compare with) Federalism Questions = Federal vs. State SEPARATION OF POWERS The relationship between the three branches of government: legislative, judiciary and executive / the constitution forces an intersection of all three branches / institutionalized checks on one another Reciprocity of Forced Interaction - VP presides over the senate - President signs bills from the legislature - Senate approves Presidents nominations - President may recommend legislation ideas to congress Horizontal vs. Vertical Horizontal - divide authority on the same level (coordinate and coequal branches of the federal government)
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Vertical - divide authority between separate levels of government (state and federal powers) Ambiguity a largely positive thing / not knowing where one branchs power begins and anothers ends helps keep each branch accountable / ex: foreign affairs powers (congress & president) / the murkiness is healthy and courts dont always go out of their way to draw lines the constitution doesnt already have (usually a political question issue anyway) Modern Trends executive branch is now the most powerful / despite post 911 SCOTUS rulings limiting exec power, most SOP conflicts are between Congress and the Executive branches PRESIDENTS NATIONAL POLICY POWER The president has LOTS of power under the constitution BUT the exercise of some powers encroach upon powers of other branches of government / typical conflicts are between the president and congress *President has some inherent executive power, unlike Congress which has no inherent powers that are not stipulated in the Constitution. Treaties: Negotiated by the Pres. and effective when ratified by the Senate. Executive Agreements: Negotiated by the Pres. and effective when signed by the Pres. and the head of a foreign country. Do not need to be ratified by the Senate. General Presidential Powers Youngstown Sheet and Tube v. Sawyer (1952, 402) [STEEL SEIZURE CASE] FACTS: Truman seizes US steel plants and orders them to operate during a strike due to Korean War and the national need for steel products Truman cites national defense as his justification HELD (Black): The presidents seizure violated the separation of powers doctrine *Order wasnt authorized by congress (horizontal) and infringed on states (vertical) *President executes the law and does not make the law RULE: There are NO inherent domestic executive powers *President still has broad powers but they are limited at some point *President power, if any, must be based on the Constitution or an act of Congress Why did war powers argument fail? - Too attenuated / Commander-in-Chiefs powers are limited to battlefield operations - President is supposed to take care of existing laws NOT make new laws CONCURRENCE: [Douglas] - President DOES have inherent executive powers BUT cant use them to infringe on enumerated powers of OTHER branches of government (i.e. Congresss specific power over the purse) CONCURRENCE: [Jackson] - 3 categories of PRESIDENT and CONGRESS: clashes b/t 1. When president acts PURSUANT TO express or implied congressional authorization a. In this situation presidential authority is at its maximum and carries w/ it a strong presumption of constitutionality
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i. Presidential power drawn from own power and powers granted by Cong. 2. When president acts WITHOUT congressional approval a. In such situations, he may have concurrent powers w/ congress congressional silence may permit him to act i. Depends largely upon circumstances; case-by-case analysis b. Can rely on all powers he has 3. When president acts CONTRARY TO express or implied will of congress a. President power here is at its lowest and subject to highest degree of scrutiny i. *Youngstown = #3 (Congress said NO to President, but acted anyway) b. But hard to imply Congressional intent based on inaction (applies to all three). Hamdan v. Rumsfeld (2006, 407) HOLDING: (5-4) Presidents structure of military tribunals for terrorists at Gitmo violated limitations that Congress had previously placed on executive power *President CANNOT overstep limitations that Congress places on his powers International Relations Dames & Moore v. Regan (1981, 409) [international agreements power] FACTS: Carter makes deal to release Iranian hostages US companies sue Iran in the US and Iran assets in the US are seized until lawsuit ends As a condition of releasing the hostages, the US had to free the assets and move claim to Hague Carter complies and US companies now sue the USA HOLDING: SCOTUS upholds presidential power *IEEPA is Congress implied (not express) acceptance of presidents actions What Youngstown category? - Majority moves from 2 to 1 / no contrary legislative intent Congress and the president are one the same page - Could also do 2 to 3 / just because Congress didnt criticize doesnt mean it approves (maybe wanted to look strong in front of the national community) Medelln v. Texas (2008, 409) [treaty power] FACTS: Treaty gives foreign defendants a right to consult with their country. Texas fails to do this. International Court of Justice (ICJ) ruled that US violated treaty (international prisoners rights) State of Texas says the right was waived, but President tries to override waiver based on a treaty HOLDING: Treaty is NOT binding unless it is (1) self-executing (i.e. does not require further statutes to implement); or (2) Congress has enacted laws to implement it President can put political pressure on a state to follow treaty, but cant require it *Similar to a #3 category case per Court because if Congress wanted it they would have implemented statutes to enforce the treaty or made the treaty self-executing. *Non self-executing treaties are ratified with the understanding that it has no domestic effect of its own force. *Strong state interest to enforce own laws and procedures *President cant override state laws w/o proper Congressional approval War & National Defense [Art. I, 8, Cl. 11]: Only Congress has power to declare war; the President does not have explicit power
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President has broad powers as Commander-in-Chief to use troops in foreign countries.
The Prize Cases (1863, 414) FACTS: Lincoln declares a blockade of southern ports Union ship owners in South sue the government HOLDING: SCOTUS upholds the Presidents power RULE: President does NOT have the power to declare war (see Art. I), BUT the president DOES have the power to use the military against invasions and to suppress insurrections against the government Mora v. McNamara (1967, 415) HOLDING: SCOTUS refuses to discuss whether the Vietnam war was illegal b/c Congress had never officially declared war
Hamdi v. Rumsfeld (2006, 417) [OCONNOR] FACTS: President claims military tribunals involving no due process fall w/in military force powers that Congress gave him after 9/11 (broad military powers). President arrests and detains US citizen fighting for the Al Qaeda and detain him as a terrorist. HOLDING: Congresss act allowed the President to detain Hamdi during war time. * But Hamdi, as a US citizen had the due process right to contest his enemy combatant status in front of a neutral decision-maker. * Neutral decision-maker can be member of military, but cant be person who arrested or captured you. * Presumption in favor of the government is fine as long as presumption is rebuttable Probably a #2 or #3 case b/c Congress was pretty opposed to the military Tribunals RULE: How much process is due [Due Process] requires case-by-case weighing of PRIVATE interests (Hamdi) against the GOVERNMENTAL interests (Military Tribunals) ASK: 1] How much does the individual have at stake? 2] How much would more procedure enhance determination? How much are we getting by adding another layer of process? 3] How much does additional procedure cost? Non-Delegation Doctrine Congress CANNOT constitutionally delegate away its legislative power to other branches/agency of government Textual underpinning: derived from Art. I, 1 all legislative power herein granted shall be vested in a Congress of the United States Theoretical underpinning: all acts of govt should be traceable to particular body to which people conferred permission to make such decisions But Supreme Court is generally unwilling to find that Congress has delegated its power incorrectly to the
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President because the line is not clear. EXCEPTION Congress has power to vest authority in/authorize other branches to assist in implementing legislation: Amar mentions 2 complexities: 1. (1) Vested may not mean nondelegable a. If vesting means body in which power is granted cannot delegate authority (congress cant delegate law-making power) then president wouldnt be able to delegate authority to any actor w/n executive branch b. Ex: Executive authority vested by Constitution in President alone who then properly delegates to executive branch 2. (2) Power that has been delegated by the people cannot be delegated in a way that cannot be easily reclaimed a. Congress may not be able to reclaim power given to president i. Ex. President can fire his underlings (attorney general), but Congress cant fire President ii. Takes simple majority to empower the president, but 2/3 majority to get it back once delegated Line Item Veto (LIVA) Gives the president the power to cancel sections of any given bill if: 1. It will reduce the federal budget deficit; 2. It will not impair essential Government functions; 3. It will not harm national interest; and 4. President puts Congress on notice of the veto via a special message But Congress can override the presidents changes by a 2/3 veto. NOTE: declared UNCONSTITUTIONAL in Clinton Clinton v. City of NY (1998, 463) [STEVENS] FACTS: President used his line item veto power to eliminate funding for NY city Congressmen sued when NY lost out on the $ HOLDING: Presidential line item veto is unconstitutional Unconstitutional b/c it allows the President to rewrite duly passed legislation Art. I, 7 [Presentment Clause] permits executive veto of entire bill but does NOT grant President power to unilaterally amend portions of duly enacted statutes *President shouldnt be allowed to pick and choose *AMAR: I cant imagine a more silly interpretation *Cancellation under LIVA is merely choice not to spend, NOT an alteration of statute DISSENT: [Scalia] Congress can pass bills that say the president can spend from $0 to $X on a given project *Decision to decline to spend would be Constitutional and analytical equiv. of what LIVA allows Spending $0 = striking a spending provision DISSENT: [Breyer] {AMAR: Scalia + Breyer = economics background; most analysts agree w/ dissent} Congress could pass thousands of individual itemized spending laws that President could veto separately requiring that is impractical and LIVA solves that problem [efficiency argument] LEGISLATIVE POWER VS. PRESIDENTIAL POWER
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There are many instances where the legislature attempts to curtail or limit the presidents power / this is mainly due to a distrust of the executive branch by the legislature and can sometimes be motivated by politics as well / the court is placed in a difficult situation when dealing with these issues sometimes political question arises The Legislative Veto Allows one house of congress to veto a presidents veto [legislative distrust of executive branch] NOTE: declared UNCONSTITUTIONAL in Chadha INS v. Chadha (1983, 471) [Burger] FACTS: Congress gives Attorney General power to suspend deportations Legislative Veto Act gave Congress power to pass deportation order for specific person AND to overturn executive veto by majority vote in ONE House of Congress HOLDING: UNCONSTITUTIONAL b/c violates separation of powers for EITHER house of Congress to have the unilateral power to deport Legislative veto does NOT comport with: *Presentment clause; or [legislation must go to President before passed into law] *Bicameralism [passing by both houses] MAJORITY = formalistic approach w/ eye to preserving status quo defended by Amar *Legislative Veto has been placed in ~200 separate laws in past 50 years *Utilitarian incentive does not override constitutional authority Why would congress want a legislative veto? *Art. I requires that to pass a new law changing policy you need 1/2+ of H [+] 1/2+ of S (+) Pres *If ct wants pass law w/ language subject to substantial executive discretion they want to reserve a form of redress in case the executive actor exercises its authority improperly legislative veto lowering the standard Why does Breyer take issue with this? *What about the reverse? Allows Congress with simple majority to make or change law unto itself *Legislative veto places too much power in hands of the legislature b/c any attempt to undo what congress does requires passing a law that contravenes the majority CONCURRENCE: [Powell] Case shouldve been decided on narrower separation of powers grounds to not invalidate so many laws NOTES *CONGRESS CAN: Congress has power to regulate emigration and immigration Congress has duty to act generally and not target individuals *CONGRESS CANNOT: Bill of Attainder (punishes individual for who they are) [negative] *BUT, generous or lenient deviations giving individuals special dispensations [positive] *Invalidating legislative veto has limited real-world ramifications Alternative ways Congress can reign in Executive: *Sunset provisions (temporary instillation of power; expire after certain time period) *Pull funding of programs *Severability: Here, court chose to only remove the specific portion that was unconstitutional. Can portion of law that violates Constitution be removed while leaving rest intact? OR Is the power so intertwined with the law that the whole thing has to be invalidated
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Appointment, Discharge & Supervision Concerns over who is to oversee and supervise certain government officials in the context of presidential impeachment & internal investigations Morrison, Nixon, Jones president claims executive autonomy and secrecy weighed against disclosure Court rules MOSTLY in favor of disclosure / direct response to Watergate (Nixon) 1. Appointment Power a. Pres. appoints ambassadors, federal judges, and Officers of the U.S. b. Senate confirms. c. Congress may vest appointment of inferior officers in Pres., the heads of Depts, or lower federal courts. 1) Ex: Congress may vest appointment of independent counsel w/ federal court. d. Congress may not give itself or its officers the appointment power. 1) Ex: Congress creates a new agency and gives some appointment power to the Speaker of the House or the President Pro Tem of the Senate (its unconstitutional). 2. Removal Power a. Unless limited by statute, President may fire any executive branch officer. b. Congress may limit removal to good cause when independence from the Pres. is desirable. Independent Council Act Morrison v. Olson (1988, 479) BACKGROUND: Independent Council Act problems a. Separation of Powers Issues chief justice picks a panel of 3 lower judges to then agree and pick a prosecutor (Morrison, Star, etc). Applies to prosecutions against high ranking officials. ii. Prosecutor is probably aligned with the Chief Justices philosophy iii. Prosecutor has an UNLIMITED budget iv. Public wants indictments / a failure to indict is seen as a failure v. Prosecutor isnt investigating crimes, he is investigating individuals (maybe innocent) vi. Efficiency is not always the best thing (ex: Star was to investigate Whitewater, but also went ahead and investigated Lewinsky, 2 for 1) FACTS: Independent Counsel Act: US Solicitor General (Olson) accused of lying in front of Congress Morrison is independent counsel (IC) appointed to investigate Olson Olson argues IC Act unconstitutional b/c all executive powers are supposed to vested in the president and investigative powers are inherently executive ISSUE 1: Vesting Clause of Article II / executive power shall be vested in the president Olson argued that the independent council act took away the presidents power b/c he couldnt control executive prosecutory powers The investigator (Morrison) was really exercising executive powers but he wasnt under the presidents control HOLDING on issue 1: Rejects govts arguments: even though there is some interference w/ presidential prosecutorial authority, the IC Act does not unduly or impermissibly interfere w/ provisions of Art II 1. AMAR agrees: vesting authority balanced out b/c president retains power to pardon the target of the ICs investigation thus neutralizing her short of finding good cause for removal. But if IC appointed to prosecute President, he cant pardon himself. ISSUE 2: Appointments Clause of Art II: Olson argued that Morrison wasnt properly appointed by the President and therefore couldnt constitutionally investigate him a. NOTE: If Morrison was not an inferior officer then he would have to have been appointed by the president and confirmed by the Senate HOLDING on issue 2: Morrison was an inferior officer
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*Congress can direct someone other than the president to appoint inferior officers MAJORITY (Rehnquist) on issue 2: *Principal officer: appointed by the president and subject to Senate approval *Inferior: appointed by president alone, heads of department, judiciary Why is Morrison inferior? *Morrison clearly falls w/n inferior category b/c he is subject to removal by higher executive branch official AMARs response to Issue 2: Removability cannot be essence of inferiority b/c cabinet members are more easily removable than an IC even though cabinet members are quintessential example of members that are not removable Textual argument: Appointment Clause on its face does not provide any limitation on interbranch appointments HOWEVER: Congress CANNOT pass a law making it responsible for the removal of an appointed executive official DISSENT (Scalia): Inferior officer means subordinate officer and does not have anything to do with removability. Olson is not subordinate to another officer, and thus is not an inferior officer. Further, it does not matter how much the ICA reduces Presidential control because all executive power is vested in the President. NOTES Was the ICA unconstitutional? *SCOUTS didnt reach the constitutionality of the Independent Council Act Today, there probably arent 5 votes to reaffirm the decision PRESIDENTIAL IMMUNITIES Absolute immunity for all civil suits for damages for any actions that occur while in office. No immunity for actions that occur prior to the Presidents election into office. Executive privilege covers presidential papers and conversations. o But the privilege yields to other important governmental interests. US v. Nixon (1974, 491) FACTS: Leon Jowarski, special prosecutor appointed to replace Cox tries to subpoena Nixons Watergate tapes Grand jury indicts several high level executive branch members. Nixon is an unindicted co-conspirator Nixon claims he is immune from disclosure; special prosecutor disagrees; takes President to Court HOLDING: Neither doctrine of separation of powers nor the need for confidentiality of high level communications, w/o more, can sustain an absolute, unqualified presidential privilege of immunity from judicial process under all circumstances
PRESIDENT ARGUES: (1) Justiciability President claims ct has no jx to decide the matter b/c it involves dispute exclusively between two executive authorities (intrabranch dispute) and therefore should not be subject to judicial resolution (2) President cannot do his job well, if his staff are not free to discuss things with him without fear that it wont be confidential. MAJORITY response to (1): Doctrine of separation of powers does not preclude judicial review of executive claim of privilege
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MAJORITY response to (2): SCOTUS acknowledges presumptive privilege of confidentiality of presidential communications BUT is not convinced that advisors will not be candid b/c the ct will occasionally subpoena conversations for criminal prosecutions. RELIANCE on Burr: (Amar claims to be illogical) SCOTUS relies on Burr to justify holding that Nixon doesnt get executive privilege *Burr: FACTS: Burr is Defendant and needs documents from President Jefferson to defend himself HOLDING: SCOTUS makes Johnson turn the documents over / the president is not above the law AMAR: in Burr it was the DEFENDANT saying he needed the papers to defend himself In Nixon, the president had the option to not prosecute himself so it is NOT the same *Nixon turns Burr on its head because in Nixon the prosecutor wanted the evidence AMAR: Court should have made a narrower holding. For instance, a President who is an unindicted coconspirator waives the Presidential Immunity from disclosure in criminal prosecutions. Nixon VERSUS Morrison These cases involve some sort of prosecutor but the cases are very different in several respects: * There are problems with BOTH structures * NOTE: Nixon involves the investigation of the PRESIDENT; Morrison only involves the investigation of a high level official Issue Position at Issue Selection Method Removal Final Holding Nixon Special Prosecutor Appointed by the President / he directs the Attorney General President can fire him President was NOT immune / had to turn over the tapes / court upholds the Special Prosecutors powers (but they may not be the best way to do things) Morrison Independent Council The Chief Justice appoints a 3 judge panel who then does the selecting Attorney General can only remove for cause It was OK to give the independent council executive investigatory powers / he was an inferior officer and therefore property appointed by congress
Clinton v. Jones (1997, 494) FACTS: Jones sues Clinton after he becomes president for sexual harassment done while he was gov. of AR Jones sues just before SoL ran Could have been thrown out based on latches: if you unreasonably delay in bringing suit and other side relies detrimentally then your claim is barred By waiting until after he becomes President, Jones drastically increased the cost of litigation President claims immunity from prosecution while he is sitting in office HOLDING: President does NOT receive immunity from this lawsuit just because he is in office RULE: Presidential immunity DOES NOT apply to civil damages arising out of unofficial events occurring prior to the assumption of office MAJORITY [Stevens] Civil suit where immunity was granted. Nixon v. Fitzgerald *Immunity here is more narrow b/c Nixon was acting w/n his official capacity as president
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a. AMAR: in a sense, immunity Clinton seeks is even more narrow b/c he is only asking for case to be stayed, not that he is immune from liability CLINTONs argument: Forcing president to deal w/ proceedings is unconstitutional b/c it would impair the ability of the Executive to perform his constitutionally mandated functions STEVENS RESPONSE: Fact that such litigation would burden the presidents schedule is not a significant enough burden to establish violation of Constitution CONCURRENCE [Breyer] Agrees president is not above the law BUT believes stay of prosecution should be sustained until after presidential term for policy reasons Cheney v. United States (2004, 501): FACTS: Public interest groups sued Vice President Cheney and the National Energy Policy Department he headed. Plaintiffs sought to obtain records of the groups meeting. Defendants raise a separation of powers/executive privilege argument. HOLDING: Vice President is an easily identifiable target and sanctions not necessarily enough to dissuade suits. Court contrasted holding with Nixon because Nixon was a criminal case with a stronger necessity for relevant information than in a civil case like the current one. Amar: Court backpedals a bit from its stance in Morrison and Clinton. Mistretta v. United States (1989, 478): FACTS: Under the Sentencing Reform Act of 1984, a commission of seven people, appointed by President and ratified by the Senate, come up with a matrix that restricts the range of punishment that can be imposed by the courts. Challenge brought because the sentencing commission cannot be removed after appointment by the President HOLDING: The Act included sufficient guidelines for the Commission to follow. Congress directed the Commission to consider a list of seven factors in its formation of offense categories: the grade of the offense; aggravating and mitigating circumstances of the crime; the nature and degree of the harm caused by the crime; the community view of the gravity of the offense; the public concern generated by the crime; the deterrent effect that a sentence might have; and the current incidence of the offense
Free Enterprise Fund v. Public Company Accounting Oversight Board (Supplement): FACTS: SEC forms an oversight board that sets accounting standards (Sarbanes-Oxley), initiates investigations, and sanctions those who fail to follow the standards. SEC commissioners are appointed by President, but cannot be removed by President w/o good cause. Oversight board can only be removed by the SEC for good cause. President cannot remove the board. HOLDING: Separation of powers issue here unlike in Morrison, because the President cannot remove SEC commissioners, while he can remove the Attorney General in Morrison. Here, the oversight board has a double
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layer of protection, because both the oversight board and SEC commissioners can only be removed for good cause. In Morrison, only the independent counsel had the good cause removal protection. o Amar: If board protection for good cause removed or if boards executive powers (enforcement) are limited, then no separation of powers issue would exist. o Severability Question: Ask what Congresss second choice would be if they knew specific provisions were unconstitutional. Strike the whole law down? Or only strike down portion that violates Constitution? Either way, Congress can fix the problem by repealing the law or passing a new law. But must consider error cost. Is it easier for Congress to fix the problem if law stricken or only a portion stricken? Consider impact of Presidential veto in case President has different interest.
IMPEACHMENT [Art. II, 4] The President, Vice President and all other civil officers are subject to congressional impeachment House votes to impeach; Senate votes to remove Note: Congressmen are NOT subject to impeachment but can still be removed by 2/3rd vote Amar although there is not a lot of judicial precedent on the issue, courts look to past congressional activity and textual references in the constitution to guide their analysis of impeachment cases / one area where political question doctrine is strong (courts are deferential to congressional decision making) High Crimes & Misdemeanors - High implies impeachable activities must be worse than regular crimes - Bribery and treason are examples of high crimes (well-defined in penal sense) - Act doesnt have to be an enumerated crime to be impeachable [AMAR: not restricted to criminal acts] *ASK: Is official engaged in something that renders them incapable of doing their job? *EXAMPLE: If VP is insane, system must allow him to be removable although insanity not legally indictable - Applies to conduct committed outside of capacity of office (in Presidents private life) *AMAR: history and common sense have to say it does apply in this situation *EXAMPLE: President commits murder completely private, but murderer cant be in office - Capacity abused in some way? *Relevant question, but not dispostive - Perjury = high crime or misdemeanor? *AMAR: depends on perjury (context) what are you covering up and why? *Clinton impeached for perjury and others have in past w/o regard to whether the perjury he committed would have been prosecuted in the real world *AMAR: alternatives besides impeachment were available [censure] * Cant impose sanctions or fines on President due to Bill of Attainder * Less clear if censure without sanctions or fines are allowed * Suggestion to President to apologize to public should have been fine. * Contextual inquiry that is hard to generalize. Deference Courts are deferential to legislative decision making regarding what presidential actions are impeachable *Separation of powers concerns b/c it takes a lot of votes to impeach in the senate Duty or Power Congress does NOT have a duty to impeach, its just a power / House must use its discretion and should look to the people for advice as they represent them / Const. requires that std. be met before action taken
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Succession Allowing legislators (speaker of the house / senate pro tem) to fall in the line of succession erodes the independence created in the constitution Congressional leaders can force impeachment proceedings to gain higher office Conservatism The Constitution is a conservative document / 35 senators can block the removal of a president even if 500 other legislators want it to happen / removing a president has HUGE implications (unlike removing judges, even if on the Supreme Court) Past Examples Johnson Impeachment president was impeached in the house but was never removed in the senate (failed by one vote) / senate pro tem had already picked out his cabinet and expected to get the office b/c there was no vice president at the time of the impeachment proceedings Clinton Impeachment impeached in the house but never close to removed in the senate
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Con Law I Outline Amar Spring 2012 PRESIDENTIAL SELECTION [Electoral College vs. National Popular Vote (NPV]
i. Complicated voting process state-by-state for selecting electors 3. This group of electors consists of 538 persons a. Number of representatives of each state plus 2 (535) plus DC which is treated like a state (538) ii. Why dont we have a NPV? 4. Rejection of parliamentarianism a. Framers did not want to give selection of the President to Congress (unlike Parliamentary system) b. Wanted the Executive to be able to stand up to/counteract legislature 5. Lack of communication and transportation btw states a. Awareness in 1700s was locally restricted b. The logistical wherewithal/electoral infrastructure to implement NPV was nonexistent c. Changed by 1800: Political parties formed that serve as a surrogate (Constitution doesnt really take a stance on parties) 6. Slavery a. NPV would have hurt southern states b. Formula for states representation in electoral college is based on number of house members and southern states received house member representation based on 3/5 compromise for slaves even though they dont vote c. NPV would have incentivized states to maximize regional clout by allowing groups like slaves and women to vote 7. Electoral college thought to help small states a. Would not have agreed to join NPV because their voices would have been drowned out by bigger states b. Senators plus two regardless of size c. counterargument: winner-takes-all model adopted by almost all states has hurt small states and favors large states and especially swing states d. Swing states w/ sizable electoral representation where the mean vote matters iii. Reasons to keep electoral college 8. Protect small states a. Rebuttal: small states dont usually generate presidential candidates 9. National popular vote would allow 3rd party candidates to win w/ small percentage of overall vote than if electoral college existed a. Rebuttal: governors in all states are elected directly (could just use run-offs btw candidates) 10. Best argument for keeping it: cant have NPV scheme unless all states are administering elections the same way a. Would require national administration of presidential elections Rebuttal: dont need all states to enact it, only 11 biggest states to account for more than 50% of electoral college these states could enact national election w/o total national participation Bush v. Gore (2000) FACTS: 2nd time it had gone to SC / decision locked-in vote count HOLDING: Recount in FL violated Equal Protection Clause of 14th Amendment States can take back electoral system but as long as it is in place they must respect it CRITICISM 1. Political question: SC should have abstained from hearing the case 2. Line up: Political dispositions of majority: SC decided election based on 5-4 split decision which mirrored party alignment of 9 justices respectively 3. New law: SC is saying that letting counties use different rules for evaluating ballots means that people in different parts of the state are being treated differently
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a. Rebuttal: equality may require treating people differently if they are disparately situated 4. Good for one day?: SC is not making precedent, just principles to decide this one case 5. Remand: SC could have remanded to FL SC to make a ruling not in violation of 14th Amend CONCURRENCE: FL SC is interfering w/ powers that Art II vests in the legislature (the power to describe the manner in which electors are chosen) *Intrastate separation of powers issue PROBLEMS w/ CONCURRENCE 1. Art II says that state legislatures get to prescribe the manner in which electors are chosen BUT nothing in Art II says that legislatures should not involve state cts in that manner 2. Rehnquist doesnt look to FL precedent to see if FL legislature has involved the FL cts in deciding elections previously SUBSTANTIVE DUE PROCESS [equal protection under 14th Amendment] 14th Amendment: no state shall make or enforce any law which shall deny to any person the equal protection of the laws. 5th Amendments due process clause reversely incorporates equal protection. Bolling v. Sharpe It requires that people who are similarly situated be treated similarly. Over-inclusive : Under-inclusive: Must look at the relation between the trait and the mischief sought to regulate. Three standards of review: Strict scrutiny: Necessary to promote a compelling government interest. Applies to any statute based on a suspect classification (race or national origin) or that impairs a fundamental right (voting or access to courts). [HIGHEST STANDARD] Intermediate/Heightened scrutiny: Substantially related to an important governmental objective. Applies to semi-suspect classifications (gender or illegitimacy). [MIDDLE STANDARD] Rational Basis Review: Rational relationship to a legitimate governmental objective. Applies to economic and social regulation. [ASK: does law minimally accomplish established goal or step towards goal set by legislature?] [LOWEST STANDARD]
Procedural and Substantive Due Process: Procedure steps that government can take in order to accomplish its goals NOT in terms of what government goals are out of bounds all together i. Has there been a deprivation of life, liberty, or property? 1. Liberty = Loss of significant freedom provided by Constitution or statute. a. Does not include prisoners w/in prison. 2. Property = Entitlement that is reasonably expected and has not been fulfilled. a. Includes the continued receipt of a benefit. ii. If so, what procedures are required? EX: hearings, counsel, appeal rights (ordinary procedural safeguards) Hamdi v. Rumsfeld ISSUE: what does procedural fairness require before you lock them up? HELD: military tribunal is OK if: 1) there is counsel 2) evidence explanation 3) appeal rights Substance the question is not HOW but WHETHER the government can accomplish a particular goal (see abortion cases / see Lochner) / in these cases increasing procedural due process will NOT remedy a problem relating to substantive due process
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Criticisms substantive due process is just made up b/c there are no textual provisions to back
it up SUBSTANTIVE DUE PROCESS 1. Is there an adequate reason for the govt taking a persons life, liberty, or property? 2. Economic Liberties regulations get Rational Basis Review a. Minimum wage laws. b. Consumer protection laws. c. Professional regulations. Economic Regulatory Legislation Lochner v. NY (554, 1905) [**OLD, PRE-NEW DEAL RULE**]
FACTS: Constitutionality of NY law that prescribes maximum hours for bakers to work HELD: Law is invalid under the 14th Amendments due process clause b/c infringed on individual contract right [State cant infringe upon that employee-employer contractual arrangement] NOTE Same court that brings Lochner is the same court that is invalidating federal attempts to regulate the same workplace restrictions on the grounds that commerce does not have enough commerce clause powers to reach it Federal strikes under commerce clause State strikes under substantive due process (14th restricts) TEST: To determine whether state law is within states police powers: [whether law fails or not] ASK: Is law fair, reasonable, and appropriate exercise of police power? Non-arbitrary exercise? VALID if fair, reasonable, and appropriate exercise of states police powers INVALID if unreasonable, unnecessary, and/or arbitrary APPLIED HERE: Law is not about protecting consumers from purchasing unsafe products *Court views the law interfering with citizens rights to contract and work *If bakers dont want to work certain hours, they should just say no to employers **SCOTUS ignores unequal bargaining power of employees Max. hour law doesnt affect quality of the bread DISSENT: [Harlan] Statute isnt to protect consumers BUT designed to protect the well-being of employers and employees State is protecting employees from their otherwise lack of market power to protect themselves *They want jobs so they will work; unequal bargaining power Doesnt matter if the court thinks the law is wise legislation *Choice of economic theory is not for the judiciary (laissez-faire vs. govt regulation) *Court should not sit as a super legislature and impose policy on the rest of us without constitutional grounding Many other federal restrictions on freedom of contract [majoritys rule is arbitrary] *Freedom of contract is not absolute (prostitution contracts, prohibition on lotteries, etc) DISSENT: [Holmes]
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Leaves the door open for SOME substantive due process * Maybe substantive due process may leave SOME room for the court to regulate * Regulation is OK if a right has been determined fundamentally private I think the word liberty, in the 14th Amendment, is perverted when it is held to prevent the natural outcome of a dominant opinion, unless it can be said that a fair and rational man necessarily would admit that the statute imposed would infringe fundamental principles as they have been understood by the traditions of our people and our law. POST-NEW DEAL SUBSTANTIVE DUE PROCESS Nebbia v. NY (561, 1934) FACTS: NY statute regulates price of milk HELD: SCOTUS upholds law; state can adopt regulatory policy to protect public welfare provided: *Accomplishes what it sets out to accomplish [Means/Ends inquiry Rational Basis Review] Nothing in 14th Amendment prohibits legislature from regulating Ks for sale of milk to protect publics well-being. Due process clause does not makes any mention of sales or prices. US v. Carolene Products (564, 1938) FACTS: Federal makes it a crime to ship in interstate commerce products that contain milk-compounds Company is indicted for violating the law ISSUE: Can congress interfere with peoples ability to buy and sell this product if they want to? HELD: Because the law is an economic regulation SCOTUS presumes constitutionality [minimum rationality review/rational basis test] (Commerce Clause power) *As long as law minimally accomplishes establishes goal, SCOTUS will uphold it Legislative Deference But, if the court HAD to make a policy judgment, there probably IS a rational basis for imposing the law *Footnote 4* SCOTUS hints that the kind of deference it is showing in Caroline does NOT characterize the courts deference in all other Due Process cases / was the law a result of a fair legislative process? Process Theory holding government accountable 3 places where the court will get involved: (1) If a law is on its face against the constitution the court will not automatically defer (e.g.: freedom of speech) (2) If a law makes it difficult to hold congress accountable (e.g. laws that effect the right to vote, convene in groups, etc). (3) Statutes directed at national, religious, and racial minorities / court should be skeptical in these areas b/c minority groups lack of power (polluted process) Williamson v. Lee Optical (567, 1955) (similar deference)
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FACTS: Oklahoma doesnt allow opticians to replace lenses in a frame unless Drs prescription Law hurts opticians but favors optometrists and opthalmologists. HELD: SCOTUS upholds the law using rational basis test (although may not make much sense still passes) [deference to legislature it is for the legislature to balance these types of interests, NOT THE COURT] Caroline VERSUS Lee Optical After Caroline & Lee Optical SCOTUS makes it hard to resist econ reg on substantive due process basis In the past 50 years NO ordinary economic regulation has been struck on a ground that it ran afoul to economic regulation Ferguson v. Skrupa (569, 1963) FACTS: Cannot be a debt adjuster except as an incident to the lawful practice of law. Debt adjusting is making a contract with someone where they may installment payments to you and you consolidate them and pay off your creditors per a payment plan. HELD: Court refuses to sit as a super legislature to weigh the wisdom of legislation. This is the purview of the legislature and not the courts. Real Question when is the kind of deference embodies in this kind of rational basis review NOT appropriate? What settings are appropriate for the court to step in a little bit more? All judges believe there are SOME areas where courts need to step in and protect (history & tradition debate) Punitive Damage Cases (Pages 572-573) Initially courts used procedural due process to regulate punitive damage awards. E.g. Requiring higher burdens of proof for punitive damages, ensuring similar punitive damage awards for similar cases, etc. Some cases suggest that if punitive award component is ten times or more higher than the compensatory damages, then courts are likely to limit the damages. See State Farm v. Campbell and BMW v. Gore. AMAR: This is arguably a substantive limit on punitive damages, rather than a procedural one. THE TAKINGS CLAUSE [5th Amendment] . . . nor shall private property be taken for public use, without just compensation. RATIONALE: When govt uses property for benefit of everyone, cost shouldnt be borne by ppl who land is taken from *Compensation from public funds (from public taxes) WHAT IS A TAKING? [When is government action diminishing private property enough that it constitutes a "taking"?] Tax vs. taking *Tax = no just compensation every time tax revenue is required [tax = general] *More tax is directed at a specific individual, more it looks like a taking [taking = specific] Govt may take private property for public use if it provides just compensation. 1) Public use and just compensation requirements apply to both types of taking. Eminent domain 2) Actual govt confiscation or physical occupation. Regulatory takings 1) Regulation leaves no reasonable economically viable use of the property = taking. a) Govt condition on development of property with a benefit that is roughly proportional to the burden imposed taking. b) Reasonable temporary denial of use of property is taking.
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c) Regulation that lowers the value of a property taking. IDENTIFYING A TAKING 1] Taking if it goes too far 2] As long as owner retains some economic use of property, NOT a taking *Taking if owners use of property deprived to zero ( taking if govt reduces value above zero) Just compensation Just compensation is measured as to the loss to the owner based on reasonable fair market value. Loss to the government is irrelevant. Brown v. Legal Foundation of Washington (2003) FACTS: To solve problem of paying for Legal Aid Program, WA pooled lawyer-client trust accounts WA used interest on lawyers trust accounts to pay for legal services for needy; otherwise, still had own dollars Plaintiffs argued that this was an unconstitutional taking HOLDING: SCOTUS upholds law in ruling that it is a taking, but no just compensation is due because the money would not have earned any interest anyway. Law increases value of property (through interest) and doesnt decrease it (through real taking) *Parties cannot get windfall (value of interest); -lawyers clients no worse-off b/c of govt program. Law prohibited clients ability to get interest unless interest used for a charitable purpose. US v. 50 Acres of Land(1984) [when one level of govt takes land from another govt level; federal takes state/local land] FACTS: Federal govt uses eminent domain against landfill owned by city in Texas to use as flood control project Feds argued they should only pay ordinary fair market value; City argued mkt value + cost of new landfill HOLDING: Just compensation = fair market value [AMAR: City = loser b/c new land it must acquire for replacement landfill has many possible uses more $$] Public Use A taking is for public use as long as the government reacts from a reasonable belief that the taking will benefit the public. Kelo v. City of New London (2005, 591) [STEVENS] FACTS: City wants to use eminent domain to transfer land from one private owner to another for redevelopment Existing homeowners argue that property shouldnt be taken if no public building or public/govt use HOLDING: SCOTUS upholds taking power (taking of private property to sell for private homes = public use). A development plan to revitalize an economically distressed city involving the acquisition of property by the power of eminent domain qualifies as a "public use" within the meaning of the Takings Clause of the Fifth Amendment. A public purpose can include an economic taking if it benefits the public in some tangible way. Public benefit in redistribution of property from one private party to another [benefit = jobs & taxes]
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*Just because govt doesnt own property doesnt mean it doesnt generate public benefits Govt taking here is not simply for benefit of certain group of individuals, but for econ. development plan *Public use is NOT literally public use, but public use for a public purpose AMAR: Public backlash after SCOTUS opinion is overrated *Majority is following precedent Courts defer to govt in deciding what is a public purpose (like rational basis) Any use that govt can spend own money is public enough for govt to take private property Majority declines to limit takings power [broad takings power already exists!] *Dissent is actually a big departure from precedent (even though it seems fairer) *Compare to Raich Integrated development program in Kelo ~ comprehensive legislative scheme in Raich *SCOTUS shouldnt assess validity of broad regulation by only looking at one piece DISSENT: [OConnor] Concerned that through majoritys rule, property will regularly taken from poor and given to rich *People who benefit from govt taking have disproportionate influence and power in political process Distinguishes case from Berman v. Parker and Hawaii Housing Authority v. Midkiff *In Berman and Midkiff, taking was valid b/c prior use was harmful *HERE, property is not being used in a harmful way (just residential) so takings should be invalid AMAR: All depends on what you define as harmful (depends on what you compare it with) *Harmful = (1) what use could be; (2) property harms more than it helps *HERE, City thinks is could be used for better purposes Amar thinks dissents arg. Fails *OConnor wrote Midkiff doesnt want to overrule it PERSONAL LIBERTIES Protection of personal liberties *Personal liberties protected by substantive due process under 14th amend Right of privacy and contraception Griswold v. Connecticut (1965, 627) BACKGROUND: Griswold extended in Casey to be about more than just marital sexual freedom, but individual decisions in matters of childbearing from unjustified intrusion by the State FACTS: Statute passed by state that prohibits the use of any contraceptive device even by married couples RULE/HOLDING: Constitutional right to privacy is being invaded by statute *Right to privacy is non-enumerated right that exists within concept of due process *Strict Scrutiny test. MAJORITY [Douglas] Rights exist w/n first 8 amends that are not specifically enumerated w/n them: penumbra argument * Unenumerated peripheral rights that ought to be protected to make rights already mentioned in first 8 amendments more meaningful and secure (fall w/n the penumbra) *EXAMPLE: First amend right to speak includes not only right to literally speak, but right to distribute what has been printed, and right to access information (to be a listener) under first amend *AMAR rebuttal: Why is privacy one of those unenumerated rights?
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a. First 8 amends all make sense whether or not there is a right to contraception i. Ex. 4th and 5th amends have privacy dimension, but they have to do with conception of privacy that does not require contraception. These rights make sense even if no right to contraception. ii. But 1st Amendment wont make sense if you dont also have a read in right to receive information. The right to receive information is a logical corollary of the 1st Amendment freedom of speech. The right to contraception is not a logical corollary of any of the Amendments, and thus weaker grounds to infer the rights. b. CRITICISM of Douglas: Contributes to larger problem right to privacy can be understood to prohibit gov from doing anything that you might find intrusive/annoying Certain decisions that are so fundamental/ personal/self-defining that govt has no place Enforcement of anti-contraception law would be unreasonably intrusive to marital and familial affairs a. i.e., police entering homes and searching out contraception *AMAR: Doesnt establish right that majority wants to establish State could re-word the law to restrict sale and distribution of contraceptives to accomplish same objective w/o intrusive policing CONCURRENCE [Goldberg] 1. Textual: Right to privacy in contraception arena exists based on 9th amendment guarantee of unenumerated rights themselves a. 9th Amend: Enumeration shall not be construed to deny other rights retained by the people i. A right to contraception has to exist b/c if state can prohibit use of contraceptives, then it could also require use of contraceptives, and everyone agrees that people have right to have kids if they want ii. AMAR: State power to prohibit doesnt imply state power to require (ex. Child abuse). 1. Goldberg is correct that there is something more than the bill of rights and their logical corollaries that we are willing to protect. CONCURRENCE [Harlan] The question is not whether the Bill of Rights includes a constitutional right to the use of contraceptives. The 14th Amendment can require states to do more than just what is required by the first 10 Amendments. Dissent [Stewart and Black] Although the law is silly, it is not unconstitutional. The citizens of Connecticut should use their rights under the 9th and 10th Amendment to convince their elected representatives to repeal it if the law does not conform to their community standards. Privacy and Autonomy versus Privacy as Freedom From Intrusion and Disclosure 1. Family and Marital Relationships a. Moore v. City of East Cleveland, Ohio (1977, 633) FACTS Anti-hippie zoning ordinance that limits the living arrangements in a residence Says you can have people who live w/n one degree of separation of relation. You can have a grandparent, parent, and child live together. But you cant have a grandmother and grandson living together without the father or mother also present. RULE/HOLDING: Invalidates statute that would have prevented grandmother from living w/ grandson 1. 14th Amend Due Process clause contains freedom of choice and privacy in realm of marriage life 2. Belle Tere can be distinguished, because it only affected unrelated individuals. More deference given to legislature that regulates living limitations in non-familial situations.
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MAJORITY [Powell]: why is there a substantive due process right for family members to live together? - Deeply rooted in nations history and tradition o This notion of deep-seated tradition allows SCOTUS to reject minimum rationality review and to apply heightened scrutiny - Concedes statute advances goals of the statute minimally, but claims it is too overinclusive and underinclusive a. Underinclusive: doesnt pursue its ends as much as you can imagine b. Overinclusive: people covered by law even though not type of people law aims to deal w/ - AMAR: only way to make law perfectly inclusive in reference to its goals would be to make the scope of it defined by its objectives Question is to what extent law is over/underinclusive CONCURRENCE [Brennan] - Ordinance has particularly harmful effect on families of certain races b/c certain races tend to live w/ extended families - Not making Equal Protection argument of racial discrimination o INSTEAD, he is saying this law is facially neutral law that has a disparate effect - AMAR: We cant invalidate all laws w/ disparate racial impacts a. Almost all laws have racially disparate impact b/c race correlates w/ class - EX: A toll has racially disparate impacts b/c it falls more heavily on the poor - Must prove racially discriminatory motivation for Equal Protection violation b. Roe v. Wade (1973, 663) ISSUE: To what extent can govt regulate access to abortion itself / as distinguishable from funding for it RULE/HOLDING: Doctrine of Roe = trimester framework with strict scrutiny. - 1st trimester: a. Woman has fundamental right to decide to get an abortion whether or not the pregnancy is threatening her life or well-being b. Govt can only regulate to ensure women getting abortion are receiving proper care generally nd - 2 trimester: a. A bit more govt leeway, but still regulating on behalf of mother and not fetus iii. Govt must have overriding reason to regulate womans ability to get an abortion in the name of greater health interest - 3rd trimester: a. After viability the moment in time fetus could be sustained outside the womb state has compelling interest to regulate abortion if it so desires, but on behalf of the fetus itself and not the mother b. EXCEPT: Gov can regulate and even prohibit unless abortion is necessary to preserve life of the mother MAJORITY [Blackmun]: methodology heavily criticized 1. Grounds right on notions of privacy and liberty rather than notions of gender equality - AMAR: better argued in terms of womens rights as opposed to individual liberty and autonomy 2. Case presented as preserving doctor-patient relationship more than special implications unwanted pregnancy may have for the woman - AMAR: this is so far from the issue unclear why Blackmun addresses it
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GENERAL CRITICISM: Opinion in Roe does not seem to be grounded w/in 4 corners of Constitution at all Blackmun claims right to abortion is protected under 4th amend due process clause, but words of that amend never quoted 3. Intratextual argument on whether fetus is a person - Word person not used prenatally in any other setting, which must mean postnatal - AMAR: Person has several different meanings depending on context w/n the constitution i. Ex. Corporation is a person under certain circumstances 4. Why is question of whether fetus is a person important? - Because if it is a person case on behalf of mother breaks down - AMAR: not clear that changes things legally i. rights of one person may still be protected even if that persons rights are affected by another person no reason to think mothers rights cant still be protected if fetus is categorized as a person - GENERAL CRITICISM: The right Blackmun establishes is not grounded in case law i. Blackmun specifically states that all other leading privacy cases are inherently different. NOTES: Amars further criticisms of Roe opinion 1. Doesnt see how viability is grounded in law a. It may be true that fetuses are sustainable outside the womb, but state is still requiring WOMEN to keep fetus in the womb for three months 2. Summary of trimester framework reads like legislation more than discussion of what Constitutional principles protect womens right to abortion a. How can constitution written in such broad terms be said to require adherence to a trimester framework laid out in such detail? 3. (3) doesnt talk about how womans interest change throughout a pregnancy a. If Roe is about sexual liberty, then we could have a smaller window allowing abortion the farther we move from sex act the more attenuated a rationale based on sexual freedom becomes b. Personal Autonomy 4. Why do judges who are fine with Griswold disagree with Roe (i.e. against right to abortion but for right to contraception). a. Perhaps right to abortion and right to contraception are not one and the same. b. Perhaps striking down a really old law (Griswold) is easier than to strike down a newer law. c. Perhaps striking down a non-mainstream law is easier than striking down a mainstream law (contraception mainstream). b. Planned Parenthood of Southeastern PA v. Casey (1992, 674) FACTS: Planned Parenthood facially challenged the constitutionality of Penns abortion law RULE/HOLDING: Core irreducible minimum of Roe ought to be preserved - Recognition of right of woman to choose to have abortion pre-viability; AND - Lack of state incentive to regulate blocking abortion altogether pre-viability Casey only changes the test for abortions in the first 2 trimesters. No impact on third semester abortions. Also changes strict scrutiny test to a undue burden test. Prior to viability, the government cannot prohibit abortion. -
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Prior to viability, the government may regulate abortion, as long as it is not passed with the purpose or effect of imposing an undue burden. After viability, the government can prohibit abortions except when necessary to protect the womans life or health. o Undue means balance between: (1) what woman cares about; and (2) why state wants to regulate abortion in the first place More of an ad hoc (case-by-case) balance/cost-benefit analysis If states purpose is to place a substantial obstacle, but the actual obstacle (its effect) is not substantial, the law would be struck down. If the purpose is not to be a substantial obstacle and the effect is a substantial obstacle, the law will be struck down. What does this mean? If you could prove (almost impossible) that sole purpose of legislation was to prohibit abortion that law would be overturned
MAJORITY [OConnor] undue burden = substantial obstacle - Informed consent provision - Constitutional i. Legitimate govt objective: facilitate thoughtful well-informed decision a. Might it make decision for woman to get an abortion more difficult? Yes, but not enough to constitute substantial obstacle - Mandatory 24 hour waiting period - Constitutional i. Govt objective: to give mother time to reflect upon decision ii. SCOTUS admits that mandatory waiting period could be legitimate obstacle, but not an undue burden. NOT AN UNDUE BURDEN because: 1. Law is not a significant obstacle to sufficient number of people sufficiently often 2. Even though some women may be unduly burdened, the specific (Ps) are not iii. Facial challenge: asks SCOTUS to enjoin the law as a whole very existence of that law is detrimental 1. Only allowed if law risks chilling effect on certain rights such as free speech 2. Remedy is so extreme, incidents of constitutional violation must be numerous enough to justify a facial challenge 3. Individuals who have an undue burden can bring a non-facial challenge that the law as applied to them imposes an undue burden. a. AMAR: Unrealistic for individuals to raise a claim in time. - Minors - Parental consent provision - Constitutional i. As long as judicial bypass provision is in place, then (minor can get permission to not seek parental permission from a judge) parental consent provision is OK - Spousal notification - Unconstitutional i. Govt objective: womans decision would be more informed if she consulted spouse ii. SCOTUS says interest of the father legitimate, but not powerful enough to overcome burden placed on victims of spousal abuse ii. Three Reasons to get rid of an old case that was incorrectly decided in the Abortion Context (See Notes on Stare Decisis): 1. The doctrine is unworkable. 2. Erosion of the law around the given doctrine 3. The decision was based on a factual error c. Gonzales v. Carhardt (2007, 693) FACTS: Congress passed statute criminalizing doctors who conducted partial birth abortions
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ISSUE: Which method ending fetuses term is permissible, NOT whether procedure should be employed at all that would shorten fetuses term RULE/HOLDING: State can outlaw this one medical procedure, but not abortion generally Legislature can erect more complex obstacles, but you still cant block the decision to have an abortion altogether MAJORITY [Kennedy] i. Other procedures in place that could substitute ii. This procedure is so gruesome and inhumane that it can be banned - Interest in protecting a woman from a procedure which she herself may later regret iii. But: Unclear if banned procedure is more gruesome than other accepted procedures. However, courts wont look into this. d. Lawrence v. Texas (2003, 705) FACTS: TX statute makes it crime to engage in same-sex sexual Statute prohibits oral/anal sex between homosexuals and makes it criminal RULE/HOLDING: TX law violates Due Process MAJORITY [Kennedy]: sticks to Due Process rationale i. Adults may choose to enter into private relationships in their own homes and their own private lives and not be punished as criminals 1. Liberty presumes an autonomy of self ii. Bowers v. Harwick: In Bowers, statute prohibited all sodomy. a. SCOTUS upheld the statute on grounds it prohibited conduct regardless of gender 1. Ct doesnt take on equal protection argument b/c statute as written applies to everyone. 2. Bowers court limits the issue to only homosexuals because Justice White did not want to imply it was okay to limit sex between a husband and wife. iii. Court rejects Bowers and distinguishes case from Griswold and Roe because they are about family planning and decisions, while Lawrence is about private decisions to have recreational sex. 1. Amar: But Griswold is not about having a family. If it were, then the government would be able to bar all non-procreative sex. CONCURRENCE [OConnor]: argues for equal protection not just Due Process DISSENT [Scalia] Right to homosexual sodomy is not grounded in tradition or history The criminalization of certain behavior does not necessitate a constitutional entitlement NOTES: AMAR problems w/ decision - No discussion of standard of review - No fundamental right discussion, only liberty to do something - Ct appears to be writing for the American public and not for lower cts or justices CONGRESS ENFORCEMENT POWERS UNDER 5, 14TH AMENDMENT State Immunity Overview -
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The 11th Amendment is interpreted to stand for the broad principal that states are immune from federal judicial action / a state is NOT suable in federal court absent its consent (ex Parte Young) Congress has the power to strip states of 11th Amendment immunity if it is acting pursuant to a part of the constitution that allows for such overriding Section 5 of the 14th Amendment has been interpreted as the ONLY provision in the constitution under which congress can strip states of their 11th Amendment sovereign immunity. Congress may not create new rights or expand the scope of rights. The laws must be narrowly tailored (proportional and congruent). General Rule Section 5 does apply congress can strip immunity and allow backward looking relief against states / this typically means damage awards which immunity protects against Sometimes Section 5 is the only reason congress is acting (Bourne) but Congress may be acting under Section 5 and another power (Garrett) the damage remedy will depend on what gets upheld City of Boerne v. Flores (1997, 1277) CASE FACTS: Local church wanted to expand its building to accommodate its members. Local law didnt allow for the expansion (building and zoning codes. Church sues the city under the RFRA. City responds by saying the RFRA is unconstitutional. The city (STATE) is challenging a congressional act (FEDERAL) RFRA FACTS: Government passes the Religious Freedom Restoration Act (response to Smith) CONGRESS ARGUMENT: Argues Sec 5 allows congress to tell cities and states that they have to give 'exemptions' based on the RFRA (here it is an exemption from the citys zoning laws) UNLESS the state and local government entity can come up with a COMPELLING interest to NOT do so (pre Smith) ISSUE: Can Congress use Section 5 of the 14th Amendment to implement the RFRA? HELD: No, Congress is NOT allowed to deviate from the courts interpretation of the 1st Amendment using the 14th Amendment in an overall attempt to implement the RFRA. Nor is Congress allowed to create new rights or expand existing rights under section 5. To allow Congress to do this would essentially make the constitution a worthless (non-supreme) document. Congress can pass laws effecting states based on Section 5 of the Fourteenth Amendment only of the laws are congruent and proportional. However, Congress can tell the federal government based on its Article I powers. BACKGROUND INFO: 1960 1970 Government had to make religious accommodations unless the government could come up with a compelling interest for not granting a religious organization an exemption / free exercise clause required reasonable accommodation Sherbert v. Vernon - Woman in SC was unemployed and wanted to collect state unemployment benefits. SC set condition for receiving benefits- you need to demonstrate that you are actively looking for work and will take work if its given to you. Woman was unwilling to take work that would require her working on the Sabbath. Could SC deny her benefits because she didnt want to work on Sabbath? Ct: Thats not a fair choice to put her to. Free exercise requires an exemption here for
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the usual requirement that people be willing to work on weekends in order to collect unemployment. Wisconsin v. Yoder (Limited to its facts by Smith) Law Kids must go to school until age 14 Conflicting Religious Practice Kids must work at age 12 HELD State didnt have a compelling interest. The govt had to make an exception Smith v. Human Services (RFRA is a response to Smith) Law Peyote is an illegal drug Conflicting Religious Practice Indians use Peyote (a drug) in their rituals and want to use it as an exercise of their First Amendment freedom of religion. HELD Courts wont grant exceptions anymore. Limited Sherbert and Yoder to their facts. Free exercise clause doesnt require the government to make case by case exceptions. It just means the government cant individually target you (religion) for discrimination. Laws of general applicability are fine. After 1990 NO MORE EXEMPTIONS you have to prove the government went after your individual religious practice / nobody liked the Smith decision congress passed the RFRA in response Conservatives like free exercise b/c they have a religious base Liberals like free exercise b/c religion is minority which they want to protect CASE ANALYSIS: Analysis Spending Power? Congress could have conditioned the receipt of $ on compliance with exemptions Analysis - Commerce Clause? NO the activity being regulated was not economic. Even though the church wanted to build more (economic) the regulated activity was practicing religion (not economic) RFRA was regulating the regulator RFRA regulated the city (zoning regulations). Therefore, the real activity was government regulation (see NY v. US) which is noneconomic. RFRA has effects on economic activity, but cant look at the effects unless that which is being regulated is economic activity. Also note, RFRA applied ONLY to governmental entities (compare with Garcia/Prince and general vs. specific laws) Analysis - Section 5 of the 14th Amendment?: Section 5 allows Congress the power to enforce due process and equal protection rights against the states. 14th Amendment Overview Amar 1st Amendment (free exercise) applies against cities and states through the due process clause of the 14th Amendment. When a city doesnt accommodate religion they are violating the free exercise ideas incorporated within the 14th Amendments due process clause and therefore Congress can remedy this under Section 5 of the 14th Amendment NOTE: this is Congress argument that the court rejects NO Court says Congress is just trying to get around its interpretation of the 1st Amendment in Smith. Congress cant do this through the 14th Amendment. Congress can only enforce free exercise rights and the scope of those rights are determined by the
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Courts. o Note: Congress had no power to pass the RFRA based on one of its given powers (e.g. Commerce). Congress can pass laws under Section 5 if they are congruent and proportional
Congruence & Proportionality Congress can pass laws based on Section 5 of the Fourteenth Amendment if the laws are congruent and proportional (e.g. Congress passed law to prohibit literacy tests to block illiterate people from voting. Compare (1) what the Constitution prohibits and (2) what congress is prohibiting. If there is LOTS of overlap then C&P is probably satisfied but if there is LITTLE overlap C&P probably is not satisfied Remedy & Cure Court says that the remedy CAN be broader than the disease BUT if the remedy is too broad and encompassing it will probably fail C&P test Note after Bourne, SCOTUS applied the Congruence and Proportionality Test with a vengeance Board of Trustees of University of Alabama v. Garrett (2001, 1286) Why Section 5 instead of Commerce Clause?: Section 5 allows Congress to abrogate state sovereign immunity under section 5, while it cannot strip states of sovereign immunity under the commerce clause. FACTS: Federal statute (like RFRA) required local govt agencies to accommodate disability through the ADA Employment provisions were specifically at issue; employers must make reasonable accommodations to fit the employees needs HERE, University of Alabama didnt accommodate a nurse ISSUE: Whether the employer provisions of the ADA are Congruent and Proportional. Whether a state who violates the ADA can be sued for damages HELD: Employer provisions of the ADA are INVALID b/c they are not properly enacted pursuant to 5 Court reemphasizes the C&P test from Boerne / Note: 5-4 AGAINST claimant in Garrett ANALYSIS: Congruent & Proportional Analysis Equal Protection Clause vs. ADA employer requirements Held There was LITTLE overlap between the ADA employer requirements and the EPC. Compare every instance where a state or local government refuses to accommodate a disabled person with the instances where such activity violates the Constitutions EPC. Since the state can discriminate under the EPC as long as it meets a minimal rationality review standard, many violations of the ADA wont be violations of the EPC. Therefore, the provisions were NOT necessary and proper Note court is not friendly to legislative history / congressional findings claiming that the instances of discrimination were not very prevalent Cleburne v. Cleburne Living Center FACTS: EP challenge to a city ordinance that treated disabled living group differently HELD: Disability did NOT invoke heightened scrutiny. Not a suspect class Amar Criticism Clenburne actually came out in favor of the disabled plaintiffs
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Court uses Cleburnw to NARROW EPC treatment of disabled persons / Amar thinks this move is questionable Rehnquist looks to instances of STATE violations of EPC but not violations of CITIES / COUNTIES questionable once again b/c court never really says why states are treated differently than cities and counties for EPC purposes Amar cities and counties exist by virtue of the state / one of the problematic aspects of Garrett that ends up getting reversed in Hibbs Nevada Department of Human Resources v. Hibbs (2003, 1294) FACTS: [Gender discrimination case] Family and Medical Leave Act requires all employers (private and state) to provide paid leave sues state employer for violating law; wants damages ISSUE: Like Garrett, can individual sue a state for money damages for violating this Act? [YES] HELD: FEMLA is valid under Congress 5 powers; can sue the state for damages Note: 6-3 FOR the claimant in Hibbs Scrutiny Analysis Court treats FEMLA differently than the disability in Cleburne. Gender implicates EPC whereas disability does not. This is one of the reasons that Hibbs comes out differently than Garrett Amar The courts logic is a cheat / standards of review may be different but the level of discrimination is the same Hibbs VERSUS Morrison - totally inconsistent Morrison (Violence Against Women Act) in two ways - (1) Morrison court said commerce clause didnt apply AND that Section 5 didnt apply b/c Section 5 allows remedies of equal protection but the remedy can run against ONLY those actors violating equal protection / court said VAWA runs against the private tortfeasor NOT the state actor - (2) Morrison only dealt with stuff that happens in some states and not all states / court thinks its unfair to pass a NATIONAL law that may sweep in innocent and guilty states Hibbs VERSUS Garrett Who's discrimination counts? Garrett - only looks at state discrimination (not cities and counties OR private parties) Hibbs - looks at discrimination by PRIVATE employers Amar - we cant count cities and counties BUT we can include private parties? Congressional Findings? Hibbs - Is a BROAD extension of Congressional findings BUT Garrett - Is a NARROW view of congressional findings Amar - they are TOTALLY in conflict Valid Distinctions? Hibbs Gender based discrimination Garrett Disability based discrimination Amar should this really matter? People are being harmed in both instances
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5 (14th Amendment) Case Table Case Boerne Garrett Federal Law Religious Freedom Restoration Act ADA employer provisions C&P No too broad No Section 5 enactment No too broad (compared to Equal Protection Clause) No Section 5 enactment Yes lots of overlap Section 5 was proper here Misc. Holding Info. Final rejection of the compelling interest test Commerce Clause still applied so P still got relief Hibbs gender heightened scrutiny / vs. Garrett disability low scrutiny
Hibbs
Family and Medical Leave Act
SECTION OVERVIEW SCOTUSs Authority Federal judicial power extends through Art. III, Section 2 to cases arising under the Constitution but not cases decided purely on state law grounds. Even if a state Constitution mirrors the U.S. Constitution, if a state court decision is based on the states Constitutional provision, no federal law is involved and SCOTUS has no jdx. Federal judicial power does not extend to SCOTUS review of any state court case for which there is an independent and adequate state ground. The finding has to be pretty clearly on state-law sources or else state ground isnt truly independent. Constitution gives Congress full control over jdx of the lower federal courts. These courts cant even exist without Congress creating them. See Article III, Section 1- Congress can grant judicial power to SCOTUS and to such inferior courts as Congress may from time to time ordain and establish. This can be read to mean that Congress may also define the cases that may be heard by the lower federal courts, and Congress may refuse to let lower federal courts hear cases that fall within the general federal judicial power (diversity cases, for example.) Federalism and Federal Power: McCulloch- when Congress is acting of a constitutionally-specified objective, the means chosen merely have to rationally related to the objective, not necessary to the objectives attainment. [ The court will show great deference to Congresss choice of the means to attain constitutionally-enumerated objectives.] Federal Commerce Power Before Lopez, it was enough that there was a rational basis for Congresss belief that a regulated activity affects interstate commerce. But Lopez establishes that the activity which Congress is regulating must in fact have a substantial effect on interstate commerce. Commercial Activity When an activity is commercial the Court seems to find regulation of it to be within Commerce power even if the specific act is wholly interstate, as long as the act is part of a class of activities which, collectively, substantially affect interstate commerce. Once the Court finds that the activity substantially affects, all that you need from there is that the means selected by Congress be rationally related to the objective being sought. Refer to: Raich where the Court held that Congress could regulate a purely intrastate but commercially-oriented activity regarding a commodity (marijuana cultivation for personal medicinal use) because such regulation was reasonably tied to Congresss regulation of the interstate commercial aspects of that same commodity. Even when a statute falls within Congresss power to regulate Congress, a state can argue that the Constitution
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requires some sort of exemption based on the 10th Amendment which provides that the powers not delegated to the US by the Constitution, nor prohibited by it to the States, are reserved to the states or to the people. For example, if Congress were to precisely detail who a state could hire, the state could argue that Congress is interfering with state sovereignty. BUT This argument would have worked under National League of Cities which held that the 10th Amendment prevented Congress from regulating the states in a way that might impair their ability to function. HOWEVER, Garcia, which overruled National League, changed the standard so that when Congress is acting pursuant to its commerce power regulates the states as part of a generally applicable regulatory scheme the fact that a state is being regulated is of little importanceif the regulation would be valid vis a vis a private party then itll fly with a state. No exemption possible this way. Comandeering- 10th Amendments scope was narrowed by Garcia but still Congress cannot commandeer the legislative process in states by directly compelling to act and enforce a regulatory program. Refer to U.S. v. New York. [Congress could not force states to regulate nuclear wastetake title case. Congress also cant force state officials to carry out administrative tasks. Refer to Printz. Tax & Spend Power- You can get find some wiggle room by supplying federal funds to carry out X objective and make the loss of those funds the only penalty for failure to comply. This provides a carrot to the states. Refer to South Dakota v. Dole (Congress may induce states to prevent underage drinking by withholding federal highway funds from states tat dont prohibit drivers under the age of 21 from drinkings). *** Be sure that the only penalty is the loss of the funds are funds that are related to the Congressional objective in question and you should be able to avoid a Constitutional issue. I.E. You cant get away with cutting off educational funding to states that refuse to enact a health care scheme or something like that. Other National Powers Spending Power- Article 1, Section 8 gives Congress the power to lay and collect Taxes to pay Debts and provide for the general welfare of the United States- This is spending power. General welfare is something that Congress determines so a challenge brought on the basis of something not being for the general welfare is not likely to hold water because the Court is not entitled to substitute its own judgment for what would be in the best interest of the country in lieu of Congresss notion of what that would be that is likely embodied in the legislation that is being challenged. Regulating for the General Welfare vs. a Right to Tax & Spend to Achieve Welfare Remember that there is no federal police power so Congress does not have the right to regulate for the General Welfare. Its only powers regarding the general welfare are the right to tax and spend to achieve that welfare. Look for: either a tax or expenditure in a statute so that you can back it up with an enumerated power (to tax or spend). Also, always try to fall back on Commerce Clause since Cours have taken an expansive view of what can affect commerce. Limits on State Power Dormant Commerce Clause- DCC prevents a state or local government from placing undue burdens on interstate commerce. Most violations of the DCC occur when a government is protectionist with an intent to favor the economic interest of local residents over out-of-staters. However, even neutral non-protectionist regulation will violate the DCC if it amounts to an unreasonable burden on commercethis can hold true even if a state regulation is enacted for the good-faith purpose of protecting the health/safety of local residents. The Court performs a balancing test weighing the state/local governments interest in its regulatory scheme against the national interest in unburdened free-flowing interstate commerce. A MAJOR part of this balancing is whether there was less burdensome alternatives which the government might have adopted. [Get creative in looking for this.] Protectionist Purposes Any state/local action taken for the purpose of preferring in-state economic interest
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over out-of-state interests will be strictly scrutinized even if the action taken is not for economic reasons (but rather actually environmental, for example). If there is a less-discriminatory option out there then the action will be struck down as a violation of the Commerce Clause. Exception to Typical DCC Violations- Where a state acts as a market participant, spending its money to acquire goods or services, the DCC analysis is not applied and the state may favor local interest over out-ofstaters. A state is free to spend its money in whatever way it sees fit, even if it means spending in-state as opposed to out of state. Congress Can Immunize State Actions from DCC Violations-DCC is only to be done when Congress has not expressly allowed the type of discrimination against out-of-staters in question. I.E. If a federal statute in effect allows a state to prefer its own citizens over out-of-staters then you cant raise a DCC violation as Congress has acted. [SOMETIMES even if this is the case you can still use an equal protection attack since Congress doesnt have the right to immunize state action from EP attack.
Intergovernmental Immunities Federal Immunity from State Taxation- The federal government is itself immune from taxation from any state. Refer to McCulloch. But this immunity generally does not extend to federal government employees or to contractors who work the federal government. So long as the govt is not directly obliged to pay taxes, the fact that a burden may eventually fall on govt as a result of a tax does not matter. Privileges and Immunities Clause of Article IV- Article IV, Section 2 provides that each State shall be entitled to all privileges and immunities of citizens in the several states. This prevents states from discriminating against out-ofstate individuals and applies only to rights that are fundamental to national unitythe right to practice ones profession is such a right. Once a fundamental right is shown to be at stake, then the defenders of the state will lose unless they show that the non-resident is the peculiar source of evil which the law enacted to remedy AND there was no less discriminatory way of dealing with the problem. Separation of Powers Presentment Clause- Legislative veto under which Congress keep oversight over administrative action by reserving the power to cancel that administrative action by means of a Resolution. You are essentially depriving the President of the opportunity to veto. Refer to Chadha. Theory behind the invalidity of legislative veto is that the Resolution is itself the exercise of legislative power, so it must be carried out by the same procedures as for any other legislative act. i.e. passage by a majority of each house and presentment to the President for his signature. Declaring War- Article II, Section 2 explicitly grants the President the power of Commander in Chief. However, President must use this power subject to Congressional oversight. Power to declare war is given just to Congress in Art 1, Section 8. While the President may, without a declaration of war commit troops to repel an immediate emergency, it is unlikely that the President may wage a prolonged ground war without a declaration from Congress --especially when the U.S. hasnt been attacked. Refer to Hamdan which indicates that in cases where the President asserts broad power to act in wartime, and it is not clear that Congress has acquiesced to what he is doing, the Court will favor Congress over the President. State Action Be sure to check to make sure that the action that you see as violating DP or EP or whatever is being taken by the state. If a private actor is doing something that would constitute a violation if a government were doing it then thats a tip off to a state action problem. Public Function- You can have a situation where a private party is doing something that is traditionally the EXCLUSIVELY by the states in which case you can get around the apparent lack of state action. ALSO, look for
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HEAVY state involvement in private action (Shelley v. Kraemer). Heavy entanglement has to be just thatheavy and involvedmere licensing etc is not enough (a state giving a liquor license to a discriminatory business is not enough to make the discrimination state action).
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Constitutional Law - Amar - Sprin 2012 - Outline

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Where does the Constitution say Congress can do this?

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