Constitutional Law Outline PDF

Article III; Judicial Branch Article III Section 1. Mandates the Supreme Court 2. Authorizes Congress to create inferior federal courts 3. Invest federal courts with the judicial power of the United States 4. Grants potential life tenure Judicial Review Judicial review- the powe...

Article III; Judicial Branch Article III Section 1. Mandates the Supreme Court 2. Authorizes Congress to create inferior federal courts 3. Invest federal courts with the judicial power of the United States 4. Grants potential life tenure Judicial Review Judicial review- the power of the courts to review and potentially invalidate the actions of the executive and legislative branches Marbury v. Madison What did the Court say in Marbury about the judiciary’s authority to declare an act of the Executive branch unlawful ○ Sometime yes… in situation where a specific duty is assigned by law and individual rights depend on the performance of the duty, the courts have power to declare an act of the executive unlawful ○ Sometimes no…no powers exists to control the executive when exercise of discretion is authorized, such questions are political and the decision of the executive is conclusive Because the Constitution is law and the court has the power to decide cases in accordance with law the judiciary can practice judicial review Conclusion ○ 1) Supreme Law of the land ○ 20 The power of the court for judicial review Judicial Review of State Laws Fletcher v. Peck (1810) ○ Georgia statute repealing previous land grants was found unconstitutional ○ Federal courts have the authority to determine that a state law is inconsistent with federal law State statute, regulation, common law rule (NY Times v. Sullivan), state constitutional provisions The federal courts have the power of judicial review with respect to state statutes because they are unconstitutional for their inconsistencies with federal or the constitution Supreme Court Review of State Court Judgments Martin v. Hunter’s Lessee ○ Originated as action for ejectment in Virginia court. Judiciary act of 1789 conferred Supreme Court appellate jurisdiction of final judgments of the highest court of a state ○ SCOTUS, Justice Story found the Judiciary Act grant of appellate jurisdiction constitutional reasoning: Structure of the US Constitution Federal system requires consistent state interpretation of federal issues Safeguarding federal rights  ○ Even though the constitution doesn’t explicitly state the power of the Supreme Court to review a state courts decisions the Constitution does grant review SCOTUS may review state judgments involving issues of federal law Cohens v. Virginia ○ Cohens brothers appealed Virginia court ruling to Supreme Court, Virginia moved to dismiss stating Supreme Court lacks appellate jurisdiction ○ Holding: Supreme Court has jurisdiction to review state criminal proceedings (state itself is a party). The court has subject matter jurisdiction when a federal constitutional question is involved regardless of the identity of the parties. ○ “In ratifying the Constitution the states effectively agreed to subject themselves to the power of the Supreme Court in cases appealed from state courts, at least when the case falls within the subject matter jurisdiction spelled out in Art III” The Supreme Court’s interpretation of the what the Constitution requires can be undone or otherwise changes by one of two mechanisms ○ 1) a subsequent decision from the Court overruling the earlier interpretation ○ 2) an amendment to the constitution Article III Subject Matter Jurisdiction, Congressional Regulations of Federal Court Jurisdiction Subject Matter Jurisdiction The authority of a court to adjudicate a particular type of dispute ○ The authority vested in the court and thus the constitutional legitimacy of the judicial proceeding The courts are limited to what the Constitution specifies and what congress deems under their power ○ Federal courts are courts of limited jurisdiction and they have only the jurisdiction granted to them by the Constitution and Congress (Art. III, § 1&2) ○ Compared to state courts which are courts of general jurisdiction General jurisdiction is limited ○ Article III expressly created the Supreme Court ○ Granted congress power to create lower federal courts, and ○ Specified the subject matter within the purview of the federal courts Contesting smj can arise at any point, it cannot be waived The court itself must ensure it has smj The Supreme Court has original jurisdiction over only those cases “affecting ambassadors, other public ministers and counsels, and those in which a state shall be a party. Congress can require that some questions of federal must be tried in federal court Congressional Authority to Regulate Federal Courts Jurisdiction A) Congress’s power to regulate the jurisdiction of the lower federal courts (i.e. US District Courts, Court of Appeal) B) Congress’s power to regulate the jurisdiction of the Supreme Court  Congress can neither add to nor subtract from the Court’s original jurisdiction ○ The power of Congress over the Supreme Court’s original jx is limited to the regulation of procedural matters that do no impinge upon the jurisdictional authority of the Court Appellate jx for SCOTUS under the exception clause ○ Congress has authority to “regulate” and make “exceptions” to the SCOTUS appellate jx Ex. Judiciary act of 1789, in granting the Supreme Court appellate jx over state supreme court judgments, only conferred such jx where the judgment denied a claim grounded in federal law; a state supreme court decision upholding a federal claim could not appealed to the Supreme Court, despite presenting a federal question under Art. III Ex Parte McCradle ○ Reconstruction era, McCardle sought a writ of habeas corpus in circuit court, challenging his arrest ○ Rule: Although the United States Supreme Court’s appellate jurisdiction is derived from Article III of the Constitution, it is conferred subject to whatever exceptions and regulations Congress chooses to make. (Exception clause) ○ Held: Although the Supreme Court’s appellate jurisdiction is derived from Article III of the Constitution, it is ultimately conferred “with such exceptions and under such regulations as Congress shall make,” as outlined in the Exceptions Clause of Article III, Section 2. Here, Congress had previously affirmed the Supreme Court’s exercise of appellate jurisdiction over habeas corpus actions in its 1867 act but repealed that provision of the act in 1868. By doing so, Congress exercised its constitutional right to limit Supreme Court jurisdiction. Thus, the Supreme Court had no jurisdiction to consider McCardle’s petition for a writ of habeas corpus. ○ Congress can make exceptions even if Congress has “nefarious” intent ○ Intent does not matter: “we are not at liberty to inquire into the motives of the legislature. We can only examine into its power under the Constitution; and the power to make exceptions to the appellate jx of this court is given by express words” ○ McCradle has been interpreted to permit Congress to repeal statutes granting appellate jx to SCOTUS as long as it has not repealed all avenues for the Supreme Court to exercise jx US v. Klein (Limits on Congressional Power to Regulate Federal Court JX) ○ The Supreme Court held in Klein found that Congress enacting a statute providing that in any case in which a “litigant proved he had received a pardon, the presiding federal court would immediately lose jurisdiction over the case and be required to enter judgment against the claimant” unconstitutional on the ground that it violated separation of powers principle. ○ Congress cannot prescribe a “rule decision” for the courts: it cannot direct the courts rule for a a particular party or class of parties in pending cases. Congress can be motivated to effectuate a particular outcome (McCradle) but cannot actually mandate the judiciary to enter a judgment for a party in a pending action. A that does so encroaches on the province of the judiciary under Art III.  Exceptions Clause- only allows Congress to regulate or make exception to the Supreme Court’s appellate jurisdiction ○ Congress has no authority to regulate or make exceptions to the Supreme Court’s original jurisdiction ○ Congress can grant the Supreme Court discretion whether to hear such cases as an original matter, such that the justices can force litigants (by declining discretionary review) to bring actions originally in district court. Under current federal law, the only cases that must be brought originally in the Supreme court– that is where the Supreme court’s original jurisdiction is exclusive are those in which one state is suing another state. THE ELEVENTH AMENDMENT “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 11th amendment confers immunity from suit in federal court to state government in particular circumstance Prohibits the citizens in one state from suing another state in federal court (sovereign immunity)-- it immunizes states but not local government A citizen of one state cannot sue a different state in federal court without the state’s consent Immunity coverage extends to unconsenting private suits against states brought by their own citizens (Hans v. Louisiana) Only bars federal jurisdiction over actions “commenced or prosecuted against” a 11th amendment immunity does not extend to: ○ Suits brought by the United or another state (one sovereign to another) ○ Suits asserted against local government (e.g. city council) ○ Suits initiated in bankruptcy court Exceptions to the 11th amendment: Unconsenting suits/Waiver ○ Consent: State governments can waive or forfeit their 11th amendment immunity by rendering themselves amenable to suit ○ Waiver by state statute: States may waive its 11th amendment immunity by enacting a statute proclaiming the state’s amenability to suit. ○ Waiver through participation in federal funding: States may waive its 11th amendment immunity by agreeing to participate in a federal spending program if a condition of such participation is amenable to private suits in federal courts; conditions must be clear and unambiguous Ex. individuals with disabilities education act (idea) ○ Waiver through litigation conduct: 1st: when a state itself files a claim in federal court, it necessarily forfeits its immunity from being subjected to the federal court’s jurisdiction  2nd: if a private plaintiff sues a state in state court, and the state then removes the case to federal court- thereby invoking the federal court’s jurisdiction- it forfeits its right to assert 11th amendment immunity. Implied consent through the “plan of the Convention” ○ 11th amendment does not grant states immunity from suits to which they implicitly consented by entering the Union at when the Constitution was ratified ○ Five categories of suits identified by the Supreme Court: 1) Actions brought by other states, at least when the state plaintiff is seeking to vindicate its own interest (rather than the private interest of its citizens) 2) Actions brought by the federal government 3) Claims against states arising in bankruptcy proceedings 4) Cases where the federal government has validly exercised its eminent domain power, “including in condemnation proceedings brought by private delegates.” 5) Actions brought under federal statues Congress has enacted under its authority “to build and keep a national military.” The federal government may sue state governments ○ Sovereign immunity does not bar Suits against state officers are allowed when government can’t be sued Ex parte Young ○ Establishes that though private plaintiffs can not sue a state itself in federal court absent the state’s consent- they can sue the relevant state officer in her official capacity for prospective relied ○ So long as a private plaintiff names the appropriate state officer as the defender (and not the state itself), the plaintiff claims for prospective relief will not be barred by the 11th amendment. This means federal courts can adjudicate all sorts of claims asserting that states are acting illegally ○ Ex parte young only apples when a plaintiff seeks prospective relief Prospective relief- only applies to future conduct, rather than attempting to correct the effects of past violations (injunctions and declaratory judgments) Retrospective relief- relief that seeks to make a plaintiff whole for past wrongs (damages) Congress authority to abrogate (override, appeal) the state’s immunity ○ Congress can enact statutes that abrogate the states immunity and thus subject them to unconsenting private suits in federal court (limited circumstances) §5 of the 14th amendment- relatively narrow but when a federal statute fits within this power, Congress can subject states to private unconsenting suits in federal courts ○ Two conditions for Congress to successfully abrogate states’ 11th amendment immunity: 1st: the statue purporting to abrogate states immunity must be valid under §5 of the 14th amendment (enforcing equal protection or due process rights); it is insufficient that the law is within one of Congress’s legislative power— the law  must be specifically aim to enforce the protections of the 14th amendment for abrogation to be valid 2nd: the statute must express Congress’s intent to abrogate the states’ immunity in unmistakably clear” terms; any ambiguity will be construed against abrogation— For Congress to take away a state’s immunity, the law must clearly state that intention. The intent must be "unmistakably clear" in the statute’s wording. If there’s any ambiguity or unclear language, the courts will assume Congress did not mean to abrogate state immunity. Justiciability Most important constraints on federal courts; “they may only decided disputes that are justiciable ○ Justiciability refers to a body of judicially created doctrines that define and limit the circumstances under which and Article III federal court may exercise its constitutional authority ○ The requirement for cases and controversies (series of limits of judicial power that must be met for a case to be heard Justiciability focuses on the nature of the dispute or a party’s personal stake in the litigation. Five Justiciability Doctrine Overview ○ No advisory opinions ○ Only a person or entity who has standing may bring a lawsuit ○ Ripeness: the case of action who has standing may bring a lawsuit ○ No moot suits ○ Political question doctrine No Advisory Opinions ○ Two basic criteria to determine whether a judicial opinion is unconstitutionally “advisory.” A court’s nonbinding interpretation of a legal question a) the matter lacks an actual concrete legal dispute between adverse parties b) the decision is not substantially likely to have a binding legal effect on the parties ○ Actual legal dispute between adverse parties To constitute a case or controversy under Art III, there must be a concrete legal dispute between the adverse parties ○ Decisions lacking binding legal effect Standing (locus standi)- capacity of a plaintiff or (other party) to pursue an action in court ○ Concerns litigants personal stake in the dispute’s outcome ○ Burden of establishing standing is the plaintiff ○ Requirements to establish standing in federal court: 1) they have suffered an “injury in fact”- a harm that is concrete, particularized, and either actual or imminent There is a causal connection between that injury and the conduct the plaintiff alleges to be unlawful, such that the harm is “fairly [traceable] to the challenged  action of the defendant, and [not] the result of the independent action of some third party not before the court”; It is likely and not merely speculative that injury will be redressed by a favorable decision from the court Associational Standing ○ Association of individuals can have standing in 2 circumstances: ○ Can satisfy standing in its own right if it has suffered an injury itself, as an entity or it can show that: At least one of its members has standing as an individuals and The lawsuit is germane to the association’s purpose The claim or requested relief does not require the participation of individual member Injury in Fact (Art. III) ○ Plaintiff must allege a distinct & palpable injury ○ Concrete and particularized ○ Injury must be actual or imminent, not hypothetical (Summers v. Earth Island) Causation (causal connection) ○ D’s illegal action is legal cause of P’s injury ○ Injury must be fairly traceable to the challenge action ○ Not the result of independent action of some third party not before the court Redressability ○ Likely that the injury will be redressed by a favorable decision ○ Remediable by court ○ Inability to alleviate the injury is tantamount by rendering an “advisory opinion” Ripeness A constitutional question is ripe for judicial review only when the government act being challenge has (or will have) a direct adverse effect on the plaintiff making the claim Ripeness becomes a potential issue in a case when a claimed injury is contingent upon future events A plaintiff is not entitled to review of a statute or regulation before its enforcement unless the plaintiff will some har ot immediate threat of harm ○ Whether the plaintiff has yet suffered and “injury in fact.” More specifically, the question is whether the plaintiff’s injury is sufficiently “imminent.” “Ripeness” refers to the readiness of a case for litigation. A federal court will not consider a claim before it has fully developed; to do so would be premature, and any potential injury would be speculative. ○ Declaratory judgements think ripeness Three factors in consideration of ripeness ○ The probability that the predicted harm will take place ○ The hardship to the parties if immediate review is denied Greater the hardship, greater chance the court will hear as ripe  ○ The fitness of the record for resolving the legal issues presented Does the federal court have before it all that it meeds to make a decision? Mootness Generally a case is moot when one of the components necessary for standing has disappeared during the course of litigation The federal courts will not adjudicate a case that does not present an actual ongoing dispute between the parties– an actually controversy must exist at all stages of review ○ A case becomes moot only when its is impossible for a court to grant any effectual relief whatever to the prevailing party ○ The party who claims a case is moot who bears the burden of establishing that once-live controversy is now moot ○ Certain exceptions where federal court still has jurisdiction to decide cases under Art III even though the dispute might otherwise appear m Mootness can be raised at any point in the proceeding A court may dismiss a case as moot int he proceeding Prudential interest of the Court Exceptions ○ When the dispute has purportedly been mooted by def’s Voluntary cessation of the challenged conduct Ex. plaintiff seeks injunction against a defendant who discharges pollutants into river. If the polluter ceases without an order or judgment The idea is that the de’s voluntary cessation might be be more strategic than sincere, an effort to obtain the suit’s dismissal before the court issues any decision on the merits, thus permitting the defendant to resume activity in the future ○ Capable of repetition while evading judicial review Circumstances in which the legal issue is otherwise justiciable, but there is something about its factual circumstances that precludes judicial review Ex. Roe v, Wade- pregnancy, nine month gestation period ○ Class action suits If the name plaintiff’s claim becomes moot, call will not be dismissed so long as 1 member of the class has an ongoing injury POLITICAL QUESTION DOCTRINE Federal courts will not adjudicate a case that requires them to make decisions that are more appropriately decided by other branches of government An otherwise-justiciable case lies beyond a federal court’s authority to decide if the dispute constitutes a so-called “political question”: a dispute the Constitution vest for its resolution in the elected (or political) branches.  The term refers to a narrow category of disputes the Constitution leaves to the political process, unreviewable by the federal court ○ Generally present questions of constitutional law but are questions that the federal courts are not empowered to answer ○ Exception to the general rule that the “judiciary has a responsibility to decide cases properly before it.” ○ Only affects a handful of disputes Zivotofsky v. Clinton ○ The political question question, by contrast (merits) was whether this merits question was itself committed to the political branches to resolve and thus unreviewable by the federal courts A controversy involves a political question… where there is a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it Framework for identifying political questions 1. Textually demonstrable constitutional commitment: the issue is explicitly assigned to another branch of government by the Constitution (e.g. war powers to Congress) 2. Lack of judicially discoverable and manageable standards: there’s no clear legal standard for the court to use in resolving the issue 3. Impossibility of deciding without an initial policy determination: the issue requires a non-judicial policy decision Adequate and Independent State Grounds The US Supreme Court will not review a state court decision if the decision rest on adequate and independent state law grounds, even if the case involves federal law. Tis ensures that state courts remain the final authority on state law ○ 1) Adequate State Grounds The state law grounds must be sufficient on its own to support the judgement If the state law would independently decide the case, regardless of any federal issue, the state ground is “adequate” ○ 2) Independent State Grounds The state law ground must not depend on an interpretation of federal law If the state court decision is based purely on state law without relying on federal law, the state ground is “independent” In such instances the Supreme Court cannot review the state court’s judgment because ○ a) the Court lacks smj over the state-law question, and ○ b) its review of the federal questions lacks the capacity to alter legal rights of the parties making it purely advisory. Political Restraints on the Judiciary Appellate Review: regulate subject matter jurisdiction  Appropriations for judiciary budget Number of justices Constitutional amendment impeachment THE POWER OF CONGRESS Essential principle- Congress authority is limited: Congress can only act pursuant to those powers enumerated in the Constitution, either expressly or implicitly’ McCulloch v. Maryland Necessary and Proper Clause: ○ So long as the Constitution grants Congress the power to pursue a certain end or objective (such as regulate “commerce among the states”), Congress also has the power to employ the any reasonable or “appropriate” means to accomplish that end ○ Congress has the power to make all laws necessary and proper (appropriate) for executing any power granted to any branch of the federal government Gives Congress wide authority to use reasonable means to accomplish a constitutionally granted objective ○ Truly necessary not merely convenient ○ Congress can never use the clause standing alone as a justification for enacting a federal statute. Congress may adopt appropriate means to achieve some legislative objective– and that objective must be authorized elsewhere in the Constitution Federal Immunity Doctrine- states may not (absent congressional authorization) impose taxes or regulations directly ont he federal governments or its instrumentalities ○ Maryland v. McCulloch: sought to tax the Bank of the United States The Commerce Power Article I, Section 8, Clause 3 of the Constitution, known as the Commerce Clause, empowers Congress “[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” The term “commerce” has been defined to include essentially all activity—including transportation, traffic, or transmission of gas, electricity, radio, TV, mail, and telegraph—involving or affecting two or more states. Congress can regulate “three broad categories of activity: ○ 1) the use of channels of interstate commerce ○ 2) regulate and protect instrumentalities of interstate commerce, or person or things in interstate commerce ○ 2) regulate “those activities that substantially affect interstate commerce Use of Channels of Interstate Commerce Includes activities that constitute the use of those mechanisms through which interstate commerces flows: mails, interstate shipping, interstate railroad networks, interstate highways, navigable waterways, cables and wires carry telecommunications, and the like Regulating or protecting “the instrumentalities of interstate commerce, or person or things in interstate commerce” Items used to conduct commerce ○ E.g. airplanes, ships, railroads, cars telecommunication towers, and trucks Permits Congress to enact laws Protecting persons or things in the flow of commerce even when the activity regulated is not a use of the channels or interstate commerce Activities that substantially affect interstate commerce … if economic activity involved Determination whether a federal statute fits within the category it whether the regulate activity is “economic” or “commercial” in nature Gonzales v. Raich “Congress can regulate purely intrastate activity that is not itself commercial, in that it is not produced for sale, if it concludes that failure to regulate that class of activity would undercut the regulation of the interstate market in that commodity.” so long as the statute considered on its face, falls within the commerce power, then Congress has no obligation to exempt from the statute;s coverage particular instances of that activity that are not a a part of interstate commerce. Analyzing whether a statute falls within Congress’s commerce power ○ Identify the precise activity the challenged provision regulates Regulate Inactivity (NFIB v. Sebelius) The power to regulate commerce presupposes the existence of commercial activity to be regulated ○ The power to regulate commerce is distinct from the power to create or call into being The individual mandate does not regulate existing commercial activity; instead it compels individuals to become active in commerce by purchasing a product (ACA) ○ Congress cannot use its commerce power to compel individuals to become active in commerce by purchasing a product, on the ground that the failure to do so affects interstate commerce. ○ Constitution gives Congress the power to regulate commerce, not compel it. Ignoring that distinction would undermine the principle that the Federal government is a government of limited and enumerated powers TAXING AND SPENDING POWERS General Welfare Clause: Congress shall have power to law and collect taxies, duties, imposts, and excises to pay debts and provided for the common defense and general welfare of the united states; but all duties, impost and excises shall be uniform throughout the United States ○ The first part grants Congress the authority to impose taxes, while the second gives it the power to spend Taxing Power: Congress has the power to tax and most taxes will be upheld if they bear some reasonable relationship to revenue production or if Congress has the power to regulate the activity taxed Regulations  ○ Limited to the subjects as within Congress’s regulatory powers ○ A regulatory penalty is a sanction (whether civil or criminal) for violating a regulation- a coercive rule governing conduct that deems a violation of that rule unlawful ○ By contrast a tax is a financial liability triggered by a certain act (or failure to act)- an act (or failure to act) that generally is completely lawful. A tax is not triggered by the violation of a governing, coercive rule fo conduct. Taxing and Spending ○ FOR THE GENERAL WELFARE ○ Congress has the power to determine the subjects of taxing and spending, if implementation aligned with necessary and proper clause Taxing Powers ○ Historical cases such as Bailey v. Drexel Furniture limited Congress’s use of the taxing power by striking down taxes that were created to effectuate congressional regulation of “state subject matter” ○ Bailey also found that Congress could not use the taxing power to penalize conduct Congress could regulate by use of the commerce power ○ But congress can influence activities that are not within the enumerated powers using the taxing and spending powers Two essential features of tax under the Constitution: ○ 1) it produces at least some revenue for the Government and ○ 2) it does not attach any “negative legal consequences to” the taxed activity (or inactivity) Sebelius: Attributed of a Tax v. a Penalty The shared responsibility payment is paid into the treasury when filing taxes Amount owed is determined by factors that are used to calculate income tax (not a flat amount) Found in the IRS code and enforced by the IRS Intent to influence conduct is not mean its invalid as a tax The payment is not so high that there is a really is no choice but to buy health insurance The payment is not limited to willful violations, as penalties for unlawful acts often are Comparing Regulatory and Taxing Power When congress regulates activity, it must act within one of the enumerated powers giving it regulatory authority… these powers have textually-based subject matter limitation (enumerated powers) Taxing has no subject limitation but limits the mechanism used by Congress: the provision must be a tax; Congress can tax any activity; provided the tax does not run afoul of one of the Constitution’s other protections ○ Ex. a tax that targets newspapers would likely be unconstitutional Congress authority under the taxing power is limited to requiring an individual or entity to pay money into the federal treasury ○ When Congress imposes a tax, the only action it can demand is the remittance of a payment Two essential characteristics that all taxes share: ○ 1) they do not render the taxed activity unlawful  ○ 2)They raise at least some revenue for the government The Spending Power The General Welfare Clause gives Congress the authority to spend funds from the federal treasury South Dakota v. Dole Conditioned Stated Receipts of federal Highway Funds upon a state’s use of its police power Withheld 5% of federal highway funds Other constitutional limits Congress can use conditional spending to encourage (but not compel_ state legislation that implements federal policies Conditional Spending Requirements: four [or really five] criteria that conditional spending programs must satisfy to constitute a valid exercised of the spending power 1) For the general welfare 2) Conditions must be unambiguous, making it clear to the states what is required 3) Condition must be meaningfully related to the spending program (“germane”) 4) May not independently violate any other constitutional provisions 5) No spending condition can be “so coercive as to pass the point at which pressure turns into compulsion OTHER CONGRESSIONAL POWERS The 13th, 14th, & 15th amendments include provisions granting Congress power 14th amendment (§5) ○ Congressional authority to enforce the 14th amendments substantive prohibitions Remedial thant substantive in nature: it grants congress the authority to enact measures that remedy or prevent unconstitutional actions that enforce existing constitutional rights. It does not grant congress the substantive power to redefine the scope of constitutional protections (power rest ultimately with the court Congruence and Proportionality: ○ “Preventative measures are sometimes appropriate remedial measures, there must be a congruence between the means used and the ends to be achieved Congruent: regulates conduct that is unconstitutional, but goes no further (or may sweep in a small amount of constitutionally permissible conduct i.e., literacy test cases) Proportionality ○ “RFRA is so out of proportion to a supposed remedial or preventive object that is cannot be understood as responsive to, or designed to prevent, unconstitutional behavior. It appears, instead, to attempt a substantive change in constitutional protections.” Congressional Power to Regulate in order to Effectuate Treaties 1. Power of President to make treaties with Advise and Consent of Senate (Artcle II, section 2 clause 2 2. Power of Congress to make all laws necessary and proper to effectuate all powers vested by the Constitution to the federal government Treaties: Self Executing or Not Self executing treaties require no action by Congress to go into effect as law enforceable in US Courts Non-self-executing treaties need domestic legislation to become effective Missouri v. Holland Congress enacts Migratory Bird Treaty Act of 1918 pursuant to 1916 treaty between Us and Great Britain SCOTUS previously held that Congress could not use commerce power to enact a similar statute Treaty power (Pres. & Senate Consent) in conjunction with Necessary and Proper clause authorizes Congress to enact the MBTA The treaty power augments Congress’ legislative authority by authorizing Congress to enact legislation to effectuate a treaty even though the legislation that would otherwise exceed its enumerated powers Congress cannot enact a law pursuant to a treaty that would deny or limit Constitutionally protected individual rights Held: statute that would otherwise exceed Congress’s enumerated powers will nonetheless be valid if its “necessary and proper” to the effectuation of the nation’s valid treaty obligations Elections and Property Clause Clause grant Congress the power to override state regulations by establishing uniform rules for federal elections, binding on the States Territory and Property Clause The power of congress over public lands it without limitations ○ 1) authority of the federal government as proprietor, with rights of any owner over property to which it holds title ○ 2) regulate all activity occurring on US territories or US owned lands Federal government has general police power (in a way) over the US territories FEDERALISM LIMITS ON CONGRESS’S AUTHORITY TO REGULATE THE STATES: 10th & 11th Amendments The Tenth Amendment Powers not delegated to the US by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people ○ Reiterates federalism-based limited ont he federal government by the structure of the Constitution Federalism restrains Congress from using its enumerated powers to compel states to regulate ○ Forbids regulation that would otherwise be within Congress’s enumerated authority, except for their interference with state sovereignty Anti-Commandeering Principle The federal government cannot compel the sovereign states to enact specific regulations ○ But we have seen that congress can use its spending power to persuade states to adopt legislation… although not in a coercive manner Four Limits to Anti-Commandeering 1. Anti-commandeering only applies to federal statutes regulating the states in their sovereign capacities—as regulators or governors of their inhabitants, and not as entities engaged in proprietary activities. “Generally applicable legislation” that treats the states and private party the same is not subject to anti-commandeering analysis To regulate or govern is to deploy power that only the government possesses, by virtue of being sovereign 2. Anti-commandeering principle only forbids federal laws requiring the states to take affirmative acts, not those merely prohibiting states from acting. Federal statutes that forbid states from regulating in certain ways raise federal preemption issues. 3. Third, the anti-commandeering principle does not forbid Congress from encouraging the states to regulate or govern according to federal dictates, even if Congress could not command the states to do the same (i.e., conditional spending) 4. The anti-commandeering principle does not apply to federal commands directed to state courts. Article II & the Separation of Powers Art. II “the executive Power shall be vested in a President of the United States of America. Art. II grants the President: ○ The power to execute federal law (Vesting Clause) ○ The power to “take care” that federal law is faithfully executed (Take Care Clause) ○ Commander-in-chief power ○ Recognition power: authority to recognize foreign sovereigns (Reception Clause) Separation of Powers ○ Each branch has its own, distinct sphere, and each is autonomous within its sphere Checks & Balances ○ Each branch of government has its distinct sphere although the branches are structured to interact, overlap, act in concert with each other Presidential Authority Youngstown Sheet & Tube Co. v. Sawyer- President authorized executive order 10340 to require steel mills to remain open after employees indicated an intention to strike over collective-bargaining agreements. ○ The President’s power to issue executive orders must come from either and act from Congress or the Constitution. ○ Justice Jackson’s 3 category framework for analyzing assertions of Presidential Power 1) if a President acts within the “express or implied authorization of Congress.” The President’s authority is “at its maximum,” and his action is presumptively constitutional.  Personification of federal sovereignty. Ask- whether the relevant statute actually gives the President the power they seek to exercise? 2) If a President acts in the face of congressional silence, “zone of twilight.” “When the President acts in the absence of either a congressional grant ot denial of authority, he can rely upon his own independent powers, but there is a zone of twilight in which its distribution is uncertain.” In these actions the constitutionality of the President’s actions will be uncertain. 3) If a president acts in defiance of Congress, or when the executive action is “incompatible with the expressed or implied will of Congress,” the president’s power is “at its lowest ebb,” and his action is presumptively unconstitutional. Other Executive Powers Recognition Power ○ Power to recognize foreign sovereigns exclusive to executive, although Congress has power with respect to policy before and subsequent to executive recognition (Zivotofsky v. Clinton #2) Pardon Power ○ Power granted exclusively to the executive, preclude Congressional interference. Executive Branch Appointment Powers Art. II §2, cl. 2— “[the President] shall nominate and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose appointment are not herein otherwise provided for, and which shall be established by law; but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Court of Law, or in the Heads of Department.” Lucia v. SEC ○ Security and Exchange Commission Admin Law Judges appointed by SEC staff member slack constitutional authority to do their jobs as officers of the executive branch because they were not appointed pursuant to the constitutional requirements ○ SEC ALJs issue decision that may become the financial action of the SEX- making their decisions similar to those of the STJs (special trial judges of the tax court) in Freytag, but “with potentially more independent effect.” Because SEC ALJs have equivalent duties and powers as STJs, they too are officers subject to the Appointment ○ An officer is an individual who holds a “continuing position established by law” and who exercises “significant authority pursuant to the laws of the United States.” “Officers” are appointees who meet two criteria: 1) they “hold a continuing office authorized by law” Established by an act of Congress and which is permanent (as opposed to merely “temporary” or “episodic” The officer in question need not hold the office indefinitely; what matters if that the office is “continuing” rather than temporary.  2) they “exercise significant authority pursuant to the laws of the United States Significant Authority Test (Relying on Freytag v. Commissioner) They “take testimony” at hearings by “receiving evidence” and “examining witnesses;” They “conduct trials” by administering oaths, ruling on motions, and generally ‘regulating the course’ of a hearing;” They “rule on the admissibility of evidence,” thereby “critically shaping the administrative record;: They “have the power to enforce compliance with discovery orders” and “may punish all “contemptuous conduct” “Inferior” and “principal” (or superior) officers ★ Appointment Clause: The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Court of law, or in the Heads of Departments.” ○ Congress has the power to decide who appoints “inferior officers within the government, allowing them to designate the President alone, courts of law, or heads of departments to make those appointments, without requiring Senate confirmation for these positions; essentially giving Congress flexibility in the appointment process for lower-level officials. Every nonelected federal official is deemed to be (1) a principal officer; (2) and inferior officer; (3) a mere employee The Appointment Power ○ The President appoints ambassadors, federal judges and officers of the United States (includes Cabinet) President appoints and Senate confirms ○ Congress may vest the appointment of inferior officers in the President, the heads of departments or the lower federal courts Inferior officers are who could be fired by officers of United States ○ Congress may not give appointment power to itself or its officers Factors to measure in assessment of difference between principal, inferior officers, and mere employees ○ (1) the nature and extent of the official’s duties, and whether ot not they include policymaking functions ○ (2) the amount of independence and source of supervision - e.g. whether they answer directly to President etc.  ○ (3) the position’s tenure (continuing, temporary, or intermittent, and circumstances surrounding their removal) United States v. Arthrex ○ Issue: whether the nature of their responsibilities is consistent with their method of appointment ○ Held: Congress granted the APJs the power to render a final decision on behalf of the executive branch absent any review by a superior executive officer. Because of this authority APJs were adjudicating ○ Analysis: Whether one is an ‘inferior’ office depends on whether he a superior office other than the President. —---An inferior officer must be directed and supervised at some level by others who were appointed by Presidential nomination with the advice and consent of the Senate The Removal of Federal Officers Removal is governed by the Constitution’s general separation-of powers principles. Unless removal is limited by statute, the President may fire any executive branch official ○ For congress to limit removal, its by an officer where independence from the President is desirable; and Ex. independent counsel/special prosecutor Cannot limit the removal of cabinet Congress cannot prohibit all removal, it can limit removal to where there is good cause Myers v. United States (1926): The court held that the power to remove appointed officials, with the exception of federal judges, rest solely with the president and does not require congressional approval ○ 1) the power of removal is incident to the power of appointment ○ 2) the Take Care Clause emphasizes the necessity for including within the executive power the exclusive power of removal Congress could NOT limit president’s ability to remove of purely “executive officers” to require consent of Senate Humphrey’s Executor v. US ○ Congress can create independent agencies (quasi legislative and quasi judicial) with limits on removal power (inefficiency, neglect of duty) if the agency’s function is not executive. The FTC is an administrative body created by Congress to carry into effect the legal policies found in the statute that Congress enacted, subject to the legislative standards established therein. An FTC commissioner’s functions are legislative and judicial in nature. The president’s executive removal power does not extend to such government officials.  The court ruled that the heads of independent agencies can only be removed by the president for cause Independent Agencies (two definitions) ○ an independent agency may be defined as any agency established outside of the Executive Office of the President or the 15 executive departments. Since these agencies are not required to report to a higher official within the executive branch, such as department secretary, they may be considered independent ○ An independent agency may also be defined as an agency in which the top official has cause removal protections and therefore, is insulated from political interference by the president or other elected officials. Cause removal protections ensure that “political appointees cannot be removed except for cause, inefficiency neglect of duty, or malfeasance in office, or similar language.” Morrison v. Olsen ○ Rule: A law vesting the judiciary with the power to appoint an inferior executive officer, such as an independent counsel, and prohibiting the attorney general from removing the officer without good cause does not violate separation-of-powers principles. Other Separation of Powers Principles The Nondelegation Doctrine ○ The extent to which Congress may permissibly delegate to agencies legislative and adjudicative powers ○ Vesting Clause of Article I construed provides that Congress cannot delegate legislative power to any other branch of the government, including administrative agencies in the executive branch. ○ Intelligible Principle Test: the Court holds that Congress may delegate legislative powers to an administrative agency without violating the nondelegation doctrine if Congress gives the agency an intelligible principle to follow in exercising that power. Congress must indicate: 1) a general policy 2) the public agency which it to apply the policy, and 3) the boundaries of this delegate authority Major Questions Doctrine ○ A rule of statutory construction- operates as an indirect mechanism for enforcing the nondelegation doctrine ○ If congress wishes to make a broad delegation of authority with major policy consequences, it must make its intent clear- i.e. the statute must confer on the agency “clear congressional authorization” ○ ** never choose an answer as unconstitutional because of acts of excess delegation The Legislative Veto  ○ Statutory mechanism that permits Congress to block particular administrative decisions made by the executive branch in enforcing or implementing federal law Legislative in its character and effect Action that had the purpose and effect of altering the legal rights, duties, and relations of persons… tries to overturn executive action without bicameralism or presentment ○ Legislative vetoes are always unconstitutional For congress to ace there must always be bicameralism (passage by both the House and the Senate) and presentment (giving the bill to the President to sign or veto) Line Item Veto ○ Gave the President power to “cancel in whole” three types of provisions that have been signed into for five days after he signed the bill: any dollar amount of discretionary budget authority; any item of new direct spending; or any limited tax benefit ○ The President must sign or veto the bill in its entirety ○ Line item veto is unconstitutional Structural Constraints on the States Federal Immunity and Preemption Federal Immunity States have general police power, are not limited to regulating enumerated subjects ○ Limitations on authority over federal government, authority over other states, on depriving residents of protected rights States and local government may not either: ○ 1) directly regulate or tax the federal government or its instrumentalities, (Inter-governmental immunity) or ○ 2) enact or enforce laws that discriminate against the federal government McCulloch v. Maryland: State could not directly tax national bank States cannot control operation of federal laws However state laws that treat everyone equally can indirectly affect federal interest, i.e. state income taxes, taxes on federal contractors, but not property tax Stats cannot discriminate against federal employees by exempting only state governmental employees Intergovernmental tax immunity doctrine bars state taxes that discriminate against federal employees based on the source of their income, when there are no significant differences in state and federal workers job responsibilities Preemption The Supremacy Clause of Article IV provides that the Constitution, and laws and treaties made pursuant to it, are the supreme law of the land  Federal preemption of state law amounts to prohibition: a federal command that a certain state law cannot be enforced Practical result is the court will apply the federal law and ignore the state law Types of Preemption: (no independent significance, just different ways of describing how Congress can express its intent to displace state law) ○ Express Preemption: In the text of the statute, Congress explicitly states its intent to displace state law ○ Implied Preemption: no express statement in the statute regarding preemption Implied Conflict: federal and state law conflict with each other in some way Impossibility: it is impossible to comply with both federal and state law Obstacle or Frustration of purpose: it is possible to comply with both federal and state law, but state law stands as an obstacle to the accomplishments of the federal statute’s objectives ○ Analysis: 1) identification of the federal objective; and 2) a determination of the extent to which state law interferes Implied Field: congress has enacted regulatory scheme so comprehensive that it is clear that Congress intended to displace all state law in that field Federal interest so dominant that the federal system will be assumed to preclude enforcement of state laws on the subject Object sought to be obtained by federal law and the character of the obligations imposed by it reveal field preemption purpose Question: whether (or to what extent) Congress intended the federal law at issue to displace the state law being invoked? ○ ○ ○ ? The Dormant Commerce Clause Dormant Commerce Clause (negative implication): absent express congressional authorization, states may not enact regulations or taxes that discriminate against or unduly burden interstate commerce ○ Only constrains state and local governments States Laws that Violate the Commerce Clause ○ a) State laws that on their face discriminate against out of state commerce strict scrutiny Laws whose purpose is to regulate interstate commerce, or whose effect is to control out-of-state transaction;  ○ b) facially neutral states laws that were enacted with discriminatory purpose or effect on commerce originating in other states virtually per se invalid Laws that discriminate against interstate commerce; and ○ c) Facially neutral state law with a disproportionately adverse effect on out of state commerce invoke a balancing test Laws that do not discriminate against, but nonetheless burden interstate commerce Step 1: Does the law (regulating interstate commerce) conflict with federal law? ○ If yes: preemption and Supremacy clause analysis ○ If no: step 2 Step 2: Is the state/local law facially discriminatory against interstate commerce or otherwise operating as a trade barrier against out-of-state interests? ○ If yes: law is subject to strict review and is virtually per se unconstitutional ○ If no: go to step 3 Facially Discriminatory/Discriminatory Intent ○ Only laws that favor in-state private actors at the expense of out-of-state actors Virtually per se invalid (strict scrutiny); burden shifts and government must prove that ○ 1) The law furthers a legitimate, nondiscriminatory objective ; and ○ 2) The objective cannot be adequately served by reasonable nondiscriminatory alternative means (narrowly tailored to achieve the non-protectionist objective) i.e. the state lacks any practicable non-discriminatory alternative for achieving the interest ○ Under this test, and economic protectionist purpose (to benefit local business at the expense of out-of-state business) is not a legitimate objective under DCC When a state has enacted a law for protectionism purpose, surviving strict scrutiny* is impossible. The purpose of advantaging in-state economic actors is illegitimate under the Commerce Clause Nondiscriminatory Laws that Burden Interstate Commerce ○ When a state law regulates evenhandedly to effectuate a legitimate local interest but incidentally effects interstate commerce, the law will be upheld unless the burden imposed on interstate commerce is excessive compared to the local benefits achieved by the regulation ○ Balancing test (less rigorous than strict scrutiny) 1) Operation: Does the law regulate evenhandedly? - does it apply equally to all parties (does not unfairly discriminate against out-of-state parties) and is designed to advance a valid local concern i.e. public health, safety.  If yes move to 2, if no its discriminatory 2) Effect: Are the interstate commerce effects incidental? - the law may have some impact on commerce between states, but this effect is secondary to its main purpose of serving a legitimate local interest If yes move to 3,if no it substantially burdens interstate commerce and is treated as discriminatory … see HUNT 3) Are burdens imposed excessive with relation to local benefits of the law? - if the law’s negative impact on interstate commerce is minor compared to the benefits it provides locally, it will generally be allowed; courts will weigh the burden on commerce against the local benefits to determine if the law is reasonable Answer must be no Extraterritorial State Legislation ○ A law that directly regulates out-of-state transaction by those with no connections to the State is unconstitutionally extraterritorial The Market Participant Exception ○ A state or local government may prefer its own citizens in receiving benefits from government programs or in dealing with government-owned business Ex. In-state tuition because UC is a government benefit program Ex. State owned business can favor in-state ○ Allows states to fashion programs that solve local problems and distribute state resources to its residents ○ When acting as a market participant a state can choose to prefer its own citizens over non-residents ○ States may only impose conditions in the market in which they actually participate The Privileges and Immunities Clause of Article IV No state shall deprive citizens of other states of the privileges and immunities it accords its own citizens; anti-discrimination The Article IV P&I Clause creates a strong presumption against state and local laws that discriminate against out-of-staters with regard to fundamental rights or important economic activities. ○ Does not guarantee any specific constellation of substantive rights ○ Generally requires the equal treatment of residents and nonresidents SCOTUS applies intermediate scrutiny. Such discrimination will be allowed only if it is substantially related to achieving a important state interest ○ Does the state have a substantial reason for treating out of state residents differently? ○ Is there a substantial relationship between the discriminatory practice and the problem the law addresses? (is the discrimination substantially related to that goal)  Only triggered if a state discriminates against citizens of other states with respect to interest that are sufficiently “fundamental” to come within the purview of the clause. What are the privileges and immunities of citizenship? ○ Protection by the government ○ The enjoyment of life and liberty ○ The right to acquire and possess property of every kind ○ The right to “pass through” or travel in a state for the purposes of trade, agriculture, professional pursuits, or otherwise ○ To claim the benefit of the writ of habeas corpus ○ To institute and maintain actions of any kind in the courts of the state ○ To take, hold and dispose of property either real or personal ○ To be exempt from higher taxes or impositions than are paid by the other citizens of the state ○ “The pursuit of a common calling is one of the most fundamental of those privileges protected by the Clause.” (UBTC v. Camden) The 14th Amendment Privileges or Immunities Protects a citizen’s right to establish residency in a new state- the right to interstate migration ○ The right of any U.S citizen to move to any state and become a citizen of that state SCOTUS applies strict scrutiny for discrimination based on duration of residency– most likely to be found unconstitutional ○ A law can survive strict scrutiny only if the government can establish that 1) the law is supported by a compelling government interest, and 2) it is narrowly tailored (or necessary) to accomplishing that interest Federal (14th A.) Privileges or Immunities ○ Right to travel, which includes the right of newly arrived citizens to enjoy the same privileges and immunities enjoyed by other citizens of the state (Saenz v. Roe, welfare benefits) ○ Right of access to the set of government, court of the several states ○ Right to use the navigable waters of the United states ○ Right to demand protection of the federal government on the high seas or abroad ○ Right of assembly The State Action Doctrine The fundamental principle that the constitution only regulates the exercise of governmental power Actions by the government or those acting under its authority are regulated by the Constitution. In contrast individuals/entities can be regulated by the federal government, as authorized by Constitutional grants of power ○ The Constitution itself only regulates the actions taken by the government or those acting under its authority ○ Exception: 13th amendment State action = persons acting as agents of (or on behalf of) the government  When a person acts “under the color of law” there is “state action” for purposes of Constitutional protections/restrictions Exceptions to the state action doctrine ○ The public function exception: When a private entity performs “a task that traditionally has been done exclusively by the government” Examples includes: The staging of elections The operation of prisons The operation of a “company town” “A private entity may, under certain circumstances, be deemed a state actor when the government has outsourced one of its constitutional obligations to a private entity Pervasive regulation of the entity is sufficient A private entity can qualify as a state actor in a few limited circumstances including: ○ When the private entity performs a traditional, exclusive public function; ○ When the government compels the private entity to take a particular action; or ○ When the government acts jointly with the private entity The entanglement exception ○ When the government has affirmatively authorized, encouraged, or facilitated the conduct at issue The government facilitates private conduct that otherwise would not have occurred The government’s purpose was to undermine or evade the protection of constitutional rights Mere licensing, subsidization, or extensive regulation will not be enough to make a private person a state actor Incorporation Doctrine Doctrine through which parts of the Bill of Rights are made applicable to the states through the Due Process Clause of the 14th amendment (Timbs v. Indiana) ○ To be fundamental as a matter of due process the right must either be Fundamental to our scheme of ordered liberty Deeply rooted in this Nation’s history and tradition Application of the Bill of Rights ○ The Bill of Rights applies directly only to the federal government. ○ The Bill of Rights is applied to state and local governments through its INCORPORATION into the due process clause of the Fourteenth Amendment. ○ Exceptions (rights that do not apply to states) The Third Amendment right to not have a soldier quartered in a person’s home. The Fifth Amendment right to grand jury indictment in criminal cases. States do not need to have grand jury indictments  The Seventh Amendment right to jury trial in civil cases No right to jury trial in state civil cases The Eighth Amendment right against excessive fines. State and local governments can give excessive fines However, Eighth Amendment rights against cruel and unusual punishment and excessive bail are incorporated and applicable to states. The Taking Clause Taking Clause of 5th Amendment: “nor shall private property be taken for public use without just compensation.” ○ The government may take private property for public use if it provides just compensation 1. Does the governments actions amount to a “taking”? ○ Physical appropriations- where the government takes possession or physically occupies the property (or authorizes a third party to do the same) ○ Restrict owners use of the property 2. Was the taking for “public use 3. If the government has taken property, have they paid the owner “just compensation”. Types of Takings ○ Physical appropriation - government confiscation or physical occupation of property of a taking Does not matter how small property is ○ Regulatory takings- Governmental regulation is a taking if it leaves no reasonable economically viable use of the property Not a taking simply because it decreases the value of the property NOTE: government conditions on development of property must be justified by a benefit that is roughly proportionate to the burden imposed ○ Otherwise it is a taking if burden is excessively related to the benefits