THE DIVISION OF GOVERNMENT POWER – THE JUDICIAL POWER
I. II. Article III, Section 1: “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” The Justiciable Case (3 doctrines) a. The Standing Requirement – Who Can Litigate? i. Constitutional Standing 1. Injury in Fact - Concrete and Particularized: Any significant factual injury, economic, aesthetic, etc., will suffice. The injury must be "concrete and particularized and actual or imminent, not conjectural or hypothetical." 2. Fairly Traceable to Defendant: but for test; you must be challenging the action that caused your injury in fact. 3. Redress: Plaintiffs must also demonstrate a "substantial likelihood" that the injury is "redressable" if the court grants the requested relief. The focus is on the relation of the injury and the remedy. ii. Prudential Standing 1. Assert your right not as a 3rd party: A litigant usually lacks standing to raise the rights of others 2. No generalized grievances a. Generally No Standing as a Taxpayer: generally, federal taxpayers have no standing to challenge federal spending i. Establishment Clause Exception: a taxpayer may have standing on establishment clause grounds (congress should make no law…) to challenge a violation of the spending power (i.e. that the taxes are being misspent or being spent in favor of a religious society). b. Powell Congressional standing Exception i. Rule: a congressmen can challenge his personally entitled right to his seat c. Citizen Standing: generally, a citizen lacks a sufficient personal interest to raise the constitutional claim. 3. Must Be Within the Zone of Intent of the Statute b. The Ripeness Requirement - Is There a Present Injury or an Imminent Threat of Injury? i. First Prong: hardship to the parties of withholding court consideration 1. Inquiries: has prosecution been threatened, is it imminent?; has the defendant refrained from action b/c of fear of being prosecuted?; are there collateral injuries? ii. Second Prong: fitness of the issues and record for judicial review c. Mootness: A case must be dismissed when, because of changes, the court's determination of the legal issue cannot have any practical effect in achieving the desired result i. Exceptions: (1) voluntary cessation of the allegedly illegal conduct; (3) unsettled collateral consequences; (2) there is a reasonable likelihood that the constitutional issue is "capable of repetition, yet evading review." 1
III.
Federal Court Jurisdiction a. Subject Matter Jurisdiction – Original and appellate jurisdiction. b. The Exception Power of Congress i. Art III § 2: Although S. Ct. derives appellate jurisdiction from the Constitution, the Constitution also gives Congress the express power to make exceptions to that appellate jurisdiction. “… with such exceptions, and under such regulations as the congress shall make.” ii. Ex Parte McCardle: The Constitution gives Congress the power to make exceptions to the Court‟s general appellate jurisdiction, and if an affirmative exception is made, then the Court will have no jurisdiction to hear a case which falls within that exception iii. District Court Jurisdiction: b/c congress had the power to create the “lower courts” themselves, it follows that it has the “lesser” power to take away jurisdiction at the district level. iv. SC Needs a Statute: rather than merely defining exceptions to the Court‟s jurisdiction, Congress affirmatively defined its scope. The Court may not imply jurisdiction if a case falls outside that definition. c. Political Questions Doctrine: A political question (i.e. an issue that is textually committed to another branch that is not reviewable by the others) is non-justiciable. i. Two questions, both of which must be answered in the affirmative: Does the issue implicate the separation of powers? Does the Constitution commit resolution of the issue to either the President or Congress? (i.e., who has the final constitutional authority over the matter presented?)
IV.
The Essence of Judicial Review a. Marbury v. Madison i. Rule: it is the function of the SC to be the final arbiter as to what the law is; here, the Court sets itself up as the measure of constitutionality. b. Martin v. Hunter’s Lessee i. Rule: The SC may review state court decisions involving questions of federal law and state courts must conform to its interpretation of federal law according to the Supremacy Clause (Art VI).
THE DIVISION OF GOVERNMENT POWER – THE LEGISLATIVE POWER
I. Bicameralism - INS v. Chadha a. Legislative Veto: A “legislative veto” is unconstitutional b/c it violates the presentment and bicameralism provisions of Art. I, § 7. b. Exception to Presentment: no presidential approval needed for a proposed constitutional amendment which has passes both Houses of Congress by the requisite two-thirds majority and three-fourths of the states ratify the amendment. Hollingsworth c. Three questions under the functional test (J. White dissenting): Nixon v. Administrator of Gen. Servs i. Does the president have a function explicitly given to him by the Constitution? ii. Does the action that congress has taken usurp or interfere with that function? 2
iii. Even if it does, is there some overriding or compelling need to vindicate that action? II. III. Delegation of Powers - Intelligible Standard Principle: Congress must delegate supplying an adequate and intelligible standard for the agencies to follow Line Item Veto: The Line Item Veto Act violates the Presentment Clause of Art. I, § 7. It allows the President to cancel or repeal particular spending provisions thus changing the signed law. This is inconsistent with the constitutionally prescribed Veto Power because the President is making new law and sharing in Congress‟ power of the purse. Severability: A provision is presumed severable if: (1) what remains is workable and fully operative as a law; and (2) it is that what congress would have intended under the circumstances.
IV.
THE DIVISION OF GOVERNMENT POWER – THE EXECUTIVE POWER
I. II. The Energetic Executive: The Framers wanted to create an office so that someone would have the authority to take steps in a short period of time. Source of Domestic Authority: Youngstown a. 3 Sources of Presidential Authority: Truman argues that the President‟s authority to act alone comes from three sources: i. Vesting Clause - Art. II § 1: the executive power shall be vested in the President of the U.S. ii. Take Care clause - Art II § 3: executive is to take care that the laws are executed. iii. Commander in chief of military – Art II § 2: president “shall be Commander in Chief of the Army…” b. President’s powers fall into three categories (from Jackson’s concurring opinion) i. Category one: President acts with Congress (maximum authority) 1. Article II – president gets power from being the commander in chief, the “take care” clause, and the “vesting clause.” 2. Article I – Congress gets power from article I ii. Category two: President acts but Congress is silent 1. Twilight zone; Court will have to balance the competing interests of the President and Congress iii. Category three: President acts alone and Congress has denied the authority 1. President can only rely on his constitutionally granted power minus the constitutionally granted power of Congress. III. The Power of Appointment a. Art. II, § 2, cl. 2: vests the power to appoint federal officials, subject to the Senate's advice and consent, in the President. Congress may vest appointment of inferior officers in the President, courts of law, or heads of departments, but not in the Congress itself IV. The Power of Removal – Humphrey’s Executor & Myers a. Myers Rule: it is unconstitutional for Congress, even pursuant to bicameral legislation, to fetter or encumber the President‟s ability to remove purely executive officers.
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b. Humphrey’s Executor Rule: the Myers decision, affirming the power of the President alone to make the removal, is confined to purely executive officers. With respect to independent agencies that perform quasi-judicial tasks, the president can remove only for cause. V. The Executive Bounded by Statutory Meaning: Brown v. Williamson a. Chevron: When congress writes a statute and delegates authority to an admin agency, and someone contests the agency‟s rule making authority there are two steps i. Step 1: Are the words of the statute plain in meaning on their own terms? If so, then it is the court‟s duty to say what the law is. Marbury ii. Step 2: If the statute is ambiguous or silent on the topic, then there is nothing to interpret and therefore the role of the court is merely to decide whether the interpretation of the agency was a reasonable one. VI. Executive Privilege a. General Rule: The executive privilege exists and is rooted in the separation of powers. However, it is not an absolute privilege. The privilege may be outweighed by both the responsibility of the judiciary to address the question and the individual due process rights of the defendants. Nixon b. Hierarchy of executive privileges i. Military subject matter ii. Law enforcement or open litigation files iii. The right to receive complete, honest, and unfettered advice c. Presidential immunity from civil lawsuit i. Nixon v. Fitzgerald: The President is absolutely immune from civil liability for actions within the "outside perimeters" of his official responsibility. But the President does not have a general constitutional immunity for unofficial acts allegedly committed prior to assuming office. ii. Presidential aids: Official actions are immune from civil liab. so long as they do not violate clearly established statutory or constitutional rights that should have been reasonably known. Thus, the president has absolute immunity while his aids have qualified immunity VII. The Independent Counsel - Morrison v. Olson a. Appointments Clause Issue: Court decides that the IC is not a principal officer, but rather an inferior officer not subject to appointment by president and confirmation by Congress. b. Dissent - Separation of powers issue: All the executive power is assigned to the President and his subordinates, investigation and prosecution is the quintessential executive function. c. Accountability Issue: The Framers gave us a system of hierarchy and through hierarchy came accountability. In the case of independent counsel, there is no hierarchy and an independent counsel can only be removed for cause. VIII. The President and Foreign Policy a. Curtiss-Wright i. President is the “Sole Representative”: The constitution grants specific powers to the federal government only with respect to internal affairs. The government as a whole possesses external sovereignty independent of any affirmative constitutional grant. The 4
exercise of that sovereignty is limited to the President, who acts as the sole representative of the United States. The Senate retains the power to ratify treaties, but the President negotiates and presents them ii. Sovereign Powers of the US: these are extra-constitutional and the president, as the executive, is the sole representative of the nation in foreign affairs. iii. Joint resolution: bicameral passage and presentment iv. Concurrent Resolution: bicameral passage but no presentment; has no legal value but has political value. b. Rasul v. Bush i. Held: The Court found, as a matter of statutory interpretation, that the habeas statute was broad enough to include even aliens held outside the sovereign territory of the US; c. Treaties i. 3 components: 1. President negotiates the treaty and accepts no unwanted consultation from Congress to negotiate in a certain way; president has plenary control; 2. 2/3 approval from Senate; 3. President himself exchanges ratification documents with the foreign party thereby affirming that the treaty is in effect. ii. Preemption: Treaties, once in effect, are law and repeal any existing federal or state law that is contradictory; if the treaty contradicts a statute in the U.S. Code, it, in effect, preempts that law. iii. Reid: treaties can‟t authorize actions that go against the individual rights found in the Bill of Rights. d. Executive Agreements i. No Ratification: Executive agreements do not require Senate concurrence and are legal even though they are not mentioned in the Constitution. ii. Preemption of Federal Law: If an executive agreement is based upon a treaty or statute and the executive agreement is later in time than a conflicting federal statute, the executive agreement will, by virtue that it is authorized by a previous statute or treaty, preempt the conflicting federal statute. In effect, this will have the same effect of a treaty. iii. Preemption of State Law: Agreement will have preemptive effect if it is anchored in a prior statute or treaty. iv. If Based only on Presidential Inherent Power – An executive agreement based solely on the President‟s inherent power will preempt state law (based on the principle that states are incompetent when it comes to foreign affairs). e. War Powers (n.10, p. 280) i. Congressional Power: Congress is given the power to declare war in Article I, Section 8, Clause 11. ii. War Powers Resolution: Requires the President to report to Congress before sending troops into hostilities or, if this is impossible, w/in 48 hours of the introduction of troops into hostilities. 5
iii. Presidential Actions: Presidents, however, have always maintained the right to enact military actions in defense of the country. f. Hamdi v. Rumsfeld: in the narrow context of enemy combatants, you can detain for the duration of the conflict in which the enemy combatant was involved. Due Process requires a credible evidence standard. i. The government argued that it was acting pursuant to the maximum scope of executive authority under Youngstown – the President was acting under his inherent authority under Art. II and Congress authorized the military force under Art. I.
A LIMITED GOVERNMENT OF ENUMERATED POWER
I. The Implied Powers of Congress Through the Necessary & Proper and Supremacy Clauses a. Express Powers: Art. I, §8 b. Implied Powers: Under the Necessary and Proper Clause of Art. I, § 8, Congress can enact laws which are reasonably designed to achieve its delegated powers. c. McCulloch v. Maryland: i. Rule: Any convenient means that will advance one of the enumerated ends can be exercised by the federal government; this is an implied legislative power under the necessary and proper clause. ii. Rule: (1) Where the constitution has assigned to the federal government a specific responsibility, the state government will defer to the specific means that the federal government uses. (2) But if the fed gov is acting in pretext and invades an area that it has not been given, it is the duty of the court to second guess these actions; The Court will be deferential if the federal government is within its assigned space, but if the federal government is not w/in its space, the court will tell the federal government when it is overstepping. d. Preemption: For preemption to be operative, the federal government must be w/in its assigned space. If you say that a federal law preempts a state law, you are implicitly saying that the federal government was w/in its assigned space. e. Express preemption: Congress explicitly states that it is its intent to preempt state laws in a certain area; this is effective so long as congress is acting pursuant to a valid grant of power of its own i. Narrow Interpretation of Express Preemption: When congress legislates expressly to preempt, the Court construes this express preemption narrowly and not broadly. Cipolone f. Implied preemption i. Field preemption: Congress is legislating in a field where the scheme of federal regulation is so pervasive as to make reasonable the inference that Congress left no room for the states to supplement it; congress has created such an elaborate scheme that there is no room for the states ii. Conflict preemption: either frustration of purpose (even though it is possible for an individual to physically comply with both the state and federal requirements, having that individual comply would frustrate the federal government‟s goals) or impossibility (not possible for the individual to comply with both state and fed)
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THE COMMERCE POWER – WHAT IS “COMMERCE”?
I. II. The Commerce Clause: Art. I, sec 8, cl. 3, provides that “Congress shall have power…to regulate commerce with foreign nations, and among the several states, and with the Indian Tribes…” Gibbons v. Ogden: The term “among” includes trade across state boarders and also into the interior of the state; in order to be truly intrastate, commerce must begin and end w/in the state. a. Preemption: this case can be view as a straightforward direct conflict preemption case.
IS THE COMMERCE POWER A FEDERAL POLICE POWER? – DISTINGUISHING THE COMMERCE AND POLICE POWERS
I. United States v. E.C. Knight Co. (1895): Regulation of interstate commerce applies to subjects of commerce and not to internal police powers of the state; Manufacturing a product is not part of commerce even though selling it involves commerce. Lottery Case (Champion v. Ames) a. Issue: prohibition is a police power, designed to suppress a public harm or nuisance b. Holding: this was commerce b/c Congress has a large discretion as to the means that may be employed in executing a given power; it doesn‟t matter if it is a prohibition or a regulation. c. 10th Amendment: Police power is reserved to the states as it is not a power enumerated in the Constitution and delegated to the federal government. (health, safety, morality).
II.
THE COMMERCE POWER AND THE INTERSTATE NEXUS – WHAT IS INTERSTATE?
I. Wickard v. Filburn a. U.S. v. Darby – sustained the federal power to regulate the production of goods for commerce rather than commerce itself (distinguish this from E. C. Knight). b. Substantial Effects Test: Whether an activity concerns “„production,‟ „consumption,‟ or „marketing‟ is . . . not material for purposes of deciding the question of federal power.” Even local activity may be regulated if it, together with the activities of similar individuals, has a substantial economic effect on the industry as a whole c. Aggregation Theory of the Substantial effects test – an activity that is substantially affecting interstate commerce is w/in the commerce clause event if it is merely a trivial drop in the bucket. This theory operates on an aggregation theory. d. Rule: Even if activity is local in nature, it may still be reached by Commerce Clause if it exerts a substantial economic effect on interstate commerce, irrespective of whether such effect is direct or indirect.
IS THERE A LIMIT? – MAKING SENSE OF THE “SUBSTANTIAL EFFECTS” PRONG
I. U.S. v. Lopez a. Rule: Something is outside of the commerce power if its effects may be so indirect and remote that to embrace them would obliterate the distinction between what is national and what is local b. 3 Broad categories of power 7
i. Power over channels of interstate commerce – i.e., Congress can regulate on the terms and conditions on which goods or services are sold interstate and may restrict the types of goods that can be shipped interstate. ii. Power over instrumentalities, persons, or things in interstate commerce – i.e., railroads, airlines, trucking companies, and other conduits through which interstate commerce occurs. iii. Power over those economic activities that have a substantial relation or substantial effect to interstate commerce – i.e., local production of a good that nonetheless affects interstate commerce. c. Qualification of the Substantial Effects Test: The Court qualifies the substantial relation test by stating that it has to be an essential part of a larger economic enterprise. Wickard is the most far reaching example of commerce power; the limit is on economic activity; Wickard was w/in the commerce power b/c it affected commerce II. Solid Waste a. Issue: Whether an isolated, intrastate pond could be regulated under the Clean Water Act via the substantial effects test because destroying the pond would affect the hunting of migratory birds. b. Majority: Statutory meaning of navigable waters would be stretched too far. There may be a national interest in protecting migratory birds, but this cannot be pulled from a statute aimed at navigable waters such as the Clean Water Act. c. Dissent: bird hunting/watching, or the lack thereof if the pond was destroyed, is enough under the substantial effects test of Wickard to constitute interstate commerce that may be regulated by Congress. III. Alternative Arguments a. The matter is the subject of an executive agreement or treaty b. The necessary and proper clause c. Limitations attached to federal grants of money, i.e., bribery.
THE DORMANT COMMERCE POWER
I. General Rule: States may regulate where federal government has not, but subject to judicially grated limit that such state and local laws may not unduly burden interstate commerce. The Dormant Commerce Power is a claim by the Court that the grant of affirmative power to Congress is also a negative or dormant limitation to the States. Dormant Commerce Clause Analysis a. First: Who decides what is local and what is national? Has Congress spoken? b. Second: decide whether the law facially discriminates against interstate commerce or whether it is evenhanded with only incidental effects on interstate commerce. 1. Note: the purpose of, or justification for, a law has no bearing on whether it is facially discriminatory 2. Evenhandedness: Evenhanded if the distinction is based not on state residency but on some other justifiable factor ii. If evenhanded, then apply the balancing Pike test: nondiscriminatory regulation that have only incidental effects on interstate commerce are presumed valid unless “the 8
II.
burden imposed on such commerce is clearly excessive in relation to the putative local benefits.” iii. If facially discriminatory: the statute is per se invalid. c. Third: the statute is per se invalid unless it can be shown that it advances a legitimate local purpose that cannot be adequately served by reasonable nondiscriminatory alternatives. Note that justifications must pass a strict scrutiny standard. i. Economic protectionism is generally not a valid state interest nor is resource protectionism under Oregon Waste. ii. Look for health and safety goals. III. Cooley v. Board of Wardens a. Judicial / Congressional Power i. Congressional silence and states regulate: Court decides what is local and what is national ii. Congress disagrees with the Court and approves state regulation: Congress decides iii. Congress disapproves of a state regulation: it is the Court who decides whether it is w/in the commerce clause IV. The Market Place Exception: If a State is acting as a market participant, rather than a market regulator, the dormant commerce clause places no restrictions on its activities. a. Example: When the state is acting as a seller of goods, then it is a market place participant. However, if it attempts to exercise control over the actions of private parties beyond the market in which it is a participant, the state will no longer be just a marketplace participant but also a regulator. See Reeves and South-Central Timber. b. Rationale for Increase State Latitude as a Market Participant: They must compete for the good; the same rules apply to the state as they do to ordinary individuals; they are not acting w/in their sovereign power; a state‟s power is less as a market participant, thus there is less concern over any distorting effect on the interstate or national market
STATE LAW AND FEDERAL ELECTIONS – THE QUESTION OF TERM LIMITS
I. Constitutional Provisions a. Article 1 section 2 clause 1: elector (who could vote) requirements are set by the states even though it is a national election b. Article 1, section 4, clause 1: Times, places, and manner of elections should be decided by the states; but congress has an overriding power. II. U.S. Term Limits v. Thornton: All powers not enumerated in the constitution for the national government are reserved in the states. However, the 10th Amendment applies to pre-existing state powers; the states had no right to define qualifications for members of Congress before the constitution.
DEFINING TRADITIONAL STATE FUNCTIONS
I. National League of Cities v. Usery a. Rule: state immunity from federal regulation turns on a judicial appraisal of whether a particular governmental function is "traditional.” 9
b. Rule: insofar as the challenged amendments operate to directly displace the States‟ freedom to structure integral operations in areas of traditional governmental functions, they are not within the authority granted Congress by [the Commerce Clause]. c. 4 Part Test i. The federal statute at issue must regulate the “states as states” ii. The statute must “address matters that are indisputably attributes of state sovereignty.” iii. State compliance with the federal obligation must directly impair the states‟ ability to structure integral operations in areas of traditional governmental functions iv. The relation of state and federal interests must not be such that the nature of the federal interest justifies state submission. II. Garcia v. San Antonio MTA (overruling National League) a. Rule: the Court ruled that the judiciary does not have a role in determining the scope of federal commerce power as it is applied to state and local government activity unless Congress takes actions that totally eliminate the sovereign existence of those governments. i. Federalism should be protected through the political process and not the judicial process. ii. Congress, which is comprised of representatives from the states, must make the necessary judgments about the scope of any intrusion upon state sovereignty. iii. Held: the local transit authority was not immune from the minimum wage and overtime requirements because there was nothing in those requirements that was destructive to state sovereignty. b. Dissent: Note the dissenting argument based on the 10th Amendment. The majority essentially reduced the 10th Amendment to meaningless rhetoric. The Court should decide whether the federal government has exceeded its authority by regulating activities beyond legitimate federal interests that outweigh the authority and interest of the states.
NO COMMANDEERING OF THE STATES
I. Printz v. United States: the federal government may not compel the states to enact or administer a federal regulatory program. a. Rule: the federal government can regulate state and private activities under Garcia. You can regulate the states just as you can any other private individual. However, if an act is seeking to regulate the state as a regulator of private individuals, this is prohibited by Printz.
IN LIGHT OF THE SPENDING POWERS, DOES THE COMMERCE CLAUSE MATTER?
I. Limitations to Congressional Spending a. Must be for the “general welfare” b. Must be a clear, unambiguous statement that Congress is binding the states if the states accept the money. See Barnes c. Conditions must relate to a federal interest in particular national projects or programs. See Sabri d. Cannot go against an independent constitutional bar to the conditional grant of federal funds. Dole 10
DUAL SOVEREIGNTY IN COURT – HEREIN ELEVENTH AMENDMENT SOVEREIGN IMMUNITY
I. Seminole Tribe v. Florida a. 11th Amendment: the 11th A is broader than its text and stands for the broad supposition of sovereign immunity. When drafted, there was no such thing as federal question jurisdiction, if there was it would have been mentioned in the 11th Amendment. b. Commerce Power: the commerce power is not an acceptable source of power to abrogate state immunity; section 5 of the 14th, however, is an appropriate source of power. c. Ex parte Young: Ex parte Young is a judicially crafted exception allowing for prospective injunctive relief whenever there is a need to remedy a continuing violation of federal law by a state officer. II. Three propositions of state immunity a. You cannot sue the state in federal court for either a diversity action or a federal question action w/o its consent b. The state can consent to the suit c. Even if the state does not consent, congress has a limited ability under an appropriate source of power to abrogate states immunity i. Seminole tribe – says that commerce power is not an appropriate source of power for abrogation 1. Acceptable source of power is §5 of the 14th A III. Exceptions to State immunity a. What about state immunity in its own courts from federal causes of action? i. Alden v. Maine 1. Holding: if plaintiffs are precluded from bringing suit in a federal court b/c of the state‟s immunity under the 11th Amendment, plaintiffs cannot avoid this immunity by bringing the suit in a state court. b. 14th Amendment Power - §5; this is an acceptable source of power i. Rule: Congress may authorize a private cause of action pursuant to its enforcement authority under §5 of the 14th A, but only when it is enforcing, not redefining, a constitutional right of privilege or immunity, equal protection, or due process proteted by §1 of the 14th A, and its enforcement efforts are bounded by the considerations of “proportionality” and “congruence” first outlined in City of Boerne v. Flores. ii. Kimel: age discrimination iii. Florida Prepaid: state infringement on private patents (depravation of property w/o due process of the law) iv. Garrett: violation of ADA v. All these cases were found (5-4) by the SC to be inadequate to abrogate state‟s immunity because in each case the Court found that congresses power was exercised in a way “that was not congruent and proportional to its object…” c. Application of the 11th A in federal agency adjudication, i.e. administrative proceedings 11
i. Federal Maritime Commission: the 11th A precluded holing states liable because the proceeding, walks, talks, and squaks, like a lawsuit; if immunity in federal court and state courts, then you should have immunity here also. IV. Nevada Dept. of Human Resources v. Hibbs a. Rule:? Congress must identify, not just the existence of age- or disability-based state decisions, but a widespread, solid record of state intrusion of constitutional rights b. Teaching of this Case: Congress can abrogate if it is acting under §5. Their actions must be congruent and proportionate to a violation that is w/in the scope of §5. Congress is given more deference when it is legislating with respect to suspect classes of discrimination such as gender. c. Core teaching of this case: This case is an example of how the 11th Amendment trend of Rehnquist has slowed down with respect to suspect cases of discrimination. d. Tennessee v. Lane: The Court uses the same principal used in Hibbs that Congress has wider latitude to legislation with respect to a fundamental right the same way it does with suspect cases.
INDIVIDUAL RIGHTS LIMITATIONS ON THE POWERS OF THE STATES
I. City of Boerne v. Flores a. Rule: Congress can remedy and deter under §5 of the 14th A. However, Congress cannot redefine and substitute its own definition of the law for the Court‟s b. Note: In this case, unlike Hibbs and Lane, the Court does not give congress latitude with respect to a fundamental right when it is trying to redefine that right. II. Palko v. Connecticut a. Holding: The Bill of Rights do not apply in their totality to the states. Instead they are going to apply selectively to the states through a process of judicial incorporation. b. Judicial Incorporation Doctrine: Judges should incorporate things that are “implicit in the concept of ordered liberty.” i. “To abolish them is not to violate a „principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.‟” c. Examples of rights that have not been incorporated to the states: Right to indictment and right to grand jury
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