Con Law I

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Con Law I
2014-12-08 15:02:29
standing judical review commerce clause separation powers privileges immunities
Con Law I
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  1. Source of Federal Judicial Power
    Art. III, Section 1

    "The judicial power of the United States shall be vested in one Supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish."
  2. Scope of the Federal Judicial Power
    Art. III, Section 2 limits the jurisdiction of the federal courts to: 

    1. Cases, in law and equity, arising under the Constitution, Laws of the United States and Treaties

    2. Cases affecting ambassadors, public ministers and consuls

    3. Cases of admiralty and maritime jurisdiction

    4. Controversies to which the United States shall be a party

    5. Controversies between two or more states

    6. Cases between a state and citizens of another state

    7. Cases between citizens of different states (diversity of citizenship)
  3. Lower Federal Courts
    The constitution requires the establishment of the Supreme Court, but it does not specify that any other federal courts must exist. 

    Congress has the option of creating such courts, and therefore has discretion over whether to create lower federal courts, and congress can increase or decrease the jurisdiction of the lower federal courts within the constitutional limits on the scope of federal judicial power
  4. Marbury v. Madison
    Federal courts have the authority to review Legislative (Congress) and Executive (President) acts, and to invalidate acts that violate the Constitution.
  5. Cooper v. Aaron
    SCOTUS is the "supreme law of the land"
  6. Elements of Standing
    Injury in Fact


  7. Association Standing
    An association has standing to assert the claims of its members, even if the association has not suffered any injury itself if:

    1. the members would otherwise have standing to sue in their own right, 

    2. the interest asserted is germane to the association's purpose, and

    3. neither the claim asserted nor the relief requested would require participation by individual members in the lawsuit.
  8. Methods of Constitutional Interpretation
    • Original Intent
    • Original Meaning
    • Original Principles
    • Living Constution
  9. What are the two types of jurisdiction of U.S. Courts?
    Subject Matter Jurisdiction 

    Personal Jurisdiction
  10. Writ of Certiorari
    An extraordinary writ issued by an appellate court, at its discretion, directing a lower court to deliver the record in the case for review
  11. SCOTUS
    • 9 Justices that serve for life
    • Appointed by President and confirmed by Senate

    Current SCOTUS: Sotomayor, Breyer, Alito, Kagan, Thomas, Scalia, Roberts, Ginsbert
  12. Types of SCOTUS' Decisions
    Unanimous - All Justices agree on the result and reasoning

    Majority - More than half the Justices agree on result; concurring opinions; dissenting opinions. 

    Plurality - Less than half of the Justices support any one opinion. Typically 4-4-1. The parts of the opinions that at lease 5 Justices agree.
  13. Congressional Limits on Judicial Power
    Congress can decide whether or not there are lower federal courts. 

    • Congress given some power to control what lower federal courts do. 
    • i.e. Setting the amount in controversy requirement in diversity cases.
  14. Exceptions Clause
    Article III, Section 2

    In all Cases .......In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, WITH SUCH EXCEPTIONS, and under such Regulations AS THE CONGRESS SHALL MAKE.
  15. What two characteristics must be present in order for a federal court to decide a matter?
    There must be an actual dispute between adverse litigants; and

    There must be a substantial likelihood that a federal court decision in favor of a claimant will bring about some change or have some effect.
  16. Elements of Standing


  17. Injury-in-Fact
    Invasion of a legally protected interest which is

    (a) concrete and particularized; and 

    (b) actual or imminent, not conjectural or hypothetical
  18. Causation
    Injury has to be fairly traceable to the challenged action, and not the result of the independent action of some third party not before the court.
  19. Redressability
    Likely, and not merely speculative, that the injury will be redressed by a favorable decission.
  20. Elements of Representational/Associational/Organizational Standing
    One or more of tits members would themselves have standing (meet each element)

    Purpose of the organization relates to the subject matter of the lawsuit

    The member of the group with standing does not need to be a named party
  21. What are the three Discretionary Rules of Self-Restraint Prudence under Narrow Judicial Review?
    1. Won't decide constitutional issue before its necessary to do so, and then as narrowly as possible. 

    2. If a case that is raising a constitutional issue can be disposed of on a non-constitutional ground, that basis is preferred. 

    3. Statutes should be construed in a way to avoid constitutional issues.
  22. The Political Question Doctrine
    A political question is one that a court will not decide because it is beyond the court's competence in some way. Judges say that such questions are not "justiciable."

    Political Question Doctrine is primarily based on separation of powers.
  23. Mootness
    Too late. 

    The case has to be alive at all stages of the litigation, including on appeal. 

    Mootness is an Article III, constitutionally compelled requirement.
  24. Exceptions to Mootness
    Bring case as class action, case is not moot as long as the case remains alive as to at least one member of the class. 

    Collateral Consequences: If something remains adverse between the parties, then case is not moot. 

    Injury is capable of repetition to that particular plaintiff (not just somebody, somewhere, and some time), but evading review. 

    D voluntarily stopping activity to get case mooted (aka sham mootness).
  25. Ripeness
    Too early. Not ripe for review.

    Green banana. 

    A case has to present actual harm or imminent threat of harm. 

    Ripeness is a prudential (v. constitutional) ground for avoiding review.
  26. 11h Amendment as a Limit on the Judiciary
    The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

    • -The Contracts Clause
    • -Sovereign Immunity
  27. The Necessary and Proper Clause
    Article 1, Section 8, Clause 18

    To make all laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof. 

    Congress has implied powers in executing its express powers. 

    States cannot impede federal government in valid constitutional exercises of power.
  28. The Commerce Clause
    Article I, Section 8, Clause 3

    To regulate commerce with foreign Nations, and among the several States, and with the Indian Tribes;
  29. Manufacturing v. Commerce (pre Lopez)
    Manufacturing is the production of goods. Manufacturing has an indirect effect on interstate commerce.

    Commerce is the buying, selling, and transportation of goods and services. Commerce has a direct effect on interstate commerce.
  30. Ex Parte McCardle
    Congress has the power to make exceptions and regulations to SCOTUS' appellate jurisdiction.
  31. Jujan v. Defenders of Wildlife
    Congress may not convert the public's interest in an Executive officer's compliance without a law into an individual right to sue. 

    Establishes the 3 elements of standing. Scalia defines "Generalized Grievance"
  32. Generalized Grievance
    Is a public problem.

    In Lujan v. Defenders of Wildlife, Scalia said that vindicating public interest is the function of congress, not the courts.
  33. Massachusetts v. Environmental Protection Agency
    When a party has been vested with a procedural right, that party has standing if there is some possibility that the requested relief will prompt the party causing the injury to reconsider the decision that allegedly harmed the other party.

    Roberts Dissent: The injuries here were hypothetical, not actual nor imminent.
  34. Fed up with the heated arguments that people are having in public, Congress passes a law prohibiting talking about politics on interstate buses. John, a frequent interstate bus rider and habitual talker, will no longer be allowed to engage with his fellow passengers in political debate, as he has been doing for many years. John hasn't paid federal income taxes in years. Further, he is a member of the Communist Party. Does John have standing to sue?
    • Issue 1: Whether John suffers from an injury-in-fact?
    • State the rule. 

    Application: Since John is no longer able to talk about politics on an interstate bus, he has an injury-in-fact which is concrete and particularized. Further, the harm here is actual and not conjectural or hypothetical. 

    Conclusion: Injury-in-fact satisfied. 

    Issue 2: Causation

    State the rule.

    Application:  John's inability to talk politics on an interstate bus is directly traceable to Congress' new law. 

    Conclusion: Causation satisfied. 

    • Issue 3: Redressability
    • State the rule. 

    Application: John's harm will be alleviated if the Court strikes down the new law as unconstitutional.

    Conclusion: Redressability satisfied.

    Yes, John has standing to sue.
  35. Clapper v. Amnesty International USA
    Claiming "reasonable likelihood" is not enough to show future injury.

    Bryer Dissent: When there is high probability that injury will occur, that is enough to show future injury.
  36. United States v. Windsor
    Because the judgment in question orders U.S. Treasure to refund tax money, the Government stands to suffer real economic injury and therefore maintains standing.
  37. Baker-Carr Factors/Circumstances for the Political Question Doctrine

    Political decision needed.

    Respect, lack thereof (unusual precedent)

    Embarrassment potentiality

    Separation of Powers

    Standard for judicial review lacking.

    Policy decision needed
  38. Baker v. Carr
    The Guaranty Clause may not be used as a source of constitutional standard for invalidating state action, but an equal protection claim may be so used where it does not implicate a political question.

    • Identifies 6 Circumstances
    • 1. A constitutionally assigned duty or power to a branch of gov't

    2. A lack of judicially manageable standards for resolving the question

    3. Impossibility of court's deciding without an initial policy determination

    4. Impossibility of court's undertaking

    5. Unusual precedent

    6. Potential Embarrassment
  39. Powell v. McCormack
    The political question doctrine does not bar the Federal Courts from deciding a case concerning Congress' powers to determine its membership when the text of the constitution does not specifically commit the issue in the case to the Constitution
  40. Nixon v. U.S.
    The judiciary may not review the Senate's trial of an impeached official.
  41. Hans v. Louisiana
    11th amendment protects a state from being sued by one of its own citizens in Federal Court.
  42. McCulloch v. Maryland
    Under the Necessary and Proper Clause (AKA basket/elastic clause), Congress may enact legislation so long as its ends are "legitimate under the constitution and the legislature is appropriate" and plainly adapted to those ends.
  43. Gibbons v. Ogden
    Federal commerce power extends to ALL commerce BETWEEN and AMONG states and foreign nations. 

    Commerce having connections only within a single state is the only thing unreachable under the commerce clause. 

    Broad interpretation
  44. The Daniel Ball
    in rem action

    Court applied a new test of navigability to use the commerce clause.

    The river provided access point to other states which allowed the commerce clause to work
  45. United States v. E.C. Knight Co.
    Congress cannot regulate manufacturing b/c it is a local concern. 

    Goods used in commerce are only incidental to their manufacture. 

  46. Champion v. Ames
    (lottery case)
    Congress may, pursuant to the Commerce Clause, prohibit the Interstate shipment of items adjudged to be evil or pestilent in order to protect the commerce concerning all states. 

    Dissent: Just moving something state to state does not make them commerce. They have to be bought and sold state to state.
  47. Hammer v. Dagnhart
    (Child labor case)
    The power to regulate the manner of production of articles intended for interstate commerce is beyond the scope of the Commerce Clause and is a matter for local regulation. 

  48. United States v. Darby
    (labor law violation case)
    The prohibition of the interstate shipment of goods produced under forbidden substandard labor conditions is within the constitutional authority of Congress (Commerce Clause) as a direct regulation of wages and hours.

    • Post 1936 Commerce Clause Expansion
    • Overturns Dagnhart
  49. Wickard v. Filburn
    (wheat case)
    Congress' commerce authority extends to all activities having a substantial effect on interstate's commerce, including those that do not have a substantial effect individually, but do when they are judged by their national aggregate effects.

    Wikard Aggregation
  50. United States v. Lopez
    Congressional authority based on the Commerce Clause extends to activities that implicate:

    1. The channels of interstate commerce; or

    2. The instrumentalities of interstate commerce; or 

    3. Activities having a substantial relationship to interstate commerce
  51. To determine if an activity substantially affects interstate commerce, the Court looks at four considerations:
    1. Whether the regulated activity is commercial in nature

    2. Whether the congressional statute contains a jurisdictional element

    3. Whether Congress reasonably found that the regulated activity substantially affects interstate commerce

    4. Whether the link between the regulated activity and interstate commerce is too attenuated.
  52. National Federation of Independent Business v. Sebelius
    Individual mandate is not a valid exercise of Commerce Power.
  53. 10th Amendment
    The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the states respectively, or to the people.
  54. Maryland v. Wirtz
    Federal minimum wage and maximum hours laws as applied to state workers.
  55. National League of Cities v. Usery
    Even though there was a substantial effect on interstate commerce, the 10th Amendment prohibited the application of federal minimum wage and maximum hours laws to state employees.
  56. Garcia v. San Antonio Metropolitan Transit Authority
    Federal gov't. can apply minimum wage laws to the states. According to the court, the fact that citizens elect Senate and House members ensures the states' rights.
  57. Traditional/Integral State Functions Under Usery
    Regulating ambulance services

    Licensing automobile drivers

    Operating a municipal airport

    Performing solid waste disposal

    Operating a Highway
  58. Explain two types of commandeering by the federal government that would violate the 10th Amendment.
    1) Forcing state governments to enact federal legislation. 

    2) Forcing state officers to enforce federal laws against their own citizens.
  59. Non-Traditional/Integral State Functions Under Usery
    Issuance of industrial development bonds

    Regulation of intrastate natural gas sales

    Regulation of traffic on public roads

    Regulation of air transportation

    Operation of a telephone system

    Leasing and sale of natural gas

    Operation of a mental health facility

    Provision of in-house domestic services for aged and handicapped
  60. New York v. US
    The Low-Level Radioactive Waste Policy Act provides three types of incentives to encourage the states to comply with their statutory obligations to provide for the disposal of waste generated within its borders:

    Monetary Incentives

    Access Incentives

    The Take Title Provision
  61. 10th Amendment Anti-Commandeering Principle 1
    Congress cannot force state governments to enact federal legislation.
  62. 10th Amendement Anti-Commandeering Principle 2
    Congress cannot force state governments to use their officers to enforce federal policies
  63. Two Things Congress CAN do that are not commandeering
    Congress can enact conditional grants as long as they are not coercive (and meet other limitations of Spending Clause).

    Congress can directly regulate interstate economic activity (instead of making states pass laws).
  64. Congress' Powers: Taxing and Spending
    Article I, Section 8, Clause 1

    The Congress shall have the power to lay and collect taxes, duties, imposts, and excises to pay the debts and provide for the common defense and general welfare of the United States.
  65. South Dakota v. Dole (1987)
    5 Limits on Spending Power (FM 98 WUPCC - We All We Got!)

    1. The expenditure must be for the general welfare; (W)

    2. Conditions imposed must be unambiguous; (U)

    3. Conditions must be reasonably related to the purpose of the expenditure; (P)

    4. The legislation may not violate any independent constitutional prohibition; (C)and

    5. Conditions cannot be so dramatic as to be coercive. (C)
  66. Congress' Powers: Implementing Treaties
    Article II, Section 2

    "The President shall....Have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur."
  67. Congress' Powers: The Necessary and Proper Clause
    Article I, Section 8, Clause 18

    Congress has the power to make laws necessary and proper for the execution of the powers exercised by the other branches of government.
  68. What if there is a conflict between Congress' power to implement treaties and the States' police powers?
    State courts are not required to honor a treaty obligation or to provide review or reconsideration of a conviction without regard to state procedural default rules.  -Holding from Medellin v. Texas (2008).
  69. Limits on Congress' Powers: The 10th Amendment
    "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the states respectively, or to the people."
  70. Missouri v. Holland (1920)
    Congress' Powers: Implementing Treaties

    F: Bird Treaty Act of 1918 between the U.S. and Great Britain - Passed by Congress to implement the treaty. Missouri brought a bill of equity to prevent Holland from enforcing the treaty against it

    Note the Property Argument in the Opinion: :To put claim of the State upon title is to lean upon a slender reed. Wild birds are not in the possession of anyone; and possession is the beginning of ownership."
  71. Bond v. U.S (2014)
    Congress' Powers: Taxing and Spending

    SCOTUS avoids the constitutional issue by holding that the statute does not cover Bond's actions.
  72. Naturalization Act of 1790
    Naturalization limited to "free white persons" or "good moral character."
  73. Board of Trustees of the University of Alabama v. Garrett
    F: Garrett, a nursing director at U of Alabama's hospital, while in cancer therapy, her supervisor required her to surrender her higher level position for a lower one. Garrett sued under ADA.

    H: States are not liable under ADA (unconstitutional)

    R: 11th Amendment protects states from being sued by its citizens.
  74. 13th Amendment
    Section 1: Neither slavery nor involuntary servitude, except as punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction. 

    Section 2: Congress shall have power to enforce this article by appropriate legislation.

    SCOTUS used the Rational Basis Test
  75. Constitutional Standards of Review for Equal Protection Analysis

    (defining rights covered under equal protection clause)
    The standard used by the courts to determine whether there is congruence and proportionality between the injury to be prevented/remedied {the right} and the means adopted to prevent/remedy {the law].

    (highest to lowest)

    Strict Scrutiny: race and nationality (things that can't be cut off)

    Intermediate Scrutiny: gender/legitimacy (cut off or get a daddy)

    • Rational Basis: Everythang else (i.e. religion)
    • A principle whereby a court will uphold a law as valid under the Equal Protection Clause or Due Process Clause if it bears a reasonable relationship to the attainment of some legitimate gov't objective.
  76. 14th Amendment
    Section 1: All persons born or naturalized in the U.S., and subject to the jurisdiction thereof, are citizens of the U.S. and of the State wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the U.S; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
  77. City of Boerne v. Flores
    F: Church members outnumbered the church's seating capacity. To remedy, Flores decided to expand the church and applied for a building permity from the city. City denied the permit b/c he church was a landmark. Flores sued under RFRA (Religious Freedom)

    H: Sec. 5 of 14th Amend. (Enforcement Clause) gives congress the power to enact laws a remedial measures and to prevent constitutional violations, but does not allow Congress to define the substantive scope of constitutional guarantees. 

    R: Legislation cannot expand or create rights that are not already listed in the constitution

    Enforcement Clause: 14th Amend., Sec. 5 - Enforcement by "appropriate legislation"
  78. Congress' Powers: Taxing and Spending
    Article I, Section 8, Clause 1

    "The Congress shall have the power to lay and collect taxes, duties, imposts, and excises, to pay the debts and provide for the common defense and general welfare of the United States . . . "
  79. Congress' Powers: Taxing and Spending

    National Federation of Independent Business v. Sebelius (2013)
    Medicaid: covers pregnant women, needy families, the disabled, and the elderly.

    Medicaid Expansion: Also covers all individuals under the age of 65 with incomes below 133% of the poverty line.

    Question: Is the Medicaid expansion coercive? 

    SCOTUS: Not just "relatively mild is a gun to the head." (YES, COERCIVE)
  80. Congress' Powers: Implementing Treaties

    Who has the power to make treaties?
    Article II, Section 2

    The President shall . . . Have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur.
  81. Congress' Powers: Implementing Treaties

    If the President has the power to make treaties with the advice and consent of the Senate, who has the power to implement treaties?
    Consider . . . 

    The Necessary and Proper Clause: If POTUS creates a treaty, Congress has power to make laws necessary and proper for IMPLEMENTING the treaty.

    Congress has the power to make laws necessary and proper for the execution of the powers exercised by the other branches of government. 
  82. What if there is a conflict between Congress' power to implement treaties and the States' police powers?
    10th Amendment

    "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the states respectively, or to the people."
  83. Congress' Powers: Implementing Treaties

    Missouri v. Holland (1920)
    Treaty between U.S. and Great Britain protecting different species of birds entered into on 12/8/1916

    Congress passed The Bird Treaty Act of 1918 to implement the treaty

    Missouri brought a bill of equity to prevent a U.S. game warden (Holland) from enforcing the treaty against it.

    Note the Property Argument: "To put the claim of the State upon title is to lean upon a slender reed. Wild birds are not in the possession of anyone; and possession is the beginning of ownership."
  84. Congress' Powers: Taxing and Spending

    Bond v. U.S. (2014)
    SCOTUS avoids the constitutional issue by holding that the statute does not cover Bond's actions. 

    But what if the statute did cover Bond's actions? Does Congress have the power to enact legislation that enforces a treaty that intrudes on traditional state prerogatives (i.e. policing ordinary assaults)?
  85. Naturalization Act of 1790
    Naturalization limited to "free white persons" of "good moral character."
  86. Civil War Amendments: 13th
    Section 1: Neither slavery nor involuntary servitude, except as punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction. 

    Section 2: Congress shall have power to enforce this article by appropriate legislation.
  87. Civil War Amendments: 14
    Section 1: All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. 

    Section 5: The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.
  88. Civil War Amendments: 15
    Section 1: The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude . . . 

    Section 2: The Congress shall have the power to enforce this article by appropriate legislation.
  89. Civil Rights Act of 1866
    Enacted to implement the 13th Amendment

    Persons of "every race and color" born in the US were citizens of the US and entitled to a list of specified rights including the right to contract and to own property "as is enjoyed by white citizens."

    Act made violations of these rights federal crimes

    Codified today as 42 U.S.C. §1982
  90. Civil Rights Act of 1870
    Enacted to implement 15th Amendment

    Protect against state denials of voting rights

    Acts made violations federal crimes.
  91. Civil Rights Act of 1871
    Known as the Ku Klux Klan Act

    Created a private cause of action against persons who, under color of state law, deprive a person of rights established by the Constitution or federal law

    Codified today as 42 U.S.C. §1983
  92. Civil Rights Act of 1875
    Prohibited discrimination on the basis of race in public accommodations (i.e. railroads), inns, and theaters. 

    Act made violations federal crimes
  93. The Civil Rights Cases (1883)
    F: Challenge to Civil Rights Act of 1875. Two cases of indictment for denying persons of color the accommodations and privileges of an inn or hotel; two are denying individuals the priviliges and accommodations of a theater. One for denying a person of color a seat in a certain section of a theater. 

    • Holding:
    • Act not authorized by 14th A. b/c that amendment only covers sate action. This is purely a private action. 

    Act not authorized by 13th A. b/c that amendment deals with slavery or involuntary servitude. Race discrimination in public accommodations is not slavery or involuntary servitude nor a badge nor incident thereof. "Running the slavery argument into the ground." "Ceases to be special favorite of the laws."
  94. Jones v. Alfred H. Mayer Co. (1968)
    F: Challenge to Civil Rights Act of 1866 (42 U.S.C. §1982). Joseph Lee Jones, a black homebuyer, sues respondents alleging that they refused to sell him a home. 

    Held: Congress has authority to enforce the 13th A. "by appropriate legislation" including the power to eliminate all racial barriers to the acquisition of real and personal property.
  95. U.S. v. Morrison (2000)
    F: Woman brought private action under VAWA against several football players who allegedly raped her. Following Lopez, case held that this private right of action could not be authorized under Commerce Clause. 

    In the alternative, the plaintiff and the intervening US argued that Congress could pass this law under the authority of the 14th A.

    Held: Citing Civil Rights Cases, Congress cannot prohibit purely private action under 14th A.
  96. Employment Division v. Smith (1990)
    F: Oregon Law denied unemployment benefits to those people who violated a state statute that prohibited the use of peyote. This law happened to substantially burden some members of the Native American Church free exercise of religion. 

    Held: Constitutional to pass generally applicable regulatory laws even if those laws had a substantial effect on certain religious practices even when not supported by a compelling gov't. interest
  97. Nevada Department of Human Resources v. Hibbs (2003)
    F: Hibbs sued his gov't employer for wrongful discharge and violations of the Family Medical Leave Act when he was fired while caring for his injured wife. 

    H: Constitutional

    R: Court applied Intermediate Scrutiny
  98. Preemption
    Express Preemption: Federal law prevails when federal law explicitly preempts state law. 

    Implied Preemption (3 types)

    1) Field Preemption: Federal law wins when federal law occupies a particular field with its regulations so extensively that by just implementing state laws a conflict would arise. 

    2) Direct Conflict Preemption: Federal law prevails over conflicting state law, even though there is no express preemption.

    3) Obstacle Preemption: Federal law wins when state law is frustrating the carrying out of federal policy.
  99. Dormant Commerce Clause
    State and local laws are unconstitutional if they either: 

    Discriminate against interstate commerce; or 

    Place an undue burden on interstate commerce.
  100. Philadelphia v. New Jersey
    F: NJ passed a state statute which prohibited other states from disposing of solid and liquid waste in NJ. Philly challenged the statute as a violation of the commerce clause. 

    H: State law that regulates commercial activity may not, on their face or in effect, favor in-state interests over out of state interests. 

    R: This NJ law prohibits against out of staters.

    Dissent: NJ should be free to prohibit solid waste for reasons of health and safety.
  101. Dormant Commerce Clause:

    Facially Discriminatory Statutes
    Virtually per se invalid: One is faced with a dilemma but has not real choice...Hobson's Choice - Stable owner required customer to take the next available horse with no other options to make a choice. 

    Standard: necessary to achieve an important purpose

    Exception: Quarantine cases
  102. Dean Milk Co. v.City of Madison, Wisconsin
    F: city passed an ordinance barring pasteurized milk that hand't been processed within 5 miles of the city. 

    H: Where reasonable and adequate alternatives are available, a local health ordinance that places a discriminatory burden on interstate commerce violates the commerce clause. 

    R: Practical effect of the ordinance excludes from distribution milk pasteurized in Illinois, creating an economic barrier protecting a major local industry from competition outside the state = discrimination against interstate commerce. A reasonable alternative was available. 

    Case establishes the reasonable alternative doctrine used in commerce clause issues.
  103. Reasonable Alternatives Doctrine
    If there are reasonable alternatives, then there is less of a discriminatory effect
  104. Under the Dormant Commerce Clause, state and local laws are unconstitutional if they either:
    1) Discriminate against interstate commerce (either on their face or in their plain effect); or

    2) Place an undue burden on interstate commerce.
  105. Dormant Commerce Clause: 

    Facially Neutral, but Discriminatory in Purpose or Effect
    SCOTUS has applied a form of strict scrutiny and asked if there is no less discriminatory means to achieve a legitimate state interest?

    Will typically strike down as impermissibly BURDENING interstate commerce.
  106. When to apply intermediate scrutiny under the PIKE BALANCING TEST:
    If a statute regulates evenhandedly to effectuate a legitimate local public interest, and its effects on interstate commerce are incidental, then 

    The statute will be upheld UNLESS the burden imposed on such commerce is clearly excessive in relation to the putative local benefits.
  107. C&A Carbone, Inc. v. Clarkstown (1994)
    F: Town of Clarkstown entered a consent decree with the state to close its landfill and build a new solid waste transfer station and adopted an ordinance requiring manufacturers to only use the state's facility.

    H: State and local governments may not enact laws that favor local enterprise by prohibiting patronage of out-of-state competitors or their facilities.
  108. Hunt v. Washington State Apple Advertising Comm'n (1977)
    F: NC enacted a state statute requiring all closed apple containers to bear a specific grade set by USDA. Washington issued a different grading system and was the largest producer of apples. 

    H: A facially neutral state law is unconstitutional and violates the commerce clause if it has a discriminatory effect on interstate commerce. 

    R: Statue burdened producers in NC for washington apple producers. Strips Washington apple industry of competitive and economic advantages. Has a leveling effect. The statute was facially neutral but the effect was discriminatory.
  109. West Lynn Creamery, Inc. v. Healy (1994)
    F: State imposed a tax on in-state milk sales, with proceeds paid directly to dairy farmers as subsidy. West Lynn bought 97% of its dairy from out of state producers. 

    H: A state pricing order which imposes a tax on the sale of local products, the proceeds of which are distributed as a subsidy to in-state producers of the product, discriminate against interstate commerce and are thus unconstitutional under the commerce clause. 

    R: Subsidy is valid. The tax is nondiscriminatory but the pricing order is primarily funded through taxes on the sale of milk produced in other states = a burden on interstate commerce. 

    Pike Balancing Test: Economic emergency, local farmers were going out of business b/c of lower costs in other states. But, farmers who would normally lobby against the tax didn't be/c of the subsidy. Subsidy = legislative abuse
  110. Dormant Commerce Clause: Pike Balancing Test
    Apply Intermediate Scrutiny under the Pike Balancing Test:

    1) If a statute regulates evenhandedly to effectuate a legitimate local public interest, and its effects on interstate commerce are identical, then 

    2) The statute will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits
  111. Minnesota v. Clover Leaf Creamery Co. (1981)
    F: Minnesota enacted a state statute banning the sale of milk in plastic, non returnable,nonrefillable containers. But papar cartons with the same characteristics were ok. The express purpose was to promote address solid waste management. 

    H: A facially neutral state law will violate interstate commerce if the incidental burden imposed on interstate commerce is clearly excessive in relation to the putative local benefits. 

    R: If a state law purporting to promote environmental purposes is in reality simple economic protectionism, a virtually per se rule of invalidity rule applies. 

    Imposing incidental burdens on interstate commerce = unconstitutional
  112. Complete Auto Transit, Inc. v. Brady (1977)
    4 Part test to determine the constitutionality of state taxes under the Commerce Clause:

    1) The tax must be applied to an activity with a substantial nexus with the taxing state;

    2) The tax must be fairly apportioned;

    3) The tax must be nondiscriminatory against interstate commerce; and

    4) The tax must be fairly related to the services provided by the state.
  113. Bibb v. Navajo Freight Lines, Inc. (1959)
    F: Mud Guard Case. Illinois requires contoured rear mud guards while 45 states allow straight rear mud guards.

    H: In determining whether a state's nondiscriminatory highway safety law violates the dormant commerce clause, the court will uphold the law unless the total effect of the law as a safety measure is so slight or problematic as not to outweigh the national interest in keeping interstate commerce free from interferences that seriously impede it.
  114. The Market Participant Doctrine
    If the state is acting as a market participant, it may favor its own citizens over others. 

    Reeves Inc. v. Stake
  115. Reeves, Inc. v. Stake (1980)
    F: Responding to a cement shortage, South Dakota built a state owned cement plant which sold to private buyers. Later state gave preferences to in-state buyers. Reeves, a long time buyer was denied cement and had nowhere else to go. 

    H: States that are market participants as opposed to market regulators are not bound by the commerce clause and may favor in state interest. 

    R: Commerce clause is primarily applicable to taxes and principles that impede from private trades in the national marketplace. In this case, the state, b/c it was selling cement, was under the market participant exception to the commerce clause.
  116. South-Central Timber Development, Inc. v. Wunnicke (1984)
    F: Alaska give notice that it would sell a bunch of timber. Condition of sale required the buyer partially process in Alaska before shipping out of state. Doing so would hurt out of state purchasers b/c of the expense. 

    H: Although state owned businesses may favor resident purchasers, they may not attach conditions to the sale of products that will burden interstate commerce. 

    R: The arket participant doctrine is limited to the particular market in which the state is a participant. By imposing conditions down stream, Alaska is more than a participant, but also a regulator. Usually a mere seller has no say over and no interest in product use after sale. 

    Rehnquist Dissent: Its undully formalistic to conclude that the one path chosen by Alaska as best suited to promote its concerns is forbidden by the commerce clause because they could have done several diff. things to accomplish the goal. 

    Post purchase activity means downstream economic activity.
  117. United Haulers Ass'n v. Oneida-Herkimer Solid Waste Management Authority (2007)
    F: Oneida, a public benefit corp. set up to manage waste in Oneida and Herkimer counties. To fund the costs, counties enacted "flow control" ordinances that required all waste within the counties to be hauled to their owned facility. Private waste haulers were required to get permits to collect waste. 

    H: Laws that favor gov't operations but treat all private businesses equally do NOT violate the commerce clause. 

    R: No reason for courts to step in and give a local business a victory that can be obtained through the political process.
  118. Supreme Court of New Hampshire v. Piper
    F: Piper, a VT resident took New Hampshire bar exam and passed. New Hampshire rules said she couldn't be admitted to the New Hampshire bar cuz she wasn't a resident. 

    H: The opportunity to practice law is a FUNDAMENTAL RIGHT. There is NO SUBSTANTIAL REASON for denying bar admission in the state to non residents. Such discrimination does NOT BEAR A CLOSE RELATIONSHIP TO THE STATE'S OBJECTIVES. 

    R: The practice of law (to earn a living) is a fundamental right entitled to equal protection under the privileges and immunities clause. 

    Rehnquist Dissent: Practice of law isn't universal across state lines.
  119. Court-Recognized Exceptions to Dormant Commerce Clause
    • Market Participant Doctrine
    • Direct State Subsidies
    • Congressional Authorization
    • State Acting as Trader, and Benefits Outweigh Burdens (similar to Market Participant Doctrine)
  120. Privileges and Immunities
    Article IV, Section II

    The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.
  121. Privileges and Immunities: Article IV, Section II, Clause 1

    2 Issues
    "The Citizens of each state shall be entitled to all Privileges and Immunities of Citizens in the several states."

    1) What are privileges and immunities; and 

    2) What constitutes prohibited discrimination with respect to those privileges and immunities?
  122. Supreme Court of New Hampshire v. Piper (1985)

    (Bar Admittance Case)
    1st Issue: Is being a lawyer a protected privilege?

    2nd Issue: Is the discrimination against non-residents legitimate?

    • Two Part Inquiry:
    • 1) Is there a substantial reason for the difference in treatment?

    2) Does the discrimination practiced against the non-residents bear a substantial relationship tot he State's objective? As part of this inquiry, consider the availability of less restrictive means.
  123. Compare Privileges and Immunities with the Dormant Commerce Clause
    • Narrower than Dormant Commerce Clause
    • It only speaks to question of discrimination and not unreasonable burdens.

    It doesn't protect corporations because it only protects citizens, and only natural persons can be citizens. 

    There is no market participant exception to the Privileges and Immunities Clause's prohibition on discriminatory state and local laws. 

    • Broader than the Dormant Commerce Clause
    • Congress cannot pass legislation to overcome it. That is, thee is no congressional authorization exception.
  124. Separation of Powers

    • Legislative
    • Law making is a joint venture between POTUS and Congress

    POTUS has the power to sign bills into law or exercise a veto. Art. 1, Sec. 7

    • Executive
    • Congress makes the laws and POTUS carries them out.
  125. United States v. Curtiss-Wright Export Corp. (1936)
    F: Congress passed a joint resolution that authorized POTUS to an the sale of arms to countries involved in the Chaco border dispute. POTUS immediately issued an EXECUTIVE ORDER banning such sales. Curtiss-Wright Corp was indicted for conspiracy to sell guns to one of the countries. Court below said Congress' act was unconstitutional. 

    H: The "delegation doctrine" (AKA "non-delegation doctrine") does not bar Congress from delegating great authority and discretion to POTUS in the conduct of foreign affairs. 

    R: There is a fundamental difference between foreign and domestic affairs. Feds have inherent and constitutional authority to conduct foreign affairs as it sees fit.
  126. Delegation Doctrine
    Congress cannot delegate powers that are uniquely assigned to it (i.e. power to impeach or all of its law making authority).

    But Congress has the wide authority to delegate. So long as Congress articulates some intelligible principle to guide the executive branch in carrying out its delegated authority, that delegation will be upheld.

    No federal law has been found unconstitutional under the Delegation Doctrine since 1935.
  127. Youngstown Sheet & Tube Co. v. Sawyer (1952)

    (Steel Seizure Case)
    F: Eve of the steelworker's strike, POTUS ordered the Sec. of Commerce to take possession of the country's largest steel mills to keep them operating.

    H: POTUS does not have inherent authority to order the involuntary surrender of private property to the gov't.

    R: The power would have to come from an act of Congress or the Constitution. Taft-Hately Act of 1947: Congress said no executive seizure to settle labor disputes. Also, steel mills are not in the "theater of war."

    Solicitor General seeks the power of seizure in three clauses of Article II and an additional source.

    1) The executive Power shall be vested in POTUS. Art. II, sec. 1, cl. 1.

    2) POTUS shall be Commander in Chief of the Army and Navy of the US. Art. II, sec. 2, cl. 1

    3) POTUS shall take Care that the laws be faithfully executed. Art. II., sec. 1, cl. 8.

    4) Argues the inherent powers that arise from necessity.

    • Tri-partite Scheme of Presidential Power (Jackson Concurring)
    • - When POTUS acts pursuant to an express o implied authorization of Congress, his authority is at its max.

    - When POTUS acts in absence of either a congressional grant or denial of authority, he can only rely on his own independent power, but there is always a zone of twilight in which he and Congress may have concurrent authority

    -When POTUS takes measures incompatible with the express or implied will of Congress, his power is at its lowest ebb
  128. Wars and Emergencies

    The Prize Cases (1862)
    F: (Civil War) Union ships pursuant to POTUS 1861 executive order declared a blockade of southern ports seized ships carrying goods to the confederate states. Ships condemned by federal court order. Owners of ships and cargo appealed. 

    H: congress has prerogative to "declare war" under Art. 1, Sec. 8, Cl. 11. POTUS has authority to take action when attacked. 

    R: Congress/POTUS can't start a war against a state of the union, but here, the states waged war against the US gov't so POTUS had to respond. 

    Dissent: Congress must have declared war for POTUS to take action.
  129. War Powers Resolution of 1973
  130. Ex Parte Quirin (1942)
    Lawful Combatants: Subject to capture and detention as prisoners of war by opposing military forces. 

    Unlawful Combatants: Subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts that render their belligerency unlawful.
  131. Hamdi v. Rumsfeld (2004)
    F: Hamdi detained indefinitely as an "enemy combatant" for allegedly forming an alliance with the Taliban while in Afghanistan. 

    Authorization for Use of Military Force (AUMF)

    Congress authorized POTUS to "use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks" or "harbored such organizations or persons, in order to prevent any future acts of international terrorism against the US by such nations, organizations, or persons."
  132. Article 1, Section 9, Clause 2
    The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in cases of Rebellion or Invasion that public Safety may require it.
  133. Principles from War and Emergencies Cases
    What is the extent of Presidential power?

    What is the proper role of the Court?

    What role do individual liberties play?
  134. Unitary Executive
    The term "unitary executive" refers to the idea that the executive power resides in POTUS alone and cannot be divested from him.

    Article II, Sec. 2, Cl. 2
  135. Myers v. US (1926)
    POTUS fired the Postmaster General based on: 1876, a law provided that Postmasters "shall be appointed and may be removed by POTUS with the advice and consent of the Senate."

    Held: POTUS has the exclusive power to remove inferior or principal executive officers.
  136. Humphrey's Executor v. US (1935)
    Section 1 of the FTC Act provides that "any commissioner maybe removed by POTUS for inefficiency, neglect of duty, or malfeasance in office."

    • Held: Congressional limits on termination ok. 
    • -Court focuses on Congress' power to impose termination restrictions for those federal officers who have quasi-judicial and quasi-legislative duties as opposed to executive functions.
  137. Morrison v. Olson (1988)
    4 Factors that determined that Special Counsel was an Inferior Officer:

    1) Subject to removal by a higher executive branch official but someone below POTUS

    2) Authorized to perform certain limited duties.

    3) Limited jurisdiction.

    4) Tenure limited to specific task assigned.
  138. New functional task for analyzing congressional limitations on removal:
    Does the congressional limitation sufficiently deprive POTUS control to interfere impermissibly with his constitutional obligation to ensure the faithful execution of the laws?

    If yes, then the congressional limitations are invalid on separation of powers grounds. If no, then the limitations are valid. 

    Based on this test, the Court upheld for cause restriction in Morrison.
  139. Bicameralism and Presentment
    Article 1, Section 7, Clauses 2 and 3

    Every Bill shall have passe the House of Representatives and the Senate, shall, before it become a Law, be presented to POTUS:

    If he approve he shall sign it, but if not he shall return it.

    If after reconsideration two thirds of that HOuse shall agree to pass the Bill, it shall be sent, together with the Objections, to the other HOuse, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law.
  140. INS v. Chadha (1983)
    F: Chadha, an alien lawfully admitted on a non-immigrant student visa overstayed. INS initiated removal proceedings and was determined to meet the requirements for suspension of deportation. AG reported suspension to Congress. Under Act, either house of Congress had option to veto AG's determination. House of Rep vetoed but it wasn't submitted to Senate or POTUS.

    H: Legislative action is not legitimate unless there is a bicameral approval and presentment to POTUS.
  141. Majority notes only four provisions in which one House may act alone, not subject to POTUS' veto:
    Majority notes only four provisions in which one House may act alone, not subject to POTUS' veto:

    1) The HOR alone was given the power to initiate impeachments. Art. 1, §2, cl. 6

    2) The Senate alone was given the power to conduct trials following impeachment on charges initiated by the House to avoid to convict following trial. Art. 1, §3, cl. 5

    3) The Senate alone was given final unreviewable power to approve or disapprove presidential appointments. Art. 2, §2, cl. 2

    4) The Senate alone was given unreviewable power to ratify treaties negotiated by POTUS. Art. 1, §2, cl. 2
  142. Clinton v. New York (1998)
    Line Item Veto Act authorized POTUS to "cancel" three types of provisions that may be signed into law:

    1) Any dollar amount of discretionary budget authority;

    2) Any item of new direct spending; or 

    3) Any limited tax benefit.
  143. Requirements of the Line Item Veto Act
    The Act requires POTUS to determine each with respect to cancellation, that it will:

    1) Reduce the Federal budget deficit; 

    2) Not impair any essential Gov't. functions; and 

    3) Not harm the national interest. 

    and requires POTUS to transmit a special message to Congress notifying it of each cancellation within 5 calendar days (excluding Sundays) after the enactment of each cancelled provision. 

    If it chooses, Congress, by a majority of both houses, can enact a "disapproval bill" which makes the cancellations "null and void."

    POTUS can veto such a bill.
  144. What is the difference between POTUS' veto power of Art. 1, sec. 7, and POTUS' cancellation authority under the Line Item Veto Act?
  145. Congressional Privilege

    The Speech and Debate Clause
    Art. 1, sec. 6, cl. 1 provides that Senators and Representatives 

    "shall in all cases, except treason, felony, and breach of the peace, be privileged from arrest during their attendance at the session of their respective houses, and in going to and returning from the same; and for any SPEECH OR DEBATE IN EITHE RHOUSE, THEY SHALL NOT BE QUESTIONED IN ANY OTHER PLACE."
  146. Gravel v. US (1972)
    Congressional aids protected by the Speech and Debate Clause

    Private publications are not
  147. US v. Nixon (1974)
    Executive privilege is a QUALIFIED PRIVILEGE. It can be overcome when:

    1) There is a specific need for information;

    2) The need for information is importation; and 

    3) There are procedural safeguards in place to protect confidentiality (i.e. in camera review by the court before disclosure).
  148. Nixon v. Fitzgerald

    "Absolute Immunity"
    A former POTUS is entitled to absolute immunity from damages liability predicated on his official acts as POTUS

    Judges and prosecutors also have absolute immunity for their official acts.
  149. What is the standard for qualified immunity?
    Conduct must "not violate clearly established statutory or constitutional rights of which a reasonable person would have known."

    -Harlow v. Fitzgerald (1982)
  150. Clinton v. Jones (1997)
    Clinton's sexual harassment suit from acts committed while he was governor. 

    Held: The doctrine of separation of powers does not require federal courts to stay (until POTUS leaves office) all private actions against POTUS for alleged misconduct NOT RELATED TO HIS OFFICIAL DUTIES AS POTUS.
  151. List and explain three types of implied preemption.
    1) Field Preemption: Federal law wins if it occupies a particular field with its regulations so extensively that by implementing state laws, a conflict would arise. 

    2) Direct Conflict Preemption: Federal law prevails over conflicting state law. 

    3) Obstacle Preemption: If state law is frustrating the carrying out of federal policy, the federal law wins.