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I. The Constitution

A. background: ratified in 1788 (bill of rights in 1791)

B. the text (see notes on C 11-08 class prep)

C. articles of the C

1. legislature: art 1

1.2.3 apportionment of taxes and representatives

1.2.5 House gets sole power of impeachment

1.3.1 2 senators

1.3.4 veep = pres of Senate (& tie-breaker)

1.3.6 Senate gets sole power to try impeachments

1.6.2 incompatibility clause (can't be congress-man & other office)

1.7.2 presentment & veto

1.8: enumerated powers

1.8.1 GWC

1.8.3 commerce clause

1.8.18 necessary & proper clause

1.9: habeas corpus privilege; no bills of attainder, ex post facto; taxes only in proportion

1.10: prohibitions on states (coin money, enter treaties, duties, troops or ships, etc)

2. executive: art 2

2.1: "the executive power shall be vested" in Pres (as opposed to Congress' legislative powers "herein granted")

2.1.2: electors = reps + senators, appt'd by states

2.1.3 & 25th am: certify electors at state; Pres of Senate counts (veep); majority = winner [no maj? pick 3 highest, House votes, but each state gets only one vote]

2.2.1: commander in chief

2.2.2: power w/ advice & consent of (2/3) Senate, to make treaties; appt officers, ambassadors, ministers, justices of SCt w/ advice & consent; other appointments: Congress decides who appoints inferior officers

3. judicial: art 3

3.1: one SCt & inferior cts. as Congress establishes

3.2: federal jurisdiction: all cases re:

• federal question: the C or federal laws; treaties made under US authority

• ambassadors, ministers, consuls

• admiralty

• US a party; between states; [before 11th am between state and citizen of another state]

• diversity: citizens of different states

3.2.2: original jx = state is a party, ambassadors, ministers, consuls; everything else = appellate jx

3.2.3: trial of crimes by jury

3.3: re: treason

4. article 4:

a. 4.1 full faith and credit

b. 4.2 P&I (the citizens of each state shall be entitled to the P&Is of citizens in the several states)

c. 4.4 republican form of gov't to all states

5. article 5: amending the C

a. 2/3 of Congress proposes amendment

b. or 2/3 of state legislatures

c. ratified by 3/4 of state legislatures/conventions

6. article 6: supremacy clause

D. amendments:

1. religion, speech/press, assembly, petition

2. militia, keep & bear arms

3. no quartering

4. probable cause for search/seize; warrants

5. federal due process; grand jury, double jeopardy, indictment, self-incrim

6. speedy trial, jury, counsel

7. jury for c/L suits over $20

8. no cruel & unusual punishment

9. rights granted are not exhaustive (+ privacy comes from here, partially)

10. dual sovereignty: rts not delegated to US nor prohibited to states = retained by states

11. federal courts do not have jx over suits against a state (by a citizen of another state or country)

12. pres & veep on separate ballots

13. no slavery (1865)

14. due process to states; §5 enforcement

15. vote to all races (men)

16. income tax

17. popular Senate vote

18. prohibition

19. suffrage to women

20. lame duck

21. repeals prohibition

22. term limits

23. congress runs DC

24. no poll taxes

25. succession to presidency (veep, speaker, pres pro tem, cabinet)

26. 18 y.o. vote

27. no increase in Congress salries during term

II. Supreme Court powers

A. rules:

1. judicial review to ensure federal laws are C'al

2. SCt may review state ct decisions to extent based on federal law

3. jx limited by 3.2

4. congress can control by killing SCt's appellate jx & killing federal courts (Congress can't expand SCt jx per Marbury); SCt only inalienably granted its original jx

B. judicial review

1. Marbury v. Madison:

a. held: it is the judiciary's duty to review laws to ensure they are C'al

b. facts: Marbury tried to mandamus Madison (the SOS) for his appointment; SCt had original jx over mandamus issues per Federal Judiciary act; Marshall says the act is unC'ally in conflict w/ art 3

c. rzn:

i. courts always decide questions of conflict of laws

ii. if there is a conflict => C wins

iii. cts refuse to enforce the law (thereby declaring the law unC'al)

iv. it is the duty of the judiciary to say what the law is

2. is the law C'al? the burdens:

a. rational basis test (law presumed C'al; burden on opponent of law)

b. elevated rights (speech, press, assembly, religion, discrimination, etc)? reverse usual presumption & put burden on proponent of law (Carolene Products fn 4)

3. reviewing state court decisions (must be a state ct. decision based on federal law!)

a. rule: SCt can review state jj of federal law, but not state jj of state law

b. rule: the federal judiciary is the supreme decider of C'al issues

c. Martin v. Hunter's Lessee

i. issue: can the SCt review the C'ality of a state ct. decision?

ii. held: is a state ct. decision involves federal law, the SCt can decide its C'ality

iii. rzn: (1) need uniformity, (2) states don't have sovereignty over powers they gave to US via C

iv. not a dual sovereignty problem b/c the SCt. only has appellate power over the case, not the court

d. aff'd in Cooper v. Aaron; SCt. decisions are the supreme law of the land

4. exception: independent state law grounds adequate to uphold the law regardless of C'al issues Delaware v. Prouse (we didn't really cover this)

C. Congress can limit court's powers: (see infra VII.F)

1. text of the C:

a. per Art III the SCt is only granted its original jx (and appellate, but subject to exceptions by Congress)

b. Congress can contract SCt's appellate jx, but not extend it beyond the bounds set by the C

c. Congress can dissolve "inferior courts"

d. Congress cannot add to or subtract from SCt's original jx

2. Ex parte McCardle

a. held: Congress can contract the SCt's appellate jx by making "exceptions" to it via statute

b. facts: racist jailed for not following reconstruction acts; applied for habeas relief via special statute; Congress repealed statute granting SCt appellate jx over the habeas; SCt upheld the repeal of the Act & dismissed for lack of jx

3. limits on jx must be neutral (ie not depriving a certain litigant of an appeal) US v Klein [didn't cover]

III. Justiciability: Mootness, Ripeness, Standing [Look for this on every question on exam!!!! Easy to miss.]

A. general requirements:

1. case or controversy (no advisory opinions) [to avoid sep or powers, to explore all aspects of situation & to be final and actually solve controversy]

2. not moot

3. ripe

4. standing [must address standing after moot/ripe!!!]

a. injury in fact [concerete; or 3P standing exception applies]

b. causation (harm is cause in fact of injury)

c. likelihood of redressibility

taxpayer standing to attack appropriations: usually a generalized grievance & no standing (Frothingham); Flast exception: logical nexus between taxpayer & claim

a. 1.8 appropriations

b. tax violates specific C'al limitation on 1.8 tax/spend power (violates establishment clause)

5. not a political question:

a. textually committed to another branch of the gmt (ie impeachment issues)

b. no manageable judicial standards to decide the issue

B. Ripeness: (anticipated harm must be rzbly specific)

1. policy:

a. don't want to waste judicial resources;

b. want to make best decision possible by knowing as many facts as possible (not too hypothetical)

c. ensure the controversy is actually decided by the decision

2. exception: if the mere presence of the self-executing law is oppressive & has a natural chilling effect => that is injry enough

a. ex. property zoned different; property values decrease overnight

b. ex. law says no private schools in 4 years; that self-executes to start to hurt ppl immediately

3. must have case or controversy Muskrat

a. legislature can't pass Act that says you can have the cts. decide this (can't grant ripeness)

b. need "case or controversy" per 3.2

C. Mootness: (still justiciable controversy btwn adverse litigants)

1. rule: must still be a justiciable case/controversy still affecting the rts of the litigants

2. DeFunis

a. facts: denied admission to law school; by time in SCt, petitioner was in final semester

b. held: moot

3. Paps a.m.

a. facts: Pap is ex-runner of Nude Bar (retired); challenges law saying dancers must wear pasties

b. held: ct. says not moot b/c Pap could come out of retirement

4. Tiverton v. Pastore

a. facts: P couldn't get liquor license; by time to SCt, out of bsns

b. held: moot

4. exceptions:

a. collateral consequences (ex. still have $ damages)

b. class actions not moot per Sosna

c. capable of repetition, yet evading review (Roe v. Wade)

i. the challenged action was in its duration too short to be fully litigated to its cessation or expiration and

ii. a rzbl expectation that the same complaining parties will be subject to the same action again

d. voluntary cessation by defendant (may not be permanent)???

D. Standing (adequate stake in the controversy)

1. C'al requirements: invasion of a legally protected interest (economic, aesthetic, etc)

a. injury in fact

i. concrete and particularized

ii. actual or imminent

iii. can't be merely speculative or hypothetical

iv. can't be psychological

• must be proper D: the party seeking standing must himself have suffered injury

b. causal connection btwn injury & challenged conduct (correct D)

i. Singleton v. Wulf: stopping the Dr's from giving abortions will not redress the injury

ii. proper D is the state agency not enforcing medicare laws and allowing Dr's to get medicare money for performing abortions

iii. Lujan v. Defenders of Wildlife: didn't actually plan to go back to spots where the crocodiles were, so no actual injury (not concrete)

c. likely injury will be redressed

i. Allen v. Wright

A. IRS didn't deny 501(c)3 exemption to discriminatory school

B. held: since parents hadn't actually sought admission (and been denied) => no injury in fact; only psycho

C. redress? taking away schools tax-break will only speculatively lead to more white kids going to public school [no link btwn injury and requested relief]

ii. Duke Power

A. Price Anderson Act limited liability for nuclear waste

B. P's living near Duke Power sued that Act was unC'al; said if PA Act killed => Duke Power will close

C. held: too speculative [Guinn says not ripe, yet]

2. Prudential requirements: Court created in deference to sep. of powers

a. no generalized grievances (Flast taxpayer standing exception)

i. can't have general interest of a citizen that his gov't behave C'ally

ii. as long as person in group alleges personal concrete injury, that is okay (not generalized)

iii. Raines v. Byrd: members of a political body do not have standing to assert an institutional injury (institutional injury too generalized to be individualized harm)

b. a logical link btwn P's status and claim (Flast taxpayer cases only)

c. no 3P standing

exception:

i. injury in fact

a. concrete and individualized

b. causation (cause in fact of injury)

c. redressability

ii. close relationship: if the party who enjoys the rt is inextricably bound up w/ 3P's right

iii. substantial obstacle to asserting the right (or no benefit for asserting the rt.)

3. taxpayer standing to attack appropriations

a. Frothingham general rule: no standing b/c fails prudential requirement of no generalized grievances

i) not knowing where CIA money is spent is generalized grievance Richardson

ii) earmarking exception: standing if tax $ you paid can be traced into appropriation (use) for unC'al ends (Steward)

iii) note: if you pay a tax that you claim is invalid, you have standing b/c you have actually paid the tax; this is concrete and individualized

b. Flast exception: [1.8 GWC tax/spend + violation of establishments clause]

i. there must be a logical link between the status he asserts and

the type of legislative appropriation involved

(it must always be a GW 1.8 appropriation by congress)

ii. a logical link (or nexus) between the status he asserted and

the precise nature of the C'al right asserted

(can be a general rule about the C that congress is violating, but one that you have a vested right/interest in; you must have a personal/property interest at stake)

• establishment clause is

• 5th am. d.p. is not

c. municipal taxpayers: more directly injured b/c smaller scale; isn’t too generalized; have standing per Mass. v. Mellon

4. cases:

a. Schlesinger: P sued under incompatibility clause; alleged they may be subj. to executive influence and that was a sep. of powers problem; held: no injury in fact; totally speculative and hypothetical

b. Valley Forge: federal property donated to a religious college; P's read about it in the paper and were upset; Ct. held no standing b/c entirely psychological injury + it's a generalized grievance

E. Political Questions

1. Baker v. Carr factors:

a. **textually demonstrable const. commitment of the issue to a coordinate political dept

b. **a lack of judicially discoverable & manageable standards for resolving the issue

c. the impossibility of deciding w/out an initial policy determination of a kind clearly for nonjudicial discretion

d. the impossibility of a court's undertaking independent resolution w/o expressing lack of the respect due to the co-ordinate branches of gvmt.

e. an unusual need for unquestioning adherence to a political decision already made

f. **the potential for embarrassing multiple pronouncements by multiple departments on one question

2. commitment to coordinate political branch:

a. impeachment issues (what are high crimes and misdemeanors?)

b. amending the C (process Congress uses to adopt the amendments)

c. Powell v. McCormack; held not committed to coordinate branch

3. lack of manageable standards ( can't find any guidance in the C)

a. time for ratifying amendments (is it eventually too late to ratify?)

b. guarantee of "republican form of gov't" Luther v. Borden

c. whether the Pres. has usurped Congress' war powers (probably)

4. need for a unified voice: [whether the Pres. can terminate a treaty Goldwater v. Carter]

5. Baker v. Carr:

a. facts: Tenn. refused to reapportion legislature for 60 yrs

b. held: not a political question, but a substantive violation of the e.p. clause of the 14th am.

c. reasoning:

i. did involve politics but not a 'political question' b/c not textually demonstrably committed to another branch of govt

ii. the guaranty clause claim was not justiciable

IV. The Eleventh Amendment & Sovereign Immunity

A. the federal government has absolute sovereign immunity (and therefore must always consent to being sued)

B. states have immunity from suit -- rules:

1. 11th am. bars suit by citizens against other states and their own state Hans v. La

2. 11th am. bars suits against a state based on federal question or diversity

3. the 11th am. bar against suits against the states is C'al and cannot be overridden by Congress Seminole Tribe (i.e., the Congress can't waive the states sovereign immunity in an area)

C. exceptions to state sovereign immunity: [remember, only applies to suits in federal court]

1. can sue to enjoin state officials from violating federal law (becomes actor conduct, not state conduct - fiction) Ex Parte Young

2. can sue state officials for money damages, as long as state won't have to pay any of it

3. 11th does bar suits v. state for officials violating state law

4. the federal gov't can sue state; states can sue states

5. can sue cities, municipalities, political subdivisions (school & water districts) [note from Guinn: don't raise Sovereign Immunity for Hospital district, McClennan Co, school district, City of Waco, etc...on the exam!!!! they are only exposed by 1983 (not just "any person" but includes political subdivisions), but they do not have 11th amend shield!]

6. caselaw -- unclear about agencies

7. suits in state court: as long as state has enabling legis. to give them jx, the state can be sued in state court; then the 11th am. doesn't bar SCt from having appellate jx to ensure state ct jj doesn't violate federal law

D. state can waive sovereign immunity

E. Ex Parte Young exception to state sovereign immunity [very imp. legal fiction b/c it allows fed. to retain supremacy]

1. elements:

a. state actor

b. seeking prospective relief

2. can get an injunction against an individual state actor to enjoin from enforcing a state law that you get adjudged unC'al or in violation of federal law (e.g. violation of e.p. or d.p.)

3. relief: only injunction [therefore, must be an ongoing wrong]

limited exception in Ruiz v. TX: re: prision conditions; would take years to get conditions up to snuff; can get $ for bad conditions from now on but not retroactively) [we allow dmgs for this b/c it would be bad to find a C'al wrong, but afford no remedy]

F. Congress has some power to allow suits against states...

1. did Congress unequivocally express an intent to abrogate state immunity?

2. did Congress act pursuant to a valid exercise of power?

a) Congress cannot abrogate 11th immunity under Art 1 [even §8 commerce] (Seminole Tribe)

b) 14th amend (§5): Congress can abrogate if:

i. congress id's conduct transgressing 14th

• unC'al taking of life, liberty, property

• w/o d.p. of law -Fla. Prepaid

ii. tailors scheme (abrogation of immunity) to this transgression

• only works if state takes w/o d.p.

• and doesn't provide a remedy (or provides an inadequate remedy)

• proportionality: if state deprive rts. w/o dp, Congress must respond w/ and act that is in proportion to the harm & in response to it (to remedy); see City of Boerne

&. Congress cannot abrogate states' sovereign immunity per 11th, no matter how explicit per Seminole Tribe unless 14.5 (due process or equal protection)

&. can congress abrogate per....?

a. 14.5 YES

b. 1.8 NO (Seminole Tribe)

G. rule Congress cannot subj. a state to suit in state court w/o consent per Alden v. Maine

1. rule: congress cannot force the states to allow suit in their own courts (even a suit based on federal rts.)

2. why? structure, history, text, precedent (not b/c of 11th!!! 11th only applies to federal courts)

3. effect: Alden + Seminole Tribe means that federal law can protect state employees, but the employees have no way of getting damages from states for violating the law (only the federal govt itself could bring suit)

H. § 1983 notes [don't get 11th am. mixed up w/ 1983]

1. bring against state actor [who are not protected by 11th]

2. bring against political subdivision [who are not protected by 11th]

3. can't bring 1983 action against a state b/c not a "person"

I. review: we get around the immunity by:

• federal gov't can sue

• sister state can sue

• get state to waive her immunity in federal courts --Atascadero

• Congress can abrogate immunity under §5 of the 14th am.

1. life liberty property or equal protection

[if none, go to state ct or Congress]

2. state is violating a specific provision of the C

3. proportionality and congruence: subjective evaluation of the d.p. / e.p. evil v. the remedy (the act and the abrogation of immunity); is the injury out of proportion to the remedy?

Congress' Powers

V. Necessary and Proper

A. background:

1. James Madison's elastic clause

2. 1.8.18 in enumerated powers: "To make all Laws which shall be N&P for carrying into Execution the foregoing Powers"

3. N&P says "the foregoing powers and all other Powers vested in this C" retained by states (or ppl under 9th am)

b. but federal law is still supreme law (per art. 6), where it exists

6. remember, the N&P clause is a dependent clause and must be used with a Congressional enumerated power (or other branch)

B. McCulloch v. Maryland: establishing the BUS is spending/coin$/commerce + N&P = Constitutional

1. what is "necessary & proper"?

a. doesn't have to be absolutely necessary

b. test:

• let the ends be legitimate

• let the means be appropriate

• and let them be w/in the confines of the C (ie not prohibited by C)

c. example:

1. enumerated power w/in the C

2. legislation made to effectuate the enumerated power

3. not expressly prohibited by the C

2. “let the end be legitimate, let it be within the scope of the C, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited but consistent with the letter and spirit of the C, are constitutional.”

VI. Commerce Clause

A. three ways Congress can regulate interstate commerce: (Lopez)

1) regulate the use of the channels of interstate commerce (even if no commerce involved);

2) regulate & protect the instrumentalities of interstate commerce (or people or things in interstate commerce), even though the threat may come only from intrastate activities &

3) regulate activities that substantially affect interstate commerce.

B. rules:

1. the federal government has exclusive power to regulate interstate commerce (1.8.3)

2. "commerce" encompasses almost everything (expansive definition)

a. buying/selling goods

b. commercial intercourse (unless confined to one state)

3. "interstate" = everything but that which is confined to one state Gibbons

a. anything that crosses state lines

b. everything except completely internal commerce

c. navigable waters Daniel Ball [note: Brazos River that law school on = navigable]

d. if final destination is in stream of interstate commerce => all trips are interstate as to that item

e. rule: first leg & last leg of many-legged trip are not interstate (Josh airport ex)

4. substantial impact on interstate commerce (NLRB v. Jones Laughlin Steel)

a. if something has a substantial impact on interstate commerce

b. Congress can regulate it

c. with commerce power + N&P power (Southern RR)

5. cumulative effect:

a. if something has a cumulative effect that will substantially affect commerce => Congress can regulate it

b. ex) farmer growing extra wheat for prsnl. consumption Wickard v. Filburn

6. police power?

a. Congress does not have police power, but Congress can use commerce powers to do policing

b. we don't look to Congress' motive (Caminetti and Mann Act re: prositute transport)

c. why? b/c Congress has plenary (absolute) power to regulate IS commerce

B. cases:

1. Heart of Atlanta Motel

a. blacks couldn't stay in many hotels, so Congress passed law (valid under 1.8)

b. blacks affect interstate commerce [3] (won't go spend money if can't travel) and

c. travel is a channel of interstate commerce [1]

2. Katzenback v. McClung

a. blacks couldn't eat in; had to take-out or drive-thru; DOJ couldn't prove any customers from out of state

b. but owner bought $70k of groceries from out of state

c. substantial effect on interstate commerce [3] (& cumulative effect)

3. US v. Bass

a. act: illegal to posses firearm in interstate commerce

b. C'al b/c protecting the instrumentalities of interstate commerce

c. court requires prosecutors to show "commerce hook" --> recv'd gun from out-of-state, travelling on highway, etc

4. Dewey Jones

a. facts: threw Molotov cocktail into cousin's house

b. Act: bans for "use" in interstate commerce

c. held (9-0): house was not for "use" in interstate commerce; yes, house recv'd natural gas from out-of-state, but house wasn't built for "use" in interstate commerce

d. rule: only property used in commerce or in an activity affecting commerce under 3d approach in Lopez; some economic enterprise

5. Robertson: took 15% of mine's output out-of-state; don't have to show substantial effect b/c using channel of interstate commerce [1]

C. "substantial effect" test

1. Congress doesn't have to say what effect on interstate commerce is, but helps.

2. scrutiny: Congress must have had a rational basis for concluding that the activity has a subst. effect on interstate commerce

3. US v. Morrison (overturned VAWA)

a. facts: Congress passed VAWA (violence against women act)

b. held: unC'al Act b/c outside Congress' powers

c. fails Lopez tests:

i) not an economic activity (nothing commercial)

ii) no causal connection btwn conduct (violence) & interstate commerce

iii) no jurisdictional hook (e.g. if P/D traveling in interstate commerce and...)

D. 1.8.1 taxing power: regulatory use of power is constitutional (but higher scrutiny) [always ask: standing?-if you attack appropriation, no; if you pay the tax, yes]

1. test:

1) $ for revenue only => always C'al per GWC (an independent source of legislative power per Butler?)

2) $ for regulation =>

a. made per enumerated powers

1) primarily for revenue (incidental regulatory features) => C'al as tax per GWC 1.8.1 + N&P 1.8.18

2) primarily for regulation (incidental revenue) => C'al as [enumerated power 1.8.x] + [N&P 1.8.18]

b. not made per enumerated powers => must be primarily for revenue (then you get the enumerated power of the purse under GWC 1.8.1); if regulatory on its face => unC'al violation of Doctrine of Enumerated Powers (10th am)

2. taxing provisions in the C:

a) 1.8.1 indirect taxes (taxing things)

b) 1.9 direct taxes & apportionment (taxing ppl)

c) 16th am direct income taxes w/o apportionment

d) 1.9 (§ 5 no tax on items exported from a state)

3. test: a tax is "regulatory on its face" when it exacts a return

a) only for a departure from a specified measure of bsns or

b) engaging in an activity

c) easy test: when you can "chose" whether or not you want to pay the tax by structuring your conduct it's regulating conduct

d) examples

i. can tax gambling (engaging in an activity) = regulatory

ii. can tax doctors who use child labor (departing from measure of bsns) = regulatory

e) Bailey Furniture (child labor case)

i. tax on furniture makers if they use child labor

ii. this is regulatory on its face

A) primarily for regulation

B) + enumerated power (commerce 1.8.3)

C) + N&P = C'al

4. Federal laws providing "economic inducement" to the states; do they violate 10th? no if for the GW (S.Dakota v. Dole) ["the US Congress can, will, & does expansively regulate in areas reserved to the states under the 10th amendment via the power of the purse" or GWC]

a. for "general welfare"; ends justify the means; restriction makes sense to further GW (Helvering)

b. clear conditions on the states; Congress must clearly say "if you take this $, you give up your sovereign immunity"

c. indy C'al bar rule: no other section of the C provides an independent bar; you don't require state to violate a provision of the C

a. so long as there is an element of choice, it's economic inducement, not economic coercion

5. separation of powers issues:

a. federal gov’t can’t force the states, only induce them NY v. US

b. federal gov’t can’t force the states executive branch (police, sheriffs) to be their federal agents, implementing the federal laws Printz

E. GWC tax-spend powers Butler [not good law, but use this to analyze tax cases & good law for "earmarking exception"]

a) standing?

i. does the P pay the tax, so there is a direct harm?

ii. if he is attacking an appropriation, does Frothingham apply? (no standing)

iii. Flast exception?

A. nexus 1 GWC 1.8 appropriation

B. nexus 2 violates establishment clause?

iv. Earmarking exception? Butler

A. a statutory integration between the regulation and the scheme of the appropriation

B. why? b/c no longer an infintesimal right; its your money you can actually trace flowing into an allegedly unC'al scheme of regulation!

b) valid tax?

i. regulatory or for revenue?

a) primarily for revenue => valid under GWC

b) regulatory? =>

i. no enumerated power? => unCa'l

ii. yes, there is an enumerated power? => C'al per enumerated powers and N&P

VII. Separation of Powers

A. Federal Treaty Powers:

1) II.2.2 President makes treaties with advice & consent of Senate (2/3 of Senate must "concur") do not say that the Senate must ratify Pres' treaties!

2) types of treaties:

a) self-executing treaties do not need any further Congressional work to be a valid treaty

b) non self-executing treaties need Congress to pass a statute to give the treaty effect (all treaties that require appropriations are, thus, non-self-ex)

c) supremacy: treaties are on par with federal statutes; if a treaty conflicts with a statute, try to reconcile them; if you can't, the latter in time wins

3) validly enacted law pursuant to treaty power???

a) yes! (almost always)

b) authority: valid treaty + N&P = C'ally enacted law (Mo. v. Holland)

c) valid treaty? must be C'al; as long as it doesn't violate express prohibitions of the C (Reid v. Covert)

d) N&P? N&P test: let the ends be legit, let it b w/in the confines of the C; then, all means that are appropriate and that do not violate express prohibitions of the C are N&P

4) why? b/c making treaties is in the realm of foreign affairs & is not the province of the states

a. you can only make a treaty with a sovereign

b. dual sovereignty doesn't apply in the field of foreign affairs

c. not only can state not make a treaty

d. but the state is not a sovereign as to US where treaties are concerned

e. recap: the domestic distribution of powers under dual sovereignty doesn't apply in the field of foreign affairs b/c of the incapacity of the states to affect foreign affairs

5) Pres makes treaty, negotiates it, etc. Why so much power? implied foreign affairs powers (commander-in-chief, legation [send/receive ambassadors])

B. executive agreements

1. Pres can make exec. ag. but doesn't need the advice & consent of the Senate!

2. but can be used on in ltd. situations:

a. pursuant to the Pres' enumerated powers (rts of legation and as commander in chief)

b. pursuant to congressional subdelegation of authority (ex ag's on trades and tariffs; non-self-executing treaties giving Pres power to negotiate per exec. ag.)

c. treaties

d. commander in chief

e. rts of legation (send diplomats)

4. and they have to be C'al (as do treaties per Reid v. Covert)

5. but they cannot override a prior act of Congress! (unlike treaties)

6. are superior to state law per supremacy clause (art. 6)

C. foreign affairs:

1. not enumerated in the C, but the SCt has recognized that Congress and executive have power over foreign affairs even where an enumerated power is inapplicable

2. why? general C’al principle that feds can control foreign affairs

D. war powers!

1. President is commander-in-chief of the armed forces (2.2)

2. but Congress has the power to declare war (1.8.11) & to raise and fund the armed forces (power of the purse in 1.8)

E. separation of powers between the Pres and Congress, generally:

1. executive branch is not governed by enumerated power (unlike legislative); a presidential action is only required to be “executive” and not encroaching on legislative or judicial territory to be C’al (compare Art. II with Art. I)

a. must be executive fx from the C or

b. a subdelegation from Congress or

c. foreign affairs (this is the Pres’ realm per Curtiss-Wright

2. limit on Pres: but the President cannot make the laws; he can only carry them out Youngstown Sheet & Tube

a. prior to Pres’s action to close steel mills, Congress had explicitly refused to give the Pres this kind of authority in the Taft-Hartley Act

3. INS v. Chada:

a. standing: injury in fact (will be deported) and redressability (won’t be if act unC’al)

b. case or controversy? yes b/c Chada wants to stay in US and if Act is C’al, INS will deport him

c. political question? congress is w/in its 1.8 authority to pass this law, but the procedure violates the C (bicam and presentment); therefore, this is not textually demonstrably committed to the legis branch of the gov’t

d. held: one-house veto violates bicameralism and presentment

e. why? importance of checks and balances & sep. of powers; “the choices…made in the C’al Convention impose burdens on the gov’t process that often seem clumsy, inefficient, even unworkable, but those hard choices were consciously made by med who had lived under a form of gov’t that permitted arbitrary gov’t acts to go unchecked.”

f. when is bi-cameralism and presentment not req’d?

i. impeachment in House 1.2.5

ii. trying impeachment in Senate 1.3.6

iii. Senate advice/consent on presidential appointments, treaties & selecting President in a tie 2.2.2, 2.1.3

4. Dames Moore: Congress implicitly acquiesced to the Pres. exercising power re: settling claims in foreign affairs situations

5. test (war powers)

a. express/implied authorization from Congress + Presidential action = valid (b/c btwn Pres & Congress = 100% of foreign affairs powers) (Dames Moore)

b. Pres acts in contravention of Congressional authority (Congress said “no”) => presumption that Pres’s act was invalid (Youngstown)

c. Pres acts in absence of Congressional authority, but not in contravention: Pres and Congress may have concurrent authority:

i. look to history (has this been done in past)

ii. has Congress impliedly acquiesced in the past

6. officers’ appointment:

a. President can appoint federal officers 2.2.2

b. Pres nominates & appoints with advice & consent of Senate: ambassadors, justices of SCt, other officers (cabinet, fed. judges)

i. Pres can fire officers performing purely executive fx’s at-will, but Congress can limit this power as long as it’s not an interference w/ Pres’ ability to perform his duties (ie restriction that Pres can fire for just cause only is not necessary to the functioning of the executive) Morrison v. Olson

ii. Pres can fire officers perf. some judicial & legis. fx’s only for just cause! Meyers, Humphrey’s Executor

c. Congress vests power to appoint inferior officers in the Pres, Courts or heads of depts.

F. Congress & the Judiciary:

6. generally, non-judicial duties shouldn’t be given to judicial branch, but if the delegation to the judicial branch from Congress goes not threaten the fundamental structural provision of the C, it’s okay Mistretta v. US

7. Congress can’t tell the cts. what to do, though (i.e. in Boerne v. Flores, Congress tried to change the standard of review in 1st am religion cases; ct said “no.”)

8. Congress cannot assign original jx to the SCt that is not listed in Art. III Marbury

9. SCt’s appellate jx is dormant and must be activated by Congress (and Congress can take away all SCt’s appellate jx) McCardle

10. SCt has power to review state cts. decisions in its appellate jx Martin v. Hunter’s Lessee

11. pronouncements by the SCt are the “supreme law of the land” per Art. 6 and trump state laws that are deemed unC’al Cooper v. Aaron

12. the SCt maintains legitimacy through all this via justiciability and prudential factors

G. Executive Immunity & Privilege:

1. executive immunity doesn’t extend to acts before you were the Pres Clinton v. Jones

2. exec privilege is qualified and will be outweighed by criminal justice system if this is not a confidential executive matter re: military, international issues, nat’l security, etc. Nixon v. US (Watergate case)

Civil Rights & Liberties

VIII. Privileges & Immunities of citizenship (hard to test on)

A. P&Is of federal citizenship under 14th am. (correlative rts; c/L per Crandall, too)

1. recognized by Crandall v. Nevada (rt to travel) before 14th am. passed

2. P&Is of federal citizenship under 14th cannot be abridged by anyone, even civilians! (per Crandall, not the 14th am.)

3. P&Is of federal citizenship are correlative rights & can’t be abridged by states or civilians; correlative rights come from the federal government’s national character

4. the correlative rights:

a) interstate travel

b) access to art. III courts

c) access to federal marshal

d) run for office

e) petition Congress for redress of grievances

f) protection on high seas

g) one person, one vote

h) not the BOR’s guarantees (only enforceable v. state action) Twining

B. P&Is of state citizenship under 5th am.

1. enforceable via 4.2

2. can only be enforced against state actors (includes all state action)

3. PFC: fundamental right + unfair (no subst. rzn & not narrowly tailored)

4. P&Is of state citizenship = fundamental rights!

a. why? purpose was to fuse into one nation the independent sovereign states; therefore, P&Is only apply to fundamental rights

b. fundamental: for the promotion of interstate harmony; rights that are important to the maintenance & well-being of the union

c. from Slaughter-house: P&Is are those rights which are “fundamental, which belong of right to the citizens of all free government, and which have at all times been enjoyed by citizens of the several states which compose this union, from the time of their becoming free, independent and sovereign.”

5. states can abridge P&Is of state citizenship, but only if:

a. there is a substantial reason for the difference in treatment &

b. the discrimination practiced against the nonresidents bears a substantial relationship to the state’s objective (Piper)

6. what rights have been found to be “fundamental” P&Is of state citizenship?

a. traditional c/L civil rts

b. the bills of rights guarantees (from the state

C. travel:

1. travel interstate: right of a citizen to leave one state and enter another (federal per Crandall)

2. visit another state: rt to be treated like welcome visitor rather than unfriendly alien (state only! Baldwin-different cost for hunting license; not fundmt’l)

3. become citizen: rt to become per. residents and be treated like other citizens of the state (federal per Slaughterhouse cases, Saenz)

IX. Textual Constitutional Rights

A. bill of rights not applicable to the state per Barron v. Baltimore (had to use 14th)

B. rights are applicable against the state via the 14th am. pursuant to the case that incorporated the right

C. the BORs guarantees are not P&Is of US citizenship!

D. incorporation

1. not incorporated:

a. quartering

b. keep and bear arms

c. indictment (Hurtado not overruled)

d. rt to jury trial in civil cases (6th); ltd. incorp. for 7th am. criminal juries

2. incorporated:

|1st am: | |

|speech |Gitlow |

|press |Near |

|religion |Cantwell |

|assembly |deJohn? |

|4th am: |Mapp, Wolf |

|5th am: | |

|double jeopardy |Benton v. MD |

|self-incrimination |Malloy v. Hogan |

|confrontation |Pointer |

|indictment is not |Hurtado held this is not fundmt’l (still good law) |

| | |

|7th am: jury trial (crim) |Duncan (crim cases over 6 mos incarceration) |

|6th am: right to counsel |Gideon |

|8th am: cruel & unusual punishment | |

|(penumbras) privacy: |Griswold |

3. jury cases: Duncan

a. rt to jury in all serious criminal cases is a fundamental rt.

i. serious = 6 mos in jail

b. need at least 6 ppl on jury

i. if 6 man jury => need unanimity

ii. if 12 man jury => 9 to 3 is okay (but no less, no 8 to 4)

X. State Action

A. federal legislation under 14.5 US v. Morrison

1. must be legislation to protect a life/liberty or property interest

2. must be legislation directed at a state actor! (Civil rts. cases)

3. but Congress can legislate re: state actors even if they are not prohibiting something previously unC’al

4. Congress cannot use 14.5 to legislate re: non-state actors [but Congress can legislate re: civilians who discriminate via cumulative effect provision of commerce clause)

B. Slaughterhouse still important b/c 14th am. rts. still require state action, while P&Is of federal citizenship do not require state action.

1. dp requires state action (14th am. requires state action per Civil Rts. Cases)

2. ep requires state action

3. but P&Is of federal citizenship do not require state action

4. P&Is of state citizenship require state action by their definition

C. § 1983 cause of action analysis

1) Causes of Action

a) 42 USC 1981 p 1468

b) 1982 (p 1468)

c) 1983 (1469)

d) 1985 (1470)

2) Jurisdictional element: 28 USC 1331, 1343 (state or federal court)

3) 1983 [under color of state law] code

4) state action

a) traditional approach

(1) 14th am. dp requires state action Civil Rts. cases

(2) misuse of state power is still state action Screws

(3) public defender working for state was state actor but not working under color of state law (b/c atty-client relationship usurped under color of state law)

(4) Edmonson under color of state law?

a. extent to which actor relies on govt’l assistance and benefits

b. whether actor is performing a traditional govt'l functions

c. whether injury caused is aggravated in a unique way by the incidents of govt'l authority (Shelley)

b) public function theory (alter ego of the state)

1. private individual performs an exclusive state fx => private person becomes alter ego of the state and a state actor

2. Marsh: city-run town was performing public fx and became state actor for that purpose

3. rule: where a civilian assumes & executes an exclusive police power function of the sovereign, then the civilian acts as an alter ego of the state; therefore state action is implicit in the function

4. Flagg v. Brooks: deprivation not by state actor; so no 1983 coa

5. why? b/c state law didn’t compel person to sell P’s goods, it just silently acquiesced to the sale of the goods

6. Lebron: Amtrak created under fed. law and is state actor [note: no sovereign immunity issue b/c only seeking inj. and not damages!]

c) neutral state action

1. state licensed club was neutral state action b/c state had nothing to do with the discriminatory practices Moose Lodge

2. Blum test: the mere fact that a bsns is subj. to state regulation does not by itself convert its action into that of the state (Metro & Moose Lodge)

a) sufficiently close nexus (causal connection) btwn civilian transgression and the conduct of the state, so we can say the civilian acted as the alter ego of the state

b) a state normally can be held responsible for a private decision only when it has exercised coercive power or has provided such significant encouragement either overt or covert that the choice is deemed that of the state (ex. where drunk guy told to drive straight home or be arrested and charged, this is not really a choice and it is state action via coercion)

c) the req'd nexus may be present if the private entity has exercised powers that are traditionally the exclusive prerogative of the state (public fx theory Flagg, Marsh)

d) symbiotic relationship

1. state benefits from symbiotic relationship => state has affirmative duty to ensure things are non-discriminatory

2. Burton: state benefited from restaurant at public park; had affirm. duty to insert non-discrim clause into lease

3. when facts show symbiosis like this, it’s almost as if the state itself had discriminatory motives

5) life, liberty, or property interest

6) deprivation

D. 1983 is only a coa! it does not confer any substantive rights; 1983 coa, with the substantive component of the (xx amendment made applicable to the states by xx case or fundamental right) onloaded onto 1983 coa

H. who are state actors? do not have to be paid! ex. school board ppl working gratuitously are state actors

Due Process

XII. Substantive DP

A. violation of a specific C’al right or violation of a fundamental right

1. “DP is not a technical conception w/ a fixed content unrelated to the time, place & circumstances. It is not a mechanlical test. It cannot be reduced to a set of rules, but it deals with the concept of fundamental fairness between men and especial between men & the government.” --Justice Frankfurter

B. specific C’al rights: you have a liberty interest in the BOR’s (incorporated) and P&Is of federal citizenship

1. these are the rts. deemed fundamental in the incorporation debate

2. they are made applicable to the states via the 14th am.

3. the ct. must also determine the breadth and scope of these rights (what is free speech?)

C. fundamental rights

1. it is here the ct. comes closest to illegitimacy - in defining these rights (White in Bowers)

2. how defined? Scalia’s test:

a. carefully and narrowly describing the asserted right (the most specific level on which the rt can be identified at c/L)

b. then examining whether the right is manifested in "our nation's history, legal traditions & practices"

3. test for executive action (Scramento County): does the state transgression

a. shock the conscience

b. & is it intentional

D. What is the substance of due process?

1. P&Is of federal citizenship

2. BOR’s guarantees

3. fundamental rights:

a. not freedom of K Allgeyer overruled by Parrish

b. freedom from bodily intrusion Jacobson

c. educate your children Meyer

d. sanctity of the family unit Meyer and Pierce, E. Cleveland

i. but not to perform homosexual sodomy Bowers

ii. but states can allow homosexuality if they want to

iii. not fundamental to see a child that is not legally yours (Michael H)

e. Lochner overruled by Skrupa: cts. will not pass upon the wisdom of the laws

f. right to reproduce & abortion

i. the persons protected by 14th doesn't include unborn (so you must have baby who is live birth to get protected)

ii. 1st tri: absolute rt to have abortion

iii. 2nd tri: state has more power to protect the health & well-being of the mom; they can regulate abortion procedures to protect mom's health

iv. 3rd tri: state interest to forbid abortion, but must allow to save mom’s life

v. Casey test: the state’s regulation may not place an undue burden on the mother

g. preservation of life:

i. state can pass law that says you can’t pull plug unless clear & convincing evidence per Cruzan b/c rt to be free from arbitrary physical invasion is fundamental

ii. not fundamental to commit suicide (or assist) b/c of history, so states can outlaw it

iii. but states can allow assisted suicide if they want to

E. What is a violation of substantive due process?

1. if right is fundamental,

a. state’s interest must be compelling and

b. act must be narrowly tailored

2. if right is not fundamental, then must pass rational basis test

XIII. Procedural DP

A. identify life, liberty or property interest

1. liberally construed

2. property: something that gives rise to a legal entitlement; more than mere unilateral expectation

3. reputation: reputation alone is not a liberty interest that will get you a hearing unless there is a plus factor that goes along with it (like lost job; no promotions, etc)

4. you may have a liberty interest in getting a job b/c now state did something that was injurious to your rep. w/o dp (med student case)

5. all have their genesis in state law

a. state statutes

b. even traditions

6. in id'ing the interest it's not the weight to be attached to the interest (it is not the importance of the interest), but rather the nature of the interest

B. what process is due?

1. hearing before or after taking? Matthews v. Eldridge

a. private interest that will be affected by the official action

b. the risk of an erroneous deprivation of such interest through the procedures used, and the probably value, if any, of the additional procedural safeguards

c. government's interest, including the function involved and the fiscal and administrative burdens that the add'l or substitute procedural requirement would entail

2. use common sense

3. referencing a statute w/ proper procedures is enough to comport w/ DP (state not req’d to be private man’s atty)

C. welfare benefits is a property entitlement

a. notice (and specificity)

b. opp. to confront and cross-ex adverse witnesses

c. fair and impartial hearing officer

d. determination based upon the record actually presented

e. then if they take away benefits, the taking is commensurate with dp

D. public school education

a. oral or written notice of the charges

b. summary of the allegations against the child

if confesses => can expel

if denies => student must have an opp. to tell his version

c. exception: if he is dangerous, expel him now and give him process later

d. common sense! sliding scale: the more serious, the more process req'd

f. penalty beyond 10 days: then you better give him the full spectrum of procedural guarantees

g. corporal punishment exception: historically allowed by schoolmaster; c/L tort remedies are enough dp

E. bitter with the sweet doctrine: state can create a right, but can’t say what process is due to take it away

F. must truly be a taking - not a miscellaneous interruption (lawyer asked questions case)

G. the cases:

1. Goldberg: welfare benefits were property interest b/c more than unilateral expectation

2. Roth: professor had no property interest in his job

3. Perry v. Sinderman: de facto tenure after 7 years did give rise to legit. entitlement to get tenure & this req’d DP procedures (entitlement by virtue of custom)

4. Bishop v. Wood: cop fired w/o hearing; not a property interest b/c employment-at-will state; damage to repuation claim failed b/c it was not public knowledge

5. Paul v. Davis: P published in local cop’s “shoplifter book”; damage to reputation alone not property interest; maybe would become ripe later if he couldn’t get a job.

6. Goss v. Lopez: suspension of child w/o hearing was dp violation b/c entitled to education

7. Ingram v. Wright: corporal punishment was liberty interest in being free from bodily harm, but this did not require dp b/c of c/L tradition allowing schoolmaster to punish

8. Horowitz: terminated in last semester at med school; ct found dp was comported with; not decided whether this was a property interest; Guinn says this was not a property interest b/c no entitlement to be in med school; if she later couldn’t get job, probably was a liberty interest in reputation harm

Equal Protection

XIV. Specific prohibition against discrimination:

A. 15th am: voting

B. 19th am: women's suffrage

C. 26h am: 18 yo

XV. general prohibitions: equal protection (14th)

A. applies only to states

B. due process (5) against arbitrary legislation; the 5th is interpreted as the same as the 14th b/c the 5'th has a substantive component of equal protection

XVI. P&Is of state citizenship 4.2

XVII. federal equal protection: implied in the dp clause of the 5th am. see state e.p.

XV. state equal protection: 14th am. "no state shall make or enforce any law that will deny any person w/in its jx the ep of the laws"

A. state action?

B. discriminatory?

1. facially

2. as applied (being administered in a purposefully discriminatory way)

C. strict scrutiny:

1. applies to

a. suspect classes

i. race

ii. national origin

iii. alienage (discrim. against aliens)

A) usually gets strict scrutiny

B) but gets mere rationality scrutiny if the discrimination "relates to a fx at the heart of representative govt"

b. things that impair fundamental rights

i. vote

ii. access the courts

iii. migrate interstate

iv. speech, press, religion, assembly, reap, interstate travel, privacy, abortion (we think after Casey), marriage, procreation, in-home porn, rt of acces to criminal trial

2. test: compelling state interest (usually fails this test)

3. only applies when the classification is intentional (will not be used when there is an incidental "as applied" effect of being discriminatory towards a suspect class)

4. affirmative action & programs that assist ppl based on suspect classes: get strict scrutiny if they do so in an explicitly race-conscious manner

D. quasi-suspect classes (gender)

1. semi-suspect classes:

a. gender: no matter if invidious (intended to harm) or benign (or helpful), all get same review

2. review: mid-level

a. substantially related to

b. furthering an important gov't objective

E. elevated rational basis: usual rational basis test but we reverse burden of proof; state must prove the rational justification!

1) Pyter v. Doe, illegal alien children

2) Gomez v. Perez, illegit. children (& child support)

3) Cleburne Living Ctr: mental impairment

F. rational basis

1. applies to all non-suspect classes

2. & that don't involve fundamental rts.

3. review: must have a rational relationship to a legit governmental obj.

4. ex) almost all economic regulation falls under this

5. test:

a) classification must be sustained ifit is rationally related to legit government interest

b) bop on challenger to legislation

XVI. does the P has to prove a specific intent to discriminate or may it be inferred from the facts? or is a disproportionate effect enough?

A) must show specific intent to discriminate

B) exception: the jury cases (you can use disprop. effect or statistics to show discrimination w/o showing intent); why?

C) exception: if the law, on its face, cannot be explained for any other rzn that discrimination, then you can just show disproportionate impact

D) ex) no black comm'rs for years; ct: must prove intent

E) types of law:

a. facially invalid

b. neutral law but administered in a discriminatory way

c. ex) police power regulation where you have to reserve city clubhouse at park; this is neutral; but applied in discrim way b/c for 70 years, only whites were allowed to reserve the club

XVII. The EP cases:

A. economic cases: almost always pass rational basis test

B. race

1. the class is not suspect and subj to strict scrutiny unless the ct finds there is intent to discrimiate

2. intent:

a. explict

b. facially netural but administered discriminator

c. discriminatory as applied (not disproportionate impact, but something like a poll tax)

3. Plessy: sep but equal is okay

4. Swett v. Painter: UT law school case before Brown found that it wasn’t really equal

5. Brown: sep but equal is inherently unequal

6. Brown II: desegregate with “all deliberate speed”

7. dejure discrimination: purpose to discriminate ................
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