Smith=s Con Law Outline

Document Sample
Smith=s Con Law Outline Powered By Docstoc
					Smith=s Con Law Outline


ART I: Establish legislative branch/vest with power.
Powers/procedures. '8: empowers Congress. '9: limits its powers; specific things Congress cannot do (habeus corpus; ex post facto; can't
draw on $ without appropriations). '10: restricts state gov't
ART II: Establishes executive branch/vests w/power. Commander in chief; power to make treaties; appoint people to gov't positions; fill
vacancies; state of the union. '4: addresses impeachment.
ART. III: Establishes judicial branch - creates Supreme Court & inferior courts as Congress sees fit. '2: Power extended for: federal
question, diversity. Original jurisdiction. Defines treason.
ART IV: Relations between States and State to Fed. Gov't.'1&2: Full faith and credit; extradition of slaves/felons; immunities of citizens.
'3&4: States relation to Fed.; new states coming into union; guaranteed representative form of gov't.
ART V: Amendments. Possible, yet difficult (Supermajority needed to amend) Proposal- Either (a) in Congress (2/3 of both houses) -
would need bipartisan support (big and small states), or (b) Convention of 2/3 of states. Then submit for ratification. Ratification: Congress
may propose which method: (a) 3/4 vote of state legislatures, or (b) state ratification conventions. (demonstrates safety to overcome a
Congressional roadblock).
ART. VI: Supremacy of the Constitution. Trumps state laws/constitutions (Federal treaty/statute, if Constitutional, also trumps state). Fed.
gov't will validate/assume old debts.
ART. VII: Ratification. 9 states needed.

(1) Impeachment: limits abuse by Pres and controls factions. But, impeachment can be abused itself. So, req. "high crimes" Not easy to
impeach. Need: (a) indict by house, (b) trial and conviction by Senate, oath; Chief Just. presides; need 2/3 vote. This controls factions b/c
one mob could not get the pres. Impeached. Needs to be a group effort, like the amount of votes for impeachment
(2) No nobility
(3) No $ drawn from treasury w/out appropriations by law.
(4) Immunity of Congress when going to and from work (except treason, murder, breach of peace). Story of carpool lane/senator.
(5) Passage of Bills (ART. I, '7): Passed by 1/2 in House and Senate; then can veto; veto overridden by 2/3 of Congress. Pres. could sit on
bill & never pass -- if don't return within 10 days then becomes law w/out signature (no pocket vetos). But Congress could adjourn & Pres.
not be able to return. So, tolling of 10 day period
when Congress is not in session.
(6) Diminution of Salary (ART. III, '1): Judges salary cannot be diminished while they are in office
(7) Treason - high standard of proof

1. Rust v. Sullivan: gag rule case. Title X (funding for family planning prohibits $ for abortions). Regs impose gag rule on doctors. Case
stands for the ct will decide case on non constitutional issues before const. issues if it can.

a. Arguments:
(1) Regulations are inconsistent w/ Title X.
(2) Regulations violate 1st Amend. (free speech) of employees and 5th Amend (due process) on preg. women (their right to an abortion).
(3) Regulations were adopted using bad procedures.
b. Argument (1) is not a Constitutional issue bç it is looking at a statute. The focus here is on Congress's intent (they delegated power to
administrative agencies). The agency can only pass regulations that are consistent w/ Congress's intent. Therefore, look to legislative
history. Statutory Issue when court is looking at Congressional intent.
c. Argument (2) = Constitutional Issue b/c looking at intent of Framers w/ Constitution.
d. Assume that the 2d Cir. found the gag rule to not be authorized by Title X. What impact on remaining Constitutional issues?
Would never happen. If court can decide the issue on non-Constitutional issues, then it will. Thus P would win. Remember Ct. get
reluctant to challenge the Constitutional intent. Courts would rather allow amendment to Title X and its application than to say
that Title X is unconstitutional. This way the Ct. is not usurping legislative power from Congress.


1.TEXT AS A SOURCE FOR INTERPRETATION: Opposing view points - No express provisions, then Framers did not disallow vs. if
you have to have express language, lots of things would not be allowed.
a. Compare term limits: Qualification Clause in Art. I, '2 (3). This is the only limitation thus there are no term limits. On other hand, they
left it open for future generations to decide.
   1) Art I, '4 says states can regulate the manner of elections, so they should be able to impose term limits vs. "manner" means things like
place of elections and not the basic subject.
  2) Art. I '5 (1): each house shall be judge of qualification os its own members (no term limits) vs. house can still judge after state sets
qualifications for term limits.

2. FRAMERS INTENT: look at historical evidence of the period
a. Convention debted term limits, but didn't put them in; or does this mean that they wanted to leave it up to the states? Look to Federalist
Papers (here, Framers were concerned with states' interference w/ elections)
b. Problem With Framers Intent:
   (1) Cannot ascertain the intent of the collective body, only those that wrote,
   (2) often no intent was had on future questions, and
   (3) circumstances change, and
   (4) must decide at what level of generality to read.
 Interpretivist v Noninterpretivist -
a. Both feel you should start w/ the text and look at the framers intent
b. prob=s w/ using text and other doc=s
-text used general lang to express gen notions and left specifics open
-even looking at debates could be misleading b/c it may only provide a single misconstrued congressmens opinion of what the bill was
intended to mean
-changed circumstances , what worked then might not work now
c. Interpretivist Scalia- look to the constitution text first, where text is unclear look to framers intent.(Fed Papers, Madison notes But is the
issue to modern to even be a concern? Then...
1. Says the only other reliable source that doesn=t get into judicial legislating an policy making is looking to the traditions and practices
were at the time the const. Was written , of the framers,.
2.the words used reflected their world
3. But traditions is subjective and whose tradition do you use
4.and which tradition should we look at specifically: sodomy v privacy in the bedroom
5. Maybe they wrote the document in general terms to allow it to evolve with the times and perhaps that was there intent
d. Non interpretivist ; evolving social issues instead of traditions- they think modern social consensus should be how it is interpreted.
Should be interpreted according to the consensus views.
1.executing retards violates evolving standards of decency
2.apply mega-principles of modern conceptions of justice
3. But judges aren=t good representatives of a social consensus; they are isolated and removed from society unlike elected officials
4.what does a consensus mean or what counts as a consensus
5.danger of boiling down to their own views which is what you are trying to avoid by having a model of interpretation
6. Consensus= are temporal, they change a lot
7. Legitimacy; constitution is there to protect rights of the minority, not ignore them by deciding rights on a consensual basis


A. THE "JUDICIAL POWER" ISSUE: The Position & Power of the Federal Judiciary
1. The Supreme Court's Position in the Judicial System: Jurisdiction and Procedures
   a. Politics is involved in appointing Justice. But, once they are on, they have life tenure so long as they are on "good behavior."
   b. Courts are largely independent, except:
      (1) Congress is involved in appointment
      (2) Congress can shrink the Court's jurisdiction ('2);
      (3) Congress can pass regulations of the law, like the FRCP, that the Court must follow.
  c. Congress has power to make exceptions and regulations to the Court's appellate jurisdiction
     1)There are two categories:
       (a) Original Jurisdiction (Ct. is the trial ct.; State is party/Ambassador) or
       (b) Appellate Jurisdiction (rest)
d. Supreme Court is the (1) top federal court, and (2) appeals court from state supreme courts. But, the Court will not be involved in
disputes over the meaning of a state law. The state supreme courts are the supreme law with regard to state laws and regulations.
e. Court has wide discretion in what cases it will take. (5000 seek cert. 50-100 get in)
The Court typically grants cert when:
   (1) conflict exists either between
       (a) several states;
       (b) federal courts, or
    (2) 1257-Petitioner must have exhausted all options. No more appeals. As last resort of important matters (right to dies; death
penalty; affirmative action). Petitioner must have reached a final decision (there are no other appeals).
f. To get certiorari: Briefs filed and judges review. Need 4 votes to get cert. Then another round of briefs (including amicus) and oral
arguments (1 hr. total). Cert. denied: has no precedential weight. Merely means that the Court chose not to hear the case for some reason
(maybe standing or mootness, etc.) Says nothing about the merits or arguments of the case.
g. RULE 17 - Criteria for Hearing a Case: (1) Cert.; (2) Justiciable; (3) Important case to be heard.        What makes it an important
case? Conflict between the federal courts; federal question; state courts are in dispute; large scale impact on society

2. JUDICIAL REVIEW- the power of courts to review legislation to determine whether it is consistent with the constitution.
a. MARBURY V. MADISON: What gives the S.Ct. the right to decide what is constitutional when
Congress has passed a law? Marbury's commission papers were never delivered in time. He seeks redress for a writ of mandamus -ct order
to do something- (imploring original jurisdiction of Ct.). Judiciary act 1789 est. US courts and authorized wits of mandamus expanding
appellate jurisdiction Issue: Constitution (Art.III, '2) does not give Supreme Court power in original juridiction situations to give a writ of
mandamus (usually comes from a district ct.). Only can issue writs when cases involve ambassador or state is party. Congress passed
Judiciary Act where writ of mandamus is OK in cases of brought against federal officer. Holding: Federal judiciary does have power to
declare an act of Congress unconstitutional and refuse to enforce it.
1)Marshall's Arguments:
      (a) Inherent in the Constitution is the right to have judicial review . The Supremacy Clause (Article VI, Sec.2) declares the constitution
and those acts of congress made in pursuance thereof shall be the supreme law of the land. Thus, the court must determine when such acts
are actually made in pursuance of the constitution.
1. We need a check on legislative brach to make sure they act constitutional. This contridicts his earlier contention about specific
enumeration of jurisdiction in the constitution .
2.But, all the enumerated checks are populous orientated suggesting we can=t rely on these. We need a countermajoritarian body free from
political influence of the majority. (Apolitical) that is immune from flights of fancy (marshall didn=t say this but is in hamiltons federalist
papers )
3. But it is difficult to imagine framers would entrust this power to a unchecked branch free from political checks. Answer is they are the
lesser of 3 evils(least dangerous b/c are dependant on others to enforce there decisions; more restricted in their ability to impose tyranny
where they can=t pass statutes; no access to military; have a more passive role in agenda setting)
      (b) Judicial Review is a natural thing that judges do (expound and interpret the law).
1.again, no express language to this effect
2.declaring act of congress unconst is diff from a K case b/c branches are supposed to be co-equal and this raises the sc into position of
aithority over congress.
3. This disturbes balance of power, but courts are spokesperson for the framers who made decision to depart from majority rule.

a) Counters & Rebuts to (a): Other democracies do not have judicial review.
  (1) there are other expressed limits on legislative powers, so why imply new ones? [(i) an apolitical, counter-marjoritarian check is needed
- protects everyone, including minority interests; (ii) judicial review completes the balance of power -- each branch is supreme in their
  (2) If imply another check, the judiciary is strange b/c there is no direct recourse for their decision [Judiciary is the least dangerous branch
- passive; no enforcement powers].

(b) Counters & Rebuts to (b): (1) Judicial review is a special power; (2) judiciary is a coequal, not a supreme [Judicial Review gives S.Ct.
the same power in its domain as Congress & Pres. have in their domains].

(c) Scalia - Judicial Review is legitimized by a counter-majoritarian unit to speak for the Framers, relying on text, Framers intent, and
traditions from the Framers time.

(2)Other ways to escape the counter-majoritarian difficulty: (a) Court represents the Framers and a more democratic structure; (b)
Protects access to politics and minority groups; (c) improves democracy.

3)Note - all these alternative justifications are conditional. In other words, if the Court went beyond or acted above these justifications, then
they would not legitimately be wielding their judicial review. We take Judicial Review for granted.

But, there is still an unsettled tension in allowing the courts Judicial Review, because they are countermajoritarian. Makes judges be careful
about how they interpret acts of Congress and the President. Of course, you can argue that the countermajoritarian difference does not
exist: (1) Cts. enhance the majority; (2) they are restrained in the sources they can use for Judicial Review; and (3) Justiciability

Justiciablity is a term of art expressing the limitations placed on fed cts by the case and controversy doctrine.
Courts may not issue Aadvisory opinions@, may not decide Apolitical questions@, must have some stake in the controversy, and may not
decide issues that are either Apremature@ or Amoot.@
 a. Justiciability restraints illustrate a strong judicial value for the separation of powers.
 (1)Shows judicial restraint (acts to reduce friction between branches); (2) Ensures that Constitutional issues are resolved only in context of
 concrete disputes; (3) Ensures decisions rendered on behalf of those actually injured; (4) Passive virtue of inaction: principled decision
 making, not political

 b. ADVISORY OPINIONS are opinions on the constitutionality of legislative or executive actions that did not grow out of a Acase or
 controversy.@(first example was President Washington seeking advice of England/France war. S.Ct. declined
 (1)Reasons for not allowing:
    (1) Court is apolitical (should stay out of policy formulation);
    (2) Promotes respect for the Court (other branches may not listen or want to avoid interference);
    (3) No prejudgment;
    (4) Avoids hypotheticals; needs to be fleshed out in concrete factual, non-hypothetical situation.
  (NOTE - some state courts still give advisory opinions)

c. ADEQUATE & INDEPENDENT STATE GROUNDS: Whenever the outcome of a case would not vary, regardless of how the
Supreme Court would rule on the federal issue, the Supreme Court will not review. (would be an advisory opinion). Applies even if the
federal law may have been misconstrued below.
   (1) If state court held invalid on state law grounds, then no S.CT. review. Fed claim is not outcome determinative.
   (2) If state court held valid on state grounds and [either valid OR invalid on federal law grounds], then S.CT. Can review and hear
the federal claim only.
   (3) If a sufficient answer is based on state law, then it insulates the federal claim from review. If the overall outcome would be different
should the S.CT. come out differently on the federal question, then the case may be heard by S.CT.
   (4) Michigan v. Long: if it is unclear whether the state court relied on state law or federal law to determine the issue, there is a
presumption that federal law was implicated and the S.CT. can review. Court will presume that any reference therein to state law was not
as an independent issue. Therefore, the burden is on the state courts to make clear that they are relying on state grounds.
  (5) If state law incorporates the federal law by reference, then the S.CT. may review the state court decision b/c relying on federal law
to adjudicate the rights. (Simply referring to federal cases does not make a case based upon federal law. State courts must look like they are
relying on state law, but are overtly relying upon federal law as backbone of state law.)
  (6) If state procedural grounds prevent state court from resolving on state law, then state procedural grounds are adequate and
independent state grounds. If state procedural grounds would preclude the state courts from hearing, then the federal courts won=t address
the federal issue, either. But, if the state courts have thrown in the procedural rule to prevent cert., then the Court can hear.

STANDING: ultimately, this is about the role of the court with respect to other branches. Must always be present in litigation. Tells us if the
claim is justiciable and promotes judicial restraint. Either a defendant or court may challenge.
ART. III Considerations = injury in fact; causal connection; redressability. Prudential Requirements: Zone of Interest; 3rd Party

1. Not mere citizen standing is enough - need a sufficient stake in claim
2. Generally speaking, taxpayer standing is not sufficient, still similar to citizen standing.
 Exception to this is the double nexus exception;
     a. They have to be challenging a statute under congress= taxing and spending powers. (Whenever congress is spending money or taxing)
     b. Has to be challenging the statute as a violation of the establishment clause of the First Amendment.
     Est. Clause- Congress shall not make no law (do anything really) respecting an establishment of religion.

Start off w/ stating Who p is and that he needs art 3 standing and prudential requirements. Define each portion of law thoroughly before
Personal Stake Standing - I=m special. Need more than a generalized greivance, more than just a citizen claiming gov is acting illegal.
1) INJURY IN FACT - ----state what the injuries are on test-------
(a) Distinct/Particularized (an individual with a special interest, it=s not shared by all citizens) Needs to be narrow/small group, but Can be
large group of people , ex medicare hypo doctors who use disbursment and are economically injured                (1) No citizen standing (not
particularized; general claim to everyone) B Widely diffused harm.
      (2) Generally, no taxpayer standing. (see later exception).
(b) Concrete & Palpable (a specific type of injury: economic, constitutional rights, environmental, etc.) Stigma is not concrete. Even if a
competitive advantage is loss is concrete is enough.
(c) Actual & Imminent (the timing and occurrence of the injury are not speculative)Spiritual injury ex, any qualitative injury. Some are not
enough. Ex. Future psychological injuries. Living next to nuke plant ex. Alan v strike case
      (1) Luhan: Not enough here b/c P had ASomeday Plans@. Government funding to some project that was supposedly dangerous to
endangered species. Should have specific plans if want to claim injury in fact.
-They are distinct, - 2 specific people who were looking at a particular place.
-The injury is concrete and palpable - broad range of environmental interests, they love the animals and surrounding, earn their
living from this. But you don=t have to show economic interest to be a concrete injury.
-Fell short of actual and imminent - no actual injury, it=s not occurring now, It is not imminent because they only had someday plans, they
weren=t helping now, no actual plane tickets to help animals in the future, just someday plans.
      (2) Allen: possibility there would be no desegregation. This is shaky. Class action suit by the wrights on behalf of african american
children to stop segregation. Case about IRS not withdrawing tax exempt status from schools that promulgate segregation. Racial stigma was
not distinct enough and it was not concrete enough.
On the other hand there is a injury in fact - they are getting a lesser education
- Distinct - All black school kids that are being segregated
- Concrete - they are not getting the education others are.
- actual - yes, no money in the future
however, the injury is not traceable to the gov=s conduct so it was not justiciable.

2)CAUSAL CONNECTION: Must be FAIRLY TRACEABLE. ABUT FOR@ considerations attributable to gov=t & not TP.
(a)Want to make a chain of events, starting with the gov=t action and ending with the injury. More attenuated, then more likely that gov=t is
not the causal connection. If other interests or parties influence the direction of the chain, then also no causation.
      (1) Allen: Start with IRS giving tax exemption to schools. Then string out. Became too attenuated b/c other people were involved. Too
many 3 party choices (schools, parents, etc.)
      (2) Duke Power: [challenging the act that limited liability of nuclear accidents. Gov=t gave limited liability in order to encourage
private investment and building of nuclear reactors] Causal connection (and standing) existed because it was clear that the limited liability
was the concern for builders and investors; they would not have build Abut for@ the gov=t giving the limited liability. Also led to injury to
lakes and environment. Shorter causal chain. ASubstantial Factor@ B difference from Allen

3) REDRESSABILITY: Is there a substantial likelihood that the proposed relief would solve the problem?
(a) Causation and redressability are generally mirror images of each other. - If the injury was not actually caused by the challenged legislation
or violation of amendment, how can a ruling on the legislation or violation redress the plaintiff=s injuries. Ex- if I say the Ateachers act@ cost
me my job, and the ct finds I lost it for other reasons, missed to many classes, invalidating the act will not do me any good. I would have lost
my job anyway
      (1) Exceptions where not mirror images: (i) changed circumstances make remedy pointless & (ii) relief, if granted, may raise
special concerns with regard to the judicial role
      (2) Examples of exceptions: (i) If your relief is not to cut down redwood trees and they=re already cut down, then not redressable.
Causation is present, but if it was a one of a kind, it could not be replaced. But, if relief was $ damages, then there is still redressability. (ii)
Allen: Court did not want to become involved in on going monitoring of other government agencies.
                1. Injury in fact-distinct, residents near power plant; concrete/palpable -interference with use of river, fear/apprehension of the
effect of radio activity, small increases of water temp.
                2. Causation: but for the passage of this legislation, the power plant would not be able to maintain operation of the plant
                3. Redressability- p=s sought the act to be ruled unconstitutional.
Talk about whether th is any special monitoring required or judicial intereference, relief matches injury well, distinctions from allen, steel, or
luhan. Similarity to duke..

Prudential Standing Requirements: for ZOI look to preamble of law for its purposes. Just say that the P >s intent , correlate,
promote all the pre-amble=s purposes.
1) ZONE OF INTEREST: When you are invoking a federal statute, not needed in const issue.(all citizens are intended to be protected
by const.) If it is not, it is more disputable when it is non const, regulation.
- Is P the intended beneficiary of the STATUTE (not the regulation) they are invoking? Statute they are claiming gives them a right,
they must be in the class of beneficiaries of the statute. The focus is not on the gov law being challenged. They don=t have to be the person
like the air carrier case, but his interests are protected like the national credit union case.
- Who did Congress arguably intend to BENEFIT OR REGULATE under the source of law you=re seeking to invoke for protection?
 Beneficiary includes those intended to benefit or regulate.
A) Postal Carriers: [Postal Service relinquished monopoly of international remailings. Workers sought standing] The statute was not
intended to benefit employees, by the patrons & competitors. Thus no standing.
B) Because this is a prudential requirement, Congress can change the zone of interest by amending a statute.
C) When Constitutional provisions are at issue, then there is no problem in ZOI; all citizens are intended to be protected in that case.

 - General Rule: cannot assert the rights of another party (3rd parties are better able to bring own claims. Besides, by bringing claims of 3rd
party, the case works as res judicata).
   1) P has standing w/out 3rd party claim. Must be in lawsuit on his own. He must meet all the STANDING REQUIREMENTS (IIF,
        C, R, ZOI)
   2) Third Party must meet all STANDING REQUIREMENTS too
   3) A SPECIAL/CLOSE RELATIONSHIP between P and the 3rd Party (ABond of Trust@; Atty-Client; Doctor-Patient; H-W , jurors -
   4) Some HINDRANCE to Third Party ASSERTING THEIR OWN INTEREST. (real/unusual barrier, unable to afford costs of
litigation is not good enough) Something special is required. Roe v Wade - doc=s asserting rights of abortion patients, they would have to
admit delicate condition, embaracing circumstances around it, willingness to receive a illegal operation.
    (1) Unable to Discover the Wrong -is it hard for them to discover they are being hurt
    (2) No Effective Remedy for the Third Party
(f) Edmonson: Good ex of why 1st party wants to assert 3rd parties rights. Black P lost civil case after 3 pre-emptory challenges were used to
get blacks off the jury. Plaintiff asserted the equal protection rights of jurors. This was the only way to overturn the ruling. AWe conclude
that courts must entertain a challenge to a private litigant=s racial discrimination use of preemptory challenges in a civil trial.@
     (1) Discovery of the Wrong: Jurors wouldn=t have known of discrimination (don=t know other jurors kicked off); not enough
     (2) No Effective Remedy: there is no C/A for the jurors. Ct. accepts this.
Another ex of special hindrance to party -Procedural Hindrance - Before modern civil rights, whites would place Arestrictive
covenants@ not to sell property to blacks. But because only contracting parties could bring the action(this is a procedural hindrance) ct let
white seller assert the buyers const rights against race discrimination to dispute the covenant.
Or there is a privacy concern, doctors asserting rights of patients in abortion rights of their pregnant patients. Before roe v wade they would
have to divulge their pregnancy and willingness to have the operation.
Here=s test
1st party must have standing
3rd party has standing on there own(could bring the claim alone)
Special relationship b/w the 2 parties and there is some unusual hindrance to 3 rd party bringing it themselves.
-Parents asserting the right of children - not a 3rd party standing question. They can assert the interest of the children

6) ASSOCIATIONAL STANDING: (unusual Third Party standing)
(a) Associations always have standing for their own interests. (AMA = interests regarding their business, contracts, property)
(b) Association has this special right to seek to represent the interests of its members.
(C) Only elements necessary to fulfill for standing: their actual presence is not needed.
    (i) One or more members would otherwise have standing to sue for their own rights.
    (ii) The interests the organization seeks to protect are germane to the organization=s purpose.
   (iii)Neither the claim asserted, nor the relief requested, requires that the individual members be part of the suit. (a) Injunctions are
OK; but (b) $ damages require members to participate
Washington Apples opposes N.C law that they could not sell their apples w/out FDA approval. They are in Washington St. Apple
commission, a state required group. W.A.C. brings suit and NC tried to say they didn=t have assoc. standing b/c it was a forced gov. group
and membership was not voluntary. They did, ct said above ii. They had a distinct economic injury that was happening now, it was
redressable, germane to purpose, and was only seeking an injunction.
Nature of relief determines who can bring the suit, see above and this example.

7) TAXPAYER STANDING: (a substitute for private party standing; so, do not go through the other elements)no causation
(a) General Rule: No Taxpayer standing (too much like citizen standing)
    (I) Must be challenging a Congressional Enactment or statute, and not the administrative action passed pursuant to the statute,
related to Congresses TAX & SPENDING POWER
    (ii) Violates the ESTABLISHMENT CLAUSE (supporting or establishing a particular religion). May not be about any other part
of the Constitution. Example: giving $ (tax & spending power) to religious school or funds to Christian organizations on campus.
(c)Valley Forge: Donation of land to a Christian college by federal agency administrator. S.CT. said no taxpayer standing since Congress
did not give $.
(d)Gov=t hides CIA $ from its budget. Taxpayer trying to get it disclosed argues that provision in Constitution says Congress must allocate
funds first. S.CT. disagreed. (shows that the Court has not been willing to extend this standing to anything but the Establishment Clause.

MOOTNESS & RIPENESS: No longer a live controversy b/w parties/ declining to hear a case because of its timing (No Case or

1.Mootness (too late): The is no longer an active adversity between the parties:
  (1) Injury has ceased (Passing of Time or D has stopped illegal behavior;
  (2) Law has changed;
  (3) D pays P/ Wrongful behavior has ceased.
(a) Collateral Consequences: things that still remain outstanding in the suit, like damages (backpay, reputation, voting rights, etc
(i) Powell v. McCormick: House refused to seat him after he won his election. Collateral Consequence = backpay
(ii) Example from Crim Law: sent to prison unlawfully. May be moot if you were released, yet still an injury (Reputation, unable to vote,
unable to get driver=s license, etc.)

(b) Repetitive Possibility: (1) Capable of Repetition, (2) Yet Evasive of Review B
     - may repeat with respect to this plaintiff and
     - the nature of the injury results in time factor imitations. Therefore not moot.

(c) Sham Mootness: D has voluntarily ceased activity and is likely to repeat it (tactic to avoid litigation) Passage of time can take you out of
(d) Hypo: Girl withheld from school b/c she=s pregnant (not allowed to be prego and attend). Has baby and goes back to school. Arguments:
Primary injury has ceased (then moot). But, collateral consequences (lack of education ask for injunctive or declaratory relief). Possibility of

(1)Class Action: by bringing a class action then someone in the group will likely still have the necessary damage and thus create a continued
likelihood of having a live controversy.

(e) Arizona For Official English v. AZ: Bilingual precluded at work (gov=t). She left her job before trial. Ongoing injury and she asked for
all other just damages (assumes this includes nominal damages). What about reasonable likelihood of repetition? (she could go back to
work). But, still would not evade review. Lawsuit could be brought up again & would not evade review. (Must have both prongs)

2. Ripeness (not yet ready): Insufficient action by the government agency and/or P so that the court could resolve
(a) Until the controversy become Concrete & Focused, it is difficult to evaluate the merits
(b) Example: facial challenge to a new statute. Question remains as to how it will even be applied. Matter of Prudential Decision and
Judicial Restraint.

REMEMBER TO CONCLUDE!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

POLITICAL QUESTION: Inappropriate issue, the ct would be deciding pure Apolitical question@ Hence the ct must leave the resolution
to other departments of government
1. Text of Constitution can commit final decision making authority to Another Branch of Government, textually demonstrative
(a) Nixon v. U.S.: Bad judge case. Full Senate did not hear the impeachment (committee heard and then made suggestion to the Senate).
Non-justiciable: Art. III, '6: Senate has sole power over trials and impeachment. He wanted a formal trial instead of senate trying.
2. Lack of AJudicially Discoverable & Manageable Standards (In their role as judges, can they discover the issue without exercising
POLITICAL judgment?)Judicial role? Can they discover and manage legal standards or do they have to step over the line and do what an
elected official usually do. Does the relevant constitutional provision set out criteria to assess plaintiff=s claim.
(a) Nixon v. U.S.: Court would have to exercise political judgment to interpret Atry.@ Impeaching is a political judgment.
(b) Baker v carr - Reapportionment of Voting Districts: urban voters had less impact & Avoting dilution@ was claimed. Ct. said there is no
Constitutional standard. Would require exercise of political/philosophical judgment. Also siad that the court could not proceed under equal
protection, but instead would have to proceed under Arepublican form of government.@ What is a republican form of government? No on
knows and it would be a political/philosophical question.
(c)Immigration: Failure to protect the U.S.? Who knows, this is not a judicial question with standards.
3.Hot Potato Doctrine - until Pres decides which gov is the governor of monroe, we don=t have anything to operate on.
(a)Impossible for court to decide the case until another branch makes an initial decision
(i) Would be disrespectful to the other branches to independently resolve
(ii) There are times when a branch has made a decision and it is best for the other branches of government to align behind the first branch in
support. (Wartime, Foreign Affairs)

          STATE ACTION
                 Constitution generally doesn=t apply to private actors.
          1. We look to see if the activity is Asourced@ in government authority. Is the private party acting under a right, prerogative, or
          general legal framework created by the government. (Statute, law, common law, regulations). This is usually met.
          2. If so, is it fair to treat actions of private party as though they are actions of the government? Fact based, case by case
                 FAIRNESS TESTS:
                            Categories of gov involvement in private party=s activities:
                            1. Must be more than mere acquiescence or allowing- this will obliterate any distinction
                   i. Public Utilities v Pollack: sought to apply 1st amend against bus co. playing music for the benefit of
                        passengers. Ct found commissions regulatory involvement sufficient.
                  ii. Jackson v Metro Edison: wanted private utility procedures to terminate services to nonpaying customers to be
                       subject to due process. No state actor even though they were subj to extensive state regulation and the state
                      had approved it=s cutoff procedures.
              2. Is the assistance significant and overt?
                    i. Gov. Funding is not enough.(Rendell-Baker: where private school got 90% of gov=t funding)
                   ii. Heavy gov=t regulation is not enough (Moose lodge - licenses, Jackson- monopolies)
                   iii True gov co-participation is enough, Ajoint participation@ - (Hanlon- CNN and gov agents search ranch
                         and they have agreement ALSO Lugar - debtor seizure is state action b/c clerk of ct issues writ and sheriff
                  iv. But compare that to Flagg bro=s - warehouse seizure was not st action just b/c sate just announced the
                        circumstances they would not interfere with private sale.
                   iv. If gov=t commands, compels or coerces activity, it must be treated as state action
                   v. Secretly always affected by the merits of case.
              3. Extent to which benefits and assistance flow from gov. to private party?
                 - Mutually flowing relationships -joint enterprises. We want.
                    i. Burton v Willmington Parking -no blacks can eat here. Found st action b/c it was in gov building. Plus rent
                        money from restaurant allowed construction project to go forward; rest gets customer base, tax exempt
                        improvements, easy parking. The benefits go both ways.

             1. Marsh v Alabama- company town - provides fire dept, police etc.. this is traditionally for municipalities This is
               1. Is the function traditionally associated with government?
              2. (The deal breaker usually) The function must be exclusively associated with the government.
                        i. Running elections , fixing qualifications for voting(excluding blacks), is gov function..
                      ii. School is not, Electric Co. is not.
                     iii. Running juries, finding the truth, guarding rights of litigants, is gov function.

         - The complainant=s injury is at the hands of a private party can be@aggravated in a unique way by gov presence.@
        - The injury caused by the discrimination is made more severe b/c the gov. lets it occur in the courthouse.
Ex. Of tests:
               1. Edmundson - (majority/macro view)
                  A. Right/privilege have its sources in state authority: yes, legislative authority for pre-emptive strikes.
                  B. Governmental assistance: gov administers jury system, statutes for jury service, judge directs voir dire, actually
                     dismisses struck jurors.
                  C. Traditional Public Function - fact-finder jury provides verdict, turns into judgment, Selection of juror
               represents gov function delegated to private litigants.
                  D. Unique Aggravation- something about discrimination happening in ct house.

-Purpose is to prevent individual states from erecting trade barriers to interstate/foreign trade, and to promote the economic agenda.
-Gov. must act under there enumerated powers from the constitution. -Promoting domestic tranquility is not enough, state
gov=s failing to adequately handle problems such as civil rights, environment cleanup, nope,
- Powers are in Art. 1, sect 8, tax, spend, reg interstate comm, raise and support an army, these are given to congress. Case and
controversy for fed courts,
--------------Check this if congress is creating a law using a const. Enumerated power.----------------------------
McCulloch- A implied powers@ Was it const. for fed gov to set up national bank? Marshall said no express language, but he said
frames intended that fed gov is not limited to the letter of express powers. (They can est postoffice, but not staff it, maintain it)But
how far?
-Held Fed gov can 1. A. Exercise its enumerated powers and B. assert any implied power that is Aappropriate and plainly
adapted@ toward achieving at least one enumerated power . 2. As long as it is not otherwise unconstitutional.
The national bank was a appropriate and plainly adapted means of achieving many enumerated means, laying and collecting taxes,
raising armed forces.
- This is used for examining many fed powers questions! (Bank employee=s must undergo training for counterfeit, ok, plainly
adapted under power to punish counterfeiters.)

INTERSTATE COMMERCE REGULATION POWER. Comes from congress= enumerated power to regulate commerce.
1.PLENARY POWER- Express authority for direct regulation of transactions happening Ain@ interstate commerce.
   A. Examples: transportation of goods, telephone and mail, roadways, carriers. Any Ainstrumentality of commerce
   B. US v Darby -law prohibiting the shipment of goods made by employee=s being payed under minimum wage.
   C. Gibbons - regulation can be affirmative-requiring you to do something, or negative- not allowing a behavior.
   D. Champion -not allow one to travel to another state to get an abortion. No, this violates due process in const.

     A. Scenario 1: Fed gov as part of, and in furtherance of, its direct regulation of interstate commerce seeks to regulate local
    activities. This is basically using the McCulloch test. -Means for fulfilling the enumerated power of reg. or protecting Interstate

       B. Scenario 2: Even though congress doesn=t have express authority, it can do so where the local activity has a
   ASUBSTANTIAL EFFECT@ on interstate commerce.
       1. Is the activity economic AND Congress has a Arational basis@ for believing activity has a substantial effect on interstate
       2. Activity is part of a broader economic enterprise AND congress has a Arational basis@ for believing activity has a
substantial             effect on interstate commerce.
       3. Is it an Integral part of overall scheme of governmental regulation
- rational basis- they can rely on evidence it receives in public hearings or can make formal findings
       A. NLRB v Jones & Laughlin Steel: NLRA is constitutional because strikes affected/burdened flow of commerce. This
           particular business had substantial manufacturing/shipping/delivery business- on its own, the effects of strikes on
commerce                 was substantial. Purpose of Act was to@eliminate obstructions to free flow of commerce. Here although the
local activity did             not itself have a substantial effect, if the whole class of aggregated activities is substantial, this is
      B. Wickard v. Filburn: challenge to limit of wheat upheld. Aggregate of all farmer production creates substantial effect on
            economy. Wickards own contribution to demand may be small, but with many other farmers doing the same it wouldn=t.
       C. Heart of Atlanta -Racial discrimination decreases travel, and travel related spending. This case also ct doesn=t have to base
           decision on formal findings of fact for substantial. effect.

4. Substantial effect test is not available when Lopez situations come up!
LOPEZ and regulating local activity- Fed crime to knowingly bring guns in school zone.
      1. This is a criminal statute and has nothing to do with commerce or a larger economic enterprise.
      2. This is not an essential part of a larger regulation of economic activity in which the reg. scheme would be undercut.
      -In other words, congress is just punishing physical act with out any reference to interstate commerce.
      - This might mean congress can regulate a local activity that aren=t themselves Acommercial@ as long as they are a integral
part of a scheme of regulating localized economic activities(such as record keeping about sales or physical movement of goods
      3. Area is associated with state authority.
      4. No sufficient evidentiary finding in a case by case basis , that firearm possession would affect I.C.

In Sum: What=s Clear
LOPEZ DOES NOT APPLY when congress is regulating clearly economic activities:
1. Congress may regulate the use of channels of interstate commerce
2. They may regulate the instrumentalities of interstate commerce
3. Activities that have a substantial affect on I.C. (local)

Lopez limitation clearly applies when: only local activities
1. Congress is not regulating economic activities.
2. No jurisdictional nexus. If this is met, the others don=t matter. This is clear.
      Even if the regulated activity is not a part of a larger economic regulation, if there is a jurisdictional nexus, cong can regulate.
      1. Is statute written to require prosecutor to show the interstate commerce element.
         Ex. Possessing a gun that was purchased in interstate commerce within 100 ft of school.
3. Traditional Area of State Power, it is historically associated w/ state sovereignty : O=connor and Kennedy talk about this in
concurrence. Education and crime prevention are traditional state functions.
4. Needs more than rational basis for the evidence. Congress needs some real evidence. This is clear also.
6. Real prob=s with determining what is economic(arson? Interfering with abortion?)
5. State sovereignty prob- Germ warfare, is it merely a type dangerous weapon states regulate, or international terrorism.
Lopez seems to suggest answers if jurisdictional nexus is included, requiring a specific case by case determination that the
activity affects I.C.

Situations when Lopez decision simply fails to give any indication, when some, but not all, of the Lopez prob=s are present

DORMANT COMMERCE CLAUSE -Fed laws are inconsistent with State laws
Gives congress authority to review and invalidate state laws that either 1. discriminate against interstate commerce or 2. unduly
burden interstate commerce. We are saying the state law is a violation of the Fed Comm Clause.
-Dormant implied power to limit what state gov=s can do. To stop state against state commercial rivalries.
        a. State law is facially discriminatory. (No out of state garbage- Phili v N.J) Consequences raise price, taking away national
             competition, gives in state advantage.
        b. Facially neutral, but state law advantages in-state interests to the detriment of out-of state interests. (Hunt v Washington
           - Apple Growers - only use fed standard apples, but this has discriminatory effect.
               1. Will net in -state gain result. The ct concentrates on in-state advantage. As opposed to out of state disadvantages. If
                  the first is lacking, the second will not tip the balance toward discrimination.
               2. Level playing field.
          A. The law fulfills a legitimate state interest(other than protecting your state, making it better than others) and
          B. There is no other reasonable non-discriminatory alternatives, ways of achieving.
     EX. Maine v Taylor- ct upheld maine statute that prohibited importing live bait fish from N.J. Purpose - poisoned fish, mess
        up eco system. No other way - but keeping out the fish.
               Or use
B.   1. THE LAW UNDULY BURDENS INTERSTATE COMMERCE: Helps in-state, hurts out of state
       - Burdens on interstate commerce are Aclearly excessive@ compared to extent of Local valid benefits (environment,
            health. Ex. Emission standards on cali cars. It burdens out of staters but gives no in state gain. Doesn=t burden
                       a. Minn v Creamery - prohibited sale of milk in plastic cartons. Out of state milkers dispute. Hard to even
                            see wether the burden is out of state or in state. Hurts both. Plants usually use both.
                       b. Castle - No monster trucks for shipping. Every one else allows them. Isn=t facially discriminatory but felt
                         more out of state but still doesn=t show that it helps in-staters and hurts out of staters so we presume it
                       valid. Here burden did outweigh b/c there were no benefits really. Burden is huge on truckers. They would
                       need diff trucks or have to drive around state.

PREEMPTION - State law is inconsistent with Fed law so it is preempted under the Supremacy Clause.
IMPLIED FIELD: Ct says st kids are kept out of this field. Carving out a field of regulations that are for federal law only. No state
laws can come in.
     1. When federal scheme regulates all aspects@pervasively regulatory scheme@ ex nuclear plants,
     2. Dominant Federal Interest- Immigration, War, v Police power
     3. Special need for uniformity. Ex. Preempted field for airport landing safety. We can=t have diff color lights on runways
           meaning the same thing.

IMPLIED CONFLICT: Ct says Fed and St can play, unless they start fighting.
    1. Physically impossible to comply Fed law says X, State law says can=t do X. Obviously preempted.
    2. State law frustrates the purpose or the achievement of the Fed Law. -Fed law doesn=t regulate energy co.=s. State law does.

TAXING AND SPENDING POWER - Inherent in the power to tax, is the power to spend.
     When federal gov puts a condition on states receipt of federal funds, it must:
      1. Spending is consistent with the general welfare- defer to congress, this is almost always met
      2. Condition is clearly stated. (Congress can not be vague/ambiguous about its intent to condition spending)
      3. Condition is related to the federal interest in national projects and programs.
      4. Not otherwise unconstitutional.
Ex South Dakota v Dole - condition on receipt of federal highway funding - if you don=t raise your drinking age to 21.
     1. Spending consistent with general welfare: improving highways, safety,
     2. Condition is clearly stated
     3. Condition related to the federal interest: increasing drinking ages reduces accidents, improves highway safety, under-agers
       from across the state lines use highways to get alcohol, might drink while they drive.
     4. Not otherwise unconstitutional: possible conflict w/ 21st amend. Power of states to regulate drinking. Here fed gov is just
      encouraging state to change age, -really here, they were only withholding 5 % of funding, this is not legally coercive.

War powers - Congress has power to regulate a current condition which war Ahas a direct an immediate cause.@ This is one
instance where they have developed an alternative test to McCullogh.
      Woods v Cloyd Miller- Congress has a power to impose rent controls at the end of WW II - inherent in war power to wind
down the war.

Powers and Limits of Congress to Enforce 14th amendment _ 5
1. Congress cannot define substantive reach of constitutional rights.
2. Congress can provide a remedy for violations of existing standards, so long as remedy is Acongruent and proportional@- it
must fit the problem. Has a strong connection between the problem and the solution. City of Boerne- no evidence of vast violations
of religious freedom. Another specific test
3. Katzenbach -at its strongest, effectively overruled by Boerne . Could define substantive rights and enforce those rights. A
Congress might have a rational and perceived basis.@

Protections of State Sovereignty
Before 1977 no special protection of state and local governments.
J. Rehnquist raised the bar under the 10th amend. He says they do deserve special protections. He came up with 3 part test that was
overruled in Garcia. 1986, said his test was chaotic, We return to the world of no special powers. They don=t need them.
- Framers did not intend this, the framers wanted normal politics to protect the states.
- Senate can protect. House Reps can.
N.Y. v U.S. - rule that although the states draws a line between practical coercion, fed laws that practically coerce state gov=s and
those that legally coerce, ex. Commandeering. Fed gov tries to commandeer the state legislation. This is unconstitutional.
  - Here they were giving NY a choice but feds didn=t have right to do either of them. The choice that was offered regulate
according to fed standards or take title to the private radioactive waste in your state. Taking title means they are liable. This is
coercion, it looks like a choice, but it=s not.
- Congress can pass a fed law that applies throughout the nation except a individual state may adopt it=s own law that meets federal
standards. This is fine. Fine for fed gov to threaten states with a law to get them to do implement one of there own.
   - rather deal with state then feds
Prince - about the brady bill, gun bill that provided for background checks. Fed gov wanted the states, local law enforcement to
implement. The law said locals shall ... That crossed the line of legal coercion. Ct majority said you can=t order the states to use
there enforcement power in a certain way. Only fair to hold states accountable if they have the option to enforce.

SEPARATIONS OF POWERS: allocation of const. power b/w 3 branches of government.
Separate these and have checks and balances and make them work together.
Framers have said it is very important to regulate the lines between, jud, legisl.
FORMALISTIC - focus on the formalities of the manner in which the const distributes powers. In determining whether there has
been a violation of the const - mandated separation of powers, they would look to see if there had been any(mere presence) of
erosion, not the degree of erosion. They are not impressed with arguments about the desirability or efficiency of new innovations in
const power divisions
PRAGMATIC - focus on the practicalities of ensuring the federal gov can work. Says the 3 branches are not sealed off from each
other and that there must be a fair amount of cooperation among them to exercise there enumerated powers. They will distinguish
from appropriate and inappropriate blurring of boundaries. They think the framers intended future generations to supplement and
adapt to new exigencies.

YOUNGSTOWN- strike in the steel industry during Korean war. He said it threatened national security b/c no weapons for war.
President orders the seizure of steel mills by fed gov. Majority
Formalist=s - strictly implying powers. 2 ways that pres can get authority to do stuff, 1, as congress= delegate. He steps in their
shoes. Is he ordering the seizure of steel mills using this power. No. They actually defeated his opportunity 2. He also has art. 2
powers, for ex he has power of commander and chief. To much power to let him do things inside the country. This would turn him
into a dictator. He then said he had power to faithfully execute the laws of United states. Ct says this power doesn=t work.

Prags- gov has to function, they have to work together. If it is systematic he is acting out of the ordinary. But , says that congress
has always approved this