Constitutional Law

  1. Judicial Review
    • Marbury v. Madison -- Where the Constitution, as interpreted by SCOTUS, conflicts with the laws or actions of the other branches of government, the SCOTUS may declare such laws or actions unconstitutional and invalid
    • The court will review acts that are related to statutes which must conform to the powers granted in the constitution
  2. Judicial Review Expanded
    • Martin v. Hunter's Lessee -- constitution first establishes the SCOTUS and thus its power is supreme over that of state courts
    • Cohens v. Virginia -- extends SC jurisdiction over criminal cases
  3. Modes of Interpretation
    • Flatto -- Language (text) = Scalia, judicial precedent, history, purpose, consequences (impact) = Breyer
    • Bobbitt -- historical, textual. structural, doctrinal, ethical, prudential
    • Dworkin -- values and morals
    • District of Columbia v. Helller -- interpretation of the 2nd amenmendment and its application today
  4. Counter Majoritarian Issue
    • Ely -- court needs to be more vigilant to safeguard liberties when there is a breakdown in the political process
    • - because the judiciary is the weakest branch it is best suited for the power of review because they are least likely to abuse it
  5. Limits on the Court
    • 1) Attitudes of the Court -- who they grant cert to and what modes of interpretation they use
    • 2) Article III specifications
    • 3) Other Branches -- lower federal courts, FRCP, horizontal separation of powers
    • 4) Exceptions and Regulations Clause
    • 5) Standing
  6. Congressional Control of the Judiciary
    Ex Parte McCardle: the power of the legislature to make exceptions to the review power of the court is expressly constitutional
  7. Standing - Values Served
    • 1) Promotes separation of powers by restricting judicial review
    • 2) Serves judicial efficiency by preventing a flood of lawsuits
    • 3) Improves judicial decision making by ensuring that there is a specific controversy
    • 4) Serve fairness by ensuring that people will raise only their own rights and concerns
  8. Standing
    • Allen v. Wright
    • 1) Plaintiff must allege he or she has suffered or imminently will suffer an injury (Injury)
    • 2) Plaintiff must allege that the injury is fairly traceable to the defendants conduct (Causation)
    • 3) Plaintiff must allege that a favorable federal court decision is likely to redress the issue (Redressability)
  9. Political Question
    • Baker v. Carr (Vieth = independant, descending order of importance)
    • 1) Textually demostrable commitment of the issue to a coordinate political department (responsibility assigned to another branch)
    • 2) Lack of judicially doscoverable and manageanle standards for resolving the issue (the court can only do what it can do)
    • 3) Impossibility of deciding without an initial policy determination of a kinf clearly for non-judicial discretion (too large a policy analysis before decision)
    • 4) Impossibility of a court's undertaking independant resolution without expressing lack of respect due to coordinate branches of government (will harm another branch that has taken a stand)
    • 5) An unusual need for unquestioning adherence to a political decision already made (the right thing may be to defer, not override)
    • 6) Potentiality of embarassment from multifarious pronouncements by various departments on one question (unity = strength)
  10. Executive Privilege
    • United States v. Nixon -- there is no absolute executive power, it is a balancing act
    • Cheney v. U.S. Court of D.C. -- criminal will weigh heavier than civil in the balancing act
  11. Executive Immunity
    • Nixon v. Fitzgerald -- there is absolute immunity for civil damages for official Presidential acts
    • Clinton v. Jones -- there is no immunity for civil suits for actions taken before the Presidency
  12. Executory Agreements
    President can enter into agreements with foreign heads of state that operate like treaties but don't require Senate approval (are not supreme, cannot conflict with federal statutes or treaties)
  13. Levels of Presidential Power
    • Youngstown Sheet & Tube Co. v. Sawyer
    • 1) President has the strongest power when he has congressional authority coupled with his own authority
    • 2) President has a mid level of power when he has no word one way or another from Congress (acquiescence) coupled with his own authority ("zone of twilight")
    • 3) President has the least power when he moves against Congress and uses only his own authority (unless it is explicitely within his Article II powers)
  14. Models of Presidential Authority
    • Black -- there is no inherent constitutional authority beyond what is specifically granted in the constitution and what congress authorizes through statute
    • Frankfurter -- the president has inherent and independent powers, but those powers allow him to act only until congress acts and tells the president to cease (substantive limits)
    • Douglas -- the president has inherent and independant powers that he may exercise up to the extent that he interferes or usurps the constitutional powers of the other branches (procedural limits)
  15. Intelligible Principle
    • The legislature can handoff its powers with guidance that meets an intelligible principle
    • - delegation by the legislature to an agency
  16. Legislative Veto
    Immigration & Naturalization Service v. Chadha: the legislative veto is not legitimate, there must be bicameral approval and presentment to the president
  17. When a House of Congress Can Act on its Own
    • 1) impeachment
    • 2) trials following impeachment
    • 3) presidential appointment approval
    • 4) treaty ratification
  18. Line Item Veto
    Clinton v. City of New York: LIV is unconstitutional because there is a particular structure in the Constitution of creating laws and this violates it -- it usurps legislative power
  19. Removal Power of the President
    • The President may remove executive officials unless removal is limited by statute
    • Congress may limit removal both if it is an office where independance from the President and if the law does prohibit removal but limits removal to instances of good cause
  20. Foreign Policy
    Curtiss-Wright: there is a broad inherent presidential power in the area of foreign policy (non-delegation does not prevent deferrence and delegation to the President) which cannot be abridged by congressional action and may be exercised to the extent thtat it does not violate constitutional provisions
  21. Civil Rights and War Power
    Hamdi v. Rumsfeld and Boumediene v. Bush: basic procedural civil rights cannot be denied even in times of emergency and war; consider presidential powers and their limits by congress
  22. Federal Power Test
    • McCulloch v. Maryland
    • 1) Is this a federal law authorized by the Constitution?
    • 2) Is this federal law pushing up against another entitites (people, state, branch) liberty/rights to be free from that law?
    • 3) Is there an individual civil liberty concern that is presented by the federal law?
  23. Necessary and Proper Clause
    • McCulloch v. Maryland -- Congress may adopt legislation as long as its ends are legitimate and the legislative is tailored to those means
    • There are implied powers of the federal government and Congress may choose the means with which to execute their implies and express powers
  24. Commerce Clause Era One
    • Gibbons v. Ogden (Pre 1980) -- commerce clause defined broadly to regulate "activities among the states" (intercourse) which includes interstate and intrastate that affects interstate
    • The 10th A is really a reminder to stay within Congressional powers and the commerce clause is an express power
  25. Commerce Clause Era Two
    • Lochner Era (Pre 1937)
    • 1) E.C. Knight Co. & Carter Coal Co. -- Congress cannot dip into states with its power because states maintain the right to regulate (manufacturing, supply, labor) ; manufacturing/production are not commerce (cannot regulate before "commencement of its movement from the state")
    • 2) Houston E & W Texas Railway & A.L.A. Schechter Poultry Corp. -- direct effects on interstate commerce may be regulated while indirect effects may not be regulated, a close and substantial relationship with interstate activity will allow regulation
  26. Commerce Clause Era Three
    • Post '37 Era
    • Court defers to congress allowing regulation of any activities which have a substantial impact on interstate commerce as long as their means have a rational basis and reasonably serve the intended objective
    • 1) Jones Steel, Darby, Wickard -- intrastate may be regulated when there is a close and substantial relationship to interstate commece (makes the effect, not the source, important) (10th A is a truism); cumulative affects are examined
    • 2) Garcia overturns National City -- federal government may dictate to the states concerning commerce
  27. Regulation of Movement of People
    Federal government may regulate businesses that have a substantial affect on the commerce of people interstate (Heart of Atlanta (hotel), Katzenbach (restaurant))
  28. Commerce Clause Present Era
    • 1991 to Present
    • 1) Lopez, Morrison -- there cannot be total government police power without limitations (we cannot use a but-for domino effect to expand power to reach non-commercial local activities); states as laboratories
    • 2) Pierce County, Gonzales -- there are still some area within reach of the federal commerce power if they wall into one of the three categories, but they are not limitless
  29. Three Categories of Commerce Problems
    • 1) the use of channels of interstate commerce (things through which interstate commerce passes)
    • 2) the protection and regulation of the instumentalities of interstate commerce (the actual things that pass through commerce)
    • 3) those activities affecting commerce (substantial relationship/effect)
  30. Substantial Affect on Interstate Commerce
    • Economic/Commercial -- relates to the production, distribution, consumption or exchange of commodities and services for which there is an established and lucrative interstate market (view through a cummulative effect) (rational basis test if the state is actually intending to regulate economics with the statute)
    • Express Jurisdicitional Element -- language in the statute should reference that the activity involves more than a single state
    • Congressional Findings -- evidence giving a rational finding for a connection between the activity and the resulting affect
    • Traditional State Area -- police power, discretion or family and morality law, education policies in-state
  31. Dormant Commerce Clause
    • City of Philadelphia v. New Jersey, C&A Carbone, United Haulers -- If the state makes a law that is seen as thwarting and interfering with interstate commerce then that law will be reviewed
    • If there is a state and federal interest in a certain subject, the federal interest is superior and the states cannot interfere
    • States cannot prefer their own citizens in commerce and discriminate against other states commerce (a state cannot be clearly protectionist)
  32. Dormant Commerce Clause Test
    • 1) Does the ordinance discriminate against interstate commerce?
    • 2) Does the ordinance place a burden on interstate commerce that is "clearly excessive in relation to the punitive local benefits"?
  33. Commerce Clause: Taxing and Spending Power
    • New York v. United States, Printz, Reno, Butler -- incentives for action are ok, but forcing action is not ok
    • It is a means to an unconstitutional end to attempt to regulate within the state's arena
    • The federal government cannot compel states to fulfill federal tasks (no forcing states to make laws and no forcing states to execute laws)
    • Federal government can regulate the state government action because it does not force the state to regulate because the federal government is doing the regulating (federal enforcement with federal resoruces of federal law in the states)
  34. Dormant Commerce Clause Overview
    • Article IV gives states their traditional powers
    • The Supremacy Clause gives the federal government some authority to prevent states from being protectionist
    • Privileges and Immunities (4th A) means that there must be equal treatment of people among the states
    • Full faith and credit may be subject to some public policy exceptions
  35. Incorporation Originally
    • Barron v. Baltimore -- no mention of the states so why would it apply to them? (in the Constitution where states are meant to be included they are mentioned explicitely)
    • *changed by selective incorporation
  36. 14th Amendment
    • You are a citizen of your nation and your state
    • The amendment is meant to focus on the states ("No state shall...)
    • Scope must be determined
  37. Slaughter House Cases
    Vest the Privilege and Immunities clause (14th A) with little power and thus renders it generally useless for Congressional power in the future in terms of protection of states actions
  38. Due Process Under 14th Amendment
    • 1) Procedural is a given -- the individual is protected from the state in procedures against the individual
    • 2) Incorporation (Twining, Palko, Adamson, Duncan)
    • -Selective Incorporation (Frankfurter) -- there cannot be total incorporation, it needs to be limited to those that are fundamental to the American justice scheme
    • -Total Incorporation (Black) -- liberties needs to be limited to the BOR rights and this can be done through total incorporation
    • 3) Substantive -- fundamental liberties (how far does liberty under due process extend?)
  39. Rise of Lochnerism
    • Freedom of contracts is a right protected by the due process clauses of the 5th and 14th A (Allgeyer, Coppage, Adkins)
    • The government can only interfere with freedom of contract to serve a valid police purpose of protecting public health, safety or morals (Lochner, Muller)
    • The judiciary must carefully scrutinize legislation to ensure that it truly serves a public purpose (Weaver)
    • Nebbia was the turning point
  40. Fall of Lochnerism
    • The Constitution does not speak to freedom of contracts, but to liberty (West Coast Hotel)
    • As long as there is a "rational basis" for the law regulating economics, it will be adhered to by the court (Carolene Products, Lee Optical)
  41. Carolene Products Footnote Four
    Certain types of legislation may not merit deference toward constitutional validity -- fundamental rights (BOR), the political process and discrete and insular minorities may need more than mere judicial inquiry
  42. Fall of Lochnerism and Punitive Damages
    • If punitive damages are excessive, they can raise due process concerns
    • The state may impose punitive damages to further its interest in deterrence but they cannot be grossly excessive -- examine (1) degree of reprehensibility (how bad was the behavior?), (2) ratio to actual harm inflicted, (3) sanctions for comparable misconduct
  43. Due Process Strict Scrutiny
    • 1) Is this a fundamental right?
    • 2) Is the constitutional right infringed (is there a roadblock to a fundamental liberty)?
    • .....2(a) if yes, then we apply strict scrutiny under questions 3 & 4
    • .....2(b) if no, just apply the rational basis test
    • 3) Is there a sufficient justification (compelling interest) for the government's infringement of the right?
    • 4) Is the means sufficiently related to the purpose (is the law specifically tailored to the purpose)?
    • .....4(a) Over inclusive means it is too broad and general and hurts the purpose in the end (Stanley)
    • .....4(b) Under inclusive means it is too narrow and does not provide the benefits claimed (Zablocki)
  44. Fundamental Rights
    • 1) Right to Marry (Loving, Zablocki)
    • 2) Right to Custody of Children (Stanley, Michael H.)
    • 3) Right to Keep Family Together (Moore)
    • 4) Right to Control Upbringing (Meyer, Pierce)
    • 5) Right to Procreate (Skinner, Griswold)
    • 6) Right to Privacy (Roe, Casey)
    • 7) Privacy in the Bedroom (Bowers, Romer, Lawrence)
  45. Roe and Casey
    There is a fundamental right to privacy, but the law touches on that right and there is a competing state interest (potential life, health of mother) that allows regulations but not roadblocks or placing an undue burden (significant obstacle)
  46. Equal Protection Scrutiny
    • 1) What is the classification? (may speak about one group or another, may restrict or enforce one group or another)
    • 2) What is the appropriate level or scrutiny? (who is being classified)
    • 3) Does the government action meet the level of scrutiny? (is the classification necessary to meet a compelling government purpose)
  47. Equal Protection Standards
    • Strict Scrutiny -- compelling government purpose that is tailored in a way that is necessary (burden on the government -- applies to race, alienage, fundamental rights)
    • Intermediate Scrutiny -- government purpose with a substantial relationship to that important purpose (burden on the government -- applies to gender, illegitimacy)
    • Rational Basis -- legitimate purpose with a rational relationship to that purpose (burden on the challenging party -- applies for age, health)
  48. Equal Protection and Race Progression
    • Dred Scott -- slaves are not citizens
    • Plessy -- separate but equal
    • Brown v. Board -- segregation cannot satisfy the necessities of the 14th A
  49. Characteristics Examined for Scrutiny
    • 1) immutable characteristics
    • 2) lack of access to the political process
    • 3) history of discrimination
  50. Disparate Impact
    There must be a discriminatory purpose, not just a discriminatory impact (you need both); government actions must be taken because of, not just in spite of, adverse effects on a certain group, the actual purpose of the law must be to discriminate against a suspect class (Washington v. Davis, McCleskey, City of Mobile, Feeney, Palmer, Village of Arlington Heights)
  51. Establishing Discriminatory Purpose
    • 1) historical discrimination patterns in the area/region by this group against this group
    • 2) procedure of the passage of the law
    • 3) legislative history of discrimination
  52. Affirmative Action
    The dominate position of the court is to use the same level of scrutiny when a law is benefiting one class as it does when the law is discriminating against that class
  53. Compelling Interests of Discrimination
    • 1) Specific discrimination that this entity has been guilty of in the past that is remedied (Richmond v. J.A. Croson)
    • 2) Diversity in the classroom -- higher education it can be a factor (Grutter), quota/point systems are not tailored enough (Gratz); race should only be a factor in most instances (Parents Involved in Community Schools)
Card Set
Constitutional Law
Constitutional Law Standards and Tests