Constitutional Law 1

Political Questions Factors of Nonjusticiability

1. Constitutional commitment of the issue to a coordinate department. 2. Lack of judicially discoverable / manageable standards for resolving it. 3. Impossibility of resolving it without an initial policy determination of a kind clearly of nonjudicial discretion. 4. Impossibility of a court's undertaking independent resolution without expressing lack of respect due to coordinate branches of government 5. An unusual need for questioning adherence to a political decision already made. 6. Potentiality of embarrassment from the multifarious pronouncements by various departments on one question. (Baker v. Carr)

Three Zones of Presidential Authority

1. Maximum authority: When President is acting pursuant to express / implied authorization of Congress. Absent congressional authority - President can exercise own independent powers with congressional inertia / indifference, which enables President to pursue his own measures. 2. Twilight zone: Where Congress is silent. Congress has not granted or denied authority - may have concurrent authority or distribution of authority is uncertain. 3. Lowest authority: Congress has denied it or when President takes measure incompatible with the expressed or implied will of Congress. (Youngstown)

Approach to question that involves a state regulation that affects the free flow of interstate commerce

1. See if the question refers to any FEDERAL regulation that might be held to SUPERSEDE the state regulation or PREEMPT the field, or AUTHORIZE state regulation otherwise impermissible. 2. If neither of these possibilities is dispositive of the question, ask if the state legislation either DISCRIMINATES against interstate or out-of-state commerce or places an UNDUE BURDEN on the free flow of interstate commerce. 3. If the legislation is discriminatory, it will be invalid unless (i) it furthers an important state interest AND there are no reasonable nondiscriminatory alternatives or (ii) the state is a market participant. 4. If the legislation does not discriminate but burdens interstate commerce, it will be invalid if the burden on commerce outweighs the state's interest. Consider whether there are less restrictive alternatives.

Taxes v. Subsidies

1. Subsidies from state's general revenues to in-state manufacturers of a particular product: lawful. 2. Higher taxes for out-of-staters on their sales in the state than on in-staters on their sales in the state: unlawful. 3. All sales of the product in the state taxed equally, but then some revenue from the tax rebated to the in-staters: unlawful. (West Lynn Creamery v. Healy = MA imposed a tax on all milk dealers, but the tax law provided that revenue from the tax would be put into a fund that would be used to pay subsidies to in-state dairy farmers. This assessment-subsidy system violated the Commerce Clause because it operates identically to a tax placed only on sales of milk produced outside the state.)

Justiciability

1. The case must not require the giving of an advisory opinion. 2. The π must have standing. 3. The case must not be moot. 4. The case must be ripe for decision. 5. The case must not involve a nonjusticiable political question.

Dormant Commerce Clause - Definition

1. Where Congress is silent (taken no action, express or implied to make federal policy on a given subject matter), the objection to state regulation rests on the negative implications of the Commerce Clause (Article I, § 9, clause 3). If Congress has not enacted laws regarding the subject, a state or local government may regulate local aspects of interstate commerce if the regulation: 1. Does not discriminate against out-of-state competition to benefit local economic interests 2. Is not unduly burdensome = the incidental burden on interstate commerce does not outweigh the legitimate local benefits produced by the regulation If either test is not met, the regulation will be held VOID for violating the Commerce Clause.

Equal Protection

14th Amendment prohibition against unreasonable discrimination by states. Regulation affects certain persons or class of people. Test for reasonableness depends on criteria used to classify (suspect or quasi-suspect class) and nature of right (fundamental right).

Fundamental Right

A basic and essential right; freedoms expressed in the Bill of Rights and implied freedoms not expressly stated in the Constitution. Due Process

Suspect Classification

A class of persons that have historically been subject to discriminatory treatment; statutes drawing a distinction between persons based on a suspect classification, i.e., race, nationality or alienage, are subject to a strict scrutiny standard of review. Equal Protection

Penumbra

A doctrine whereby authority of the federal government is implied pursuant to the Necessary and Proper Clause; one implied power may be inferred from the conferring of another implied power.

Heightened Scrutiny

A purposefully vague judicial description of all levels of scrutiny more exacting than minimal scrutiny.

Federalism

A scheme of government whereby the power to govern is divided between central and localized governments.

Quasi-Suspect Class

A specific class of persons subjected to unequal treatment but deserving less than strict scrutiny. Equal Protection

Executive Immunity

Absolute Immunity for Official Acts = the President has absolute immunity from civil damages based on any action that the President took within his official responsibilities (even if the action was only arguably within the "outer perimeter" of presidential responsibility. (Nixon v. Fitzgerald) No Immunity for Unofficial Acts = the President has no immunity from private suits in federal courts based on conduct that allegedly occurred before taking office. (Clinton v. Jones) Rationale: The immunity is intended only to enable the President to perform his designated functions without fear of personal liability.

Presentment

Act of bringing a congressional decision before the President for his approval of veto.

Legislative Veto

An attempt by Congress to overturn an executive agency action without bicameralism (passes by both houses of Congress) or presentment (giving the bill to the President for his signature or veto). Legislative vetoes of executive actions are invalid. Legislative veto violates the implied separation of powers requirements of the Constitution. INS v. Chada = Congress granted to the INS the power to deport or suspend fro deportation illegal aliens. INS decisions to suspend deportations had to be submitted to Congress. Either House could pass a resolution overriding the decision. This legislative veto provision is unconstitutional.

Necessary And Proper Clause

Art. I, § 8 of the Constitution enables Congress to make all laws that may be "necessary and proper" to execute its other enumerated powers. 1. Necessary = indispensable, needful, essential, conductive 2. Proper = to make laws proper to execution. Legitimate ends are the people. NOTE: The Necessary and Proper Clause is not itself a basis of power; it merely gives Congress power to execute specifically granted powers. McCulloch v. Maryland = Congress has the power to charter banks since that power is appropriate to executing Congress's enumerated powers to tax, borrow money, regulate commerce, etc.

Contract Clause

Article 1, § 10 of the Constitution prohibiting states from passing any "law impairing the Obligation of Contracts."

Commerce Power

Article 1, § 8, clause 3 of the Constitution grants Congress the power to regulate commerce with foreign countries and among the states. Congress can regulate: 1. Channels of interstate commerce (roads, rails, waterways, phones, etc.) 2. Instrumentalities of interstate commerce (persons / things in interstate commerce) 3. Activities having a substantial economic effect on interstate commerce (rational basis for finding) 4. OR, an express jurisdictional nexus / hook with respect to each instance of activity 5. OR, necessary to regulate intrastate activity as part of a comprehensive regulation of interstate commerce NOTE: The fact that an activity has traditionally fallen within the states' domain can be outweighed by showing that a national solution is needed (environmental, drug trafficking, etc.). Gibbons v. Ogden = "commerce" is virtually every form of activity involving or affecting two or more states U.S. v. Lopez = federal statute barring possession of a gun in a school zone is invalid U.S. v. Morrison = federal civil remedy for victims of gender-motivated violence is invalid Gonzales v. Raich = upholding regulation of intrastate cultivation and use of marijuana (permitted by state law for medicinal purposes) because it was part of a comprehensive federal program to combat interstate traffic in illicit drugs NFIB v. Sebelius = can't regulate inactivity / compel activity, even if failure affects interstate commerce

Judicial Review

Authority of the courts to review decisions, actions, or omissions committed by another agency or branch of government.

Due Process

Clauses found in the Fifth and Fourteenth Amendments to the United States Constitution providing that no person shall be deprived of "life, liberty, or property, without due process of law." The constitutional mandate requiring the courts to protect and enforce individuals' rights and liberties consistent with prevailing principles of fairness and justice and prohibiting the federal and state governments from such activities that deprive its citizens of a life, liberty or property interest. Procedural and Substantive Due Process Regulation that affects everyone

Fourteenth Amendment

Declares that no state shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States.

Two Types of Executive Decisions

Discretionary: not reviewable by the Supreme Court Ministerial: reviewable by the Supreme Court (Marbury v. Madison)

Selective Incorporation

Doctrine providing that the Bill of Rights is incorporated by the Due Process Clause only to the extent that the Supreme Court decides that the privileges and immunities therein are so essential to fundamental principles of due process to be preserved against both state and federal action. There are only four provisions of the Bill of Rights that have not yet been incorporated into the Due Process Clause: 1. Third Amendment = prohibition against quartering troops in a person's home 2. Fifth Amendment = right to a grand jury indictment in criminal cases 3. Seventh Amendment = right to a jury trial in civil cases 4. Eight Amendment = right against excessive fines (Duncan v. Louisiana, District of Columbia v. Heller, McDonald v. City of Chicago)

Supremacy Clause

If there is a conflict between federal law and state law, the state law is simply invalid. The Supremacy Clause of the Constitution (Article VI, Clause 2) says that "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof...shall be the supreme Law of the Land..." So, if federal and state law conflict, the Supremacy Clause mans that state law must yield to federal law. In that event, federal law is said to have "preempted" the state law. See Preemption for test.

Gender

Intermediate Scrutiny Quasi-Suspect Class (Frontiero v. Richardson) Craig v. Boren = law providing a higher minimum drinking age for men than for women was held invalid. Reed v. Reed = a statute giving preference to males over females to act as administrator of an estate violates equal protection - ease in determining who should serve is not an important interest. U.S. v. Virginia = the Court expressly held that the government bears the burden of proof in gender discrimination cases and that an "exceedingly persuasive justification" is required in order to show that gender discrimination is substantially related to an important government interest. The "important government interest" advanced to justify categorization on the basis of gender must be genuine - no hypothesized for the purpose of litigation defense. Neither may the government's justification rely on overbroad generalizations about males and females that will create or perpetuate the legal, social, and economic inferiority of women.

Strict Scrutiny

Method by which courts determine the constitutionality of a law, when a law affects a fundamental right. Under the test, the legislature must have a compelling interest to enact law and measures prescribed by the law must be the least restrictive means possible to accomplish goal. Test: The government must show that the challenged classification serves a compelling state interest and that the classification is necessary to serve that interest. Burden: Government must prove its classification is necessary to achieve a compelling government interest. "Necessary" means that there is a no less restrictive alternative means available. There must be a very close fit between the means and the ends. Fundamental Rights Involved (Privacy, Interstate Travel, Voting, 1st Amendment) Suspect Class Involved (Race, National Origin, Sometimes Alienage) •The right to marry, and the right to procreate •The right to purchase and use birth control •The right to custody of one's own children and to raise them as one sees fit •The right to refuse medical treatment •The right to freedom of speech •The right to travel freely among the states •The right the vote •The right to freedom of association •The right to freedom of religion Alienage National Origin Race

Rational Relation Test

Necessary and Proper Test The Necessary and Proper clause is easy for Congress to satisfy: if Congress is seeking an objective that is within the specifically enumerated powers, then Congress can use any means that is: a. Rationally related to the objective Congress is trying to achieve. b. Is not specifically forbidden by the Constitution.

Executive Privilege

Not a constitutional power, but rather is an inherent privilege necessary to protect the confidentiality of presidential communications. Presidential documents and conversations are presumptively privileged, but the privilege must yield to the need for such materials as evidence in a criminal case to which they are relevant and otherwise admissible. This determination must be made by the trial judge after hearing the evidence. 1. Protect national security secrets = military, diplomatic, or sensitive national security secrets are given great deference by the courts. 2. Criminal proceedings = presidential communiques will be available to the prosecution, where a need for such information is demonstrated (U.S. v. Nixon) 3. Civil Trials = the Court has avoided ruling on the scope of executive privileges in a civil case. However, it appears that an Executive branch decision to withhold information will be given more deference in a civil trial than in a criminal trial. 4. Screening by judge in chambers = the court will determine in an in-camera inspection which communications are protected and which are subject to disclosure.

Mootness

Occurs when litigants who clearly had standing to sue at the outset of the litigation are deprived of a concrete stake in the outcome by changes in the facts or in the law occurring after the lawsuit has gotten under way. 1. Exception: cases that are capable of repetition yet evading review. a. Roe v. Wade was not decided by the court until 1972, when she obviously was no longer pregnant, yet the court declined to dismiss the case as moot. 2. Exception: voluntary cessation by the Δ - when Δ voluntarily ceases the conduct that the π is complaining about.

Enabling Clause

Part of the Fourteenth Amendment that gives the power to implement and enforce law.

Preemption (Supremacy Clause)

Presumption Against Preemption = The Court has stated that in all preemption cases, especially any involving a field traditionally within the power of the states (health, safety, welfare), it will start with the presumption that the historic state police powers are NOT to be superseded unless that was the clear and manifest purpose of Congress. When a state law is invalid: 1. Express: When a federal law specifically (i.e., expressly) says that it preempts state or local law. 2. Field (implied): Federal scheme is so pervasive, it is intended to take over a whole field or that the federal interest is so dominant that it will be assumed to preclude state laws. 3. Conflict: Applies to two situations: first, where compliance with both federal and state regulations is a physical impossibility; and second, where state law is inconsistent with the purposes and objectives of federal law. a. Direct physical conflict: When a regulation is drafted in such a way that it is physically impossible for a person to obey the federal and state regulations simultaneously. When this happens, the state regulation is invalid. Labeling regulations sometimes fall into this category. b. Conflict in purpose (frustrates): Where a regulatory scheme imposed by a state may be inconsistent with the purposes of a federal regulation. Here, the issue is always what was the intent of Congress. (Pacific Gas & Electric Co. v. State Energy Resources)

Fifth Amendment

Provides that no person shall be compelled to serve as a witness against himself, or be subject to trial for the same offense twice, or be deprived of life, liberty, or property without due process of law.

Sixth Amendment

Provides the right to a speedy trial by impartial jury, the right to be informed of the accusation, to confront witnesses, and to have the assistance of counsel in all criminal prosecutions.

Economic Regulation

Rational Basis No Suspect or Quasi-Suspect Class and No Fundamental Right involved (U.S. Railroad Retirement Board v. Fritz, Williamson v. Lee Optical) Railway Express Agency v. New York = City decided that advertisement on motor vehicles are traffic hazards, so it banned such advertisements except for those on vehicles advertising the owner's own product. Even though the excepted advertisements were no less distracting than the banned ones, the Court upheld the "first step" law.

Sexual Orientation

Rational Basis with bite No Suspect Class (Romer v. Evans, U.S. v. Windsor)

Standing - Constitutional

Requirements π must always meet to bring a case. 1. Personal Injury: π must have suffered an "injury in fact" -- an invasion of a legally protected interest which is (a) concrete and particularized . . . & (b) "actual or imminent, not 'conjectural' or 'hypothetical.'" 2. Causal Link: There must be a causal connection between the injury and the conduct complained of -- the injury has to be "fairly . . . trace[able] to the challenged action of the Δ;" cause-in-fact. 3. Redressability: It must be "likely," as opposed to merely "speculative," that the injury will be "redressed by a favorable decision." (Lujan v. Defenders of Wildlife, Massachusetts v. EPA)

Standing - Prudential

Requirements π usually must meet to bring a case. 1. No Third Party Standing a. Where the rights claimed to be violated are not the rights of the π, but instead the rights of third parties who are not before the court. b. Exception: Associations and organizations have standing not only where its own interests are at stake, but in some cases where it is sues solely as a representative of its members. An association has standing to sue on behalf of its members if three conditions are met: i. Its members would otherwise have standing to sue on their own. ii. The interests to protect are germane to the organization's purpose. iii. Neither the claim asserted nor the relief requested requires the participation of the individual members in the lawsuit. 2. No Generalized Grievances a. Non-individualized harm: where the harm suffered by the π is no different from that suffered by the large numbers of people not before the court. b. Exception: Some πs can have standing to try to prevent future harm, but the π must show that the threatened harm is reasonable likely to occur in the near future, not merely "speculative." c. Tax payers are too remote i. Exception: Establishment Clause: subsidies v. tax exemptions d. Citizen suits: no standing where the citizen has no other government connection other than his citizenship. i. Exception: When a federal statute creates a right to sue over violations of the statute - the violation is an injury. 3. No Suits Outside of a Law's Zone of Interest

Tenth Amendment

Reserves those powers in the Constitution, not expressly delegated to the federal government or prohibited to the states, to the states or to the people.

Educate and Raise Children

Right to Privacy Fundamental Right Limitations generally subject to strict scrutiny or at least intermediate scrutiny, but language in cases not consistent

Marriage

Right to Privacy Fundamental Right Limitations generally subject to strict scrutiny or at least intermediate scrutiny, but language in cases not consistent (Loving v. Virginia, Zablocki v. Redhail) Special Test for Prisoner's Rights = statute or regulation that restricts the constitutional rights of prison inmates will be upheld as long as the statute or regulation "is reasonably related to legitimate penological interests." (Turner v. Safley = A prison regulation that prohibited an adult prisoner from establishing a legal marriage relationship with another adult unless the prison superintendent approved the marriage was held invalid because the regulation was not reasonably related to any asserted penological interest.)

Sexuality

Right to Privacy Fundamental Right Limitations generally subject to strict scrutiny or at least intermediate scrutiny, but language in cases not consistent Intimate private, noncommercial sexual contact between fully consenting adults = not a right, but court found no legitimate government interest in regulating Lawrence v. Texas = a state law making it a crime for members of the same sex to engage in sodomy violates the Due Process Clause

Living with Extended Family

Right to Privacy Fundamental Right Limitations generally subject to strict scrutiny or at least intermediate scrutiny, but language in cases not consistent Moore v. East Cleveland = held that zoning regulations that prohibit members of traditional families from living together (zoning excluding cousins or grandchildren) violates due process (related family members) Belle Terre v. Boraas = held that a Long Island suburb could zone out all groups of three or more persons unrelated by blood, adoption, or marriage (unrelated family members)

Affirmative Action

Strict Scrutiny A form of benign discrimination designed to remedy existing discrimination by favoring one group over another. Affirmative action (favoring minority) invalid unless: a. Seeking to remedy past discrimination within jurisdiction b. Race can be a factor considered in admission of students in institutions of higher education to achieve a diverse student body (Grutter v. Bollinger) i. Cannot be a special / weighty factor (Gratz v. Bollinger)

Race

Strict Scrutiny Suspect Class (Plessy v. Ferguson, Brown v. Board, Loving v. Virginia, Griffin v. County School Board, Palmer v. Thompson, Washington v. Davis)

Abortion / Use of Contraceptives

Strict Scrutiny (Right to Privacy) Fundamental Right 1. Competing interests = mother's right to privacy vs. fetus's interest in becoming a child 2. Pre-viability = no undue burdens on right to obtain an abortion 3. Post-viability = may prohibit abortion except when woman's health threatened 4. No right to government funding of abortion services Griswold v. Connecticut = "marital zone of privacy" Roe v. Wade = held that the right of privacy includes the right of a woman to have an abortion under certain circumstances without undue interference from the state. Planned Parenthood v. Casey = a statute will not impose a substantial obstacle or an undue burden simply because it has the incidental effect of making it more difficult or more expensive to obtain an abortion. a. informed consent = no undue burden b. waiting period = no undue burden c. parental consent = no undue burden d. physician only requirement = no undue burden e. spousal consent = undue burden Gonzales v. Carhart = partial birth abortion ban = no undue burden

Substantive Due Process v. Equal Protection

Substantive Due Process review applies where a law affects the rights of ALL persons with respect to a specific activity (e.g., state law prohibits the sale of birth control devices, except by prescription). Equal Protection review applies where a law affects the rights of SOME persons with respect to a specific activity (e.g., state law prohibits the sale of birth control devices to unmarried persons, except by prescription).

Rational Basis Test

Test: Need only show that the challenged classification serves no legitimate government interest, or is not rationally related to serving a legitimate state interest. Burden: Plaintiff must prove no legitimate governmental interest. "Rational" is a minimal requirement meaning that the law cannot be arbitrary or unreasonable. "First Step" Rule = Under the rational basis standard, the Court will usually defer to a legislature's decisions that a law is rational. Loose fitting laws are permissible here: the law need not be the best law that could have been written to achieve the legislative goal. Indeed, it need not go far at all toward a conceivable legislative goal; the Court will uphold a law taking a "first step" toward any legitimate goal, even if the Court thinks the law is unwise. (Railway Express Agency v. New York) No Fundamental Rights Involved No Suspect or Quasi-Suspect Class Age Alienage (some) Disability Sex Orientation Wealth Etc.

Intermediate Scrutiny Test

Test: The government must show that the challenged classification serves an important state interest and that the classification is at least substantially related to serving that interest. Burden: Government must prove its classification is substantially related to an important government interest. "Substantially related" means that an exceedingly persuasive justification must be shown. Middle tier scrutiny is much closer to strict scrutiny than it is to rational basis. Quasi-Suspect Class Involved Gender Illegitimacy Undocumented Alien Children

"State Action" Private individual infringement of constitutional rights

The Constitution generally prohibits only governmental infringement of constitutional rights. Thus, to find some action unconstitutional, it is generally necessary to attribute the action to the state, which includes government agencies and officials acting under the color of state law. However, this does not mean that the act must be directly by a government actor; "state action" can be found in the actions of seemingly private individuals who: 1. Perform exclusive public functions, or 2. Have significant state involvement in their activities Exclusive Public Functions = The Supreme Court has found that certain activities are so traditionally the exclusive prerogative of the state that they constitute state action even when undertaken by a private individual or organization. To date, only running a town and running an election for public office have been found to be such exclusive public functions. Significant State Involvement = "State action" also exists whenever a state affirmatively facilitates, encourages, or authorizes acts of discrimination by its citizens. Note, however, that there must be some sort of affirmative act by the state approving the private action; it is not enough that the state permits the conduct to occur. (Shelley v. Kraemer = state court enforcement of restrictive covenants prohibiting sale or lease of property to blacks constitutes state action even in civil proceedings between private parties) State action will not be found merely because the state has granted a monopoly to a business or heavily regulates it. (Jackson v. Metropolitan Edison = no state action was found where an electric company terminated the user's service without notice or hearing. The state had not directed or ordered the termination and the fact that the company was heavily regulated and the state commission had approved private utility regulations authorizing such termination was not enough.

Civil Right Enforcement Powers - Fourteenth Amendment

The Fourteenth Amendment prohibits states (not the federal government or private persons) from depriving any person of life, liberty, or property without due process and equal protection of the law. The Fourteenth Amendment applies only if there is action by a state or local government, government officer, or private individual whose behavior meets the requirements for state action. Under Section 5, Congress may not expand existing constitutional rights or create new ones - it may only enact laws to prevent or remedy violations of rights already recognized by the courts. City of Boerne v. Flores = Congress adopted a statute, purportedly under Section 5, providing that a state may not burden religious practices absent a compelling interest. The statute was held unconstitutional because it sought to expand substantive First Amendment rights beyond those recognized by the Supreme Court.

Ninth Amendment

The Ninth Amendment to the United States Constitution provides that the enumeration of any rights contained therein is not to be construed as denying or disparaging other rights retained by the people.

Right to Refuse Medical Treatment

The Supreme Court has held that the right to refuse medical treatment is a part of an individual's "liberty" that is protected by the Fifth and Fourteenth Amendment Due Process Clauses. However, the Supreme Court has not ruled that this aspect of liberty is a "fundamental right" and has not explained which standard of review should be used. Limitations generally subject to strict scrutiny or at least intermediate scrutiny, but language in cases not consistent. Cruzan v. Director = the Supreme Court has assumed (without deciding) that a mentally competent adult has the right to refuse lifesaving medical treatment (including lifesaving nutrition. Therefore, a mentally incompetent person does not have the right. Washington v. Glucksburg = there is no general right to commit suicide; thus, a state may ban persons from giving individuals assistance in committing suicide. Vacco v. Quill = it is not irrational to permit competent persons to refuse life-sustaining treatment but prohibit physicians to assist in suicide because there is a logical, rational, and well-established distinction between letting someone die and making someone die.

Federal Regulation / Taxation of States

The Tenth Amendment provides that powers not delegated to the United States by the Constitution, nor prohibited to the states, are reserved to the states. This reservation of power is often cited as a restriction on Congress's power to regulate the states. 1. Tax / regulation applying to both private and state entities = valid. (Garcia v. San Antonio MTA = The states' interests are best protected by the states' representation in Congress. Congress can require state and local governments to follow the provisions of the Federal Fair Law and Standards Act requiring minimum wages for all employees.) 2. Tax / regulation applying ONLY to states = generally invalid. (New York v. U.S. = Congress may not compel states to enact or enforce a regulatory program. Federal statue requiring states to either regulate radioactive waste or take title to it is beyond Congress's power) 3. Commandeering state officials = cannot require states to regulate their own citizens. (Printz v. U.S. = striking portions of a federal gun law that required state law enforcement officers to collect from gun dealers reports regarding prospective handgun purchasers and to conduct background checks on them) 4. Prohibiting acts = the Court has allowed Congress to regulate the states by prohibiting them from performing certain acts. (Reno v. Condon = upholding federal act that bars states, as well as private resellers, from disclosing personal information required on drivers' license applications) Exceptions: strings on federal grants of money and civil rights

Civil Rights Enforcement Powers - Thirteenth Amendment

The Thirteenth Amendment provides that slavery shall not exist in the United States. The amendment contains no language limiting its effect to governmental action (e.g., "no state shall..."); thus, it is applicable even to private action. The enabling clause of the Thirteenth Amendment gives Congress the power to adopt appropriate legislation, and the Supreme Court apparently will uphold legislation proscribing almost any private racially discriminatory act that can be characterized as a "badge or incident of slavery." Jones v. Alfred H. Mayer Co. = prohibiting private parties from refusing to rent or sell housing to a person because of race Runyon v. McCrary = prohibiting private, nonsectarian schools from refusing to admit nonwhite children

Taxing Power

The authority delegated to Congress by the Constitution to impose taxes. A tax measure will generally be upheld if it bears some reasonable relationship to revenue production or if Congress has the power to regulate the taxed activity. 1. When is a "tax" a penalty? 2. When is a "penalty" a tax? 3. Penalty is characterized by: a. It is an exceedingly heavy burden. (Child Labor Tax Case) b. The scienter requirement (only applies to some people) are typically punitive. c. Who is it enforced by? IRS = tax, some other agency = penalty NOTE: Congress can probably regulate under the guise of taxing, so long as there's some real revenue produced. NOTE: The fact that Congress labels a measure a "penalty" does not prevent the measure from being upheld as a valid tax, as long as the measure actually functions in a way that resembles a tax (NFIB v. Sebelius).

Thirteenth Amendment

The constitutional provision which abolished slavery in the United States.

Free Exercise Clause

The guarantee of the First Amendment prohibiting Congress from enacting laws regarding the establishment of religion or prohibiting the free exercise thereof.

Proving Discrimination (Equal Protection)

The mere fact that legislation or governmental action has a discriminatory effect is not sufficient to trigger strict scrutiny or intermediate scrutiny. There must be INTENT to discriminate on the part of the government. Intent can be shown in three ways: 1. Facial discrimination arises where a law, by its very language, creates distinctions between classes of persons. (Korematsu v. U.S. = the only explicit race discrimination upheld despite strict scrutiny was the wartime incarceration of U.S. citizens of Japanese ancestry on the West Coast, which was found to be necessary to achieve a compelling interest of national security during WWII.) 2. Discriminatory application arises where a law that appears neutral on its face is applied in a discriminatory manner. (Yick Wo v. Hopkins = a law prohibited operating a laundry in wooden buildings, but gave a government agency discretion to grant exceptions. It was shown that most such laundries were owned by people of Chinese descent, but the agency granted exemptions only to non-Asian applicants. The law was deemed to involve racial or national origin classification and was invalidated as applied.) 3. Discriminatory motive arises where a law that appears neutral on its face but is enacted with a discriminatory motive. Evidence of motive is the disproportionate impact on a particular class of persons. (Gomillion v. Lightfoot, Griffin v. County School Board) (Washington v. Davis = a police department used results from a written test as a criterion for hiring police officers. Members of identifiable racial minorities consistently got low scores on the test, although there was no proof that the test was written or otherwise employed for the purpose of disadvantaging minority applicants. Because of the absence of nonstatistical proof of discriminatory purpose, there was no equal protection violation.) If facially neutral, no discriminatory application, and no discriminatory motive, then rational basis test applies. (Palmer v. Thompson)

Bicameralism

The necessity for approval by a majority of both houses of Congress when ratifying legislation, or approving other legislative action.

Spending Power

The power delegated to Congress by the Constitution to spend money in providing for the nation's welfare. Spending may be for any public purpose. Congress may regulate beyond enumerated powers by attaching strings to grants as long as strings are: 1. Clearly stated 2. Related to the purpose of the grant 3. Not unduly coercive (U.S. v. Butler) South Dakota v. Dole = a federal law that would withhold 5% of the federal highway funds otherwise allocable to a state if the state did not set a 21 years' minimum age for drinking of alcohol was upheld where the funds withheld amounted to less than one-half of 1% of the state's total budget NFIB v. Sebelius = law that threatens to withhold from states current Medicare funding if they do not greatly expand Medicare programs amounts to a "gun to the head," given that the law threatens to withhold 10% of an average state's total budget

Police Powers

The power of a state or local government to regulate private conduct for the health, safety and welfare of the general public.

Separation of Powers

The system of checks and balances preventing one branch of government from infringing upon exercising the powers of another branch of government.

Right to Privacy

The violation of an individual's right to be protected against unwarranted interference in his personal affairs, falling into one of four categories: (1) appropriating the individual's likeness or name for commercial benefit; (2) intrusion into the individual's seclusion; (3) public disclosure of private facts regarding the individual; and (4) disclosure of facts placing the individual in a false light.

Dormant Commerce Clause - Test

Three categories courts look at to determine if the dormant Commerce Clause should be enacted: It's both a "mere-rationality" test (in that regulation must be rationally related to fulfilling a legitimate state end), plus a separate balancing test (in that the benefits to the state from the regulation must outweigh the burdens on interstate commerce. 1. State laws that facially discriminate v. out of state interests (almost per se) (Philadelphia v. New Jersey = a state may not prohibit private landfill or waste disposal facilities from accepting out-of-state garbage or waste or surcharge such waste) a. Regulations that are truly addressed to the state's health, safety, and welfare objective and there are no reasonable alternatives are usually "legitimate" (but remember that this cannot be used as a guise for protecting resident's own economic interests at the expense of out of staters) (Kassel v. Consolidated Freightways Corp. = invalid when state prohibited semi doubles under the guise of safety) (Maine v. Taylor = a state could prohibit the importation of live baitfish into the state because the state could demonstrate that it had no other way of effectively avoiding the possibility that such baitfish might bring certain parasites into the state or, in other ways, have a detrimental effect on the state's wild fish population) 2. Facially neutral laws that in purpose / effect discriminate. 3. Facially neutral laws with a legitimate local purpose that burden interstate commerce excessively in relation to the putative local benefits. a. Pike Balancing Test i. Where the statute regulates even-handedly to effectuate a legitimate local public interest and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits and the extent of the burden that will be tolerated will of course depend of the nature of the local interest involved, and on whether it could be promoted as well with a lesser impact on interstate activities. b. Lack of Uniformity? A measure that leads to a lack of uniformity is likely to constitute a big burden on interstate commerce. For instance, if various states regulations are in conflict, the Court will probably strike the minority regulation, on the grounds that it creates a lack of uniformity that substantially burdens commerce without a sufficiently great corresponding benefit to the state.

Invidious Discrimination

Unequal treatment of a class of persons that is particularly malicious or hostile.

Ripeness

Where dispute is insufficiently developed and therefore too far remote / speculative to warrant judicial action (no one was hurt yet). 1. Example: uncertain enforcement of criminal statutes. Where a statute at issue is rarely enforced and isn't likely to be enforced with the issue at hand, the court may find a lack of ripeness. 2. Exception: specific threatened harm. It will be enough that there is reasonable probability of harm. However, the anticipated harm must be fairly specific.

Privileges and Immunities Clause

§ 1 of the Fourteenth Amendment of the U.S. Constitution; prohibits state laws that abridge the privileges or immunities of U.S. citizens. Refers to the guarantee that any individual born in any of the States is entitled to both state and national citizenship and guaranteeing such citizens the privileges and immunities thereof.