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Constitutional Law Cram Plan Brian Pedigo
The First Amendment
“Congress shall make no law…abridging the freedom of speech, or of the press…”
Overview: 1st A is incorporated into the Due Process clause of the 14th A & applies to state / local gov’t. An
abridgment is anything that chills, penalizes, or unduly burdens. Special problems with 1st A issues are:
vagueness, overbreadth, and prior restraints. Speech is anything that is expression; distinguish from conduct.
The right to speak is not absolute. Start with content neutrality – no regulating content (strict scrutiny
unconstitutional on its face), but may have incidental effects on content (using intermediate scrutiny).
Freedom of Expression:
Texas v. Johnson (1989): public flag burning is protected expression under the 1st A. Speech
is allowed to be offensive or disagreeable. However, one may not incite a riot / disturb the
peace.
R.A.V. v. City of St. Paul (1992): cross burning in someone else’s back yard for racial reasons
cannot be prohibited as fighting words because the gov’t cannot prohibit only specially
disfavored subjects. Fighting words provoke violence or inflict injury (bad secondary effects).
U.S. v. O’Brien (1968): burning a draft card not protected speech; used a four-part intermediate scrutiny test
when the regulation is aimed at conduct and unrelated to the content of speech:
(1) within the constitutional power of gov’t?,
(2) furthers important or substantial gov’t interest?,
(i.e. important/substantial ends)
(3) gov’t interest unrelated to suppression of free expression?,
(i.e. content-neutral / not speech)
(4) incidental restriction on alleged 1st A freedoms not greater than what’s essential?
(i.e. essential means)
Distinguish between content-neutral regulations (O’Brien test) and content-based restrictions (strict scrutiny).
Note: communication may be in the mind of the communicator. Everything turns on the purpose or intent of the
gov’t in restricting the message. We have a 1st A to serve the purposes of: truth, politics, check on official
power, and individualism / autonomy.
Regulating Harmful Messages:
Abrams v. U.S. (1919): anti-gov’t leaflet distributed during wartime was unprotected speech
because it was intended to provoke and to encourage resistance to the U.S. in war.
Schenck v. U.S. (1919): leaflet distributed against the draft was found to be a clear and
present danger because the words used in such circumstances (wartime) were of such a nature
as to create a clear and present danger.
Whitney v. CA (1927): Brandeis opinion said that “there must be reasonable ground to believe
that the danger apprehended is imminent … Fear of [future] serious injury alone [is not
enough] …Only an emergency can justify repression.” (later overruled)
Constitutional Law Cram Plan Brian Pedigo
Yates v. U.S. (1957): those to whom the advocacy is addressed must be urged to do something, rather than
merely to believe in something.”
Brandenburg v. OH (1969): the court held (regarding a KKK meeting) that the gov’t may
not punish mere advocacy but may punish speech intended and likely to incite imminent
lawless action.
Virginia v. Black (2003): true threats (cross burning to intimidate) is not speech
protected by the 1st A. True threats are like an assault; intent to create fear of bodily
harm or death is a true threat.
Stewart v. McCoy (2002): giving advice to a street gang is not protected speech
because the 1st A does not prevent restrictions on speech that have clear support in
public danger.
Defamation and Privacy:
New York Times v. Sullivan (1964): public official sued NYT for publishing a defamatory
advertisement. Since free debate requires breathing space to make false assertions (errors are
inevitable), repression can only be justified where there’s a clear and present danger of the
obstruction of justice. A public official can recover for defamation by showing proof that the
statement was made with actual malice.
i.e. knowledge that it is false or with reckless disregard for the truth.
Gertz v. Robert Welch (1974): a private person can recover for defamation by proving only
negligence. Private person must still prove actual malice in order to recover punitive damages.
Dun & Bradstreet (1985): a private person may recover for defamation against another private
person where there is no public concern, and may be awarded punitive damages without
finding actual malice.
Hustler Magazine v. Falwell (1988): a public figure (Falwell) cannot recover damages for IIED
emotional distress without showing actual malice. Also, a parody is not libel b/c it is not a fact-statement.
Bartnicki v. Vopper (2001): private phone call was illegally taped and broadcast by an innocent radio
station. Privacy concerns give way when balanced against the interest in publishing matters of
public importance. Once cost is the loss of privacy. Held, broadcast of illegal taping protected.
Note: the rule you choose is based on who is defamed (public = NYT; private = Gertz).
Obscenity and Indecent Speech:
Overview: obscenity has long been outlawed by many states. The Supreme Court ruled in Roth that “obscenity
is material which, if considered as a whole, predominantly appeals to prurient interest 1 – a shameful or morbid
interest in nudity, sex, or excretion.” They say that obscenity has no value.
1
Prurient: marked by or arousing an immoderate or unwholesome interest or desire; especially : marked by, arousing, or appealing to
unusual sexual desire.
Constitutional Law Cram Plan Brian Pedigo
Miller v. California (1973): ∆ mailed out ads for his “adult illustrated books,” and was
convicted for distributing obscene material. An offense must be limited to works which,
when taken as a whole, appeal to the prurient interest in sex, which portray sexual
conduct in a patently offensive way, and which lacks serious literary, artistic, political, or
scientific value. The jury shall decide prurience (community standards), whether
patently offensive, and whether the work lacks serious value. Only “hard core” can be
regulated, and statute must be very specific. *Know this “Miller test” for the exam.
Paris Adult Theatre v. Slaton (1973): gov’t has a valid regulatory interest in prohibiting obscene materials
because there is an arguable correlation between obscenity and crime. Legislature may assume obscene
materials are harmful, and courts should defer to the legislature on this issue.
Stanley v. Georgia (1969): regulations for regulating obscenity do not reach into the privacy of the home,
therefore the court will reverse a conviction for being in possession of obscene films, but can still prosecute the
store that sold the tape.
Child Pornography Cases: Ferber (’82) held that state may ban child porn because this protects the children;
whereas in Ashcroft v. The Free Speech Coalition (2002) the court held that virtual child porn cannot be banned
bc “1st A freedoms are in danger when gov’t seeks to control thought…and speech is the beginning of thought.”
City of Renton v. Playtime Theatres (1986): Renton prohibited adult theaters within 1K feet of any home,
church, park or school. Court ruled that this was a form of time, place, and manner regulation. Additionally,
the law was primarily aimed at the secondary effects of the theaters, not at the content; therefore, this was held
to be a content-neutral speech regulation. The gov’t had a substantial interest and ∆ had reasonable
alternatives. Gov’t was allowed to use evidence from other cities. Statute was held to be narrowly tailored.
City of Los Angeles v. Alameda Books (2002): zoning ordinances provide a built-in legitimate rationale, which
rebuts the usual presumption that content-based restrictions are unconstitutional -- so use intermediate scrutiny.
Fighting Words, Captive Audiences, and Hate Speech:
Chaplinsky v. New Hampshire (1942): The ∆, a religious speaker, called a city
marshal a “God damned racketeer” and a “damned Fascist.” These were held to be
fighting words in violation of the statute that prohibited the use of insulting
language plainly tending to excite the addressee to a breach of the peace.
Fighting words are “of such slight social value as a step to truth that any benefit
which may be derived from them is clearly outweighed by the social interest in
order and morality.” Fighting words are about provocation.
Cohen v. California (1971): guy was arrested for wearing a shirt that said “Fuck the
draft” in a courthouse; convicted for disturbing the peace by offensive conduct. Held,
statute not location-specific; form of expression was not obscene (erotic); words not
directed to person of the hearer, and no one violently aroused. Those offended in public
should just avert their eyes; gov’t may not censor dissident views or proscribe the
form/content of individual expression. So long as the means are peaceful, the speech
need not meet standards of acceptability. One man’s vulgarity is another’s lyric. Held,
conviction reversed (i.e. “fuck the draft” not fighting words).
Dissent: this was mainly conduct and little speech.
Constitutional Law Cram Plan Brian Pedigo
Notes:
Radio and Television are subject to different, less protective, 1st A rules than print media. One reason is that
they are more intrusive. Another reason is that there are only a limited number of people who can publicly
broadcast on radio and tv (limited availability).
The heckler’s veto is “if they speak, I will attack them.” This would, in effect, silence speakers because
they would lose their right to speak because of the fighting words doctrine.
Captive audiences (those stuck in their office, classroom, home) have two options: leave or restrict the
speaker. Speech gets less protection when it confronts a captive audience.
Hate speech can be motivated by a variety of objectives: true threats, incitement, provocation, cause harm,
to express a powerful message, etc.
Commercial Speech:
Overview: commercial speech is speech proposing a commercial transaction. Commercial speech is not
commercial just because you do it for money. It is protected, but it is less protected than fully protected speech.
Commercial speech falls under the Central Hudson test, which is an intermediate level of scrutiny (below).
Central Hudson (1980): for commercial speech to be protected, it must (1) concern lawful activity and not be
misleading, (2) Substantial gov’t interest, (3) directly advances gov’t interest, (4) no more extensive than
necessary (narrowly tailored). No longer has to be the least restrictive means, just “narrowly tailored.”
Speech with a Government Nexus | Public Forum Doctrine:
Overview: the gov’t may have additional powers to regulate speech when it is not only acting as a regulator but
also as an employer, property owner, or source of funding. The public forum doctrine is when the gov’t acts as
a property owner; note and remember that it is different than the time, place, and manner regulations. The test
for the public forum doctrine is: must be content neutral, significant or important gov’t interest, and narrowly
tailored means, and adequate alternate channels of communication. Traditional public forums are mostly
limited to sidewalks, streets, and parks; airports are not a public forum. Gov’t can also designate its property as
a public forum, known as a designated public forum, and is revocable at will. Non-public forums can be
regulated in any way reasonable, even if based on content, so long as it is viewpoint neutral. People have to be
invited in to participate in order to be considered a forum. Time, place, manner restrictions require alternate
channels.
Hague (1939): started the public forum doctrine, which says that state property traditionally open for expressive
purposes may not be closed off or abridged for reasons relating to the content of the proposed expression, but
the state may impose reasonable “time, place, and manner” restrictions on the use of public property.
U.S. v. Grace (1983): statute prohibited having any sign or leaflet in front of the Supreme Court building. The
sidewalk was held to be a public forum; the purpose of the statute was for protecting or maintaining order and
decorum, avoiding any appearance of outside influence. Held, a total ban is not necessary; ban unconstitutional.
Hill v. CO (2000): statute prohibited anti-abortion activists to be within 100 feet of a clinic to knowingly
approach within 8 feet of another person without consent to pass out leaflets, display a sign, etc. Majority
upheld statute as a valid time, place, or manner regulation that was content neutral and narrowly tailored to
protect unwilling listeners from unwanted communications (right to be left alone).
Constitutional Law Cram Plan Brian Pedigo
Ward v. Rock Against Racism (1989): a regulation of the time, place, or manner of protected speech must be
narrowly tailored to serve the government’s legitimate content-neutral interests but it need not be the least
restrictive or least intrusive means of doing so. Narrow tailoring is satisfied so long as the regulation promotes
a substantial gov’t interest that would be achieved less effectively absent the regulation. Content-neutral
regulations receive lower scrutiny. The Ward test is extremely deferential, and is like the rational basis test.
Perry (1983): the “Perry test” is about speech restrictions on gov’t property (i.e. the public forum doctrine). It
says that in a nonpublic forum, the gov’t can impose any reasonable regulation so long as there is no
viewpoint discrimination. The Perry test does not apply to content-neutral regulations – apply O’Brien instead.
International Society for Krishna Consciousness (ISKCON) v. Lee (1992): airport terminals are not public fora.
Therefore, any restriction must be reasonable. A prohibition on solicitation is reasonable because solicitation is
disruptive to business and face-to-face solicitation presents risks of duress. However, a prohibition on
leafleting is not reasonable, and leafleting should not be prohibited because it is Constitutionally protected.
Note: spending on campaigns counts as speech.
Unconstitutional Conditions:
Overview: If gov’t is paying you to speak, then there is no abridgement of speech. This doctrine may not work
because it’s too hard to determine what is a punishment and what is a reward.
Rust v. Sullivan (1991): gov’t made a condition to a benefit where gov’t funds were not given to places that
aided abortion. Held, when the gov’t uses public funds to establish a program it is entitled to define the limits
of that program.
Rosenburger v. Rector (1995): a Christian newspaper at a public University was denied funding because it
primarily promoted religion. Held, this is unconstitutional viewpoint discrimination; struck down the funding
ban.
Legal Services Corp. v. Velazquez (2001): condition prohibited grant recipients from challenging existing
welfare law, even so far as requiring that attorneys withdraw. Held, gov’t may not effect the serious and
fundamental restriction on advocacy of attorneys and the functioning of the judiciary.
ALA:
Speech within Government Institutions:
Overview: Gov’t can regulate if reasonable and content-neutral.
Hazelwood School District v. Kuhlmeier (1988): the question is whether the school must tolerate certain speech
or whether the school must promote certain speech (high school newspaper). Held, educators do not offend the
1st A by exercising editorial control over the style and content of student speech in school-sponsored expressive
activities so long as their actions are reasonably related to legitimate pedagogical concerns. There is a deference
to school administrators. The school has a right to disassociate itself from speech that it doesn’t like. The rights
of children is not the same as adults.
Note also: military personnel, prisoners, and public school children all get less 1st A rights than regular citizens.
Constitutional Law Cram Plan Brian Pedigo
Prior Restraints:
Overview: the clearest example of a prior restraint is a licensing scheme. If you speak without permission, you
get punished for not getting permission to speak. The focus is on if the licensing scheme is permissible.
Madsen v. Women’s Health Center (1994): a content neutral court injunction is not a prior restraint.
Overbreadth & Void for Vagueness:
Overview: void for vagueness is concerned about unbridled discretion of officers and due process notice
requirements. Overbreadth must be substantial in order to challenge a law on its face, rather than as applied.
Board of Airport Commissioners v. Jews for Jesus (1987):
Freedom of Association:
Board of Directors of Rotary International v. Rotary Club of Duarte (1987):
Boy Scouts of America v. Dale (2000):
Free Exercise of Religion:
Employment Division v. Smith (1990): π fired from gov’t job for using peyote at his Native American Church.
If a law / prohibition has only an incidental effect on religion, then use rational basis. But if a law / prohibition
has the purpose to discriminate, then use strict scrutiny (compelling reason). Allowing one “to become a law
unto himself” is dangerous to society and could be courting anarchy. Held, the firing was not unconstitutional.
Church of Lukumi Babalu Aye v. Hialeah (1993): ordinance that was facially neutral but targeted against a
church’s use of animal sacrifice was held unconstitutional because they were enacted with the intention and had
the effect of suppressing a religion (used strict scrutiny).
Note: Yoder and Sherbert used strict scrutiny even though the law didn’t intentionally discriminate. These
cases were the exceptions to Smith. The Sherbert decision was due to special individualized circumstances in
the unemployment compensation context. Yoder was a case that involved not only free exercise of religion, but
also a fundamental right to educate one’s children (the hybrid exception).
The Establishment Clause:
Everson v. Board of Education (1947): the establishment of religion clause of the 1st A means the following:
* No gov’t churches; * no laws aiding religion; * no forcing church attendance or professing beliefs; * No taxes
to support religion; * no gov’t participation in religion. This is all intended to erect “a wall of separation
between church and state.” While the gov’t may not handicap religion, it must also not favor one either.
Accommodation of religion is o.k. Held, using public funding to help finance busing students to private
parochial schools is not unconstitutional.
Constitutional Law Cram Plan Brian Pedigo
Wallace v. Jaffree (1985): mandating a moment of silence is unconstitutional because its purpose is to foster
school prayer.
Lemon v. Kurtzman (1971): the “Lemon test” says that for a statute to survive it must:
1) have a secular purpose,
2) have a primary effect that does not help or hurt religion (neutral effect), and
3) no excessive entanglement of religious and gov’t institutions.
Note: a fourth factor may be whether the involvement causes divisiveness (religious fights w/in gov’t).
The Lemon test is still good law, but many Justices ignore it / don’t apply it. Coercion automatically violates
the establishment clause – the fight is over what counts as coercion. Discrimination amongst religions also
violates the establishment clause.
Government Endorsement of Religion:
Overview: to determine whether there is gov’t endorsement of religion, use a three-part test: 1) non-
coerciveness, 2) accommodation or passive acknowledgement, 3) similarity to accepted historical practices.
There is a strong presumption against the display of religious symbols on public property.
Lee v. Weisman (1992): prayers were going to be made at a high school graduation ceremony. Π objected to
the prayers. Held, the State’s involvement in the school prayers violates the establishment clause of the Const.
There is a psychological indirect coercion, or an inducing student participation.
Zelman v. Simmons-Harris (2002): a school voucher program that reimbursed parents for sending their children
to schools of their choosing. Most went to religious schools. Held, this is a private choice, not direct aid, and is
therefore neutral to religion and does not violate the establishment clause.
Locke v. Davey (2004): the state gave scholarships to college students so long as the student would not go to a
theology school. This was held to be constitutional under the free exercise clause, and without animus towards
religion. “The state has merely chosen not to fund a distinct category of instruction.”
Cutter v. Wilkerson: see HO3
FEDERALISM
Overview: federal systems is one where power is divided between two different levels of gov’t. We have a
national gov’t and state gov’t. Our third level is local gov’t, which is a creature of state law. The national gov’t
has only the powers enumerated by the Constitution, except for foreign affairs. Assume states always have
unlimited (plenary) power unless it is taken away by the Constitution.
Preemption Doctrine: when state laws conflicts with Federal, Federal preempts (trumps) state law.
McCulloch v. Maryland (1819): both state and fed have concurrent powers to tax. National immunity has to do
with the supremacy clause, whereas state immunity raises the issue of state sovereignty, which is not spelled out
in the Constitution – it must be implied from the “penumbras” of the 10th Amendment. This case is primarily
about the necessary and proper clause. Art I, Sec 8, Clause 18 (the necessary and proper clause) extends gov’t
power, not limits.
Constitutional Law Cram Plan Brian Pedigo
Commerce Power: Art 1, Sec 8, Clause 3 gives congress the power to regulate commerce among the several
states. Congress may regulate interstate commerce under its commerce power (1) channels, (2)
instrumentalities (persons/things), and (3) activities w/ a substantial effect on interstate commerce.
Necessary and Proper: means, in practice, “reasonably related to legitimate ends.”
Gibbons v. Ogden (1824): commerce is moving things (goods, services, people) across state lines.
U.S. v. Darby (1941): Congress banned interstate shipment of goods made by child labor/not meeting min
wage. This was necessary and proper to ban because it was the only way to get this harmful practice to stop.
These intrastate practices had a substantial affect on commerce.
Wickard v. Filburn (1942): Congress put quota on agricultural production of wheat, and court held that the
power to regulate commerce includes the power to regulate the prices at which commodities in that commerce
are dealt in and practices affecting such prices. In the aggregate, the effect on commerce could be substantial.
Heart of Atlanta Motel v. U.S. (1964): because racial discrimination affects commerce among the states, it is
within Congress’ commerce powers to prohibit it.
U.S. v. Lopez (1995): the Gun-Free School Zones Act was struck down as Congress going too far in attempting
to use its Commerce Power to create a Federal Criminal law. Statute had nothing to do w/ commerce, there was
no findings of effects, there is no limit to the reasoning (would req. piling inference upon inference); therefore
the line drawn here and Congress gets no more deference (note: Lopez and Morrison was called the “Federalism
revival” by Treiman.)
U.S. v. Morrison (2000): the Violence Against Women Act was held to be outside of the scope of Congress’
power under the Commerce Clause.
See also Reyche (marijuana case)
Note: the activity being regulated has to have a substantial effect on interstate commerce, and it is limited to
economic activity that has a substantial effect on interstate commerce. This is potentially a very broad power.
RECONSTRUCTION AMENDMENTS
Overview: The 14th and 15th Amendments require State Action. The 13th A can only be used to abolish slavery,
whether there’s state action or not.
The Civil Rights Cases (1883): private action is to be remedied by the state. State Action is to be remedied by
Congress. i.e. If state law discriminates, then the Feds can butt in.
Jones v. Alfred H. Mayer (1968): π sued because private real estate developer refused to sell them a home
because of race. Under the 13th A, Congress has the power to pass all laws necessary and proper for abolishing
all badges and incidents of slavery in the United States.
Katzenbach v. Morgan (1966): literacy tests given with intentional discriminatory use are unconstitutional
because it is plainly adapted to the aims of the Equal Protection clause. However, violation of § 1 was not
Constitutional Law Cram Plan Brian Pedigo
proven. Held, Congress can remedy the potential for abuse of § 1 (a prophylactic approach that is congruent
and proportional to a history of past violations).
City of Rome v. U.S. (1980): Congress passed voting act that had no purpose to discriminate, but had a
discriminatory effect. Held, under § 2 of the 15th A, Congress may prohibit practices that in and of themselves
do not violate § 1 of the Amendment, so long as the prohibitions attacking racial discrimination in voting are
appropriate, i.e. Congress may outlaw because of the risk of intentional discrimination.
City of Boerne v. Flores (1997): church was prohibited from expansion because of a historic preservation
ordinance. Church sued under the “Religious Freedom Restoration Act” (RFRA) saying that the ordinance was
unconstitutional. Held, RFRA was beyond Congressional authority because there was a lack of proportionality
or congruence between the means adopted and the legitimate end to be achieved. i.e. statute was not remedial,
but substantive, and therefore must fail. Court fears Congress having too much power if it can interpret the
Constitution.
11th AMENDMENT AND SOVEREIGN IMMUNITY
Overview: local governments do not have sovereign immunity. State law says what is local or state.
Sovereigns may waive their own immunity by explicitly consenting to suit. Congress can not override
(abrogate) state’s sovereign immunity by using its article 1 commerce powers. The U.S. can sue a state. 14th A
civil rights violations will also override state immunity. You can sue gov’t officials, but can’t make the state
pay the damages for which the gov’t official is liable.
Seminole Tribe v. Florida (1996): Congress can not override (abrogate) state’s sovereign immunity by using its
article 1 commerce powers.
Alden v. Maine (1999): states are sovereign against its own citizens (save consent).
Florida Prepaid v. College Saving (1999): Congress can not abrogate (abolish) state’s immunity to patent
infringement claims by using the Commerce Power.
Kimmel v. Florida Board of Regents (2000): a state’s 11th A immunity from suit is not abrogated through
Congress’ 14th A powers if a statute is not appropriate legislation under § 5. Since age discrimination only gets
a minimal rationality review, the ADEA enacted inappropriate legislation. i.e. Congress can not give a remedy
for something that does not violate § 1 (EP, DP, P&I).
Board of Trustees v. Garrett (2001): the Americans with Disabilities Act exceeds § 5 power (unconstitutional)
because the disabled only get a rational basis review. Also, private sector discrimination is not state
discrimination, and is therefore irrelevant in the Congressional record. In order to authorize private individuals
to recover money damages against the States, there must be a pattern of discrimination by the States which
violates the 14th A, and the remedy imposed by Congress must be congruent and proportional to the targeted
violation. Congress can not rewrite substantive law already decided by the Supreme Court.
Hibbs: Family Leave Act is Constitutional (6/3 vote).
Lane: Act requiring access for disabled to the courts is Constitutional (5/4 vote).
Constitutional Law Cram Plan Brian Pedigo
TAXING POWER (Art I. Sec. 8):
Overview: the issue under the taxing power used to be whether it is a tax or a penalty. In the pre-new deal era,
penalties / punishment were not allowed under the taxing power. It has to really be a tax, and not a fine or a
penalty. However, later cases have abandoned this theory, and courts are now without authority to limit the
exercise of the taxing power unless it violates Constitutional rights.
SPENDING POWER:
South Dakota v. Dole (1987): an Act paid highway funds to states who would not sell alcohol to people < 21
was Constitutional. I.e. Nationally purchased compliance. There are three limitations to this spending power:
1) Spending power must be in pursuit of the general welfare (with deference to Congress)
2) Conditions on State’s receipt of funds must be unambiguous (receipt = waiver).
3) Conditions may be illegitimate if unrelated to National projects or programs
4) The spending power may not be used to induce the States to engage in activities that would themselves
be unconstitutional.
Pressure may cross the line and turn into compulsion. However, encouragement to state action is a valid
spending power.
Sabri v. U.S. (2004): Fed law made it a crime for one to bribe a state official using Federal funds. Under Art I,
Sec. 8, it is necessary and proper to make this a crime under the Spending Clause – to make sure that taxes are
in fact spent on the general welfare and not on individual bribes. Key is that money is fungible.
TREATY POWER:
Missouri v. Holland (1920): Act prohibited killing or capturing migratory birds that migrated internationally
from the U.S. This treaty was held to be valid under the Constitution; it was not sufficient to rely on the States
to protect the birds, therefore the treaty and statute were upheld as necessary and proper.
Note: the Treaty power is extremely powerful because it becomes the Supreme law of the land. A treaty can be
a promise to another nation to commit to something, but they are not rules. A treaty is not law until it is made
law (can be self-executing or self-enforcing/implementing).
STATE IMMUNITY FROM NATIONAL COMMANDEERING:
State Sovereignty Overview: state sovereignty isn’t a rule, but an idea or value. Since the states pre-existed
the country, they are sovereign, and have delegated powers to the national gov’t (Federalism). Therefore, the
Feds cannot act when it has not been given the power reserved by the states. Regulation of the states requires
using the 14th A, because the 10th and 11th A give immunity to the States.
New York v. U.S. (1992): the nuclear waste case. Held, the take-title provision of the Act was unconstitutional
coercion of the States. Federal action must not commandeer state gov’t into the service of federal regulatory
purposes, as it is a violation of the division of authority between fed and state gov’t (which protects
individuals). Accountability is a key factor. Strength of Fed interests is never sufficiently important enough to
justify state submission. Only the Supremacy Clause is enough to commandeer state judges.
Constitutional Law Cram Plan Brian Pedigo
Printz v. U.S. (1997): Brady Act required verification of people’s status before gun sale. Problem was that state
officials were being forced to enforce this federal law. Held, Feds cannot force states to enforce a law using
State law enforcement. Congress lacks the power to directly compel the States to require or prohibit Acts.
Commandeering says “enforce this law,” and it is unconstitutional. However, “obey this law” is constitutional.
Reno v. Condon (2000): an Act of Congress preventing DMVs from disclosing person’s personal information is
constitutional and within Congress’ Commerce Clause powers.
DORMANT/NEGATIVE COMMERCE CLAUSE:
Overview: the State is allowed to make rules that the Feds would also otherwise be allowed to make, so long as
it does not disrupt national unity. However, states may not discriminate against other states or cause an undue
burden to other states. Reasons: 1) uniformity, 2) free trade, 3) avoid prisoner’s dilemma. The dormant
commerce clause creates an implicit barrier to protectionist state laws. Overt state discrimination against
interstate commerce is presumptively invalid and can only be sustained if needed to meet an important state
interest, and must not be clearly excessive compared with legitimate local benefits.
Gibbons v. Ogden (1824): Under the dormant commerce clause, regulating waterways is a national authority,
and even though it is not explicit as to how to regulate it in the Constitution, the States themselves may not
violate this implicit, dormant executive power. When the state law is one which impedes on the power
delegated to Congress, or even under the guise of acting under Congressional power, there is a conflict of
interest. It becomes at that point, an interference with a national agenda. Therefore the states can impose any
law they wish that is reasonable, as long as it does not conflict with any federal law, explicit or implicit.
City of Philadelphia v. New Jersey (1978): held, state not allowed to restrict incoming garbage from another
state.
SEPARATION OF POWERS
Overview: there is no hierarchy in the separation of powers – they are all co-equal. Art I is legislative
(congress), Art II is Executive, and Art III is Judicial. All three branches make laws, execute laws, and
adjudicate laws. Statutes can override international treaties as applied domestically. The legislative branch
sometimes delegates power to the executive branch. There are two approaches to the constitutional issues: the
formalist approach and the functionalist/pragmatic approach. In the modern administrative state, the legislative
branch must delegate out to administrative agencies to fill in the details of the rules. If the legislative branch
attempts to reserve power through a legislative veto, then this is unconstitutional. Chadha.
PRESIDENTIAL PRIVILEGES AND IMMUNITIES
Overview: there is a difference between privileges and immunities. A privilege has to do with evidence, and
immunities has to do with prosecution. The President has absolute immunity of President with regard to official
acts. Art I, § 6
LEGISLATIVE OVERREACHING & NONDELEGATION DOCTRINE
Overview: joint, concurrent, and simple resolutions. A joint resolution follows the same procedure as a bill,
must be approved/vetoed by the president, etc, and it enacts law. Concurrent resolution does not become law –
Constitutional Law Cram Plan Brian Pedigo
it’s just a suggestion that’s recorded somewhere. A simple resolution does not need to go to both houses or be
approved by the president.
Delegation Doctrine: asks 1) what power was delegated? 2) what power Constitutionally can be delegated?
Congress cannot delegate the legislative power. However, they can delegate “quasi-legislative” power to
agencies. Quasi-legislative if Congress makes the basic policy decisions and the agency implements. This is
just a formality – with little practical distinction. Since Congress are not experts, they like to delegate to those
who know what they’re doing and have expertise in the area. Agencies can “take the heat” for Congress’ bad
decisions. Agencies have almost no accountability to the public. Congress can pass a Bill that benefits a
specific individual – but not a bill of attainder than punishes an individual.
Immigration & Naturalization Service v. Chadha (1983): if Congress doesn’t like something that an
Administrator has done, it must pass a law to regain control. One house alone cannot veto an administrative
decision – this violates bicameralism. Formalism won out in this case.
Clinton v. City of New York (1998): veto power of the president exists prior to bill becoming law, not after.
EXECUTIVE POWER
Overview: Congress cannot enforce the laws. The Executive power (enforcement power) is delegated to the
President. The Constitution only explicitly references the President and the vice-President as the Executive
power; the others are defined in statutes. Sometimes Congress delegates power, not to the President, but to an
agency with specific authority. The power of Congress to control through appointment and removal of
executive functions is unconstitutional. Bowsher. Courts of law, heads of departments, or the President alone
can appoint inferior officers, and the President must be the only one to appoint superior officers with consent
of the Senate. Morrison. There are two types of government officials: officers and employees.
