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Con. Law---Fallone
Final Exam When you get the exam Make a brief outline Checklist--is there anything i might be missing Structural issues 1.)Judicial power to hear case fed courts are courts of limited jurisdiction standing, moot, political q. 2.)Congress' power to pass a federal law has to act under its delegated powers, so make sure theres one supporting it. Separation of powers component. is it encroaching on the ex. branch? Federalism limit. does it intrude on the states. (10th/11th) 3.)If the present is doing something, is there anything in the facts suggesting he doesnt have the power to act? Separation of powers. Can't make law/intrude in congress' sandbox 4.)Limits on state power to pass state laws. -reverse federalism--u.s. term limits. states can't try to alter fed. institutions. -dcc 5.)Individual rights that trump Gov't power Is there a fundamental right--where is it?---should there be a new one? look at bill of rights substantive due process--concept of liberty procedural due process Equal protection Other rights in the main body of constitution. Standard of review. *Use the checklist after you run though and get the issues that pop out. That being said, don't force it. A lot of it is about judgment. Don't waste a lot of time on a strained argument. 2 fact hypos equally weighted. Change of a third policy questions. broad. would be only 20% of the grade. Included when fallone thinks the hypos are easy. Take what fallone gives you at the end of the exam/answer the question. Use it to outline. Look out for red herrings that he didn't ask for. 1.) Constitutional Principles Schneiderman v. U.S. [one of Fallone's favorite cases] -Traditionally interpreted as a very strong defense of the freedom of speech. -Maj. can be defended on another ground; rm defense of the principle that the people are the sovereigns. Great insight is that people are the sovereigns, always retain the power to alter the gov't. What does the Constitution mean? *Not about the text itself, but the relationships and structures the text creates. About whats not in the text. 2.) Invalidation of Federal law Marbury v. Madison (Marshall): *If the Supreme Court identies a conict b/w a constitutional provision and a congressional statute, the Court has the authority (and duty) to declare the statute unconstitutional and refuse to enforce it. 3.) Invalidation of State Laws Martin v. Hunter's Lessee (Story): The Supreme Court can review the constitutionality of a decision by a state's highest court. Art.VI---Hierarchy Const. Congress---Treaties State Law Uniformity: State courts have to interpret federal law, and We must avoid the prospect of various state courts interpreting federal law in different ways. Rejection of sovereignty argument: Const. cut back upon state sovereignty in numerous respects. No reason to presume that state judiciaries were immune from this set of limitations. Marshall-->Story-->Lincoln -can argue that there is a direct line and this is where denial of states rights begins 4.) Interpretive Methods Interpretive Techniques All can probably t into two broad categories Originalists (or Textualists) See themselves as "agents" of the founders. Const. should be interpreted by looking at the text and intent of the Framers.

Court should nd a right to exist in the Const. only if it is expressly stated in the text or clearly intended by its framers. If Const. is silent, its for the legislature, unconstrained by the courts, to decide the law. Const. should evolve solely by amendment. Arg: Needed to constrain the power of unelected judges in a democratic society. Basic premise of Am. Democracy is majority rule; decisions as to which policies shall prevail and how they will be implemented ought to be subject to control by persons accountable to the electorate. Permitting unelected judges to overturn decision of popularly accountable ofcials is "counter-majoritarian." Therefore, the Court is justied in invalidating government decisions only when it is following values clearly stated in the text or intended by the framers. Non-originalists (or Purposivists) See themselves as "partners" of the founders. Interpret Const. in accordance w/ its overarching purposes to address the needs of contemporary society. Permissible for the Court to interpret Const. to protect rights not expressly stated or clearly intended. Const.'s meaning can evolve by amendment and by interpretation. Pragmatists Reject rigid borders around const. interpretations techniques; no preferred technique for reading the const. Utilize components of various schools of const. interpretation to reach decisions; textual leanings, historical glosses, philosophical arguments. Argues that this exibility, on balance, provides a better mechanism to reach decisions than any one technique affords. Figure out where you want to go, pick and choose the methods that will get you there. Justice Marshall in Marbury v. Madison---knew where he wanted to end up, had the conclusion written in his head, just had to backtrack and gure out how to get there. Realists Think all interpretive modes are mere window dressing for personal preferences. No matter which one of the interpretive methods you analyze with, there is only politics. at the end of the day, the judges will vote according to their world view, moral beliefs, economic status. Highlights of Const. interpretation issues 1.)Textualism Has its historical roots in the "plain meaning rule" from Blackstone: "words are generally to be understood in their most usual and most know signication" and "if words happen to be still dubious, we may establish their meaning from the context." Justice Black: "no law means NO LAW" Look at the words; they mean what they say, say what they mean. How do they t into the overall structure of the Const. More structural-based textualism Consider what the specic text is a part of (Bill of Rights, Constitution), and consider what that larger text means. How would I interpret these words by looking at the other pieces of the Constitution? 2.)Originalism Theoretically, the primary benet of ferreting out the original intention of the Framers is that, at least in theory, judicial decision-making becomes less subjective; justice's role is merely to implement the desire of the drafters and ratiers of the Const. However, historical materials are often incomplete or indeterminate. Federalist papers were intended to advocate the ratication of the Const. Meaning of the Const. is what it meant in 1789. U.S. Term Limits v. Thornton; District of Columbia v. Heller Sometimes an originalist and a textualist will agree, but they don't have to. 3.)Purposivism One level of abstraction removed from Originalism Also trace their origins to Blackstone, whose third rule counseled looking to the "subject matter" or mischief that the law addresses, and whose last canon urged consideration of "the reason and spirit" of the law. Purposivist may start interpreting Const. not by focusing on the text, but by considering the values, concepts, and principles behind the text. Warren Court is viewed as largely purposivist. Leading purposivist case is Roe v. Wade. Whats the value behind the text; classic living constitution. 4.)Natural Law Basic human rights, and therefore, maybe today, executing someone who was under the age of 18 at the time they committed the crime would be barbaric, so the Constitution should reect that. Problem: Who denes natural rights? If court sided with natural law, if something violated natural rights, it would be declared unconstitutional. In modern times, natural law has not been brought directly into constitutional decision-making. Things that inuence the application of the above methods. Foreign Law Originalists: Relevant; our common law is based on English common law. Also, The Constitution itself, in the Supremacy Clause "the law of nations." Precedent

Court, on its own initiative, has steadfastly said, we are bound by precedent; don't change our mind, dont abandon prior decisions. Very signicant check that the Court puts on themselves to prevent them from going nuts. In a Second Amendment case, look at the precedent, not free to ignore it. If you don't respect precedent, interpretations never coalesce. Lawyers can't inform clients. Shows that this is not just pure politics. Staying true to precedent can limit the way in which one of the above approaches is applied. Supreme Court almost never overturns a previous decision interpreting Const. More willing to overturn its decisions construing statutes; Congress can alter the statute. 5.) Congressional Limits on Judicial Power Can Congress take jurisdiction away from the Supreme Court (or lower federal courts) to hear certain cases? Constitution Art. III, 2: In all cases not falling within the S.Ct's original jurisdiction (but falling within the federal judicial power, the S.Ct. shall have "appellate Jurisdiction both as to Law and Face, with such Exceptions, and under such Regulations as the Congress shall make." 1: The federal judicial power shall vest in the S.Ct. and "in such inferior Courts as the Congress may from time to time ordain and establish." -Art III creates original jurisdiction for the Court in narrow cases. -Vast majority of the other cases they will hear are on appellate jurisdiction. Congress can pass laws to decide which ones they want to hear. Constitution creates power; court, judges. does not create procedure. 1789 Judiciary Act does. Ex parte McCardle Case 1867 reconstruction Act: includes a right to petition for habeas corpus if in federal or state custody. Allows appeals to S. Ct. McCardle held in federal custody by military in the south. Facing military tribunal, petitions for habeas corpus under 1867 act in fed. circuit court charging Reconstruction act as unconstitutional. Circuit court rejects, appeals to S.Ct. After oral arguments, Congress repeals that part of 1867 act allowing appeals to S.Ct., purporting to deprive Court of its right to decide the case. Holding: Court upheld Congress' restriction of the Court's jurisdiction. Key notes *Think of article III as making a core; outside of the core, congress can add as much as they want, and then take it all back as long as they keep the core. The core is the 1789 judicial act. The original scope of habeas jurisdiction. Not the act per se, 1789 act hasnt become part of the constitution; but the same scope, path to the court must always exist. If congress repealed 1789 act, they would have to pass another one. While the Court in McCardle, ruled they didn't have jurisdiction under the 1867 act, they left the core; McCardle could have led under 1789 judicial act. [provided anyone in the custody of the federal gov. could le a writ of habeas corpus with a district court alleging their detention was unlawful.] Suspension Clause [Art. I, 9, cl.2] adds to the core: Shows its not a complete blank check for Congress; -In order of the exception to kick in, congress has to pass a law formally suspending habeas corpus. -For the exception to apply, because of an invasion or otherwise, there is no functioning court system. No local authority, chaos. Boumediene May non-citizen detainees captured abroad and held at the Guantanamo Bay military facility challenge their detention through a writ of habeas corpus? Rule: Congress may not pass a law removing jurisdiction from federal courts to hear habeas corpus petitions brought by non-U.S. citizens held as enemy combatants by U.S. military authorities at foreign military bases under the full control of U.S. authorities. All prisoners held at Guantanamo have the right to challenge the legality of their detention in federal district court Its in the core for two reasons: Separation of powers: if the judiciary is to maintain its role that says what the law is, it must always have the power to hear challenges to the legality of the executive branch detaining people. How can you act as a check, when you cant hear it. If the Executive detains someone, they must have to be able to hear it. otherwise how can they say what the law is. Functional reason: no sense to lie about the legal techincalities; guantanamo bay is as much the u.s. as racine. majority massages away eisentrager; doesn't overrule it. 6.) Justiciability--Article III's "cases and controversies" requirement Advisory Opinions: --"cases or controversies" If an Advisory Opinion-->No Standing, Courts may not give "advisory opinions" giving advise about particular legislative or executive action, when no party is before the court who has suffered or immediately faces specic injury. Requirements i. There must be an actual dispute b/w adverse litigants (no hypothetical) ii. There must be a substantial likelihood that a federal court decision in favor of a claimant will bring about Standing: Whether P is the proper party to bring a legal action. Must have a signicant stake in the controversy to merit his being the one to litigate it.

Standing: Whether P is the proper party to bring a legal action. Must have a signicant stake in the controversy to merit his being the one to litigate it. **Want to always do a standing analysis, and do it rst. Think in your mind, "do the parties have standing." Even if you dont think there's standing, still continue Step 1: Write this: The Standing requirement is imposed by Art. III, which extends federal judicial power to "cases and controversies." The Standing requirement promotes 1)judicial restraint and 2.)SoP b/c it limits judicial attention to matters b/w individual parties who have a stake in the controversy b/c they have actual injuries. Step 2: Is there Standing? To satisfy Article III's standing requirements P must allege: (Laidlaw) 1.)Injury it has suffered is an INDIVIDUAL "injury in fact" Laidlaw standard: don't have to show injury, just that people have reasonable concerns about effects of problem being sued about. 2.)Causation: D's conduct was a "but for" cause of the injury; the injury would not have occurred unless the challenged action had taken place. 3.)Redressability: a favorable decision in the suit will redress the injury. Laidlaw standard: deterrent impact of penalties enough to satisfy redressability requirement. As a general matter, look to see if the claimant in question has a personal stake in the outcome of the case. Organizational Standing (likely to see this on exam): An association has standing to bring suit on behalf of its members if: 1.)its members would otherwise have standing to sue in their own right; 2.)the interests the association seeks to protect are germane to the organization's purpose; 3.)the suit does not require the participation of individual members. Rule: When the P is a State acting on behalf of its citizens, the usual rules of standing will be relaxed. (Massachusetts v. EPA) D arg. against standing in this instance Whats the next step? 26 states suing that the health care act in unconst., when nobody has been harmed yet. *Any political dispute can turn into a supreme court case if the states are suing. Is this what we want? What you really see is court expanding standing. You can make an argument out of anything that you have standing, see the court broadening this. Mootness: A case is moot if it raised a justiciable controversy at the time the complaint was led, but events occurring after the ling have deprived the litigant of an ongoing stake in the controversy. For a court to decide an issue, the issue cannot be moot. "Mootness is the doctrine of standing in a time frame. The requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence (mootness)." Exceptions 1.)An issue will not be treated as moot if it is "capable of repetition, yet evading review." Ex: Roe v. Wade; P already had her kid by the time the case got to S.Ct. Yet, other women will become pregnant. 2.)Voluntary cessation by D: If D voluntarily ceases the conduct P is complaining about, this is not normally enough to make the case moot. Even if P seeks an injunction, the cessation will not make the case moot, if there is any substantial chance that D might "return to his old ways." 7.)Political Questions: The Court in Baker v. Carr, delineated a series of factors relating to separation of powers, at least one of which must be present in order to make an issue a non-justiciable political question. 1.)Commitment to another branch: A "textually demonstrable constitutional commitment of the issue to a coordinate political department. (to Congress or to the President.)(not decisions arguable committed to the states.) Impeachment-Congress Amendment of Constitution-Congress Foreign affairs 2.)Lack of standards: A "lack of judicially discoverable and manageable standards for resolving" the issue. No possible objective standard for deciding. *Wildcard: In Vieth, Scalia suggested this is the most important factor. Could be a way of reverting back to the subjective prebaker approach. Doesn't mean it supplanted Baker; Use this as a second part of the analysis to see giving greater weight to lack of standards would change the result. Claims based upon Art. IV, 4: "the United States shall guarantee to every State in this Union a Republican Form of Government" are non-justiciable political questions. Luther v. Borden (Cited in Baker v. Carr): Rebellion required fed. courts to decide which gov't was the lawful gov't of the state. Court declined. What is a Republican Form of Government? What should our foreign policy be? Everybody's got an opinion 3.)Unsuitable policy determination: The impossibility of deciding [the issue] without an non-judicial policy determination Cant really decide whether we have a republican government until we rst decide what government is worthy of that label. 4.)Lack of respect for other branches: The impossibility of deciding the issue without disrespecting co-ordinate branches of government. 5.)Political decision already made: An "unusual need for unquestioning adherence to a political decision already made" Don't want to upset the apple cart. 6.)Multiple pronouncements: The potential for "embarrassment from multifarious pronouncements by various departments on one question."

Court says we're at war, and Congress says no we're not; would be a bit embarrassing. Class Only a political question if it implicates relation between the three federal branches. Not a political question if it is between Fed. and state. Political Q doctrine has been described as confusing and unsatisfactory. Hard to use as criterion to separate political Q's from justiciable cases. Thus, it can only be understood by examining the specic areas where the Court has invoked it. All cases arising under the "Republican form of Government" clause. (Art. IV, 4, cl. 1) Reapportionment: Court consistently refused to adjudicate claims concerning legislative apportionment on the grounds that they presented political Q's until Baker v. Carr. *Claim that malapportionment violated the Equal Protection Clause did not present a political Q. Gerrymandering: Vieth v. Jubelier Foreign affairs Arguments over when wars start or end Validity of constitutional amendments 8.)Separation of Powers Approaches Formalism: Demands adherence by each branch to the powers granted that branch. -Congress can make laws only if it follows the specied procedures. It may not enforce the laws it makes. -President enforces laws but may not make them. *Separation of powers is a command of Constitution's text and structure. An interpretation that tends to draw a bright line b/w the three branches of the federal government. COnstitution says that your branch does not have this power, you don't have it; end of story. Functionalism: Commands delity to the purposes of the distribution of powers. Constitution's distribution of powers is violated only if one branch of the federal government aggrandizes its power at the expense of another branch. *Separation of powers is a component of fullling the Constitution's goals. A more practical-oriented interpretation. The branches of the federal government have more freedom to exercise power than the black and white dictates of the Constitution might suggest and they are not necessarily cabined within their little box; so long as they are not trampling on another branch. What matters is "are you doing something that diminishes the authority of another branch of the federal government?" Executive Authority--Does the Pres. have power to do a certain action? [Exec. encroachment on Leg.] Argue both formalist and functionalist point of views. Step 1.): Unlike Congress, much of the President's power is implied from the provisions in Art II, that "The executive Power shall be vested in a President..." and "he shall take Care that the Laws be faithfully executed." Step 2.): Under Justice Jackson's concurrence in Youngstown, there are three zones of presidential authority: 1.)When the President acts pursuant to express or implied Congressional authorization, his authority is at its maximum. President's acts are presumptively valid. Court will interpret the Constitution broadly in this situation. Wants Congress and the President to work together 2.)When the President acts in the absence of either a congressional grant or denial of authority, there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. -Impossible to formulate general rules as to the constitutionality of action in this area; rather, constitutionality is likely "to depend on the imperatives of events and contemporary imponderables rather than abstract theories of law." -Concerns inherent powers--where he is acting w/out constitutional or statutory authority. Situation in issues such as executive privilege, impoundment, rescission of treaties, executive agreements, removal of executive ofcials. President is on his own. I cant tell you how we'll rule. 3.)When the President acts in contradiction to the express or implied will of congress, his power is "at its lowest ebb." Acts taken in this scenario will be strictly scrutinized under the Constitution. When organizing exec. power issue,insert discussion of formalist/functionalist in interpretation of zones. How would either interpret? Formalist View: Presidential action is unconstitutional if not expressly enumerated in Constitution or contained in Congressional legislation. President, your job is to enforce the law; where is the law? "Take Care" Clause: very language of the clause shows that the President must merely carry out the laws, not make them. Downsides Ties the hands of the executive because there is no authority to act quickly. Ignores modern practice; presidents issue executive orders all the time, they are making law. The emancipation proclamation was an executive order. Step 3.)Is there a Presentment Clause/Line Item Veto-type issue? Art. I, 7, cl.2, 3., provides that after a bill has passed both houses of Congress, but before it has become a law, it must be presented to the President; if he approves it, "he shall sign it, but if not he shall return it." (President's "return" of the bill= Presidential "veto.") Formalist: The process laid down in the Presentment Clause is the only way authorized in the Constitution to enact or repeal a bill. A bill not in line with the "nely wrought procedure" that the Framers designed" would authorize the President to create a different law--one whose text was not voted on by either House of Congress or presented to the President for signature." Even though Pres. is following the law, must have an amendment if he wants this power.

Formalist: The process laid down in the Presentment Clause is the only way authorized in the Constitution to enact or repeal a bill. A bill not in line with the "nely wrought procedure" that the Framers designed" would authorize the President to create a different law--one whose text was not voted on by either House of Congress or presented to the President for signature." Even though Pres. is following the law, must have an amendment if he wants this power. Functionalist: What really matters here, is that is there anything here that undermines Congress' core ability to make law? How much of a diminution in Congress' power is this really 1.)No, Congress gave him the ability. Clinton v. City of New York Facts: Line Item Veto Act gave President power to cancel in whole three types of provisions that have been signed into law: 1.)Any dollar amount of discretionary budget authority; 2.)any item of new direct spending; or 3.)any limited tax benet. [purpose was to help control the decit.] Issue: 1.)By canceling budget/tax items, is the Executive violating the Presentment Clause?---narrow holding 2.)By canceling budget/tax items, is the Executive law-making? Step 4.) Is it a matter of foreign affairs? Under Curtiss-Wright, the President enjoys a large amount of discretion in matters of foreign affairs. As opposed to domestically, the Court is more sympathetic and deferential to the Pres. when an action concerns foreign affairs since the country needs to speak w/ a unied voice and Pres. is more knowledgeable in this area. Dames & Moore said, in foreign affairs matters, Congressional silence on an issue may sometimes be interpreted as implied acquiescence in the President's exercise of power. Where such acquiescence exists, this may be enough to tip the balance in favor of a nding that the President acted within the scope of his constitutional authority. Ct. applied Youngstown categories. In Youngstown, Congressional silence was interpreted as disapproval. Here, silence is interpreted as authorization. Only lesson we can take away from this, is that the Justice Jackson approach gives the justices a lot of leeway to massage the facts to shove the case into zone 1 or 3; more of an art than a science to it. Ultimately the Court has a lot of discretion to decide whether Pres is acting in accordance to congress' wishes. Once again we see the Court at the top. General 1.)Domestically--take the more formalistic approach. Foreign affairs--take the more functionalaist approach; more exibility. Differences of opinion on whether it is a domestic or foreign matter. 2.)You are interpreting a structure. Analyze both under a formalist approach and a functionalist approach; whether it is a domestic and foreign question, whether the court should follow that. Legislative Authority [Leg. encroachment on Exec.] Under the Presentment Clause (Art. 1, 7, cl. 2), legislation must be presented to the President so he may approve or veto it. Bicameralism (Art. I, 1 and 7) requires that both houses pass a measure into law. Rule: Where a House of Congress takes actions that have the purpose and effect of altering legal rights, duties, or relations of persons outside of the Legislative Branch, Bicameralism and Presentment are required. There are, however, certain constitutionally specied situations in which one house of Congress is not required to present its actions to the President or to the other house. 1.)House's power to initiate impeachments. 2.)The Senate's power to conduct trials following impeachment. 3.)Senate's power over presidential appointments. 4.)Senate's power to ratify treaties. Formalist rationale: The system of Separation of Powers and Checks and Balances may be inefcient, but it is the best way that has been found to preserve freedom from arbitrary exercises of power. The challenged one-house veto is unconstitutional. Functionalist arg: If congress has the power to delegate authority to agencies, why does it have to delegate only 100% or nothing at all. Why should it not be able to keep 10%? INS v. Chadha [Domestic formalism says Congress must follow Bicameralism & Presentment Clauses] Congress may not promulgate a statute granting to itself a legislative veto over actions of the Executive Branch inconsistent with the Bicameralism principle and the Presentment Clause (Art. I, 7, cl. 2,3) of the Constitution Legislative veto: A device which enables Congress to monitor action by the executive branch, including federal administrative agencies. Typically, such a legislative veto provision is included as part of a congressional statute delegating certain powers to federal agencies. If, after an agency takes a certain action (usually, issuance of a regulation), Congress disagrees, the veto provision in the original bill allows one or both houses to cancel that administrative action by means of a resolution. The resolution is not presented to the President (as a statute must be), and he does not receive the opportunity to veto it. Notes: Does seem to be some wiggle room for the executive to exercise lawmaking powers. Youngstown Even if he does with the approval of Congress, he cannot do so if it contravenes another part of the Constitution. Beaumedien: Congressional approval, foreign affairs; however, it contravened habeas corpus. Bowsher v. Synar [Formalism] Rule: Congress may not reserve the right to remove an executive ofcer even for cause. Facts: Gramm-Rudman-Hollings Act provides for automatic budget cuts if Congress & Pres. can't agree on cuts by a given day each year. Act provides that the Comp. Gen'l is to specify the budget cuts to be made. Comp. Gen'l is a member of the executive branch, appointed by the Pres. w/ the advice and consent of the Senate, and is removable by Congress for "inefciency," "neglect of duty," or "malfeasance."

Formalist take: Constitution does not provide an active role for Congress in the supervision of ofcers charged with the execution of the laws it enacts. Under Art. II, 2, the President appoints "Ofcers of the United States" with the "Advice and Consent of the Senate." Once appointments have been made and conrmed, Congress may only remove Ofcers of the U.S. by impeachment by the House of Representatives and conviction by the Senate. Thus, permitting an ofcer answerable only to Congress to execute the laws they enact would effectively give Congress control over the execution of the laws they enact. This is not permitted by the Constitution. Functionalist take The majority takes a "distressingly formalistic" view of the separation of powers.<---(White is a functionalist) Takes issue with the idea that the Congressional role in the removal process of the Comptroller General renders him an "agent" of Congress, incapable of receiving "executive" power. Congress can remove the Comptroller only through a Joint Resolution, which requires passage by both Houses and signature by the President. Thus, removal of the Comptroller General satises the requirements of Bicameralism and Presentment laid down in Chadha. Indeed, these requirements make the Comptroller General one of the most independent ofcers in the federal government. Appointments Clause (Art. II, 2): The President shall "nominate, and with the Advice and Consent of the Senate, shall appoint Ambassadors . . . Judges of the Supreme Court, and all other Ofcers of the United States." Further, "Congress may by Law vest the Appointment of such inferior Ofcers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments." Principal ofcers: Principal ofcers are people who have no boss except for the President. (i.e. cabinet members, ambassadors, federal judges) Appointment Must be nominated by the President and consented to by the Senate Congress may not take away or limit the President's right of appointment. *Congress may not appoint principal ofcers Removal Removable by the President at his discretion Congress may not place any limits at all on the President's right to remove Cabinet ofcers or other principal ofcers. Congress cannot remove except by impeachment by the House and conviction by the Senate. Inferior Ofcers Appointment Under Art. II, 2, cl. 2, Congress has three options in delegating the appointment of "inferior ofcers" whose tasks are executive in nature. It may vest the appointment of such ofcers in: 1.)The President alone; 2.)The courts of law; or 3.)The heads of departments (i.e. cabinet members) *Congress may not appoint inferior ofcers Most it may do is, in the case of inferior ofcers, prescribe the procedures by which the President, dept. heads, or the judiciary branch shall make appointments. Removal Congress cannot remove. Rule: Congress may limit the President's right to remove a purely executive, inferior ofcer, as long as the removal restrictions are not "of such a nature that they impede the President's ability to perform his constitutional duty." Morrison v. Olson Typically, Congress's decision to prevent the President from removing the executive ofcer without cause (while letting him remove for cause) won't cause a constitutional problem. Congress cannot completely prohibit presidential removal, but it can limit removal to where there is "good cause." Morrison v. Olson [Functionalist response to the abuse of power under Nixon administration] Facts Act permitted a Special Court to appoint an independent counsel to investigate and prosecute high-ranking government ofcials for violations of federal criminal laws. The Act permitted the appointment of the independent counsel only after the Attorney General already completed an investigation and determined that additional investigation was necessary. Act granted all powers to the independent counsel as possessed by the DOJ and Attorney General. Independent counsel could only be removed by the Attorney General for cause or when he decided his investigation was over. Holding: An independent counsel is an inferior officer; therefore, Congress may by law vest the Appointment of such inferior officers, as they think proper: in the President, in the courts of Law, or in the Heads of Departments. Formalist Interbranch appointments argument: congress can decide who gets the power to appoint, but exec. appointments are limited to exec. duties, judicial appointments are limited to judicial duties, etc. Cant allow courts of law to appoint an executive ofcer.

*Court bypasses this pretty legitimate argument and says this is ne. This is an in-text argument; a very likely reading of it. However, court lets this pass by because they thought the law is good. Quasi executive/legislative (4th branch, "Independent" agencies) ofcers: Def. of "Independent" agencies: Agencies that don't mainly carry out the President's policies, but instead make signicant rules governing the actions of persons outside the executive branch, such as private citizens. Important that they be isolated from interference by the President Ex: FTC, SEC, FCC, Fed. Reserve Rule: Congress may under Art. I say that no agency head (e.g. a Commissioner of the FCC) may be removed by the President except for good cause. Exception: Congress may not set up a two-level scheme in which 1.)the Pres. is prevented from removing the heads of an independent agency except for cause, and 2.)the agency heads are in turn prevented from removing, except for cause, an inferior federal ofcer that they have appointed. Free Enterprise Fund v. PCAOB: "Multilevel protection" from removal violates Art. II's vesting of the executive power in the President. Dissenting view: -SEC can really do anything do oversee the board besides re them. -Opening up a pandora's box for other inferior ofcers. -Maj. doesn't give us a rule of general application. shows they are just acting on their gut b/c they don't like it. 12.)Congress' Powers The "Necessary and Proper" Clause of Art. I, 8 provides that Congress may "make all laws which shall be necessary and proper for carrying into Execution" the specic legislative powers granted by Art. I, 8. Under the broad and deferential reading of this Clause in McCulloch v. Maryland, Congress may take any legislative action that is 1.)rationally related to the implementation of an objective that falls within an enumerated power, so long as 2.)such means are not prohibited by the Constitution. Overview Fundamental attribute of federal power under the Constitution is that the fed. gov. is one of limited, enumerated, powers. That is, the three branches can only assert those powers specically granted by the U.S. Constitution. Fed. Gov's limited power should be contrasted w/ state power. States have "inherent" power; they hold a general "police power (i.e. the power to protect the health, safety, or general welfare of its residents.) A state action is valid under federal law unless it violates some specic limitation imposed by the U.S. Const. By contrast, a federal action must fall w/in one of the enumerated powers listed in the Const.; there is no general federal police power. Each act of federal legislation or regulation must come within one of the very specic, enumerated powers. McCulloch v. Maryland Overview Although fed. gov. may act only where it is afrmatively authorized to do so by the Const., the authorization does not have to be explicit. By the doctrine of "implied powers," the fed. gov. (especially Congress) may validly exercise power that is ancillary to one of the powers explicitly listed in the Const., so long as this ancillary power does not conict w/ specic constitutional prohibitions. "Necessary and Proper" Clause is an amplier; refers back to other powers. Case: rst case to make an important interpretation of the "necessary and proper" Clause. Crucial aspects of constitutional law established by McCulloch/ framework for gov't that continues to this day. 1.)Emphatically declares that the federal government is supreme over the states and that the states have not authority to negate federal actions. 2.)The Court expansively denes the scope of Congress's powers. 3.)The Court limits the ability of states to interfere with federal activities, such as imposing taxes or regulations on the federal government. Opinion (Marshall) The constitutional grant of a particular power (here, the power to charter a bank) does not need to be made explicitly in the Constitution. Particular powers can be implied from the explicit grant of other powers: "A constitution, to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind...We must never forget that it is a constitution we are expounding." The "Necessary and Proper" clause gives Congress the power to create a bank even though such a power is not specically granted in the Constitution. **"Necessary" doesn't mean "absolutely necessary" or "indispensable." Rather, " let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, and which are consistent with the letter and spirit of the constitution, are constitutional." Thus so long as the means is rationally related to a constitutionally-specied object, the means is also constitutional (assuming that it doesn't violate any specic prohibition, such as those from the Bill of Rights.) The Commerce Clause I Since the Constitution creates a federal government of limited, enumerated powers--not general police powers--everything the federal government does must have an authority in the Constitution. Step 1.) Write This: Art. I. 8, cl. 3 provides that Congress shall have the power "to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes."

Step 1.) Write This: Art. I. 8, cl. 3 provides that Congress shall have the power "to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." Under Gibbons v. Ogden, the Court rst recognized the breadth of the Commerce Power, and held that Congress has plenary power to regulate commerce that substantially affects several states. Step 2.) Does the Commerce Power reach the activity in question? As afrmed in Lopez, the modern Court's jurisprudence has recognized that Congress' Commerce power reaches three different areas: 1.)Channels of interstate commerce. A channel of interstate commerce is a route of interstate commerce--anything upon which or through which interstate commerce is conducted and thus facilitates interstate commerce. airspace, roads, traintracks, waters, internet, etc. Presumably Congress can regulate even though the activity in question in the particular case is quite intrastate. 2.)Instrumentalities of interstate commerce, "even though the threat may come only from intrastate activities." People, machines, and other "things" used in carrying out commerce; vehicles of interstate commerce. Aircraft, shipping vehicles, electronic communications. Ex: Congress could say that every truck must have a specic safety device, even if the particular truck in question was made and used exclusively w/in a single state. 3.Activities that have a "substantial effect" on interstate commerce. (intrastate) Is the activity commercial/economic? [b/c Gonzales was distinguished on this basis] Possession of guns in schools is not a "commercial" activity [Lopez] Gender-based violence is not "commercial" activity [Morrison] A commercial/economic activity refers to the "production, distribution, and consumption of commodities." [Gonzalez] Yes Under Wickard & Gonzales, the effects of economic activity on interstate commerce are taken in the aggregate to determine whether Congress had a rational basis for determining that the activity substantially affects interstate commerce. Did Congress have a rational basis for determining that the activity substantially affects interstate commerce (something they denitely can regulate)? Deference to Congress Think about the commercial cycle from beginning to end. does it substantially affect the movement of persons, information, goods, money, whatever, across state lines? Wickard--wheat Wickard's own effect on the market, by his decision to consume wheat grown himself, might be trivial. But this decision, "taken together with that of many others similarly situated, is far from trivial." That is, homegrown wheat "supplies a need of the man who grew it which would otherwise be reected by purchases in the open market," and the home-grown wheat thus "competes with wheat in commerce." [Since he's already got it, he's not going to the market to buy it] The effects of this market-distorting behavior are sufciently related to interstate commerce to justify regulation under the Commerce power. Protection of the interstate commercial trade in wheat clearly falls within the commerce power, and the regulation of home-grown wheat is reasonably related to protecting that commerce. Gonzales v. Raich--medical marijuana Rule: Intrastate production of a commodity sold in interstate commerce is an economic activity and thus "substantial effect" can be based on cumulative impact. Just as Congress in Wickard rationally feared that "when viewed in the aggregate, leaving home-consumed wheat outside the regulatory scheme would have a substantial inuence on price and market conditions," so, here, Congress had a "rational basis for concluding that leaving home-consumed marijuana outside federal control would similarly affect price and market conditions." That is, Congress, in passing the CSA, rationally believed that if cultivation of home-grown marijuana were permitted for medicinal consumption, the high demand in the interstate market would draw homegrown marijuana into the interstate market, frustrating Congress' purpose of banning interstate commerce in marijuana. (thus "substantially affecting" interstate commerce) The Court relies heavily on the Wickard principle, stating that it "thus establishes that Congress can regulate purely intrastate activity that 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." Like in Wickard, P's are cultivating, for home consumption, a fungible commodity for which there is an established, albeit illegal, interstate market. No The effects of noneconomic activity cannot be aggregated to demonstrate a "substantial effect" on interstate commerce. [Lopez, Morrison] a.)Does the specic activity (w/o aggregation) have an obvious connection to interstate commerce? [must be more obvious than Lopez and Morrison] Lopez: To connect gun possession in school zones with interstate commerce, court would have to adopt following logic:

1.Gun-related violence is a serious problem; 2.Gun-related violence disrupts classroom learning; 3.Disruptions in classroom learning negatively affect interstate commerce (by producing a less educated workforce) -This causal chain has too many links; would have to pile inference upon inference in a way that would convert Congressional Commerce Clause power to a general police power b.)Is this regulation an area of traditional state concern such as crime, family law or education? If so, court is less likely to nd Congress' commerce power reaches the activity. [Lopez] c.)Are there Congressional ndings that the activity substantially affects interstate commerce? The existence of Congressional ndings that the activity substantially affects interstate commerce is not sufcient by itself to sustain the constitutionality of Commerce Clause legislation, but may make some difference in tipping the scales in a close case. Little deference given to Congress. [Morrison] d.)Is there a jurisdictional element? If court nonetheless nds an obvious link to interstate commerce, commerce power reaches the activity. Heart of Atlanta [Result may be different if applied] Rule: The determinative test of the exercise of power by the Congress under the Commerce Clause is simply whether 1.) the activity sought to be regulated is "Commerce which concerns more States than one" and 2.) has a real and substantial relation to the national interest. It has no effect that Congress's motive for the legislation was not purely economic, but rather principally moral and social. Notes Really the height of Congress's power under the commerce clause. Necessary and Proper + Commerce Clause Argument The "Necessary and Proper" Clause of Art. I, 8 provides that Congress may "make all laws which shall be necessary and proper for carrying into Execution" the specic legislative powers granted by Art. I, 8, or by other parts of the Constitution. Under the broad and deferential reading of this Clause in McCulloch v. Maryland, Congress may take any legislative action that is 1.)rationally related to the implementation of an objective that falls within an enumerated power, so long as 2.)such means are not prohibited by the Constitution. The Court in Lopez held that regulation of intrastate economic activity may be upheld if it is found to constitute "an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated." intrastate activity (means)------interstate market (ends) Also recognized by Scalia's concurrence in Gonzalez: [Cite Necessary and Proper Clause] Congress may regulate even noneconomic local activity that does not "substantially affect" interstate commerce, if that regulation is a necessary part of a more general regulation of interstate commerce. State Law already regulating the activity?: Under the Supremacy Clause of Article VI, in the case of a conict, state law must yield to federal law. The Spending Power If Congress cannot achieve objective X by direct regulation b/c it would lie beyond its enumerated powers, Congress may use its conditional spending power to achieve that result indirectly, by depriving the states of money if they do not not achieve the regulatory result. Step 1: Write This: Art. I, 8, cl.1 empowers Congress to "lay and collect Taxes, Duties, Imposts, and Excises, to pay the Debts and provide for the common Defense and general Welfare of the United States." Incident to this power, Congress may condition receipt of federal funds upon compliance by the States with federal statutory and administrative directives. *Thus, objectives not thought to be within Art. I's "enumerated legislative elds," may nevertheless be attained through the use of the spending power and the conditional grant of federal funds. Step 2: The spending power of Congress must meet four requirements: [S.D. v. Dole] 1.)Condition must be in pursuit of "the general welfare." Courts should defer substantially to the judgment of Congress. 2.)Conditions must be unambiguous, allowing the States to exercise their choice knowingly, cognizant of the consequence of their choice. 3.)Conditions must be related "to a federal interest in particular national projects or programs." Spending must be related to a federal interest or national project or program and cannot be too broad (e.g. S.D. v. Dole-drinking age is related to highway safety) 4.)Conditional grants of federal funds must not be independently barred by other Constitutional provisions. **The power may not be used to induce the States to pass laws/ engage in activities that would themselves be unconstitutional. Step 3: Is Congress overstepping its bounds? 1.)If there is coercive pressure-->compulsion. States must have a choice. Distinguish b/w encouragement and compulsion. 2.)If lines of accountability are being blurred-->Can't do it. Tenth Amendment Limits on Congress Step 1: Write This: The 10th Amendment provides that "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." This amendment today seems to limit Congress' ability to regulate the states.

Thus, the issue is not whether Congress has the power to pass the law. Rather, does the Tenth amendment limit the means that Congress chooses? Step 2: Is Congress passing a generally applicable law? If Yes-->The regulation does not infringe on the 10th Amendment. Under Garcia v. SAMTA, if Congress acts pursuant to its Commerce power, a law that applies to all parties where the States are treated the same as private parties does not violate the 10th Amendment. The fact that it is a state being regulated has virtually no practical signicance; if the regulation would be valid if applied to a private party, it is also valid as to the state. Not saying that there are no constitutional protections against congressional interference with state sovereignty. Rather, whatever limits exist inhere in the structure or process of congressional lawmaking. the requirement that each state have two Senators, the fact that the states are given general control over electoral qualications for federal elections, and the fact that the states have a special role in presidential elections by means of the electoral college. Issue: Whether the minimum-wage and overtime provisions of the federal Fair Labor Standards Act should apply to employees of a municipally-owned and-operated mass transit system. Under Usery, this translates to the issue: Is municipal ownership and operation of such a transit system a "traditional governmental function?" If No--> Is Congress Commandeering the State? 1.) Under N.Y v. U.S., Congress may not simply commandeer the legislative processes of the States by directly compelling them to enact and enforce a federal regulatory program The "take title" provision of the Act is unconstitutional because it gives state governments the choice between "either accepting ownership of waste or regulating according to the instructions of Congress." It is impermissible for Congress to impose either option on the States. 1.)Forcing states to accept ownership of radioactive waste and assume liability for the damage it causes would impermissibly "commandeer" state governments, and thus be inconsistent with the Constitution's division of authority b/ w federal and state governments; 2.)The other alternative, regulating pursuant to federal regulatory statutes would impermissibly impose on states a requirement to implement federal legislation. 3.)*Because Congress cannot employ either of these methods alone, it cannot escape the problem by giving the State a choice b/w the two. "A choice b/w two unconstitutionally coercive regulatory techniques is no choice at all." Accountability aspect Where the federal government compels states to regulate, the accountability of both States and federal ofcials is diminished. Congress cannot escape political heat for unpopular decisions by forcing State ofcials to make those decisions. If citizens of N.Y. don't like the regulation, State ofcials will bear the brunt of public disapproval when they face the electorate, not Federal ofcials. U.S.'s arguments: 1.)The Constitution's prohibition of congressional directives to state govt's can be overcome where the federal interest is sufciently important to justify state submission. Its possible for this to be true for generally applicable laws; However, no matter how powerful the federal interest involved, the Const. does not give COngress the authority to require the States to regulate. 2.)The Constitution does, in some circumstances, permit federal directives to state governments. Simply not supported by any authority 3.)The Constitution envisions a role for Congress as an arbiter of interstate disputes. This is true; but Congress is empowered to regulate trade directly, not by issuing trade-related orders to state governments. 2.)Under, Printz v. U.S., The 10th Amendment prevents Congress from compelling State/local executive ofcials to enforce a federal regulation. 2.)Structure of Constitution: a.)Scalia rehashes the argument in New York regarding "dual sovereignty." "The Framers explicitly chose a Constitution that confers upon Congress the power to regulate individuals, not States." Power of the Feds would be augmented immeasurably if it could impress into service the police ofcers of the 50 states. Would turn States into administrative agencies or regional ofces of the federal government. b.)Separation of Powers argument---Congress is bypassing the president. The constitution vests all executive power in the president and Congress impermissibly had given the executive authority to implement the law to state and local law enforcement personnel. "power of the President would be subject to reduction if COngress could act as effectively w/out the Pres. as with him -Not present in the N.Y. case Accountability Having the CLEO's perform these ministerial tasks doesnt still diminishes the accountability of federal ofcials. It will be the CLEO, not a federal ofcial, who will be blamed for an error. By making the states pay for the regulatory program, the Feds can take credit for solving the problem w/o asking their constituents for money. Alternative Methods

Congress isnt powerless to make a state do something. Only compulsion, not a voluntary quid pro quo is disallowed. Spending power: Congress may condition the state's or local government's receipt of federal funds on its ofcials willingness to do the federal bidding. Threat of regulation Congress could directly regulate the conduct in question, and could therefore take the less drastic step of telling the states that this direct regulation will follow if the states do not take care of the problems themselves. *Be alert for fact patterns where COngress is regulating the states. Such regulation raises a Tenth Amendment issue. -So long as Congress has merely passed a generally applicable law, this law can apply to the states just as it does to private individuals, and there is no Tenth Amendment violation. ex: minimum wage laws may be applied to state workers just as to private workers. -But Congress may not directly compel the states to enact or enforce a federal regulatory program [N.Y., Printz]. When Congress does this, it violates the Tenth Amendment Eleventh Amendment Limits on Congress Step 1.) Write This: The 11th Amendment provides that "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." This provision is interpreted much more broadly than a mere restriction of the Art. III diversity jurisdiction of the federal courts. Rather, it embodies the principle of sovereign immunity. Thus, the 11th Amendment limits Congress' power to create a federal right to sue a State. Step 2.) Is there an exception? Exclusions from the coverage of the 11th Amendment Suits under the Civil War Amendments: If Congress passes a statute pursuant to its power to enforce the Civil War Amendments (13th, 14th, 15th), and that statute gives private citizens the right to sue a state in federal court, this statute will be enforced, and won't be deemed to violate the 11th Amendment. Ex parte Young exception: The 11th Am. does not prevent suits against state ofcials in which the relief sought is an injunction against the violation of federal law Federal government can sue a state. States may sue other states. Citizens may sue if state has consented. Step 3.) Has Congress abrogated the State's Sovereign Immunity? Seminole Tribe of Florida v. Florida Rule: Even when though Article I gives Congress full authority to "regulate commerce," the 11th Amendment prevents Congress from authorizing a private citizen to sue a state in federal court. Alden v. Maine Rule: 11th Amendment prevents Congress from authorizing a private citizen to sue a State in state court without their consent. FMC Rule: The federal government cannot require that the states defend against private complaints in proceedings brought before federal administrative agencies. Other Stuff Signicance: Alden seems to mean that the states now have full sovereign immunity from any private suit in the state's own courts seeking damages for the state's violation of federal law. Coupled with the extensive federal-court 11th Amendment immunity recognized in Seminole Tribe, the states now seem to have a large zone in which, as a practical matter, they are completely insulated from congressional attempts to give private individuals a damages remedy for violations of federal rights. *Note: These rules apply to rights created by Congress under their Art. I powers. *****Key Point 1.)We are talking about 11th limiting congress' power to create a federal right for all of us to sue a state in federal court. Not saying that states cant be sued for violating the law. They can. State doesn't have sovereign immunity to violate the constitution 2.)The federal gov. can sue a state. Why? Federal gov is a bigger sovereign. Also, Ex Parte Young exception Federalism's Limits on the States Art. I, 10 [Contracts Clause]: "No State shall . . . pass any . . . Law impairing the Obligation of Contracts." Analysis: Whenever you're faced with a state statute that changes the duties in contracts, ask these questions in order: 1.)Which came rst--the contract or the statute? If the statute came rst, it can't violate the Contracts Clause; states can regulate contract formation prospectively. If the contract came rst, go on to #2 2.)Does the statute in question pose a substantial impairment to an obligation under a contract? If not, there's no Contracts Clause problem. If yes, go on to #3 3.)Does the statute serve an important and legitimate public interest If so, go on to #4.

If not, the statute violates the Contracts Clause. 4.)Is the statute necessary to serve the public interest? If so, go on to #5. Rule: A State law may impair the contractual obligations of private parties when there is a legitimate state interest and justication. Blaisdell ***Contract clause doesn't protect much; when push comse to shove, states can pass laws impairing contracts when there is an emergency. As a result of this opinion, COntracts clause today doesn't have a lot of teeth to it. If not, the statute violates the Contracts Clause. 5.)Is the contract impairment reasonable under the circumstances? If so, there's no Contracts Claus violation. If not, the statute violates the Contracts Clause. Blaisdell Issue: Does the provision of the Minnesota Mortgage Moratorium Law extending the period of redemption for from foreclosure sales 'for such additional time as the court may deem just and equitable' violate Art. I, 10, cl. 1 (Contract Clause)? Opinion (Hughes): Prior judicial decisions applying the Contract Clause make clear that it is not to be read with literal exactness. ***That there is a government policy protecting K's against impairment presupposes that there is even a government under which contractual relations are worth while. Think about it, if all the rights in the constitution were absolute, then every individual could assert their rights all the time and government can't to its job. Here, Hughes is suggesting that all rights are not absolute so the government can do its job. **Subtle point that the contract clause creates a protection that only goes as far as restricting states while their able to fulll its essential functions. Once the clause prevents a state from fulling its essential functions, the protection ends. Factors Emergency existed depression Law served a legitimate state interest protection of lots of people homes Law is not unreasonable Protects the interests of both the lenders and borrowers Temporary in operation Protection of Federal Institutions U.S. Term Limits v. Thornton If you have an exam Q where a State action is pushing into the Federal sphere, but you dont have a textual hook to start analysis, can always start with Thornton. Rule: Case suggests: Not only does the 10th Am preserve a state in its sphere of authority, but the fact that powers are reserved by the people also prevents the state from exercising in certain areas where it threatens the national framework. If every state could make its own qualications, it would 1.)undermine uniformity and 2.)sever the direct link b/w Nat. Gov. & the people. National people, not States, got together to create the Const.; if anybody is going to change its fundamental structure, its going to be the national people acting through amendment. *Every fundamental change in the constitutional framework, regarding elections, has been made through amendment. This is no different. The Tenth Amendment does not reserve rights for the States that were not within the original powers of the States. states dont have powers that didnt exist before ratication. How they really read: every person shall be equally eligible to be a representative if 25 years old + 7 yr. citizen + resident every person shall be equally eligible to be a Senator if.... Text Art. I, 2 no person shall be a representative unless 25 years old + 7 year citizen + resident Art. I, 3 no person shall be a Senator unless 30 years old + 9 year citizen + resident Art. I, 4 time, place & manner of elections shall be set by States, unless altered by Congress. Where is the power to amend the qualications located? Not in powers granted to Congress (Art. I sec 8) Not in powers reserved to the states (Tenth Amendment) They're just hanging; where do they go? Kind of in a constitutional no-man's-land Issue: 1.)Whether the Constitution forbids States from adding to or altering the qualications specically enumerated in the Constitution.

1.)Whether the Constitution forbids States from adding to or altering the qualications specically enumerated in the Constitution. 2.)If so, whether the fact that Amendment 73 is formulated as a ballot access restriction rather than as an outright disqualication is of constitutional signicance. *Do the Qualication Clauses state the exclusive requirements for membership in Congress, or are they merely "minimum requirements" that the states may supplement? Opinion (Stevens): 1.) States' Arg: *Since there isn't an express Constitutional prohibition on the States imposing additional qualications, the Tenth Amendment and the principle of reserved powers requires that the States be allowed to do so. *Arg. in text: We're just doing whats given to us as a right under Art. I, 4 to regulate the time, place, and manner of elections. Two points 1.)The power to add qualications is not within the "original powers" of the States, and thus is not reserved to the States by the Tenth Amendment. ***The Tenth Amendment only lets the states retain powers they already had before enactment of the Constitution, and the power to add qualications for federal elections is not an "original power" that the states had before enactment, b/c there was no fed. gov. or electoral system at all. ***The genius of Steven's opinion Throwing this idea back in the face of State's rights people 2.)Even if States possessed some original power in this area, the Framers intended the COnstitution to be the exclusive source of qualications for members of Congress, and the Framers thereby "divested" States of any power to add qualications. Afrmative Evidence It was a large concern of the Framers that the States would try to undermine the National Government. Concerned that if States were allowed to make qualications, they could simply refuse to hold elections altogether. Under the dissent's approach, that would be allowable b/c they could simply set the qualications really high. Complete absence in the ratication debates of any assertion that States had the power to add qualications. They were having the same arguments back then, but proponents of term limits or "rotation" argued that they should be included in the Constitution. None of them argued that the States had power to add additional qualications. We can draw upon the decision in Powell v. McCormack, in which the Court decided whether Congress had the power to add or to alter the qualications of its members. [Power granted each House in Art. I, 5 to judge the "Qualications of its own members"] History showed that during its rst 100 years, COngress strictly limited its power to judge the qualications of its members to those enumerated in the Const. *Basic principles of out democratic system--allowing Congress to impose additional qualications would violate the fundamental principle of our democracy 'that the people should choose whom they want to govern them." Made clear that this broad principle incorporated two fundamental/corellary ideas. + another one. *1.)The egalitarian concept that the opportunity to be elected is open to all. [*all candidtates for federal ofce need to be treated equally] Here, this egalitarian ideal is violated to the same degree when States impose additional qualications as when Congress did. *2.)Critical postulate that sovereignty is vested in the people, and that sovereignty confers on the people the right to choose freely their representatives to the National Government. [sovereignty of people to elect who they choose.] This is also violated here. Fact that it is the States & not Congress doesn't matter. 2.) *Amendment 73 is not merely a regulation of the "Manner" of elections under Art. I, 4, cl. 4 (Elections Clause) Consequence of this argument is that Congress would have the power to do something like Amendment 73. *Further, the Framers intended the Elections Clause to grant States authority to create procedural regulations. Notes Policy arguments for and against term limits Interesting thing is that there is strong policy arguments on both sides. Ensure elected reps in wash dont get coopted by the "inside the beltway" metality Argue also, there are alot of good people in Arkansas. Against: If your incumbent is doing a good job, why articially limit how long they can serve? The way the system runs is on seniority; Arkansas could never get people on the big committees Recognize that, theoretically these policy args should have nothing to do with the answer of whether this is COnstitutional. Question isnt whether this is smart or stupid. Its whether its Constitutional When you have both sides with pretty much equally strong arguments, what do you do? Note 4 pg. 347--The objective evidence was fairly evenly weighed in this case

Challenge in this case is for the court to gure out a way to proceed when the usual guideposts don't provide the way Court is at "equipoise." But State has the 10th Am. weapon. THis is where Stevens has his nest moment: arg. that states dont have powers that didnt exist before ratication. What tips the scale. Neither side really has much to go on. The Dormant Commerce Clause Overview Because Congress holds the afrmative power to regulate interstate commerce, there are limitations on the states' ability to pass laws that burden interstate commerce. This limitation on the states' power is the negative implication of the Commerce Clause, known as the Dormant Commerce Clause. Supreme Court will invalidate state laws just because the commerce clause exists, even though Congress has been silent. Analysis Write This: Art. I, Sec. 8, cl. 3 assigns the Commerce Clause power to Congress. Under the DCC doctrine, the Court will invalidate state laws that burden interstate commerce just because the Commerce Clause exists. The DCC applies when Congress has been silent on state actions. 1.)Has Congress spoken? If yes: Did they have authority to pass the law? Yes: State law is invalid b/c of Supremacy Clause. No: Continue If No: Continue 3.)Is the State operating a State monopoly? If yes: law is o.k. United Haulers--state can discriminate Court distinguishes from Carbone. Carbone does not apply where a law/ordinance benets a government-owned facility, while treating all private companies exactly the same. Such a "state monopoly" does not discriminate against interstate commerce, and does not violate the DCC. Especially in areas where the function has been a "traditional government activity", laws favoring local government may be directed toward any number of legitimate goals unrelated to protectionism. If traditional strict scrutiny were applied to gov't regulations that confer a state monopoly, result would be unprecedented and unbounded interference by the courts on state and local gov't. If no State monopoly: Continue Carbone City hired a private contractor to build a waste facility. COntractor operated it. City passed "ow control" ordinance to ensure it had business. held, the ordinance discriminated against interstate commerce by "hoarding solid waste, and the demand to get rid of it, for the benet of the preferred processing facility, thus depriving out-of-state rms of the opportunity to do the processing. THus, virtually per se unconst. Government may not prefer a local privately-owned business over out-of-staters, at least with respect to trash processing. 2.)Is the State/municipality acting as a market participant or a market regulator? If market participant: law is o.k. Market Participant Exception to Dormant Commerce Clause: Where the State acts as a market participant, dormant Commerce Clause analysis will not be applied, and the state may favor over out-of-state economic interests. A state acts as a market participant when it is a party to a direct economic transaction in which it chooses to deal with in-staters rather than out-of-staters. State is buying or selling something. Exception to the exception when the state regulates downstream ***The State may not impose conditions, whether by statute, regulation, or contract, that have a substantial regulatory effect outside of the particular market in which it is a participant. Alaska Timber: Requiring that processing take place in-state is acting as a regulator not a market participant, because the State is not a participant in the processing market, and therefore may not use its power as a State to control that market. *State as market participant is still subject to the Privileges & Immunities Clause, limiting its leeway as a market participant. Watch for this whenever a state or city interferes with private sector employment (e.g. by requiring a contractor on a state building project to hire only state residents). Could violate P & I. If market regulator: Continue Market Regulator: State as rulemaker; making rules everyone has to follow. 4.)Is the law discriminatory? Facially discriminatory laws: A law will be regarded as discriminatory if its terms draw a distinction b/w in-staters and out-ofstaters. Clearest example is a law that overtly blocks the ow of interstate commerce at a State's borders. Sometimes states expressly place out-of-state businesses at a disadvantage or act to help in-state businesses at the expense of out-of-state businesses. Sometimes states attempt to keep their natural resources and thus limit their accessibility to out-of-staters. Philadelphia v. N.J.

Factors 1.)A law is likely to be found discriminatory if its effect is to exclude virtually all out-of-staters from a particular state market, but not if it only excludes one group of out-of-staters. 2.)A law is likely to be found discriminatory if it imposes costs on out-of-staters that in-staters would not have to bear. 3.)The Court is more likely to nd discrimination if it believes that a law is motivated by a protectionist purpose, helping in-staters at the expense of out-of-staters. If yes: law is "virtually per se unconstitutional." Under Philadelphia v. N.J., if a state law is facially discriminatory, it is is "virtually per se unconstitutional." This means it will always be unconstitutional, the state can justify it with an important state interest, and no non-discriminatory alternatives are available. unless its bait sh [ a very high standard; bait sh] If no (neutral): apply the Pike test. 1.)Traditional pike test Deferential to the state: The state law will be upheld unless the burden on such commerce is "clearly excessive" in relation to the putative local benets. Strong presumption of constitutionality, burden is on the challenger to overcome by a clear showing that the state benet is outweighed by a national interest in uniformity or the free ow of commerce. a.)the regulation must pursue a legitimate state end; If the court is acting to further health, safety, or "general welfare" objectives, the Court is likely to hold that these objectives constitute "legitimate state ends." Protection of the economic interests of a State's own residents is generally not considered to be a legitimate state objective. b.)the regulation must be rationally related to that legitimate end; and A mere "rationale relation" is all that's required; it not required that the means used be the best way of achieving that end, or the way that least affects interstate commerce. Court will give due deference to any facts found by the state legislature. c.)the regulatory burden imposed by the state on interstate commerce, and any discrimination against interstate commerce, must be outweighed by the state's interest in enforcing its regulation. Burden is, e.g., cost and difculty of compliance, inefciency created, availability of less burdensome alternatives. Does the local interest sought to be protected by the legislation outweigh the burden it places on the movement of persons, things, or information across state lines? Kassel Iowa banned all trucks over 65 feet. Banned them for everyone. Not talking about a law thats discriminatory on its face. Thus, we are talking about a situation where the Pike test applies. Although Iowa had a valid interest in public safety, the burden imposed on interstate commerce was too great; regulation failed the balancing test. Evidence that the regulation improved safety was tenuous. On the other hand, trucking companies that use 65-foot must route them around Iowa or detach the trailers and ship them through separately. Inefcient; Iowa's law added about $12.6 million each year to the costs of trucking companies. Consolidated's went up about $2million. 2.)Discriminatory Effect Under Carbone, if the state law is facially neutral but has a discriminatory effect, the Court will apply Pike test, but with less deference to the state; the Court's thumb is on the opposite side of the scale. netrual state law, but bulk of the effect is suffered by out of staters Carbone: The city ordinance requiring only City residents to use the transfer site had a discriminatory effect because it closed the door to any out of state trash. Kassel Trucking companies that use 65-foot must route them around Iowa or detach the trailers and ship them through separately. Inefcient; Iowa's law added about $12.6 million each year to the costs of trucking companies. Consolidated's went up about $2million. 3.)Discriminatory Purpose Under Brennan's concurrence in Kassel, if a state law is facially neutral but there is evidence nonetheless the state acted with a protectionist purpose, the Court will not apply the pike test. Rather, the law is per se unconstitutional. Director of the Iowa D.O.T. openly admitted that they are only concerned with the highways within Iowa. They cannot shunt off their fair share of the burden. Individual Rights Privileges and Immunities Clause Art. IV, 2 provides that "The Citizens of each State shall be entitled to all Privileges and Immunities in the several States." Under United Building, the P & I Clause only protects rights "fundamental to the promotion of interstate harmony." Even then, a State can justify burdening a fundamental right by showing it has a substantial reason. Test for P&I violation: 1.)Does State or local law discriminate against out of state citizens? P&I Clause provides no protection to in-state residents or businesses.

2.)Is the State burdening a "fundamental" right? [**Fundamental to the individual] Only rights that are "fundamental to the promotion of interstate harmony" are covered. The rights that meet this standard are all related to commerce; the right to be employed, the right to practice one's profession, and the right to engage in business are all fundamental, and are therefore protected. Earn a living or otherwise pursue a commercial activity Receiving medical care Owning property Access to the judicial system Non-economic rights are generally not "fundamental" and thus not protected by the P&I clause. For ex, the right to engage in recreational activities is not protected by the clause. 3.)If a "fundamental" right is at stake, Does the State have a substantial reason for discriminating? Somewhere in the middle of the spectrum. Not accepting any old reason, but not super strict. Whether it is a substantial reason is a question for a reviewing court *Test that is very fact specic; difcult to come up with a one-size ts all holding. 4.)Is the reason closely related to the degree of discrimination? -Examination of means. Comparison of P&I Clause & Dormant Commerce Clause Both Protect against protectionism. But while they overlap in some areas, there are some important differences. DCC Protects individuals and corporations. Applies to goods and services/ commerce Deals with laws that discriminate against commerce Suspect if they discriminate on the face (law itself draws distinction), very hostile standard of review. Almost impossible to justify. Congress can change the rule that the court issues. P &I Protects people only. Only esh Applies to persons (ind. who are prevented from doing something) Deals with burdens on a fundamental right (fact that a fund. right is being denied to you) The burden can be justied. Much lighter standard of review. Is possible for a state law to justify a burden on an Congress cannot change the rule that the court issues because congress does not have the power to determine what is a "privilege and immunity." Notes *Privileges and immunities clause; Don't get mixed up with the privileges or immunities clause in the 14th. Somebody always messes it up on nal. At its essence, an equal treatment command. State A you can pass any law you want, as long as you treat outsiders equally. Combines the interests of the insiders and the outsiders. Premised on the idea that we area a political union. Similar to DCC, but that is premised on the idea that we are an economic union. State Action The guarantees of due process and equal protection, given by Section 1 of the 14th Amendment, are introduced by the words "No State shall..." Under the Civil Rights Cases, this was interpreted to mean that the fundamental rights protected by the 14th Amendment only protect against ofcial action by a state government or a state ofcial in the course of his job that is violative of those rights. The 14th Amendment does not protect against private conduct. Under Shelley v. Kraemer, judicial enforcement of a private agreement is state action. Issue arises only where the specic action alleged to interfere with a constitutional right is taken by a private individual. D argues that there cannot have been a const. violation b/c there has been no state action. P argues that the state has in some way encouraged, benetted from, or at least acquiesced in the private individual's conduct, thereby furnishing the requisite state involvement. Procedural Due Process Whenever government is denying a person a job, license, benet, etc., consider whether the individual was entitled to procedural due process, and if so, whether the requirements of DP were complied with. The requirement that the government act with procedural due process derives from the Due Process Clauses of the 5th and 14th Amendments. Both clauses prevent the government from depriving any person "of life, liberty, or property without due process of law." 1.)Has there been state action? Loudermill: Employee of the school district; school district terminates him. 2.)Has a "liberty" or "property" interest been impaired? Constitution does not create property rights; it protects them. Its the Legislature that creates property rights. (State & Congress) Loudermill: Ohio statute classifying him as a "classied civil servant" under Ohio law clearly gave Loudermill a property interest in employment.

Matthews: Meeting the standards for SSD benets gave P a property interest in them. 3.)If a liberty or property interest has been impaired, What process is due? Loudermill: *What process is due is a constitutional question to be answered by the judiciary, not a statutory question for the legislature. If there is a deprivation of life, liberty, or property, constitutionally adequate procedures are required. We the federal judges decide what is due process. (court always reserves power for itself) Matthews v. Eldridge provides that Procedural Due Process is exible and calls for such procedural protections as the particular situation demands. A three-part test is used to determine what process is due when a governmental action deprives an individual of a constitutionally protected liberty or property interest: 1.)The private interest that will be affected by the ofcial action; Importance of the interest to the individual; the more important the interest, the more in the way of procedural safeguards the Court will require. -degree of potential deprivation that may be created by a particular decision -possible length of wrongful deprivation of benets Gold standard is the full out crim. trial afforded b/c the interest is so high. Not necessary when the interest is lower 2.)The risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and The ability of additional procedures to increase the accuracy of fact-nding. The more the Court believes that the additional procedures lead to better, more accurate, less erroneous decisions, the more likely it is that the Court will require them. Matthews: *Court misses the aspect of human dignity; simple human dignity demands that I be given an opportunity to be heard before something that is mine is taken away from me. 3.)The Government's interest, including the function involved and the scal and administrative burdens that the additional or substitute procedural requirement would entail. The more expensive the procedures will be, the less likely it is that the Court will require them. No matter what, have to recognize that perfection is impossible, so don't expect it. Best you can do is argue that "due process and the matthews test requires..." Matthews: no evidentiary hearing is required before termination of disability benets. Loudermill: Sufcient process is provided by a predetermination opportunity to respond, coupled with post-determination admin. procedures as provided by the Ohio statute. All about hearings. All that is required is procedure, not necessarily a hearing. However, the person being deprived wants a hearing before his property is taken away. Person in charge can see his sincerity in person. His representative can do what lawyers do. Can cross-examine. Test the govt's motives/deters arbitrary decisions. Substantive Due Process The Due Process Clause of the 14th Amendment provides that "no state shall deprive any person of life, liberty, or property without due process of law." This clause contains a substantive aspect that requires governmental action infringing on an individual right to not be arbitrary. Step 1.)State Action Step 2.) Identify the Interest involved---->Frame the Right/Issue Look at the fact scenario, gure out what exactly is the right being asserted here. There is a difference b/w speaking of rights positively vs. negatively Conceive of the right positively: Do i have the constitutional right to do x? P: Frame the right broadly D: Frame the right very narrowly, fact-specic. Step 3.) Is it a fundamental right protected by the Constitution? Existence of RIght-- Substantive due process in descending order *Bill of rights Right might be located in the bill of rights explicitly. Incorporated against the states in "The right to___in the___Amendment as incorporated in the 14th Amendment to apply to the states." Only ones that arent incorporated against the states are 3rd amendment no quartering of troops, grand jury indictment provision of the 5th, jury trial provision of the 7th. "Penumbras"---Griswold Though the Constitution does not explicitly protect a general right to privacy, the First, Third, Fourth, and Ninth Amendment create penumbras, or zones, that establish a right to privacy. Ex: The 1st Am., by its explicit protection of the freedoms of speech and of the press, has "emanations" which create a "penumbra"; it is this penumbra which protects, for instance, the freedom of association, a freedom not explicitly mentioned in the constitution. "liberty" 1.)text When there's nothing explicit in the bill of rights--"liberty" in the 14th Am. (this is our catchall, this is where we nd a right that is otherwise not there (privacy, abortion, family) Idea that there are other rights out there; more expansive than

Suspension clause No ex post facto laws 2.)Intent not a lot of intent evidence 3.)History & tradition Is the right "deeply rooted in our nation's history and tradition"? Remember that 14th am. wasn't drafted in 1789. Problems? rarely get a clear answer Can usually cut both ways. Lots of different history for different groups of people. Hard to pin one down. Lawrence Theres 100 years of history. But there's also recent history. (has there been an increasing recognition of it?) Also U.S. history, and European history. GIves much more weight to recent history. (living constitution) *As we dene what liberty means, when do we look at. Is the const. static (1789) or living? 4.)Precedent is this only a small step forward, or a big leap ahead? Pierce v. Society of Sisters: Fundamental right of parents to direct the upbringing and education of children under their control. Troxel: Fundamental right of parents to make decisions concerning the care, custody, and control of their children. Griswold: Fundamental right of married people to use contraceptives Fundamental right of people to make decisions on procreation. Idea that there's a right to privacy surrounding the home. Depends how you read it. Broadly: its about how big of family you are going to have. Controlling reproduction right to privacy is about keeping the gov out of your bedroom period. Sacred precincts of marriage. Narrowly: Griswold only involved married people ***Griswold can be tied to marriage. Makes it very difcult to apply in some cases Roe: The right of privacy is located in the "liberty" guaranteed by the Fourteenth Amendment. This right is broad enough to encompass a woman's decision to choose whether or not to terminate her pregnancy. Planned Parenthood v. Casey Raises the metaphysical question, is abortion still a fundamental right?; a state may regulate prior to viability as long as the regulation is not an undue burden on the right to abortion. 1st trimester no longer carved out as an area where the state cannot regulate period. After viability, the state may proscribe all abortions not needed to protect the health or life of the mother (not a change from Roe.) Moore v. City of East Cleveland Fundamental right to dene who is in your family. Family is an "extended" rather than "nuclear" one. Fundamental right of family relations. Lawrence v. Texas What is it that is exactly protected? Never really comes out and says. *Liberty includes the ability to fall in love and express that love in intimate terms. The intimate expression of love. Narrow: Right to private homosexual conduct between two consenting adults Broad: Expansive language suggests court is willing to recognize a fairly broad autonomy/interest in private consensual adult sexual conduct generally What is not protected Minors Persons who might be injured or coerced Public conduct or prostitution 5.)Natural law last gasp argument. our creator gave us the right. Come to a conclusion, give args for and against. If you nd a right, move on to strict scrutiny. If not, usually you defer to the will of the majority as expressed thru the state or fed. law (not always, as we'll see in a week) Step 4.)What standard of review Assuming there is a fundamental right, apply strict scrutiny Strict scrutiny tells us when gov't can infringe on a fundamental right. Is the law narrowly tailored to achieve a compelling government purpose? *Government must have a compelling interest. Law must be narrowly tailored to advance that interest. Two Questions a.)Is there a compelling gov't interest?

Troxel--Unless parent is unt, state has no compelling reason to get involved. Moore--Not narrowly tailored. How is it that dening a family accomplishes the goals of reducing parking? Not a good t. b.)Is the law narrowly tailored? -overbroad? Applies to more people than is necessary to affect to accomplish the interest? ex: How is preventing the grandma -underbroad? Does not apply to people who are causing problems ex: the exclusion still permits cases where the things you're trying to combat are made worse. *Not deferential at all, you're really demanding. You better have a really good reason for doing it, and what you're doing better be almost completely designed to meet that goal. Abortion (Only instance where you have a fundamental right and you dont go to strict scrutiny): Undue Burden Test A state regulation will constitute an "undue burden" and will be invalid if the regulation "has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus." Under this standard, if state regulations merely "create a structural mechanism" by which the state may "express profound respect for the life of the unborn," and do not place a substantial obstacle in the woman's path, the regulations will be upheld." Similarly, the state may regulate to further the health or safety of the woman, as long as the regulation does not unduly burden the right to abortion. Right to Sexual Intimacy: Quasi-Fundamental right? Lawrence: If dealing w/a right to sexual intimacy, set out in a sentence or two that there's a tension, we don't exactly know the level of review. Not sure what standard. Both O'connor and Kennedy say apply a "rational review but in its more searching form." Standard rational review is just "give me your reason" Rational review in its more searching form requires a good reason. Because its morally wrong is not a sufcient reason. Not a Fundamental Right? Apply Rational Review Government must only have a legitimate purpose. Law must be rationally related to advance that purpose. a.)Is there a legitimate purpose? b.)Is the law rationally related? Equal Protection--Has the gov't behaved reasonably in setting up classications? The Equal Protection Clause of the 14th Amendment provides that "no State shall make or enforce any law which shall...deny to any person within its jurisdiction the equal protection of the laws." It also applies to the federal government through the Fifth Amendment by the process of 'reverse incorporation." EPC says "person." When it wants to, const. says "citizen." Person = everyone Spend most of the time arguing what standard of review applies. Suspect Classications Prong Step 1.)State Action Step 2.)Under Strauder, the rst thing an Equal Protection challenge must show is that the law classies, the classication has a discriminatory impact, and the classication has a discriminatory purpose. a.)Does the law classify people? Where does the law draw the line? b.)Does the law have a discriminatory impact on that group? One group is is burdened more heavily than others How to nd it Can be on the face of the law Facially neutral, but discriminatory effects from its administration. c.)Was the classication motivated by a discriminatory purpose? Facially discriminatory Under Strauder, a law which identies a classicatory basis is facially discriminatory, thus demonstrating legislative purpose to discriminate. Facially neutral, but discriminatory as applied/administered Under Yick Wo, a facially neutral law may be purposely discriminatory if P can establish that it was discriminatorily enforced. ex: The Board gives permits to 80 white applicants, but to none of nearly 200 Chinese applicants.; do you ask everyone for i.d., or just a minority group? Circumstantial evidence can always be used to show discriminatory purpose. *Watch out for this. effect vs. purpose; can't apply strict scrutiny unless there is purpose. *If discriminatory purpose is not shown--->Rational review *If discriminatory purpose is shown--->See if its a suspect or semi-suspect class What standard of review will be applied? Suspect Classes-->Heightened Scrutiny Race

Text: Ever since the Court in Brown adopted Justice Harlan's view in Plessy v. Ferguson, the Court has acknowledged the EPC embodies two principles: 1.)the constitution is color-blind, and 2.)minorities should not be subordinated. Thus, race is a suspect class, and intentional discrimination based race must be strictly scrutinized. Under Richmond v. Croson, Race-based classication will receive the same strict scrutiny whether the classication is supposedly "benign" (Afrmative-action) or invidious. Strict scrutiny mandates that 1.)the government have a compelling interest, and 2.) the Law is narrowly tailored to achieve that interest. 1.)Compelling interest Afrmative action--The only compelling purposes Mere recitation of a "benign" purpose for a racial classication is entitled to little or no weight. Richmond v. Croson: Remedy past discrimination. (Must show w/ clear evidence) Grutter v. Bollinger: Diversity in state law school (Not undergrad (struck down in companion case)) Seattle School: 4 justices say diversity outside of law school is not a compelling interest 4 say otherwise Kennedy: diversity might be a compelling purpose, but only if they rst try other ways to get a diverse student body. iF they had, and this was the only way, achievement of diversity in and of itself is a compelling interest. So, 1 vote away. 2.)Narrowly tailored/necessary to achieve that interest Conclude that the standard isn't satised b/c there is some alternative non-race-conscience means to handle the problem, so its not necessary. Less discriminatory alternatives must always be used if they are available to attain the goal. Overbroad: Law applies to people not necessary in order for the government to achieve its interest. -Unfair to those who are unnecessarily regulated. Underbroad: Law does not apply to individuals who are similar to those to whom the law applies. -Raises the concern that gov't has enacted a law that targets a politically powerless group or exempts those with more political clout. Afrmative Action Richmond v. Croson: Quota is not narrowly tailored; A more exible means will do just as well Gender Under Craig v. Boren, Gender-based classications are "semi-suspect," and receive intermediate review Intermediate review requires 1.)the gov't has an important objective, 2.)the law is substantially related to achieving that objective. 1.)Important objective Virginia: Objective must be actual state objective, not rationalizations for actions in fact differently grounded in response to litigation. Michael M: Court upheld prevention of illegitimate teenage pregnancies as the objective when it was arguably originally based on a gender stereotype (wouldn't be actual) 2.)Substantially related to achieving that interest Men and Women must be differently situated in a way relevant to the statute's purpose. Most obvious difference are biological. Craig: Pretty strict Court didn't think the statistics were sufcient. 2% of males and .18% of females b/w ages 18-20 were arrested for drunk driving. Thus, the t b/w the law and the important objective of trafc safety was simply too tenuous Virginia: Can't rely on overbroad generalizations about the differences b/w men and women. -Point is that Court varies in how strict it applies intermediate review. Are there other suspect clasisications? Although theoretically other classications could be added, Cleburn indicates that the Court is not in the business of adding suspect classes. Precedent Justice Stone's footnote in Caroline Products identied discrimination against Discrete and insular minorities as worthy of heightened review. (never been ofcially embraced) Discrete and insular minorities 1.)Share a common characteristic that is irrelevant for government purposes. 2.)Faced a history of predjudice in our society. Level I predudice: discrimination; acts directed towards harming this group. Level II: Stereotyping. Suggesting perjorative common traits. 3.)Politically powerless -These can be disputed; argument would be analogizing the potential classication to race or gender on these points. Homosexuals? Rational Review With Bite A way for the court to help groups who don't fall within suspects classications. Court is moved by its gestalt to strike down laws motivated by animus toward a politically unpopular group, even though technically only rational review is applied. Court doesn't admit it.

A way for the court to help groups who don't fall within suspects classications. Court is moved by its gestalt to strike down laws motivated by animus toward a politically unpopular group, even though technically only rational review is applied. Court doesn't admit it. Does the classication involve a politically unpopular trait or afliation? Key here is that, b/c of the group's characteristics (use Caroline test to argue), it probably should be a suspect class, but it cant. Cleburne: Mentally retarded Romer v. Evans: homosexuals Rational review 1.)legitimate government objective Court looks at the "real" objective, when traditional rational review requires only a hypothetical one. (the gestalt). Romer: A bare desire to harm a politically unpopular group cannot constitute a legitimate government interest. Cleburne: Denial of permit seemed to "rest on an irrational predjudice against the mentally retarded. 2.)the law must have some rational relation to advancing that objective The Court may assume a legitimate gov't objective, but require a tighter means-end t than is usually required by rational review. Romer: The amendment was overinclusive; too broad. Non-Suspect Classes-->Rational Review There must be 1.)a legitimate government interest, and 2.)the law must have some rational relation to advancing that interest. Rodriguez: Socioeconomic class is not a suspect classication Fundamental Rights Prong As recognized in Skinner, A classication that burdens a fundamental right will be subjected to strict scrutiny regardless of the characteristics of the people who are burdened. Not S.S. b/c of the classication itself, but b/c the classication results in infringement of a fundamental right for one group but not another. O.K. to infringe a fundamental interest, but you have to do it for everybody. Problem: no oor. Is a fundamental interest implicated? Rodriguez: Whether a right is "fundamental" is determined by whether it is expressly or impliedly guaranteed by the Constitution, not by its "societal importance." Text Bill of rights, elsewhere in const. Substantive Due Process Rights Fundamental under EPC-slightly lower bar. Skinner: Marriage and procreation are fundamental to the existence of the race. Rodriguez: Education is not a fundamental right. Zablocki: Plyler Court is not in the business of adding fundamental interests. b/c it lost interest. If No--->Apply one of the other tests What groups does the law classify? -Doesn't have an effect, but helps for analyzing. ex: Zablocki: Indigent v. everyone else Does the law/action discriminate with respect to that right? (What group bears the brunt?) ex: Zablocki: Its the indigent who can't pay and therefore can't get married. If yes--->Apply strict scrutiny Under Zablocki, when a statutory classication signicantly interferes with the exercise of a fundamental right, it cannot be upheld unless it is justied by a compelling state interest and is narrowly tailored to effectuate only those interests. Traditional Rational review--There must be 1.)a legitimate government interest, and 2.)the law must have some rational relation to advancing that interest. Plain vanilla most deferential standard of review We're a court. Our job is not to legislate. How deferential? In theory, very deferential. What's the opposite of legitimate. (Arbitrary, delusional) As long as its not that, state's ok. (State passes a law protecting us from robots.) Just has to be grounded in reality. Anything that's not arbitrary is probably rational in some sense. Not arbitrary if there is a relevant factual difference b/w Only weeds out truly irrational and truly arbitrary. Enforcing the 14th Amendment 5 of the 14th Amendment gives Congress the "power to enforce . . . the provisions" of the 14th Amendment. Under Boerne, Congress cannot dene the 14th, only enforce it. Enforcing is remedying or preventing a violation. Congress cannot dene the 14th, only enforce it. Enforcing is remedying or preventing a violation. **How do you know the difference b/w dening vs. enforcing. Test: there must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end. 1.)Congruence: must be a signicant enough amount of evidence that congress is justied in haveing to remedy something. Severity

1.)Congruence: must be a signicant enough amount of evidence that congress is justied in haveing to remedy something. Severity Alabama: Amount of evidence required depends on what level of review the conduct adressed by the legislation would receive. Lower standard of review=more evidence required. Higher standard=less evidence Tennessee v. Lane: Although handicaps arent a suspect class, section of the ADA was upheld. Why: Access to justice again! P's were a handicapped in court. These are things the court doesn't say. What do the outliers have in common. This. 2.)Proportionality: widespread enought a problem that congress can make national rules. Govt's args in this situation Congress, not the Court, has the best inst. capacity to investigate the nationwide situation. Democracy arg: more people get a say in what the const. means. Remember, Exception for Congress creating a right for ind. to sue a state when exercising its power to enforce the 14th. Doesn't violate the 11th.

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