Constitutional Law

Equal Protection Clause

"no state shall make or enforce any law which shall ... deny to any person within its jurisdiction the equal protection of the laws" Classification must be written into the law Is there a suspect class and/or a fundamental right involved? Suspect Class: Immutable characteristice, Historically been subject to some discrimination and historically politcally powerless - race, religion, right to vote, alienage Semi-suspect class: Gender and illegitimacy De Jure Discrimination - intentional discrimination De Facto Discrimination - discriminatory impact Invidious Discrimination - intended to demean or stigmatis Benign Discrimination - intended to help If no suspect class then Rational Basis Review - reasonably related to legitimate public purpose with a means-end analysis If suspect class then Strict Scrutiny Review - narrowly tailored to achieving a compelling governmental interest. As Applied vs Facial Challenge = classification written into the statute vs statute being administered in violation of the clause

FOR THE TEST: Scenarios to Know in Terms of Application of Commerce Clause:

(1) The state is using its regulatory power to tell private entities how to behave in the market. This is where usual rules regarding the Dormant Commerce Clause would apply (see 4-prong analysis) (2) The state itself is acting as a Market Participant (a buyer or seller of goods and services). In this case there is NO Dormant Commerce Clause issue: ... NO Commerce Clause applicability; ... NO rules about discrimination OR unreasonable burden. ... the state CAN do as it pleases. (3) The state uses its Regulatory Power to tell a private entity in the market that it has to deal with the state (United Trash Hauler's Ass'n v. Oneida-Herkimer Solid Waste Management Authority). The state requires entities to deal with it directly - In this case it will NOT count as discrimination. The Court WILL apply the balancing test (weighing state interest AND burden on Interstate commerce)

TAXATION TEST

(IF there is a state tax on the state company that is doing business out of state) (1) There MUST be a substantial nexus between the state tax AND the activity for which the tax is imposed? IF the company does business within a state - there IS a nexus. (2) Does the tax discriminate against Interstate Commerce? E.g., an out-of-state business paying a special tax for the privilege to do business within the state. NOTE: Dormant Commerce Clause Issue!!! (3) Is the tax fairly apportioned? ... (determine % according to the formula). States CANNOT tax the whole amount earned. A company MUST ONLY pay tax on activities that are conducted within the state! .... FORMULA: Ratio that is combined to determine tax: Payroll in the state to total payroll of the company; Value of property in the state to total value of the property. Sales in the state to total sales of the company. (4) The tax MUST be related to the services provided by the state (see below). AS LONG AS one pays proportional tax (as in the same for everyone). - AS LONG AS it is NOT a flat tax, the prong is satisfied. RATIONALE: the concern here is to prevent a state from imposing heavier taxes on out-of-state business than on in-state businesses ... Dormant Commerce Clause Issue!!!

Substantive Due Process Fundamental Rights

(Strict Scrutiny will be applied) Right to Marry; Contraception; Abortion (uses undue burden test); Right to Live with Relatives Under the Same Roof; Right to Decide Care, Custody, and Control of her Children. Right to Travel (within U.S.);

SEPARATION OF POWERS

(at the Federal Level) [HORIZONTAL] Constitution grants broad power to the Federal Government, BUT a separation of that power among the three branches of the government (Legislative, Executive, and Judicial) creates a system of Checks and Balances - which are designed to prevent any one of the branches from becoming too powerful. Sometimes these branches infringe on the powers of each other - in such case issues of Separation of Powers arises Additionally, sometime the branches was to pass responsibility and liability to another branch NOTE: There is NO express clause in the Constitution that provides for Separation of powers - it stems from the historical perspective - intent of the Framers to disperse the power among three branches of the government. Look to the totality of the circumstances to see if it is a significant usurpation of the power of another branch EXCEPTION: if there is a law of General Applicability then there is not violation (ie employment regulations)

IMPLIED POWER TO REGULATE IN ORDER TO SOLVE A FOREIGN AFFAIRS PROBLEM

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TEST TIPS

1) Argue facts of the hypothetical in conjunction with the cases cited above. 2) Congress will argue: Commerce Power extends to any issue substantially affecting interstate commerce AND/OR has various economic effects on Interstate Commerce (i.e., insurance claims, employment, education). "cost of crime" argument - such activity has various economic effects, which will raise insurance costs and affect the national economy. "national productivity" argument - such activity has various economic effects because it impedes education, lowering the competence of graduating students entering the workforce. - The Necessary and Proper clause can be used as a means of effectuating their goals (GONZALEZ v. RAICH). 3) State will argue: a strict interpretation of the 10th Amendment (state sovereignty) particularly to its Police Powers: health, safety, morals and general welfare. They will say the activity does not substantially affect interstate commerce (LOPEZ; MORRISON). ** BEWARE ** of Federalism issues of "commandeering" (Printz v. U.S & NY. v. U.S p. 35-36) ** If PREEMPTION is at issue, the commerce clause may not require such an extended analysis (test will have to provide a federal statute law)

Procedural Issues

1. Case or Controversy - "real/threatened harm" 2. Standing - direct and immediate personal injury 3. Ripeness - needs to be an actual or imminent injury 4. Mootness - Has injury passed? 5. Political Question 6. Supreme Court Jurisdiction - Exhaustion of state procedures/Final judgement/Review limited to federal courts 7. Adequate and Independent State Grounds - Supreme Court will not hear 8. Abstention - undecided issue of state law 9. 11th Amendment - Bars a citizen of one state form suing another state without its consent in federal court. Applied to individual suing their own state also. 10. Sovereign Immunity: not a absolute immunity - prohibits citizens of a state from suing their state without its consent; Congress cannot abrogate state sovereignty immunity without state's consent unless the specifically state acting under the 14th Amendment's enforcement power and remedy is congruent and proportional tothe alleged violation; State cannot sue US without consent

Free Speech Analysis

1. Explain why framers thought free speech was important 2. Is the regulation related to speech? 3. Is the regulation a total ban or a time, place or manner restriction? 4. Is the regulation based on the content of the speech? (content based or content neutral - motive counts)

Necessary and Proper Clause Test

1. The end must be legitimate (ie within the congress' powers) 2. The means used to effectuate the end must be "appropriate," meaning: (a) "plainly adapted" to the end; (b) not prohibited to Congress by the Constitution; and (c) consistent with the letter and spirit of the Constitution.

Commerce Clause Rationale

1. To have one national economy with free flowing goods 2. Prevent states from passing protectionist legislation FREE FLOW OF COMMERCE

Publicity regarding trial

1st amendment right of access to public and press If a judge wants to close a trial the judge must first hold a hearing to determine: the nature and extent of the pre-trial and trial publicity, decide whether other measures would satisfy due process and determine how effectively the actions will prevent harm. 1. There must be a clear and present danger that the pre-tril publicity would (not merely could) threaten a fair trial 2. They must review alternative measures to see they would be adequate ( change of venue, sequestering jury, continuing trial to a later date, and extensive voi dire) - these will almost always be effective 3. And determine that an injunction would effectively protect the accused.

Prior Restraint Doctrine

2 types of governmental action: 1. Licensing, permit or approval scheme (classic type) 2. Injunction issued by a court that prohibits a speech activity (implicates speech) If you have to get permission in order to do speech activity - prior restraint doctrine applies Must be content neutral and be substantially related to a governmental interest Needs to be some special societal harm that justifies the restraint (national security, preserving a fair trial, obscenity, etc...) Balances restraint with state interest Cannot have unfettered discretion Regulation needs to have procedural and substantive guidelines and needs to include a prompt judicial review if denied Freedman Procedural Guidelines: 1. Prompt Judicial Review 2. Burden of proof on Sensor to show unprotected speech 3. Sensor must initiate review 4. Must notify 5. Adversarial proceedings Collateral Bar Rule - cannot ignore an injunction or violate the injunction

Obscenity

3 part test: 1. Prurient Interest: Whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest (arousing inordinate or unusual sexual desire; itching and longing for sex) 2. Sexual Conduct: Whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined byt he applicable state law; and 3. Lacks Value" Whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value - need to be hard core sex - nudity by itself is not enough Land use (or zoning) regulation may limit the location or size of adult entertainment establishments if the regulation is designed to reduce the secondary effects of such business (ie rise in crime rates, prostitution, drug use, drop in property values and neighborhood quality, etc..)

PRIVILEGES AND IMMUNITIES CLAUSE TEST

3-Part TEST: whether a resident can bring a successful P&I challenge that discriminates on the basis of residency. (1) Is the right that is being denied to the non-resident basic to the maintenance and well-being of the union? It means that a state CANNOT discriminate against an out-of-state citizen with respect to Lawful Occupation - such activities as: employment, making contracts, commercial activity - the right to pursue trade, the enjoyment of Civil Liberties; NOTE: Argue by analogy: Right to hunt elk recreationally is NOT basic to the maintenance and well-being of the union. Right to employment IS important and significant (UNITED BUILDING & CONSTRUCTION TRADERS COUNCIL v. MAYOR AND COUNCIL OF CAMDEN) (city ordinance required at least 40% of the employees working on city construction projects be city's residents violates P&I Clause). (2) Are the non-residence a peculiar source of evil? IS the problem created by the non-residence? Discrimination may be justified where non-residents are shown to constitute a peculiar source of the evil which the statute is trying to address. (3) IF the non-residents ARE the source of the evil, does the discrimination against non-residents bear a substantial relationship to the state's objectives (legitimate public purpose). In other words, when there is a standard, are there any alternatives for the state to achieve its objectives OTHER THAN discrimination, against non-residents. Use ta Mean in Analysis (Over-Inclusive/Under-Inclusive/Is there a better way) FOR THE TEST: Go through ALL three prongs, EVEN IF one of them is satisfied!!

EMINENT DOMAIN AND REGULATORY TAKING

5th Amendment Taking Clause Private property may NOT be taken for the public use without just compensation (fair market value [FMV]). One of the main purposes of the clause is to bar government from forcing some people to bear public burdens alone which, in all fairness and justice, should be borne by the public as a whole. CONVENTIONAL CONDEMNATION - Eminent Domain Eminent Domain - inherent power of federal, state, and local governments to take private property for public use, even over the owner's objection. Eminent Domain Lawsuit is simply a specialized form of litigation, but with limited issues ... In most cases, the only real issue is the Fair Market Value of the property taken. Public Use - AS LONG AS the property is taken for legitimate public interest within the scope of the police power - public use, morals and general welfare - the public use requirement is satisfied. There is NO requirement that the will be solely for general public!!! Public Use requirement prohibits government from taking property for private use or benefit!!! Just Compensation - a Fair Market Value (FMV) of the property when the taking occurs. FMV - the amount that a willing buyer would pay and a willing seller would accept. Amount of compensation DOES NOT consider sentimental or subjective value of the property. EVEN IF ONLY a portion of the property is taken, the state MUST compensate the owner for the fair market value of the property taken. INVERSE CONDEMNATION ... (Regulatory Taking) when a state occupies or invades private property, or takes some property right from the landowner WITHOUT just compensation before initiating a Condemnation proceeding... OR ... has regulated the property in such a way that the government has constructively taken the property. (1) Categorical Taking ... (Per Se Taking) There are two types of Categorical Taking: Physical Invasion - a permanent physical invasion authorized by the government is a taking WITHOUT regard to the public interest it may serve. GENERAL RULE: when the government enters an owner's premises, the government MUST compensate for the privilege. RATIONALE: Although it is not in the Constitution, physical invasion is considered a taking, because the right to exclude is one of the hallmarks of property ownership. (2) Regulatory Taking - Those taking that occur when the government's regulation of private property "goes too far" AND such regulation deprives the owner of substantially ALL economically beneficial or productive use of the land. Regulatory Taking occurs IF regulation deprives ALL economical use of the area. EXCEPTIONS: ... "background Property law of Nuisance" 1) Nuisance - ALL laws and regulations that duplicate the result reached under Common Law as to the regulation of a Nuisance DO NOT amount to a taking. 2) Restrictions on Title - when a regulation or restriction, EVEN one that eliminates all economically beneficial use. "inheres in the title itself, in the restrictions that background principles of law of property already placed upon the property". There is NO compensation - because, a regulation CANNOT be a taking, IF it disallows to do something that one could not do in the first place (basically, ... don't do what you can't do). (2) Non-Categorical Taking When NO Categorical Taking (per se Taking) occurs, the court has to conduct ad hoc factual inquiry (Penn Central Transportation Co. v. City of New York): Diminution in value in itself is NOT sufficient; ... courts have held that upwards of 80% property value diminution IS NOT a Taking. ... there MUST be a complete loss in value. ... otherwise every ordinance will constitute a taking. Looking at a parcel as a whole

Defamation

A false statement of fact that has the effect of defaming someone. Libel Per Se (damages presumed) Defamation that falls within following categories: Adultery, profession and theft Main issue will be if the speech is a matter of public concern. Public Figure v Media/Non-media + matter of public concern = (NY Times standard) need to show clear and convincing evidence the there was malice (knowledge that it was false or acted recklessly as to its truth or falsity) and need to show actual damages Public Figure v Media/Non-media + matter of public concern = NY Time standard or Gertz negligence (no presumed damages and not punitive damage without showing of malice) depending on jurisdiction Private Figure v Media/Non-media + matter of public concern = NY Time standard or Gertz negligence (no presumed damages and not punitive damage without showing of malice) depending on jurisdiction Private Figure v Media/Non-Media - not a matter of public concern = Negligence but damages can be presumed and punitive damages can be awarded without the showing of malce

Reciprocity Provisions

A state CANNOT condition non-discriminatory treatment on another state passing a law that is dictated by that state!!! NO Reciprocity Provisions - such provisions are ALWAYS unconstitutional! E.g., State A CANNOT pass a law conditioning non-discriminatory treatment on State B passing state similar to that of State A. RATIONALE: it would invade state sovereignty. *NOTE: IF states agree - such provisions MAY stand (it is an agreement).

STATE IMMUNITY FROM FEDERAL TAXATION

AS LONG AS the federal tax on state instrumentalities are reasonable and DOES NOT prevent state instrumentalities from carrying out its designated activities, the federal tax is valid. States have a QUALIFIED IMMUNITY: - IF the tax is NOT disproportional to the value of services that are being provided, then the tax is valid. - IF state can show that federal tax prevent state instrumentalities from carrying out its designated activities, ONLY THEN it will NOT be valid (otherwise it will be upheld). - MASSACHUSETTS v. UNITED STATES (Federal registration tax on ALL aircrafts [including state])

JUDICIAL POWERS

Art III, §1: The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. Art III, §2: spells out those cases in which the Supreme Court has original jurisdiction and specifies that in all other cases, the Court has appellate jurisdiction. - read to give judicial review to courts

SPENDING POWER

Art. I, § 8 grants Congress the power to spend money in order to pay the debts and provide for common defense and general welfare of the United States. Spending Power is most significant when used as a way to make State and Local Governments do Congress bidding when Congress cannot spend for ends it could NOT directly achieve. Congress CAN attach reasonable conditions to the granting of money to get State and Local Governments to comply with what Congress wants them to do. In SOUTH DAKOTA v. DOLE the Court has upheld such use of the Spending Power as an attachment of conditions on states.

PROHIBITION AGAINST IMPAIRING THE OBLIGATION OF CONTRACTS

Art. I, §10, cl. 1: "NO state shall pass any law impairing the obligation of contract" RULE: Laws restricting Contracts are ALLOWED IF the law is reasonable AND necessary in achieving an important governmental purpose. Intermediate Level of Scrutiny, because (see above): Values that are found in the Constitution; There is NO presumption of Constitutionality; The government has the burden of proving that the regulation that is challenged is Constitutional! HOME BUILDING &LOAN ASS'N v. BLAISDELL (Minnesota passed regulation that interfered with mortgage contracts during the great depression). The Court upheld the law stating that... the law was enacted during an emergency; ... the law protected public at large; ... and... the law was enacted on temporary basis. THIS IS AN IMPORTANT POINT OF REFERENCE FOR VALIDITY OF LAW UNDER CNTRACTS CLAUSE!!! - (every case after that DOES NOT measure up).

EXECUTIVE POWERS

Art. II, §1: The executive Power shall be vested in a President of the United States of America. Art. II, §3: ...he shall take Care that the Laws be faithfully executed Under Constitution - Congress makes the laws AND President carries out the laws. - Executive Powers (the President) are best understood in relation to Legislative powers (the Congress) ... - The question is "What is the relationship between Legislative and Executive Branches?"

Appointment of Officers

Art. II, §2, cl.2: [President] shall have Power ... [to] nominate ... all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law; BUT the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments. Executive Officers - those officers that are charged with enforcement of the law. - Principal Officers - (high level officials) - those who are in policy-making positions. -appointed by the President BUT MUST have advice and consent of the Senate. E.g., Ambassadors, Judges of the Supreme Court, Major officers of the Government [ Attorney General, etc.]. - Inferior Officers - (lower level officers) - those officers who: are functionally subordinate AND who answer to someone above them; have a limited scope of duties OR limited jurisdiction; serve for a limited period of time. Congress MAY vest the appointment of those officers in the President alone; the heads of the departments; the courts of law ... [very rarely]. E.g., Deputy General, etc. E.g., when Congress creates a department [i.e., education - secretary of education], the President MAY decide who can do the appointment for the positions of that department [the President, heads of departments, or courts]). Officers in the Legislature are part of the Legislative Branch ... they do NOT fall into this article!!! Congress MAY NEVER directly Appoint Executive Branch officials - unconstitutional!!!(BUCKLEY v. VALEO). What Congress MAY do: ... Usually, when Congress makes a law, it provides for who will have the appointment power (the President, head of department, or courts of law). RATIONALE: it violates Separation of Powers under Article II.

War Powers Act

Art. II, §2: The President shall be Commander in Chief of the Army and Navy of the United States ... If there is a suit congress will declare this a political issue. Congress passed the War Powers Act in 1973 - at the end of the Vietnam War (over the President's objection!). Under the Act the President is required to justify the commitment of troops after a certain period of time AND to seek Congressional approval after the commitment of troops. o IF the President has an urgent need to send troops somewhere - the President CAN do that! o BUT, the President MUST advise congress AND seek authority to keep troops there. This is a VERY controversial between the President and Congress on the Constitutionality of the Act. Sometimes the executive Branch has adhered to the law, AND sometimes it has ignored it ... There is NO precedent to settle this question aside from Constitutional principle (see above). HOWEVER, there IS a possibility that the President CAN take certain kinds of military action (EMERGENCIES) that CAN be justified WITHOUT specific authority from Congress.

NECESSARY AND PROPER CLAUSE

Article I, §8, cl. 18: The Congress shall have Power ... to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

COMMERCE CLAUSE

Article I, §8, cl. 3: The Congress shall have Power ... to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.

DOCTRINE OF PREEMPTION

Article VI states that the Constitution, and the laws made in pursuance of it, are to be the supreme law of the land and superior to any state law or constitutional provision in conflict with them. IF State and Federal Laws complement each other - the State regulation will stand. IF State and Federal Laws conflict with each other - the Federal Regulation is superior. FOR THE TEST: FIRST, Discuss validity of Federal Law via proper Source of Power. SECOND, Preemption may occur in the following ways: (1) Express - Removes state power to deal with the problem. (2) Implied - NO express language describing Preemption or its limits, BUT the court must imply Preemption from the intentions of Congress. (a) Conflict preemption occurs when it is impossible to comply with both state and a federal regulation. E.g., State says that cars must have rubber bumpers, Congress says that cars must have metal bumpers. (b) State Law must give way to federal regulation when to not do so would obstruct or impede the achievement of federal objectives - (i.e., State Law is "frustrating" Federal Law). (c) Field preemption occurs when Federal Law is occupying the area so extensively, that the comprehensive nature of Federal Regulation admits of NO alternative or supplemental state regulation - EVEN those that DO NOT conflict. This is a matter of legislative interpretation - "Did Congress want to oust States from the same area?". Effect: IF a good argument can be advanced that intent was to preempt field, then the state law is invalid. IF intent was that the state could supplement, then the state law must be validated under the 10th Amendment.

STATE POWER TO TAX

BUSINESS IN THE SAME STATE States have the power to TAX (as they have the power to regulate). GENERAL RULE: State CAN tax ANY activity conducted within the state AS LONG AS it is done fairly and imposed on everyone who does the same activity. *NOTE: Problems arise when Dormant Commerce Clause brought to state taxation. BUSINESS IN DIFFERENT STATES State CAN ONLY tax that portion of the income that is gained from activities conducted within that state!!!

Broad Cast Media - Time, Place and Manner Restrictions

Broadcast signals are considered to be held in trust for the public good therefore greater regulations are allowed You still go through a time, place and manner regulation analysis: 1. ID that it is a Time, place and Manner regulation 2. Content neutral 2. Narrowly tailored to achieving a compelling governmental interest 3. Alternative channels of communication 4. Type of Forum 5. Type of Speech

CONSTITUTION

CONSTITUTION: tells the government what it CAN and CANNOT do. Constitution creates FEDERAL GOVERNMENT with Three Branches. 1. Legislative Branch (Congress = House of Representatives + Senate) Article I. Makes the law. 2. Executive Branch (President) Article II. Enforces the laws. 3. Judicial Branch (headed by the U.S. Supreme Court) Article III. Constitution ALSO allocates power between Federal Government and STATE GOVERNMENTS Our liberties are more protected by the structure of the governmental than the Bill of Rights/Laws alone. Powers of the Federal Government are enumerated in the Constitution: ALL power NOT granted to the Federal Government is granted in the State and local governments. (10th Amendment)

Can Congress, Under Commerce Power, Tell States What Laws to Enact as their Own State Laws

Congress CANNOT commandeer the governmental (legislative) processes of a state by directly compelling them to enact a law that enforces a federal program - because it violates the principles of FEDERALISM. - RATIONALE: Political Accountability: IF the state adopts a piece of legislation as its own, BUT in reality it is being forced to do so by Congress - there will be NO accountability if disaster arises. People of the state would think that it is a piece of state legislation and that state legislators are responsible for it - where in fact Congress made them do it. Federal Government will avoid being responsible, because they can say that State passing the law. Federal government DOES NOT want to pass unpopular laws themselves, it would impact reelection IF the effect of the law goes sideways (... for politicians it is ALL about reelection ...). - NEW YORK v. UNITED STATES (States were not disposing properly of nuclear waste, so Congress passed a statute that required states to pass legislation whereby the state would become responsible for radioactive waste). CAVEAT: Congress CAN compel States' performance by conditioning grant of Federal Money under Spending Power ([see South Dakota v. Dole]).

Legislative Veto

Congress DOES NOT retain for itself the power to control how the Executive branch enforces the law. IF Congress DOES NOT like the actions of the Executive Branch, the proper response is NOT Legislative Veto, BUT the proper response of the Congress is to go through the Legislative Process: Congress CAN ONLY take actions prescribed by the Constitution. Legislative Process, as described by the Constitution, requires that a law be: a) passed by both Houses (i.e., bicameralism) AND b) presented to President for signing OR the exercise of a Veto (i.e., presentment). Congress CANNOT retain a Veto Power OR authority to reject Presidential action, because it violates the Separation of Powers - it allows the small group of people (Congress) to usurp the power of Executive Branch. NOTE: Congress has alternative means: - Power of the Purse; - Power of Impeachment.

There are three categories under which the Federal Government MAY regulate commerce:

Congress MAY regulate obvious INTERSTATE ACTIVITIES (activities between and among different states); and (1) the regulation of the use of Channels of Interstate Commerce; (LOTTERY CASE) - PLENARY POWER OVER THE CHANNELS OR FACILITIES OF INTERSTATE COMMERCE E.g., the communication (i.e., mails, the phones, etc.), highways and waterways, etc. (2) the regulation and protection of the Instrumentalities of Interstate Commerce, EVEN THOUGH the threat may come only from intrastate activities; and (SHREVEPORT CASE-RAILROAD FEES) - RATIONALE: to level the playing field and to prevent barriers that would protect local industries. Congress MAY regulate various INTRASTATE ACTIVITIES (local in-state activities) - which by themselves, or as aggregated with other similar activities, substantially affect interstate commerce. (3) the regulation of Activities that have a Substantial Effect on Interstate Commerce two prongs: (a) Did Congress have RATIONAL BASIS for concluding that the regulated activity in the AGGREGATE SUBSTANTIALLY AFFECTS Interstate Commerce; (e.g., home consumption of wheat [WICKARD v. FILBURN]). - Can be a stretch analysis - Need to describe the regulated activity - Always argue both sides Factors to Consider: 1. Whether the activity was commercial or economic or not 2. Whether the statute contained explicit language tying the regulated activity to interstate commerce 3. Congress could make explicit a connection to interstate commerce no apparent on the face of a statue 4. Whether the regulated activity was part of a national regulatory scheme whose efficacy would be impaired by an inability to regulate. 5. Whether the connection was so attenuated as to require the Court to "pile inference upon inference" to connect the two. 6. Whether the regulated activity was in an area of traditional state concern. (b) Is the regulation reasonably related to a legitimate public purpose? EVEN IF Source of Power exists (i.e., commerce Clause) AND there IS Rational Basis - there MUST be relation between the law and the object of the law. IF there is a better way to achieve governmental purpose, then the law is NOT sufficiently narrowly tailored!!! - regulation MUST be direct in its purpose. ... is the law "overinclusive" - does the law include more than what is necessary to achieve governmental purpose? ... is the law "underinclusie" - does the law include less than what is necessary to achieve governmental purpose?

Non-Delegation Doctrine

Congress delegates much of its rule-making authority to the Executive Branch OR Administrative Agencies to adopt rules and regulations to carry out legislative programs. GENERAL RULE: Congress DOES have a broad authority to dedicate rule-making power to Executive Branch and Administrative Agencies ... LIMITATION: ... SO LONG AS Congress sets forth some sufficient Constitutional guidelines as to how the Executive Branch and Administrative Agencies are to act in certain circumstances in carrying out the delegated authority!!! Almost anything will do as an intelligible principle to guide the agency. E.g., prohibition of "unreasonable restraint of trade"; promotion of "public interest and convenience", etc. - Such broad delegation is the foundation of important Administrative Agencies (i.e., FTC). EXCEPTIONS: Congress CANNOT delegate certain powers that are uniquely assigned ... (E.g., Power to Impeach.). Congress CANNOT delegate ALL of its law-making authority ... (E.g., "whatever is necessary").

LIMITATION ON COMMERCE CLAUSE

Congress powers under Commerce Clause are very broad ... BUT ... in recent cases Congress has drawn a line as to how far the commerce power will extend. In UNITED STATES v. LOPEZ the court established the outer limits of the Commerce Clause. - Congress passed an Act which made it a federal offense for any individual to possess a firearm at a school zone. - The offence was "possession", NOT purchasing, manufacturing, or distributing. Congress can regulate purely intrastate activity that has a substantial relation to interstate commerce ONLY IF it is directly economic in nature. there had to be a limit on Congress's power under Commerce Clause!!! ... IF the subject of the action is so far removed from any commercial or economic activity, the law will be struck down as unconstitutional, because it does NOT fall into any of the three activities above: 1) It DOES NOT involve channels of interstate commerce; 2) It DOES NOT involve an instrumentality of interstate commerce; 3) It DOES NOT have substantial effect on Interstate Commerce or economy. IF the activity on its face DOES NOT affect Commerce (i.e., has NO economic base according to three categories OR there is no jurisdictional nexus of crossing state lines) - it DOES NOT fall within the Commerce Clause. - Otherwise the power of the Congress would allow it to regulate almost anything!!! In UNITED STATES v. MORRISON the Court reaffirmed this holding stating that Congress CANNOT extend its power way too far into state domain to that activity that that DOES NOT appear to be economic in character. - Congress passed an Act that allowed damages in federal court for acts of violence motivated by gender.

Establishment Clause

Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof Establishment clause: purpose to keep a wall between church and religion 14th amendment makes clause apply to state Lemon Test: 1. Action must have a secular purpose 2. The primary effect is not to advance religion (look at Direct or Indirect Benefit and Breadth of the benefit) - Addt Prong - O'connor Endorsement Test: Whether a reasonable person can view the action as an dnor 3. Excessive gov't entanglement Prayer readings violates Equal treatment does not violate Ceremonies put on by gov't or on gov't property can violate Long-standing traditions do not violate Incidental references do not violate Religious displays can violate Aid to religious schools can violate - look to who is benefited

Free Exercise Clause

Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof Free Exercise clause: keep gov't from endorsing or making it harder for people to exercise religion 14th amendment makes clause apply to state 1. Is there a sincerely held religious belief (usually not questioned by courts as long as person says) 2. Which is substantially burden by interference of gov't action 3. Gov' must show that there is a compelling governmental interest 4. That cannot be achieved by granting and exception to person Peyote Test: If the burden is only a secondary effect and not the primary purpose of the regulation it will not violate the constitution - needs to be a valid and neutral law - need to now show that the gov't specifically targeted religious activity IT IS OK FOR THE GOVERNMENT TO ACCOMMODATE RELIGION

Removal of Officers

Constitution DOES NOT provide for Removal Power. Who appoints the officers is important to determine who does the removal. RULE: Practically, Officers answer to those who appoint them!!! With high level officials, the President has the Power of removal of those who he appoints!!! This power is absolute! With lower level officers the President has the power BUT it MUST be with GOOD CAUSE. Congress CAN provide limitations and circumstances of Removal - it IS Constitutional. Reasoning - The president must loose the dead weight quickly in order to ensure all laws are faithfully enforced. *NOTE: Congress CANNOT directly Remove an Executive Official EXCEPT through the Impeachment Process! DOES NOT APPLY TO STATE GOV'T OFFICIAL ONLY FEDERAL GOV'T OFFICIALS

Can Congress Force States to Comply With Federal Law

Constitution imposed NO judicially enforceable immunities for States from generally applicable Federal Laws - IF there is a Federal regulation that applies to ALL the state and local governments, there IS NO immunity from federal regulation!!! - Congressional Act is valid under the Commerce Clause and is applicable to states, then there is NO immunity from Federal Regulation! - GARCIA v. SAN ANTONIO METROPOLITAN TRANSIT AUTHORITY (Congress enacted Fair Labor Standards Act [FLSA], which regulated minimum wage and overtime provisions).

Content-neutral regulation

Content-neutral speech regulations generally are subject to intermediate scrutiny-they will be upheld if the government can show that: (i) they advance important interests unrelated to the suppression of speech, and (ii) they do not burden substantially more speech than necessary to further those interests. Intermediate scrutiny - Substantially tailored to achieving a compelling governmental interest. (basically and over-breadth issue)?? Three part test - 1. Must serve a significant gov't interest 2. Narrowly tailored to serve gov't interest 3. Alternative channels of communication

IS THERE A CONTRACT CLAUSE PROBLEM?

Contract Clause - Article 1, Section 10 - the Constitution forbids states from making laws impairing obligations of contracts. MUST balance the state interest against the private interest (Contract Clause was the major basis for judicial protection of fundamental economic rights throughout the 19th/ early 20th centuries. It was used along with Substantive Due Process, RARELY used today). Contract Rights / Responsibilities: Can be modified by state legislation if they serve important and legitimate public purpose. (Rational Basis Scrutiny). • Look to an unexpected severe alteration of justifiable expectations. • Contract must be in existence when the statute passed. • MUST be a valid Police Purpose to interfere. • Is there a substantial impairment of a contractual purpose? Cases: i) DARTMOUTH COLLEGE v. WOODWARD (1819): Extended clause to public contracts as well. State passes act attempting to pack the boardof trustees, held unconstitutional. All contract rights subject to fair exercise. Test: Has there been a substantial impairment of right to contract? ii) HOME BUILDING & LOAN ASSN. v. BLAISDELL (1934): State passed a law which extended period of redemption from a foreclosure and sale of real property under the power of sale in a mortgage. Court sustained the law as most modern decisions lean in favor of state interests. iii) U.S. TRUST CO. v. NEW JERSEY (1977): Revitalized Contract Clause. First decision concerning contract clause striking down state law since 1937. A state cannot refuse to meet its own obligations to private investors simply because it would prefer to spend money for public good. Test: Strict scrutiny: State law impairing state obligations must be reasonable and necessary to serve an important public purpose in order to pass under the contract clause.

Conduct

Courts have allowed the government more leeway in regulating the conduct related to speech, allowing it to adopt content-neutral, time, place, and manner regulations. Regulations involving public forums must be narrowly tailored to achieve an important government interest. Regulations involving nonpublic forums must have a reasonable relationship to a legitimate regulatory purpose. Over-breadth doctrine only applies in these regulation when substantially overbroad.

Commerce Clause vs. P&I Clause

Dormant Commerce Clause protects economic interest. Dormant Commerce Clause acts as an implied restraint upon the State regulatory powers- such powers MUST give way before the superior authority of Congress to legislate on (or leave unregulated) matters involving Interstate Commerce. In order for Dormant Commerce clause to apply State MUST be a market participant! Commerce Clause has to do with economy - free flow of goods between the states in order for U.S. as a nation to be one economic unit. Privileges & Immunities Clause protects citizens. P&I Clause imposes restraint on state action in the interest of interstate harmony (nothing to do with commerce per se). P&I Clause it is about treating people equally. P&I Clause is BOTH - broader and narrower than the Commerce Clause. It is narrower, because: It ONLY speaks of the problem of discrimination, NOT of the unreasonable burdens. It is also narrower because it DOES NOT protect corporations (CAVEAT) - It ONLY protects individual citizens! The Market Participant Exception DOES NOT apply. It is broader, because Congress CANNOT overcome its protection by legislation - because it is Constitutional liberty-type of protection. ... unlike the Dormant Commerce Clause (see exception above). *NOTE: The P&I Clause operates as a limit on the state discrimination against commercial activities ... SO, in a way it complements the limits of the Dormant Commerce Clause.

Government as Employer - restricting speech of EEs

Employee's have some limited rights to free speech when speaking in there official capacity 1. Is the speech a matter of public concern? 2. If it does not involve a matter of public concern then there is no first amendment rights- employer given deference 3. If it does involve a matter of public concern it will be upheld if the speech substantially interferes with duties of the office - balance the speech rights of the EE with the ER's rights in promoting efficiency on the job. - however, if the speech is made pursuant to their official duties the EE are not speaking as a citizen and the ER can regulate as they wish.

FUNDAMENTAL RIGHT TEST

Every law regulates some action. This action is a "Liberty Interest". (1) First, we need to ask "What is the Liberty Interest impacted by the law"? There are certain Liberty Interests that are entitled to greater protection as Fundamental Rights. Substantive Due Process protects such Fundamental Rights. (2) Second, we need to determine whether a Liberty Interest impacted by the law is a Fundamental Right by asking: "Whether a freedom of action that is impacted by the law is: 1) liberty that is implicit in the concept of "ordered liberty" OR 2) liberty that is deeply rooted in the nation's history and tradition. (3) Finally, THE ANALYSIS IS NOT OVER - we need to apply the corresponding standard: o IF it IS a law substantially interferes with a Fundamental Right, under Substantive Due Process Clause we apply Strict Scrutiny to the law that infringes on that Liberty Interest or Fundamental Right by asking "is the law narrowly tailored to achieve the compelling governmental interest?". o IF it IS NOT a Fundamental Right, BUT a mere Liberty Interest we apply the Rational Basis standard to the law by asking "is the law reasonably related a legitimate public purpose". *NOTE: IF the law DOES NOT infringe upon a Fundamental Right, it will more likely to be upheld.

Federalism

FEDERALISM - [VERTICAL] - relationship between the Federal government and State and Local governments as Dual Sovereigns - basically, there are two levels of sovereignty operating at the same time over the people. Federal Government has ONLY the powers provided for in the Constitution (or are fairly inferred from it) because the it is a government of limited AND enumerated powers. State Governments were already in existence at the time the Constitution was adopted - they already possessed Police Power - state power to legislate to protect the health, safety, morals, and welfare of its citizens (i.e., local water, power, etc.) - ALL OTHER powers that are NOT in the Constitution.

Source of Power

FOR THE TEST: it may NOT be a big issue, BUT the Source of Power MUST be identified. o Look at the subject matter and the content of the law. o E.g., a law that states that trucks cannot drive more than 55mph on the freeway. This is transportation of goods and services between the states. Congress has the power to regulate channels of commerce under the Commerce Clause. o E.g., statute is aimed at bee-keeping - this means that it is aimed at regulating an economic or business activity THEREFORE, Congress is authorized to regulate such activity under Commerce Power AND Congress is authorized to take ALL the Necessary and Proper (i.e., convenient and useful) actions under the Necessary and Proper Clause to regulate that activity. NOTE: BUT ... Just because there is a Source of Power, DOES NTO mean that the regulation is constitutional.

Facial Challenge vs As Applied Challenge

Facial Challenge - looking at the language of the statute on its face As Applied Challenge - looking at how the statute is being applied to the parties and its restriction on constitutional speech - courts will first look at the As Applied challenge to avoid overturning a whole statute or regulation. If the As Applied challenge is successful then they will not look at the Facial Challenge. If unsuccessful then they will review the Facial Challenge. if the as applied challenge is lost then facial challenge will only win if substantially overbroad

First Amendment Protection

First Amendment provides that "Congress shall make no law ... abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." The Free Speech Clause restricts government regulation of private speech; it does not require the government to aid private speech nor restrict the government from expressing its views.

Freedom of Association/Freedom not to speak

First Amendment right to associate or not associate. Any gov't attempt to make a person give financial support or to make a group take members will be strictly scrutinized. Gov't may not force disclosure. Parties cannot be forces to take members that go against the purpose of the organization/reason for the association.

Separation of Powers Reasoning

Framers wanted to create a viable National Government (national unity) that can behave like a single governmental body for the whole people, BUT they also wanted the benefits of diversity and decentralization of the government - the benefits that are provided by State and Local Governments (governments that are closer to the people).

Political Question Doctrine

Function of the Separation of Powers Doctrine Arises when a claim is made before the Supreme Court that one of the other two Branches of the Federal Govt has violated the constitution Political Questions - are issues which the federal courts will NOT address because their subject matter is deemed to be NOT fit for judicial resolution. Will not be a main issue on a test - maybe a side issue

MARKET PARTICIPATION

GENERAL RULE: Under the Market Participant Doctrine, whenever the state acts NOT as a regulator of others, BUT when the state enters the market as seller OR buyer, Dormant Commerce Clause DOES NOT apply at all!!! Market Participation Doctrine - this consideration DOES NOT apply, because state DOES NOT regulate to favor the local businesses - it merely uses tax revenue to purchase or sell goods or services AND when the state enters the market as a buyer or seller of goods it Conditions on Purchase and Sale CAVEAT: Sometimes a state may look as a buyer or seller and claim that it is free of Commerce Clause limitations BUT IF the state is placing conditions on the purchase or sale of goods (conditions that are enacted to regulate beyond the immediate transaction - it WILL NOT be considered Market Participant!!! E.g., IF the state in Reeves, Inc. v. Stake conditioned the sale of cement ONLY IF the sister state would hire state's residents as employees on construction projects. In such a case, state is acting as a regulator of behavior AND NOT as a buyer or seller in the market. The conditions in a way are beyond (or "downstream" from) the immediate transaction. Under these facts, the state would be subject to Commerce Clause limitations.

Government Speech

Generally, government speech and government funding of speech will be upheld if it is rationally related to a legitimate state interest. When the government chooses to fund private messages, it generally must do so on a viewpoint neutral basis.

Regulation in regard to Political Campaigns

Gov't can regulate campaign spending to some extent - contributions by individuals or groups - cannot be made so low as to interferes with ability to run a competitive campaign Independent campaign related expenditures may not be limited at all - candidate can spend as much of own money as they want

Public Forum vs Non-public Forum

Gov't can regulate to reserve the forum for its intended use Content based - no difference between the forum - strict scrutiny will apply - probably will not be upheld Content neutral - Non-public forum - rationally related to some legitimate governmental objective, as long as equally effect alternative channels for expression are available - Public Forum - 3 part test: 1. Content neutral 2. Narrowly tailored to a compelling governmental interest ???? (means-end analysis) 3. Alternative channels of communication Public Forums: Traditional Public Forums (streets, sidewalk and parks) Designated Public Forums Non-public forum - regulation needs to be reasonable in light of the purpose served by the forum and viewpoint neutral. (reasonableness will be found even if full bans but the ban must be neutral and not favorable to any particular type of speech) - eg airport, jails, military bases, inside a courthouse governmental workplace

Child Pornography

Gov't intent to dry up the market and lessen the exploitation of children - must include a lewd and lascivious element

Banning a subcategory of unprotected speech:

If the gov't wants to ban a sub-category of fighting words based on race, gener, religions, etc. The gov't must do so in a content neutral way. - exception: if the gov't wants to ban the most extreme examples of the category, they may do so without banning all other speech in that category. Threats- made with the intent to cause a subject fear and objectively can cause fear are unprotected speech - the law must have subjective and objective components

Advocacy of Imminent Illegal Action

If the government wants to ban this type of speech the law must contain the following language (brandenburg test): 1. Is intended and directed to inciting or producing imminent lawless action (subjective - must actually intend) and 2. Is likely to incite or produce such action (Objecitve) -needs to prohibit speech on its face-facial challenge only -advocacy of future lawless action is protected -mere membership is not enough - activity to support an illegal organization can be regulated

1st Amendment - Unprotected Classes

If the government wants to pass a law banning these types of speech they can as long as they follow the guidelines given by the court. 1. Advocacy of Illegal Action 2. Defamation 3. Fighting Words 4. Child Pornography 5. Obscenity - because of the content of the speech it is deemed to have no social value Still must regulate in a neutral way - ie banning words in only a directed way

Executive Immunity

In addition to the Executive Privilege, the President ALSO enjoys Executive Immunity - immunity from civil lawsuits for damages for actions taken while President. President enjoys an absolute immunity for civil damages or liability that results from activities within an outer perimeters of President's official responsibilities (NIXON v. FITZGERALD) ... interpreted very broadly. A President CAN be sued while in the office for actions taken before he took office (CLINTON v. JONES).

Judiciary Review

Involves the power and authority of the courts to determine whether the acts of other branches of government (federal and state) are consistent with the Constitution. The court has the power to declare actions of the other two branches unconstitutional according the court's Interpretative of what the Constitution means and requires There is NO express grant of this power to the courts in the Constitution The Power of Judicial Review was established by the Court itself in Marbury v. Madison (not exactly the first case but the foundation)

IMPLIED POWER TO REGULATE TO FURTHER THE PROVISIONS OF A VALUED TREATY

Is the law reasonably related to carry out the provision of a valid treaty?

Power of Judicial Review

It is the duty of the Supreme Court to make sure that the power is so divided

Direct Sources of the Regulatory Power:

NECESSARY AND PROPER CLAUSE - the ANCILLARY source of power. COMMERCE CLAUSE - the MAIN source of power SPENDING POWER - helps congress achieve indirectly what Congress could NOT achieve directly. Two that are highly unlikely - IMPLIED SOURCES of power: POWER TO SOLVE THE FOREIGN AFFAIRS ISSUES CARRY OUT THE PROVISIONS OF A VALID TREATY

Political Question Doctrine Cases

Nixon v. United States = Sole power of the senate to impeach Powell v. McCormack = Question of adding qualifications - not political question - constitution enumerates the qualifications - authority for congress to make qualifications misconstrued - congress only had authority to decide with person qualified Coleman v. Miller = Amendments to the constitution - power expressly given to congress and no judicial discoverable standards Goldwater v. Carter = Treaty termination - creation left to congress and president and no discoverable standards Holzman v. Schlesinger = Congress has power to declare war - Political Question

Other Concerns to Negate the Regulation

Over-breadth - prohibits substantially more speech than is necessary (facially invalid) Void for Vagueness - fails to give persons reasonable notice of what is prohibited, violates due process clause. - avoid a chilling effect on speech Cannot give Officials Unfettered Discretion - there must be defined standards for applying the law

Fighting Words

Personal abusive epitaphs that are inherently likely to provoke an immediate violent reaction - anger is not enough - so angry that they are likely to fit - police must regulate if they can - id of the speaker is not enough offensive language and profanity is protected by the 1st amendment Exception - Offensive language can be prohibited if the audience is captive or the speech is obscene under the formal legal definition (lewd and without socially redeeming value) **Can ban the worst examples of unprotected speech Gov't interest to prevent the outbreak of violent behavior

Find the Sources of Regulatory Power!!!

Powers of STATE GOVERNMENTS existed before the Constitution was adopted and were carried forth. State governments have general Police Powers - to act for health, safety, general welfare and morals of their citizens. The FEDERAL GOVERNMENT is a government of enumerated powers. Acts by Congress MUST be authorized by the Constitution. Constitution tells Federal Government what it CAN and CANNOT do. IF Federal Government acts at ANY level (federal, state or local) one MUST identify the Source of Power

Executive Privilege

Privilege Not to Disclose Information. The Constitution is silent on this point ... BUT ... the Court has held that the President, as a functional matter, in order to carry out the duties of office enjoys a Presumptive Executive Privilege not to disclose confidential Presidential Communications that is based on the Separation of Powers ... (UNITED STATES v. NIXON) RATIONALE: This Privilege is based on the need for truthful information and open communication with Executive Branch - IF other branches would be able to compel the president to hand over certain information, than President would not get candid information from his Executive Officers. LIMITATION: Executive Privilege is Presumptive - a balancing test (Executive Privilege vs. need for the information) ...... look at why the information is needed ... 1) There MUST be a specific need for information (it CANNOT be a fishing expedition). 2) The need for the information MUST be important (substantial); 3) There MUST be procedural safeguards to minimize ANY interference with Presidential confidentiality. The presumption of the privilege is in favor of the President, BUT ... there MAY be factors strong enough to overcome that presumption.

IS THERE A PROCEDURAL DUE PROCESS PROBLEM?

Procedural Due Process (5th & 14th amendments) - Protects against the deprivation of life, liberty or property interests without due process of law. Definitions: Liberty includes more than freedom from physical restraints (e.g., right to contract, to engage in gainful employment, to be free of defamation by government, and the right to develop certain parental interests). Property includes ownership and entitlements granted by state or federal law (i.e., a legitimate claim to certain benefits such as public education, continued welfare benefits, and, under certain circumstances, public employment). Deprivation of life, liberty, or property without due process requires more than negligent conduct. Notice/Opportunity To Be Heard Required - Procedural Safeguards: Timing and scope of required hearing: Whether a prior evidentiary hearing is required, and the extent of procedural requirements, is determined by: • The importance of the interest; • The value of specific procedural safeguards to that interest; and • The government interest in fiscal and administrative efficiency. Examples: • Termination of welfare/disability benefits • Termination of public employment • Public education (suspensions/dismissals) • License suspension • Creditor remedies • Civil forfeiture of real property used in a crime • Attachment of real property

DUE PROCESS

Process - procedures that are used to ensure fairness of the decision. The more property is valued, the more sentence is imposed - the more procedures is required. There are two due Process clauses in the Constitution: 5th Amendment - applicable to the Federal Government and 14th Amendment - applicable to State and Local Governments. BOTH clauses employ similar language in that both protect ALL persons from deprivation of "life, liberty or property without Due Process of Law". The Due Process Clauses of the 5th and 14th Amendments to the Constitution have been invoked in a number of distinct contexts to protect various classes or categories of rights. There are three aspects of Due Process: 1) Incorporation Doctrine - Due Process Clause as a way to apply the Bill of Rights against the states. 2) Substantive Due Process - Due Process Clause as a source of substantive rights. It is the concept that there are certain rights so fundamental to our traditions of justice that, no matter what procedural guarantees government affords, government CANNOT abridge those rights. 3) Procedural Due Process

Time, Place and Manner Regulations

Public Forums (for speech and conduct) Initial Qs: 1. Does the statute indicate speech? 2. Does the activity come within the scope of the statute? 3. Was conduct done with the intent to communicate a message? Three part test: 1. Content Neutral - exception: Secondary Effects Doctrine - a regulation may limit the location of a establishments if the regulation is designed to reduce the secondary effects of such business (ie rise in crime rates, prostitution, drug use, drop in property values and neighborhood quality, etc..) - exception: Compelling governmental interest - Only one case used - no campaigning within 100 ft of a polling place on Election Day. 2. Narrowly tailored to a compelling governmental interest ???? (means-end analysis) 3. Alternative channels for communication Continue Analysis with the following questions: 1. ID the type of property (Public v. Private Forum) 2. ID type of speech (Hierarchy of protected speech) - if political speech courts want to know how it will effect Injunctions - higher standard of review = "the injunction must burden not more speech than necessary to serve a significant governmental interest

Affirmative Action

Race based remedy for constitutional violations - can made only to the extent to remedy the violation, not beyond Only time race can be used is in higher education when race is on of many factors considered - outside of higher education there must be a constitutional violation in which to remedy

Separation of Powers

SEPARATION OF POWERS (at the Federal Level) - [HORIZONTAL] - Constitution grants broad power to the Federal Government, BUT a separation of that power among the three branches of the government (Legislative, Executive, and Judicial) creates a system of Checks and Balances - which are designed to prevent any one of the branches from becoming too powerful. -powers cannot be given or taken by one branch if another branch already has the power Sometimes these branches infringe on the powers of each other - in such case issues of Separation of Powers arises NOTE: There is NO express clause in the Constitution that provides for Separation of powers - it stems from the historical perspective - intent of the Framers to disperse the power among three branches of the government.

Executive Orders

Separation of Powers issue analysis - President infringes upon the legislative power of the Congress. In VERY LIMITED CIRCUMSTANCES the President CAN act on his own WITHOUT Congressional authorization: (1) There has to be an emergency. (2) There has to be NO negation by the Congress (Congress did not say "NO") to the Presidential action.

Procedural Due Process

Source: 5th/14th Amendments - "Protects against the deprivation of life, liberty or property interests" without due process of law. Definitions: Liberty includes more than freedom from physical restraints (e.g., right to contract, to engage in gainful employment, to be free of defamation by government, and the right to develop certain parental interests). Property includes ownership and entitlements granted by state or federal law (i.e., a legitimate claim to certain benefits such as public education, continued welfare benefits, and, under certain circumstances, public employment). Deprivation of life, liberty, or property without due process requires more than negligent conduct. Notice/Opportunity To Be Heard Required - Procedural Safeguards: Timing and scope of required hearing: Whether a prior evidentiary hearing is required, and the extent of procedural requirements, is determined by a. The importance of the interest; b. The value of specific procedural safeguards to that interest; and c. The government interest in fiscal and administrative efficiency Examples include: a. Termination of welfare/disability benefits b. Termination of public employment c. Public education (suspensions/dismissals) d. License suspension e. Creditor remedies f. Civil forfeiture of real property used in a crime g. Attachment of real property Beware of first amendment crossover

SUBSIDIES

Subsidy - monetary assistance from a general treasury granted by a government to a person or group in support of an enterprise regarded as being in the public interest usually in the form of a cash payment or tax reduction. GENERAL RULE: IF a state gives a direct subsidy (i.e., money out of the general treasury), then such aid WOULD NOT be subject to Commerce Clause. RATIONALE: Subsidies are treated differently, because subsidies are money paid in the coffers of the state by the residents of the state and instate businesses (and many people want to get their hands on those money [e.g., teachers, judges, etc.]). This MAY look protectionist, BUT it DOES NOT violate the Commerce Clause. CAVEAT: A tax scheme that raises revenue and benefits local producers by burdening their out-of-state competitors is a violation of the Dormant Commerce Clause AND therefore is unconstitutional. The state government CANNOT get creative and impose tax on in-state and out-of-state businesses AND then use the proceeds from taxes to Subsidize in-state businesses - this is NOT a true subsidy! IF Subsidies AND Taxes are put together - they ARE NOT Constitutional!!! RATIONALE: the states will NOT be able to compete on the same level ... (level the playing field).

SUBSTANTIVE DUE PROCESS

Substantive Due Process - is the concept that there are certain rights so fundamental to our traditions of justice that, no matter what procedural guarantees government affords, government CANNOT abridge those rights. The basis of Substantive Due Process is the "Liberty" clause of the 14th Amendment. Generally where a law limits the liberty of ALL persons to engage in some activity, it is a due process question. LEVELS OF SCRUTINY The level of scrutiny used depends on the value of the activity. Low Level of Scrutiny - RATIONAL BASIS Standard of Review - the regulation MUST be reasonably related to a legitimate public purpose. Government is NOT violating ANY value that is mentioned in the Constitution. The law that impacts such values is presumed to be Constitutional. Those persons challenging such laws have the burden to show that there was NO rational basis (i.e., no reason at all) to uphold the law - a tough burden to meet. The law will most likely be upheld UNLESS arbitrary or capricious. STRICT SCRUTINY - the law is necessary to achieve a compelling governmental interest AND there is NO other alternative means to reach such interest. Applies in situations where there are some groups that may need judicial protection: E.g., racial discrimination, state and local governments discriminating against non-citizens, government is discriminating based on the exercise of any constitutional right...i.e., right to vote, restraints upon the dissemination of inforrmation, peaceable assembly etc. NO presumption of Constitutionality. The government has the burden of proof the regulation is necessary! There MUST be a compelling justification for such law AND: The law MUST be necessary to achieve such compelling objective, and The law MUST be VERY narrowly tailored. The law CANNOT be "overinclusive" OR "underinclusive". "overinclusineness" is a tool that is used to determine whether the regulation is sufficiently narrowly tailored to achieve the government's objective. It applies to ALL levels of scrutiny.

LIMITATIONS ON THE SPENDING POWER

TEST when the federal government grants federal funds on the condition (rational: Balance of Power): (1) The exercise of the spending power MUST be in pursuit of the "General Welfare". "General Welfare" has a VERY broad scope (almost anything can fall into this category). ... IF there is a condition: (2) IF Congress desires to condition the States' receipt of federal funds, it MUST do so unambiguously. The choice given to the state MUST be clear - states MUST know that the offer is quid-pro-quo. ... IF Congress IS NOT clear, the States DO NOT have to comply. ... IF Congress IS clear that the offer is a condition, then it WILL be enforced. The states should be cognizant of the consequences of the participation. (3) The condition MUST be reasonably related to the Federal Interest (programs or projects). The condition MUST have sufficiently close relationship between the spending program and the condition attached ... the standard is "reasonableness" and it is rather easily satisfied. E.g., highway funds expended on the condition of the drinking age in order to enhance driving safety, getting drunk in a lower drinking age jurisdiction and driving to the higher drinking age jurisdiction. (4) Other constitutional provisions MAY NOT be an independent bar to the Conditional grant of Federal funds. Federal government CANNOT force states to do something that is unconstitutional. NOTE: Reasonableness v. Coercion: the Court recognized that the condition may be so "coercive" that it pushes the state to do what it does not want to do (undermine state sovereignty) ... BUT the Court in SOUTH DAKOTA v. DOLE DOES NOT clearly establish this point ... - This would be an unfair increase of Federal Power AND invasion of the 10th Amendment Right (because Congress gets to have all the money), which would undermine the equal power distribution that Framers intended AND which would result in usurpation of power (smaller group of people having increasingly large power) ... The system MUST distribute power broadly!!!

PRESIDENTIAL EXECUTIVE ORDER TEST

THE TEST to determine whether the Presidential Executive Order (can be names many other way - ie advisory opinion, regulation, memorandum) is proper: 1st Q: Is the Executive Order legislative in character?Legislative Act - act that has a purpose and effect of altering the legal rights, duties, and relations of persons (INS v. CHADHA [p. 221]). IF the action IS NOT Legislative - there is NO Separation of Powers issue. IF the action IS Legislative - then look to: 2nd Q: What are the Sources of Power that allow the President to act in a " Quasi-Legislative Manner"? The President has powers of: o Commander in Chief; o Negotiate Treaties; o Appoint and Receive Ambassadors. BUT, IF Congress is opposed to it, it CAN block President's efforts - Congress has the ultimate Power: o Power of the Purse - Power to direct spending (i.e., to cut military spending). o Power of Impeachment - IF people do NOT like the action of the President along with the Congress. 3rd Q: Has Congress Spoken? Look to see IF the Congress has authorized this action under these circumstances. IF the President acts and HAS Congressional authority - (Presidential power is at its MAXIMUM) - the President's Executive Order is more likely that President's actions will be upheld. LIMITATION: no Federal Power over the subject; OR Individual Liberties. IF the President acts CONTRARY to Congressional will - (Presidential power is at its MINIMUM) - then it is more likely that President has exceeded its authority AND has NO authority to act. IF Congress has not spoken, then WE GO TO THE ZONE OF TWILIGHT: 4rd Q: Is there a zone of twilight? IF the Congress DID NOT say "YES", BUT it also DID NOT say "NO", the President MAY rely on "twilight" - Congressional inaction in the case of an urgent need MIGHT allow the President to act. The court will look at the History: ... how Congress has reacted in the past to President's similar Executive Orders. ... whether Congress has acquiesced to the exercise of this power in the past. The more we can characterize the issues as Domestic (Youngstown), then it is more likely that President has exceeded its authority; The more we can characterize the issues as Foreign (Dames & Moore), then it is more likely that President's actions will be upheld

Enumerated Power of the Federal Government Article I Section 8

Taxing and Spending Power* Borrow money Regulate Commerce* Uniform Rule of Naturalization Coin Money Provide Punishment of Counterfeiting Establish Post Offices Promote Progress of Science and useful Art Constitute Tribunals inferior to Supreme Court Define and punish Piracies and Felonies Declare War* Raise and Support Armies Provide and maintain Navy To make rules for the government and regulation of land and naval forces Provide for calling Militia Provide for organizing, arming and disciplining militia Exercise exclusive Legislation on all cases and exercise authority over all places for erection of Forts, and other needed buildings To make all laws which shall be necessary and proper*

Can Congress Force State Officials to Enforce Federal Law Against State Citizens

The Federal Government CANNOT commandeer state executive officers to carry out the provisions (i.e., enforce) of the federal law. - RATIONALE: Constitutional text DOES NOT explicitly speak on the problem ... BUT ... looking at the Historical understanding and practice, the Structure of the Constitution, and the Precedent, such action was beyond Congress's power, because it invaded State Sovereignty. It violates SEPARATION OF POWERS: Each of the branches (Legislative, Executive, and Judicial) has certain defined powers. IF certain powers given to one branch will be carried out by another branch - there is a greater likelihood that tyranny (or at least steps towards it) will ensue. President (under Article II) makes sure that the laws are rightfully executed - the President has the power to enforce the law. Congress CANNOT bypass the President and assign the enforcement of the federal tasks to state officers. IF the power to make sure that the laws are rightfully executed is given to someone else, then the President is, in effect, divested of his constitutional authority to make sure that the laws are complied with (i.e., the manner of enforcement of the laws, how much resources will be dedicated to enforcement, etc.). Supreme Courts polices this principle - separation of power - and DOES NOT let powers to transgress the boundaries of three branches. It ALSO is an issue of FEDERALISM: The Constitution established a system of dual sovereignty, in which states and federal government exercise concurrent authority. If the federal government were able to impress the states into service, its power would be enhanced greatly. When federal government passes a law IT has to carry out the provisions of that law AND provide the resources and the means for the States to carry out and enforce those laws. States CANNOT be forced to absorb the financial burden of implementation of federal government regulations. States CANNOT be put in a position to be blamed for the failure of federal regulations. As sovereign entities, states SHOULD have structural immunity from being forced to carryout programs against their own citizens!!! ... States SHOULD NOT be instruments of Federal Government! - PRINTZ v. UNITED STATES (federal gun control act required state sheriffs to perform background checks)

INCORPORATION DEBATE

The Incorporation Debate means that 5th Amendment (AND most of the protections of the Bill of Rights) are incorporated into the 14th Amendment Due Process Clause to apply to the state and local governments. Originally, Bill of Rights was intended to apply to Federal Government, BUT the Court stated that fundamental fairness and Due Process require that its provisions should apply to state and local as well as federal governments. The Court decides what IS included AND what IS NOT relying on Selective Incorporation - as part of the Due Process clause, the court is to incorporate those protections of the Bill of Rights that the majority of the justices though was "Fundamental" to the American scheme of ordered liberty. Under Selective incorporation, the Court concluded that ALMOST ALL the protections under the Bill of Rights were Fundamental (...BUT NOT ALL). CAVEAT: the Bill of Rights DOES NOT apply directly to State and Local Governments, BUT it DOES apply through the Due Process clause of the 14th Amendment. The Incorporation Debate raised a further question: "Does the language of Due Process Clause allow the Court to Incorporate any other rights that are NOT enumerated in the Constitution BUT that are important and should get special Constitutional protection under Due Process of Law?". Due Process Clause provides that government shall "NOT deprive any person of life, liberty, or property without Due Process of Law" ... BUT, it DOES NOT provide ONLY a procedural protection - it ALSO IS a source Substantive Rights ... - The word "liberty" was interpreted to mean that Due Process should protect liberty interests from interference by the government UNLESS there is a very good reason for regulating. Government CANNOT interfere with liberty interests arbitrarily or capriciously. Government MUST have a reason for regulating (i.e., there MUST be a Rational Basis for regulation). - HOWEVER, further question is - are there some interests that are SO important to our personal liberty that they may be regarded as "Fundamental" EVEN though they are NOT expressly stated in the Constitution!?

INTERSTATE PRIVILEGES AND IMMUNITIES CLAUSE

There are situations where the discrimination by the state NOT ONLY violates the Commerce Clause BUT ALSO the Privileges and Immunities Clause of Article IV. Art. IV, § 2, cl. 1: The citizens of each state shall be entitled to ALL the privileges and immunities of the citizens of the several states. Privileges and Immunities Clause - is basically an anti-discrimination provision - protects non-residents against discriminatory state legislation merely because they live in another state. States CANNOT make "citizenship" condition to conducting such activities within the state. RATIONALE: U.S. is one nation!!!

FEDERAL IMMUNITY FROM STATE TAXES

There is an ABSOLUTE IMMUNITY for federal instrumentality from state taxation - States CANNOT tax direct operation of federal government since that would interfere with federal function - Supremacy Clause. - Federal tax immunity exists whenever the state seeks to tax the United States or an agency or instrumentality closely related to it so the two cannot be viewed as separate entities. E.g., states CANNOT tax a U.S Bank, local Post Office, IRS, etc. E.g., Federal property is also exempt from state taxation. - McCULLOCH v. MARYLAND (Maryland imposed a tax on United States Bank). EXCEPTIONS: - State and Federal governments CAN agree to tax federal instrumentalities. - There is NO immunity for federal employees from state income taxes and vice versa.

Content-based regulations

To justify content-based regulation of speech, the government must show that the regulation (or tax) is narrowly tailored to achieving a compelling governmental interest. (Strict Scrutiny)?? Exceptions - Unprotected Speech 1. Advocacy of Illegal Action 2. Defamation 3. Fighting Words 4. Child Pornography 5. Obscenity Motive counts - if regulation is intended to regulate speech then it will be treated as a content-based regulation.

FOR THE TEST:

Two cases where Federal Government's attempt to commandeer state legislatures: Congress CAN pass laws regulating various activities of states pursuant to Commerce Clause!!! Congress CAN direct states to comply with Generally applicable Federal Law [applicable to ALL States](Garcia v. San Antonio Metropolitan Transit Authority); ... E.g., minimum wage laws ... E.g., workplace safety rules; ... E.g., environmental safety rules. Congress CAN tell states what to do by conditioning their receipt of federal money on the state performing certain acts under Spending Power ... [see South Dakota v. Dole]), ... BUT ... Congress CANNOT commandeer the legislative processes of a sate by directly compelling them to enact a law that enforces a federal program (New York v. United States). I.e., tell states what laws to enact as their own state laws. Congress CANNOT commandeer state's executive officials to carry out the provisions of the federal law. (Printz v. United States); I.e., enforce federal law against the state's own citizens.

POLITICAL QUESTION TEST

Two key factors which will render a certain kind of question a Political Question: (1) Has the issue been committed to ANY other branch of the Federal Government by the text of the Constitution? (giving an absolute power to another branch) Separation of Powers Issue - Court examines a particular issue and determines whether the Framers intended for it to be determined by any other of the two branches of the federal government. (2) Are there judicial discoverable standards? (will it be easy for the court to come up with standards the senate should use and are the judicially discoverable/not arbitrary) Courts will NOT answer questions IF particular questions are beyond the competence or enforcement capabilities of the judicial branch.

TAXING POWER

Under Article I, §8, cl. 1 Congress has the power to Spend and to Tax for the General Welfare! "General Welfare" has a VERY broad scope (almost anything can fall into this category). Originally, the Court made a distinction between "taxation" and "regulation" - meaning Congress could not use Taxing Power to tax an activity it attempted to regulate ... BUT this limitation has been rejected. IF Congress has the power to regulate the activity in question then the tax is VALID even if for REGULATORY purposes only. IF Congress has NO power to regulate then the tax must be revenue raising (their dominant intent)( McCray v. United States). - This test is so lenient that most of the taxing statutes are NOT challenged. Limitation: - The Power to Tax is generally unlimited by ANY doctrine enforced by the Court ... - EXCEPT the general doctrine that applies to ALL powers - Taxing Power CANNOT be used to violate Individual Liberties (e.g. a tax on newspapers alone)!

Executive Veto

When Framers passed the Constitutions, the Veto power would extend to an entire bill, NOT just portions of the bill (CLINTON v. NEW YORK). ALL parts of the bill MUST be accepted OR the ENTIRE bill MUST be rejected, BECAUSE: - It provides accountability on the part of members of Congress; - It allows more though on the part of the Congress in making sure that every part of the bill is spotless.

Commercial Speech

When gov't draft a law regulating this type of speech it must satisfy the following test (Hudson test): 1. Is the speech related to a lawful activity? 2. Is gov't interest substantial? 3. Does regulation directly advance the gov't interest? 4. Is regulation more extensive than necessary? (Means-end analysis/reasonable/mid-level review) False or deceptive commercial speech may be forbidden.

DORMANT COMMERCE CLAUSE

[Prohibition on the Actions of States Under the Constitution] Art. I, §8, Cl. 3: FOR THE TEST: State or local law that regulates on some area of Interstate Commercial Activity ... AND: Constitution DOES NOT expressly prohibit the State action from being taken, There is NO Federal Law on the books that conflicts with it. In such situations, the States are prohibited from enacting certain laws just because the Constitution gives the power to Congress to do certain things - it is the "Negative Implication Commerce Power". On one hand, there is Federal Interest. Congress is given a broad power over Interstate Commerce under the Constitution The Framers intended it to be so, because they wanted to prevent an economic rivalry among states. On the other hand, there is State Interest. There is a great deal of Interstate Commercial Activity that takes place within states. States should be able to carry out their Police Power - regulating for the health, safety, general welfare. PROBLEM: Reconciling BOTH Federal and State Interests ... SOLUTION: Supreme Court helps enforce the Commerce Clause by the "Dormant Commerce Clause" - an implied restriction on the authority of State and Local governments to pass laws that restrict Commerce. IF State passes a law that impacts Interstate Commerce, then Dormant Commerce Clause is triggered!!! Generally, the law MUST impact some Commercial Activities. RATIONALE behind the Commerce Clause is for the State to act like a single economic unit.

FEDERALISM

[VERTICAL] relationship between the Federal government and State and Local governments as Dual Sovereigns - basically, there are two levels of sovereignty operating at the same time over the people. Federal Government has ONLY the powers provided for in the Constitution (or are fairly inferred from it) because the it is a government of limited AND enumerated powers. State Governments were already in existence at the time the Constitution was adopted - they already possessed Police Power - state power to legislate to protect the health, safety, morals, and welfare of its citizens (i.e., local water, power, etc.) - ALL OTHER powers that are NOT in the Constitution.

Injunctions on Free-Speech

higher standard of review if content based = upheld only if necessary to achieve an compelling governmental interest If not content based = the injunction must burden not more speech than necessary to serve a significant governmental interest

NECESSARY AND PROPER CLAUSE

this power allows Congress to NOT ONLY take action under it enumerated powers, BUT ALSO to take ALL acts necessary and proper to carry out those powers. Under Article I, §8, cl. 18 the question to ask is: "Was the law passed necessary and proper (i.e., useful and convenient) for the Congress to carry out one of its other powers under Article I of the Constitution?". The court sees the Necessary and Proper Clause as an affirmation that Congress can use a wide range of means to achieve constitutionally enumerated ends. Necessary and Proper = Convenient, useful or necessary = upheld McCULLOCH v. MARYLAND - Congress created National Bank. ALTHOUGH, there is NO express power under Constitution to create a Federal Bank, Congress has Power to Tax, Power to coin Money, SO, the creation of a Federal Bank was upheld as necessary and proper (i.e., useful and helpful) in carrying out enumerated powers.

DORMANT COMMERCE CLAUSE TEST

(In a way, it is a Balancing Test - Not ALL the factors have to apply) Generally, State is a sovereign, AND under Police Powers, the States are given broad latitude to regulate for the health, safety, and general welfare of its citizens AND they CAN regulate Interstate Commerce to some extent... (1) Balance the State Interest vs. the Impact on Interstate Commerce? (a) Need to ID the State Interest and the Impact (b) Determine the strength of the State Interest ... [IF VERY compelling state interest - the law may stand] (c) Determine the severity of the impact on Interstate Commerce. Look at the Excessive Burden on Interstate Commerce AND a little State Benefit - IF the two are grossly disproportionate (a heavy burden and the small benefit), then the law will be struck down. Don't need to quantify it, but we do need to describe it. Apply this prong EVERY TIME! (2) Is the law "Protectionist"? "Protectionist" = treating instate commerce better than interstate commerce (preferring instate commerce). Protectionism MUST have something to do with economic motivation. The question is: "Does the law discriminate on its face? (Is it per se invalid)? ... (Apply Strict Scrutiny). a) The best argument against state regulation is that the regulation discriminates against Interstate Commerce - i.e., it treats interstate commerce worse than it does in-state commerce. E.g., applying a tariff or tax on out of state goods and NOT on in-state goods. E.g., state gives in-state businesses preference to state resources. E.g., gives state businesses a first priority to state produced goods. b) The state CANNOT discriminate and disguise the discrimination by providing that its purpose is not economic protectionism (economic advantage to "homeboys"), BUT instead, that say that their purpose is for a legitimate health, safety or general welfare under the Police Power. ... The law MAY survive - The state may do so in very limited circumstances. ... The regulation IS NOT per se invalid. But the state MUST prove (prong #3) that it DID NOT have reasonable non-discriminatory alternatives to achieve the state's objective ... (TOUGH test). (3) Is there a reasonable (less restrictive AND non-discriminatory) alternative? Alternatives MUST apply the same standard to everyone. Alternatives MUST be non-discriminative. IF there is a better way - then the law will most likely be struck down. Means End Analysis - Over-inclusive/Under-inclusive/Is there a better way? (4) Is there a need for National Uniformity? In some cases, uniform national standard would alleviate the burden on Interstate Commerce. In other cases, ALL states are different - different states have different priorities. SOUTHERN PACIFIC CO. v. ARIZONA (limit on freight train cars); BIBB v. NAVAJO FREIGHT LINES (the mud flaps case). Quarantine Laws - they MAY be discriminatory against Interstate Commerce on its face, BUT there is NO reasonable non-discriminatory alternatives to such regulations in protecting these states from importation of unsafe goods. THEREFORE, they are generally upheld (e.g., imported diseased cattle, infected fish, etc).

Subsidies of Speech w/conditions or exemptions from a law

Look at factors: 1. What is the state's interest? 2. Is it content neutral? 3. Is the exemption/Condition related to the gov't interest? 4. Is this an effort to penalize unpopular speech? Gov't can subsidize it own speech w/o concern of 1st Amend issues

General Welfare Clause

The General Welfare Clause is a limitation on the power to Tax and Spend, NOT a separate source of Congressional regulatory Power. Congress CAN spend for the general welfare; BUT Congress CANNOT regulate for the general welfare.