Outline Constitutional Law1

7/31/2019 Outline Constitutional Law1

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CHAPTER 1 - THE FEDERAL JUDICIAL POWER

A. The Authority for Judicial Review1. Marbury v. Madison

a. It is emphatically the province and duty of the judicial department to say what the lawis.

2. The authority for judicial review of state court decisions was established in the following twocases:

a. Martin v. Hunters Lessee (civil case involves property)i. Article Three of the Constitution grants the U.S. Supreme Court jurisdiction and

authority over state courts on matters involving federal laws. This case alsoestablishes the SCs supremacy in constitutional interpretation.

b. Cohens v. Virginia (criminal case involves lottery tickets)i. The U.S SC has appellate jurisdiction of any U.S. case and final say.

3. Federal Judicial Power [Art. III, section 2]a. The SC may review state court opinions, but only to the extent that the decision was

decided based on federal law [and other jurisdictional grounds learned in Civ Pro:federal question, diversity, supplemental jurisdiction, etc.]

B. Limits on the Federal Judicial Power

1. Interpretative Limits (how should the Constitution be interpreted?)a. 2 Views

i. Originalism is the view that judges deciding constitutional issues should confinethemselves to enforcing norms that are stated or clearly implicit in the writtenConstitution.

ii. Interpretative is the view that courts should go beyond that set of references andenforce norms that cannot be discovered within the four corners of the document[Going beyond the four corners of the Constitution]

2. Congressional Limitsa. The Exceptions & Regulations Clause

i. Art. III provides that the SC shall have appellate jurisdiction, both as to Law and

Fact, with such Exceptions, and such Regulations as the Congress shall make.[May Congress use this to define the type of cases to be heard before SC?]

a. Ex Parte McCardle Congress has the general authority to decide whattypes of cases the Supreme Court may hear.

b. Congress also may decide what lower federal courts there should be, andwhat cases they may hear.

b. Separation of Powers as a Limit on Congresss Authorityi. United States v. Klein [Congress passed law that limited a persons ability to

recover property despite the fact his crime has been pardoned by the President]The legislative branch cannot impair the exclusive power of another branch.

c. dfdf

3. Justiciability Limits [In order for a case to be heard in federal courts, the plaintiff mustovercome the justiciability requirements.]

a. Prohibition of Advisory Opinionsi. Overview: The federal courts may not issue opinions based on abstract or

hypothetical questions. This stems from the fact that the Constitution limitsfederal jurisdiction only to cases and controversies.

ii. Two Elements: 1) Actual disputes between adverse litigants; 2) Substantiallikelihood court decision will bring about change or have an effect on the suit.

iii. Declaratory Judgment requires the justiciability elements, but without theremedy. It will declare the rights of the parties. However, its borderline of anadvisory opinion.


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iv. Finality a court decision/judgment will provide finality to the case. Anattempt to pass on the issue once again would constitute an advisory opinion.

b. Standing (deals with who is a proper party to litigate) (Hunt the apple case)i. Overview: A plaintiff must allege personal injury fairly traceable to the

defendants alleged unlawful conduct and likely to be redressed by the requestedrelief. [use for Exam].

a. Two types of cases: 1) Plaintiffs alleging their rights as taxpayers; and2) Plaintiffs alleging individualized injury.

ii. Two Types of Standinga. Constitutional Requirements

i. Requirements deemed to be imposed by the Art. III case orcontroversy requirements and could not be overridden byCongress. [Cong. cannot pass legis. to restrict]

ii. Elements: [Hook case: Lujan v. Defenders of Wildlife standsfor the elements of standing.]

1. Injury in Facta. Injury must be concrete and individuatedb. Lujan - Must be actual and imminentc. City of LA v. Lyons held no standing because

the likelihood of P being choked again by LADPwas low.

2. Causationa. There must a causal connection between the

injury and conduct complained of.b. Two components: But for analysis and a

favorable decision in the suit will redress theinjury.

3. Redressabilitya. It must be likely, as opposed to speculative, that a

favorable court decision will address the injury.

b. Linda v. Richard [spouse seeks to jail Hus for pastdue child support] no standing, the prospect ofrelief too speculative. No guarantee the husbandwill pay child support even if jailed.

c. Warth v. Seldin [P sues to invalidate ordinancesthat limited the building of multi-family dwellingsin Rochester, NY] held no standing, even ifordinances were invalided, P might not be able toafford to live there.

b. Prudential Standing Requirementsi. Non-constitutional judgments about what constitutes wise policy

in administering the judiciary. No standing in the followingsituations:

1. Limitation of Third Party Standing General rule is thatone cannot sue on behalf of third party. Exceptions

a. Close Relationshipi. Singleton v. Wulff (abortion doctors sue

on behalf of patients) held yes onstanding. Two elements: closeness ofrelationship and whether third party canassert claim himself.


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ii. Newdow held no standing where courtdecision will not only affect rights of theplaintiff bringing the suit but rights ofothers that are in dispute (wife anddaughters rights in conflict withhusband.)

b. Associational Standing

i. Hunt v. Washington Apple (ass. sues on

behalf of its members) held yes onstanding. Elements: 1) individualmember has right to sue on their ownbehalf; 2) interests that group is seeking toprotect is germane to groups mission; 3)claim does not require participation ofmembers (evidence, etc)

2. No Generalized Grievancesa. The prohibition against generalized grievances is

a prudential principle preventing standing whenthe asserted harm is common to all members of

the public.b. Rule before 1968: Frothingham v. Mellon A

taxpayer had no standing to attack the validity ofgovernment spending.

c. Rule after 1968: Flast v. Cohen held that ataxpayer may challenge the constitutionality of afederal faxing or spending program if there is alogical nexus between the status of the taxpayerand the claim.

i. Two-prong Nexus Test: 1) the statutechallenged arise under the Taxing and

Spending Clause of Article I, section 8; 2)the challenged law violates specificconstitutional limitations imposed on thatTaxing and Spending Power, not simplythat the statute is generally beyond thepowers delegated to Congress by Article1, section 8.

d. Valley Forge Christian College Court refused toextend Flast exception because the statutechallenged concerns with the property transfer notrelated to the Taxing and Spending Clause.

c. Ripeness (deals with when a case should be litigated)i. Ripeness is a justiciability doctrine determining when review is appropriate. A

case will be regarded as not yet ripe if it has not yet fully become sufficientlyconcrete to be worthy of adjudication

ii. Everything below has to be done and ready for adjudication. Example: guywanting to sue for disability benefit but has not gone through hearing and appealprocess. Administrative Remedies.

iii. Ripeness relates to advisory opinion wherein courts are only concern with case orcontroversy.


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iv. Ripeness is best understood as the determination whether a federal court can grantpreenforcement review; for example, when may a court hear a request for adeclaratory judgment, or when must it decline review.

v. Poe v. Ullman Existing criminal statute which prohibits the giving ofcontraceptive advice and which is seldom enforced, lacks the immediacy forripeness.

vi. Abbott Laboratories v. Gardner : An issue is ripe when the issue will causehardship if consideration is withheld and the issue is fit for judicial review. This is

the Abbot Laboratories test.a. Criteria for Evaluating Ripeness : The fitness of the issue for judicial

decision (legal issues, etc.); Hardship to the parties for withholding courtconsideration.

d. Mootness (deals with when a case should be litigated)(Is it too late?)i. Mootness is a justiciability doctrine determining when review is appropriate.

ii. A case is moot if it raised a justiciable controversy at the time the complaint wasfiled, but events occurring after the filing have deprived the litigant an on goingstake in the controversy.

a. Example: DeFunis v. Odegaard P sues school for discriminatoryadmission policy. By the time the case was heard, P was in 4th year of

law school and was permitted to graduate. Held legal issue is moot.b. Exceptions: Case will still be heard even if issue is moot if

i. Wrongs capable of repetition, yet evading review.1. Roe v. Wade - even if the termination of the pregnancy

occurred, injury is repeating to other women.ii. If the defendant voluntarily ceases the allegedly improper

behavior but is free to return to it at any time.1. Friends of the Earth Inc. - A defendants voluntary

cessation of a challenged practice does not deprive afederal court of its power to determine the legality of thepractice, unless the practice becomes incapable of being

repeated.iii. Class action suits. (may not moot the case)

1. The Supreme Court has held that a properly certifiedclass action suit may continue even if the namedplaintiffs claims are rendered moot. The Court hasreasoned that the class of unnamed persons described inthe certification acquired a legal status separate from theinterest asserted by the plaintiff, thus so long as themembers of the class have a live controversy the case cancontinue.

2. U.S Parole Commission An action brought on behalf of

a class does not become moot upon expiration of thenamed plaintiffs substantive claim, even though the classcertification has been denied.

e. The Political Question Doctrine (issues that should be left to the other branches)i. The Political Question Doctrine Defined

a. The judicial principle that a court should refuse to decide an issueinvolving the exercise of discretionary power by the executive orlegislative branch. This doctrine is defended on separation of powersground.


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1. The Initial Era Broad Constitutional Interpretation and Narrow Tenth Amend.a. Overview From early in American history until 1890s, the commerce power was

broadly defined but minimally used.b. Gibbons v. Ogden Broad view of commerce power. Court held Congress could

legislate with respect to all commerce which concerns more States than one, it alsoincluded all commercial intercourse. Thus, Congress could regulate mattersoccurring within a state, so long as the activity had some commercial connection withanother state. Here, federal law could affect NY waters, if voyages beginning in NY

ended in New Jersey.2. The 1890s-1937: A limited Federal Commerce Power

a. Overview During this period, Court was deeply committed to laissez-faire,unregulated economy.

b. The Court applied three doctrines: 1) narrowly defined commerce; 2) applied arestrictive conception of what is among the states; 3) Congress violates the TenthAmendment when it regulates matters left to state governments.

c. Court insisted upon a direct and logical relationship between the intrastate activitybeing regulated and interstate commerce.

d. What is Commerce? [narrowly defined]1. United States v. E.C. Knight Co . The Commerce Clause does not empower

Congress to regulate manufacturing.2. Carter v. Carter Coal Co. The Commerce Clause does not empower Congress

to regulate production of coal which may or may not be shipped across statelines.

e. What does Among the States Mean? [restrictive conception]1. Houston, East & West Texas Railway Co. v. U.S. [Shreveport Rate Case is an

exception ] Congress has the power to regulate intrastate commerce if itimpacts interstate commerce. [i.e. If intrastate spills over to interstatecommerce, then Congress has the power to act.]

2. ALA Schechter Poultry Corp. v. U.S. - The federal government has noauthority to regulate intrastate transactions having an indirect effect on interstate

commerce. Schechters buying and selling of chickens within the local marketwere not in the stream of interstate commerce.

f. Does the Tenth Amendment Limit Congressional Powers?1. Hammer v. Dagenhart (child labor in mines) - Congress cannot, under its

commerce power, pass a law prohibiting the transportation in interstatecommerce of products of companies that employed children as laborers inviolation of the terms of the law.

2. Champion v. Ames (lottery case) - Under its power to regulate commerce,Congress may, for the purpose of guarding the morals of the people andprotecting interstate commerce, prohibit the carrying of lottery tickets ininterstate commerce [an exception to the broad interpretation of 10th Amend]

3. The 1937-1990s: Broad Federal Commerce Powera. Three theories: 1) substantial economic effect (NLRB); 2) cumulative effect

(Wickard); 3) an expanded commerce-prohibiting protective technique (Darbyreversing Hammer)

b. Beginning NLRB, Court has substantially loosened the nexus required between theintrastate activity being regulated and interstate commerce.

c. Commerce Clause1. NLRB v. Jones & Laughlin Steel Corp. - Under the Commerce Clause,

Congress has the power to regulate any activity, even intrastate production, if theactivity has an appreciable effect, either direct or indirect, on interstatecommerce [substantial effect on interstate commerce].


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a. Determinative Test: What is the effect on interstate commerce, not theinjury that will place something within the interstate commerce.

b. Note: This was the first case following President Roosevelts attempt toimplement the court packing plan.

2. United States v. Darby - Congress has the power to regulate the hours andwages of workers who are engaged in the production of goods destined forinterstate commerce and can prohibit the shipment in interstate commerce ofgoods manufactured in violation of the wage and hour provisions.

a. Congress has the power to regulate the production of goods forcommerce.

b. The power over interstate commerce is not confined to the regulation of

commerce among the states, but includes regulation of intrastateactivities which so affect interstate commerce as to make regulation ofthem an appropriate means to the end of regulating interstate commerce.Here, Congress has determined that the employment of workers insubstandard conditions is a form of unfair competition injurious tointerstate commerce, since the goods so produced will be lower pricedthan the goods produced under adequate conditions.

c. The significance of Darby is that it overrules Hammer in finding that

production is part of interstate commerce.3. Wickard v. Filburn [Aggregate Theory] That appellees own contribution

to the demand for wheat may be trivial by itself is not enough to remove himfrom the scope of federal regulation where, as here, his contribution, takentogether with that of many others similarly situated, is far from trivial.

4. Generalization (three cases above): Congress can regulate any activity,intrastate or interstate, that has a substantial effect on interstate commerce.Indeed, Congress can regulate activities that themselves have little effect oninterstate commerce if the activity, looked at cumulatively throughout thecountry has a substantial effect on commerce.

d. The Meaning of Commerce Among the States

1. Heart of Atlanta, Inc. v. United States [hotel case] - The power of Congress topromote interstate commerce also includes the power to regulate the localincidents thereof, including local activities in both the States of origin anddestination, which might have a substantial and harmful effect upon thatcommerce.

a. Held racial discrimination has a disruptive effect on commercialintercourse.

b. The means chosen by it must be must be reasonably adapted to the endpermitted by the Constitution.

2. Katzenbach v. McClung [Ollies Barbecue] - Although an activity is local andmay not be regarded as commerce, it may still be reached by Congress, if it

exerts a substantial economic effect on interstate commerce. [46% of the foodwas purchased from suppliers outside of the State.]

a. Held racial discrimination in restaurants had a direct and adverse effecton the free flow of interstate commerce.

3. Perez v. United States - Loan Sharking affects interstate commerce even thoughit is purely intrastate.

e. The Tenth Amendment Between 1937 and the 1990s1. The issue is whether the statute violates local or state government sovereignty?2. National League of Cities v. Usery Held the Tenth Amendment barred

Congress from making federal minimum wage and overtime rules applicable to


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state and municipal employees. It impairs the states integrity or their ability tofunction effectively in the federal system.

a. This case was subsequently overruled by Garcia.3. Garcia v. San Antonio Metropolitan Transit Authority - The test for determining

state immunity from federal regulation under the Commerce Clause is notwhether the state activity sought to be regulated is a traditional state function,but rather whether the regulation as applied to the state activity is destructive ofstate sovereignty or violative of any constitutional provision.

a. Held Fair Labor Standard Act does not violate the Tenth Amendment.b. In overruling Usery, the Court held state sovereign interests are protected

by procedural safeguards inherent in the structure of the federalsystem. [Senators and electoral college system in electing presidents.]

c. Note: Eight years later, Garcia overruled Usury on the basis that werenot regulating the state as the state but were regulating the state as theemployer.

4. Hodel v. Virginia Surface Mining & Reclamation Association Test for theTenth Amendment: For a federal law to violate the Tenth Amendment, itneeded to regulate the States as States; it must address matters that areindisputably attributes of state sovereignty; it must directly impair the States

ability to structure integral operations in areas of traditional governmentalfunctions; and it must not be such that the nature of the federal interest justifiesstate submission.

4. 1990s-????: Narrowing of the Commerce Power and Revival of the Tenth Amendment as aConstraint on Congress?

a. What Is Congresss Authority to Regulate Commerce Among the States?1. United States v. Lopez [gun case, noneconomic] Invalidated federal gun

statute on the grounds that it was beyond Congresss Commerce Powera. No jurisdictional nexus: Little connection to commerce. [not just gun

that had moved in interstate commerce, but any gun.]b. Substantial effect required on Commerce. The 1990 federal Gun-Free

School Zones Act exceeded Congress's Commerce Clause regulatorypowers.

c. Note: The noneconomic and criminal nature of the case helped steer theCourt towards finding the Act did not have a substantial effect oninterstate commerce.

d. A law passed under the Commerce Clause must relate to: (1) a channelof interstate commerce [Darby; Heart of Atlanta Motel]; (2) aninstrumentality of interstate commerce [Shreveport Rate Cases; SouthernR. Co. v. United States]; or (3) an activity having a substantial effect oninterstate commerce [Jones & Laughlin Steel]. THIS IS THE CURRENTLAW.

i. Channels: Congress can regulate in a way that is reasonablyrelated to highways, waterways, and air traffic.

ii. Instrumentalities: People, machines, trucks, and other thingsused in carrying out commerce.

iii. Substantial effect: activity is commercial and if activity is non-commercial, then the jurisdictional nexus to interstate commercemust be strong.

e. Jurisdictional Hook Note, Act constitutional if it limited to guns thathad moved in interstate. It intends to limit the reach (commerce).

2. United States v. Morrison [rape case] (noneconomic)


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a. Congress may not, under the Commerce Clause, regulate noneconomic,violent criminal conduct based solely on that conducts aggregate effecton interstate commerce.

b. There are three main categories of activity Congress may regulate underits Commerce Clause power: (1) the use of channels of interstatecommerce; (2) regulation or protection of the instrumentalities ofinterstate commerce or persons or things in interstate commerce, thoughthe threat may come from intrastate activities; and (3) the power to

regulate those activities having a substantial relation to interstate[whether the matter discuss has a substantial impact on interstatecommerce.]

b. Synthesis1. Where the transaction is being regulated is itself a clearly commercial or

economic one, the Court will probably continue to allow Congress to regulatethat transaction, even if its a completely intrastate one, as long as its part of aclass that, in the aggregate, substantially affects interstate commerce.

2. But where the activity in being regulated is essentially a non-commercial (non-economic) one, the Court apparently will not regard the aggregate impact of thatactivity on interstate commerce as being sufficient, unless either: 1) the causal

link is extremely short and direct; or 2) the item being regulated, although non-commercial, crosses state lines or enters the stream of interstate commerce.

c. Does the Tenth Amendment Limit Congresss Authority?1. The following cases seem to cut back the broad scope of Garcia. New York and

Printz seem to stand for the proposition that Congress may not 1) commandeer astate to legislate or regulate in a certain way; 2) require state executive branchpersonnel to perform even ministerial functions.

2. New Yorkv. United States [Hazardous waste, take title provision]a. Congress may not commandeer a state to enact a certain statute or to

regulate in a certain way.3. Printz v. United States [Brady gun bill]

a. Congress cannot compel state(requires)/local officials to performfederally specified administrative tasks.

4. Reno v. Condon [ personal, identifying DMV info is a thing in interstatecommerce]

a. Congress may regulate the states' activities where the regulation does notrequire the states in their sovereign capacity to regulate their citizens.

C. The Taxing and Spending Power1. Basic Power Article I, section 8, gives Congress the power to lay and collect taxesto pay

the debts and provide for common defense and general welfare of the United States.2. Independent federal power

a. The power to tax is an independent source of federal authority. Congress may tax

activities or property that it might not be authorized to regulate directly under any ofthe enumerated regulatory powers.

3. Regulatory effect nearly any measure enacted in the form of a tax will have at least anincidental regulatory effect.

a. No disguised regulation4. U.S. v. Butler

a. Congress may not regulate in a particular area merely on the ground that it is therebyproviding for the general welfare; it is only taxing and spending which may be donefor the general welfare.

5. Chas C. Steward Mach. Co. v. Davis Social security tax on income held valid.6. Sabri v. United States


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a. The absence of a nexus between federal funding and prohibited conduct does notresult in a statute's presumed unconstitutionality.

1. Analysis: The Court overcame the lack of jurisdictional hook (the nexus betweenfederal money and the bride) through the use of the Proper and NecessaryClause. Congress has the power to see that taxpayer dollars are properly spentand not siphoned and misused through corrupt officers. Therefore, Congress canemploy rational means such as 666 to combat bribery directly.

7. Conditions on Grants to State Governments

a. Congress may place strings on such grants, so long as the conditions are expresslystated and so long as they have some relationship to the purpose of the spendingprogram.

b. The spending power is subject to the following restrictions: 1) the exercise of thespending power must be in pursuit of the general welfare.; 2) the conditionsattached to the federal grants by Congress must be unambiguous, enabling the Statesto exercise their choices knowingly, cognizant of the consequences of theirparticipation; 3) the conditions of the federal grants might be illegitimate if they areunrelated to the federal interest in particular national projects or programs.[Germaneness between condition and purpose, it has to be related.] And theconditions cannot violate any provision of the Constitution.

c. Implication of the Tenth Amendment: The Court has recognized that sometimespressure turns into compulsion and implicates the Tenth Amendment. However,under the present case, Dakota only stood to lose 5% of its funding if it did notcomply with the minimum drinking age. That amount could not be said to arise tocompulsion in violation of the Tenth Amendment.

D. Congresss Power Under the Post-Civil War Amendments1. Overview

a. Thirteenth Amendment adopted 1865, prohibits slavery and involuntary servitudeb. Fourteenth Amendment adopted 1868, provides that all persons born or naturalized

in the U.S. are citizens and that no state can abridge the privileges or immunities ofsuch citizens; nor may states deprive any person of life, liberty, or property without

due process of law or deny any person of equal protection of the laws.c. Fifteenth Amendment - No discrimination against the right to vote.

2. Whom May Congress Regulate Under the Post-Civil War Amendments?a. Jones v. Alfred H. Mayer Co [13th Amendment]. racial discrimination in

selling/buying real property1. Held Congress had the power, under the 13th Amendment, rationally to

determine what are the badges and incidents of slavery. It was interpretedbroadly to encompass private racial discrimination in real estate transactions.

2. Congress can prohibit purely private discrimination under the 13th Amendment,if it finds that the discrimination is a badge or incident of slavery.

3. Note: Self-executing scope of 13th Amendment: Broad view of the badges and

incidents of slavery applies only where Congress has enacted a statute under itspowers to enforce the 13th Amendment. If no statute is involved, narrow readingto badges and incidents of slavery except peonage.

b. United States v. Morrison [14th Amendment] (rape case and the Women AgainstViolence Act)

1. It is not within Congress 5 powers to reach purely private conduct, even ifthat conduct interferes with rights protected by the 14 th Amendment [butCongress can regulate conduct of state officials].

2. Held Fourteenth Amendment, by its very terms, prohibits only state action.3. What Is the Scope of Congresss Power? [Two views]


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a. Different views as to the scope of Congresss power under the post-Civil WarAmendments and particularly under 5 of the Fourteenth Amendment.1. Section 5 The Congress shall have power to enforce, by appropriate

legislation, the provisions of this article. This is also known as the remedialpowers.

b. One approach is narrow and accords Congress only authority to prevent or provideremedies for violations of rights recognized by the Supreme Court.1. Congress cannot expand the scope of rights or provide additional rights.

2. City of Boerne v. Floresa. Congress could not use its 14th Amendment remedial powers to prevent

local governments from unintentionally burdening individuals religiousfreedom in certain ways.

b. Boerne overruled Katzenbach.c. Congresss power under 5, however, extends only to enforcing the

provisions of the Fourteenth Amendment. On the distinction betweenlegislating and enforcing, the Court held there must be a congruence andproportionalitybetween the injury to be prevented or remedied and themeans adopted to that end. [MUST KNOW]

3. Florida Prepaid v. College Savings Bank

4. Kimel v. Florida Board of Regentsc. Congress has the authority to expand the scope of rights or even to create new rights

1. Congress may create rights by statute where the Court has not found them in theConstitution, but Congress cannot dilute or diminish constitutional rights.

2. Katzenbach v. Morgan and Morgan

a. This Court is of the opinion that by including section 5, the draftsmen

sought to grant Congress, by a specific provision applicable to theFourteenth Amendment, the same broad powers expressed in theNecessary and Proper Clause, Art. I, 8, cl. 18. [the rational ends andmeans test].

b. This case stands for the broad interpretation of the section 5 of the 14 th

Amendment.E. Congresss Power to Authorize Suits Against State Governments

1. Background on the Eleventh Amendment and State Sovereign Immunitya. 11th 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 theUnited States by Citizens of another State, or by Citizens or Subjects of any foreignstate. (Constitution)

b. 11th Amendment was adopted to overrule Supreme Courts decision in Chishom v.Georgia involved an attempt by a South Carolina citizen to recover money owed bythe state of Georgia.

c. Hans v. Louisiana (1890) held 11th Amendment also bar suits against a state by its

own citizens.d. Two conflicting views: 1) 11th Amendment is broader constitutional restriction on

federal court subject matter jurisdiction for all suits against state governments and 2)11th Amendment restricts only the diversity jurisdiction of federal courts; therefore, itdoes not bar suits based on federal jurisdiction.

2. Three Ways to Around 11th Amendment to Hold State Government Accountable in Fed Courta. Suing state officers forinjunctive reliefor for damages to be paid by them.b. State waiver of the immunity, but waiver must be explicit.c. Congress acting pursuant to 5 of the Fourteenth Amendment may authorize suits

against state governments.


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3. Congresss Power to Authorize Suits Against State Governmentsa. Congress may authorize suits against states pursuant only to 5 of the 14th

Amendment1. Seminole Tribe of Florida v. Florida

a. Congress may not abrogate the states' immunity from suits pursuant to itsArticle I powers. This decision overrules Pennsylvania v. Union GasCo.

b. Seminole held only the post-Civil War Amendment remedial powers, not

the Commerce clause, could serve as the basis for a Congressionalabrogation of the 11th Amendment immunity.

i. 5 of the Fourteenth Amendmentii. It was originally thought that Congress could abrogate the states

11th Amendment immunity through Art. I, 8 of the CommerceClause, however, Seminole held no.

b. Cases Denying Congress Authority to Act Under 5 to Sue States1. Florida Prepaid Postsecondary Edu. Expense Bd. v. College Savings Bank & US

a. Private firm sued Florida for patent infringement pursuant to the PatentAct.

b. The Patent Remedy Act cannot be sustained under 5 of the Fourteenth

Amendment to abrogate states immunity.c. In determining whether the Congress has abrogated states sovereign

immunity, two part analysis: 1) Whether Congress has unequivocallyexpressed its intent to abrogate the immunity; 2) Whether Congress hasacted pursuant to a valid exercise of power.

d. Held statute did not meet Boerne test of congruence and proportionality.2. Kimel v. Florida Board of Regents

a. Whether the Age Discrimination in Employment Act of 1967 contains aclear statement of Congress intent to abrogate the States 11 th

Amendment immunity and, if so, whether the ADEA is a proper exerciseof Congresss constitutional authority?

b. Held Congress intent was clear but ADEA was beyond Congresssconstitutional authority.

3. Board of Trustees, University of Alabama v. Garretta. In order to authorize private individuals recovery of money damages

against a state, there must be a pattern of discrimination by the Stateswhich violates the 14th and the remedy must be congruent andproportional to the targeted violation.

4. Congresss Power to Authorize Suits Against State Government in State Courtsa. Alden v. Maine

1. Held powers delegated to Congress under Article I of the United States do not

include the power to subject nonconsenting States to private suits for damagesin state courts.2. 11th Amendment also prevents the State from being sued in state court without

its consent.

CHAPTER 3 THE FEDERAL EXECUTIVE POWER

A. Inherent Presidential Power1. Introduction Unlike the Congress, whose powers are much more closely delineated (by

Article I, 8), much of the Presidents power, in both domestic and foreign spheres is implied.2. Youngstown Sheet & Tube Co. v. Sawyer [steel mill seizure case]


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a. Held the President did not have the power to seize the steel mill as such conductconstituted lawmaking function reserved in Congress.

b. The Presidents powers are not fixed but fluctuate, depending on their disjunction orconjunction with those of Congress. Justice Jacksons concurring opinion. Threecategories:

i. Where the President acts pursuant to express or implied authorization ofCongress, in which case his authority is at its maximum;

1. Implied authorization could be derived from acquiescence

ii. Where the President acts in the absence of either a congressional grant or denialof authority, in which case there is a zone of twilight in which he and Congresshave concurrent authority, or in which its distribution is uncertain; and

iii. Where the President acts in contradiction to the express or implied will ofCongress; in this case, his power is at its lowest ebb. Steel mill case.

3. The Issue of Executive Privilegea. Issue whether and under what circumstances the President can invoke executive

privilege.b. United States v. Richard M. Nixon

i. Absent a claim to protect military, diplomatic, or sensitive national securitysecrets, an absolute, unqualified President privilege of immunity from judicial

process under all circumstances does not exist.B. The Authority of Congress to Increase Executive Power

1. This section focuses on the power of Congress to enhance the powers of the President byconferring authority not contained in the Constitution. Underlying this issue are two differentviews of separation of powers:

i. One approach sees separation of powers as appropriately resolved, whenever possible,

between the President and Congress; if the two branches agree, the courts (judicial

branch) only rarely should invalidate their actions.

ii. The other view sees separation of powers as constitutionally mandated and therefore

envisions a crucial judicial role in enforcing its requirements.

2. Presentment Clausei. Provides that after a bill has passed both houses of Congress, but before it has become a

law, it must be presented to the president; if he approves it, he shall sign it, but if not he

shall return it, with his objections to that house in which it shall have originated, who

shall proceed to consider it. [The Presidents return of the bill is known as

presidential veto.]

3. William J. Clinton v. City of New York(Line Item Veto Act, where President was given the

power to sign bill and then line veto item)

i. Held Line Item Veto Act held unconstitutional because it violated the Presentment

Clause. This case illustrates Congresss attempt to broaden the Executive power.

C. The Constitutional Problems of the Administrative State1. Introduction Creation of administrative agencies in the last century: FDIC, SEC, FDA, EPA,

etc.a. These agencies exercise all of the powers of government: legislative, executive, and

judicial.b. The tension explored throughout this section is on how to reconcile the practical need

for administrative agencies in the complex, modern world with basic principles ofseparation of powers and checks and balances.

2. The Non-Delegation Doctrine and Its Demise


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a. The non-delegation principle that Congress may not delegate its legislative power toadministrative agencies is illustrated in ALA Schechter Poultry and Panama RefiningCo. These cases were decided during 1930s prior to Roosevelts court-packing plan.

b. In the almost 70 years since Schechter and Panama Oil, not a single federal law hasbeen declared an impermissible delegation of legislative power by the Supreme Court.

3. The Legislative Veto and Its Demisea. Following the demise of the non-delegation doctrine, Congress created the legislative

veto as a check on the actions of administrative agencies. A typical form of legislative

veto provision authorized Congress to overturn an agencys decision by a resolution ofone house of Congress.

b. Immigration and Naturalization Service v. Chadha

i. Held that a typical one-house legislative veto was unconstitutional, because itviolated both the Presidents veto power and the bicameral structure ofCongress.

ii. Under Chadha, if the House or Senate wants to reserve power to undo the actionof administrative agency, both houses will have to pass the same bill and presentit to the President for a possible veto.

c. Only 4 provisions in the Constitution that one House may act alone with theunreviewable force of law, not subject to the Presidents veto:

i. House of Representative was given the power to initiate impeachment;ii. Senate alone was given the power to conduct trials following impeachment;

iii. Senate alone was given to power to confirm/deny presidential appointments.iv. Senate alone was given unreviewable power to ratify treaties negotiated by the

President.4. Checking Administrative Power

a. Other checks on administrative agencies:i. Congress can enact statutes directing agencies to perform certain tasks or

denying them authority in particular areas, subject to the procedures for

bicameralism. [Subject to the Presidents veto power.]

ii. Congress controls the budget of administrative agencies and can exercise their

influence through the control of the appropriation to the agency.

iii. Congress appointment and removal power.

b. Independent (Special) Prosecutori. Sections 591-599 of the Ethics in Government Act (Act) allow for the

appointment of an "independent counsel" to investigate and prosecute

appropriate certain high-ranking government officials for violations of criminal

laws.

ii. The Attorney General conducts an initial investigation, and only if the Attorney

General applies to the Special Division, created by the Act, for appointment of

independent counsel, is independent counsel appointed.iii. Independent counsel's tenure is governed by two provisions. The first provision

allows the Attorney General, on his own personal action, to remove independent

counsel for good cause. Independent counsel can seek judicial review of this

decision. The other provision allows termination of independent counsel's office

when he informs the Attorney General he has substantially completed his

investigations or prosecutions undertaken under the Act, or when the Special

Division so determines.

iv. Congressional oversight of the activities of independent counsel.

v. Morrison v. Olson


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1. Issue: Independent counsel was a principal officer and his appointment

without Senate confirmation was a violation of the Appointment Cl.

2. Held the independent counsel provisions of the Ethics in Government

Act are not violative of the Appointments Clause of the Constitution.

a. Independent counsel is an inferior officer to whom the President

need not be given appointment power. Therefore, Congress may

delegate the appointment to the judiciary.

c. The Appointment Poweri. The President is given the power to appoint federal officers.

ii. Principal officers and inferior officers1. Principal Officers are selected by the President with the advice and

consent of the Senate. [e.g. top-level, cabinet officers] ambassadors2. Inferior officers may be appointed by the President alone, by the heads

of departments, or by the Judiciary.a. Congress cannot make the appointment itself but it may give the

power of appointment to the parties noted above.3. Dividing line between Principal and Inferior officers: Principal Officers

are usually Cabinet officials, ambassadors, and federal judges.

4. Inferior Officer; empowered to perform only certain limited duties, haslimited jurisdiction, limited tenure. There is a thin line separating asuperior and an inferior officer. When not sure then analyze as such: ifthe court determine that the officer is a Superior officer then.

d. The Removal Poweri. There is no provision of the Constitution concerning the Presidents authority to

remove executive branch officials. The principle that has emerged from thecases is that, in general, the President may remove executive officials unlessremoval is limited by statute.

ii. President has power to remove1. Myers Postmaster

iii. Congress limits the Presidents power to remove1. Humphrey member of FTC [position was intended to be independent

of political control]2. Weiner member of the War Crime Commission [independence and

impartiality were required on its face for the position; the removal of this

position requires good cause.]

3. However, as established in Bowsher (comptroller), Congress may not

reserve the right to remove an executive officer for cause, except in the

event of an impeachment.

iv. Where a federal appointee holds a quasi-judicial or quasi legislative role,

Congress may limit or completely block the Presidents right of removal.D. Separation of Powers and Foreign Policy

1. Are Foreign Policy and Domestic Affairs Differenti. The Constitution says very little about foreign policy decision making. This is an area

of constitutional law where reliance on the framers intent is particularly difficult.ii. However, the Supreme Court frequently has declared that issues concerning foreign

policy are non-justiciable political questions; matters for the executive and legislature toresolve without judicial review.

iii. United States v. Curtiss-Wright Export Corp [D challenges the constitutionality of banto sell arm to Bolivia]


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1. Supreme Court upheld resolution, stressing the very delicate, plenary andexclusive power of the President as the sole organ of the federal government inthe field of international relations.

2. Here, the Presidents power was at its maximum because he was acting inaccordance with Congress Justice Jacksons concurrence in Youngstown.

2. Treaties and Executive Agreementsi. A treaty is an agreement between the United States and a foreign country that is

negotiated by the President and is effective when ratified by the Senate (2/3 of

Senators). An executive agreement, in contrast, is an agreement between the UnitedStates and a foreign country that is effective when signed by the President and the headof the other government.

1. Executive agreementa. No Senate ratification is required on executive agreement.b. Executive agreements are held constitutional. Executive agreements,

like treaties, prevail over state law and policy. United States v. Pink2. Legislative- Approves the treaty3. The Court interprets the treaty

3. War Powersi. The Constitution, in Article I, grants Congress the power to declare war and the

authority to raise and support the army and the navy. Article II makes the President theCommander-in-Chief.

ii. Courts silent1. Courts have traditionally stayed away from war issues citing justiciability and

political question issues.iii. Sudden Attack

1. It is settled that the President may commit our armed forces to repel a suddenattack upon the United States itself. Prizes cases [SC held for Lincolns decisionto blockade Southern ports following confederate attack]

iv. President committing forces without congressional approval1. The question is unsettled. The key question should be whether waiting for

congressional action would do irreparable harm to the vital interests thatexecutive intervention is designed to serve.

E. Presidential Power and the War on Terrorism1. Detentions

i. Hamdi v. Rumsfeld whether an American citizen apprehended in a foreign countrycould be indefinitely detained as an enemy combatant.

1. Held a United States citizen designated and detained as an enemy-combatant hasa due process right to challenge the underlying factual support for thatdesignation before a neutral arbitrator.

2. Enemy combatant an individual who is part of or supporting forces hostile tothe US or coalition partners.

ii. Geneva Convention applies only to prisoners of war, does not apply to enemycombatant.

2. Military Tribunalsi. Military Tribunal military court designed to try enemy forces during wartime.

ii. Gemmel quoted 5 cases as holding military tribunals as constitutional.iii. Ex Parte Quirin [Germans detained after sneaking into NY]

1. Held military tribunal constitutional. Under Justice Jacksons concurrence inYoungstown, the Presidents authority was at its maximum power because hewas acting in accordance with Congress. [there was a law that allowed militarytribunal]

F. Checks on the President


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1. Suing and Prosecuting the Presidenti. How can the President be held accountable?

ii. Nixon v. Fitzgerald

1. The President is entitled to absolute immunity for all official acts while in office.iii. Clinton v. Jones

1. The President is not entitled to any immunity for civil acts that occur beforetaking office.

2. Impeachment

i. Article II, 4 provides: The President, Vice President and all civil Officers of theUnited States, shall be removed from Office on Impeachment for, and Conviction of,Treason, Bribery, or other high Crimes and Misdemeanors.

CHAPTER 4 LIMITS ON STATE REGULATORY AND TAXING POWER

A. Introduction1. This section focuses on limits on state power that derive from the existence of a national

government and of other states. Two situations:i. Congress has acted. It preempts state and local law Supremacy Clause.

ii. Congress has not acted. State and local laws could still be challenged under twoprinciples:

1. Dormant Commerce Clause state and local laws are unconstitutional if theyplace an undue burden on interstate commerce.

2. Privileges and Immunities [Article IV, 2] The Citizens of each State shallbe entitled to all Privileges and Immunities of Citizens in the several States.(Look for discrimination against out of staters)

2. >>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>B. Preemption of State and Local Laws

1. Express Preemptiona. Even where theres express preemption, the issue will be the scope. Its whether

Congress intended to cover the particular matter in dispute.b. The key point is that provisions in federal statutes expressly preempting state and local

laws inevitably require interpretation as to their scope and effect.

2. Implied Preemptiona. Conflicts Preemption

i. If a federal and a state law are mutually exclusive, so that a person cannotcomply with both, the state law is deemed preempted.

ii. If fed allows pollution above that level, a stricter state regulation is in conflictwith fed law. However, if fed was just setting the floor, a stricter stateregulation is not in conflict. Florida Lime case.

b. Preemption Because State Law Impedes the Achievement of a Federal Objective

i. Even if federal and state laws are not mutually exclusive, preemption will befound if the state or local state law interferes with attaining a federal legislativegoal.

ii. PG&E case [construction of nuclear power plant] - case illustrates the conflict indetermining fed objective. Here, CA law held constitutional because fed focuseson radiology aspect while state focuses on economics.

c. Preemption Because Federal Law Occupies the Fieldi. Field preemption is where the scheme of federal law and regulation is so

pervasive as to make reasonable the inference that Congress left no room for theStates to supplement it. [courts have generally found field preemption in areasof immigration and foreign policy]


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1. Note: field preemption is found even when the state law is found tocomplement the federal law and even in the absence of expresspreemptive language.

ii. Supreme Court has long has held that federal law is exclusive in regulatingimmigration.

d. In analyzing preemption look at legislative intent, history, and is it setting a floor orceiling.

C. The Dormant Commerce Clause (does not require to discriminate against out of staters)

1. Overview: The Dormant Commerce Clause is the principle that state and local laws areunconstitutional if they place an undue burden on interstate commerce.

a. Note: Theres no express provision in the Constitution that declares states may notburden interstate commerce. Instead, SC has held this is implied in the grant of powerto Congress to regulate commerce. [Article I, 8]

b. Note: If the Congress passes the law the issue will be the Commerce Clause. If thestate passes the law, the issue will be the Dormant Commerce Clause.

2. Why a Dormant Commerce Clausea. H.P. Hood & Sons [application to open milk plant denied citing destruction to local

competition.i. Held the State may not promote its own economic advantages by curtailment or

burdening of interstate commerce. Peoples of the several states must sink orswim together and that in the long run prosperity and salvation are in the unionand not division.

ii. This case illustrates precisely the reason for the dormant Commerce Clause.3. The Dormant Commerce Clause Before 1938

a. Cooley case Pennsylvania requiring every ship passing or entering its port to use alocal pilot.

i. Held state law constitutional.ii. Cooley local versus national distinction test : Whether the subject matter being

regulated was local or national. The states were free to regulate thoseaspects of interstate commerce that were ofsuch a local nature as to require

different treatment from state to state. But states could not regulate those thatrequire a uniform national treatment.

iii. Cooleys shortcomings : It was not always easy to determine which subjectsrequired uniform national treatment and which needed a diverse local regulation.Also, the Cooley test ignored the impact on commerce.

4. The Contemporary Test for the Dormant Commerce Clausea. The Shift to a Balancing Approach

i. The police power /commerce power test of Gibbons and the local/nationalsubject matter test of Cooley attempted to draw rigid categories of areas wherefederal law was exclusive and those where states could regulate.

ii. The modern approach is in dormant commerce clause cases is whether the

benefits of the state law outweigh its burdens on interstate commerce.iii. Modern Approach A state regulation which affects interstate commerce must

meet each of the following requirements in order to be upheld:1. the regulation must pursue a legitimate state end;2. the regulation must be rationally related to that legitimate end; and3. The regulatory and discriminatory burden imposed by the state on

interstate commerce must be outweighedby the states interest inenforcing its regulation.

b. Determining Whether a Law Is Discriminatoryi. Overview: If the Court concludes that a state is discriminating against out-of-

staters, then there is a strong presumption against the law it will be upheld only


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if it is necessary to achieve an important purpose. Strict scrutiny test will beused.

1. In contrast, if the Court concludes that the law is non-discriminatory,then the presumption is in favor of upholding the law, and it will beinvalidated only if it is shown that the laws burden on interstatecommerce outweighs its benefits.

ii. Facially Discriminatory Laws (the intent is obvious in the language)1. Laws that expressly draws a distinction between in-staters and out-of-

staters.2. Sometimes state attempts to keep natural resources and limit their

accessibility to out-of-staters:a. City of Philadelphia (bans out of state trash)b. Carbone (law mandating all trash be processed by one local

processing plant)c. Hughes (ban of sale of minnow outside of state line)

3. The Court has held that reciprocity requirements are faciallydiscriminatory.

4. The Court has held local regulations that treat out-of-staters in adisparate manner will be treated as discriminatory even though they also

discriminate against those in other parts of the state. Apply strictscrutiny [Deans Milk co. v. Madison]

iii. Facially Neutral Laws

1. SC has held that facially neutral laws could be found to bediscriminatory if they either have the purpose or the effect ofdiscriminating out-of-staters. Stated differently, a facially neutral lawcan be found discriminatory if there is proof of a discriminatory impactin the facts. (Must discern the intent and the effect)

a. Washington Apple (North Carolina requires different label) held law unconstitutional.

b. Exxon Corp (gas producer may not operate gas station in state,

Exxon was thus prohibited from selling gas to its own gasstations in the state) law upheld as constitutional despite itsdiscriminatory effect because the discrimination was not found tobe impermissible. The ban applies equally to all in-state and out-of-state refineries.

c. West Lynn Creamery Law held unconstitutional if it helps in-staters at the expense of out-of-staters.

d. Clover Leaf Creamery (law banning use of milk plasticcontainer) held law not unconstitutional- burden is not clearlyexcessive in light of substantial state in interest in promotingconservation.

e. Maine v. Taylor (ban of certain fish entering the state due toparasites) A facially discriminatory law is constitutional whereless discriminatory alternatives are unavailable.

2. Criteria, first a law is likely to be found discriminatory if its effect toexclude virtually all out-of-staters [not just one group as in Exxon andClover Leaf Creamery]. Second, a law is likely to be founddiscriminatory if it imposes costs on out-of-staters that in-staters wouldnot have to bear [Hunt]. Third, the Court is likely to find discriminationif it believes that a law is motivated by a protectionist purpose, helpingin-staters at the expense of out-of-staters.


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c. Analysis if a Law is Deemed Discriminatory

i. A state or local law that discriminates against out-of-staters will be upheld onlyif it is proved that the law is necessary to achieve an important governmentpurpose. The strict scrutiny test will be used. Such a law will be allowed only ifit is proved that the law is necessary the least restrictive means to achieve anonprotectionist purpose.

1. This test is illustrated by Dean Milk Co. law failed because reasonableand adequate alternatives are available

ii. Burden is on the state to justify local benefits flowing from statute and theunavailability ofless restrictive means [Washington Apple]

d. Analysis if a Law is Deemed Non-Discriminatory

i. Pike v. Bruce Church (cantaloupes packing) establishes the test used inanalyzing laws that are not discriminatory.

1. Non-discriminatory (treat in-staters and out-of-staters alike) laws areupheld so long as the benefits to the government outweigh the burdens ofinterstate commerce.

2. Where the statute regulates even-handedly to effectuate a legitimate localpublic interest, and its effects on interstate commerce are only incidental,it will be upheld unless the burden imposed on such commerce is clearlyexcessive in relation to the putative local benefits.

ii. Note: The Court has consistently declared unconstitutional state laws thatregulate the out-of-state conduct of businesses. Held law a direct restraint oninterstate commerce because the state was controlling conduct beyond theboundaries of the state.

e. Exceptions to the Dormant Commerce Clause

i. Two exceptions where laws that otherwise would violate the dormant CommerceClause will be allowed

1. Congressional Approval if Congress approves the state lawa. Note: Although a law will not violate the dormant Commerce

Clause if there is congressional approval, it still can bechallenged under other Constitutional provisions.2. The Market Participant Exception

a. If the state is literally a participant in the market, such as with astate-owned business, and not a regulator, the dormantCommerce Clause does not apply.

b. Reeves (state-run cement plant discriminates against out-of-staters) In the absence of congressional action, nothing in theCommerce Clause prohibits a state from being a marketparticipant (as opposed to a regulator) and acting in that capacityto favor its own citizens over others.

c. South-Central Timber Development (state sell timber butrequires that timber be processed by in-state companies) heldthe State may not avail itself of the market participant doctrine toimmunize its downstream regulation of the timber-processingmarket in which it is not a market participant.

i. This is an important limit on the market participantexception: State businesses may favor in-statepurchasers, but they may not attach conditions to a salethat discriminate against interstate commerce.

5. Summary


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a. State laws that discriminate against out-of-staters are almost always declaredunconstitutional. Such a law will be allowed only if it is proven that the law isnecessary the least restrictive means to achieve a non-protectionist purpose.

b. If a law does not discriminate against out-of-staters, the Court balances its burdens oninterstate commerce against its benefits. The inquiry is fact dependent and the outcomeobviously turns on how the Court appraises the burdens and the benefits.

D. The Privileges and Immunities Clause (requires to discriminate against out of staters)1. Introduction

i. The dormant Commerce Clause is not the only way to challenge state law that burdensinterstate commerce, especially if it discriminates against out-of-staters. Suchdiscrimination can also be challenged under the Privileges & Immunities Clause.

ii. Article IV, section 2: The citizens of each state shall be entitled to all Privilegesand Immunities in the several states. The SC has interpreted this provision as limitingthe ability of a state to discriminate against out-of-staters with regard to fundamentalrights or important economic activities.

1. Note: SC has held citizens in the P&I is limited to individuals, thuscorporations cannot bring claim.

2. Comparing the dormant Commerce Clause and the Privileges and Immunities Clause

Dormant Commerce Clausecommon law base

Privileges & Immunities ClauseConstitutional base

Type of discrimination Any laws that burdens InterstateCommerce

Only if it discriminates against out-of-staters

Who can sue Corporations & aliens Only citizens

Exceptions? Yes, if Congress approves, it doesnot violate the dormant CC; marketparticipant theory

No exception

3. Analysis Under the Privileges and Immunities Clause

i. Analysis1. Has the state discriminated against out-of-staters with regard to privileges and

immunities that it accords it own citizens?2. If there is such discrimination, is there a sufficient justification for the

discrimination.3. Note: The P&I Clause is not absolute, but it does create an assumption against

the state and local laws that discriminate against out-of-staters.ii. What Are the Privileges and Immunities of Citizenship?

1. Privileges and Immunities Clause have generally been applied in two contexts:a. When a state discriminates against out-of-staters with regard to

constitutional rights; and

b. When a state is discriminating against out-of-staters with regard toimportant economic activities. (usually affecting ability to earn alivelihood)

i. Toomer (law that charges residents $25 license fee for shrimpingand $2,500 for nonresidents) held violation of Privileges andImmunities Clause.

ii. City of Camden (ordinance requiring contractors working for thecity to hire workers within city) - The Privileges and ImmunitiesClause applies to municipal ordinances that discriminate on thebasis of municipal residence. Ordinances are enacted


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under the municipality's power derived from thestate.

iii. LesterBaldwin (Elk hunting license fee higher for non-residents) Access to elk hunting is not a right protected under thePrivileges and Immunities Clause (only applies to constitutionalrights and important economic activities right to earnlivelihood.

iii. What Justifications Are Sufficient to Permit Discrimination?

1. Kathryn Piper (state law limiting bar admission to residents) - A residencyrequirement for the practice of law violates the Privileges and ImmunitiesClause.

2. The Privileges and Immunities Clause is not an absolute, and discriminationagainst nonresidents is allowed where there is a substantial reason for thedifferential treatment, and the discrimination bears a substantial relationship tothe state's objectives. In deciding the relationship between the discrimination andobjectives, the Court considers the availability of less restrictive means.

CHAPTER 5 THE STRUCTURE OF THE CONSTITUTIONS PROTECTION OF

CIVIL RIGHTS AND CIVIL LIBERTIES

A. Introduction1. The 7 Articles of the Constitution are primarily about the structure ofgovernment and not individual rights. Some states were concerned about the absence of anenumeration of rights, thus 10 amendments were subsequently ratified and added as the Bill ofRights.2. The Supreme Court initially concluded that the Bill of Rights applied only to thefederal government. In the twentieth century, the Supreme Court applied most of the Bill ofRights to the states by finding that the provisions were incorporated into the Due ProcessClause of the Fourteenth Amendment.

B. The Application of the Bill of Rights to the States1. The Rejection of Application Before the Civil Wara. Barron v. Mayor And City Council of Baltimore [taking of private property]

i. The Fifth Amendment only applies to the federal government, not the states.ii. Bill of Rights do not apply to the state. [Note, this ruling has not been

overturned.]2. A False Start in Applying the Bill of Rights to the States

a. Introduction Different Viewsi. It was thought that the 14th Amendment was meant to apply the Bill of Rights to

states.ii. The words Privileges and Immunities of the 14th Amendment suggest that

the framers intended to protect fundamental rights from state and localinterference. [the Supreme Court rejected this view in the Slaughterhouse cases]b. The Privileges or Immunities Clause of the Slaughter-House Cases

i. The Slaughter-House Cases1. No incorporation of the Bill of Rights into state law.2. Narrow interpretation of the 14th Amendment

ii. Saenz v. Roe (residency requirement for welfare recipient) Held durationalresidency requirements violate the fundamental right to travel by denying anewly arrived citizen the same privileges and immunities enjoyed by othercitizens in the same state, and are therefore subject to strict liability.


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3. The Incorporation of the Bill of Rights into the Due Process Clause of the FourteenthAmendment

a. Twining v. New Jersey (D convicted for failure to testify, D argues 5th Amendment) held Fifth Amendment does not apply to the state, however, this is the pivotal case thatstarted the discussion of incorporating the Bill of Rights through the 14 th Amendment.

b. Following Twining, Court began applying the Bill of Rights to the states through the14th Amendment; however, major debates ensued as to what rights are safeguarded.Two views:

i. Total Incorporation1. All rights are incorporated in the Due Process Clause of the 14th Amend.

B ofRincorporated into the states through the P & I Clause

ii. Selective Incorporation

1. Only fundamental rights are incorporated. Justice Cardozo: They arethe pledges within the Bill of Rights that go to the essence of orderedliberty.

iii. Note: The second(right to bear arms), third (right not to have soldiers quarteredin your home), fourth (right against searches and seizures), fifth (right to a grandjury, therefore, one could be charged in state court without a grand jury), seventh(right to a jury trial, therefore states could eliminate the right to a jury trial incertain civil cases), and eighth amendment (prohibition of excessive fines).

c. Note: While the selective incorporationists prevailed in this debate, however, thepractical effect is that one by one, the SC has found all provisions of the Bill of Rightsto be incorporated.

C. The Application of the Bill of Rights and the Constitution to Private Conduct1. The Requirement for State Action

a. Exam: The state action doctrine provides that the Constitution only applies to thegovernment.

b. State action applies only to the government. Here, you got the private actorsdiscriminating. So how do we stop the private actors? Analysis, if private actors arejoined at the hip with the state government, then we will look at the exceptions to enjointhe private actors. Theres the constitutional baseline.

c. The state action doctrine provides that the Constitution only applies to the government.But the government can enact laws that require private conduct meet the same standardsthat the Constitution requires of the government. [Constitutional baseline???-thecomparison between the state standards v. the Federal standards, the states are notrequired to rise to the constitutional baseline]U.S v. Stanley

i. For example, in the case of restaurant discrimination, after the 1964 Rights Act,the state action inquiry would have been unnecessary because the law prohibitedthe law from racial discrimination even if there was no government involvement.

ii. Under the Fourteenth Amendment of the United States Constitution

(Constitution), Congress does not have the power to pass laws prohibitingdiscrimination by private citizens. In other words, in this case the state allowsprivate actors to discriminate against race, another name is State ActionDoctrinebecause the constitution does not apply to private sectors.Failure to act is not state action as the Constitution does not require the stateto do so. The State does it by itself.-Justiciability-10th Amendment-State Action


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2. The Exceptions to the State Action Doctrine

a. The Public Functions Exception

i. Public Function A private entity must comply with the Constitution if it isperforming a task that has been traditionally, exclusively done by thegovernment (public functions exception or the private party is thought to beacting as agent of the state).

1. Interpretation ofPublic Function of private parties (Land)a. Marsh v. Alabama (private party operated as a town which

prohibited Jehovahs Witness from soliciting) held constitutedstate action Expansive definition of state action.A private entity that acts like a governmental body and performs apublic function is subject to the United States Constitution.

b. Jackson v. Met. Edison (delinquent customer sued utility co.claiming violation of procedural due process) held no stateaction (no close nexus between the State and the challengedaction)The actions of a private entity are not considered state actionunless there is a sufficiently close nexus between the State andthe challenged action. The function of the utility company is

not traditional and exclusive function that of the state.Just because a business is subject to detailed and extensive stateregulation does not convert its action into state action. TheRespondent is not performing a public function because statelaw imposes no duty on the state to furnish utility service.

2. Electionsa. Terry v. Adams (Jaybird democratic association that

discriminates) held the election function was traditionallyoccupied by the government, thus state action.A private political party that controls the outcome of elections isengaging in state action, thereby making it subject to the Fifteenth

Amendment of the Constitution.3. Private Property Used for Public Purposes

a. Evans v. Newton (private party donated to city to operate as parkthat discriminates) - A private park that is municipal in characterand that excludes people on the basis of color and race violatesthe Fourteenth Amendment (state action was found).Operating a park is a public function and therefore, the owner issubject to the Fourteenth Amendment of the Constitution.

b. AFEUL v. Logan Valley Plaza, Inc.

In the series of shopping center cases, the Court eventually heldthat there is no First Amendment right to use private shopping

centers for speech purposes this decision does not square withthe Marsh decision (like town squares in Marsh, shoppingcenters should be subject to the same law that govt is.)-Shopping centers serve a public function and therefore, the First

Amendment of the United States Constitution (Constitution)applies.

c. Lloyd the action must be directly related to the malld. Hudgens it does not matter what type of action it is, because a

shopping mall is not the functional equivalent of a town, it mayrestrict First Amendment rights based solely on the content ofthe speech.


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b. The Entanglement Exception

Entanglement Private conduct must comply with the Constitution if thegovernment has authorized, encouraged, or facilitated the unconstitutionalconduct.

1. Under this exception, either the government must cease its involvementwith the private actor or the private entity must comply with the Const.

2. The entanglement has arisen in four areas: judicial and law enforcementactions, government regulation, government subsidies, and entwinement.

ii. Judicial and Law Enforcement Actions1. Shelley v. Kraemer (CC&R formed to discriminate) held the fact that a

court would enforce the racially CC&R constitutes state action.-When the state coerced private action by law, the law becomes StateAction

2. Edmonson (use of peremptory challenges in a civil suit thatdiscriminates) atty held to be a state actor: 1) the right of privilege(excluding juror) derives its power from the state; 2) atty relies on thestate machinery, hes performing a state function.

iii. Government Regulation1. In general, government licensing or regulating is insufficient for a

finding of state action, unless there is other government encouraging orfacilitating of unconstitutional conduct. However, the cases are noteasily recognized.

2. Burton (government runs parking garage with a small space leased to arestaurant that discriminates) held constituted state action. [land andbuilding were publicly owned, upkeep and maintenance were paid bypublic funds) The state entanglement with the private party precludes theprivate party from discriminating, in another word the constitutionapplies to the private party.

3. Moose Lodge (private club that discriminates and P challenges based ongovt issuance of beer license to club) held no state action. (there is no

entanglement) (licensing and funding alone are not considered to be stateaction)

iv. Government Subsidies1. Norwood v. Harrison (states providing textbooks) - State-funded

financial aid to private schools that discriminate on the basis of racesupports such discrimination and thereby constituting state action inviolation of the Equal Protection Clause.-The Equal Protection Clause of the United States Constitution(Constitution) is violated when a state provides aide to students ofprivate, segregated schools because it encourages continued racialdiscrimination.

2. Gilmore v. City of Montgomery - A city could not give raciallysegregated private school exclusive use of public recreational facilities.

3. Rendell-Baker v. Kohn [termination of employment]a. A private school is not a state actor, even though it is funded and

heavily regulated, where it is not exercising the exclusiveprerogatives of the state.

b. The relevant question is not whether a private group is serving apublic function. The question is whether the functionperformed has been traditionally the exclusive prerogative ofthe State.


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4. Blum v. Yaretsky [nursing home]a. A private nursing home's decision to transfer or discharge

Medicaid-eligible patients without a hearing is not state actionthat violates due process.

b. Tests

i. States regulating sufficiently close nexus between Stateand of the regulated private party so that action of theprivate party may be fairly treated as that of the State.

ii. State will be held responsible if it has exercised coercivepower or encouragement.

iii. The required nexus may be present if the private entityhas exercised powers that are traditionally the exclusiveprerogative of the State.

v. Initiatives Encouraging Violation of Rights1. Voter initiatives that encourage violation of rights.2. Reitman v. Mulkey [Prop 14]

a. Proposition 14 which permits discrimination in the rental andsale in private properties constitutes state action in that itencourages racial discrimination.

vi. Entwinement1. Brentwood Academy (board that runs schools sport programs) - A non-

governmental statewide association's actions constitute state action ifstate officials are pervasively entwined in the structure of the association.Is there a symbiotic relationship?

CHAPTER 6 ECONOMIC LIBERTIES

A. Introduction1. Economic liberties generally refer to constitutional rights concerning the ability to enter into

and enforce contracts; to pursue a trade or profession; and to acquire, possess, and conveyproperty. The right not to have your property be taken by the government. (5th Amendment)B of R gets incorporated into the federal government through the 5 th Amendment.

2. Levels of Scrutiny

i. Mere Rationality

1. Court will uphold the governmental action so long as two requirements are met:1) government must be pursuing a legitimate objective; and 2) the means chosenis rationally related to the legitimate end.

2. Application: Dormant Commerce Clause, substantive due process (non-fundamental rights), equal protection (no suspect or quasi-suspect classificationand no fundamental right is impaired), Contracts Clause.

3. Consequences: Burden of persuasion will be on individual attacking thegovernment action.4. Effect on outcome: Governmental action almost always be upheld.

ii. Strict Scrutiny (Rational-use legitimate, justified)

1. The objective being pursued by the government must be compelling and themeans chosen by the government must be necessary to achieve thatcompelling end.

a. No less restrictive alternatives. There must not be any less restrictivemeans that could achieve the same governmental objective.


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2. Application: Substantive due process/fundamental rights; equal protection(suspect classification, fundamental right); freedom of expression; freedom ofreligion.

3. Consequences: Government has the burden to persuade court action isconstitutional.

4. Effect on Outcome: Governmental action almost always be struck down

iii. Middle Level Review

1. The objective must be important. Its half way between compelling and

important. The means chosen must be substantially related to the importantgovernmental objective.

2. Application: Equal protection (semi-suspect: gender and illegimacy), certainContracts Clause, Free Expression (non-content based).

3. Consequences: Burden usually placed on the government.4. Effect on Outcome: 50-50 chance government action will be struck down.

3. dfdB. Economic Substantive Due Process

1. Introductiona. The Due Process Clause of the Fourteenth Amendment reads as follows: Nor shall any

State deprive any person of life, liberty, or property, without due process of law.

b. Procedural Due Process vs. Substantive Due Processi. Procedural (Hows) Refers to the procedures the government must follow when

it takes away a persons life, liberty, or property.1. Inherently, the issue of RIPENESS comes up with procedural due

process. Analysis must address whether the administrative remedieshave been exhausted (Fair Notice and Hearing).

ii. Substantive (Whys) Asks whether the government has an adequate reason fortaking away a persons life, liberty, or property. The focus is on the sufficiencyof the justification for the governments action.

1. Here, it addresses the issue of justification.2. Has primarily been used to protect economic liberties and safeguarding

privacyc. Meaning of liberty: Courts willingness to review (and often invalidate) the substance

of state legislation has taken place principally through interpretation of the termliberty.

2. The Early History of Economic Substantive Due Processa. Court rejected a substantive due process claim in the Slaughter-Houses Cases.b. During this period the Court flatly rejected the idea that the Due Process Clause could

be used to safeguard a right to practice a trade or profession from arbitrary governmentinterference.

c. Court held corporations were persons under the Due Process and Equal ProtectionClauses. Therefore, corporations could use the Constitution and the philosophy

expresses in cases to challenge government regulations.3. Substantive Due Process of the Lochner Era

a. Allgeyer v. Louisianai. First case Court used substantive due process review to invalidate a state statute.

ii. Court struck down a Louisiana statute which prohibited anyone from obtaininginsurance on Louisiana property from any company not licensed in L.A.

iii. Liberty includes freedom of contract.iv. A state may not legislate in such a way as to deprive its citizens of liberties

guaranteed by the Due Process Clause of the United States Constitution(Constitution).


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b. Lochner v. New Yorki. Struck down a NY statute regulating maximum work hours for bakers as

violative of due process1. Lochner Test: First, it requires a close fit between the statute and its

objectives [this tight fit was absent in Lochner because less restrictivemeans were available]; and second, only certain legislative objectivesacceptable: health and safety were permissible, but readjustment ofeconomic interests was not.

2. Lochner held freedom of contract was a fundamental right, thusrequiring strict scrutiny review.

ii. Three themes established in Lochner v. New York: [were followed until 1937]1. Freedom of contract was a right protected by the Due Process Clauses of

the Fifth and Fourteenth Amendments.2. The government could interfere with freedom of contract only to serve a

valid police purpose of protecting public health, public safety, or publicmorals.

3. The judiciary would carefully scrutinize legislation to ensure that it trulyserved such a police purpose.

c. Coppage v. Kansas

i. A state law that makes it a crime to require employees, as a condition ofemployment, to agree to not join a union violates the Fourteenth Amendment'sdue process provisions.

d. Muller v. Oregoni. Court sustained a law barring the employment of women in a laundry for more

than 10 hours a day; the decision viewed women as members of a weaker class,need special protection.

e. Adkins v. Childrens Hospitali. SC struck down a minimum wage law for women.

ii. Reconciliation between Muller and Adkins: one explanation is that maximumhour rules could be seen as promoting a legitimate health objective whereas it

was hard to see minimum wage rules as promoting anything other than lesseningof economic inequality.

f. Weaver v. Palmer Bros. Co. [shoddy used in bedding material]i. A state law that prohibits the use of a certain fill material in bedding violates the

Due Process Clause.ii. It held to violate the freedom of contract of those that want to buy and sell.

g. Laws setting the maximum prices for theater tickets, employment agencies, and gasolinewere declared unconstitutional as interfering with freedom of contract. The Courtrepeatedly distinguished Munn v. Illinois which had upheld price controls for grainstorage on ground that it affected public interest.

i. Nebbia v. New York [milk control board]

1. Price regulation upheld [toward the end of the Lochner era.]4. Economic Substantive Due Process Since 1937 (procedural-hows, substantive-whys)

a. Pressures for Changei. The end of Lochnerism shows a reduced level of scrutiny from strict to rational.

b. The End of Lochnerismi. West Coast Hotel Co. v. Parrish

1. A state minimum wage law for women does not violatethe Fourteenth Amendment's due process guaranties

2. Parrish overruled Adkins which held state minimumwage law in violation of due process.


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3. In West Coast Hotel v. Parrish, the Court signaled the endof substantive economic due process. Allows the statelegislature to take control when there is a legitimatestates interest.

ii. Judicial Abdication in Economic Cases1. United States v. Carolene Products Co. [law banning filled milk]

a. Court sustained against a due process attack a federal prohibitionon the interstate shipment of skimmed milk.

b. Significance: Presumption of constitutionality would be appliedin the case of an economic regulation subjected to due processattack.

c. Important: Carolene is most famous for a footnote within it footnote 4 that proclaims a need for judicial deference togovernment economic regulations, with more aggressive judicialreview reserved for cases involving fundamental rights anddiscrete and insular minorities.

c. Economic Substantive Due Process Since 1937i. Since 1937, economic regulations will be upheld when challenged under the Due

Process Clause so long as they are rationally related to a legitimate a

government purpose.1. Williamson v. Lee Optical of Oklahoma, Inc. [prohibiting optician fitting

lenses without prescription from Optometrist]a. It could be any governmental purpose not prohibited by the

Constitution. In fact, it could be hypothetical reasons to supportact.

b. The statute was a rational health measure, because the legislaturemight have concluded that in some instances prescriptionswere necessary to ensure proper fitting.

2. Although no law has been invalidated on economic substantive dueprocess grounds since 1937, the following recent cases involving the

Supreme Court invalidating large punitive damages.a. BMW of North America, Inc. v. Gore

i. A $2 million punitive damages award fornondisclosure of presale repairs to a car isgrossly excessive and violative of the DueProcess Clause of the Fourteenth Amendmentwhere actual damages were only $4,000.

ii. Three guideposts for determining punitive damage:

Degree of reprehensibility, ratio, sanctions forcomparable misconduct.

b. State Farm Mutual Automobile Insurance Co. v. Campbell

i. A punitive damages award 145 times greater than thesupporting compensatory damages award violates theDue Process Clause of the Fourteenth Amendment.

3. dfdfdd. Too Much Deference?

C. The Contracts Clause1. Introduction

i. Article I, 10 provides that No State shallpass anyLaw impairing the Obligationof Contracts.

1. This provision only applies if a state or local government interferes with existingcontracts.


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a. Also it only applies to existing contracts, not future contracts and onlyapplies to private contracts.

2. It does not apply to the federal government. Challenges against the fed must bebrought under the Due Process Clause.

3. The rationale behind the Contracts Clause may have been to prevent the statesfrom passing laws to help debtors at the expense of the creditors. However,during the Lochner era, the Contracts Clause was made superfluous becausedecisions during that era were decided based on the principle of freedom of

contract under the Due Process Clause of the Fifth and Fourteenth Amend.2. The Modern Use of the Contracts Clause

i. Government Interference with Private Contracts

1. Rational Relationship Test is used when government interferes with privatecontracts.

2. Blaisdell (Minnesota law placing moratorium of foreclosure) heldconstitutional on the ground that the state is charged with the protecting the vitalinterests of the community. Rational relationship test is used weighing thefollowing factors.

3. Three part test: 1) is there a substantial impairment of the a contractualrelationship; 2) if so, does it serve a significant and legitimate public purpose;

and 3) if so, is it reasonably related to achieving the goals.4. Allied Steel (state law augments employers liability under pension plan) law

held unconstitutional it was an additional obligation as opposed to just beingsubstantial impairment.

ii. Government Interference with Government Contracts

1. Strict Scrutiny Test is used when government interferes with its own contracts.2. United States Trust Co. v. New Jersey (state passed bond measures to raise

money for port, then changed how bonds were to be collateralized.)- strictscrutiny test is used.

D. The Takings Clause1. Introduction

i. Both the federal government and states have the power ofeminent domain theauthority to take private property when necessary for government activities.(good forthe public). Police poweris taking but it is harmful to the public (condemnation-crackh

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