Hill Con Law Spring 2010

8/8/2019 Hill Con Law Spring 2010

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Representing a client whose arguing this Congressional veto over an admin

action Is a mechanism that violates the Constitution

1. Federal Judicial Power- authority of federal courts

11th will prohibit a federal court from hearing a claim for damages against a

state government (though not against state officers) unless: (1) state has consentedto allow the lawsuit in federal court; (2) Plaintiff is the US or another state; (3)Congress has clearly granted federal courts the authority to hear a specific type ofdamage action under the 14th (i.e., under a civil rights statute)

a. Authority for judicial review

i. Marbury v. Madison=- authority for federal judicial review offederal legislative and executive actions; federal courts have thepower; Marshall: province and duty of the judicial department tosay what the law is

ii. Martin v.Hunters Lessee- authority of Supreme Court to reviewState court decision

b. What is barred?i. Actions against state governments for damages;ii. Actions against state governments for injunctive or declaratory

relief where the state is named as a partyiii. Actions against state governmentsiv. Where the effect of the suit will be that retroactive damages will

be paid from the state treasure or where the action is the functionalequivalent of a quiet title action that would divest the state ofownership of land; and

v. Actions against state governments for violating state lawc. Barred by the doctrine of sovereign immunity

i. Suits against a state government in state court, even on federalclaim without the D states consentAlden v. Maine (1999)provision in federal Fair Labor Standards Act creating a privatecause o action in state courts against state employers who vilate theAct violates sovereign immunity

ii. Adjudicative actions against states and state agencies beforefederal admin agencies (Federal Maritime Commn v. SouthCarolina State Ports Authority (2002))

d. Requirement for cases and controversies- limits = justice abilitydoctrines, (4) and all must be met for any federal court

i. Standing- Supreme Court said that standing is the most justiceability requirement; whether the P is the proper party to bring amatter to the court for adjudication; in order for a P to havestanding, (4) requirements

1. Injury- P must allege and prove injury, or will beimminently injured

a. P may assert only personally suffered injuries;illustrated by Sierra Club v. Morton


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b. P seeking injunctive or declaratory relief must showa likelihood of future harm, City of L.A. v. Lyons

2. Causation and Redressibility- P must allege and prove theD caused the injury so that a favorable court decision islikely to remedy the injury; Supreme Court frequently said

that core of Art. III is a prohibition of federal courts issuingadvisory opinions (impermissible advisory opinion)3. No 3rd Party standing is allowed- P cannot present claims of

others; P must meet all other standing requirements and oneof these exceptions must be present

a. Exceptions : 3rd party standing is allowed if a closerelationship exists between P and injured 3rd party

b. 3rd party standing allowed if injured 3rd party isunlikely to assert his own rights

c. No generalized grievances are allowed- refers to aparticular type of claim; the P must not be suing

solely as a citizen or as a taxpayer interested that thegovernment follow the law; provision of Art. ICongress must give a regular statement andaccount of all expenditures ; may challengegovernment expenditures as violating theEstablishment clause; only to challengedexpenditures to specific provisions

ii. Ripeness- may the federal court grant pre-enforcement review ofa statute or regulation?

1. The hardship that the P will suffer without pre-enforcementreview; the greater the hardship, the more willing the courtwill be to hear the case

2. the fitness of the issues in the record for judicial review-does the federal court have before it all that it needs toeffectively decide the case?

iii. Mootness- if events after the filing of the lawsuit end the Psinjury, the case is moot; P must present a live controversy in allstates of federal court proceeding; if anything happens to end theoccurrence

1. Exceptions: wrongs capable of repetition but evadingreview (chance that it could happen to that P again);Roe v.Wade

2. voluntary cessation- if the D voluntarily halts the offendingpractice but is free to resume it at any time, it wont bedismissed as moot, i.e., a racially discriminatory hiring test

3. class action suits- if the named Ps claim becomes moot;not dismissed so long as theres one member of the classwith an ongoing injury


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iv. Political Question Doctrine- allegations of Constitutionalviolations that the federal courts will not adjudicate; few areaswhere the SC has said that matters are non-justiciable questions:

1. Cases under the Republican form of government clause;Art. IV, 4 US shall guarantee to each State a republican

form of government2. Challenges to the Presidents conduct of foreign policy3. Challenges to the impeachment and removal process (1993

SC caseNixon v. US- P was federal DC judge who wasimpeached by H of R; Senate formed committee toevidence against P and made recommendations to wholebody as to whether he should be removed from office; Pfought method)

4. Challenges to Partisan Jury Mandering- political party thatcontrols the legislature draws election districts to maximizeseats to that party (2004 and 2006 SC cases)

2. Federal Legislative power- authority of Congress

a. Congresses authority to act

i. Congress may act only if there is express or implied authority1. no general federal police power- State and local

governments have a police power, authority to do anythingnot prohibited by the Constitution; Congress doesnt have apolice power

a. the validity of a federal statute cant rely on thepolice power, however, Congress can exercisepolice power-type powers as to the District ofColumbia pursuant to its power to legislate over thecapital (Art. I, 8, cl. 17) and over all USpossessions (territories, military bases, Indian rez)pursuant to the property power

ii. Necessary & Proper Clause Art. I, 8;McCullough v. Maryland(Congress has the power to charter banks since that power isappropriate to executing Congresss enumerated power to tax,borrow money, regulate commerce); grants Congress the power tomake all laws necessary and proper for carrying into execution anypower granted to any branch of the federal government; Congressmay choose any means not prohibited by Constitution to carry outits powers; also says Congress can raise an army and a navy

1. The N & P clause is not itself a basis of power; it merelygives Congress power to execute specifically grantedpowers

2. What is the best source of power for a particular act ofCongress? The Necessary & Proper Clause


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iii. Taxing, Spending, and Commerce Clause powers- Art. I, 8enumerates a large # of Congress power, but vast majority comesunder 2

1. Congress may tax and spend for the general welfare; cancreate any tax to raise revenue; spending may be for any

public purpose, not merely the accomplishment of otherenumerated powers; Bill of Rights still applies to thispower (i.e., the federal government could not conditionwelfare payments on an agreement not to criticizegovernment policies)

2. Commerce Clause- Art. I, 8, Congress can regulatecommerce with foreign nations, Indian tribes, and amongthe States; from 1937-1995 SC broadly interpreted scopeof Commerce power, so nothing was declaredunconstitutional as exceeding it until US v. Lopezif theregulated intrastate activity is noncommercial and

noneconomic, tit cannot be regulated under the CC unlessCongress can factually show a substantial economic effecton interstate commerce:Gibbons v. Ogden: fed statutebarring possession of a gun in a school zone is invalid,Marshall defined commerce as every species ofcommercial intercoursewhich concerns more states thanone and included within the concept virtually every formof activity involving or affecting 2+ states

3. Supreme Court recently made clear that the power ofCongress to regulate commerce, although broad, does havelimits so as not to obliterate the distinction between what isnational and what is local; to be within Congresss powerunder the CC, a federal law must either:

a. Congress may regulate channels of interstatecommerce (highway, waterway, internet)

i. If question involves a state regulation that

affects the free flow in interstate

commerce: (1) see if the question refers toany federal legislation that might be heldeither to: a) supersede the state regulation orpreempt the field, orb) authorize stateregulation otherwise impermissible; (2) ifneither of these possibilities, ask if the statelegislation either discriminates againstinterstate or out-of-state commerce or placesan undue burden on the free flow ofinterstate commerce, if legislation =discriminatory, it will be invalid unless a) itfurthers an important state interest and thereare no reasonable nondiscriminatory


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alternatives, orb) the state is a marketparticipant; if the legislation doesntdiscriminate but burdens interstatecommerce, it will be invalid if the burden oncommerce outweighs the states interest

b. Congress may regulate instrumentalities ofinterstate commerce and person/things in interstatecommerce; things that facilitate commerce (trucks,planes, phones, internet); Gibbons v. Ogden

c. Congress may regulate activities that have asubstantial effect on interstate commerce; Wickardv. Filburn: Congress can control a farmersproduction of wheat for home consumption;cumulative effect of many instances of suchproduction could be felt on the supply and demandof the interstate commodity market;

i. Intrastate Activity- when Congress attemptsto regulate intrastate activity, Court willuphold the regulation if it is of economic orcommercial activity and the court canconceive of a rational basis on whichCongress could conclude that the activity inaggregate substantially affects interstatecommerce Gonzalez v. Raich (2005):upholding regulation of intrastate cultivationand use of marijuana bc it was part of acomprehensive federal program to combatinterstate traffic in illicit drugs; substantialeffect has a cumulative impact only whenCongress is regulating economic activities(US v. Morrison- federal civil remedy forvictims of gender-motivated violence isinvalid; Question: what kind of an officer ofgovernment is an independent counsel, aprinciple officer who must be appointedconsistent with the appointments clause?Nothing that violates separation of powers-pg 195 (provisions of Violence AgainstWomen act)

iv. 10th- all powers not prohibited to States are reserved to States andpeople; key principle: Congress cant compel state legislative orregulatory activity; Congress can regulate states through thespending power by imposing explicit conditions on the grant of $$to state/local governments, this wont violate 10th merely becauseCongress lacked the power to directly regulate the activity that isthe subject of the spending program


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1. South Dakota v. Dole any state receiving federal highwaymoney has to set 21 drinking age; a federal law that wouldwithhold 5% of the federal highway funds otherwiseallocable to a state if the state didnt set a 21-years min.drinking age for alcohol has been upheld

2. Supreme Court held that 10th

prohibits Congress fromadopting a statute that commandeers state officials byrequiring states to regulate their own citizensPrintz v. USStriking portions of a federal gun law that required statelaw enforcement officers to collect from gun dealers reportsregarding prospective handgun purchasers and to conductbackground checks on them

v. Congress power under 5 of 14th, which authorizes Congress toenforce the 14th; SC has said that Congress cannot create newrights or expand scope of rights all it can do is act toprevent/remedy violation of rights already recognized by the

courts; such laws must be narrowly tailored in the words of theCourt, in proportion and congruent to remedying provenConstitutional violations City of Boerne v. Flores

b. Delegation of Powers

i. No limit exists on Congress ability to delegate legislative powersii. Legislative vetoes (LV) and line item vetoes are

unconstitutionalfor Congress to act, there must always bebicameralism (passage by both House and Senate) and presentment(giving the bill to the President to sign in its entirety: either signwhole bill or veto whole bill); legislative vetoes are alwaysunconstitutional

1. legislative veto is an attempt by Congress to overturn anexecutive agency action without bicameralism orpresentment; legislative vetos of executive actions areinvalid (INS v. Chadha (1983) Court noted that the LVviolates the implied separation of powers requirements ofthe Constitution; Congress granted to INS the power todeport or suspend from deportation illegal aliens, INSdecisions to suspend deportations had to be submitted toCongress, either house could pass a resolution overridingthe decision, this LV provision = unconstitutional; WhitesDissent: the LV is well-established, this is how Congressensures accountability of agency, separation of powers isntthe point, framers intended for government to be flexibleand adapt, and this is once instance where that happens

2. LV usually arises where Congress delegates discretionarypower to the President or an executive agency; in anattempt to control the delegation, Congress requires thePresident or agency to present any action taken under thediscretionary power to certain members of Congress for


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approval; if they disapprove, they veto the action and that isthe final decision = unconstitutional because, to be valid,the veto must be approved by both house and presented tothe President

3. Line item veto power allows President only to approve or

reject a be in toto; he cant cancel part and approve otherparts; Clinton v. City of NY(1998) Prezs veto powerdoesnt authorize him to amend or repeal laws passed byCongress

iii. Congress cannot delegate executive power to itself or its officers;cant give the executive power to enforce the law or implement thelaw (that would be Congress taking over power of another branchof government)

iv. To be delegable, the power must not be uniquely confined toCongress (i.e., the power to declare war or power to impeachcannot be delegated)

3. Federal Executive Power- Art. II specifies powers of president and executivebranch

a. Foreign Policy

i. Treaties- agreements between US and foreign countries negotiatedby the President and are effective when ratified by Senate

1. State laws that conflict with treaties are invalid2. If theres a conflict between a treaty and federal statute, the

one adopted last in time controls (if provisions of treaty andstatute are at odds, most recently adopted one wins)

3. Treaties are invalid if they conflict with the Constitution(which is the supreme law of the land)

4. Self-executing v. Non-Self-Executing Treaties: sometreaties are expressly or impliedly self-executing (effectivewithout any implementation by Congress); others are noteffective unless and until Congress passes legislation toeffectuate their ends; if a treaty isnt self-executing, its nottreated as the supreme law of the land until Congress actsto effectuate it, but the treaty itself can serve as anindependent basis for Congresss power to adopt therequired legislation

a. President generally doesnt have any independentpower to issue a memorandum orderingcompliance with a non-self-executing treaty thathasnt been the subject of effectuating legislation byCongress (Youngstown)why do whereas clausesmatter? ;Medellin v. Texas (2008): President had nopower to enforce provisions of the ViennaConvention by issuing a memo requiring states to


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grant habeas corpus petitions to reconsiderconvictions of criminals who are foreign nationalsand who were not informed at the time of theirarrest of their right to notify their consulate of theirdetention

ii. Executive agreements1. Agreement between US and foreign country thats effectivewhen signed by President and head of the foreign nation;do not require Senate approval to be effective; if its titled atreaty, it requires Senate approval

2. May be used for any purpose- anything that can be done bya treaty can be done by an executive agreement

3. Prevail over conflicting State laws but never overconflicting federal laws or the Constitution

4. President, with implicit approval of Congress, has power tosettle claims of US citizens against foreign governments

through an executive agreement (Dames & Moore v. Regan(1981))(Iranian hostage crisis) Executive agreements historical acceptance of bypassing Senate approval fortreaties. The power to suspend claims IS within thePresidents constitutional authority because Congress hasIMPLICITLY authorized the practice of suspending claimsthrough a long history of acquiesces and the settlement isnecessary to the resolution of a major foreign policydispute. This is a narrow decision to avoid usurpingthe Judiciary power during intense political climate. (Reganwins suspension of claims legal; holding = Youngstown

dissent) ; This case demonstrates an intersection ofthe judiciary and executive branchesiii. President has broad powers as Commander-in-Chief to use

American chief in foreign countries; never has the Presidents useof troops been declared Unconstitutional by the Supreme Court

b. Domestic Affairs

i. Appointment and removal power1. Who possesses appointment power?

a. President appoints ambassadors, federal judges, andofficers of the US; Senate must approve nominationfor the person to take office

b. Congress may vest the appointment of inferiorofficers in the President, heads of department, orlower federal courts; President gets to appointofficers, but Congress gets some discretion forlower positions; US attorneys are inferior officersbecause they can be fired by attorney general;Congress can give appointment power to Presidentor heads of agencies


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i. A special prosecutor with the limited dutiesof investigating a narrow range of personsand subjects is an inferior officer; therefore,under Appointment Clause, Congress is freeto vest the power to appoint a special

prosecutor in the judiciary (Morrison v.Olson 1988)c. Congress cannot give appointment power to itself or

its officers; sometimes tries to create federalagencies

2. Removal Power- unless removal is limited by Federalstatute, President can fire any executive branch official

a. Congress, by statute, may limit removal if:i. It must be an office where independence

from the President is desirable, i.e.,Congress can limit President to fire

independent counsel (person whoinvestigates Presidents wrongdoing);Congress cant limit removal of Presidentscabinet

1. Congress cannot give a governmentemployee who is subject to removalfrom office by Congress any powersthat are truly executive in nature; forthis reason, Congress couldnt giveto the Comptroller General (whoreports to the Prez & could beremoved from office not only byimpeachment but also by a jointresolution of Congress) the functionof establishing the amount ofautomatic budget reductions thatwould be required if Congress failedto make budged reductions necessaryto insure that the federal budgeddeficit didnt exceed a legislativelyestablished max amount (Bowsher v.Synar1986))

ii. Statute must not prohibit removal; it canlimit removal to where there is good causeeven for an office that is independent of thePresident

b. By President: can remove high level, purelyexecutive officers without interference fromCongress; however, afterMorrison v. Olson,Congress may provide statutory limitations (i.e.,


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removal for good cause) on the Presidents power toremove all other executive appointees

ii. Executive Privilege- authority of President to keep secretconversations with or memorandum from advisors; SC has saidthat President has exec privilege but it must yield to overriding

need for information, US v. Nixon(1974)1. President has no immunity from private suits in federalcourts based on conduct that allegedly occurred beforetaking office (Clinton v. Jones(1997):the immunity isintended only to enable the President to perform hisdesignated functions without fear of personal liability)

iii. Presidents power over internal affairs as the chief exec is unclear;clearly he has some power to direct subordinate officers, and thereis a long history of presidents issuing exec orders

1. Youngstown: Jackson- Court held that the militarycommission could not proceed, because the exec order

authorizing the commission went byond the limitationsCongress had placed on the President; found that the execorder was authorized by an act of Congress that wasinterpreted as limiting the Prezs power to convenescommissions to those that comply with the Constitution,laws, and rules of war, and that the commission hereviolated the laws and rules of war

2. The Prez generally does not have any independent power touse a memorandum ordering compliance with a non-self-executing treaty that has not been the subject ofeffectuating legislation by Congress

4. Federalism- limits on State and local government power because of theexistence of national governments

a. Inherent Federal powers- Dont allow states to take actions that mighttouch upon foreign relations;Zschernig v. Miller1968- Court held invalidstate statues that sought to withhold the proceeds of local decedentsestates from heirs living in nations that (a) discriminate against Americansin their probate laws, (b) impede the transmission of funds to the US or,(c) confiscate property inherited by their citizens; Court concluded thatsuch laws are so potentially disruptive of a nationally conducted foreignpolicy that they are invalid notwithstanding the traditional commitment ofprobate laws to the states

i. American Ins. Assoc. v. Garamendi(2003)CA act to aidHolocaust victims that required any CA insurer that sold insurancepolicies in Europe to disclose certain information; Presidententered into an agreement with Germany regarding Holocaustvictims claims and informed Cali that its law would impede theeffectiveness of that agreement; nevertheless, CA announced that itwould enforce its law; several insurance cos and a trade


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association brought suit to enjoin enforcement of the act; Courtheld the act interferes with the Presidents power over foreignaffairs and is preempted on that ground

b. Preemption- Art. Vi contains the Supremacy Clause, Constitution andlaws made pursuant to it are the supreme law of the land; if conflict

between fed and local law, federal law wins and local law is deemedpreemptedi. Express preemption- if a federal statute explicitly says that federal

law is exclusive in a field, state and local laws are preempted; anytime Congress has authority to act, they can say federal law isexclusive in this area

ii. Implied preemption1. If federal law and state law are mutually exclusive, then the

state law is preempted; if its not possible to simultaneouslycomply with both federal and state law, theres impliedpreemption;

2. If a state or local law impedes the achievement of a federalobjective, then state or local law is deemed preemptive;Florida adopted law that says anyone who files unfair laboragreements cant collect unemployment benefits; Fedswanted people to file grievances;

3. If Congress evidences a clear intent to preempt state andlocal laws, then state or local law is deemed preemptive;Immigration law, SC made it clear that it wants federalimmigration law to wholly occupy the field, any attempt bystate or local law will be deemed preemptive

iii. States cannot tax or regulate the federal government; McCulloch v.Maryland(Marshall: power to tax is the power to destroy); statescant regulate federal government if their action would place asubstantial burden on federal activity; Congress has the power tocharter banks since that power is appropriate to executingCongresss enumerated powers to tax, borrow money, regulatecommerce, etc.

1. 10th- this reservation of power is cited as a restriction onCongresss power to regulate the states; SC will not likelystrike down on 10th grounds a tax or regulation that subjectsstates/local governments to regulations that apply to boththe public and private sector; held in such cases that thestates interest are best protected by the statesrepresentation in Congress, Garcia v. San Antonio Met.Transit Authority (1985) Congress can require state andlocal governments to follow the provisions of the FederalFair Labor and Standards Act requiring min. wages for allemployees


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c. Dormant Commerce Clause and the Privileges and Immunities Clause ofArt. IV- among the most complicated areas of Constitutional Law andprevents some discrimination by states against nonresidents

i. Dormant Commerce Clause: principle that state and local laws areunconstitutional if they place an undue burden on interstate

commerce; no provision of the provision of the Constitution thatsays it; SC inferred itii. Privileges and Immunities Clause: no state made deprive citizens

of other states of the privileges and immunities it accords its owncitizens; anti-discrimination provision, limits ability of state todiscriminate out-of-states;

1. Art. IV, 2 Interstate Privileges and Immunities Clause:while a state/local government doesnt violate the CC bypreferring its own citizens while acting as a MP, no MPexception to his clause; regulation that interferes withprivate sector employment may violate this clause unless

the regulating entity can show a substantial justification forthe regulation2. a state law discriminating against nonresidents may be

valid if the state has a substantial justification for thedifferent treatment (must show that nonresidents eithercause or are part of the problem its attempting to solve andno less restrictive means to solve the problem )

a. United Building & Constr. Trades Council v.Mayor of Camden (1984) Court held that a cityordinance requiring 40% of employees ofcontractors/subcontractors working on cityconstruction projects to be city residents was anapparent violation of the Art. IV Privileges andImmunities Clause because it gave a preference inprivate sector employment to city residents;however, Court found that it couldnt make a finaldetermination as to whether the preference wasjustified in this case bc the record from the lowercourts didnt allow it to evaluate the citys argumentthat the preference was necessary to counteractgrave economic and social ills in urbanenvironments caused by spiraling unemploymentand declines in the population base of such cities

iii. Privileges and Immunities Clause of the 14th: this clause is alwaysa wrong answer unless the question involves the right to travel anddiscriminating against out-of-staters; Slaughterhouse cases in1873- SC gave it such a narrow construction; from 1873-1999,only one case found a violation it was overruled in 1940; in 199,Saenz v. Roe (Ca.)- if a person moved into the state from anotherstate, benefits for first year in CA would be at previous state level;


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1. freedom of travel is a fundamental right protected by thisclause;Philadelphia v. NJ(trash), Granholm v. Heald(2005) state law that prohibits out-of-state wineries fromshipping wine directly to in-state consumers, but permittingin-state wineries to do so if licensed, discriminates against

interstate commerce2. If law is not discriminatory: its inapplicable3. if law burdens interstate commerce, although not

discriminatory, it then violates DCC, if burdens oninterstate commerce outweigh the benefits of the law(balancing test)Illinois adopted law regarding trucks,wasnt discriminatory, nonetheless SC found it violatedDCC because it put a substantial burden on interstatecommerce

4. Analysis of the state or local law is discriminatorya. If law puts burden on interstate commerce, if it

violates the DCC unless its necessary to achieve animportant government purpose; government mustshow that the law serves some importantgovernment objective; Maine v. Taylorprohibitedout-of-state baitfish, state was concerned aboutparasites, state wanted to preserve natural resources;law is necessary to achieve its objective,government must show that theres no lessrestrictive alternative to achieve its objectives

i. Exceptions: (1) congressional approval: ifCongress approves state or local law it isthen constitutional even if it violates DCC;(2) market participant exception: state andlocal governments may favor their owncitizens in receiving benefits fromgovernment programs and in dealing withgovernment owned businesses, Universitiescan charge less tuition to in-state and less toout-of-state (school is a government benefitprogram), South Dakota cement factorycharged less to in-state purchases (SC saidgovernment owned and operated the factoryand was literally the market participant)

b. Exception to CC: CC doesnt prevent a state frompreferring its own citizens when the state is actingas a market participant (buying or selling products,hiring labor)

i. Limitation- Interstate Privileges andImmunities Clause


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ii. Limitation- Downstream Restrictions-while a state may choose to sell only to stateresidents, it may not attach conditions to asale that would discriminate againstinterstate commerce;South-Central Timber

Development v. Wunnicke (1984) AKviolated the CC when it imposed acontractual requirement on purchasers ofstate-owned timber that the timber beprocessed in AK before being shipped out ofstate

c. SC applies more lenient standard when a law favorsgovernment action involving the performance of atraditional government function (waste disposal);discrimination against interstate commerce ispermissible bc its likely motivated by legitimate

objectives, rather than by economic protectionism;United Haulers Assoc. v. Oneida-Herkimer SolidWaste Mgmt. Authority (2007) A county flowcontrol ordinance that favored a state-created publicwaste facility by requiring waste haulers to bringthe wastes to the state facility rather than to privatefacilities is valid

d. Priv. and Immunities of Art. IV: if state or localgovernment discriminates against out of staters withregard to civil liberties or important economicactivities, government violates this clause unless itsaction is necessary to achieve an importantgovernment purpose

i. Must be discrimination against out-of-statersii. Discrimination must be with regard to civil

liberties or the ability of people to earn aliving; civil liberties are rarely litigatedunder this clause, South Carolina adoptedlaw regarding in-state residents fee forcommercial shrimp fishing license, SC saidthis discriminates against out-of-staters forearning a living;New Hampshire law foradmitted to practice of law in state, must bea resident, Court said unconstitutional

iii. Corporations and aliens cannot sue underthis clause: SC said that the word citizenin this clause refers to individuals as citizens

iv. Discrimination will be allowed only if it isnecessary to achieve an importantgovernment purpose


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5. Structure of Constitutions Protections of Individual LibertiesConstitution sets the minimum level of protection of individuals; states generally

are free to grant broader protections than those granted in the US Constitution

a. Is there government action?

i. The Constitution, of its own force, applies only to the government;private conduct doesnt have to comply with Constitution; Stateaction doctrine: misnomer, Constitution applies to government atall levels and officials at all levels

ii. Congress, by statute, may apply Constitutional norms to privateconduct (may regulate private behavior to meet the samerequirements that the Constitution imposes on the government);race discrimination violates EPC, but corporate racialdiscrimination is barred by statutes

1. pursuant to 13th, Congress may prohibit private racediscrimination; 13th prohibits slavery and involuntary

servitude; provision that regulates private conduct; 2 saysthat Congress can enact laws to enforce 13th; SC has saidthat Congress has broad power to adopt statutes to prohibitprivate race discrimination as part of its powers

2. Pursuant to Commerce Clause, Congress can applyconstitutional norms to private behavior; Congress adoptedCivil Rights Acts,Katzenbach v. McClung

3. Pursuant to 5 of 14th, Congress cannot regulate privatebehavior, can only regulate state and local governments;SC reaffirmed this in US v. Morrison

4. when Congress is dealing with a type of discrimination thatthe SC reviews using heightened scrutiny, Congress willgenerally have more power to act

iii. Exceptions where private conduct must comply with Constitution:1. public functions exception: if a private entity performs a

task traditionally exclusively done by the government, theConstitution applies; Marsh v. Alabama

2. Entanglement exception: if the government affirmativelyauthorizes, encourages, or facilitates unconstitutionalconduct, the Constitution applies; either the governmenthas to stop what its doing, or the private conduct mustapply with Constitution ; Shelly v. Kramer(Courts cannotenforce racially restricted covenants- K with members of aneighborhood);Burton v. Wilmington Parking Authority(SC: for the government to lease space to a restaurant todiscriminate, means the government is facilitatingdiscrimination);Rendell Baker v. Cohen (SC said privateschool and no indication that State did anything to fireteachers for their speech, receipt of government moneyisnt enough for a finding of state action and not enough to


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make the Constitution apply);NCAA v. Tarkanian (no stateaction when a Bball coach at a private university wassuspended for recruiting violations, SC rules against D,NCAA is a private entity so it doesnt have to comply);Brentwood v. Tenn. Athletic Assoc (State action when a

private entity regulates interscholastic sports with a state;school sued that it needs due process before beingpunished, SC ruled against D, entwinement betweengovernment and D; distinction was that Tenn. operates inone state, whereas NCAA operates all over country);examples dont neatly fit together, seeming inconsistenciesamong them; if either exception is met, then the privateentity must comply with Constitution

b. Application of the Bill of Rightsi. B of R applies directly only to federal government- originally

meant just to be a limit to federal activity

ii. Most important source of limitations on the federal governmentspoweriii. B of R applies to state and local governments through its

incorporation into due process clause of 14th; SC said rights includeprovisions of Bill of Rights deemed fundamental; 20 th centurydebate between total incorporations and selective incorporations(only some provisions are fundamental); never has SC held that allprovisions apply to state and local governments; 1 by 1 SC hasfound almost every provision applies at one point though

1. List of provisions never deemed incorporated:a. 2nd Amendment right to bare armsb. 3rd Amendment right to not have soldiers

quartered in a persons homec. 5th Amendment right to grand jury indictment in

criminal casesd. 7th Amendment right to jury trial in civil casese. 8th Amendment right against excess defiance

2. Incorporated:a. Right to bear armsb. 13th: no requirement of state action, Congressional

power (power to adopt appropriate legislation, andSC will uphold legislation proscribing almost anyprivate racially discriminatory act that can becharacterized as a badge or incident of slavery

c. 14th prohibits states from depriving any person ofLLP without due process and equal protection of thelaw; most important source of limitations on thestates power over individuals bc, through the DPC,most of the protections of the B of R are applicableto the states


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d. 15th: limitation on both states and federalgovernment; prohibits them from denying anycitizen the right to vote on account of race or color;contains an enabling clause that allows Congress toadopt legislation protecting the right to vote from

discriminatione. Commerce Clause: SC allowed Congress to use CCto limit the power of individuals over otherindividuals by adopting legislation barring privateracial discrimination in activities connected withinterstate commerce; under the affectation doctrine,almost any activity can be said to be connected withinterstate commerce

c. Levels of Scrutinyi. Rational basis test (minimal scrutiny)- used whenever the other 2

arent applicable; difficult to fail this test, so most governmental

action examined under this standard is upheld unless its arbitraryor irrational; a law is upheld if it is rationally related to a legitimategovernment purpose; governments objective just has to besomething permissible/reasonable; must only be a conceivablelegitimate purpose; tremendously deferential to the government;the challenger has the burden of proof;

ii. Intermediate scrutiny- used when a classification based on genderor legitimacy is involved; a law is upheld if its substantiallyrelated to an important government purpose; higher threshold thanlegitimate, must be important, conceivable isnt good enough;means chosen must be substantially related to achieving theobjective; means must be narrowly tailored to achieving objective(but not best way or least restrictive alternative); government hasburden of proof;

iii. Strict scrutiny- uses this test when a suspect classification orfundamental right is involved; law will be upheld only if it isnecessary to achieve a compelling government purpose; objectiveneeds to be more than legit or important, court must be persuadedthat objective Is crucial, objective, and compelling; will look togovernments actual purpose; means must be necessary/leastrestrictive alternative to attain objective; most exacting,government usually loses; government has the burden of proof

6. Court Individual Liberties under the Constitutiona. Definitions

i. Procedural Due Process- focuses on the procedures thatgovernment must follow when it takes away a persons LLP

ii. Substantive Due Process- asks whether the government has anadequate reason for depriving someone of LLP; looks to asufficient justification/good enough reason


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1. DPC of 5th (federal) and 14th (state & local)2. applicable standards:3. fundamental right (travel, privacy, voting, 1st Amendment)4. All other cases- mere rationality test for business & labor

regulations, taxation, lifestyle, zoning, punitive damages

(State Farm v. Campbell(2003)) except for particularlyegregious conduct, esp. when the conduct resulted in only asmall amount of compensatory damages, punitive shouldntexceed 10x the compensatory damages; here, 145xcompensatory violates due process

a. Punitive: consider (1) reprehensibility of the Dsconduct (whether the D caused physical harm ratherthan merely economic harm, whether D acted withreckless disregard, whether conduct was repeatedrather than isolated, whether harm resulted fromintentional malice or deceit than from an accident),

(2) disparity bw actual or potential harm suffered bythe P and the punitive award; (3) difference bwpunitive damages award and the criminal or civilpenalties authorized for comparable misconduct

iii. Equal Protection- looks to whether the governments differences inthe treatment of people are adequately justified; depends on levelof scrutiny

b. Procedural Due Process- all questions can be broken down into (2) issues:i. Has there been a deprivation of LLP? Required only if there has

been a deprivation1. Definitions:

a. A deprivation of liberty occurs if there is the loss ofa significant freedom provided by the Constitutionor a statute; written law that creates liberty interests

b. Deprivation of property occurs if a person has anentitlement and that entitlement is not fulfilled(entitlement exists if there is a reasonableexpectation to continue receipt of a benefit)Roth v.Board of Regents

2. Generally, government has no duty to protect people fromprivately inflicted harmsDeshaney v. WinnebagoDepartment Services(government has no duty to protectpeople, unless they create the danger or if person is ingovernment custody)

ii. What procedures are required?1. SC 3-part balancing test

a. Balances importance of interest to individualb. Ability of additional procedures to increase the

accuracy of the fact finding; the more additionalprocedures will lead to better decisions/avoid


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erroneous deprivation, the more likely it is that thecourt will require them

c. Governments interest2. Examples: (1) before welfare benefits can be terminated,

there must be notice and a hearing; (2) when SS disability

benefits are terminated, there need only be a post-termination hearing; (3) when a student is disciplined by apublic school, there must be notice of the charges and anopportunity to explain; (4) before parents rights to a childare terminated, must be notice and a hearing; (5) punitivedamage awards require jury instructions in judicial review,grossly excessive punitive damages violate due process(BMW v. Gore); (6) an American citizen held as a enemycombatant must be given due process; (7) except in exigentcircumstances, pre-judgment attachment or governmentseizure of assets must be proceeded by notice and a

hearing; government may seize property used in illegalactivity even if it has an innocent owner (Bennis v.Michigan 1996)

c. Right to Privacy- generally regarded as fundamental right, so governmentusually has to meet strict scrutiny to interfere; an umbrella thats used todescribe a number of specific liberties

i. Right to Marryii. Right to Procreate- can impose involuntary sterilization

iii. Right to Custody of Ones Children- can show abuse; SC has saidthat a state may create an irrebuttable presumption that a marrywomans husband is the father of her child (Michael H v. GeraldD 1999)

iv. Right to keep the family togetherv. Right of parents to control the upbringing of their children; SC said

parents have fundamental rights to send kids to parochial school,due process is violated if a court orders grandparent visitation overparents objections

vi. Right to purchase and use contraceptives Griswald v. CTvii. Right to abortion

1. prior to viability, the government cannot prohibit abortion;the government can regulate as long as it doesnt place anundue burden on the right

2. the government is never to constitutionally required to payfor/provide facilities for abortions

3. spousal consent/notification laws are unconstitutionalviii. parental notice/consent requirements for unmarried minors but

only if it creates an alternative procedure where a minor can gobefore a judge and a judge can approve procedure either by findingthe minors best interest or by concluding she is mature enough anmake decision for herself


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ix. right of adults to engage in private, homosexual activity (Lawrencev. Texas 2003) state cant criminally punish this activity

x. right to refuse medical treatment (Cruzan v. Director of HealthServices 1990)

1. competent adults have a right to refuse medical care

2. a state may require clear and convincing evidence that aperson wanted treatment terminated before it is ended3. state may prevent family members from terminating

treatment for anotherxi. doesnt include a right to assist in suicide (Washington v.

Glucksberg)d. Economic Liberties under the Constitution

i. Generally, only rational basis review is used when it comes to lawsaffecting economic rights; since 1930s allLochnerdecisions areoverruled; SC says when it comes to claims of economic liberties,only rational basis review

ii. Takings Clause- found in 5

th

, government may take privateproperty for public use but it must pay just compensation1. Is it a taking? 2 alternative ways of finding a taking:

a. Possessory takings- government confiscation orphysical occupation of the property (Loretto v.Teleprompter)

b. Regulatory taking- government regulation is ataking if it leaves reasonable economically viableuse of the property; (Penn Central v. NYC) (Lucasv. South Carolina Coastal Counsel)

i. Government conditions on the developmentof property must be justified by a benefitthats roughly proportionate to the burdenimposed

ii. Property owner may bring a takingschallenge even as to regulations that were inplace when the property was acquired

iii. Temporarily denying an owner developmentof property isnt a taking so long as thegovernment is reasonable

2. Is it for public use? SC broadly defined public use sovirtually every taking will meet requirement (taking is forpublic use as long as the government acts with a reasonablebelief that the taking will benefit the publicKelo v. CityNew London

3. Is just compensation paid? Must be measured in terms ofloss to owners, gain to the taker is irrelevant; measured inreasonable market value terms

iii. Contracts Clause- Art. I, 10, no state shall impair theobligations of contracts;


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1. Contracts Clause applies only to state or local interferencewith already existing contracts; never applies to federalgovernment; doesnt limit government to regulate terms offuture contracts

2. government may interfere with existing private K if an

immediate scrutiny is met; SC says state or local caninterfere so long as their actions are reasonably andnarrowly tailored to serve a legitimate and importantgovernment interest (intermediate scrutiny)

3. Government interference with existing governmentcontracts must meet scrutiny; state and local interferencewith their own K must meet strict scrutiny; SC is suspiciousif state government tries to get out of its own K withoutpaying K damages

4. Determining whether legislation is valid under ContractClause uses 3-part test:

a. Does the legislation substantially impair a partysrights under an existing contract? If it does not, thelegislation is valid under the K clause; if it does, itwill be valid only if: (a) serves an important andlegitimate public interest; and (b) is a reasonableand narrowly tailored means of promoting thatinterest

b. Minnesota statute that imposed a moratorium onmortgage foreclosures during a severe depressiondidnt violate the K clauseHome Building & LoanAssoc. v. Blaisdell(1934)

c. AfterBlaisdell, C clause believed dead untilAlliedStructural Steel Co. v. Spannus (1978) struck downstate statutes abrogating contractual commitmentsin circumstances where the public justificationswere far weaker than inBlaisdell;because thelegislation constituted a substantial impairment of Kby changing the compensation for work alreadycompleted and bc it wasnt necessary to remedy animportant social problem in the nature of anemergency, it was held as a violation of the Kclause

e. 2nd Amendment Right to Bear Arms-DC v. HellerSC held that the 2nd

protects individuals apart from the purpose of militia services, handgunordinance, SC for the 1st time held that this creates a right of individuals touse guns apart from militia services; SC didnt identify a level of scrutinyto be used for this right, only held that DC ordinance was unconstitutionalfor infringing right of individuals to have guns; SC now granted review ofwhether 2nd applies to state and local governments


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f. The Right to Travel- SC in 1999 found the right to travel is a fundamentalright under Privileges & Immunities clause of 14th

i. Laws that prevents people from moving and entering a state mustmeet strict scrutiny

ii. Durational residence requirements must meet strict scrutiny (where

people must live in the jurisdiction for a specified amount of timein order to get a benefit; SC says it will chill interstate migration);Shapiro v. Thompson- SC used strict scrutiny for right to travel anddeclared Pennsylvania law is unconstitutional

iii. Only a rational basis test is used for restriction on foreign travel;not fundamental right to national travel

g. Right to vote- SC said right to vote is fundamental right under EPCi. Laws that keep some citizens from voting must meet strict

scrutiny, i.e., poll taxes = unconstitutional because it keeps somepeople from voting, property ownership requirements for voting =unconstitutional; however, if its a general law meant to protect the

integrity of the electoral process, its only subject to a balancingtest (Crawford v. Marion County)ii. One person, one vote most be maintained: for all elections, all

districts must be equal in populationiii. At large elections are allowed unless theres proof of a

discriminatory purpose: where all of the voters vote for all of theoffice holders, City of Mobile v. Bolden

iv. Using race to draw election districts to benefit minorities mustmeet strict scrutiny; SC cases say if race is a predominant factor,government must meet strict scrutiny

v. Counting uncounted votes in an Presidential election withoutpreset standards violates Equal protection,Bush v. Gore- SC heldthat counting uncounted votes was unconstitutional

vi. There is not a fundamental right to education under the USConstitution

h. Bills of Attainder- designated either by name or in terms of past conduct;both federal and state governments are prohibited from passing B of A; 2requirements preclude finding of B of A: (1) both judicial machinery fortrial/punishment of crime and (2) definition of criminal conduct in suchgeneral terms as not to ensnare within the definition a single individual forpunishment bc of past behavior

i. Nixon v. Admin of General Services (1977) Congress passedlegislation to authorize government control of the presidentialpapers and tape records of Nixon; SC held that this wasnt a bill ofattainder; the circumstances of the Nixon resignation made him aunique class of one as to the need to control his papers; the actwas held nonpunitive and in pursuance of important publicpolicy


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7. Equal Protection- assurance that neither State nor Federal government can

deprive any person of LLP without due process

a. An approach to equal protectioni. What is the classification? How is the government drawing a

distinction among people?

ii. What is the level of scrutiny to be used?iii. Does the law meet the level of scrutiny? The level of scrutiny isthe rule thats applied to the facts in the question

b. Constitutional provision concerning equal protectioni. The equal protection clause for the 14th applies only to state and

local governments (the 14th never applies to the federalgovernment)

ii. Equal protection is applied to federal government through DueProcess clause of 5th Amendment; no provision that saysgovernment cannot deny equal protection

c. Race and national origin classifications

i. Strict scrutiny is used (the test whenever the governmentdiscriminates based on race or national origin)ii. How is the existence of a race or national origin classification

proven? 2 ways:1. classification exists on the face of the law- law and its

terms distinguished among people; i.e., in 19th century,West Virginia had a law that only whites could serve onjuries, until Brown v. Board, Southern states has lawssegregating schools

2. Alternatively, if a law is facially race neutral, proving aracial classification requires demonstrating bothdiscriminatory impact and discriminatory intent; DC had arequirement that in order for a person to be a cop, they hadto pass a test, blacks failed that test more often than whitesand a challenged was brought under equal protection

3. How should racial classification benefiting minorities betreated?

a. Strict scrutiny is used, whether the racialclassification is invidious, disadvantagingminorities, or benign, strict scrutiny is always thetest

b. Numerical set asides require clear proof of pastdiscrimination; SC is hostile to anything that lookslike a quota because set-asides are allowed only as aremedy for clearly proven past discrimination,Crowson v. Richmond, US v. Paradise upheld thestrict scrutiny

c. Educational institutions may use race as one factorin admissions decisions to benefit minorities;Grouter v. BollingerSC said that colleges have a


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compelling interest in a diverse student bodies andmay use race as one factor to enhance diversity tobenefit minorities, but also made clear that collegescant set aside slots just for minorities or add pointsto applicants admissions scores solely based on race

(Gratz v. Bollinger)d. Elementary and high schools may use race inassigning students to schools as long as strictscrutiny is met, SC said high school may use race toplace students in schools to achieve desegregationonly if government meets strict scrutiny

d. Gender discriminationi. Intermediate strict scrutiny- SC said that gender discrimination

allowed only if exceedingly persuasive justification; test is stillintermediate scrutiny

ii. How is existence of gender classification proven?

1. Classification exists on the face of the law- Craig v. Boren,US v. Virginia (Virginia military institute state universityonly allowed men)

2. Alternatively, if a law is facially gender neutral- proving agender classification requires demonstrating bothdiscriminatory impact and intent

3. How should gender classifications benefiting women betreated? Intermediate scrutiny is the test

a. Gender classifications benefiting women based onrole stereotypes arent allowed; SC has said thatmany gender classifications that appear to benefitwomen actually perpetuate destructive stereotypes

Documents

Hill Con Law Spring 2010