CON LAW Outline Final PDF

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TIG IDEA 02/14 11:48PM ;) When studying for final, READ EACH lil case summary and copy/paste a one sentence rule on a different doc. It’ll help you remember all of Constitutionality issues + good reference guide for final. Constitutional Law Outline Spring 2020 I.

Judicial Power

District of Columbia v. Heller 1. Facts: D.C. statute prohibited the possession of a handgun in the home without a license and the gun was required to be unloaded and disassembled or bound by a trigger lock. Heller applied for a handgun registration certificate for a firearm he wanted to keep at home. He was denied and brought suit claiming the statute violated the 2nd amendment. 2. Holding: Although the 2nd Amendment appears to have been created for the purpose of ensuring the creation of a future militia, this purpose does not change the fact that it was designed to create an individual right to keep and bear arms. Nothing suggests that the individual right to keep and bear arms is conditional upon being strictly for military purposes. However, States are free to regulate who can possess firearms based on certain safety concerns. A. Where do they disagree? i. Meaning of language ii. Scope of the right iii. Protects state from federal government disarming them (Stevens) B. Are there any areas of agreement? i. Limitations – it isn’t an absolute right: some limitations can exist such as who can possess them for safety reasons (mentally ill, convicted felons), or type of weapon (automatic weapons) C. Why is interpretation such a big part of constitutional analysis? i. Constitution is incomplete – doesn’t provide provisions for everything ii. Provisions are written in broad, open, textured language. No glossary, requires interpretation. iii. No right is absolute. so, if no right is absolute you are going to have to decide how it is limited. D. Principles of Interpretation i. Originalism – Constitution’s meaning fixed at the time of enactment; meaning can only evolve by amendment ii. Non-Originalism – Constitution’s meaning only partially fixed at enactment; meaning can evolve by interpretation or amendment. E. What does the constitution do? i. Establish a national government and allocate power between the branches ii. Determine the relationship between the federal and state governments iii. Limit governmental power and protect individual rights F. 3 Branches to Avoid Tyranny, Vertical and Horizontal Distribution iv. State Power  Article I: “All legislative powers herein granted…” th  10 Amendment: The powers not delegated…are reserved to the states v. Federal Preemption

o Article VI: Supremacy Clause (“…supreme law of the land…”) Marbury v. Madison 1. Facts: 2. Holding: 3. Takeaways a. Establishes that the court can exercise review over federal congressional actions and federal executive actions b. Establishes Article III as the ceiling on judicial Power c. Later cases expand this power to also reviewing for constitutionality in: i. State Court Decisions (Martin v. Hunter’s Lessee (1816); Cohens v. Virginia (1821) ii. State Legislative Actions (Fletcher v. Peck (1810)) Justiciability 1. Prohibition of Advisory Opinions a. There must be an actual dispute between adverse litigants and there must be a substantial likelihood that a federal court decision will bring about some change or have some effect. i. Rationale: Separation of Powers – purpose of the court is to say what the law is. b. If final judgment is given, a judicial decision becomes the last word of the judicial department with regard to a particular case or controversy, and congress may not declare retroactive legislation c. When a new law makes clear that it is retroactive, an appellate court must apply that law in reviewing judgments still on appeal that were rendered before the law was enacted, and must alter the outcome accordingly. 2. Standing a. Whether the litigant is entitled to have court decide the merits of the dispute or of particular issues. At least 1 π must have standing for suit to proceed b. 3 Constitutional Requirements the π must allege: i. They have suffered or imminently will suffer an injury. 1. Concrete and particularized 2. must be personal; no generalized grievances 3. Injury can be non-economic (aesthetic; stigma; etc.) ii. The injury is not too attenuated and fairly traceable to the ∆’s conduct (Causation) iii. A favorable federal court decision is likely to redress the injury. c. 2 prudential (congress may override) requirements: i. Party generally may assert only their own rights and cannot claim the rights rd

of a 3 party not before the court ii. Π may not sue as a taxpayer who shares a grievance in common with all other tax payers. d. Allen v. Wright i. Facts: 2 Injuries: (1) IRS’s failure to comply with desegregation laws caused them direct harm by creating a climate of stigma against their children. (2)

Federal tax exemptions to racially discriminatory private schools in their communities impair their ability to have their public schools desegregated. ii. Holding: (1) it is insufficient to allege the gov’t acted outside compliance w/ the law- no alleged personal injury. (2) chain of causation linking the alleged inability of their children to attend desegregated schools to the specific actions of the IRS is too attenuated. No evidence that withholding tax-exempt status would change segregation policies. e. Massachusetts v. EPA i. Holding: MA showed concrete and particularized injury because greenhouse gas emissions would further exacerbate the problem of global warming and cause MA to lose coastal lands. Sufficient causation between the EPA’s failure to regulate and this injury – lack of regulations contributes to environmental damage from greenhouse gases. Although a small impact, the EPA’s regulation of domestic emissions would decrease the amount of emissions and reduce the amount of environmental damage to MA. 3. Ripeness a. Is the injury too speculative to warrant court action at this time? i. For it to not be premature – Must show that the harm has occurred or imminently will occur b. Main Application: When may a π receive pre-enforcement review of a statute or regulation? c. Poe v. Ullman i. Facts: Connecticut statute that prevents the use of contraceptive devices, even for married couples, and giving medical advice on them. ii. Holding: Not ripe for review because they have never prosecuted someone under the statute and they aren’t really enforcing it – so not immediate iii. QUIMBEE: For a lawsuit to be ripe for adjudication, the injury threatened must be relatively immediate and certain to occur without court intervention. d. Abbott Laboratories v. Gardner i. Facts: Congress amended act to require prescription drug manufacturers to print generic names on drugs also. Π would have to repackage ii. Holding: having to repackage would cost the companies a lot of money – ripe because there is enough injury to warrant court action at this time 4. Mootness – Too Late? a. The controversy must be “live” at all stages of federal litigation i. Ex. Death of a criminal ∆; settlement of the parties; change in law b. Exceptions: i. Wrongs capable of repetitions but evading review ii. Voluntary cessation iii. Collateral Injuries (Ex. Criminal – even if out of prison, the charge still affects getting job and stuff) iv. Class actions 5. Political Question Doctrine a. Allegations of constitutional violations that federal courts will not adjudicate, and that the supreme court deems inappropriate for judicial review. Some constitutional provisions are left to the political branches of government to interpret and enforce.

b. Baker v. Carr Factors i. Textually demonstrable commitment of the issue to a coordinate branch ii. Lack of judicially discoverable or manageable standards to decide the case iii. Impossibility of deciding the case without making an initial, nonjudicial policy determination iv. Impossibility of deciding the case without showing disrespect for a coordinate branch v. Unusual need to adhere to a political decision already made vi. Potential for embarrassment stemming from multifarious pronouncements by various branches c. Issues dismissed from court as nonjusticiable political doctrine: i. Actions that are totally committed to the discretion of the Executive Branch (what bills to veto, whom to appoint, whom to pardon) ii. Questions arising under Guaranty Clause of Article IV iii. Some but not all gerrymandering cases are non-justiciable (partisan gerrymandering cases are not) iv. Some but not all foreign policy issues (for instance: whether a war has begun or ended, and whether a foreign country has been recognized diplomatically, whether treaties should be terminated) v. Conduct of Impeachment (Most if not all questions)

Justiciability Analysis Recap: Is there an actual dispute? (no advisory opinions) Is this the right π to bring this suit? (standing) a. Injury, Causation, Redressability 3. Too soon? Is the case premature? (ripeness) 4. Too late? Does the case or controversy exist anymore? (mootness) a. Exceptions: Voluntary cessation, collateral injuries, class actions, wrongs capable of repetitions but evading review 5. Inappropriate for judicial review? (Political Question Doctrine) 1. 2.

II. Intro to Legislative/Congressional Power McCulloch v. Maryland 1. Federal Supremacy a. States cannot interfere with or nullify federal action. 2. Flexible Constitution a. We must never forget that it is a constitution we are expounding. This is not a statute, not limited to exact text. 3. Ends vs. Means a. Congress not limited to the acts specified in the constitution, congress may choose any means, not prohibited by the constitution, to carry out its lawful authority. i. Ex. Constitution doesn’t say congress has power to create a bank of the united states but congress can create one as a means to carrying out many of its other powers

4. Congressional Implied Powers a. Structure and purpose, not just text 5. Necessary and Proper Clause (Article I, §8 clause 18) a. Congress has 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. b. Necessary means useful, desirable 6. Affirmed Marbury v. Madison that judiciary has power to review the constitutionality of federal laws. 7. Holding: The state may not tax the bank of the US (Federal Bank) because such exactions could greatly impede its operation and potentially even tax it out of existence. 8. QUIMBEE RULE: The Constitution specifically delegates to Congress the power to tax and spend for the general welfare, and to make such other laws as it deems necessary and proper to carry out this enumerated power. Additionally, federal laws are supreme and states may not make laws that interfere with the federal government’s exercise of its constitutional powers. National Federation of Independent Business v. Sebelius Affordable Care Act 1. Necessary and proper clause must be used in conjunction with a valid exercise of another power of congress. a. Individual mandate is not a valid exercise of congress’s commerce power, and therefore the necessary and proper clause could not be used as the basis for enacting it. b. “Congress can regulate interstate economic activity but CANNOT regulate interstate “inactivity.”

Commerce Power Gibbons v. Ogden “Interstate Commerce Clause” 1. Commerce is intercourse a. includes all phases of business, including navigation 2. “Among” means intermingled with. TIG: Like when States have business with one another. a. Ex: Heart of Atlanta Motel v. US, Katzenbach v. McClung, o Sup. Ct. said “the easier to move across state lines for individuals and goods,  the wider the scope of Congress’s power to regulate commerce. BUT… the “substantial effects” test remains the law today. In Gozalez v Raich, Sup. Ct. said Congress had the power to prohibit 1 single individual from growing marijuana plant in her own back yard for her own consumption bc that economic activity in the “aggregate” substantially effects interstate commerce. o Sup. Ct. recently has said, “Interstate commerce clause” CANNOT regulate NONECONOMIC activity. “No guns in schools zone”… Guns are commerce. Walking them around isnt. Congress can't regulate… 3. Congress may regulate conduct within a state so long as it extends to or affects other states. 4. Congress has complete authority to regulate all commerce among the states a. Sole check on congress is the political process

b. TIG: Congress has exclusive authority, to regulate interstate commerce, and that authority completely excludes the states’ regulation.

1887-1937- Narrow Commerce Power 1. Commerce does not include manufacturing and production 2. Among the states- Direct effect on interstate commerce only; indirect effects not included th

3. 10 amendment zone of activities preserved to the states (even federal laws within the scope of commerce clause were unconstitutional if they invaded that zone) 4. Dual Federalism- federal and state government were separate sovereigns, each had separate zones of authority a. judicial role to protect the states by interpreting and enforcing the constitution to protect the zone of activities reserved for the state b. 3 Doctrines i. “Commerce” narrowly defined as to leave a zone of power to the states: commerce is one stage of business, distinct from mining, manufacturing, production ii. “Among the states” restrictively defined as allowing congress to regulate only when there was a substantial effect on interstate commerce. th

iii. 10 amendment reserved a zone of activities to the states and that even federal laws within the scope of commerce clause were unconstitutional if they invaded the zone. c. Economically conservative and this aggressive in striking down economic regulation d. Morally conservative and thus deferential to laws directed at what was perceived as sinmore willing to regulate moral issues 1937-1990 Broad Commerce Power 1. Commerce – a. includes manufacturing and production b. Not limited to trade c. Power is plenary 2. Among the States a. Activity can be reached as long as it has substantial effect on interstate commerce (Wickard, 1942) i. Wickard Aggregation Principle b. Close and substantial relation (Jones) th

3. 10 Amendment a. A reminder of express or implied powers of Congress; not a reserved zone for the states (Darby, 1941) 4. 3 key decisions changing the Commerce Clause Doctrine a. NLRB v. Jones & Laughlin Steel Corp

i. National Labor Relations Act – created a right of employees to bargain collectively, prohibited unfair labor practices such as discrimination against union members and established the NLRB to enforce the law. Court held: The power to regulate commerce is the power to enact “all appropriate legislation” for its “protection or advancement”; to adopt measures “to promote its growth and insure its safety”; “to foster, protect, control, and restrain.” That power is plenary and may be exerted to protect interstate commerce “no matter the source of the dangers which threaten it. ii. Test here: Although activities may be intrastate in character, if there is industrial strife, that is enough interrelation that congress can reach that iii. QUIMBEE RULE: Congress may regulate labor relations under its Commerce Clause power because labor relations have such a close and substantial relationship to interstate commerce that their control is essential to protect that commerce from burdens and obstructions. b. United States v. Darby i. Fair Labor Standards Act (FLSA) – prohibited the shipment in interstate commerce of goods made by employees who were paid less than the prescribed minimum wage ii. Holding: The prohibition of the shipment interstate of goods produced under forbidden substandard labor conditions is within the constitutional authority of congress. iii. 10th amendment is simply a reminder that for congress to legislate it must point to express or implied power– no longer seen as reserving a zone of activities for exclusive state control iv. QUIMBEE RULE: Congress may regulate the labor standards involved in the manufacture of goods for interstate commerce and may exclude from interstate commerce any goods produced under substandard labor conditions. c. Wickard v. Filburn (steiner likes!!) listen to last 15 mins of 02/08 i. Agricultural Adjustment Act – the secretary of agriculture set a quota for wheat production; each farmer was given an allotment. ii. Filburn grew excess wheat for home consumption iii. Holding: upheld the Act to homegrown wheat because although Filburn’s wheat only had a negligible impact on interstate commerce, the cumulative effect of homegrown wheat would have a substantial effect on interstate commerce. iv. TIG: Aggregation Doctrine: “What the activity, in aggregate, impose a substantial effect on interstate commerce? 02/08 3:55PM  Bc there was too much “wheat” being produced (overstock of wheat), the Sup. Ct. said if Filburn didn’t produce his own wheat, he would be buying wheat from the overstock already affecting markets. So Congress is allowed to put quotas on how much wheat you can produce for yourself.  Wheat/corn: you can't makret it, you can use it at home, + you can feed it to your cows…if congress can't regulate home grown wheat, … then they can't regulate wheat! (commerce of wheat) v. QUIMBEE RULE: Congress may regulate local activity if that activity exerts a substantial economic effect on interstate commerce.

Civil Rights Laws 1. Title II: Bans discrimination on the basis of race, religion, or national origin in any place of Public Accommodations 2. Title VII: Bans discrimination on the basis of race, religion, or national origin or sex in Employment 3. Rational Basis- The government need only show that the challenged classification is rationally related to serving a legitimate state interest. 4. Heart of Atlanta Motel, Inc. v. United States a. Motel had a policy refusing to provide accommodations to blacks. b. Upheld the constitutionality of Title II of the Civil Rights Act – Prohibited discrimination by places of public accommodation. c. Interstate commerce was affected Bc the hotel had interstate travelers/guests:  advertised in national media  it was situated conveniently next to Interstate highways  and approximately 75% of its business came from out of state guests d. Congress’ power to regulate commerce includes the “regulation of local incidents of commerce that have a substantial relation to the interstate flow of good.”  “Racial discrimination has a disruptive effect on interstate travel by substantially discouraging travel by African Americans.” e. Unavailability of adequate accommodations interferes with interstate travel and Congress has power to remove such obstructions and restraints. Evidence shows racial discrimination has a disruptive effect on commercial intercourse. The power of congress to promote interstate commerce also includes power to regulate local incidents, including local activities in both states of origin and destination, which might have a substantial and harmful effect upon the commerce. f. QUIMBEE RULE: Congress may enact regulations that prevent racially discriminatory policies in hotel accommodations because of the negative effects of those policies on interstate commerce.  There doesn’t have to be an impact on commerce for Congress to have the power to regulate discrimination. Why? Bc Section 5 of 14A says “The Congress shall have power to enforce. By appropriate legislation, the provisions of this article. 5. Katzenbach v. McClung a. Upheld the application of the Act to a small business: Ollie’s BBQ who didn’t allow African Americans to dine in. b. A restaurant effects interstate commerce if it serves interstate travelers, or if a substantial portion of its food comes from another state. c. Congress had a rational basis to conclude that discrimination by restaurants cumulatively had an impact on interstate commerce d. QUIMBEE RULE: Congress may regulate the discriminatory policies of restaurants through Title II of the Civil Rights Act if those policies have a substantial effect on interstate commerce. 6. Heart of Atlanta = MOTELS (Congress CAN enforce no discriminatio...