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Marbury v. Madison: o Issues:  Ct looks at: if they don t give him the appointment, does it violate his right  Right give the remedy?  Does the ct. have the authority to force the executive branch to give the appointment  Does the ct. have the jurisdiction to hear this case? o Supreme court wins this case because a lot of these issues are not really about the individuals involved, they are about the power of the court o Tools and arguments used to justify the decision  Starts with reading the constitution  Interpret the meaning  Look to the intent of the framers why would they write a constitution that they intended to be changed easily or to not trump legislation? o Could have decided this easier by just saying they don t have jurisdiction over the case rather than going through a detailed constitutional analysis Main principle lessons from Marbury: o Constitution is not in the text alone (silent about judicial review) o Constitution is regulatory (can be judicially endorses) not just aspirational (not merely a set of goals or ideas) o Violation of rights require a remedy? o Congress cannot restrict or increase the court s original jurisdiction o Court may review executive action that is ministerial (non-discretionary) o Court may review legislation for constitutionality There are times when the courts will defer to the executive branch/administrative agencies Martin v. Hunter s Lessee o Can VA say we aren t going to follow what the Supreme Court interpreted the constitution to mean?  They get to interpret what the constitution means to them. o Reaffirming the Supreme Ct s power over state courts on constitutional issues o Policy argument it would cause a lot of confusion and problems if you allow each state to interpret the constitution the way they want. Problem Pg. 11 o Are SC interpretations of Const. floors or ceilings? o Can state give more rights or fewer rights? Generally more rights (ie: right to education)  State can decide that their own const. gives more rights than the fed. Const. o Can states choose to follow other states more expansive readings of their own Const. provisions? yes

Cooper v. Aaron: o Can the SC tell the states what to do? yes Restraints on judicial authority: o Practical restraints  Kinds of cases they have to hear almost none, based mainly on their decisions (writ of certiorari); usually hear things about when circuits are split, states are violating  4 of the judges have to say that they want to hear the case, not all  o Should we have a SC and a Constitutional court?  Possibly because there are a lot of cases that are not constitutional cases being heard by the SC Ex Parte McCardle o Sought a writ of habeus corpus denied o Ct wants to know why they have this person o First case that actually discusses precedential cases o Jurisdiction issue Klien case: o Jurisdiction issue but also involved interfering with the SC s ability to decide the case on the merits (article 3 separation of powers)

Political Question Doctrine: y Baker v. Carr (pg. 23-25): o Factors used to consider but no hard and fast rule:  Appropriateness under our system of gov t of attributing finality to the action of the political departments  The lack of satisfactory criteria for a judicial determination are dominant considerations  Whether it relates to foreign relations y Don t really want to embarrass a coequal branch of gov t

o Brennan gives 6 Factors, at least one of which must be present in order to make an issue a non-justiciable political question:  1. Commitment to another branch: A textually demonstrable constitutional commitment of the issue to a coordinate political question (i.e. foreign affairs or executive war powers)?  2. Lack of standards: A lack of judicially discoverable and manageable standards for resolving the issue  3. Unsuitable policy determination: The impossibility of deciding [the issue] without an initial policy determination of a kind clearly for nonjudicial discretion


4. Lack of respect for other branches: The impossibility of a court s undertaking independent resolution without expressing lack of the respect due co-ordinate branches of government. 5. Political decisions already made: An unusual need for unquestioning adherence to a political decision already made. 6. Multiple pronouncements: The potential for embarrassment from multifarious pronouncements by various departments on one question

A lot of the problems in this area come from politicians re-drawing the district lines to better their chances of re-election

Case or Controversy Requirement (Pg. 28): y y Must be an actual dispute between two parties that has legal grounds Prohibition of Advisory opinions: o Not really the courts job to give advisory opinions o Harder to make those kind of decisions because they are hypothetical situations o Thanks for the advice, but we re going to do something else anyway Declaratory Judgments: o They do them now, but not back then o Tells you what the law is on the matter and it still requires two adversarial parties that require judicial involvement and the judgment actually resolves the matter o Typically property, intellectual property issues, etc.

Ripeness (pg. 30) y United Public Workers v. Mitchell: o Not ripe, not hearing the case  do your job, shut up , not engage in political activity o Dissent (Douglas) thinks that the issue was ripe Abbot Labs v. Gardner: o Required the drug companies to print the generic name along with the brand name for the drug on the same packaging o No one has been prosecuted for not complying o Ripe because it was going to cost a lot of money for advertising, re-printing, etc. o Ct decided it was ripe and to hear the case o This places more requirements on the company, not just telling them to continue doing their job and not involve themselves in political issues like in the United Public Workers case

Mootness: y DeFunis v. Odegaard: o Ct declared the case moot because he was already in his 3rd year by the time the case got to the SC, he already had his remedy and there was no real reason for the court to decide the case o Dissent: doesn t think that it is completely moot, it would be moot when he actually graduated and since he still had some time left o Jurisdictional/prudential issue?  Ct may not be able to constitutionally hear the case (don t have the authorization)  Prudential guy is probably going to graduate, not really worth their time to hear the case Mootness plaintiff specific, not really defendant specific

Standing: y y Plaintiff bears the burden of establishing that they do have standing 3 constitutional requirements: o Injury actual or imminent invasion of a legally protected interest of the plaintiff that is concrete and particularized o Causation caused by the conduct of the defendant o Redressability can be redressed by a decision of the Court Daimler-Chrysler v. Cuno o Corporate welfare (tax breaks for the company) o Tax payers brought the suit because they were having to bear the burden due to the corp. not paying as much in tax, reduced amount of funds to the city/state o Court states that there is too much speculative issues with the plaintiff s case, they don t really want to give them standing on speculative issues (they don t seem to be concrete, there is no actual injury) o Issue of municipality If a tax break is given to a company in a small community, it may be more clear where the cause is coming from and why the injury is occurring and what the injury actually occurs. Taxpayers always have standing to challenge the validity of a tax that they will be forced to pay o You may not be able to challenge the expenditure after paid or that someone is receiving a tax break probably not going to have standing Legislator standing: o Raines v. Byrd minority that wanted the law to not be passed did not have standing because the majority actually voted on it o Coleman v. Miller did have standing because the majority voted on an issue and the governor treated it as if the vote had gone the other way and acknowledged the alternative to what the majority voted on as law. 4

Hein v. Freedom from Religion Foundation: o Pg.41-42 in supp. book

Notes 8/30 9/1: Standing Causation (Supp. Pg. 43) y y Who has more standing: o Soldier being sent off to the war Lujan v. Defenders of Wildlife: o Case with the rule for standing Pg. 64 and 65 o 3 elements for standing:  Plaintiff must have suffered an injury in fact an invasion of a legally protected interest that is: y (a) concrete and particularized, and y (b) actual or imminent, not conjectural or hypothetical  There must be a causal connection between the injury and the conduct complained of y Injury has to be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court  It must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision o Case fails because there was not a definite injury to the plaintiffs and there was no redressability really available to the plaintiffs, even if there was injury done o Is this a legally protected issue? This tends to be more of a global problem rather than just a US issue. Sierra Club v. Morton: o Lacked standing o Injury in fact test requires more than an injury to a cognizable interest. It requires the party seeking review be among the injured themselves, the impact of the proposed road would not fall indiscriminately upon every citizen o Sierra Club failed to allege that it or its members would be affected in any of their activities or pastimes by the development. o Dissent: it should have been given standing because it was an established organization that was trying to protect the rights of a larger number of people that may not have the ability to bring such a suit they represent those individuals who are injured by these decisions SCRAP and Article III s Standing requirements: o Does have standing o Ct claims that because their harm is more speculative and the remedy and causation is all equally speculative 5

o Case doesn t really make any sense! Tax-exempt discriminatory schools Allen v. Wright: o Not a clear enough causal link between receiving tax exemptions and not allowing students of different races to be admitted to the school Gender discrimination Heckler v. Mathews o Male filed that he wasn t receiving some equal treatment that women are awarded under the Social Security Act o Does have standing, no real redress because either future men would get something and he would not, or women get the benefit taken away there is no real redress for him Lyons Case o Yes, has standing because:  He has actual damages from the incident that he was a direct party to o No, doesn t have standing:  Wants an injunction for future use of choke-holds but this would apply to future and there is not standing because there is no certainty established that it will happen to him again in the future  Has to be shown that the individual themselves will be certainly affected in the future (Roe v. Wade, similar concept that woman who cannot have children would not have standing for or against abortion) o What would be the harm of the injunction against choke-holds:  Maybe because certain things such as taser guns did not exist at the time Testers - go out and test to make sure that certain organizations are being systematically discriminatory towards others o These people have standing Massachusetts v. Environmental Protection Agency: o There is standing in this case (usually the rule in these situations does not exist) o Majority enough to help eliminate the 6% of the emissions that affect the total; this is enough to allow them to have standing o Roberts dissent there was not definite enough injury, it was not imminent enough  Redressability is even more problematic o A little bit of a political question, there is a lot of overlap here Congressionally authorized standing: o Congress can give standing when:  (1) Injury in Fact (actual or imminent)  (2) has to be the kind that congress intended to give that type of person in that situation ( zone of interest ) y provisions that give person the right to bring the claim, have to show they are within the parameters of that statute and its requirements as to their ability to bring the action  Prudential scenario 6

 At least satisfy Article III Procedural harm: o Procedure has to be one that is supposed to lead to something o There has to be an actual harm due to the procedure not being followed properly o Procedural rights are connected to the concrete harm that gives you the right to sue  Almost like a procedural due process harm o The test changes when congress authorizes suit to enforce procedural rights:  Injury  Causation  Some possibility of redressability Summers v. Earth Island Institute: o Don t have standing because there were no affidavits presented that any of their members were directly injured (no one can show that they had definite, immediate plans to go there in the future) o Problem is that the Massachusetts case was not even mentioned in the case (5-4 decision) only a few years before Monsanto Co. v. Geerston Seed Farms: o Stricter standard for standing:  Injury be concrete, particularized, and actual or imminent (and/or may not make any difference for exam purposes distinguish)  Fairly traceable to the challenged action  Redressable by a favorable ruling rd 3 party standing (Supp. Pg 47, 51) o Sometimes you can bring a suit on behalf of someone else o Usually you can t, exceptions to allow 3rd party standing:  (1) when 2nd party cannot sue or it would be very difficult and unlikely that the 2nd party will sue y Court believes the 3rd party will effectively represent the claim (well suited) and y It would be difficult for the 3rd party to raise the claim (hindrance)  (2) where there is a special relationship between the claimant and the 3rd party (including association), AND y Based not merely on the closeness of the relationship but also on the relevance of the relationship to the suit  (3) in 1st amendment cases, where a statute is so overly broad that it chills the expression of 3rd parties y If the statute is substantially overbroad in its regulation of expression, a claimant who has satisfied the other constitutional requirements for standing may raise the claims of 3rd parties who are or may be engaged in expression that is constitutionally protected but who may be affected by the overly broad statute 7

If the law is substantially overbroad, then the claimant may raise these claims, even if the statute would rightly regulate their own expression. y Thus, a person may challenge the statute in the engaged in conduct that was not protected by the 1st Amendment. in such a case would not be engaging in constitutionally protected speech but would be able to bring what is called a facial challenge to the statute, which, if successful, would result in the entire statute being struck down Organizations can bring claims on behalf of their members without instituting a class action if they satisfy the requirements:  (1) members need to otherwise have standing to raise the claims in their own right  (2) organization s claims must be germane to the organization s purpose  (3) participation by the organization s members themselves is not required In order to raise standing for a third party you have to have standing yourself  Some can t claim the right for themselves, remedy based on rights of that other person being vindicated  Still has to be an injury on the 1st party, and those in some way effect the 3rd party person bringing the case (ie: special relationship b/w doctor and patient, could be hard for women to come forward)  Ex: abortion doctor (male) may not have standing to the right of abortion but he can have standing based on his patients (women who do have a right to choose) and he is the way that those people can be vindicated 3rd party also vindicated through the remedy y

Notes 9/6 9/8: y National Legislative Power: o Art. 1, Sec. 1 o Congress gets to do what the constitution says it can do enumerated, what s not enumerated for congress to do is held for the states and the people o Art. 1., Sec. 8 powers of congress (what they get to do)  Can congress legislate for the general welfare? No  They can tax and spend for the common defense and general welfare but that doesn t give them to regulate/pass laws for the general welfare o Is our constitution constitutional? not really because they did not follow the process that was laid out in the original Articles of Confederation that were re-drawn as the constitution but not in the process laid out in Article 13 of the Articles of Confederation 2 limits on congressional power (CB 108) o Its not on the list  But its necessary or proper  Strict v. loose interpretations (ie: water v. iphone) o It violates a right 8

o Section 10 also places some limitations (?) McCulloch v. Maryland: o Issues:  Where does the constitution come from? y MD thinks the power derives from the states giving up their powers to give the federal government the power y NO It is we the people, not we the states because the people are voting, not the states  Does congress have the power to incorporate a bank? y Is it necessary/proper? o Is this something that you need in order to fulfill other goals (things on the enumerated list) o Test (CB bottom of 112):  Legitimate federal ends within the scope of the Constitution  By appropriate means clearly adapted to that end  Not expressly prohibited  In the spirit of the Constitution  Can MD tax the bank? (main issue) y No because state law cannot trump federal law Pg 116 Rule for necessary and proper from the US v. Comstock case o Rational basis test o It doesn t have to be the reason that congress had for passing the law, it can be something that simply has a legitimate government interest to pass the test o Scalia and Thomas are right (they are the dissent)

Notes 9/8/11: The Commerce Clause: y Interstate Commerce: o Why do we have it?  You want a free market and the states were doing things that were interfering with free market o How has it been interpreted over time?  Expansive interpretations of the clause since its inception  Founding to 1890s y Interpreted more loosely  1890s 1937 y Survival of the fittest, completely free market and the government shouldn t interfere y Tendency towards huge monopolies, decline in the smaller businesses 9

y Large growth in the industrial world, large factories, etc  1938 1990s y Stock market crashes, basically if Congress says it is within the constraints of the Clause, then they are going to do it  1990s present y Return back to the 1890s era Gibbons v. Ogdon: o Notes:  Insurance policies not commerce in the past, today they would probably consider it commerce (especially if it is interstate)  Internal Commerce Iowa decides to stop making liquor and it is a state issue, the government can t get involved y Manufacturing is not commerce, its only once you sell what you make that it becomes commerce  Intrastate Steamers instrumentalities (boats, planes, trains, etc) and channels (rivers, railroad, airways, etc)of interstate commerce can always be regulated by congress because they are transporting things from outside the state within the state Champion v. Ames (5-4 decision) (Supp. 85) o Regressive tax and was considered evil, especially at the time, because it was marketed towards the poor people who purchased tickets in hopes of winning money, rich people don t tend to play the lottery o States can allow a lottery to take place in their state but congress has the power to regulate the transportation of the lottery ticket across state lines o Dissent: majority holding conflicts with the 10th Amendment this is a state power that the government shouldn t be getting involved with (regulating for the morals and general welfare of the citizens of those states) o Thing itself (lottery ticket) is evil (inherently evil) Hammer v. Dagenhart (Supp. 85) o Thing itself is not evil, it s made in an evil way (not inherently evil) o Not telling them they can t have child labor, the product can t leave the state if it stays in that state, that s ok (ct. shot down that argument) ????? o Dissent -

Notes 9/13/11: y Carter v. Carter Coal Co. (Supp. 84-85) o This is more like Schechter (sick chicken case) coal has not begun its journey so can t regulate it yet because it has not started processing through interstate commerce, can t regulate chickens after it has processed through interstate commerce o Congress can only regulate those things that have a direct effect on interstate commerce mining not considered interstate commerce 10

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 want to avoid a slippery slope of regulating everything NLRB v. Jones Laughlin Steel Corp. (Supp. 89): o Closer to the stock-yard case (Swift case)  Bottle-neck with the cattle coming in, being distributed out to different locations o Steel co. is this heart receiving things in from interstate commerce and shipping them out for interstate commerce (clearly interstate commerce and they are an interstate company involved with things that are essential to our national economy) o This has such a close and substantial relationship to commerce that it should be allowed to be regulated direct effect on the economy/commerce if there are issues (ie workers go on strike, etc.) US v. Darby (Supp. 90) o Similar to the child labor case (hammer v. dagenhart) o Overturn hammer case unconstitutional o Cite the gibbons case go back to the broad interpretation of the commerce clause and all the other cases were wrong/misinterpreted o Substantial effect on interstate commerce Wickard v. Filburn (Supp. 91) o Regulating wheat production used for his personal use to feed his family and livestock o Ct determined that it could be regulated as interstate commerce because there was a large amount of wheat involved in interstate commerce and controlling the price and amount of wheat was important to the national economy o homegrown wheat was the most variable factor in the wheat supply, and his personal consumption did have an effect on the price o Did not directly have a substantial impact, but the cumulative effect of regulating or failing to regulate the entire class of wheat producers had a substantial impact on interstate commerce o Something like 20% fluctuation for other use de-stabilizes the market a lot more substantially (especially since it was being used to sustain their farming business which is a part of interstate commerce) 1944 US v. South-Eastern Underwriters Assoc. overturned Paul case and determined that insurance was interstate commerce Heart of Atlanta Motel, Inc v. US (Supp. 92) o Refused to rent rooms to black people, 75% of customers were from out of state and they advertised nationally o Was interstate commerce because it was having an effect on commerce because black people were not traveling due to racial discrimination o Fundamental right to travel impacted when you have no motels that you are able to stay at night, restaurants you can eat at o just because the reasoning could involve eliminating racial discrimination, doesn t exclude them from doing it through the commerce clause (could have done it through 11

the 13-15th amendments, equal protection; it was difficult to apply those amendments because of the subject matter so it was easier to do it through the commerce clause and avoid the issue) o Pinches and squeeze test for interstate commerce (93) Katzenbach v. McClung: o Even though it was a local place, they were buying supplies from interstate so it can be regulated as interstate commerce Perez v. US: o Loan sharking a federal crime (Consumer Credit Protection Act) linked largely to organized crime and had impact on interstate commerce o Even if the money was used only within that state, the money was used to finance national operations and should be regulated US v. Lopez (Supp. 94-97 o 3 avenues for Congress to exert legitimate commerce clause power (had to relate to):  Channels of interstate commerce (highways, waterways, etc)  Instrumentalities of interstate commerce (trucks, ships, etc)  Activities that have a substantial effect on interstate commerce o Dissent wants to leave it to the states to see what works and what doesn t (ie: one state implements a gun free policy in the schools and it results in higher SAT scores/higher graduation rates)  Undermines quality of education in nation s classrooms o Thomas (concurring) substantial test/stricter interpretation of the commerce clause

Notes 9/20/11: Taxing and Spending Powers: y US v. Butler: o Better for the economy to pay the farmers (seems like spending for the general welfare) o This allows the prices to be regulated/production to be more controlled o Original view on taxing and spending was debated on between  Madison (taxing/spending for general welfare means the things that are already enumerated in the enumerated powers)  Hamilton (general welfare means something in addition to the enumerated powers) o This court takes Hamilton s view (but not really) general welfare means general welfare and this is for the general welfare but they can t do it because they are forcing the farmers; 1935 10th amendment is not a truism, there are things that are local and there are things for the states to do o Taxing and spending for the general welfare is ok this is local welfare and should be left to the states to handle o Dissent thinks this is for the general welfare 12

South Dakota v. Dole: o In order for them to receive highway money, they have to raise their drinking age o Similar to other case because it seems as if they are taking the powers away from the states o Test for conditional spending:  Must be for common defense/welfare  Must be stated unambiguously (clear if there is a condition and what that condition is)  Relation between the purpose of the expenditure and the purpose of the condition y If they re spending money for state highways, the condition (raising the drinking age) has to be related to the underlying purpose for the spending y They don t want the condition to be a punishment or an attempt at regulating (needs to be more necessary and proper that the condition exist)  Can t violate the constitution can t force the state s to do something unconstitutional y Congress may induce the states to comply can t coerce them o Dissent (O Connor) thinks they are going too far by allowing this condition for the funding; she does agree with the 4-part test but thinks it fails the test because it is not reasonably related to highway safety and highway spending because it is too overinclusive and under-inclusive not closely tailored; thinks this is more of a regulation of drinking rather than highway safety

War and Treaty Power (pg. 199): y Woods v. Cloyd W. Miller Co. o War caused the housing crisis and they regulated rent control until the shortage was over o Allowed the war powers to regulate rent control o Things that tend to happen under the war powers Congress tends to throw the constitution out the window gives the president more powers that they were never intended to have

Treaty Power (pg. 203, Supp. 109) y y 2/3 vote of the Senate is required for ratification (what the constitution says, but most of our treaties are not done this way now) Missouri v. Holland (pg. 203, Supp. 112) o Prior cases that regulated migratory birds that interfered with state s rights o Treaty power is different because it is international so it is typically considered a national interest, allowing the federal government to regulate it 13

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o Ct thinks that the power of treaty was never held by the states, it was only for federal Treaties trump state law because they are national (law of the land) Whitney v. Robertson (pg. 206) o Most favored nations clause I get the same deal that the country with the best deal that you deal with gets o Treaty is considered the same as federal statutes (depending on which one was passed most recently trumps the other) o Some treaties must be approved by legislation before they are given effect and will not trump a federal statute until it is incorporated by the legislation under federal law  Not all treaties are self-executing

Notes 9/22/11: y Civil Rights Cases (1883 pg. 213): o Falls in between the individual regulation allowed under the 13th amendment (individuals) and the regulation states 14th amendment (slavery/involuntary servitude in the states) Ollie s BBQ after this case? o Not if it is the same location can t really do anything until CRA in the 60s US v. Guest: o Notes case 216 o Section 5 of 14th amendment authorized Congress to make it a crime for white supremacists to conspire to deprive blacks of their civil rights o Allows the 14th amendment to be applied to individuals somewhat US v. Morrison: o 14th amendment you can t use it to get at the individuals Jones v. Alfred H. Mayer Co. o Supp. 117 Katzenbach v. Morgan: o Voting Rights Act of 1965 upheld o Federal law written allowing the right to vote NY state law not allowing people who do not read/write English to vote o appropriate law to further the aims of the 14th amendment (via the 5th section of the constitution to allow them the power to do this) Oregon v. Mitchell: o Changed the voting age from 21 to 18 o Limitations upon Congress power to enforce the guarantees of the Civil War amendments (219)  (1) Congress may not by legislation repeal other provisions of the Constitution  (2) power granted to Congress was not intended to strip the states of their power to govern themselves or to convert our national government of

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enumerated powers into a central government of unrestrained authority over every inch of the whole nation  (3) Congress may only enforce the provisions of the amendments and may do so only by appropriate legislation. Congress has no power under the enforcement sections to undercut the amendments guarantees of personal equality and freedom from discrimination, or to undermine those protections of the Bill of Rights which the 14th Amendment makes those applicable to the states City of Boerne v. Archbishop of San Antonio & US o Ct thinks this will place too large of a burden on the states that is unfair; o Only needs to pass the rational basis test; RFRA required it to pass a heightened scrutiny test (would need to be enacted for a compelling state interest) o Ct defines the right (and decides how it is to be protected you can only protect what we would protect) and Congress creates a remedy (congruent and proportional to the harm) Under 13, 14, 15 amendments you can sue the state under those (as opposed to the 11th amendment giving the states sovereign immunity from being sued)

Federal Executive Powers y y y Article II Implied Presidential Powers (pg. 236) o There is no necessary and proper clause for the presidential powers Youngstown Sheet & Tube Co. v. Sawyer (main case for presidential powers) o Supp. 141 o Truman has war powers because he is president but he can t take control of the steel mills because he doesn t have the implied powers to do this (not a law-maker, he has to faithfully execute in this area) o Constitution says that congress maintains the Navy and military folks, not the president (but Congress wasn t really doing anything still doesn t give the president the right to do something anyway Congress had considered it but decided to approach things another way) o Rule: president s powers aren t fixed, they fluctuate o Justice Jackson Pg. 142 (Supp.) 3 zones of executive authority  (1) when the president acts pursuant to an express or implied authorizations of Congress. y When the president s authority is at its maximum  (2) when the president acts in absence of either a congressional grant or denial of authority


President can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. y President cannot violate other constitutional provisions. (3) when the president takes measures incompatible with the expressed or implied will of Congress y President s power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. y

Notes 9/27/11: y President constitutionally lower the tariffs on vegetables below the floor for tariffs set by congress in earlier law? o If it s an area where congress has authority to legislate and they have legislated president can t just come in and pass a treaty to have the last in time (has to have either 2/3 passage by Congress or pre-authorization of 51% involving trade agreements) o Executive agreement will trump state law even without the pre-authorization or 2/3 President s Memorandum: o Self-executing v. non self-executing? o Before the Foster v. Neilson case, treaties were believed to be self-executing o After that case, majority of the courts required that it be put in the treaty for it to be self-executing Nondelegation of powers doctrine: o Mistretta Case (Pg. 251 CB, modern rule on nondelegation) intelligible guiding principle in order to make those rules o **Pg. 251 Congress shall lay down by legislative act an intelligible principle t which the person or body authorized to exercise the delegated authority is directed to conform, such legislative action is not a forbidden delegation of legislative power. o intelligible principle test for congressional delegations

Veto Power y y Pg. 147 Supp. Legislative Veto: o Immigration and Naturalization Service v. Chadha (pg. 254)  Thinks congress has over-stepped bounds  Unconstitutional because it is taking powers of the courts, violating separation of powers (not allowing them to act as a court) Bill of attainder stops congress from being able to pass criminal laws for one person Need both: bicameralism and presentment Line Item Veto (257) o Can t just veto certain lines of a bill, you have to veto the whole thing 16

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Clinton v. NY (pg.258, Supp. 147):  Line Item Veto Act unconstitutional, in order for it to be constitutional, it must be passed through an amendment to the constitution, not through legislation  President does not have the authority/unilateral power to repeal or amend statutes enacted by Congress  Concurring would allow the president to reward one group and punish another, give too much power to the president because they would be able to pick and choose based on their personal beliefs/party influence  Dissent Constitution doesn t say no line item vetoes; no different from the case saying the president can decide not to spend; doesn t offend the separation of powers; Signing Statements: o Pg. 263 (CB) o The president can pass the bill but state that they do not plan to follow it exactly o ***Power Point*** Foreign Affairs Powers Pg. 283 o President s authority: not the same domestically as it is internationally (someone who can speak with one voice more authority when dealing with international things) o When the executive is acting in regards to foreign relations there is no 10th amendment issue because states never had international relations powers (way the court saw it in the 1930s and is still followed to this day) There is a fundamental right to travel within the US there is not a fundamental right to international travel, can be regulated by the government War and Commander-in-Chief Power o Send in the troops  Probably not const. to send troops prior to obtaining congressional approval/authorization o No nukes  President need to obtain congressional consent before authorizing nuclear weapons  Problem is that president can authorize a bomb be set on a location, but it is typically thought of that the use of bombs indicates war (which is Congress s jobs)  Large problem is that these cases aren t going to be brought don t really have standing who is going to bring it? o No first strikes o

Week 7 Briefs (Pg. 293-313): 17

President s power to fight terrorism (Pg. 288 CB) y Creation of Guantanamo Bay (laws of war, US constitutional law, etc. does not apply to this location there is nothing that regulates it) o Black hole, no legal regime President s power to detain: o Enemy combatant  Legal term in the US but doesn t exist in international law o What due process rights were removed from enemy combatants  Don t get regular judicial process (get a military process)  No counsel  No cross-examination of witnesses (if they even know who they are)  Hearsay evidence comes in  Indefinite detention

Detention of US citizens as alleged terrorists: y y Are US citizen detainees protected to a greater extent by the Constitution than foreign national detainees? Should they be? Ex Parte Quirin: o War crime to dress inappropriately during a war (proper insignia, gun on the outside o Give him a military commission like a war tribunal with special rules designed to ensure conviction (not a full due process) could have tried him by court martial but these were provided with more due process than a military tribunal o Executed within the week Notes (pg. 292) o Non-Detention Act (Supp. 157):  Prohibits imprisoning US citizens unless authorized by Congress (have to have this authorization)  enacted to avoid the creation of internment camps for citizens  Limited the power of the president to detain civilians (did this with the Japanese, created prison camps, similar to what the Nazis did)  Writ of habeas corpus was not enough wanted to avoid a repeat of the concentration camps of civilians

Hamdi v. Rumsfield: y Facts: o Yaser Hasam Hamdi born in US, grew up in Saudi Arabia o Later traveled to Afghanistan where he was detained by American forces and labeled an enemy combatant o First held at Guantanamo Bay, Cuba and then transferred to continental US (when they discovered he was a US citizen), without formal charges or access to counsel 18

y y

His father filed a Habeas Corpus petition on behalf of his son challenging the US government s ability to hold Hamdi indefinitely o Government offers the Mobbs Declaration containing evidence of why he is considered an enemy combatant. Procedural History: o DC appointed him a federal public defender for the petitioners and ordered that counsel be given access to Hamdi o US Ct. of Appeals believed that he had lost the right to counsel and reversed Issues: o Primary Issue: Whether Hamdi must be afforded due process of law?  He retained his right to habeas corpus and to be heard in a federal court or something (some neutral decision maker) can be a military tribunal y There does not have to be a presumption of innocence (there can be a presumption of guilt)  He must be given the opportunity to offer rebutting evidence/respond to the government s allegations against him and to the right to counsel  Suspension of the writ has not occurred in this case only suspended by Congress in rare cases o Whether the US government has the authority to detain a US citizen apprehended in a foreign country as an enemy combatant?  The AUMF authorized the president to use all necessary and appropriate force against nations, organizations, or persons associated with the 9/11 terrorist attacks  No bar to this nation s holding one of its own citizens as an enemy combatant Rule: o some evidence standard offered by the government is not good enough there has to be a higher standard o Mechanism used to determine what procedures are necessary to ensure that a citizen is not deprived of their right to due process: test from Mathews v. Eldridge case  Process due in any given instance is determined by weighing y the private interest that will be affected by the official action against the government s asserted interest, y including the function involved and the y burdens the government would face in providing greater process  Judicious balancing of these concerns, through an analysis of the risk of an erroneous deprivation of the private interest if the process were reduced and the probable value, if any, of additional or substitute safe-guards Holding: o Reversed Concurring/Dissent (Souter): o Act that you can t detain Americans without authorization by Congress o 19

But the AUMF doesn t mention detentions Doesn t think that detaining people during the time of war is not considered necessary and proper executive powers  POWs are not supposed to be interrogated Dissent (Scalia and Stevens): o Argues that Hamdi should not have been held as a prisoner of war and should have been tried in a criminal context for treason. o Felt that there is a difference in a US citizen being arrested for a crime against the US as opposed to an alien being captured for the same reasons o Felt the Hamdi was either entitled to a suspension of the writ by Congress or criminal proceedings to be brought Dissent (Thomas): o This detention falls squarely within the federal government s war powers, and we lack the expertise and capacity to second-guess that decision. o Separation of powers this is for the executive branch to decide, not the judicial branch s responsibility o o

Boumediene v. Bush: y Facts: o Petitioners are aliens designated enemy combatants and detained in Guantanamo Bay o Some of the petitioners had been detained there for up to 6 years with no definitive judicial determination as to the legality of that detention. Procedural History: o Ct. of App. petitioners not entitled to the privilege of the writ of habeas corpus or to the protections of the Suspension Clause Issues: o Whether petitioners are barred from seeking the writ or invoking the protections of the Suspension Clause either because of their status (enemy combatants) or their physical location (in Guantanamo Bay, where Constitution has not typically had effect there at least when concerning non-citizens)  Area is under complete and total control of our government and the Constitution has full effect in Guantanamo Bay o Section 7 of the MCA seems to be a suspension of the writ of habeas corpus, but doesn t definitively state that o Const. states you can suspend it only in instances of rebellion or invasion so that the public safety may require it Holding: o Petitioners do have the habeas corpus privilege to challenge the legality of their detention; sometimes


They don t really lay out an actual process leaves it to the DC to determine and let them come up with how to do it and any issues can be appealed up to determine the validity/efficiency of the process they choose

Dissent: o Disagrees with the majority in applying US constitutional rights to alien enemies detained abroad by our military.  Suspension clause has no application writ of habeas corpus does not and never has run in favor of enemy aliens abroad  Deference to the executive they should have the authority to determine how the war is played out and this could have a drastic impact on military operations o Text and history of the Suspension Clause provides no basis for our jurisdiction Real reason behind the suspension of the writ was we were in a state of emergency so that we can t function properly if we allow the writ suspend it because you are unable to give proper due process (or suspend it because you want to deny someone due process)

Week 7 Briefs (Pg. 314-333) The Treaty Power y As between treaties and congressional acts, generally the last in time is considered valid

Missouri v. Holland y Facts: o Bill in equity brought by the state of MO to prevent a fame warden of the US from attempting to enforce the Migratory Bird Treaty Act and the regulations made by the Secretary of Agriculture in pursuance of the same o Treaty signed b/w US and Great Britain (for Canada) regulating the closed seasons and protection of certain species of birds o Previously states had the right to the migratory birds, etc. They own them. Rule: o Treaties cannot be valid it they infringe on the constitution  There are limits to the treaty-making power: y What an act of congress could not do unaided, in derogation of the powers reserved to the states, a treaty cannot do o Acts of Congress are the supreme law of the land only when made in pursuance of the Constitution, while treaties are declared to be so when made under the authority of US Issues: o Whether the treaty violates the Constitution, specifically under the 10th Amendment.  Treaty does not violate any prohibitory words found in the Constitution


y y

There is a national interest that can only be protected by a national action and it is not sufficient to rely on the states. o Distinguishable because it involves international distinguishable from previous cases Holding: o Treaty is upheld, affirmed o Treaties trump (not really ever something that the states were allowed to do anyway) Post this case the Constitution trumps Medellin v. Texas o Mexican national convicted of murder in TX filed writ of Habeas Corpus seeking protection in a treaty entered into by the US o Denied him relief under the treaty  Did not create binding federal law that displaced existing state law o General framework of the treaties that have an effect internationally and those that also extend their reach to domestic matters:  Treaties can be self-executing and automatically binding domestically, or not self-executing and requiring implementation statutes by Congress  They are not domestic law unless Congress has either enacted implementing statutes or the treaty itself conveys an intention that it be self-executing and is ratified on these terms 

Executive Agreements: y y Agreements negotiated by the president with other countries that have constitutional status despite the lack of express congressional assent. Some of them are never even recorded they are secret executive agreements

Dames & Moore v. Regan y Facts: o Nov. 4, 1979 Americans taken hostage in the US Embassy by Iranian students o President Carter issued an executive agreement :  Called for the establishment of an Iran-US Claims Tribunal which would arbitrate any claims not settled within 6 months. Any awards of the Claims Tribunal are to be final and binding and enforceable in the courts of any nation in accordance with its laws. o Feb 24, 1981 Regan issued an executive order that suspended all claims which may be presented to the Tribunal and provided such claims shall have no legal effect in any action now pending in any court in the US o Plaintiffs would lose pending judgments and claimed the agreement to be unconstitutional and an invalid exercise of executive power  Plaintiffs were contracted to build nuclear plants 22

 y Rule: o

Took away their ability to collect/sue

President s power to issue an executive order must stem either from an act of Congress or from the Constitution itself

Issues: o Government contends that the acts of nullifying the attachments and ordering the transfer of the frozen assets are specifically authorized by the plain language of the statute. o Petitioner contended the plain language should be ignored and that the statute was not intended to give the president such extensive power over the assets of a foreign state during times of national emergency o Congress implicitly authorizes the president to issue executive orders through federal statutes and they preempt any state issues (supremacy clause)  They have always been a necessary use of executive power to carry out foreign diplomacy through speed and efficiency, which is not available through treaties which are required to be ratified. Holding: o President was authorized to suspend the pending claims

Executive Privilege and Immunity from Suit Executive Privilege: US v. Nixon: y Facts: o President Nixon and political affiliates/advisors were indicted for obstruction of justice for their alleged involvement in the Watergate Scandal o DC issued a subpoena ordering the president to turn over recordings of conversations and other documents o He refused claiming executive privilege (inherent and absolute executive privilege exists) Issues: o Claimed the subpoena should be quashed for two reasons:  Separation of powers doctrine precludes a judicial review of a President s claim of privilege  If the president cannot prevail of the claim of absolute privilege, the court should hold as a matter of constitutional law that the privilege prevails over the subpoena


Court rejected an absolute privilege but recognized there is a need for the President to be able to speak candidly with his representatives and advisors that calls for great deference by the courts o President would only be able to withhold this information in situations involving the protection of sensitive information regarding military, diplomatic, or national security o To allow the privilege to withhold evidence that is demonstrably relevant in a criminal trial would cut deeply into the guarantee of due process and gravely impair the basic function of the courts Holding: o Affirm o

Immunity from Suit: Clinton v. Jones: y Facts: o Paula Jones filed a civil suit against President Clinton o Clinton attempted to get it dismissed based on presidential immunity Issues: o An official s absolute immunity should extend only to acts in performance of particular functions of office. It doesn t extend to action performed in a purely administrative capacity prior to obtaining that position. Holding: o He is subject to the proceedings o Case should not be scheduled at a time that would severely interfere with his presidential duties

Notes 10/11/11: Relationship between the States and Federal Government: State Power to Tax the Federal Government (Supp. 121- ) y McCulloch v. MD (Pg. 335) o Case involving the state bank and taxing of federal government o State government can t tax the federal government very difficult to justify

Federal power to tax the states: y Massachusetts v. US o Not trying to target the state with this tax applies to everyone using federal airspace o State is not having to pay anything more than a registration fee - federal government regulates the airspace in federal zones 24

NY v. US o State is engaging in a private function providing mineral water is not typically considered a state function (similar to the regulation of alcohol) o Dissent thinks this is more of an exercise of the power to destroy thinks the states should be allowed to provide specific services to the members of that state  Local government does not exist for itself should not be placed in the same class and business enterprises

State immunity from federal regulation (Pg. 343) y y **Do the CALI Lesson** 11th amendment: o Can t sue states in federal court for claims in law and equity against one of the US by citizens of another state  Citizen of AL can t sue AL in a federal ct.  Cit. of TX can t sue AL in federal ct.  Cit. of another country can t sue AL in federal ct. o Can t sue states in federal court or state courts for violations of federal law o Ex: 14th amendment can sue individual officers from a state as long as you are suing them for stopping them from doing something (can t sue them for something in order to receive damages) Garcia v. San Antonio MTA o Attempting to regulate the wages of the employees o Test from the Usery Case - Can t tax the state for a traditional state function this proved too difficult and caused great turmoil in the lower courts o Traditional state functions difficult to determine because people have different views on what should be considered governmental functions Theory is that your state is represented and protected in Congress by the state s representatives who are supposed to be acting in the interest of the citizens of their state (majority s opinion) o Dissent representatives are not focusing as much on the interests of their individual states but to the national interest (Powell) o O Connor contrary to Framer s intent that states retain a sovereign sphere  Undermines the federal system  Congress cannot choose unconstitutional means to obtain legitimate ends and the judiciary should not hand over its role to say what the law is


Con Law Briefs (Pg. 379 403) State Power to Regulate Commerce Gibbons v. Ogden: y Facts: o NY statute gave Livingston and Fulton the exclusive right to navigate steamboats in certain state waters o They assigned the route to Ogden o Gibbons sought to operate ships on the same route, under a license granted by Congress, Ogden sought injunctive relief on the basis that the federal license was invalid Procedural History: o Federal license was valid and court struck down NY s exclusive license on Supremacy Clause grounds Holding/Analysis: o Things not surrendered to the federal government and exercised by the states:  Inspection laws, quarantine laws, health laws, laws regulating internal commerce such as turnpike roads, ferries, etc.  No direct general power over these objects is granted to Congress and remain subject to state legislation o If the legislative power of the Union can reach them, it must be for national purposes  Where the power is expressly given for a special purpose or is clearly incidental to some power which is expressly given o When action is taken under the state exercised powers, irrelevant that the state law might impact interstate commerce problem is that local laws could potentially impede national economic progress (time of the industrial revolution)

Cooley v. Board of Wardens: y Facts: o PA law required all ships wither to use local pilots when navigating Delaware River or to pay a penalty o Plaintiff paid the penalty then sued for restitution claiming the law violated Congress power to regulate commerce o PA defended based on a 1789 federal law that gave states the authority to enact local pilot laws Issue: o Whether the grant of commercial power to Congress, did per se deprive the states of all power to regulate pilots Procedural History: o Sup. Ct. of PA law is valid and under the state s powers to regulate pilots Holding/Analysis: 26

y y

o o o

Act of 1789 contains a clear and authoritative declaration by the first congress, that the nature of this subject is that until Congress should find it necessary to exert its power, it should be left to the states  It is local and not national  Likely to be the best provided for by the legislative discretion of the states to deem applicable the local peculiarities of the ports within their limits States have been acting on this for more than 60 years Not in any conflict with any law of Congress and does not interfere with any system which congress has established Law is valid, judgment affirmed

Granholm v. Heald: [facial discrimination] y Facts: o MI and NY laws regulating the sale and importation of alcoholic beverages o Requirements from each of the states in regards to out-of-state wineries and the limitations place on the direct sale to consumers Issue: o Whether the laws of MI and NY constitute discrimination between states involving interstate commerce Procedural History: o MI DC sustained the MI scheme  Ct. of App. for 6th circuit reversed  Ct. rejected the argument that the 21st amendment immunizes all state liquor laws from the strictures of the commerce clause o NY DC granted summary judgment to the plaintiffs (wineries)  Ct. of App. for 2nd circuit reversed Holding/Analysis: o Differential treatment between in-state and out-of-state wineries constitutes explicit discrimination against interstate commerce o States do not need to and may not attempt to negotiate with other states regarding their mutual economic interests. o Rivalries among the states are thus kept to a minimum, and a proliferation of trade zones is prevented o Laws of this nature deprive citizens of their right to have access to markets of other states on equal terms o MI/NY contend they are protected by the 21st amendment  Did not authorize states to pass non-uniform laws in order to discriminate against out-of-state goods  State policies under the 21st amendment are protected when they are treated the same for in-state or out-of-state liquor regulation o MI/NY claim interest in preventing the purchase of alcohol by minors 27

o o Dissent: o Stevens, O Connor  Since the laws regulate interstate commerce of alcohol, they are exempt from the Commerce Clause scrutiny o Thomas, Chief Justice, Stevens, O Connor  21st amendment freed states from negative Comm. Cl. restraints on discriminatory regulation

Studies have shown that minors are more likely to consume beer and liquor over wines and those minors who wish to disobey laws will have more direct means of doing so than ordering wine from out-of-state wineries they also are less likely to order from out-of-state because of the lack of instant gratification MI/NY claim tax-collections will suffer  Federal remedies when combines with state licensing regimes, adequately protect states from lost tax revenue Commerce Clause cases require more than a mere speculation to support discrimination against out-of-state goods. Burden is on the state to show that the discrimination is demonstrably justified. MI Affirmed NY Reversed 

Notes Cases: y Baldwin v. GAF Seelig, Inc. o Milk dealer purchased Vermont milk challenged NY Milk Control Act that established minimum prices to be paid by dealers to milk producers.  Dealer could find milk at lower prices from the VT distributor and NY refused to license his business until he complied with the Act o Ct. struck down the act discrimination under the Commerce Clause o A state may regulate the importation of unhealthy livestock or decayed/noxious food but there were no such indications as this involving the VT milk Licensing Requirements Welton v. Missouri o MO law that provided that peddlers who sold products that were not the growth, produce, or manufacture of MO must first obtain a license, but those who sold products from the state were not required to obtain a license o Struck down the law because the in-state sellers were not required to be licensed, so the out-of-state sellers requirement to obtain a license was creating discrimination under the Commerce Clause Protecting Local Interests and Needs o PA v. WV  WV law prohibited the interstate shipment of natural gas unless and until the state s own need for natural gas had been met  Struck down the law - discrimination under the Commerce Clause 28

A state law, whether of the state where the gas is produced or that where it is to be sold, which by its necessary operation prevents, obstructs or burdens such transmission is a regulation of interstate commerce a prohibited interference Hughes v. OK:  OK law prohibiting the transport or shipment of minnow sales outside the state where they were seined or procured in the waters of the state  State claimed an interest in maintaining ecological balance in state waters  Since the state placed no limitation on the sale of minnows within the state, discriminating against the sale of minnows outside the state  If they had a legitimate interest in preserving the ecological balance, there would have been similar restrictions placed on intrastate minnow sales 

Assessing Neutrality y Kassel v. Consolidated Freightways Corp. o Iowa statute that prohibited most uses of 65-ft trucks on Iowa highways claiming the limitation was for safety reasons o Substantial interference with interstate commerce (not as much about the safety)

City of Philadelphia v. NJ et al. y Facts: o NJ law prohibited the importation of most solid or liquid waste that originated or was collected outside the territorial limits of the state o Operators of private landfills in NJ and a few surrounding cities in other states that contracted for waste disposal Issue: o Whether the statutory prohibition violates the commerce clause Holding/Analysis: o NJ claims they are protecting the health and environment of the state for its citizens due to the amount of waste that was being brought in to be disposed of within NJ, especially since several of the landfill sites within the state had closed down and would create even greater threat o This is an attempt by one state to isolate itself from a problem common to many by erecting a barrier against the movement of interstate trade o Quarantine laws have been allowed to interfere with interstate commerce but the prohibition of waste disposal does not fall under this category o Commerce Clause will protect NJ in the future from surrounding states that attempt to isolate itself in the stream of commerce, as it is attempting to do now Dissent: o Rehnquist, Chief Justice  The fact that NJ has to dispose of its own waste should not mean they have to dispose of other state s waste 29

y y

NJ should be free to prohibit the importation of solid waste because of health and safety problems that such waste poses to its citizens

Con Law Notes 10/25 10/27: Nondiscriminatory Burdens on Interstate Commerce: y y y Modern cases have used the S. Pacific balancing test rather than the Barnwell test Impact on interstate commerce clearly and excessively outweigh the benefits locally (in-state) West Lynn Creamery Inc. v. Healy (422, supp-201) o General subsidies are ok because they come from the general fund and goes to a specific group makes it democratic o Clearly protectionism protecting the small farmers who could be harmed because they are small-time o Scalia (4 situations):  Clearly unfair tax (different for in-state, out of state) facially discriminatory  Give non-discriminatory tax and give an exception to local people (basically same)  Non-discriminatory tax upon the industry, the revenues from which are placed into a segregated fund, which fund is disbursed as rebates or subsidies to instate members of the industry - maybe not think it is ok  Comes from general revenues - ok o Dissent consumers aren t going to be against this because it is going to cause prices to go up; dealers aren t going to like this because they are being taxed on both domestic and imported stuff democracy thing doesn t necessarily save this case;  Seem to doubt the whole underlying purpose of the Commerce Clause (don t necessarily believe in the free market, states should be able to protect) o Notes Info:  Bendix Autolite Corp. v. Midwesco A Co. comes into your state to do business and does some kind of harm to the citizens of that state, then leave if you don t have a representative/office in that state to serve them SOL never tolls, you can always bring (substantial burden of the threat of litigation forever, not much benefit to the in-state people because they still could have sued the companies under the long-arm statute there was a mechanism for recovery) y Indefinite SOL is very unfair y Scalia dissents because he doesn t like balancing tests, courts are not that great at balancing tests


State as a Market Participant: y Reeves, Inc. v. Stake (432, Supp-194) o Concrete is not a natural resource more like Alexandria Scrap case kind of like a direct subsidy offered by the state; then they should be able to join the market and give themselves a subsidy o Limitations imposed by the dormant Commerce Clause were confined to instances when the state was either regulating or taxing in a manner that impeded interstate commerce o No constitutional plan to limit the freedom of the state to favor its citizens when the state was participating in the market. When acting as a private actor in the market, the state had the same freedom of contract as other market participants. o If the state is going to act in the market, then they should be allowed to act as other private actors in the market o Dissent market participant exception should only apply to the state when it is involved in integral government operations in an area of traditional governmental function because the exception is based on the right of a state to provide for its own needs  States should not be acting as a company unless they are doing traditional state stuff police, education, utilities, etc. not private construction favoritism South-Central Timber Development v. Wunnicke (436, Supp-195) o Restrictions in the market by the state of Alaska o Alaska sold large quantities of timber as a market participant, but it required that the purchasers agree to process the timber within the state before exporting it. o Ct held additional requirement amounted to a regulation and was not covered by the market participation exception. o Though Alaska could discriminate among buyers within the market it is participating in (selling timber market) o 3 reasons distinguish from Reeves:  Trees are natural resources, raw materials (not concrete like Reeves)  Restraining foreign sales (potential customers in Russia, etc.)  You could come in and buy the natural resources o Majority wants to keep Alaska poor

Interstate Privileges and Immunities Clause: y Your state cannot discriminate against people from out of state o Corporations can t sue under this clause because they aren t considered citizens o Aliens here on Green Cards can t sue under this o Market participant doctrine doesn t apply o Congressional authorization does not apply because this is actually in the constitution and is a limitation on state powers (commerce clause gives congress the authority)  Can t violate this and try to justify under the commerce clause because the constitution specifically forbids it o Test is different under this clause 31

Baldwin v. Fish and Game Commission of Montana: o Court refused to apply the Privileges and Immunity Clause to a discriminatory Montana hunting license fee scheme (out of state getting charged as much as 7times the amount as those in state) o Hunting not a privilege or immunity bearing on the vitality of the nation as a single entity and the state could discriminate in favor of its citizens o If state is denying you your fundamental rights they could apply  Has to be a privilege that bears upon the vitality of the nation as a single entity o Dissent seems similar to other cases that if you re trying to protect your elk from being hunted by those out of state, you should regulate the in-state hunting of elk too seems to discriminate and doesn t appear to be all that different from the minnow case Toomer v. Witsell: o Fee was in excess of what could be considered reasonable and there was no apparent reason to have the fee to begin with o This was not recreational shrimping it was people working and trying to make a living (making it a violation of their rights) Hicklin v. Orbeck o Denying people the privilege of working in the state of Alaska if they aren t citizens of that state o The problem is that there were not enough people in Alaska that have the skills/training to take the jobs statute stated you had to hire qualified residents

Preemption (Supp. Pg. 166): y y Occurs when Congress regulates conduct in a given area and a state law conflicts with the federal regulation In any case of apparent conflict between a state and federal law, the court has 2 options: o (1) it can hold that the valid federal law conflicts with state law and preempts the state law, striking the state law down o (2) it can hold that the federal law and state law do not conflict and can co-exist, upholding both laws as constitutional o Becomes an issue of statutory interpretation court generally decides between the two options by determining whether Congress intended for the federal law to preempt the state law. 2 Types: o Express  Occurs when Congress expresses its intent to preempt the state law with clear language (can also express intent to not preempt state law)  Even If Congress expresses intent, the Court must still decide the scope of the state and federal laws to determine if there is an overlap and thus, a conflict


y y

Implied  Occurs when there is a clear congressional intent to preempt state law, or when it is implicit in the structure or purpose of the federal law.  Court will consider whether implied preemption is appropriate, based on whether it is an area that: y (1) requires national uniformity, versus one that is more appropriate to local regulation and experimentation y (2) is traditionally regulated by the states y (3) cannot be harmoniously regulated by both the federal and state governments (continuous conflicts will likely occur) Pacific Gas & Electric v. State Energy Resources o Supp. Pg. 174 Gade v. National Solid Wastes Management Assoc. o Yes preempted o Supp. 167 o Implied Conflict Preemption o

Chapter 6, State Action (Pg. 465, Supp. 207) Notes 11/3/11: y 2 main ways the state (for constitutional purposes) can be involved in private action that does not meet the public function test o (1) joint actors o (2) symbiotic relationship Burton v. Wilmington Parking Authority (491, Supp. 218) o City was also responsible because the building was owned, rented, and maintained by the city. o Mutual Benefits - City was basically complicit with the discriminating activity at the restaurant because the parking garage was being used more due to the restaurant s location and the restaurant was getting more business because of the availability of good parking Moose Lodge v. Irvis (494, Supp. 219,224) o Level of involvement by the state (liquor license provided by the state in this case did not rise to the level of the symbiotic relationship found in Burton case. o Argument liquor license is heavily regulated, state gets lots of money symbiotic relationship  Not enough like the Greenville case (lunch-counter refusal to serve black man, there was a law/city ordinance that restaurants were to remain segregated) o State had law stating if the establishment had bylaws then the organization is to follow those bylaws


Not a state action because this was more of a private actor issue with the lodge rather than a state action state does not have a law stating that people can t serve alcohol to a particular group, etc. Reitman v. Mulkey (497, Supp. 222-224) o Proposition 14 prevented enactment of state laws to prohibit racial discrimination in renting or selling property in violation of the 14th Amendment o Court found that the design and effect of the amendment was not only to authorize but to significantly encourage racial discrimination by overturning existing fair housing laws that prohibited racial discrimination in selling and renting property o Court is really constitutionalizing this issue referendum was not neutral and was designed to violate those rights o

Judicial Involvement (500) y Shelley v. Kreamer (500, Supp. 222) o Court found state action state enforcement of racially discriminatory deed between private parties (forbid the sale to black people) o White owner wanted to sell to black buyers and the other owners nearby wanted the court to put its coercive power behind them to stop the sale  There would not be state action if white owners privately discriminated against black buyers and only sold to white buyers (state would not be involved) o Sup. Ct. held that such judicial enforcement would constitute state action and would be unconstitutional o Broadest reading of this decision:  Any judicial holding in favor of a private discriminatory act is state action o Narrowest reading of this decision:  The state acts when it forces unwilling parties to discriminate by stopping willing owners from selling to black buyers. Lugar v. Edmonson Oil Co. (508, Supp. 221,225,227) o Court found state action where creditor had the sheriff s help in executing a writ that the creditor obtained in an ex parte hearing in violation of the s due process o Modern formulation of the state action rule (Supp. 221)  (1) deprivation must be caused by the exercise of some right or privilege created by the state or by a person from whom the state is responsible  (2) party charged with the deprivation must be a person who may fairly be said to be a state actor  Second requirement can be fulfilled by: y (1) person is state official y (2) person acted together with, or has obtained significant aid from state officials  (3) because the person s conduct is otherwise chargeable to the state


Edmonson v. Leesville Concrete Company (512, Supp. 225) o Striking black jurors; black plaintiff o Extent to which the actor relies on government assistance and benefits, whether the actor was performing a traditional governmental function and whether the injury caused is aggravated in a unique way by the incidents of government authority. o There was an overt significant assistance by state officials throughout the entire preemptory challenge process, resulting in the judge dismissing the potential juror o State had elected to place its power, property and prestige behind the alleged discrimination

Notes 11/8/11: y Lebron v. National RR Passenger Corp. (520) o Government appoints most of them, part of the government for purposes of the 1st Amendment o Subsidized and run by the government doesn t mean that they are not part of the government (Scalia makes this a government agency) o Even if it doesn t look like a government agency, they are basically operating as such and should be considered a government agency (making all the employees, government employees)

Procedural Due Process (527): y y State action means either state or federal government Bi-Metallic Investment Co. v. State Board of Equalization (528) o Was not affecting them personally, it was affecting everyone equally o If it applies to everyone, you are only entitled to the democratic processes available (talk to representative, vote in next election, etc.) Londoner v. City of Denver (529) o Involved affecting those people individually o Majority of people on street wanted the improvement, so you have to be affected  When they attempt to apply different levels of financial contributions, that is when your right kicks in o When they make the rules at the legislative level no due process to the individuals o Due process rights kick in when you have to actually spend money for this adjudicative stuff (ie: taxes you have to pay them then you can challenge and you can get a hearing after) Goldberg v. Kelly (532, Supp. 270) o Rule prior to this case no pre-termination hearings for taking away government benefits (welfare, etc.) o Privileges can be given/taken away v. rights (inherent to the person) o Once government bestows the right to receive welfare, a property right arises in that recipient and their receipt of welfare cannot be terminated without due process 35

Stakes are simply too high for the welfare recipient, and the possibility for honest error or irritable misjudgment too great, to allow termination of aid without giving the recipient a chance, if they so desire, to be fully informed of the case against them so they may contest its basis and produce evidence in rebuttal. o They don t get a full-scale trial, but they are entitled to an administrative hearing and get notice prior to termination as well. They also get to cross-examine any witnesses against them.  Gives these people a better chance than removing the funds without the hearing o Dissent by Black: welfare is more of a charity the money spent on these hearings could go to others for welfare money  There is no right to welfare in the constitution, should not require due process  You can be nice and give this charity to individuals and it should be taken away easily if they feel necessary Due Process for Contract Professors (536) o Board of Regents v. Roth (Supp. 271)  Expressly declared the wooden distinction between rights and privileges to be fully and finally rejected  Property interest is more than a desire or a need for the property in the abstract. It requires the person to have a legitimate claim of entitlement to it.  Court equated a property right with an entitlement  Court defined entitlement in two different ways (making this problematic) y (1) entitlement as that which people rely on in their daily lives, reliance that must not be arbitrarily undermined o Subjective definition as long as a person has a sufficient reliance on the interest in his or her daily life, it would be an entitlement y (2) entitlements are not created by the Constitution, but by existing rules or understandings derived from independent sources that secure certain benefits and that support claims of entitlement to those benefits o Objective definition as long as a person reasonably expects to receive the benefit in the future, the interest is an entitlement o Liberty interests  Liberty interests encompass more than the mere freedom from bodily restraint  Encompasses those privileges long recognized as essential to the orderly pursuit of happiness by free men (included right to K, engage in occupation, education, marry, establish a home, raise children, worship according to one s religion of choice If the government has decided to give you a right or entitlement then they can t decide what process will be used (this is dictated by the Constitution due process, decided by the courts and not the legislature) o 36

If they are giving a right/entitlement through a statute, it must comply with constitutional rights as to the process Paul v. Davis (538, Supp. 295): o Found no violation of privacy in the publication of the name of a person who had been arrested for shoplifting but who had not yet been tried for the crime (and eventually was dismissed) o No liberty interest in your reputation  Dissent by Brennan right to your reputation/dignity; don t have the right to change someone s status like this Mathews v. Eldridge (542, Supp. 297): o Disability Benefits taken away o Balancing Test to determine what procedures are sufficient to meet the Constitution s requirement for an opportunity to be heard.  (1) private interest affected by government action  (2) degree of risk that the procedure used will result in erroneous deprivation of private interest coupled with the relative value of other additional or substitute safeguards to reduce that risk  (3) strength of government s interest (including the governmental function involved, and the burdens that additional or other substitute safeguards would impose) o No pre-termination hearing for losing his disability benefits o Distinguishes from the Goldberg case in that removing disability benefits as opposed to welfare benefits in not as extreme, assumption that welfare recipients are not going to be as well off as someone receiving disability benefits Goss v. Lopez (549, Supp. 299) o Rights in schools/educational institutions o Ohio statute permitted public school administrators to not give any procedural due process to students when suspensions/expulsions took place  unconstitutional o Expelling/suspending a child from school requires due process to the students o Due process owed depended on the severity of the interference (this is more of a liberty interest reputation)  Short suspension sufficient to provide notice of allegations and permit the child to explain the situation (have to tell you what you are getting in trouble for and what the expected punishment is going to be, then the child is allowed to explain themselves)  Longer suspensions/expulsions require greater and more formal proceedings (same as before but may involve bringing other people in to discover more information) o Did not use the Mathews test (before Mathews) o


14th amendment states give you the rights to something, they don t then get to take those away or remove those rights by using the process the desire (or not using due process that is laid out by the constitution), those are determined by the courts if you give them the rights, you must give them due process in order to infringe on those rights Board of Curators of Univ. of MO v. Horowitz (555) o Should be following Matthews balancing test o Different from Goss case because she was dismissed for academic reasons and Goss was involving disciplinary reasons  Academic issues are more hard and fast because there are standards that are set up and are not as subjective as the disciplinary behavior resulting in suspension or expulsion (not really susceptible to judicial proceedings) Ex: FCSL not a state actor so you don t necessarily get due process you get what they say you get; you really only have a private remedy

Ch. 8 Substantive Protection of Economic Rights (563, Supp. 229): y Substantive Due Process: o What you get for your liberty interests, rights, fundamental rights (get strict scrutiny if you re going to mess with these, there has to be a legitimate government interest) o Not a fundamental right (liberty interests, property rights, things states give you) procedural due process, but you might not get substantive due process Due Process Clause (Supp. 230) o Substantive due process  Protects fundamental rights  Requires government to provide a sufficient justification for any infringement of those rights  o Procedural due process  Right to a fair legal process  Entails the right to receive notice and/or a hearing in some circumstances  o Fundamental rights life, liberty, property, right to marry (certain circumstances)  Liberty freedom to K (not have them interfered with), raise children, vote, travel, procreate, vote, interstate travel  Rights enumerated in Bill of Rights, non-enumerated rights of the 9th Amendment, those protected by concept of liberty o Level of justification required turns on whether the right receives rational basis, intermediate, or strict scrutiny by the courts:  Rational Basis Scrutiny Test: y Government need only show that the regulation limiting the right is rationally related to serving a legitimate state interest


Intermediate Scrutiny Test ( heightened scrutiny ) y This level of scrutiny generally requires the government to show that the regulation serves an important state interest, for which the regulation is substantially related to serving that interest  Strict Scrutiny Test y Requires that the government show that the regulation serves a compelling state interest and is necessary to serve that interest y There must not be any other means or way to achieve the purpose that is less restrictive of the right in question Lochner v. NY (568, Supp. 232) o Lochner convicted of violating state statute limited working hours for bakery workers to sixty hours per week and ten hours per day o State argued that the statute was for the safety and health of bakers o Court found it unconstitutional because the state lacked any reasonable ground for interfering with the bakers rights to enter into K to support themselves/family o Law was not necessary or appropriate as a health law to safeguard the public health, or the health of the individuals who are following the trade of a baker. o Rational basis scrutiny test o Dissent bakers experience poor air quality (white lung disease) and the law was within the powers of the state to protect the health and safety of the public  This is within the state s powers and if there is an issue, it should be handled through legislation and not through the courts  This was for a specific purpose and the statute was narrowly tailored to meet that purpose met the standards Nebbia v. NY (574, Supp. 234) o Statute that set a minimum and maximum price for retail sale of milk o Nebbia (grocery store) sold milk/bread combo that brought the price of milk below that minimum price required by the statute o Purpose of statute was to protect the livelihood of farmers in turn, protect the safeguards that prevented bacterial growth (safeguards increased the costs of dairy production) o Held statute was rationally related to a legitimate state purpose (protecting the health, safety, and welfare of the public) o This is for the legislature to decide if it is necessary not the courts o Majority thinks you can interfere with the right to freedom of K to protect the farmers livelihood - if the farmer s go under, the buyer s rights are not really going to matter since there will be nowhere to purchase the product o Dissent don t really think this approach is going to solve the problem they are trying to solve. 


Thinks there is a right to freedom of K (focuses more on the buyer s ability to K to purchase goods at a cheaper price if a buyer is going to sell it at that cheaper price, rather than the farmer s right to K/livelihood)

Takings Clause (579, Supp. 241) y eminent domain prohibits the government from taking private property for public purpose without providing just compensation o Two types of taking:  (1) possessory taking government physically takes or occupies the property  (2) regulatory takings taking occurs due to a government regulation that interferes with the citizen s use of property o Two major issues under this clause:  (1) some question whether their property is being taken for a public purpose and argue that the taking is impermissible  (2) At times, there are disputes about whether there is a taking at all

Carolene Products footnote 4 (pg. 578 Note 3): y y May be a narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution Substantive due process in regards to economic rights no more strict scrutiny o Exceptions  may be times where we should more closely scrutinize what Congress does (enumerated rights)  If we see political process has failed step in a closely scrutinize what gov t is doing  Dealing with discrete and insular minorities (none or very little voting power) y Majority will sometimes hurt minorities whether they mean to or not because they don t fit in the political process as well, not treated that well historically, etc

Contracts Clause (630) y Home Building & Loan Association v. Blaisdell (631, Supp. 250-51) o State law that prevented mortgage holders from foreclosing on mortgages for two years. o Ct. upheld did not violate the Contracts Clause because the state had a legitimate goal to use its powers to temporarily protect homeowners during the Depression o Imposed reasonable conditions on the mortgages:  Had to pay some kind of rent  Interest still accrued on loans  Lenders could still foreclose after that 2 year period 40

o o

Limitation but was not a huge limitation just a temporary interference with the K in response to a national emergency Reasonable law that is reasonably adapted to legitimate state interest (not really rational basis but very similar could have had a stricter test and it likely would have still satisfied because of the situation) Additional reasons court allows state to interfere with obligations in K (contracts clause)  Not absolute constitution is not really absolute (more flexible approach)  Equity at some point still had to pay the rent, still up for foreclosure at 2 yrs. Notes would something like this pass today? Probably yes with the housing crisis that has been going on for a while.

Gov t Interference with Public K y Should gov t be scrutinized more strictly when interfering with private K or the contract between the gov t and state (self-interest) o Government involved in a K with another state actor/gov t (they have a self interest in the outcome and benefiting themselves to the detriment to other people) needs to be stricter State interference with public K (where the gov t is a party to K) court will use heightened scrutiny to examine the regulation to ensure the state is not regulating simply to protect its own interests. o Court applies 3 part test:  (1) legitimate expectations of the parties to the K  (2) whether there is an important public purpose, AND  (3) whether the interference is reasonable AND necessary (both essential and the least restrictive means) to achieve that purpose. Ex: Financial Reform Law o Can the states pass a law restricting Wall Street executives from awarding/receiving bonuses of more than 10%? Yes and No  Only a state legislature would be able to do something like this  If fed. Gov t wanted to do this, it would have to be under a theory of effecting interstate commerce o No in that they CAN NOT interfere with existing K obligations already entered into o CAN say that from this date forward, restrictions be placed on the future K (does not interfere with the obligations of K that are pre-determined and already entered into)


Gov t Interference with Private K y Allied Structural Steel Co. v. Spannaus (636, Supp. 252) o Allied offered employees a pension option after working with the company for 15 years o Minnesota passed a law that changed the vesting period for pensions to 10 years and would charge a fee to companies that closed before pensions were vested/couldn t pay o Unconstitutional  This was only applying to companies who chose to offer pensions and didn t apply to all companies within the state (somewhat discriminatory) o When the state/government interferes with a private K (one in which the government is NOT a party) a 3-part Test is applied (similar to the rational basis test):  (1) must show substantial impairment of contractual relationship  (2) gov t must show significant and legitimate public purpose for the interference, AND  (3) the means to carry out that purpose must be reasonably related to that goal o Dissent:  Shouldn t be a problem under K clause this was just an additional obligation and trying to make this more equitable  Allied would have to pay the $185k fine but they likely made more money by doing this than even having to pay the fine (closing the factory and taking all of the money paid into the pensions and don t have to pay out on those pensions for those employees)

Review ?s: y All treaties trump state law o Later in time (statute or treaty) trump o Subject to constitution o Used to be presumed to be self-executing; modern view not presumed self-executing and has to be clear that it is self-executing o Executive agreements are superior to state law but do not trump federal law