Professional Documents
Culture Documents
b) Constitutional Interpretation: Constitution is short and vague (treason is the only term
defined); designed to be adaptable to changes over time (Marshall); interpretations
based on:
(1) Text: express words and silence
(2) Structure of Govt (Federalism): how the constitution arranges/allocates power
vertically (federalism) AND horizontally (separation of powers/checks and balances)
(3) History/Intent of Framers & Ratifiers: look to Federalist papers, historical context
(not usually clear)
(4) Practice: how has the judiciary and federal govt generally interpreted
(5) Precedent: previous Court holdings (preserves judicial resources, promotes
stability/consistency, BUT obstacle to adaptation)
(6) Principles/Purpose/Policy embodied in Constitution
(a) Includes promoting general welfare, but this is NOT an enumerated power (only
implied)
(i) Govt cannot simply regulate behavior, except pursuant to one of its
enumerated powers (commerce, spending, etc.)
c) Republic vs Democracy
i) Republic operates via election of public representatives to govt (Federalist 10)
(1) Superior to democracy b/c it inserts an intermediary b/t the passions/factions
of the people themselves, and results in the election of the best and brightest
politicians with a national orientation (fear of tyranny of majority)
(2) Large, diverse populace less likely to be controlled by majorities; compromise
required to govern, threat of losing power will force national compromise
(3) Federalist 10 makes no mention of judiciary, implying that STRUCTURE of
govt protects individual rights and not the courts
ii) Democracy operates via direct vote of the people
1
e) JUDICIAL REVIEW
i) Principle:
(1) The federal judiciary (supreme court) is charged with interpreting and applying the
constitution and legislative enactments, therefore the court is also charged with
determining the constitutionality of those legislative enactments
ii) Preamble and Popular Will:
(1) The “people” ratified the constitution, NOT the states OR congress, therefore
neither the states nor congress can transgress the constitution
iii) Political insulation:
(1) The judiciary is also insulated from political pressures/coercion
3
2) The Judicial Power
a) Article III, sec 2, cl 1 - The “Cases and Controversies”
Requirements
c) Standing:
i) Practice/Precedent: Standing case law is NOT consistent but based on the Court’s
considerations on a case by case basis ( considering floodgates of litigation, judicial
interference, etc.)
ii) Constitutional elements (Lujan v. Defenders of Wildlife)
(1) Injury in FACT
(a) Injury must be:
(i) Concrete or particularized (vs. general or vague)
(ii)Actual or imminent (vs. speculative or remote)
1. Not enough if the harm is speculative/in the future
(b)Party seeking review must be himself among the injured
(c) When plaintiff is a STATE acting on behalf of citizens, standing
requirements may be relaxed
(i) Massachusetts v. EPA
1. Facts: MA and 10 other states sued the EPA, arguing the agency was
required under a congressional statute to issue regulations that would
limit emissions from cars
2. Holding: MA had standing because would pose injury to coastal areas
(2) Causation
(a) The injury must be “FAIRLY TRACEABLE ” to the conduct of the D (policy and
other concerns will come into play here)
4
(i) Massachusetts v EPA standard: MEANINGFUL CONTRIBUTION is sufficient,
primary/exclusive/sole causation is not necessary (eg, contribution to rising
sea levels)
(ii) Allen v. Wright: If causation is too attenuated, not sufficient
1. Suit against IRS that it failed to fulfill its obligations to deny tax exempt
status to racially discriminatory private schools
(3) Redressability
(a) A favorable decisions is LIKELY to redress the injury (absolute proof of redress
is not necessary)
(i) Massachusetts v EPA standard: SOME mitigation of harm is sufficient
(complete redress unnecessary), eg mitigation of rising sea levels
(b) If redressability is too speculative, not sufficient
(i) Allen v. Wright:
(4) Note: causation and redressability inquiries will generally yield the same result
5
(c) Separation of Powers issue
(i) In Lujan Scalia suggested that conferring standing on citizens to compel
governmental enforcement action “unconstitutionally transfers from the
Executive to the courts the responsibility to ‘take care that the laws
be faithfully executed”
1. (Lujan v Defenders of Wildlife): it is NOT the duty/responsibility of the
Courts to vindicate the public interest, ie the Courts may not act as
superintendants of the executive branch in faithfully executing the laws
a. Lujan Facts: Sec of Interior re-interpreted Endangered Species Act
requirement providing that every federal agency consult with Sec of
Interior to make sure that no species were jeopardized by agency
actions to apply ONLY to actions taken in US. D opposed but Ct denied
the Pl standing to sue b/c injury was not “imminent” and concerns over
separation of powers.
ii) Ripeness:
(1) Seeks to prevent premature adjudication and involves situations
where the dispute is insufficiently developed and is instead too remote or
speculative to warrant judicial action
(2) Key: Courts will NOT render advisory opinions
(3) Requirements
(a) Injury is sufficiently well-developed and specific injury is present (related to
injury analysis)
e) Political Questions:
i) The Court will not hear cases which involve non-justiciable
political questions,
ii) Factors to Consider: (Baker v. Carr)
(1) Commitment to another Branch of Government
(a) A “textually demonstrable constitutional commitment of the issue to a
coordinate political department”
(i) (Congress or President)
(b) Potential Examples
(i) Impeachment
1. This may prevent court from constitutionally defining category of “high
Crimes and Misdemeanors”
2. Nixon v. US
a. Walter Nixon not entitled to sue and request entire Senate to try him
for impeachment
(ii) Amendment to the Constitution
(2) Lack of Standards
(a)A “lack of judicially discoverable and manageable standards for
resolving” the issue
(b) Example
(i) Luther v. Borden
8
1. Guaranty Clause of Republican Form of Government
(3) Unsuitable Policy Determination
(a)The “impossibility of deciding [the issue] without an initial policy
determination of a kind clearly for non-judicial discretion”
(4) Lack of Respect for Other Branches
(a)The “impossibility of a court’s undertaking independent resolution
without expressing lack of the respect due co-ordinate branches of
government”
(5) Political Decision Already Made
(a)An “unusual need for unquestioning adherence to a political decision
already made”
(6) Multiple Pronouncements
(a)The potential for “embarrassment from multifarious pronouncements
by various departments on one question”
(7) Chaos Will Ensue
(a)Opening the door to judicial review of the procedures used by the
Senate in trying impeachments would ‘expose political life of the
country to months of chaos’
1. Nixon v. US
iii) Cases
(1) Baker v. Carr
(a)Principle
(i) The fact that a suit seeks protection of a political rights does not
mean it necessarily presents a political question
(ii)Enumerates general characteristics of political questions (see above)
(b)Facts
(i) Baker challenged state jurisdictional apportionment asking court to either
direct elections at large or reapportion districts because of population
discrepancy in political representation
(ii) Defendant asserted that this was a political question embodied by the
guarantee of republic form of government
(c) Holdings
(i) Not a political question
(ii) Here Baker asserts his right of equal protection are violated
3) Federalism
a) Nature and Scope of National Power
i) Constitution: was framed to make up for deficiencies in Art of Conf by delegating
greater power to Fed/National govt, BUT is designed to prevent use of that govt by
factions (majority/plurality) for oppression
(1) Problems of pure democracy: tend to lead to factions, ie tyranny of majority
(2) Republicanism (Fed #10): creates a medium/buffer (elected representative
officials) that serves to prevent factions (or at least mitigate chances of success) b/c
elected officials are theoretically more federally/nationally oriented, deliberate,
above local interests, non-partisan
10
(a) Madison makes no mention of judiciary in Fed #10, implying that federal
republican govt structure will protect individual rights, NOT courts
(3) Bill of Rights: included in constitution to explicitly protect individual rights
(otherwise ignored in constitution)
ii) Federalism: Federal/National and State govts co-exist
(1) Federal/National govt is one of limited, enumerated powers, ie delegated
(does not include a general police power)
(a) Art I: Congress/Legislature
(b) Art II: President/Executive
(c) Art III: Judiciary
(2) State govt is limited only by constitutional prohibitions, ie inherent powers
(includes a general police power)
(3) Cooperative federalism: generally the fed & state govts work cooperatively; the
fed enacts broad regulation & relies upon states to administer
(a) Administration/conformity is not compulsive, but incentivized, ie fed gives
money for compliance and gives states the option to figure out how to
regulate/meet the fed goals (allows for local tailoring, experimentation)
iii) Rationale
(1) Pros:
(a) Federalism (two govts) allows for local tailoring of govt (eg, morality),
expression of local interests, greater representation of more diverse local
interests (not watered down by national issues), greater responsiveness from
representatives, govt experimentation, local administrative efficiencies
AND also allows for prevention of large special interest factions (forces national
compromises), national efficiencies of action, maximization of wealth
(2) Cons:
(a) Weak federal govt may result in ignorance/disregard of externalities,
slowness of action (free rider problems), diversity of laws may result in
inefficiencies in administration of justice/judicial system, inefficiencies for
commercial transactions/actors
13
(a) Gibbons v. Ogden, 1824 (CHANNELS OF COMMERCE)
(i) Principle:
a. Commerce is defined as all commercial intercourse.
b. Congress may affect intrastate matters so long as the activity has a
connection with another state.
c. Supremacy clause invalidates local laws conflicting with
Constitution/Federal law.
(ii) Facts:
a. NY state legislature granted Ogden a monopoly to operate steamboats
b/t NY & NJ.
b. Gibbons began operating a competing line licensed under a federal
statute.
c. Ogden obtained injunction in NY court against Gibbons.
(iii) Holding:
a. Congress’s exercise of power was legitimate under the Commerce
Clause, ie it is constitutionally permitted to regulate ALL commerce
concerning more than one state (broad interpretation), where
commerce is ALL COMMERCIAL INTERCOURSE (not just
traffic/exchange).
b. Congress’s actions may permissibly affect intrastate matters, so long
as activity had some commercial connection with another state.
c. Congress’ interstate commerce power is plenary and complete and
not limited other than by Constitution.
d. Injunction against Gibbons is invalid b/c where there is a conflict b/t
state law and legitimate federal law, the federal law is supreme
(Supremacy clause).
18
(c) Wickardv Filburn, 1942 (the “aggregation” principle,
extending powers permitted under NLRB)
(i) Principle:
a. Congress can regulate purely intrastate and non-
commercial (not exchanged) activity IF it believes
that it is necessary to effectuate a legitimate
interstate commerce regulation.
b. Initiation of the aggregation principle of substantial
effects analysis.
i. Aggregation Principle:
- Congress allowed to regulate an activity that,
taken in isolation, does not substantially
affect interstate commerce, if multiple
iterations of that same activity would
substantially affect interstate commerce.
(ii) Facts:
a. Agricultural Adjustment Act permitted Sec of Agriculture to set quotas
on wheat production/consumption on minimally qualified (size) farms
in order to prevent over-production and raise/stabilize prices.
b. Wickard owned a small farm and was fined for exceeding his quota
even though he used the wheat only for consumption/use on his own
farm.
(iii) Holding:
a. Congress sought to regulate the national wheat market, and it may do
so under commerce clause.
b. Consumption of home grown wheat is a large and variable factor in the
wheat market, and may have substantial affects on the wheat market
(wheat that is grown and consumed reduces demand), therefore
Congress has a rational basis for regulating home grown and
consumed wheat.
c. Even though Wickard’s actions alone did not have a substantial
affect on interstate commerce, taken together with similar
actions by others would have a substantial affect on interstate
commerce.
d. Congress can regulate purely intrastate and non-commercial (not
exchanged) activity IF it believes that it is necessary to effectuate a
legitimate interstate commerce regulation.
22
c. Plaintiffs were arrested and sued to stop enforcement of the Act
challenging Congress’ ability to regulate noncommercial cultivation of
marijuana.
(iii) Holding:
a. The sale of marijuana as a whole had an effect on interstate commerce
b. Congress reasonably feared that its entire regulatory scheme of
marijuana would be undermined it Congress were required to exempt
purely local medicinal cultivation since some may leak into the market
and interstate commerce
c. Congress has the power to regulate the marijuana market, even to
make possession/cultivation illegal pursuant to this power.
d. As a result of this power, Congress can even regulate
intrastate, non-commercial activity if the failure to regulate
that activity would undermine the regulation of the interstate
market (see Wickard).
e. Congress had a rational basis for believing that regulating home
grown/consumed marijuana was necessary to effectuate the interstate
regulation, ie the growth and consumption of marijuana for personal
medical use is an essential part of a larger economic regulation.
f. “Economic” relates to the production, distribution, and consumption”
of commodities
23
control is essential or appropriate to the security of that
traffic, to the efficiency of the interstate service, and to the
maintenance of conditions under which interstate
commerce may be conducted upon fair terms and without
molestation or hindrance.”
c. Aggregation Principle:
i. Congress allowed to regulate an activity that, taken in
isolation, does not substantially affect interstate commerce,
if multiple iterations of that same activity would
substantially affect interstate commerce.
24
(a) 10th amendment:
1. “The 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.
(h) Reno v. Condon (2000) (distinction between laws regulating the states
[permissible] and laws requiring the states to regulate their own
27
citizens [impermissible])
(i) Principle:
a. No improper commandeering of legislature because the law
regulated “state activities” rather than “[seeking] to control
or influence the manner in which State regulates private
parties”
(ii)Facts
a. Congress passed statute which limited the commercial vending of
personal data by the states
b. South Carolina filed suit that this law violated 10th Amendment and
principles of federalism
(iii) Holding:
a. Congressional law did NOT violate 10th Amendment because the law
merely regulated state activities
b. Act does not require States to enact any legislation or regulations and
does not require States to assist in the enforcement of federal statutes
(c) Alden v Maine, 1999 (State sovereignty and limits on Federal power to
compel adjudication in state court)
(i) Principle:
a. Congress cannot provide for state suits against the states in
state court b/c 11th amendment state sovereignty prohibits it.
(ii) Facts:
a. Congress said that Fair Labor Standards Act regulation of min wages
and overtime applied to all employers, private or state, and that
employees could bring suits against the state in the state’s own court
under the FLSA.
(iii) Holding:
a. Congress has no constitutional authority to compel the state courts to
29
hear employee suits under FLSA, even though the suit is based on a
federal right granted by Congress pursuant to a legitimate exercise of
power (eg, commerce power).
b. State immunity against money damages in its own state courts is a
fundamental aspect of sovereignty protected by the 11th amendment.
(iv) Importance/Effect:
a. States have full sovereign immunity from private suits in their own
courts seeking damages for state violations of federal law (states
already had immunity from damages for state violations of federal law
in federal court).
(v)Ways to circumvent sovereign immunity to get States to enforce
Federal Law (Alden)
a. Federal Government can sue for fines or damages – and could
distribute it among injured people
b. 14th Amendment Section 5 Powers if Borne Test is past – “
c. Individuals may obtain injunctions against state officials for violations
of federal law (Ex parte Young)
d. Federal officials may enforce federal statutes through federal agencies
at federal expense
e. Congress may condition federal spending programs on the states’
agreement to waive sovereign immunity
i) Article I §8:
(a) Art I, Sec. 8 delegates to Congress the power to “lay and collect
Taxes, to pay the Debts and provide the common defense
and general welfare of the United States”
ii) Child Labor Tax Case (Bailey v. Drexel Furniture) (Taxes may not be penal
and may not be solely enacted to regulate a domain which is outside the
authority of Congress)
30
(1) Principle:
(i) A tax passed by Congress under the pretext of executing its powers,
but which is for the accomplishment of objects not within
congressional power is unconstitutional
a. Incidental regulatory effect is okay
b. But if the statute appears to be SOLELY for the purpose of
regulating (and not raising revenue) and Congress could NOT
regulate it directly (through enumerated power such as
interstate commerce clause)
(ii)A tax that is penal in nature is unconstitutional
(2) Facts
(i) Congress formed a law that imposes a tax of 10% of annual net profit on
every employer of child labor
(ii) Defendant, who utilized child labor, attacked the provision that it is a
regulation of a
(3) Holding
(i) Act constitutes an unconstitutional tax
iii) Veazie Bank v. Fenno; McCray v. United States; United States v. Doremus (All
contained within Bailey)
(1) Principle
(a)If the regulatory object of the excessive tax was within Congressional
authority (such as through the Commerce Power) then it will be held
valid?
1. LOOK THIS UP!
ii) United States v Butler, 1936 (Congress may tax and spend, but NOT regulate,
for the general welfare)
(1) Principle:
(i) The power to “tax and spend” is NOT limited to effectuating
enumerated powers (eg, commerce power), INSTEAD, the power is
SEPARATE AND DISTINCT from the other powers enumerated under
Art. I sec 8
i. Hamiltonian View
(ii) the Spending/Taxing Power may be exercised for the General
Welfare (ie, not limited to taxing/spending for other enumerated
powers)
a. BUT: CONGRESS MAY NOT REGULATE FOR THE GENERAL
WELFARE
(iii)This power is enumerated
(2) Facts:
(i) Agricultural Adjustment Act sought to stabilize farm prices by curtailing
production.
(ii) It authorized Sec of Agriculture to make contracts with farmers to reduce
productive acreage in exchange for payments made out of a processing tax
levied upon farm commodity processors. Processor challenged Act as
unconstitutionally controlling agricultural PRODUCTION, a state matter.
(3) Holding:
(i) the power to “tax and spend” is NOT limited to effectuating enumerated
powers (eg, commerce power), INSTEAD, the power is SEPARATE AND
DISTINCT from the other powers enumerated under Art. I sec 8.
(ii) The power is on part with other federal Congressional power like commerce
power, and the only limitation on the power to tax and spend is that the
power be exercised for common defense or general welfare.
(4) Important clarification/limitation:
(i) The federal power to provide for general welfare is limited to the power to
tax and spend, ie the Congress may NOT regulate the general welfare
INDEPENDENT of the power to tax and spend.
(ii) Congress may tax and spend for the general welfare, but CANNOT REGULATE
for the general welfare.
(iii)Otherwise, the Congress would have a general police power (reserved for the
states) and would not be of a limited and enumerated nature.
32
by indirectly regulating via conditional funding under
Spending Power,
(ii) BUT conditional funding must not be COERCIVE (eg,
withholding 100% of funding, but line not clear, may
be no line at all)
(2) Facts:
(i) National Minimum Age Drinking Act directed the Sec of Transportation to
withhold 5% of the federal highway funds payable to the states from any
state that permitted alcohol purchases by anyone under 21.
(ii) South Dakota allowed purchasers to anyone over 19.
(iii)SD challenged the Act b/c 21st amendment gave states exclusive power to
regulate manufacture, transportation, and consumption of alcohol.
(3) Holding:
(i) Congress may not regulate alcohol consumption directly b/c of the 21st
amendment,
(ii) HOWEVER, the Congress may achieve the same result indirectly through
conditional funding under the spending power
(iii)(BUT, federal govt may regulate by “coercion”, however, there is no clear line
b/t encouragement and coercion).
(iv) Only where the Congress induced the states to pass laws that were
unconstitutional would the federal action be unconstitutional.
34
WITH THE CONSTITUTION
Example:
Congress could not enter into treaty which
bans abortion and then pass legislation
binding on the state’s to that effect
(ii)Facts
a. In 1916, the US entered into a treaty between the US and GB
governing the migration of birds between the US and Canada
b. Accordingly, Congress passes a statute to regulate the killing of
migratory birds within the US
c. State of Missouri argued that the statute was an unconstitutional
interference with the rights of the States reserved by the 10th
Amendment
(iii) Holding
a. Congress can enact a Statute to enforce the treaty even though it is
beyond their enumerated powers
36
4)Federal Limits on State Authority
a) PREEMPTION:
(1) no infallible constitutional test, instead a CASE by CASE analysis
39
Commerce Clause), it can enact statutes that violate Dormant Commerce
Clause.
Common Example
43
(ii) Holding:
a. NC Statute, while neutral on its face, discriminated against WA growers
in favor of their local growers because WA unable to sell in NC
i. Thus, NC growers have less competition
b. Even though only WA state vendors were harmed, the effect of the
statute was to excessively burden interstate commerce (esp. WA).
c. Court did not believe NC justification for the statute and implicitly held
that effects were intentional.
44
c. The extent of the burden that will be tolerated will depend on
the nature of the local interest involve, and on whether it
could be promoted as well with lesser impact on interstate
activities
(ii)Facts:
a. Arizona statute required that Arizona-grown cantaloupes advertise
their State of origin on each package
b. Defendant had his cantaloupes packaged in California where it was
cheaper
c. State would not allow defendant to ship his cantaloupes out without
Arizona identification
d. Would cost defendant $200,000 to conform with law for $700,000
cantaloupe crop
(iii) Holding
a. Arizona statute constitutes an excessive burden for Church
b. Any benefit gained for Arizona is negligible
c. Harm incurred by Church is significant
(b)Rationale:
(i) States/locales should be allowed to nurture local industry;
(ii) States/locales should not be subject to Dormant Commerce Clause
restrictions when not acting in a sovereign/regulatory capacity
(c) Counter:
(i) Local favoritism frustrates economic/political unity as embodied in national
govt and commerce clause
(d) Court concerns:
(i) if overextended or loosely applied, the exception may swallow up the
Dormant Commerce clause, and therefore the Court takes a FORMALIST
rather than FUNCTIONALIST approach to market participant exceptions,
preserving for itself the role as protector of the Dormant Commerce clause
(e)CASES
(i) Hughes v. Alexandra Scrap
a. Maryland permissively charged a higher price for scrap from out of
staters than in-staters in order to attempt to get rid of local junk cars
(ii)Reeves v. Stake
a. South Dakota’s state owned and operated cement plant was permitted
to sell only to state residents - because they participated in the
market – they manufactured the cement, processed it, and sold it.
(iii) White v. Massachusetts
a. Mayor of Boston permissively enacted an executive order which
required all construction projects funded by the city to be performed
by a work force of at least 50% of city residents
(f) Limit of Market Participate Exception:
(i) State/locale can ONLY influence/affect a discrete, identifiable class of
activity of which it is a MAJOR PARTICIPANT,
a. It cannot indirectly regulate downstream activities which it is not
engaged in through contractual conditions
2. South Central Timber v Wunnicke
a. Principle:
i. A state/locale may NOT regulate (directly or indirectly)
any market (narrowly defined, ie discrete and
identifiable class of activity) in which it is not a major
participant
ii. Rationale:
1. State no longer has an interest in transactions down
the line (outside the
46
immediate transaction)
2. Downstream restrictions have a greater regulatory
effect than do limitations on the
immediate transaction
b. Facts:
i. AK imposed a condition on the sale of state owned timber, requiring
purchasers to process timber in AK before shipping it out of state
(to promote AK processing industry)
c. Holding:
i. AK is a market participant in the timber selling market, but is NOT a
major participant in the processing industry, and therefore may
NOT impose the condition which effectively regulates buyer activity.
d. Extra:
i. Court will increase scrutiny where FOREIGN COMMERCE,
NATURAL RESOURCES, OR RESTRICTIONS ON RESALE are
implicated
ii.
(2) Test 1: Discriminatory Laws (In Purpose or Effect) Analysis
(higher scrutiny):
(i) Isthe law discriminatory/protectionist on facially, in
purpose, or in effect?
1. If YES, then virtually per se invalid
2. Effects: consider who reaps the BENEFIT (eg, in state?) and who bears
the burden (eg, out of state?)
(ii) Even if the law is discriminatory, it CAN be allowed if it
passes the following test:
1. Is there a legitimate state interest (purpose/end)? (Very Broad, will
almost always be YES)
2. Are there NO reasonable non-discriminatory alternatives? (Will
almost always be NO, only 1 exception: Maine v Taylor banning
importation of out of state baitfish due to ecological concerns)
a. Exception: quarantine laws are allowed even if there are other
alternatives
(iii) NOTE: State act will be VALID if acting as a market
participant
iii) Purpose:
(a) To protect out of state citizens/residents from UNREASONABLE
DISCRIMINATION in regards to FUNDAMENTAL INTERESTS OF NATIONAL
CONCERN
(b) To fuse the several states into ONE NATION and promote national unity against
state parochialism (representation reinforcement considerations)
iv) Important:
(1) Applies ONLY to discriminatory conduct, and NOT to excessive
interstate commercial burdens
(i) (unlike DCC)
(2) Does NOT have a market participant exception
(i) (unlike DCC), ie ANY state/local action may be challenged under P&I, not
just regulation
(3) Applies to LOCAL regulation as well as State Regulation, even
though clause itself refers to “states”
(i) (Camden labor case)
(4) Does NOT apply to Corporations
v) Cases
(1) United Building and Construction v Camden
(a) Principles:
1. There is no market participant exception to Interstate Privileges
& Immunities challenges;
2. Local (municipal) discrimination along with state discrimination is
barred under the P&I clause
(b)Facts:
1. Camden, NJ ordinance required at least 40% of employees of
contractors/subcontractors working on city construction to be Camden
48
residents.
2. Ordinance challenged as DCC & Privileges and Immunities violation.
(c) Holding:
1. No DCC violation b/c Camden is a market participant.
2. P&I challenge is remanded for determination as to Camden’s reason for
discrimination & the relationship of means to end.
50
6) Executive Power
(ii)CATEGORY 2
a. President acting in the absence of Congressional Grant or
Denial
i. When the President acts in absence of either a
congressional grant or denial of authority, he can only rely upon
his own independent powers BUT there is a zone of twilight in
which he and Congress may have concurrent authority or which the
distribution of power is uncertain
a. ZONE OF TWILIGHT
i. Congressional inertia, indifference, or
acquiescence may as a practical matter may
enable president to act.
a. Dames and Moore – Congressional
acquiescence
b. Hamdan - NO Congressional acquiescence
(iii) CATEGORY 3
a. President Acts Contrary to Congressional Act
i. When the President takes measures incompatible with the
expressed or implied will of Congress, his power is at its lowest
ebb, and he may only act where it can be shown that Congress
has exceeded its constitutional powers and the President is
acting in his own sphere of authority.
2. Jackson found that the case was in CATEGORY 3
a. Congress had rejected the plant seizure method as a means of
handling labor disputes when it failed to adopt an amendment allowing
the Pres to order such seizures.
b. As a result, the Pres acted contrary to Congressional will, and his
power is at its “lowest ebb.”
c. The Pres has not independent/preclusive power to order such seizures,
and therefore may not act in contradiction to the will of Congress.
52
c) President’s Authority over Foreign Affairs
i) Executive Agreements
(1) Executive branch utilized this tool primarily for foreign relations
(2) Used to circumvent treaties
(a) Functionalist Approach
(i) This is permissible if not contrary to the will of Congress and has a positive
result
(b) Formalist Objection
(i) This bypasses Constitutional requirement of Senates role of ratifying treaties
(4) Dames & Moore v Regan (Congress may implicitly authorize Pres
executive action-esp in foreign affairs-if it has long acquiesced to
similar action FUNCTIONALIST APPROACH)
(a) Principle:
1. President Lacks Inherent Constitutional Power to Unilaterally
Enter this Agreement
i. The President lacks the plenary power to settle claims
against foreign government through Executive Agreements
2. Congress did not Explicitly Authorize President to Act as he did
i. The IEEPA (Congressional Act) does not specifically
authorize president to carry out this executive order
3. Congress has ACQUIESCED (passively Agreed) to President’s
Actions
i. Acquiescence Found through:
1. Long History of congressional acquiescence to
international agreements settling claims
between citizens of the US and other nations
2. IEEPA granted president other vast power (grand
tenor of legislation)
3. Nothing in the act prevents president from acting as
he did
4. Following the Executive Order, Congress did NOT take
measures to defeat it
(b) Facts:
1. President Carter suspended all contractual claims against Iran pending in
American courts to be arbitrated in an international tribunal, in exchange
for American hostages
2. Dames had rec’d judgment against Iran and assets were attached, but
Reagan ordered void of attachments.
3. Order was challenged as unconstitutional.
(c) Holding:
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1. Pres has the authority to suspend the claims b/c Congress had long
acquiesced to similar conduct by previous Presidents.
2. As a result of Congressional acquiescence, it had implicitly authorized the
Pres authority to settle to enter into executive agreements with foreign
powers to settle claims.
i) PRE SEPTEMBER 11
(1) Ex Parte Milligan (US citizens who are not in the armed forces and
are not captured as enemy combatants MUST be tried by civilian (non-
military courts)
(a)Principle:
1. Where the courts are open and unobstructed (as here), then
these courts and NOT military courts have jurisdiction, unless
they are enemy combatants or members of armed forces.
(b) Facts:
1. Pres Lincoln suspended habeus corpus nationally in 1862.
2. Milligan was a citizen of IN captured on suspicion of rebellious activity.
3. He never served in the armed forces and was captured in a non-rebel
state (IN).
4. He was convicted and sentenced to death by a military tribunal, even
though a grand jury did not indict him.
(c) Holding:
1. Citizens of the US are subject to the rule of law and the jurisdiction of the
US civilian courts.
a. Milligan was neither, and was arrested as a civilian not engaged in any
hostile activity.
b. The Pres may suspend the writ of habeas corpus BUT a citizen civilian
may NOT be tried in anything other than a civilian court so long as
those courts are open.
(i) Principle:
a. President’s inherent constitutionally vested powers do NOT
alter the constitutional balance that requires judicial review
when the President imprisons a citizen, even an alleged enemy
combatant captured on the battlefield
b. Court REJECTED Governments Argument that military context
of imprisonment vests absolute authority to executive under
Commander and Chief and other vested powers over military
and national security
i. Court held that this would UNDULY AGGRANDIZE EXECUTIVE
BRANCH POWER
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b. The legislative veto is practically identical to the constitutional
requirements.
i. Either house or the president can prevent the passing of a
law, and under the Act, either the executive (Attny General)
or either house (per the Act) could prevent suspension of
deportation order.
c. Moreover, the legislative veto permits Congress to retain some
legislative control over executive discretion, thus serving as a check
and balance against abuse of discretion by the executive, a principle
adopted by the framers.
d. Though strictly violating separation of powers, the legislative
veto actually promotes the purpose of separation, which is to
prevent usurpation of power through checks and balances.
(b)Clinton v City of New York (Presidential powers & Line Item Veto)
(i) Principle:
a. The cancellation provisions authorized by the Line Item Veto
Act are unconstitutional
(ii) Facts:
a. Line Item Veto Act, seeking to reduce budget deficits, gave the
President power to cancel any of several types of provisions contained
in new statutes enacted by Congress.
b. The Act allowed the President to sign an entire bill into law, THEN
cancel any individual spending or limited tax benefit item he wished
within 5 days.
c. The vetoed item could be restored with a disapproval bill (subject
again to President veto).
(iii) Holding - Stevens (FORMALIST)
1. KEY QUESTION
a. DOES THE ACT CONFORM TO THE STRICT REQUIREMENTS OF
THE CONSTITUTION?
i. The line item veto is unconstitutional.
ii. Even though the constitution says nothing about the President
making law there is explicit language in the Constitution about law
making by Congress.
iii. The constitution requires that a bill pass both houses
(bicameralism) and be presented/signed by President (presentment
clause).
iv. The Act violates the Presentment clause b/c the cancellation occurs
after the bill has been signed into law, AND allows cancellation of a
part of bill rather than the whole thing.
v. In essence – president is making laws
vi. The Act was a framework Act that gave Pres an intelligible principle,
BUT it permitted exercise of that discretion COUNTER to
Congressional will and UPON Congressional law (not simply within
it).
(iv) Dissent – Breyer (FUNCTIONALIST)
1. KEY QUESTION
a. IF THE CONSTITUTION DOES NOT AUTHORIZE OR PROHIBIT THE
ACT, IS IT CONSISTENT WITH THE PRINCIPLES OF THE
SEPARATION OF POWERS?
i. THREE QUESTIONS FOR DETERMINING SEPARATION OF
POWERS VIOLATION
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1. Has Congress given the President the wrong king of
power (non executive)?
Answer: NO – power is to exercise spending
2. Has Congress given the President the power to
“encroach” upon Congress’ own
constitutionally reserved territory?
Answer: NO because Congress reserves ability to state
that Line Item veto will not apply AND overrule
presidential line item veto
3. Has Congress given the President too much power
violating the non- delegation principle?
Answer: NO – Congress has provided “intelligible
principle” to follow
AND is power limited in nature
59
excise “powers…essentially of an investigative and
informative nature”
ii. Buckley v. Valeo
(b)Buckley v Valeo
(i) Principle:
a. Any appointee exercising significant authority (ie, “power”)
pursuant to the laws of the US is an “officer” under the
appointments clause, and MUST be appointed by the President
(formalistic approach due to express textual provision).
(ii) Facts:
a. Federal Election Campaign Act created Federal Election Commission to
investigate campaign finance violations, make rules and binding
advisory opinions, and bring civil suits against violaters.
b. Commission made up of 2 members appointed by President of the
Senate, 2 members appointed by Speaker of the House, and 2
members by President.
(iii) Holding:
a. Any appointee exercising significant authority (ie, “power”)
pursuant to the laws of the US is an “officer” under the
appointments clause, and MUST be appointed by the President
(formalistic approach due to express textual provision).
b. The commission may constitutionally perform investigative functions
(Congress may appoint members to legislative commissions), but may
NOT perform executive functions (ie, bringing court action) b/c doing
so requires exercising “power” outside of the legislative sphere, and
therefore they MUST be appointed by the President pursuant to
Appointments clause.
c. Congress may not appoint any person/party that may alter the
rights/duties of those outside of the legislative sphere.
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ii. “The President, Vice President and all civil Officers of the
United States, shall be removed from Office on Impeachment for,
and Conviction of, Treason, Bribery, or other high Crimes and
Misdemeanors”
iii. Requires:
1. House to vote (majority) to impeach
2. Two-thirds of present Senators vote to Impeach
(e)Morrison v Olson
(i) Principle:
1. The Congress may limit the Executive’s removal power so long as
“core” duty is not Prevented.
(ii) Facts:
1. Ethics in Govt Act required Attny General upon sufficient grounds to
investigate violations of criminal law by high ranking executive officials.
2. After preliminary investigations, if Attny General believed further
investigation was warranted, he was required to report to a Special
Division court made up of 3 Circuit Court judges appointed by the Chief
Justice, who then appointed an independent counsel to continue
investigations.
3. Once appointed, the independent counsel could only be removed
by Attny General for “good cause”
(iii) Holding (FUNCTIONALIST APPROACH):
1. The removal provision is constitutional b/c the test is NOT whether the
function performed is “purely executive” (overruling/modifying
Humphrey’s Executor), and instead whether the Pres ability to
perform his duties is “prevented.” (functionalism vs formalism).
2. The independent counsel has limited tenure/jurisdiction, and the Attny
General retains significant control over the independent counsel, therefore
the Pres executive powers are not “prevented.”
3. No Separation of Powers Violation
a. Not an attempt by Congress to increase powers at expense of
Executive Branch
b. The act does not allow judiciary to usurp executive powers
c. The act does not impermissively undermine the powers of the
Executive Branch or disrupt the balance of power between the
Branches
(iv) Dissent – Scalia (FORMALIST)
1. All executive power vested in President
2. The statute’s limiting the ability of the independent counsel to be fired for
good cause limits the inherent executive power
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(f) Mistretta v United States, 1989 (flexible/functionalist approach to
separation of powers)
(i) Facts:
1. Sentencing Reform Act abolished indeterminate sentencing system for
federal crimes, and created the US Sentencing Commission to promulgate
binding sentencing guidelines for determinate sentencing according to
various specified factors.
2. The Commission was an independent commission within judicial branch.
3. A convict challenged the guidelines as violating separation of powers and
improper delegation of legislative authority.
(ii) Holding:
1. the guidelines are constitutional.
2. The SRA does not grant excessive legislative discretion to the Commission
(not violating non-delegation doctrine),
3. Instead, the commission followed Congress’ requirements re: hierarchies
of punishment and offense characteristics.
4. Moreover, the commission is not a court, ie has no adjudicative power,
and does not expand judicial power b/c establishing sentencing was a
power previously vested in the judiciary.
5. Also, judiciary branch regularly does combine rule making and substantive
judgment.
63
attention.
(b)Clinton v New York (civil immunity for personal acts & general
separation of powers)
(i) Principle:
a. President has NO IMMUNITY from civil actions for NON-
OFFICIAL ACTS
(ii) Facts:
a. Jones filed suit against Clinton while he was in office for actions that
occurred prior to his election.
b. Clinton argued that he should have temporary immunity against civil
litigation while in office, under the holding in Fitzgerald.
(iii) Holding:
a. Unanimously held that President has NO IMMUNITY for NON-OFFICIAL
acts, even while in office.
b. Revising/clarifying Fitzgerald, court held that primary reason for
civil immunity is to promote decisiveness and avoid timidity of
official action, and civil suits for personal actions do not require
immunity (even though such suits may significantly distract President
and impair his ability to adequately executive his duties).
(ii) Facts:
a. A federal grand jury indicted seven Nixon aides on charges of
conspiracy to obstruct justice and other offenses under Watergate
affair.
b. President was an unindicted co-conspirator, and the prosecutor issued
a subpoena duces tecum to President requiring him to produce
white house tapes.
c. Nixon refused on the basis of executive privilege and violation of
separation of powers (by subjecting executive to judicial power).
(iii) Holding:
a. Although Constitution is silent, there is a constitutional basis for
an executive privilege to the extent that it relates to the effective
discharge of the President’s duties
i. (eg, state secrets and even general communications b/c of need for
candor in advice/communication).
ii. Even General Pres Communications are given a presumptive
privilege, however that privilege is CONDITIONAL.
iii. The executive privilege must be weighed against the fair
administration of (criminal) justice, and the court has the
POWER to assert control over the President in its search for
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Truth & Justice.
2. Note: however, argument can be made that availability of impeachment
bars criminal prosecution of President BEFORE removal from office.
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a. Majority
i. Partial Incorporation Prevailing View
b. Black Dissent
i. “Due process requires total incorporation of the Bill of
Rights”
(iii) Modern
Approach of Incorporation of the Bill of Rights and
other Fundamental Rights
1. Duncan v. Louisiana
a. MODERN TEST FOR INCORPORATION:
i. The Court incorporatesinto the Fourteenth
Amendment any guarantee which is “fundamental in the
context of the [judicial] process maintained by the
American States”
ii. Portions of Bill of Rights that have been incorporated under
this test
1) Right to compensation for property taken by the states
(Fifth Amendment)
2) Right of speech, press, and religion (First Amendment)
3) Right against unreasonable search and seizures (Fourth
Amendment)
4) Right against self-incrimination (Fifth Amendment)
5) Right to counsel, a speedy trial, and confront witnesses
(Sixth Amendment)
6) Compulsory process to obtain witnesses
b. Principle
i. The Right to a jury trial in serious criminal cases punishable by
at least two years in prison is a fundamental right which must be
recognized by the states as part of their obligation to extend due
process of law to all persons within their jurisdiction
c. Facts
i. Duncan was charged with battery punishable by up to a 2 year
sentence
ii. Duncan requested jury trial which was denied
iii. Duncan sued claiming that fourteenth amendment required
d. Holding
i. Right to a jury trial in serious criminal cases is a fundamental right
which must be recognized by the state under the requirements of the due
process clause of the Fourteenth Amendment.
(2) OTHER FUNDAMENTAL RIGHTS INCORPORATED UNDER GUARANTEE OF DUE
PROCESS/LIBERTY UNDER THE 14TH AMENDMENT
(i) Look to the Penumbras of the various amendments held to be
fundamental
1. Determine if there is implicitly a fundamental guarantee which
falls into this realm
(ii)“Ordered Liberty”
1. Look to the history and tradition
66
14th Amendment’s
(3) Protection of Privileges and
Immunities
c) CASES
(i) The Slaughterhouse Cases
a. Principle
i. The Fourteenth Amendment Protects the privileges and
immunities of national, not state, citizenship AND neither
equal protection, Due Process, or Privileges and Immunities
Clause of that Amendment may be use to interest with State
control of the Privileges and Immunities of STATE CITIZENSHIP
ii. The effect of this decision was to essentially render the 14th
Amendment Privileges and Immunities Clause ineffectual as a means
of protecting individual rights from state abridgement
b. Facts
i. Louisiana gave monopoly to slaughterhouse company
ii. Butchers (P) who was not included in the monopoly challenged the law
on the grounds that it violated the 14th Amendment’s Privileges and
Immunities clause
c. Holding
i. The 14th Amendment’s Privileges and Immunities provision applies only
to national and not state citizenship
ii. Therefore, no protection provided to non-working butchers
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former state provided
(3) Holding
(a) Right to travel is a fundamental right which is applied to states via 14 th
Amendment
(b) State cannot pass strict scrutiny – compelling reason, narrowly tailored
(i) States only reason was to save money – this not enough
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iv) Punitive Damages and Substantive Due Process
(1) BMW v. Gore
(a) 381
(2) State Farm v. Campbell
(a) 382
(3) Phillip Morris v. Williams
(a) 383
(b)Physical Use
(i) Rule
1. If the government makes or authorizes a permanent
physical occupation of the property at issue, this will
automatically constitute a taking which requires
compensation
a. Per se Rule
(ii)Cases
1. Loretto v. Teleprompter Manhattan CATV Corp.
a. Principle
i. When the government authorizes even a minor “permanent
physical occupation” of an owner’s property, there is a taking
without regard to the public interest that the governmental action
may serve.
ii. No deference given to state legislature
b. Facts
i. NY law required landlords to allow cable providers to hook up wires
on landlord’s property
ii. Health and safety justification – news, emergency notification, etc.
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c. Holding
i. NY law constitute a regulatory taking for which compensation must
be paid
2. Miller v. Schoene
a. Facts
i. VA law provided for the destruction of cedar trees that might be the
source of a plant disease
ii. There were no other means of quelling the problems other than kill
the tree
b. Holding
i. Not a taking.
ii. Deference given to the legislature’s judgment that this was require
for the preservation of one class of property at the expense of
another.
3. Keystone Bituminous Coal Ass’n v. Debenedictis
a. Facts
i. Penn passed a law prohibiting coal mining that caused damage to
houses above mining
ii. Required that 50% of the coal be kept in place to provide surface
support
b. Holding
i. Not a taking
ii. Unlike Penn Coal, this law involved protection of “the public health,
the environment, and the fiscal integrity of the area, and, the
amount of coal that the plaintiff’s could not mine was less than 2%
of its entire supply.
(ii)Cases
1. Lucas v. South Carolina Costal
a. Principle
i. Regulatory action is compensable (a taking) without case-specific
inquiry into the public interest advanced in support of the restraint
[where] regulation denies all economically beneficial or productive
use of the land
b. Facts
i. Lucas paid nearly 1 million for two lots on which he planned to build
a single family home
ii. SC passed law which barred Lucas from building on the lots
c. Holding
i. SC’s action constituted a taking
(e)Landmark Preservation
(i) Penn Central v. NYC
1. Facts
a. NYC passed a preservation law which designated the Grand Central
terminal as a landmark and required the owner to keep the building’s
exterior in good repair
b. Owner wished to build above the terminal and NYC said no
2. Holding
a. Not a taking
b. The restrictions imposed are substantially related to the promotion of
the general welfare
c. The restrictions do not deny the owner of any beneficial use
d. The property still retains significant value
(ii)Cases
1. Nollan v. California Costal
a. Principle
i. The means chosed by the government’s land use regulation must
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“substantially advance” the governmental objective
b. Facts
i. Nollans were owners of beachfront property who sought to build
larger house
ii. City required that – to get permit to build – Nollans had to allow the
public access to the beach through their property
c. Holding
i. Conditions on beachfront building permit constituted a taking
ii. There is not a sufficient connection between allowing for Nollans to
build a bigger house and allowing the public to go thru their
property
ii) Abortion:
(1) A state act must have a rational basis to further a
legitimate state objective
AND
(2) The state act must not impose a (undue burden)
substantial obstacle in the path of a woman seeking an
abortion before the fetus attains viability
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c) Early Application
i) Meyer v. Nebraska (Teach of a Foreign Language)
(1) Principle
(a) “Liberty” under the 14th Amendment incorporates the right
to teach a foreign language which is a “fundamental right”
(b) “Liberty” under the 14th Amendment ALSO denotes:
(i) Freedom from bodily restraint
(ii) Right of the Individual to Contract (scrapped)
(iii) To engage in the common occupation of life
(iv) To acquire useful knowledge
(v)To marry
(vi) To establish a home and bring up children
(vii) To Worship a God according to the dictates of one’s own
conscience
(2) Facts
(a) Nebraska law prohibited the teaching of German
(b) A German teach was convicted under this statute
(3) Holding
(a) This provision violated the 14th Amendment’s protection of Liberty
d)Modern Cases
i) Griswold v. Connecticut (Married right to contraceptives)
(1) Principle
(a) The right of marital privacy is a fundamental right
(b) The right of married persons to use contraceptives is a
fundamental right
(2) Facts
(a) Conn. law forbade the use of contraceptives and counseling of married persons
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to utilize contraceptives
(3) Holding
(a) The Conn. law violated a fundamental right of marital privacy and the state,
under strict judicial scrutiny, failed to demonstrate a compelling reason for this
violation
83
(i) A state may prohibit all use of public facilities and publicly-
employed staff in abortion procedures
(b)Facts
(i) Missouri law barred state employees and facilities from performing abortions
– even if the patient paid for the abortion herself
(c) Holding
(i) This is not unconstitutional in light of precedent that Due Process Clause does
not confer a right to governmental aid for abortions AND
(ii) This law does not impact the woman’s right to choose to have an abortion
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(2) Gonzales v. Carhart
(a)Principle
(i) The Partial-Birth Abortion Ban Act does NOT place a
substantial obstacle to late-term, but pre-viability,
abortions.
(ii) Where it has a rational basis to act, and does not impose
an undue burden, the State may use its regulatory powers
to bar certain procedures and substitute others, all in
furtherance of its legitimate interests in regulating the
medical profession in order to promote a respect for life,
including the life of the unborn.
(b)Facts
(i) In 2003, Congress enacted an Act which criminalized doctors performance of
a partial birth abortion
a. Making the only late term abortion option that the doctor take the
fetus out piece by piece)
(c) Holding
(i) This procedure does not constitute an undue burden on a woman’s right to
control her reproductive destiny
1. Legitimate State Interests Furthered with Act
a. Some women come to regret their choice of abortion and suffer from
severe depression
b. A number of doctors might not fully discuss the “precise details” of the
procedure
c. Women who learn post-operatively that she basically birthed the baby
and then had the doctor basically kill it would struggle with grief and
sorrow
d. A necessary effect of Congress’ act will encourage some women to
take the fetus to full term, minimizing the number of late term
abortions
e. The medical profession may find less shocking and horrid methods of
second term abortions
f. This act prevents what is rather close to infanticide
(ii) The Court found that there was inconclusive medical evidence to suggest that
the partial birth abortion was safer than the method by which the doctor rips
the fetus apart
(d)Significance of Gonzales
(i) Government’s desire to reduce the number of abortions is
recognized as a legitimate goal
(ii) Government’s desire to regulate the medical profession as to uphold
the “public’s perception of the appropriate role of a physician during
the delivery process” is a legitimate goal
(iii) Government may sometimes completely ban a particular method of
abortion
1. So long as a it does not constitute an undue burden – which essentially
will not be found if there is another reasonably-safe method of abortion
available
(iv) When Government decided whether to ban a particular type of
abortion – it may take into account the mental health of the woman
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who might elect that method and then come to regret it.
1. Accordingly, government may be able to ban “more regrettable” in favor
of “less regrettable” procedures
(v) As long as the legislature makes credible findings that there is
medical uncertainty about whether the prohibited procedure is ever
necessary to safeguard a woman’s health, the government does not
need to provide a health exception
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(1) PUBLIC FUNCTION TEST
(a) State Action Where Private Entity is Performing a Traditionally Public
Function
(i) MODERN RULE
1. State action will be found in action of private entity
ONLY if private entity is exercising powers exclusively
reserved to the state
i. Rule significantly limited by Burger/Rehnquist
1. Jackson v. Metropolitian Edison Co.
a. Principle
i. A utility company is not exclusively a public
function
(b)Old Cases (Questionable Law)
(i) Company Town Performs a Public Function
1. Marsh v. Alabama
a. Principle
i. When private actor performs a public function, the
protections afforded by the Fourteenth Amendment will
apply
b. Facts
i. Company town tries to restrict free speech
c. Holding
i. This is invalid because company is acting as a public function
(ii)Operation of a Park as a Public Function
1. Evans v. Newton
a. Principle
i. Services rendered by a public park were municipal in
nature, like fire and police departments, and traditionally
has served the community
ii. Thus, parks perform public function
(iii) Shopping Center as a Public Function
1. Formerly held as such
2. Overruled by Hudgens v. NLRB
(iv) Electoral Process as Public Function
1. Smith v. Allwright
a. Principle
i. Despite the fact that the political parties, the performed a
traditional public function
ii. Could not exclude blacks from such
2. CONGRUENCE
1. Boerne's requirement of "congruence" demands that the congressional
statute, viewed as an attempt to prevent or remedy constitutional violations,
not be unduly overinclusive. Congress certainly need not limit itself to
individual violations of the Constitution. Boerne explicitly reaffirms
that Congress is free to write more general laws, explaining that
"[p]reventive measures prohibiting certain types of laws may be
appropriate when there is reason to believe that many of the laws
affected by the congressional enactment have a significant likelihood
of being unconstitutional." But if Congress adopts a law that
indiscriminately sweeps in a broad array of otherwise lawful state and
local practices, the very breadth of the law suggests that it cannot be
understood as remedial.
3. PROPORTIONAL
2. A remedy is "proportional" if it is justified by the magnitude of the
constitutional injury. "Strong measures appropriate to address one
harm," the Court wrote in Boerne, "may be an unwarranted response
to another, lesser one." Properly understood, however, the
requirement of proportionality is not an independent variable; instead,
it is closely related to the requirement of congruence. In particular,
the *nature and extent* of the constitutional problem being redressed
affect the *degree* of overinclusiveness that is permissible. A
extremely broad congressional prohibition may be rational if there is
evidence of serious and widespread constitutional violations by state
and local governments, especially if those violations would be difficult
to prove through case-by-case litigation. For example, as the Court
explained in Boerne, "strong remedial and preventive measures" have
been upheld when they have been designed to redress "the
widespread and persisting deprivation of constitutional rights resulting
from this country's history of racial discrimination." Conversely, if the
constitutional problem is less severe, Congress must proceed more
cautiously. Indeed, the less serious the constitutional problem, the
more likely it is that broad legislation is designed not to remedy that
problem, but instead to accomplish another end, such as the
substantive redefinition of constitutional rights.
4. NOTE: if congressional act fails the congruence and
proportionality test it is unconstitutional as applied to the state
BUT still applies to the federal government
i) Early Cases
(1) Katzenbach v. Morgan
(a)Principle
(i) Congress’ provision 4(e) which held that no person who has
successfully completed the sixth grade in Puerto Rico in which the
language was other than English shall be denied the right to vote for
failure to speak English, was a valid exercise of the 14th Amendment
power
(ii) Section 5 of the 14th Amendment is a
1. “Positive grant of legislative power authorizing Congress to
exercise its discretion in determining whether and what
legislation is needed to secure the guarantees of the 14th
Amendment”
a. OVERRULED BY BORNE
(b)Facts
(i) In the Voting Rights Act of 1965, Congress passed a provision which
prohibited any state from denying the right to vote of Puerto Ricans who had
completed the sixth grade in Puerto Rico even if they did not speak english
(c) Holding
(i) This was a valid exercise of Congress’ Remedial Powers
(ii) Congress’ act serves to extend the franchise in the spirit of the constitution
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2. The Judiciary is to determine the constitutionality of laws
(ii) There must be a congruence and proportionality between
the injury to be prevented or remedied and the means
adopted to that end
1. Lacking such a connection, legislation may become
substantive in operation and effect
(b)Facts
(i) Congress passed the RFRA which prohibits the government from substantially
burdening a person’s exercise of religion, even if the burden is the result of
generally applicable law, unless the government has a compelling interest
and is using the least restrictive means
(ii) Borne enacted a city ordinance requiring approval for building on landmarks
(iii)Church sought a building permit to expand church and was denied
(c) Holding
(i) RFRA cannot be considered remedial because it is so out of proportion to a
supposed remedial or preventative object
1. Rather, Congress is trying to change the meaning of the constitution
(ii) RFRA was beyond Congress’ section 5 power to enforce due process of 14 th
Amendment
(iii)The RFRA redefines the scope of the Free Exercise Clause of the Constitution
and nothing in our history justifies this action
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(ii) Student brought suit against football player who sexually assaulted her
(iii)Gov. contended that there is a pervasive bias in state justice system against
gender motivated violence and often result in insufficient investigations and
prosecution of gender motivated crimes
(iv) Gov. contends that equal protection of law is violated and Congress is
entitled to enact a private civil remedy against the perpetrators of gender
motivated violence to remedy the States’ bias and deter future instances of
discrimination in state courts
(c) Holding
(i) Congress has overstepped its bounds with this litigation
(ii)Did not pass congruence and proportionality test
1. Congress did not demonstrate that discrimination against gender
motivated crimes exists in all, or even most states
(iii) The remedy is addressed at private actors – rather than state
conduct
(4) Kimel v. Florida Board of Regents
(a)Principle
(i) Congress’ Age Discrimination in Employment Act, which allowed
state employees to sue for violations of age discrimination,
exceeded § 5 Powers
1. Failed congruence and proportionality test
a. “The substantive requirements of the ADEA impose on state
and local governments are disproportionate to any
unconstitutional conduct that conceivably could be targeted by
the Ac
(b)Holding
(i) Congress Failed to
1. Identify any pattern of age discrimination by the States
(ii) Congress has no reason to believe the states were discriminating
against their employees on the basis of age
(5) Board of Trustees of the University of Alabama v. Garrett
(a)Principle
(i) Congress was not permitted to abrogate sovereign immunity with its
§5 powers for state-employer violations of Title I of the American
with Disabilities Act
(b)Facts
(i) Title I prohibited employers from discriminating against a qualified
individual on account of a disability and required employers to make
reasonable accommodations for disabled workers
(c) Holding
(i) Congress has failed to identify
1. “a history and pattern of unconstitutional employment
discrimination by the States against the disabled”
2. That that the pattern of discrimination rose to the level of
unconstitutional discrimination
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(i) A paraplegic sued the state of Tennessee alleging he had to crawl up
2 flights of stairs to appear in court
(c) Holding
(i) Congress has the power to abrogate state’s sovereign immunity with
its §5 powers for the purpose of access of the courts
1. Access to the courts was a fundamental right protected by the
14th Amendment
2. This provision was more narrowly tailored than in Garrett
3. There were sufficient facts that the disabled were being denied
access to the courts
4. The remedy was narrowly tailored to addressed the problem
a. Remedy – require states to take reasonable measures to
remove barriers to accessibility of courts (reasonable
modifications)
b. Does NOT require the states to employ any and all means to
make judicial services accessible to the disabled
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