Con Law Bar Bri Outline I. Federal Judicial Power (authority of fed cts) a. Authority of Judicial review (Art III ) i. Marbury v Madison: authorizes judicial review of federal laws/executive actions 1. constitution doesn‟t do this explicitly in the text ii. Martin v Hunters Lessee, etc: established authority for judicial review of state courts decisions/actions 1. Sup Ct of US has authority to review state ct decisions; 2. Federal cts can review constitutionality of state/local actions b. Requirement for Cases/Controversies (Art III) i. Has given rise to series a limits on federal court power: justiciability doctrines (4): standing, Causation ii. Standing: most important 1. def: whether Pl is proper party to bring matter to ct for adjudication a. 4 requirements: injury, 2. Injury: a. Def: PL must prove that he has been or imminently will be injured; Pl must present personally suffered injury b. Sierra Club: 3. Causation/Redressability: a. Def: Pl must allege/prove that Df is cause of harm, so favorable decision is likely to remedy harm b. Prohibition on issuing advisory opinions i. IRS case rd 4. No 3 party standing is allowed a. Def: where Pl presents claims of others (3 rd parties) who are not before the Ct; must be personal b. Exceptions: close relationship; cant assert own rights i. If there is a sufficiently close relationship b/t Pl and injured 3rd party 1. ex: doctors asserting rights of patients, parents asserting rights of kids, 2. non-custodial parent lacks standing ii. If injured 3rd party is unlikely to be able to assert his own rights 1. ex: criminal dfs, 5. No generalized grievances are allowed a. Def: situation, where Pl‟s only claim, is citizen objecting gov‟t violating law, tax payer‟s objection i. Something is not generalized grievance just b/c a lot of people got injured b. US v Richardson: Richardson sued b/c CIA secret budget violated statement account law; he lacked standing b/c his only claim was generalized grievance
c. Exception: tax payers have standing to challenged gov‟t expenditures as violating the establishment clause. i. Flast v Cone: fed aid to parochial schools; Sup Ct allowed tax payers standing, b/c establishment clause was suppose to be a limit on govt iii. Ripeness: 1. Def: may federal Ct grant pre enforcement review of statute or regulation; usuall way of challenging law is violate it, be prosecuted, argue as unconstitutional a. Sometimes people want a declaratory judgment that law is invalid b. So, Ct must determine if there really is a case/controversy c. If there is a request for declaratory judgment, it is a ripeness issue 2. Ct looks at 2 Criteria: a. Hardship Pl will suffer w/o pre-enforcement review i. Greater the hardship Pl will suffer, the more likely it is that fed ct will here the case b. Fitness of issue sin record for judicial review i. Does fed ct have all that it needs to effectively decide the issue ii. Is it better off to wait for actual violation of law to decide iii. Abbot Labs v Gardner: FDA had rule that all drug ads/labels had to state generic name of drug; Drug Corps wanted Dec-Judgment; Ct found it was ripe 1. hardship would be great: criminal penalties for violating rule, lose millions for complying w/rule 2. fitness of issues: does FDA have legal authority to adopt rule? Is only a question of law; waiting for violation wouldn‟t improve fitness any iv. Mootness 1. Def: if events after filing of lawsuit end Pls injury, then case is dismissed as moot; a. Pl must present live controversy, ongoing injury 2. Exceptions where Ct can here cases even though there moot: a. A wrong capable of repetition but evading review i. Must be a chance that it would happen again, but will always avoid review ii. Ex: Roe v Wade: Roe was pregnant, wanted abortion, by time it went to Sup Ct she wasn‟t pregnant; Ct decided case anyways
b. Voluntary cessation: if Df voluntarily hault offending practice, but is free to resume it at any time case wont be dismissed at moot i. Ex: employer sued for discriminatory hiring, is sued, and agrees to never use hiring practice again; Df could resume practice though in future v. Political Question Doctrine 1. def: allegations of constitutional violations that fed cts will not adjudicate a. some constitutional provisions are left to political branches to interpret/enforce b. Baker v Carr test: 2. Challenges to the presidents conduct of foreign policy a. Ex: lawsuits about Vietnam 3. Challenges to impeachment/removal process a. Nixon v US: fed ct judge impeached by HOR, went to Senate; Ct ordered case dismiss as political question 4. Challenges to partisan gerrymandering a. Vieth v Jubilere: Penn legislature construed congressional seats to maximize seats for republicans; this is nonjusticiable II. Federal Legislative Power (Art I) a. Congress’ authority to act: congress may act only if there express or implied authority i. No general federal police power: state/local gov‟ts have police power to do anything that is not prohibited by constitution 1. but congress cant do this, needs express/implied authority ii. Necessary Proper Clause 1. Art I: congress can enact all laws that are necessary and proper to carry out its authority 2. McCullough v MD: congress can choose any means not prohibited by constitution to carry out its authority a. Ex: if congress wanted to have national bank sale to raise money for army; nothing in const. says this; but congress could do this as a means iii. Taxing/Spending/Commerce Clause powers 1. Art I §8: lists many powers; but vast majority of laws are adopted under CC or taxing/spending powers 2. Congress may tax/spend for general welfare a. May adopt any tax/ spend any money that it believes will serve general welfare (this is 1 area where congress can act for general welfare) 3. Commerce Clause a. Congress can regulate commerce w/foreign nations, Indians tribes, and the several states
b. From 37-‟95: Ct broadly defined scope of CC; no fed laws struck down c. Modern Rule: ‟95 US v Lopez: declared federal gun free school zone act unconstitutional; exceeded feds power CC power; congress can act : i. Congress can regulate channels of interstate commerce (places where commerce occurs) 1. Highways, waterways, internet ii. Congress may regulate instrumentalities of interstate commerce, and persons/things in interstate commerce 1. Instrumentalities: trucks, telephones, etc 2. Persons/things: Gibbons: commerce refers to all forms of intercourse a. Ex: radio waves, insurance, cattle, people, etc 3. Mann act made it a federal crime to tack chic across state lines for immoral purposes; Ct upheld iii. Congress may regulate activities that have a substantial impact on interstate commerce 1. Wickard v Philburn: fed wheat law; Ct upheld law, when looking at all of wheat that farmers grew for home consumption there was substantial effect on interstate commerce 2. In non-economic activities, substantial effect cant be based on cumulative impact a. US v Morrision: fed law about violence v women; congress regulated non-eco activity, substantial effect cant be based on cum impact iv. End Rule: congress can act in anyone of these 3 situations iv. 10th amend: all powers not granted to US nor prohibited to the states, are reserved to the states and people respectively 1. 1st 3rd of 20th century: 10th reserved a zone of activities to states 2. Modern Rule: 10th says congress cant compel state legislative/regulatory activity a. NY v US: Congress in radioactive waste act said all states had to clean up nuclear waste, any state that didn‟t took title to waste and is liable for it i. Sup Ct said law was compelling states to act; violates 10th
b. Prince v US: congress said every state/local govt had to do background checks for handguns; Ct said congress was conscripting what local govt has to do, forcing fed mandate c. Congress can induce states to act w/grants, so long as conditions are clearly stated v. Congress power under 14 th Amend §5 1. Rule: congress can‟t expand/create new rights; all that congress can do is act to prevent/remedy violation of rights already recognized by cts. a. Such laws are narrowly tailored: proportioned or congruent to remedying proven const violations 2. Burnia v Florres: religious freedom restoration act was declared unconst; Ct said congress was creating new rights and cant do this under §5 b. Delegation of Powers i. No limit exists on Congress‟ ability to delegate legislative powers 1. b4 ‟37: Ct enforced non-delegation doctrine 2. since ‟37: not one fed law has been struck down as excess of delegation of fed powers a. ex: FCC Act: this delegation, like every one, is upheld ii. Legislative Vetos and Line Item Vetos are unconstitutional 1. Legislative veto: resolution of 1 house, resolution of both houses w/no presentment a. for congress to act ,there must always be bicameralism and presentment, anything less is legislative veto and unconst (INS v Chada) 2. Line Item Veto: when president attempts to sign in or veto part of a bill a. Sup Ct said president either has to sign whole bill or veto whole bill, anything less is line item veto and unconst (Clinton) b. for congress to act ,there must always be bicameralism and presentment III. Federal Executive Power: Art II: defines: authority of president/executive branch a. Foreign Policy (probably didn‟t cover) i. Treaties/Executive Agreements 1. Rule: Treaties must be ratified by senate; EA doesn‟t have to ratified by senate a. If document called treaty, senate must ratify; vica versa b. Both can be used to do all the same things; never has EA been declared unconst for really being a treaty ii. President has broad powers as commander in chief to use American troops in foreign countries
IV.
1. never ever has presidents use of troops been declared unconst; President has broad powers b. Domestic Affairs i. Appointment/Removal Power 1. Whom may possess appointment power a. President alone appoints ambassadors, fed judges, officers of US i. Senate must approve nomination for person to take office b. Congress may vest appointment of inferior officers in Presidnet, heads of departments, lower federal cts. i. Who is [inferior] officer: cabinet officials are officers, those that can be hired/fired by cabinet officers are inferior c. Congress cant give appointment power to itself or its officers 2. Removal Power a. Unless removal is limited by fed statute, President can fire any executive branch official b. President Nixon tried to order c. Congress can limit removal if: (2 requirements) i. Must be an office where independence from the president is desirable 1. congress cant limit removal of president s cabinets 2. independent special prosecutor: congress can limit ii. Statute must not prohibit removal, can only limit removal to where there is good cause ii. President has absolute immunity for civil suits for money damages for anything done while in office 1. president doesn‟t have immunity for acts that occur for act occurred b4 taking office (Clinton v Jones) iii. Executive Privilege must yield to important needs for information; it is not absolute. 1. US v Nixon: Watergate prosecutor wanted tapes of presidential phone calls, the need for information at criminal trial outweighs executive privilege Federalism: Limits on State/Local Power to Regulate (Commerce Clause, Preemption, and Interstate Privileges & Immunities Clause) a. General: limits on state/local power bb/c of existence of other gov‟t and other states i. Exam: when there is a challenge to something that a state or local gov‟t has done b. Preemption
i. Art VI supremacy clause: const and laws/treaties mad e pursuant to it are supreme law of land 1. when conflict b/t fed law and state/local law preemptions wins ii. Found in 3 ways: 1. Express preemption: if federal statute says it is exclusive in a field, then state/local laws are preempted a. ex: meat labeling case 2. Implied preemption: even if fed statute is silent about preemption, implied preemption is found if: a. fed law and state law are mutually exclusive i. ex: WS maple syrup bottle case b. state/local law interferes w/achieving fed objective i. ex: FL unfair labor law; cant collect unemployment benefits from FL ; this interferes w/Congress‟ objective of encouraging filing of grievances c. congress evidences clear intent to preempt state/local laws i. 3. states cant tax/regulate fed gov‟t activity a. McCullough v MA: state tax on bank of US is unconst b. States cant regulate govt if they put a significant burden on fed activity c. Dormant Commerce Clause & Privileges & Immunities Clause (Art IV.) i. Definitions 1. Dormant CC: state/local laws are unconst if they place an undue burden on interstate commerce a. Inferred from const grant to fed govt to regulate commerce among the states 2. Privileges & Immunities Clause (Art IV): no state may discriminate against citizens of other states, w/regards to privileges/ immunities it accords its own citizens a. Anti-discrimination provision 3. Privileges & Immunities Clause of 14th Amend: no state shall deprive any citizen of privileges/immunities of a US citizen a. Early on, Slaughterhouse cases virtually destroyed this provision b. In ‟99: Ct revived provision in Saenz: freedom of travel is fundamental right under P/I clause of 14 th i. P/I clause has been used only to protect right to travel ii. Exam analysis: 1. does law discriminate; if no, the P/I clause Art IV doesn‟t apply a. it violates DCC if law burdens interstate commerce i. burdens v benefits
2. If law discriminate and burdens interstate commerce, then it violates DCC unless it is necessary to achieve important gov‟t purpose 3. If law discriminates w/regards to civil liberties or ability to earn livelihood, then it violates P/I clause of Art. IV, unless it is necessary to achieve important gov‟t purpose iii. Does the Law discriminate against out-of-staters or does it treat in-staters and out-of-staters alike? 1. (ask this anytime there is a question about DCC, or PI clause) iv. If state/local law does not discriminate? 1. P/I clause of Art. IV doesn‟t apply (it is anti-discrimination provision) 2. If law burdens interstate commerce, it violated DCC if burdens on interstate commerce outweigh benefit of the law (balancing test) a. Ill truck mud guard case; v. If state/local law discriminates: 1. If law burdens interstate commerce, it violates DCC unless it is necessary to achieve important gov‟t purpose a. Heavy presumption that discriminatory laws burden interstate commerce i. Such laws are upheld only if govt can show there is an important purpose ii. Only 1 case that has found sufficiently important purpose to justify discrimination against out-ofstaters: Main v Taylor: out-of-state bait fish not allowed, upheld b/c Maine‟s env purpose b. Necessary to achieve important gov‟t purpose l: no less discriminatory alternative can achieve objective 2. If law discriminates against out-of-staters w/ability to earn a livelihood, it violates P/I clause of Art IV unless it is necessary to achieve important govt purpose a. There must be discrimination against out-of-staters i. P/I clause applies only when this happens b. Discrimination must be w/regard to civil liberties or ability to earn a livelihood i. Civil liberties are rarely litigated here; ii. Toomer v Whitsell: commercial fishing licenses violated P/I clause b/c it costs out-of-staters way more iii. Piper v NH: law that said in order to practice law in NH, you had to be resident violated PI clause iv. Bladwin v MT: elk hunting liscnce was more for out-of-staters; P/I didn‟t apply; hobbies arnt protected c. Corporations and Aliens cant sue under this provision
d. Necessary to achieve important gov‟t purpose: i. Gov‟t much show substantial interest; and ii. No less discriminatory alternative could achieve objective V. Due Process a. 5th & 14th Amend: neither the fed or state govt can deprive any person of life, liberty, property w/o due process if law b. Procedural Due process i. General: procedure govt must follow when in depriving person…. ii. Has there been a deprivation of life, liberty, or property? a. only if there has been, is gov‟t required to provide due process 2. Definitions: a. Deprivation of liberty: loss of significant freedom provided by constitution/statute i. When parent institutionalizes kid, there need only be fact finding by neutral party ii. Paul v Davis: harm to reputation by itself is not a loss of liberty iii. Prisoners rarely have liberty interest b. Deprivation of property: if person has entitlement, and that entitlement is not fulfilled i. Entitlement: reasonable expectation to continue to receive a benefit; ii. Roth: teacher worked under year to year K; had no reasonable expectations; didn‟t require DP 3. Generally, gov‟t has no duty to protect people from privately inflicted harms (Desahney) iii. If there has been a deprivation, what procedures are required? 1. Matthews v Elderidge Test: balances 3 factors a. Importance of the interest to the individual i. More important the interest, the more procedural requirements the Ct will require b. Ability of additional procedures to provide more accurate fact finding i. More Ct believes additional procedures will reduce risk of erroneous deprivation; the more likely it is the Ct will require it c. Gov’t efficiency interest: what is the burden on gov‟t to include particular procedure Pl is claiming (cost of gov‟t) 2. Exs: a. Goldberg: B4 welfare benefits can be terminated, there must be notice and a hearing b. Matthews: When SS disability benefits are terminated there must only be a post termination hearing
i. So, if its welfare benefits, notice/hearing must precede termination; if it is SS benefits, termination can happen first c. When a student is disciplined by public school, there must be notice of charges and opportunity to explain; no trial type hearing required d. B4 parents right to custody of child can be permanently terminated, there must be notice and hearing e. (Torts) Punitive damages rewards require instructions to jury, and judicial review top ensure reasonableness (BMW v Gore) f. (CivPro) Except in exigent circumstances, pre-judgment attachment must be preceded by notice and hearing c. Substantive Due Process i. Def: whether Gov‟t has adequate reason for taking away a persons life, liberty, or property (sufficient justification?) 1. SDP has been used in 2 areas: protecting liberties; safeguard privacy ii. Constitution provides only minimal protection for economic liberties 1. Rational basis test: is used for laws affecting economic rights a. Prior to „37(Lochner period) Ct aggressively protected econ rights; freedom of K is fundamental right i. Ct used strict scrutiny for laws interfering w/freedom of K b. Post ‟37: Lochner cases overruled; no more strict scrutiny; rational basis standard is used when gov‟t interferes w/econ rights i. Ex: min wage laws, licensing, etc govt only has to show rational basis 2. Takings Clause: (5th amend) covered in Property 3. K Clause (Art I §10) a. Text: No state shall impair the obligations of Ks b. K clause applies only to state/local interference w/already existing Ks i. K clause never applies to fed gov‟t; even if it is interfering w/already existing K; it would have to be challenge inder DP w/rational basis review ii. K clause doesn‟t limit state/local govt from regulating terms future K c. State/Local gov‟t can interfere w/existing private K, if intermediate scrutiny is met i. If it is private: which the gov‟t is not a party d. State/Local gov‟t can interfere w/existing gfov‟t K only if strict scrutiny is met i. Ct is very suspicious if govt interferes w/own K iii. Privacy is fundamental right protected under Due Process
1. General: a. early 1900‟s; privacy was safeguarded under “liberty” in DPC i. so, generally, gov‟t must meet strict scrutiny b. Modern: privacy is umbrella that‟s used to describe a # of specific rights 2. Right to marry is fundamental right a. Zablocki 3. Right to procreate is fundamental right a. Case: govt can impose involuntary sterilization only if it meets strict scrutiny 4. Right to custody of one‟s kids is fundamental right a. Govt can permanently terminate parental custody only if it shows reason (strict scrutiny) 5. Right to keep family (extended) together is fundamental right a. Moore v Cleveland: city had ordinance limiting # of unrelated people that could live in same house; law unconst b/c of fundamental right i. Distinction: Law stopped related people from living together b. Bell Terre : single family zoning ordinance on long island limiting unrelated people in same house; Ct upheld law b/c i. Distinction: Law stopper college kids from living together 6. Right of Parents to control upbringing of their kids is fundamental right a. Meyer/Pierce General Rule: you generally have a right to raise children as you see fit; general freedom to make basic decisions concerning the family b. Parents have fundamental right to send their kids to parochial schools 7. Right to purchase/use contraceptive s if fundamental right a. Griswold v CN: 8. Right to abortion is fundamental right : to choose whether to terminate/continue a. Roe v Wade: b. PP v Casey: reaffirmed Roe; but changed law; no longer is strict scrutiny used here i. Prior to viability: gov‟t ant prohibit abortion, it can regulate abortion so long as it doesn‟t place undue burden on this right 1. Undue Burden test is now the test to evaluate gov‟t regulation of pre-viability abortions a. 24 hour waiting period is not undue burden
VI.
b. requiring abortions be performed by licensed physicians is not undue burden 2. Standberg: prohibition of partial birth is undue burden; it is unconst ii. After viability: state can prohibit abortions, except where abortion is necessary to safeguard woman‟s life/health c. Gov‟t is never const required to pay for/use facilities for abortions (5 Sp Ct cases) d. Spousal consent/notification laws are unconst i. Casey: law requiring married woman to gove notice to husband b4 abortion; Ct said unconst e. Parental Notice/Consent for unmarried minors i. Govt may require parental notice/consent, but on ly if it creates an alternative procedure (judicial consent) ii. Judge can approve abortion either by finding in minors best interest, or y concluding that she is mature enough to choose for herself iii. This is a compromise b/t parental rights, and rights of every woman to get an abortion 9. Right to refuse medical treatment a. Cruzzane: i. competent adults have right to refuse (no level of scrutiny); ii. a state may require clear/convince evidence that person wanted treatment terminated b4 it is ended; state has interest in human life iii. state may prevent family members from terminating treatment for another; right to refuse treatment is personal 10. Right to privacy protects the right to engage in private/consensual Gay sex a. Bowers v Hardwick: b. Lawrence v TX: express overruling of Bowers; no level of scrutiny; 11. Right to privacy doesn‟t protect right to physician assisted suicide 12. Substantive Due Process a. Fundamental Rights i. Strict Scrutiny 1. WHERE State or federal regulations impairs a fundamental right a. TEST
VII.
i. The objective being pursued by the state must be compelling (NOT just legitimate as for nonfundamental rights); AND ii. The means chosen by the state must be necessary to achieve that compelling end 1. In other words there must NOT be any less restrictive means that would do the job just as well (if there were then the means actually chosen would NOT be necessary) b. NON-Fundamental Rights i. TEST 1. Rational Basis TEST a. The state is pursuing a legitimate governmental objective AND is doing so with a means that is rationally related to that objective. c. Economic and Social Welfare regulation i. To be in conformity with due process, 2 requirements must be met 1. Legitimate state objective – the state must e pursuing a legitimate state objective. Virtually all health, safety, or general welfare goal comes within the state‟s police power and thus is legitimate. 2. Minimally rationally related – there must be minimally rational relation between the means chosen by the legislature and the state objective. In other words the S. Ct. will assume that the statute is constitutional UNLESS the legislature has acted completely “arbitrary and irrational”. d. OTHER (NON-Economic) NON-Fundamental Rights i. E.g. social welfare regulation 1. USE the same rational relation test as for economic legislation a. The state must be pursuing a legitimate state objective by rational means. Article 4 P and I a. 2 part test i. Peculiar source of evil – the state must show that the out-of-staters are a peculiar source of the evil the statute was enacted to rectify ii. Substantial relation to the state objective – the state must show that its solution (discriminatory statute) is “Substantially related” to this peculiar evil the out-of-staters present. 1. Generally to meet this prong the state must show that there are NO less discriminatory alternatives that would adequately address the problem. b. NOTE: there is NO market participation exception (as there is for Dormant Commerce Clause)
VIII. Dormant Commerce Clause a. 3-part test: it is a mere rationality test PLUS a balancing test (in that the benefits to the state from the regulation must outweigh the burdens on interstate commerce) i. The regulation must pursue a legitimate state end; ii. The regulation must be rationally related to that legitimate end; AND iii. The regulatory burden imposed by the state on the interstate commerce must be outweighed by the state‟s interest in enforcing its legislation. 1. Pay attention for lest restrictive alternatives – if exist argue that. b. EXCEPTION – Market participant exception i. IF the state acts as a market participant, it may favor local interests over out-of-state interests.