STANDINC - CL 1
General Principles
A. Constitutional (p. 37) 1. Actual injury (concrete, personalized, can he non—economic) 2. Causal relation between injury and delëndant AND 3. Likely to be redressed by court decision.
13. Prudential (p. 48) I. No third party plaintiff (except obstacle and close relationship) 2. No generalized grievances 3. Plaintifl in zone of interests (usually’statute)
II. Application of Generalized Grievances
A. Taxpayer
• l”rothingham is general rule — no standing a. Flast exception
• Must be challenging legislation — Art. 1,section 8 (Congressional appropriations) a. Valley Forge, Schlesinger, 11cm And 2. Must he claiming a speci tic Constitutional guarantee (maybe only Establishment Clause)
a. Richardson, I1cm [3. Citizenship status — No standing allowed on this basis C. No possible P not grounds lbr standing
Ill. Congressional grant of standing
A. Allowed if recipient is personally entitled — Congress can’t delegate power to enforce laws or permit a general citizen interest in laws ol procedures being enforced. Must be a specific interest (see page 35 in Lujan), hut can he widely shared (see Akins page 45). 13. USSC can’t invalidate Congressional grant of standmg on prudeiflial grounds, only Constitutional.
IV. 2013 Cases
A. Future injury = certainly impeding (Clapper) 13. Executive refuses = Do third parties have standing to defend? 1. No standing to defend on state law (ilollingsworth — 5/4) 2. Standing to defcnd in federal law-need authorization? (Windsor — 6/3) FEDERAL JUDICIAL POWER — CL 2
A. Souiteof Power— Coast. Art. III. Sec. 2
Subject matter Iimit
2. Must be case or controversy a. Advisory Opinion b. Standing (handout I) e. Ripeness d. Mootness
13. Judicial Power over other branches
Judicial Review — availability to declare conflict with Const. — Marbury
2. Power over executive - Marbury a. No immunity ftwany office — all subject to mandamus or injunction 1,. Judiciary won’t do sonic things — political Question 1. Won’t order acts within political discretion 2. Won’t Filloffice — Conlid. Agent
3. See l3aker v. Carr — p.57
C. Congressional control over Judiciary 1. Congress may grant jurisdiction in the positive; silence or absence of statute means no jurisdiction: can write in negative and lake away jurisdiction ilCongress so desires. McCardle
2. Congress can contro] except a. Other limits in the Consi. h. Can’t exercise judicial power — dictate result c. Can’t interfere in continuing jurisdiction — on—goingease
3. USSC a. Congress can’t reniove original jurisdiction in Const. b. Essential functions argument as a limit on Congress (probably not accepted) e. Practical problems 1. Freeze USSC precedent 2. Freeze lower cts. And state cts. d. Control number USSC Justices
4. Lower Ièderal courts a. liven lëwer theoretical limits b. If abolish all, state courts still hear
D. Executive control over judiciary 1. Power to appoint, subject to Senate conlirmalion 2. Enforcement CONSTITUTIONAL LAW - CL 3
CONGRESS
A. Legislative in character & effect = Present. & Ilicameralism Cl JADIIA B. Excessive delegation not violated if Congress provides an intelligible principle. If not excessive delegation, call in rulemaking. MlSTRI1’ l’A C. Rulemaking, ii appropriate & no interference with another branch Legislating MISTRETTA D. Once given discretion or power to exee., supervision or control = Legislating CI IADIIA E. Congressional discretion to give incidental power to other branches under App. CI. MORRISON
II. EXECUTIVE
A. President
1. C—in-C— military & foreign — limited domestic YOUNGSTOWN 2. No general power to solve national emergencies YOUNGSTOWN 3. Executive laws —- must have Congressional grant YOUNGSTOWN
II. Iixecutive 0111cc— Appointment 1. Principal — President with Senate MORRISON 2. Interior — Congress vest in President, Judicial, Fleads of Dept. MORRISON 3. lnterhranch OK if appropriate MORRISON
C. Executive Office - Removal I. At Will of President is rule MlYl l{S 2. Congress can’t remove executive officer — JR Cong. Removal BOWSI IER 3. Congress can list reasons if President ultimately removes FIUMP.FXFC.
4. II. Lx. — not pure exec. vs. quasi, hut, does limited removal of this office substantially interfere W/Pres. Running exec. MORRISON
Ill. JUDICIAL
A. Federal Judges generally hear cases — controversies, hut can have other service if appropriate MISTRIJTA
B. Judiciary can make rules. lv. MARBURY & McCRADLF
NO BRANCFI CAN PERFORM SUBSTANTIAL FUNCTIONS OF ANOTIIFR I3RANCII USSC can’t act like executive — can’t order appointment of certain officers or order certain things.
A. Congress can’t act like court — can’t prescribe decision or interfere in continuing jurisdiction. SEPARATION OF POWERS — A SECOND VIEW CL-3
If Control is legislative —
A. If Legislative function, then CHADA problems if no Presentment and llicameralism in the function.
13. If’Ixecutive function, then 130WS1-IIR problems because legislature can’t Control an executive function on general separation of powers nc iples even if the control satisfies Presentment and Ilicameralism.
II. If Control is executive -
A. If Legislative function, then the issue is excessive delegation of legislative power and the intelligible guidelines of Mistretta or separation of powers tinder llowsher.
13. If Executive function, Constitution should be satisfied and what is being done is either executing the laws, part of explicit or inherent executive power of’ rulenuiking. COMMERCE CLAUSE — CL 5
DEFINITION OF COMMERCE ITSELF
A. Gibbons — Commerce = buying. sd line and transporting, not manulacturing or agriculture.
Ii. Gibbons — “among’’ — points of origin and destination matter (two diIThrentstates). don t break ourney into intrastate itrts.
C. Jones and L — no labels; realistic assessment; national economy.
II. REGULATION OF INTERSTATE AND INTRASTATE
A. Channels of interstate commerce.
13. Any aspect or instrumentality of transportation (e.g., plans. railroads, interstate highway) or communication (e.g., phone, mail) including links that are intrastate.
C. CLOSE RELATION TO, OR SUBSTANTIAL AFFECT ON, INTERSTATE COMMERCE
Substantial = Wickard — aggregation (hypothetical multiplier).
2. Affects quantity, qtiality, identity, etc. of goods or people moving in interstate commerce.
Ill. PROHI BITION (‘?T?)
A. Darby — Congress may prohibit the movement of anything in interstate commerce (regulate = prohibit)
13. In exercise of power to prohibit. Congress can control conditions of maiiulhcturer or regulate manulhcture, production. or possession as a means to the end of prohibition (Ames, Darby).
IV. MODERN RETHINKING — LOPEZ. MORRISON. RAICH AND SEBELIUS
A. No federal power on subsiantially alThctste.stregarding non—economicmatters in iraditional areas of stale concern.
13. Federal power more likely if challenged action is part of’a larger, concededly valid statutory scheme.
C. Failure to enter the market is not an economic event that can he regulated.
D. Are we too entrenched in the commerce clause precedents to change?
V. OTHER CLAUSES IN CONSTITUTION AS LIMITS ON FEDERAL GOVERNMENTS COMMERCE CLAUSE POWER (e.g., 1st A) II.
A. 13. Article
C.
Not No
Fundamental A. 13. C. A.
13. Discrimination Exceptions
market
2.
Health statute valid IV, Market unithrmity On Question interstates purpose local Purpose Effect 1.
absolute
State State face
Section —
interests —
or upheld
participant
Scalia
Participant — —
some but
I)ORMANT
— providing
itself
of
Right Safety
per
invalid
commerce
(Kassell
OK against
2
degree
no
se
in
or
- say
unless
producing
good
if —
PRIVILEGES
— CTS).
invalid
benefits
substantial
Private
(I
invalid
exception
usually
(Pike out
subsidies —— — lood
evidence.
burden
proIably
Iowa
State
COMMERCE
of
If
(Phil. — —
workers
or
(although
(I
state
advances
quarantine
Boston
Arizona
trucks).
not
hint
running
reason
is
or
V.
declared clearly (Protectionism)
AND
as
If
other —
NJ
or
not,
North regulating,
milk,
some
cantaloupes).
a
If
a
public —
IMMUNITIES
incentives real
business
then
excessive burden
garbage.
CLAUSE
incidental NY
Carolina
justices
or
balancing
projects
source)
“important”
but
on
OR
hughes
to
in
either interstate
question
apples)
unless
aid
relation
CL —
CLAUSE
burden
legislative
in-state
6 —
state
special — minnows)
whether
commerce
to usually
on
putative
purpose,
business.
interstate
need
history
if
balancing
believe
is
for
local
burden
incidental,
national
commerce
benelits.
there
is
on
still
is
stale
a v PREEMPTION AND COMMERCE CLAUSE REVIEW CL 7
PRIiMPTION (CONGRESSIONAL INTLNT)
I. CON’!PL[I’L
A. hxplieit
B. Implicit
1. So pervasive
2. Dominate federal interest
3. Object and character of obligations
[I. PARTIAL
A. Ixplic it
11. Implicit
I. Compliance with both impossible
2. State regulatory provision is an obstacle to lëderal goal
If lèderal statute
A. Power — see handout CL5 for Commerce Clause basis and limils
10th 13. Amendment additional limitation
I. Garcia — National League currently dead — generally applicable federal laws can he applied to state Governments.
2. NY v US — federal can’t commandeer state legisLature
3. Printz v US — cannot commandeer state executive
4. Alden v Maine — can’t commandeer state judicial system
II. If state statute
A. Preemption (with federal state)
13. Dormant Commerce Clause CL 6 (with no federal statute) ELEVEN AMENDEMENT, TAXING POWER ANI) SPENI)INC POWER CL S
11111Amendment — Can’t sue a state in federal court unless:
1. Plaintiff= United States government OR
2. Cause of action grounded in statule bused on Amendment later than I OR
3. Defendant is politically and financially’independent subdivision of’state (e.g. sonic cities. counties)
4. Ex parte Young — relief is a prospective injunction, named defendant is individual state officer
Article I. Section 8—taxing power as a basis for federal legislation (icOT INCLLDE TAX — AMEND 16)
A. TAX (source of revenue — valid) v IENALTY (punishing wrongful conduct —inalid)
13. FACTORS
1. Extent of fmancial burden (more money, more likely to be penalty’)
2. Scienter requirement (more statute requires intent, more likely to be penalty)
3. Who collects? (any agency other than IRS, more likely to he penalty)
Article 1,Section 9—power to spend for General Welfare as a basis for federal legislation
A. General Welfare not limited to enumerated powers in 1.8 (US v Butler)
13. CONDITIONAL GRANT (purpose of the SS - valid) V DISGUISED REGULATLON (ultra vires—invalid)
C. FACTORS — South Dakota v Dole (p. 163).
1. Pursuit of the General Welfare 2. Unambiguous 3. Related to the federal interest in particular national project or program 4. Not bared by other Constitutional provisions
D. Sehclius — acceptance of condition by state must he truly VOLUNTARY — invalid if condition is cost prohibitive to state STATE ACTION CL 9
PUBLIC FUNCTION
A. Lxpansive Marsh (1946)— company’town 2. lvans (1966)— ton park 3. Logan Valley (1968)- mall
13. Restrictive 1. Jackson (1974)— public utility — traditionally exclusively reserved to the state.
2. 1ludgens (1976)— mall — overrule Logan Valley 3. llagg Bros. (1978)—elections, towns, education, lire, police protection and tax collection. (But see Rendell-l3aker)
C. Today I. Traditionally exclusively — Flagg list, with Rcndell—l3akerapplication.
II. CONTACTS
A. Expansive 1. Shelly (1948) —judicial enforcement = state action (See Lugar and Leesville) 2. Burton (1961)— a. Symbiotic relationship h. Lease provision — could have required 3. Rein an (1967)— authorization or encouragement
B. Restrictive Evans (1070)—interpretation not = state action 2. Moose Lodge (1972)— licensing not enough state must significamly involve itselfiih discriiiii nation 3. Jackson (1974)— sufficiently close nexus a. Not Burton — detailed regulation not symbiotic h. Not Reitman — approval of procedures not approval or encouragement
C. Today 1. Can’t affirmatively use law to violate l4A or can’t use some rule ol decision for which state is responsive — Shelly, Lugar and Leesville (but beware Evans and Flagg). 2. Burton — symbiotic — narrow — not mere regulation, licensing or funding. 3. If no Burton, has state exercised coercive power or significant encouragement. 4. Different rules for racial discrimination than other aspects of the 14A? SUBSTANTIVE DUE PROCESS CL-H)
5tIi 14(11 Amendment (ftderal) and Amendment (state) DP clauses are more than simply procedural guarantees — more than simply the process by which the government takes ay your liberty or IiI or property. Vests:
I) Definition of “liherly’ — Ii istory — look to ‘. alues of Western Civilization to see hut is included and how important the liberty is — fundamental used to describe a “most
imporkint’ liberty
2) Ilow much process is “due”? No rights or liberty interests are absolute
a. Weigh the importance of 11wpurpose b, Relate the statute to the purpose (means/end)
FUNDAMENTAL LIBERTY COMPELLING PURPOSE NECESSARY TO TIlE ACCOMPLISHMENT OF
INTERMEDIATE: LII3ERTY IMPORTANT PURPOSE S :13STANTIALLY RELATED
MERE LIBERTY LEGITIMATE OR APPROPRIATI PURPOSI RATIONALLY RIIATI D
Distinguish from Incorporation — there, history means Anglo—Americanhistory, not Western Civilization. Ilarlan — natlLrallaw, history; Black — must he tied into a speeilieally mentioned right. PURPOSEFUL I)ISCRIMINATION CL II
A. TYPES
On lace oFthe law or act on
2, Neutral on face, but discriminatory administration (Yick Wo—Outrageous Statistics)
3. Neutral on face and administration. but elkets one race disproportionatel)
a. Adopted or administered with racial motive or purpose
h. Neutral motive or purpose. combination ofother societal (actors producing the ehect.
DE JURE — 1.2. Ia Dh FACTO - 3b
B. RULES FOR DE .IURE
1. On face — Compelling test
2. Yick Wo (administration) — Compelling test
3. Neutral — Must show discrimination is motivating factor
a. Perry Mason — Compelling test.
b. Original intent and current impact — burden shifting.
c. Impact and factors (Arlington Heights or Zimmer) — Burden shifting.
Burden shifting — delèndanl must show legitimate. non—racialpurpose.
C. REMEMBER
14th 1. Above rules when Supreme Court directly interpreting the Amendment.
2. If Congressional statute pursuant to Commerce Clause, question is Congressional intent. Can ban mere impact without purpose if they so desire. (Title VII — P sllo\%s disparate impact; D has burden of showing job related and justified by business necessity; P can then show that other employment practices would work as well; business necessity cannotjustify an intentional discrimination).
3. If Congressional statute pursuant to Section 5 and 14111Amendment, question is whether Congress can ban more than Supreme Court (more liberal). SChOOL I)ESECRATION CL-12
Purpose or Intent needed Ibr 14111Amendment Violation.
Segregative activities in part = whole district violation.
Violation = Swann remedies available to District Court.
1violation, alhrmative duty to integrate, not just disestablish.
Purpose or intent satisfied ifl
Pre—1954segregation (by statute or Board action)
2. No efiort to integrate
3. Impact sEillin existence at time of trial
Conservative Limitations:
1. Requirement of purpose or intent
2. Resegregate not actionable if not due to Board
3. Milliken — no interdistrict remedies
“Green” factors:
Student assignment. transportation, physical facilities. Extra currieulars.
fhculty assignments. resource allocation and general quality of education AFFIRMATIVE ACTION CL-13
I. All cases split — essentially 5—4decisions.
2. Adarand modern rule — Strict scrutiny to racial classifications, whether benign or not. Liberals still want intermediate scrutiny, hut clearly dissenting position today. Congress treated in same manner as states (Metro Broadcasting overruled).
3. Specific remedial orders or legislation satisfies strict scrutiny (Powell—appropriate body: O’Connor—firm basis for belief; Scalia—specilically identified victims of past discrimination). Clear that role models, societal discrimination. broadcast diversity and ork in inner cities does not satisfy’.
4. In educational context. Grutter reallirms Bakke and holds that educational diversity
satisfies the compelling interest test. l3ut the means still matter — No quotas. race as a fhctor seems to he valid, specified number of points invalid.
5. Problem for advising clients—Liable ifno plan to minority plaintiffs; liable if plan to white plaintiffs.
6. Critical mass? I low long? EQUAL PROTECTION CL-14
Ilighest Level of Scrutiny
Strict Scrutiny (Race, including aflirmative action; National On gin; AIienage — except necessary to political community)
OR
Impact on Fundament Rights (limited by San Antonio v. Rodriguez). I. Voting (poll tax) 2. Access to court (transcripts/attn’y on civ appeal) 3. Right to travel interstate (welKire/residency — but Saenz & privileges & immunities) All three must be combined with wcalth discrim.
TIST: 1. COMPELLING state purpose (v.eigh importance) 2. Statute NECESSARY to the accomplishment of purpose (least restrictive alternative) (narrowly tailored)
II. Intermediate Level of Scrutiny’ Gender (except “real” gender differences). Illegitimacy. Liberal or Affirmative Action. Plyer
TEST: 1. IMPORTANT state purpose (sometimes SIGNIFICANT) 2. Statute SUBSTANTIALLY related to accomplishment of state purpose
Ill. Deferential Level of Scrutiny (“mere” classification — the deihult or residuary scrutiny) Economics, age, all non—heightened
TEST: I, LEGITIMATE state purpose 2. Statute RATIONALLY related to purpose May be level in between 11and Ill — Mentally challenged, Brennan in Fritz, Romer.
IV. Indicia of Suspectness (how to get heightened scrutiny)
A. Rodriguez (1973) p. 801 B. Murgia (1976)—p. 766 C. Plyler (1982) p. 807, lb. 1
D. Cleburne — pp 762-763