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Justiciability 5 limits
1. Advisory Opinions o o o Courts will not issue advisory opinions. Creates a conflict of interest Non-Final Hayburns-Revolutionary War Vet benefits Plaut v Spendthrift Farms (Congress cannot take Final judgments and reopen) 2. Standing- No injury, D didnt cause injury, Ct cant redress o Generalized grievance not ok. Cant just argue law is bad. o Prudential principle If no one has standing it should be probably be given to congress Must show 3 things o Injury-Actual or imminent Causation-Fairly traceable to D Redress ability- Court can make a ruling that fixes the problem Allen v. Wright- Challenge of tax exempt status of segregated schools o Not a concrete harm, abstract generalized grievance Little causation No redress ability

Lujan v. Defenders of Wildlife- (92) Challenge of funding for projects EPA No standing because no injury in fact (plane ticket may have been enough)

Massachusetts v. EPA- (07) Challenge to EPA to regulate greenhouse gasses. Injury to state as a whole Big dissent from the right.

Prohibition of third-party standing Generally a plaintiff must assert his own claim. Exceptions- 2 factors- closeness of relationship and likelihood that third party could sue on his own behalf Abortion doctors

Bartender White landlord on behalf of blacks

3. Ripeness Injury in Future Inevitable Injunction o o o o Poe v. Ullman- Court avoided b/c no actual violation, had to deal with it in Griswold v. Connecticut. Final Decision Present, Concrete effects Hardship from Delay Readiness of issues for adjudication United Public Workers v. Mitchell- Public workers wanted advisory opinion that they were allowed to be involved in politics (court said no, no ones rights had been violated)

4. Mootness Injury in Past o 3 exceptions 1) CRYER- Capable of Repetition Yet Evading Review Roe v. Wade- Pregnancy can happen again, litigation takes longer than term of pregnancy. Defunis v. Odegaard Law student denied admission, given injunction and allowed to graduate Ruled Moot given individualized relief Anyone else injured would have the same ability to litigate 2) Voluntary cessation Friends of the Earth v. Laidlaw- Mercury levels to high Laidlaw closed facility voluntarily Does not make case moot unless very final Could allow people to start and stop activity

3) Class Actions U.S. Parole v Geraghty- Class action challenging parole board rules Suit can survive even if named plaintiff becomes moot

5. Political Question o A. Malapportionment

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Baker v. Carr- Can decide Malapportionment cases based on Equal Protection instead of Guaranty Clause

B. Political Gerrymandering C. Federal Office Qualification D. Foreign Policy Short Test- Baker v. Carr Textual Commitment of Issue to other branch (Nixon) Judge Nixon challenged impeachment, Senate in charge of impeachment, nothing says how it is runImpeachments committed to senate Judicially Manageable Standards lacking; Determination is policy not law (Vieth) Need for Finality w/o judicial review: urgent: branch conflict undesirable (Goldwater) Goldwater said Senate had to rescind treaty, Ct. said non-justiciable on Foreign Policy

Congressional Power
Is law constitutional o Is it within enumerated powers in Constitution? A. Art. 1 Section 8 o Cl. 1 Tax and Spend Cl. 3 Regulate interstate/foreign commerce Cl. 5 Coin Money & regulate value Cl. 11 Declare war; raise/regulate military; capture rules B. Amdts. 13-15, 19, 24, 26 Separation of powers- Powers for each branch Federalism- Powers given to state Individual Rights- Cant abridge individual rights (speech e.g.) Is it prohibited elsewhere?

Commerce Clause
4 eras of Commerce Power 1) Gibbons Era o mid 1800s Broad power, not used much 2) E.C. Knight Era

1895-1937 narrow power, many laws struck down E.C. Knight- anti monopoly Schechter Poultry Consumer and labor Carter Coal prices and production

3) Wickard era- Wickard v. Fillburn o o o o o o 1937-1995 Broad power, almost everything interstate commerce Flow=Interstate commerce Promoting and removing obstacles=Interstate commerce Judicial Deference-rational fact finding of congress Aggregation- Substantial effect can be in the aggregate 3 categories of Commerce Power o o 1) Channels 2) Instrumentalities 3) Substantial Effects

37-42-Labor/economic/consumer laws 60-70s-discrimination/ criminal laws Heart of Atlanta v. US- Staying in a hotel =Commerce Katezenbach v. McClung- Food in commerce. BBQ restaurant cant discriminate.

4) Lopez and Morrison Era (Current) o o Renewed certain limits to commerce power Lopez (1995) Gun free school act, fed. Law on guns in school Not economic activity- dont use the aggregate No leg. Findings on commerce affects Congress ended up passing a law saying guns that had been in interstate commerce within range of job training center which was upheld o Morrisson (2000) Violence against women act, penalized gender motivated violence on federal level o Held- not substantially affecting interstate commerce Showed Lopez was not a speed bump Sexual assault did not substantially affect interstate commerce Gonzalez v. Raich- Court upheld Fed Law disallowing Medical Marijuana Held marijuana is a market and could use aggregate

Kind of like argument in wickard Substantial effects- use words market and aggregate

Pierce v. Guillen upheld states having to collect info on road hazards Court upheld 9-0 based on channels Fear was info would be used in litigation Congress said info was non-discoverable Congress cant force states to do things Was a 10th amendment argument

Post Gonzalez v. Raich o 1) Definition of economic o if interstate market exists (even illegal) commerce o Deference; Morrison compared to Raich 3) How much must be Inter state or economic of whats regulated look at aggregate affects Borderline cases-arson/local endangered species Includes production/growing/manufacturing

2) How much evidence of substantial effects on interstate

10th Amendment - Is it a reminder or actual right? Possible meaningso 1) Congress cant legislate at all on matters traditionally states Hammer v Dagenheart- Child labor laws= state issue US v. Darby Overturned Hammer, Upheld minimum wage Said that 10th amendment was just a reminder and did
not grant substantive rights to state

2) Congress cant subject states to generally applicable laws

National league of cities v. Usery- Said fair labor standards act did not apply to state govt Garcia v San Antonio- Overturned Usery, Congress can extend fair labor act to state govt Reno v. Conden- Upheld drivers privacy protection against 10th amendment challenge Established Garcia was still good law Info can be article of commerce

3) Congress cant coerce state officials in certain ways NY v. US- Congress cant force states to take title for Radioactive waste Printz v. US- Could not force state cops to do background checks for Brady act

10 Amendment tracks commerce clause powers o same eras as CC

th

Tax and Spend 1) Kinds of spending allowed o US v. Butler- Congress taxed certain farmers and gave money to others o Tax & spend is not a means to an end SD v. Dole- Funding string on Highway funds, forced states to make drinking age 21 4 Conditions o 1) General welfare- very deferential 2) Unambiguous 3) Relatedness- very deferential 4) Other Constitutional Limits 10th Amend.

Sabri v. US- Congress can pass law against bribery b/c money is fungible so any federal funds could be affected.

Executive Power
Inherent Presidential Powero Youngstown v. Sawyer- President ordered AG to take over steel mills during a strike during the Korean War Seizure of steel mills not ok. Overturned-Blacks majority said no unenumerated powers Jackson concurrence=most cited opinion 3 prong test 1) When president acts pursuant to an act of congress=broadest leeway, most authority 2) When pres. acts based on independent power with congressional silence. (twilight zone) o Probably has authority 3) When pres. acts in opposition to will of congress

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lowest level of authority Only clear pres. authority ok

Authority of Congress to increase presidential powers Clinton v. NY- Line Item veto Majority-Not ok b/c laws are compromises, Kind of like Blacks majority in Youngstown Efficiency not enough to get rid of constitutional procedures (Kennedy concurrence) Dissent- not technically a repeal or amendment Evolving meaning-Omnibus bills may take veto power away from pres.

Executive Privilegeo US v. Nixon- How do you deal with exucitive privilege? Is it a political question? State secrets-absolute privilege. General claim- Balancing test-Confidentiality needed for executive vs. justice. Criminal usually much more important than civil

Foreign Policy Powerso 1) Broader a) Justiciability (Goldwater v. Carter) b) Executive agreement/orders-Pres. usurping some of congresses powers c) War- Compromise-authorization of force

Treaties and executive agreementso Treaties o Negotiated by P, effective when ratified by CG Termination=political question, lots of different ways Deals between P and foreign powers, not sent to the senate C is silent Acquiescence doctrine Dames and Moore v. Regan- Iran Hostage fund o Congress impliedly authorized by not saying no Even with congressional silence (Curtis Wright gives power to avoid embarrassment) Executive/Congressional agreements-NAFTA

Executive Agreements

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Treaties by statute

Congress is not going to stand in way of Pres. if people are getting killed. Pres. has kind of taken over war powers bc of change in society Hamdi v. Rumsfeld-Detainment of US citizen at Gitmo 5-4 ok to hold plurality 8-1 had to give procedural due process Led to Bush appointment of Alito and Roberts b/c they were strong executive supporters. Pres. can detain but have to have some kind of hearing, not a full trial

War on Terror-

Boumediene v. Bush- Held not ok because separation of power protects individual rights Separation of powers- not ok suspension of habeas corpus

Limits on State Power

Supremacy Clause o o o o If a federal law conflicts with a state law Fed law wins States cant impede interstate commerce No discrimination against out of staters Express o If Fed passes a law and states that states cannot pass any law on topic. As broad as it gets (Erisa- fed retirement law specifically says it preempts) Narrower Lorillard Tobacco-Cigarette advertising regs preempted Arguments against States rights Congress knows how to expressly preempt Leg History- moving in this direction Dormant Commerce Clause Privileges and Immunity Preemption

Argument for

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Exception to preemption

Whiting- Licensing of business not punishing immigration States can pass licensing regs Law was based on e-verify Not complete field preemption for immigration

Conflict or interference Given Federal law does state law Conflict (Florida Lime-avocado regulation) States can have stricter guidelines California legislated on economic issues of nuclear plant, Fed had to do with safety Interference argument-Fed was trying to promote nuclear, Cal was trying to limit Impede or Interfere (Pacific Gas)

Field Preemption 3 main reasons o o o Foreign Policy (core federal law) Fed Law so comprehensive Fed law strikes a balance, not a minimum Alien registration-immigration a national issue How broadly (Whiting) Arizona immigration law not completely occupying field (States can pass licensing laws)

Does Fed intend to occupy entire field (Hines) o o

Dormant Commerce Clause 2 part test o 1) Facially Discriminatory Laws that are discriminatory against out of state citizens get strict scrutiny (no alternatives to important nondiscriminatory purpose) Dean Milk v. Madison- Law against out of state milk, Burden on government to disprove alternatives Alternatives so it was overturned Court does not care if its expensive as long as it is not prohibitive Maine v. Taylor- Law against out of state bait fish

No alternative, could not separate good fish from bad fish. (seemed fishy)

United Hauler v. Oneida- Govt landfill, When govt acts as a market participant no dormant commerce clause

2) Facially neutral Balancing Test Strike if A) Unjustified Burden ( Kassel) C) Pretext for discrimination (Pike, Exxon) Must prove discriminatory result as well as purpose Congressional Approval-Insurance Industry Market Participant- State as a buyer or seller States can choose to buy or sell from in state States cant try to regulate downstream commerce through that buying and selling Ban on double trailers Held invalid b/c prohibited interstate commerce Burden on commerce outweighed state interest

B) Inconsistency (Kassel, Bibb)

Exceptions

Privileges and Immunitys (Only applies to citizens, not corporations) Ask 3 questions o Does the law affect a fundamental right, privilege or immunity? What are fundamental rights? 1) Pass through or travel in state. 2) Reside in state for business or other purposes. 3) To do business in the state. 4) To take hold or own property. 5) Exemption of higher taxes than in state. 6) Medical services. (Maybe not state funded) Higher hunting license price for out of state, hunting not a fundamental right. United Workers v. Camden-

Baldwin v. Montana fish and game-

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Workers had to live in the city. Not DCC b/c market participant but P and I b/c right to earn livelihood.

Is the laws discrimination the kind that is protected? Does the state have a substantial reason?

Stronger than Dormant Commerce Clause, it actually is in the text Only applies to discrimination, not burdens to out of state citizens must be actually discriminatory. o o Toomer v. Witsell-SC rule making it 10 times more expensive for out of staters to get shrimp licenses New Hampshire v. Piper-Have to be citizen to be licensed attorney Discrimination and many good alternatives

Recreational activities are not fundamental rights o Baldwin v. Montana fish and game Out of state hunting license more expensive ok

Individual Rights Twining v. New Jersey- Incorporation of Bill of Rights by 14th amendment to states-5th amnd. Against self incrimination o States cant abridge rights since 14th amendment incorporates rights for state State action doctrine- 14th amendment does not apply to private actors, only the 13th applies to individuals. (Cant own slaves) Public Function Exceptiono When private parties fill roles generally held by govt essentially state action and cannot abridge rights Marsh v. Alabama-Jehovas witness wanted to preach on company town streets Court held company town was essentially a state actor and could not restrict speech Jackson v. Metro Edison Co- Private electric company shut off service to a lady without a hearing. Action not traditionally associated with sovereignty. Just because something is regulated by the state does not mean that it is a public function for the purpose of the exception.

Terry v. Adams- (Jaybird case) Jaybirds essentially picked candidate Jaybird primary was essentially the primary and therefore state action.

Entanglement- Applies if the govt authorizes, encourages, or facilitates private conduct that violates the constitution. o How much encouragement = state action? Shelley v. Kraemer- Enforcement of covenant against selling property to colored people Courts enforcement of contract = state action Court has not expanded past these circumstances Attachment of property is state action

Lugar v. Edmondson- Prejudgment attachment of property Edmonson v. Leesville concrete- Preemptory challenges of jurors. Exclusion of jurors is wielding state power

Brentwood Academy v. Tennessee athletic associationHigh school sports association- (entwinement? Maybe a new exception?)

Economic Substantive Due Process Economic Substantive Due Process-Upheld if there is a rational relationship to a legitimate interest (very deferential) o Lochner era= EC Knight era CC (not good law)
Held regulation of bakers violation of sub Due process Would strike down if o o insufficient important interest law insufficient necessity alternatives less infringing overinclusive doesn't serve interest (Rational basis test)

Nebbia v. NY- upheld milk regs.

End of Lochner Era=West Coast Hotel v. Parrish West Coast Hotel v. Parrish Minimum wage for women and children upheld Beginning of Rational basis test

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US v. Carolene Products- Ban on Milnut (footnote 4) Rational basis-any stated fact can support law Williamson v. Lee Optical- Forbade opticians to make glasses without a prescription Really showed that any purpose counts and that there is not really any economic substantive due process rights that will be enforced

Only economic substantive due process decisions in the modern era o o Punitive damage limits BMW v. Gore- Repainted BMWs o Punitive damages too much more than compensatory Reprehensibility?

State Farm v. Campbell- Litigating damage suits and then sticking policy holder with damages when they lose Usually single digit multiplier Sometimes egregious damage with low economic damage allows for higher multiplier (Rare)

The Contracts Clause Only applies to state laws affecting existing contracts. o Home Building v. Blaisdell- Minnesota law prevented foreclosures for two years Economic difficulties held to be emergency Contracts were made with assumption of state action in emergency. Close scrutiny if severe impairment 3 Part test o 1) is there a substantial impairment of a contractual relationship 2) if so, does it serve a significant and legitimate public purpose 3) if so, is it reasonably related to achieving the goal? Allied Structural Steel v. Spanous- Minnesota pension benefit act violated contracts clause Only law overturned by Contracts Clause Minnesota cant impose fee on funds retroactively

Fee was not an expected regulation at time of contract formation

Equal Protection- Discrimination based on classification

(facially neutral have to show discriminatory purpose as well as result) Strict Scrutiny- Necessary to a compelling interest o Race-Facially discriminatory Korematsu v. US- only law to be upheld under strict scrutiny Compelling interest in preventing espionage Not really a good case to cite

Loving v. Virginia- Law against interracial marriages (disadvantages both races, still a problem) Stigmatized other races, not ok Separate can never be equal

Brown v. Board of Ed. Overturned separate but equal Johnson v. California- Segregation of prisoners for first 60 days to prevent race based gang violence Strict scrutiny-Overturned Over inclusive-not everyone is in a race based gang Possibly doesn't serve interest or make it worse

Race-Facially neutral Washington v. Davis- Test to be a police officer, disparate impact not enough for strict scrutiny without intent. Impact can be evidence of intent sometimes, just not here. McCleskey v. Kemp- Equal protection challenge to death penalty for a black man. Would have had to show intent (Juror bias) Particularized individualized discrimination (judge bias) Historical evidence Comparator

Judicial power to remedy Courts can order desegregation for violations (Swan v. Charlotte Mecklenberg) but cannot impose multidistrict remedies for districts where there are no violations (Milliken v. Bradley)

Affirmative Action Cases Parents Involved v. Seattle School District- Affirmative action in high school enrollment tie breakers No race based assignments for high school Grutter v. Bollinger- Race as a factor for law school admission (upheld narrowly) Individual review Race can be a plus factor as long as it is not so heavily weighted that nothing else matters Gratz v. Bollinger- Race in undergrad at Michigan Not ok because not individual review

Alienage- (Mostly) If relates to self govt = rational basis Graham v. Richardson- Arizona welfare for resident aliens Strict scrutinyAliens are people to for EPC Not violation of EPC b/c state troopers enact public policy Police use force to deprive you of rights, you get to choose your lawyer (distinguish Griffith) you don't get to choose your police officer Plyler v. Doe- Law not allowing children of illegal aliens to go to school Intermediate scrutiny for illegals Court said not ok Must serve substantial interest to some meaningful degree

Foley v. Connelie- Alien wanted to be state trooper

Intermediate Scrutiny- substantially related to an important govt interest, (if not facially discriminatory have to show both intent and effect) o Gender Reed v. Reed- Law stating that when there were two people in same category for who administers will you pick male Court said rational basis but really looked at it w/ intermediate scrutiny. Said that it wasnt rational to pick the male, everyone should be on equal footing but could have easily said efficiency was state interest

Frontiero v. Richardson- Married women officers couldn't get money for male spouses like men could for female spouses Ct. said strict scrutiny Ct. said important means more than legitimate Administrative costs are not sufficient interest

Craig v. Boren- Law against selling 3.2 beer to 18 guys but ok for 18 girls First Ct. to say intermediate scrutiny Underinclusive-women who drink and drive not covered Overinclusive- not all men would drink and drive

US v. Virginia- VMI- Women werent allowed, all womens school argued to be equal, wasnt Intermediate scrutiny- Exceedingly persuasive justification for classification

Mississippi University for women v. Hogan- Men could not enroll= violation of EPC Counter acting social discrimination is not ok reason

Non-Marital Children Laws that deny rights to all non-marital children that marital children have always violates EPC Laws that give rights to some non-marital children but not others decided on case by case basis

Rational Basis w/ Bite- arbitrary and unreasonable??? o US Dept. of Ag. v. Moreno- Law against food stamps for people who live with unrelated roommates. o Meant to not give food stamps to hippy communes Animus not a legitimate interest

Cleburne Texas v. Cleburne living center- Living center for retards, town denied application for special permit NIMBYNot rationally related to interest- Cited floods but hospital right next door (under inclusiveness is indicative of animus)

Rational Basis- rationally related to a legitimate govt interest (challenger has the burden of proof)

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Everything else Railway Express v. NY- signs on truck not allowed unless for own business. Under inclusive b/c it did not address ads for own company (ok) does not have to cover everything

NY Transit v. Beazer- Methadone users not allowed to work Over inclusive b/c not all methadone users will be bad employees, (ok) over inclusive ok, not a suspect class and rationally related to purpose.

Age-Rational basis, age is immutable but changes SC says rational basis Mass. v. Murgia- Mandatory retirement at 50 Held acceptable-rationally related to state interest of physically capable police force Rational relationship-age as a proxy Could have argued Narrower alternative Over breadth-excludes 51 yr. old in good shape Under inclusive- 30 yr. old fat boy Doesn't serve interest

Probably doesnt matter b/c rational basis

Disability- Heller v. Doe allowed civil commitments. Rational basis is review standard but broad statutory protection under ADA.

Wealth- Other than poll taxes, discrimination against poor gets rational basis scrutiny. San Antonio v. Rodriguez- property tax for education ok even though some schools better than others.

Sexual Orientation Romer v. Evans- Colorado amendment 2 stating Homosexuals were not a protected class Ct. said rational basis but really was closer to bite After Lawrence v. Texas looks more like heightened or bite

Fundamental Rights Family Autonomy-

Right to marry Zablocki v. Redhail- No marriage license if man has unsupported dependents if they are wards of the state (also argued as discrimination, only rational basis on poor argument) Strict Scrutiny Over inclusive- Covers those who cant pay as well as wont pay Alternatives Ineffective at serving interest

Right to Custody of Children Michael H v. Gerald D.- Rights of adulterous father- none according to majority, Scalia looks to history as to what has been protected Define right narrowly Brennan-Dissent- right to non conform Evolving meaning Define right broadly

Right to Parents control in upbringing of children Meyer v. Nebraska- Law making it a crime to teach German to elementary school children Right to choose education for children Pierce v. Society of Sisters- Law forcing people to send children to public school Unreasonably interfered with liberty of parents to decide on childrens education

Reproductive autonomyo Right to procreate Skinner v. Oklahoma- Overturned habitual criminal sterilization o Majority ruled based on Equal Protection Concurrence ruled on Substantive Due Process Procreation is a right

Right to purchase and use Contraception Griswold v. Connecticut- Ban on providing contraception Not ok-contraception is part of privacy right

Right to Abortion- No spousal consent, parental consent if judicial end around Roe v. Wade- Abortion is a fundamental right, also possibly a discrete and insular minority. Trimester framework framework. Pre-viability- State can regulate as long as there is no undue burden Spousal notice regulation not allowed Not strict scrutiny-somewhere in between (intermediate scrutiny) Joint opinion OConnor, Kennedy, Souter Gonzales v. Carhart- Court upheld a ban on partial birth abortions Applies but modifies undue burden test Def. probabilistic burden, added deference State can burden and dissuade Cant disallow Moss thinks Carhart could have won Argue equal protection (skinner and Zublocki) Discrimination between women based on how the fetus is sitting Could have argued commerce clause EC Knight to get Thomas Women could file as applied challenges 1st no regulations (exception licensed doc) 2nd limited regulations mainly ok for maternal health reasons 3rd can ban w/ exceptions for health of mother Planned Parenthood v. Casey- Abandoned trimester

Medical Care decisions o o Medical treatment cant be imposed with out due process and at least rational reasons Right to refuse medical treatment (not absolute, vaccines) Cruzan v. Missouri Health- Required clear and convincing evidence of patients will to pull plug

Doctor assisted suicide- Not a fundamental liberty Washington v. Glucksberg- States can criminalize assisted suicide State interest in life generally Difference between not accepting treatment and dying of something else and affirmatively taking action Gonzales v. Oregon Fed cant disallow states from allowing assisted suicide (preemption) (Police power)

Sexual Orientationo Lawrence v. Texas- Law against homosexual sodomy overturned Right to privacy allows private homosexual activity (kennedy) History does not say homosexual activity fundamental right(Scalia)

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