this do be long as fuck xoxo ily. slutgers law 4evers. smoochies babies & good luck see u monday. <3 A General Maltz-y Version of Constitutional Law, Generally - - Maltz’s Rule of Constitutional Law: (1) Federal government has no power to take action unless that power is affirmatively granted by the Constitution (2) States can take any action not prohibited by the Constitution take into consideration the law, facially & when applied and its constitutionality FORMS OF JUDICIAL INTERPRETATION: - Originalism: meaning as understood when Constitution was adopted - Textualism/Formalism: Constitution only means what is written down - Functionalism: there is meaning behind words and should be considered in the context of the function the laws have The Constitution - An Outline of the Constitution (which is unnecessary) - Article I: The Legislative Branch - sets up the legislative branch, powers of congress and those denied to congress - also tells the powers denied to the states - Article II: The Executive Branch - sets up office of the president, SOTU addresses, impeachment proceedings - Article III: The Judicial Branch - sets up SCOTUS & lower courts, what cases you can hear & treason (?) - Article IV: States, Citizenship & New States - Article V: Amendment Process - Article VI: Debts, Supremacy, Oaths, Religious Tests - Article VII: Ratification - Amendments: - First Amendment: Freedom of Religion, Speech, Press, Assembly, and Petition (FULLY INCORPORATED ) - Second Amendment: Right to Bear Arms ( FULLY INCORPORATED ) - Third Amendment: Quartering of Soldiers (DOES NOT APPLY TO STATE) - Fourth Amendment: Search & Seizure ( FULLY INCORPORATED ) - Fifth Amendment: Grand Jury, Double Jeopardy, Self Incrimination, Due Process, Takings (PARTIALLY INCORPORATED) - Sixth Amendment: Right to Speedy Trial by Jury, Witnesses, Counsel (PARTIALLY INCORPORATED) - Seventh Amendment: Jury Trial in Civil Lawsuits (DOES NOT APPLY TO STATES) Eighth Amendment: Excessive Fines, Cruel and Unusual Punishment (PARTIALLY INCORPORATED) - Ninth Amendment: Non-Enumerated Rights Retained by People Tenth Amendment: Rights Reserved to States or People 11th Amendment: Suits Against States 12th Amendment: Election of President and Vice President 13th Amendment: Abolition of Slavery - 14th Amendment: Citizenship Rights, Equal Protection, Apportionment, Civil War Debt 15th Amendment: Right to Vote Not Denied by Race 16th Amendment: Income Tax 17th Amendment: Popular Election of Senators 18th Amendment: Prohibition of Liquor 19th Amendment: Women’s Right to Vote 20th Amendment: Presidential Term and Succession, Assembly of Congress 21st Amendment: Repeal of Prohibition 22nd Amendment: Two-Term Limit on Presidency 23rd Amendment: Presidential Vote for D.C. 24th Amendment: Abolition of Poll Taxes 25th Amendment: Presidential Disability and Succession 26th Amendment: Right to Vote at Age 18 27th Amendment: Congressional Compensation ** incorporated: constitutional doctrine through which the first ten amendments of the United States Constitution (known as the Bill of Rights) are made applicable to the states through the Due Process clause of the Fourteenth Amendment. Incorporation applies both substantively and procedurally. Prior to the doctrine's (and the Fourteenth Amendment's) existence, the Bill of Rights applied only to the Federal Government and to federal court cases. States and state courts could choose to adopt similar laws, but were under no obligation to do so ** The Constitution (Maltz’s Version) - Articles of Confederation & Reasons for Dissatisfaction with Them - Need to strengthen the federal government to deal with common problems - No power to tax - No way to prevent states from adopting economic measures that threatened interests of economic elites - Disputes that Shaped the Constitution - General ideological differences. Example: How should members of Congress be chosen? - During the drafting process, the representatives of those who governed each state sought to protect what they saw as the interests of that state. - The decision makers in each state ultimately had to decide whether they thought that ratification was in the best interest of the state. - The Constitution by Maltz - Most of the original Constitution is designed to describe the structure and powers of the newly-created federal government. - Article I, section 10 explicitly protects a small group of individual rights and also imposes other limitations on the power of state governments. - Article IV, which includes the Fugitive Slave Clause, also protects some rights in the context of interstate relations. - The Bill of Rights - During the debates over ratification, some expressed concern that a stronger federal government might pose a threat to fundamental rights and allow inappropriate incursions on state autonomy. - The adoption of the first ten amendments to the Constitution, which were ratified only two years after the document produced by the convention went into effect, was designed to address these concerns. - The Reconstruction Amendments - Most of the other amendments were intended to address specific problems or issues. - However, particularly when taken together, the Reconstruction Amendments, which were adopted after the Civil War, made significant changes in the structure of the federal system more generally, and the interpretation of section one of the Fourteenth Amendment plays a central role in many constitutional cases. Federal Powers - Power of the Executive Branch - Article 2 of the Constitution - Presidential Power, Tripartite Framework (Youngstown v. Sawyer, 1952): - (1) When the President acts with authorization from Congress, the President’s power is at the maximum because it includes both Congressional and Executive Constitutional powers - (2) In the absence of Congressional authority on the topic, there is a zone of twilight where Congress can have concurrent authority, but their acquiesce or indifference on the topic invites use of Executive Power - (3) If the President acts in direct contradiction to the will of Congress, the Executive can only rely on its own independent powers minus the Constitutional powers of Congress and can only succeed if the President’s power is exclusive and conclusive on the issue. - Presidential Power Includes: - Recommending laws thought good and vetoing laws thought bad (Youngstown v. Sawyer 1952) - Discretion and freedom in engaging with the international arena as opposed to domestic actions (United States v. Curtiss-Wright 1936) - Power to recognize or initiate diplomatic relations (Zivotofsky v. Kerry 2015) - Unilaterally order military actions once at war (Prize Cases 1863) - Executive Privilege gives deference for Executive performing duties - Overridden by Article III judicial power to settle criminal matters (United States v. Nixon 1974) - - - Presidential Power Does NOT Include: - Unilaterally taking possession of property to stop national labor emergencies (Youngstown v. Sawyer 1952) - Forcing state police power to comply with international court orders without Senate ratification (Medellín v. Texas 2008) - Usurping Congressional war power (Hamdan v. Rumsfeld 2006) - Power to enact, amend or repeal statutes including line item veto power (Clinton v. City of New York 1998) - Illimitable power of removal over officers of agencies independent of the Executive branch (Humphrey’s Executor v. United States 1935) - Public servants have immunity from civil suits arising out of official acts of the office being served (Nixon v. Fitzgerald 1982) - Executive is not immune from civil suits during tenor in office if unrelated to scope of office duties (Clinton v. Jones 1997) International Affairs: - Treaties - treaty is an agreement between potus and country and then put into action by the senate - (a) state laws that conflict with treaties are invalid - (b) if there is a conflict between a treaty and fed statute the one adopted last in time controls it - (c ) treaties are unconstitutional if it violates the constitution - Executive Agreements - (a) an executive agreement is an agreement between the united states and a foreign country, negotiated by POTUS and the head of the other nation - (b) executive agreements may be used for any purpose, anything that can be done with a treaty can be done w executive agreement - (c ) executive agreements prevail over state laws but never over federal laws or the constitution - The president has broad powers as commander in chief to use american troops in foreign countries - never has SCOTUS declared it unconstitutional in regards to president action with troops in foreign countries Domestic Affairs: - Appointment Power & Removal Power - Appointment Power - (a) Who must possess appointment power? - (i) POTUS appoints ambassadors, federal judges and officers of the United States - must approve nom in senate - - - - (ii) congress may vest appointment of inferior officers in the presidents the heads of the departments and the lower courts - inferior is one who can be fired by an officer of the united states (e.g. US Attorneys) - (iii) congress cannot give appointment power to itself or its officers - (iv) potus cannot make recess appointments for intra session recesses for less than 10 days - NLRB v. Noel Canning - Removal Power - unless limited by a federal statute the president may remove any executive branch official - nixon fired archibald cox - congress by statute may limit removal - (1) it must be an office where independence from an office is desirable - ex. special counsel (Bob Mueller) - cannot limit removal of cabinet - (2) must not prohibit all removal can just limit it where there is good cause Absolute Immunity Absolute Immunity for Civil Suits for Money Damages for anything done in office - presidents do not have immunity for acts that allegedly occurred before taking office of POTUS - Clinton v Jones - absolute immunity only exists during Executive Privilege - executive privilege protects presidential papera dnd conversations but must yield if there is an overriding need for the information - ex. Nixon v. United States Power of the Legislative Branch - Article 1 of the Constitution - congress may act only if there is express or implied authority - Maltzy Cases to Consider: McCulloch v. Maryland (1819), Gibbons v. Ogden (1824) - Necessary and Proper Clause - art 1 sec 8 of the constitution, congress may choose any means not prohibited by the constitution to carry out its lawful authority - McCoullough v. Maryland - Taxing Spending & Commerce Powers - most important are powers of taxing and commerce - (a) congress may tax or spend money for the general welfare - National Federation of Independent Business v. Sebelius - Commerce Clause - congress has the power to regulate commerce with foreign nations, indian tribes and among states - 1937 - 1995: broadly defined the scope of commerce clause authority - 1995: decided US v Lopez - 1. congress may regulate channels of interstate commerce - railways, highways, waterways, internet - 2. congress can regulate persons or things within interstate commerce - ex. trucks, planes etc - Gibbons v. Ogden - commerce refers to all forms of intercourse - 3. congress may regulate activities that have a substantial effect on interstate commerce - ex. Wickard v. Filburn - non economic activities: substantial effect cannot be based on cumulative impact - US v. Morrison - 4. congress can regulate economic activity not inactivity - Maltzy Cases to Consider: United States v. E.C. Knight Co. (1895), Carter v. Carter Coal Co (1936) Shreveport Rate Cases (1914), - Spending Clause - Congress has the power to lay and collect taxes and provide for general welfare of United States (Article I, Section 8, Clause 1) - Factors to determine if a tax: - (1) only penalty for not following rule is paying IRS an additional fine - (2) penalty is less than cost to follow rule - (3) not criminal because no mens rea knowledge requirement - (4) enforced by the IRS - (5) Direct Tax Clause only applies to capitation taxes, real estate and personal property - (6) no power to compel or punish other than through taxes and fines - Test of power: - (1) Exercise of the spending power must be in pursuit of general welfare - - (2) Conditions on receipt of federal funds must be imposed unambiguously so states can exercise their choice knowingly, cognizant of the consequences of their decision - (3) the conditions must be related to federal interests can be an independent bar to conditions - (4) other Constitutional provisions can be an independent bar to conditions (South Dakota v. Dole 1987) - Abuse of power if: - (1) States cannot be under duress or compulsion into accepting federal funding - (2) coercive if money threatened to be restricted is exceeding high (impact on 5% of a federal highway budget versus 10% of an entire general budget) - (3) federal government cannot force states to accept social programs so that there is no internal political check on accepting the program - (4) cannot create retroactive conditions on programs already existing - Enforcement Clause - Congress shall have the power to enforce provisions of the 14th Amendment (Fourteenth Amendment, Section 5) - The legislation must have congruence and proportionality between the injury prevented or remedy and the means adopted to prevent that injury (City of Boerne v. Flores) - Factors for proportionality (but not required): targets likely areas of discrimination, affects a discreet class of state laws, has a termination date (City of Boerne v. Flores) - Method of remedy must be appropriate for the current world not based on old systems of racism (Shelby County v. Holder) - Congress cannot use the Enforcement Clause to justify creating substantive rights (City of Boerne v. Flores) - A small pattern of constitutional right violations under rational basis is not enough to pass the test (University of Alabama v. Garrett) - Evidence of regular constitutional rights violations under heightened scrutiny would likely be sufficient (Nevada v. Hibbs) (Tennessee v. Lane) - Proof can come from non-state actors (Tennessee v. Lane) - Rights of 14th Amendment only apply to state actions, so Section 5 cannot be used for private actors (US v. Morrison) Congress’ Power Under Section 5 of the 14th Amendment Structural Limits to Legislative Power - - - - - Cannot commandeer the legislative process and compel states to act as Congressional power is only over individuals not the states themselves (New York v. United States 1992) - Congress cannot force states to pay the bill for their own program or to accept a program without an internal political check (Printz v. United States 1997) - There is a difference between Congress regulating state activity and commandeering states (Reno v. Condon 2000) Legislative Power does NOT Include - Power to recognize or initiate diplomatic relations (Zivotofsky v. Kerry 2015) - Legislative vetoes where a unicameral majority vote overrides judicial decisions (Immigration and Naturalization Service v. Chadha 1983) - Article I requires legislation be presented to President and approved by both houses of Congress - Removing or limiting officers of executive (Myers v. United States 1926) - Cannot require Executive functions be performed outside of Presidential oversight structure (Printz v. United States 1997) Congressional Power Over the Courts: - The Supreme Court has appellate jurisdiction over specified classes of cases “with such Exceptions, and under such Regulations, as the Congress shall make.” - Except in a small set of explicitly-specified classes of cases, Congress can deprive the Supreme Court of jurisdiction even after a case has been argued. - Congress may not order the Court to reach a particular outcome on the merits of a specific case. - Congress may change the legal rules which determine the outcome of pending cases. Maltzy Cases for Consideration: Ex Parte McCardle (1869), United States v. Klein (1872), Robertson v. Seattle Audubon Society (1992), Bank Markazi v. Peterson (2016) Delegation of Power - (1) no limit exists on Congress ability to delegate legislative power - (2) legislative vetoes and line Item vetoes are unconstitutional - legislative veto: refers to a resolution by a legislative body that invalidates an action by the executive branch - line item veto: allows the executive to cancel specific parts of a bill (usually spending provisions) while signing into law the rest of the bill. - for congress to act there must be bicameralism and presentment to the president to sign or veto - POTUS must sign or veto the bill in its entirety - - - legislative veto when congress attempts to overturn the executive action without bicameralism or presentment - ALWAYS UNCONSTITUTIONAL - line item veto when prez attempts to veto parts of the bill and sign the rest into law - ALWAYS UNCONSTITUTIONAL (3) congress cannot delegate executive power to itself or its officers - congress cannot give to congress the power to enforce or implement the law Power of the Judiciary Branch - Article III of Constitution creates SCOTUS & the lower courts - First Judiciary Act 1789: created district courts and the courts of appeals - federal courts can only hear a case if its constitutional (pertaining to the constitution) and statutory authority (if there is a statute pertaining to the case) - state courts can hear both federal and state claims, unless there is a statute creating exclusive jurisdiction for the federal courts - Eligibility for Supreme Court Review: - all justiciability requirements must be met - (1) MOST cases come to SCOTUS by writ of certiorari - Rule of Four: the Supreme Court's practice of granting a petition for review only if there are at least four votes to do so. The rule is an unwritten internal one; it is not dictated by any law or the Constitution - (a) all cases from state courts go to SCOTUS by writ of certiorari, all cases from US Appeals go to SCOTUS by writ of certiorari - (b) appeals exist only for SCOTUS by 3 judge federal courts - court is OBLIGATED to hear these cases - (c ) original and exclusive jurisdiction in suits between state gov. - Eligibility for Lower Federal Court Review - all justiciability issues must be met - (1) fed and state courts cannot hear suits against state governments - (a) principle of sovereign immunity - (I) 11th amendment bars suits against state govs in federal courts - doesnt matter of citizenship or for money - (II) sovereign immunity prevents suits against state gov in state courts or federal agencies - Alden v. Maine - (b) exceptions to sovereign immunity - (I) waiver - - state may waive its sovereign immunity and consent to be sued - (II) states may be sued pursuant to federal statutes adopted by congress adopted by congress under sec 5 of the 14th amendment - congress cannot override sovereign immunity using any of its other legislative powers - (III) federal gov may sue state gov - (IV) bankruptcy proceedings - (c ) state officers can be sued - state officers can be sued in injunctive relief - state officers cant be sued if its the state treasury that would be liable for retroactive damages - only exception is indemnification (2) abstention - where fed court has jurisdiction and justiciability but the fed court abstains - fed courts generally may not enjoin pending state court proceedings Justiciability - justiciability: concerns the limits upon legal issues over which a court can exercise its judicial authority. It includes, but is not limited to, the legal concept of standing - standing: the right of a party to challenge the conduct of another party in court - justiciability doctrines: must be met to be able to hear the case - (1) Standing - MOST Important - Article III, Section II, “The judicial power shall extend to all Cases…arising under this Constitution and Laws of the United States.” - Article III Standing Requires injury in fact and redressability - Some limitations on standing are imposed by the Constitution, and cannot be removed by statute, & prudential limitations are judge-made requirements that can be overridden by Congress. - (a) Injury: plaintiff must allege or prove they have been or will be injured, may only present only personally suffered injuries - injury must be concrete, not general so harm is shared by all people - must be a direct injury, not that it “hurt my heart” (Sierra Club v. Morton, 1972) - must be an actionable causal relationship between defendant and plaintiff’s injury (Arlington Heights v. MHDC, 1977) - third-parties cannot litigate on behalf of injured parties (Hollingsworth v. Perry, 2013) - denial of equal treatment is an injury in itself (Associated General Contractors v. City of Jacksonville, 1993) - - - - - - - - congress cannot create standing if there is an Article III problem (Hayburn’s Case, 1792) (Lujan v. Defenders of Wildlife, 1992) Maltzy Cases to Consider (Injury & Redressability): Allen v. Wright (1984), Massachusetts v. Environmental Protection Agency (2007), Transunion v. Ramierez (2021), Lujan v. Defenders of Wildlife (1992), California v. Texas (2021) (b) Redressability: the court will actually be capable of doing something to correct or make up for the plaintiff's injury - court's ruling must address the specific injury in fact which prevents raising Constitutional concerns not related to the injury in fact - ISSUE CANNOT BE MOOT (c) Causation: causal relationship between the defendant's conduct and end result - must know that the defendant is the cause of the injury (d) No Third Party Standing: party can only assert his or her own rights and cannot raise the claims of right of a third party who is not before the court - exceptions: a plaintiff may present if they meet ALL other standing - (i) if there is a sufficiently close relationship between the plaintiff and injured third party - (ii) if the injured third party is unlikely to assert his or her own rights - (iii) organizational standing/associational standing: when can an organization assert the rights of members? - (1) the indiv. members must have standing to sue - (2) the interest must relate to what the organization is about - (3) neither the claim or the relief requested must require the individuals participation (e) Challenging Gov. Expenditures - taxpayers generally do not have standing to challenge unconstitutional federal expenditures (Frothingham v. Mellon 1923) - exception if expenditure is in violation of the Establishment Clause (Flast v. Cohen 1968) (f) No Generalized Grievances limitations preclude plaintiffs from asserting a generalized injury, often said to be suffered "by all or a large class of citizens." (g) Legislators Challenging Legislation - Individual legislative powers are too abstract to argue a violation of separation of powers (Raines v. Byrd 1997) - - - Legislature as an entity can challenge violation of separations of powers (Arizona State Legislature v. Arizona Independent Redistricting Com. 2015) - (h) Prudential Considerations - Requirement that plaintiff is the proper party to bring the claim - Sometimes requires a Congressionally defined cause of action - Higher bar than Article III requirements - Maltzy Cases to Consider (Rights of Third Parties): Singleton v. Wulff (1976), Barrows v. Jackson (1953), Craig v. Boren (1976), Gilmore v. Utah (1976), Elk Grove Unified School District v. Newdow (2004) - Maltzy Cases to Consider (Generalized Grievances): United States v. Richardson (1974) (2) Ripeness - may the fed court grant pre enforcement review of a statute or regulation? - ​usually people just violate a law to challenge it but sometimes people just want a declaratory judgment - TEST: Is there a request for declaratory judgment? if so, refer to ripeness - two criteria to determine ripeness: - (a) the hardship the plaintiff will suffer without pre enforcement review - the greater the hardship the more willing the court will be to review it pre enforcement (declaratory judgment) - (b) the fitness of the issues and the record for judicial review - Does the court have all the things it needs to evaluate or do they need an actual prosecution? - ex. Abbott Laboratories v. Gardner (3) Mootness - if events after filing of the lawsuit end the plaintiffs injury the case will be dismissed as moot - a plaintiff must present a live controversy at all stages of fed court proceedings - exceptions to mootness doctrine - (a) wrongs capable of repetition but evading review - some injuries will happen over and over again that are so short that it would always evade review - ex. Roe v. Wade - (b) voluntary cessation - if the defendant voluntarily halts the offending practice but is free to resume at any time the case is not dismissed as moot - (c) class action suits - - if the named plaintiff claim in a class action becomes moot the class action will not be dismissed as long as one member of class action has ongoing injury (4) Can NOT be Political Question Issues - allegations of constitutional violations that fed courts will not adjudicate - some claims left to the political branches to resolve, the Courts are prohibited from addressing political questions and intervening in powers of Executive or Legislative branches - nonjusticiable political questions: - (a) cases under the republican form of government clause - refers to art IV sec IV, that the US will guarantee a republican form of government - also called the guarantee clause - Luther v. Borden established precedent that these are nonjusticiable political questions - (b) challenges to the president's conduct of foreign policy - ex. unconstitutionality to Vietnam, Goldwater v. Carter - (c ) challenges to the impeachment and removal process - ex. Nixon v. United States - (d) challenges to partisan gerrymandering - CARR TEST FOR POLITICAL QUESTION: - Textually demonstrable commitment to another branch of government Lack of judicially discoverable and manageable standards for resolving the dispute - Impossibility of deciding without making a policy determination “of a kind clearly for nonjudicial discretion.” - Case where judicial resolution would express “lack of respect due to a coordinate branch of government.” - Either unusual need for unquestioning adherence to a political decision that was already made, or “potentially of embarrassment from multifarious announcements by different departments on the same issue.” - Maltzy Cases to Consider: Baker v. Carr (1962), Powell v. McCormack (1969), Nixon v. United States (1993), Rucho v. Common Cause (2019), Goldwater v. Carter (1979), Zivotofsky v. Clinton (2012) Dormant Commerce Clause & Intergovernmental Interactions - Preemption - article 6 of constitution has the supremacy clause - fed law v. state law, the state law is deemed preempted - (1) Express Preemption - the federal statute says that the federal law is exclusive in a field - - any time congress has authority to act congress can say that federal law is exclusive, then state and local laws are preempted - ex. Fed Meatlabeling Act - (2) Implied Preemption - (a) if federal law and state law are mutually exclusive then the state law is deemed preempted - occasionally called conflict preemption, if not possible to comply with both federal and state law - states can set stricter environmental and safety standards than federal law unless congress clearly prohibits this - (b) if a state or local law impedes the achievement of a federal objective the state or local law is deemed preemptive - (c ) if congress evidences a clear intent to preempt state and local law then state and local laws are deemed preempted - sometimes called yield preemption - if fed law wants to wholly occupy a field then state and local laws are preempted - immigration law is most prominent example, Arizona v. United States - (3) States Cannot Tax or Regulate Federal Government Activity - McCulloch v. Maryland - John Marshall: power to tax is power to destroy - unconstitutional to pay a state tax out of the federal treasury - states cant regulate the fed government if they are placing a substantial burden on the fed activity Dormant Commerce Clause - (1) Definitions - (A) The Dormant Commerce Clause: the principle that state and local laws are unconstitutional if they place an undue burden on interstate commerce - (1) authority for congress to act - (2) a limit on what state and local governments can do - always focus on who is the actor in the question is it congress doing something, then focus on is it in the scope of congress’ power - OR is it a challenge to something that a state or local government has done - (B) Privileges and Immunities & Clause of Article IV: no state may deprive citizens of other states of the privileges and immunities that it affords its own citizens - anti discrimination provision - limits the ability of state and local government to discriminate out of staters with regard to what are deemed pri - (C ) The Privileges OR Immunities Clause: it has been used only by SCOTUS to protect the right to interstate travel - - - - - no state may deprive a citizen of the us to the privileges and immunities of the united states - protect people from their own state rather than other states - Slaughterhouse Cases in 1873 - Saenz v. Roe - protect right to travel (2) Does the state or local law discriminate against out of staters? - OR does it treat out of staters and instaters alike - ex. Philadelphia v. New Jersey, Granholm v. Heald (3) Analysis if it DOES NOT discriminate against out of staters - (A) the Privileges and Immunities Clause of Art IV does not apply - anti discrimination provision, if theres no discrimination it does not apply (B) if the law puts a burden on interstate commerce it violates the dormant commerce clause if the burdens on interstate commerce outweigh the benefits in the law - if the burdens outweigh the benefits the law is unconstitutional - illinois mud flaps case (4) Analysis if the state law DOES discriminate - (A) if the law puts a burden on the interstate commerce then it violates the dormant commerce clause unless it's necessary to achieve a very important governmental purpose - laws will be upheld only if the state or local government demonstrates heavy burden and that there is a specific purpose - must show the law is necessary to achieve that objective - Maine v. Taylor (5) Exceptions - (A) Congressional Approval - if congress has approved a state or local law it is then permissible even if it otherwise it would violate the dormant commerce clause - once congress has acted the matter is outside the realm of the DCC, even if otherwise it would violate - (B) Market Participant Exception - a state or local government can favor its own citizens in receiving benefits from gov programs or in dealing w gov owned businesses - ex. California colleges can charge more in tuition to out of state students than to in state students, they can favor these people bc they've been paying taxes etc - ex. south dakota cement factory, less for instate purchased cement and more for out of state purchased cement - gov was the market participant, justifies the exception - - (B) If a state or local government discriminates against out of staters in the right to earn a living it violates the privileges and immunities - (1) there must be discrimination against out of staters - (2) the discrimination must be with regard to fundamental rights or the ability to earn ones livelihood - Toomer v. Witsell, Piper v. New Hampshire - Montana elk hunting license - in state small fee, out of state large fee, elk hunting is a hobby and has nothing to do with earning a livelihood - (3) corporations and aliens cannot invoke this provision - citizen refers to those who are united states citizens, thus corp and non citizens - if p in question is a corporation challenging use ONLY dormant commerce clause - if p in question is a citizen must include dcc and priv - (4) the discrimination will be allowed only if its necessary to achieve a substantial govvernment intreest - gov needs to show that no alternative reaches its objective - Breakdown for Approach: - start by asking does the state or local law discriminate against out of state - IF NO then privileges and immunities is inapplicable and the law violates DCC if its a burden on interstate commerce and the burdens outweigh the benefits - IF YES and it puts a burden on interstate commerce it is unconstitutional unless it's necessary to achieve a very important government objective keep in mind exceptions: congressional approval and market participant exception - IF YES and its regard to ability to earn a living then it violates the DCC unless its necessary to achieve substantial government purpose State & Local Taxation of Interstate Commerce - (A) State and Local Taxation of Interstate commerce - (1) States may not use their tax systems to help instate businesses at the expense of out of state businesses - ex. ohio law on ethanol, if they purchase in state ethanol there is a tax benefit if they purchase out of state there is not a tax benefit, unconstitutional - ex. dairy business taxes, unconstitutional - (2) state only may tax activities that have substantial connection to that state - ex. business that wholly operates in new york but has some operation in texas, texas cannot tax - (3) state taxation of interstate companies must be fairly apportioned - ex. interstate trucking company, state only taxes that which is connected to the state - Full Faith & Credit - a court from one state MUST enforce a decision from a court from another state so long as all the following requirements are met - (1) court that issued the judgment must have had both personal and subject matter jurisdiction - (2) the judgment must be on the merts - (3) the judgment must be final - Enforcement Clause - Congress shall have the power to enforce provisions of the 14th Amendment (Fourteenth Amendment, Section 5) - The legislation must have congruence and proportionality between the injury prevented or remedy and the means adopted to prevent that injury (City of Boerne v. Flores) - Factors for proportionality (but not required): targets likely areas of discrimination, affects a discreet class of state laws, has a termination date (City of Boerne v. Flores) - Method of remedy must be appropriate for current world not based on old systems of racism (Shelby County v. Holder) - Congress cannot use the Enforcement Clause to justify creating substantive rights (City of Boerne v. Flores) - A small pattern of constitutional right violations under rational basis is not enough to pass the test (University of Alabama v. Garett) - Evidence of regular constitutional rights violations under heightened scrutiny would likely be sufficient (Nevada v. Hibbs) (Tennessee v. Lane) - Proof can come from non-state actors (Tennessee v. Lane) - Rights of 14th Amendment only apply to state actions, so Section 5 cannot be used for private actors (US v. Morrison) 5th Amendment Takings - Public Use - Government transfer of property to private actors for public use can include economic development or broadly public purpose (Kelo v. City of New London 2005) - Government is given deference in determining whether the ends are public purpose (Kelo v. City of New London 2005) - Implicit Takings - Regulations that go too far are takings (Penn. Coal v. Mahon 1922) - Use ad hoc, factual inquires looking at character of government action, economic impact of regulation and interference with reasonable investment backed expectations (Penn Central v. New York 1978) - Buying property after a regulation passed is not dispositive (Palazzolo v. RI) - Permanent physical occupations, regardless of public interest, are always takings (Loretto v. Teleprompter 1982) - Permanent 100% loss in economic value is usually a taking unless regulating nuisances (Lucas v. S.C. Coastal Council) - - Factors to consider if dealing with a nuisance: degree of harm to public land or resources, effects to adjacent private property, the social value of the activities and the ease at which the harm can be avoided by the property owner or government (Lucas v. S.C. Coastal Council) - Temporary 100% loss in economic value is still not a taking (Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency 2002) - Exactions as Takings - There must be a logical nexus between the legitimate state interests and the conditions imposed for approval of the permit (Nollan v. California Coastal 1987) - Logical nexus must have rough proportionally with individualized determinations on the impact of permits applied for, but not necessarily exact mathematics (Dolan v. City of Tigard 1994) - No taking if permit is denied with no conditions, but no difference if denied with conditions or accepted with conditions or if there is a demand for money (Koontz v. St. Johns River Water Management District 2013) Due Process Due Process Definition Substantive Due Process Definition - Economic Substantive Due Process - Originally, due Process prevented state police power from interfering with the right to enter a contract unless the law was to protect public health, morals or safety (Allgeyer v. Louisiana 1897) - The theory of economic Due Process is a form of judicial activism that advances a particular economic ideology (dissent) (Lochner v. New York 1905) - Last time the Court ruled an economic regulatory statute as violating the Due Process Clause (Morehead v. New York 1936) - Regulations that are reasonable in relation to its subject and adopted to meet the interests of the community meet Due Process (West Coast Hotel v. Parrish 1937) - Rational basis of regulation with deference to legislative findings meets Due Process (United States v. Carolene Products 1938) - Rational basis means regulating part of an industry sometimes requires regulating another part outside of the interest even if no evidence to do so (Williamson v. Lee Optical 1955) - Bill of Rights - Originally 5th Amend. Due Process didn’t apply to state action (Barron v. Baltimore) - Privileges and immunities of the Fourteenth Amendment only applies to national citizenship (therefore not state action) and does not create new rights (Slaughter House Cases) - Freedom of speech and press are fundamental rights and liberties protected by 14th Amendment Due Process (Gitlow v. New York 1925) - The 14th Amendment was meant to extend the Bill of Rights over the states (Black, dissent) (Adamson v. California 1947) - - Amendments can be considered as a whole rather than on a right-by-right basis (Duncan v. Louisiana 1968) - The Second Amendment is a fundamental right to be incorporated (McDonald v. City of Chicago 2010) - 1st, 2nd, and 4th Amendments fully incorporated - Most of 5th, 6th & 8th Amendment rights incorporated - 3rd & 7th Amendment held does not apply to states Privacy Rights - The Constitution guarantees zones of privacy inferred from Amendments 1, 3, 4, 5 and 9 & require strict scrutiny of state interference with it (Griswold v. Connecticut) - Right to acquire contraception & family planning services (Griswold v. Connecticut) - Abortion - Old framework strict scrutiny: (1) first trimester: no legitimate interest in interfering with a woman’s private choice to terminate a pregnancy (2) second trimester: the state could regulate abortions because there is a legitimate interest in protecting the woman’s health (3) third trimester: the state has a legitimate interest in preserving the potential human life, except if abortion is necessary for the health of a mother (Roe v. Wade 1973) - NEW FRAMEWORK: UNDUE BURDEN TEST - (1) The state has a legitimate interest in the woman’s health and the fetus at all times during pregnancy (2) the state cannot impose a substantial undue burden on the right to terminate a pregnancy before viability (3) after viability, the state’s interest in the fetus is strong enough to legitimately restrict abortions (Planned Parenthood v. Casey 1992) - Requiring a 24 hour waiting period or educational materials so woman makes an informed choice is not an undue burden (Casey) - Requiring consent from husband is an undue burden, but not from parents (Casey) - No undue burden if medical uncertainty (Gonzales v. Carhart) - Increased driving distances (150 miles) and closing facilities so open facilities increase by a factor of 5 is indicative of undue burden (Whole Woman's Health) - Undue burden is only relevant if it creates an undue burden to a large fraction of relevant cases (Gonzales v. Carhart 2007) - Judicial findings of medical fact and legislative findings are persuasive to de novo review for undue burden (Whole Woman's Health v. Hellerstedt 2016) - Family Rights - Fundamental right for parents to choose the educational upbringing of their children (Pierce v. Society of Sisters) - - - - Matters relating to family life are protected by Due Process strict scrutiny (Moore v. City of East Cleveland 1977) Right to marry is fundamental and requires strict scrutiny only if it significantly interferes with the decision to enter a marital relationship (Zablocki v. Redhail 1978) Biological fathers of children out of wedlock do not have a fundamental right to have custodial rights over children raised with biological mothers and her husband (Michael H v. Gerald) Post-Obergefell there likely is a fundamental right involved here Courts cannot interfere with a biological mother’s Due Process rights by granting custody to grandparents (Troxel v. Granville) Bans on the right for same-sex couples to marry interferes with the fundamental Due Process right of marriage (Obergerfell v. Hodges) If the state uses a presumption of paternity in recording birth certificates, then female spouses of female partners must also be presumed on birth certificates (Pavan v. Smith) Sodomy laws are an unreasonable interference with the Due Process rights of privacy (Lawrence v. Texas) There is no fundamental right to assisted suicide and states have a legitimate interest in preserving human life (Washington v. Glucksberg) Equal Protection - (1) Identify government classification in question (2) identify legitimate states interests (3) analyze whether it is an under-include or over-inclusive of interests (4) examine under rational basis test (5) examine whether the level of scrutiny should be raised (6) identify and analyze discriminatory intent (7) analyze interests under that scrutiny (narrowly tailored to meet those goals?) - “Nor [shall any state] deny to any person within its jurisdiction the equal protection of the laws” (Fourteenth Amendment, Section 1) - Rational Basis - To pass the rational basis test, the statute or ordinance must have a legitimate state interest, and there must be a rational connection between the statute's/ordinance's means and goals. - USE ON: Economic Liberties, Right to Foreign Travel, Alienage Classifications (only on Self Government & the Democratic Process AND Congressional Discrimination), Certain Types of Discrimination (Age, Disability, Wealth, Economic, Sexual Orientation/LGBT+ Rights) - A law will not violate equal protection if there is any reasonably conceivable state of facts that could provide a rational basis for the classification (FCC v. Beach Com.) - Challengers have the burden to negate every conceivable basis for the law, whether or not that actually motivated passage of it (FCC v. Beach Com.) - - Rationale is not subject to fact-finding and can be unsupported by evidence or empirical data (FCC v. Beach Com.) - No rational basis to target a specific group (LGB) and remove rights granted to them already (Romer v. Evans) - No rational basis to treat people with disability differently if the reason is just to discriminate (Cleburne v. Cleburne) Levels of Scrutiny - Strict Scrutiny: often used by courts when a plaintiff sues the government for discrimination. To pass strict scrutiny, the legislature must have passed the law to further a "compelling governmental interest," and must have narrowly tailored the law to achieve that interest. - USE ON: Right to Privacy (Right to Marry, Right to Procreate, Right to Custody over one’s Children, Right to Keep a Family Together, Right for Parents to Control the Upbringing of their Child, Right to Reproductive Autonomy) - Intermediate Scrutiny: a test courts will use to determine a statute's constitutionality. Intermediate scrutiny is only invoked when a state or the federal government passes a statute which negatively affects certain protected classes - USE ON: Gender Classifications, Discrimination against Undocumented Children, Discrimination against Bastard Children - Classifications based on gender must serve an important state interest and be substantially related to the achievement of those goals (Craig v. Boren) - Reducing workload of administrative state is a legitimate interest, but not at expense of discriminating against women (Reed v. Reed) - Legitimate interest to prevent teen pregnancy (Michael M. v. Superior Court) - Legitimate interest to treat men & women differently for draft with facts showing it would be detrimental to military flexibility (Roster v. Goldberg) - Legitimate interest in immigration to require higher proof for children of unwed citizen fathers than children of unwed citizen mothers for the goal of a relationship between the parent, child and US culture because fathers aren’t always present while mothers give birth (Nguyen v. INS) - No legitimate interest in requiring unwed citizen fathers to live longer in the country than unwed citizen mothers (Sessions v. Morales-Santana) - Legitimate interest to equalize inequality in sexes (Califano v. Webster) - No legitimate interest to discriminate against men, even if attempting to compensate for past discrimination (Orr v. Orr) - No legitimate interest to compensate for past discrimination if there is no evidence that there was past discrimination in that field (i.e, nursing) (Mississippi University for Women v. Hogan) - - - Discriminatory Intent - A race-neutral statute that is the result of discriminatory intent violates Equal Protection (Yick Wo. Hopkins) - Proving intent requires evidence laws were passed “because of” rather than “in spite of” adverse effects (Personnel Administrator of Mass. v. Feeney) - Plaintiff has burden to prove suspect classification was a factor in decision making process and then state has burden to prove the same decision would have been made regardless of the classification - Disproportionate racial impact doesn’t prove malice intent (Washington v. Davis) - Factors to consider: disproportionate impact (little weight), diversity recruitment efforts, diversity statistics among existing groups (Washington v. Davis) sequence of events leading up to a decision, legislative and administrative history, numbers so extreme (Arlington Heights v. Metro. Housing Development) - Factors if a suspect class is a governing majority: - how long a group has held the status - relative power inherent to elected officials who are of that group - the group's political power to the issue in hand (Casteneda v. Partida) Laws on Basis of Race - School DeSegregation - Schools have a legitimate interest in eliminating segregation barriers in a systematic and effective manner, but they have the burden to prove that any time needed for compliance is necessary for the public interest and consistent with good faith (Brown v. Board of Ed. II) - School districts have a legitimate interest to consider race when drawing school boundary lines (Parents Involved v. Seattle) - Segregation is considered only within the context of the school district and not examined regionally unless there is a significant segregation affect on a neighboring district (Milli ken v. Bradley) - Schools are only liable under Equal Protection for de jure segregation and not de facto segregation (Pasedena v. Spangler) - Schools have a burden to show de facto racial disparities are not a part of discriminatory action (Swann v. Charlotte-Mecklenburg) - To prove segregation in a place without a history of segregation (i.e., the North) need to prove: (1) intentional acts by school authorities to maintain or create segregation - (2) the existence of segregation from those acts (Keyes v. Denver) - Affirmative Action - The government only has a legitimate interest to remedy affect of past discrimination if there is documented evidence of discrimination specific to that locality and industry (City of Richmond v. JA Croson Co.) - - - Increasing student body diversity is a legitimate interest because of the wider benefits that come from a diverse academic setting (Grutter v. Bollinger) - Racial quotas can never be narrowly tailored because there is no evidence of the percentage needed to remedy a past of discrimination (City of Richmond v. JA Croson Co.) - Schools don’t need a defined number of critical mass because that would look more like a quota (Fisher v. University of Texas) - When qualifications are involved, the relevant statistic is the number of minorities qualified (City of Richmond v. JA Croson Co.) - Factors of a narrowly tailored plan: race is only one factor among many for consideration, program is flexible and non-technical, fluctuation of diversity over years, defined diversity beyond race (Grutter v. Bollinger) - Attention to numbers does not mean it is a rigid quota system Gerrymandering - Redistricting that is so bizarre that is unexplainable on grounds other than race raises review to strict scrutiny - Factors to show racial gerrymandering: district shape and demographics, use of race as a predominant factor motivating the legislature's intent, subordination of traditional race-neutral districting principles like compactness, contiguity, respect for political subdivisions or communities defined by actual shared interests. - Legislatures are given a presumption of good faith - Never a legitimate interest to segregate electorate based on race - Enforcing desegregation orders - District courts can: (1) enforce transfer options (2) gerrymander school district lines (Swann v. Charlotte-Mecklenburg) - Once the purposes of the desegregation litigation have been fully achieved the School is acting in compliance with Equal Protection and it is unlikely the Board would return to a non-unitary system then a desegregation decree is terminated (Oklahoma City v. Dowell) - Factors to determine withdrawal include: (1) continued compliance in areas where supervision has been withdrawn (2) whether supervision is necessary to achieve compliance (3) whether school has acted in good faith (Freeman v. Pitts) - Remedies for district courts can include power to set aside state and local laws that prevent local governments from raising the funds they need to comply with court orders (Missouri v. Jenkins) Enforcing Desegregation Orders - District courts can: (1) enforce transfer options (2) gerrymander school district lines (Swann v. Charlotte-Mecklenburg) - Once the purposes of the desegregation litigation have been fully achieved the School is acting in compliance with Equal Protection and it - - is unlikely the Board would return to a non-unitary system then a desegregation decree is terminated (Oklahoma City v. Dowell) Factors to determine withdraw include: (1) continued compliance in areas where supervision has been withdrawn (2) whether supervision is necessary to achieve compliance (3) whether school has acted in good faith (Freeman v. Pitts) Remedies for district courts can include power to set aside state and local laws that prevent local governments from raising the funds they need to comply with court orders (Missouri v. Jenkins) An Index of Tests: Commerce Clause Test Dormant Commerce Clause Test Political Question Doctrine Presidential Subpoena Test (Trump v. Mazars) Rational Basis Test - **Is classification (policy) reasonably related to a permissible legitimate gov’t purpose? - Tests whether a governmental action is a reasonable means to an end that may be legitimately pursued by the government. - This test requires that the governmental action be “rationally related” to a “legitimate” government interest. - Under this standard of review, the “legitimate interest” does not have to be the government’s actual interest. - Rather, if the Court can merely hypothesize a “legitimate” interest served by the challenged action, it will withstand the rational basis review. Intermediate Scrutiny Test - Is the second level of deciding issues using judicial review - It must be shown that the law or policy being challenged furthers an important government interest in a way that is substantially related to that interest Strict Scrutiny Test - To pass strict scrutiny, the law or policy must satisfy three tests: - It must be justified by a compelling governmental interest. - While the Courts have never brightly defined how to determine if an interest is compelling, the concept generally refers to something necessary or crucial, as opposed to something merely preferred. - Examples include national security, preserving the lives of multiple individuals, and not violating explicit constitutional protections. - The law or policy must be narrowly tailored to achieve that goal or interest. - If the government action encompasses too much or fails to address essential aspects of the compelling interest, then the rule is not considered narrowly tailored. - The law or policy must be the least restrictive means for achieving that interest, that is, there cannot be a less restrictive way to effectively achieve the compelling government interest. - The test will be met even if there is another method that is equally the least restrictive. - Some legal scholars consider this "least restrictive means" requirement part of being narrowly tailored, though the Court generally evaluates it separately. Undue Burden Test Case Brief Index (i would like to request execution) (in order of appearance in Maltz’s ppts) Allen v. Wright, United States Supreme Court, 1984 Maltz Ppt Appearance: Justiciability Facts: Plaintiff allege that the IRS has not fulfilled its statutory obligation to deny tax-exempt status to racially-discriminatory schools. Question: To have standing to bring a lawsuit, must plaintiffs sufficiently allege that they have personally suffered a distinct injury and establish a chain of causation linking that injury to the actions of a defendant? Rule of Law & Holding: Yes. It is always insufficient for standing purposes to simply allege that the government has acted outside of compliance with the law. Hence, the parents do not have standing to sue on the first ground of their complaint because they have not alleged a sufficiently personal injury. Additionally, the parents do not have standing to sue on their second claim because the chain of causation linking the alleged inability of their children to attend a desegregated school to the specific actions of the IRS is too attenuated. There is no evidence that if the IRS actually withheld tax-exempt status from these schools that the segregating policies would change. Moreover, it is necessary to refuse standing to the parents in order to uphold separation of powers. The Court is required, under Article III of the United States Constitution, to adjudicate only actual “cases and controversies.” (Maj. Opinion by O’Connor) Maltz Thoughts: Neither the mere fact that the plaintiffs objected to the policies of the IRS nor the fact that they may have felt stigmatized by the maintenance of segregated schools constituted a cognizable injury for Article III purposes. - The diminished ability to attend an integrated school would constitute a cognizable injury. - However, the plaintiff fails the causation requirement because the link between the challenged IRS policies and the alleged injury is too attenuated to support standing, in large part because the injury itself results from the independent action of third parties. The Dissent™: parents alleged sufficient causation between the actions of the IRS and the injury suffered by their children because the effect of the IRS’s actions was to subsidize “white flight” to private schools with segregating policies. There is no separation of powers bar to the Supreme Court’s adjudication of this dispute because these two elements were present. (Dissenting Opinion by Stevens) Massachusetts v. Environmental Protection Agency, United States Supreme Court, 2007 Maltz Ppt Appearance: Justiciability Facts: State brings lawsuit alleging that the EPA had abdicated its responsibility to regulate greenhouse gasses. Question: For standing to be appropriate, must an actual case or controversy be present, characterized by a truly adversarial relationship? Rule of Law & Holding: Yes. For standing to be appropriate, an actual case or controversy must be present, which is characterized by a truly adversarial relationship. A plaintiff can show the existence of a truly adversarial relationship by demonstrating that he has suffered a concrete and particularized injury that is either actual or imminent, that the injury is fairly traceable to the defendant, and that it is likely that a favorable decision would redress that injury. (Maj. Opinion by Stevens) Maltz Thoughts: - The impact of climate change constitutes an injury in fact, even though that injury is “widely-shared.” - Even though the impact of the inaction by the EPA is small and incremental, it passes the causation test. - Similarly, despite the fact that the action by the EPA alone would not stem, it would have some effect and thus success in the lawsuit would redress part of the injury. The Dissent ™: MA does not meet the requirements of standing, majority admits Lujan v. Defenders of Wildlife, United States Supreme Court, 1992 Maltz Ppt Appearance: Justiciability Facts: The plaintiffs argued they were injured because a lack of consultation for governmental activities abroad increases the rate of extinction of endangered species. The Secretary moved to dismiss based on the plaintiffs’ lack of standing. Question: Does a party have standing to litigate a generalized grievance against the government in federal court if she suffered no personal injury other than the harm suffered by all citizens? Rule of Law & Holding: No, under Article III of the Constitution, a party does not have standing to litigate a generalized grievance against the government in federal court if she suffered no personal injury other than the harm suffered by all citizens. Maltz Thoughts: The Dissent ™: Maltz Ppt Appearance: Justiciability Facts: Question: Rule of Law & Holding: Maltz Thoughts: The Dissent ™:
