Outline

Wednesday, April 25, 2018 1:36 AM

Powers of the Judicial - Article 3

• Federal judiciary act if 1789 created district and appellate courses
• Must be constitutional and statutory authority for federal courts to hear cases
• State courts can hear anything, state and federal claims, unless a statute gives the federal courts the
sole jurisdiction
• "cases and controversies"
○ Limits on judicial powers. Justiciability doctrine:
-Justiciability
 Standing
• Standing- proper plaintiff
□ Is the plaintiff the proper party to bring this matter to the court for adjudication
○ Requirement for injury
 This is the most important ○ Defendant caused the injury/remedy injury
 Requirements:  Third party allowed: sufficient close relationship, if
◊ Injury: allege that they have, or will be, injured injured party is unlikely to assert their own right, or
◊ Only personally suffered injuries associational
◊ (Sierra Club v. Morton) ○ No Generalized grievences are allowed- must not be sueing
 SC says they lacked standing because there members did not use solely as citizen or taxpayer
the park that they wanted to build on • Rightness- may the federal court gain reinforcement reviwe of
statute
◊ Clapper v. Amnesty International: Plaintiffs lacked standing because they
○ Look at two things
could not show if there communication was personally being intercepted
 The hardship the plaintiff will suffer without
by the NSA reinforcements review
 Plaintiff seeks injunctive or declaratory relief for a likely of future harm  The fitness of the issues and record for judicial review
◊ City of LA v.Lions • Mootness
 Lions sued for injunction to stop chokehold. SC said that Lions ○ If events after the lawsuit (live controversy) end the injury, it
lacked standing because he did not show a likelihood of future ends
personal injury  Exceptions:
 Causation and Regresability: allege and prove that the defendant caused the  Wrongs capable of repetition and evading
injury so that a favorable federal equipped decisions can offer a remedy review. (Roe v. Wade) (she can become
pregnant again)
◊ Simon v. Eastern Kentucky: in order for a hospital to have tax exempt
 Voluntary sessation-If D voluntarily halts the
status they need to care for indigents. SC ruled they lacked standing offending practice, but is free to assume at any
because the plaintiffs can't show that the revenue rule was the cause of time, the case is not dismissed as moot
the lack of free care  Class action name plaintiff leaves, but one other
◊ No third party standing is allowed: The plaintiff cannot present the member is still their
claims of others who are not before the court • Political question
 Third party standing is permitted if there is a sufficiently close ○ Allegations of constitutional violations that the federal courts
relationship between the plaintiff and the third party will not adjudicate. Some claims (these) are left to the
– Example: doctor/patient relationship asserts abortion rights branches to resolve
 Cases under republic form of government
on behalf of their patients
 Challenges to the presidents conduct of foreign policy
– Craig v. Burrent: bartenders assert rights on behalf of male  Challenge to the impeachment and removal process
customers who wanted to buy beer like women at 18  Challenges to partisan gerrymandering
– Close relationship/identity of  When political party controling legislature draws
 Exception2: allowed if the injured third party is unlikely to assert districts to maxamize for that party
their own rights
 Exception3- associational/organizational standing-
– The individual members that have standing to sue
– The interest must be germane/related to the organizations
purpose
– Niether the claim, nor relief requested, must require the
individuals participation
 Standing: No generalized grievances are allowed, they lack standing
□ Plaintiff must not be suing solely as a citizen/tax payer interested in the government
following the law
 US v. Richardson (1978)
◊ Congress shall give regular statement and account of all expenditures.
Plaintiff argued that secrecy of certain budgets violated it .
 Court: said that his only claim was that he was a citizen with a
generalized grievance
 Narrow exception: tax payers have standing to challenge government
expenditures pursuant to a statute is violating the establishment clause
◊ Flast v. Cone:
◊ Valley Ford Cristian College case: taxpayers bring challenge against tax
beneift
 Court: tax payers have standing to challenge money/expenditures
violating establishment clause, not property
 Pine v. Freedom: Does not count toward money taken from
general executive revenue
◊ Arizona School Tuition v Wynd: State passed law allowing $500 in tax
credit for school tuition organization that usually went to religious
schools.
 Court: Taxpayers have standing to challenge money, not
government giving of tax credits
 Rightness (second justiciability)
□ May the federal government grant reinforcement review of a statute or regulation
 In assessing rightness you must look at:
◊ The hardship the plaintiff will suffer without reinforcements review
◊ The fitness of the issues and record for judicial review
 Does the federal court have all that it needs to effectively decide
the issue?
◊ Abba Lab. v. Gardner: prescription drug ads, drug company brought suit
saying they lacked authority to enact the rule. Court: Nothing to be

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 saying they lacked authority to enact the rule. Court: Nothing to be
gained by waiting for prosecution
 Mootness: plaintiff must present a live consequence (ongoing issue). If anything happens
during the case that fixes plaintiffs injury, then the issue is moot
◊ Exceptions:
 Wrongs capable of repetition and evading review. (Roe v. Wade)
◊ Voluntary sesation: If D voluntarily halts the offending practice, but is
free to assume at any time, the case is not dismissed as moot (racial
hiring practice)
◊ Class action: if the main plaintiff becomes moot, the class will not
become moot so long as at least 1 member of the class has an ongoing
injury
1) Political Question Doctrine
□ Allegations of constitutional violations that the federal courts will not adjudicate.
Some claims (these) are left to the branches to resolve
□ Nonjusticiable political questions:
1) Cases under the republican form of government clause
i) Provision in Article 4 section , US Shall guarantee to each state a
republican form of government (guaranteed clause)
 Luther v. Borden
 Case of direct democracy v. republic will be dismissed
2) Challenges to the presidents conduct of foreign policy
i) Waging war without a declaration of war (Vietnam) all dismissed
ii) Goldwater v. Carter: Carter rescinds Taiwan treat. Senator sues. SC
ordered that the case be dismissed out of foreign policy non justiciable
3) Challenge to the impeachment and removal process
i) Nixon v. US: Judge Nixon impeached by house, removed by Senate. SC
impeachment and removal are nonjusticiable political questions
4) Challenges to partisan gerrymandering
i) Jubileer, Lulac v Perry: challenges to partisan gerrymandering are
partisan political questions

For Supreme Court Review:

• Virtually all cases come by writ of certiori
○ 4 justices want to hear it, then they hear it. If not, then no
○ All cases from state courts go to the SC by Writ
○ All cases from US Courts of Appeals by Writ
○ Appeals exist only for SC review of decision by 3 judge federal district courts
○ If a statute says a case must be appealed to SC, the SC is obligated to take it
 Now though, virtually everything is through Writ
 Unusual procedure: 3 judge federal district court challenge by statute
○ The SC has original and exclusive jurisdiction to suits between state governments
○ Marbury v. Madison: congress cannot expand the original jurisdiction of SC
○ Under current statutes: suits between state governments
○ Generally the SC may hear a case only after there is a prior final judgement of the highest state
court, US court of appeals, or three judge panel
 All state appeals/federal must be exhausted prior to SC
○ For SC review of state court decisions there must not be an independent and adequate state law
ground of decision
 If a state court decision's rests on(1) federal law and (2) state law, if the SC cannot change
results of the case by Federal issue, then they cant hear the case.
□ Example: Victim beat up by LAPD. Two claims of federal con claim of excessive police
force and state law battery claim. Jury gives verdict for plaintiff of 100k for either
claim. LAPD wants SC court review after appealing, but they cannot grant review
because the plaintiff would win 100k for either claim only
Lower Federal Court Review:
• All justiciability requirements must be met
• Federal courts and state courts cannot hear suits against state governments
○ Sovereign immunity: 11th amendment bars suits against state governments in the Federal Courts
○ Sovereign immunity prevents suits against states against suits within state courts or federal
agency's- Alden v. Main: Probation officers claimed they were owed money by the state. No
forum for them to sue because it was a federal law claim
 Exceptions to sovereign immunity
1) Waiver of the state and consent to be sued
2) States may be sued pursuant to federal statutes from section 5 of the 14th
amendment. Authorizes congress to enact laws check for 14th amendment
3) Federal government suing a state government
4) bankruptcy proceeding
○ State officers may be sued for injunctive relief
 Unconstitutional law: state officer who is responsible for caring out that law is the person
sued (they can be personably liable)
 State officers cannot be sued where the state treasury would be liable for retroactive
damages
□ Exception: indemnification. Voluntary waiver of state or local government
○ Abstention:
 Federal court has jurisdiction but does not exercise
 Federal courts may not enjoin pending state court proceedings Congress may act only when it has expressed or implied authority
No general federal police power
• Necessary and proper clause (Mclough v. Maryland)
○ Army and navy bake sale.
• Tax and spending clause/regulate commerce
Federal Legislative Power (1:08) ○ Tax and spend for general welfare
• Congresses authority to act ○ Obamacare Sibelious
○ Only if there is expressed or implied authority • Commerce Clause

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 • Necessary and proper clause (Mclough v. Maryland)
○ Army and navy bake sale.
• Tax and spending clause/regulate commerce
Federal Legislative Power (1:08) ○ Tax and spend for general welfare
• Congresses authority to act ○ Obamacare Sibelious
○ Only if there is expressed or implied authority • Commerce Clause
○ State and local: police power (and anything except prohibited by constitution) ○ US v. Lopez: gun free school zone act as incantational as it
○ There is no general federal police power did not have anything to do with interstate commerce.
○ Necessary and proper clause Congress may do this to regulate interstate commerce
 Congress may choose any means not prohibited by the constitution to carry out it's lawful ◊ Regulate channels of interstate commerce
authority (highways, water, internet)
◊ Instrumentalities and person or things in interstate
 Congress may raise an army and a navy
commerce. (gibbons case: all forms of intercourse,
○ Taxing spending and commerce clause power
electricity, radio waves, stock, insurance because
 Congress may tax and spend for the general welfare they go across state lines)
□ National v. Sibelius (Obamacare): SC said it is constitutional to have individual ◊ Regulate activities that have substantial effect on
mandate as a taxing power interstate commerce (Gonzalez v. raze: controlled
○ Commerce clause substance, SC said weed is bought and sold across
 Regulate commerce with foreign nations, Indian tribes, and among the states the country and created an effect)
□ US v. Lopez: gun free school zone act as incantational as it did not have anything to □ Qualification: noneconomic activity,
do with interstate commerce. Congress may do this to regulate interstate commerce substantial effect cannot be based on
 Regulate channels of interstate commerce (highways, water, internet) cumulative impact
□ US v. Morrison: Victims suing rapists in fed
 Instrumentalities and person or things in interstate commerce. (gibbons case:
court. This was noneconomic, and had an
all forms of intercourse, electricity, radio waves, stock, insurance because they effect across country but was still
go across state lines) unconstitutional
 Regulate activities that have substantial effect on interstate commerce ◊ Congress may regulate only economic activity, not
(Gonzalez v. raze: controlled substance, SC said weed is bought and sold across inactivity: Sibelius case.
the country and created an effect) ○ Congress cannot compel state legislative or regulatory
◊ Qualification: noneconomic activity, substantial effect cannot be based activity ny v. us, Brady bill
on cumulative impact ◊ Qualifications: congress can put strings by grants on
◊ US v. Morrison: Victims suing rapists in fed court. This was noneconomic, states to have them act, so long as the conditions
and had an effect across country but was still unconstitutional are clearly stated, related to the purpose of
program, and they are not unduly coercive. South
 Congress may regulate only economic activity, not inactivity: Sibelius case.
Dokota highway ID thing, Sibelious section forcing
○ 10th amendment: all powers not granted to the US nor prohibited to the states are reserved to things or else medicaid gone was unconstitutional
the states and people because they depend on them so much
 Congress cannot compel state legislative or regulatory activity ○ Congress may prohibit harmful commercial activity by state
□ NY v. US: every state had to clean up nuclear wastes. SC said unconstitutional governments
□ Prince v. US: Brady handgun: unconstitutional because it was forcing laws □ Reno v. Condom: federal driver's getting drivers
□ Qualifications: congress can put strings by grants on states to have them act, so long licesnes: SC said congress prohibited activity that
as the conditions are clearly stated, related to the purpose of program, and they are was harmful
not unduly coercive ○ Section 5 of the 14th amendment
□ South Dokota v. Coe: highway grant on strings because they had states mandate 21 □ Authorizes congress to adopt laws that enforce the
14th amendment
year old drinking law
□ Congress cannot create or expand new rights or
□ Sebelious: states had to cover everything within the 130% of poverty line. States
scope of rights
were so dependent on federal Medicaid that it became a gun to their head to accept  All they can do is legislate to prevent a
conditions remedy violation of rights already recognized.
 Congress may prohibit harmful commercial activity by state governments Must be narrowly tailored, proportioned and
□ Reno v. Condom: federal driver's license thing: SC said congress prohibited activity congruent
that was harmful  City or Burneent v. Flores: SC said religious
 Section 5 of the 14th amendment thing expanded rights
□ Authorizes congress to adopt laws that enforce the 14th amendment ○
□ Congress cannot create or expand new rights or scope of rights
 All they can do is legislate to prevent a remedy violation of rights already
recognized. Must be narrowly taylored, proportioned and congruent
 City or Burneent v. Flores: SC said religious thing expanded rights
 Delegation of powers:
□ No limit exists on congress's ability to delegate its powers
□ Every delegation has been upheld in court
□ Legislative vetos and line item vetos are unconstitutional
 Bicameralism and presentment: by two chambers, and present to the
president Federal Executive Power
 President must sign or veto bill in its entirety. • Treaties: agreement between US and foreign country negotiated by
 Legislative veto attempts to overturn an executive action without the President and ratified by the Senate
○ State laws that conflict with treaties are invalid
bicameralism and/or presentment
○ IF there is a conflict between a treaty and federal statute, the
□ Line item veto: veto part of the bill, but not the whole by one adopted last in time controls
 SC says president must sign whole bill or veto whole bill ○ Treaties are unconstitional if it violates the constitution
□ Congress cannot delegate the executive power to itself or anyone else • Executive agreements
○ Agreement between US and foreign country signed by president
Federal Executive Power and head of foreign nation
• Treaties: agreement between US and foreign country negotiated by the President and ratified by the  No senate approval is required
 May be used for any purpose, no executive agreement
Senate
has ever been found unconstitutional
○ State laws that conflict with treaties are invalid
 Valid over conflicting state laws, but never over
○ IF there is a conflict between a treaty and federal statute, the one adopted last in time controls conflicting federal laws or constitution
○ Treaties are unconstitional if it violates the constitution ○ The president has broad powers as commander in chief to use
• Executive agreements American troops in foreign countries
○ Agreement between US and foreign country signed by president and head of foreign nation  Not once has the SC found incantational
 No senate approval is required • Domestic affairs
 May be used for any purpose, no executive agreement has ever been found • Appointment and removal power
unconstitutional ○ The president appoints ambassadors, federal judges and officers
of the US. The Senate must approve
 Valid over conflicting state laws, but never over conflicting federal laws or constitution
○ Congress may vest the appointment of inferior offices to others
○ The president has broad powers as commander in chief to use American troops in foreign
○ President: officers. /others: inferior officers
countries  Inferior officers: may be fired by other officers
 Not once has the SC found incantational ○ Congress cannot give the appointment power to itself or its
• Domestic affairs officers
• Appointment and removal power ○ President may not make recess appointments for intrasession

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 ○ The president has broad powers as commander in chief to use American troops in foreign
○ President: officers. /others: inferior officers
countries  Inferior officers: may be fired by other officers
 Not once has the SC found incantational ○ Congress cannot give the appointment power to itself or its
• Domestic affairs officers
• Appointment and removal power ○ President may not make recess appointments for intrasession
○ The president appoints ambassadors, federal judges and officers of the US. The Senate must recesses that are less than 10 days
approve • Removal power
○ Congress may vest the appointment of inferior offices to others ○ Unless limited by federal statute, the president may remove any
○ President: officers. /others: inferior officers executive branch official
○ Congress may limit removal by statute if:
 Inferior officers: may be fired by other officers
 Must be an office where independence of the president
○ Congress cannot give the appointment power to itself or its officers
is desirable
○ President may not make recess appointments for intrasession recesses that are less than 10 days  Must not prohibit removal, only limit it for where there is
• Removal power good cause
○ Unless limited by federal statute, the president may remove any executive branch official ○ A president has absolute immunity from civil suits for money
○ Congress may limit removal by statute if: damages for anything done while in office
 Must be an office where independence of the president is desirable  Nixon v. Fitzgerald: fitz fired and sued. Presidents cannot
 Must not prohibit removal, only limit it for where there is good cause be sued for anything done while in office.
○ A president has absolute immunity from civil suits for money damages for anything done while in ○ Presidents do not have immunity for acts that occurred prior to
office
office
 Clinton v. Jones: absolute immunity exists at the exercise
 Nixon v. Fitzgerald: fitz fired and sued. Presidents cannot be sued for anything done while of discretion in office. Not even stayed
in office. ○ Executive privilege protects the presidents papers and
○ Presidents do not have immunity for acts that occurred prior to office conversations where such privilege must yield when there is an
 Clinton v. Jones: absolute immunity exists at the exercise of discretion in office. Not even overriding need for the information
stayed  US v. Nixon: Power is not absolute, evidence needed in a
○ Executive privilege protects the presidents papers and conversations where such privilege must criminal trial outweighs the need for secrecy
yield when there is an overriding need for the information
 US v. Nixon: Power is not absolute, evidence needed in a criminal trial outweighs the need
for secrecy

INTERGOVERNMENTAL INTERACTIONS
Preemption
Preemption
○ Constitution and laws are supreme law of the land (state and local law
• Article 6, Supremacy Clause
are deemed preempted)
○ Constitution and laws are supreme law of the land (state and local law are deemed preempted)
○ Preemption
○ Preemption
 Expressed: if a federal statute explicably says that federal law is
 Expressed: if a federal statute explicably says that federal law is exclusive in this field, than
exclusive in this field, than state and local are preempted
state and local are preempted
 Implied preemption:
 Implied preemption:
□ Fderal and state law are mutually exclusive, then the state
□ Fderal and state law are mutually exclusive, then the state law is preempted
law is preempted (conflicts preemption)
(conflicts preemption)
 States can set stricter environmental laws than the
 States can set stricter environmental laws than the feds do unless congress
feds do unless congress strictly prohibits it
strictly prohibits it
□ If a state or local law impedes a federal objective, then the
□ If a state or local law impedes a federal objective, then the state/local is preemptive
state/local is preemptive
□ If congress finds a clear intent to preempt state/local laws then they are deemed
□ If congress finds a clear intent to preempt state/local laws
preempted
then they are deemed preempted
 Example: immigration law
 Example: immigration law
 States can ot tax or regulate federal government activity (Mcculin v. Maryland) "power to
 States can not tax or regulate federal government activity
tax is the power to destroy"
(McCulin v. Maryland) "power to tax is the power to destroy"
• Dormant commerce clause and pillars of immunity clause
□ Stats cant regulate federal government if it sets substantial
○ Dormant commerce clause: state/local laws are unconstitutional if they place an undue burden
burden on federal activity
on interstate commerce
○ Commerce clause:
 Authority for congress to act
Dormant Commerce Clause
 Forbidding state/local government from doing certain things
○ If the plaintiff is a coporation, use dormant commerce clause. If it is a citizen,
○ Privileges and immunity clause of article 4
use both dormant commerce clause and privilages and immunities.
 No states may deprive citizens of other state of the privileges of immunities of it's own
Discrimination is allowed only for substantial government interest, and
citizens
necessary means. No less restrict alternative
○ Privilages or immunities clause of 14th amendment
○ Do it discriminate against out of staters- no, then no privilages and
 Protects right of interstate travel immunity
 "no state amy deprive any citizen of the US of the privileges the US" ○ If Law violates dormant commerce when its a burden on interstate
□ Seins v Robin: welfare benefits at prior state level: the right to interstate travel was commerce that outweighs benefits
given by amendment 14 ○ If it is dscriminatory, the with, unless necessary for very important
○ Does a state or local law discriminate against out of state people government purpsoe (unless market/congress approval)
 Philadelphia v NJ: ○ If state or local discriminates against out of state for earning a living, it
 Grandhome v helmes: wine shipping violations DCC unless it is necessayr for substantial government interest
 If the state or local law does not discriminate against out of staters: ○ Dormant commerce clause: state/local laws are unconstitutional if they place
□ Then article 4 does not apply an undue burden on interstate commerce
□ If it puts a burden on the interstate commerce it violated the dormant commerce ○ Commerce clause:
clause if it's burdens outweigh the benefits of the law  Authority for congress to act (scope of congress's power)
□ If the state or local law does discriminate  Forbidding state/local government from doing certain things (dormant)
 If the law puts a burden on interstate commerce, then it violates the ○ Privileges and immunity clause of article 4
constitution unless the state/local government can show a compelling interest
 No states may deprive citizens of other state of the privileges of
served by doing so (must show that it is necessary to achieve that objective, no
immunities of it's own citizens
less discriminatory rule may achieve objective)
○ Privileges or immunities clause of 14th amendment
□ Main v Taylor: out of state fish may contain parasites that endanger species. Main
 Protects right of interstate travel
law was constitutional because it was necessary to achieve goal
 "no state may deprive any citizen of the US of the privileges the of its
□ Illinois curve mudflop was unconstitutional
US citizens"
 Congressional approval: if congress approves the state/local law, it is then permissible
□ Seins v Robin: welfare benefits at prior state level: the right to
even if otherwise it would violate the dormant commerce clause
interstate travel was given by amendment 14
 Market participant exception: a state or local government may favor its own citizens by
○ Does a state or local law discriminate against out of state people
receiving benefits from government programs and businesses (in state tuition for public
 Philadelphia v NJ: nj adopted law against out of state garbage
universities and state owned cement factory)

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 □ Illinois curve mudflop was unconstitutional
US citizens"
 Congressional approval: if congress approves the state/local law, it is then permissible
□ Seins v Robin: welfare benefits at prior state level: the right to
even if otherwise it would violate the dormant commerce clause
interstate travel was given by amendment 14
 Market participant exception: a state or local government may favor its own citizens by
○ Does a state or local law discriminate against out of state people
receiving benefits from government programs and businesses (in state tuition for public
 Philadelphia v NJ: nj adopted law against out of state garbage
universities and state owned cement factory)
 Grandhome v helmes: wine shipping
○ Article IV Privilages and immunity clause
 If the state or local law does not discriminate against out of staters:
 If a state/local government discriminates against out of states with regard to the ability to
□ Then article 4 does not apply
make a living, it violates constitution unless there is a compelling reason
□ If it puts a burden on the interstate commerce it violated the
□ Only applies with discrimination against out of states
dormant commerce clause if it's burdens outweigh the benefits
□ Discrimination must be with regard to fundamental rights or the ability to earn a
of the law
living
 If the state or local law does discriminate
 Tomber v. Witsall: commercial spear fishing out of state fee is large.
□ If the law puts a burden on interstate commerce, then it violates
 Hyper v New Hampshire: bar admittance had to be resident
the dormant commerce clause unless the state/local government
 Montana law elk hunting: high license for out of state did not apply because it
can show a compelling interest served by doing so (must show
was a hobby
that it is necessary to achieve that objective, no less
□ Corporations and aliens cannot revoke this provision (citizens is US citizens and
discriminatory rule may achieve objective)
corporations and aliens can't use it)
□ Main v Taylor: out of state fish may contain parasites that
□ Discrimination is allowed with a substantial government interest that is necessary
endanger species. Main law was constitutional because it was
• State and local taxation of interstate commerce
necessary to achieve goal
○ States may not use the tax system to help in state businesses at the expense of out of state
 Exceptions:
business
□ Congressional approval: if congress approves the state/local law,
○ State may only tax activities that have a substantial connection to that state
it is then permissible even if otherwise it would violate the
○ State taxation of interstate companies must be fairly apportioned
dormant commerce clause
• Full faith and credit □ Market participant exception: a state or local government may
○ A court in one state must enforce the judgement from a court in another state so long as
favor its own citizens by receiving benefits from government
 The court that issued the judgement must have had personal and subject matter programs and businesses (in state tuition for public universities
jurisdiction and state owned cement factory)
 Judgement must be on the merits
 Its judgement must be final

○ Article IV Privilages and immunity clause

 If a state/local government discriminates against out of states with
INDIVIDUAL RIGHTS regard to the ability to make a living, it violates constitution unless
there is a compelling reason
□ Only applies with discrimination against out of states
Requirement for State Action
□ Discrimination must be with regard to fundamental rights or the
• The constitution applies only to the government. Private conduct does not have to apply to the
ability to earn a living
constitution
 Tomber v. Witsall: commercial spear fishing out of state fee
○ State v. private university being fired for saying something against University President
is large.
○ State action doctrine: constitution applies to all levels of government
 Hyper v New Hampshire: bar admittance had to be resident
• Congress, by statute, may apply constitutional doctrines to private behavior
 Montana law elk hunting: high license for out of state did
○ Example: racial discrimination
not apply because it was a hobby
○ SC has said that congress to eradicate the vages of slavery and discrimination
□ Corporations and aliens cannot revoke this provision (citizens is
• Congress can apply constitutional norms to private conduct (pursuant to commerce clause) US citizens and corporations and aliens can't use it)
○ Catsenbaum v. Mcclone (olies bbq): SC noted that much of Olies supply came across state line □ Discrimination is allowed with a substantial government interest
and most restaurants that discriminate on race effect economics that is necessary
○ 14th amendment section 5- Congress can only regulate local government (not private behavior • State and local taxation of interstate commerce
 1883 SC and 2000 ○ States may not use the tax system to help in state businesses at the expense
• Exceptions to state action doctrine of out of state business
○ The public Functions exception ○ State may only tax activities that have a substantial connection to that state
 If a private entity is performing a test that has been traditionally exclusive done by the ○ State taxation of interstate companies must be fairly apportioned
government, the constitution applies • Full faith and credit
□ March v. Alabama: Company owned and ran town. ○ A court in one state must enforce the judgement from a court in another
 White primary cases: Political party's tried to ban blacks from voting in their caucuses, SC state so long as
said not okay  The court that issued the judgement must have had personal and
 Jackson v. Metropolitian medicine: Private utility company. Question was due process prior subject matter jurisdiction
to turning off utilities. SC said utilities are not traditionally exclusive to government  Judgement must be on the merits
 Entanglement section: If the government affirmatively offer/solicits unconstitutional  Its judgement must be final
conduct, then the government must stop what it is doing or the private conduct must
comply with the constitutional
□ Shelly v. Shamer: Courts cannot enforce racially restrictive covenant Full faith and Credit Clause
□ There is state action when the government leases premises to restaurant that
racially discriminates
□ Norwood v. Harrison- There is state action when the government gives free books to
private schools that racially discriminate
□ Wendell baker v. Cohen: There is not state action when a private school that is 99
percent funded by government, fires a teacher because of speech
 Government subsidy is insufficient for finding a state action
□ There is not state action when the ncaa orders suspension of basketball coach at
University. Sued and said he should be given due process
 SC: said NCAA is private and has it's own rules
 Cases applying race discrimination, courts are more willing to apply the entanglement
section-
□ Brentwood Academy v. Tennessee School Authority- There is state action when a
private entity regulates . 85% were to public schools. Constitution applied. SC said
difference between this and NCAA was NCAA was across the country
□ Muslaud v. Penn- SC Rules that there is not state action when a private club with a
liquor license racially discriminates

Limits on Retroactive Legislation

• Retroactive legislation is where a legislature adopts a law that prohibits/creates liability on stuff that
was already done
• Expost facto clause

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 • Expost facto clause
○ Government cannot punish conduct that was lawful when it was done or increase the
punishment for a crime after it was finished
○ Article 1 section 10 for state
• Retroactive civil liability
○ Usually needs to meet a rational basis test
• Contracts clause
○ No state shall encare the obligations of contracts
 Contracts clause applies only to state or local interference with already existing contract
(does not apply to Federal Government)
 State and local government may interfere with private contract if intermediate scrutiny is
met
□ Initially the party must show that there is a substantial burdening of rights under
existing contract
 Must be reasonably and narrowly tailored to serve a legitimate and important
government purpose
 State and local governments may interfere with existing government contract only if it
meets strict scrutiny
• Prohibition on bills of etainder
○ A law that directs the punishment of a person or persons without a trial

Procedural Due Process

• Procedure for due process involved notice/hearing taking away life/liberty/property
a. Has there been a deprivation of life liberty or property?
○ A deprivation of liberty occurs if there is a loss of a significant freedom provided by the
constitution or statute
○ Liberty is usually a right created by the constitution
 Except in an emergency, before an adult can be institutionalized, there must be notice and
a hearing
□ Exception: emergencies
 When a parent institutionalizing a child, there only has to be a screening before a neutral
fact finder (parents act in best interest)
○ Harm to reputation is not itself a loss of liberty (Paul v. Davis)
○ Prisoners rarely have liberty interest
○ A deprivation of property occurs if a person has an entitlement and that entitlement is not
fulfilled
 Entitlement: if there is a reasonable expectation to continue to receive a benefit
□ Example: a person works for the government and says they work for a year. They are
fired before hand
□ Roth v Board of Regents: Each contract made it clear that there was no expectation
of renewal. SC said government not required to give due process
○ Government negligence is insufficient to state a claim of due process
 Due process requires intentional, or at least reckless, due process
□ Daniels v. Williams: prisoner slipped on pillow negligently left on stop. SC held that
negligence is not enough for due process claim.
□ Sacremento County v. Louis- In emergency situations the government could be held
liable only if officers conduct shocks the conscious. High speed police chase ended a
boys life
□ Deshaney v. winter count social services- Generally, the governments value to
protect people from privately inflicted harms does not violate due process. Only if
government creates the danger, or in custody, does government have duty of
protection
b. What procedures are required?
○ Matthews v Eldrige: Importance of the interest of the individual
 Ability of additional procedures to increase the accuracy of the fact findings
○ Government interest: efficiency and saving money
 Before welfare benefits can be terminated, there must be notice and a hearing
 When social security disability benefits are terminated there only has to be a post
termination hearing
 When a student is disciplined at a public school there has to be notice of charges and an
opportunity to respond
□ Qualification: corporal punishment (spanking) does not require due process
 When a state seeks to terminate parental custody there must be notice and a hearing
provided first
 Punitive damages require instructions to the jury and judicial review
□ Procedural due process requires substantive instructions and JR
□ BMW v. Gore- Grossly excessive damages violate due process
 An American citizen detained as an enemy combatant must be given due process. Notice
of charges, hearing, and attorney
 Except in exigent circumstance, government forfeiture and seizure of property must be
proceeded by notice and a hearing
□ Exception: exigent circumstances- if there is reason to believe that the person is
about to get rid of property, then they can do it right away and then notice and
hearing
 Dennis v. Michigan: The government may seize property used in illegal
activities even if it has an innocent owner. Car was owned by wife while
husband with prostitute

Takings Clause
• Government may take private property for public use so long as it pays just compensation
• Test:
• Is there a taking?
A possessive taking:

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 ○ A possessive taking:
 If the government confiscates or physically occupies property, that is a taking. (Florida v.
Dept. of Agriculture). Taking raisons
 Loreto v. teleprompter- 1 cb ft of space for tv law was taking
○ Regulatory taking
 Government regulation is a taking if it leads to no reasonable economically viable use of
the property.
 Penn Central v. NYC- Company bought GCS hoping to place building on top. City then
adopted law preventing construction there. SC said they had economically viable option to
use the property for, so no taking
 Lucas v. South Carolina Coastal- Coastal protection law preventing development on
property. SC held that state was preventing economical viable use
○ Rules:
 Government conditions on a development property must be justified by a benefit that is
relatively proportion to the burden imposed
 A property owner may bring a takings challenge even as to regulation already in place
when the property was acquired
 Temporarily denying an owner of the developmental property is not a taking so long as it is
reasonable
□ Lake tahow- SC held that temporarily denying for environmental study was good.
• Is it for public use?
○ If the taking is not for public use, then they have to give it back
○ A taking is for public use so long as the government acts within a reasonable belief that the
taking will benefit the public
 Kilo- Eminent domain from home owners and sell to developers. SC ruled that taking was
for public use to reasonably get economic growth
• Is just compensation paid?
○ Just compensation is measure in terms of loss to the owner in reasonable market values. Gain to
taker is irrelevant
 Reasonable market value, not the benefit of the government (for contract example)

SUBSTANTANTIVE DUE PROCESS

Levels of Scrutiny
• Rational basis test
○ If it is rationally related to a legitimate government purpose
 Challenger has the burden of proof
• Intermediate scrutiny
○ Substantially related to an important government purpose
 Governments objective is important. Means chosen must be narrowly taylored (must be a
good way, substantially related, to achieve it)
□ Least restrictive is not the test
○ Under this, the government has the burden of proof to show it is substantially related to
important government purpose
• Strict Scrutiny
○ Law will be upheld if it is necessary to achieve a compelling government purpose
○ Courts look at governments actual purpose and that they are necessary to obtain that purpose
and show that there is no less restrictive alternative to achieve this
○ Government has burden of proof

Substantive Due Process

• Does the government have an adequate reason to take away life, liberty, or property
• Procedural due process requires notice and hearing, Substantive means they must show a compelling
need to terminate rights (abuse/neglect)
• Constitution provides only minimal protection for econoic liberties
○ Lochner era: freedom to contract was government right, and strict scrutiny required to intervene
○ Sense 1937, now rational basis test is used when government interferes with econmic liabilities
○ Due process challenge to need for bar exam.- rational basis review
• Right to privacy
○ Strict scrutinty is used when government intervenes with pricacy
 Right to marry:
□ Hodges: Right ot marry is safeguard under liberty and due process clause. Both for
opposite and same sex
 Right to appropriate
□ Government can impose involuntary sterilization only under strict scrutiny
 Right ot child custody of your own is a fundamental right
□ Compelling reason
 Qualification: state can create irrebuttable husband that a married woman's
husband is the father of her child: Michael H v. Gerald T
 Right to keep family together as a fundamental right (extended family)
□ Moore v. City of East Cleveland: city attempted to create law that limited how many
people live in certain houses. Individuals must be related to each other
□ Village of Belter v. Boress- Zoning ordances that limited # of unrelated people in
house. They lost
 Parents have a fundamental right to control the upbringing of their children
□ Government can interfere with strict scrutiny
□ Violated due process to order grandparent visitation over parents not wanting to
 Right to purchase and use contraceptive is fundamental right
□ Griswald v. Connecticut: SC said fundamental right, strict scrutiny
 Right to abortion
□ Roe v. Wade: fundamental right to choose to terminate parenting

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 □ Roe v. Wade: fundamental right to choose to terminate parenting
□ Planned Parenthood v. Casey:
 Prior to viability the government cannot prohibit, they Amy regulate so long as
not undue burden on right
◊ Undue burden test as opposed to strict scrutiny
◊ 24 hour waiting period is not undue burden
◊ Abortions be performed by licensed physicians is not undue burden
◊ Prohibition on partial birth abortion is not undue burden (Zalez v.
Carhart)
◊ After viability the government may prohibit abortion except when
necessary to protect woman's life or health
 Government is not constitutionally requires to subsidize or provide facilities for
abortions
 Spousal consent and notification laws are unconstitutional
 Parental notice/consent for unmarried minors abortion. State may require it
only if it creates an alternative procedure where a judge can determine either
by finding minors best interest or that they are mature enough
 Right to engage in private consensual homosexual activity (no level of scrutiny identified)
□ Lawrence v. Texas- unconstitutional texas law that prohited homosexual activity.
 Right to refuse medical treatemnet
□ Krisan v. Director of Health Services (no level of scrutiny identified)
 Competnant adults have a right to refuse medical care, even life saving and
food and water
 State may require clear and convincing evidence that the person wanted
treatment terminated before doing so
 A state may prevent family members from terminating treatment of another
 Does not include a right to physician assisted death
□ Washington v. Gluckford- terminally ill patients challenging washingotn law of aiding
and abetting suicide.
○ Second amendment (no level of scrutiny)
 A well regulated milita…
 DC v. Heller- SC said at the very least that the 2nd amendment protects the right of
individuals to have guns in their home for protection and security
□ Not absolute. They can regulate who has guns, where they have them, what types
 Mcdonald v. Chicago- this right applies to state and local government by being
incorporated in the due process clause of the 14th amendment
○ Right to travel
 Right to interstate travel is a fundamental right
 Signs v. Roe- privileges and immunity clause for right to travel (14th)
□ Either liberty or due process or 14th
 Laws that keep people from moving into state must meet strict scrutiny
□
□ Durational residence requirements must meet strict scrutiny
 Person must live in jurisdiction for a certain time to get a certain benefit
 Shapiro v. Thompson- Pennsylvania law regarding welfare. SC said
unconstitutional and right to travel is under equal protection and this would
chil and strict it
◊ Qualification: for voting, 50 days is the maximum allowable raise
residence requirement.
 Only a rational basis test is used for restrictions on foreign travel
◊ SC said that there is no fundamental right to foreign travel
○ Right to vote (strict scrutiny, unless reglation/unbalanced desirable)
 15th amendment says right to vote shall not be denied on race
 Or equal protection or due process
 Laws that prevent some citizens from voting must meet strict scrutiny
□ Poll taxes are unconstitutional
□ Property ownership are almost always unconstitutional
 Either own property in city or have kids in school for schoolboard electron.
Unconstitutional
◊ Laws that are designed to protect integrity of election will be upheld so
long as they are unbalanced desirable
◊ Voter ID law- Profer v. Marion County Indian: SC upheld law, that this is
designed to protect integrity of electroal system
□ 1 person 1 vote must always be the maintained- for any legislative body with
districts, all districts must be about the same in population size
□ At large elections are allowed unless there is proof of a discriminary purpose
 All voters vote for all the office holders
◊ City of Mobile v. Bolden- SC upheld constitutiona because "it did not
prove that the underlying purpose was to disadvanteage african
americans"
□ Use of race in drawing elections to benefit minoritys, must meet strict scrutiny
□ Counting uncouned votes without standards violates equal protection
○ Education is not a fundamental of the constitution
 San Antonio v. Board of Education- SC upheld it as constituional because education is not
protected as fundamental right.
Equal Protection
• No state shall deny any person equal protection of law
○ All equal protection questions can be broken to tthree steps
 What is the clasification?
 What is the level of Scrutiny?
 Does the governments action meet the level of scrutiny?
 Contitutioanl provisions:
□ Equal protection clause of the 14th amendment applies only to state and local

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 □ Equal protection clause of the 14th amendment applies only to state and local
governments
 Equal protection is applied to feds through due process clause of 5th amendment (law is
same for both state/local and Fed)
 Race and national origin
□ Strict scrutiny is used
□ How is the existence of race or national orgin question proven? Strict scrutiny
 The classification exists on the face of the law
◊ Brown v. Board of Education
 Alternatively if the law is facially raceless, proving the existence of race
classification requires both discriminatory impact and intent
◊ Washington v. Davis- AA failed tests to be police officers
 Did not prove intent, more than rational basis review
◊ The discriminatory use of preemptory challenges based on race violates
equal protection
 How should racial classifications benefiting minorities be used? Strict scrutiny
 Numerical set assides require clear proof of past discrimination
□ US v. Paradise- 50% set asside was permissible was a remedy for clearly proven class
discrimination
 Educational institutions may use race as one fact among many to benefit minorities
□ Bollinger- but, colleges and universities cannot add points solely on basis of race.
Rats v. Bollinger
 Use of race in assigning students to elementary and high schools must meet strict scrutiny
□ Siblings got priority in admissions. Cannot use race unless strict scrutiny
 Gender discrimintation. Intermediate scrutiny is the test. IF the government is going to
discriminate on test, they must exceedingly persuasive justification
 How is gender classification proven-
□ On the face of the law
 Craig v. Florin- low alcohol beer for woman
 Immediate scrutiny
 US v. Virginia- unconstitutional, no exceeding persuasive justification to
exclude woman from school
□ The law is facially neutral, must demonstract discriminatory impact and intent
 5ft 10 and 150 pounds requirements for firefighters and police officers.
 Only rational basis review unless the purpose was specifically to disadvantage
woman
□ The discriminatory use of gender for jury…
 How should gender classifications benefiting woman be treated? - Immediate scrutiny
□ Gender classifications based on role stereotypes are not allowed
 Allimony only awarded to woman in Alabama held unconstitutional
□ Gender classifications benefiting woman designed to remedy past discrimination for
differences in opportunity will be allowed
 Social security benefiting woman because of wage discrimination
 Navy regulation, 6 years for men and 10 years for woman to earn promotions
before having to leave. Woman did not serve in combat
 Alien classification
□ Strict scrutiny is generally used
□ Only US citizens can declare welfare benefits is unconstitutional
□ Exceptions for less than strict scrutiny
 Only a rational basis test is used related to self government (government can
discriminate for voting, teacher, probation officer, police). Some privilages can
be just for citizens
 Notary public had to be US citizen. Notary publics don’t have to do with self
government, so unconstitutional
□ Only a rational basis is used for congress to discriminate against aliens
□ Intermediate scrutiny case is used for discrimination against undocumented alienst
 Plyler v. doug- children of undocumented aliens get no free education.
◊ More than rationa basis, but less than strict scrutiny
 Discrimination against non marital children
□ Intermediate scrutiny
□ Laws that provide benefit to all marital children, but no non-marital chidlren, are
always unconstitutional
 Immediately scrutiny.

○ Types of discrimination that get only rational basis review

 Age discrimination
□ Mandatory retirement laws good
 Disability discrimination

 Wealth discrimination received rational basis

□ Poverty
 Economic regulations
□ Frankfurter
 Sexual orientation
□ 3 supreme court cases
□ Romer v. Evans- unconstitional, repealed laws that discriminated against gays and
lesbians (rational basis)
□ US v. Windsor- unconstitional, DOMA, federal benefits. Denied equal protection to
same sex couples (no level)
□ Oberfelt v. hodges- state laws that prohibit same sex marriage deny equal protection
and violate right to marry (no level of scrutiny)

ESSAY EXAM SERIES

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 ESSAY EXAM SERIES

Cases themselves are the law

Relationship to policy

Compelling
Important
Legitmate
Standing- injruy, causation, redress
Commerce clause- congress can act on channels of commer,ce instrumentality, stuff that makes
Matthews v. ledrige

Mistake During Exam

• Question about power of government and limits on power
○ Does the government have the power to do this?
○ Is the government violating a contraint on it's power?
Who is the gov't actor?
• Congress
○ Do they have the authority to act?
○ Expressed or implied? No police power
○ Commerce clause, taxing and spending, necessary and proper,
○ If they do have the authority to act, did they violate a limt?
 Individual rights, equal protection
□ Privacy, individual rights, due process, 2nd amendment, equal protection, aboriton
□ 10th amendment contraint
• Executive/president
○ Has the president or executive exceeded authroity under seperation of powers?
○ To what extent does the president have inherent power and authority to act without statutory
authority? Or limited power under constituion and
 Youngstown: president by steeling mills
 US v. Nixon- withold watergate tapes
○ President violate seperation power by:
 Taking over powers of other branches (youngtown spending powers)
 Interfering with the ability of another branch to carry out its power (nixon prevented
evidence from Judiciary)
○ Is the president violating a contraint of their poewr?
 Same as congress
• Fedcourts
○ Do they have the authority to hear the case?
○ Does the federal court have the authority to hear the case?
 State or local governments can do anything except what is prohinited by the constitution
(police power)
Who is the gov't
• state/local gov
actor? (congress,
○ State or local governments can do anything except what is prohinited by the constitution (police
executive,
power)
fedcourts,
○ Limits:
state/local gov,
 Preemption: Dorman commerce, privalges and immunity clauses, equal protection private entity/corp)
• private entity/corp
○ Is there state/government action?
○ Exception to state actor
 Circumstance in which the private actor has to comply with constitution Is there
○ If you find state action, then you have to find if it violated constitution Constitutional
authority for the
gov't action?

If the gov't is acting

within its authority,
is there some other
Constitutional
prohibition it is
violating?

What level of
scrutiny do we
apply?

Who may bring a

suit in this issue?
(Standing)

Is the issue even

justiciable? (Political
Question Doctrine)

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