Justiciability 1. Standing: Constitutional—injury, causation, and redressibility. Prudential—no 3rd party standing, no generalized grievances: 2 exceptions; must be w/in “zone of interests. 2. Ripeness: matter must be ready for review, not speculative. Harm must be actual or imminent. 2 considerations: hardship to party and enough info to make decision. 3. Mootness: actual controversy. 3 exceptions: Wrong capable of repetition, Voluntary Stop, free to return & Properly Certified Class Actions. 4. Political Question Doctrine: issues that should be decided by another branch of gov’t. EX: foreign affairs, 6 Factors f/ Baker. Federal Legislative Power Congress has express/implied power under enumerated powers and auxiliary through N&P clause. States have all powers except what the constitution prohibits. 2 questions when looking at act of congress. McCulloch v. MD: N&P clause allows congress w/ means to effect it’s enumerated powers. Commerce Power: Art.I§8c3. Gibbons v. Ogden: expansive application of CC. 1890-1937: narrow application, w/ 10th as limit on Congressional Authority. 1937-1995: expansive.(substantially effects)Wickard Wheat Case. 1995-present: narrowing. Test is rational basis. Commerce among the states includes regulation of: channels of IC, instrumentalities of IC, and activities that substantially effect IC (Gonzales). Lopez test for “substantially effects”: (1) is activity economic?; (2) is there jurisdictional element in statute—does statute say, “violation of this act requires a court of law to determine whether the violation had a substantial effect on IC”?; (3) Congressional findings; (4) is relationship b/w activity and IC “too attenuated”?; and (5) Is the activity truly local? 10th Limitation: congress may encourage states to act in certain way and may preempt state laws that are contrary to federal interests. MAY NOT require states to act in certain way. Taxing and Spending Power: Art.I§8. 3 textual limitations of federal taxes: uniformity: geographical exclusion, proportionality, and apportionment. Tax is valid if: (1) it bears some reasonable relationship to revenue production; or (2) if congress has the power to regulate the taxed activity. Congress can’t tax exports—EXCEPTION: can tax during mnft. stage. Can’t impose taxes that are purely regulatory. Butler: can tax for the gen’l welfare so long as not in violation of constitution. SD v. Dole test for whether violation of spending power : (1) is condition for general welfare? Subst deference; (2) is condition unambiguous so that the state can exercise its choice knowingly?; (3) is the condition related to the particular expenditure?; and (4) does the condition conflict w/ another constitutional provision? Congress can regulate indirectly through attaching strings to spending, where it cannot legislate directly. Presumption that revenue-raising measure is a tax is hard to overcome—generally tax is only invalidated if it is strictly penal or regulatory
Post-Civil War Amendments Includes 13-15th amendments. Katzenbauch: Congress may regulate an area of state law in order to enforce equal protection pursuant to §5 of 14th so long as the legislation is appropriate to enforce EPC—“plainly adapted to that end,” and whether it is “not prohibited by other provisions of constitution.” Flores: remedy must be congruent and proportional to the injury being remedied. Sovereign Immunity US may sue a state w/o its consent. States may not sue the federal gov’t w/o it’s consent. 11th amendment bans suits against a state by citizens of another state or foreign state. Congress may authorize suits against a state by citizens of another state through its reconstruction powers. There must a “clear and unequivocal” congressional intent to abrogate the state’s sovereign immunity. TEST Three Levels of Scrutiny under Equal Protection: 1. Strict Scrutiny: racial; compelling gov’t interest. 2. Intermediate: gender; substantially related to imp gov’t interest. 3. Rational basis: age. Rationally related to legitimate gov’t purpose. Analyzing Equal Protection Violations: (1) ID the 14th violation; (2) ID level of scrutiny; and (3) was congress’s act “congruent and proportional” to the wrong they were remedying? Federal Executive Power Foreign Affairs: Treaties Executive Agreements Hierarchy of Treaties vs. Executive o Ts & EAs prevail over conflicting state laws o If T conflicts w/ federal statute, the one last in time controls o If EA conflicts w/ fed’l statute, statute controls. o Treaties and EA laws are invalid if they conflict w/ constitution. War Powers o WPR: response to Viet Nam o Art I: Congress power to declare war and raise/support army and navy o Art III: makes Pres. commander-in-chief o President can authorize US forces into hostilities: Declaration of War by Congress Specific statutory authorization, or A nat’l emergency created by attack on US, its territories or possessions, or its armed forces. o S & T of suggest that C and P should decide collectively when to send troops into host. o Prec: look to statutes, b/c no case law on this. Belief that WPR codify past actions by C and P. Domestic Affairs: Appointment and Removal o Rule f/ Morrison v. Olsen: Inferior Officer if: officer is subj to removal by higher exec branch official, has only certain limited duties, and has only limited jurisdiction. Veto Pardons Immunity: absolute immunity f/ civil suits and money damages while in office.
Executive Privilege: in civil litigation. Policy is that diplomatic interests require confidentiality of certain info. In criminal cases: interests in doing justice outweigh diplomatic interests, so no privilege
Congress can increase Pres’s power by conferring authority not contained in the constitution. 2 approaches. Preemption and Dormant Commerce Clause Aka: Limits on the state’s regulatory and taxing power Preemption and the Supremacy Clause: SC says that the Constitution and federal laws are the supreme law of the land. (Art. VI § 2) Express (1 gen’l way) and Implied Preemption (2 ways) Intergovernmental Immunity: Absolute federal immunity f/ state taxation. Limited State Immunity f/ Fed’l taxation: federal gov’t cannot tax a state’s basic gov’t functions. Dormant Commerce Clause States may regulate where Congress has not w/ re: to the Commerce Clause if the regulation: (1) does not discriminate against out-of-state competitors to protect local economic interests, and (2) it is not unduly burdensome on IC—the burden on IC does not outweigh the local benefits of regulation. 3 types of laws that potentially disc against IC: (1) Laws whose purpose is to regulate IC, or whose effect is to control out-of-state transactions; or (2) Laws that discriminate against IC; or (3) Laws that don’t discriminate, bur burden IC EXCEPTIONS: (1) Necessary to important state interest: no reasonable alternative and furthers a non-econ interest; (2) Market participant; (3) Has Congress “unmistakably” consented to a state law that affects IC? Analysis if State Law regulates IC: (1) Does the law represent the least burdensome means for the state to achieve its goal? (2) (2) Is the law rationally related to a legitimate state interest? (3) (3) Does the law have the practical effect of regulating out-ofstate transactions? (1) (4) Is the burden on IC excessive compared to the local benefit? (3) (5) Does the law represent the least discriminatory means for state to achieve its purpose? a. Law may be disc in 3 ways: i. On its face ii. As applied (facially neutral) iii. Disproportionate impact on out-of-state economic interests (Apples) Incorporation of Bill of Rights into the DP Clause of 14 th BoR is incorporated through the DP clause of the 14th amendment. Rights that have been incorporated: 1st, 4th, 5th, 6th, 8th. State Action: State action is a threshold requirement of gov’t conduct which must be satisfied before private discrimination can be restricted. EXCEPTIONS: public function, encouragement or facilitation. Economic Substantive Due Process Defined: the application of due process to protect real and personal ¶ and to assess econ infringements on econ liberties. i.e., freedom to K and freedom to pursue trade/occupation.
Lochner: (1) Liberty to K given extreme protection w/ Strict Scrutiny as standard for evaluation; (2) court substituted its own understanding in deciding whether a legislation’s interference w/ freedom to K was justified by imp. gov’t interest; and (3) court rejected the “general welfare” argument—seeking to redress inequalities in bargaining power was violative of DPC. Post Lochner: (1) Freedom to K was now considered an ordinary liberty; (2) Rational basis was the standard; (3) law passed for “general welfare” would be given more deference. Rational Basis: whether there is some legitimate end that a rational legislator might have thought the law would further. Contracts Clause Art. I, § 10. this limits the power of a STATE to alter the legal obligations created by PREEXISTING K. Analysis: 1. Is there a Kual obligation? a. ? of Federal Law: Law of Ks b. Implied Obligations: those so central to BFX that it must deemed term of K. Laws affecting validity, construction, or enforcement rise to this level as well. 2. Does a Δ in state law impair the Kual obligation? Any change is said to impair. 3. Is the impairment substantial? Extent that parties’ expectations were upset. Look to: a. Parties’ actual intentions b. Centrality of expectation to BFX c. Economic consequences. d. Area of change previously heavily regulated by gov’t? 4. If answer is yes to 1-3, apply a BALANCING TEST: balance state’s interests vs. impairment to K. It is difficult to estb a violation of the K clause. K clause doesn’t apply to federal gov’t. BUT, where federal legislation has a substantial retroactive effect on existing K, DP of 5th will step in. TEST IS MODESTLY HEIGHTENED SCRUTINY. Government Interference w/ State Contracts (1) Reservation of Powers Doctrine: legislation may not be enacted w/ re: to a preexisting PUBLIC contract where that legislation would abrogate sovereign immunity. (2) If K clause does apply, standard of review will be LESS DEFERENCIAL than that for private cases. Takings Clause Defined: gov’t may not take private property unless it is for public use and they provide just compensation—measured in terms of mkt value of ¶. Not an enumerated power—applied through necessary and proper clause. *Pub. Use: broad. “rationally related to conceivable Public purpose.” (1)Possessory Takings: permanent invasion?; temporary but harmful invasion?; Gov’t action arbitrary or destructive of expectations? (2)Regulatory Takings: more flexible standard. Analysis: *Does reg arbitrarily single out some person or adverse treatment? *Does reg violate investment-backed assurances? *Does reg strip ¶ of all econ val or viable use? *Does nuisance exception apply? (3)Imposing Conditions: would condition on its own represent a taking? If yes, then *Does condition bear nexus to legit. state purpose? *Impact of condition proportionate to impact of proposed development? * If yes to last two, then not a taking.