JUSTICIABILITY Q1: Is the political question doctrine appropriate [Baker v. Carr]? − Has Constitution assigned adjudicatory power to a coordinate branch [Nixon v. US]? − Is there a lack of judicially administrable standards [Coleman v. Miller]? − Are there prudential reasons not to interfere (comity)? Q2: Is there a standing issue? − Are the constitutional requirements met [Lujan v. Defenders of Wildlife]? P must allege an injury-­‐in-­‐fact that is fairly traceable to D’s conduct that is likely to be redressed by a favorable court ruling. − Prudential Standing Factors − Are the legal rights of third parties who are not in some way incapacitated being asserted [Elk Grove School District v. Newdow]? − Are generalized grievances widely shared being asserted (except taxpayers challenging an Establishment Clause violation) [Marsh]? − Are claims outside the zone of interests Congress sought to protect being asserted? Q3: Is there a ripeness issue [Ohio Forestry Ass’n v. Sierra Club]? Q4: Is there a mootness issue [City News and Novelty v. Waukesha] that is not capable of repetition but evading review [Roe]? Stare Decisis − Four Prudential and Pragmatic Factors from Casey − The central rule is unworkable. − The rule can be overturned w/o inequity to those who relied on it. − The law’s growth has left the rule a bare remnant of an abandoned doctrine. − Facts have changed so much as to render the holding irrelevant or unjustifiable. − Bypass when: anti-­‐vacillation; intensely political circumstances − These are not applied rigorously in Lawrence. International Law − Kennedy in Lawrence: EU decision used in support of decision to expand right. − Rehnquist in Glucksberg: Netherlands used as a cautionary tale. − CJ Marshall in Goodridge: Compared to Canadian decision to refine CL def’n of marriage, reached same result. − CJ Marshall in Marbury: Compared the written-­‐ness of the Constitution to the British CL system to support idea that constitution is supreme. Con Law Attack Outline Page 1 of 10 COMMERCE CLAUSE & FEDERALISM Federalism −
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Efficiency Individual Choice Experimentation Citizen Participation Prevention of Tyranny Commerce Clause − Is Congress regulating the channels of commerce like interstate highways or navigable waters [Gibbons]? − If yes, valid. − Is Congress regulating instrumentalities of commerce or persons or things in commerce? − If yes, valid even though the harm may stem from intrastate activities [J&L Steel]. − NB: Always mention Stevens dissent would have called guns things in commerce. − Is Congress regulating activities that substantially affect interstate commerce? − Is the activity economic in nature? − Not: (some) crime (Lopez), families (Morrison), and education − If yes, can be aggregated and will probably be upheld [Wickard]. − Is there a properly worded jdx element (“that has moved in or that otherwise substantially affects commerce”)? [KY: Bulletproofs a statute.] − If yes, sufficient. − Are there Congressional findings? [Not dispositive, not required, just helpful] − Is there a sufficiently close link b/n the activity and interstate commerce (i.e. ont that doesn’t “pile inference on inference”)? − Guns => Education Environment => Workforce = too attenuated [Lopez] − Gender-­‐motivated violence => Productivity = too attenuated [Morrison] Dormant Commerce Clause − Does the state regulation impinge on an activity covered by federal legislation? − If yes, the state regulation is invalid if the federal legislation conflicts with or preempts the activity [Gibbons]. − Does the state regulation discriminate against interstate commerce? − If yes, state reg is subject to a “virtual per se rule of invalidity” [PA v. NJ] unless it meets SS [ME v. Taylor] or state is a market participant [Hughes v. Alexandria]. − Discrimination can be facial or nonfacial [Bacchus Imports]. − To pass SS, the statute must further important noneconomic state interest and there must be no reasonable, nondiscriminatory alternatives. − To be a market participant a state must be acting as a purchaser, seller, subsidizer (major SH not just a subsidy), or some other kind of participant in the market. [Reeves, Inc. v. Stake, S Central Timber Dev. v. Wunnicke] Con Law Attack Outline Page 2 of 10 − Does the state regulation burden IC? Even if the state regulation is not discriminatory in purpose, it may be discriminatory in effect. − If yes, apply Pike Balancing: state regulation is invalid unless state interest in regulation outweighs the burden on IC [Pike v. Bruce Church]. It’s weaker than SS. − Hughes v. Oklahoma: Courts should consider (1) whether the challenged statute regulates even-­‐handedly with only “incidental” effects on interstate commerce, or instead discriminates against interstate commerce either on its face or in practical effect; (2) whether the statute serves a legitimate local purpose; and if so, (3) whether alternative means could promote this local purpose as effectively without discriminating against interstate commerce. − NB: The market participant analysis applies here too. − If no, the regulation is valid. P&I Clause − Is the P a corporation or alien? − If yes, they can’t sue b/c they are not citizens in the several states! − Has the state discriminated against a non-­‐state citizen wrt certain fundamental rights? − Entitlements: pass through or travel in state; reside in state for business or other purposes; do business there whether it involves trade, agriculture, professional pursuits, or otherwise; and take, hold, and dispose of property, either real or personal [Corfield v. Coryell (ED Pa 1823)]. − Compare Toomer v. Witsell (1948), with Baldwin v. Montana Fish & Game (1978). − No market participant exception in P&I. − Without discriminatory purpose, there’s no violation. Spending Power − Test from South Dakota v. Dole (1987): − Is the exercise of the spending power in pursuit of the general welfare (deferential)? − Is the condition on use of the funds unambiguous? − Is the condition unrelated to the federal interest asserted? − Has Congress placed an unconstitutional condition on the use of the funds? Con Law Attack Outline Page 3 of 10 SEPARATION OF POWERS Presidential Action − Is the President acting w/in Youngstown Zone #1? When the President acts pursuant to an express or implied authorization by Congress, his power is at a maximum, b/c it includes all his Art. II powers as well as the power Congress delegated to him. − If yes, the Presidential action will probably be upheld. − Is the President acting w/in Youngstown Zone #2: When the President acts in the face of congressional silence, he can rely only on his Art. II powers, but there is a zone of twilight in which he and Congress may have concurrent authority or in which its distribution is uncertain. − If yes, his actions might be upheld. − Is the President acting w/in Youngstown Zone #3? When the President takes measures incompatible w/ the expressed or implied will of Congress, his power is at its lowest ebb b/c he can rely on only his Art. II powers minus Congress’s Art. I powers o/ the issue. − His action will probably not be upheld, though he has a modicum of power to act. Detainees − Q1: Does the detainee have a habeas right [Hamdi] or an adequate substitute [Hamdan]? − Citizens have habeas rights [Hamdi plurality, treated as controlling given Souter/Ginsburg concurrence]. − Aliens w/in the US have habeas rights [Hamdi]. − GB detainees have habeas b/c US has strong de facto sovereignty [Boumediene]. − Detainees at Bagram don’t [Maqaleh v. Gates (CADC 2010)], but note dicta that says subversion of habeas is not ok. − Test for New Scenarios: 1. The citizenship and status [KY: odd] of the detainee and the adequacy of the process through which that determination was made. 2. The nature of the sites where apprehension and detention took place. 3. The practical obstacles inherent in resolving the prisoner’s entitlement to the writ [Boumediene]. − NB: This looks a lot like how Stevens distinguished Rasul from Eisentrager. − Kennedy called it a “functional” test. − Q2: Is the detention authorized? − Noncombatants must be released [Milligan, Quirin, Hamdi plurality]. − AUMF authorizes detention during ongoing hostilities [Hamdi plurality + Thomas]. − Detention w/o Congressional authorization is an open question [Hamdi plurality]. − Q3: If so, has the detainee been given an adequate opportunity to contest status (DP)? − Citizenship is irrelevant for this inquiry [Quirin, restated in Hamdi plurality]. − Hamdi Plurality Test: A detainee must receive notice of the factual basis for his status and a fair opportunity to rebut the govt’s factual determinations before a neutral arbiter. Aside from these core elements, enemy combatant status determinations can be tailored to alleviate the unique potential to burden the Executive during wartime by using the Matthews test (liberty v. cost v. gov’t). − Hearsay may be ok if is the most reliable evidence available. Con Law Attack Outline Page 4 of 10 − The “some evidence” standard is NOT. − A rebuttable presumption in favor of the gov’t may be ok. − An appropriately authorized and properly constituted military tribunal could meet these standards. − Boumediene Confusion: Kennedy wrote that military commission + procedural review by the D.C. Circuit (the MCA) wasn’t an adequate substitute for habeas review in the absence of a suspension of the writ. But he didn’t say what the substitute might look like. It is “uncontroversial” that the detainee must be able to demonstrate “erroneous application and interpretation” of the law and conditional release must be an available remedy. − In Quirin, the Court held that the trial was an adequate substitute. [ignore] − KY: Current open question is what other rights in addition to DP from Hamdi: crim pro, plead 5th? Why CJ Roberts goes nuts in dissent in Boumediene. − Scalia would afford citizens full DP rights (trial for treason) if w/in territorial jdx of a US court [Hamdi dissent]. − Q4: If so, has the plaintiff been given an adequate trial [Hamdan]? − Trials must be consistent w/ the UCMJ (statutory enactment of Articles of War). − Uniformity: Military commissions should be consistent w/ military courts martial. Art. 36 requires departures be tailored to the necessity requiring them (presence/evidence are key). − Court seems to be less willing to accept exigency as a justification given that the “war” has lasted for almost ten years now [Breyer and Kennedy concurrences in Hamdan]. − Because the UCMJ authorizes military tribunals only to try offenses against the laws of war, trials must be consistent w/ the laws of war. − GC CA3 requires regularly constituted courts affording all judicial guarantees that are recognized as indispensible by civilized people. − It is flexible, for example, the need to keep classified documents secrets is recognized. − Policy − Balloon Problem: The Court squeezes of detention in the US/GB in Hamdi and Boumediene, meaning detention is now mostly at “black sites.” The Court also squeezes off military tribunals in Hamdan, which means there probably aren’t trials at all anymore since killing ppl is easier. − Dworkin: There’s no real justification for treating aliens and citizens differently. At the very least, aliens should get the same protections we give our soldiers. Kennedy’s test from Boumediene is sufficiently flexible. Con Law Attack Outline Page 5 of 10 RECONSTRUCTION AMENDMENTS State Action − Q1: Is state action required? − 13thA, §1: No [all slavery abolished, defined narrowly in Civil Rights Cases (1883)]. − 14thA, §1: Yes. It doesn’t on its face prohibit private discrimination, unless it’s imposed by or supported by the state. − Q2: Who is the actor? − State gov’t: 14thA attaches [Brown]. − Federal gov’t: EP component of the DPC of the 5thA attaches [Bolling]. − Private party? − Go to Q3. − Q3: Is there state action [Civil Rights Cases]? − Is the private party performing a public function that “traditionally, exclusively” is conducted by the state [resembles Harlan’s dissent in Civil Rights Cases]? − A private primary election is state action [Smith v. Allwright]. − A company town’s decisions are state action [Marsh v. Alabama]. − A government monopoly isn’t [Jackson v. Metropolitan Ed.]. − Is the judiciary enforcing a private agreement [Shelley v. Kraemer]? − Is there entanglement between state and private party? − Restaurant/parking authority [Burton v. Wilmington Parking Auth.]. − Reliance on a liquor license is insufficient [Moose Lodge #107 v. Irvis]. − State inaction is not state action [DeShaney v. Winnebago Cnty]! Discrimination Claims − Is the law facially discriminatory? − If yes, it draws SS/IS and is per se invalid [Strauder, Loving]. But see City of Oneonta. − UNLESS in IS there is a real difference wrt sex. − Is the law facially neutral, but administered in an intentionally discriminatory manner? − If yes, it draws SS/IS and will be enjoined [Yick Wo]. − No precedent under IS, so say that post-­‐VMI SS/IS aren’t that far apart and that the law will probably be enjoined. − UNLESS in IS there is a real difference wrt sex. − Is the law facially neutral, but was passed w/ discriminatory intent? − If yes, draws SS/IS and will be struck down [Hunter]. − Is the law facially neutral and passed w/o discriminatory intent? − If yes, draws only RBR and upheld [Davis]. BUT animus [Romer, Cleburne, Moreno]. − What is intent? − Foreseeability is not enough. Intent requires a decision to be made at least in part b/c of, not merely in spite of, its impacts on a protected group [Feeney]. − Factors: impact unexplainable on grounds other than race, historical background of decision, events leading up to decision, departures from normal procedure, decisions that go against evidence, and LH or admin history [Arlington Heights]. Con Law Attack Outline Page 6 of 10 − Disparate impact as evidence of intent is a high, high hurdle [Clary]. − Exam Tip: When saying there’s not 1–1 mapping wrt impacts, cite to Geduldig. Affirmative Action − Challenge to classifications based on race [Korematsu], national origin [Oyama], or alienage [Graham v. Richardson] draw strict scrutiny. − The program must be narrowly tailored to a compelling gov’t interest. − Q1: Is there a compelling gov’t interest? − Remedying the continuing effects of past discrimination by the promulgating gov’t entity is a CGI [Croson]. − Past discrimination may need to be §1 violation itself [Bakke, Croson, Parents Involved majority noted no de jure segregation in Seattle]. − Need data with the right denominator [Croson]. − Gov’t entity may need to de jure discrimination [Powell in Bakke]. − Diversity is CGI in higher education [Grutter]. − Diversity as a CGI in secondary education is an open question [Kennedy, concurring, and four dissenters in Grutter think it is, saying in Parents Involved didn’t address it]. − Private discrimination may be a GCI if state actor has become a passive participant [Croson plurality, not mentioned again by Court]. − Non-­‐Balkanization/Racially Integrated Environment [Kennedy concurrence + four dissenters in Parents Involved]? − Illegitimate − Remedying broad societal discrimination is not a CGI [Powell concurrence in Bakke, later endorsed in Croson; Wygant]. − Role models are not a CGI [Wygant]. − Promoting minorities in X profession, b/c it assumes they’ll pursue careers in lockstep w/ their proportion [Bakke, Croson]. − Budgetary reasons [failure of separate but equal logic in Brown, not an IGI in Frontiero so it can’t be a CGI]. − Q2: Is there narrow tailoring? − Include durational limit [Grutter] but not dispositive [Croson]. − Consider race neutral alternatives [Croson]. − Implementing alts isn’t required if compromises institution [Grutter]. − Consider race conscious but not race classifying alternatives: school siting; school zoning; special programs; targeted recruiting (students and teachers); tracking statistics by race [Kennedy concurrance, in Parents Involved]. − Seems to be more stringent requirement for secondary schools. − “Critical mass” is NT [Grutter] b/c it cuts against essentialization. − Illegitimate − Quotas are not NT [Croson, Gratz]. Con Law Attack Outline Page 7 of 10 − Point bumps [Gratz] or making race the dispositive factor is not NT [Parents Involved, note that all justices seemed to agree on the idea that dispositive = bad, disagreed on the facts]. − Arbitrary % goals, especially ones that parallel the population, are not NT [Croson, Parents Involved, Rehnquist dissent in Grutter]. − Challenges to a classification based on sex [Craig v. Boren] or non-­‐marital parentage [Trimble v. Gordon] draw intermediate scrutiny. − The program must substantially relate to an important gov’t interest. For sex, this must also be an “exceedingly persuasive justification” [VMI]. − Q1: Is there an important gov’t interest? − Must be real and not a post-­‐hoc justification for the litigation [VMI]. − Continue historical tradition not ok if history tainted w/ discrimination [VMI]. − Ensuring a diverse set of educational opportunities may be [VMI]. − Compensating women for past economic disabilities may be ok [VMI]. − Promoting equal employment opportunities is a CGI [VMI]. − Q2: Is there a substantial relation? − Real differences doctrine (biological/pregnancy) is NT [Michael M. Rehnquist plurality and Stevens concurrence, Nguyen]. − Illegitimate − Reliance on archaic and o/broad stereotypes is not NT [Frontiero]. − Artificial constraints on all women are not NT [VMI]. − Budgetary constraints/administrative ease [Frontiero]. − Challenges to a classification based on sexual orientation [Romer] or disability [Cleburne] would seem to draw RBR w/ bite. − The program must be rationally related to a legitimate gov’t interest. New Classes − Test from Bowen: 1. As a historical matter, have they been subjected to discrimination? 2. Do they exhibit obvious, immutable, or distinguishing characteristics that define them as a discrete group? − Cleburne implies salient difference relevant to point of the law may be ok 3. Are they a minority or politically powerless? − Frontiero said this means representation in the nation’s decision-­‐making councils. But Cleburne said it means an ability to get attention of the lege. − BUT ASK: Is this the right test? − Ackerman—Beyond CP: Real protection is needed for the anonymous and diffuse. − Kenji—New EP: Would the issue/group be best dealt w/ through SDP instead? − Stevens in Parents Involved: There should be one EPC. Get rid of tiers of scrutiny and throw everything into a balancing test. − Marshall in Cleburne: Scrutiny should be a spectrum that varies w/ the societal and constitutional importance of the adversely affected group and the animus on the basis of which the classification was drawn. Con Law Attack Outline Page 8 of 10 SUBSTANTIVE DUE PROCESS Abortion − Undue Burden Test from Casey, which gets a majority in Stenberg: − Pre-­‐Viability: A woman has a right to choose an abortion without undue interference by the state. − This is “shorthand for a conclusion” that the regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion. The means of the state regulation must be calculated to inform the woman’s free choice not to hinder it. − Post-­‐Viability: As long as a law contains exceptions for a woman’s life and health, the state has a legitimate interest in protecting the woman’s health and fetus’ life. − In Carhart, there is no exception for a woman’s health b/c Congress defines the banned procedure as dangerous to health. Test for New SDP Rights − Is there a careful description of the asserted fundamental liberty interest [Glucksberg]? − This can be read as incorporating a softer version of Scalia’s FNF from Michael H.: the right must be described in a way that allows the court to evaluate the attached history. Really it just operates to first let the litigants describe it in the way that’s most favorable to them (broad = bad for Ps, good for Ds) and then let the court change things (a la Bowers) to fit how far they’re willing to go. − Is the right deeply rooted in this nation’s history and tradition AND implicit in the concept of ordered liberty such that neither liberty nor justice would exist if it were sacrificed [Glucksberg]? − If yes, the gets either SS (if it’s a fundamental right) or some form of heightened scrutiny (if it’s just a right). − May be able to look @ int’l law/norms/practices here [Lawrence]. − If no, there may still be more stringent than RBR [court didn’t imagine motives for lege in Glucksberg like it did in Williamson v. Lee Optical]. − Can you use Lawrence to find a right? − Kennedy’s “springing intent” paragraph at the end of Lawrence lets you make two moves: − We don’t need to “narrowly” assert the right b/c the Framers didn’t narrowly define right in recognition of the fact that societies change. − We don’t need to get so caught up in history b/c of the same reason (though Kennedy does look to history in Lawrence). − Should this go in PorI instead [Saenz], where it would only apply to citizens? Con Law Attack Outline Page 9 of 10 SOVEREIGN IMMUNITY Congressional Piercing of Sovereign Immunity Seminole Tribe v. FL (1966): To abrogate sovereign immunity, there must be either a) a waiver of sovereign immunity by the state or b) a clear intent by Congress to abrogate and an action pursuant to a proper power. − Q1: Has the state waived sovereign immunity? − Q2: Is there clear intent by Congress to abrogate state sovereign immunity? − Q3: Is the Congressional action pursuant to a proper power? − Power must be post-­‐11thA (not Commerce Clause): 13thA, §2, 14thA, §5, 15thA, §2. − Congress can enforce the 14thA only in a way that is consistent with the Court’s interpretation. That means that there must be congruence and proportionality b/n the means used and the ends sought to be achieved [Boerne v. City of Flores]. − Helps (Enlarge the Circle) − Findings wrt ongoing practices that would violate §1 [Boerne]. − Current discrimination needs to be by states not municipalities [Garrett] b/c municipalities can’t assert sovereign immunity. − Broader statutory scheme means > potential §1 violations [Rehnquist in Garrett severing Title II]. − Group at issue draws higher level of scrutiny means > potential §1 violations [compare Hibbs w/ Garrett]. − But NB flawed logic: HS means states are on notice. − Characterize issue as a DP right not EPC violation [TN v. Lane]. − Narrow target like one aspect of employment [Hibbs]. − Characterize right (even if evidence is only DP) as being denied to both classes, i.e. men/women, blacks/whites, etc. [Hibbs]. That’s almost a run around disparate impact prohibition. − Hurts − Looks like trying to o/turn S.Ct. precedent [Boerne]. − Broad application to all states/levels of gov’t or perpetual [Boerne]. Only violations by states count for §5 purposes [Garrett]. − Invalid − Congressional act is applied against private actors [Morrison]. Citizen Suits − 11thA: The judicial power of the US 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. − Suits by citizens against their own states are prohibited [Hans v. LA]. − Except, citizens can sue for prospective injunctive relief [Ex Parte Young] but never damages paid out of the state treasury [Edelman v. Jordan]. − These suits can’t happen in state court either [Alden v. Maine]. Con Law Attack Outline Page 10 of 10