DEMCO ISSUE SPOTTER CHECKLIST

MAIN PROBLEM – DEMOCRACY & INDIVIDUALISM

FEDERALISM
Supremacy Clause, 10th Amendment, Commerce Clause

COMMERCE CLAUSE
(1) Modern Era (Rehnquist)
(a) Economic or non-economic activity? (Lopez)
(i) You can only aggregate economic activities (follows Wickard)
(ii) If it’s non-econ, you can’t aggregate it and you need a jurisdictional hook
(b) Is there a jurisdictional hook?
(c) Is it in a broad/general/comprehensive economic regulation? (Scalia in Raich)
(d) Are there congressional findings about effects on commerce? (Morrison)

TENTH AMENDMENT PROBLEM?

(1) About what was reserved to the states, underscoring concept of enumerated powers
(a) Early standard – is it a traditional state function? (Usery)
(i) Court changes mind b/c drawing line btwn trad and non-trad state fxns is too hard (Garcia)
(2) Congress can’t commandeer state legislative processes by directly compelling them to enact and enforce a
fed regulatory program (New York v. US)
(a) This also applies to state exec officers – fed govt can’t compel them to do shit (Printz)
(3) Congress can say states’ receiving fed funds is contingent on state act
(a) e.g., no fed $ unless state enacts law that says no guns by schools (Lopez) – this is ok

SEPARATION OF POWERS
(1) What power is being delegated to what branch of fed govt?
(a) About constitutionality of admin agency initiatives, Congress delegating power to agencies, or Prez who
seeks to take initiatives in absence of clear congressional direction
(2) Executive power?
(a) Is Congress asserting exec power?
(i) Congress can’t participate in the execution of its laws (Bowsher)
(ii) Congress can’t have sole power to remove officer who execute laws, b/c this would permit a
congressional veto (Bowsher)
(b) Prez can remove groups of postmasters w/o senate approval (Myers)
(c) Prez can’t remove member of admin agency in defiance of statutory restrictions (Humphrey)
(d) Is some official/czar position being created with exec power?
(i) Prez (only) has appointment (and impliedly removal) power of superior officers (Morrison)
(ii) Appointments Clause – Congress is permitted to delegate appointments of “inferior” officers to
others w/in the exec or judiciary and can set standards for removal of independent agency officer
(iii) Prez can’t have unlimited removal power over independent counsel (who looks like exec officer)
(Morrison – functionalist)
(e) Functionalist arg (Mistretta, Morrison) – admin state breaks down rigid separations btwn 3 branches
(3) Legislative power?
(a) Law is only ok if enacted through bicameralism and presentment to Prez, unless as in ◊ (Chadha)
(b) Is Prez asserting a policy/lawmaking function?
(i) Youngstown 1 – Prez acts w/express or implied Congress authority  ok unless unconstitutional
(ii) Youngstown 2 – Prez acts in Congressional silence  hard cases
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(iii) Youngstown 3 – Prez acts w/express or implied Congress disapproval  invalid unless Prez’s action
is an inherent executive power
(iv) When there’s a history of Congressional acquiescence and no implied Congress disapproval, exec
action is likely allowed b/c Congress can’t legislate w/regard to every possible prez action (Regan)
(v) Act that gives Prez unilateral power to change text of duly enacted statute violates ◊ (Clinton v. NY)
(c) Is judiciary asserting legislative power?
(i) Sentencing commission ok delegation of leg fxn to judiciary b/c Congress provided intelligible
principle (Mistretta  functionalist)
(d) Is Congress impermissibly asserting leg power?
(i) One-house veto of deportation suspension not ok b/c not w/both houses + Prez (Chadha)
(e) Formalist argument – lawmaking is scariest and greatest of fed powers, so it really needs to be
constrained by specific constitutional procedures designed by Framers (Chadha, Clinton, Bowsher)
(4) Are there concerns about encroachment or aggrandizement?
(a) No encroachment in sentencing commission w/leg fxn in judiciary b/c it’s what judges do (Mistretta)

EMERGENCY, WAR & EXEC POWER

war power won't be fact pattern - will be theory question

Why is Boumediene ok for court to decide given congress/president explicitly said no habeas for Gitmo
    -who gets to determine the outer bounds should be judiciary (institutional)
    -in the decision the court said there's no greater legitimation of court power than to review the application of
executive power
        -completely analogous to warrant requirement in which we make popo go to magistrate

FOURTH AMENDMENT
(1) Was there a search or seizure? = Is the Fourth Amendment implicated?
(a) It’s a search if it invades reasonable expectation of privacy (not just physical invasion) (Katz)
(i) Listening device on outside of phone booth = search, recording = seizure (Katz)
(ii) Obtaining info by sense-enhancing tech that couldn’t be obtained otherwise w/o physical intrusion
into constitutionally protected area = search, at least where tech is not in general public use (Kyllo)
(b) There is no seizure when a reasonable person would have felt free to terminate (Drayton)
(i) Note this standard accords w/no one’s actual behavior in citizen-popo encounter (Cole)
(2) Are you dealing with an arrest?
(a) Officers can make warrantless arrests on the basis of probable cause (Watson)
(i) But they have to have judicial hearing for probable cause w/in 48 hrs
(b) Officers can arrest w/o warrant when crime is committed in their presence (old common law)
(3) Are you dealing with a search?
(a) General presumption – a search is reasonable only when predicated on probable cause and a warrant
issued by magistrate (Katz)
(i) Non-utilitarian  have neutral magistrate determine reasonableness and issue warrant
(4) What are the circs of the privacy invasion?
(a) What a person seeks to keep private, even in an area accessible to the public, is constitutionally
protected (Katz)
(b) Warrantless searches/seizures violate Fourth Amendment only if ∆ manifests a subjective expectation of
privacy that society accepts as objectively reasonable (Greenwood)
(i) No legitimate expectation of privacy in info voluntarily turned over to 3rd parties (Greenwood)
(1) You always run risk that whoever you tell will run and tell popo
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(ii) If popo illegally search A’s home and find incriminating evidence against B, they can’t use it against A
but they can use it against B b/c B had no expectation of privacy in A’s home
(c) Probable cause is required for in-home searches an seizures (AZ v. Hicks)
(d) No new exceptions for warrantless searches – protective sweep, SILA, and plain view only, and
warrantless searches must be strictly circumscribed by exigencies that create them (Mincey)
(5) Fruit of the poisonous tree?
(a) If popo violate Fourth Amendment, they can’t use illegally obtained evidence
(b) Exclusionary rule should only be applied where deterrence is necessary (Leon)
(i) Good faith exception – ER not applied when mag makes honest mistake that cop relies on (Leon)
(c) Attenuation theory – at some point, evidence is too attenuated in time or circs
(i) Scalia in Hudson – interests designed to be served by knock and announce rule are not connected to
protecting privacy of space searched, so ER doesn’t apply
(6) Pretextual stop?
(a) No balancing test – not whether an officer could make the stop, but whether there was probable cause
to make the stop (Whren)

COERCED CONFESSIONS
(1) Right not to have your confession coerced is easier to explain in non-utilitarian terms
(2) 36 hours straight interrogation is inherently coercive (Ashcraft)
(3) From the time of arraignment until beginning of trial, ∆s are entitled to counsel (Massiah)
(4) Miranda – need procedural safeguards to secure privilege against self-incrim
(a) Congress can’t overrule Miranda b/c it’s constitutionally required (Dickerson)

ARIZONA IMMIGRATION LAW

(1) AZ law is consistent with Terry v. Ohio
(a) Reasonable suspicion standard has been in play for decades, and not too burdensome
(2) But AZ law practically requires popo to racially profile (requires arrests where there is reasonable suspicion
that a person is in the US illegally)
(a) Interesting that black ppl have been racially profiled forever (Cole)
(b) Only now does it matter b/c illegal immigrants are “stealing jobs” – maybe this just goes to show that
our concept of “human dignity” (Kant) only extends to some people and not others – no one expects a
black person to steal their job
(c) Also, the reasonable person standard (for feeling free to terminate a citizen-popo encounter) is now
effectively GONE for Hispanic people, even if they are citizens (see Cole)
(3) Gives citizens power to sue popo for failing to enforce immigration law (citizens’ civil remedies)  ?
(4) Role of conservative/repub use of state rights  Jim Crow
(5) Immigrants have to break other law to be stopped for az law (pretext)
(6) Precommitment issues (people who were born here didn't commit)
(a) under the utilitarian boundary, legal immigrants don't matter
(b) the answer is "of all people they've committed so we should count their utility (this is kinda weak if you
ask me)
(7) Any way to reconcile this with living ◊ (ref. Post theories of interpretation)?