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. 3 Declaration of Independence ...................................................................................................................... 3 Articles of Confederation ........................................................................................................................... 3 Philadelphia Convention ............................................................................................................................ 3 Bill of Rights ............................................................................................................................................. 4 [JUDICIAL REVIEW] .................................................................................................................................... 5 LEGITIMACY .............................................................................................................................................. 5 CRITICISMS ................................................................................................................................................ 6 CONGRESSIONAL CONTROL ............................................................................................................... 7 JURISDICTION STRIPPING ....................................................................................................................... 7 [FEDERAL JURISDICTION] ........................................................................................................................ 9 SUPREME CORUT REVIEW OF STATE COURTS ................................................................................... 9 Adequate & Independent State Grounds................................................................................................... 10 JUSTICIABILITY ....................................................................................................................................... 11 Policy Justifications ................................................................................................................................. 11 Doctrine Elements ................................................................................................................................... 11 Advisory Opinions ................................................................................................................................... 12 TYPES OF STANDING .............................................................................................................................. 12 Third Party Standing ................................................................................................................................ 14 Tax Payer & Citizenship Standing ........................................................................................................... 14 STANDING GENEARLLY ........................................................................................................................ 16 Mootness ................................................................................................................................................. 16 Ripeness .................................................................................................................................................. 17 Political Question .................................................................................................................................... 18 [THE SCOPE OF FEDERAL / NATIONAL POWER] .............................................................................. 19 Government Regulation ............................................................................................................................... 20 Dormant Commerce Clause ......................................................................................................................... 21 Exclusivity vs. Concurrency .................................................................................................................... 21 Constitutional vs. Statutory Preemption ................................................................................................... 21 COMMERCE CLAUSE .............................................................................................................................. 22 Commerce Categories .............................................................................................................................. 23 Historical Development ........................................................................................................................... 23 Commerce Clause Table .......................................................................................................................... 27 GENERAL FEDERAL POWERS ............................................................................................................... 27 The Taxing Power ................................................................................................................................... 27 The Spending Power ................................................................................................................................ 28 The War Powers ...................................................................................................................................... 30 The Treaty Powers ................................................................................................................................... 31 The Property Power ................................................................................................................................. 32 [STATE SOVEREIGNTY & FEDERAL REGULATION] ........................................................................ 32 STATE IMMUNITY ................................................................................................................................... 32 Fed / State Regulation Table .................................................................................................................... 35 Eleventh Amendment .............................................................................................................................. 36 [SCOPE OF STATE POWER] ..................................................................................................................... 38 PREEMPTION DOCTRINE ....................................................................................................................... 39 Preemption Examples .............................................................................................................................. 39 [SEPERATION OF POWERS] .................................................................................................................... 40 1
Con Law I Outline Amar Spring 2010 Non-Delegation Doctrine ............................................................................................................................. 43 PRESIDENTS NATIONAL POLICY POWER .......................................................................................... 40 General Powers........................................................................................................................................ 40 International Relations ............................................................................................................................. 41 War & National Defense .......................................................................................................................... 42 Line Item Veto......................................................................................................................................... 43 LEGISLATIVE POWER VS. PRESIDENTIAL POWER .......................................................................... 44 The Legislative Veto................................................................................................................................ 44 Appointment, Discharge & Supervision ................................................................................................... 45 Independent Council Act ......................................................................................................................... 45 PRESIDENTIAL IMMUNITIES ................................................................................................................. 46 IMPEACHMENT ........................................................................................................................................ 48 High Crimes & Misdemeanors ................................................................................................................. 48 Conservatism ........................................................................................................................................... 48 Past Examples.......................................................................................................................................... 48 CONGRESS POWER / Sec 5, 14TH AMENDMENT .............................................................................. 66 State Immunity Overview ........................................................................................................................ 66 Congruence & Proportionality ................................................................................................................. 68 New Federalism ....................................................................................................................................... 70 [INCORPORATION DOCTRINE] .............................................................................................................. 50 Bill of Rights ............................................................................................................................................... 50 Judicial Resistance....................................................................................................................................... 50 JUDICIAL APPROACHES ......................................................................................................................... 52 No Incorporation ..................................................................................................................................... 52 Total Incorporation .................................................................................................................................. 52 Selective Incorporation ............................................................................................................................ 53
METHODOLOGY Must ask several questions when interpreting and analyzing the constitution and other relevant documents. WHAT does it mean? Deciding on the best meaning of the words used (ex: interpretation of the commerce clause) WHO decides what it means? Judicial Review (see Marbury) HOW do you use the necessary tools to answer the WHAT and HOW questions? Use constitutional interpretation tools to argue in favor of particular substantive parts of the constitution / methods of constitutional discourse. 1. Originalism Look to text itself / good starting point / only works for concrete provisions (35 years old to be the President / two thirds majority vote requirements) 2. Original Intent Legislative history or situational factors behind particular section or words used / look to the substantive understanding of the people who ratified a provision / use dictionaries of the day, specific policy discussions, historical context (ex: 14th is about slavery) 3. Pragmatism Use common sense when evaluating the document (ex: constitution didnt give power to create the Air Force BUT its reasonable to do so) / fill the blanks with common sense 4. Past Precedent Can be judicial or otherwise / maintain stare decisis and judicial uniformity (ex: Blakey) 5. Structural No clause or article is invoked BUT a value that runs through the document may be at issue (ex: privacy rights OR presidential impeachment and chief justice oversight, not VP) CONSTITUTIONAL HISTORY Declaration of Independence 1776 13 colonies revolt and declare their independence from Great Britain / tired of over taxation without representation and enslavement Philosophical Implications - government is not ordained by God / no more King - God endows PEOPLE with individual sovereignty (popular sovereignty) and those PEOPLE then establish ordered government / sovereignty from the bottom up (compare with GB top down) - Which people? Sovereignty applied to the people of the INDIVIDUAL states, not the people of the whole states collectively (not truly united yet) Articles of Confederation Problematic for several reasons: weak centralized government / no power to tax / no meaningful executive branch / couldnt raise troops effectively 1776 1787 it becomes clear that the states need a new framework of government in order to secure their safety militarily and economically Philadelphia Convention 1787 originally established to revise the articles of confederation (legality question) but it ended up creating an entirely different system of government / must be ratified by the people of each state / establishes the electoral college / sovereignty transformed from the people of each state to the United States collectively / strong executive / separation of powers Fundamental Dilemma
LEGITIMACY It is emphatically the province of the judiciary to determine the meaning of the laws. The Supreme Court is therefore able to review the constitutionality of all acts from Congress. They have the final word. Marbury v. Madison (1803, 25) FACTS: President Adams commissions Marbury as a justice of the peace / Jefferson (new pres) repeals a law establishing the circuit court Marbury was affiliated with / Marbury sues Madison (Jeffersons secretary of state) seeking a writ of mandate to compel Madison to deliver his commission / Marbury goes right to the Supreme Court ISSUE: Section of the Judiciary Act which seeks to give the Supreme Court ORIGINAL JX, in addition to its APPELLATE JX HOLDING: 13 of 1789 Judiciary Act (which gave SC authority to issue writs of mandamus) was void as unconstitutional / "Congress cant add to the original jurisdiction of the Supreme Court, beyond that which the Constitution originally gives it" Issue #1: Does Marbury have a right to his commission? o Held: yes Marbury has right to commission b/c signed and sealed Issue #2: If so, does the law afford Marbury a remedy? o Held: yes where theres a right, theres a remedy o Some decisions where pres only has to answer to voters (veto) o But once theres a legal right, pres must answer to courts o This dicta has not been followed Issue #3: If so, can the mandamus be issued by the SC? o Held No, SCOTUS doesnt issue mandamus here but preserves the power o Ct can issue secretary to do something: important o SCOTUS has no jxn conflict b/t Art III & 13 of 1789 Judiciary Act Why is Mandamus appropriate for the Supreme Court? (1) Is there a statute authorizing it? o If not, SC cant issue it (would have avoided problem) o But Marshall stays there is a statute: the Judiciary Act (2) Does the statute really try to give the SC jxn? o Marshall reads statute as Cong attempting to give jxn to SC (later found unconstitutional) o Amar other readings would have avoided this conclusion (3) If the statute is valid, does it conflict with Art III? o Art III, 2 identifies instances of ORIGINAL JX and these are exhaustive Reading provision as exhaustive isnt absolutely necessary but Marshall says its the only way to read the phrase o Marshall thus finds a CONFLICT w/ Art III & the Judiciary Act How does Marshall apply the Supremacy Clause? - Article VI Sec II Supremacy Clause - State vs. Federal Law Federal law ALWAYS wins when a conflict arises - Federal Law vs. Constitution Supremacy clause only states that the Constitution laws and treaties of the United States are supreme. Marshall argues that since the Constitution is mentioned first, it is
SCOTUS REVIEW OF STATE COURTS The Constitution sets out the types of cases the Supreme Court can review from the State courts. The most relevant section is Article III & the Judiciary Act of 1789. Article III US Constitution Federal judicial power extends to cases arising under this Constitution, the laws of the US, and Treaties made... 25 of Judiciary Act (45) Allows for Appellate JX in the SC of the highest judgment of a State court. One of 3 circumstances must exist for this to apply: (1) Where STATE ct strikes down FEDERAL law as unconstitutional Drawn into question the validity of fed treaty or statute...and the decision was against the validity (2) Where STATE ct upholds STATE law against a FEDERAL law Drawn into question the validity of state treaty or statute...and the decision is in favor of its validity This is what happened in Martin (3) When person is asserting FEDERAL right under STATE law and loses When construction/meaning of any fed provision is drawn into question and the person asserting the fed right loses This could be the case in Martin Martin v. Hunters Lessee (1816, 45) FACTS: Hunter claims property by VA forfeiture law / Martin claims property by federal law (peace treaty) / Martin loses at first but then SC reverses / VA doesnt listen (claims the SC cant control state SC decisions Sec. 25 appellate review is unconstitutional) to SC ruling and the case goes back to the SC. VA court did not think there was a conflict between the peace treaty and the VA statute, and that they get the final word on the meaning of the treaty. ISSUE: Whether 25 of Judiciary Act of 1789 is constitutional / main issue concerns the supremacy of federal law & Supreme Court determinations HOLDING: 25 of Judiciary Act of 1789 is constitutional / the appellate power of the Supreme Court does extend to cases arising in state courts (in this case the VA SC) Why SCOTUS can review state court decisions: Parody Argument (structural) If federal courts can review actions of State Legislators and executives, why cant they do the same with State courts? Separation of Powers if all branches are equal the analysis should stay the same Uniformity Argument (structural) SC must be able to review state decisions for uniformity purposes keep the circuit courts in line with one another (note: not always the case; SC doesnt take up every conflict case)
Why did 25 of the Judiciary Act apply in this case? - Questioning the validity of a statute is in question (N/A here) - Questioning the validity of a state statute on the ground that it conflicts with the constitution and the state law wins (applies) - When you assert a right under the US Const or treaties or other federal law and that right is rejected (applies) RESULT: Both categories 2 and 3 apply in this case, NOT category 1 Why didnt Story come down more harshly on VA when they took the case the second time? Story wanted to stay politically neutral / decision relates to federal power in a broad sense, it wasnt directed toward the VA SC / Story assumes the VA court will fall in line, no need to be overly harsh Adequate & Independent State Grounds Doctrine concerns instances where STATE courts deal with interpreting FEDERAL laws Federal law issues resolved by State courts will NOT be reviewed by federal courts if the State court judgment rests on an Adequate and Independent State grounds. Adequacy if the procedural decision by a State court not to decide a federal issues is Adequate, the Supreme Court cant review the State court decision Independence a decision invalidating both State and Federal constitutional grounds cant be reviewed by the Supreme Court even if a bulk of the decision concerned the US Constitution. Michigan v. Long (1983, 52) FACTS: D arrested under a MI drug law / D wanted to exclude evidence under the 4th Amendment AND a MI constitutional provision / MI SC held that there was an illegal search and the evidence was gathered in a way that violated BOTH the US and MI constitutions / MI SC didnt make it clear whether they were relying on STATE or FEDERAL grounds in making their final decision RULE: In cases of ambiguity, SCOTUS will default (presumption) in favor of federal review UNLESS the state court expressly states it is relying on adequate and independent state law. [OConnor] What was the basis for the default rule? - Avoid advisory opinions (where outcome wouldnt change) - Respect the independence of State Courts (they have an opportunity to say what they are doing) What were the problems with the default rule? - Doesnt follow the rationale upon which it is based - AMAR (1) The presumption should disfavor federal review if SCOTUS really wanted to respect the independence of state court decisions (2) It is unclear what constitutes fairly and primarily / no bright line as to when a state court fairly and primarily relies on state law rather than federal law
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Were there any political aspects of the case? - The MI SC was trying to stay politically neutral (do not have to own the result) when they ambiguously referenced both state and federal laws This way the MI Supreme Court can blame the outcome on SCOTUS instead of taking the blame themselves after the case is over and done with MI SC thinking about elections / voters What if the State Court has rejected Long's interpretation of the 4th Amendment (upheld the search)? - Then SCOTUS COULD EASILY have taken the case / SCOTUS could have changed the outcome of the case by granting cert. / AND the D would have implicated a federal law which was denied JUSTICIABILITY The idea that a case is only properly bringable / hearable in federal court if certain criteria are met. Justiciability is the ability of a federal court to entertain the merits of a lawsuit in the first place. Policy Justifications - Article III limits the Federal Courts to only those cases presenting CASES & CONTROVERSARIES - Separation of Powers demands that the courts dont intrude on other branches and become legislatures - the Adversarial System demands that there be real clashes in opinions among interested parties that are actually affected - the courts dont want to be bogged down with sham disputes AMAR Criticisms - The doctrine is not rooted in any real authority (prudential limitations and not constitutional limitations). - Every time the court strikes a statue down as unconstitutional it steps on the other branch's toes - Public interest groups with funding/interest often dont have standing, while people with 1 penny claims and unskilled lawyers have standing. Doctrine Elements (1) Standing parties must show (a) injury in fact (b) but for causation and (redressability) (2) Ripeness unripe cases are not true Cases and Controversies (C&C) (3) Mootness Art III requires a lack of mootness for C&C (note: $ cases are never moot) (4) Political Question There are some issues courts will just leave to congress to decide
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- allows the city of LA to just buy their way around the constitution
DISSENT: Effectively prevents ever getting an injunction against LAPDs potentially unconst. practice P has a damages claim which is always judiciable!! *Court is basically setting up a toll system for violating the Constitution (you can break the law, but you just have to pay when you do buy your way out). *An injunction would make non-compliance contempt of court making the consequences a lot greater than damages Other ripeness cases Younger v. Harris Poe v. Ullman Mitchell Adler Syndicalism law that prevents communism is not ripe if you haven't been prosecuted [doesn't even matter that their friend is being prosecuted] Doctor cannot challenge anti-birth control law because it is never enforced. [Griswald] Law against political activity. Plaintiffs that want to engage in political activity claim is not ripe, but if one is being discharged because of the political activity that claim is ripe. Law requiring teachers who are part of subversive groups to be discharged is ripe Adler is a facial challenge--law is unconstitutional. Mitchell is an as applied challenge--law cannot be applied to you as consistent to constitution Perhaps more concreteness is necessary when challenging it as applied to you.
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AMAR: courts should stay out of picking the President because the President picks justices the case could have easily been nonjusticiable under the political question doctrine / Amar says this is why no justices stepped down during Bushs 1st term because of taint.
Enumerated powers Federal government can only exercise powers that are given to it, and none that are not given to it 10th AMENDMENT The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. Powers not given to federal government are reserved to the states and the people respectively Major clashes occur when the federal government passes laws which affect how state governments function. There are several important questions that need to be asked when these situations occur. Doctrinal Questions 1. Is Congress Acting Within its Enumerated Authority? - federal gov is one of limited enumerated powers (see 10th amend) 2. Are States Limited When Congress Hasnt Acted But Could? - see preemption doctrine / certain realms of regulation are reserved to congress, not states 3. What Happens When One Level of Government Regulates Another? - minimum wage laws, state regulations of federal business 4. Does the Government Enjoy Immunities From Private Suits? - see doctrine of sovereign immunity
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Con Law I Outline Amar Spring 2010 The Congress shall have power to . . . regulate commerce with foreign nations, and among the several states
What is the commerce clause? Congress has power to regulate commerce among the several states according to Article I *Basis for a huge number of federal laws Commerce Categories [from Lopez] 1. Channels Roadways, air, maritime are all channels of commerce 2. Persons/Things [instrumentalities of interstate commerce] Goods and people crossing state lines 3. Activities [activities that substantially affect or relate to interstate commerce] The sale of firearms near schools (Lopez), gender discrimination (Morrison) Historical Developments 1800 1875 - Majority of case law is around this time period - SCOTUS goes from an exclusivity model to a concurrency model 1875 New Deal (1937ish) - SCOTUS develops ungenerous attitude toward federal power [vast restriction of federal power] - SCOTUS uses binary oppositions [this analysis ends during New Deal era] Manufacture vs. Distribution distribution is commerce but manufacture is local Regulation vs. Prohibition you cant do something vs. you have to do it a certain way Product vs. Process [bad food is bad product vs. child labor is just bad process] - States have lots of power and the economy starts to fail (depression) / need federal regulation - See Schechter Poultry (below) for pre-New Deal, strict commerce clause philosophy New Deal Era (1937-1995) - SCOTUS gives broad power to Congress to regulate commerce If something crosses state lines it can be regulated no matter what - Effects test was relaxed Could be attenuated (farther removed) than before for Congressional regulation to be permissible - Aggregate effects are allowed as a basis for Congressional regulation [Effects Test] Small effects of a law or policy in aggregated affect national commerce (Wickard; Heart of Atlanta; Katzenbach) New Federalism (1995-today) - New test: need to ask if it is an economic activity being regulated in order to employ aggregation / otherwise the effects of a policy cannot be aggregated (restriction on fed power) - Morrison, Lopez, Raich fall under this era of testing (Congress cannot regulate; restricts pwr.) Schechter Poultry v. US (1935) FACTS: National Industrial Recovery Act of 1933 = min. wage; max. hours; unfair competition; union protection NIRA gave President/Executive unprecedented powers; company challenged constitutionality HELD: SCOTUS refuses to expand Presidents powers, despite Depression; rejects effects test NOT interstate b/c bought and sold mostly in intrastate Congress couldnt legislate, even if indirect effects were felt in intrastate commerce [STRICT COMMERCE CLAUSE APPROACH] Wickard v. Filburn (1942, 169)
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GENERAL FEDERAL POWERS The Taxing Power [Art. I, 8, Cl. 1] The Congress shall have power to lay and collect Taxes, Duties, Imposts and Excises . . . but all Duties, Imposts, and excises will be uniform throughout the United States The power to tax was one of the biggest problems with the Articles of Confederation. It is an inherently legislative power and courts demonstrate deference to congressional taxing. 16th Amendment = federal income tax power Uniformity Clause = federal taxes must be same anywhere in US (feds cant discriminate geographically) Sonzinsky v. US (1937, 193) [taxes as a regulatory tool] FACTS: sues government over the National Firearms Act which imposed a $200 tax on firearm dealers refused to pay the tax and argues Congress trying to regulate gun possession, not generate tax revenue HELD: SCOTUS upholds the tax b/c it was within the scope of congressional taxing power RULE: Congress can use tax to regulate as long as tax produces some meaningful revenue SCOTUS will not attempt to discern the hidden or secret motives of congressional taxation
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Supremacy Rules o Constitution prevails over fed statute (Marbury) o Federal statute prevails over state law (Martin v. Hunters Lessee) o Federal treaty prevails over state law (Hauenstein) o Executive agreements prevail over state law (Belmont; Pink) o Executive agreements fail when conflicted w/ fed statutes/treaties (even if executive agreement is later in time) What if federal statute conflicts with federal treaty? o The one later in time prevails o Same rule as resolving two conflicting statutes o Treaties can replace statutes even though House of Representatives is cut out of process NOTE: if conflict between a federal statute and a treaty, whichever was passed LAST prevails *Same result when there is a conflict between two treaties Types of international agreements o Treaties; (Hauenstein) o Executive agreements (Belmont; Pink) Missouri v. Holland (1920, 208) FACTS: Missouri wants to prevent the US game warden form enforcing the Migratory Bird Treaty w/ Canada Congress passed it once and a District Court struck it down as violative of federalism President takes the idea and gets it passed via his treaty power ISSUE: How can Congress be said to violate the Constitution when it passes the bird regulation BUT when the president does it things are OK? HELD: SCOTUS upholds the federal treaty Federal treaty power is broader than Congress power to make federal statutes What is the difference between treaties and statutes? Statutes must be in pursuance of the Constitution Treaties valid under the Supremacy Clause whenever made under the authority of the Constitution CONSTITUTION > TREATIES Are treaties inferior to the constitution? - YES, although treaties may trump federal statues, they are not exceptions to the Constitution Reid v. Covert FACTS: president makes an executive agreement with Britain allowing the court marshal of non-civilians (put US soldiers at risk abroad) HELD: Executive agreement (or treaty, if it had been) unconstitutionally violated individual 5th amendment rights under the constitution invalid
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Previous section dealt with federalism issues / the relationship between the federal government and the state government with respect to regulations of the PEOPLE. This section concerns the federal government regulation STATE government. STATE IMMUNITY Main issue is whether states should be exempt from federal regulation / until 1976 constitutional attacks on federal regulations were rejected (court favored fed regulation over states objections) / National League of Cities was the first case to overturn a federal statute based on state immunity grounds National League of Cities v. Usery (1976, 222) FACTS: Federal minimum wage law imposed on state and local government employees Federal regulation of state government employees HELD: SCOTUS invalidated federal regulation [overruled Wirtz (and previous cases)]
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What is the difference between commandeering (bad) and bribing or pre-empting (ok)? - Example of a new federalism situation - General policy is to leave the state laboratories alone so forcing them to act a certain way is the most evil of the three options *Amar: but the preemption option (by supremacy power) doesnt leave states alone at all - Commandeering is so harsh that it prevents states from forming any form of an identity at all NY VERSUS Garcia *NY: law doesnt regulate anything but state governments; targeted law [TOO SPECIFIC] *Garcia: law is general and regulates all employers Printz v. US (1997, 246) FACTS: Congress passed the Brady Gun Control Act to require states perform background checks to buy guns Act forced state and local law enforcement personnel to do the background checks States objected claiming the fed govt couldnt force them do to the background checks HELD: The background check portion of the Act was unconstitutional
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ELEVENTH AMENDMENT The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State. The 11th Amendment immunizes states from lawsuits initiated by private citizens / it is one of the ONLY amendments Congress passed to directly REVERSE a SCOTUS decision (another ex: Dred Scott free blacks were not considered citizens by the Supreme Court so Congress passed the citizenship clause) *Clarifies Art. III, 2, Cl. 1 [re SCOTUS original jurisdiction] Possible 11th Amendment Situations (1) Individuals cant sue a state itself (but they can sue state officials) (2) Individuals cant receive backward-looking relief (only prospective/future compliance with fed law) (3) Individuals cant sue state agencies (but they can always sue local county agencies / officials) (4) Federal and state government has immunity from suits Can be WAIVED by federal statute that allows private individual to sue states for $$ damages [e.g., Fed. Tort Claims Act; 1983; Family & Med. Leave Act] (5) Only private entities are barred from suing states (but federal government can always sue states) Chisholm v. Georgia (1793, 257) FACTS: South Carolina citizen sues the state of Georgia in a breach of contract re Revolutionary War debts files case in SCOTUS b/c Art III provides for original jx when the state is a party to a case * If case was today, would apply STATE law under Erie [under GA law, GA would win] HOLDING IS PROBLEMATIC: SCOTUS applied FEDERAL law rather than the STATE law diversity action (SC citizen vs. state of GA = SC citizen wins under federal CL) [Pre-Erie] RULE: Chisholm leads to passage of the 11th Amendment What does the 11th Amendment do? - Removes the basis on which this case got into federal jurisdiction in the first place: suits between a STATE and a CITIZEN from ANOTHER STATE NOTE: as written the 11th Amendment says nothing about when someone is in federal court suing a state (not on diversity) BUT on a federal question [see Hans v. Louisana]
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ISSUE: Can federal courts award injunctions against state officials on the basis of state laws? HELD: SCOTUS applies 11th Amendment and does NOT extend Ex Parte Young fiction to this case [ loses and the state is not enjoined]; [11th bars relief against state officers on basis of state law] Why doesnt Ex Parte Young apply? - Policy behind Young is about protecting FEDERAL laws *Doesnt apply here b/c the only issue in the federal court is the STATE law - SCOTUS doesnt want to intrude into state territory and tell them how to enforce their own laws *SCOTUS protects state sovereign immunity Seminole Tribe of Florida v. Florida (1996, 263) FACTS: Federal law authorized tribe to sue state in federal court (under Commerce Clause) to compel performance of negotiating in good faith brings suit under this federal provision; FL objects claiming sovereign immunity HELD: 11th Amendment prevents Congress from making a state suable in federal court here [Congress didnt have the power to strip FLs sovereign immunity in this instance] RULE: Congress cant strip states of their sovereign immunity under the guise of the Commerce Clause When CAN congress strip states of their immunity? - Look to the chain of passage of the following things: [reverse chronological order] Section V (14th Amendment) 11th Amendment Commerce Clause (etc) The only basis for doing so is under Section V powers (equal protection / due process) because it was passed before the 11th Amend, therefore $ possible - ASK: was the federal law passed under 5 of 14th Amendment? YES state immunity may be compromised in favor of $ damages & injunctions NO state sovereign immunity may only be compromised in favor of injunctions Garrett (2001, 258) FACTS: Nurse sues Alabama hospital claiming violations under the ADA for $ and injunction HELD: injunction is OK (see Young) BUT the damages are NOT OK [ADA was not passed under Section V and therefore the 11th Amendment prevails] AMAR: Although states are obligated to follow their own laws (see Garcia) the ONLY way to enforce them is through forward-looking prospective relief if the federal law did not come by way of Section V of the 14th Amendment TYPES OF IMMUNITIES *Official immunity: suing state official can get at state treasury $, but not personal $ of state official *Qualified immunity: Under 1983, govt officials are shielded from liability for violating fed. constitutional rights * must show (1) clear const. norm violated; and (2) reasonable official wouldnt have done harm *Absolute immunity: Cannot sue certain officials in their official capacity (e.g., President; Judges; Legislators) *Only applies to money damages (not injunctions against officials; see Linda R.S. v. Richard D.) [SCOPE OF STATE POWER]
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PRESIDENTS NATIONAL POLICY POWER The president has LOTS of power under the constitution BUT the exercise of some powers encroach upon powers of other branches of government / typical conflicts are between the president and congress General Presidential Powers Youngstown Sheet and Tube v. Sawyer (1952, 393) [STEEL SEIZURE CASE] FACTS: Truman seizes US steel plants and orders them to operate during of a strike due to Korean War and the national need for steel products Truman cites national defense as his justification HELD: the presidents seizure violated the separation of powers doctrine [Order wasnt authorized by congress (horizontal) and infringed on states (vertical)] RULE: There are NO inherent domestic executive powers President still has broad powers but they are limited at some point
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Hamdi v. Rumsfeld [OCONNOR] FACTS: President claims military tribunals involving no due process fall w/in military force powers that Congress gave him after 9/11 HOLDING: President didnt have power under the congressional military force authorization Probably a #2 or #3 case b/c Congress was pretty opposed to the military Tribunals RULE: How much process is due [Due Process] requires case-by-case weighing of PRIVATE interests (Hamdi) against the GOVERNMENTAL interests (Military Tribunals) ASK: 1] How much does the individual have at stake? 2] How much would more procedure enhance determination? How much are we getting by adding another layer of process? 3] How much does additional procedure cost?
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PRESIDENT ARGUES: (1) Justiciability President claims ct has no jx to decide the matter b/c it involves dispute exclusively between two executive authorities (intrabranch dispute) and therefore should not be subject to judicial resolution (2) Presidents staff must be free to discuss things with him without the fear that what they say will be subpoenaed at a later time MAJORITY response to (1): Doctrine of separation of powers does not preclude judicial review of executive claim of privilege MAJORITY response to (2): SCOTUS acknowledges presumptive privilege of confidentiality of presidential communications BUT is not convinced that advisors will not be candid b/c the ct will occasionally subpoena conversations for criminal prosecutions RELIANCE on Burr: (Amar claims to be illogical) SCOTUS relies on Burr to justify holding that Nixon doesnt get executive privilege *Burr: FACTS: Burr is Defendant and needs documents from President Jefferson to defend himself HOLDING: SCOTUS makes Johnson turn the documents over / the president is not above the law AMAR: in Burr it was the DEFENDANT saying he needed the papers to defend himself In Nixon, the president had the option to not prosecute himself so it is NOT the same *Nixon turns Burr on its head
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Clinton v. Jones (1997, 457) FACTS: Jones sues Clinton after he becomes president for sexual harassment done while he was gov. of AR Jones sues just before SoL ran Could have been thrown out based on latches: if you unreasonably delay in bringing suit and other side relies detrimentally then your claim is barred By waiting until after he becomes president Jones drastically increased the cost of litigation President claims immunity from prosecution while he is sitting in office HOLDING: President does NOT receive immunity from this lawsuit just because he is in office RULE: Presidential immunity DOES NOT apply to civil damages arising out of unofficial events occurring prior to the assumption of office MAJORITY [Stevens] Civil suit where immunity was granted Nixon v. Fitzgerald *Immunity here is more narrow b/c Nixon was acting w/n his capacity as president a. AMAR: in a sense, immunity Clinton seeks is even more narrow b/c he is only asking for case to be stayed, not that he is immune from liability CLINTONs argument: forcing president to deal w/ proceedings is unconstitutional b/c it would impair the ability of the Executive to perform its constitutionally mandated functions STEVENS RESPONSE: Fact that such litigation would burden the presidents schedule is not a significant enough burden to establish violation of Constitution CONCURRENCE [Breyer] Agrees president is not above the law BUT believes stay of prosecution should be sustained until after presidential term for policy reasons
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Con Law I Outline Amar Spring 2010 PRESIDENTIAL SELECTION [Electoral College vs. National Popular Vote (NPV]
i. Complicated voting process state-by-state for selecting electors 3. This group of electors consists of 538 persons a. Number of representatives of each state plus 2 (535) plus DC which is treated like a state (538) ii. Why dont we have a NPV? 4. Rejection of parliamentarianism a. Framers did not want to give selection of the President to Congress (unlike Parliamentary system) b. Wanted the Executive to be able to stand up to/counteract legislature 5. Lack of communication and transportation btw states a. Awareness in 1700s was locally restricted b. The logistical wherewithal/electoral infrastructure to implement NPV was nonexistent c. Changed by 1800: Political parties formed that serve as a surrogate (Constitution doesnt really take a stance on parties) 6. Slavery a. NPV would have hurt southern states b. Formula for states representation in electoral college is based on number of house members and southern states received house member representation based on 3/5 compromise for slaves even though they dont vote c. NPV would have incentivized states to maximize regional clout by allowing groups like slaves and women to vote 7. Electoral college thought to help small states a. Would not have agreed to join NPV because their voices would have been drowned out by bigger states b. Senators plus two regardless of size c. counterargument: winner-takes-all model adopted by almost all states has hurt small states and favors large states and especially swing states d. Swing states w/ sizable electoral representation where the mean vote matters iii. Reasons to keep electoral college 8. Protect small states a. Rebuttal: small states dont usually generate presidential candidates 9. National popular vote would allow 3rd party candidates to win w/ small percentage of overall vote than if electoral college existed a. Rebuttal: governors in all states are elected directly (could just use run-offs btw candidates) 10. Best argument for keeping it: cant have NPV scheme unless all states are administering elections the same way a. Would require national administration of presidential elections Rebuttal: dont need all states to enact it, only 11 biggest states to account for more than 50% of electoral college these states could enact national election w/o total national participation Bush v. Gore (2000) FACTS: 2nd time it had gone to SC / decision locked-in vote count HOLDING: Recount in FL violated Equal Protection Clause of 14th Amendment States can take back electoral system but as long as it is in place they must respect it CRITICISM 1. Political question: SC should have abstained from hearing the case 2. Line up: Political dispositions of majority: SC decided election based on 5-4 split decision which mirrored party alignment of 9 justices respectively 3. New law: SC is saying that letting counties use different rules for evaluating ballots means that people in different parts of the state are being treated differently
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[INCORPORATION DOCTRINE] Incorporation = application of Bill of Rights to the states Bill of Rights Originally written to ONLY target the federal government; did NOT apply to the states 1st Amendment congress shall pass no law Bill of Rights was a response to FEAR among the people that that had just created a huge new federal government via the constitution / federal government was the reason for the BORs creation Bill of Rights was a compromise between Federalists & Anti Federalists / check of fed govt power FEARS: fed gov didnt have a track record / fed gov is removed from the states Civil War - 1868 Public fear / opinions change after the war people are no longer more scared of the federal government than the state governments (telegraph, railroad, track record alleviate fears) State fear takes over federal fears / slavery was a state function / states now seen as more of a threat to individual liberty than the federal government After Civil War there really wasnt any reason NOT to apply the Bill or Rights to both states & the fed Doctrinal Challenge How do you bring the fed and the states into line / accomplish a kind of 'parity of skepticism' and subject BOTH the fed and states to the same limitations? Judicial Resistance For a long time the court AND the country were not willing to grapple with the changes imposed through the Reconstruction Amendments (14, 15, 16) / it took the court about 50 years to finally come to terms wit these amendments they had to be rediscovered Court at the End of the 19th century: Plessy v. Ferguson separate but equal Slaughterhouse cases - privileges and immunities clause (14th) has no meaning Lochner Doctrine - prevented states from dealing with sweatshop conditions and child labor
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Accomplishing Incorporation Today most of the Bill of Rights provisions have been interpreted to apply against the states 14th Amendments Due Process clause has served as the vehicle to do this * Makes the other amendments apply to the states Due Process Clause Amar it has always been an odd vehicle to ride in order to reach the incorporation destination / if the 14th due process is short hand for the ENTIRE BOR then why have all the Amendments if the 5th applies against the gov? Is the 5th redundant? Privileges & Immunities Clause Amar may have been a better vehicle / seems to speak more directly to constraining states and following national rights / P&I = BOR protections !? Non-Incorporated Provisions 9th Amendment has not yet been incorporated / it is more of a statement than anything Rights in the constitution are not exhaustive / all rights may not be enumerated BUT the amendment itself does not say what exactly those extra rights are 10th Amendment statement of enumerated powers / powers not given to the fed gov or taken away from the states belong to the states and the people Amar - wouldnt make sense to apply against the states something that was designed to protect them from the government Establishment Clause framers intended to protect STATE religions from FEDERAL interference / to was intended to protect a state from the fed gov SO how do you turn it around to protect people from the state?
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CURRENT SCOPE OF INCORPORATION SCOTUS has taken the selective incorporation view *BUT selective incorporation has taken persona of total incorporation b/c most of BoR incorporated *EXCEPTIONS: 5th Amendment: Indictment *Although 14th Amendment guarantees petitioner a fair trial, 5th Amendment provision for indictment by a grand jury is not incorporated as to be binding on the states See Hurtado v. CA (1884) *States dont need to prosecute you w/ a grand jury; can use presentment Federal prosecutors have to use grand jury 7th Amendment: Right to jury trial *Not incorporated *Trial by jury in civil trials can be abolished by states altogether
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HOW TO APPLY STANDARDS OF REVIEW: Laws that facially distinguish on suspect / semi-suspect class strict/intermediate scrutiny Facially neutral motivated by discrimination? but for? strict/intermediate scrutiny Discrete immutable insular stigmatic harm suspect classification Compelling/important govt interest? necessary/substantially related narrowly tailored
Amar - Substance & Progress are supposed to be opposites / procedural due process is more intuitive / in a procedural due process case a plaintiff is not saying the government cant do X but is just saying that the government must do Y before it does X Procedure steps that government can take in order to accomplish its goals NOT in terms of what government goals are out of bounds all together EX: hearings, counsel, appeal rights (ordinary procedural safeguards)
Hamdi v. Rumsfeld ISSUE: what does procedural fairness require before you lock them up? HELD: military tribunal is OK if: 1) there is counsel 2) evidence explanation 3) appeal rights Procedure steps that government can take in order to accomplish its goals NOT in terms of what government goals are out of bounds all together EX: hearings, counsel, appeal rights (ordinary procedural safeguards) Substance the question is not HOW but WHETHER the government can accomplish a particular goal (see abortion cases / see Lochner) / in these cases increasing procedural due process will NOT remedy a problem relating to substantive due process Criticisms substantive due process is just made up b/c there are no textual provisions to back it up
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Means/Ends Inquiry
APPLIED HERE: Law is not about protecting consumers from purchasing unsafe products *Court views the law interfering with citizens rights to contract and work *If bakers dont want to work certain hours, they should just say no to employers **SCOTUS ignores unequal bargaining power of employees Max. hour law doesnt affect quality of the bread DISSENT: [Harlan] Statute isnt to protect consumers BUT designed to protect the well-being of employers and employees State is protecting employees from their otherwise lack of market power to protect themselves *They want jobs so they will work; unequal bargaining power Doesnt matter if the court thinks the law is wise legislation *Choice of economic theory is not for the judiciary (laissez-faire vs. govt regulation) *Court should not sit as a super legislature and impose policy on the rest of us without constitutional grounding Many other federal restrictions on freedom of contract [majoritys rule is arbitrary] *Freedom of contract is not absolute DISSENT: [Holmes] Leaves the door open for SOME substantive due process * Maybe substantive due process may leave SOME room for the court to regulate * Regulation is OK if a right has been determined fundamentally private
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MAJORITY [Marshall]: draws upon SCOTUS rationale in Loving (VA law prohibited interracial marr.) *AMAR: Loving is tough case to use b/c was likely more about racial discrimination than right to marry Once SCOTUS finds a right to be fundamental, it is only going to uphold a law infringing upon that right if the law is necessary to an important or overriding govtal objective - HERE, Marshall says that although statute serves important govtal objective, it doesnt further that objective enough
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NOTES: Evolution of right to privacy from Griswold to Zablocki i. Griswold: right to privacy as freedom from govtal intrusion (literalistic idea) freedom to keep things to yourself ii. AMAR: sex fits w/ that notion of privacy but marriage does not b/c it is a public act 1. Marriage is about right to present yourself to the world in a certain way c. Michael H. v. Gerald D. (1989) [important for discussion of methodology; not as relevant as precedent] FACTS: Michael H. (illegitimate father who wanted to access his child) challenged CA irrebuttable presumption that child born into family unit is product of the legal husband RULE/HOLDING: SCOTUS upholds statute *Only 4 justices joined majority opinion 3 joined Brennans dissent; Stevens on the fence DISSENT [Brennan]: how do we give meaning to history and tradition? i. Biological parents have historically been granted access to their children REJOINDER to Brennan dissent [SCALIA] ii. Perhaps historically adulterous parents have not been granted access to their children 1. Level of generality at which we try to glean historical tradition determines whether or not a right can be grounded in history 2. If we did not have historical evidence about adulterous parents then we would have to remove to the next relevant category of abstraction for which there is historical evidence available AMAR on interpretive approach to historical tradition [agrees w/ SCALIA methodology] - History and tradition may end up protecting majoritarian notions of what tradition is - If you focus on history and tradition you arent doing much for those individuals cut out of history and tradition - Relatedly, when gov does what majority wants, may pass laws that adversely affect those who arent in agreement w/ majority - Constitutional protections may be in place for both majoritarian and counter-majoritarian interests - Ex. First Amend ensures that the majority can protect itself against tyrannical gov, and protects marginal speech and opinions - False notion that judges who focus on history and tradition will administer the law based on some objective notion of history - Not always the case - Ex. Brown v. Board: same people who brought us the 14th amend engaged in segregation
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MAJORITY [OConnor] undue burden = substantial obstacle - Informed consent provision NOT invalidated i. Legitimate govt objective: facilitate thoughtful well-informed decision a. Might it make decision for woman to get an abortion more difficult? Yes, but not enough to constitute substantial obstacle - Mandatory 24 hour waiting period i. Govt objective: to give mother time to reflect upon decision ii. SCOTUS admits that mandatory waiting period could be legitimate obstacle, but not an undue burden. NOT AN UNDUE BURDEN because: 1. Law is not a significant obstacle to sufficient number of people sufficiently often 2. Even though some women may be unduly burdened, the specific (Ps) are not iii. Facial challenge: asks SCOTUS to enjoin the law as a whole very existence of that law is detrimental 1. Only allowed if law risks chilling effect on certain rights such as free speech 2. Remedy is so extreme, incidents of constitutional violation must be numerous enough to justify a facial challenge Parental consent provision: uncontroversial
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b. Gonzales v. Carhardt (2007) FACTS: Congress passed statute criminalizing doctors who conducted partial birth abortions ISSUE: Which method ending fetuses term is permissible, NOT whether procedure should be employed at all that would shorten fetuses term RULE/HOLDING: State can outlaw this one medical procedure, but not abortion generally Legislature can erect more complex obstacles, but you still cant block to decision to have an abortion altogether MAJORITY [Kennedy] i. Other procedures in place that could substitute ii. This procedure is so gruesome and inhumane that it can be banned - Interest in protecting a woman from a procedure which she herself may later regret c. Lawrence v. Texas (2003) FACTS: TX statute makes it crime to engage in same-sex sexual Statute prohibits oral/anal sex between two men in their own dwelling; makes it criminal RULE/HOLDING: TX law violates Due Process MAJORITY [Kennedy]: sticks to Due Process rationale i. Adults may choose to enter into private relationships in their own homes and their own private lives and not be punished as criminals 1. Liberty presumes an autonomy of self ii. Bower v. Harwick: in Bower, statute prohibited all oral sex b/t homosexuals a. SCOTUS upheld the statute on grounds it prohibited conduct regardless of gender 1. Ct doesnt take on equal protection argument b/c statute as written applies to everyone iii. Distinguishes from Bower: Lawrence is about private decisions to engage in relationships that define who an individual is, NOT about right to have sex CONCURRENCE [OConnor]: argues for equal protection not just Due Process DISSENT [Scalia] Right to homosexual sodomy is not grounded in tradition or history The criminalization of certain behavior does not necessitate a constitutional entitlement NOTES: AMAR problems w/ decision - No discussion of standard of review - No fundamental right discussion, only liberty to do something - Ct appears to be writing for the American public and not for lower cts or justices -
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Amar 1st Amendment (free exercise) applies against cities and states through the due process clause of the 14th Amendment / when a city doesnt accommodate religion they are violating the free exercise ideas incorporated within the 14th Amendments due process clause and therefore congress can remedy this under Section 5 of the 14th Amendment NOTE: this is congress argument that the court rejects NO court says congress is just trying to get around its interpretation of the 1st th Amendment in Smith / congress cant do this through the 14 Amendment
Congruence & Proportionality Compare (1) what the Constitution prohibits and (2) what congress is prohibiting / if there is LOTS of overlap then C&P is probably satisfied but if there is LITTLE overlap C&P probably is not satisfied Remedy & Cure court says that the remedy CAN be broader than the disease BUT if the remedy is too broad and encompassing it will probably fail C&P test Note after Bourne, SCOTUS applied the Congruence and Proportionality Test with a vengeance Board of Trustees of University of Alabama v. Garrett FACTS: Federal statute (like RFRA) required local govt agencies to accommodate disability through the ADA Employment provisions were specifically at issue; employers must make reasonable accommodations to fit the employees needs HERE, University of Alabama didnt accommodate a nurse ISSUE: Whether the employer provisions of the ADA are Congruent and Proportional / whether a state who violates the ADA can be sued for damages HELD: Employer provisions of the ADA are INVALID b/c they are not properly enacted pursuant to 5 Court reemphasizes the C&P test from Bourne / Note: 5-4 AGAINST claimant in Garrett ANALYSIS: Congruent & Proportional Analysis Equal Protection Clause vs. ADA employer requirements Held there was LITTLE overlap between the the ADA employer requirements and the EPC / therefore the provisions were NOT necessary and proper Note court is not friendly to legislative history / congressional findings claiming that the instances of discrimination were not very prevalent Clenbern v. Clenvern Living Center FACTS: EP challenge to a city ordinance that treated disabled living group differently HELD: disability did NOT invoke heightened scrutiny / not a suspect class Amar Criticism Clenburne actually came out in favor of the disabled plaintiffs Court uses Clenburn to NARROW EPC treatment of disabled persons / Amar thinks this move is questionable
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Scrutiny Analysis Court treats FEMLA differently than the disability in Clenbore / gender implicates EPC whereas disability does not / one of the reasons that Hibbs comes out differently than Garrett Amar the courts logic is a cheat / standards of review may be different but the level of discrimination is the same Hibbs VERSUS Morrison - totally inconsistent Morrison (Violence Against Women Act) in two ways - (1) Morrison court said commerce clause didnt apply AND that Section 5 didnt apply b/c Section 5 allows remedies of equal protection but the remedy can run against ONLY those actors violating equal protection / court said VAWA runs against the private tortfeasor NOT the state actor - (2) Morrison only dealt with stuff that happens in some states and not all states / court thinks its unfair to pass a NATIONAL law that may sweep in innocent and guilty states Hibbs VERSUS Garrett Who's discrimination counts? Garrett - only looks at state discrimination (not cities and counties OR private parties) Hibbs - looks at discrimination by PRIVATE employers Amar - we cant count cities and counties BUT we can include private parties? Congressional Findings? Hibbs - is a BROAD extension of Congressional findings BUT Garrett - is a NARROW view of congressional findings Amar - they are TOTALLY in conflict Valid Distinctions? Hibbs gender based discrimination Garrett disability based discrimination Amar should this really matter / people are being harmed in both instances
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Hibbs
Lane
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Con Law I Outline Amar Spring 2010 NEVADA DEPT OF HUMAN RESOURCES v. HIBBS (state violates FMLA) (overriding 11th Amend)
Facts of the Case: William Hibbs, an employee of the Nevada Department of Human Resources, sought leave to care for his wife under the Family and Medical Leave Act of 1993 (FMLA). The FMLA entitles an eligible employee to take up to 12 workweeks of unpaid leave annually for the onset of a "serious health condition" in the employee's spouse. The Department granted Hibbs's request for the full 12 weeks of FMLA leave and, after he had exhausted that leave, informed him that he must report to work by a certain date. When Hibbs failed to do so, he was fired. Pursuant to FMLA provisions creating a private right of action "against any employer" that "interfered with, restrained, or denied the exercise of" FMLA rights, Hibbs sued in Federal District Court, seeking money damages for FMLA violations. The District Court concluded that the Eleventh Amendment barred the FMLA claim. The Court of Appeals reversed. Question: May an individual sue a State for money damages in federal court for violation of the Family and Medical Leave Act of 1993? Conclusion: Yes. In a 6-3 opinion delivered by Chief Justice William H. Rehnquist, the Court held that State employees may recover money damages in federal court in the event of the State's failure to comply with the FMLA's family-care provision. The Court reasoned that Congress both clearly stated its intention to abrogate the States' Eleventh Amendment immunity from suit in federal court under the FMLA and acted within its authority under section 5 of the Fourteenth Amendment by enacting prophylactic, rather than substantively redefining, legislation. "In sum, the States' record of unconstitutional participation in, and fostering of, gender-based discrimination in the administration of leave benefits is weighty enough to justify the enactment of prophylactic [section] 5 legislation,"
TENNESSEE v. LANE
Tennessee asked that the case be dismissed, claiming that it was barred by the 11th Amendment's prohibition of suits against states in federal courts (the sovereign immunity doctrine). The state cited Alabama v. Garrett (2001), in which the U.S. Supreme Court ruled that Congress had acted unconstitutionally in granting citizens the right to sue states for disability discrimination (such as the denial of employment) under the 14th Amendment's equal protection clause. In that case the Supreme Court reasoned that Congress did not have enough evidence of disability discrimination by states to justify the waiver of sovereign immunity. The district court rejected the state's argument and denied the motion to dismiss. The Sixth Circuit Court of Appeals panel affirmed. The courts reasoned that because Title II of the ADA dealt with the Due process Clause of the 14th Amendment, not the equal protection clause, the ruling in Garrett did not apply. The court found that while Congress may not have had enough evidence of disability discrimination to waive sovereign immunity for equal protection claims, it did have enough evidence of Due Process violations (such as non-handicap-accessible courthouses) to waive the sovereign immunity doctrine for Due Process claims. Conclusion: No. In a 5-to-4 opinion written by Justice John Paul Stevens, the Court held that Congress had sufficiently demonstrated the problems faced by disabled persons who sought to exercise fundamental rights protected by the Due Process clause of the 14th Amendment (such as access to a court). The Court also emphasized that the remedies required from the states were not unreasonable - they just had to make reasonable accommodations to allow disabled persons to exercise their fundamental rights. Because Title II was a "reasonable prophylactic measure, reasonably targeted to a legitimate end," and because Congress had the authority under the 14th Amendment to regulate the actions of the states to accomplish that end, the law was constitutional.
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