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ConLaw Gewirtzman ALL Class NOTES 2014
ConLaw Gewirtzman ALL Class NOTES 2014
Prof. Gewirtzman
4pm Tues/Thurs
PART I: OVERVIEW
Class 1: Introduction to the Constitutional Text; Methods of Constitutional
Interpretation (August 26)
BASICS OF CONSTITUTION:
Where did the Constitution come from?
Who does the Constitution govern?
o State Action Doctrine:
Constitution only applies to government actors
Congress
President
Police officers
Anyone who receives a check from the government
What does the Constitution do?
o (1) Grants, allocates and limits government power (law of lawmaking)
Separation of Powers
Framers desire for new national government/equal concern
for tyranny
Federalism: Federal govt vs. State govt
Individual Rights
o (2) Sets rules for politics
o (3) Pre-commitment device [Ulysses & the Sirens]
Intended as an effort by society at Time 1 to impose restrictions
at a later time (Time 2)
Binds us from temptations to stay away from past
Why??
o We dont trust ourselves (emotions get the best of
us)
o Advances rule of law values: stability, consistency,
predictability (ensures day in and day out that there
is some degree of predictability, with reliance on no
change)
How do we figure out pre-commitments?
o INTERPRETATION
Why is the Constitution different than statutes?
o Foundational text and supreme law (kind of a big deal)
o Ratification process
o Political spotlight
o Text is old
o Multiple interpreters (Judges, President, Congress, individual people)
o Text is vague/ambiguous
Why vague?
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Adaptation
Ratification purposes in order to ratify with people of
different viewpoints, there need to be BROAD concerns
enumerated
METHODS OF INTERPRETING CONSTITUTIONAL TEXT: [Bobbit class exercise]
Victor Victim and the Second Amendment & District of Columbia v. Heller
Historical Argument: Need/Right to Protect oneself [Looks at the original intent
of the framers by looking at notes; articles; state constitution(s) at the time
drafted]
Textual Argument: (looking at the definitions of individual text in the Amendment
in order to frame argument)
o Downside: Different dictionaries provide different meanings
Ethical: Moral commitments embedded in traditional government
Doctrinal: Focuses on precedent (looks at US v. Miller)
Prudential: (Seeks to balance the costs and benefits of the rule).
COURSE ADMINISTRATION:
Office hours: Tues/Thurs 2:30 PM 3:30 PM or by appointment (via email)
For Next Class:
Art III and the Federal Judiciary; Marbury v. Madison; (simulations on
Blackboard*)
CLASS TWO:
I. OVERVIEW OF THE FOUNDING
a. Framers very worried about potential of tyranny (enormously paranoid)
b. In an era where states actually have their own political identities, cultures and
interests
i. Sacrifice of autonomy and identity to another, not given
c. Articles of Confederation: [not on the exam *but important as foundation]
i. Ratified 1871
ii. Article II: Each state retains its sovereignty
1. Alliance among sovereign nation states
2. League of friendship among 13 people
a. Constitution speaks for people of US
iii. Article V: state government appoint representatives; one vote per state
1. Virginia = Rhode Island
a. Gives small states with small populations a lot more
leverage vs. system with house of representatives
2. States levy taxes
a. national govt cannot raise money without the states
b. Congress has limited powers
3. Unanimous Consent for amendments
a. Rhode Island problem they hate everything (virtually
impossible for everyone else to do something about it)
Constitutional Law
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Constitutional Law
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Constitutional Law
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Constitutional Law
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Constitutional Law
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Constitutional Law
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Constitutional Law
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Constitutional Law
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Constitutional Law
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o Vesting Clause:
Inherent in judicial power, ability to interpret law
SC must have power to say what it means
Court claims power to review both executive and legislative acts
Distinction between discretionary and ministerial acts
Art III as a ceiling for the courts original jurisdiction
o John Marshall
Interested beyond politics
Building up SC as new institution and giving national
government some credibility
Create infrastructure allowing preservation
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o Exceptions Clause:
Takeaways:
Unresolved areas of law
Raises important questions about Congress ability to
control the judicial branch
Outcome depends on:
o Interpretation
o Underlying policy
o Interpretations of past precedent
JUSTICIABILITY DOCTRINES:
Ways of constraining scope of judicial power and review
o Serves as an off ramp for federal courts
o Operate before a court hears the case on the merits
o JUSTICIABILITY IS DIFFERENT FROM JURISDICTION
A case can involve a federal question, diversity, but case by not be
ripe/moot, or may be a political question
o Arise from Art. III, Section 2: cases and controversies who can sue,
when a case can be brought, a plaintiff must satisfy justifiability
requirements
Bar on Advisory Opinion
o Federal Courts may not decide questions that are abstract, hypothetical or
conjectural (contingent)
o There must be an actual dispute between litigants for there to be a case or
controversy under Art. III
**A lot of state courts that allow issuance of advisory opinions, but
NOT national constitution
Standing****:
o Determination of whether a particular person is the proper party to present
a particular issue before a federal court for determination
o Constitutional standing requirements
Injury, Causation, Redressability
o Prudential standing requirements (Congress has ability to overrule if it
wants)
Prohibitions on third party standing and generalized grievances
Standing Hypo
o Governor of New York State announces that any state employee that uses
birth control will be fired.
Ways to restrict the power of the judicial branch:
Ways of limiting when the Court can get involved
o Standing: Court can restrict by themselves
o Allen v. Wright:
Background:
Defendants are group of all white public schools
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Next Class:
Standing:
o Lujan
o Clapper**
o US v. Richard (brief)
Political Question Doctrine
o Baker v. Carr
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o Goldwater v. Carter*
o Nixon
Wrap up Article III
CLASS FOUR: SEPTEMBER 4, 2014
Review:
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Constitutional Law
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Article V processes
o Guidelines for constitutional convention
o When it is appropriate?
o Wrap up on Art. III
Judicial Review
Marbury v. Madison
Counter-majoritarian Difficulty
o OUTLINE: *Must identify each element
specifically, and input cases
Exceptions clause
Mccardle & Klein
Justiciability doctrines
Standing
Allen, lujan, calpper and Richardson
PQD:
Goldwater & Nixon
Next Class:
o Art. 1 Section 8
Focus on Art. 1 and legislative powers
CLASS FIVE: SEPTEMBER 9, 2014
Separation of Powers: Idea that three branches of govt exercises powers that are limited
to their spheres, what theyre vested with.
People are self interested and so are politicians, building empires designed to
serve themselves
o framers operating as backdrop against british monarchy
Check against self-interest and tyranny
Preserve individual liberty:
If one branch was powerful, the first thing they would do is
trample on individual rights
o Limit powers and lessen risk that any individual
branch will infringe on minority
Preserve federalism
Specialization: Giving one branch a specific duty/power, they will
get really good at their job
Not perfect: Const. departs from strict separation of powers: CHECKS AND
BALANCES
o Pres can veto legislation involving President in legislative process
o Senate can give nominees, involving legislative branch in executive power
to nominate representatives
States as entities of general jurisdiction: Police power:
o Empowered to regulate health, safety, welfare, and possibly morals.
Congress powers are limited to those enumerated in the constitution
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Anytime Congress acts, it must act under powers listed under Art. 1
Art. 1 Sec. 8:
o 18 Enumerated powers [only focus on]:
Necessary and Proper Clause
Commerce Clause
Taxing and Spending Powers
o **14th Am., Sec. 5: Added power
Art. 1, Sec. 9:
o List of things Congress cannot do:
Suspension Clause
Anti-Nobility Clause: Cannot confer aristocratic government (we
the people)
Ban on ex post facto laws
Art. 1, Sec. 10 (Limits on State Power)
o Cannot enter treaties, alliances with foreign nations
o Cant take more, cant coin money
o End economic warfare on states
How can Congress check the other branches?
o Pass laws that supersede federal regulation
o Adjourn Supreme Court
o Veto bill ability to override presidential veto
o Oversight
McCulloch v. Maryland:
Does the Constitution give Congress the power to charger the second bank of the
US? YES
McCulloch Simulation: Law Clerk for a justice who wants to write a dissent in
McCulloch. He has asked for your help in writing an outline:
o Let the end by legitimate, let it be within the scope of the constitution
o Recent Articulation of Necessay and Proper Clause Test:
[W]e look to see whether the statute constitutes a means that is
rationally related to the implementation of a constitutionally
enumerated power. US v. Comstock.
Supremacy clause imposes a limit on MDs ability to tax federal
entities
Does Congress have the power to create the national Bank? YES
Does Maryland have the power to tax it? NO
Takeaways on McCulloch:
o Court weighs in on the side of expansive federal power
o Necessary and proper clause is not an independent grant of authority
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Article 1, Section 8: Commerce Clause: Congress shall have the power to regulate
commerceamong the several states
Historical analysis:
o Development of Commerce Clause Doctrine:
Early Period (Gibbons 1885)
Lochner Era (1885-1937) Court Shrinks Congress Power
o Post-Lochner Era (1937-1995) Congress backs off;
adopts a broad definition of commerce
Modern Era (1995-Present)
Gibbons v. Ogden:
Facts:
o Ogden wins in state course granting exclusive license
Basis of Gibbons argument: federal license is valid
o Ogden Argument:
Falls outside; and is unconstitutional because it falls outside the
scope of congress commerce clause
Defines Commerce as: Buy and Sell commodities
Buying and selling of goods across state lines
Gibbons textual argument: Look at the original meaning at the time it was
adopted
o Congress thought it was about something broader
Federal license trumps NY license
o NY Defines the Scope on Congress Commerce Power
Whats at stake:
o Adopt Ogdens limited scope of congress and adopt Gibbons: Federal
License argument
The Court has an expansive definition of commerce; impacts how the doctrine
develops
o *No dissent (like McCulloch and Marbury) This is done on purpose;
wanted the Court to have 1 voice
Direct conflict between federal and state law: here NY law is preempted by
Federal law
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First:
o Constraining definition: 10th Amendment
o Infringing on state powers
o Court strikes down state economic legislation under: 14th amendment due
process clause
Courts actions become a HUGE problem
Great depression causes economic upheaval
o Increased demand for national action
*Much of law in Lochner Era is obsolete
Why Care?
o 1) Resolution defines the relationship between federal and state
governments
o 2) The Constitution in Exile: many ppl want to return back to Lochner
banished in 1937; pre-new deal constitution should be restored
You want to challenge Federal Law beyond scope of congress power
o Argue Commerce definition is much smaller than what congress suggests
o Even if congress is regulating congress; unconstitutional because it falls
under powers of states under 10th amendment:
Imposes a limit on what Congress can do under Art. 1
Two theories of the 10th Am.
o Truism: No real effect: 10th Amendment just
confirms that congress must act pursuant to an
enumerated power.
Who is allowed to exercise powers who
arent enumerated in Art. 1:
The list of powers Congress has is
exclusive.
o Affirmative Protector of State Sovereignty:
Force Field: Even when congress acts under
enumerated powers, it cannot legislate in areas that
are exclusively reserved to the states under the 10th
amendment (Congress in violation)
Even if you can do this under Art. 1 10th Am.
acts as a limit on what Congress can and
cannot do.
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Broad: Congress can come in and regulate the amount of what you
can grow even if that wheat doesnt leave state
o Enables federal regulation to reach purely intrastate activity
1937-1995: Court doesnt overturn 1 piece of legislation based
upon commerce clause
Civil Rights Act of 1964:
Prohibits race discrimination in places of public accommodation including
restaurants and hotels
Major debate in congress over which enumerated power to use: Commerce Clause
or Section 5 of the 14th Amendment
Problem: 1883: The Court declared a similar law unconstitutional: tried to
prohibit race discrimination in 1875
Congress figured why take the chance and lets rely on commerce clause
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o Gun Free School Zones Act: [Congress makes it] a federal offense for any
individual knowingly to possess a firearm at a place that the individual
knows, or has a reasonable cause to believe is a school zone.
o Congress is generally concerned, and wants to step in
o Facts:
D is a HS senior at San Antonio Tx school
Charged with both state offense and federal offense under
Act
o Govt Theory:
Regulating these activities substantially affects interstate
commerce
Guns at school decrease quality of education
o Therefore lower paying jobs
Rehnquist:
o Congress can regulate Channels of interstate commerce (Darby)
o Congress can regulate and protect the instrumentalities of interstate
commerce or persons or things in interstate commerce
o **Congress can regulate those activities having a substantial relation to
interstate commerce
Congress has not issued any legislative findings
Slippery slope concerns concern that if this is allowed, Congress
can regulate ANYTHING
Federalism issues
Not commercial activity
Distinguishing Heart of Atlanta Hotel, etc.
o Noneconomic non commercial land
No jurisdictional element: When defining elements of crime, court
wants there to be an actual link between interstate commerce and
the act
Justice Thomas:
o At the time the original constitution was ratified, commerce, consisted of
buying selling and bartering, as well as transporting for these purposes.
o Substantial effects test written into constitution:
All American people behind you
o Pre-commitment response
Takeaways on Lopez:
3 Part test
o Channels
o Instrumentalities
o Substantial effects
Commercial non-commercial activity
Focus on
o Lack of connection to a larger regulatory scheme
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Takeaways:
Court doesnt like drugs
Aggregation lives
Larger regulatory scheme
Expansive definition of economic activity
o Production, distribution, and consumption of commodities
No requirement of particularized findings by Congress on substantial effects
For Next Class:
1) South Dakota v. Dole (Spending power)
2) NFIB v. Sebelius (Affordable care act)
a. Commerce clause
b. Taxing power
c. Spending power
CLASS EIGHT: SEPTEMBER 18, 2014
NFIB v. Sebelius:
*Both policies are ways of expanding people to have some form of health insurance
Individual Mandate:
o Requires some individuals to purchase health insurance from private
insurance providers; additional tax penalty for failure to comply.
Medicaid Expansion:
o Expands scope of state Medicaid coverage through additional grants;
states lose all Medicaid funding if they fail to expand
Simulation:
Sebelius:
o Substantially affects on Interstate Commerce because it can raise or lower
prices on insurance premiums.
o Rational Basis: *individual mandate provisions
o Larger regulatory scheme to regulate economic activity
Economic activity
NFIB:
o Every state has different needs
o Jurisdictional element problem because congress cannot (Lopez)
o Activity is not economic in nature *Morrison and Lopez
Lopez: activity is too far removed from chain of interstate
commerce
No activity here, nothing to regulate
Forcing (Wicker) farmer filburn to go and sell his wheat on
interstate commerce
Court holds congress does not have power to enact individual mandate provisions
Roberts + Dissenters
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Rationale:
o Individual mandate: Congress doesnt have the power to force people to
engage in individual activity
The Commerce Clause:
o NFIB:
Congress can only regulate commercial activity
Congress cannot force individuals to engage in commerce or
regulate inactivity
Is this dicta? Upholds individual mandate provision under taxing
power
ACA wins
Is the ACA unique?
o Congress did this in a really weird way
Taxing Power:
o Art. 1 Sec. 1: The Congress shall have the power to lay and collect taxes,
duties, imposts, and excises to pay the debts and provide for the common
defence and general welfare of the US; but all duties, imposts, and excises
shall be uniform throughout the US.
Debate
Even if congress doesnt have the power to regulate that activity, it
can still tax, so long as the dominant intent is to raise revenue
rather than regulate
o Art. 1. Sec. 9: No capitation or other direct tax shall be laid unless in
proportion to the census or enumeration
Court strikes down income tax
Response: 16th Amendment: Congress shall have power to
lay and collect taxes on incomes, from whatever source
derived without apportionment among the several States,
and without regard to any census or enumeration
If a tax is found to be a penalty it can only be upheld if justified a
valid measure
Tax vs. Penalty (NFIB)
o Tax and power arises in ACA:
Congress wants to remain on safe side so
they came up with another taxing power
(individual mandate)
Individual Mandate provision: Congress:
Tax because: Money goes to IRS
No income tax: no individual mandate penalty
o Looks walks and talks like a tax
Not a tax: Art. 1 Sec. 9
Doesnt use the word tax it uses the word penalty:
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Challenging Law:
o South Dakota v. Dole VS. NFIB v. Sebelius:
Dole says they will take away 5%; Sebelius: take away ALL
funding
Penalty re: New Medicaid:
Take away old Medicaid money and its somehow unrelated
o Court says: Unconstitutional
Need to give states a genuine choice no real option with ACA
Gun to the head
Can take away new money, they just cant take the old
money
Takeaways NFIB:
o Court upholds as a tax: places first limit on congress conditional spending
power
Never overturned anything re: beyond congress scope of
conditional spending
Places limits on Congress power on CC
Next Class: Federalism:
o 10th Am.
Truism Theory (Garcia)
o Commandeering Exception
o 11th Amendment
CLASS NINE: 9/23/14
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Goals
Does the 10th Amendment reserve certain spheres of policy
exclusive for state regulation
Are there 10th Amendment limits on Congress ability to order
states to take certain actions
Are there limits on Congress ability to allow states to be sued
for money damages for violations of federal law or the
Constitution itself?
Review from last class
Commerce Clause
o NFIB v. Sebelius
Taxing Power
o NFIB
Spending Power and conditional spending
o SD v. Dole
Court imposed rules on Congress use of spending
power
o NFIB
Court FOR THE FIRST TIME enforced limits on
Congress spending power
10th Amendment
Wording of the 10th Amendment
o The powers not delegated to the United States by the
Constitution, nor prohibited by it to the States, are
reserved to the Sates Respectively, or to the people
State sovereignty force field?
Causes of action on a 10th Amendment Case
o Even if the action falls w/I Congress powers, it violates
the 10th Amendment in some way
Timeline
o Lochner Era (pre-1937)
10th Amendment is an independent limit on
federal power protecting areas of purely local
concern
o New Deal 1976
Truism theory
Truism - a statement that is obviously true
and says nothing new or interesting
o 1976
Challenge to FLSA Amendments
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Background
o Brady Handgun Prevention Act
Requires federal instant background check for gun
purchases by November 1998
In interim period, state CLEOs (the chief law
enforcement officer of a STATE) must make
reasonable efforts to determine whether gun
sale is lawful
o The FBI would take responsibility for background checks
but, in the meantime, the states had to regulate this
federal Act
Argument against this Act
o Violation of the 10th Amendment
State officers should not be compelled to execute
the regulations of a federal law commandeering
argument
Federal argument supporting this Act
o Distinguishable from New York because gun control is a
big deal problem; bigger than low-level radioactive
waste.
o In New York, the federal government made state
legislatures create a new law. In this case, youre just
making some police officers enforce an already-made
federal law
Ruling
o Act was unconstitutional
o The federal government cannot conscript state officers
and make the enforce a federal regulatory program
o Courts justification:
Political accountability
Administration of federal law cannot be
allocated to people not directly under the
Presidents control
Prior jurisprudence New York
Doctrinal argument that this case is just like
New York
Historical argument
Back when the 10th Amendment was
adopted, the federal government didnt do
things like this
This Act is unprecedented, especially in
early 10th Amendment history
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Simulation
Reno v. Condon (2000) Textbook p. 238
Limit to the commandeering exceptions under New York and
Printz
Background
o Drivers Privacy Protection Act of 1994
Regulates disclosure and resale of personal
information collected by the state DMVs
Regulates the states and anyone who winds up
with the information that the states are selling
o South Carolina made it very easy for their DMVs to sell
this information
Argument against this Act
o Act violates the 10th Amendment because it constitutes
commandeering in forcing state employees to
implement a federal regulatory scheme
State employees have to take the time to learn
what the law is and apply it eats up time and
money
Ruling
o The Act is constitutional
o Distinguishable from New York and Printz:
This act is a negative prohibition just telling
states to NOT do something
This act is a generally applicable law, just like
Garcia
o Go big or go home argument
Federalism summary
10th Amendment as truism Garcia
10th Amendment subtext in Commerce Clause cases (Lopez,
Morrison, NFIB)
Anti-commandeering principle for state legislatures (New
York) and State officials (Printz)
Questions to ask:
o What are the interests underlying the federalist
structure?
o Are political safeguards sufficient?
11th Amendment
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Constitutional Law
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Next Class
Article II and Executive Power
o Constitutional text
Implied Presidential Power
o Youngstown Sheet v. Sawyer
Seizure of domestic steel mills
Pay attention to Justice Jackson
o US v. Nixon
CLASS TEN: SEPTEMBER 30, 2014
Separation of Powers:
o Executive branch can get messy
o Informal negotiations between executive and legislative branch
o Overall themes
o Separation of powers vs. checks and balances
o Prevention of tyranny vs. efficiency
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Promoting efficiency
o Formalist vs. functionalist approaches to thinking about separation of
powers
Why separate powers?
o Guard against tyranny
o Preserve individual liberty
o Support federalism by controlling federal power
o Specialization
Coordination of multiple assent for the govt to do any thing
Formalism:
o Each branch can only exercise the type of power it is vested with
i.e. congress and only congress can legislate
Dinner Plate example: Meat = Congress: if the issue is
only something that is legislative, only congress can
exercise power over it
Functionalism (Much messier dinner plate)
o Not looking to preserve rigid lines, step in only when one branch of
exercising power impeding functions
Asks whether one branchs actions interfere with the core functions
of another
Framers believed that Congress was the most powerful branch
Presidents Institutional Advantages
o Single person vs. Multi-Member body
o 24 Hour responsibility vs. periodic sessions
Vesting Clauses:
o Article II: Section 1 The executive power shall be vested in a president
o Qualification requirements:
4 Year renewable term
National constituency
Age and residency requirements
Concerns that some Euro nobles would throw their money
around to buy the office
o Well placed rich euros would be able to come in and
capture office
Fixed compensation
Congress cannot cut or raise salary
o Can veto the law by presenting the bill to congress
Veto power is significant because it expresses constitutional
objections to a bill
Pardon power: really broad: no reason toe exercise his power to
pardon, decisions are not subject to judicial review
Can pardon someone whos accused and condition it on
anything
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o Key facts:
Bill gets signed into law before president can activate his
cancellation authority
Plaintiffs argument(s):
o Formalist Argument: Allows President to legislate
o Textualist Argument: Not enumerated in constitution
o Historical Argument: Veto or Sign the entire bill?
o Prudential Reasons for not allowing president to do this:
Actually some states are helped
Presidents Argument(s):
o Historical/Precedent: Youngstown Inc.: CATEGORY 1: Expressly gave
president power
o Courts should stay out of this there has already been a check of the
balance of powers between executive and legislative
Level of complexity has expanded dramatically
o President can cancel provisions Not legislative(y) but more of a
redaction
COURTS HOLDING: Line item veto act is unconstitutional
o Point 1: This act should be legislative(y):
If this is legislative action, should go through bicameralism process
o Point 2: Historically: Since George Washington, this is the way things
should continue to be done.
Article 1; Section 7:
o Every billshall, before it becomes a Law, be prevented to the
President; if he approves he shall sign it, but if not he shall return it,
with his Objections
Individual Liberties:
o Good enough reason for the Courts to get involved?
Raises issue of what to do with historical precedent?
o Established practice: go back to GW: only voted up or down
Prudential: Compelling good reasons re: public policy to allow Line Item Veto
Act
o Overall prudential balancing scheme?
Weighing modalities over others
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Chaddha
Full house approves subcommittee without a recorded vote
Only went through 1 house of congress
Presentment clause:
o Bicameralism: Arugment:
Four examples: clearly framers knew about this idea
Limit congressional power by the framers
Couldnt have just one house of
Bicameralism
Legislative Veto is constitutional:
o Check with whatever powers were delegated
o Congress subject to bicameralism argument:
Branches of government worked it out
HOLDING: Legislative Veto: Unconstitutional:
o When congress is acting legislatively:
Legislative actions have the purpose and effect of altering the legal
rights
Other options available?
Legal questions:
o Chadha had any real effect
Rule: still stands
Legislative actions by congress must comply with
bicameralism and presentment provisions
Action taken by Congress: must follow and override veto by 2/3rds
margin
50
Constitutional Law
Prof. Gewirtzman
4pm Tues/Thurs
Line item veto and legislative veto violate Article I, Section 7s bicameralism and
presentment requirements
o Chadha & Clinton
President and Congress agree on (SOLIDLY Youngstown, Cat. 1)
o Article II Appointments Clause
Can congress delegate appointment of executive officers to other
people?
o Removal
o Presidential power over Foreign Affairs
Dames & Moore
CLASS 12: OCTOBER 7, 2014:
51
Constitutional Law
Prof. Gewirtzman
4pm Tues/Thurs
Constitutional Law
Prof. Gewirtzman
4pm Tues/Thurs
Removal Power
Constitution says nothing about it in the text
Does it reside solely with the President?
o Can congress remove executive branch officials other
than by impeachment?
o Can Congress place limits on the Presidents ability to
exercise removal power?
General rule
o President can remove executive appointees at will
unless Congress imposes limits
o Congress can impose limits when:
Independence from the executive is desirable, or
Agency is performing quasi-judicial or quasilegislative functions, and
The law doesnt prohibit Presidential removal, but
only imposes good cause requirements
Takeaways
o President can remove executive officials at will unless
removal is limited by statute (Myers)
o Congress can impose for cause removal of limitations
under certain circumstances (Humphreys, Morrison)
o Congress can vest removal power for inferior officers
solely in the heads of departments
53
Constitutional Law
Prof. Gewirtzman
4pm Tues/Thurs
54
Constitutional Law
Prof. Gewirtzman
4pm Tues/Thurs
Rule
o Functionalist decision you can impose good cause
removal requirements until it interferes with the core
function of the executive branch
o Not clear to which extent something is quasilegislative/quasi-executive
Foreign Policy
Many foreign policy cases become political question cases
o Non-justiciability red flag for most foreign policy cases!
Simulation - Foreign Relations Authorization Act
o Unconstitutional Presidents side
President should serve as the sole representative
here because he has better resources and better
knowledge of the situation (Curtiss-Wright)
President is the only member of the federal
government who can claim that they speak for the
entire country
Congressmen only represent a state
Representatives only represent localities
o Constitutional Congress side
Constitution assigns foreign policy power to both
the executive and legislative branch
The Framers intended for foreign policy
power to overlap
This can fall outside of the category of foreign
policy
Category 3 this is not spoken of in the
Constitution and Congress has made their
preferences very clear (Youngstown)
United States v. Curtiss-Wright Export Corp. Page 370
Issue
o Does the President have greater authority in foreign
affairs than in domestic arena?
Argument against that embargo is unconstitutional
o Non-delegation doctrine
o Textual argument President has specific powers that
apply to foreign policy and this isnt one of them
Argument for embargo within the scope of Article II powers
55
Constitutional Law
Prof. Gewirtzman
4pm Tues/Thurs
Argo case
Are executive agreements constitutional?
Executive Agreement
o Agreement between the US and another country that
becomes valid when the President and the head of the
other country sign it
o Does not need 2/3 senate approval
o THIS IS NOT AN EXECUTIVE ORDER
Argument against challenging constitutionality of executive
agreement
o This is really a treaty, and treaties requires 2/3 of the
senate to sign off on it that didnt happen here
o Formalist argument
By nullifying judicial decisions, the executive
branch is unconstitutionally behaving judicially
(peas in the mashed potatoes)
Congress is silent on this action Category 2 of
Youngstown
56
Constitutional Law
Prof. Gewirtzman
4pm Tues/Thurs
57
Constitutional Law
Prof. Gewirtzman
4pm Tues/Thurs
o Myers
o Humphreys executor
o Morrison
Foreign Affairs Power
o Curtiss Wright
o Dames & Moore: Congressional action, rather than plenary exclusive
power to define scope
How constitute addresses power re: war and allocates its power
Context for Modern War power discussion:
Formal declarations of war are rare (last was WW2) Congress declared only 5
times
o In practice, president has sent US troops into combat without declaration
over 100+ times
Armed conflict with non-state terrorist organizations
Political Question Doctrine
o Without formal declaration from congress
Re Constitutional Text:
o Some crude division of power between Pres vs. Congress
Pres:
Commander in chief = Art. II
Emergent power
Congress War Power:
Declare war
Raise and support armies and provide and maintain a navy
Calls in militia to suppress insurrections and repel
invasions
Punish piracy on high seas
o Suspension Clause
Art. 1: section 9, clause 2
Privilege of the writ of habeas corpus shall not be
suspended unless when in cases of rebellion or invasion the
public safety may require it.
o Who suspends it? Doesnt explicitly say but because
it is within Art. I: Congress
Framers wanted 2 branches signing off on military
conventions
o Congress has power to initiate war by having
explicit power to declare war
58
Constitutional Law
Prof. Gewirtzman
4pm Tues/Thurs
59
Constitutional Law
Prof. Gewirtzman
4pm Tues/Thurs
60
Constitutional Law
Prof. Gewirtzman
4pm Tues/Thurs
o Look at civil war: Lincoln takes position that he needs to do whatever was
necessary to save country, even if it meant ignoring const.
Unilaterally blocked ports without Congress auth.
Enlarges army and navy without consent of congress
Decides to suspend the writ of habeas corpus
Aftermath of 911 attack, congress 1 week later passes AUMF:
o Authorized to use all necessary and appropriate force against all nations
organizations or persons he determines, planned, authorized, committed,
or aided the terrorist attacks that occurred on September 11, 2011, or
harbored such organizations or persons, in order to prevent any future acts
of international terrorism against the US by such nations, organizations or
persons
Youngstown Review of Categories:
o CATEGORY 1:
Does president have express/implied authority from congress
Implied: Past circumstances
Congress fails to act and knows it
If yes: TEST:
o CATEGORY 2:
When the president acts in absences of either congressional grant
or a denial of authority, he can only rely on his own independent
powers. But there is a zone of twilight in which he and congress
may have concurrent authority or in which its distribution is
uncertain. Therefore congressional inertia, indifference o
quiescence may sometimes, at least as a practical matter enable if
not invite, measures of independent presidential responsibility. In
this area, any actual test of power is likely to depend on the
imperatives of events and contemporary imponderable s rather than
on abstract theories of law.
Depends on different circumstances
o CATEGORY 3:***
When president takes measures incompatible with the
expressed/implied will of congress his power is at its lowest ebb
Congress is then disabled to act
o TEST: IF Congress says no, all you have is what is
in there, Enumerated [Commander in chief power,
etc.]
*Jackson says that in this case, president in this case
Only relies upon his own independent powers; Congressional inertia invites presidents
response
Hamdi v. Rumsfield:
o Facts:
Held as enemy combatant without any access to anyone, without
any notice of what hes been charged with for 3 years
61
Constitutional Law
Prof. Gewirtzman
4pm Tues/Thurs
Constitutional Law
Prof. Gewirtzman
4pm Tues/Thurs
o Supremacy clause
o Dormant commerce clause
o Article IV privileges and immunities clause:
The Const. and the laws of US shall be made in pursuance thereof,
and all treaties made or which shall be made, under authority of
US shall be the supreme law of the land; and the judges in every
state shall be bound thereby. Any thing in the constitution or laws
of any state to the contrary notwithstanding
Preemption is most likely encountered in constitutional law
practice
Attempting to regulate particular area or practice at the
same time
Preemption: raises interpretive questions:
Broad? Allow it to preempt state law; or
Narrow? Leaving room for states to regulate
Preemption issue: When federal govt and state govt are trying to
regulate the same thing at the same time
When a federal law trumps state law:
o Courts look to congressional intent
o Whether Congress did or did not intend to make
federal or state law
Types of Preemption:
Express:
o Easy; congress explicitly in a statute says
preempting state law (ERISA)
Implied:
o Field Preemption:
When Court concludes that congress has
occupied the field (Regulate certain kind
of law) adopting a large legislative scheme
in a particular area
o Conflict Preemption:
Impossibility of Compliance: federal and
state law conflict so it is literally impossible
to decide who has power: FEDERAL
TRUMPS
Obstacle to achieving federal legislative
goal: a state law stands to an obstacle to a
key legislative objective, preventing
congress to do what it wants to do
(COMPLIATED)
Look at statute
63
Constitutional Law
Prof. Gewirtzman
4pm Tues/Thurs
US v. Arizona:
Background:
o Art. I giving congress broad power to establish uniform rules of
naturalization
Congress sets up scheme re: citizenship and deportation
States with increased illegal aliens
o Arizona passes law on problem of illegal
immigration in state
SB 1070:
(3) Makes it a misdemeanor to fail to
comply with federal alien
registration requirements;
(5) Makes it a misdemeanor for
unauthorized alien to seek or engage
work in state
o Challenge to Section 3: Fail
to comply with federal alien
registration requirements
o Arizona is concerned federal
law enforcement isnt doing
it aggressively enough
Argue field
preemption; congress
has occupied the filed
of alien registration
and federal law
contains all provisions
re: alien registration
Congressional intent:
congress intended to
occupy field
o Challenge to Section 5:
Punishes employer if
employee is undocumented
Obstacle preemption
(Conflict Preemption)
Congress intent was
to punish employers
and not employees,
and Arizonas leg.
Acts as an obstacle to
that preemption
64
Constitutional Law
Prof. Gewirtzman
4pm Tues/Thurs
NEXT CLASS:
*Dorman Commerce Clause
--Watch video before you do the reading***
CLASS TEN: SEPTEMBER 30, 2014
Separation of Powers:
o Executive branch can get messy
o Informal negotiations between executive and legislative branch
o Overall themes
o Separation of powers vs. checks and balances
o Prevention of tyranny vs. efficiency
Promoting efficiency
o Formalist vs. functionalist approaches to thinking about separation of
powers
Why separate powers?
o Guard against tyranny
o Preserve individual liberty
o Support federalism by controlling federal power
o Specialization
Coordination of multiple assent for the govt to do any thing
Formalism:
o Each branch can only exercise the type of power it is vested with
i.e. congress and only congress can legislate
Dinner Plate example: Meat = Congress: if the issue is
only something that is legislative, only congress can
exercise power over it
Functionalism (Much messier dinner plate)
o Not looking to preserve rigid lines, step in only when one branch of
exercising power impeding functions
Asks whether one branchs actions interfere with the core functions
of another
Framers believed that Congress was the most powerful branch
Presidents Institutional Advantages
o Single person vs. Multi-Member body
o 24 Hour responsibility vs. periodic sessions
Vesting Clauses:
o Article II: Section 1 The executive power shall be vested in a president
o Qualification requirements:
4 Year renewable term
National constituency
Age and residency requirements
Concerns that some Euro nobles would throw their money
around to buy the office
65
Constitutional Law
Prof. Gewirtzman
4pm Tues/Thurs
66
Constitutional Law
Prof. Gewirtzman
4pm Tues/Thurs
67
Constitutional Law
Prof. Gewirtzman
4pm Tues/Thurs
Federalism v. functionalism
US v. Nixon:
o When can president keep communications within executive branch?
Inherent executive power
Court could have stayed out of the dispute if the president was
operating in ways that were not constitutional
Impeachment
o Facts:
Subpoenas directing Nixon to produce tapes and docs re:
conversations to aids/advisors
Courts rejected executive privilege because pres failed to satisfy
rule 17(c)
o Executive privilege exists
Prior to this case wasnt clear if congress had any executive power
o Even if exec. Privilege existed it wouldnt apply here:
Allow criminal justice be administered in a fair way
Need for confidential communications on one side and balance
with need for fair criminal justice system
*Aftermath of Nixon case:
o Pres had been involved in cover up, ordering FBI not to investigate break
in but subsequently resigned
Cheney vs. US District Court
o Distinction between assertion of executive privilege in civil vs. criminal
proceedings
o Court should be mindful of an unwarranted impairment of another branch
in the performance of its constitutional duties
Suggests a narrowing in Nixon in criminal practice
Takeaways on executive privilege:
Expect privilege derives from presidents inherent power under Article II
Subject to balancing test
Next Class:
*Article 1 Bicameralism and presentment requirements
Clinton v. NY
Constitutional Issues raised by the rise of the admin state
CLASS ELEVEN: OCTOBER 2, 2014
Clinton v. NY 1998
Look at questions re: executive powers and separation of powers in a diff context
o Steel Seizure (Truman)
No explicit authorization from Congress allowing president to
seize still limits
68
Constitutional Law
Prof. Gewirtzman
4pm Tues/Thurs
Constitutional Law
Prof. Gewirtzman
4pm Tues/Thurs
Article 1; Section 7:
o Every billshall, before it becomes a Law, be prevented to the
President; if he approves he shall sign it, but if not he shall return it,
with his Objections
Individual Liberties:
o Good enough reason for the Courts to get involved?
Raises issue of what to do with historical precedent?
o Established practice: go back to GW: only voted up or down
Prudential: Compelling good reasons re: public policy to allow Line Item Veto
Act
o Overall prudential balancing scheme?
Weighing modalities over others
The Administrative State
Central Question: Scope of power congress can delegate to the exec branch and
whether it can delegate, can it attach strings to those powers?
Framers primary concern re: tyranny focused on congress
o Developed 2 separate schemes with dealing with congress powers being
drawn to impetuous vortexes
Separation of Powers
Executive branch has expanded dramatically starting in 1887
Growth of administrative state presents constitutional problems
o Executive agencies do things that often look legislative or judicial
th
17 Century: All state level changes
By 1887: Big federal agencies out of progressive era
o Insulate rule making from influence of rich people
1937: New Deal: New Agencies
o Agencies exist within executive powers
But powers are broad and look legislative(y)
peas and mashed potatoes problems
o Formalist perspective: Administrative Nightmare
How should law respond to this?
Messy agencies
Court not into messiness in 930s
o Non-delegation Doctrine:
Prevented congress from delegating
executive branch agencies
Not allowed to hand legislative
power off to executive agencies
o Court rejects non-delegation doctrine
Rejection because:
Congress cant oversee legislative process
70
Constitutional Law
Prof. Gewirtzman
4pm Tues/Thurs
71
Constitutional Law
Prof. Gewirtzman
4pm Tues/Thurs
72
Constitutional Law
Prof. Gewirtzman
4pm Tues/Thurs
Constitutional Law
Prof. Gewirtzman
4pm Tues/Thurs
Removal Power
Constitution says nothing about it in the text
Does it reside solely with the President?
o Can congress remove executive branch officials other
than by impeachment?
o Can Congress place limits on the Presidents ability to
exercise removal power?
General rule
o President can remove executive appointees at will
unless Congress imposes limits
o Congress can impose limits when:
Independence from the executive is desirable, or
Agency is performing quasi-judicial or quasilegislative functions, and
The law doesnt prohibit Presidential removal, but
only imposes good cause requirements
Takeaways
o President can remove executive officials at will unless
removal is limited by statute (Myers)
o Congress can impose for cause removal of limitations
under certain circumstances (Humphreys, Morrison)
o Congress can vest removal power for inferior officers
solely in the heads of departments
74
Constitutional Law
Prof. Gewirtzman
4pm Tues/Thurs
75
Constitutional Law
Prof. Gewirtzman
4pm Tues/Thurs
Rule
o Functionalist decision you can impose good cause
removal requirements until it interferes with the core
function of the executive branch
o Not clear to which extent something is quasilegislative/quasi-executive
Foreign Policy
Many foreign policy cases become political question cases
o Non-justiciability red flag for most foreign policy cases!
Simulation - Foreign Relations Authorization Act
o Unconstitutional Presidents side
President should serve as the sole representative
here because he has better resources and better
knowledge of the situation (Curtiss-Wright)
President is the only member of the federal
government who can claim that they speak for the
entire country
Congressmen only represent a state
Representatives only represent localities
o Constitutional Congress side
Constitution assigns foreign policy power to both
the executive and legislative branch
The Framers intended for foreign policy
power to overlap
This can fall outside of the category of foreign
policy
Category 3 this is not spoken of in the
Constitution and Congress has made their
preferences very clear (Youngstown)
United States v. Curtiss-Wright Export Corp. Page 370
Issue
o Does the President have greater authority in foreign
affairs than in domestic arena?
Argument against that embargo is unconstitutional
o Non-delegation doctrine
o Textual argument President has specific powers that
apply to foreign policy and this isnt one of them
Argument for embargo within the scope of Article II powers
76
Constitutional Law
Prof. Gewirtzman
4pm Tues/Thurs
Argo case
Are executive agreements constitutional?
Executive Agreement
o Agreement between the US and another country that
becomes valid when the President and the head of the
other country sign it
o Does not need 2/3 senate approval
o THIS IS NOT AN EXECUTIVE ORDER
Argument against challenging constitutionality of executive
agreement
o This is really a treaty, and treaties requires 2/3 of the
senate to sign off on it that didnt happen here
o Formalist argument
By nullifying judicial decisions, the executive
branch is unconstitutionally behaving judicially
(peas in the mashed potatoes)
Congress is silent on this action Category 2 of
Youngstown
77
Constitutional Law
Prof. Gewirtzman
4pm Tues/Thurs
78
Constitutional Law
Prof. Gewirtzman
4pm Tues/Thurs
o Myers
o Humphreys executor
o Morrison
Foreign Affairs Power
o Curtiss Wright
o Dames & Moore: Congressional action, rather than plenary exclusive
power to define scope
How constitute addresses power re: war and allocates its power
Context for Modern War power discussion:
Formal declarations of war are rare (last was WW2) Congress declared only 5
times
o In practice, president has sent US troops into combat without declaration
over 100+ times
Armed conflict with non-state terrorist organizations
Political Question Doctrine
o Without formal declaration from congress
Re Constitutional Text:
o Some crude division of power between Pres vs. Congress
Pres:
Commander in chief = Art. II
Emergent power
Congress War Power:
Declare war
Raise and support armies and provide and maintain a navy
Calls in militia to suppress insurrections and repel
invasions
Punish piracy on high seas
o Suspension Clause
Art. 1: section 9, clause 2
Privilege of the writ of habeas corpus shall not be
suspended unless when in cases of rebellion or invasion the
public safety may require it.
o Who suspends it? Doesnt explicitly say but because
it is within Art. I: Congress
Framers wanted 2 branches signing off on military
conventions
o Congress has power to initiate war by having
explicit power to declare war
79
Constitutional Law
Prof. Gewirtzman
4pm Tues/Thurs
80
Constitutional Law
Prof. Gewirtzman
4pm Tues/Thurs
81
Constitutional Law
Prof. Gewirtzman
4pm Tues/Thurs
o Look at civil war: Lincoln takes position that he needs to do whatever was
necessary to save country, even if it meant ignoring const.
Unilaterally blocked ports without Congress auth.
Enlarges army and navy without consent of congress
Decides to suspend the writ of habeas corpus
Aftermath of 911 attack, congress 1 week later passes AUMF:
o Authorized to use all necessary and appropriate force against all nations
organizations or persons he determines, planned, authorized, committed,
or aided the terrorist attacks that occurred on September 11, 2011, or
harbored such organizations or persons, in order to prevent any future acts
of international terrorism against the US by such nations, organizations or
persons
Youngstown Review of Categories:
o CATEGORY 1:
Does president have express/implied authority from congress
Implied: Past circumstances
Congress fails to act and knows it
If yes: TEST:
o CATEGORY 2:
When the president acts in absences of either congressional grant
or a denial of authority, he can only rely on his own independent
powers. But there is a zone of twilight in which he and congress
may have concurrent authority or in which its distribution is
uncertain. Therefore congressional inertia, indifference o
quiescence may sometimes, at least as a practical matter enable if
not invite, measures of independent presidential responsibility. In
this area, any actual test of power is likely to depend on the
imperatives of events and contemporary imponderable s rather than
on abstract theories of law.
Depends on different circumstances
o CATEGORY 3:***
When president takes measures incompatible with the
expressed/implied will of congress his power is at its lowest ebb
Congress is then disabled to act
o TEST: IF Congress says no, all you have is what is
in there, Enumerated [Commander in chief power,
etc.]
*Jackson says that in this case, president in this case
Only relies upon his own independent powers; Congressional inertia invites presidents
response
Hamdi v. Rumsfield:
o Facts:
Held as enemy combatant without any access to anyone, without
any notice of what hes been charged with for 3 years
82
Constitutional Law
Prof. Gewirtzman
4pm Tues/Thurs
Constitutional Law
Prof. Gewirtzman
4pm Tues/Thurs
o Supremacy clause
o Dormant commerce clause
o Article IV privileges and immunities clause:
The Const. and the laws of US shall be made in pursuance thereof,
and all treaties made or which shall be made, under authority of
US shall be the supreme law of the land; and the judges in every
state shall be bound thereby. Any thing in the constitution or laws
of any state to the contrary notwithstanding
Preemption is most likely encountered in constitutional law
practice
Attempting to regulate particular area or practice at the
same time
Preemption: raises interpretive questions:
Broad? Allow it to preempt state law; or
Narrow? Leaving room for states to regulate
Preemption issue: When federal govt and state govt are trying to
regulate the same thing at the same time
When a federal law trumps state law:
o Courts look to congressional intent
o Whether Congress did or did not intend to make
federal or state law
Types of Preemption:
Express:
o Easy; congress explicitly in a statute says
preempting state law (ERISA)
Implied:
o Field Preemption:
When Court concludes that congress has
occupied the field (Regulate certain kind
of law) adopting a large legislative scheme
in a particular area
o Conflict Preemption:
Impossibility of Compliance: federal and
state law conflict so it is literally impossible
to decide who has power: FEDERAL
TRUMPS
Obstacle to achieving federal legislative
goal: a state law stands to an obstacle to a
key legislative objective, preventing
congress to do what it wants to do
(COMPLIATED)
Look at statute
84
Constitutional Law
Prof. Gewirtzman
4pm Tues/Thurs
US v. Arizona:
Background:
o Art. I giving congress broad power to establish uniform rules of
naturalization
Congress sets up scheme re: citizenship and deportation
States with increased illegal aliens
o Arizona passes law on problem of illegal
immigration in state
SB 1070:
(3) Makes it a misdemeanor to fail to
comply with federal alien
registration requirements;
(5) Makes it a misdemeanor for
unauthorized alien to seek or engage
work in state
o Challenge to Section 3: Fail
to comply with federal alien
registration requirements
o Arizona is concerned federal
law enforcement isnt doing
it aggressively enough
Argue field
preemption; congress
has occupied the filed
of alien registration
and federal law
contains all provisions
re: alien registration
Congressional intent:
congress intended to
occupy field
o Challenge to Section 5:
Punishes employer if
employee is undocumented
Obstacle preemption
(Conflict Preemption)
Congress intent was
to punish employers
and not employees,
and Arizonas leg.
Acts as an obstacle to
that preemption
85
Constitutional Law
Prof. Gewirtzman
4pm Tues/Thurs
NEXT CLASS:
*Dorman Commerce Clause
--Watch video before you do the reading***
CLASS FOURTEEN: OCTOBER 14, 2014
Express Pre-emption:
Implied Preemption
o Field Preemption
Congress has occupied the field
o Conflict preemption
Impossibility of compliance
Arizona v. US:
o Sec. 3: Field preemption:
Failure to comply with federal alien registration requirements =
state misdemeanor
o Sec. 5: Obstacle preemption:
Unauthorized alien seeking or engaging in work
o Sec. 6: Warrantless arrest permissible if state officer has probable cause to
believe the person is in the US illegally
o Sec. 2: In some circumstances, officers must check immigration status of
the people they stop or detain
Takeaways on preemption
o Types of preemption
o When to spot a potential preemption issue
o Tests to determine whether a state law is preempted under each type
o Focus on congressional intent
****Critical factual issue: what did congress intend
What is the dormant commerce clause?
o Negative implications of the commerce clause
If congress is given the power under Art. 1 to regulate interstate
commerce, implies that maybe states have limits on their ability to
do the same thing
States might have some limits on their ability to regulate
also
A combination of supremacy clause and commerce clause takes
care of this problem (When states decide to pass law s on their own
to pass laws re: interstate commerce)
Under preemption doctrine, state law will be invalid
o Congress passes law; regulates interstate commerce; state laws conflicting
with that law = invalid
Only in cases where congress is SILENT.
86
Constitutional Law
Prof. Gewirtzman
4pm Tues/Thurs
When congress has done nothing, but states step into that
regulatory void and pass a law that interferes with IC in one
way or another
o Whether the Court should step in and deal with
these regulations re: IC despite Congress saying
NOTHING re: doing anything about this
FACT PATTERN: Does it involve a law
involving federal govt or state
If passed by Congress: NO
DORMANT CC ISSUE
o Must be a STATE LAW
Dormant CC conceptually:
o Separation of powers:
Clause expands power of federal courts
Entering into picture when congress hasnt done anything
Invites federal courts to come in and act as police men
when congress hasnt asked them to act
Federalism:
Has potential to restrict power of states and place
constitutional limits toe exercise police power in ways that
interferes with commerce
Pass laws to benefit their citizens and hurt citizens in other states
Empowering congress to create a free trade zone in US
o Protectionism? Why so bad?
Trade war
Court invents it to deal with situations where
congress doesnt do anything
Why cant political process solve this problem
States internalize benefits, out of staters do not benefit
Concerns do you have about the Dorman Commerce Clause:
o Not at all in the constitution: Textualist
o Congress is given power to regulate interstate commerce: formalism
Indication that strict test applies
Whether a law discriminates against out of staters
o Facial discrimination:
Does the law discriminate against out of
state interests?
Facial Disc.: Kentucky forbids
tobacco grown in Virginia from
being sold in Ky.
Facially neutral but discriminatory in
purpose and effect: Ky only allows
Cavendish variety tobacco to be sold
in the state and Cavendish only
87
Constitutional Law
Prof. Gewirtzman
4pm Tues/Thurs
88
Constitutional Law
Prof. Gewirtzman
4pm Tues/Thurs
Constitutional Law
Prof. Gewirtzman
4pm Tues/Thurs
Exxon:
Exxon during gas shortage was supplying only gas stations, and MD passes a law
to prohibit
MD trying to protect mom and pop small independent gas station owners that are
from MD, in order to hurt Exxon
MD gas market:
o Group 1: Independent dealers (Mom and pop station)
3547
99% in state
o Group 2: Owned by producers/refiners
233
36 in state
197 out of state
o Group 3: Interstate marketers
36
2 in state
34 out of state (like 711, chains, but dont actually refine or
produce gasoline)
o Winners:
Group 1 (in staters)
Group 3: dont refine gasoline (out of staters)
o Losers:
Group 2:
All out of state
Exxon Argument:
o Must prove that statute is discriminatory:
Motive (purpose) and Effect
Motive: Protectionism
Effect: OOS refineries will not have opportunities
MD Argument:
o Statute is neutral on its face
90
Constitutional Law
Prof. Gewirtzman
4pm Tues/Thurs
91
Constitutional Law
Prof. Gewirtzman
4pm Tues/Thurs
Last Class:
o Dormant Commerce Clause:
State passes law affecting interstate commerce and congress is
inactive
FIRST: Does the law discriminate against out of state businesses or
consumers?
If so, strict test applies, and difficult to survive const.
review
o Is it facially discriminatory?
If yes, per se rule of invalidity (Philidelphia)
BUT if not facially discriminatory
still be discriminatory purpose and
effect: PROTECTIONISM (Hunt v.
Washington Apple)
o THEN: Even in some cases
where this doesnt happen
(discriminatory purpose) still
negative effect: PIKE
BALANCING TEST
o Pike balancing test: operates
with strong assumption,
unless clearly excessive to
local benefits
Preventing protectionism
How do you determine if a law is discriminatory
Facial discrimination (strict)
Discriminatory purpose and effect (strict)
Incidental effect (pike balancing)
How do we distinguish where cases find discriminatory vs. those that arent?
Constitutional Law
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REPRESNTATION
REINFORCEMENT problem:
deterrent for passing tax is you get
voted out of office by people dont
want to be taxed
o But OOS dairy farmers dont
have a way to assert their
interests (lobbying)
Judicial review must
kick in because
politics cannot solve
problem. Unelected
judges tune in.
States can issue uniform taxes on their own, and subsidize, but put
together protectionism, court finds a problem
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ARTICLE IV: Seeks to bind states together as a Union (Set of rules how State A
should relate to State B) -- Comity, respecting other laws of other states
Full Faith and Credit Clause: Requires state courts must recognize and enforce
final judicial decrees of other states (binding state courts together) cannot treat
judgments of other states as advisory or foreign
o Empowers congress to set rules as exceptions to other state judgments
regulating recognition
Privileges and Immunities Clause:
o Two Privileges and immunities clause (Art. IV Privileges AND
Immunities)
The citizens of each state shall be entitled to all privileges and
immunities of citizens in the several states
o What are the privileges and immunities????
o Who is a citizen??
Free slave in the north?
Privileges?
o Carrying a gun and going back to the
south??
Widely accepted: FUNDAMENTAL privileges and immunities
guaranteed to own citizens (New York cannot treat NYers
differently with respect to ppl from NJ regarding fundamental
things privileges and immunities)
o I.E. NYers cannot vote in NJ
o Denying people to serve on NJ jury
o Equal access to state properties
th
o 14 Am. Privileges OR immunities**
Extradition Clause: Requires states to deliver fugitives from their state back to
the state where they committed the crime
o Work with one another to serve larger
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Fugitive Slave Clause: Returns slaves back to states where their masters are
o Constitution accepts tacit approval of institution of slaver
o Free states want to make it a felony from someone from south to come up
and kidnap slave and return them back
Northern stats made it felony making it difficult to do
Was this proper?
Is there not some obligation under circumstances to ignore
mandates when constitutional requires something evil to happen?
Statehood Admission and Territories Clause: New states shall be admitted by
Congress into this Union
Guarantee Clause: Requires union to have a republican form of government
and protect each state against invasion;
o What is a Republican government???
Invocation of Political Question doctrine
Privileges and Immunities vs. Dormant Commerce Clause:
o Fundamental Rights and privileges conferred to State citizens:
Discriminating: against out of staters ability to exercise
constitutional rights
Right to practice particular profession
Scope: Limited (vs. DCC kicks in anytime re: interstate
commerce)
o Only protects citizens (FLESH AND BLOOD)
o Requires overt facial discrimination against non-residents to be triggered
(No motive)
o No market participant exception: (more active)
Where DCC might not apply, Priv. and Imm. Might apply
o Diff standard of review:
State has to show a substantial reason for the differential
reason, and statutory shows why substantial reason
o No congressional validation
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Whats wrong?
o Treats people as property
o No need to overturn Missouri compromise because no Jurisdiction anyway
o Judicial overreach
Should have been decided by politics
o Morally problematic
o Historically inaccurate
3/5ths comp: some were citizens
o Lack of Textual support
o Counter majoritarian difficulty
Reactions to Dred Scott:
o At time decision was read from bench Scott was still a hired slave for 11
years
Part of the canon: in order to understand basic constitution
o Historical
o Social
o Textual
Demonstrates real flaws
o Political: when should court step in? or stay out?
o Philosophical?
Whether const. should ever be interpreted: morality playing some
role?
Little impact on status of free blacks
o Emerson remarries to outspoken abolitionist
Scotts freed 2 months after
Barron v. Baltimore: [BAD LAW]
Who do Bill of Rights apply to?
o Pre-reconstruction, bill of rights only applies to the federal government
o Very little constitutional involvement in individual rights
o Post barron historical developments
Bill of rights:
o Best way to deal with individual liberty was to constrain congress power
o Federalism: State constitutions were going to be primary guardians of
individual liberty
o Actions on state constitution and state level
Barron says that this is his private property: Just compensation: take my wharf?
Pay me
o Treat Baltimore as a state
o Argument: 5th amendment does not apply for actions by states/cities
Only acts as a limit for federal government
Court says: 5th amendment does not apply to states, barron
booted out of court, no just compensation
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o Marshall supports this by: intent of bill of rights, people who wrote the
Bill of rights were part of national government
Textualist argument: Congress shall make no law NOT States;
Specifically federal government
Role of states in the constitutional system:
o Worried that federal const. will come in and be
more important than states, and states are primary
guardians, restricts federal government
o Interesting coming from Marshall; ruling in favor of
states
Bill of rights doesnt apply to you: JUST
THE GOVERNMENT
o Nothing in US const. to prevent states from making
rules
States const. have analogous laws
o Concerns: Provides a lot of space for states to violate (individual liberty)
Do not treat Barrons as good law
Immediate effect: Very little action (legally) involving civil
liberties
o Fed. Govt isnt doing much
Only time Sup. Ct. invokes supreme court
overturning federal law is DRED SCOTT
Causes of the Civil War:
o Ideological conflict
Slavery v. free labor
Westward expansion
Fugitive slave laws
Abolitionism: social movement; takes off; and exerts
influence over party politics leading to election of Abe
Lincoln as president
o Catalyzing moments:
Uncle Toms Cabin
Dred Scott
o 1961-1865: 2% of Am. Population dying from Civil War
Social dislocation caused by end of civil war
Reconstruction: 1865-1876
Reconstruction Amendments:
Ideology of state sovereignty
o Tries to inscribe that into constitution
3 amendments passed immediately after civil war
Rights Provision: Teslls states some things they cannot do
o 13th, 14th, 15th: gives congress ability to do
something if it turns out southern states are not
getting into line
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13th Am.:
o Abolishes slavery
*limited amendment dealing with slavery and invol. Servitude
th
14 Am.
o Passed in response to southern resistance to reconstruction
Section 1: clause 1:
All persons born or naturalized in the US and subject to the
jurisdiction thereof, oare citizens of the US and of the state
wherein they reside (overrules Dred Scott)
Sec. 1: Clause 2:
No state shall make or enforce any law which shall abridge
the privileges or immunities of citizens of US**
(Interpretive problem)
Sec. 1: Clause 3:
Nor shall any state deprive any person of life, liberty or
property without due process of law: must figure out term
liberty
Sec 1: Clause 4:
Nor deny to any person within its jurisdiction the equal
protection of the laws
Section 5: The congress shall have the power to enforce, by
appropriate legislation, the provision of this article: empowers
congress to pass laws if states do not get in line
th
15 Am.
o Sec. 1: The right of citizens of
The 2 Privileges and Immunities Clauses:
o Artivle IV: the citizens of each state shall be entitled to all privs and
immunities of citizens in the several state
What are the privileges or immunities protected under the 14th amendment?
All rights essential to national citizenship?
The bill of rights?
o Only some of the bill of rights?
Slaughterhouse cases:
Picked a case that would not be so political
13th Am.
Privileges and immunities
Equal protection
Due process
Facts:
o Butchers cannot slaughter at house; but had to bring them to the Louisiana
slaughter house and pay a fee
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Race discrimination
Civil Rights Act is unconstitutional: Congress doesnt have the power by Sect. 5:
o Federalism:
o Fourteenth am. Says:
Sec. 1 No state shall deny to any person within its jurisdiction the
equal protection of the laws
Sec. 5: The Congress shall have the power to enforce, by
appropriate legislation the provisions of this article.
Congress cannot use its power to regulate private conduct
Give a cause of action to sue states if they engage in race
discrimination
Federalism:
o The Thing Congress is trying to remedy is what could be argued, states are
doing nothing, that might call congress and get them involved
Textual modality: Textualist vs. Purposivist (placing it in historical context)
o Congress has different ways to regulate private action
Commerce clause
Congress cannot regulate private action through Sect. 5 and
substantive provisions cannot tell them how to regulate
each other
Decision about the scope of congress power
Supreme Court shuts it down right after civil war, declaring end
of reconstruction
Congress had to start relying on other sorts of constitutional power
o State action in context:
State power is implicated in most private conflicts
Some state action cases are easy
State action is state passing law
o Any time state leg passes law; state action
o The more govt actions get privatized gets really confusing
o Context is court is trying to do something about race discrimination
State action in context
o Role of race discrimination in development of the doctrine
Prior to the civil rights act of 1964, there was no federal law
regulating private race discrimination
Marsh v. Alabama:
Distribution of religious pamphlets
Outside of post office
Anyone can walk around the shopping center where marsh arrested, open to
public
Material facts that Alabama was state actor
o Owner opened up property in general
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Last Class:
o 14th Am.:
State Action Doctrine
Public Functions (Exception)
Entanglement (Exception)
How to approach Constitutional problems
o FIRST: Does the Govt have the power to enact the law?
Federal Law: Look to Const.
State Law: Police power
o If YES: THEN Ask whether the law violates any other constitutional prov?
Overview of 14th Am.:
o Equal Protection:
Rational Basis
Strict Scrutiny
Intermediate Scrutiny
o Substantive Due Process: Economic Liberty
o Substantive Due Process: Non Economic
th
14 Am. Equal Protection Clause:
o NO STATE, shall deny to any person within its jurisdiction the equal
protection of the laws
THE FED. Govt through 5th Am. Cannot violate life, liberty or
due process of law; BUT Equal prot. Clause not stated, inferred
Therefore APPLIES To Fed. Govt too
The Problem:
o All laws classify and treat people differently
AKA Discriminate
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o Interpretive:
What classifications, what kinds of discrimination are permissible
under the eq. protection clause (EPC) and which violate EPC
Laws that treat similarly situated people different?
Laws that treat people differently based on their race?
o EPC doesnt use race at all
EPC has a problem with classifications that somehow harm
discrete and insular minorities?
o Court solves this problem with tiered scrutiny: (Court made this up, NOT
in const. text) MUST MEMORIZE LEVELS OF SCRUTINY
Think of ends and means
What is purpose: state interest being advanced
And Means: classification of that law and that purpose
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Ex.:
o Underinclusion:
City ordinance prohibits loudspeakers near
hospitals to avoid disturbing patients
Underinclusion: law allows cars near
hospitals to honk horns
o Overinclusion:
State law to prevent drunk driving prevents
anyone under age 21 from drinking alcohol
Many persons under age can drink
responsibly
Harm: Irresponsible young people
Classification: all young ppl
Rule:
o If you use narcotics you cannot apply for employment with NYCTA
As applied here: ppl who use methadone
State interests:
o Safety
o Efficiency:
Costs a lot of money for individual assessment
Blanket rule
ARGUMENT:
FIT: No rational relationship between the means and the purpose:
o Overinclusive re: safety rationale:
Some methadone users present no safety risk at all
o Underinclusive:
People who are similarly situated re: safety risk presented are not
covered by classification
State has legitimate interest:
o Tolerance of overinclusion: too costly to amend law
o Tolerance of Underinclusive:
Deference to the state:
Ct. says willing to tolerate vast amounts of overinclusiveness
o If it is tough for an individual assessment, court says thats okay
Underinclusion: tells the state, it is okay to set a law piece by piece
Simulation:
o NYC Law prohibits any ads on commercial vehicles that are unrelated to
the vehicles business
o State interest (justification): Safety risks
Ads distracts drivers and pedestrians
o What is the classification and what is the appropriate level of scrutiny?
Rational Basis
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o Fit
Overinclusion
Underinclusion
Can bring suit for EPC under either
Cleburne-Moreno-Romer Trilogy
o Rational Basis (with bite???)
o Legitimacy of states interest
Each case focuses (mostly) re: purpose
Unicorn Law
o Moreno:
a bare congressional desire to harm a politically unpopular group
cannot constitute a legitimate state interest.
This does not cut it under rational basis test
o Default Rule: rational basis
Some legitimate reason
Romer v. Evans:
Amendment in State of Colorado:
o Enactment at issue: Amendment to Constitution of the State of Colorado,
which was adopted in a statewide referendum.
Due to ordinances passed in Co. municipilities banning
discrimination based on sexual orientation re: housing,
employment, education, public accommodations and health and
welfare services
Explicitly: More than repeal or rescind provisions.
o Prohibits all leg, executive or judicial action at any
level or state or local govt designed to protect the
named class of homosexual persons, gays and or
lesbians.
Passed by referendum
In order to have some sort of protection under the act, would have pass more laws
Being classified: set of laws
State interest:
o Promoting freedom of association
o Save money
o Moral disapproval
In order to attack States Argument:
o Want to apply Strict Scrutiny Test
Court says we want to apply rational basis test
o No legitimate state interest because of:
Purpose
BUT Animus is not a legitimate state interest (See Moreno)
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Re: Racial tensions between communities of color and local police officers, the
police chief assigns officers to certain neighborhoods based on their race
Re: After a prison riot triggered by racial tension, prison officials decided to
segregate based on their race
Purpose of 14th am.
o Race based classifications as non-invidious, 14th am. Should not be
concerned
Anti-subordination vs. Anti-Classification (classifications are bad, regardless of
winning or losing)
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Last Class:
Rational Basis Scrutiny
o Romer v. Evans
Strict Scrutiny:
Invidious Racial Classifications
o Korematsu
o Loving v. Virginia
Plessy v. Ferguson:
Harlans Dissent:
What was so terrible about segregation?
o EPC doesnt say anything about separateness. All it talks about is
equality.
Anti Classification theory: Problem with segregation is act of classifying, all
raced based classifications stigmatize and not good to classify race in any
purpose, regardless of anyone who benefits and regardless of whos harmed by it
Anti Subordination Theory: Different way of thinking of harm suggests by
segregation; by one group to subordinate another group
o Classifications are not necessarily bad/problematic; only when they are
used by one team to harm another team
Which vision is correct?
The Road to Brown:
The product of years of gradual attacks of school segregated
Argument that social movements are the engines of effective legal change
Marks a point of transformation of US supreme Court
Revolutionized const. law; voting rights, death penalty
o What did the Warren Court do during late 50s and 1960s in an effort to
reconcile with text + history of the constitution
Brown v. Board of Education:
Background Facts:
o The original split on the Brown Court:
4 Justices want to invalidate segregation
2 votes to uphold segregation
Reed and Vinson
o Vinson just before vote dies
Earl Warrant appointed as Chief Justice
1953
5th vote to strike down segregation so
long as the Court speaks with one
vote
3 undecided votes (Frankfurter, Jackson & Clark)
Frankfurter tries to have a reargument based on the original
intent of the 14th amendment
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When is it appropriate for a judge to go along with decision for political reasons?
Unanimity vs. Compromising principles?
o Unanimity is critical for countrys acceptance of decision
1) Regulation at issue?
o Segregation of public laws within state schools based on rules
Argument:
o For the State:
Textualist: All the equal protection clause requires is that everyone
gets the same equal education, doesnt have to be separate or
integrated
Historical: Segregated schools (and segregation) was common
place;
Congress required segregation in district of Columbia
schools
Whatever 14th am. Was designed to do, hard to believe that
Congress wanted desegregation when they were legally
requiring segregation
o Plaintiffs argue schools are not equal
Court says:
o There is a problem with historical argument;
o What does living constitution mean?
o Justifying its decision for rejecting segregation:
Segregation denotes inferiority as a result of segregation;
Relies on social science
o Segregation causes stigma;
o Stigma creates negative effects
Classifications in Brown were designed to support segregation
Following brown:
o Criticism against NAACP Legal strategy
o Argument: alt. strategy was: Just make the schools EQUAL, doesnt need
to be integrated. But at least ensures equality.
Whats wrong with the Brown opinion?
o Although rightly decided, as a model decision: is not one
o Textual: Not entirely clear that text requires integration
o History: At the time the 14th am. Adopted, segregated schools were legal in
other states
o Doctrinal: Stare Decisis?? None.
o Prudential: Kenneth Clark Doll Study problems: if decision is based on
that study being true, it is to weak to base this opinion
Questions case leaves unanswered?
o Not really clear how much Plessy is overruled
o Following: widespread per curiam decisions overruling state laws bc
unconstitutional based on 14th EPC
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o Theory of EPC?
Anti Subordination? Vs. Anti Classification?
Classification: Bad when used for racial subordination
o Does Brown apply to federal govt?
Boiling v. Sharpe (yes 5th am.)
Ct. Reads equal protection clause holding Brown applies to
fed govt
Reactions to Brown:
o Long term resistance
o Resurgence of KKK
o Civil Rights Act of 1964: at that time national political consensus to stand
behind brown
Maybe Court when operating alone, limited in its ability to take on
an ideology
Once the Court has a natl political consensus (public opinion
shifting on an issue) thats when we can rely on courts to shift
social vision and serve as beacons of social justice
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Invidious Discrimination
o Brown v. Board of Ed
Discriminatory Impact
o Washington v. Davis
o Personnel Administrator v. Feeney
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o Arlington Heights
Richmond v. J.A. Croson:
o Purpose: Is to smoke out illegitimate uses of race by assuring that the
leg body is pursuing a goal impt enough to warrant use of a highly suspect
tool
What state interest in an employment context be sufficient to be
considered remedial
o Ct. says: Taking Fit inquiry Seriously
o Strict scrutiny to race based programs
Put in place to remedy specific race based discrimination
Unlikely court find other state interests
Simulation:
o Strict Scrutiny:
Narrowly tailored
To a compelling state interest
What is a compelling state interest?
o Education & Diversity in education, and the
benefits
o What would demonstrate?
Race cannot be primary variable
Individualized:
No separate track for minority students
Grutter v. Bollinger (838)
Michigan law school admissions looks at factors in addition to race (Plus
factor)
o ARGUMENT:
Strict Scrutiny Applies:
Standard: Narrowly tailored to Compelling States
interest
o States interest in achieving diversity is not
compelling;
o Rules in Crosson apply in law school
admissions policy just like they did with
employment
No compelling state interest
For the STATE:
Diversity is compelling
Diverse legal environment
Exposure to diverse culture
No racial classification
o OPINION:
Strict scrutiny applies to all racial classifications regardless
of benefit or burden to minorities
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Alienange Discrimination:
o Classifications against persons based on citizenship status
o General rule: Strict scrutiny applies
Look at text of EPC: 14th am. Talks about persons
Protections of 14th am. Might extend to ppl NOT citizens
o Exception: State regulations: classifications based on alienage, self govt
and democracy
Rational basis scrutiny applies: (Laws that discriminate against
noncitizens in their ability to vote, non-juries, political office,
certain jobs)
Congressional approval
Plyler: Scrutiny
o Broad and narrow versions of holdings of cases read
o Facts:
Tx law denies education
Declares unconstitutional
**For outlines: Separate from everything
Court was dealing with vulnerable population, decided that
the law being so broad, applied across board, rational basis
with bite
Other Classifications:
o Illegitimacy intermediate scrutiny
o Age: rational basis
o Wealth: Rational basis
o Disability: rational basis
o Sexual orientation: rational basis
INDIVIDUAL RIGHTS: What is Liberty
Positive Rights
o Affirmative right to something
Ex. Housing, food, shelter
Generally not recognized
Negative Rights
o Right preventing the govt from doing something to you
o Force field against govt regulation
Area of conduct that govt cannot touch
What is textual source of the right?
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Lochner:
Statute at issue: Law limited amount of hours bakery employees work
State Interest:
o Public health advanced:
Protects:
Workers that are tired, safety issues, flour dust inhaled
People buying bread: contamination
o State taking sides of economic group between employees and employers
Argument:
o Right to Contract: Textual source:
State using power
Court says unconstitutional: violating 14th am. Due process clause:
Analysis:
o Court reviews to see if its fair, reasonable, appropriate exercise of the
police power of the state or is it an unreasonable unnecessary and arbitrary
interference
Court says there is no direct relation between means and health
Court thinks this is labor law: govt getting involved in private economic
relationships and taking sides
o Court says bakers can protect themselves in bargaining power
Unenumerated rights: no liberty to K
Liberty of K limits state legislatures to regulate certain
types of economic relationship
Skeptical towards laws not exactly passed for a specific
purpose
o Impact: every economic relationship infringes on
liberty of K
Dissent: Harlan:
o This is a valid law about health
o Courts should be more deferential
Dissent: Holmes:
o 14th am. Does not enact Herbert spencers social status
o A constitution is not intended to embody a particular economic theory
whether paternalism and the organic relation of the citizen to the state or
of laissez faire
Lochner Decision Critiqued:
o Made up liberty of K and gave a lot of power and not in const.
Is it wrong to eliminate right to K, how is it wrong to term
pregnancy?
o Review of means and relationship?
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Data showing flour dust not good for health, court overstepped
bounds by not relying on legislative reports
Takeaways:
o Known for est. liberty of K under due process clause
o BAD LAW
o Neutrality principle
Court should not take sides
o Careful scrutiny of means and ends under the due process clause
1930s pressures causing demise of Lochnerism
o Economic pressure
Great depression
Bargaining power becomes a major joke
o Political pressure:
Court packing plan: trying to get Sup. Ct. to back away and allow
states to regulate economy
o Intellectual pressure:
Legal realism:
Questioned whether judges are formalistic arbitrators
neutrally applying law
Formalism:
o Law reflects a set of neutral principles
o Judges can apply these principles in a formalistic
way
Legal realism:
o Law reflects political choices with winners and
losers
o Political choices should be made by legislatures
rather than courts
West Coast Hotel v. Parrish:
o Law est. minimum wage for women and minors
o Court upholds minimum wage law, overturning lochner
Liberty of K argument: Court says not based in text anymore
Ct says: legitimate public purpose
Legislature thinks minimum wage law helps solve problem, apply
deference, get out of legislatures business
Rational basis scrutiny applies
o Nullify economic liberty due process clause provided
o Economic liberty: presume constitutional
Presumption of Constitutionality:
o Post Lochner era deference to legislature
Why a presumption of constitutionality?
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Goals
o What makes for a good exam?
Whats on the Exam?
Four hours long, 2 parts
Part 1: 2 essays, 3 hours
o In role as a law clerk or attorney
Part 2:20 multiple choice questions, 1 hour
o How would the judge resolve the question, and why.
How do I study for the exam?
Draft your own outline that integrates:
o Casebook
o Class notes
o Commercial outline
o Syllabus
Take practice exams
What does a good exam do?
Show deep understanding of the law and relevant authority
o What do you know about substantial effects? How
has it been applied in case law?
Identified material facts in fact pattern
Analogizes and distinguishes between fact patterns and
relevant case law
Does more than spot the issue
States the rule and applies, also apply the rules to the facts
Show good judgment on what to focus on
Clear topic sentences and headings
Well planned out essay
Present arguments on both sides
o What do poor exams do?
They contain no detailed analysis
They fail to identify or apply relevant case law
They dont answer the questions asked
They dont identify material facts in the fact pattern
They are poorly written
They misstate relevant law
They fail o spot critical issues
o Hat un-enumerated rights are protected under the Due process Clause?
o How should the court define the scope of the right to marry ans the right to
custody of ones children?
Is it a Fundamental Right?
o Is the right deeply rooted in the nations history and tradition?
Yes
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No
Non-Economic
o The Right to Marry
o The Right to Custody of Ones Children
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compensatory
damages
is
unreasonable (no evidence) amounts
to an assertion of constitutional
injury
Every dispute re: evidentiary sufficiency in a
state civil suit poses question of const.
moment; subject to a review in this court.
Introduction & Framework (pp. 933-939)
o Little depends on whether Court uses due process or equal protection as
basis for protecting a fundamental right
Under either provision: must decide whether claimed liberty is
sufficiently important to be regarded as fundamental, even though
it is not mentioned in the text of const.
Once determined fundamental, strict scrutiny is used
Due process vs. equal protection (as basis for protecting
fundamental rights is in how constitutional arguments are
phrased.)
If right is protected under equal protection: issue: whether govts
discrimination as to who can exercise the right is justified by
sufficient purpose
Distinction: if a law denies right to some, while allowing it
to others, discrimination can be challenged as offending
equal protection or violation of right can be objected to
under due process
o 9th Am.:
Not source of rights, rights not protected under it.
Used to provide textual justification for the court to protect
non-textual rights (right to privacy)
Justification for the Court to safeguard unenumerated
liberties
o Procedural Due Process:
Existence of right triggers 2 distinct burdens on govt:
Substantive: Justify an infringement by showing that its
action is sufficiently related to an adequate justification
(necessary to achieve compelling purpose
Procedural: If taking away persons life liberty or property,
must provide adequate procedures
o I.E.: Custody of children:
Termination of custody:
Must show necessary to achieve
compelling purpose
Procedural: govt must provide
notice and a hearing before
termination
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If necessary to meet with professor prior to exam, need to set up apt prior to week
of exams, but can meet prior to week of exams
*available by e-mail
Re Exam:
o No const. text provided during exam
o Level of knowledge re: bad caselaw?
I.e.:
Lochner is bad law (KNOW THIS)
Michael H. v. Gerald D:
o Carole and Gerald married:
Victoria (daughter) father, wanted to see Victoria
But cali has irrefutable presumption that married couple are
biological parents of child of marriage
Argument:
Michael: Fundamental right to be with biological child
See eg. Stanley
Narrowly: Adulterous relationship, product of adulterous
affair
Court says:
Scalia:
o Do states traditionally award rights to unmarried
fathers when mother is married to someone else?
NO.
Presumption of paternity goes to husband
Tries to frame rule
o Refer to specific level relevant protection denying
asserted right to be identified
o Tension between this case and Stanley
Stanley:
Court cares a lot about biological relationship between
father and child
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Technique that Court has in some ways to address cases that dont
necessarily fall into this trap
o Takeaways:
Focus on family as defined by blood, adoption or marriage (moore,
belle terre)
Focus on parents right to control certain aspects of a childs
upbringing (meyer peirce troxel)
Braod and narrow constructions of the troxel holding
Buck v. Bell:
o Movement for compulsory sterilization began recently
o By 1930s 30+ states passed laws for ppl insane or idiotic
Skinner v. Oklahoma:
o Oklahomas Habitual Criminal Sterilization Act:
Habitual criminal as a person who having been convicted of two or
more times for crimes, amounting to felonies involving moral
turpitude, either in Ok or in a court of another state, is thereafter
convicted of OK felony and sentenced to a term of imprisonment
o Similarly situated ppl, one for larceny and one for embezzlement, one gets
sterilized, and one doesnt
Griswold v. Ct.:
o *Significant: brings substantive due process to light
o Statute at issue:
Any person who uses any drug medicinal article or instrument for
purpose of preventing conception
o State interest:
Prevent extramarital relations
Procreate
Moral disapproval
o Appellant argues:
Decisions re: health
Right to privacy
Right to make important decisions re: procreation
Decisions are made in home, bubble around your home
o Combination of rights:
1st am., 3rd, 4th, 9th, 14th
o Fit argument:
Overinclusive & Underinclusive
Less restrictive alternatives: seeks to achieve its goals by means
having max destructive impact upon relationship
Criminalize adultery
o Majority Opinion: (Douglas)
List of different rights
1st, 3rd, 4th, 5th, 6th, 9th, 14th
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o Abortion
Roe v. Wade
Planned Parenthood v Casey**
Gonzales v. Carhart
Last Class:
o Right to keep fam together
Moore
Belle
o Parental rights to control childrens upbringing
Troxel
o Right to Contraception
Griswold
Following Griswold:
o Extends to unmarried people
o Then Carey: Right to contraceptive use
Prior to Roe v. Wade: [TIMELINE]
o Substantive DP Cases Leading to Roe:
Skinner: Right to procreate (infringed when state forces you
Griswold: Right to contraception
o Loving: Right to Marry
Stanley: Right to custody over ones
children
Why is this hard to talk about:
o Interdisciplinary
o Strong political convictions
o Personal experience
Roe v. Wade:
o Historical Context:
As of 1960 all 50 states and district of Columbia outlaw abortions
Shift in early 1970s
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o Public opinion
o Doctrine
o Legal reform
At time of Roe, many states started liberalizing, or making
exceptions re: life of mother
Ongoing reform process
o Question: is it appropriate for Court to step in and
shut down?
o Statute at issue:
Art. 1196 of Texas penal code
Prohibits abortions except for the purpose of saving the life
of the mother
o What are state interests?
Decreases extramarital affairs or unmarried
people having sex
Protect women: abortion procedure presents
a risk to health of women
Concern of unsafe procedure
Protects life of fetus
o If you represent Jane Roe, how would you describe
your clients liberty interest in this case?
Theory 1: Right to bodily integrity
Look at skinner: Invasion of body
(right to protect themselves from
unwanted sterilization)
Ability to make decisions about your
family Griswold
Troxel: Right to Care Custody and
Control of children
o Blackmun overturns
In constitution locates 14th Am. Substantive Due Process:
(Similar to Lochner) Right to privacy
o Legal Standard: Strict scrutiny
Pg. 483: Where certain fundamental rights
are involved court has held that regulation
limiting these rights may be justified only by
a compelling state interest, and that
legislative enactments must be narrowly
drawn to express only the legit state interests
at stake
Simulation:
o Not a fundamental Right
No basis in text (unenumerated)
Not deeply rooted in History
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****At the time that 14th am. Was passed, states regulated
abortion, not trying to protect this right for a woman to be
able to have an abortion (states regulation of abortion)
o State has a compelling interest to protect safety of woman and fetus
14th Am. Due process clause; nor shall any state deprive any person
of life, liberty, or property, without due process of law
Implications:
o ALL abortions caused by rape, incest, medical
issues, are still illegal
Roes Trimester Framework: NOT GOOD LAW
o Compelling state interests: life of mother and life of fetus
When does life begin?
First trimester: Neither state interest is compelling, so state
cannot regulate
Second Trimester: State interest in maternal health becomes
compelling as abortions become riskier
o State can regulate in ways that are reasonably
related to the protection of maternal health
Third Trimester: Point of violability, riskier, and fully
developed, STATE CAN PROHIBIT ABORTIONS
o As abortions became safer, states interest in
protecting maternal life began to move later in
pregnancy
But, viability occurs earlier, since science
can maintain life of fetus earlier in
trimesters
Planned Parenthood v. Casey: THIS IS GOOD LAW
o Change in personnel
o Asks overturn Roe v. Wade
o Statute at issue:
PA Passes abortion law that doesnt flatly prohibit it but chip away
access to abortions
24 hour waiting period prior to abortion
Doctor needs to provide information
Minors getting abortion: must get parental consent
o BUT can get judicial bypass if cannot get parents to
consent
Spousal notification:
o Must notify spouse with judicial bypass
Reporting requirements
o Weird aspects of this case:
Joint opinion: OConnor, Kennedy, Souter all appointed by
Republican presidents
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Last class:
o Abortion:
Roe v. Wade
Planned Parenthood v. Casey
Gonzales v. Carhart:
*forbid a particular kind of abortion
Contained no health exception
o Requirements: Post-viability abortion must allow
exception that allows for protection of mothers
health
o State interests: respecting dignity of human life
o Act doesnt contain health exception but court
upholds law
Lack of medical consensus re: safety of
procedure
Access to the method is available f you go to
court and challenge as applied method
Court gives weight re: moral disapproval of procedure
Talks about states legit interests not fundamental rights
Cruzan:
Missouri state law that requires clear and convincing evidence of the
incompetent persons wishes
o What are state interest?
o What constitutional right or liberty interest is infringed?
Facts:
o Parents want to terminate hospital preservation
o Hospital says no
o Statement made to roommate stating wouldnt want to live as a vegetable
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Glucksberg approach
o HISTORY
VS.
LAWRENCE:
o History is starting point, but not an ending point but it is not always
standard
Lawrence v. Texas:
Texas statute criminalizing only sex sodomy
o (Different than bowers)
State interests:
o Moral disapproval
o Limiting transmission of sexually transmitted diseases
Problem:
o Kennedy is unclear in what right is being protected
Kennedy: on history
o History and tradition are the starting point but not in all cases the ending
point of the substantive due process inquiry
Simulation:
o Re: Same sex marriage prohibition:
Lawrence is about location
Not about bedroomapplicability??
o Acts involved in Lawrenceconnected to statute?
o Rights stemming from conception and sodomy, distilled as cultural and
traditional in constitution
o Rational basis with bite:
Kennedys historical analysis:
o Last 50 years matter, all sorts of regulated behavior
o European Court to help define what liberty means
Legitimacy of legal authority
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Prof. Gewirtzman
4pm Tues/Thurs
Theme: Federalism
One of 2 same sex marriage cases decided in 2013; decade long legal
strategy to challenge laws
Initial strategy was to challenge based on violations of state constitutions
Federal claim could end up in sup. Ct., and be a loser
Cultural, legal and doctrinal evolution;
Bans violated state constitutions, but legislatures began to amend
on their own
Romer and Lawrence didnt exist; doctrinal infrastructure
needed to begin making arguments for viable const.
challenge for prohibition on same sex marriage
Hollingsworth v. Perry
Challenge to calis ban on same sex marriage
Court held appeal nonjusticiable bc didnt have standing
Decided Windsor on merits.
Deals with Sect. 3 of defense of marriage act: defines marriage under
federal law as a legal union between one man and one woman
States can recognize, but not federal
Married in Canada, recognized in state, but not legally recognized under
sect. 3 under DOMA, but now has to pay $$$ on estate taxes that she
would have not had to pay
STATE interests:
Uniformity
Moral Disapproval/Moral Approval of opposite sex marriage
Economic interests
Windsor Argument:
EPC claim based on sexual orientation
Stigmatizes for the purpose of suggesting strict scrutiny
Animus is not a legitimate state interest
Sex discrimination claim: (automatically be heightened to
intermediate scrutiny)
Reframe most equal protection claims as substantive due process
claim: Right to marry is a fundamental right regardless of sex
Loving
Can congress do this?
Art. 1
10th Am. (truism and arguments are losers)
Commerce Clause
Holding:
Found section invalid;
Federalism decision: Court is placing a limit on federal power;
Case is about moral disapproval? Not federalism; not going to be a
sufficient state interest
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Simulation:
o Windsor supports; State of Arcadia has right to define marriage
Affirmative Rights: US const. has been determined that you are not afforded ANY
affirmative rights (positive rights)
o Not recognized under federal constitution
Right to housing
Right to food
Right to shelter
San Antonio:
o Texas school financing scheme
Based on local property taxes
Constitutional Bases:
o EPC claim
Law discriminates based on wealth
Fundamental right (substantive due process)
o Texas Argument:
Not explicitly stated in const.
Not deeply rooted in history
Court:
o If they recognize one affirmative right, will
recognize more affirmative rights
Holding: Property rights does not violate DP rights
o Institutional competence concerns
o If viable claim, litigation will continue re:
independent financing scheme
o Normative:
Need right to education to enhance other rights like right to vote
Takeaways:
o No fundamental right to education under Due process clause
o Wealth classifications are going to be subject to rational scrutiny
Procedural Due Process:
Liberty Rights, whether State is justified in infringing that liberty
What process it has to give you if it wants to take away your property
Theory 1 of Due Process:
o Belief that purpose of due process is to make them feel okay Dignitary
Theory (not taken seriously) (Normative)
o Utilitarian Theory: Make sure got it right; receiving the right outcome
(normative)
Use of an impartial decision maker
Transparency
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Explanation of decision
Procedural Due Process Overview:
o FIRST: has the govt deprived a person of a life, liberty, or property under
Due Process Clause?
Pre late 60s: Question is common law
Property deprivation and procedural due process kicked in
o But there was no disability, property, social security,
etc. benefits
Nothing that would be called property in
modern administrative state
The new property in Goldberg v. Kelly (Court abandons but
only after termination, claim that they have a property that was
been taken away) rejects common law argument, deprivation of
property sufficient to trigger procedural due process guarantees
IF YES: SECOND: What process is Due?
o What does the Govt have to give you in terms of
process
Goldberg v. Kelly:
Hearing must be at a meaningful
time in a meaningful manner
o Timely and adequate notice
(detailing reasons for a
proposed termination)
o AND effective oppty to
defend by confronting any
adverse witnesses and by
presenting his own
documents and evidence
orally
After Goldberg:
o What other procedures are
you given before taking away
property benefits
o What is actually considered
to be a deprivation
**Deprivation of govt benefit (being withdrawn)
modern admin. State generated benefits: welfare, drivers
license; but then takes them away
Board of Regents v. Roth:
o Wisconsin State University decides not to rehire Roth after his one year
contract ends
Is there a deprivation of life, liberty, or property?
If so, what process is due?
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Section 5 Overview:
o Congress has better leeway WHEN THE COURT APPLIES
HEIGHTENED SCRUTINY to the constitutional violation (Hibbs)
o Congress has less leeway, WHEN THE COURT APPLIES RATIONAL
BASIS SCRUTINY to the constitutional violation (Garrett)
City of Boerne: 1997
o Congress response to Smith
Congress uses Section 5 authority to pass RFRA
RFRA requires that substantially burden the exercise of religion
through generally applicable laws must show COMPELLING state
interest and that the means used are the least restrictive
o RFRA: Legislative Findings:
Congress found that framers of const. recognizing free exercise of
religion as an unalienable right, secured its protection in first
amendment
o Statutory claim
o Passed by congress under section 5
o Strict scrutiny
o Background:
Boernes historic preservation law prevents church from expanding
Church invokes RFRA
City of boerne argues that RFRA is beyond the scope of Congress
section 5 powers
o Congress is interpreting not enforcing
o Court says: RFRA not constitutional
Not enforcing a right, it is changing the meaning of that is
o Looked at Legislative History:
First drafted a draft way too much power but nixed that
Then a more specific document with limited power
If congress is able by ordinary legislation to interpret its
constitional power, it means that the constitution wont be
surpreme
Tiny little bit of evidence, that states are running around
passing laws motivating religious bigotry
Breadth of law is so sweeping; RFRA is applicable to
challenge virtually any of these laws
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11th am: Prevents states from being sued in federal court by citizens of their own
state or other states for money damages unless
o Congress abrogates 11th am immunity
o Congressional abrogation ONLY under section 5 of the 14th am.
Signals that you have an 11th amendment issue:
o Citizen suing a state
o In federal Court
o For money damages
o For state violation of a federal law
Board of Trustees v. Garrett:
o Title 1 of the Americans with Disabilities Act (ADA) prevents state
employers from discriminating based on disability and requires state to
make reasonable accommodations
o Congress abrogates the 11th amendment: state employees can sue state
employers for money damages in federal court if state violates the ADA
Congress
could not have abrogated it;
because
they could not have passed it
under
section 5 of 14th am.
Court
holds: congress went beyond
section 5
immunity when it abrogated 11th
am.
o STEPS COURT
USED:
FIRST: Substantive Constitutional Violation Congress is trying to
remedy?
To prevent disability discrimination
SECOND: History of pattern of state constitutional violations?
43,000,000 people with disabilities;
4.3 mil people are employed by state employers of ppl with
discrimination
o Specific discrimination by state employers
Court applies City v. Boerne Test: Congruence and Proportionality:
Finds ADA is not congruent in the proportionality
o Evidence is not enough
Dissent says that Congress evidence was
dismissed based on legislative findings
Should the court be more deferential when congress issues
these findings
o Courts rejection of Congress homework
Nevada Dept of Human Resources v. Hibbs:
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o Congress abrogates 11th am. And allows state employees to sue their
employers for money damages in federal court for family and medical
leave act violations
o Substantive Constitutional Rights at issue?
Gender discrimination reinforced stereotypes of men and women
Violations by private employers
Some evidence that states are applying policies in different ways
Evidence of general discrimination in the area
Holding: Court says it is congruent and proportional (vs. Garrett)
o Maybe range of conduct could fall in target
o Remedy is limited in scope
Doesnt apply to employees of higher ranking positions
Advanced notice
With evidence of their leave
o Certification of medical professionals
12 weeks was of limited grounds
o Outer circle is a little bit smaller
o Nature of injury and then looking at scope of remedy
Congress validly abrogated state sovereignty and allows suit to go
forward
Distinguishes garrett bc underlying nature of const. is different
If constitution is trying to remedy; courts going to be different than
findings; give deference
Court would be more deferential to congressional findings to the
legislative history of that sort of violations by states
o Simulation Penda:
When providing an answer you give your answer: I.e. Congress is
likely to have exceeded their scope of section 5 power
Then apply 3 part congruent and proportionality (Boerne)
test provided in Garrett
o First state the substantive constitutional right at
issue?
Second state/identify a history and pattern of
Constitutional violations
Third: Is the remedial scheme
congruent and proportional to the
documented violation?
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