Constitutional Law Fall 2012

Step-by-Step Analysis

Always, Marbury v. Madison allows for Judicial Review of the current controversy.

Commerce Clause Power (Pages 7-18)
Congress has the authority to regulate commerce among the States. Regulation of
commerce is the buying and selling of goods and services and the regulation of the routes
through which they move in trade.
When regulating commerce, Congress may use any means that is rationally related to the
objective Congress is trying to achieve, and is not specifically forbidden by the
Constitutionpursuant to the Necessary and Proper clause. [McCulloch v. Maryland]
The Court from 1937 to 1995 never held a law to exceed Congress power under the
Commerce Clause. US v. Lopez marked a shift in the Courts view about the Commerce
Clause.
Under the holding from U.S. v. Lopez the court held there are three categories in which
Congress can regulate Commerce.
Congress may regulate the channels of interstate commerce. (i.e. the routes).
o Cases: Gibbons v. Ogden pg. 7
The instrumentalities of interstate commerce including the persons and
things in interstate commerce.
o Cases: Gibbons v. Ogden pg. 7, Shreveport Rate Cases, pg. 10 etc.
Intrastate economic activities that have a substantial effect on interstate
commerce in the aggregate. [Need Necessary and Proper Clause here].
o Two step process:
Is the activity economic? Gonzalez v. Raich pg. 16 Yes. US v.
Morrison pg. 16 No. US v. Lopez pg. 14 No.
Is there a substantial impact on interstate commerce?
Gonzalez v. Raich Yes. Wickard v. Filburn pg. 12 Yes.
Possibly, check to see if class rationale can be applied from Perez pg. 13-14.
Possibly look to see if Congress has established a jurisdiction hook like after Lopez,
Congress amended the law to ban any gun that had been a part of interstate commerce
could not be within 1000 feet of a school zone. This is okay because Congress is regulating
an instrumentality or article of commerce not merely the presence of a gun.
Extra Question to Consider For Category 3
Is Congress trying to regulate an area traditionally left to the states?
o Look for some examples Family Law/General Criminal Law/Education
Is Congress regulating an area that is better handled by a national policy? Or is it
something that can be solved in many ways i.e. Education funding.
o Gonzalez v. Raich National Policy for regulating a drug.
Final Question to Consider for Commerce Clause Is Congress forcing an
individual/actor to participate where they havent been participating before? (National
Federation of Independent Business v. Sebelius).
If yes, then it violates the commerce clause.
No, then it is fine.
Relevant Commerce Clause Cases:
Gibbons v. Ogden Steamboat License/Waterways = Commerce (7)
EC Knight Manufacturing is not Commerce (11)
Lottery Tickets Case Commerce may bootstrap moral integrity (10)
Hammer v. Dagenhart Child Labor Case (10)
Shreveport Rate Case Intrastate Rail Pricing (10)
Stafford v. Wallace/Swift & Co. Stream of Commerce/Stockyards (10)
Schechter Poultry Struck down FDRs Plan (11)
NLRB v. Jones & Laughlin Steel labor dispute (11)
US v. Darby Fair Labor Standards Act (12)
Wickard v. Filburn Aggregation of local activity
Heart of Atlanta Motel Discriminatory Hotel (13)
Katzenbach v. McClung Discriminatory Local BBQ (13)
Perez v. US Loan Sharking Case (13)
Lopez Struck down Gun Free School Zone Act (14)
US v. Morrison Struck down the Violence Against Women Act (17)
Gonzalez v. Raich Local aggregation of marijuana cultivation (17)
Dormant Commerce Clause (use if a state is regulating commerce)
The mere existence of the federal commerce clause power restricts the states from
discriminating against, or unduly burdening interstate commerce.
A state regulation of interstate commerce must meet three requirements in
order to satisfy the dormant commerce clause:
o The regulation must pursue a legitimate state interest
A states own economic interests or the economic interests of
its citizens above out-of-staters, it is not a legitimate interest.
Restricting the export of resources/goods, limiting the
importing of resources/goods, forcing out-of-staters to
do work in the state, environmental regulations that
restrict other states are all usually not legitimate.
Health/Safety/Welfare objectives are usually legitimate but
cannot use it to disguise an economic interest. Additional
inspection is usually not legitimate.
o The regulation must be rationally related to that legitimate state
interest; and
o The regulatory burden imposed by the state on interstate commerce
must be outweighed by the states interest in enforcing its regulation.
(No undue burden).
Balancing test, but if there is a much less restrictive way to
achieve the same result the Court will find the state is violating
the dormant commerce clause.
Taxation on interstate commerce is not legitimate either, violates the
Commerce Clause. It is either discriminative of interstate commerce or too
burdensome.
Exception
If the state is a market participant owns a cement plant it can favor the interests
of in-staters over out-of-staters.
Also, exception if the Federal Government has consented to states having control
over the area. (Insurance regulation)
Finally if the state law looks like it does not violate the dormant commerce clause, then
determine if Congress has preempted State/Local action?
Ask does the statute directly conflict with a federal statute or valid federal
regulation?
Examples: Cant obey both laws, Inconsistent Objectives (Marijuana
Legislation).
Yes, preempted.
No, next question.
o Has Congress (even though silent on the precise issue the state is regulating)
manifested an intent to occupy the entire field that the state regulation
concerns?
Examples: Immigration, Broad Regulatory Scheme (Nuclear Power),
Agency with Broad Regulatory Power (FCC)
No, not a preemption by federal action.
Yes, preempted.
Taxation Power (pages 18 19)
Congress has the power to lay and collect taxes, for the general welfare. This power is
independent of other Article I powers such as the Spending Power or the Commerce Clause
Powers, and can reach conduct that those sources cannot.
Regulating Congress can probably regulate under the guise of taxing, so long as theres
some real revenue being produced. As long as the measure performs like a tax (allows a
rational person to choose to pay the tax or comply) and doesnt compel compliance with
the measure, it should be a valid use of the tax power.
Bailey v. Drexel Furniture (Child Labor Case) originally said Congress could not
impose a tax because they could not regulate production of goods under their enumerated
powers. (Congress can only penalize if it can already regulate it). Now, obviously, there is
no distinction between production and commerce.
McCray v. US held the Taxing Power knows no limits but those expressly stated in
the Constitution.
US v. Doremus distinguished from Bailys rejection of tax for being a penalty
National Federal of Independent Business v. Sebelius (see below).
Limits on Taxing Power
Direct taxes must be allocated among the states in proportion to population. Little
importance today.
Custom Duties and Excise Taxes must be uniform cant charge different rates in
different states (Example: a 10 cent tax in MI and a 15 cent tax in Illinois for
gasoline).
No Export taxes on the states.
Effect of Calling a Measure a Penalty The fact that Congress labels a measure as a
penalty does not prevent a measure from being upheld held as a valid tax, as long as the
measure functions in a manner that resembles a tax [NFIB v. Sebelius]
Example: In the 2010 Affordable Care Act, Congress requires most individuals to
purchase health insurance, even if they have previously chosen to self-insure.
(This is the individual mandate). If a covered person doesnt make the required
insurance purchase, she must pay the IRS at tax-filling a shared-responsibility
payment which the Act repeatedly characterizes as a penalty rather than as a tax.
If a person doesnt make the shared-responsibility payment the IRS can use some of
its standard tax-collection methods, but cannot bring a criminal prosecution.
o Held: The individual mandate and the shared responsibility payment scheme
is a valid exercise of Congress taxing power. If a federal statute that would be
unconstitutional unless found to be a valid tax, the Court will treat it as a tax
as long as the interpretation is a fairly possible one. The process here
yields the essential feature of any tax: it produces at least some revenue for
the Government. And the fact that Congress called this a penalty rather
than a tax is not dispositive, because the Court will look at the reality of
how the scheme operates, not the label used by Congress. Here, the payment
to the IRS would typically be far less than the price of insurance, making it
look more like a tax (which a rational person might voluntarily choose to pay
instead of buying insurance) than a penalty for unlawful conduct. Also, by
prohibiting criminal prosecutions for non-payment (and by not referring to
the failure to buy insurance as unlawful), Congress has again made the
payment seem more like a tax than a penalty for wrongdoing.
The four dissenters would hold that where Congress designates a
payment as a penalty rather than a tax, that should by itself be
enough to prevent the scheme from being authorized by the tax-and-
spend power.
Spending Power (Pages 20 21)
Article 1, 8, Clause 1 Constitutionally, congress may raise money to pay the debts and
provide for the common defense, and general welfare of the United States.
Congress is allowed great deference to determine what the general welfare is and
spend accordingly.
Congress is restricted when it attaches conditions to receive money.
o Four criteria must be met according to South Dakota v. Dole)
Spending power must be exercise in pursuit to the general welfare.
Conditions on federal grants must be related to the federal interest.
Any conditions by congress on state receipt of funds must be
unambiguous.
No external restraints on spending.
Additional cases:
US v. Butler
Steward Machine Co. v. Davis
National Federation of Independent Business v. Sebelius
New York v. US (page 29)
Separation of Powers (6,13, 15, 31 42)
First, look to see if any of the branches are doing something that one of the other branches
should be doing. (No branch is interfering with the essential role of another branch).
Second, look to make sure Congress is not improperly delegating power.
Two approaches:
Formal Approach in INS v. Chadha (37, 39) where the formal procedures were
violated because no presentment or bicameralism was performed.
Functional Approach in Morrison v. Olson (41) purpose of the separation of
powers is to guarantee against tyranny.
Three Branches and Powers
Congress and its powers:
o Interstate Commerce Congress has the power to regulate interstate
commerce, as well as foreign commerce.
o Taxing and spending Congress has the power to tax and the power to spend.
o DC Congress can regulate the District of Columbia. (MacDonald v. Chicago).
o Federal property Congress has power to regulate and dispose of federal
property.
o War and defense Congress can declare war, and can establish and fund the
armed forces.
o Enforcement of Civil War amendments Congress can enforce the post-Civil
War amendments. (Congress can ban slavery, even among private citizens
and institutions).
President and his powers:
o Execution of laws President holds the executive power. That is, he carries
out the laws made by Congress. It is his obligation to make sure the laws are
faithfully executed.
o Commander in Chief He is Commander in Chief of the armed forces. So he
directs and he leads our armed forces (but he cannot declare war only
Congress can do this).
o Treaty and foreign affairs The President can make treaties with foreign
nations (but only if two-thirds of the Senate approves). He appoints
ambassadors, but much is simply implied from the nations need to speak
with a single voice in foreign affairs (so that congressional involvement in the
details of foreign affairs will generally not be appropriate).
o Appointment of Federal Officers President appoints all federal officers.
These include cabinet members, federal judges and ambassadors. (Senate must
approve the appointments).
As to inferior [federal] officers, it is up to Congress to decide
whether these should be appointed by the President, by the judicial
branch, or by the heads of departments (i.e., cabinet members). (But
Congress cannot make these lower level appointments on their own;
it may merely decide who can make these appointments).
o Pardons President can give pardons, but only for federal offenses. (Cant
pardon those convicted or impeached).
o Veto President may veto any law passed by both houses (though this veto
can be overridden by a 2/3s majority of each house). If the President does
not veto the bill within 10 days after receiving it, it because law (unless
Congress has adjourned by the 10
th
day after it sent him the bill this is the
pocket veto).
Judiciary and its powers:
o The federal judiciary may decide cases and controversies that fall within
the federal judicial power (Article III).
Delegation and Non-Delegation Doctrines Pages 37-38 Cases are there as well.
Appointments (page 40)
The President, not Congress, is given the power to appoint federal executive officers.
This is the Appointments Clause.
o Text of Clause: Article II 2
o Interpretation The Clause means, in the most general sense, that Congress
may not appoint executive-branch or judicial-branch federal officials.
o Principal Officers In the case of principal officers of the US, the President
nominates a candidate, and the Senate must, as a constitutional matter,
decide whether to approve the nomination. As to such officers, congress may
not take away or limit the Presidents right of appointment.
Cabinet members: Principal executive-branch officers are people who
have no boss except for the President. Members of the Cabinet and
ambassadors are the main examples of such officers.
o Inferior Officers In the case of inferior federal officials, Congress does have
the right to limit the Presidents right of appointment (because the final
sentence of the clause says that 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 Department.
Three possible appointers Congress cannot itself make
appointments of inferior officers, it has the right to choose, on a
position-by-position basis, to confer the power of appointment on any
of the following: (1) the President; (2) the federal judiciary; or (3) the
heads of departments (e.g. Cabinet members).
Congress cannot appoint anyone, only delegate appointment power.
Removals (page 41)
The power to remove federal officers similarly rests mainly with the President.
o The general rule is the President may remove any presidential or executive-
branch appointee without cause.
o Principal Officers Thus Congress may not limit in any way the Presidents
right to remove a principal purely-executive-branch appointee, such as a
Cabinet member or ambassador.
Congress has more freedom to limit the way that both principal and inferior officers
may be removed. In general, Congress may say that these officers may be removed
by the President or his subordinate for cause. [Free Enterprise Fund v. Public
Oversight Accounting Board]
o Independent Agency Head if Congress wishes to insulate the position from
the Executive it will impose the good cause. [Morrison v. Olson].
o Inferior Officers Cannot infer two levels of good cause protection. [Free
Enterprise Fund v. Public Oversight Accounting Board].
Treaty Power
President has the power to enter into a treaty with a foreign nation, but only if two-
thirds of the Senate approves. (Supreme Law of the Land).
o Additionally, the Court has held that the Constitution implicitly gives the
President, as an adjunct of his foreign affairs powers, the right to enter into
an executive agreement with a foreign nation, without first getting express
congressional consent.
Instructing the court how to determine outcomes
Congress cannot instruct the Judiciary how to determine cases; this is a violation of the
separation of powers.
US v. Klein telling court what the presidential pardon was meant to infer.
City of Borne v. Borne told Court what standard of review to use when
determining free exercise cases.
If congress passes legislation, state courts are required to hear the cases.
Federalism (10, 13, 27-31)
The most important principle in this whole are is that the federal government is one of
limited, enumerated powers. The three federal branches can only assert powers specifically
granted to them by the Constitution. So any time, Congress passes a statute, or the
President issues an Executive Order, or the federal courts decide a case, youve got to ask:
What is the enumerated, specified power in the Constitution that gives the federal
branch the right to do what it just did? [Different from State governments, which can
do whatever they want as far as the Constitution is concerned, unless they are doing
something expressly forbidden by the Constitution].
Federal Government must be acting within its bounds. There is no general police
power (i.e. the ability for the federal government to regulate for the health, safety or
general welfare of the citizenry) instead Congress scan only regulate through its
enumerated powers (Commerce clause, the power to tax and spend, etc.).
o Only the powers to tax and spend have the phrase to provide for the general
welfare attached to them.
The Tenth Amendment (Limits Congress Power)
If the fact pattern leaves room for the states to act, then you know that federalism has
been preserved.
If Lopez is satisfied Congress can regulate aggregate economic activity through rules
of general applicability [Garcia].
Congress can regulate the States when they are acting as a general employer e.g.
running a cement factory
Provides 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. Small, but
possibly significant limit on congress ability to use its Commerce power to regulate
the states.
o Does prevent Congress from interfering in certain ways with a states law-
making processes. Congress may not simply commandeer the legislative
processes of the states by directly compelling them to enact and enforce a
federal regulatory program. ~ [New York v. United States].
Cannot force states to act, or enforce a federal regulatory program.
[New York v. US].
o Congress cannot commandeer a states executive branch to administer
federal laws. [Printz v. US page 30].
So long as Congress has merely passed a generally applicable law, this law can apply
to the states just as it does to private individuals, and there is no violation of the 10
th

Amendment. [Reno v. Condon page 30][Garcia v. San Antonio Metro Transit
Authority page 31]
Traditional Areas left to states (Police Powers)
Although Congress does not have general police powers, the individual States do.
Equal Protection (42- 63)
First, question is the government classifying groups of people by its action?
o If yes, you have to do an equal protection analysis.
Is the State discrimination intentional?
o Knowing about the effects and doing it anyway is not enough for intent. If no
intent Rational Basis Review.
Classifications
o Race (footnote from Carolene Products & Korematsu)/Ethnicity(Rice v.
Cayetano), National Origin, Alienage classifications receive strict scrutiny
review.
*Exception Alienage classifications that related to self-government
and the democratic process (rational basis), congressional
discrimination against non-citizens (rational basis), and
discrimination against undocumented alien children (intermediate
scrutiny).
Also, possible it is a fundamental right being interfered with like:
access to the court, right to vote, right to be a political
party/candidate.
o Gender classifications receive intermediate scrutiny review (Craig v. Boren).
~ makes it easier to remedy than racial discrimination.
Gender, like race, is a suspect classification because:
There is a history of discrimination against women;
Gender is an immutable and highly visible trait;
Gender is frequently irrelevant.
o All other discrimination only receives rational basis review.
Age, Disability, Wealth, Economic Regulations, Sexual Orientation
(with a bite).
Legislation that targets an unpopular minority group is never
legitimate nor is legislation based purely on morality.
How they may be classified in the law.
o Classification exists on the face of the law. (Easiest).
Example: A West Virginia law saying only white men can serve on
juries.
o The law is facially neutral (now must prove the discrimination).
The law must have a discriminatory impact and discriminatory intent.
Example: Washington v. Davis discriminatory impact, but no
discriminatory intent.
o Yick Wo v. Hopkins both requirements found.
o Tuskegee gerrymandering case.
Adopted because of the impact not in spite of its impact.
Standards of review
o Strict Scrutiny Review A law will be upheld only if it is necessary to achieve
a compelling government interest. OConnors Mantras for Strict Scrutiny.
Doesnt matter if the measure is invidious or beneficial, it always
triggers strict scrutiny.
Only 3 compelling government interests:
Winning WWII
Remedying past discrimination
o To remedy past discrimination there must have been
past intentional action by the government to
discriminate, and it must be found by a competent
factfinder. (Bakke, Croson)
Diversity in Universities/Higher Education
Necessary means narrowly tailored, and there is no more less
restrictive alternative to achieve its goal.
o Intermediate Scrutiny A law is upheld if it is substantially related to an
important government interest.
o Rational Basis Test A law is upheld if it is rationally related to a legitimate
government interest.
Legitimate is something that is not unconstitutional, not malicious
towards a group (Romer) or if it is completely arbitrary or irrational
(City of Cleburne). Actual purpose does not even have to legitimate
just something conceivable.
Rationally related tremendously deferential to the government.
Challenger has burden of proof, almost always loses.
Affirmative Action as a Remedy
Strict Scrutiny is applied for race. (Richmond v. Croson).
o Only valid for seeking to redress past discrimination. Just seeking a balanced work
force, or to get racial diversity (in schools it probably is) is not enough.
There must be clear evidence that discrimination occurred in the past by the
government/whoever is trying to remedy the past discrimination. Societal
discrimination is not enough.
o Quotas are never upheld as a narrowly tailored means.
In education:
o Grutter v. Bollinger
o Gratz v. Bollinger
The pursuit of diversity in the student boyd can be a compelling objective;
A one-student-at-a-time evaluation in which student race is merely one factor
among various ones considered is sufficiently narrowly-tailored but
Mechanical approaches resembling quotaslike automatically awarding fixed
points towards admission based on raceare not narrowly tailored and
therefore violates equal protection. (Plus factor in holistic approach is okay).
Check 5 of the 14
th
Amendment applies when Congress Acts (22, 25, 26)
Strict Scrutiny Discrimination Cases:
Yick Wo v. Hopkins Infer intent from implementation of the law. (Dry Cleaners)
(54)
Gomillion v. Lightfoot Tuskegee Gerrymandering/Clearly racial redistricting (54)
Palmer v. Thompson Closing of city pools, No disparate impact (54)
Washington v. Davis Effects are not enough alone, need intent. (53)
Affirmative Action Cases:
Regents v. Bakke Hard Quotas not allowed. (56)
Fullilove Federal program for minority contractors was okay. (57)
Richmond v. Croson Need Remedial or Valid Prospective Goal. (57)
Adarand Constructors Strict Scrutiny for Everything (56)
Grutter v. Bollinger Holistic + Program works (57)
Grantz v. Bollinger Fixed Numerical Values Not Okay (57)
Parents Involved Cant use race to mix schools (58)
Gender Cases:
Upheld:
o Physical Differences
Michael M. Only Men Qualify as Rapists (61)
Parham Wrong Death Suit for Mother, not Father who wasnt around
(61)
Rosktker Women dont need to register for the draft. (62).
o Remedies for Past Discrimination
Kahn v. Shevin Widows exempt from tax (61)
Califano v. Webster Social Sec. Calculation for Women(61)
Ballard Shorter Male Officer Promotion Period versus Womans (61)
o Disparate Impact
Feeney Vet. Preference for Civil Service Jobs (53)
Geduldig No Disability Coverage for Pregnancy. (61)
Struck Down
o Denial to Women of Opportunities given to Men:
Reed Used to be Rational Basis Review (59)
US v. Virginia VMI (public) only let in men (60)
o Denial to Men of Opportunities Given to Women:
Hogan All female Nursing School (60)
Craig v. Boren Different M/F drinking ages (59)
o Classifications Based on Role Stereotypes:
Frontiero Presumption Servicewomans Dependent (59)
Weinberger Soc. Sec. Widow Benefits only (60)
J.E.B. Sex-based Juror Challenges (61)
Stanton Child Support Max Age Discrepancy (60)
Rational Basis Cases:
USDA v. Moreno Hippie Food Stamps (48)
Hernandez v. NY Jury Race discrimination fine unless used a proxy for race. (53)
City of Cleburne Mentally disabled not a suspect class (48)
Romer v. Evans Constitutional Ban on Gay Anti-Discrimin. Laws (49/61)

Substantive Due Process (64 68)
First, Question is does the government regulation significantly interfere with a persons life,
liberty or property?
Fundamental Rights that trigger strict scrutiny analysis:
o Right to marry (Palmore v. Sidoti) (Zablocki v. Redhail)
o Right to procreate (Skinner v. Oklahoma)
o Right to custody of ones children (Michael H. v. Gerald D.)
o Right to keep family together (Moore v. City of East Cleveland)
o Right to purchase and use contraceptives (Griswold v. Connecticut)
o Right to control the upbringing of ones child (Sherbert v. Verner)
o Right to travel Privileges or Immunities Clause 14
th
(Sines v. Roe)
o Right to vote.
o 2
nd
Amendment Incorporation (McDonald v. Chicago)
Right to an abortion does not trigger strict scrutiny, but still is a right Prior to
viability the government can regulate abortion so long as it does not place an undue
burden on the women. (Planned Parenthood v. Casey downgrade from Roe v. Wade)
o Bring up OConnors stare decisis if necessary.
Right to engage in private consensual adult homosexual activity only triggers
rational basis review.
There is not right to physician assisted death (Washington v. Glucksburg)
Education is not a fundamental right either. (San Antonio Ind. School Dist. v.
Rodriguez)