Constitutional Law Outline (Nutshell Version) April 9, 2023

I. JUSTICIABILITY:a. JUDICIAL REVIEW: gives courts the power to invalidate governmental

action as repugnant to the Constitution (Marbury v. Madison),i. Extending to acts of:

1. The national executive, (Marbury v. Madison)a. And other Executive Officials

2. Acts of Congress, AND (Marbury v. Madison)3. Acts of state governments. (Martin v. Hunter’s Lessee)

a. Also, state government officials must follow the U.S. Supreme Court’s interpretation of the U.S. Constitution (Cooper v. Aaron)

b. Power granted under the Supremacy Clause [Art. IV] State Court Judges are bound by U.S. Constitution despite contrary state law.

c. Prevents 50 different interpretations in 50 different jurisdictions

ii. Stated that:1. Laws in defiance of the U.S. Constitution are null and void,

AND2. U.S. Supreme Court’s Original Jurisdiction did not include

mandamus.3. Judicial Review power is not explicit in Art. III, rather is a

power created by the Court in 1803 and allowed ever since.a. U.S. v. Nixon: affirmed that Court has the power to

review the scope of executive authority Judicial Power can’t be shared with Executive Branch anymore than Executive Power can be shared with Judicial Branch (discussing privilege & veto powers)

iii. Foundations of Federal Jurisdiction:1. Art. III, § 1: Vests enumerated federal judicial powers in

U.S. Supreme Court, AND grants Congress the authority to create inferior courts as necessary (Appellate & District Courts).

a. Enumerated Powers for Original Jurisdiction: i. SMJ (Federal Question & Diversity)

ii. All cases affecting Ambassadors, Other Public Ministers & Consuls, where a State is a party

b. Congress controls USSC’s Appellate Jurisdictioniv. Limitations of Judicial Review:

1. Three Questions: (See Below)a. WHO can litigate a constitutional claim? (Standing)

1

b. WHEN may a constitutional question be litigated? (Timing: Ripeness, Mootness, Abstention)

c. WHAT constitutional questions may be litigated to a federal court? (Subject Matter: Political Questions)

***CHECK ALL 4 ON EXAM: Standing, Mootness, Ripeness, Political Questionb. STANDING:

i. Who can litigate a constitutional claim?1. The persons seeking relief must allege such a personal

stake in the outcome of a controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the Court so largely depends for illumination of difficult questions (Baker v. Carr)

ii. Art. III, § 2: Case & Controversy Requirement: “The judicial power shall extend to all cases [and] to controversies.”

iii. CONSTITUTIONAL STANDING:1. Three Lujan Requirements for Constitutional Standing :

a. Injury in fact (invasion of a legally protected interest that concrete & particularized AND that is actual or imminent) (Actual or Threatened Injury)

i. Factual Injury (not legal injury): Economic Injury, Aesthetic or Environmental Injury, Intangible Injury (live in an integrated neighborhood)

ii. Not hypothetical or speculative injury Must be actual or imminent personal injury.

iii. Lujan Rule:1. Congress can create “new”

individual rights, but cannot eviscerate/waive the suing individual’s obligation to actually show an injury to those rights.

2. Ex. Congress can create a right to obtain government documents (Administrative Procedures Act), but cannot allow a person who has not requested such documents to sue.

b. Causal connection between injury and conduct complained of (not the result of independent action form some third party)

c. Redressability: (Overlaps Causation) It must be likely (not merely speculative) that the injury will be redressed by a favorable decision

i. Litigant must also show that they have standing to justify the relief sought.

iv. PRUDENTIAL STANDING:

2

1. Third Party Standing : (Powers Case) Only allowed if…a. Close relationship, ORb. Injured party is hindered from asserting own rights.

i. Ex. Litigant raises equal protection rights of jurors.

2. Associational Standing : Only allowed if…a. One or more members would have individual

standing (Cannot be speculative. Must be proven.), AND

b. There is no reason to require Joinder, ANDc. Interests of individual is germane to purpose of the

association.i. Ex. Unions, Manufacturers’ Association,

etc.3. Taxpayer Standing & Generalized Grievances :

a. Must allege: (Flast Double Nexus Test)i. Congress (does NOT apply to Presidential

discretionary spending) is appropriating money under tax & spending power, AND

ii. Nature of appropriation violates a particular constitutional provision. (Ex. Used to establish religion)

b. Notes:i. Same goes for State Taxpayers But not

city taxpayers (considered to be a closer nexus with city taxpayers)

c. MOOTNESS:i. When: Suing too late.

ii. “Loss of Redressability” Ex. Law student admission case.iii. Art. III, § 2: Case & Controversy Requirement: “The judicial

power shall extend to all cases [and] to controversies.”iv. General Rule : Court does not issue advisory opinions. If the case is

resolved by the time the case gets to court, the case is not allowed and the Court will NOT issue an Advisory Opinion.

1. Exceptions :a. Potential Recurrence of Illegal Conduct:

Voluntary cessation of illegal conduct does not make a case Moot UNLESS subsequent events make it absolutely clear that the alleged illegal conduct could not reasonably be expected to recur.

b. Capable of Repetition, but Evading Reviewi. Ex. Pregnancy Just because plaintiff is no

longer pregnant doesn’t mean that there couldn’t be more pregnancies because of conduct.

c. Class Actions

3

v. Only applies to injunctive relief/declaratory judgment Not damages

d. RIPENESS:i. When: Suing too soon.

ii. Art. III, § 2: Case & Controversy Requirement: “The judicial power shall extend to all cases [and] to controversies.”

iii. Also limited to Injunctive Relief and Declaratory Judgment.iv. General Rule : A party may seek review of the validity of a statute

when it is enforced against him. If the challenge is before the enforcement: [Double-Contingency Test]

1. Will there be significant HARDSHIP if review is denied?a. How certain is the violation? (Why should we make

the plaintiff violate the law before we answer the question?) Mitchell Case

b. How certain is the enforcement actionc. Ex. Two-car Garages Restriction Ordinance

Example:i. No certain violation (No blueprints, etc.)

ii. New Ordinance Enforcement is not necessarily certain. (Same can be said for old laws that have not been applied in decades Uncertain Enforcement)

2. FITNESS of issue/record for review (Is it better to wait for enforcement so we have a concrete record?)

a. The more it is a legal question (less of a factual question) the more fit it is. (Would more factual development help the court come to a better conclusion?)

v. Gaping Loophole: If your claim is under the First Amendment, ripeness should not be a problem. (”Chilling” of Free Expression)

vi. Court’s Abstention : Even though suit is ripe, court may still abstain.

1. Younger v. Harris Doctrine: Due to federalism concerns, federal court may still abstain. Let the court handling the prosecution decide the constitutional issue.

e. POLITICAL QUESTION DOCTRINE:i. What: Nature of the case (Not a who/when issue)

ii. Introductory Notes / History :1. Political Question Doctrine is an acknowledgement of the

Separation of Powersa. Constitutional [Art. III] & Prudential Foundations

2. Marshall’s Comments:a. Marshall indicated in Marbury v. Madison that

federal courts could not review certain cases because they were “political.”

4

b. However, Marshall also said in Cohens v. Virginia that “we have no more right to decline the exercise of jurisdiction … than to usurp that which is not given.”

3. Political Question does not mean cases cannot be reviewed because they involve “political values” or “the political process.”

iii. Baker v. Carr Factors : (Brennan)1. Cases should be held non-justiciable if:

a. There is a textually demonstrable constitutional commitment of the issue to a coordinate political department (Constitution explicitly gives power to another branch), OR

b. There is a lack of judicially discoverable and manageable standards for resolving the question (as opposed to having the courts decide a question without any initial policy determinations on the issue)

iv. Court’s Other Decisions on Political Questions :1. Powell v. McCormack:

a. Ruling: Congressional exclusion of an elected representative is justiciable.

i. “Qualifications” in Art. I, §5 only addresses age, citizenship, and state residency requirements.

2. U.S. v. Nixon:a. Ruling: The question of executive privilege does

not render a case non-justiciable.3. Goldwater v. Carter:

a. Ruling: The overruling of a treaty by the Senate is non-justiciable.

4. Coleman v. Miller:a. Ruling: The Amendment Process of the U.S.

Constitution is non-justiciable.5. Nixon v. United States:

a. Ruling: Validity of Senate Impeachment Proceedings is non-justiciable.

v. Most likely to be invoked in certain areas :1. Areas of traditional Presidential or Congressional

Competence2. Foreign Affairs3. National Security4. War Powers5. Constitutional Amendment Process

f. ***SOVEREIGN IMMUNITY & 11TH AMENDMENT: [Important for Exam]

5

i. Big Question : When May the Federal Government or any State Government be sued?

1. The Federal Government may not EVER be sued without its consent or waiver.

a. Ex. Federal Tort Claims Act; Tucker Act (waives immunity over claims arising out of contracts in which federal government is a party)

2. States (See Below)ii. Art. III : The Judicial power shall extend to all cases, in law and

equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their authority:

1. To all cases affecting ambassadors, other public ministers & consuls;

2. To all cases of admiralty and maritime jurisdiction;3. To controversies to which the United States shall be a

party;4. To controversies between two or more states;5. Between a state and citizens of another state;6. Between citizens of different states;7. Between citizens of the same state claiming lands under

grants of different states;8. And between a state or the citizens thereof and foreign

states, citizens, or subjects.iii. 11 th Amendment General Rule : (ONLY APPLIES TO STATES)

1. State can always be sued in State Court,2. States (and their agencies and departments) are immune

from suit in federal court.a. Exceptions :

i. Consent1. Consented to when state accepts

federal funds. Language of Statute must clearly state that acceptance of funds equals consent.

ii. Waiver:1. States voluntarily waive their

immunity.iii. USA or another state is plaintiff

1. Federal Government can sue state wherever/whenever it wishes to.

2. Same goes for states suing other states.

iv. Congress has properly abrogated the state’s immunity.

1. Abrogation Test:

6

a. Must have clear/unequivocal legislative statement of intent to abrogate.

b. Has Congress acted pursuant to valid grant of Constitutional Authority? (Only 14th Amendment (Discrimination) Not Commerce Power)

i. What is constitutional right at issue?

ii. Has Congress identified history of violation by States?

iii. Congruence & Proportionality between injury to be prevented/remedied AND the means adopted to that end.

*Same analysis applies when Congress attempts to abrogate state’s immunity from suit in state court. (Alden v. Maine)

v. Suit is for injunction against state officer in official capacity for prospective injunctive relief. (Ex Parte Young)

1. Edelman v. Jordan: No monetary relief allowed from a state treasury.

2. Problem: Injunctive Relief sometimes costs State money.

3. Stripping Doctrine: Government employee acts illegally in individual capacity Theoretically stripped of position’s power and can be sued.

vi. Suit is against state officer or employee in individual capacity to recover personal assets.

1. Government is still immune No Respondeat Superior liability.

vii. Suit is against municipality (city/county)II. NATIONAL LEGISLATIVE POWERS:

a. SCOPE OF CONGRESSIONAL POWER:i. Originally:

1. *Article I Requirement: Only enumerated powers. No inherent legislative powers, at least in domestic arena

7

Must show the “enumerated power” connection. (In time, this requirement has become less important.)

ii. McCulloch v. Maryland: (Marshall)1. No enumerated power for national government to create a

national bank, but there is express powers under Art. I, §8 “to lay & collect taxes, borrow money, regulate commerce, declare & conduct wars, and to raise & support armies”

2. Marshall argues for implied national government powers “It is a Constitution we are expounding…” Necessary & Proper Clause Bank was allowed.

3. *Necessary & Proper Clause: [Art. I, §8, Cl.18] “Congress shall have power to make all laws which shall be necessary & proper for carrying into execution the foregoing powers vested by the U.S. Constitution

a. Must provide :i. Legitimate End/Enumerated Power, AND

ii. Appropriate Means “reasonably adapted” for reaching that End/Power.

1. Comstock: Tried to change standard to rational relationship but overturned Allowed Congress more discretion.

2. Daisy Chain Principle How far down the chain is too attenuated for connection to an enumerated power?

b. Limitations :i. Pretext Principle: if Congress enacts

legislation for the accomplishment of objects not entrusted to the government, it will become the duty of the courts to declare the law unconstitutional even though Congress purported to be executing granted powers. (Used once in early 20th Century, but has not endured throughout time since then).

ii. 10th Amendment/Federalism: All powers not delegated to national government are retained by the States AND The People (Basic tenet of Federalism)

iii. No Ex Post Facto Laws Retroactive laws that criminalize an action, which was legal when it was committed, is NOT allowed.

b. COMMERCE POWER:i. Art. I, §8: Congress shall have the power to regulate commerce

among the several statesii. Overview: “Congress can…”

8

1. Regulate IC beginning to end, including all persons and all things moving in IC.

a. Production Transient Use (All covered)b. And all INTRASTATE Commerce that

substantially effects INTERSTATE Commerce (Daniel Ball)

2. Regulate Instrumentalities of IC (Ships, Roads, Rivers, Telephone, Internet)

3. Regulate Channels of IC (Hotels, Stockyards)4. Exclude ANYTHING from IC (Noxious Items) (Darby)5. Regulate ALL articles that have EVER crossed state lines

(creating an unending jurisdictional nexus)6. Regulate INTRASTATE activity that is NON-

COMMERCE (under N&P Clause) if Substantial Effect os found (Wickard, Raich)

a. Aggregation of Economic, but not Non-Economici. Lopez/Morrison Test:

1. No jurisdictional nexus.2. No person/thing moving in IC.3. No instrumentalities/channels.4. It is Non-Economic Activity.5. Traditional State Area/Power

(Criminal Law) vs. Large Comprehensive Federal Scheme of Regulation to Protect National Market

6. Findings/ Statistics Direct/Attenuated Effect on IC.

iii. Gibbons v. Ogden: (1824) Marshall’s Broad/Plenary Federal Powers Interpretation

1. Navigation of waters was determined to be included in “commerce.”

2. Greater problem lie in what is “among the several states” Marshall said it was “commerce that concerned more states than one.”

3. Thus, only intrastate commerce is not subject to Commerce Power.

4. Principal Restraint on this Power will be:a. The wisdom & discretion of Congress, AND THUSb. The power of people’s political process over that

Congress.iv. Remaining Questions on Commerce Power :

1. Even though Congress does not have express “POLICE POWER” (health, morals, well-being) in the U.S. Constitution, can they exercise an implied “police power”?

9

a. Champion v. Ames: (1903) Validated federal “police power” to prohibit lotteries.

i. Stated that Congress can protect people from the pollution of channels of interstate commerce.

b. Hammer v. Dagenhart: (1918) Struck down a federal “police power” to regulate goods produced by child labor.

i. Applied Marshall’s Pretext Principle (See Above)

ii. 10th Amendment argument: Said this is for the States to decide, not Federal Doctrine of Dual Federalism

iii. Distinguished from Champion Lottery case because the evil regulated here, preceded the interstate commerce.

iv. Dissent: (Holmes) Congress should be able to prohibit interstate commerce that is used to encourage moral evils.

c. United States v. Darby: (1941) Upheld federal act prohibiting shipment of goods made by workers being paid sub-standard wages and working excessive hours.

i. Justice Stone rejected Hammer’s Restrictive View AND Marshall’s Pretext Principle from McCulloch v. Maryland Returned to Champion Lottery.

ii. Congress should have discretion in excluding Articles of Commerce that it sees as injurious to Public Health, Morals, or Welfare. Opened the door to use of Commerce Power for social welfare purposes.

iii. Rejected Dual Federalism: Not the power of the States through 10th Amendment.

2. Even though Congress cannot regulate intrastate activity, can it regulate articles/activities in the STREAM OF COMMERCE?

a. Stafford v. Wallace: Upheld federal legislation regulating Chicago stockyard worker wages/hours.

i. Stockyards are “Channels” of Interstate Commerce

ii. The activities of the stockyard (though they may be intrastate) are at the ‘throat’ of AND feed the flow of the Stream of Interstate Commerce. Thus, Congress can regulate.

10

1. Throat: Notice there are things that still can’t be regulated by Congress (can’t just say, it was once in the Stream):

a. Agricultural production b. Miningc. Sale of Goodsd. Consumption of Goods

iii. Note that Stafford Stream of Commerce Doctrine was largely replaced by Aggregation Doctrine.

b. Heart of Atlanta Motel v. United States: (1964) Upheld Congressional Act to prohibit racial discrimination in hotels.

i. Hotels/Roads are “Channels” of Interstate Commerce

3. Even though Congress cannot regulate intrastate activity, can it regulate activity that has a SUBSTANTIAL EFFECT on Interstate Commerce?

a. Introductory Notes:i. Use of Necessary & Proper Clause: Federal

regulation of intrastate activity is appropriate when necessary to effectively regulate interstate commerce.

ii. Pre-New Deal: Intrastate Activity must have a “direct” effect on interstate commerce. Prevented courts from inquiring as to impact intrastate activities had on interstate commerce.

iii. Post-New Deal: Court increasingly began to inquire into the burdens intrastate activities placed on interstate commerce.

b. Wickard v. Filburn: (1942) Justice Jackson upheld federal legislation regulating production of wheat (for on-the-farm consumption)

i. Rejects the pre-New Deal “direct effect” test.

ii. Implemented the Aggregation Theory: if the cumulative impact of all activities of those similarly situated would have substantial effect on interstate commerce, then Congress can regulate this local activity.

c. Heart of Atlanta Motel v. United States: (1964) Upheld Congressional Act to prohibit racial discrimination in hotels.

11

i. Discouraging blacks from traveling is a substantial burden on interstate commerce.

ii. Only required Rational Basis between Congressionally Regulated Conduct & Effect on Interstate Commerce.

d. Katzenbach v. McClung: (1964) Upheld Congressional Act prohibiting racial discrimination in restaurants, even though not substantially involved in interstate commerce.

i. Applied Aggregation Theory: if some restaurants are allowed to discriminate then it will have a cumulative effect on interstate commerce.

ii. Only required Rational Basis between Congressionally Regulated Conduct & Effect on Interstate Commerce.

e. Perez v. United States: (1971) Upheld Congress’ federalization of Criminal Law by allowing it to implement legislation to prevent loan-sharking. (Criminal Law was traditionally an area for the States)

i. Congress could reasonably conclude that loan-sharking is a lucrative source of revenue for organized interstate crime.

ii. Aggregation: Thus, a cumulative effect on interstate commerce.

f. ***United States v. Lopez: (1995) [Important for Exam] Court invalidated Congressional Act prohibiting guns in school zones.

i. Limited the Commerce Clause Powerii. Factors in Determining Lack of Substantial

Effect on Interstate Commerce:1. Act did not have jurisdictional

nexus requiring connection between firearms and interstate commerce. (Persons & Things Transported, Instrumentalities, Channels, Substantial Effect)

2. Act did not regulate person/thing moving in IC.

3. Act did not regulate instrumentalities/channels of IC.

4. Regulated activity did not have a commercial character.

5. Traditional State Power (Not Federal)

12

6. Rational basis for Congress to tie activity to Interstate Commerce?

7. Congress presented no findings (statistics) on whether school violence had substantial effect on interstate commerce (Not required, but certainly helps)

a. Ex. Activity (School gun violence) only had an attenuated effect on interstate commerce.

g. United States v. Morrision: (2000) Invalidated Congressional ‘Violence Against Women Act.’

i. Lopez Factors Applied Again: (With new rule added)

1. Jurisdictional Nexus?2. Rational Basis (not direct effect)3. Regulated activity (violent criminal

conduct) not commercial in nature.4. State Area vs. Federal Area of

Concern.5. Although the Act contained findings,

they were not dispositive.6. ***Cannot aggregate effect that

the non-economic activity has on interstate commerce.

h. Gonzales v. Raich: (2005) Court upheld Federal Controlled Substances Act, which allowed federal agents to raid homes in search of narcotics, even when the plants were grown for medicinal purposes.

i. Court relief heavily on Wickard Aggregation Theory Congress had “rational basis” for believing that allowing home marijuana cultivation would have substantial effect on interstate commerce/national market.

ii. Economic Activity Rational Basis Substantial Effect

1. INTRASTATE Activity must be regulated for the sake of a larger National Comprehensive Scheme of Regulation

c. TAXING POWER:i. Art. I, §8, Cl.1: Congress shall have an independent power to lay

& collect taxes.ii. What is the primary purpose/motivation of the tax ? [Bailey v.

Drexel Furniture (1922)]

13

1. Fiscal: (Raising Revenue) GOOD TAX2. Regulatory: (Penalize Certain Conduct) BAD TAX

a. Factors for Determining if Tax is Regulatory:i. Scienter Requirement?

ii. Proportionate?iii. Governing Conduct or simple Tax Policy?

iii. New Doctrine of Objective Constitutionality: (Not on Exam)1. United States v. Kahriger: (1953) Upheld an occupational

tax on gamblers.a. As long as the federal law is revenue-producing

(fiscal) on its face, the Court will not probe to discover hidden regulatory motives AND will not be concerned with whether there is trespass on state police power.

d. SPENDING POWER:i. Art. I, §8, Cl.1: Authorizes Congress to use the federal monies to

provide for the common defense and the general welfare1. No express power to legislate for the general welfare.2. Spending Power (like Taxing Power) is fiscal in nature

rather than regulatory.ii. Hamilton vs. Madison View :

1. Hamilton: Spending power is a separate and distinct power of Congress’ aside from the enumerated powers.

2. Madison: Spending power is only a means for furthering the enumerated powers.

iii. Is Congress COMPELLING or merely trying to INDUCE States to adopt legislation/programs?

1. New York v. U.S.: Federal Government cannot compel states to implement legislation/programs.

2. Printz: Federal Government cannot commandeer state officers to execute federal programs.

3. Inducement is allowed. If you have Valid Conditions (that are not coercive) See South Dakota v. Dole Test

iv. South Dakota vs. Dole Welfare Test : (1987) [Only apply if there’s an argument that federal government is coercing the state(s)]

1. Is the spending for the general welfare?a. We substantially defer to Congress on these general

welfare questions.2. Does the statute unambiguously set forth the conditions that

must be met for participation (Fair Notice)a. Ex. Encouraging states to accept federal standards

in exchange for federal money is constitutional.3. Is condition related to the legitimate federal interest

advanced by the program? (The “Fit” Question)4. Does condition require state to violate Constitution?

14

a. Ex. Requiring Racial Discrimination5. Overall, is this coercion or mild encouragement?

a. Takes a lot for coercion to be present.i. South Dakota v. Dole indicated that 50%

reduction requirement would be excessive 5%-10% was fine.

e. FOREIGN AFFAIRS:i. Treaties :

1. Senate has authority to approve treaties (2/3 Majority)2. Senate can expand on its treaty power beyond that which is

enumerated UNLESS doing so would violate the Constitution

a. Ex. No treaties for Racial Discrimination3. When Congressional Legislation is in conflict with a

Treaty, the one passed later in time will take precedent.ii. War Powers :

1. Congress & Executive share power under Art. I, § 8.2. President: Commander in Chief, Take care that the laws be

faithfully executed.3. Congress: Lay & Collect Taxes for Common Defense,

Declare War, Letters of Marque & Reprisal, Raise & Support Armies, Regulation of Land/Naval Forces, Call up & Organize Militia, Suspend Writ of Habeas Corpus

f. IINTERGOVERNMENTAL IMMUNITIES:i. Taxation : Can States AND Federal Government tax each other?

1. Federal Immunity from States: States may not directly tax OR regulate federal government. (McCulloch v. Maryland)

2. States may not discriminate against federal government employees in an exemption from taxation on public employee retirement benefits.

3. No State Immunity from Federal Taxation.ii. Regulation : Can States AND Federal Government regulate each

other?1. National League of Cities v. Usery (1976) Test:

(Traditional vs. Non-Traditional State Government Function) Congress CANNOT regulate the hours/wages of state employees.

a. Dual-Federalismb. Traditional State Government Functions are

immuned from Federal Government regulation.c. Non-Traditional (Proprietary) State Government

Functions will NOT be immuned from Federal Government regulation.

2. Garcia v. San Antonio Metropolitan Transit Auth. (1985): (Overruled National League of Cities)

a. Reneged on Dual-Federalism

15

b. Blackmun changed sides saying it shouldn’t be up to the judiciary to decide what a traditional government function is.

c. Instead, the Traditional Government Function issue will be a Political Question.

3. Printz v. United States (1997): Congress cannot order state executive officers to enforce federal law. (Except for Simple Reporting)

a. Brought back one aspect of Dual-Federalismb. Viewed as a Federal “commandeering” of state

government with regulations.4. Reno v. Condon (2000): Court upheld Federal Act

prohibiting State Departments from releasing individuals’ personal information.

a. Rehnquist differentiated this case from Printz by saying that here Federal Government was regulating State Activities and NOT State Regulation over Individuals.

g. RESTRICTIONS ON CONGRESSIONAL POWER: (Review)i. No longer a distinction between Traditional & Non-Traditional

(Proprietary) State Functions Political Questionii. 10th Amendment prohibits federal government from compelling

states or commandeering state officers to execute federal legislation/programs (except for simple reporting)

1. But can induce with federal funds so long as it is not coercive (South Dakota v. Dole)

iii. Congress may lift state immunity & force states to enforce Substantive Due Process Rights, but CANNOT redefine these substantive rights:

1. Test:a. Must have Clear/Unequivocal Abrogationb. Federal Government must be acting pursuant to a

14th Amendment Right (Often Discrimination)i. Boerne Test:

1. What is the right at issue?2. Has Congress identified a history of

violation by the States?3. Congruence/Proportionality between

the injury and remedy?III. STATE POWERS:

a. Exclusive vs. Concurrent Power :i. Exclusively National Powers: War Power, Foreign Affairs, Coin

Money, Naturalizationii. Federal/State Concurrent Powers: Raise Revenues through

Taxation, Regulate State Militias, Criminal Law, Regulation of Business

16

b. DORMANT COMMERCE CLAUSE:i. Introductory Notes:

1. Commerce Power: Area where Congress has exercised its power.

2. Dormant Commerce Clause Power: Area where Congress could exercise its power, but has not yet.

3. Thus, in Dormant Commerce Clause issues, States are always the ones acting (taxing, regulating, etc.)

a. The States have police powers Exercise of police powers could have incidental effect on interstate commerce (Ex. Inspection Laws, Noxious Articles, Speed Limits)

ii. *(Consider deleting: outdated rule) Cooley v. Board of Wardens: (1851) Court upheld a state statute requiring local pilots for vessels. [Cooley Doctrine]

1. National Interest Exclusive Federal Regulation2. Local Interest Concurrent Regulation

iii. Modern Approach on Dormant Commerce Clause :1. If state regulation is for a local interest AND only

incidental effect on interstate commerce, it will be upheld if local benefit outweighs the burden on interstate commerce AND the regulation is the least restrictive means of promoting the local interest.

2. Test Breakdown:a. State Regulation Upheld if:

i. Local Interest (not national),ii. Only Incidental Effect on Interstate

Commerce,iii. (Pike Balancing) Local Benefit Outweighs

Burden on Interstate Commerce, AND1. Only Incidental Effects subject to

Pike Balancingiv. Least Restrictive Means to Promoting Local

Interest3. Scoville’s “Three Buckets” Test: (Largely the Same as

“Test Breakdown”:a. Simple Economic Protectionism (Facial &

Economic Discrimination: Protect In-State Firms)i. Must involve Discrimination of Economic

Activity.ii. Hardest “bucket” for State to win in.

iii. State must have:1. An extraordinary justification for the

regulation, AND

17

2. Regulation must be the least restrictive means to promoting the local interest.

iv. Hughes v. Oklahoma: (1979) State cannot prohibit the out-of-state sale of State’s minnows

1. Facially discriminatory.b. Discrimination is for Non-Economic Reason OR

Discrimination in Non-Facial , but has Discriminatory Effect/Undue Burden on Interstate Commerce:

i. Ex. State requirement on sizes of trucks Not just aimed at in-state residents & not just for economic protectionism, but rather a public safety or road concern.

ii. Discriminates against both in-state & out-of-state residents/business.

iii. State law is presumed invalid.1. State has intermediate chance of

winning.iv. State has Burden of Proof (Must show):

1. Justification for regulation is not related to economic protectionism, AND

2. Regulation is Least Restrictive Means of Promoting Local Interest.

v. Maine v. Taylor: (1986) Upheld Maine law prohibiting importation of certain fish due to unknown effects of their parasites on Maine fish.

1. Justification: Protect the Maine fish2. Least Restrictive Means to protecting

the Maine fish.c. State Regulation is for Legitimate Local Interest

AND Only has Incidental Burden on Interstate Commerce:

i. Ex. Inspection Lawsii. Easiest for the State to win.

iii. Burden of Proof is on Objector Not Stateiv. Only apply Pike Balancing Test in this

bucket: (Scalia & Thomas hate this Test Say it’s a Political Question

1. Local Benefit vs. Burden on Interstate Commerce.

2. Local Benefit must outweigh Burden on Interstate Commerce

18

v. Parker v. Brown (1943): Court upheld state law price fixing state’s raisins.

1. Apparently, Local Benefit of protecting California raisins is more important than any effect on Interstate Commerce

vi. Breard v. Alexandria (1951): Court upheld City Ordinance prohibiting door-to-door sales in city limits.

1. Local Benefit (Privacy) outweighs minimal effect on businesses because they have other means of selling their products.

iv. Exceptions to the Dormant Commerce Clause :1. CONGRESSIONAL ACTION:

a. Dormant Commerce Clause only applies to instances where Congress has NOT acted. If Congress legitimizes state authority, then State can regulate within the bounds of Congressional permission. Likewise, if Congress intends to occupy an entire field of regulation then Federal Preemption of State Law [Supremacy Clause; Art. IV]

b. Federal Preemption Factors:i. Does area require uniform regulation or is

diversity allowed?ii. Has Congress sought to regulate all critical

aspects of the area?1. Federal Agency have control over

the area?iii. Has the area historically been one of federal

or state concern/control?iv. Would an allowance of both state & federal

regulation create a conflict of laws? (Federal wins)

1. Two Types of Conflict:a. Physical Impossibility: It is

physically impossible to comply with both laws, OR

b. State is Obstacle to Federal: The state law, although not facially contrary to federal law, stands as an obstacle to accomplishing the full purpose of Congress. (Most

19

amorphous test Most often successful)

c. Federal Legitimization: Federal Government can pass legislation that grants all control over an area of regulation to the states. Federal authorization controls even if U.S. Supreme Court rules state regulation unconstitutional on Commerce Clause grounds [Prudential]

i. The more explicit/expressed the legitimization, the better the chance State regulation will NOT be overturned by Court.

2. STATE AS A MARKET PARTICIPANT:a. State is not acting in a regulatory capacity, but

rather, is participating in the market themselves as a buyer or seller.

3. DIRECT SUBSIDIZATION:a. But only from state’s general funds, not special

funds for limited purposes.4. EQUAL STATE TAXATION OF BOTH IN-STATE &

OUT-OF-STATE RESIDENTS/CORPORATIONS:5. INTERSTATE PRIVELEGES & IMMUNITIES [ART.

IV, §2]:a. Objective : Protect out-of-state citizens (ONLY

individuals, not corporations) from unreasonable discrimination in regard to their fundamental national interests (See Below)—interests that concern the nation’s vitality as a single entity.

b. Note :i. Always apply Privileges & Immunities

analysis with a Commerce Clause Analysis.ii. Distinguish Art. IV Privileges & Immunities

from 14th Amendment Privileges & Immunities:

1. Art. IV: protects out-of-state citizens from unreasonable discrimination in regard to fundamental national interests.

c. Rule :i. Doesn’t necessarily guarantee individual

rights or privileges Just requires that when States confer benefits on its citizens, it cannot deny to non-residents, UNLESS a substantial justification is demonstrated.

1. Usually “Substantial Justification” involves the State showing:

20

2. That the non-residents are a particular source of the problem that the State is seeking to remedy, AND

3. That the law bears a substantial relationship to the eradication of the problem.

ii. Also, make sure there is a fundamental national interest at stake Anything basic to the maintenance of the Union

1. Work (Private, not Public), Own Property, Travel to Nation’s Capitol, Access to the Courts Not Hunting / Fishing.

2. Taxes: States can’t burden non-residents with taxes that residents don’t have to pay.

a. Lunding: Tax deduction for New York residents that paid alimony, but not non-residents Unconstitutional.

3. Work: No resident quotas allowed for government construction contracts.

a. United Building & Const.: Municipalities are instruments of the state. Doesn’t matter that both in-state residents & non-residents are equally discriminated against.

IV. CONGRESS & THE EXECUTIVE POWER: [SEPARATION OF POWERS]a. Introductory Notes:

i. Enumerated Art. II Presidential Powers: To faithfully execute the laws, Commander in Chief, Pardon, Enter into Treaties, Appoint Ambassadors, Appoint Judges, Veto.

ii. Shared Power between President & Congress: President Vetos Congress Enacts/Overrides, President Enters Treaties Senate Ratifies, President Nominates & Appoints Senate Approves, President Executes Laws Congress Legislates the Laws.

iii. War Powers:1. President: Commander in Chief, Take care that the laws be

faithfully executed2. Congress: Lay & Collect Taxes for Common Defense,

Declare War, Letters of Marque & Reprisal, Raise &

21

Support Armies, Regulation of Land/Naval Forces, Call up & Organize Militia, Suspend Writ of Habeas Corpus

b. FOUR VIEWS OF PRESIDENTIAL POWER: [When is the President encroaching on the law-making process?]

i. Formalist Approach : (Black, J.) [More Power to Courts]1. Identify the nature of the act and which branch has the

constitutional power.2. Goal: Strictly define the roles of each branch of

government to avoid confusion Court Power.3. President’s job is to execute the laws, not legislate them.

a. Youngstown: (1952) Truman Sheet Metal Seizure Invalidated.

4. Criticism: Too rigid of an approach.ii. Functionalist Approach : (Jackson, J.) [More Power to Congress]

1. Presidential powers are not fixed, but fluctuate depending upon their disjunction or conjunction with the powers of Congress.

2. President can act in 3 separate scenarios:a. Tier 1 : When the President acts with Congressional

authorization, his constitutional authority is maximized.

i. Burden of Proof is on party challenging the President.

b. Tier 2 : When the President has to act on his own authority (Congress has not acted on particular issue)

i. Burden is uncertain because power may be concurrent or undecided.

ii. Look to previous cases to determine this Tier.

1. Curtiss: President has broad foreign affairs/national security powers.

a. Negotiate Treaties, Sole Representative of Nation

2. Dames & Moore: Congressional silence more than likely equals acquiescence.

c. Tier 3 : When the President decides to go against an act of Congress, his power is at its lowest.

i. Burden of Proof is on the President.iii. Stewardship Approach : (Vinson, J.) [More Power to President]

1. President should be granted authority to act until Congress stops him in order to best assure survival of nation in times of emergency.

2. President’s power is not unlimited because Congress can intervene at any time.

22

iv. Flexible Approach : (Frankfurter, J.) (Not important for Exam)1. In order to determine President’s powers, just look to

historical context to determine what prior executives have been allowed to do and prohibited from doing.

c. DELEGATION & ADMINISTRATIVE STATE:i. Non-Delegation Principle: Separation of Powers principle that

that which has been delegated cannot be re-delegated, UNLESS:1. Congress is acting upon an Intelligible Principle, which

requires: [Mistretta]a. *Goal/Objective : (Courts focus on this requirement

the most) Ex. Our goal is to stabilize prices to prevent speculative increases in prices & rents.

b. Means : Ex. Therefore, we will currently fix what the minimum prices will be.

c. Standard : Ex. When we set these minimum prices, we will refer to the pre-war prices first.

ii. Legislative Veto:1. Hard for Congress to retain to control over that which it has

delegated. [INS v. Chadha: Court invalidated Congressional veto of executive order involving deportation of aliens because Congress had delegated this authority to President]

2. Legislative Veto violates Presentment and Bicameralism Clauses.

a. Exceptions:i. Impeachment/Confirmation Hearings

b. Modern Trend: Congress attaches “pre-approval” clauses to all delegation legislation. (Ex. Congress grants delegation, but requires approval of Congressional committee of some actions.)

3. Differing Views:a. Formalist: Congress should be granted a strong veto

power by the courts.b. Functionalist: Congress should have a limited veto

power.iii. Line Item Veto:

1. President only vetoes parts of legislation passed by Congress. Must provide notice to Congress 5 days after veto. Court ruled this violates Presentment Clause. [Clinton v. City of New York, (1998)]

d. APPOINTMENT & REMOVAL:i. Art. II, §2, Cl.2 : “The President shall nominate, and by and with

the advice and consent of the Senate (NOT THE HOUSE), shall appoint Ambassadors, other Public Ministers & Consuls, Judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law, but the Congress may by law

23

vest the Appointment of such inferior officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

1. Buckley v. Valeo: (1976) Congress cannot vest the appointment power to a member of their own body.

ii. Distinguishing Principal Officers from Inferior Officers :1. Factors to Consider:

a. Is officer subordinate or independent?b. Scope of Officer’s Jurisdictionc. Extent of Officer’s Duties

2. Morrison v. Olson: (1988) Court allowed Congress to appoint Independent Counsel to investigate Executive Branch.

a. Independent Counsel is Inferior Officer Only specific task for limited time.

b. Inferior Officers can only be removed by showing of good cause by Superior Officer.

3. Bowsher v. Synar: (1986) Court ruled that Congress can NOT delegate executive authority to a Comptroller to review possible budget cuts and make recommendations to President.

a. This is a delegation of authority from Congress to Congress that is not allowed.

4. PCAOB Case (Accounting Board): Two layers of accountability is excessive. Board should be directly accountable to the President and not to SEC Commissioners.

iii. Presidential Removal of Executive Branch Officials :1. Myers v. United States: (1926) President has removal

power. Congress may not restrict President’s power to remove purely executive officials (Presidential Cabinet: Secretary of State, Secretary of Defense, etc.)

a. But Congress can restrict Presidential removal of officers in Independent Agencies (Two layers of Restrictions is too much.)

b. Congress may also restrict the removal of inferior executive officers not central to the functioning of the executive branch.

i. Distinguishing Principal Officers from Inferior Officers: (Factors to Consider)

1. Is officer subordinate or independent?

2. Scope of Officer’s Jurisdiction3. Extent of Officer’s Duties

24

2. Humphrey’s Executor v. United States: (1935) President cannot remove if official has quasi-judicial or quasi-legislative power.

e. EXECUTIVE PRIVILEGE & IMMUNITY:i. Introductory Notes:

1. Rationale for Privilege & Immunity:a. Court should not be able to hinder a President’s

ability to function while serving in his official capacity

2. Criticism:a. There are greater public interests that sometimes

outweigh a President’s need for protection. The President should not be held above the law.

ii. Privilege: (Evidence under Presidential Control)1. U.S. v. Nixon: (1974) While there is no Constitutional

provision establishing an executive privilege, the Courts still grant protections for confidential communications between an executive and his advisors UNLESS there is an interest that overrides the privilege.

a. Presumptive (Not Absolute)i. But almost absolute on military, diplomatic,

or national security matters.b. Balancing Test of Presidential Interest vs. Public

Interesti. Criminal Interest of Due Process

outweighed Nixon’s Executive Privilege.2. Nixon v. Administrator of Gen. Servs.: (1977) Court said

Congressional interest in preserving access to historical materials outweighed Presidential Privilege.

iii. Immunity: (Presidential Liability)1. Nixon v. Fitzgerald: (1982) Court ruled that President has

absolute immunity from damages liability for acts within official capacities and sphere of authority of the President (Sphere is interpreted very broadly)

a. Alternative Checks on President: Impeachment, Press, Congressional Scrutiny, Popular Opinion of Electorate

2. Clinton v. Jones: (1997) Court ruled that:a. Presidential immunity does not extend beyond

official action of President, ANDb. Actions do not have to be deferred until President is

out of office.V. INDIVIDUAL RIGHTS & LIBERTIES:

a. SUBSTANTIVE DUE PROCESS:i. ***Always discuss Substantive Due Process when addressing

Questions with Federal Statutes.

25

ii. Introductory Notes:1. Bill of Rights assured individuals of their freedoms.

a. Federalist (Original Constitution)b. Anti-Federalist (Additional Bill of Rights)

2. ***14th Amendment was the vehicle that made the Bill of Rights binding on the states. (No state shall deprive the privileges or immunities of citizens of the United States)

a. Contrasting Views on HOW the 14th Amendment should apply to the states.

i. Total Incorporation: All of the Bill of Rights shall apply to the States -versus-

ii. ***Selective Incorporation: [Important for Exam] Only some of the Bill of Rights should apply to the States

1. Ultimate Question: Which rights are “fundamental rights”?

iii. Slaughter House Cases: (1872) Court read out the Privileges & Immunities Clause as a meaningful constitutional guarantee.

1. 14th Amendment only extends protection for privileges & immunities of national citizenship not state citizenship. (Petition Congress, Interstate Travel, Use Navigable Waters

2. Fundamental rights derive from state citizenship. Congress should not be censors for this state relationship with its citizens.

iv. Lochner v. New York: (1905) Court invalidated a New York law prohibiting employers from employing workers in bakeries more than ten hours per day and 60 hours per week.

1. Interferes with Liberty of Contract, which is protected by Due Process Clause.

a. “Right to Contract” was inferred as a protected “Liberty.”

v. Nebbia v. New York: (1934) Court upheld a New York minimum price law for milk.

1. Knocked out the Legitimate State Objective requirementvi. Substantive Due Process Theories :

1. Social Compact: (Chase) People have natural fundamental rights that are provided by a higher authority than the U.S. Constitution.

a. Viewed as an approach that protects minorities.b. Individuals like this approach

2. Positivism: (Iredell/Holmes) There is no higher fundamental law that outranks the U.S. Constitution. If the Constitution does not afford people a right, then the right does not exist for our purposes.

a. Viewed a democratic (majority rules) approach.

26

b. States like this approach. If you don’t like it, write your Congressman.

vii. The Substantive Due Process Test :1. Economic Due Process: (Gives more discretion to

Legislature)a. State Law is upheld unless Unreasonable,

Unnecessary & Arbitrary interference with the right of the individual to his personal liberty.

b. Rational Relationship between the state law (means) and a legitimate government objective? (Presumed Valid)

i. “Rational Relationship” is the most lenient level scrutiny and almost always results in upholding the state law.

ii. Nebbia made the legitimate objective requirement less important.

c. Is the state law the least restrictive means?2. Non-Economic Due Process: (Intermediate Scrutiny)

a. Issues this relates to: Dormant Commerce Clause, Gender Discrimination, Privileges & Immunities

b. Is the state law substantially related to a state objective?

c. Is the law the least restrictive means?3. Fundamental Rights Due Process: (Constitutional Law II)

[Not on Exam]a. Most rigid test. Hard for State to overcome.b. Objective must involve a very compelling state

interest.c. Means must be very narrowly tailored (least

restrictive means)b. CONTRACTS CLAUSE:

i. Art. I, §10 : “No State shall enter into any Treaty, Alliance, Confederation, grant Letters of Marque & Reprisal, coin money, emit bills of credit, make any Thing but gold and silver Coin a Tender in Payment of Debts, pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligations of Contracts, or grant any title of nobility.

1. Prohibits any state from enacting laws that retroactively impairs contract rights Applies only to state legislation.

ii. Contracts Clause Test : 1. Does legislation change terms of an existing public OR

private contract?a. Private: [Rational Basis Review]

i. State regulation must substantially impair a contractual relationship.

27

ii. Does statute serve a significant legitimate state interest/purpose? (Remedying a broad & general social or economic problem)

iii. Is the statute rationally related to achieving that goal?

b. Public: [Higher Level of Scrutiny]i. Is the impairment necessary to serve an

important state interest?ii. Intermediate scrutiny. (More scrutiny when

government modifies a contract to alter its own obligations)

VI. STATE ACTION DOCTRINE:a. Overview of Law :

i. 13th Amendment: [Prohibits Individuals] Bans slavery/involuntary servitude, applying to states and individuals AND Grants Congress the power to enforce. (Implemented by Civil Rights Act of 1866)

ii. 14th Amendment: [Prohibits State Action ONLY] Prohibits States from denying Privileges & Immunities of U.S. Citizenship

iii. § 1983: Provides cause of action for violation of any rights “under color of law” or State Action. [This is the method for getting into federal court for a violation of your rights by state officers.]

1. Questions of § 1983:a. Color of Law/State Action?, ANDb. Violation of Federal Right?

b. State Action Basics :i. General Rule :

1. Constitution regulates governments, not private parties [Must show State Action] (Initial Exception: 13th Amendment Can always sue for violation of this Amendment no matter who is acting.)

2. Spectrum of State Action:a. No question that it is State Action with State

Employeei. Ex. Public School Teacher

b. Private Individuals with No Connection to Stateii. Exceptions :

1. Public Function : This includes state & local legislation, executive action, and judicial action.

a. Is individual serving a government function?i. Look for a “Traditional Government

Function” (Ex. Running a town as opposed to Managing a Wal-Mart)

1. Evans v. Newton (1966): Court ruled that park formerly owned by municipality could not discriminate against African-Americans The

28

character & purpose of parks are municipal. (Liberal Case)

ii. Rule: State Action will be found in the exercise by a private entity of powers traditionally “Exclusively” reserved to the State. (Just because state does things sometime, does not mean it is always state action Must be exclusive)

1. Jackson v. Metro. Edison Co. (1974): Utilities were turned off.

2. But government regulation does not equate to State Action

iii. Examples:1. Company Towns2. Picking a Jury3. Political Parties/Elections4. Prisons/Jails, even when contracted

to private party5. Municipal Parks (Yes, but not really

anymore)6. Medical Care of Prisoners (even

though private doctor)2. Involvement or Encouragement by State : When private

party either acts like or is entangled in the actions of the state, the Court will apply the constitution to their conduct as well.

a. State Requires/Orders: State is requiring some private action by statute or court order State Action

i. Peterson v. Greenville (1963): State statute forbidding restaurants to sit whites & blacks together. This is clearly discriminatory State Action

ii. Shelley v. Kraemer (1948): Courts may not give private discrimination the force of law.

1. State Action exists because plaintiff is challenging a COURT order and not a private entity’s action.

2. Individuals free to discriminate UNLESS they need the enforcement power of the courts to do it.

iii. Moose Lodge (1972): Liquor license does not implicate State Action No direct impact.

b. State Allowance: State allows private action so long as conditions are met first (Gray Area)

29

Look to the nature of the right (Just ask, “How much is State involved?”)

i. Flagg Brothers, Inc. v. Brooks (1978): Statute allows warehouse salesman to act (sell a defaulting renter’s property), but only if renters meet certain conditions. Court said warehouse owner’s actions were NOT State Action. Private action was “allowed” and not compelled by state.

1. Would have been different if state said you MUST act a certain way, not that private parties are ALLOWED to act.

ii. Fuentes: Statute allowing ex parte court orders requiring the Sheriff to seize the DF’s assets violates Due Process.

c. State’s Failure to Act: State ignores when a private entity may do something NOT State Action

i. State’s repeal of laws does NOT constitute a failure to act Rather it is a Requirement and thus, constitutes State Action. (But there is a counterargument to this Repeal can also be viewed as failure to act (and thus, no state action)

ii. See Deshaney (sp): No obligation on state to protect citizens from other citizens (Review)

VII. PROCEDURAL DUE PROCESS:a. Constitutional Origins :

i. 5th Amendment: No person shall be deprived of life, liberty, or property without due process of law

ii. 14th Amendment: Nor shall any state deprive any person of life, liberty, or property without due process of law.

b. Types of Procedural Due Process :i. Criminal (Counsel, Fair Trial, Confrontation Clause, etc.)

ii. Deprivation of other Liberty or Property Interestsc. The Basic Analysis :

i. Is the actor the federal or state government or a person acting under color of law?

ii. Is there a protect-able liberty or property interest? (Do Due Process requirements apply at all?)

1. Property Interests: (Rights AND Privileges can be Property)

a. Old Law: Court decides if subjectively important or objectively important (depending on court)

b. Examples of Property: Money, Land, Chattel

30

i. Goldberg v. Kelly: Welfare Benefits are Property because they are “important to the individual for their subsistence.

ii. Bell v. Burson: Driver’s License as Propertyc. Modern Law: Must have some origin in

independent source like state law, rule, or contract before Court will acknowledge it as a property interest.

i. Roth: Unilateral expectations are NOT sufficient Look to the nature of the interest, not its importance. (Must have legitimate expectation of entitlement)

1. Substantive Predicates that restrict official discretion (Ex. Can’t fire me unless X is found because I have tenure.)

ii. Bishop v. Wood: Policeman fired did not have procedural due process violated. Just because you have a process right does not mean you have a property interest. (Police officer was “terminable-at-will”)

1. At-will: Doesn’t matter if state law warrants notice and a hearing. Can still be fired.

d. Benefits:i. Property interest when there is a legitimate

expectation based on state law.e. Claims for Relief:

i. Are always propertyii. It can be sold, released, etc.

f. Education:i. Child has legitimate expectation (property &

liberty interest) in public education.2. Liberty Interests:

a. Liberty interests may arise from Constitution itself, OR

i. Ex. Freedom of physical restraint; Freedom of Placement in Mental Institution; Parental Rights; Freedom of Deportation (But NOT Exclusion/Coming here Illegally); Right to Marry, Work, Procreate.

b. They may arise from State Law (Once State gives you these things, they generally cannot take them away without due process)

i. Professional Licensesii. Driver’s Licenses

31

iii. Being released on parole (Maybe) Depends on presence of substantive predicates in state law)

1. Ex. State law does not give full discretion to a parole board. = Due Process

iv. Being placed in prison close to home Based on statutory language. (Different Laws = Different Results)

c. Liberty Interest in Reputation: Damage to reputation alone is not sufficient to be a protect-able property/liberty interest. Must have some more tangible interest such as employment.

i. Stigma Plus Test : Has the person been falsely accused by a state actor in a way that will prevent them from attaining some state benefit?

1. State Busted Magazine:a. Once convicted, it is no

longer false.b. Reputation alone.

iii. Has there been a Deprivation?1. Scienter requirement Intentional. (Following Official

State Policy (“Officer shall take property if…” or is it Random & Unauthorized Action?)

a. Negligence OR Inaction is not enough for there to be deprivation. (Accidents won’t suffice)

2. If adequate state remedy exists, no deprivation from a random and unauthorized act. (Prison Guard Boom Box Example)

3. Regulation is not a deprivation. (Lawnmower after-hour use No due process violation).

a. Must deprive of ALL reasonable use of property.4. No deprivation when everyone is affected the same way.

Only when there’s an issue about how a law applies to a specific person. (But they may raise Substantive Due Process Issues)

a. Substantive Due Process contests what the law says at all.

iv. How much process is due?1. This is always a Federal Issue (Even if State has its own

process).2. Fundamentals :

a. NOTICEb. OPPORTUNITY TO BE HEARDc. IMPARTIAL DECISION-MAKER

32

3. Mathews v. Eldridge Factors :a. How important to the litigant is the right that is

being denied?b. How much will additional procedures really prevent

erroneous outcomes?c. The strength of the government’s interest to avoid

expensive, time consuming hearings?

33