Con Law I—Outline 1. Judicial Review Marbury v Madison: This case stands for the idea that the judiciary is the one that interprets the Constitution Cooper v. Anderson: AR refused to abide by fed ct decrees requiring school—Ct stated that Art 6 of says that the Constitution is the supreme law of the land— supremacy clause—feds will overrule state Dickerson—once the SC decides a case lower cts are bound by the SC’s decision Q is whether this case can make it to the SC—problems that arise in getting to ct: 1. Political Questions Ct doesn’t want to touch case b/c it’s too controversial and will cause too much trouble 2. Rule of 4 Baltimore Radio: gives rule of 4—need 4 judges on SC to decide to hear a case on writ of cert 3. Congress’ Power to reduce appellate jurisdiction of the SC Ex Parte McCardle: Congress may make exception to the SC appellate jurisdiction but not original jurisdiction. Constitution Art. 3 § 2 gives congress this authority. AJ is when a case gets appealed to the SC 2 ways to get into SC: o Original jx o Appeal to SC (file writ of cert) 4. Standing A. Regular Standing (3 part test)(Allen v Wright) 1. P alleges personal injury (injury in fact) 2. Injury is fairly traceable to the D’s conduct 3. Redressability—there is something the ct can do about the injury B. Taxpayer standing Flast: 1st time TP standing case was upheld—upheld standing for TP to challenge spending power under the establishment clause of 1st amend. For a TP to have standing: 1. TP must establish a logical link between his status and the type of legislative enactment attacked 2. TP must establish a nexus between his status and the precise nature of the constitutional infringement alleged. C. Group or Associational standing o For group standing, add a fourth element to Allen test: One member of the group must have actual standing D. 3P Standing o Someone other than the injured person asserting the other person’s rt o Powers: Said 3P standing can exist if
1. Litigant suffered an injury in fact—giving him concrete interest in the outcome of issue 2. Litigant has close relationship to 3P 3. Hindrance to 3P’s ability to protect his own interest exists 5. Timing of the lawsuit may keep it from judicial review A. Need Ripeness (need actual harm or imminent threat of harm) Too soon to bring action—law has not been violated yet Federal cts can’t issue advisory opinions o Ex: Congress passes law that says the ct will give judgment that will then be reconsidered by congress who will make the final decision Need article III case or controversy before fed ct will hear case B. Case can’t be moot (resolved by the time of review); Exceptions: Capable of repetition yet evading review to that Plaintiff o Ex: abortion, P could get pregnant and want abortion again o File as a class action Voluntary cessation of behavior by D o The reason for D stopping behavior is not ct order, thus he could start behavior back up again Collateral/independent issues left to be decided 6. 11th Amendment Suing State in Fed ct—doesn’t apply to city or indiv—just state 2. Feds may not get involved if: 1. Adequate and independent state grounds SC reviews only fed Qs—not state law Qs. SC will review state ct judgment only if it turned on federal grounds: o If a decision in state ct was based solely on state law, the feds (SC) may not hear the case o The state can NEVER give less protection but it can always give more. If the case is state v. state, then it has to be heard in SC. If it is ambiguous whether state law or fed law was used, the state has the BOP of showing that they relied on state law—only in the SC 2. Abstention: (goes w/ judicial review) The feds have jx over a case but they want to give the state a chance to hear it first Pullman—if a state’s ambiguous new law gets challenged for the first time, the Feds may let the state have the first chance at interpreting the law. Younger—If a state starts a proceeding (criminal usually—though it has recently been extended to civil) the Feds will not enjoin the proceeding to take over unless there is bad faith on the part of the state. 3. Commerce Clause
If Congress is passing a law, follow these steps: 1. Cite the 10th Amendment o All powers not given by the Constitution to Congress are reserved to the states and the people respectively. Although Congress can spend money for the general welfare, they can’t pass laws for the general welfare. Congress doesn’t have police power—only the state has P.P. 2. What gives Congress the power to pass this law—where is the power source coming from? Congress will use THAT power AND the necessary and proper clause to pass this law. KS v CO Necessary and proper clause must be used w/ other source of power given to the legislative branch If the power being used is the commerce clause, define commerce: o Channels, instrumentalities and things that substantially affect interstate commerce. o Commerce is undoubtedly traffic, but it’s something more—it comprehends not only buying and selling but navigation as will (Gibbons v. Ogden) Early Days of Commerce o Interstate was commerce—congress can regulate Schecter Poultry: Congress can’t regulate activities that indirectly effect interstate commerce o Intrastate was not commerce (just w/in the state)—congress can’t regulate o Interpretation was in favor of everything being commerce Later days of commerce o Eliminated intra/interstate distinction Aggregation Theory Lopez and Morrison Cases o Lopez (Congress couldn’t regulate guns in schools)—said Congress can regulate 3 categories under the commerce clause Use of channels of interstate commerce Instrumentalities, persons, or things in interstate commerce—even if the threat is only intrastate Activities that have a substantial relation to interstate commerce o Morrison: Violence against women act was struck down b/c it wasn’t commerce—it was purely local Where is commerce today and is this commerce? 3. If Congress does not have the power, strike down the law Commandeering: If they do have the power, the law can still be struck down if Congress is commandeering. o If it is regulating private citizens or private citizens and state, then there is no balancing test
The citizens have political recourse—they can vote for a different congressman next election o If the law just regulates the states, then use balancing test: Balance the Fed gov’ts need for the law vs. the state’s need to structure itself and not be commandeered (the states almost always wins the balancing test). o If the Feds are commandeering the states, the law will be struck down o The feds can always “bribe” the states by using their spending power. Regulation through spending SD v. Dole: Congress may refuse to provide highway funds to states that do not adopt federal age standards for the sale of alcohol. o The 21st amt says that states can regulate alcohol—but Congress can get around this by bribing Congress’s taxing power Congress can’t use taxes to punish For a tax to be valid, it must be o For revenue raising OR o Congress has the power to regulate that area 4. Dormant Commerce Clause—the state trying to pass a law that regulates commerce—go through analysis (City is also treated like state) If Congress down not act on their right to regulate commerce, then the state can regulate commerce w/in its own borders. o Gibbons v. Ogden: The states keep the power to regulate commerce, except so far as they have surrendered it by the constitution o But the state laws must not discriminate or unduly burden interstate commerce (define Commerce--Lopez) 1. First, does the law discriminate against out-of-state citizens. If it does NOT, then the analysis is the Pike balancing test. You must balance the benefit that the state is getting from their law VS. The burden the law is putting on commerce. o If the burden is greater than the benefit, then the law will be struck down. o If the benefit is greater than the burden, then the law will be ok—but there must not be a less drastic way to do it If the law DOES discriminate—Then
Privileges and Immunities Clause—with discrimination, the law may also violate the P & I Clause o The P & I clause says that all resident have the same fundamental rts while in a state—thus a state can’t discriminate against out of staters on basic rts of citizenship (jobs, edu., health care) . o If the law does discriminate in such a way, then it will then have to pass INTERMEDIATE SCRUTINY—which means that the BOP is on the state to show that their law is substantially related to an important state interest (probably not for corps) Economic reasons won’t pass strict scrutiny Philadelphia v. NJ: NJ statute that prohibited waste from being brought into the state Equal Protection—another way to attack discrimination o Citizens are guaranteed equal protection of the laws. If a person is from a different state, the BOP is on the individual to show that the law isn’t rationally related to a legitimate interest. This is very hard way to strike down a law, but your can still strike down the law here if it was just passed for economic reasons $$.
5. Feds and States are Passing Laws The Supremacy Clause of Article IV said that the Fed law was the Supreme Law of the land—this means that any other state law to the contrary will not be honored—A VALID fed law will preempt state law. First, see if the Federal law is valid o This will probably be a CC analysis and maybe a DCC if it’s a state passing the law nd 2 , is there Preemption—if the law is valid, will it preempt the state law 1. Express—Congress says that they’re taking over a specific area 2. Field/pervasive/Implied—If a fed statute is really detailed on it issue, it can be implied that Congress intended to cover the whole area 3. Conflict—There is a frustration of purpose between the state law and a fed law If the fed law isn’t valid, talk about whether the state law is valid (police power & DCC) o Just b/c there is a fed law on something doesn’t mean a state can’t pass a valid law on the same thing—it just can’t conflict w/ the Fed law—then the Fed law would take over 6. Separation of Powers/Delegation—(when you see different branches doing something)
3 Branches of Gov: (LEJ) o 1. Legislative (congress) o 2. Executive (President) o 3. Judicial (judge/SC) What power is being exercised and who is exercising it (Youngstown) o Whose power should it be Legislative: powers of Congress Foreign affairs power o President must get approval from senate to pass treaty Senate + house of rep = Congress Congress’s war powers extend beyond the actual war until the effects of the war are over Commerce Executive—Youngstown talked about the ability of the president’s actions to hold up in ct The president’s power is at it’s max when congress expressly authorizes the power President’s power is medium when congress impliedly authorizes it (silence or no objection) President’s power is at the lowest when congress does not authorize action and complains President can’t declare war but he can take defensive measures—he can send troops to an area for 90 days w/out congress’s consent For a VALID delegation there must be: o Congress must have the power o It’s a Delegable Power Can’t delegate power to declare war o Congress states the objective of the law Why are the delegating this to you o Adequate standards set by Congress If there’s some guidelines it should be ok o Can’t keep VETO power (this violates bicameralism/presentment) Ins v. Chada
7. Power of Appointment—(when you see a new agency being set up—who has power to appoint the new officials). Art. 2 § 2, Clause 2—if the officials are principal officers, they must be nominated by the presidents and by and with the advice and consent of Senate o Inferior officers, Congress appoints, but they may vest the appointments in: President alone, Courts of law, or Heads of Dept Inferior officers are at will, no K
Principal officers are for cause, not at will o Basically, congress can delegate officials their duties and have them set up agencies 8. 11 Amendment Cite the 11th Amt o Judicial power shall not be construed to extend and suit in law or equity against one of the states by citizens of another state or subjects of any foreign state. Interpret the 11th Amt o This really means an individual can’t sue a state for $ in federal ct w/out state’s or congress’ express permission. 11th Amt doesn’t protect local government o You can sue the gov official in state ct by 1. Naming him personally (gov, police chief) 2. allege he acted outside of his scope of authority 3. Allege that your federal rts were violated 4. Ask for some sort of injunction $ damages won’t be given unless they pay out of their own pocket 5. Ask for $ damages only if congress authorizes it (§ 5 of 14th Amt) § 5 14th Amt—discrimination based on race, ethnicity, alienage, gender and illegitimacy (equal protection), due process (not enough of a hearing or taking away your property, liberty or life) or P & I (treating citizens of diff states diff as far as fundamental rts are concerned) th 14 Amt § 5—Feds can waive it o If state violates 14th Amt, the Feds can waive immunity o Feds cant waive it under the commerce clause No Waiver— o Name an individual, strip him of his authority by saying he acted outside the scope of authority and allege he violated your federal rights. Then sue for prospective (future) relief (in form of injunction)— not retroactive relief (past)—b/c it looks too much like $ damages 9. Executive Privileges and Immunities Criminal—qualified immunity—case by case basis Nixon: Ct upheld subpoena that req’d the Pres to produce tapes and docs relating to Watergate—criminal case—no immunity Civil—Absolute immunity if based on his official actions as President, however, not absolute immunity for his aides Speech and debate clause: Congressman & aides are immune from actions taken on floor relating to law passing
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10. Misc. Issues Individual vs. Individual No Con Law issue unless you can find state action. If an individual is so connected to a state that we can find state action, we can sue the state for the individuals actions. Look to: Extent to which the state gives benefits to the indiv. Is the indiv involved in an activity that is a traditional gov. function? Was the injury caused by incidents of gov. authority? Did the gov. help or fail to supervise? How big is this indiv? o The bigger he is the better the chance of finding state action—TOC test. An individual can’t violate the 14th amt but they can violate the 13th at 13th Amt prohibits slavery K Laws Test—(state law comes out that affects K) Whether the new state law substantially impairs the existing contract relations Yes—K law violation Is the law intended to promote a significant, Legitimate public purpose Safety, health, welfare—yes, K law ok Whether the regulation is reasonably and narrowly tailored to achieve that public purpose Yes, K law ok Taking: The 5th Amt limits the govs power of eminent domain: “nor shall private property be taken for public use w/out just compensation” Essential Nexus test (RB): The burden is on the individual to show that the law/action is not rationally related to a legitimate state interest.