Вы находитесь на странице: 1из 2

Judiciability: PARMS (a) Political Question: Certain issues off limits enforcement of constitution dependent on other branch &

; not judicial.
(Baker v. Carr: Textual Standard Unsuitably Respectful of Political Embarrassment) (i) Textually demonstrable constitutional commitment to
another branch (Most important) (ii) Lack of standard for resolving: no judicially discoverable & manageable standard for resolving (iii)
Unsuitable policy determination - impossibility of deciding w/o initial policy determ clearly for non-judicial discretion. (iv) lack of respect for
other branches - impossibility of undertaking independent resolution w/o disrespecting other branches of govt.(v) Political decision already made
- Unusual need for adherence, will not question decision already made by another branch (vi) Embarrassment from multiple decisions -
Multifarious pronouncements. (b) Advisory Opinion: no decision outside of case/controversy. (c) Ripeness: timeliness of suit, facts giving rise
contingent on future event not fully developed. Consider (i) odds harm occurs (ii) hardship if no immediate review (iii) fitness of record for
resolving. (d) Mootness: no longer case/controversy Exceptions VCR (i) Voluntary cessation of illegal activity: still hear if might resume
evil ways. (ii) Class action & case has at least w/one viable (iii) Capable of repeat but always evades review. (e) Standing IRC personal
stake in case. a) Injury in fact - imminent, concrete & particularized. (any perceptible harm suffices if not too abstract, & injury
suffered/threatened not merely speculative. b) Redressability- Relief for injury caused by conduct c) Causation - Injury traceable to
conduct (but-for). No 3P standing: unless: (i) close relationship (ii) Substantial obstacle (iii) Congressional conferral of standing (iv) orgs.
standing to challenge govt. action injuring org. itself d) no citizen standing: standing merely as citizens vs. govt. actions violates fed law or
Constitution. e) Zone of interest: sue to force gov actors to conform to req. of specific fed law, but must have injury in fact. Asks if injury to
w/i interest Congress meant to protect; law intended to affect & to allow private to bring fed suit to enforce, then grant standing.
Case/Controversy: CReDIT (1) Controversy btwn adverse parties; (2) Redressable by conclusive judicial decree; (3) Definite, Imminent and
concrete; (4) Touches legal relations of adversaries. Judiciary Art 32 fed ct. system shall have jurisdiction over all cases/controversies: (i)
Arising under Constitution, law, or treaties of US, (ii) admiralty & maritime (iii) Btwn states, (iv) Btwn state & citizens of other state, (v) Btwn
citizens of diff. states. Judicial Review: authority to review decisions /acts/ omission by other branch of govt. Art. 6 2; Judges in every state
bound to constitution. Supremacy clause - hierarchy of primary law; Constitution, Fed law & treaties superior to state law, & conflicting state
law bows to fed law. Congressional Control of Fed Judiciary: power to decide types of cases SCOTUS can hear if doesnt expand original
juris; what lower fed courts should be, & what cases they may hear. Legislative Power: may make all laws necessary & proper carrying into
execution power granted by any branch of fed govt. (i) power to execute powers, (ii) if seeking objective w/i enumerated powers - any means
rationally related to objective if not forbidden by Constitution. Tax power: llay & collect taxes, imposts, & exports if uniform throughout US.
Spending power: provide for common defense & gen. welfare (spending for any public purpose). Commerce power: regulate commerce
w/foreign nations & among several states & w/Indian tribes. definition: (i) virtually every form of economic activity involving or affecting 2+
states. (ii) transport/traffic/transmission across state lines, not just vehicles, (iii) Substantial effect: activity, local or interstate, itself or combined
w/other activities substantially effects movement in interstate commerce. (iv) Enforcement of civil war amendments 13th, 14th, 15th Delegation
of powers: (i) articulable standard - entity exercising delegated power, what it can/not do, cant give away all power wholesale b/c violative of
SoP, but we need workable administrative state & congress cant do it all. Can delegate to executive (admin agencies) & judiciary (rules of civ
pro, sentencing) Presentment & bicameralism: must pass both houses, presented to president to approve/veto, No line item veto. Legislative act
test: (i) affects, alters, modifies, rights, duties, and obligations of persons outside legislative branch - If solely w/i legislative branch then matter of
housekeeping. Presidential Power: Executive Privilege: Communications available to prosecution, if need for info > Need for privacy (Ex.
military secrets v. crim. Pros). Youngstown: Executive branch enforces laws, not enact laws. Exec authority pursuant to express or implied
authorization of congress. Immunity: absolute for civil suits for $ damages of actions in office, not extended to acts prior to taking office.
Appointment of officers: every non-elected fed. officer considered (a) Principle officers: appoint by pres. w/advice of senate. (b) Inferior
officers: appointed 4 ways (i) by pres. w/advice & consent of senate (ii) congressionally vested in pres. alone (iii) in courts of law (iv) or in dept.
heads. (c) mere employee. Principle/inferior designated by: (i) nature/extent of duties (include policy making) (ii) amt. of independence & course
of supervision (iii) position tenure (temp or intermittent or perm). Pres. empowered w/advice & consent of Senate to appoint all ambassadors,
gov. ministers, consults, judges of SC, & all officers of US, Independent counsel: ltd duration of investigation, narrow rng. of action, as inferior
officer. Removal of officers: Constitution silent except for judiciary. Congress may appoint officers to carry on internal legislative tasks, but not
w/admin. or enforcement powers. Congress cannot remove officer charged w/execution of laws except through impeachment. Separation of
Powers: Horiz. Rel. btwn branches; 1 branch tries to do/prohibits another what another branch should/not do. (1) Legislative: makes laws -
judicial & executive branch make ltd laws too. (2) Executive- enforce laws (3) Judicial- presides over cases. Domestic SoP: 1 branch taking
duties of another then SOP problem - if just exercising ministerial duties - no problem. States have power to legislate commerce if law affect
health, welfare, & general well-being of state citizens under police powers. Congress regulating commerce btwn states, state & fed law in conflict
w/ commerce issue fed law does not automatically win) 10th Amendment: (i) conflict btwn feds. & state. (ii) Congress argues necessary &
proper clause, while state argues 10th amend (iii) if not commercial activity by nature then must be direct connection btwn activity & interstate
commerce. Cumulative effects of activities irrelevant. Expansion & Contraction of Commerce Clause (commerce clause applied to local
business) Power to regulate local businesses substantially effecting interstate commerce; uphold act if rational basis btwn local activity &
interstate commerce. Spending: (1) pay debts (2) Provide for common defense (3) General welfare, extremely broad. Conditioned spending
Congress cannot force regs on state but can incentive (do it or lose fed $) *Test* (1) Congress can spend for 3 purposes above. (2) Taxes okay if
revenue raised. (i) Spending in pursuit of general welfare (ii) Conditions on receipt of fed funds unambiguous (iii) Spending related to fed
interest, national program/project or constitutional provisions may provide an independent bar to conditions imposed. 10th Amendment issue
present if trying to compel states. If Private actor bears burden of noncompliance, OK but States not OK. Generally applicable law: fact that reg
affects state has virtually no significance. 10th never comes into play if regulation valid v. private party & also valid v. state. Congress cant
interfere w/state law-making processes in certain ways: cannot commandeer legislative process by directly compelling enactment & enforcement
a fed reg. prog norr compel state/local exec.to perform functions, even if easy & invoke no discretion nor compel state executive officer to carry
out fed law. 11TH Amendment: (1) Citizen of one state may not sue another state w/o consent (2) may not sue own state in fed ct. (3) Cannot
compel waiver of sovereign immunity. Permissible suits: (1) Certain suits v. state officials may be brought (not v. state itself) (2) injunctive relief
OK not $ damages b/c state official acts unconstitutionally no longer state activity. If anti-discrimination law applicable to state valid exercise of
remedial powers & states clearly subject to statue congress can let private bring $ suits v. state in fed ct. if product of past discrimination &
congruent & proportional. 14th Amendment: born/naturalized in US has due process & equal protection. Remedies fact states excluded from
Bill of Rights (incorporation doctrine) 15th Amendment: right to vote based regardless of race. Incorporation Doctrine: first 8 amend
applied to states byr 14th amendment (1) States cannot deny EP & DP (i) congress need not wait for case before legislating (ii) can prevent state
actor from denying in future if congruent & proportional to EP or DP problem (a) Congruent: history of violations of EP/DP (b) Proportional:
target specific problem areas (e,g. if just a city causing problem, cannot punish entire state) (2) EP applies to feds too & same analysis. (i)
Confined to classification schemes (ii) If individual rights case; only DP or privileges & immunity (move to new state & intend to stay, must be
treated same as people already resident - Art 4 2. P&I: applies if doing something in another stat but intending to return to state of residence b/c
right to treated w/respect to fundamental privilege & immunities if not a peculiar source of evil in new state. (3) Due Process Economic Test:
Rational Basis (Caroline Footnote: Maybe narrower scope if legislation (i) facially w/i prohibition of Constitution (ii) attempts to distort
legislative process (iii) discriminatory. Due Process: Strict scrutiny when (1) - First 8 amendments (2) - fundamental right based on
constitution/history & tradition: (i) Family (ii) Marriage (iii) Privacy (iii) Refuse medical care (iv) Perform your profession right to have a
job/right to work (v) Right to die (vi) To birth control (vii) Right to have kids & raise as you like. Substantive Due Process: (1) A fundamental
right (yes) strict scrutiny (no) rational basis - Emerging awareness: leads to finding conduct protected liberty interest, but rarely used IRL. (2) not
arbitrary, discriminatory, or demonstrably irrelevant to policy adopted to promote general welfare; (3) Penumbra of rights: right so apparent &
obvious no need to enumerate it. 4th amend protects against unreasonable search & seizure privacy right) (4) Restricting political process -
makes it more difficult for group to access legislative process or targets discreet & insolate minorities then strict scrutiny. Abortion: Prior to
viability, DP liberty interest in abortion right - state may regulate if regulation undue burden or substantial obstacle. After viability may
prohibit except to protect mothers life. Partial birth restriction okay b/c other abortion methods exist. (Abortion fundamental right, but undue
burden test - hardship in exercise of right or substantial obstacle prevents majority from exercising right; fundamental rights invokes strict
scrutiny - legitimate interest in protecting health/life of mother to certain point, compelling state interest in regulating to ensure medical safety
and compelling interest in mother post-viability of child to ensure safety of mother.) Right to Die: no right to die/assisted suicide. Legit interest in
protecting citizens/tax base & rationally related. Procedural due process: Comes after substantive DP/EP analysis. Protects, Liberty, Life, &
Property; Notice & Ability to be Heard. Protected liberty interest entitling PDP if reputation @ stake; protected property interest legit claim of
entitlement. Thing in question directed @ person claiming & not too malleable. Rational Basis - Economic, National origin by Feds. only test
where saving $ or convenience/efficiency legit Hybrid Rational Basis mental disability, LGBT; Intermediate Scrutiny - gender &
illegitimacy; Strict Scrutiny - race, national origin, religion, alienage by states. Benign Discrimination - remedy past discrimination, test based
on class scheme; precise remedy & actual past discrimination. EP based on complaint of whom law regulating, if unconstitutional on EP state
may still regulate area in different way. EP matches trait w/particular mischief. Closer match more likely okay Similarly situated: all those
in near identical circumstances to . State Actor: no state action then no EP issue, unless meets 1 of 6 tests. Discriminatory impact not enough.
Discriminatory Intent: unexplainable disproportionate impact; historical background of official action reveals racial bias; Procedural events,
special sequence of event leading to decision incl. departures from normal procedural decision making; Legislative history & contemporaneous
statements by body taking official action; foreseeability of impact. Fundamental Rights under Equal Protection: (1) Rights
independently/explicitly guaranteed (2) Right to Vote (i) States determine voter qualifications for state elections (ii) General elections -
restrictions other than age & citizenship - strict scrutiny (iii) Special Elections; State can limit & rational basis applies. (3) Right to Travel -
treating newly arriving citizens significantly less favorably, strict scrutiny may apply; if restriction penalizes right to travel then strict scrutiny (4)
Privileges & Immunities Art. 4 2 (i) Economic rules - Rational Basis (ii) Access to Courts - Rational Basis but maybe substantive/procedural DP
test. (5) Right to Education - intermediate review if child of alien. (6) Right to Jobs. Education: Important state interest to remedy past
discrimination in higher ed. Affirmative Action: actual disadvantage related to classification. OK if subject class only one of several
considerations but specific percentage of minorities not OK poverty not suspect class, but if classification based on race w/discrimination &
disproportional impact works only if no class members in wealthy community) Race: Look @ face (intent) & as applied (application). Law
appears neutral on face may be discriminatory as applied - laws classifying on race inherently suspect & trigger strict scrutiny, look for
disproportionate burden on class & purpose of classifications. Stated purposed vs. real purpose; wont hypothesize for suspect classification.
Racial classification strict scrutiny; DP denied right to property or liberty strict scrutiny. Political function: fed immigration laws
rational basis, state law on national origin strict scrutiny. No suspect/quasi-suspect class: rational basis. Right to Travel: EP implied right of
interstate travel; waiting periods rational basis - if no way to get benefits, strict scrutiny. *Test* Does it penalize travel right? No, RB. Yes, SS.
Penalize: deter travel (ban @ border) OR deprives significant right of traveler. Changing domicile; 14th amend., all rights automatically.
Foreign travel not a right, is privilege - state cannot set law re: foreign travel, only feds. 14th P&I, A142 only if temp. travel to state, but intend
to return to state of domicile. Fundamental privilege & immunity right to work Even if P+I is fundamental, state can deny if non-citizens peculiar
source of problem. State Act/Actor (5 parts): (1) Traditional exclusive govt. function: restricted to company towns & elections; if private entity in
tradition gov. role, sue as state (2) State compulsion of private discrimination: merely allow/encourage but explicit support or judicial decision
saying okay. Jackson: energy corp. & sometimes state supplies energy but not exclusively gov. function. (3) Govt. enforcement of private
discrimination but for involvement of state private discrimination cannot not occur (4) symbiotic relationship - both need each other to survive
(5) Pervasive intertwinement to point of largely overlapping identity. (Liquor license rule: Neutral terms but allows some discriminatory practice
- ltd state action & does not rise to level. Remedy: decree that req. adherence to rules suspended in cases of discrim.; Company town kicked off
JW. Sued for violation of 14th&1st. Found to be a state actor b/c functions as govt. private org =state actor; declined service in shop in
public garage b/c of race. Shop state actor based on symbiotic relation; evicted for failure to pay rent & stuff put on street, stored in private
storage, didnt pay so company sold under state law. Use of state law not enough, sufficient showing of state action only if state
mandates/compels private discrimination no compelled discrimination, maybe encouragement; Legal injunction = state action; If parties
closely linked & depend but could survive w/o each other. Needs showing of pervasive entwinement to point of largely overlapping identities.
Largely overlapping; state action only an issue if discussing 14th amend (due process, equal protection, privilege & immunities) & private party
denied 14th right.

Оценить