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ConLaw I Skeletal Outline
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 I. | Judicial Review: It is emphatically the province of the courts to say that the law is. Marbury (judicial review over federal gov’t), Martin v. Hunter’s Lessee (judicial review over state decisions involving federal/const. law). SCOTUS cannot review state sup. ct. decisions decided on state law.
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 II. | Limitations on Judicial Review
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A. | Political Question: 3 dimensions:
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1. | Textual (does C allocate issue to another branch?),
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2. | Functional (judicially discoverable standards & workable rules?),
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3. | Prudential (respect for other branches, would decision be enforceable? embarrassment from multiple pronouncements).
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4. | Cases: Baker v. Carr (voting districts Q not PQ b/c brought under equal protection), Goldwater v. Carter (treaty termination), Nixon v. U.S. (impeachment is PQ for Senate to decide)
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B. | Jurisdictional Limitations
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1. | Ct's jurisdiction conferred by Art. III and Art. I. Focus here on III.
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2. | Exceptions Clause (Congr. can limit appellate jur. where it wants but not orig. jur.; rarely comes up b/c no one wants to see limits defined too strictly or too broadly; McCardle; See also Klein: Congr. can't limit jur. to ensure an outcome)
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3. | 11th Amendment—citizens can't sue state in federal ct.
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4. | Case or Controversy: no advisory opinions, must have real, adversarial parties w/vital interest so that decisions will be clear and not ambiguous. Muskrat v. U.S. (Cherokee land possible takings question; ct. said no takings has occurred, so no controversy yet)
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C. | Standing (Injury in fact, fairly Traceable causation, Redressability)
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1. | 3-rd Party: Does the party have a relationship to P (like doctor/patient) Is there some obstacle that prevents P from suing him/herself (i.e. a patient's desire to keep her abortion secret)? Does the 3rd party have some stake in the suit? (Like an doctor's stake in a patient's abortion)
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2. | Associational (a member must have had injury in fact, lawsuit must be relevant to org's purpose, suit must not require participation of individual members—generally precludes asking for damages). Lujan, Sierra v. Morton
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3. | Taxpayer: Only allowed when P's challenge is to spending action & case invokes specific Const. limit on taxing and spending. Flast v. Cohen (gov't subsidies to private religious schools)
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4. | Statutory: If Congress creates cause of action; other standing reqs must still be met for P. However, Congr. can never create standing for generalized grievances about gov't which cannot be differentiated from those shared by public at large. U.S. v. Richardson
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D. | Timing: Ripeness/Mootness—case must be alive at all stages of litigation; exceptions for cases capable of repetition yet evading review (Roe v. Wade); voluntary cessation of illegal activities won't moot case where D might just start up again.
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E. | Discretionary Avoidance of Const. Issues. Rescue Army: Ct. may avoid deciding:
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1. | Constitutional issues affecting legislation
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2. | friendly, non-adversarial proceedings
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3. | in advance of necessity of deciding
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4. | in broader terms than required
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5. | cases that have other grounds on which they can be decided
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6. | failure to show injury by statute's operation
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7. | when it's possible to construe statute to avoid Const. question
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III. | Federal Legislative Power (enumerated powers; everything else to states, 10th Amend.)
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A. | Necessary & Proper (Art. I, McCulloch v. Maryland—federal bank; "Let end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.")
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B. | Commerce: can Congr. rationally conclude that given activity affects IC? If so, regulation is ok (even if the activity is entirely intrastate). Including:
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3. | Instrumentalities of IC (including means of production; Darby overuling Hammer said Congress' motive for regulation is irrelevant if it is w/in Congr. power to regulate)
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4. | Substantially Affects IC:
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5. | Cases: Gibbons v. Ogden (steamboats btwn NY and NJ), Champion v. Ames (lottery case), Hammer (child labor chairs; ct. said production not IC), Darby (overruled Hammer; production is IC or related enough/affects IC)
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6. | Wickard: Doctrine of Cumulative Effects: Congress can reach local activity if it affects IC, even in the aggregate.
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7. | Heart of Atlanta & Katzenbach v. McClung (Ollie's bbq): cumulative effects, intrastate activities that affect IC
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C. | Limitations on Commerce Power (10th Amend.—state sovereignty)
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1. | Lopez limit—Congr. must find jurisdictional nexus to IC or genuine econ. effect before it can regulate activity (ct. said education is not an economic activity; presence of guns in/near schools does not substantially affect IC)
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2. | U.S. v. Morrison: You can't accumulate non-economic activities (gender violence).
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3. | Usery (reserving regulation of traditional state functions to states) overruled by Garcia (Usery unworkable; guarantee of state soverignty inherent in structure of gov't so no additional guarantee needed; congr. can use commerce power to regulate wages, workplace safety, environment)
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a. | Cases that highlighted difficulty in applying Usery: Hodel, EEOC v. WY, FERC.
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4. | Alden v. Maine—Congress can't use Commerce power to subject non-consenting state to private suit for damages in federal cts.
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5. | NY—(nuclear waste disposal or take title requirement) said Fed. can't commandeer state legislature to enact legislation; destroys political accountability and infringes on state sovereignty.
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6. | Printz—(ordering Montana police to do gun background checks) Fed. can't commandeer state officials (arms of state Exec. dept) b/c of lack of political accountability and state sovereignty
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a. | If activity is arguably commercial, its effect need not be direct so long as it's a part of a class of activities that affect IC. (Wickard)
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b. | If activity is not arguably commercial, there must be direct and substantial effect on IC (Morrison)
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D. | Taxing & Spending (Art. 1, §8): As long as a regulation raises some revenue (or so long as Congress merely intended it to do so), it's ok, even if there are significant hidden regulatory motives. Ct. has left taxing and spending virtually within the sole discretion of Congress. Spending must be:
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1. | In pursuit of general welfare (no legislation has ever been invalid on this basis)
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2. | If conditioning spending on state compliance w/something, the conditions must be clear and unambiguous and,
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3. | Conditions must be related to the federal interest in the program (very broad test; relatedness is not hard to find)
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4. | Condition must not be barred by another Constitutional condition.
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5. | S.D. v. Dole—Cong. ordered states to raise drinking age or lose highway funds; this was ok.
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E. | 14th Amend (§5): Federal Legislation in Aid of Civil Rights
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1. | Congress can make any law necessary to enforce the 14th Amend. (due process and equal protection). Katzenbach v. Morgan (literacy tests could lead to racial discrimination, so no)
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2. | Must be congruence and proportionality btwn injury cong. wants to prevent and the behavior they are prohibiting. City of Boerne v. Flores (RFRA went too far; must be congruence and proportionality
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3. | Tests under equal protection and due process clause (14th Amend)
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a. | Strict scrutiny—very hard to meet, used in racial/ethnic discrimination
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b. | Intermediate scrutiny—gov't must show it was substantially necessary to use a discriminating classification (i.e. gender)
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c. | Rational Basis — a law is presumed Const.; person challenging it has to show it's unconst. by showing that there's no reason, none, it's irrational for the legislation to have passed the law. Invoking this test is a signal that the law will pass a constitutional challenge.
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IV. | State Power in American Federalism
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A. | Constitution as Limit on State Power
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1. | Express Prohibitions (Art. 1, § 10, ¶1)—Explicit things states can't do: treaties, copyright, coin money, pass bills of attainder (bills that punish people), make ex post facto laws, etc.
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2. | Prohibition w/possibility of Congressional Consent —Things states may not do w/out consent of Congress: make tariffs on imports, keep troops, enter agreements w/other states or countries, engage in war unless actually invaded, act in concert as a group of states, etc.
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3. | Dormant Commerce Clause (see below)
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4. | Pre-emption—B/c of doctrine of supremacy, where two laws conlict, state laws must defer to federal laws. Similarly, Congress, by terms or effects, preempt states from acting in an area where Congress has already taken action. However, this requires Congress to act. (See also below)
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B. | State Power to Regulate Commerce (Dormant Commerce Clause)
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1. | Development :(Gibbons, Cooley, City of Philly, Hunt v. Washington Apples, Southern Pacific v. Arizona, Barnwell, Pike v. Bruce)
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2. | Discrimination against IC
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a. | Discrimination invalid if its purpose is economic protectionism or hoarding natural resources.
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b. | Discrimination for health and safety is probably invalid unless you show there's no non-discriminatory alternative and the health/safety goals outweigh the discrimination.
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c. | If a rule is found discriminatory, the ct. enters a rigorous analysis:
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(1). | What is the purpose of the regulation?
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(2). | Does this regulation achieve that purpose?
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(3). | Is there a less discriminatory means of accomplishing that purpose?
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a. | Burden on IC v. strength of state interest in regulation
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(1). | Burden includes: Cost, difficulty of compliance, resulting inefficiency, possibilty of less burdensome regulation
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(2). | Strength of state interest: Health, safety, morals & welfare (since that's what state's are supposed to do via their police power)
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b. | Result: State regulation is valid where state interest is substantial, regulation is non-discriminatory in intent or effect, and burden on IC is slight.
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c. | When a safety regulation conflicts with IC, the safety reg will prevail unless the benefit to safety is marginal (Mud Flap case)
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4. | Market Participant Doctrine: (Reeves v. Stake—state-owned/operated cement plant)
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a. | Where a state is acting as a buyer or seller in the market, rather than acting as a regulator, the state is allowed to discriminate against out-of-staters and to burden IC. Commerce clause wants to protect against state-erected barriers to trade for private businesses, but when state decides to create basically a public utility, then we've moved outside the private realm.
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b. | Does not apply to regulation of natural resources
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c. | Regulation cannot be conditional in nature such as to affect IC beyond the original transaction. Situations where state bears the cost of providing local benefit are acceptable, but where state is just shifting cost of local benefit to out-of-staters, then it's regulation.
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5. | Privileges and Immunities (Hicklin v. Orbeck: AK in-state employment case)
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a. | Art. IV §2: protects out-of-state citizens from unreasonable discrimination in regard to their fundamental national interests (interests which concern the Nation's vitality as a single entity. If state provides benefits to its own citizens, it must provide to non-citizens unless it can show substantial justification why not. Test is:
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(1). | 1) Is the person being discriminated against an out-of-state citizen or resident? If so, he's covered by the clause. Doesn't apply to corps or aliens.
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(2). | 2) Is the regulated activity a right fundamental to nat'l unity (i.e., right to earn living of your choice, rights to medical care, owning property and accessing judicial system)? If so, go to next step; if not, the clause doesn't apply.
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(3). | 3) Is the discrimination closely related to a substantial state purpose? If so, go to next step.
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(4). | 4) Is the discrimination a reasonable and least discriminating method of accomplishing the state purpose? If so, probably ok. If not, it violates the P&I cause.
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C. | Pre-Emption: When Congress Speaks
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1. | A federal law will always override a state/local law where Congress intends to do so, or where the two laws directly conflict. Laws conflict:
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a. | In situations where it's impossible to comply w/both laws. Federal rule applies.
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b. | Where state law encourages what federal law discourages, or vice versa. Federal applies.
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c. | Occupying the field—where the federal gov't has passed extensive regulation of some area (i.e., nuclear power plants), this usually implies that Congress intended to leave no room leftover for states to legislate in that area.
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(1). | Not everything that touches the same field will be in conflict. Some state laws could be supplementary, rather than conflicting.
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d. | When looking at conflict, factors that may matter include:
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(1). | Is this an area that requires national control, or does it admit of local control?
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(2). | Is this an area where state/local gov'ts have traditionally controlled?
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(3). | The same variables that play into commerce clause analysis.
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e. | When has Congress manifested its desire to oust state/local gov'ts in this area?
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(1). | Congress can explicitly say it intends to oust.
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(2). | If Congress doesn't say, we look for Congressional Intent.
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f. | If we have conflict, and/or Congess has manifested its desire to oust state/local gov'ts, what is the scope of the conflict and/or ousting?
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V. | Separation of Powers—Congressional and Executive Relations
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A. | Executive Power (Youngstown Sheet & Tube—Truman tried to take over steel mills during Korean War; ct. said this exceeded his auth. b/c Congress had already acted in that area)
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1. | Congress makes the laws, president carries them out. Congress has power of purse and oversight and declarations of war.
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2. | President can threaten vetoes or "go over the heads of Congress" straight to the people. But generally all these battles are played out in public, not in courts. They're political questions in terms of judicial doctrine—matters the other branches are supposed to sort out for themselves.
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3. | Sources of Exec. Power (w/comments related to Youngstown):
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a. | Vestiture clause: President may argue that "executive Power" implies power to act in national emergencies. President must run gov't and take steps to preserve at least the status quo until Congress acts.
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b. | Commander in chief clause: It only seems to say he has power over the armed forces, not over private businesses. President makes military decisions, not everything else. We don't want commander power to swallow separation of powers.
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c. | Art II, §3: Duty/power to faithfully execute the laws: President could argue that Congress had authorized the "police action" in Korea, so he was just faithfully executing Congress' intent.
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d. | Some sort of emergency power: In emergency and Cong. has not acted in this area, President may act for a temporary time to maintain the status quo until Congress acts.
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4. | Presidential Auth. acc. to Jackson's concurrence in Youngstown Sheet & Tube: President can act:
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a. | 1) When Congress says it's ok—President is acting at apex of executive power
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b. | 2) When president acts alone, in the twilight of Congressional inertia or where distribution of power is uncertain. Executive power weak/unclear.
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c. | 3) When president acts against express wishes of congress—has to rely on Constitutional grants of power. This is the lowest ebb of Presidential power.
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5. | Exec. has lawmaking power in 4 instances:
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a. | Delegation: Congr. can delegate legislative power to Pres. subject to sep of powers limitations. Congr. must formulate reasonable standards to guide the use of exec. discretion.
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b. | Veto Power: President can veto legislation
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c. | War power: Pres. has broad legislative power in theaters of war.
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d. | Emergency (ebb/twilight zone, auth. to preserve status quo)
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B. | Limitations on Congressional Lawmaking
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1. | Delegation of Legislative Power: Congress cannot delegate an entire delegated power, declaration of war, or impeachment. Power can be delegated under 3 conditions:
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a. | Power must be delegable (can't be an entire delegated power, declaration of war, or impeachment)
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b. | Power must actually be Congress's in the first place
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c. | Congr. must establish adequate standards to govern how the power must be executed, although the standards can be very broad.
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d. | Note: Non-delegation doctrine is virtually extinct.
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2. | Legislative Veto is unconstitional (Chada): Congress can't delegate power of veto back to itself. It violates:
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a. | Presentment Clause: Requires legislation be presented to Pres. for his approval or veto.
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b. | Bicameralism: Requires that both houses pass legislation into law.
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3. | Line Item Veto: This effectively allowed Pres. to amend legislation that had already been passed. Can't do it. President can only veto all or nothing upon presentment. After law is enacted, the only branch that can change it is Congress.
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C. | Appointment and Removal
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1. | Congress may never appoint Executive officers, only Pres. can w/advice/consent of Senate.
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2. | Congress may never remove Executive officers (except via impeachment); President can remove at will.
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3. | If board/agency/appointee is solely an arm of executive branch, Exec. can remove appointees at will (even where Cong. had to approve appointment)
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4. | Inferior officers may be appointed by judiciary or heads of depts.
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5. | Congr. can vest apptment of lower federal officers in the Pres, cts, or the heads of depts. (cabinet). Congress can't appoint them themselves. Top officials can only be appointed by Pres w/advice and consent of President.
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6. | Congr. can only remove members of the exec. branch by impeachment.
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7. | If the officer is quasi-legislative/judicial, Congr. can limit or completely block the president's right of removal.
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8. | Morrison v. Olson, 1988 (p. 317—the case to which you must turn to understand appointment and removal; special/independent counsel issues.
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a. | Constitutional issues raised by the independent council statute:
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(1). | Possible Violation of the Appointments Clause
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(a). | Art. 2, §2, cl. 2: Principal officers are appointed by Senate w/advice and consent of the Senate. The issue here is whether this is a principal officer.
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(b). | Ct. says this is an inferior officer b/c he can be removed by a lower executive official, he has limited duties and tenure. Since this is an inferior official, Congress gets to say who has authority to appoint this position, and the statute looks like Congress vested that authority in the judiciary.
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(c). | In addition, ct. says this is the kind of thing cts. do already—granting warrants, issuing subpeonas, etc. Also, the cts. won't actually try the case—that will be up to the Congress. So there's no problem here w/judiciary doing this.
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(2). | Problem of removal—separation of powers/role of Congress:
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(a). | Executive does not have unfettered power to remove any executive official. Administrative agencies have a certain level of independence; nearly all can only be removed for good cause.
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(b). | Functional Test to see whether Congress has gone too far in modifying the removal power of the president: Congress can go as far as it wants so long as President isn't completely stripped of power to remove an executive official and President can still carry out his duties to ensure the faithful execution of the laws.
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(c). | This is a functional test: Does this work? Does everything still function correctly with this statute in place? If so, then it's ok.
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9. | Bowsher v. Synar, 1986 (p. 294—Congressional removal power. Gramm-Rudman budget balancing act authorized Comptroller General (a Congressional employee) power over spending decisions that could dictate how executive enforces laws. This was declared unconstitutional. "The Constitution does not contemplate an active role for Congress in the supervision of officers charged with the execution of the law it enacts." (p. 295)
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10. | Summary points about appointment and removal:
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a. | See Morrison for functional test rule.
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b. | Congress can tell executive branch officers that there are certain duties they must carry out (i.e. in Marbury v. Madison—delivering commissions). Congress just can't supervise whether it's done; that enforcement role is up to the executive.
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D. | Presidential Immunity/Privilege
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1. | Immunity: Nixon v. Fitzgerald: Pres. has unqualified immunity from civil suits for official action. Clinton v. Jones established that sitting Pres. may be held civilly liable for unofficial action taken prior to becoming Pres.
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2. | Privilege: Principle privilege president enjoys is the privilege not to disclose information. This is incident to the office. The idea: If Pres. is going to get candid advice from aides, the aides must believe their advice is confidential. The privilege is presumptive, but qualified, must yield to need to develop all necessary facts for a criminal trial. Nixon v. U.S. It will often be a PQ.
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E. | Foreign Affairs: Pres. has substantially greater auth. in foreign affairs as opposed to domestic, since. the U.S. needs to present a "unified face" to the world.
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1. | President can enter treaties w/advice/consent of Senate. Can exit w/out consent of senate.
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2. | Executive agreements are supreme over state law but subsequent fed. statutes can trump them.
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3. | Sources of President's action in foreign affairs:
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1. | President can repel sudden attacks against U.S. and order rescue missions to protect U.S. citizens/interests.
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2. | Congress retains power to declare war (in theory). Congr. has largely abdicated this responsibility.
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3. | Declaration of War: Congress is supposed to make full commitment to total war.
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4. | Making War: President gives troops order to engage in conflict
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5. | Authorization of War: Congress can authorize military action w/out making official commitment to war.
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6. | War powers resolution: established 60-day period after which Pres. must cease military activity if he hasn't gotten formal approval by congress.
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VI. | State Action Doctrine:
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A. | Const. guarantees run only against federal & state gov'ts. Civil rights are protected only against interference by governmental entities, absent legislation extending rights to private conduct. However, where private conduct is mingled w/state conduct, the private conduct may be treated as state action and subject to the
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B. | Basically like Burton. Two theories:
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1. | Public Function Theory: If an entity provides a public function (transportation, utility, etc.), it's acting like a state actor. This has been mostly shut down. Today, only if the entity is doing something traditionally and exclusively done by gov't will it be treated like a state actor.
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2. | Significant State Involvement (symbiotic relationship btwn gov't and private actor):
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a. | Where gov't is involved to such an extent that it has become responsible for the complained of activity.
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b. | See Burton—the coffee shop and city were joint actors, as if they were in business together, so the private actions of the coffee shop were treated as gov't action.
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c. | Narrow interpretation of state action is reflected in Moose Lodge and Jackson
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