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Con Law Outline Professor K. Phillips Judicial Branch [Art. III] SC Review of Executive and Legislature  Marbury v. Madison o Established Judicial Authority [aka Judicial Review].  Not unlimited  Relies on the system of checks and balances  Relies on the concept that the other branches voluntarily comply with SC orders o Defined the roles of each branch of gov.  Art. III of The Const. provides the SC w/ original and appellate jurisdiction  Original jurisdiction includes: o Ambassadors o Other Public Ministers o Consuls o Vice Counsels of Foreign States o Where a State is a party  State v. US  State v. Citizen of State  State v. Citizen of another State  State v. Alien  State v. State  Original jurisdiction cannot be changed by Congress  Appellate jurisdiction is: o determined by Congress through the Exceptions and Regulation Clause o may include both State and Federal Cases  Cooper v. Aaron: Established through the Supremacy Clause that the Constitution is the Supreme Law of the Land  Rule of Four: SC will only hear a case if at least four Justices vote to hear it. o Only other way to get Appellate review is from a three-judge court  The number of these courts have been significantly curtailed SC Review of State Court decisions  Fletcher v. Peck: first case where the SC struck down a State law  Martin v. Hunter’s Lessee: SC has the power to review a judgement of a State Court when Federal Constitutional issues are involved.  Cohens v. Virginia: Criminal D’s can seek SC review when they claimed that their conviction violated the Constitution [Habeas cases] o State Court judges were often swayed in their decisions b/c they held elected positions and were at the mercy of the Legislature. Thus, SC review allows for this risk to be decreased. Judicial Power/Authority Limited  Originalist: the view that judges deciding constitutional issues should confine themselves to enforcing norms that are stated or clearly implicit in the written constitution. o if the Const. is silent, the legislature should decide the law → not the courts.  Non-originalists: believe the Const. is a living doc.; free to interpretation as the times have changed. o Essential so the Const. does not remain virtually static and can evolve to meet the needs of a morally and technologically advancing society.  Interpretive Limits: raise the question of how the Const. should be interpreted. o What does the text specifically say?

Con Law Outline Professor K. Phillips What is the structure/context of that text What do the other provisions in the Const. say? Dictionary use of the terms in the text [1776 v. present] Natural/Historical meaning [meaning when the provision was written] Deleted Text before the Const. was established  Very controversial o What do other State Const. say? o Purpose of putting the word into the text o Drafting history  not every framer commented on the words that are used. o Scholars interpretation o International law o Precedent o Intent of the framers o Sociological Evidence [Statistics]  Very controversial as well o Traditions o Grammar Congressional Limits: the ability of Congress to restrict Federal Court Jurisdiction [specifically, SC Appellate Jurisdiction] o Art. III bars Congress from telling a Court how to apply pre-existing law  Congress may amend and make the amended prescription retroactively applicable in pending cased  Congress may pass new laws that might reverse a current law and make the new law applicable in existing and future cases Justiciability Limits: a series of judicially created doctrines that limit the types of matters Federal Court can decide o Prudential Requirements → can be changed b/c limits are set by the court  No third-party standing: Must be actual injury to individual  Unless the relationships are so intertwined that the arguments can be developed between the person suing and the third party  Unless the ability of the third party to assert his/her own rights to sue is limited  No taxpayer/citizen standing: Must be actual injury to individual  Exceptions: Flast v. Cohen: taxpayers have standing to challenge gov. expenditures as violating the Establishment Clause o Must be able to establish that there is a logical nexus between the status asserted and the claim sought to be adjudicated which assures that P is a proper and appropriate party to invoke federal judicial power. o Constitutionally Required → cannot be changed  Case/Controversy Requirement: the federal courts may not hear just any matter  Can only hear concrete issues  Prohibition of Advisory Opinions: to other branches of the government  Separation of powers: The Court cannot be reinterpreted by another branch of government and vice versa.  Rule of Finality: Congress cannot force the Judiciary to reopen and rehear already settled/closed cases.  Standing: Must be able to demonstrate: o o o o o

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Con Law Outline Professor K. Phillips Imminent or actual injury to the individual o Cannot file on behalf of a third-party o Injury cannot be in the future or hypothetical  Causation o Must be fairly traceable to the sued party  Redressability o Court must be able to provide a remedy o Remedy provided must meet what P is seeking in the suit o Remedy must make sense  **If suing multiple parties, a party may have standing for one and not the other Ripeness: The case/controversy must be ready for judicial review  Ripe if a law will inevitably be enforced at some point against some one  Only applicable to equitable remedies  A case is not ripe if: o Prosecution for a crime cannot be shown o Is based on future or hypothetical injuries o Fitness of litigation is not appropriate o There will not be hardship endured by the parties by withholding litigation o Not a purely legal issue o Impact of the regulation upon P is not direct and immediate Mootness: case was ripe at one point, but something has occurred while the suit was pending to end P’s injury  Not moot when o The remedy has not already occurred o Repetition of an issue will continue  Think Roe v. Wade o D voluntarily ceases the allegedly improper behavior, but is free to return to it at any time o Properly certified class action suit may continue even if the named P’s claims are rendered moot. Prohibition of Political Questions → will never be tested on this  There must be separation of powers o Applies in instances when  the other branches of government are intended to resolve issues by the Constitution  the other branches are more suited to resolves issues than the judiciary  Instances that might be political o Constitutionality/legality of combat operations o Issues involving the Guaranty Clause  Guaranteeing the people a republican form of government o Recognition of foreign governments and most foreign affairs issues  Instances that might not be political o If the House can only exclude based on the grounds set forth in Art. I § 5.  Congress is the judge of the qualifications of its members, but those qualifications cannot be changed to revoke an elected official, if at the time of an election that’s how they remained. 

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Con Law Outline Professor K. Phillips

Federalism and Federal Legislative Power Federalism: National government and state government co-exist  Must watch whether some power being asserted by the federal govt is in fact allowed under the Constitution  Must watch whether some power asserted by the states is limited in favor of federal power  Separate governmental entities 10th Amendment: The powers not delegated to the US by the Constitution, nor prohibited by it to the states, are reserved to the states respectively or to the people Evaluating Constitutionality of Any Act of Congress:  Does Congress have the authority under the Constitution to legislate? o Article I Section 8 = enumerated power  If so does the law violate another constitutional provision or doctrine? Police Power: Each state has the right to regulate based solely on the welfare of their citizens  Federal government has no general police power w/in their enumerated powers Necessary and Proper Clause Congress is given the power to “make all law which shall be necessary and proper for carrying into execution” the specific powers [enumerated powers] Rational Relation Test: If congress is seeking an objective that is within the specifically enumerated powers then Congress can use any means that is 1. Rationally related to the objective Congress is trying to achieve; and 2. Is not specifically forbidden by the Constitution McCulloch v. Maryland  Congress was allowed to establish the Bank of the US b/c it was necessary and proper for raising revenue to carry out overall taxing and spending o Implied from Constitution  Maryland cannot tax the bank b/c federal laws are supreme to State laws National Federation v. Sebelius  Individual Mandate: Constitutional b/c necessary and proper o Fed. Govt. has a right to tax  Medicaid Expansion: Unconstitutional b/c cannot coerce a State into doing something o only encourage  Valid exercise of Congress’ power to tax and spend US v. Comstock  The Necessary and Proper Clause grant’s Congress broad authority so long as the law is rationally related to the implementation of a constitutionally enumerated power o Congress has the power to define federal crimes, and to run a prison system housing for those who commit such crimes Commerce Clause

Con Law Outline Professor K. Phillips Article I Section 8: Congress shall have the power to  lay and collect taxes, duties, imposts, and excises to pay the debts and provide for the common defense and general welfare of the US but all duties, imposts, and excises shall be uniform throughout the US… and  To regulate commerce with foreign nations, and among the several states, and with the Indian Tribes Eras of the Commerce Clause Before 1890: Broad interpretation that defines commerce as intercourse (more than navigation)  Gibbons v. Ogden: A state may not regulate interstate commerce within its borders when Congress also chooses to regulate interstate commerce in the same area o Congress has the power to regulate the interstate commercial activity of steamboats on navigable waters within the state of NY o Since Congress has the power to regulate this activity and NY passed conflicting regulations of the same activity, federal supremacy principles dictate that the federal regulation trumps the State regulation 1890-1937: More narrowly defined commerce → indirect v. direct  Congress cannot regulate purely local activity, only States can o Purely local = manufacturing, production, distribution, wages, working hours o Non-local = operations in all matters having a close and substantial relation to interstate travel  The efficiency of interstate service  The maintenance of conditions under which interstate commerce may be conducted upon fair terms  Congress cannot regulate activities that have an indirect effect on commerce  Congress may not delegate legislative power to the executive w/o outlining strict standards for how the executive is to exercise that power  Congress cannot regulate activity that has a direct effect on production o Child labor laws 1937-1990s: Broad approach on Commerce  NLRB v. Jones: direct effect on commerce if a number of people are affected in different states b/c within Congress’s plenary power under the Commerce Clause o Unfair labor practices  US v. Darby: As long as something is entering the stream, Congress can control under its plenary Commerce Clause powers o Hammer overruled  Wickard v. Filburn: Congress may regulate local activity if that activity exerts a substantial economic effect on interstate commerce o Aggregate effect  Heart of Atlanta Motel: Congress may enact regulations that prevent racially discriminatory policies in hotel accommodations b/c of negative effect those policies have on interstate commerce o Congress may enact the Civil Rights Act as a measure to regulate interstate commerce  Rational basis and reasonableness w/ interstate commerce  Katzenback v. McClung: Congress may pass legislation to enforce the Equal Protection Clause of the 14th Amendment even when the legislation conflicts with State law o Congress had a rational basis for finding that racial discrimination in restaurants had a direct and adverse effect on the free flow of interstate commerce

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Usery: The Fair Labor Standards Act as applied to state employers is unconstitutional as it is in violation of the 10th Amendment when it interferes with traditional state and local government functions o FLSA did not grant authority to Congress to regulate wages, overtime pay, and hours of state government employees o Garcia overruled Garcia v. Metro Transit: Congress may apply the FLSA to govern employment actions of a state municipal transit authority o Usery overruled b/c it’s holding is unnecessary to protect state sovereignty as required by 10th amendment

Since 1990s: narrow approach on commerce clause – revival of 10th amendment as restraint on commerce (congress cannot do what they want)  Lopez: Congress may not, pursuant to its Commerce Clause powers, pass a law that prohibits the possession of a gun near a school b/c doing so has no effect on the economy overall o Does the activity substantially affect interstate commerce?  Morrison: Congress cannot regulate non-economic, violent criminal conduct based solely on that conduct’s aggregate effect on interstate commerce; regulation must be commercial  Gonzales: Activity taken in the aggregate could rationally be seen as having a substantial economic effect on commerce Four broad categories of activities that Congress can constitutionally regulate under the CC:  Channels: of interstate commerce. o Must be in a way that is reasonably related to highways, waterways, and air traffic.  Instrumentalities: of interstate commerce, even though the particular activities being regulated are completely intrastate. o People, machines and other “things” used in carrying out commerce.  Articles: moving in interstate commerce:  “Substantially affecting” commerce: [US v. Lopez] o Activity is Commercial (US v Morrison)  then it doesn’t to matter whether the particular instance of the activity directly affects interstate commerce, as long as that instance is part of a general class of activities, that collectively, substantially affect interstate commerce o Activity is not commercial (US v Lopez)  then there must be a pretty obvious connection between the activity and interstate commerce o Little Deference to Congress (US v Lopez)  Given to the fact that Congress believed the activity has the requisite substantial effect on interstate commerce  Not enough that Congress had a “rational basis” for believing that the requisite effect existed – the effect must in fact exist to the Courts own independent satisfaction o Traditional domain of states (Gonzales v Raich)  If what’s being regulated is an activity which has traditionally been the domain of the state, and the state has expertise in, then the court is less likely to find that Congress is acting within its Commerce power  the fact that the activity has traditionally fallen within the state’s domain can be outweighed by showing that a national solution is needed o Forcing someone to buy or sell a product (Sebelius)

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Congress may not use its Commerce powers to require that a person not presently in the marketplace for a particular type of product buy that product True even if many individuals combined failure to purchase the product significantly affects interstate commerce in the product

10th Amendment Limits the powers not delegated to the US by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the People  

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Garcia v. San Antonio MTA: If Congress passes a generally applicable law, the fact that the regulation affects the states has virtually no practical significance, and the 10th Amendment never comes into play. NY v. US: the 10th Amendment does prevent Congress from interfering in certain ways with a state’s law-making process. o Congress cannot compel the States to enact and enforce a federal regulatory program b/c violates 10th amendment o Congress may offer States the choice of regulating that same activity o Congress may use preemption powers Printz v US: Cannot compel state employees to do background checks that were required by federal regulatory program - Brady Act Reno v Condon: Regulate - to keep from selling - disclosing personal information from DMV Taxing and Spending Clause Congress has a rational basis to use the taxing and spending for the general welfare of the people

Limits  Must be allocated among the states in proportion to population  Custom duties and exercise taxes must be uniform throughout the US  US v. Butler: any power to tax and spend is limited to 10th amendment State sovereignty concerns o Madison: ability to tax and spend to carry out its other enumerated powers o Hamilton: CC gives Congress a wholly separate enumerated power to tax and spend as long as it is in furtherance of the general welfare  Congress has no power to regulate/control Ag. Thus, Congress may not use taxing and spending to accomplish that end  Sabri: Congress has power to spend for general welfare and they can enact, under the Necessary and Proper Clause any provision rationally related to carrying out its spending powers for the promotion of general welfare Conditions given to States  Must be expressly stated [unambiguous]  States have a right to choose  Have some relationship to the purpose of the spending program  Non-coercive or compulsory o Do not violate any other constitutional provision → 10th Amendment Civil War Amendments 13th Amend.: prohibited slavery and involuntary servitude 14th Amend.: State cannot violate Due process & equal protection clause

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Section 5: Congress shall have the power to enforce the provisions by appropriate legislation o Make new laws of any kind, even if it conflicts w/ state law o Congress cannot interpret laws still o Test: 1) was the enactment to enforce a provision of the 14th Amend.? 2) was the enactment plainly adapted to that end? And 3) was the enactment consistent with the letter and spirit of the Constitution? Katzenbach v. Morgan & Morgan: States may not establish qualifications for voting that contradict the US Const. City of Boerne v. Flores: Congress cannot intrude into State’s general authority to regulate for the health and welfare of their citizens. Shelby County, Alabama v. Holder: The current burdens must be justified by current needs

15th Amend.: Citizen of the US have the right to vote and shall not be denied based on race, color, or condition of servitude Congress’s Power to Authorize Suits Against State Governments 11th Amend.: The judicial power of the US shall not be construed to extend to any suit in law or equity, commence or prosecuted against one of the US by citizens of another state or by citizens or subjects of any foreign state. Test: Is Congress acting constitutionally?  Must be clear on the face of the statute that Congress is waiving State immunity  Congress has to be acting under § 5 of the 14th amend. o Cannot be Commerce Clause, Taxing and Spending clause, etc.  Remedy must be congruent and proportional between the injury to be prevented or remedied and the means adopted to that end. o What is the constitutional right at issue?  Fundamental right v. Age/Gender/Race  What level of scrutiny should be applied? o Non-suspect class = rational basis o Suspect class = intermediate scrutiny o University of Alabama v. Garrett  Is there a history and pattern of discrimination by the state(s)? o US v. Georgia  Is there a remedy that is proportional and congruent to the targeted violation?  Majority: cannot do the following o Citizen A v. State A o Citizen B v. State A o Sue State based on Federal Question o Sue State based on Diversity Jurisdict...