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STRUCTURE (W/IN CONSTITUTION) 4. JUDICIAL INTERPRETATION (PRIOR CASES) 5. PRUDENCE CHAPTER 1 THE FEDERAL JUDICIAL POWER A. AUTHORITY FOR JUDICIAL REVIEW a. Marbury v. Madison i. TWO THINGS: 1. Constitution is the supreme law of the land Article III is a ceiling. 2. Judicial review established. ii. Article III: created the federal judiciary and defines its powers. Some of the topics covered: 1. The judicial Power of the United States shall be vested. 2. in one Supreme Court and in such inferior courts as Congress may from time to time establish. 3. cases and controversies 4. Supreme Court has original jurisdiction over cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party. In all other cases, the S.Ct. has appellate jurisdiction, subject to such Exceptions and under such regulations as Congress shall make. iii. Judicial Review: The judiciary has the authority to review the constitutionality
of executive and legislative acts, as long as they are not political 1. Distinguish between political acts and duties. a. Political/discretionary not reviewable by court. 2. Check on legislative branch. 3. If the S.Ct. identifies a conflict btw a constitutional provision and a congressional statute, the Court has the authority (and the duty) to declare the statute unconstitutional and to refuse to enforce it.
5. courts to interpret
b. Judicial review of state and local actions i. Martin v. Hunters Lessee (dispute over land; whether a VA statute conflicted
w/ a federal treaty) 1. The Court can review the constitutionality of a decision by a states highest court. a. A state is not a sovereign entity. b. Need for uniformity in decisions throughout nation interpreting the Constitution c. M v. M applies to state decisions! 2. The S.Ct. may determine whether a state court has reached a decision that is not in conformity w/ the Constitution; but it may NOT review state court decisions that merely adjudicate questions of state law (exclusive and adequate), ONLY FEDERAL QUESTIONS (Appellate Jurisdiction).
ii. Cohens v. Virginia criminal Ds can seek S.Ct. review when they claim their conviction violates the Constitution. B. LIMITS ON FEDERAL JUDICIAL POWER ARTICLE III a. Interpretive limits i. Originalist enforce what is stated or clearly implicit in written Constitution ii. Non-originalist Constitution evolves through interpretation and amendment 1. Court looks at S.Ct. precedent, history, prudential concerns, social costs, scrutiny and text (US v. Emerson) b. Congressional limits i. Congress ability to limit jurisdiction of federal courts: 1. Article III ceiling (M v. M) 2. McCardle and Klein ii. Article III sets out types of cases S.Ct. can hear: box of powers, Can
Congress give anything outside of the box NO (M v. M); Can they remove powers w/in the box? iii. Article III: the Exceptions and Regulations Clause: the S.Ct. shall have appellate jurisdiction both as to Law and Fact, with such Exceptions, and under such regulations as the congress shall make. 1. One side: provides Congress with broad powers to remove matters from S.Ct. purview a check on judiciarys power 2. Other side: Congress is limited in ability to control S.Ct. jurisdiction clause modifies the word fact (concern about ability to over-turn the fact finder) 3. Both views power cannot be used in manner that violates Constitution iv. Ex parte McCardle (Congress takes away S.Ct.s appellate jurisdiction to hear habeas corpus pleas.) 1. Congress has the ability to modify jurisdiction of the Supreme Court can decide when S.Ct. can hear cases.
2. Although the Courts authority stems from the Constitution, it is conferred w/ such exceptions and under such regulations as congress shall make. a. S.Ct. right to hear an HC case is only withdrawn where Court gets case by appeal from lower courts; an original petition for HC could be commenced in S.Ct. (Felker v. Turpin) v. US v. Klein (S.Ct. decides what constitutes loyalty after Civil War) 1. Separation of powers is a limit on Congress authority to limit S.Ct. jurisdiction. 2. While acknowledging Congress power to create exceptions and regulations to the Courts appellate jurisdiction, Congress cannot direct the results in particular cases, there by invading the judicial function. 3. Any jurisdictional limitation must be neutral. vi. Robertson v. Seattle Audubon 1. Congress has power to pass legislation that will affect only suits pending or going forward. 2. Courts must apply new law to cases pending not old cases or fact finding. vii. Important consideration: Article III shouldnt be looked at in isolation. 1. Everyone should have their day in court. Supreme Courts Original Jurisdiction Source of Congress None Power (cant be altered or added/ subtracted) Constraints on Congresss N/A Power Supreme Courts Appellate Jurisdiction Art. III 2 cl.2 McCardle Bill of Rights Separation of Powers Lower Federal Courts Jurisdiction Art. III 1 Art. I 8 cl.9 Bill of Rights Separation of Powers
c. Justiciability limits i. Five limits: 1. Prohibition on advisory opinions 2. Standing 3. Ripeness 4. Mootness 5. Political Question ii. Advisory opinion 1. To avoid being an advisory opinion, there must: a. Be an actual dispute between adverse litigants, and b. A substantial likelihood that a federal court decision will bring about some change or effect. 2. Court doesnt give advice on how to do something only CASE or CONTROVERSY! 3. Congress cannot vest review of the decisions of Art III Courts in officials of the Executive Branch (Hayburns case). 4. A statute cannot retroactively command the federal courts to
5. reopen final judgments, thus violating separation of powers and principle that a judgment conclusively resolves the case (Plaut v. Spendthrift Farm) 6. Compared w/ declaratory judgments: a. Parties seeking declaratory judgment have been actually injured
by statute and not just concerned with hypothetical activity.
a.
injury
iii. Standing 1. Constitutional standing requirements: must allege that he has suffered or imminently will suffer an must allege that the injury is caused by conduct must allege that a favorable federal court decision is likely to Prudential standing requirements: Limitation on 3rd party standing Prohibition against generalized grievances
b. c.
redress the injury 2.
a.
b.
3. Injury a. General principles: i. The injury cannot be merely speculative, hypothetical, amorphous or conjectural. (Wright) ii. Injuries must be concrete, finite, or imminent. iii. If a Constitutional right is violated, the injury requirement is satisfied. iv. Common law violations are injuries as well, and they satisfy the injury requirement. b. Lujan v. Defenders of Wildlife i. Injury must be actual and imminent 1. Desire to use or observe an animal species, even
for a purely aesthetic purpose is an interest for purposes of standing. 2. The desire to return some day to the areas affected is insufficient for standing w/o any description of concrete plans or any specification of when the some day will be otherwise too speculative.
ii. The harm need not be economic in nature: injury to aesthetic and environmental well-being could be injury-in-fact (Sierra Club v. Morton) c. City of LA v. Lyons (chokehold case) i. In order for a person to have standing to seek an
injunction, the individual must allege a substantial likelihood that he or she will be subjected again in the future to the allegedly illegal policy.
ii.
d. If a right to information is created by statute, the denial of such information is an injury sufficient to satisfy Art. III (FEC v. Akins). e. Injury in Equal Protection Clause. i. General rule: Just because you are a member of a minority who has been denigrated does not automatically give you standing. ii. Reapportionment of voting districts: If P doesnt live in the voting district in question they have not been personally subjected to a racial classification they only have a generalized grievance. (US v. Hays) iii. School integration and taxes: If there is racial discrimination on the part of the govt. this is only a basis for standing to those persons who are actually denied equal treatment. (Allen v. Wright) 4. Causation and Redressability a. Criteria: i. Challenged action is a but for cause of injury. ii. Favorable decision in suit will address the injury. b. Causation: i. Make sure there isnt a lot of stuff that happens in between Ds conduct and Ps injury, this would make the traceability too attenuated (Allen v. Wright) c. Redressability: i. Make sure the courts decision will fix the problem. 1. Linda R v. Richard D Even if the father were jailed, the mother would not be more likely to receive child support payments. 2. Warth v. Seldin - No standing b/c the Ps could
not demonstrate that appropriate housing would be constructed w/o the exclusionary zoning ordinances b/c the low-income residents might not be able to afford to live there regardless of zoning or builders might not want to construct there. 3. Simon v. Eastern KY Welfare Rights Org (IRS rule changed to say only tax exemptions for free med. care in emergency situations). No standing b/c purely speculative whether new ruling was reason for Ps not receiving free care and not for sure that a win in the lawsuit would get them the care anyway 4. Nuclear power plant: Duke Power v. Carolina Environmental Study Group - Court said there is standing b/c plant was built in Ps area which subjected them to many injuries.
i. Where the 3rd party is unlikely to be able to sue: 1. A person may assert rights of 3rd party not before
the court if there are substantial obstacles to the 3rd party asserting his or her own rights and if there is some reason to believe that the advocate will effectively represent the interests of the 3rd party. 2. Barrows v. Jackson (P, a white person who had signed a racially restrictive covenant, was sued for breach of contract for allowing nonwhites to occupy the property; D was based on rights of blacks, who were not parties to the lawsuit) Held: 3rd party standing allowed, permitting white D to raise interests of blacks to rent and own property in the community
ii. Close relationship between the plaintiff and 3rd party. 1. Doctor/patient relationships (Singleton v. Wulff abortion case; doctors suffered economic injury b/c they were performing operations and Medicaid not funding them) 2. Vendors and customers (Craig v. Boren bartenders challenges 21 age limit for males to buy beer, his injury was loss of business) c. Waiver if it is clear that the person has waived his rights, the 3rd person cannot bring in future claims (Gilmore v. Utah) d. Associations and organizations i. Association has standing where its own interests are at stake, or ii. Association can sue on behalf of its members if: 1. members would otherwise have standing to sue themselves 2. interests sought to be protected are crucial to organizations purpose, AND 3. neither claim nor relief requires participation of members in lawsuit e. First Amendment provides grounds to assert rights of parties not before the court if a statute abridges 1st amendment (overbreadth doctrine.) 6. Prohibition against generalized grievances 6
a. General Rule: If the plaintiff alleges a violation of no specific constitutional right, but instead claims an interest only as a taxpayer or a citizen in having the government follow the law, standing is not allowed. i. Standing would exist if taxpayer were challenging the constitutionality of a tax they were subject to or a miscalculation by IRSindividual relief for their own tax status.
challenging how congress was spending money, he was challenging a CIA regulation only those
constitutional provisions which act as specific limitations on the taxing and spending power of congress may be relied upon. ii. Valley Forge College - No standing b/c the govt. action was authorized not by the T&S Clause, but by the Property Clause. First part of test was satisfied. e. Citizenship suits: no standing on the part of citizens as to object to unlawful or unconstitutional conduct b/c they have no individualized injury in fact. (Schlesinger v. Reservists) f. After these cases, the only situation in which a taxpayer standing appears permissible is if the P challenges a govt. expenditure as violating the establishment clause. g. Challenging an administrative agency regulation that doesnt directly control persons activities - P must be part of the group intended to benefit from the law
iv. Ripeness 1. Applied: determine when the litigation may occur; often hinges on INJURY requirement (havent suffered injury yet) 2. Question: When may a party seek preenforcement review of a statute or regulation? 3. Two prerequisites: a. The hardship to the parties of withholding court consideration i. Three scenarios: 1. Substantial hardship to denying preenforcement review when a person is forced to choose between forgoing possibly lawful activity and risking substantial sanctions. Abbot Laboratories v. Gardner (FDA regulation requiring inclusion of generic names for prescription drugs on all labels) 2. Enforcement is certain; where the application of the law is inevitable and consequences attach to it, the matter is ripe even though there will be a time delay before the disputed provisions take effect. Regional Rail Reorganization Act Cases. 3. Collateral injuries, not the primary focus of the lawsuit, exist to make case justiciable. ii. NOTE: If there appears minimal harm to denying review, the case will be dismissed as not ripe. 1. Poe v. Ullman (pregnancy was medically unadvisable and Conn. Law prevented distribution of contraceptives). Because Connecticut has not chosen to press enforcement of the statute deprives the controversies of the immediacy. b. The fitness of the issues for judicial decision. i. Purely legal question: The more judicial consideration of an issue would be enhanced by a specific set of facts, the greater the probability that a case seeking preenforcement review will dismissed on ripeness. v. Mootness 1. There must be a CONTROVERSY at all stages of litigation!! If anything occurs while a lawsuit is pending to end the plaintiffs injury, the case is to be dismissed as moot. 2. Circumstances causing case to be moot: criminal dies, civil P dies, settlement, challenged law is repealed or expires, and any change in facts that end the controversy. 3. EXCEPTIONS: Ps injury is resolved, but case shouldnt be dismissed. a. Collateral consequences: A secondary injury survives after the Ps primary injury has been resolved.
1. Baker v. Carr court says that certain questions are political in nature and not of courts concern. 2. Factors in Baker to find a Political Question:
a. Commitment to other branches
i. The issue does not fall under Court and out of respect for
separation of power, court wont touch it
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a. When Maryland taxes bank they are taxing every American (who are funding the bank also) a smaller entity cant tax a larger one. ii. Way to get from express power to implied power. iii. What is required to meet the Necessary and Proper Clause: (the definition of what Congress can do.) 1. What is a constitutional law? a. Ends legitimate b. Means appropriate c. Not prohibited by spirit or letter of constitution iv. Courts will NOT strike down a congressional action so long as: 1. Congress has employed a means not prohibited by Constitution, and 2. The means is rationally related to objectives w/in Congress enumerated powers. B. THE COMMERCE POWER a. Commerce power before 1937 i. Early case: Gibbons v. Ogden (steamboat operators monopoly competing w/ local ferry service.) 1. Commerce included navigation and all phases of business. 2. Congress could regulate intrastate commerce if it had an impact in interstate activities subject to no limits (10th). ii. 1890-1937 main theme dual federalism federal and state govt. were separate sovereigns w/ separate zones; characterized by laissez faire attitude. 1. Commerce was narrowly defined to leave a zone of power to the states. a. Commerce was one stage of business, distinct from manufacturing (US v. EC Knight monopoly of mfr. sugar not w/in Congress control) and b. Fixing of wages, employment of men, hours of labor, etc. (all for the purposes of production, not of trade.) (Carter v. Carter Coal Co. min. price of coal fixed) 2. Among the states meant that Congress could only regulate when there was a direct effect on IC. a. If intrastate commerce injures interstate commerce, Congress can step in to protect interstate commerce. b. Wherever the interstate and intrastate transactions of carriers are so related that the government of the one involves the control of the other, it is Congress, and not the state, that is entitled to prescribe the final and dominant rule. (Shreveport Rate Cases) c. ALA Schecter Poultry Cases NIRAs attempt to regulate maximum hours and min. wages was beyond CC. i. Activities not w/in Stream of Commerce th 3. 10 amendment reserved a zone of activities to the states; federal laws unconstitutional if they invaded this zone. a. 10th reserved control of mining, mfr., production, etc. to the states. b. Courts more hostile to congressional interference w/ employer/employee relationships.
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i. Hammer v. Dagenhart (child labor case) Regulating the hours of labor of children was entrusted to state authority (OVERRULED) ii. Congress grant of power over IC was not to give it authority to control the States exercise of the police power over local trade and mfr. c. Court was sympathetic to commerce-prohibiting/police power techniques. i. Champion v. Ames (the lottery case) - lottery tickets would pollute commerce and corrupts moral climate. ii. Must look at the nature of the thing itself; regulation by Congress is seen as an enforcement of state police power, not usurpation.
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v. Progression of 10th amendment as a limit: 1. Pre-1937 Congress could not regulate into states zones 10th is a
limit. 2. 1937-1990 10th not a limit, no statute was invalidated.
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a. 1976-1985 NL Cities v. Usery 10th was a limit. i. Surprising decision: set of wage and hour regulations violates the 10th amendment. ii. State has traditional power to determine wages, BUT Congress also has power to regulate IC, what happens when these powers overlap? iii. Court has a problem w/ the idea that congress is interfering w/ something that traditionally belongs to the states b. 1985 Garcia overrules NL Cities i. One judge switches vote and old position on 10th amendment power is restored (5-4). ii. Is payment of wages to mass transit workers a traditional function? iii. As long as congress regulates states just like private employers, 10th amendment is not a limitation; only when congress tries to regulate states as states 10th amendment is not as much of a limitation.
3. 1990s - cuts back on Garcia a. NY v. US, US v. Printz stand for proposition 10th is a limitation! b. NY v. US commandeering case i. The problem was Congress said they must pass legislation to do x. Cant tell the states how to pass laws. ii. In regulating the waste, congress is telling the state that they must take some kind of legislative action (i.e. commandeer the state legislature) c. Printz v. US Congress told states to do background checks for Congress on guns. i. Congress can not commandeer the legislature; nor can it assign functions for state executive officers. d. Regulating in a generally applicable sense (min. wage law that applies to all businesses including the state) does not invoke the 10th amendment (Garcia). e. Raich C. TAXING AND SPENDING POWER a. Generally: Congress has the broad power to tax and spend for the general welfare so long as it does not violate other constitutional provisions. b. Taxing power: i. Art. 1, 8, Congress shall have the power to lay and collect taxes, duties, imposts and excises ii. Independent source of federal authority: Congress may tax activities or property that it might not be authorized to regulate directly under any of the enumerated regulatory powers.
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iii. Special rules on taxes: 1. Must be uniform throughout the US (indirect tax on activity) 2. Direct taxes on property revenue comes from each state in proportion to its share of nations population. 3. No duty on exports. c. Spending power: i. Art. 1, 8, To pay the debts and provide for the common defense and general welfare of the US, but all duties, imposts and excises shall be uniform throughout the US. ii. Old law - US v. Butler: Limit on Congress ability to tax and spend A regulatory scheme has to be justified as a reasonable means of carrying out some other enumerated power. 1. Madison only allowed spending or taxing to further one of the enumerated objects of legislative activities 2. Hamilton broader concept iii. Today, 10th amendment is not a limitation on federal spending power (Congress can use its spending power in areas of primarily local interest.) iv. If Congress cant achieve objective X by direct regulation, since that would lie beyond its enumerated powers, it CAN condition is spending power to achieve the result indirectly by depriving the states of money if they do not achieve the regulatory result. (Dole v. SD setting drinking age) 1. Conditions on grants to state govt. a. Must be in the pursuit of the general welfare b. Conditions must be unambiguous so that states know the consequences of participation c. Conditions must be related to the federal interest in particular national projects or programs. d. The condition imposed cannot violate an independent bar/ constitutional prohibition D. CONGRESS POWER UNDER POST-CIVIL WAR AMENDMENTS a. 13TH, 14TH, 15TH Two main issues: i. To what extent may Congress enact legislation pursuant to these amendments to reach purely private conduct? ii. What power does Congress have to interpret these differently from the Supreme Court, w/ respect to: 1. remedies 2. substantive content b. TEXT of amendments i. 13th: Neither slavery nor involuntary servitudeshall exist w/in the US, nor any place subject to their jurisdiction. ii. 14th: No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the US; nor shall any State deprive any person of life, liberty, or property, w/o due process or law; nor deny any person w/in its jurisdiction the equal protection of the laws. iii. 15th: The right to vote shall not be denied or abridged by the US or by any State on acct. of race, color, or previous condition of servitude.
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iv. Common to all: The Congress shall have power to enforce, by appropriate
legislation, the provisions of this article. c. Congress power to regulate private conduct i. 5 power (2, 15th) To what extent may Congress appropriately enforce the 14th and 15th amendments by proscribing conduct which the Court would not construe to be state action? 1. Examples: a. When private conduct prevents state officials from giving equal protection of due process to others. b. Private conduct that intentionally interferes w/ rights guaranteed to an individual by federal constitutional provisions other than 14th. 2. Gray area: Purely private discrimination by one individual against another, where no state facilities, programs or rights are directly involved. ii. 13th amendment and private conduct: 1. Language not explicitly limited to governmental action. 2. Civil Rights Cases: narrow view only deals w/ badges and incidents of slavery; could only prohibit people from being or owning slaves not discriminating against them. 3. Jones v. Mayer Congress has power to rationally determine what are the badges and incidents of slavery individual actors that discriminate against slavers can be reached as well. iii. 14th amendment: 1. Early decision Civil Rights Cases: Only state action could violate 14th, Congress enforcement power only permitted it to restrict state action, and not private conduct. 2. Change in US v. Guest: a concurrence (not a majority) Congress could, under 5, reach a substantial range of private discriminatory conduct. 3. CURRENT LAW: US v. Morrison disregard the concurrences in Guest. a. General rule: 14th only applies to conduct of the states. b. 5 powers do not apply so that Congress can not reach purely private conduct, even if that conduct interferes w/ rights protected by the 14th. i. Civil Rights Cases reaffirmed. c. Congress cant regulate purely private conduct that has nothing to do w/ state officials. d. Congress can: i. Prohibit private individuals from interfering w/ state officials attempts to furnish equal protection or due process. ii. Punish private conduct where private party acts in conjunction w/ a state official. d. Scope of Congress remedial power i. What kinds of remedial actions may Congress take?
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3. No patent infringement suits ii. Congruence and proportionality test is given strict scrutiny. 1. Congress must clearly est. that states committed major constitutional violations, and then narrowly tailor legislation allowed. 2. Congress has very high burden of showing violation. 3. If burden met, remedial measures must tightly fit violation est.
E. 11TH AMENDMENT: Congress power to authorize suits against state govt. a. TEXT 11th: Judicial power of the US shall not be construed to extend to any suit in
law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens of Subjects of any foreign state. i. S.Ct,s interpretation: 1. Bars suits by a citizen against his or her own state. (Hans v. Louisiana) seems contrary to actual text. 2. Bars suits against a state by citizens of another state. (Chisholm v. Ga.) 3. Covers federal question suits, not just diversity suits. ii. Constitutional limitation on federal judicial power!! NO SUITS BY PRIVATE CITIZENS AGAINST STATES!! b. General rule: citizens cannot sue states!
c. Exceptions: Abrogation of sovereign immunity - where you can get to the states. i. Suits against officials for injunctions for violations of federal law (Ex parte
Young) 1. Suits against official for money damages, out of their own pocket. 2. Can only sue state officer for injunctive relief. Suits against cities. Suits by one state against another. Suits by private individuals suing state in state court. Appellate jurisdiction to review state-court decision. When state waives 11th amendment right consents.
ii. iii.
iv.
v.
vi.
d. BIG EXCEPTION: If Congress passes a statute pursuant to 14th and that statute
gives private citizens the right to sue a state in federal court, this statute will be enforced and WILL NOT VIOLATE 11th. i. Fitzpatrick Congress may authorize suits against states pursuant to 14th. ii. Seminole Tribe v. Florida Congress can not abrogate 11th pursuant to commerce clause. 1. Overrules Union Gas allowed commerce clause to abrogate. 2. Art I (enumerated powers of Congress) can not be used to circumvent limitations Art. III places on Judiciary. 3. Dissent: the majoritys holding prevents Congress from providing a federal forum for a broad range of actions against States. a. 11th was only intended to est. SI in diversity not federal Qs. iii. Congress tries to use 14th to give ability for people to sue: 1. Patent suits in Florida Prepaid. a. When Congress can abrogate SI: i. Congress must express intent to abrogate through 14th.
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e. Congress power to authorize suits against state govt. in state courts i. 11th not a problem because this amendment involves federal courts, NOT
STATE COURTS ii. Alden v. Maine 1. Court says if you cant abrogate states immunity in federal court you cant subject them to suit in their own courts 2. Holding: The doctrine of sovereign immunity generally prevents Congress from subjecting the states to private suits in their own courts, even where the right sued on is federal. iii. Rationale: There is a SI for states that predates the constitution; this never changed. iv. Federal agency proceedings: 1. Federal Maritime Comm. v. SC State Ports - the federal government is barred from requiring that states defend against private complaints in proceedings brought before federal administrative agencies. a. Port Authority was an agency of state govt. so sovereign immunity applied. CHAPTER 3: THE FEDERAL EXECUTIVE POWER A. INHERENT PRESIDENTIAL POWER a. Art. II, 2: Presidents enumerated powers Commander-in-Chief of the armed forces, treaty making power. b. Implied powers: The executive Power shall be vested in a President. c. Broad limitation: The president may not make laws; he may only carry them out. i. Youngstown Sheet v. Tube Co. v. Sawyer (President seizes steel industry) 1. Congress has lawmaking power and seizure of steel industry is unconstitutional
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B. CONSTITUTIONAL PROBLEMS OF THE ADMINISTRATIVE STATE a. NON-DELEGATION DOCTRINE i. CURRENT LAW: Congress must have the ability to delegate. 1. Old law: Schlechter Poultry/Panama Refining Congress couldnt delegate legislative power to executive bodies (President/agency) ii. Limitations on delegation: 1. Delegation is appropriate when given to someone who usually does that particular job. a. Mistretta - sentencing guidelines are constitutional i. Congress may delegate sentencing guidelines to panel of judges 1. judges traditionally sentence criminals 2. judges have sat on commissions before 2. Congress must provide some set of guidelines. a. Whitman-Congress has given sufficient guidance to EPA to set environmental standards. iii. Today, although the court says that when Congress delegates its legislative power it must provide criteria (intelligible principles) to guide the agencys exercise of discretion, all delegations, even w/o criteria, have been upheld. C. CHECKING ADMINISTRATIVE POWER a. The Appointment Power i. TEXT: Art II, 2, cl. 2 - president shall nominate, and by and with the Advice and Consent of the Senate, shall appoint , but the Congress may by Law vest the Appt. of such inferior Officers, as they proper. ii. President has ability to appoint Federal officers 1. Principal Officers appoints and is subject to confirmation by the Senate; Congress may not appoint federal officials. a. Includes secretaries, ambassadors, and federal judges. 2. Inferior Officers President can appoint them, but Congress may give away appt. power in President, heads of dept., or lower federal courts. a. Morrison v. Olson Congress may delegate power to appt. independent counsel to judiciary b/c IC is an inferior officer. b. Limitation: Congress may not delegate appointment of executive officials to itself (Buckley) b. The Presidents Removal Power i. TEXT: Constitution is silent on removal power of federal officials. ii. Determining who is an executive official and who is an inferior official: 1. Look at duties, who they answer to, type of work 2. Think about this in the alternative. iii. Purely executive officials 1. President has implicit power to remove executive principal officials. 2. President may remove executive [inferior] officials as long as limitations do not impede the presidents ability to perform his constitutional duty. (Morrison v. Olson) and unless removal is limited by statute a. Congress may by statute limit removal both if it is an office where independence from the president is desirable, and b. If the law does not prohibit removal, but rather limits removal to instances where good cause is shown.
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iv. Non-executive officials 1. Congress may limit or completely block Presidents right of removal (Humphreys Executor) 2. President may remove only if Congress has explicitly given him the right to do so (Wiener v. U.S.) c. Congress Removal Power i. Congress does not have the ability to remove an executive official (Bowsher v. Synar), they can only impose limitations. 1. Separation of Power issue: we dont want to give one branch the power to fire the others employees. ii. Congress still has a right to remove an executive officer by impeachment. D. FOREIGN POLICY a. TEXT: Art I, 8 Congress has power to declare war and raise support armies. i. Art II President commander in chief of the army and navy; power to make treaties by and with the advice and consent of the Senate b. Foreign affairs are an area for President! (Curtiss Wright) i. president makes treaties w/ advice and consent of senate, but he alone negotiates ii. president is the sole representative of the nation iii. the president, not congress, has the better opportunity of knowing the conditions which prevail in foreign countries in time of war c. Treaty: agreement negotiated by president and effective when ratified by Senate. d. Executive agreement: between US and foreign country that does not require legislative approval. i. Pink and Belmont Court upholds executive agreements. ii. Dames & Moore - (narrow) because the settlement of claims has been determined to be a necessary incident to the resolution of a major foreign policy dispute between our country and another, and because it is concluded that congress acquiesced in the Presidents action, the President has power to settle such claims. 1. Two issues: necessary incident, Congress has acquiesced. e. WAR POWERS i. Constitution sets up a scheme w/o guidance on war powers. 1. Article I grants Congress the power to declare war and the authority to raise and support the army and the navy 2. Article II makes president the commander in chief ii. War Powers Resolution response to dangers learned in Vietnam War w/o conducting the formalities set out in the constitution. 1. Two major issues: a. What constitutes a declaration of war? b. When may the President use American troops in hostilities w/o congressional approval? iii. ENEMY COMBATANTS 1. Hamdi: NARROW decision a. Presidents justification for detaining Hamdi i. Majority (3 justices): Authorization of Use of military Force (AUMF) authorized by Congress.
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1. 4001: no citizen shall be imprisoned or otherwise detained by US except pursuant to act of Congress 2. limitation on AUMF: b/c he was seized on battleground, he can be held during duration of conflict ii. Thomas: AUMF is not necessary b/c President has inherent authority to take this kind of action. iii. Relation to Youngstown twilight zone issue President doesnt need inherent authority, can look to authorization from Cong. 1. Weak argument: b/c AUMF is very broad power for Presidents power in times of war. b. Scalias DISSENT: Criminal procedures would have been adequate (also issue in Padilla) i. Hamdi is a citizen of US and thus he is entitled to normal legal proceedings.
Milligan
US
NO
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that laws of war shall never be applied to citizens of the states when the civilian courts are open and their process unobstructed.
Quirin
Hamdi
Haupt renounced US citizenship acts of belligerency trump his right as a US citizen. US, but he doesnt know it (thinks he is Saudi). US
NO, but has domestic environment become the field of battle? YES, carrying a weapon, but denies involvement. NO, airport but is US transformed into field of battle? (Quirin)
YES (?), but seized w/o weapons or explosives. YES (?), he says no, govt. says yes b/c he had a weapon. NO, but allegedly conspiring to set off dirty bomb in US.
YES
NO
Padilla
YES, but govt. argues that international terminal in airport, is not US territory.
E. CHECKS ON THE PRESIDENT a. Immunity i. Discretionary functions/official acts: 1. President has absolute immunity from civil liability for his official acts (Nixon v. Fitzgerald) insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. 2. Rationale: being subject to civil liability would inhibit president from making certain decisions ii. Non-official acts: 1. President has no immunity for things that do not involve his job not immune from civil suit for having affairs (Clinton v. Jones) a. No immunity for things done before Presidency b. Impeachment i. TEXT: 1. Art. II, 4 impeachment for conviction of treason, bribery, or other high crimes and misdemeanors 2. Art I, 2 House of Representatives has sole power to impeach 3. Art I, 3 Senate has sole power to try impeachments (2/3 members must be present ii. Procedure: Being impeached is like charging you for a crime. House votes for impeachment, requires majority of house. Senate tries impeachment (like a court of law) 2/3 votes to convict the President. CHAPTER 4: LIMITATIONS ON STATE REGULATORY AND TAXING POWER A. PREEMPTION OF STATE AND LOCAL LAWS
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a. General rule: Constitution is the supreme law of the land. Generally, federal law trumps
state law. i. BIGGIE: Courts must discern congressional intent! b. Three categories of preemption: i. EXPRESS congress intention is blatant; preemption clause 1. Scope of express preemption clause is rarely clear. 2. Analysis: start w/ the presumption that the historic police power of the state is not superseded by the federal act unless that is the clear and manifest purpose of congress 3. Cipollone v. Liggett Group Inc: Preemption: No requirement of prohibition based on smoking and health shall be imposed under State law w/ respect to the advertising or promotion of any cigarettes and packages of which are labeled. a. RULE: State law includes common law as well as statutes and regulations (Erie) b. Illustrates that express preemption provisions require judicial interpretation as to what specific types of state law are preempted. 4. Lorillard Tobacco v. Reilly (Court invalidated a Mass. law that prohibited outdoor advertising for cigarettes, such as billboards, w/in 1000 feet of a playground or school.) a. Conclusion dealing w/ categorization: i. The states framework covers tobacco products not in terms of content, but location of ads; Court says that content/location distinction cannot be squared w/ the language of the provision which reaches all requirements and prohibitions imposed under State law. ii. Stevens shifts analysis from content of location to the fact that the states traditionally govern zoning. iii. Possible connection to shopping center cases. i. IMPLIED 1. CONFLICT if federal law and state law are mutually exclusive, so that a person could not comply w/ both, the state law is deemed preempted. a. General, fact that both laws are different doesnt necessarily mean they conflict. I.e. the federal law could be a minimum standard and permits states to set stricter standards. However, if federal standard is the standard, state law is preempted. b. When states set stricter standards in an area than does the federal law, it is necessary to decide whether the federal govt. meant its law to be exclusive or only a minimum standard. i. Florida Lime & Avocado v. Paul ii. Question to ask: When congress passed this law, did they intend to preempt Cal. state law? 2. IMPEDING Congress is trying to achieve a federal objective w/ their law; does state law impede the accomplishment of this objective? a. Analysis: i. Courts must determine the federal objective ii. Decide the point at which the state regulation unduly interferes w/ achieving the goal
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b. LOOK AT: the purposes of the federal and state laws. i. Pacific Gas v. State Energy Resources Commission: ii. Holding: no intended preemption b/c the federal
objective was purely a safety issue and states purpose is based on economics. Because they have different objectives, dual compliance w/ the laws is permissible. c. Possible argument: state law put a burden on federal objective by requiring more than they thought was enough. 3. FIELD field preemption means that federal law is exclusive in the area and preempts state laws even if they serve the same purposes as the federal law and do not impede the implementation of federal law. a. Preemption exists if Congress has taken some area and regulated it so substantially that they intend to wholly occupy the field. b. Foreign policy and immigration, national defense federal govt. has exclusive authority in dealing w/ foreign nations, and therefore state regulations in this area are preempted. i. Hines v. Davidowitz: immigration laws c. Others may include: national defense. d. NOTE: Look at areas traditionally of state concern (police power). c. In preemption look for four things: i. intent of Congress ii. is congress already dealing w/ the issue is a clear federal scheme already in place iii. is the field traditionally left to the states (health and safety police powers, education) iv. is this is a national matter something Congress already does immigration, patent law, bankruptcy, regardless of whether a law is on the books B. DORMANT COMMERCE CLAUSE a. Defined: principle that state and local laws are unconstitutional if they place an undue burden on interstate commerce i. TEXT: Art I, 8 inferred from Congress power to regulate commerce among the states. ii. If Congress has legislated, the question is whether the federal law preempts the state or local law. iii. If Congress has not acted, state and local laws can still be challenged as unduly impeding interstate commerce. b. Key question: whether the state or local law discriminates against out-of-staters or whether it treats in-staters and out-of-staters alike. i. NOTE: if discrimination in regard to a fundamental right or important economic activity, a challenge can be brought under privileges and immunities clause of Art IV, 2 or equal protection clause of 14th. c. Early approach Gibbons v. Ogden, Cooley v. Board of Warden d. Modern approach: BALANCING i. if the law discriminates against out-of-staters, the court has a strong presumption against the law and will uphold the law only if necessary to achieve an important purpose (strict scrutiny) 1. if in-state people are not affected by the law, but out of state people are
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ii. if law does not discriminate against out-of-staters, the court will be in favor of
upholding the law, and the law will be overturned only if burdens on IC outweigh the benefits of the regulation (heightened scrutiny) Upheld (necessary to achieve purpose) Discriminatory Exxon Maine v. Taylor Non-Discriminatory Upheld (benefits greater Barnwell than burden) Pike Clover Leaf Creamery CTS Overruled (burden outweighs benefits) Southern Pacific Kassel Bibb
City of Phil. v. NJ Carbonne Hunt West Lynn Creamery Dean Milk Hughes v. OK
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favored operator is allowed to process waste that is w/in town limits. iii. The waste could be more economically processed by using other plants in the region (fails strict scrutiny) iv. City could argue under police power if there was a particularly kind of waste (only one plant can handle it) this argument fails b/c the waste in this case is generic 4. Law is motivated by a protectionist purpose: a. Look at how the objective is being accomplished!! b. West Lynn Creamery, Inc. v. Heely (Mass charged a tax on all milk sold in state this on its face affected everyone equally (all people had to pay tax)). i. Problem in what Mass did w/ tax revenues they took tax money and funneled it back to Mass. farmers. This is discriminatory. ii. If Mass had dropped tax fund in treasury and in separate bill decided to take money out of treasury and pay farmers, this would be OKthis is basically an indirect route to accomplish the same thing.
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CHAPTER 5: STRUCTURE OF THE CONSTITUTIONS PROTECTION OF CIVIL RIGHTS AND CIVIL LIBERTIES A. REJECTION OF APPLICATION BEFORE CIVIL WAR a. Early RULE: Bill of Rights applied only to federal govt. (Barron)
ii. Due Process Clause: this phrase has been translated to mean that States must now adhere to Bill of Rights THROUGH 14th (incorporation). c. Slaughterhouse case (1873): (butchers challenge local monopoly) i. When 14th passed, it wasnt clear whether it limit states substantive, as
opposed to procedural, powers.
ii. Held: Due Process clause of 14th protects only against procedural unfairness
and is not violated, so look to P & I clause for relief. 1. Court ignores substantive due process argument, though it is mentioned. iii. Brief issue: 14th amendment is only intended to protect national P & I 1. Said only intended to protect against infringement by states of national P & I right as a butcher is not a P & I iv. Holding: P & I of 14th are removed as a basis for applying the Bill of Rights to the states or for protecting any rights from state interference. v. Now, there is a narrow class of what is considered national P & I 1. Right to travel from state to state (Saenz) 2. Right to vote in national election 3. Petition congress to address for a redress of grievances
d. Incorporation of Bill of Rights into the Due Process Clause of 14th. i. 14th amendment may apply civil rights to states. ii. Twining v. NJ: (exemption from testimonial compulsion) 1. BIG DEAL: opened door to S.Ct. applying provisions of the BR to
the states by finding them to be included (incorporated) into the due process clause of 14th. 2. Court at least acknowledges some sets of rights require protection. iii. Gitlow freedom of speech iv. Powell 6th amendment v. INCORPORATION due process clause was intended to incorporate substantive, as well as procedural rights. Determined the reach of the BR and the extent to which individuals could turn to the federal courts for protection from state and local governments.
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conduct through its 5 powers. 3. 13th amendment applies only to slavery and involuntary servitude narrow view (overruled) iv. Cons: absent statutory restriction, private conduct can infringe the most basic
rights (speech, privacy, equality) w/o redress in the courts 1. Private infringements can be just as harmful as govt. 2. Can perpetuate social inequalities v. Pros: preserves zone of private autonomy and advances federalism. 1. Limits reach of federal law 2. Lots of private actions might be taken to court. 3. Preserves zone of state authority. vi. MODERN APPROACH TO STATE ACTION 1. Broadened view of Civil Rights Cases definition of state action 2. Court has two main theories of how private conduct is so closely linked to official conduct that it should be considered state action a. Private actor is fulfilling a public function. b. Connections btw state and private actor are so great that state can be said to be entangled with or even encouraged private activity.
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c. EXCEPTIONS TO STATE ACTION DOCTRINE Where private conduct must comply w/ Constitution i. PUBLIC FUNCTIONS EXCEPTION - when a private individual is entrusted by
the state with the performance of functions that are governmental in nature, he becomes an agent of the state and his acts constitute state action
1. The more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become limited by the statutory and constitutional rights of those who use it. 2. Town is freely accessible, w/ a commercial center not just residential (potential argument that a privately owned purely residential community or camp may not be state action) 3. Balancing test btw constitutional rights of owners of property and the right of the people to enjoy freedom of the press and religion. a. The circumstances that the property rights were held by others than public are not sufficient to justify the State permitting a corporation to govern a community of citizens so as to restrict their fundamental liberties thru the enforcement of a state statute. ii. Speech in shopping centers 1. Amalgamated Food v. Logan Valley (note Hudgens) a. Ct. compares Marsh business block and the shopping center both have unrestricted access, commercial businesses, look public b. Picketers were protesting a particular store in the mall. i. Union picketers would have been deprived of all reasonable opportunity to convey their message to Weis if they had been denied access c. The mall is the functional equivalent of a business block and for 1st purposes, must be treated the same. 2. Lloyd v. Tanner (flyers in a mall dealing w/ protests to Vietnam War) a. Marsh and AF do not apply when speech does not relate to centers operation (war protests). b. There were adequate alternatives of communication (streets, sidewalks right outside mall). c. If Ds were allowed to pass out flyers this would be a significant infringement on property rights w/o enhancing their 1st rights. 3. Hudgens v. National Labor Relations Board (dispute involving one particular store, but picketed in open area and parking lot) a. Overruled AF: shopping is NOT like a corporate town, therefore shopping centers can make any regulations they want regarding speech. b. General rule: time, manner, place restrictions OK, not content. c. Follows Lloyd case. iii. Private property used for public purposes - parks - Evans v. Newton
1. Will called for park to be operated in discriminatory manner.
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a.
State was original trustee but it was switched to private trustee to avoid state action.
e. ENTANGLEMENT EXCEPTION i. The constitution may apply to private conduct if the govt. affirmatively authorizes, encourages, or facilitates private conduct that violates the constitution. 1. ALLOWANCE ISNT ENOUGH!!!! JUDICIAL PROCESS Shelley v. Kramer* Lugar* Edmondson SYMBIOSIS Burton - AMA - RendellBaker - Blum i. ii. Judicial Process REGULATION/LICENSING Moose Lodge Metro Edison AMA Rendell-Baker Blum (no state action) SUBSIDIES Norwood Rendell-Baker Blum - Brentwood
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a. Even though high school athletics w/in a state was regulated by a nominally private association, the association was a state actor due to extensive participation of states entities in associations affairs. i. Brentwood Academy v. Tenn. 1. 84% members were public schools. 2. Entwinement: links btw state and private group are so extensive. 3. If a state formally recognizes the role played by a private association in a particular type of stateorganized activity, that recognition will make it more likely the assoc. will be state actor. vi. Initiatives encouraging violations of rights 1. Ballot initiatives and referendums and their relation to state action a. If an amendment or statute encourages discrimination it may be deemed invalid. People can not be given the authority to effectuate illegitimate objectives. i. Reitman v. Mulkey (D said Ps claim of denial of rental b/c of race was void on grounds of a statute, which was intended to allow private sellers to discriminate in the housing market.) ii. Right to discriminate was embodied in states basic charter, immune from all regulation at any level of state govt. There was express constitutional authority. iii. Dissent: statute does not go against 14th voters utilized a procedure in Cal. Constitution. 1. Action was adopted in most democratic of processes. CHAPTER 6: ECONOMIC LIBERTIES SUBSTANTIVE DUE PROCESS A. EARLY HISTORY OF SUBSTANTIVE DUE PROCESS a. Fifth (federal) and Fourteenth (State) Amendments contain due process clause i. due process clauses were originally understood to protect procedural due process ii. procedural due process-procedures that government must follow when it takes away life, liberty, or property iii. substantive due process-whether the government has an adequate reason for taking away life, liberty, or property b. Slaughterhouse Cases rejected substantive due process, but a few years later there were major pressures to review the substance of state economic regulations. B. RISE OF SUBSTANTIVE DUE PROCESS a. Enactment of 14th amendment b. Laissez-faire attitude following Civil War min. govt. interference w/ business. c. Two decisions where S.Ct. sustained regulations, but indicated willingness to engage in substantive review in certain circumstances. i. Munn v. Illinois upheld law regulating rates charged by grain elevators, but indicated that in mere private contracts judiciary would determine if regulations were reasonable.
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ii. Mugler v. Kansas upheld ban on alcoholic beverages, but indicated that
legislation will only be valid under states police power if it is truly related to protection of public health, safety or morals, and only if it did not violated rights secured by fundamental law. d. 1897 Court finally used substantive due process to invalidate a statute. i. Allgeyer v. Louisiana - Court struck down state law which prohibited anyone from
obtaining insurance on state property from any company not licensed in state
1. Law violated 14th b/c it prevented freedom of contract. 2. Guarantee of liberty protected not only physical liberty, but also such intangibles as right to live and work where one wishes, to earn a livelihood, and to enter any Ks necessary to accomplish these goals. 3. Trend of striking down lots of state legislation on due process grounds! e. Lochner v. NY - Court struck down state law that limited bakers hours to ten per day and sixty per week as violating right to contract (fundamental right to contract). i. Lochner begins era of scrutinizing state regulations that deny life, liberty or property - look for reasons!! ii. Heightened scrutiny test: 1. Very close fit between statute and the goals which it was to serve. iii. Lochner era decisions 1. Maximum work hours: Lochner statute invalidated, but court seemed willing to allow laws where it found that the class needed special protections. a. Women: Court sustained max hour law for women in Muller v. Oregon. b. Note: this is Phase 2 CC era of laissez faire get govt. regulation out! 2. Minimum wages: Struck down minimum wage law for women in Adkins v. Childrens Hospital (freedom of K grounds). 3. Reconciling the two: maximum hour laws promote general health objective and minimum wage laws only lessen economic inequality. Court is more willing to accept laws that perform state police powers but shuns laws that regulate economics C. MODERN APPROACH TO ECONOMIC SUBSTANTIVE DUE PROCESS a. Decline of Lochner: 1930s Phase 3 hit a screeching halt b/c of Depression, Court was forced to reexamine lasseiz faire. Some govt. regulation became necessary. New Deal programs convinced many people of need for aggressive legislative programs to ensure nations economy. Problem: Roosevelts court was stuck in Phase 2 laissez faire substantive due process was a big deal. Court must rethink its position. Court-packing plan forced justices to change opinion in fear of losing job due process doctrine chipped away, therefore, a greater deference to legislative intervention in economics. i. Nebbia v. NY Court upholds state law regulating milk prices. 1. Lochner is NOT overruled, but court has given deference to the state. 2. Court says as long as reason given is not unreasonable, arbitrary or capricious, court is OK w/ it. 3. The standard of scrutiny is lowered. ii. West Coast Hotel v. Parrish Court overrules Adkins by upholding a state minimum wage law for women.
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1. Enabling workers to obtain a living wage is a legitimate limitation on freedom of K. iii. Carolene Products (federal reg. attempting to prohibit shipment of filled milk) 1. Under Lochner govt. would have no business doing this milk producers have a right to pursue their interests. 2. In this case, court upholds regulation, buying into argument that the milk is bad. 3. NEW STANDARD: Presumption of constitutionality for economic regulations; if state can show a rational basis for their law, law is upheld. a. Footnote 4: scrutiny is lowered to rational basis for general economic regulations. However, in the case of insular and discrete minorities, there may be a necessity to use a higher level of scrutiny. Modern civil rights movement is born if state wants to regulate race or gender scrutiny is heightened.
b. MODERN APPROACH i. Court will uphold economic regulation as long as there is a minimally rational relation between the means chosen and the end being pursued (assuming the objective being pursued falls w/in states police power) ii. Presumption of constitutionality unless the legislature has acted in an arbitrary and irrational way. iii. NOTE: No state law has been defeated since 1937 on economic substantive due process grounds. iv. Recent cases: 1. Court hypothesizes reasons which would support legislatures action even though there is no evidence whatsoever that these reasons really motivated lawmakers. a. Williamson v. Lee Optical (Court upheld state law preventing opticians from fitting eyeglass lenses into frames). 2. Court sometimes doesnt even weigh the decision of the legislature if it thinks the law is economically unwise. a. Ferguson (Court upholds state law prohibiting non-lawyers from
debt-adjusting).
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