"Constitutional Law IA ttack Sheet Maggs Spring 2009"
Left sideMain Rules/Theories and constitutional provisions Right sideCorresponding cases Ask yourself: 1. Who can do what wrong in violation of the Constitution? 2. Are we talking about Congress? The States? The President? 3. Once you figure out whom actor is, look at what limitations apply to that actor. 4. Compare to the precedent that we’ve read a. Which case is it more like? 5. If it has to do with any amendments or an individual it has to do with the State Action doctrine. Types of Constitutional Arguments Text, Structure, History and Tradition, Original Meaning/ Intent, Political Theory, Pragmatic Considerations (Fairness and Justice) FEDERAL COURTS (Power of Judicial Review) Judicial Review: Judges review the Marbury v. Madison (Jurisdiction/ Statutory Limits) constitutionality of federal legislation or -Power of judicial review is implicit in the Constitution executive actions -Federal court has limited jurisdiction according to Art. III 1. Art III Limits - gives supreme ct. limited -Congress can’t grant Supreme Ct. original jurisdiction jurisdiction -Exceptions clause only allows Court to remove appellate cases completely 2. Political Question Doctrine - Certain -Courts can order an executive officer to perform a nondiscretionary duty that was imposed issues are permitted to Congress and the by law President to decide 3. Case/ Controversy Requirement - must Nixon v. United States (Political Question- Senate impeachment process) be a case or controversy b/w the -No judicial review if the case involves a “non-justiciable political question” individual and the United States Factors 4. Standing - Does the plaintiff have a 1. Does the issue implicate separation of powers? (Doesn’t apply to challenges of state personal stake in the outcome? Need action) injury-in-fact, causation and 2. Does the Constitution commit resolution of this issue to either the President or Congress? redressability (scope of the textual commitment) (express delegation of pwrs. to alternate branch) 5. Ripeness- Case is contingent upon future 3. Are there judicially manageable standards for resolving the issue? events 4. Does resolution of the issue require an initial policy determination of a kind clearly for 6. Mootness- Parties no longer have any nonjudicial discretion? meaningful and concrete stake Usually applies to: 7. Statutory Jurisdiction Limits - Congress 1. Constitutional amendment process deprives the court of jurisdiction by 2. Foreign Affairs statute based on “exceptions clause” 3. Impeachment Art. III §2: (1) Supreme Ct. may exercise Muskrat v. United States (Constitutionality of Fed. Indian Land statute) original jurisdiction only over cases -Prior to litigation, the courts may not give Congress or anyone else advisory opinions about involving ambassadors., other public the constitutionality of legislation ministers and consuls, and those in which a -Congress may not declare the US a party in a suit in which it doesn’t truly have an interest state is a party -Must be an actual dispute between adverse parties for which the judiciary can provide (2) Supreme Ct. has appellate jurisdiction some sort of effective relief subject to (1) and “such Exceptions, and under such Regulations as the Congress Ex Parte McCardle (Reconstruction and Habeus Corpus) shall make” -Art. III authorizes Congress to create exceptions to Supreme Ct.’s appellate jurisdiction Art. VI §2: “Supremacy Clause”- -Congress has used this power to prevent judicial review by the Supreme Ct. but scope of Constitution, Federal laws, and U.S. treaties this pwr. is undecided are "the supreme law of the land" CONGRESS & FEDERAL POWER Limited Powers McCulloch v. Maryland (Necessary and Proper- Banks and state taxes) 1. Necessary and Proper- any reasonable - Necessary and Proper Clause empowers Congress to select appropriate means to means to reach a constitutional end accomplish any legitimate end under the Constitution 2. Commerce Clause - Congress may enact laws that it might reasonably find to be related to any of its 3 Categories: Channels, instrumentalities enumerated powers and/or intrastate activities that substantially -If the end goal is legitimate and within the scope of the constitution then all means effect interstate commerce which are appropriate and plainly adapted to that end and aren’t prohibited but consist Regulate: power to regulate is plenary which with the letter and spirit of the Constitution are constitutional (Congress can charter a means Congress can impose any kind of bank AND state can’t tax it) regulation/prohibitions it wants; Includes Gibbons v. Ogden (Commerce- NY tugboats) power to regulate prices according to Wickard -Congress can enact legislation regulation interstate commerce, and its channels and Means: must be “reasonably adapted” to the instrumentalities (plenary power) end permitted by the Constitution Heart of -Includes regulation of terms and conditions on which goods/services are sold, types of Atlanta goods sold and the means of transporting the goods (includes power to protect Commerce: Commercial intercourse/traffic b/w instrumentalities from local or intrastate carriers) but EXCLUDES exclusively internal nations, and parts of nations, in all its branches, state commerce includes navigation United States v. Darby (Commerce- FLSA in lumber trade) Among the Several States: “Intermingled with”; -Congress can regulate intrastate economic activities, provided that Congress rationally doesn’t stop at the external boundary line of could conclude that the activities might have a substantial effect on interstate each state commerce, either by themselves or through their repetition nationwide in the 3. Tax - Used to regulate interstate commerce aggregate (“Affectation Doctrine” through N & P clause) not reachable by commerce clause -Actual purpose of the legislation is irrelevant (legislative judgment) Penalty Doctrine: Can’t just impose a penalty -Is the intrastate transaction so commingled with or related to interstate commerce Excise tax: Incidental restraint/ regulation, that it must be regulated if the interstate commerce is to be effectively controlled/ constitutional regulated? Obj. Const.: As long as tax raises revenue, Economic activity: production and use of a form of wealth incidental reg. is OK Wickard v. Filburn (Commerce- Wheat production intrastate can be regulated) 4. Spending -Wisdom, workability, or fairness of the legislation is irrelevant Two ways -Triviality / Indirectness of Effect is irrelevant 1. Common defense or general welfare -Can regulate local, non-commerce activity if substantial economic effect 2. Necessary and Proper to carry out any other -“Rational-basis approach”: was there a rational basis for Congress’s conclusion that power the regulated conduct when viewed in the aggregate has a substantial effect on General Welfare Clause: Independent source of interstate commerce power limited to providing for “general Heart of Atlanta Motel v. U.S. (Commerce- Motels can’t discrminate) welfare” Congress reasonably concluded that racial discrimination by motels serving interstate -Can use conditional spending to regulated travelers substantially affected interstate commerce commerce in SOME cases “Any inn, hotel, motel, or other establishment which provides lodging to transient guests" affects commerce per se” Art. I, §8 Katzenbach v. McClung (Commerce- BBQ restaurant can’t discriminate) Congress has the power to: Racial discrimination had a depressing effect on the economy and general business Lay and collect taxes, duties, imposts and conditions- business don’t want to set up there, less interstate travel excises, to pay the Debts and provide for the United States v. Lopez (Commerce- Gun-free school zone act not constitutional) common defense and general welfare of the -Economic activity is threshold requirement for utilizing the commerce clause so either united states (“Sword and the Purse- the activity being regulated must be economic or the regulation must be an essential General Welfare Clause”) part of a larger regulation of economic activity To regulate Commerce with foreign Nations, -In evaluating “substantial effects” look for a jurisdictional element in the statutes and among the Several States (Commerce limiting reach and Congress’s prior findings Clause) Gonzales v. Raich (Commerce- Medicinal Marijuana) To coin money Congress can regulate purely intrastate activity that is not itself “commercial”, in that it To declare war is not produced for sale, if it concludes that failure to regulate that class of activity Cl. 18: “Necessary and Proper Clause: To would undercut the regulation of the interstate market in that commodity (rationale in make all laws which shall be necessary and Wickard) proper for carrying into execution the Child Labor Tax Case (Tax- Child Labor Tax is just a penalty) foregoing powers and all other Powers -“Penalty Doctrine” says Congress may not create tax penalties which have the primary vested by this Constitution in the Govt. of the purpose of regulating intrastate activities that it couldn’t regulate under Commerce US or in any Dept. or Officer thereof (means Clause, rather than raising revenue to execute powers granted in executive and United States v. Kahriger (Tax- Gambling tax is OK) judicial branches too) -“Objective constitutionality” limits the penalty doctrine by requiring courts to uphold tax laws unless they contain provisions “extraneous to any tax need” -As long as tax laws actually raise revenue, courts can’t invalidate them merely b/c Opposite of state govt. which has plenary Congress intended them to have a regulatory effect power unless limited by state or federal United States v. Butler (Spend- AAA act is unconstitutional) Constitution -“General Welfare Clause” implicitly grants Congress power to spend money to promote the general welfare, so long as the spending doesn’t violate any other Commerce Clause Questions constitutional limitation (can’t be a means to an unconstitutional end) 1. Regulating channels/ instrumentalities OR -Congress may appropriate funds for purposes unrelated to the specific powers substantially affects interstate commerce? enumerate in Art. I, §8 but can’t invade on states’ rights through a coercive regulatory 2. Is activity economic or commercial? (If no, program “effect” must be even more substantial) (Charles C. Seward Machine v. Davis / Helvering v. Davis) 3. If activity isn’t “commercial” or “economic”, -Courts generally will defer to Congress’s determination of which expenditures promote would a lack of regulation undercut the purpose the general welfare, unless the choice is clearly wrong (display of arbitrary power, not of a more comprehensive regulatory scheme an exercise of judgment)...upheld SS spending directed at economic activity? South Dakota v. Dole (Spend- Raise drinking age to 21 with conditional spending) Congress can use spending power under General Welfare Clause to induce states to When evaluating “effect” look at: enact laws that Congress itself couldn’t pass if: 1. Legislative history 1. Congress is seeking to further the general welfare (Defer to Congress) 2. General effect on businesses 2. Congress expresses any conditions on the spending unambiguously so that states 3. Interstate travel may exercise their options knowingly; 4. Depressing effect on the economy 3. The conditions imposed on receipt of federal funds are related to a federal interest in 5. Decrease in spending by one group particular national projects or programs; 4. There is no independent constitutional bar preventing the state’s enactment of the laws; and 5. The financial inducement offered to the states doesn’t pass the point at which pressure becomes compulsion. If Congress can’t regulate a local activity that substantially affects interstate commerce it can still tax that activity or spend money encouraging that activity as long as it is promoting the general welfare. 1. State Sovereignty - Congress can’t require Garcia v. San Antonia Metro (State sovereignty- Regulating minimum wage) state to legislate -State governments and governmental agencies aren’t immune from federal commerce -Congress can preempt through the supremacy regulations that apply equally to non-governmental entities; limitations inherent in clause or induce through taxing/spending federalism not judicial review in this case New York v. United States (State sovereignty- Regulating radioactive waste) 2. Separation of Powers -Congress can’t compel the states to pass legislation or administer federal programs Unusual Exercise of Legislative Power -Can use commerce clause/ preemption or conditional spending but CAN’T force the When is it illegal for Congress to give state to act in a certain way (key aspect is giving the state a choice) “legislative power” to actors outside of Printz v. United States (State sovereignty- Regulating firearms sale) Congress? -Congress can’t circumvent New York prohibition by conscripting the State’s officer’s Bicameralism: legislative act of Congress must directly be approved by both the House and the Senate INS v. Chadha (Separation of Powers- One-house veto unconstitutional) Presentment: Before any measure approved by Non-delegation doctrine: Congress impermissibly delegates legislative power when it the House and Senate can become law it must fails to provide an “intelligible principle” to guide the agency’s or the executive official’s be presented for approval to the President exercise of discretion -Laws passed by Congress and the President pursuant to legislative power must pass Unusual Exercise of Executive Power: bicameralism and presentment requirements to be constitutional, the Constitution was Hiring/ Supervising explicit when it granted one House the power to act independently -Principal officers appointed by president -Legislative power consists of actions that have “the purpose and effect of altering the -Inferior officers appointed by pres., heads of legal rights, duties and relations of persons” depts.. and judiciary (Various factors in Clinton v. City of New York (Separation of Powers- Line-item veto unconstitutional) determining which is which- see outline) -Unconstitutional b/c it gave the president the practical and legal authority to amend -Congress may employ officials who help carry acts of Congress by unilaterally repealing portions thereof after the bill becomes law out the functions of the legislative branch/ Myers v. US restrict the President’s ability to interfere with Congressional limits on the President’s removal powers are unconstitutional them Humphrey’s Executor Firing Congress may limit removal to situations where there is just cause for firing -If the official exercises executive power and is Bowsher v. Synar (Separation of Powers- Comptroller can’t have exec. powers) subject to congressional control, Congress can -Legislation can’t give executive powers to officials if the President can’t remove them only remove the official through impeachment, or if Congress can remove them other than by impeachment conversely Executive Power: Interpreting a law enacted by Congress to implement legislation -If the official can be removed in a method Congress can’t reserve to itself the power to remove an officer exercising exec. other than impeachment by Congress, he may authority not have executive powers Morrison v. Olson (Separation of Powers- Ethics Clause can limit ) -Congress can limit President’s power to fire -The “Appointments Clause” permits Congress to give courts the power of appointing 3. Bills of Attainder inferior executive officers, like prosecutors, and to give the courts some discretion in Legislative act determining guilt and imposing defining the nature and scope of the appointed officer’s jurisdiction punishment without judicial trial -Art. III permits federal judges to exercise ministerial functions not traditionally limited 4. Takings Clause Power granted under N and P to the executive branch like appointing, fed. judges can appoint investigative counsel Clause but limited by Takings Clause -Congress may impose a restriction on the President’s power to remove executive A. Possessory (Confiscation or officials, such as a requirement of “good cause” unless the standard for removal by Physical) itself unduly trammels on executive authority (Humphrey’s Exec.) (1935) B. Regulatory takings: Is the property owner -Interbranch appointment not unconstitutional but are limited to congruent functions bearing a burden that should be borne by between the branch’s duties and the duty to appoint society as a whole? Nixon v. Admin. of General Services (Bills of Attainder- Confiscation of Nixon’s items) 2 “Per Se” Physical Takings 1. Historically legislative punishment? (Precedent) 1. Permanent Physical Occupation 2. Does statute further nonpunitive legislative purposes? 2. Eliminating all economically viable uses of the 3. Does the legislative record evince an intent to punish? land -Not a bill of attainder just b/c it imposes burdens on only one person (a lot of leg. does -If neither of these, apply a balancing test it) looking at the frequency of invasion, direct and United States v. Causby (Possessory, Physical Taking by govt. planes killing chickens) immediateness of harm, etc. -US has immunity for the tort of nuisance but a direct and immediate interference w/ the use and enjoyment of the property may be a physical occupation Art. I §7 - There’s an area of space above your property that you’re entitled to use and if, Every Bill that passes the HOR and the Senate frequently, there’s a direct and immediate interference with your enjoyment and use has to be presented to the President who can of the land b/c this space is invaded then it’s a physical occupation and the govt. has to approve and sign or return to either house pay with objections. Yee v. City of Escondido (No Possessory, Physical Taking based on trailer park laws) If that house reconsiders and agrees to pass -Possessory taking of private property when govt. confiscates the property or requires it is sent with the Objections to the other the property owner to submit to a complete or partial physical occupation of the house which does the same and if 2/3 pass property then it become slaw. -Can’t assert a per se right to compensation based on the inability to exclude particular If any bill isn’t returned within 10 days by the individuals, especially when the presence of the individuals isn’t permanent President it becomes law. Kelo v. City of New London (Takings- Public Purpose, ok to take Suzette Kelo’s home) (Bicameralism and Presentment) -Private economic development is a public purpose -Strike down a taking that by clear showing is intended to favor a particular private Art. II §2 Cl.2: Appointment Clause party w/ only incidental or pretextual benefits President has the authority (subject to the (Pennsylvania Coal Co. v. Mahon) “Advice and Consent of the Senate”) to appoint -If regulation goes “too far” it’s a taking “Officers” of the US and Congress may vest in Andrus v. Allard (No regulatory Taking by law controlling the sale of tribal artifacts) the President the power to appoint “inferior -Laws restricting the sale of property but not other trad’l property rights are seldom officers” as well. takings even if they cause a loss of future profits Lucas v. So. Carolina Coastal Council (Regulatory Taking) th 5 Amendment -Regulation that deprives the property owner of all previously permissible economic “Nor shall private property be taken for public uses of land goes too far and is per se a taking use without just compensation” -ONLY not a taking if the interest in the land wasn’t a part of the title to begin with STATES Plenary legislative power (can legislate on Silkwood v. Kerr-McGee Corp. (Preemption- Nuclear Waste poisoning/ Meryl Streep movie) any subject) expect as subject to express -If Congress evidences an intent to occupy a given field, any state law falling within that field and implied limitations. is preempted (Field) 1. Preemption Express or Implied -If Congress hasn’t entirely displaced state regulation over the issue then state law is still Field: Congress chooses to exclusively preempted to the extent it actually conflicts with federal law (Conflict) regulate or the scheme of fed. regulation is State law isn’t preemptive in this case just b/c federal and state law address the same so pervasive as to make reasonable the subject matter inference that States have no room to supplement it Gibbons v. Ogden (Dormant- Preemption w/ NY barge operators) - If Congress has enacted legislation that governs a particular issue, then the federal statue Conflict: State law can’t make federal preempts any state laws and there’s no need to apply the Dormant Commerce Clause compliance impossible or stand as an Doctrine obstacle to federal compliance -Whatever Congress is trying to do, you Cooley v. Board of Wardens (Dormant- Uniform Nat’l Standard not required for piloting can’t undermine it through state ships) regulations -States retain a concurrent power to regulate local activities that affect interstate commerce until Congress decides to regulate except In areas which by their nature require a uniform 2. Dormant Commerce Clause national rule (Not piloting) Grant of power to Congress to regulate Although Congress has legislated on this subject, its legislation manifests an intention, with interstate commerce implicitly restricts the a single exception, not to regulate this subject but to leave its regulation to the several power of the sates to regulate it. State Law states affecting interstate commerce is invalid if one of the following is present: Wabash, St. L. & P. Ry. v. Illinois (Dormant- Uniformity) a. Preempted by fed. statute Transportation is a species of regulation that, if established at all, is of a general and b. Uniform standard required: national character and can’t be safely and wisely remitted to local rules and local regulations Is it a subject which requires exclusive federal regulation b/c it’s imperative that Dean Milk v. City of Madison (Dormant- Practical Effect Discrimination against milk there’s one uniform system/plan? EX. suppliers) Aviation -State law treats interstate commerce differently from intrastate / has a disparate impact on c. Discriminatory purpose/effect interstate commerce when there is a reasonable, non-discriminatory alternative way of States can’t treat out-of-state interests furthering the state’s legitimate interests different form in-state/intrastate interests -Doesn’t matter if field isn’t governed by national law unless : -One state in its dealings w/ another may not place itself in a position of economic isolation 1. It’s necessary to further a legitimate because this would defeat the purpose of the commerce clause state interest (like health or safety/ Ex. Economic barrier protecting local industry, conservation), and 2. There is no non-discriminatory Hughes v. Oklahoma (Dormant- Intentional Discrimination against out-of-state minnow alternative supp.) d. Excessive burden:If a state law States may promote legit purpose only in ways consistent with the basic principle that “our regulates evenhandedly to effectuate a economic unit is the Nation” legit interest and its effects on interstate commerce are only incidental, it will be South Carolina v. Barnwell Brothers (Dormant- Excessive burden, weight of semi trucks) upheld unless the burden imposed on such State law is invalid if it imposes a burden on interstate commerce that is excessive in commerce is clearly excessive in relation to relation to legitimate local interests. local benefits Legit interests include protecting health and safety and conserving natural resources but -Question of degree of burden DON’T include protecting local businesses from competition. - Depends on nature of the local interest If there’s no federal regulation, a rational basis for the legislation and no alternative, then involved and whether it could be promoted state law is valid providing that the burden isn’t excessive as well with a lesser impact on interstate Excessive burden: Burden those outside the state without any corresponding advantage activities within 3. Privileges and Immunities -limits the ability of states to treat citizens Southern Pacific v. Arizona (Dormant- Excessive burden from train length regulation) of other states differently from the state’s "Interest-balancing" standard of review, which proved more demanding than the earlier own citizens "rational basis" test. -limits discrimination w/r/t rights that are Train regulation passes beyond what is clearly essential for safety “fundamental to the promotion of interstate harmony” Baldwin v. Fish & Game Commission (Privileges and Immunities- higher fee for elk hunting) - may allow discrimination against non- -Privileges and Immunities Clause prohibits discrimination against out of state residents/ residents if the state has a “substantial citizen if the discrimination might jeopardize interstate harmony unless the discrimination is reason/ state interest” for the necessary to promote a substantial state interest discrimination - Privileges and Immunities Clause only applies to activities which bear "on the vitality of the -Citizens refers to US citizens, not aliens or Nation as a single entity." corporate; terms ‘citizen’ and ‘resident’ are -"Equality in access to Montana elk is not basic to the maintenance or well-being of the essentially interchangeable Union," he concluded. 4. Federal Govt. Immunity - states can’t Fundamental activities include: obtaining equal access to employment or medical services regulate the federal government or means of a livelihood, suffrage, qualifications for office; doesn’t cover less essential 5. Office Qualifications - states can’t add to matters like hunting licenses or admission to state university office qualifications 6. Bills of Attainder McCulloch v. Maryland (Fed. govt. immunity) Legislative act determining guilt and -Federal govt. is immune from state regulation and taxation imposing punishment without judicial trial - Necessary and Proper Clause empowers Congress to select appropriate means to 7. Contracts Clause accomplish any legitimate end under the Constitution States can’t substantially impair existing - Congress may enact laws that it might reasonably find to be related to any of its contracts enumerated powers 8. Takings Power granted under N and P -If the end goal is legitimate and within the scope of the constitution then all means which Clause but limited by Takings Clause are appropriate and plainly adapted to that end and aren’t prohibited but consist with the A. Possessory (Confiscation or letter and spirit of the Constitution are constitutional (Congress can charter a bank AND Physical) state can’t tax it) B. Regulatory takings U.S. Term Limits, Inc. v. Thornton (Office Qualifications) Art. I, §8: Limitations imposed by express -Art. I gives the only qualifications for congress and states can’t impose add’l qualifications powers of Congress by limiting the ability of candidates to have their names appear on general ballots Art. I, §10: State Limitations/ “Contract Nixon v. Admin. of General Services (Bills of Attainder- Seizing Nixon’s items with Clause” compensation) Bars states from entering foreign treaties, 1. Historically legislative punishment? coining money, and enacting bills of 2. Does statute further nonpunitive legislative purposes? attainder, ex post facto laws, or laws 3. Does the legislative record evince intent to punish? impairing the obligation of contracts; -Not a bill of attainder just b/c it imposes burdens on only one person (A lot of legislation States, without the consent of Congress, does this) can’t impose tariffs on imports or exports, keep troops and ships of war Home Building & Loan v. Blaisdell (Contracts Clause- Mortgage Moratorium law ok) - Prohibits substantial impairment of existing contracts by state legislature unless the law Article IV §2: “Privileges and Immunities has a significant and legitimate purpose like reasonably responding to important social Clause” conditions/ an emergency...various factors, see outline Citizens of each State shall be entitled to all Privileges and Immunities of citizens in the Allied Structural Steel v. Spannaus (Contracts Clause- state pays fee for moving/ no pens. several States plans) -State can impair a contract not merely by decreasing but also by increasing the duties of Art. VI: “Supremacy Clause”- Constitution, one party to the contract...can’t impose unexpected liability on one party Federal laws, and U.S. treaties are "the supreme law of the land" United States v. Causby (Possessory, Physical Taking) -US has immunity for the tort of nuisance but a direct and immediate interference w/ the th 5 Amendment “Takings Clause” use and enjoyment of the property may be a physical occupation “Nor shall private property be taken for public use without just compensation” Yee v. City of Escondido (Possessory, Physical Taking) -Possessory taking of private property when it confiscates the property or requires the th 10 Amendment property owner to submit to a complete or partial physical occupation of the property “The powers not delegated to the US by the Constitution nor prohibited by it to the Kelo v. City of New London (Takings- Public Purpose) States, are reserved to the States -Private economic development is a public purpose respectively, or to the people” (Pennsylvania Coal Co. v. Mahon) th 14 Amendment -If regulation goes “too far” it’s a taking (1) States can’t make/enforce laws that reduce the privileges or immunities of US Andrus v. Allard (Regulatory Taking) citizens or deprive anyone equal protection -Laws restricting the sale of property but not other trad’l property rights are seldom takings of the laws/ life, liberty or property without even if they cause a loss of future profits due process (5) Congress has the power to enforce, by appropriate legislation, the Lucas v. So. Carolina Coastal Council (Regulatory Taking) 14th Amendment. -Regulation that deprives the property owner of all previously permissible economic uses of land goes too far and is per se a taking PRESIDENT 1. Domestic Powers - No Youngstown Sheet & Tube v. Sawyer (President lacks the power to seize steel mills) extraconstitutional powers -Supreme Ct. has said the President may only exercise the powers granted expressly or implicitly by a statute or by the Constitution 2. Foreign Powers - Extra -President has the duty to execute the laws faithfully and this requires the President to obey the constitutional powers legislative choices made by Congress -President is sole organ of the 3 Categories of Executive Action federal govt. in the field of 1. Action Congress has attempted to authorize/ Action pursuant to an express or implied international relations authorization of Congress 2. Action when Congress has been silent/ Implied Consent or Denial. Ex. pardoning by the 3. Executing/ Obeying Laws president 3. Action Congress has attempted to prohibit/ implied prohibition (lowest amt. of power) 4. Executive Privilege Doctrine United States v. Curtiss-Wright (Guns sold to Bolivia, Pres. can do A LOT w/r/t foreign affairs) -implied by need for effective -US may exercise the powers that the Constitution expressly grants AND other foreign affairs powers discharge of executive power enjoyed by all sovereigns -ground for asserting privilege is -“Non-delegation doctrine” limits the discretion that Congress may give the president in enforcing based on generalized interest in statutes confidentiality, it can’t prevail over -Needs of diplomacy require that congress be allowed to give the President more discretion and the fundamental demand of due freedom from statutory restriction in international matters than is authorized in domestic affairs process in the far admin. of Whitney v. Robertson criminal justice -President can exercise some foreign affairs powers not expressly granted b/c the federal cts. will decline to review the President’s actions under the political question doctrine/ other doctrines -Constitution grants Congress the power to rescind treaty obligations by statute Art. II, §2, Cl. 1 Goldwater v. Carter (Issue of treaty termination by President non-justiciable) Express Presidential Powers -Supreme Ct. has declined to consider a challenge to a President’s attempt to rescind treaty Veto power over all bills; obligations appointment of judges and other -Some justices said issue wasn’t ripe and some said since the abrogation of a treaty wasn’t addressed officials; makes treaties; ensures in the constitution then it’s a political question all laws are carried out; United States v. Nixon commander in chief of the “Executive Privilege Doctrine” ...President has: military; pardon power, 1. An absolute right to keep confidential any military, diplomatic or sensitive national security secrets appoint ambassadors, Receive w/ advisors and Ambassadors (Art. II, §3) 2. A presumptive right to keep confidential any comms. with executive advisors on other subjects, but this must yield to the demonstrated, specific need for evidence in a pending criminal trial PRIVATE ACTORS (Individuals and Corps.) To be justiciable you need: The Civil Rights Cases (Civil Rights Acts of 1875 were unconstitutional) Constitutional violation plus -Constitution restrains federal, state and local govts. but not private actors State Action Exception -Private actors can exclude and discriminate without violating the Constitution although they may violate 1. Deprivation caused by state laws or the state constitution state-created right or privilege -Federal laws can’t address the issue UNLESS it falls under commerce, etc. (Congress’s plenary power) or imposed by state actor and -Exceptions are slavery, public function, judicial enforcement and joint participation 2. Action can fairly be said to Marsh v. Alabama (Company town serves public function; may not exclude religious promotion) be state action/ done by state -Engage in functions traditionally reserved to the govt. st actor -Company town must afford speakers the protection of the 1 Amendment 1. Public Function -If facilities are built and operated primarily to benefit the public and if their operation is essentially a (performing a traditional govt. public function, it is subject to state regulation function) Hudgens v. NLRB (Public function - Mall doesn’t serve public function; may exclude picketers) 2. Judicial Enforcement -no freedom of speech right against private actors although statutory or common law may extended (Injury cause is aggravated in protection or provide redress a unique way by court -What a municipality may not do under the First and Fourteenth Amendments is to discriminate in the enforcement) regulation of expression on the basis of the content of that expression. 3. Joint Participation (Mutual Shelley v. Kraemer (Judicial Enforcement- Can’t sell land to black families) benefits, appearance, -State court judicial enforcement of a restrictive covenant that requires an unwilling party to discriminate th inaction- Opposing goals = not on the basis of race violates the 14 Amendment joint) -Private action sometimes may be fairly said to be state action where “injury is aggravated by incidents of governmental authority” Plenary State Power: States Burton v. Wilmington Parking Authority (Joint Participation- coffee shop discriminates) can pass laws regulating -Private party takes an action and has a close and interdependent financial relationship with the private conduct, if the law government, such as a lease in a public building th th violates the 14 amend. then “When a State leases public property in the manner and for the purpose shown here, the 14 the federal govt can step in amendment must be complied with by the lessee as though they were binding covenants written into the agreement itself. 14th Amend.: (1) States can’t Edmonson v. Leesville Concrete (Joint Participation- federal litigant excludes juror) make/enforce laws that -Private party exercises powers under a statute or other law in circumstances making it fair to say that reduce the privileges or the private party is a state actor immunities of US citizens or Test: Does governmental authority dominate an activity to such an extent that its participants must be deprive anyone equal deemed to act with the authority of the govt. and, as such, be subject to constitutional constraints protection of the laws/ life, Dennis (bribed judge rules against litigant) liberty or property without NCAA v. Tarkanian (Joint Participation- Mirror Image, UNLV fires coach based on NCAA rules) due process (5) Congress has -Govt. or a govt. official takes an action pursuant to a conspiracy with the private party the power to enforce, by -The real question is whether UNLVs actions in compliance with the NCAA rules and recommendations appropriate legislation, the turned the NCAAs conduct into state action (No) th 14 Amendment.