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Sarah Graff's Con Law Outline

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Sarah Graff's Con Law Outline Powered By Docstoc
					Constitutional Law I

Fall 2004

Durden

FCSL

Sarah Graff

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The Role of the Courts in Constitutional Interpretation i. Is primarily the study of judicial interpretation of the U.S. Constitution. ii. This is a study of FEDERAL Con. Law (however, each state has it’s own which constrain state governments). iii. Federal Con. Law is more important than state law – state law cannot trump it. b. Judicial Review and Constitutional Structure i. The origins and theory of judicial review 1. The process by which ct.s decide whether actions of gov.t officials comply with the Constitution. 2. Serves to ensure that gov.t acts in accordance w/ the constitution. 3. Supreme ct. is final – subject to judicial review. 4. American History 101a. Rebellion came in the 1770’s and the colonists united for the common purpose of securing independence from Great Britain. b. The goal was to establish 13 independent nations acting as allies in a common rebellion. c. This produced the Articles of Confederation – the first American constitution. i. Adopted by the continental congress in 1777 – fully ratified by 1781. ii. States were not cooperating and were creating ex post facto laws and confiscating property – abusing their power. 1. Huge import-export fees etc. d. Philadelphia Convention of 1787 i. Created 3 branches of gov.t with overlapping and checking powers. ii. Reversed the usual presumption that gov.ts possessed all powers except those specifically denied. iii. New gov.t given few specifically enumerated powers (but important). iv. Unless the Fed. Gov.t could find authority for its acts in the Constitution; it had no authority to act. v. States were presumed to have the power to act unless denied by the Constitution, federal law, or the relevant state constitution. vi. Senators and President not elected directly by the people - Electoral college selects the President and senators were chosen by state legislatures. (Looking for wisest and best people of society) vii. Sept. 1787 – Constitution submitted to the states for ratification. (Opponents called antifederalists) 1. Federalists prevailed – by June 1788 nine states had ratified the Constitution. (Although some demanded a Bill of Rights be added) e. 1789 – First Congress took Office – George Washington was president – by May, all states had ratified the Constitution. i. Era of Federal Constitutional Law begins. ii. First congress went to work on drafting the first Bill of Rights. (Small victory for antifederalists and federalists alike) 5. The Establishment of Judiciary Review a. Federalists: i. Committed to a strong national gov.t. ii. Under Washington and Adams – took steps to strengthen national authority in defense, finance and trade. b. Anti-federalists: i. Mostly agrarian and Southern ii. Known as Democratic – Republicans (today ―Democrats‖) iii. Thomas Jefferson (Washington’s secretary of State) was head of the Democratic – Republicans. iv. James Madison then worked under Jefferson. v. When Jefferson was elected as president in 1800 – Democrat – Republican victory! 1. They did not want to abolish the federal courts – just control and confine them. 6. Marbury v. Madison 5 U.S. (1 Cranch) 137 (1803) Justice Marshall Presiding a. F: Marbury filed suit against Madison (Jefferson’s sec. Of state) in the Sup. Ct. seeking a writ of mandamus to compel Madison to give Marbury his commission as a justice of the Peace. John Adams issued the commission and it had the seal of the U.S. affixed to it, however, the commission never reached Marbury. b. I: i. #1) Has Marbury a right to the commission he demands?

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R: When a commission has been signed by the president, and an appointment has been made, it is complete when the seal of the U.S. has been affixed to it by the Sec. Of State. ii. #2) If Marbury does have a right to it – and his rights have been violated – Is there a law that provides a remedy? 1. R: It is violative of a vested legal right. ―Where there is a legal right, there is also a legal remedy by suit or action at law whenever that right is invaded.‖ Pg. 8 (Lost patent example Pg. 9) a. ―The President has the political power to appoint and nominate officers at his own discretion. When he does he exercises his whole power and his discretion has been applied to the specific case. Unless the officer is removed at the will of the President – the rights he has acquired are protected by the law and cannot be extinguished by executive authority.‖ Pg. 10 b. Marbury has a right to the commission – there has been a violation of that right and the laws of this country DO afford him a remedy. iii. #3) If he does have a remedy – is the writ of mandamus to be issued? 1. In order to have the writ issued, Marbury must have no other legal remedy available to him. 2. R: ―The act to establish the judicial courts of the U.S. authorizes the Sup. Ct. to issue writs of mandamus in cases warranted by the principals and usages of law, to any courts appointed, or persons holding office, under the authority of the U.S.‖ Pg. 11 a. The secretary of state qualifies under this RULE. 3. R: To enable this court then to issue a writ of mandamus, it must be shown to be an exercise of App. Jurisdiction, or to be necessary to enable them to exercise App. jurisdiction. Pg. 13 a. “To issue a writ to an officer for the delivery of a paper, is in effect the same as to sustain an original action for that paper, and therefore seems not to belong to appellate, but to original jurisdiction.” Pg. 13 4. H: There was a specific duty assigned by the law—to deliver the commission— and that duty was not performed. Therefore, the person whose rights were violated by the omission of the duty has the right to seek relief in the law (e.g. sue). The court does have the right to issue mandamus to persons holding office, and certainly the secretary of state would be such a person, but the law prohibits the court from authorizing such a writ and therefore since the law is in conflict with the constitution, the law is void. If both the law and the constitution apply to a particular case, the court must determine whether the law or the constitution should be upheld, therefore granting the court judicial review. (This is of the very essence of judicial duty) Pg. 14 5. A law (Judiciary Act Section 13) repugnant to the constitution is void and courts are bound by the constitution. The law must be changed (―discharged‖). 6. Marbury can sue under the writ of mandamus? 7. Lower ct. found for Madison? Marshall’s Justifications for Judicial Review: a. There are 4 textual arguments and one structural argument in support of judicial review: i. Structural Implications from a Written Constitution – a written constitution is meaningless if congress could ignore it at its pleasure. ii. Article III’s grant of judicial power over cases arising under the Constitution – A case does not arise under the constitution unless the constitution gives the courts the power of judicial review. iii. Constitutional provisions specially directed to courts – Ex; convictions for treason must be followed by at least 2 witnesses. iv. The supremacy clause – Art. IV clause 2 – Gives state judges the power to review the substantive validity of federal laws. v. Judge’s Oath – Article IV – Judges would violate this oath if they upheld unconstitutional laws. Additional Arguments Justice Marshall could have made: a. Precedent… Pg. 19 b. The Framer’s Intentions – Possibly assumed that judicial review was a sufficiently obvious attribute of courts that it was unnecessary to state it explicitly.

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The Federalist (newspaper) written by Madison, Hamilton and Jay under the pseudonym ―Publius‖ a. Publius #78 (Hamilton’s view of discretionary review) i. ―No legislative act therefore contrary to the constitution can be valid. To deny this would be to affirm that the representatives of the people are superior to the people themselves…‖ Pg. 20 ii. Constitution = fundamental law! b. Judges ought to regulate their decisions by the fundamental laws, rather than those which are not fundamental. 10. Judicial Review – Obligatory or Discretionary? a. Justice Marshall – obligatory (must consider jurisdiction) b. Justice Brandeis – discretionary (read statutes to avoid constitutional issues) 11. Cooper v. Aaron 358 U.S. 1 (1958) a. PH: The Dist. Ct. granted the delay in favor of Faubus, and the App. Ct. reversed and the Sup. Ct. affirmed (against Faubus). b. F: Governor Faubus of Little Rock, AR asserts that they do not have to follow Brown v. Board b/c they were not a party to the case. c. R: Interpretation of the 14th amendment enunciated by this court in the Brown case is the supreme law of the land and Art. IV of the Constitution makes it of binding effect on the states. i. So it’s the use of the Constitution in the holding of the Brown case that sets the precedent in this case. The Power to Review State Court Judgments 1. Martin v. Hunter’s Lessee – The U.S. Sup. Ct. has absolute appellate power under the constitution. a. PH: The Tr. Ct. found for Martin. The Ct. of App. reversed in favor of Hunter. Sup Ct. found for Martin. b. F: Fairfax left a piece of property to Martin after he died in 1781. However, Virginia claimed the property (since 2777) and gave it to David Hunter in 1789. c. I: Whether the U.S. Supreme Ct. has absolute appellate power under the U.S. Constitution over state courts? i. Virginian’s Arguments: separate sovereignties and congressional obligation to secure uniformity of federal law. ii. Justice Story’s Arguments: Article III, The Supremacy Clause, The need for uniformity. d. R: Art. III of the Constitution / Judiciary Act of 1789 §25 i. ―This constitution and the laws of the U.S. which shall be made in pursuance thereof and all treaties made or which shall be made under the authority of the U.S. shall be the supreme law of the land and the judges in every state shall be bound thereby… any thing in the constitution or laws of any state to the contrary notwithstanding.‖ Pg. 29 ii. ―The judicial power shall extend to ALL cases.‖ e. H: The appellate power of the U.S. Supreme court does extend to cases pending in the state courts and the 25th section of the Judiciary Act authorizes the exercise of this jurisdiction in the specified cases, by writ of error, is supported by the letter and spirit of the constitution. f. Reversed the Ct. of App. and found for Martin. The Adequate and Independent State Grounds Doctrine 1. Michigan v. Long a. PH: The Sup. Ct. of Michigan found for the D. This court granted certiorari and reversed. b. F: During a routine traffic stop police found a large quantity of marijuana in D’s car. D claims that the search was a violation of the Fourth Amendment’s ban on unreasonable searches and seizures and also a violation of the Michigan Constitution’s similar clause. Long also argues that the Federal court does not have jurisdiction to decide this case because the decision below rests on adequate and independent state ground. i. Doctrine of adequate and independent state grounds: The Sup. Ct. may only hear a state case if it involves correcting the way that federal law has been applied. If the case has been decided on adequate and independent state grounds, the Sup. Ct. won’t hear it b/c the outcome would end up being the same anyway. Without it, the Sup. Ct. has jurisdiction. c. I: Whether the Mich. Sup. Ct. ruling is adequate and independent of federal law? i. P argues: The state of Michigan exceeded the bounds of the constitution (federal law) which ended up providing the basis for their decision in favor of the D. ii. D argues: Michigan simply provided him greater protection than federal law and the Sup. Ct should only correct wrong judgments. d. R: Only if a state’s highest court has concluded that the challenged state law or practice is valid under the state constitution would it be necessary to also decide the issue of it’s validity under the federal Constitution. Then it is susceptible to review by the Sup. Ct. 9.

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e. H: The state Sup. Ct. was not adequate and independent of Federal Law. The Utility of Judicial Review i. The Counter Majoritarian Role – Constitutional liberties extend to everyone – minorities included. (against judicial review) ii. Avoiding the Counter-Majoritiarian Problem iii. Stability – if one branch were not the final say – there would never be a single interpretation of the Constitution. (for judicial review) iv. Entrenched Error – makes it very difficult to correct mistaken interpretations of the Constitution. (against judicial review) v. Erosion of Constitutional Responsibility by the Political Branches f. Methods of Constitutional Interpretation i. Interpretation of Imagination? a. Noninterpretivists – claim that we should not even attempt to figure out what the text of the Constitution means – instead, we should make it a mirror of our present sense of fundamental justice. b. Interpretivists – insist that the only legitimate form of judicial review is interpretation of the written text of the Constitution. 2. Calder v. Bull a. F: Connecticut’s legislature set aside a probate court decision refusing to approve a will by enacting a law that required a new hearing. The will was approved at the second hearing. The heirs who would have taken the assets had the will not become effective, challenged the Connecticut law as an ex post facto law. The court rejected that claim, finding that the ex post facto clause only applied to criminal laws. b. Justice Chase → Interpretivist c. Justice Iredell → Noninterpretivist ii. The Textual Method – First look to the text of the Constitution. iii. Historical Argument – a. Originalism: 2 types i. To divine the original intent of the drafters of the Constitution OR ii. Focus on the original meaning of it’s text. 2. Original intent – an attempt to discover the authorial intent behind any constitutional provision. 3. Original meaning – attempt to determine what the text meant at the time it was adopted. 4. The vectors of history iv. Structural Arguments – claims that a particular principle or practical result is implicit in the structures of government and the relationships that are created by the Constitution among citizens and governments. v. Doctrinal Arguments – asserts principles derived from precedent – stare Decisis – weak, b/c it is hard to fix Constitutional decisions of the Sup. Ct. vi. Prudential Arguments – advancing particular doctrines according to the practical wisdom of using the courts in a particular way. vii. Cultural Arguments – widely shared cultural norms – used in conjunction with other forms of constitutional argument… can be very persuasive. (Brown v. Board) g. The Uneven Nature of Judicial Review: Tiered Review and the Unequal Status of Constitutional Claims i. Courts use 3 levels of review: 1. Minimal Scrutiny: Ct.s begin with the presumption that statutes and other government actions are valid. Unless there is some reason to doubt that presumption, the challenger has the burden of proving that the law, regulation or executive act is not rationally related to a legitimate government objective. (weak basis for review) 2. Strict Scrutiny: This std. Applied to suspect classifications (such as race) in equal protection analysis and to fundamental rights (like voting) in due-process analysis. Under strict scrutiny – the state must establish that it has a compelling interest that justifies and necessitates the law in question. 3. Intermediate Scrutiny: A standard lying between the extremes of rational-basis review and strict scrutiny. Under the std. If a statute contains a quasi-suspect classification (such as gender) the classification must be substantially related to the achievement of an important governmental objective. Chapter 2 Doctrines Limiting the Scope of Judicial Review a. Direct Political Controls: Amendments, Appointment, and Impeachment i. Amendment 1. Noncontemporaneous Ratification 2. Convention Calls Rescission before Ratification 3. Unconstitutional Amendments ii. Appointment iii. Impeachment b. Congressional Power to Control the Jurisdiction of the Federal Courts e.

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i. Power to Establish Federal Courts ii. Exceptions to and Regulations of Supreme Court Appellate Jurisdiction 1. Ex Parte McCardle a. PH: Appeal from Circuit Court to Supreme Court b. F: McGardle, a newspaper editor, was imprisoned in a military jail for publication of articles alleged to be incendiary and libellous. An act was passed by Congress and signed by the President amending the establishment of judicial courts (jurisdiction). c. I: If the appellate jurisdiction of the courts is derived from the Constitution 1789, then can Congress pass acts to further expand or limit that jurisdiction? d. R: The Constitution established the judicial courts, and their organization, which conferred their power/authority. ―with such exceptions and under such regulations as Congress shall make.‖ e. H: The legislature has the express authority under the Constitution to make exceptions to the appellate jurisdiction. Therefore the court no longer has appellate jurisdiction to hear petitioner’s cause of action. The provision of 1867 pertaining to habeas corpus was repealed by the Act of 1868. The 1868 Act only limits appeals of habeas corpus from Circuit Courts under the 1867 Act. 2. External Limits on Congressional Power to Curtail the Supreme Court’s Appellate Jurisdiction 3. Internal Limits on Congressional Power to Curtail the Supreme Court’s Appellate Jurisdiction Limitations on Congressional Control of the Jurisdiction of Inferior Federal Courts i. The Mandatory Federal Jurisdiction Position ii. The Discretionary Position iii. The Irrelevance of Motive Limitations on the Congressional Power to Curtail the Jurisdiction of ALL federal Courts 1. U.S. v. Klein a. PH: Defendant, the United States, appealed judgment from the Court of Claims which awarded the proceeds of deceased's cotton, which was abandoned to the treasury agents of the United States during the Civil War, to plaintiff, deceased's administrator. b. F: Deceased had done acts considered to be acts in aid of the rebellion during the Civil War. He had abandoned cotton to agents of the Treasury Department, who sold it and placed the proceeds into the Treasury of the United States. After the war, the deceased took an amnesty oath which would afford him a pardon and the restoration of his property pursuant to a congressional provision. The Court of Claims pronounced him entitled to a judgment for the net proceeds in the treasury and, subsequently, the United States appealed. On appeal, the Court affirmed, holding that title to the proceeds of the property which came to the possession of the government by capture or abandonment was in no case divested out of the original owner. c. I: d. R: The Court concluded that (1) the congressional provision improperly denied the Court appellate jurisdiction regarding decisions by the Court of Claims based on such pardons and (2) the congressional provision infringed the President's constitutional power to grant pardons. e. H: The Court affirmed the decision to award the administrator the proceeds of deceased's cotton. Justiceability: The Proper Role of Federal Courts i. Justicability v. Jurisdiction → 1. Jurisdiction: The constitution and statutory law endows the court with the power to hear the case. 2. NOT Justicable: It is a feigned, nonadversarial case, or it raises a political question, or the P lacks standing… it will NOT be heard by the courts. Standing to Sue i. The Constitutional Core of Standing → Federal Cts. may not hear a case unless the P has standing to bring the claim. A P has standing if he has such a significant stake in the controversy that he ought to be recognized as the proper party to bring the claim. 1. Standing Doctrine: a. – An attempt to eliminate those cases that are brought by officious bystanders, professional litigants who wish to use the courts to alter public policy rather than vindicate a personalized grievance. b. – Intended to ensure vigorous advocacy by the parties so that the issue will be sharply drawn for the judicial decision. c. – The focus is on the P and his connection to the claim itself. ii. Three Part Test for Standing → 1. A P must allege and prove personal or actual or imminent injury in fact; 2. Caused by or fairly traceable to the Ds action complained of; 3. Which is redressable by the courts. a. From Article III of the Constitution and the Separation of Powers iii. Valley Forge Christian College v. Americans United for Separation of Church and State

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PH: Petitioner religious institution appealed a decision of the United States Court of Appeals for the Third Circuit, which held that respondents, an organization and its employees advocating separation of church and state, had standing to seek declaratory and injunctive relief on the ground that the conveyance of property to petitioner by the United States pursuant to 40 U.S.C.S. § 471 et seq. violated respondents' rights under U.S. Const. art. I 2. Supplement summary → Federal taxpayers sought to overturn the transfer of surplus federal property to a religious college on the grounds that the transfer violated the establishments clause. 3. F: Respondents, a nonprofit organization and its employees, brought an action to compel petitioner religious institution to transfer property back to the United States on the ground that the conveyance of the property to petitioner under the Federal Property and Administrative Services Act of 1949, 40 U.S.C.S. § 471 et seq., was unconstitutional. a. The trial court dismissed respondents' action for lack of standing, and on appeal the circuit court reversed, finding that respondents had standing as citizens alleging a violation of their personal rights under the Establishment Clause, U.S. Const. art. I. b. On further appeal, the Court reversed again, holding that enforcement of the Establishment Clause did not create an exception to the requirement under U.S. Const. art. III that a plaintiff had to allege a distinct and palpable injury to himself in order to invoke judicial power. c. Also, respondents did not have standing as taxpayers because they were challenging an administrative ruling rather than congressional action, and the ruling was authorized under the Property Clause, U.S. Const. art. IV, § 3, cl. 2, rather than the Taxing and Spending Clause of Article I. 4. I: Whether the respondents had standing to bring this COA? 5. R: Enforcement of the Establishment Clause did not create an exception to the requirement under U.S. Const. art. III that a plaintiff had to allege a distinct and palpable injury to himself in order to invoke judicial power. 6. H: The Ps lacked standing. The failed the first prong of the Flast test b/c 1.) Valley Forge did not involve an expenditure, but rather a disposal of federal property, and 2) the transfer was an administrative and not a legislative act. (Supplement) iv. Lujan v. Defenders of Wildlife 1. PH: 2. F: A wildlife conservation organization and 2 of its members sue a federal agency, charging that the agency’s actions violate the Endangered Species Act (ESA) and that their opportunities to observe elephants and crocodiles (endangered) in the wild have and will be diminished. Ps have visited the habitat of the 2 species and claim that they will visit again at some point in the future. a. Respondents challenge of rule interpreting Endangered Species Act as applicable to only the U.S. or on the high seas. Respondents claim the new regulation is in error as to geographic scope. 3. I: Whether the wildlife agency has standing to seek judicial review of the rule (§ 7 of ESA of 1973)? a. P argues → An injury in fact is an injury whether a procedural injury or an actual physical injury, Article III does not make a distinction. b. D argues → Public interest violations are non concrete injuries, and public interest injuries cannot be conveyed to third party interveners. 4. R: Such ―some day intentions – w/o any description of concrete plans, or specification of when the someday will be do NOT support actual or imminent injury.‖ 5. H: They do NOT have standing b/c the threatened injury is too remote in time and too speculative to constitute an actual and imminent injury in fact. Third Party Standing i. For 3rd Party standing to be present there must be: 1. A substantial or special relationship between the claimant and 3rd party, 2. Proof of the impossibility or impracticality of the third party asserting his/her own interest, and 3. A risk that the rights of the 3rd party will be diluted or lost unless the claimant is allowed to assert the 3 rd party’s claim. The ―Zone of Interests‖ Requirement i. A P’s complaint must fall w/in the zone of interest protected by the law invoked. ii. A P lacks standing if unless the P’s injury is of a type that the law invoked was meant to protect against. Organizational Standing i. When an organization asserts the interests of people who they claim to represent (members) it must establish that: 1. The members would have standing to sue independently, 2. The interests asserted are germane to the association’s purpose, and 3. Neither the claim asserted nor the relief requested requires the member’s participation in the suit. Ripeness and Mootness (opposite sides of a single coin) Concerned with raising a COA at the RIGHT time… i. Ripeness: It is not ripe if the lines of conflict have not sufficiently hardened.

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Ripeness involves the fitness of the issues for judicial decision and consideration of the hardship to the parties of withholding court consideration. 2. Specific Harm → For a case to be ripe the P must show that he has either: a. Already suffered harm, b. Is faced with a specific present objective harm, or c. Is under a threat of specific future harm. 3. Ripeness prevents a litigant faced with compliance with an arguably invalid law from obtaining review of the law before its effective date. 4. There must actually be a threat of enforcement against the litigant. ii. Mootness: A moot case need not be decided = unjusticiable! 1. A case is moot if events occur after the case is begun that eliminate the P’s stake in the controversy. 2. It is the doctrine of standing set in a time frame → The requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence (mootness). a. EXCEPTION → Capable of repetition, yet evading review‖ i. The exception requires a showing that 1. The life of the controversy is too short to be fully litigated prior to its termination, and 2. That there is a reasonable expectation that the P will again be subjected to the same problem. (Roe v. Wade –Not still pregnant when it was heard by courts, but could become pregnant again so they heard the case.) Political Questions – Not justicible 1. Consists of those issues that cts. may not decide b/c the constitution mandates that they be finally decided by other branches of the federal government. 2. Also – those issues that the ct. thinks are best left undecided by courts, or judicial decision would undermine the courts or compromise some other important principle of democratic governance. ii. Baker v. Carr The Reigning Doctrine… 1. PH: The lower ct. dismissed the claim as nonjusticiable. 2. F: States who had not reapportioned since the turn of the century were not required by any federal mandate to do so (because of the Court’s earlier ruling in Colgrove v. Green in which the court dismissed the case on the grounds of reapportionment being a ―political question‖ that court was prevented from answering). As a result, there were huge disparities between the voting power of urban and rural citizens. The Ps brought suit to force legislatures to reapportion, but made the claim not under the Guaranty Clause like Colgrove, but instead under the Fourteenth Amendment’s Equal Protection Clause claiming that failure to reapportion led to unequal treatment of voters. Federal District court dismissed their suit relying on Colgrove and claiming that the court had already decided that reapportionment was a political question that it could not decide. The case was appealed to the Supreme Court. 3. I: Whether this case follows precedent of what other courts have found to constitute a nonjusticiable political question? 4. R: There are 6 factors identifying a political question: a. Constitutional commitment of decision of the issue to another branch (Congress or President), b. Lack of Standards for Decision, c. Decision requires a judicially inappropriate policy choice, d. Decision would lack respect for congress or the President, e. Political decision already made, OR f. Potential for embarrassment i. If none of these are present then it is not a political question. 5. H: Since this case does not rest on the Guaranty Clause but on the Equal Protection Clause instead, that separates this case and gives the court the ability to rule differently. Since the complaint’s allegations of a denial of equal protection present a justiciable constitutional cause of action, they are entitled to a trial and decision. Therefore, the Court reversed in favor of Ps remanded it to a lower court for trial. 6. Dissent: Frankfurter, joined by Harlan, dissenting, reasoned that the case involves all of the elements that made previous cases under the Guaranty Clause non justiciable and therefore refute the distinction the other judges seem to have made between the cases. a. He claims that the case is not justiciable under any clause of the Constitution by virtue of the fact that federal court is not a forum for public debate. b. The dissenters also state that the claim of discrimination is not valid since they are merely being deprived of their share of political influence, and should the districts be reapportioned, they are always bound to favor some groups over others. iii. Nixon v. U.S. 1. PH: The Tr. Ct. and the Ct. of App. held that his claim was not justicible. 2. F: Nixon, Chief Justice, U.S. District Ct. Mississippi, was convicted by a jury of two counts of making false statement before a federal grand jury and sentenced to prison. Those statements stemmed from

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reports that Nixon had accepted a gratuity from a Mississippi businessman in exchange for asking a local district attorney to halt the prosecution of the businessman’s son. The Senate initiated a committee in line with Rule XI, and the Senate heard testimony, queried each of the parties, and voted by over two-thirds to convict him, thereby removing Nixon of his judicial seat. 3. I: Whether I2 (below) is justicible? 4. I2: Whether Senate Rule XI, which allows a committee of Senators to hear evidence against an individual who has been impeached and to report that evidence to the full Senate, violates the Impeachment Trial Clause, Art. I, §3, cl. 6. ? a. That clause provides that ―Senate shall have the sole power to try impeachments.‖ 5. P (Nixon) argues: Senate Rule XI violates the constitutional grant of authority to the Senate to ―try‖ all impeachments b/c it prohibits the whole Senate from taking part in the evidentiary hearings. 6. D argues: The word try does not provide a clear limit on the Senate’s authority under the Impeachment Clause. Therefore, the Court has no justicible issue to determine. 7. R: The Senate shall have the sole Power to try all Impeachments. No person shall be convicted without the concurrence of two-thirds of the members present. 8. H: The word ―try‖ in the Impeachment Clause does not provide an identifiable textual limit on the authority which is committed to the Senate. 9. Affirmed against the P (Nixon). l. The Quasi-Constitutional Role of Abstention i. A judicial decision to decline to exercise jurisdiction given to it by the Constitution and Statute. ii. Younger v. Harris 1. CA brought a COA against Harris under CA law which makes it a crime to advocate unlawful acts of force or violence to effect political change. Harris brought a federal COA seeking an injunction from CA’s lawsuit on the ground that the law violated the free speech guarantee. Tr. Ct. enjoined the prosecution and the Sup. Ct. reversed. 2. Must be reversed as a violation of the national policy forbidding federal courts to stay or enjoin state court proceedings except under special circumstances. iii. Railroad Commission of Texas v. Pullman Co. 1. The Texas RR Commission ruled that RR must have their sleeping cars under the control of a conductor rather than a porter. At the time all porters were black and all conductors were white. The Pullman Co. porters sought and obtained an injunction in federal ct. against enforcement of the rule citing that it was unconstitutional. The Supreme Ct. reversed and remanded pending a decision of the Texas state ct. as to whether TX law authorized the Commission to make such a rule. 2. The last word on the meaning of TX law is up to the Sup. Ct. of TX. 3. Remanded to the Dist. Ct. w/ directions to retain pending a determination in state ct. on the issue of the Commission’s authority under TX law. Chapter 3: The Limits of Federal Legislative Power: Judicially or Politically Enforceable Federalism? a. Implementing Enumerated Powers and ―Default‖ Rules i. Federal Government is only granted the powers enumerated in the Constitution. (Cannot be exercised abstractly.) 1. The Concrete exercise of Federal power can be exercised through: a. Legislation b. Executive Action OR c. Judicial Decision 2. How to define the legitimate scope of Federal Power: a. Is the objective of the challenged action within an enumerated power? b. Are the means chosen to achieve that objective constitutionally permissible? b. Implementing Enumerated Powers: The ―Necessary and Proper Clause‖ 1. McCullough v. Maryland a. F: The State of Maryland passed a law that imposed taxes on all of the banks located in its territory that were not chartered by their legislature. The Baltimore branch of the Bank of the United States fell under that law. The cashier of this bank, McCullough, refused to pay the tax and claimed that the state cannot tax the national bank. b. I #1: Does Congress have the power to incorporate a national bank? (YES) c. I #2: Can the state of MD tax the branch of the Bank of the United States w/o violating the Constitution? (NO) i. (State) P Argues: The authority to tax, or to form a bank, within the consent of the people of each state to legislate is not inconsistent with the Constitution. The general government powers are delegated by the U.S. ii. (McCullough for the U.S. Bank) D Argues: State legislatures lack the authority to supercede a Constitutional provision meant to endure time and created for the welfare of all states.

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R: (10th Amendment) The powers not delegated to the U.S. by the Constitution, not prohibited by it to the States, are reserved to the states respectively or to the people. e. H: Congress is given the right to pass ―all laws which shall be necessary and proper for carrying into execution the forgoing powers.‖ Congress is given the discretion to implement ways that it thinks are most efficient in carrying out the powers that are granted by the Constitution. If Congress sees that it is best to incorporate a bank to carry out the power that is assigned it by the Constitution, it is permitted under the constitution to do so. f. H for I #2: Federal government is supreme to the state governments. When a state taxes a Federal institution, it is invading the rights of people of other states - where that state has no right to exert it’s power over them. g. Reversed in favor of McCullough (Bank of United States) Implying ―Default‖ Rules for Federal and State Power i. When the Constitution is silent as to whether the federal government has exclusive power over a subject or whether the states are prohibited from acting with respect to the subject, Courts are forced to read into the Constitution’s ―Default Rules.‖ ii. In the absence of both, a Constitutional grant of exclusive authority over an issue to the Federal government AND denial to the states of power to act on that issue, one could presume: 1. States HAVE power to act on the issue OR 2. That only the Federal Government can Act, OR 3. That both governments can act, but the Federal government prevails in case of a conflict. iii. The following cases answer this question → ―When only one government acts on an issue, and the Constitution is silent on the question of whether that issue exclusively belongs to the Federal government or is off-limits to the states, should the states be presumed to have the power to act? 1. McCullough v. Maryland (con.’t) a. I #2: Can the state of MD tax the branch of the Bank of the United States w/o violating the Constitution? (NO) b. H #2: Federal government is supreme to the state governments. When a state taxes a Federal institution, it is invading the rights of people of other states - where that state has no right to exert its power over them. c. The MD law imposing a tax on the Bank of the United States is unconstitutional and void. 2. U.S. Term Limits, Inc. v. Thornton a. F: The state of Arkansas added Amendment 73 to their state constitution which prohibited the name of an otherwise eligible candidate for Congress from appearing on the general election ballot if the candidate had already served in the House of Representatives for 3 terms or in the State Senate for 2 terms. The State relies on the 10th amendment for support of their amendment. b. I: Whether this AR state amendment was adverse to the Constitution of the United States and therefore, unconstitutional? c. R: The 10th Amendment to the U.S. Constitution reserved those powers that the states had before the creation of the U.S. Constitution. They do not have the power to add qualifications that were not within the original powers of the state. d. H: The power to add qualifications is not within the original powers of the states, and thus is not reserved to the States by the 10th Amendment. i. The state is trying to achieve something through the amendment that is is not allowed to achieve directly. ii. Therefore, if additional qualifications are to be applied to the representatives of Congress, it will have to be established via amendment to the Federal Constitution. iii. Affirmed in favor of Thornton. Commerce i. The Constitution does not give the Federal Government the power to regulate all commerce. ii. Art. 1, § 8, Clause 3 → Confers upon Congress the power to “regulate” 3 different types of commerce: 1. Commerce with Foreign Nations, AND a. The scope of foreign commerce is very broad, including transactions, which, either immediately, or at some stage of their progress, must be extraterritorial. 2. Commerce among the Several States, AND a. To determine the scope of interstate commerce authority, two things must be determined: i. How differential are the courts to congressional judgments of the scope of that power? ii. What standard of review do the courts employ in reviewing congressional actions? 3. Commerce with the Indian Tribes. iii. United States v. Lopez 1. P = U.S., D = Lopez (student) 2. PH: Lopez was convicted of possession of a loaded handgun in his school under Texas law, but the charges were dismissed after Federal agents charged him with violating the Gun-Free School Zones Act of 1990. d.

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On Appeal, Lopez challenged his conviction based on his claim that §922(q) (The Gun-Free Act) exceeded Congress’s power to legislate under the commerce clause. The Ct. of App. agreed and reversed his conviction. This court affirms that reversal and finds for Lopez. 3. F: Lopez, a 12th grade student, arrived at Edison High School in San Antonio, TX carrying a concealed .38 caliber handgun and five bullets. He admitted to concealing the weapon on school grounds and was charged with firearm possession on school premises under TX law, until those charged were dropped after Federal agents arrived and charged Lopez with violating the Gun-Free School Zones Act of 1990. On Appeal, Lopez challenged his conviction based on his claim that §922(q) (The Gun-Free Act) exceeded Congress’s power to legislate under the commerce clause. The Ct. of App. agreed and reversed his conviction. This court affirms that reversal and finds for Lopez. 4. I: Whether Congress exceeded its authority by passing the Gun-Free School Zones Act of 1990? a. I #2: Whether the Act falls under the Commerce Clause (interstate) of the Constitution? 5. R: When congress invokes its commerce power to regulate activities affecting interstate commerce, the effect on interstate commerce must be substantial. a. If Congress does not give any evidence supporting the substantial effect on interstate commerce by regulating guns on school property, the Ct. will not consult Congress for their judgment because it would be impossible to know whether Congress had a rational basis for their judgment at the time of passing the Act. 6. H: (5/4 majority vote) The Court voided the Gun-Free School Zones Act of 1990 as beyond Congress’s commerce power. Affirmed in favor of the D, Lopez. a. Concurrence (Thomas, Kennedy and O’Connor) → The Act upsets the federal balance to a degree that renders it an unconstitutional assertion of the commerce power. The following three factors demonstrate this: i. Neither the actors, nor their conduct have a commercial character, ii. Neither the purposes, nor the design of the statute have an evident commercial nexus, AND iii. The Act seeks to intrude upon an area of traditional state concern. b. Dissent (Stevens, Souter, Ginsberg and Breyer) → The effects of guns in and around schools is substantial and as long as Congress could have supported that finding, the Court should defer to Congress’s intentions. c. See Paper I wrote…. The Historical Development of Commerce Clause Doctrine 1. Gibbons v. Ogden a. F: Mr. Ogden was assigned the right, from Livingston and Fulton, to operate a steamboat between New Jersey and New York. Gibbons, Ogden’s former partner, obtained a license under a 1973 federal law that permitted him to operate his steamboat in coastal trade and thus compete with Ogden. At Ogden’s request, the NY ct.s enjoined Gibbons from further operation from operation of his steamboat in NY waters. Gibbons appealed to the Sup. Ct. arguing that congress had the power to enact the 1973 law regulating vessels in coastal trade, and that the federal law preempted the contrary NY monopoly law due to the supremacy clause. b. I: Whether the NY law (regulating interstate commerce) granting exclusive use of the waterways to specific members of society is unconstitutional? c. R: Congress shall have power to regulate commerce with Foreign Nations, and among the Several States, and with the Indian Tribes. d. H: YES. The 1973 federal law regulating coastal trade preempted the NY monopoly law, at least insofar as it purported to apply to interstate navigation. ii. The Direct-Indirect Distinction 1. Congress could invoke the commerce power to regulate an activity that was not part of interstate commerce so long as the activity directly affected interstate commerce. iii. The Protective Principle 1. The intrastate commerce can be regulated when necessary to protect instrumentalities of interstate commerce. iv. The Stream of Commerce Metaphor 1. The Court attempted to identify interstate commerce as consisting of a stream or current of commerce, thus enabling Congress to regulate intrastate eddies within that flow. The metaphor originated with Oliver Wendell Holmes. v. The Commerce Prohibiting Technique 1. Simply barring the interstate movement of articles of commerce. This technique became controversial when Congress employed it effectively to regulate activities unrelated to interstate commerce. 2. NLRB v. Jones a. PH:

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F: Jones and Laughlin, a PA corporation operated an iron and steel plant out of Pittsburgh and Aliquippa, PA. They are the 4th largest producer of steel in the U.S. They have nineteen subsidiaries including mines located all over the U.S. Approx. 75% of it’s product is shipped out of PA. The Corp. was accused of discriminatory discharges of its employees for their involvement in union activities. The Labor Board concluded that the National Labor Relations Act was applicable to the current case and the Corp. violated NLRA (National Labor Relations Act) by discharging its employees. c. I: Whether Congress overstepped the state boundary regarding the regulation of the corporation’s employees and claiming that the corp. violated the NLRA? d. R: Congress has power by appropriate means, not prohibited by the Constitution, to prevent direct and material interference with the conduct of interstate commerce. But the interference must be direct and material, not some mere possibility contingent on wholly uncertain events. e. → Although some activities might seem intrastate individually, but they might have such a close and substantial relation to interstate commerce that their control is essential and appropriate to protect the commerce from burdens and obstructions. The fact that the employees here were involved in production is not the end of the matter. Their discharge would have immediate and catastrophic effects on interstate commerce. According to the court, ―When industries organize themselves on a national scale, making their relation to interstate commerce the dominant factor in their activities, how can it be maintained that their industrial labor relations constitute a forbidden field into which Congress may not enter…‖ f. Reversed in favor of NLRB. vi. The Aggregation Principle 1. Wickard v. Filburn (Wheat case) a. PH: b. F: Filburn grew 239 bushels of wheat more than the allowed quota per farmer of 223 bushels. He used the extra crop for livestock feed, seedstock for the next crop, and flour for the house and then sold the rest. He was then penalized $117 for growing the access wheat. Filburn contested the fine claiming that it’s imposition was beyond the interstate commerce power. c. I: Whether regulation of the production and consumption of wheat is beyond the reach of Congressional power under the Commerce Clause? i. Filburn argues that the production and consumption of wheat is beyond the gov’ts regulation b/c it is local in character and it’s effect on interstate commerce is at best, indirect. ii. Gov.t argues that the statute regulates neither production or consumption, but only marketing and in the alternative, that if the act goes beyond the regulation of marketing, it is sustainable as a necessary and proper implementation of the power of Congress over interstate commerce. d. R: Even if Filburn’s activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce and this irrespective of whether such effect is what might at some earlier time have been defined as direct or indirect. i. The penalty was valid by creating the aggregation or cumulative effects principle. e. H: Home grown wheat in this case competes with wheat in commerce. Found for the gov.t. vii. The ―Means Affecting Means‖ Principle 1. U.S. v. Darby a. PH: The District Court quashed the indictment holding that the act was unconstitutional because it sought to regulate hours and wages of employees in local manufacturing activities. b. F: Darby, a Georgia lumber manufacturer, was indicted for violation the federal Fair Labor Standards Act. The FLSA specified maximum hours and minimum wages for workers engaged in producing goods for interstate commerce and prohibited the interstate shipment of goods produced other than in conformity with the FLSA’s wage and hour provisions. c. I: Whether Congress has the constitutional power to prohibit the shipment of interstate commerce of lumber manufactured by employees whose wages do not meet the prescribed minimum? YES d. I #2: Whether Congress has the power to prohibit the employment of workers in the production of goods for interstate commerce other than prescribed wages and hours? YES e. R: The commerce power of congress not only includes regulations which aid, foster and protect commerce, but it also includes regulations which prohibit it. Congress may prohibit articles from interstate commerce that are noxious, stolen, convict-made, etc. Likewise, Congress has the power to prohibit articles from interstate commerce that are the product of substandard labor conditions. Such products also provide unfair competition for those companies that are producing same articles under accepted labor conditions.

b.

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As to the second issue, Congress has the power to use any means to accomplish a legitimate end. In the current case, the Congress can regulate intrastate activities as long as the end is to control interstate commerce. ―Congress, having by the present Act adopted the policy of excluding from interstate commerce all goods produced for the commerce which do not conform to the specified labor standards, may choose the means reasonably adapted to the attainment of the permitted end, even though they involve control of intrastate activities. g. Reversed in favor of the gov.t. viii. Civil Rights and the Commerce Power 1. Ollie’s BBQ case → The burdens placed on interstate commerce by racial discrimination in restaurants…(Depressed spending by AAs) a. In class example about Domestic Violence – women with bruises on their faces don’t go to work. ix. Limits Imposed by Principles of State Autonomy 1. Substantive Immunity – Congress could not use the commerce power to regulate the ―States qua States‖ in order directly to displace the states freedom to structure integral operations in areas of traditional governmental functions. Basically, Congress could not use the Commerce power to impinge upon a state’s policy choices in matters that are traditionally regarded as governmental. a. EX: fire prevention, police protection, sanitation public health, and parks and recreation. 2. Procedural Immunity a. Garcia v. San Antonio Metropolitan Transit Authority i. PH: Metropolitan transit authority brought action seeking declaratory judgment that it was entitled to Tenth Amendment immunity from minimum wage and overtime pay provisions of the Fair Labor Standards Act. On remand from the Supreme Court, the United States District Court for the Western District of Texas, entered summary judgment for transit authority, and the Secretary of Labor and intervening transit authority employee appealed. Reversed and remanded. ii. F: Appellee San Antonio Metropolitan Transit Authority (SAMTA) is a public masstransit authority that is the major provider of transportation in the San Antonio, Tex., metropolitan area. It has received substantial federal financial assistance under the Urban Mass Transportation Act of 1964. In 1979, the Wage and Hour Administration of the Department of Labor issued an opinion that SAMTA's operations are not immune from the minimum-wage and overtime requirements of the Fair Labor Standards Act (FLSA) in which it was held that the Commerce Clause does not empower Congress to enforce such requirements against the States "in areas of traditional governmental functions." iii. I: Whether the State’s sovereignty is overpowered by the application of the hour and wage requirements of the FLSA, as applied to SAMTA or is FLSA violative of the 10 th Amendment? 1. P (SAMTA) argues: The ownership and operation of the mass transit system is a traditional governmental function and is exempt from FLSA obligations. 2. D argues: The FLSA and its obligations, by way of the Commerce Clause, protects the States as States. No provision limits the State’s sovereignty or constitutional power of the States. iv. R: State sovereign interests are protected by procedural safeguards within the structure of the federal system, rather than judicially created limitations. v. H: SAMTA faces no greater obligation than 100's of other employers. The transit authority is not immune from minimum wage and overtime requirements of the Act. 1. Local public transit authority was not immune from minimum wage and overtime requirements of the Fair Labor Standards Act because there was nothing in those requirements that was destructive of state sovereignty or violative of any constitutional provision. b. N.Y. v. U.S. i. F: Congress passed Low-Level Radioactive Waste Policy Amendments Act of 1985. This basically required states to provide for disposal of waste generated by them and it had 3 incentives that are under dispute in this case. 1. States with disposal sites can impose surcharge on radioactive waste from other states. 2. States were allowed to gradually increase the cost of access to their disposal sites and eventually deny access to states that have no complied with the statute. 3. States that failed to dispose all of their waste by a certain date will become liable for all damages suffered by the waste’s generator or owner as a result of the state’s failure to promptly take possession. a. The state of New York claims that this statute is unconstitutional. New York does not contend that the Congress doesn’t have the power

f.

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to regulate the disposal of radioactive waste. But New York claims that the method the statute has used is unconstitutional because it directly orders the states to follow the will of the Congress. ii. I: Whether the incentives in the Federal statute use a method that is unconstitutional by requiring all of the states to follow the direction of Congress? iii. R: #1 and #2 = NO but, #3 YES (unconstitutional) (In the structure of our Constitution, it is clear that the Congress is designed to have direct legislative power over the people and not the states.) Congress may encourage states to regulate an activity in a certain way by providing incentives. This is what the 1st and 2nd provisions of the statute are doing. iv. HOWEVER → But Congress cannot compel states to act in a certain way. In the 3rd provision, Congress has given the states the choice of either accepting ownership of waste or regulating according to the instructions of Congress. This is coercion and not encouragement. According to the court, the Federalism model of government is necessary to keep accountability in our system. 1. ―Where Congress encourages state regulation rather than compelling it, state governments remain accountable to the people. By contrast, where the Federal Government compels States to regulate, the accountability of both state and federal officials is diminished.‖ Printz v. U.S. i. F: Congress enacted Brady Handgun Violence Prevention Act requiring Attorney General to establish a national instant background check system. Under which a purchaser of a handgun cannot be of a category to purchase a handgun, and the Chief Law Enforcement Officer of the resident state will receive the documents certified. A dealer may sell a gun immediately if the purchaser possesses a state handgun permit or if state law provides for an instant background check. If neither then the CLEO are required to perform background checks. County Sheriff in Montana and one in AZ challenge the constitutionality. ii. I: Whether certain provisions of the Brady Bill, commanding State law enforcement to conduct background checks on prospective handgun purchasers, and to perform certain related tasks violates the Constitution? YES 1. P argues: Federal government may not compel States to implement, by legislation or executive action, federal regulatory programs. 2. D argues: Earlier Congresses enacted statutes that required the participation of State Officials in the implementation of Federal Laws. iii. R: This type of law under the Commerce Clause violates the principle of State sovereignty, it is not a proper law, and is thus not enforceable under Necessary and Proper Clause. iv. H: We have a constitutionally established system of dual sovereignty under which states surrendered many of their powers to federal government but retained residuary and inviolable sovereignty The constitution contemplates that State's governments will represent and remain accountable to its own citizens. Even where Congress has authority under Constitution to pass laws requiring or prohibiting certain acts, Necessary and Proper Clause does not grant Congress power directly to compel states to require or prohibit those acts. The Act violates the 10th Amendment. 1. (1) obligation to conduct background checks on prospective handgun purchasers imposed unconstitutional obligation on state officers to execute federal laws; 2. (2) sheriffs were not in position to challenge Act's requirements that CLEOs destroy handgun-applicant statements and give would-be purchasers written statements of reasons for determining their ineligibility to receive handguns; and 3. (3) there were no plaintiffs before Court who could challenge provisions requiring firearms dealers to forward to CLEO notice of contents of handgunapplicant statement, and to wait five business days before consummating sale.

x. Taxation 1. Bailey v. Drexel Furniture Co. a. PH: b. F: After the Court invalidated Congress’ attempt to prohibit child labor under Commerce Clause in Hammer v. Dagenhart, Congress passed a Child Labor Tax Law. This law required all employers who employed children to pay tax in the amount of 10% of their net profit for the full year. P argued that this law attempts to regulate child labor and that is an issue under the powers of the States under the Constitution and reversed for the states under the 10th Amendment. D argued that the Congress is just practicing its taxing power under the Constitution. c. I: Whether Congress exceeded its taxing powers by passing the Child Labor Tax Law?

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R: YES. The court will be blind not to see that the real purpose of this tax is to regulate child labor, an issue that is under the powers of the states. The Court has allowed tax laws in the past even though they were goals of Congress to go beyond mere taxation power. i. But the law in this case is clearly a violation of Congress’ Constitutional powers. Congress does have power to tax but there is difference between taxing and punishing. e. H: ―To give such magic to the word tax would be to break down all constitutional limitation of the powers of Congress and completely wipe out the sovereignty of the States.‖ Affirmed. 2. U.S. v. Kahriger a. PH: Appellant federal government sought review of a judgment of the United States District Court for the Eastern District of Pennsylvania, which held in favor of appellee taxpayer that an occupational tax was unconstitutional. b. F: The federal government challenged a decision that found that the wagering excise tax of 26 U.S.C.S. §3285 was unconstitutional. On appeal, the court reversed the decision and held that all the provisions of the excise tax were adapted to the collection of a valid tax. The court found that the excise tax had a regulatory effect, produced revenue, and clearly defined the activities covered and excluded. The court also found that the registration requirements of the excise tax on wagering were not offensive. The court further found that the required data was directly and intimately related to the collection of the tax and were obviously supportable as in aid of a revenue purpose. The court also rejected the taxpayer's argument that the excise tax was a denial of the privilege against self-incrimination. The court determined that under the registration provisions of the excise tax, the taxpayer was not compelled to confess to acts already committed, he was merely informed by the statute that in order to engage in the business of wagering in the future he must fulfill certain conditions. xi. Spending 1. U.S. v. Butler a. PH: Lower court ruled this act to be unconstitutional. b. F: Congress enacted the Agricultural Adjustment Act in the New Deal era to stabilize farm prices. Secretary of Agriculture was given to power to make contracts with farmers to reduce their productive acreage and in return the farmers received benefit payments. In order to pay for this program, Congress enacted processing tax on domestic processing of certain commodities. c. I: Can the taxing power of the Congress be used to make payments in a field that is reserved for the states? d. R: Article I § 8: Congress has power to lay and collect Taxes, Duties, Imposts and Excises, to pay the debts and provide for the defense and general welfare of the United States. e. H: In Child Labor Tax Case, it was held that Congress cannot lay tax to regulate in a area reserved for the states. Likewise, taxing power cannot be employed to raise the money necessary to purchase a compliance which the Congress is powerless to command. The provisions of the program are not voluntary, as the Government argues them to be. The farmer is either given the choice of accepting the program or to suffer financial ruin. This is economic coercion. Affirmed. 2. South Dakota v. Dole a. PH: Congress passed a statute instructing the secretary of transportation to withhold a portion of federal highway funds from any of the states that failed to enact a minimum drinking age of twenty-one years. South Dakota which allowed persons nineteen years or older to purchase alcoholic beverages objected to the statute. Consequently, South Dakota sued Secretary of Transportation Elizabeth Dole and both the district court and the court of appeals ruled against South Dakota and upheld the law. The U.S. Supreme Court granted certiorari. b. F: In 1984, Congress enacted the National Minimum Drinking Age Amendment, 23 U.S.C. section 158. This statute directed the secretary of transportation to withhold a portion of federal highway funds from any state that failed to establish a minimum drinking age of twenty-one years. The legislators believed that withholding federal dollars would be an effective way to encourage that states to comply with the federal program. South Dakota, which allows the purchase of beer containing 3.2 percent of alcohol by person nineteen years or older, objected to the statute, arguing that Congress was infringing on the rights of the states. South Dakota further claims that the law is unconstitutional because the Twenty-First amendment gave power to the states for regulating alcoholic beverages. South Dakota filed suit against Secretary of Transportation Elizabeth Dole in district court and then the court of appeals. c. I: Whether Congress can withhold federal funding in order to force a state to pass legislation it deems useful? d. R: It was held that even if Congress lacks the power to impose a national minimum drinking age directly, the indirect imposition of such a standard in 23 U.S.C. 158 was a valid exercise of Congress' spending power.

d.

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H: (Rehnquist) (1) the provision was designed to serve the general welfare, (2) the means chosen to address the situation were reasonably calculated to advance the general welfare, (3) the conditions upon which the states were to receive the funds were clearly stated, (4) the congressional action was related to the national concern of safe interstate travel, one of the main purposes for which highway funds are expended, and (5) the Twenty-first Amendment did not provide an independent constitutional bar to 158, since (a) the statute did not induce the states to engage in unconstitutional activities, and (b) the percentage of highway funds that were to be withheld from a state with a drinking age below 21 was relatively small, so that Congress' program did not coerce the states to enact higher minimum drinking ages than they would otherwise choose. f. In a 7-2 decision, the court affirmed the judgment of the Court of Appeals. i. (O’Connor)(1) 158 was not a valid exercise of Congress' spending power, since the establishment of a national minimum drinking age was not sufficiently related to interstate highway construction to justify so conditioning funds appropriated for that purpose, and (2) 158 was therefore an attempt to regulate the sale of liquor, an attempt that lay outside Congress' power to regulate commerce because it fell within the ambit of the Twenty-first Amendment. Chapter 4: Limiting the Scope of State Power Over Interstate Commerce a. The Dormant Commerce Clause i. Theory ii. Doctrinal History 1. Cooley v. Board of Wardens a. PH: b. F: Cooley a consignee of two vessels that sailed to and fro Philadelphia via the Delaware River with out the required local pilots. Pennsylvania passed a statute requiring owners or consignees to accept local pilots to navigate the Delaware River. Half of the pilotage fee was the penalty upon the owners or consignees who failed to adhere. c. I: Whether Congress, having the exclusive power to regulate commerce, by omitting the regulation of pilots, conferred that aspect of the commerce clause upon the individual States, namely Pennsylvania in this case? i. P argues ♣ Mere Grant of power to Congress compatible with existence of similar power in states does not imply prohibition. The Act of 1789 confers power to pilot upon the states. ii. D argues ♣ Whatever subjects come under the regulation of commerce and are in their nature national requires exclusive control by Congress. d. R: YES. : All pilots in the bays, inlets, rivers, harbors, and ports of the United States shall continue to be regulated in conformity with the existing laws of the States, until further legislative provision shall be made in Congress. Act of 1789, enacted 1803[same year as Penn’s statute]. e. H: The act of 1789 contains a clear and authoritative declaration by Congress, that the nature of this subject is such, that until Congress should find it necessary to exert its power, it should be left to the legislation of the States. The act declares that pilots shall continue to be regulated by such laws as the States may respectively hereafter enact. The nature of the power and the nature of the subject on which that power was intended to operate are indifferent. Congress legislated an exception to commerce beginning in this country the subject of the power has different requirements for regulation. The systems to manage the regulations are dependent upon local knowledge, experience, and conforming with local wants. f. Affirmed. iii. Modern Doctrine 1. Discrimination Against Interstate Commerce 2. Philadelphia v. New Jersey a. PH: b. F: Operators of private landfills in New Jersey and several other cities in other states who had agreements with these operators in N.J. for waste disposal brought a suit against N.J. The PL claim the law prohibits the importation of most solid or liquid waste that originated or was collected outside the territorial limits of the U.S. c. I: Whether the N. Jersey law is a protectionist measure, or a law directed at legitimate local concerns with incidental effects on interstate commerce? i. P argues → The regulation’s actual purpose, hidden as a health and safety concern, environmental protection, is to suppress competition and stabilize the cost of solid waste disposal for N.J. residents.

e.

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c. d.

e.

f. g.

h.

ii. D argues → The regulation’s burden on interstate commerce is slight, while the benefit of preserving the safety and health of the public is substantial. d. R: A1S8C3The Congress shall have Power to regulate Commerce with foreign nations, and among the several states, and with the Indian Tribes. A1S8C18 To make all Laws which shall be necessary and proper for carrying into Execution the foregoing powers. e. H: Protectionism can reside in legislative means as well as legislative ends. It doesn’t matter what aim the legislation takes, or the intended purpose, of concern here is that those ends may not ―discriminate against articles of commerce coming from outside the State,‖ w/o a legitimate reason. N.J has made no claim that the waste endangers health, but that the harm is caused after disposal, and at that point, there is no basis for distinguishing out of state from in state waste. Neutral Burdens on Interstate Commerce 1. Southern Pacific Co. v. AZ 2. Kassel v. Consolidated Freightways Corp. Facially Neutral Regulations with Discriminatory Effects on Interstate Commerce 1. Dean Milk Co. v. Madison Assessing Discriminatory Effects 1. Hunt v. Washington State Apple Advertising Commission 2. Exxon v. Governor of Maryland Assessing Discriminatory Purposes i. H.P Hood & Sons v. Du Mond ii. West Lynn Creamery, Inc. v. Healy States as Market Participants: An Exception to the Dormant Commerce Clause i. South-Central Timber Development, Inc. v. Wunnike The Privileges and Immunities Clause 1. United Building and Construction Trades Counsel v. City of Camden a. PH: Sup. Ct. of NJ rejected Privileges & Immunities claim by United Building. Sup. Ct. reversed and remanded. b. F: N.J. passed an ordinance (local government) requiring 40% of employees working on city construction project be Camden residents (40% local hire). The ordinance’s objective was to set minority hiring goals on all public works contracts, but also placed the resident restriction. The conditions applied to contractors and subcontractors alike. The State Treasurer approved the ordinance. c. I: Whether a municipal ordinance is subject to the restriction of the Article IV Privileges and Immunities Clause as well as the states? (YES) i. P argues: The ordinance discriminates against a protected privilege, employment within a governmental entity. ii. D argues: The P and I Clause only applies to laws passed by a State, and to laws that discriminate on the basis of state citizenship. d. R: The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the Several States. -Article IV e. H: Although Camden’s ordinance discriminates against a protected privilege, seeking employment; it has substantial reason for doing so. The ordinance is necessary to counteract economic and social ills. Absent a factual showing this ct. is unable and unwilling to make a determination as to the degree of Camden’s justification. i. If discrimination exists against a P & I, that discrimination must have a ―substantial reason‖ for the difference in treatment. 1) Whether a reason exists; and 2) Whether the degree of discrimination bears a close relation to the reasons. ii. P & I TEST: 1. Whether the ordinance burdens one of the privileges and immunities protected and 2. Whether an interest is sufficiently a fundamental promotion of interstate harmony. f. Class Notes: i. 14th Amendment Privileges and Immunities Clause / 2 Basic arguments: 1. All Individual Human Rights including The Bill of Rights that U.S. citizens have. *BROAD* (ARTICLE IV Privileges & Immunities Clause covers these rights but only where there is interstate discrimination) 2. Right to Vote in Federal Election including ―Rights peculiar to U.S. citizens‖ (Rights that ONLY U.S. citizens have) *NARROW* (14th Amendment covers fundamental human rights.) Preemption and Consent: Congress has the Final Word i. Preemption: 2 types: Field Preemption and Conflict Preemption

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5.

Field Preemption: Conflict Preemption: Gade v. National Solid Wastes Management Assoc. a. PH: Association sued for injunctive relief. Ct App. affirmed and reversed. S. Ct. agrees that OHSA pre-empts any state law or regulation where OSHA already has regulations, without approval by Secretary. b. F: IL Generally Assembly enacted two separate and related Acts related to environmental protection. Both require an applicant to provide a certified record of at least 40 hours of training under an approved program ( IL), to pass a written exam, and to complete an annual refresher of 8hrs. Haz. Operators must submit certificate showing a minimum of 4000 hours. Occupational Safety and Health Act (OSH Act) requires workers to receive a minimum of 40 hrs instruction off site, and a minimum of three days actual field experience, plus 8 hrs of specialty training, with 8 hrs refresher annually. c. I: Whether the IL Hazardous Act and Laborers Act, are pre-empted by the Federal Occupational Health and Safety Act? (YES) i. P argues: (Resp-Wastes) The IL Acts are pre-empted by Congress’ OSHA? ii. D argues: (Petitioner-Gade) A state may develop an occupational safety and health program tailored to its own needs, but only if it is willing to completely displace applicable federal regulations. d. R: Under the Supremacy Clause any state law, which interferes with or is contrary to federal law, must yield. A6C2-This Constitution and the laws of the U.S. which shall be made pursuant thereof; and all Treaties shall be the supreme law of the land. e. H: Congress intended the statute to subject employers and employees to only one set of regulations, the only way a State may regulate an OSHA regulated issue is pursuant to an approved state plan that displaces the federal standard. The State did not receive approval from the Secretary. Congress intended to promote occupational H & S while avoiding duplicative, and possibly counter-productive, regulations. A dual impact state regulation cannot avoid OSHA preemption b/c the regulation serves several objectives rather than one. Absence approval of the Secretary, OSHA pre-empts al state law that constitutes, in a clear, direct, and substantial way, regulation of worker S & H. i. non sequitor - It does not follow. ii. Class notes: there shall be no other warnings on cigarettes – Federal preemption. ii. Consent to State Regulation of Interstate Commerce iii. State Taxation of Interstate Commerce 1. Complete Auto Transit, Inc. v. Brady a. PH: Lower ct. found the tax was constitutional. b. F: The transportation corporation, which transported motor vehicles from train stops in Mississippi to Mississippi car dealers, was assessed back taxes for the sales of transportation services. The taxes were imposed pursuant to Miss. Code Ann. § 10105 (1972), which imposed a "privilege of doing business" tax within the state upon activity in interstate commerce. The corporation challenged the imposition of the tax, claiming that under previous Supreme Court precedent, the "privilege" of engaging in an activity in the state could not be applied to an activity that was part of interstate commerce and that such a tax ran afoul of the Commerce Clause, U.S. Const. art. I, § 8, cl. 3. c. I: Whether Mississippi runs afoul of the Commerce Clause when it applies the tax it imposes on the privilege of doing business within the state to appellant’s activity in interstate commerce? d. R: The Court overruled Spector Motor Service, Inc. v. O'Connor, which had held that a state tax on the "privilege of doing business" was per se unconstitutional when it was applied to interstate commerce. The Court found that the rule placed form over substance and merely served as a trap for unwary draftsmen, since an identical tax, called another name, would have been valid. e. H: The Court agreed with the Mississippi Supreme Court's finding that the tax was constitutional. f. Class Notes: The Privileges and Immunities Cause only applies to people, NOT corporations. Chapter 5 – Separation of Powers a. The Reason for Separated Powers b. Executive Action i. In Domestic Affairs ii. Youngstown Sheet and Tube Co. v. Sawyer (The Steel Seizure Case) 1. Ph: P (U.S. Steel) arrived at the home of D. Judge w/ motion for immediate relief; the judge determined that the seizure was illegal and enjoined the govt. official from remaining in control of the industry. Affirmed by S. Ct. 2. F: In the final years of the Korean War, Congress and President Truman were at odds about how to resolve labor disputes that affected the nation. Wage negotiations w/ U.S. Steelworkers and the industry were

1. 2. 3.

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c.

deadlocked. The President referred the parties to the Wage Stabilization Board for resolution. The Board recommended wage increases, the steel industry rejected that proposal unless it received $12 per ton increase in the ceiling price. The Board refused that. A general strike was announced. The night before the President issued an Executive Order directing the Sec of Comm. to take possession and operate the steel facilities. 3. I: Whether the President was acting within Constitutional power in directing the Sec. Of Commerce to take possession and operate the steel industry? NO a. P argues: (Steel) The President’s order amounts to lawmaking, a legislative function reserved to Congress. b. D Argues: (Sawyer) The executive order was necessary to avert a national catastrophe resulting from the stoppage of steel production, which would adversely affect the Korean War and the U.S. 4. R: The President’s power to issue an order must stem either from an act of Congress of from the Constitution itself. A2 - he shall take care that the laws be faithfully executed, . . . shall be Commander in Chief of the Armed Forces. 5. H: There is no statute that expressly authorizes the President to take possession of property as he did here. Nor is there any act of Congress from which such a power can fairly be implied. The Constitution does not subject the law making power of Congress to presidential or military supervision or control. If an executive order mimics a statute, it is legislative and not a function of the President, but of Congress. 6. Class Notes: a. President: ―CEO‖ → Commander and Chief, Foreign Affairs → Executes the Laws b. Taft – Hartley Act → Congress implied that seizure was bad b/c it rejected an amendment that permitted seizure. c. Theater of War – WHERE the war is taking place. This argument in this case was rejected. d. Look at Justice Jackson’s 1-3 ways the president has power – Pg. 369/370 i. Congress given express or IMPLIED authorization ii. When the president acts in absence of either a congressional grant or denial of authority… he can rely on his own independent powers. iii. When the president takes measures incompatible with the express or implied will of Congress, his power is at its lowest, for then he can rely upon his own constitutional powers minus any constitutional powers of Congress over the matter. The Appointment Power i. Morrison v. Olson 1. PH: Three former govt. officials brought COA challenging authority of independent counsel appointed under provisions of Ethics & Gov.t Act to issue subpoenas compelling their testimony before grand jury. The Tr. Ct found officials in contempt for failing to answer subpoenas, and they appealed. The Ct of App reversed, and appeal was taken. The S Ct Reversed. 2. F: The House Judiciary Committee began an investigation into the Justice Department's role in a controversy between the House and the (EPA) with regard to the Agency's limited production of certain documents that had been subpoenaed during an earlier House investigation. The Judiciary Committee's Report suggested that an official of the Atty. General's Office (appellee Olson) had given false testimony during the earlier EPA investigation, and that two other officials of that Office had obstructed the EPA investigation by wrongfully withholding certain documents. A copy of the report was forwarded to the Atty. Gen with a request, pursuant to the Act, that he seek appointment of an independent counsel to investigate the allegations against appellees. 3. I: Whether the Ethics and Govt. Act mandating testimony of former officials violated the appointments clause, and the separation of powers doctrine? a. P argues: [ant-Morrison I. Counsel] - I. Counsel is an inferior official and therefore only required to approval of a head of a department, the President, or by the judiciary. b. D argues: [ee-Olson] Ethics in Govt. Act violates separation of powers doctrine by reducing President's ability to control prosecutorial powers exercised by independent counsel. Appointment of a principal officer without selection by the President is unconstitutional. 4. R: A2S2C2 Appointment Clause: ―the congress may by law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the courts of Law, or in the Heads of Departments.‖ 5. H: No (1) Act did not violate appointments clause; (2) Act did not violate Article III; and (3) Act did not violate separation of powers doctrine a. Appellant is subject to removal by a higher Executive Branch official, she is empowered to perform only certain, limited functions, and the office only has limited jurisdiction. If the appointments had the potential to impair the constitutional functions assigned to one of the branches then the separation of power would be affected. The Language of the Cl. admits of no limitation on interbranch appointments from one branch to another by Congress. Historically there is nothing to suggest the Framers intended to prevent Congress from having that power. Once it is determined Congress has Appt. Cl. power to appoint independent counsel in ―Courts of

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b.

c.

Law,‖ there can be no A3 objection to the exercise of that power, as the power derives itself from A3. The good cause standard for removal does not get rid of the executive branch authority, nor does it burden the President’s power to control or supervise the independent counsel, as an executive official, the Atty. Gen retains ability to remove for good cause. The Act provides the Attorney General, to report to a special court, to initiate investigations and prosecute certain high-ranking govt. officials, by independent counsel, defines counsel's jurisdiction, and ability to remove independent counsel for good cause. The Act also provides for Congressional oversight of the activities of independent counsels. Class Notes: Separation of powers issue. i. 3 branches – Executive, Legislative and Judicial (Constitution says Congress has legislative power and President has executive power and Courts (Sup. And Inferior) have judicial power. Never mentions branches of government! 1. Article II – ―Executive power shall be vested in A President of the U.S.‖ 2. All executive power flows through the President. (Gets to appoint officials) 3. Congress can vest inferior officer appointment in courts & heads of departments. 4. This case dealt with whether the official is inferior? ISSUE a. Factors: i. Subject to removal ii. Limited Duties Jurisdiction iii. Tenure (Appointment until you are fired) 5. Assistant US Attny. → US Attny. → Attny. General → President of US ii. A System of checks and balances.

d.

e.

Removal Power i. How does removal power relate to executive power? 1. President needs to faithfully execute the laws (his duty). If the Attny general isn’t faithfully executing the laws, the President will remove him or threaten to remove him. 2. The legislature has the power to create impeachment documents and impeach… Foreign Affairs (President has MORE power than when handling internal affairs) i. U.S. v. Curtiss-Wright Export Corp. 1. F: A joint resolution of Congress authorized the President to declare the sale of arms to certain countries illegal. Though the President initially issued a proclamation that declared that sales to Bolivia were unlawful, the President later revoked his proclamation. a. Defendants allegedly sold arms to Bolivia before the revocation of the proclamation, and demurred to the charges against them on the ground that the revocation of the proclamation precluded their prosecution. b. On appeal, the granting of defendants' demurrer was reversed and the case was remanded. c. The President had broad discretion to determine the benefit of enforcing a joint resolution on international relations. The power to make decisions regarding international affairs was vested in the President, especially in areas that could lead to embarrassment of or security issues for the nation. i. D argues: Defendants' argument that the power to declare certain arms sales illegal was invalidly delegated to the President was unjustified. 2. I: 3. R: The revocation of the proclamation did not change defendants' violation of the joint resolution; the revocation only stopped the joint resolution from being enforced against sales to Bolivia in the future. 4. H: The judgment granting defendants' demurrer was reversed and the cause was remanded for further proceedings. In favor of the Gov.’t (President’s actions – P) ii. Dames & Moore v. Regan 1. F: Petitioner company filed an action against defendants, the Government of Iran and Iranian banks, seeking money owed for services performed. The district court issued orders of attachment directed against the property of defendants. Petitioner was granted summary judgment. However, pursuant to an unrelated hostage agreement, American hostages in Iran were released. The U.S. President issued executive orders to implement the agreement. The orders nullified all non-Iranian interests in Iranian assets and suspended all settlement claims. Petitioner filed an action for declaratory relief against the government to prevent enforcement of the executive orders. The district court dismissed the complaint. Petitioner then sought a writ of certiorari. The Court affirmed, holding that the executive orders were sustained by the broad authority granted under the Trade With the Enemy Act. Thus, attachments obtained by petitioner were specifically made subordinate to further actions that the President might take under the International Emergency Economic Powers Act (IEEPA). Also, the President was authorized to suspend pending claims because Congress consented 2. I: 3. R:

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f.

g.

H: The Court granted certiorari and affirmed the dismissal of petitioner's action seeking declaratory relief from enforcement of executive orders that had the effect of nullifying petitioner's claims against Iran. a. The court held that the executive orders were authorized by the Trade With the Enemy Act. b. Also, the President was authorized to suspend pending claims against Iran because Congress consented. iii. The Prize Cases 1. PH: The owners of the scuttled ships and seized cargo appealed the federal ct. order directly to the S. Ct. Affirmed except as to certain cargo which was bought before the outbreak of War. 2. F: President Lincoln declared a blockade of southern ports in 1861. Pursuant to this blockade Union ships seized merchant vessels and their cargoes of foreign neutrals and residents of the southern states. The ships were condemned by federal ct. order. 3. I: Whether the President had authority to institute a blockade of southern ports? YES a. P argues → (Ship Owners) The President has no Constitutional power to initiate or declare war. b. D argues → (Govt) Acts of Congress conferred the authority to the President to act pursuant to wartime. President was already the Commander in Chief and mandated to faithfully carry out and execute the laws of the U.S. which said Acts were. 4. R: A1S8C11 - Congress shall have the power to declare war. 5. H: YES. By Acts of Congress the President is authorized to call out the militia and use the military and naval forces to suppress insurrection against the government of a state or the U.S. The proclamation of the blockade is official and conclusive evidence to the court that a state of war existed which demanded and authorized a recourse to such a measure. The President was bound to meet the war in the shape it presented itself, w/o waiting for Congress. Congress passed an Act ―approving, legalizing, and making valid all the acts, proclamations, and orders of the President as if they had been issued and done under the previous express authority and direction of the Congress. Legislative Action and the Administrative State i. Mistretta v. U.S. 1. F: Petitioner and respondent both requested certiorari before judgment was rendered to consider the constitutionality of the Sentencing Guidelines promulgated by the United States Sentencing Commission. The Commission was created under the Sentencing Reform Act of 1984 (Act), 18 U.S.C.S. § 3551 et seq. (1982 ed., Supp. IV) and 28 U.S.C.S. §§ 991-998 (1982 ed., Supp. IV). The trial court rejected petitioner's contention that the Act was unconstitutional. On appeal, petitioner's first contention was that Congress had granted the Commission excessive legislative discretion. The Supreme Court did not agree. The Court found that Congress had provided guidelines under which the Commission was to operate and that it had not delegated excessive legislative power to another branch of government. The Court also found that Congress had not upset the constitutionally mandated balance of powers among the branches of government. The Court concluded that the Act was constitutional and therefore affirmed the trial court's decision. 2. H: The Court affirmed the decision of the trial court that convicted petitioner under the Sentencing Guidelines when the Court found the Sentence Reform Act of 1984 was constitutional because Congress did not delegate excessive legislative power or upset the constitutionally mandated balance of powers among the coordinate branches of government. ii. Morrison v. Olson – already covered… Nondelegation – Congress has ALL legislative powers. No other body may exercise legislative power. Strictly speaking, there is no acceptable delegation of legislative power. i. INS v. Chadha 1. PH: The INS judge suspended Chadha’s deportation, and referred the hardship application to the Atty. General. Atty. General Katzenbach [McClung case] made a report pursuant to law, to the Congress. Just before the time limit expired the House Sub-Committee recommended deportation to the House w/o submission to other member prior to their vote. It passed w/o debate or recorded vote. After the House veto, it was not submitted to either the Senate or the President, but INS Judge reopened proceedings and Chadha was ordered deported. He then filed petition for review and INS joined him. Ct. of Appeals held House was w/o constitutional authority. Sup. Ct. Affirmed. 2. F: The Immigration and Naturalization Act authorized one House of Congress to invalidate the decision of the Executive, pursuant to authority delegated by Congress to the Atty. General, to allow deportable aliens to remain. Chadha was lawfully admitted on a student visa. A year and a half after his visa expired he was asked to show cause why he shouldn’t be deported for overstaying. He conceded but filed an application to remain claiming extreme hardship. 3. I: Whether the House of Representatives had Constitutional authority to order the deportation of Chadha contrary to Executive decision granting him privilege to remain? a. P argues → [Chadha] Congress may not constitutionally delegate its legislative power to another branch of the government. 4. R: Non-delegation Doctrine - all legislative Powers herein granted shall be vested in a Congress of the U.S.

4.

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H: Convenience and efficiency are not the primary objectives of a democratic govt. Even useful political inventions are subject to the demands of the Constitution, which defines the powers of each branch. Matters that are legislative in character and effect fall w/in procedural requirements of A1S7, and the Act purported to exercise power defined there under to ―establish a uniform Rule of Naturalization.‖ This would alter the legal rights, duties, and relation of Atty. Gen. Executive Branch, and Chadha. ii. Clinton v. City of N.Y. 1. PH: Consolidated case involving the same challenge. U.S. District Court held statute invalid; the cancellations did not conform to the constitutionality for enactment or repealing of laws. Affirmed. 2. F: The Line Item Veto passed by Congress, and six members filed suit. That was initially dismissed for lack of standing for failure to state a concrete injury. Two months later President Clinton used the Act to cancel one provision of the Balanced Budget Act, and two provisions of the Taxpayer Relief Act. The portion of the Taxpayer Act would have allowed the facilitation of transfers between refiners and processors to farmers’ coops. The portion of the Balanced Budget Act would have granted relief to the State of New York for its unpaid portion of taxes related to their funding medical care for the indigent. NY submitted a waiver but received no answer from HHS. NY then applied under Balanced Budget Act which would have granted money for disputed taxes. 3. I: Whether the passage of Line Item Veto Act, which confers legislative power to the executive, was unconstitutionally? a. P Argues → The cancellations are exercises of discretionary authority granted to the President by Congress, and that authority is no more and no less than the power to decline to spend or to decline to implement tax measures. b. D Argues → [The farmers’ coop] The President does not have a Constitutional power to change portions of duly enacted statutes, only to reject the whole bill or pass the whole bill. 4. R: YES. A5 - Grants Congress express authority to enact, amend and repeal statutes. A1S7c2 provides the Executive with the power to either approve in whole or reject in whole. 5. H: The difference between the President’s ―return,‖ of a bill and the exercise of the cancellation authority under the LIVA is a return takes place before a bill becomes a law, and the cancellation after it is a law. The return is of the whole bill, and the cancellation is only a part. The Constitution is silent as to whether the President has power to repeal or amend enacted statutes. President Washington believed that The Presentment Clause requires the President to approve all parts of a Bill or reject it completely. In the foreign affairs arena the President has some discretion and freedom from statutory restriction, (CurtissWright). There is comparison when the President cancels direct spending and declines to spend funds. The President lacks the authority to amend portions of enacted statutes. If the legislation wants to confer additional authority upon the Executive branch it is by way of A5 Amendment to the Constitution, not statutory provisions. 6. Class notes: a. The budget → Line Item Veto i. Congressional Budget is hundreds of pages long and each thing is listed line by line. ii. ―Line item veto‖ – basically taking an item off of the budget. iii. Clinton v. Jones 1. PH: Four ct. civil complaint under 42 USC 1983, charging violations of civil right under color of state law. D. judge denied motion to dismiss, but ordered the trial stayed until the end of petitioner’s presidency. Both appealed. Ct. of App. affirmed denial, and reversed stay claiming it amounted to a functional equivalent of a grant of temporary immunity. Affirmed. 2. F: While the Governor of Arkansas Clinton, attending a conference at the Excelsior Hotel, gave a speech. Jones, Respondent, while working as a state employee staffed the registration desk. Allegedly Petitioner made sexual advances of which respondent rejected. Jones then claims her superiors dealt with her in a hostile and rude manner, changing her duties to punish her for rejecting Clinton’s advances. 3. I: Whether the Constitution affords the President temporary immunity from civil litigation arising out of events that occurred before he took office? a. P argues→ (Respondent) The acts involved in the suit relate only to the individual’s actions prior to becoming President. b. D argues → The separation of powers doctrine limits the authority of the Judiciary from interfering with the executive branch. 4. R: NO. [Fitzgerald] Former President is entitled to absolute immunity from damages predicated on his official acts. The Office of the President created under A2, and the separation of powers, limits the judiciary from interference with the Executive. 5. H: The respondent is merely asking the courts to decide, A3, case and controversy under their jurisdiction. The litigation questions that relate entirely to the unofficial conduct of the individual who happens to be the President poses no perceptible risk of misallocation of either judicial or executive power. Sitting Presidents have responded to court orders to provide testimony, with sufficient frequency that such interactions between the Judicial and Executive can scarcely be thought of as a novelty.

5.

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6.

Class notes: There are certain things that give you the right to deferral such as illness or illness of a spouse etc. President Clinton is concerned about the safety of the nation while enduring a lawsuit. The importance of the event is balanced against the burden on the other party. iv. U.S. v. Nixon 1. PH: Review of a Dist. Ct. denial of motion to quash subpoena duces tecum directing the President to produce certain audio tape recordings, and documents. President appealed the rejection to Ct. App. Affirmed 2. F: A grand jury returned indictments against several White House staff members, and members of the Committee for the re-election of the President, for numerous offenses. The President was named as an unindicted co-conspirator. The Special Prosecutor issued a subpoena duces tecum to the President for tapes, memoranda, papers, transcripts, or other writings of meetings between himself and the others. 3. I: Whether the factual items at issue are protected from judicial review by separation of powers as a Presidential privilege? a. P argues → (U.S.) Legitimate needs of judicial process in a criminal proceeding outweighs generic communications of the President. b. D argues → (President) Confidential conversations between a President and his advisors are protected from judicial review under the separation of powers. 4. R: A2 separation of powers; a privilege is derived from the supremacy of each branch within its own assigned area of constitutional duties. Certain powers and privileges flow from the nature of enumerated powers. 5. H: When a privilege depends solely on the broad, undifferentiated claim of public interest in the confidentiality of such conversations, a confrontation of other values arises. Absent a need to protect military, diplomatic, or sensitive nations secrets, a very important interest in confidentiality of Presidential communications is significantly diminished by production of such material for in camera inspection. To assert such a privilege would upset the Constitutional balance of a workable government and gravely impair the role of the courts under A3. To ensure that justice is done, it is imperative to the function of courts that compulsory process be available for the production of evidence needed either by the prosecution or by the defense. 6. Class notes – ―No man is above the law…‖ (garbage) and then said we don’t want to embarrass the President by holding him in contempt. a. Chain of command → President → Attny. General → U.S. Attny. (trial lawyer / independent counsel) → AUSA (Dist. Attny.) b. You can’t go up from the bottom and have a judge order the person above you in the chain of command to hand over privileged tapes. i. Separation of powers issue. h. Executive Power and Immunity i. Not in the Constitution, but it is implied. ii. Confidentiality is a main reason what the president is absolutely immune from civil liability for his official actions. iii. The Constitution creates an executive privilege… implied. 1. Other privileges that exist: a. Spousal (common law – made up) b. Executive (Constitutional right) c. Legislative d. Dr./Patient (common law – made up) e. Lawyer/Client (common law – made up) f. Clergy/Churchgoer (Common law – made up) Due Process – Chapter 6 a. There are two Due Process Clauses: i. The 5th Amendment bars the federal government from depriving any person of ―life, liberty, or property without due process of law‖ 1. Property interests – property, job etc. 2. Liberty interests – right to vote, civil liberties, free speech 3. Due Process also requires: a. Notice (indictment), opportunity to be heard, and unbiased decision-maker (jury) b. Also – the right to confront your accuser. ii. The 14th Amendment applies the same prohibition to the STATES. b. Due Process claims are only enforceable against the government. c. Procedural Due Process: i. Opportunity to be heard ii. Notice iii. Life, Liberty or Property must be involved. (Life is easy, liberty and property are a little harder… losing business and reputation can be considered property.)

6.

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d.

e.

f.

Property is defined by state law – EX; property in a job… only if the statute says you are entitled to keep this job until you have done something bad. You have a property interest in keeping the job UNTIL you have done something bad. Substantive Due Process i. Barron v. Baltimore 1. F: 2. I: Whether constitutional powers can be protected as against the states? 3. R: ii. Slaughter-House Cases 1. F: State of LA gave one slaughterhouse the monopoly to have their own slaughterhouse, and NO ONE else in and around the N.O. area. 2. R: No violation of the Due Process Clause. The focus of this case is the Privileges and Immunities Clause… a. Article IV: Focuses on the equal privilege among citizens of different states. b. Amendment 14: Focuses on the privileges of citizens of the U.S. i. Rights under Article IV: (equality for citizens of different states) 1. Fundamental (commerce) a. Not like the right to a hunting license… b. Includes: i. Earn a livelihood ii. Right to buy/sell land ii. Rights Under 14th Amendment (rights as citizens of the U.S.) 1. Rights Include: a. Foreign commerce b. Petition federal government (right to file a case in federal court) c. Seaports / Roads d. Right to vote 3. H: As a citizen of LA, you may have a state constitutional right to earn a livelihood. iii. Saenz v. Roe 1. F: The ct. invalidated a CA law restricting the welfare benefits of new residents for the first year of their residency in CA to the level provided by their former state of residence. 2. R: There is no such thing as short or long-term residency. You either are a citizen or not and if you are, everyone has the same rights. iv. Incorporation: From Privileges and Immunities to Due Process 1. Is the state prohibited from violating all of the Bill of Rights? a. NO. Only the fundamental rights of the Bill of Rights are protected under the Due Process Clause. b. Not all amendments in the Bill of Rights are considered fundamental. (Only the rights that are fundamental and rooted in our traditions) i. Incorporation into the Due Process Clause: 1. EX; Right to a jury trial. v. What rights are rooted in our traditions? 1. Durden – it depends who is doing the writing… 2. Rights: a. RIGHT TO ECONOMIC LIBERTIES (RIGHT TO CONTRACT) The Rise and Fall of Economic Rights as the Substance of Due Process i. Lochner v. New York (bakery hours worked case) 1. F: N.Y. statute put a cap on the number of hours worked by bakery employees. 2. I: Is this a fair and reasonable exercise of the police power of the state, or is it unreasonable, unnecessary and an arbitrary interference with the right of the individual to his personal liberty OR to enter into those Ks in relation to labor which may seem to him appropriate or necessary for the support of himself and his family? 3. R: Statutes limiting the hours in which grown men may labor to earn their living are meddlesome interferences of the rights of the individual and they are not saved from condemnation by arguing that it is POLICE POWER which allows a state to have a statute like this. 4. H: Although passed in the assumed exercise of the police power and is relating to the public health, or the health of the employees named, it is not with in that power and is therefore invalid. The Modern Revival: Privacy Rights i. Contraceptive Use ii. Griswold v. Connecticut 1. F: Two appellants, Griswold, the executive director of PP and Buxton, a Yale Med. School Professor, gave information, instruction and medical advice pertaining to preventing pregnancy for married couples. They were each found guilty as accessories and fined 100$ each for their involvement in the ―CRIME‖ of 1.

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disbursing info. RE: the use of a drug, medical article or instrument for the purpose of preventing contraception. They appealed under the Due Process Clause of the 14 th Amendment claiming it is not constitutionally a crime. 2. I: Whether the right to a married couple’s privacy is protected under the Constitution or Bill of Rights? 3. R: Privacy is fundamental and it is older that the Bill of Rights. Specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. iii. Abortion iv. Roe v. Wade 1. F: Jane Roe, a single pregnant woman sought a declaratory judgment that the TX criminal abortion statutes were unconstitutional on their face, and an injunction restraining their enforcement. Roe argues that the TX statutes improperly invade a right, said to be possessed by the pregnant woman to choose to terminate her pregnancy. This RIGHT can be found w/in the meaning of personal liberty embodied in the 14th Amendment’s Due Process Clause OR in the personal, marital, familial, and sexual privacy said to be protected by the Bill of Rights or its’ penumbras (Griswold) OR among those rights reserved to the people by the 9th Amendment. 2. I: Whether the right to an abortion is protected under the Constitution of the U.S.? 3. R: YES. Until viability of the fetus, a woman has a fundamental liberty interest to be free of undue burdens placed by the state on her decision to terminate her pregnancy. An undue burden is anything intended to create or that has the effect of creating a substantial obstacle to an abortion. Unemancipated minors may be required either to notify their parents or obtain judicial permission prior to obtaining an abortion. In general, it is not an undue burden on the abortion right for governments to refuse to fund abortions. a. History: i. Greeks – abortion was lawful ii. Common Law – abortion was allowed and practiced. b. Other factors: i. Zone of privacy – right to control their own body. ii. Financial interests – having a kid is expensive! c. State’s interests: i. The life of the unborn ii. The life of the mother iii. Both are separate and become more ―compelling‖ as the mother gets closer to term. d. Trimester System from Roe i. 1st: decision left to mother and primary physician ii. 2nd: the state may regulate abortion in ways reasonably related to maternal health (health of the mother) iii. 3rd: State may promote the interest of human life may regulate and even proscribe abortion except where it is necessary in appropriate medical judgment, for the preservation of the life or health of the mother. 1. Emotional health – Oedipal scenario – Mother can’t deal with the child based on the father or the situation etc. 2. Physical health – short-term diabetes, dehydration, bed rest, etc. v. Planned Parenthood of Southeastern Pennsylvania v. Casey (Does not outlaw abortion, just pushes regulations a little) 1. PH: District Ct. held all the provisions of the act unconstitutional. Ct. of appeals upheld all the provisions except the inform husband provision. 2. F: Pennsylvania Abortion Control Act had following provisions: a. 1. 24 HOUR WAITING PERIOD (Makes the person getting the abortion go to the clinic twice – it is an undue burden. Another problem is that you would have to go through the abortion protestors twice.) i. Neranburg Files – website of abortion doctors for anti-abortion propaganda. b. 2. SPOUSAL CONSENT (The man would often not consent b/c it is her body and it is easy for the man to claim to want the child.) i. Past exam question - man doesn’t want children, woman puts hole in the condom, she gets pregnant, she won’t get an abortion, the child is born and the man claims he shouldn’t have to pay for the child. Does he have a constitutional right to avoid paying for the child? (Ct. is undecided) c. 3. INFORMED CONSENT d. 3. MINOR / PARENTAL CONSENT OR JUDICIAL BYPASS e. 4. CLINICAL REPORTS 3. I: Whether the five provisions of the Pennsylvania Abortion Control Act of 1982 violate the DPC of the Constitution?

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vi. vii.

viii. ix.

R: Woman’s liberty in terminating her pregnancy comes from Due Process Clause. Even though DPC from its language seems only concerned with procedure, it also bars government actions regardless of the fairness of the procedure used to implement them. Furthermore, neither the Bill or Rights nor the specific practices of States at the time of the adoption of the 14 th Amendment marks the outer limits of the substantive sphere of liberty which the 14th Amendment protects. 5. The court rejects the argument that Roe v. Wade should be overruled. According to the court, the circumstances relating to the issue have not changed as to convince the court that Roe is not workable anymore. a. But the court does reject the trimester framework of Roe and adopts the Undue Burden Standard. i. → Under this standard, a provision of law is invalid if its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability. But state may take measures to ensure that the woman’s choice is informed. Under this rule, the 24 hour waiting period of the Pennsylvania Act is not an undue burden. Furthermore, state’s requirement that woman be given her complete options before abortion also not undue burden. Also, consent of parent for minor pregnant mothers is OK as long as there is judicial bypass. 1. But the requirement that married women inform their husbands does place and undue burden on women in obtaining abortion. Even though State argues that this provision affects less than 1% of women getting abortion, but proper Constitutional inquiry is the group for whom the law is a restriction, not the group for whom the law is irrelevant. 6. Class Notes → a. Why don’t they vote to overturn Roe? i. Stare Decisis. 1. But why does anything ever get overturned then? 2. Where there facts have changed or come to be seen so differently as to have robbed the old rule of significant application or justification. a. Ex; Plessi v. Ferguson – overturning ―separate, but equal.‖ b. What is life? What real privacy rights do we have? i. Cloning argument / Drafting women to deliver unwanted children for purposes of government draft / Laci and Scott Peterson case – baby (2nd degree murder) Laci (1st degree murder) 1. Compare the 2nd degree charge to someone who cuts off the electricity in the whole state and even though you didn’t mean to hurt anyone else, however, certain people need electricity and they will die → 2 nd degree charge probably. Consensual Sexual Choices Bowers v. Hardwick 1. F: Hardwick; the defendant was charged for violating a Georgia statue which criminalized sodomy committed between two adult males. The defendant argued that he was a homosexual and laws criminalizing consensual sodomy were unconstitutional. The court of appeals agreed with the defendant and ruled that the Georgia statute was unconstitutional under the 9th Amendment and Due Process Clause of the 14th Amendment. Now the state appeals. 2. I: Is homosexual sodomy one of the fundamental rights offered by the Constitution? 3. R: NO. 4. H: The court stated that fundamental rights are rights which are "deeply rooted in this nation's history and tradition" or the rights which are essential to the existence of liberty. But homosexual sodomy, the court ruled, met none of these requirements and it can not be considered a fundamental right. The court used the fact that many states still had laws against homosexual sodomy and the court ruled that it was not ready to tell all these states that all their laws against homosexual sodomy were unconstitutional. a. Reversed the lower court. Family Relationships Moore v. City of East Cleveland 1. F: D lives in a dwelling with an unconventional ―family‖ situation and therefore since her family doesn’t fit under the statute, she is convicted of a criminal offence. The City argues that the only family protected is the nuclear family – blood, adoption or marriage. D lives with her son and grandsons. 2. I: Whether the dwelling ordinance violates the DPC of the 14 th Amendment? 3. R: People have the fundamental liberty interest in living with their extended family members as a family unit. There is a fundamental right on the part of parents to rear children as they see fit and to maintain their relationship with their children, but this latter aspect of the right exists more to preserve existing parentchild relationships than it does to create them on the basis of genetic relations alone. 4. Reversed in favor of the D, tenant with family. 4.

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x. Right to Die xi. Cruzan v. Director, Missouri Department of Health 1. F: Vegetable of a person with no living will whose family wants to pull the feeding tubes. 2. I: Whether Cruzan had wishes to continue living in her vegetative state? 3. R: If you don’t want the feeding tubes in you, put it down on paper ASAP. xii. Washington v. Glucksberg 1. F: Physician-assisted suicide case. 2. I: Whether WA’s prohibition against causing or aiding a suicide offends the 14 th Amendment? 3. R: No it does not. a. Class Notes: b. The advantage of making suicide illegal: i. Deterrence for others. ii. Makes it a crime so that law officials can intervene. (Neighbor sees you about to shoot yourself – cops can come in response to a call since it is a crime and intervene.) iii. The gov.t will try to stop a suicide, so you cannot have a RIGHT to commit suicide. iv. Why does the court say you cannot help someone commit suicide? 1. No constitutional right to have someone help you. 2. History: a. Original intent… 14th Amendment (1870) b. State laws c. Suicide has ALWAYS been illegal! (Greeks, Bible etc.) Chapter 7 Economic Rights: The Takings and Contracts Clauses a. The Takings Clause – 5th Amendment i. “Private property shall not be taken for public use without just compensation.” ii. Public Use Requirement iii. Hawaii Housing Authority v. Midkiff 1. F: The HHA had enacted the Act after the Hawaiian legislature discovered that only a small number of landholders owned the state's land. The legislature concluded that concentrated land ownership was responsible for skewing the state's residential fee simple market, inflating land prices, and injuring the public tranquility and welfare. The HHA held a public hearing concerning the acquisition of the landowner's property and made the statutory finding that the acquisition of the property effectuated a public purpose under the Act. The HHA then ordered the landowners to submit to compulsory arbitration, to which the landowners responded with the lawsuit. 2. R: The Court found the Act constitutional by limiting the number of lots any one tenant could purchase and authorized the use public funds to ensure that the market dilution goals were achieved. The Court held that the HHA enacted the Act not to benefit a particular class of individuals but to attack certain perceived evils of concentrated property ownership in Hawaii, which was a legitimate public purpose, and that condemnation was not an irrational power to achieve that purpose. 3. H: The Court reversed the judgment of the appeals court and remanded for further proceedings in conformity with the Court's opinion. a. Class Notes: b. What is a ―public use?‖ c. But the government was not actually USING the land… they just offered it up at a public hearing. d. There is a tax advantage to a condemnation as opposed to selling the land – benefit to the prior land owner who owned all that land. iv. Pennsylvania Coal Co. v. Mahon 1. F: Defendant appealed appellate court's decision for plaintiffs in plaintiffs' suit to enjoin defendant from mining under plaintiffs' house and removing the supports and causing subsidence. A deed granted plaintiffs the surface rights to certain land but reserved to defendant the right to mine all coal under the house. Plaintiffs argued that the Kohler Act, 1921 Pa. Laws 1198, extinguished defendant's right to mine under plaintiffs' surface land. The Court reversed. 2. R: The Court held that the Kohler Act was unconstitutional as a taking of defendant's rights under a valid contract. In order to protect themselves, plaintiffs should have contracted to acquire more than the surface rights. The Kohler Act could not have been used to terminate the valid contractual rights defendant received, nor could the Act could be used to take defendant's contract rights without adequate compensation. 3. H: The Court reversed the lower court's decision, finding that the Kohler Act was not a legitimate exercise of police power, but rather was an unconstitutional taking of defendant's contractual and property rights because it served to take away those valid rights without adequate and just compensation. 4. Class Notes: a. If regulation goes TOO FAR it will be recognized as a taking. Pg. 611 v. Miller v. Schoene

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vii.

viii. ix.

x.

F: Government was trying to save the environment and protect the economy of a specific industry. Wanted to eliminate the harm to the cedar trees. 2. I: 3. R: Lucas v. South Carolina Coastal Counsel 1. F: Government went on the land to protect and eliminate the harm to the habitat of the shoreline. (Trying to prevent a harm to the environment) 2. I: Can there be a taking where the land is said to have a zero value? 3. R: There was a taking b/c there was not an actual harm. 4. Class Notes: a. Necessity is ok and not a taking (ex: child buried alive in your yard) b. What is a taking? c. Something that goes too far. i. What is too far? ii. The test the ct. uses: 1. No set formula to determine if there has been a taking. 2. BUT do look at: a. Economic impact on the claimant (distinct investment-backed reasonable expectations) Inherited… b. Can the property be segmented? What piece was taken? (Air Rights) 3. Balancing public benefits and costs. iii. Factors to consider: iv. Physical invasion and deprivation of all economically viable uses of the land. Penn Central Transportation Co. v. New York City 1. F: Penn Central’s Grand Terminal was determined to be a landmark and they were prevented from building a 55 story slab-sided addition. 2. I: Whether this constitutes a taking? 3. R: The owner still had economically viable use – not a taking. You bought it for use as a train station, you can use it as a train station and that is it. 4. Class Notes: Determining a Taking: a. No viable economic use. b. Permanent physical occupation. c. Abating nuisance. (Government’s defense) (Capturing a criminal, preventing some serious harm caused by what is on your property etc.) (Balancing out with the public benefit) d. Balancing public benefit v. burden on the property owner. * Balancing Test * e. Reasonable investment-backed expectations (If it is illegal to make beer in TX, to buy a brewery for making beer would not be a reasonable investment-backed expectation.) f. Character of government action i. Does the government possess the property? (Possessory) OR ii. Did they just reduce the value of the property? (Regulatory) Conditional Regulatory Takings Nollan v. California Coastal Commission (NO NEXUS) 1. F: Nollan bought a shack and wanted to build a nice house, and the city won’t allow him to have a permit unless he allows an easement for beach access for the public. 2. I: Whether it is a taking to put conditions upon a building permit making the landowner provide a permanent easement for public beach use? 3. R: A permanent physical occupation IS a taking. 4. Class notes: a. The government interest is the people of CA could see more of the ocean around the little shack. If they want to build a bigger house, they have to make up for the fact that the view of the beach is impaired and providing as easement would give that view back to the people of CA. b. You bought it as a 3-bedroom cottage – you have to use it that way – not a taking. Dolan v. City of Tigard (ROUGH PORPORTUNALITY) 1. F: Wouldn’t give landowner with a store a permit unless she provides an exaction for a bicycle path and flood plain both, constituting 10% of her property. They asked for title also. 2. I: Whether these demands constitute a taking? 3. R: It is logical to set aside land for flood control since she might create more runoff by making a larger structure. It fails the rough proportionality test – b/c they weren’t sure if the bike path would reduce traffic. Flood easement could (maybe) alleviate extra flooding… 4. Class notes: What the city is asking her to give up is out of proportion to the possible minimal benefit to the city. (An exaction is a taking – you need to compensate them to it.)

1.

Sarah Graff / Fall 2004 / Durden/ Con Law II

This entire case is about a typographical error – should have written ―WOULD‖ and not ―COULD.‖ (―Want to predict with certainty‖) xi. The Contracts Clause – no state shall impair the obligations of Ks. (BUT THEY DO - IF IT’S ―REASONABLE‖) 1. Protects against the impairment of K. But the government can prohibit you from entering a K if you aren’t already in one. Only protects existing Ks. xii. Home Building & Loan Association v. Blaisdell 1. The law enabled people who were behind on their mortgages during the Great Depression a deferment instead of allowing the property to go to foreclosure. (Basically a breach of K, which generally leads to foreclosure.) This was a tremendous impairment of the K. a. Why are they allowed to get away with it? i. Impairment of the Ks protection is balanced against the public’s need to hold onto their property. ii. You have protection against the impairment of Ks, UNLESS the government has a good reason to impair your K. -Durden 2. Class notes: a. No state should unreasonably impair the obligation of Ks. b. Purpose of the K clause → the concern that the states were going to absolve debtors of their debts. c. Dartmouth – Ks clause doesn’t apply to government Ks. d. When does the government get to impair a K? i. For the protection of a basic interest of society. ii. The Ks clause is of no significance after something like a nuclear attack or civil war etc. 1. Florida hurricanes – an emergency grace period for mortgages of people whose houses were destroyed while they are being re-built up to 6 months. e. a.

Sarah Graff / Fall 2004 / Durden/ Con Law II


				
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