Con Law – Black

8/18/2019 Con Law – Black

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Constitutional Law – BlackMajor Questions:

I. Does the Federal Entity have the ower to act!a. Is there seci"ic authori#ation in the constitution!

II. Does Con$ress or the %tate& a"ter actin$'assin$ le$islation& violate a erson(s ri$hts'li)erty!III. Look "or the narrower issues under these )road cases

Function o" ConstitutionI. *hy two levels o" $overn+ent!

a. Federal , necessary evil ). %tate , +ore resonsive to the eole

-verview:I. hree %tandards o" review:

/. 0ational )asis: Easiest standard

wo re1uire+ents:

• Le$iti+ati#e state o)jective

o Broad – 2$eneral wel"are3

• 0ational relation

o -nly i" $overn+ent has acted co+letely ar)itrary and irrational

4. %trict %crutiny 5ardest standard

wo re1uire+ents:

• Co+ellin$ o)jective• 6ecessary +eans

o 6o less restrictive alternatives

7. Inter+ediate %crutiny I+ortant o)jective

%u)stantially related +eans

E89M I: 9"ter choosin$ the standard to aly& you +i$ht as well $o "urther and redict the outco+e. For rational )asis&al+ost always uheld. For strict scrutiny& al+ost always struck down. For inter+ediate& ;


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i. Facts: resident 9da+s aointed Mar)ury as a justice o" the eace less than a week )e"ore theinau$uration o" e""erson. Mar)ury(s si$ned co++ission was not delivered )e"ore e""erson(s no+inationand e""erson instructed a+es Madison& the secretary o" state& to withhold the undelivered co++issions.

/. Mar)ury then "iled a writ of mandamus& a etition to a court askin$ it to order a $overn+ento""icer to er"or+ a duty& with the ?.%. %ure+e Court.

a. udiciary 9ct o" /G: $ranted the %ure+e Court ori$inal jurisdiction over writs o"+anda+us.

ii. Issue: Does the constitution $ive the %ure+e Court the authority to review acts o" Con$ress ad declarethe+& i" reu$nant to the constitution& to )e void!

iii. 5oldin$: H had a ri$ht to the osition& )ut the act that $ranted the %ure+e Court urisdiction wasunconstitutional

/. Mar)ury rincile: it is the %ure+e Court& not Con$ress which has the authority and duty todeclare a con$ressional statute unconstitutional i" the Court thinks it violates the Constitution

iv. > +ajor takeaways:/. 5ow to avoid constitutionality o" judiciary act!

a. Courts +ake choices in decisions and oinions )ecause what they want to achieve or seeoccur

). he Constitution is re$ulatory& not just a declaration4. *hen +ay the court review eecutive order!

a. Distinction )etween olitical act and +inisterial acti. Cant review olitical acts

ii. Delivery o" co++ission is +inisterial , non=olitical ). %ets "orth rincile 0ule o" Law

i. 6o one is a)ove the lawJnot even the resident. he Constitution 0ules.c. Creates new constitutional +odel o" $overn+ent ower

i. Constitution and Con$ress create le$al duties to )e er"or+ed )y the eecutiveii. Court reviews to ensure Con$ress is actin$ constitutionally

/. udiciary has the ower to invalidate acts o" Con$ressiii. Court can review to ensure con$ressional will is carried out

7. *as the judiciary act o" /G constitutional!a. 4 sets o" law: Constitution and statutes

i. *hen they contradict& the Constitution wins ). Con$ress cannot eand the court(s ori$inal jurisdiction that was set out in the

Constitutioni. hey can eand aellate jurisdiction )ecause it is a creature o" the le$islature

>. %hould the judiciary have the authority to declare Con$ressional statutes as unconstitutional!

a. Constitutional li+its would )e +eanin$less i" statutes could trans$ress ). It is the duty o" the courts to interret and en"orce the law

i. Creatin$ udicial review/. Constitution is )indin$ on all arts o" the "ederal $overn+ent4. Constitution is en"orcea)le )y the court7. udiciary is char$ed with interretin$ the Constitution in a +anner that

its rules are )indin$ on all other deart+ents o" $overn+entv. KKthis case creates the authority "or judicial review o" eecutive actions 96D le$islative acts which allows

the sure+e Court to review the constitutionality o" "ederal laws = Constitution is re$ulatory& not just a

declaration o" indeendence./. *hat kind o" eecutive conduct can the court review!

a. I" discretionary (political)& the court C966- review eecutive conductacts wherethe eecutive has discretion as to how to act.

i. i.e. resident vetoin$ a )ill& aointin$ an o""icer ). I" mandatory/ministerial (nonpolitical), the court can review eecutive conduct

$overn+ent duties.i. i.e. con$ressional )ud$et

vi. KKK9lso esta)lishes that 9rticle III authori#es the +ai+u+ jurisdiction o" the "ederal courts and Con$resscannot authori#e the "ederal courts to hear cases )eyond the scoe o" 9rticle III.

/. Con$ress cannot increase jurisdiction o" "ederal courts.vii. I+ortant oints

/. Constitution is re$ulatory& not just a declaration o" indeendence4. Con$ress cant increase jurisdiction o" "ed courts7. Court +ay review eecutive conduct to review constitutionality>. Court +ay review le$islative action "or its constitutionality;. Country o" Laws& not a country o" +en


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e. udicial review is the "oundation o" constitutional law. @/A the rocess o" judicial review has created the )ody o" lawthat we think o" as the law o" the Constitution& @4A it is the rocess o" judicial review that renders the constitution )indin$ and en"orcea)le as law

". imits on !ederal Judicial "ower:$. District of Columbia v. Heller

i. Facts: he District o" Colu+)ia aealed to the %ure+e Court a"ter a "ederal aeals court ruled that theDistrict(s $un control laws were unconstitutional.

ii. Issue: Does the District o" Colu+)ia(s rohi)ition on the ossession o" usa)le hand$uns in the ho+e violatethe 4nd 9+end+ent!

iii. 0ule: The #.$. $ode%s (&) 'eneral ar a'ainst re'istration of hand'uns, () prohiition a'ainstcarryin' a pistol w/o a license, and (*) re+uirement that all lawful firearms to e ept unloaded and

either disassemled or tri''er loced -iolate ri'hts of individuals under the .. $onstitution%s

econd 0mendment, which permits individuals to eep hand'uns and other firearms for private use

in their homes, even thou'h they are not affiliated with any state1re'ulated militia.

1. *hy does the constitution have to )e interreted at all!i. Constitution doesn(t have a lot o" seci"icity& )ut surely it doesn(t +ean there

aren(t ecetions.1. E. Endan$erin$ resident: *ritten )roadly

ii. a$ue'Broadiii. *hen seci"ic there have to )e ecetions

h. *ays to interret the Constitution! -ri$inalis+ v. 6onori$inalis+i. -ri$inalists:

1. et o" the Constitution

a. lain +eanin$b. ?nderstandin$ at the ti+e it was dra"tedc. 5olistic=look at the rovision in li$ht o" the whole docu+entd. -verall constitutional rinciles

2. Contet in which the Constitution was dra"teda. I+a$inative 0econstruction – *.*.F.Db. oals and nor+s that "ra+ers had

3. @Le$al rocess theoryA 0eresentation: rein"orce+ent theory – jud$es should only $et involvedwhen the olitical +arkets is +al"unctionin$

4. ud$es role o" interretation does not eist without this +al"unction5. *hen decidin$ constitutional issues& jud$es should )e con"ined to en"orcin$ the nor+s that are

clearly stated or i+licit in the Constitution6. yes:

a. %eci"ic -ri$inalis+'%trict:i. Enu+erated owers and ri$hts @that(s itA

ii. ro: 9+ended Constitution& restricts judicial activis+& "acilitates +ajority ruleiii. Con: I+ossi)le to aly& inconsistent with Fra+er(s intent& revents Const.

"ro+ evolvin$& disre$ards "or +inority ri$htsb. 9)stract -ri$inalis+:

i. 9ly the idea o" ori$inal construction the "ra+ers were a"ter @)ut we don(tknow what they were thinkin$& do we!A

c. -ri$inal Meanin$'5istorical 0ecord:i. ake the lan$ua$e to +ean what it +eans when the "ra+ers wrote it

ii. ro: otentially +ore relia)leiii. Con: 5ow do we $et inside their +inds!

d. raditional @close to -ri$inal Meanin$A:i. I" the ractice was occurrin$ and er+itted at the ti+e the constitution was

dra"ted it couldn(t have )een the Fra+er(s intent to destroy itii. 6on=ori$inalis+:

1. Idea o" a livin$ constitution which evolves and chan$es2. here is not an una+)i$uous knowa)le "ra+ers( intent that can )e "ound to resolve constitutional

1uestions3. re"era)le +ethod )ecause it is the aroach intended )y the "ra+ers4. yes:

a. Livin$ Constitution:i. Close to a)stract ori$inalis+ @aly idea "ra+ers were a"terA

ii. Ideas evolve to +eet the needs o" citi#ensb. Conte+orary alues:

i. oliticians like – 2+ake the constitution +odern3

Black likes to askinterretation1uestions. 2*hat(s

)ackin$ theirar$u+ent!3


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ii. Insertin$ conte+orary values into the Constitutionc. 6atural Law:

i. 6atural hu+an ri$hts )y od.ii. Inaliena)le ri$hts natural'"unda+ental& ri$hts inherent with )ein$ a erson

d. rocess Based De+ocratic heory:i. Constitution is a)out settin$ u a "air rocess that i" "ollowed will roduce a just

resulte. %tructural Interretation:

i. 5ow it connects to other arts o" the Constitutionii. he a+end+ents only +ake sense when you read it as a whole

i. The $ase 0'ainst the $onstitution:

i. Lessons "ro+ Buc v. Bell!1. overn+ent can reach retty "ar 2. ustices +ake value jud$+ents3. Courts $et to +ake technical choices that are outco+e deter+inative4. %o+eti+es they "all to u)lic senti+ent5. Courts are willin$ to sin "alse story – +akin$ this wo+an see+ like a )ad erson

ii. *hat is the courts duty:1. rotect +inorities& revent tyranny o" +ajority!2. he only reason we need the constitution is to rotect +inorityJthe +ajority can take care o"

itsel"a. %o the court is suosed to en"orce the constitution and kee the +ajority in check

"". !ederalism/!ederal "ower 2enerally

a. Concet o" Federalis+i. $o1e3istin' national and state 'overnments. here"ore& you have to watch whether so+e ower )ein$

asserted )y the "ederal $overn+ent is in "act allowed under the Constitution& and you +ust also watchwhether so+e ower asserted )y the states is li+ited in "avor o" "ederal ower

ii. !ederal 'overnment has limited powers

1. imited, enumerated powers – )ranches can only assert owers seci"ically $ranted to the+a. ou(ve $ot to ask: what is the enu+erated& seci"ic ower in the Constitution that $ives

the "ederal )ranch the ri$ht to do what it has just doneb. %tates can do whatever they want unless it is eressly "or)idden )y the Constitution

i. E: no 'eneral police power – Each state has a $eneral olice ower'the a)ilityto re$ulate solely on the )asis that the re$ulation would enhance wel"are& )utthere is no $eneral "ederal olice ower. Instead& each act o" "ederal le$islationor re$ulation +ust co+e within one o" the very seci"ic& enu+erated owers @e

co++erce clauseA1. a and send "or the $eneral wel"are: Con$ress does have the ri$ht to

2lay and collect taes3J "or the 2$eneral wel"are.3 In other words& the ower to ta and send is su)ject to the re1uire+ent that the $eneralwel"are )e servesN there is no inde#endent "ederal ower to rovide "orthe $eneral wel"are

iii. 24ecessary and "roper5 $lause – In addition to the very seci"ic owers $iven to Con$ress )y theConstitution& Con$ress is $iven the ower to 2+ake all laws which shall )e necessary and roer "orcarryin$ into eecution3 the seci"ic ower.

1. Rational1relation test: he 2necessary and roer3 clause is easy "or Con$ress to satis"y: i"con$ress is seekin$ an ob$ective that is within the seci"ically enu+erated owers& then Con$resscan use any means that is: @/A rationally related to the o)jective Con$ress is tryin$ to achieveN and@4A is not seci"ically "or)idden )y the Constitution

a. 6road readin' 'iven to the $lause – Con$ress $ives a very )road and de"erentialreadin$ to Con$ress( ower under the Clause.

iv. $ant violate specific constitutional provision: Even where con$ressional action aears to "all within aseci"ic $rant o" ower& the "ederal action +ay not o" course& violate so+e other seci"ic constitutional$uarantee. In other words& con$ressional action +ust ast two tests: @/A it +ust "all within so+e seci"ic$rant o" ower under the constitution& and @4A it +ust not violate any seci"ic constitutional rovision

b. owers o" the hree Federal Branches @su++aryAi. $on'ress

1. Interstate commerce: con$ress has the ower to regulate interstate commerce, as well as "orei$nco++erce

2. Ta3in' and pendin'

3. D$: they can re$ulate the District o" Colu+)ia4. !ederal "roperty


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5. 7ar and #efense: Con$ress can declare war, and can esta)lish and "und the ar+ed "orces6. 8nforcement of $ivil 7ar amendments: Con$ress can enforce the ost Civil *ar a+end+ents

@rohi)it slavery& con$ress can even )an rivate intrastate non=co++ercial conductAii. "resident

1. 83ecution of the aws

2. $ommander and $hief

3. Treaty and !orei'n 0ffairs: resident can +ake treaties& aoint a+)assadors& control "orei$n olicy

a. I+lied "ro+ the nations need to seak "ro+ a sin$le voice in "orei$n a""airs4. 0ppointment of federal officers: he residents aoints all "ederal o""icers @ca)inet +e+)ers&

jud$es& a+)assadorsA )ut with the %enates aroval. 9s to 2in"erior o""icers3& its u to Con$ress todecide whether these should )e aointed )y the resident& )y the judicial )ranch& or )y the2heads o" the deart+ents3

a. But Con$ress cannot +ake these lower=level aoint+ents the+selves& only who can+ake the+

5. "ardons

6. -eto

""". The division of power etween the e3ecutive and the le'islature

a. Inherent residential ower i. 9rticle II& O4: resident(s enu+erated owers – Co++ander=in=chie" o" ar+ed "orces& treatin$ +akin$

ower ii. I+lied owers: 2he eecutive shall )e vested in a resident.3

iii. Focuses on the ower o" the resident to act without eress constitutional or statutory authority./. 9amilton -iew @non=ori$inalistA

a. 9r$ued that the resident has authority not seci"ically delineated in the Constitution.4. adison -iew @ori$inialistA

a. he resident has no owers that are not enu+erated in 9rticle II and such un=enu+erated authority would )e inconsistent with a Constitution creatin$ a $overn+ent o"

li+ited authority.iv. %oun&sto'n (heet ) *ube Co. v. (a'yer +1,52- 4 vie's

1. Facts: Faced with an i++inent steel strike durin$ the Porean *ar& the resident ordered$overn+ental sei#ure o" the steel co+anies to revent the strike. he co+anies challen$ed his ower to take such action as )ein$ without constitutional authority or rior con$ressionalaroval.

2. Issue: Did the resident eceed the li+it o" his owers )y issuin$ the sei#ure o" all steel +ills!*. 0ule: The "resident is limited to vetoin' and su''estin' laws; he is not to create laws.>. 5oldin$: es. he resident +ay not +ake such an order without the direction o" the Con$ress or

under the eress authority o" the ?nited %tates Constitution. he %C declared the sei#ureunconstitutional.

a. > 9roaches to Inherent residential ower: @-ther ud$es -inionsAi. 6lac%s view:


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1. here is no inherent ower. resident can only act i" there is eressconstitutional or statutory authority

ii. #ou'las% -iew:

1. he resident has inherent authority unless the resident inter"eres withthe "unctionin$ o" another )ranch o" $overn+ent or usurs the owerso" another )ranch

2. 5ere& res. ?sured Con$ress(s ower.iii. Jacson%s -iew:

1. es& inherent owerJa. 9s lon$ as Con$ress does not li+it hi+ @ways to li+itA:

i. !ull power when a president acts pursuant to

an e3press or implied authori


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/. Can Con$ress ass statutes that $ive eecutive ower )eyond the Constitution!ii. Clinton v. City of 0e' %or +1,,-

/. 5oldin$: here is no rovision in the Constitution that authori#es the resident to enact& a+end& orto reeal statutes. he resident +ay initiate and in"luence le$islative roosals BEF-0E they )eco+e law.

a. he resident +ay also veto an entire )ill where it is then returned to Con$ress.i. he Line Ite+ eto 9ct allows the resident to cancel a rovision o" an 9ct o"

Con$ress 9FE0 the )ill )eco+es law.. ===$on'ress cannot 'ive the "resident the authority to cancel a ill after it is law or

noc out part of the law, this is unconstitutional

i. he Constitutional silence on such a residential action can )e viewed as ane1uivalent to an eress rohi)ition.

ii. I" the resident is to lay a di""erent role in deter+inin$ what +ay )eco+e a law@di""erent "ro+ what the Constitution already delineatesA& then such a chan$e+ust )e throu$h a new Constitutional a+end+ent.

4. Can Con$ress increase ower o" the resident!a. 6o – this is unconstitutional ). 7 ways to ass law

i. eto& send )ack to Con$ress and correct& send )ack to residentii. Con$ress can override with 4'7rd vote

iii. resident has /< days to si$n& i" session ends )e"ore si$nin$/. ocket veto& not law.

c. ?nder "or+alist view unconstitutional& @/A can not add resident owers @si+ilar to

Marbury and cant eand ower o" %u. CourtAi. %tatute chan$ed rocedure "or creatin$ laws

/. @4A stick the the three ways in the constitutionii. Con$ress cannot $ive resident ower to cancel )ill a"ter it is law or knock out

art in this case& the vetoed art was already si$ned into law.d. #ele'ation of e'islative "ower/0dministrative "ower

i. he creation o" the ICC in / ushered in a new era "or "ederal $overn+ent where "ederal ad+inistrativea$encies were created with )road owers

/. hese a$encies eercise all the owers o" $overn+ent: le$islative& eecutive ower& and judicial.ii. .. (chechter 7oultry Cor#. v. /( ) 7anama 8efinin& Co.

&. 4on1dele'ation doctrine:

a. the principle that $on'ress may not dele'ate its le'islative power to the

e3ecutive/administrative a'encies. 7hether it has done so depends on whether

$on'ress has provided the a'ency with an intelli'ile principle or standard ywhich to act.

). 5oldin$: he court held that the re$ulation was unconstitutional )ecause it eceeded thescoe o" Con$ress(s co++erce ower.

i. It was also an i+er+issi)le dele$ation o" le$islative ower./. he code=+akin$ authority that the 0ecovery 9ct con"ers on the

resident is an unconstitutional dele$ation o" le$islative ower )ecause it essentially con"ers authority to the resident to re$ulate theentire econo+y with no +ore a recise standard than sti+ulatin$ theecono+y )y assurin$ 2"air co+etition.3

a. 2Fair co+etition3 is too va$ue and too )road need so+e sorto" standard o" what eactly "air co+etition is.

). %tatin$ so+e $eneral aid is not enou$hi. Con$ress must rovide a standard with which to act i"

Con$ress dele$ates its ower to the eecutive.c. o deter+ine whether the assa$e o" the code was an i+roer dele$ation o" le$islative

authority& two $rounds should )e ea+ined.i. First& in deter+inin$ what li+its Con$ress set "or the resident& look to trade and

industrial $rous that roose the codes )ecause they +ust )e 2trulyreresentative3 o" the industry +e+)ers

ii. %econd& the codes +ust not ro+ote +onoolies or )e oressive o" s+allenterrises.

iii. 7anama 8efinin& Co. /. Court says it has a role in olicin$ the relationshi )etween the Eecutive and Le$islative

)ranchesa. here was not set "orth li+its to the resident(s discretion


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i. ave the res. the a)ility to rohi)it transortation& )ut not a contet to rohi)itsuch transortation unconstitutional

iv. 9hitman v. merican *rucin& ssociation/. Facts: O/sufficient, ut not more than necessary5 ? re+uisite re+uirement

). I" court has "ound that intelli$i)le rincile +et then the dele$ation is er+ittedi. %tandard that $ives resident so+ethin$ to eercise discretion a$ainst

/. E: 2level that is re1uisite to rotect u)lic health3a. %u""icient )ut not +ore than necessary

4. Does not have to create criterion "or how +uch har+ has too )e done&

doesn(t have to )e concreteii. *hy has court er+itted dele$ation! @ olicy ar$u+entA

/. Con$ress has ro)le+s "oreseein$ ro)le+sa. Pee havin$ to udate le$islation )ecause o" ever chan$in$

science4. 6ot eerts in the area7. 6o le$islations is worse than dele$ation

a. E: no air 1uality standards at alliii. 0ecently& the court has )een +ore concerned with a+ount o" dele$ation

v. Pey !(s to ask on ea+:/. 5as dele$ation occurred!4. Is there an intelli$i)le rincile!

e. 0dministrative power (0'encies, created y the le'islature)

i. e'islative -eto/. Created as a check on actions o" ad+inistrative a$encies

a. %hort o" nor+al rocess4. Chadha: +oo at tutor notes-

a. Basically said this was unconstitutional and ran around the Constitutional rocess thatCon$ress is suosed to "ollow

). I" Con$ress wants to overturn an eecutive action there +ust )e icameralism @assa$e )y )oth houses o" Con$ressA& and presentment @$ivin$ the )ill to the resident "orsi$nature or vetoA.

i. 9nythin$ less would )e a le$islative veto& and these are unconstitutional./. Le$islative veto , le$islation without )ica+eralis+ or resent+ent4. he e""ect o" the veto was to 2alter the le$al ri$hts& duties& and relations

o" ersons.c. he "act that a $iven law or rocedure is e""icient& convenient& and use"ul in "acilitatin$

"unctions o" $overn+ent& will not save it i" it is unconstitutional.d. 9rticle I:

i. resent+ent Clauses: he re1uire+ent that all le$islation )e resented to theresident )e"ore )eco+in$ law was uni"or+ly acceted )y the Fra+ers.

/. Law+akin$ was a ower to )e shared )y )oth 5ouses and theresident.

ii. Bica+eralis+: rovided that no law could take e""ect without the concurrence o"the rescri)ed +ajority o" the Me+)ers o" )oth 5ouses.

7. Checkin$ 9d+inistrative ower a. Con$ress can overturn a$ency decisions )y statute.

i. I" the eecutive has already taken action& the eecutive +ay veto the new statuteand Con$ress would then need a 4'7 +ajority to override the veto.


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). ower o" the urse: Con$ress also controls the )ud$et o" ad+inistrative a$encies and canuse this to eercise an i+ortant check on their work.

c. Con$ressional 5earin$s or %u)oena Docu+entsd. 9sk "or weekly udates "ro+ the a$encye. 6arrow the dele$ation in a new statute". Con$ress aroves residential aoint+ents

ii. 0ppointment "ower

/. Morrison v. ;lson +< a##oint ind. counsel to investi&ate-a. *ho can aoint! -r does the Constitution re1uire the resident eclusively resided over

eecutive aoint+ents! ). 9rticle II& O4& Clause 4

i. rincile , resident aoints/. *ith the advice and consent o" the %enate

ii. In"erior , Con$ress decides who aoints/. 5eads o" deart+ents and the Courts4. osition cant )e one na+ed in the Constitution or the deart+ent heads

iii. 5ow to deter+ine i" its an in"erior o""ice!/. *ho does he reort to!4. Li+ited jurisdiction7. Li+ited scoe o" duties>. Li+ited tenure;. 0e+ova)le )y who+!

c. he resident has the ower to re+ove those o""icials @a+)assadors& +inisters& %C

usticesA that he aoints – the ower to aoint is the ower to re+ovei. I" not a rincile o""icer& the resident +ust have the consent o" Con$ress

d. Con$ress can never have aoint+ent owerTTTTiii. Removal "ower

/. resident has ower in certain situation& not a)solutea. here is no rovision in the Constitution concernin$ the resident(s ower to re+ove

eecutive )ranch o""icials ). May re+ove unless li+ited )y statutes checks S )alances

4. urosed:a. Pees the resident in control o" the eecutive )ranch ). Makes eecutive o""ices resonsive to the resident

7. Myers v. /.(. +#ostmaster and ndre' =ohnson. 7resident demanded he resi&ned> #ost refused-a. Majority )asically said resident has unli+ited ower to re+ove all eecutive )ranch

o""icials ). Because there was no eress li+it laced on the resident )y the Constitution& this is an

indication that non was intended.>. Hum#hrey?s @ecutor v. /.(. +AD8 icin& out Aederal *rade Commission member-

a. Li+ited re+oval ower o" the resident ). Quasi=le$islative and 1uasi=judicial there"ore a$ency was entrusted with owers to )e

eercised "ree "ro+ eecutive controli. Quasi=le$islative: when an ad+inistrative a$ency eercises ower to +ake rules

and re$ulations that e""ect le$al ri$ht throu$h statutesii. Quasi=judicial: a)ility to hold hearin$s and conduct investi$ation in disuted

clai+s and alle$ed in"ractions o" rules and re$ulations and +ake decisions@si+ilar to a jud$e wouldA

c. 5u+hrey is not an o""icer strictly o" an eecutive )ranch& its 1uasi=le$islative& so the resident cannot re+ove.

;. 9einer v. /.( . +removed from 9ar Claims Commission and 'anted bac #ay-a. he resident has the ower to aoint eole to these o""ices& )ut not the ower to "ire

the+ without the consent o" Con$ress ). %ince these a$encies are not co+letely Eecutive Branch in nature& they do not "all

under the resident(s urview like Myers.c. ust )ecause he can aoint a noneecutive o""icer& doesn(t +ean he can re+ove Ue+.

V. Bo'sher v. (ynar +Con&ress e#t #o'er to a##oint Com#troller


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i. Con$ress cannot have re+oval ower over an eecutive o""icial& whether a erson is eecutive )y status or "unction

. Morrison v. ;lson +modern case la'- < a##oint ind. counsel to investi&atea. Eecutive 9$ency ). Can only re+ove "or $ood cause @2ood Cause3 %tandardA

i. he should have $ood cause to )e a)le to re+ove an eecutive o""icer i"Con$ress creates this li+itation in the statute

/. Con$ressional li+it on the eecutive re+oval owerc. 0e+oval restriction i+osed )y con$ress will )e valid unless they unduly inter"ere with

an essential attri)ute o" the residency. KKKTaeaway

a. o$ether& these cases see+ to esta)lish that the resident +ay "ire any eecutive o""icial.i. Con$ress however can li+it re+oval )y statute i" it is an o""ice where

indeendence "ro+ the resident is desira)le and the statute does not rohi)itre+oval& )ut li+its re+oval to instances where $ood cause is shown.

). rincial that e+er$es:i. Is the o""ice one in which indeendence "ro+ the resident is desira)le! I" so&

then Con$ress may li+it the re+oval ower& and as 9einer indicates that the judiciary +ay li+it re+oval even in the a)sence o" such statutory restriction.

/. 6o clear test as to when indeendence "ro+ the resident is desira)le.ii. 9re Con$ress( li+its on re+oval constitutional!

/. Con$ress cannot rohi)it residential re+oval& ut it can li+itre+oval to where there is 2$ood cause.3

iv. !orei'n "olicy /. he Constitution says very little a)out "orei$n olicy decision +akin$

a. 0eliance on "ra+ers( intent is hard here.4. 9re Forei$n olicy and Do+estic 9""airs di""erent!

a. /.(. v. Curtiss9ri&ht @#ort Cor#. @/G7VA @sto sale o" ar+s'+unition sales in Chacoi. 9ll "orei$n ower resides in the "ederal $overn+ent

ii. Issue: 9re the constitutional owers o" the "ederal $overn+ent re$ardin$ "orei$na""airs +ore eansive than those re$ardin$ do+estic a""airs!

iii. 5oldin$: he resident does have inherent "orei$n olicy authority )eyond whatCon$ress and the Constitution $rants hi+.

/. he non=dele$ation doctrine does not )ar hi+4. Constitution $ives resident the ower to ne$otiation

a. 5e has inherent ower in "orei$n relationshi

). resident has de$ree o" discretion and "reedo+ "ro+ statutoryre$ulations

iv. 9ll do+estic owers )elon$ed to the %tates rior to the Constitution/. %tates have never had "orei$n olicy owers

*. Treaties and 83ecutive 0'reements

a. 9rticle II states that the resident 2shall have ower& )y and with the advice and consento" the %enate& to +ake treaties& rovided 4'7 o" the senators resent concur3

). Treaty:i. 6e$otiated )y the resident and rati"ied )y the %enate

ii. 0e+ains in e""ect even a"ter resident(s ter+ ends in theoryc. 83ecutive 0'reement:

i. E""ective when si$ned )y resident and head o" other $overn+entii. 0e+ain e""ective a"ter ter+

/. 6et resident can end itd. 5ow should treaty +akin$ ower )e allocated!

i. Dames ) Moore v. 8e&an> (ec. of *reasury +settle international claims-/. Facts: resident Carter ne$otiated an a$ree+ent with Iran where)y they

would "ree 9+erican hosta$es )ein$ held in ehran in echan$e "or the?% li"tin$ a "ree#e on Iranian assets in the ?%.

a. he eecutive a$ree+ent li"ted this "ree#e and also rovided "oran end to all suits endin$ a$ainst Iran in the ?% courts.

i. %uch clai+s would )e resolved in a new Iran=?%Clai+s ri)unal.

). 6o statute in lace to authori#e the settle+ent


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4. 5oldin$: he %C rejected a constitutional challen$e to the eecutivea$ree+ent )y Carter that li"ted the "ree#e on all Iranian assets in the?%.

a. Because the resident(s actions were taken ursuant tocon$ressional authori#ation and "ederal statutes and there was ahistory o" such eecutive settle+ent clai+s& the eecutivea$ree+ent is constitutional.

i. KKK%o lon$ as the resident is not violatin$ anotherconstitutional rovision or a "ederal statute& theresee+s little )asis "or challen$in$ the constitutionalityo" an eecutive a$ree+ent.

ii. udiciary doesn(t want to $et involved in therelationshi )etween the resident and Con$ress

iii. I" Con$ress and the resident a$ree& it is very unlikelythat the Court will insert itsel" into this ar$u+ent

). resident has the authority to enter into eecutive a$ree+entsthat achieve the eact sa+e thin$ as treaties

e. Can the resident unilaterally rescind treaties!i. he Court has never taken a case that addresses this issue )ecause it is a

olitical issueii.


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). *hy!i. %earation o" owers

ii. ?ni1ue statusiii. Easy tar$et& distraction "ro+ decisionsiv. %till su)ject to checks& i+each+ent& ress

iii. Clinton v. =ones/. 5oldin$: he resident(s a)solute i++unity does 4CT etend to

unofficial acts.4. 9 searation o" owers does not re1uire the court to stay all rivate

actions until he leaves o""icea. Balancin$ owers

i. udiciary assertin$ ower over resident ). ?nlikely to occuy su)stantial art o" residents ti+ec. 6o one is a)ove the lawd. 9ction was not art o" o""icial caacity

c. I+each+enti. 5i$h cri+es and +isde+eanors

/. Bri)ery and treason enu+erateda. -ther than that it is unclear

4. olitical 1uestionii. 7 atte+ts

/. 6ion& Clinton& and ohnsonI. he %earation o" owers @short su++ary o" all the a)oveA

a. "resident cant mae the law: the +ost i+ortant sin$le searation o" owers rincile to re+e+)er is that the 7resident cannot mae the la's. 9ll he can do is to carry out the la's +ade )y Con$ress.Ea+le: Durin$ the Porean *ar& res. ru+an wants to avert a strike in the nations steel +ills. 5e there"ore issuesan 2eecutive order3 directin$ the %ec. o" Co++erce to sei#e the +ills and oerate the+ under "ederal direction. heresident does not ask Con$ress to arove the sei#ure. Held! the sei#ure order is an unconstitutional eercise o" thelaw+akin$ authority reserved to Con$ress. @oun$stown %teelA

i. ine item veto: he rincile that the resident can(t +ake the laws +eans that the resident can(t )e$iven 2line ite+ veto.3 hat is& i" Con$ress tries to $ive the resident the ri$ht to veto individual ortions o"the statute& this will violate the resent+ent Clause. @he resent+ent Clause says that )ills are enactedinto law )y )ein$ )ased )y )oth 5ouses& then )ein$ resented to the resident and si$ned )y hi+.A @Clintonv. City of 0e' %or-

ii. $on'ress% ac+uiescence: But the scoe o" the resident(s owers +ay )e at least so+ewhat eanded )yCon$ress( ac1uiescence to his eercise o" ower. his C9 will never )e dis#ositive> )ut in a close case& the

"act that Con$ress ac1uiesced in the resident(s conduct +ay )e enou$h to ti the )alance& and to convincethe Court that the resident is +erely carryin$ out the laws rather than +akin$ the+.

iii. Implied "owers: Con$ress( owers are eanded )y the 6S clause. here is nothin$ like the 6S "or theresident. But the e""ect is the sa+e& )ecause o" the inherent va$ueness o" the hrase 2shall take care thatthe laws )e "aith"ully eecutedJ3 he list o" the resident(s enu+erated owers are not ehaustive. heresident has 2law carryin$ out ower3 in $eneral

iv. #ele'ation: Con$ress +ay dele&ate so+e o" its owers to the resident or the eecutive )ranch. his ishow "ederal a$encies @which are usually art o" the eecutive )ranchA $et the ri$ht to "or+ulate re&ulations"or interretin$ and en"orcin$ con$ressional statutes. I" Con$ress dele$ates ecessively to "ederal a$encies@)y not $ivin$ aroriate standardsA& the dele$ation can )e struck down – )ut this is vary rare

). 7ar "owers:i. $an%t declare war: he resident is the Co++ander=in=Chie" o" the ar+ed "orces. But only Con&ress> not

the 7resident> can declare 'ar. he resident can co++it our ar+ed "orces to reel a sudden attack& )ut hecannot "i$ht a lon$=ter+ en$a$e+ent without a con$ressional declaration o" war

ii. Treaties and 83ecutive 0'reements: he resident has the authority to enter into a treaty with "orei$nnations& )ut only i" two=thirds o" the %enate aroves. 9dditionally& the Court has held that the Constitutioni+licitly $ives the resident& as an adjunct o" his "orei$n a""airs ower& the ri$ht to enter in an eecutivea&reement with "orei$n nations& without eress aroval "ro+ Con$ress "irst

c. 0ppointment and removal of e3ecutive personnel: he resident& not Con$ress& is $iven to a##oint federaleecutive officers. his is the 2aoint+ent clause3

i. Te3t of $lause: he Clause @9rticle II& O4A says that the resident shall 2nominate and )y and with the dvice and Consent of the (enate> shall aoint ambassadorsE.$ud&es of the (u#reme Court and all otherofficers of the /nited (tates. he Clause then $oes on to rovide that 2Con$ress +ay )y Law vest the9oint+ent o" inferior ;fficers as they thin #ro#er> in the 7resident alone> in the Courts of a'> or in the

Heads of De#artment


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ii. Interpretations; he Clause +eans& in the +ost $eneral sense& that Con&ress may not a##oint eecutivebranch and $udicialbranch federal officials

iii. Top1level (>principal5) officers: In the case o" 2 #rinci#le o""icers o" the ?nited %tates @to=levelo""icersA& the resident no+inates a candidate& and the %enate +ust& as a constitutional +atter& decidewhether or not to arove the no+ination. 9s to such o""icers& Con$ress may not tae a'ay or limit theresident(s ri$ht o" aoint+ent

/. 83: Ca)inet +e+)ers are 2rincial3 eecutive )ranch o""icers and Con$ress +ay not aointthe+

iv. ower1level (>inferior5) officers: In the case o" lower=level "ederal o""icials& Con$ress does have the ri$htto li+it the resident(s ri$ht o" aoint+ent

/. Three possile appointers: %o althou$h Con$ress cannot itsel" +ake aoint+ents o" in"erioro""icers& it has the ri$ht to choose& on a osition=)y=osition )asis& to con"er the ower o"aoint+ent on any o" the "ollowin$:

a. The president ). The federal judiciaryc. >heads of departments5

v. $on'ress can%t appoint federal e3ecutive: he +ost i+ortant thin$ to re+e+)er is that Con&ress has no #o'er to directly a##oint federal eecutive officers> whether they(re #rinci#al or lo'erlevel 83ample: Con$ress esta)lishes the Federal Election Co++ission& which en"orces "ederal ca+ai$ns laws.he Co++ission has the ower to )rin$ civil actions a$ainst violators. he statute esta)lishin$ theCo++ission allows Con$ress to aoint a +ajority o" the Co++ission(s +e+)ers. Held! the tasks er"or+ed )y the Co++ission are ri+arily eecutive and its +e+)ers are 2o""icers o" the ?nited %tates.3here"ore& the +e+)ers +ust )e aointed )y the resident& not Con$ress @ Buley v. Faleo-

vi. Removal of !ederal Cfficers: he ower to re+ove "ederal o""icers si+ilarly resides with the resident/. 2eneral rule: he resident may remove any residential or eecutive=)ranch aointee 'ithout

cause4. "rincipal officers: hus Con$ress +ay not li+it in any way the resident(s ri$ht to re+ove a

#rinci#al officera. 83: he resident +ay re+ove the %ec. o" %tate at any ti+e& without cause& Con$ress

+ay not li+it this ri$ht )y sayin$ "or ea+le that 2res can only re+ove "or $oodcause3

7. Inferior and Independent: Con$ress has +ore "reedo+ to li+it the way that )oth in"erior andindeendent o""icers. Con$ress +ay say that they can only )e re+oved "or $ood cause

a. Indeendent 9$ency=heads ). In"erior -""icers: Con$ress is allowed to say that they +ay only serve a "ied ter+& and

+ay )e re+oved only "or cause. 9nd that even i" the o""icers a ure eecutive=)ranch

e+loyeei. Ea+le: Con$ress +ay say that a %ecial rosecutor who is to investi$ate

ossi)le eecutive=)ranch wron$doin$ – an in"erior eecutive o""icer – +ayonly )e re+oved )y the eecutive )ranch "or 2$ood cause3 or other ina)ility to er"or+ his duties @ Morrison v. ;lson-

d. e'islative and 83ecutive Immunity:

i. 83ecutive Immunity: there(s no eecutive )ranch i++unity eressly written into the Constitution. Butcourts have reco$ni#ed an i+lied eecutive i++unity )ased on searation o" owers concets

&. 0solute for the "resident: the resident has asolute i++unity "ro+ civil lia)ility "or hisofficial acts @ 0ion v. Ait&erald-. here is no i++unity "or the resident(s unofficial acts&includin$ those he co++its )e"ore enterin$ o""ice @Clinton v. =ones-.

. Dualified for others: But all other "ederal o""icials& includin$ residential aids& receive only+ualified i++unity "or their o""icial acts. @ hey lose their ri$ht i" they violate a 2clearlyesta)lished3 ri$ht& whether intentionally or ne$li$entlyA @ Harlo' v. Ait&erald-

ii. 83ecutive "rivile'e: residents have a 1uali"ied ri$ht to re"use to disclose con"idential in"or+ation relatin$to their er"or+ance o" their duties.

&. Cutwei'hed: %ince the rivile$e is 1uali"ied& it +ay )e outwei$hed )y other co+ellin$$overn+ental interests. For instance& the need "or the resident(s evidence in a criminal trial will$enerally outwei$h the residents va$ue need to kee in"or+ation con"idential @/( v. 0ion-

?6I II: FEDE09LI%M: 5E DII%I-6 -F -*E0% BE*EE6 %9E 96D 69I-69L -E06ME6%I. !ederal e'islative "ower ($ommerce, 4ecessary E "roper, pendin')

a. he )asic rincile o" 9+erican $overn+ent is that Con$ress +ay act only i" there is eress or i+lied authority inthe Constitution

b. Co++erce ower i. Con$ress( ri+ary ower outside o" sendin$

ii. 0e$ulation o" e+loy+ent& water& air& shiin$& etc.


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iii. I" de"ined )roadly& eands con$ressional ower c. ain$ and %endin$d. Enact seci"ic le$islation

i. hrou$h /7th& />th& and /;th a+end+ents.e. 0lways as two +uestions:

i. Does Con$ress have the authority under the Constitution to le$islate!ii. I" so& does the law violate another constitutional rovision or doctrine!

f. 4ecessary and "roper $lause

i. McCulloch v. Maryland +11, MD tried to ta national ban in an attem#t to ee# it out- defines sco#e

1. Does Con$ress have authority under the Constitution to act'esta)lish a )ank! @E%Aa. 5istory:

i. -ne )ank already esta)lished – why an issue now!ii. 6o one sued – ;< years later and this is the "irst challen$e

b. 0ejects state soverei$nty ar$u+ent reasonin$i. he eole $ave their ower to the states

ii. %tates then $ave their ower to the "ederal $overn+entiii. he "ederal $overn+ent has the owers that the eole $ive the+

c. Flei)ilityi. I+lied owers

1. owers $ive to eecute'"acilitate enu+erated owersd. 6ecessary and roer Clause @use"ul and desira)leA @structural ar$u+entA

i. >let the end e le'itimate, let it )e within the scoe o" the Constitution& and all+eans which are aroriate& which are lainly adated to that end& which are not

rohi)ited& )ut consists with letter and sirit o" the Constitution& are constitutional3ii. Interprets more roadly; not )e )e a li+itin$ clause& )ut it was +eant to $rant

additional owers )eyond those enu+eratediii. Con$ress can eercise ower that is not eressly authori#ed )y the Constitution

)ecause o" the 6S clause. he clause $ives Con$ress the ower to enactle$islation that is ursuant to the enu+erated owers& as lon$ as it is consistent withthe letter and sirit o" the constitution.i. 9ddin$ the 6S Clause to i+lies and enu+erated owers )roadens Con$ress(s

ower to overtake state $overn+ent Includes i+lied ower and what isnecessary and roer

/. 6ecessary is $enerally understood to +ean any +eans4. I" the Constitution +eant asolutely necessary& then Con$ress wouldn(t

)e a)le to do anythin$

2. Can Maryland ta the Federal $overn+ent! @6-Aa. he ower to ta is the ower to destroyN the ower to create is the ower to reserve

i. he state(s ower to destroy is unconstitutional )ecause the "ederal $overn+ent(s ower to create'reserve it would essentially con"er sure+acy on the %tates.

ii. It would )e inconsistent to allow one state to ta the "ederal $overn+ent/. By tain$ the "ederal )ank& the %tate would destroy it

3. %u++ary:a. Because the creation o" the Bank was aroriately related to Con$ress(s le$iti+ate ower to

ta& )orrow& and re$ulate interstate co++erce& the Bank was constitutional under the 6Sclause

b. Maryland(s ta& however& violated constitutional soverei$nty )ecause it acted as a levy a$ainstall the eole in the ?nited %tates )y a state accounta)le to only so+e o" the eole.

g. $ommerce "ower

i. 9rticle I& O : 2Con$ress shall have the owerJto re$ulate co++erce with "orei$n nations& and a+on$ severalstates +ost ower"ul o" Con$ress(s owers

ii. 7hat is commerceF

1. Courts have ar$ued'varied over ti+es as to what it +eansa. Deends on how susicious we are o" the "ederal owers at the ti+e o" the rule

iii. @ 8ras of $ommerce $lause Jurisprudence:

/. Early 9+erican history until the /G


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7. /G7=/GG;a. Court eansively de"ined the scoe o" the co++erce ower and not one "ederal law was

declared unconstitutional as eceedin$ the scoe o" Con$ress(s co++erce ower.>. /GG;=

a. Court has narrows the scoe o" the co++erce ower iv. * +uestions to consider: what is co++erce& what does 2a+on$ the states3 +ean& and does the /


16/63

1. Con$ress ossess )road authority to do each thin$ in the course o" carryin$ into eecutive theenu+erated ower vested )y the Constitution – +ay choose any reasona)le +eans necessary

a. Con$ress can re$ulate co++erceb. Con$ress can cri+inali#ec. Custodian o" cri+inalsd. 0ules re$ardin$ cri+inalse. 0ules a)out release

2. It(s the ossi)ility that creates the rational relationshia. Con$ress can re$ulate )ased solely on what M9 haen

3. 5oldin$: Con$ress acted roerly. he 6S clause $rants con$ress )road authority. Con$ress isentitled to lar$e discretion in choosin$ the articular +eans to carry out a $iven enu+erated ower –all that(s re1uired is that Con$ress chooses a +eans that is rationally related to the i+le+entationo" so+e constitutionally=enu+erated ower. 5ere& Con$ress has the ower to de"ine "ederal cri+es&and to run a rison syste+ housin$ those who co++it such cri+es.

i. The $ommerce "ower

i. 9rticle I O: states that 2Con$ress shall have the owerJ to re$ulate co++erce with "orei$n nations& anda+on$ the several statesJ3 +ost ower"ul o" Con$ress(s owers

/. %tru$$le with where we de"ine the li+its o" interstate co++ercea. > Eras o" Co++erce Clause urisrudence:

2. "re1&Hs @


17/63

1. Cu+ulatively& ho+e=$rown wheat has a su)stantial e""ect on interstateco++erce and& even thou$h Fil)urn(s wheat only had a ne$li$i)le i+act&Con$ress can re$ulate it

2. he cumulative effect o" his individual activity would have a cu+ulative2su)stantial e""ect3 on interstate co++erce thus& Con$ress can re$ulate.

a. Dra+atic eansion o" con$ress(s owers3. %o con$ress can ass a law that re$ulates urely local activities so lon$ as it

su)stantially a""ects interstate co++erce.ii. #eart of $tlanta %otel v. .. (&B@)

/. Facts: itle II o" the Civil 0i$hts 9ct o" /GV> rohi)ited discri+ination )y laces o" u)lic acco++odation. 9ellant owns and oerates the 5eart o"9tlanta Motel. he hotel "ollowed a ractice o" re"usin$ to rent roo+s to 6e$roes and it alle$ed that it intended to continue to do so a"ter the assa$eo" the Civil 0i$hts 9ct.

4. 5oldin$: he court upheld the constitutionality o" itle II o" the Civil0i$hts 9ct.

a. wo 9r$u+ents:i. %trea+ o" Co++erce: discri+ination as disrutin$

the strea+ o" co++erce @i.e. travellin$ "ro+ 9 toFL& this disruts the triA.

ii. %u)stantial E""ect: even thou$h this hotel(s i+act is+ini+al& co+)ined with other hotels& this has asu)stantial e""ect.

iii. he court uses this ar$u+ent. ). he record o" the assa$e o" the 9ct contains testi+ony )e"ore

Con$ress o" evidence o" the )urdens that discri+ination )yrace or color laces uon interstate co++erce.

i. he eole o" the ?.%. have )eco+e increasin$ly+o)ile& travelin$ "ro+ state to state.

ii. 6e$roes have o"ten )een una)le to o)tainacco++odations.

iii. hus discri+ination i+edes the interstate co++erceo" individuals.

c. KKK%u)stantial E""ect: even thou$h this hotel(s i+act is+ini+al& co+)ined with other hotels& this has a su)stantiale""ect.

i. It did not +atter i" the hotel was o" urely localcharacter )ecause i" 2interstate co++erce "eels the inch& it does not +atter how local the oerationwhich alies the s1uee#e.3

ii. Con$ress can rohi)it discri+ination in hotel lod$in$under the co++erce clause.

d. Motive is irrelevant %C ea+inin$ Con$ress( ower to assthe act& not the i+etus )ehind it.

iii. 'at(enbach v. %c!lung (&B@)/. Facts: In this case& the court considers the alication o" itle II o" the

Civil 0i$hts 9ct o" /GV> to restaurants where a su)stantial ortion o"the "ood served has +oved in co++erce. -llie(s Bar)ecue is a "a+ily=owned restaurant in Bir+in$ha+& 9L. he restaurant is located on astate hi$hway // )locks "ro+ an interstate and near railroad and )usstations.

a. >VX o" the +eat that is urchased annually co+es "ro+ out o"state.

4. 5oldin$: he court upheld the Civil 0i$hts 9ct and its alication to as+all )usiness.

a. he court "ound that Con$ress rationally had concluded thatdiscri+ination )y restaurants cu+ulatively had an i+act oninterstate co++erce.

i. Esta)lished restaurants sold less $oods )ecause o" thediscri+ination and that interstate travel waso)structed )y itthus +any )usinesses re"rained"ro+ esta)lishin$ there.


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ii. he ork co+es "ro+ out o" stateiii. he se$re$ation +ay hurt -llie& )ut the inte$ration

will increase the econo+y )ecause the ork industrywill sell +ore ork

iv. he strea+ o" co++erce doesn(t end until the BBQis consu+ed

a. KKK%u)stantial E""ect: Even thou$h the restaurant(scontri)ution to co++erce was insi$ni"icant& this contri)utiontaken to$ether with +any others will have a $reater&detri+ental i+act.

i. hrou$h inte$ration& we are increasin$ the nationalecono+y.

ii. Even i" the restaurant(s activity is local& it can still )ere$ulated )y Con$ress i" it eerts a sustantialeconomic effect on interstate commerce.

c. / in that %e)ellius re$ulated inactivity& not a non=

econo+ic activityvii. In this case& the resence o" a $un near a school was a non=co++ercial activity and

did not su)stantially a""ect interstate co++erce and thus the law is unconstitutional.&. 0L MCR8! I! IT I R0TIC40M R80T8# 0!T8RFNFN

c.


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ii. 2Con$ress may re'ulate even non1economic& local activity i" that re$ulation isnecessarily art o" a +ore $eneral re$ulation o" interstate co++erce.3

iii. Dissent says this eviscerated o#e> )ut (ebilius shows us its not/


20/63

cultivated would )e ille$ally drawn into the interstate +arket& jeoardi#in$ Con$ress overallsche+e o" )annin$ the dru$. %o the rivate cultivation o" +arijuana )y eole like H& eventhou$h urely intrastate activity& "alls within Con$ress( Co++erce ower. @


21/63

c. 5oldin$: violated the /


22/63

/. />th and /;th 9+end+ents only %tates

4. /7th 9+end+ent so+e rivate individuals and %tates7. !ivil Rights !ases (&HH*)

a. Facts: Involved the Civil 0i$hts 9ct o" /; which )roadly rohi)ited rivate racial discri+ination )yhotels& restaurants& transortation& and other u)lic acco++odations.

). 5oldin$: he court held that Con$ress may re$ulate only state and local $overn+ent actions& not rivate conduct $reatly li+ited Con$ress(s ower under the 0econstruction 9+end+ents.

i. ery narrow scoe Con$ress does not have the ri$ht to re$ulate rivate conduct& only rivate conduct that rohi)its eole "ro+ )ein$ or ownin$ slaves.

/. %u)se1uent courts have overturned this.iv. he court also )roadly declared that the />th 9+end+ent only alies to $overn+ent action

and that it cannot )e used )y Con$ress to re$ulate rivate )ehavior./. his is still $ood law today.

c. KKK6ow& however& under the /7th 9+end+ent& Con$ress has the ower to rohi)it rivate racialdiscri+ination.

>. .. v. %orrison ()a. Facts: 9 wo+an who& while a "resh+an at ir$inia ech& was alle$edly raed )y "oot)all layers sued

the layers under the civil re+edies rovision o" the iolence 9$ainst *o+en 9ct. ). 5oldin$: he court rea""ir+ed the !ivil Rights !ases and held that the law e3ceeded the co++erce

ower )ecause Con$ress cannot re$ulate nonecono+ic activity )ased on a cu+ulative i+act oninterstate co++erce.

i. he court held that the law is unconstitutional./. />th 9+end+ent Con$ress may only re$ulate state and local $overn+ents& not

rivate conduct.a. he civil da+a$es rovision is not directed at any state& )ut at individuals

who have co++itted cri+inal acts +otivated )y $ender )ias.c. 6reyer, dissentin': the co++erce clause rovides an ade1uate )asis to the iolence 9$ainst *o+en

9ct and the constitutionality o" the act should )e uheld under the 2necessary and roer3 eercise o"le$islative ower $ranted to Con$ress )y that clause.

v. 7hat is the cope of $on'ress% "owerF

/. #ifferent 0pproaches: de)ate over how to interret the tet that e+owers Con$ress 2to en"orce3a. 6arrow: accords Con$ress authority to revent or rovide re+edies "or violations o" ri$hts reco$ni#ed

)y the %ure+e Court.i. Con$ress cannot eand the scoe o" ri$hts or rovide additional ri$hts.

). Broad: Con$ress has the authority to interret the />th 9+end+ent to e3pand the scoe o" ri$hts oreven to create new ri$hts.

i. Con$ress may create ri$hts )y statute where the court has not "ound the+ in the Constitution& )ut Con$ress cannot dilute or di+inish constitutional ri$hts.

4. 'at(enbach v. %organ & %organ (&BB) B0-9Da. Facts: his case concerns the constitutionality o" a rovision o" the otin$ 0i$hts 9ct o" /GV;& which

rovides that no erson who has co+leted Vth $rade in a uerto 0ican school& where instruction was in%anish& shall )e denied the ri$ht to vote )ecause o" "ailin$ an En$lish literacy re1uire+ent.

i. his rovision then rohi)ited the en"orce+ent o" the election laws o" 6& re1uirin$ an a)ilityto read and write En$lish as a condition o" votin$.

d. 5oldin$: he court upheld the rovision in the otin$ 0i$hts 9ct as a roer eercise o" owers$ranted to Con$ress under O ; o" the />th 9+end+ent.

i. he law is constitutional as a re+edy "or discri+ination: Con$ress could have concluded that$rantin$ uerto 0icans the ri$ht to vote would e+ower the+ and hel eli+inatediscri+ination a$ainst the+.

/. Makin$ sure a class o" eole has access to vote revents discri+ination o" that$rou4. 6ot a er se violation o" the /;th 9+end+ent

a. -ver=cures the ro)le+ ). 8ven if the ractice itsel" is not a er se violation& Con$ress can ass

le$islation that over cures the ro)le+ii. he court also held that Con$ress could "ind that the literacy test denied e1ual rotection.

/. his holdin$ accords Con$ress the authority to de"ine the +eanin$ o" the />th 9+end+ent )road view

a. he court soke )roadly o" Con$ress(s O ; ower and ar$ued that thedra"ts+en o" the Constitution sou$ht to $rant Con$ress the sa+e )road owers in O ; as those eressed in the necessary and roer clause.

. 7hen $on'ress is e3ercisin' their OA power under the &@th 0mendmentP


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i. Is the le$islation aroriate!/. es& votin$ is an e1ual rotection issue.

ii. *ho $ets to decide i" that law is aroriate!/. he court! Con$ress! he states!

a. Con$ress has the authority to de"ine the +eanin$ o" the />th 9+end+enti. Con$ress has rovided enou$h evidence that they are eercisin$

their O; ower.7. !it- of Boerne v. lores (&K) 6900-*

a. Facts: he 0eli$ious Freedo+ 0estoration 9ct was adoted in /GG7 to overturn a recent %ure+eCourt decision that had narrowly interreted the "ree eercise clause o" the / st 9+end+ent. he actasserted that a state +ust show a co+ellin$ interest when in"rin$in$ on so+eone(s reli$ious "reedo+.

i. 9 church in eas was revented "ro+ constructin$ a new "acility )ecause its )uildin$ wasclassi"ied as a historic land+ark. he church then sued under the act and the city challen$edthe constitutionality o" the law

). 5oldin$: he court declared the 0eli$ious Freedo+ 0estoration 9ct unconstitutional as e3ceedin' thescoe o" Con$ress(s O ; owers

i. Court has already told Con$ress what violates the />th 9+end+ent/. enerally alica)le laws do not violate the />th 9+end+ent

ii. Con$ress is limited to enactin$ laws that revent or re+edy violations o" ri$hts alreadyreco'nith 9+end+ent>. Is there some activity that violates the $onstitution!

a. I" no Con$ress cannot re$ulate under the /7th& />th& or /;th 9+end+ents ). I" yes is it a con$ruent and roortional resonse!

i. $on'ress%s "ower to 0uthori


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a. %tates may waive their //th a+end+ent i++unity and +ay consent to )e sued in "ederal courtsi. M?% BE E8LICI

ii. %o+eti+es a state will do this )ecause Con$ress uses their sendin$ ower to $et the states toconsent i" you don(t consent& no +oney& etc.

iii. %endin$ Clause le$islation Con$ress incororates a clause "or suit i" the state is receivin$"ederal "unds

). %ue the %tate o""icer insteadi. Injunction

c. Con$ress under its />th a+end+ent ower can authori#e suits a$ainst the state $overn+entsvii. KKKCon$ress may authori#e suits a$ainst states ursuant C4M to O ; o" the />th 9+end+ent

/. Boerne standarda. Is there a constitutional violation to )e re+edied! ). I" yes& is the resonse roortional and con$ruent to the constitutional violation!

4. *hat evidence is needed!a. Must )e sustantial ). Must )e a'ainst state entities c. 29 widespread pattern3 o" constitutional violations

i. eminole /ribe of lori*a v. lori*a (&B)/. Facts: he Indian a+in$ 0e$ulatory 9ct i+oses on the states a duty to ne$otiate

in $ood "aith with an Indian tri)e toward the "or+ation o" an a$ree+ent andauthori#es a tri)e to )rin$ suit in "ederal court a$ainst a state in order to co+el er"or+ance o" that duty.

a. he %e+inole ri)e o" FL is suin$ the %tate o" FL "or re"usin$ to enter into

ne$otiation "or the inclusion o" certain $a+in$ activities in a co+act& thusviolatin$ the re1uire+ent o" $ood "aith ne$otiation.

4. 5oldin$: 6o& Con$ress can only authori#e suits a$ainst state $overn+ents& andoverride the //th 9+end+ent& when it acts ursuant to O ; o" the /> th 9+end+ent.

a. 9ctin$ under the co++erce clause and not the />th 9+end+ent ). -verturned 0enns-lvania v. nion as !o. (&H)

i. he %ure+e Court held that Con$ress may override the //th 9+end+ent and authori#e suits a$ainst state $overn+ents ursuanto any o" its constitutional owers& so lon$ as the law in its teteressly authori#es such suits.

ii. 5eld that this was an unrecedented eansion o" Con$ress(s ower to authori#e suits a$ainst state $overn+ents.

ii. part test:

/. Did Con$ress une+uivocally e3press its intent to a)ro$ate the state(s i++unity!a. In this case& Con$ress(s intent was 2un+istaka)ly clear3 o" its intent to

a)ro$ate.4. Did Con$ress act ursuant to a valid e3ercise of powers!

a. *as the act in 1uestion assed ursuant to a constitutional rovision$rantin$ Con$ress the ower to a)ro$ate!

i. Con$ress only has the authority to a)ro$ate under 4 rovisions o"the Constitution: O / and O ; o" the /> th 9+end+ent.

viii. it("atric v. Bit(er (&KB)/. Facts: In itle II o" the Civil 0i$hts 9ct o" /GV>& Con$ress authori#ed "ederal courts to award +oney da+a$es

to rivate individuals suin$ state $overn+ents "ound to have su)jected that erson to e+loy+entdiscri+ination.

4. 5oldin$: the court held that state $overn+ents may )e sued "or violatin$ itle II o" the Civil 0i$hts 9ct o"/GV>& which revents e+loy+ent discri+ination )ased on race& $ender& and reli$ion.

a. R8: Con$ress can authori#e suits a$ainst state $overn+ents or state o""icials i" it acts ursuant to OA of the &@th 0mendment.

i. he />th 9+end+ent "ollowed the //th 9+end+ent and can thus +odi"y it./. 9lso the />th 9+end+ent was intended as a limit on state ower and when Con$ress

acts ursuant to O ;& it is eercisin$ its le$islative authority.i. Cases Denyin$ Con$ress 9uthority to 9ct ?nder O ; to 9uthori#e %uits 9$ainst %tate overn+ents

/. lori*a 0re"ai* 0ostsecon*ar- *ucation 3"ense Boar* v. !ollege avings Ban an* .. (&)a. Facts: Colle$e %avin$s Bank& a 6 co+any& devised a syste+& which it atented& "or students to use to

save +oney to later ay "or their colle$e education. Florida reaid coied this syste+ "or use )y FLresidents to save +oney to attend FL schools.

i. Colle$e %avin$s Bank sued FL reaid "or coyri$ht in"rin$e+ent.


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/. By the ti+e Colle$e %avin$s Bank "iled suit& Con$ress had a+ended the atent lawsto authori#e suits a$ainst state $overn+ents "or atent in"rin$e+ent.

a. Florida reaid ar$ues that this a+end+ent was an unconstitutional atte+t )y Con$ress to a)ro$ate state soverei$n i++unity.

). 5oldin$: he court held that Con$ress(s a+end+ent to the atent laws allowin$ suits a$ainst state$overn+ents was not a valid eercise o" ower under O ; o" the />th 9+end+ent )ecause theauthori#ation o" suits was not 2roortionate3 or 2con$ruent3 to re+edy constitutional violations.

i. he court alied the 4 art test "ro+ (eminole.ii. he a+end+ent did not resond to history o" 2widesread and ersistin$ derivation o"

constitutional ri$hts3 and there was no attern o" such constitutional violations )y the states./. he court "ollows (eminole *ribe and City of Boerne.

c. tevens, dissentin': he a+end+ents to the atent law were an aroriate eercise o" Con$ress(s ower under O ; o" the />th 9+end+ent to revent state derivations o" roerty without due rocesso" law.

i. his court has never )e"ore +andated that Con$ress +ust "ind 2widesread and ersistin$derivation o" constitutional ri$hts3 in order to e+loy its O ; authority.

4. 'imel v. lori*a Boar* of Regents ()a. Facts: he 9$e Discri+ination in E+loy+ent 9ct o" /GV @9DE9A +akes it unlaw"ul "or an

e+loyer to discri+inate a$ainst an individual )ecause o" their a$e. ). 5oldin$: he court concluded that the 9DE9 is an e3press authori#ation o" suit a$ainst the states )ut

that the 9DE9 is not a valid eercise o" Con$ress(s ower ursuant to O ; o" the />th 9+end+ent.i. 9lies the 2con$ruence and roortionality3 test.

/. he )urdens the 9DE9 i+oses on state and local $overn+ents are

disproportionate to any unconstitutional )ehavior that +i$ht eist.a. here is not a history o" urose"ul discri+ination )ased on a$e and states

may discri+inate )ased on a$e i" the a$e classi"ication is rationally relatedto a le$iti+ate state interest old a$e is not a discrete and insular +inority )ecause all ersons will eerience it.

i. 2?nwarranted resonse to an inconse1uential ro)le+.3ii. 6ot re+edyin$ constitutional violations

iii. 9$e discri+ination is not revalent and doesn(t justi"y Con$ress(action

). he 9DE9 rohi)its a )roader ran$e o" ractices than would likely )e heldunconstitutional.

i. hus& the )road rohi)ition o" a$e discri+ination in the 9DE9eceeds the scoe o" Con$ress(s ower.

ii. icti+s o" a$e discri+ination can "ind recourse under state law in state courts.iii. -(Connor(s 4=art test to deter+ine whether an act o" Con$ress a)ro$ates //th 9+end+ent

i++unity:/. *hether Con$ress une1uivocally eressed its intent to authori#e suits a$ainst the

%tates4. *hether Con$ress acted ursuant to a valid $rant o" constitutional authority

c. tevens, dissentin': Con$ress(s ower to authori#e "ederal re+edies a$ainst state a$encies that violate"ederal statutory o)li$ations is coetensive with its ower to i+ose those o)li$ations on states in the"irst lace.

i. he "ra+ers did not intend "or the judicial )ranch to )e the constitutional $uardian o" statei++unity.

/. 9lso& the Constitution does not state that state soverei$n i++unity li+its Con$ress(s ower to authori#e rivate arties& as well as "ederal a$encies& to en"orce "ederal lawa$ainst the states.

ii. //th 9+end+ent: does not suort the court(s view only laces a tetual li+itation on thediversity jurisdiction o" the "ederal courts.

7. Boar* of /rustees, niversit- of $labama v. arrett (&)a. Facts: lainti"" atricia arrett was e+loyed as the Director o" 6ursin$ "or the ?niversity o" 9L. %he

was dia$nosed with )reast cancer and had to under$o sur$ery and treat+ent& *hen she returned towork& her suervisor told her that she would have to $ive u her director osition and she thentrans"erred to another& lower ayin$ osition.

i. itle I o" the 9D9 rohi)its e+loy+ent discri+ination a$ainst the disa)led and re1uiresreasona)le acco++odation "or disa)ilities )y e+loyers.

). 5oldin$: 6o& state $overn+ents may not )e sued "or violatin$ itle I o" the 9D9.i. he 9D9 was a su)stantial eansion o" individual ri$hts co+ared to the Constitution.


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/. %tates are not re1uired )y the E1ual rotection Clause to +ake secialacco++odations "or the disa)led i" there is a rational basis "or their actions towardsuch individuals.

4. 9lso& the le$islative record "ailed to show that Con$ress identi"ied a attern o"irrational state discri+ination in e+loy+ent a$ainst the disa)led.

a. Its re1uire+ent "or reasona)le acco++odation o" disa)ilities is si$ni"icantly$reater than the Constitution re1uires.

i. hus itle I is not 2roortionate3 or 2con$ruent3 to reventin$and re+edyin$ constitutional violations.

c. 6reyer, dissentin': attached a 7G=a$e aendi to his dissent where he listed the nu+erousre"erences in the le$islative history to $overn+ent discri+ination a$ainst the disa)led.

. $on'ressional "ower and 9ei'htened crutiny con$ress(s $reater authority to le$islate concernin$ tyes o"discri+ination and ri$hts that receive hei$htened security

/. 5ei$htened %crutiny o" state action @+akes lainti""(s case easier to rovecourts aly less scrutiny o" thestatuteA )ecause +ost o" the ti+e& discri+ination o" these classes is a constitutional violation

a. > %usect Classesi. 0eli$ion

ii. 0aceiii. ender @inter+ediate scrutinyAiv. 6ational -ri$in

). Neva*a e"artment of #uman Resources v. #ibbs (*)i. Facts: he Fa+ily and Medical Leave 9ct o" /GG7 @FML9A entitles eli$i)le e+loyees to take

u to /4 work weeks o" unaid leave annually "or serious health conditions o" the e+loyee(s

souse& child& or arent./. 0esondent 5i))s re1uested leave under the FML9 to care "or his sick wi"e and the

Deart+ent o" 5u+an 0esources $ranted his re1uest and allowed hi+ to take /4weeks o"" inter+ittently )etween May and Dece+)er.

a. 5i))s did so until 9u$ust& when he did not return.i. 5i))s was "ired "ro+ his osition at the 6evada Deart+ent when&

a"ter he was in"or+ed that he ehausted his FML9 leave and no+ore leave would )e $ranted& he did not reort )ack to work on thedesi$nated date.

ii. 5oldin$: Because the FML9 ai+s to rotect the ri$ht to )e "ree "ro+ $ender=)aseddiscri+ination& statutory classi"ications that distin$uish )etween +ales and "e+ales aresu)ject to hei'htened scrutiny the court thus alies less scrutiny

/. For a $ender=)ased classi"ication to withstand such scrutiny& the discri+ination +ust

)e substantially related to achievin$ a su)stantial $overn+ent urose.a. he FML9 stands under the hei$htened scrutiny )ecause:

i. Lon$ and etensive history o" se discri+ination chronicled in thele$islative record.

ii. Eistence o" di""erential leave olicies "or +en and wo+en )asedon se=role stereotyes.

iii. %tate laws that are not "acially discri+inatory were alied indiscri+inatory ways.

4. 9lso& the "a+ily=leave rovision is 2con$ruent and roortional to the tar$etviolation3 )y settin$ a +ini+u+ standard o" "a+ily leave "or all eli$i)le e+loyees.

7. Eli$i)le e+loyees are "ree to recover +oney da+a$es )y suit a$ainst an e+loyer&includin$ the %tate e+loyers& who inter"ere with or revent or re"use toacknowled$e his ri$hts under the "a+ily=care rovision o" the FML9

>. 9re there constitutional violations )ein$ re+edied! Mesa. *hen Con$ress assed the FML9& it had evidence showin$ that there was a

stron$ $ender=)ased )ias in the $rantin$ o" leave )ene"its )ecause o" $enderstereotyin$

i. %tate laws and olicies were o"ten discri+inatory& and even i" theywere not& they were ad+inistered in a $ender=)iased +anner

). he ast len$thy record o" %tate discri+ination in $ivin$ its e+loyees"a+ily leave )ene"its was so stron$ as to justi"y the instant enact+ent o" alaw to re+edy the situation

c. /ennessee v. Lane (@)i. Facts: Lane was a cri+inal de"endant who was disa)led. 5e alle$ed that he was co+elled to

aear to answer to cri+inal char$es on the 4nd "loor o" a courthouse that had no elevator. 5eclai+s that he crawled u 4 "li$hts o" stairs to $et to the courtroo+.


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/. *hen Lane returned to the courthouse "or another hearin$& he re"used to crawl a$ainor to )e carried )y o""icers and was arrested "or "ailure to aear.

a. Lane sued ursuant to itle II o" the 9D9 which rohi)its state and local$overn+ents "ro+ discri+inatin$ a$ainst eole with disa)ilities in$overn+ent ro$ra+s& services& and activities.

ii. 5oldin$: itle II o" the 9D9 is constitutional. he court e+hasi#es the "unda+ental ri$ht o"access to the courts this receives hei'htened scrutiny.

/. Con$ress has wider latitude to le$islate under O ; when dealin$ with a clai+ thatreceives hei$htened judicial scrutiny.

4. he Con$ressional record conveys a history and attern o" une1ual treat+ent.a. his title was enacted )ecause o" a syste+atic and widesread syste+ o"

discri+ination a$ainst disa)led ersons in state services and ro$ra+si. his discri+ination a+ounted in +any cases to derivin$ disa)led

ersons o" their "unda+ental ri$hts ). hus& itle II(s re1uire+ent o" ro$ra+ accessi)ility is con$ruent and

roortional to its o)ject o" en"orcin$ the ri$ht o" access to the courts.c. he re+edy is roortional )ecause it is li+ited and only re1uires states to

take reasona)le +easures to re+ove )arriers to accessi)ility.d. Con$ress has the authority to en"orce the ri$ht $uaranteed under the

Constitution7. *hat is the di""erence )etween this case and arrett !

a. Lane is not just alle$in$ discri+ination "or his disa)ility& )ut he is alsoalle$in$ access to justice this is a "unda+ental ri$ht that is )ein$

in"rin$ed uon.i. hus& this deserves hei$htened scrutiny.

. tate 0uthority

a. "reemption

i. Federal law is sure+e1. ree+tion: when law assed )y a hi$her authority takes recedence over a law assed )y a lower

oneii. %tes:

1. 9naly#e con$ress(s intent )ased on statute2. 9naly#e state statute )ased on con$ressional intent

iii. Con$ress has acted:1. yes:

a. Eress @ orillard v. 8eilly-

i. %tatute itsel" eressly ree+ts state law.b. I+lied

i. Con"lict: @ Alorida ime ) vocado-1. *here there is a con"lict )etween state and "ederal law co+liance with

state and "ed law is a hysical i+ossi)ilityii. Frustration o" "ederal $oals: @ 7acific


28/63

. 0ule: he FCL99 eressly ree+ts state re$ulation o" outdoor and oint=o"=sale ci$aretteadvertisin$.

c. Issue: Did con$ress eressly ree+t state re$ulation o" outdoor and oint=o"=sale ci$aretteadvertisin$ )y une1uivocally rohi)itin$ such re$ulation )y the states!

d. 5oldin$: es& Con$ress intended to )ar state re$ulation in this area even i" concern "ors+okin$ and health +otivate he re$ulations. 9dditionally& the M9 re$ulations are ree+ted )e the asserted atte+t to re$ulate the location& and not the content& o" ci$arette advertisin$has no "oundation in the FCL99.

i. he "ederal statute preempts state lawii. *hat was Con$ress intent!

/. Con$ress is tryin$ to rotect health and wellnessiii. Is the M9 statute a)out health concerns!

/. M9 is li+itin$ advertise+ents due to health concerns "or childrenvi. Implied "reemption

1. *hat does the statute re=e+t!a. Con"lict – Fed ree+ts state law

i. Alorida ime ) vocado

1. %tate standard stricter than "ederala. *as "ederal standard I6E6DED as a "loor or ceilin$

i. I" it i+oses +ini+u+ standard& then state can sethi$her standard

ii. I" "ed i+oses ceilin$& then the state standard is re=e+ted

b. Environ+ental laws have )een held to )e +ini+u+ standards&there"ore& states can set stricter standards

i. 6ot in con"lict )ecause can co+ly with )othb. Frustratin$ "ederal $ov(s a)ility

i. Inconsistentii. 7acific


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v. Contract ri$hts. 6ill of Ri'hts

i. 9lies only to the "ederal $overn+ent/. %tates can encroach uon your ri$hts 5-*EE0J4. />th a+end+ent chan$es everythin$

a. alies to states Chan$es the scoe o" the Constitution ). 2no state shall3c. 0e"ra+es the Constitution with re$ard to individual ri$hts

i. Does not chan$e the Co++erce Clausec. 7hy didn%t the $onstitution have a lot of individual ri'htsF

i. Fra+ers didn(t think $overn+ent would violate I0ii. hey were a"raid there were thin$s they didn(t write down and would li+it'narrow the scoe o" ri$hts

d. "re1$ivil 7ar Rejection Barron v. Baltimorei. B-0 only alied to the "ederal $overn+ent

ii. he Constitution creates the "ederal $overn+ent and $ives the "ederal $overn+ent its ower./. he Bill o" 0i$hts was enacted to li+it the owers o" that "ederal $overn+ent.

a. hus& the states are not includede. 7hat are the "rivile'es and Immunities of $itith 9+end+ent

). Chica&o Burlin&ton ) uincey 8ailroad Co. v. City of Chica&oi. he takin$ o" rivate roerty "or u)lic use without just co+ensation violates the 2due rocess i" law

re1uired )y the />th a+end+entc. *'innin& v. 0e' =ersey

i. -ened the door alyin$ the B-0 )y "indin$ the+ included'incororated throu$h the Due rocess Clauseo" the />th 9+end+ent

/. Incororated individuallyd. 7alo v. Connecticut +double $eo#ardy-

/. he ?% %ure+e Court uheld the conviction.4. The upreme $ourt found that the #ue "rocess $lause of the &@th 0mendment only

protected those ri'hts that were Qessential to a fundamental scheme of ordered lierty.5

7. In this case& the Court "ound that the dou)le jeoardy rotection was not essential to a"unda+ental sche+e o" ordered li)erty. 2Basically& the Court asked i" it was ossi)le to have a trialthat could )een considered "unda+entally "air under the Connecticut standard. hey decided it did

e. damson v. California +not testify> #rosecutor made a comment-i. he ?% %ure+e Court uheld the conviction. he ?% %ure+e Court a$reed that i" the case had )een

handled in Federal Court& 9da+sonRs ;th 9+end+ent ri$hts would have )een violated.ii. 9owever, the $ourt found that the ri'hts 'uaranteed under the Ath 0mendment did not e3tend to

tate courts ased on the #ue "rocess $lause of the &@th 0mendment. iii. Basically& the Court was sayin$ that while the />th 9+end+ent $uarantees the $eneral concet o" a "air

trial& %tate laws did not have to eactly +atch the Bill o" 0i$hts. he Court "ound that even thou$h theCali"ornia law was unusual& 9da+son still $ot a reasona)ly "air trial& so the Due rocess Clause wassatis"ied.

f. $urrent law as to what is incorporated:

i. %elective incororation have revailed in the sense that the Court never acceted total incororation. hetotal incororationists have revailed in the sense that one )y one& the Court has "ound al+ost all o" the rovisions to )e incororated

/. %elective Incororation:a. Doesn(t aly to B-0 in totality ). 5as to )e a "unda+ental ri$ht


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ii. Duncan v. ouisiana/. 0i$ht to trial )y jury is a "unda+ental ri$ht so the state should have allowed hi+ a jury trial under

the Vth and />th iii. I+ortant )ecause o" su)stantive due rocess

/. here are certain thin$s that the states cannot take re$ardless o" rocessa. Funda+ental 0i$hts

i. Must have a co+ellin$ interest @strict scrutinyAiv. 6ot incororates:

/. 7rd& ;th& th& and th '. @ummary) Incorporation:

i. &@th 0mendment says: 29ll ersons )orn or naturali#ed in the ?%& and su)ject to the jurisdiction hereo"&are citi#ens o" the ?% and o" the %tate wherein they reside. 6o %tate shall +ake or en"orce any law whichshall a)rid$e the rivile$es or i++unities o" citi#ens o" the ?nited %tatesN nor shall any %tate derive any erson o" li"e& li)erty& or roerty without due rocess o" the lawN nor deny to any erson with its j thee1ual rotection o" the law3

/. Three ri'hts: @/A ri$ht to due rocess& @4A ri$ht to e1ual rotection& @7A ri$ht to SIii. 6CR E the tates: one o" the +ajor "unctions o" the />th DC is to +ake B-0 alica)le to states

/. 4ot directly applicale to state: Early on& the sure+e court said that the B-0 only alied tothe "ederal $overn+ent

4. 8ffects of due process clause: he enact+ent o" the /> th directly i+oses on the states @and local$ovsA the re1uire+ent that they not derive anyone o" 2li"e& li)erty& or roerty3 without due rocess. 6early all o" these $uarantees under the B-0 have )een incororated )y the %C as a2li)erty3

7. 0pplication of the 6CR to the tates: he %ure+e Court used selective incororation. ?nderthis aroach& each ri$ht in the B-0 is ea+ined to see whether it is o" "unda+ental i+ortance.I" so& that ri$ht is selectively incororated into the +eanin$ o" 2due rocess3 under the />th& and isthus )indin$ to all states.

>. 4early all ri'hts have een incorporated: -nly ones not incororated are @rand ury& ri$ht to jury in civil cases& ecessive "ines

;. !ederal #ue "rocess $lause: />th )inds the states. here is also a due rocess clause in the ; th a+end+ent that is )indin$ on the "ederal $overn+ent the sa+e way that the />th is )indin$ on thestates.

-tion /: rivile$es and I++unities clause:Court rejects

-tion 7: Due rocess%elective incororation

-tion 4: Due rocessInclude LL and everythin$ in B-02"unda+ental ri$ht3 , total incororation

III. tate 0ction #octrine a. the Constitution(s rotection o" individual li)erties and its re1uire+ent "or e1ual rotection aly only to the

$overn+ent. "rivate conduct $enerally does not have to co+ly with the Constitution. ). For the />th 9+end+ent to aly& there +ust )e state action.

i. Civil 8i&hts Cases&. $annot control the actions of individuals, only states actions

a. he constitution $enerally does not aly to rivate entities or actors @/>th a+end+entdoesn(t aly to rivate discri+inationA

). Con$ress cannot use the ;th a+end+ent @"ederal Due rocessA to re$ulate actions o"individuals

i. 5ave to $o throu$h the Co++erce Clausec. 83ceptions

i. "ulic !unction #octrine

/. Certain thin$s that are inherently u)lic& cannot avoid state action doctrine )y $ivin$ to rivateindividual

a. i.e. votin$& +ovin$ u)lic "unction into rivate real+ or so+ethin$ that is )uilt andoerated ri+arily to )ene"it the u)lic& the rivate activity @o" )uildin$A will )eco+e u)lic.

4. u)lic "unction cannot )e +oved into rivate real+ in order to avoid />th a+end+enta. i.e. cannot +ake u)lic arks into rivate ones

ii. 2overnment entan'lement/entwinement

/. *here $ov is so entan$led in rivate individual'actor a. i.e. leasin$ )uildin$ "ro+ $ov& restaurant oenin$ in a $ov )uildin$


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/. I" state owns or re$ulates rivate entity& the state is not actin$ however it is su""iciently entan$led.I" $overn+ent a""ir+atively authori#es& "acilitates& encoura$es unconstitutional conduct& then theConstitution alies. Either $overn+ent +ust cease what it is doin$ or rivate actions +ustco+ly with the Constitution.

?6I I: D?E 0-CE%% 96D 5E 0-ECI-6 -F F?6D9ME69L 0I5%I. #ue "rocess "rotection for 8conomic Ri'hts

a. In $enerali. Econo+ic li)erties $enerally re"er to constitutional ri$hts concernin$ the a)ility to enter into and en"orce P

to ursue a trade or ro"essionN and to ac1uire& ossess& and convey roertyii. wo tyes o" econo+ic rotection under the DC:

/. "rocedural: rocedures that the $overn+ent +ust "ollow when it takes away a ersonsli"e'li)'ro

4. ustantive: asks whether the $overn+ent has ade1uate reason @su""iciently justi"iedA in takin$ a ersons li"e'li)'ro

a. ?sed ri+arily to rotect econo+ic li)erties @=/G7A S sa"e$uard rivacy ). Fra+ework:

i. *hat eact ri$hts are rotected!ii. *hen can the %tate invade those ri$hts!

/. *hat interest on the art o" the state justi"ies re$ulation!iii. Even i" the %tate has the justi"ication to invade those li)erties& does the %tate have to re$ulate!

/. 5ow closely are the +eans related to the end!4. Is the court $oin$ to aly a rational )asis!

7. Is it necessary "or the %tates to re$ulate to achieve its ends!II. 8conomic ustantive #ue "rocess

The Rise of ochnerism

a. Themes of the ochner 8ra

i. he li)erty o" the due rocess clause rotects ri$hts& esecially freedom of contract @and ri$ht to racticetrade or )usinessA.

ii. tate only may infrin'e lierty to achieve valid police purpose, specifically, to protect pulic health,

safety, and morals.

/. Courts role is to insure that state(s urose is su""iciently co+ellin$.iii. tate re'ulation must e necessary to achieve the police purpose not only must the state show

important purpose, must show the law is needed to accomplish the result.

/. 6ot enou$h to show that the law is rational& like McCulloch. stricta. Court says +ust show law necessary, indispensale to achieve 'oal.

. 7hat does >lierty5 protect/what is due processFi. ochner +baers-

/. 0i$ht to Contract @and a)ility to urchase and sell la)orA under due rocess o" />th 9+end+enta. La)or however you want

4. Doesn(t +atter what the state says& its what the court )elieves.a. Court )elieved state was tryin$ to use health in order to re$ulate +arket

i. Declared that the law violated the #"$ o" the />th )ecause it interfered with"reedo+ o" P and did not serve a valid urose

). Bakin$ itsel" isn(t dan$erous7. he+es "ro+ ochner :

a. Freedo+ o" contract was a ri$ht rotected )y the due rocess clauses o" the ;th and />th 9+end+ents.

). he $overn+ent could inter"ere with "reedo+ o" contract C4M to serve a valid olice urose o" rotectin$ u)lic health& u)lic sa"ety& or u)lic +orals.

c. he judiciary would care"ully scrutini#e le$islation to ensure that it truly served such a olice urose.

i. KKK?ntil /G7& the Court "ollowed the rinciles in ochner .ii. ll&eyer v. ouisiana

/. Contract with whoever you want @"reedo+ o" contractAa. Li)erty interests in ursuin$ occuation

4. akeaway: "irst case in an era where econo+ic re$ulations were struck down as violative o"su)stantive due rocess.

a. he law inter"ered with "reedo+ o" Contract and that it thus violated the DC o" the />th iii. Co##a&e v. Gansas +told em#loyees they couldn?t enter unions-

/. -erate what tye o" )usiness you want


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a. 9skin$ e+loyee to not a""iliate with union is not askin$ hi+ to $ive u his constitutiona"reedo+

i. 6o inherent ri$ht to join a unionii. nconstitutional as in"rin$in$ on "reedo+ to contract. 6ot a le$iti+ate eercise

o" olice ower "or the "ederal $overn+ent to atte+t to e1uali#e )ar$ainin$ ower )etween e+loyer and e+loyee.

c. *hen can a state invade those ri$hts!i. ochner

/. %tate cannot in"rin$e unless "alls within olicin$ ower o":a. 5ealth ). %a"etyc. Moralsd. eneral wel"are

4. 2+eans=aroriate3!a. Means end analysis

III. The end of ochnerism

a. 9est Coast Hotel Co. v. 7arrish +1,3- +minimum 'a&e for 'omen and children-i. 5oldin$: he court a)andons its revious holdin$s that the econo+ic ri$ht to contract revents this and

upheld the state law. his is a u)lic interest issue )ecause wo+en and +inors need rotection they

don(t have the ower to )ar$ain "or the+selves and it is the duty o" the $overn+ent to ste in.ii. Constitution does not seak o" "reedo+ o" contract a)andons revious holdin$ that econo+ic ri$ht to P

iii. Even i" the ri$ht to P is under li)erty& this Li)erty is su)ject to so+e restraints/. Funda+ental ri$hts are not a)solute

4. 6o lon$er li+ited to re$ulatin$ only to advance the u)ic health& u)lic sa"ety& or u)lic +oralsa. Court allows $overn+ent to re$ulate to e1uali#e )ar$ainin$ ower

iv. tandard @uses +eans=end analysisA/. 9ny le$it state urose @rotect wo+en and kidsA 04#4. 6eed only )e rationally related to $oal @+ini+u+ wa$esA

a. Even i" not stated ). retty +uch no rotections "or econo+ic li)erties

). /nited (tates v. Carolene 7roducts Co si$nals the end o" the Lochner erai. Facts: Filled Milk 9ct o" /G47 rohi)ited 2"illed +ilk&3 a su)stance o)tained )y +iin$ +ilk and ve$eta)le

oil.ii. he court said that econo+ic re$ulations should )e uheld so lon$ as they are suorted )y a conceivale

rational asis& even i" it cannot )e roved that it was the le$islature(s actual intent.&. ===Rational 6asis Test: is there a le'itimate purpose for $on'ress to do this (sets the ar

pretty low). The re'ulation should e upheld as lon' as it is ased on a conceivale, rationalasis (as lon' as it does not violate a constitutional ri'ht)

4. Court says i" there isn(t a "unda+ental ri$ht at issue& it(s the le$islatures ri$ht to re$ulate theecono+y

iii. Footnote >: I" econo+ic re$ulation violates an a+end+ent& well $ive it hei$htened scrutiny/. est "or strict scrutiny: De"erence will not etend to laws that inter"ere with "unda+ental ri$hts

and 2discrete and insular +inorities.3iv. Can Con$ress re$ulate the rivate roduction o" certain $oods within a state "ro+ )ein$ transorted

interstate!/. es. Court will review econo+ic re$ulations to deter+ine whether there +i$ht )e a rational )asis

"or the le$islative act& and not look seci"ically to the actual intent o" the le$islation.4. 5owever& courts will aly strict scrutiny in reviewin$ laws inter"erin$ with "unda+ental ri$hts

or discri+inatin$ a$ainst discrete or insular +inorities. Courts are now the lackeys o" secial

interest $rous.I-. 8conomic ustantive #ue "rocess since &*K

a. 9illiamson v. ee ;#tical of ;G> "nc. +1,55-i. 5oldin$: he %C upheld an -P statute that rohi)ited an otician to "it or dulicate lenses without a

rescrition "ro+ an oto+etrist or ohthal+olo$ist./. he %ure+e Court upheld the statute as otentially advancin$ u)lic health.

a. he le$islature +ay have dee+ed eye ea+s critical to correctness o" vision and "ordetections o" latent diseases.

). he court stressed the need "or judicial de"erence to le$islative choices and e+hasi#ed u)lic health as a le$iti+ate urose "or "indin$ a law constitutional.

ii. 2For rotection a$ainst a)uses )y le$islature the eole +ust resort to the olls& not to the courts.3/. %hi"t o" court reali#in$ laisse#="aire econo+ics was olitical 1uestion& not constitutional.4. DC will no lon$er )e used to strike down state law re$ulatin$ )usiness


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iii. Rational asis

/. 9s lon$ as the court can conceive so+e le$iti+ate urose and so lon$ as the law is reasona)le& alaw will )e uheld

-. The Reirth of 8conomic #ue "rocessF $onstitutional imits on "unitive #ama'es

a. BM9 of 0orth merica v.


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4. he ;th 9+end+ent authori#es the $overn+ent only to take rivate roerty "or 2u)lic use3a. he %C has eansively de"ined u)lic use so that virtually any takin$ will +eet the

re1uire+ent7. Ha'aii

a. akin$ rivate roerty in e""ort to reduce concentration o" land ownershi ). u)lic use )ecause need "or u)lic housin$c. overn+ent +ust +eet rational )asis test

i. 0ational )asis )ecause state acted out o" reasona)le )elie" distri)utin$ownershi a+on$ lar$er nu+)er o" eole would )ene"it "ro+ the u)lic

>. Gelo v. 0e' ondona. u)lic 2urose3 is easier to aly than u)lic 2use3 ). Develo+ent was "or the u)lic urose o" econo+ic develo+ent – revitali#e an ailin$

econo+yi. 0easona)le )elie" – a takin$ is "or u)lic use so lon$ as the $overn+ent acts out

o" a reasona)le )elie" that the takin$ will )ene"it the u)licc. Court de"ers

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