Con Law Outilne

8/2/2019 Con Law Outilne

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4/21/2012 2:41:00 PM

Justiciability 5 limits 1. Advisory Opinions

o Courts will not issue advisory opinions.o Creates a conflict of interesto Non-Final

Hayburns-Revolutionary War Vet benefits Plaut v Spendthrift Farms (Congress cannot take Final

judgments and reopen)

2. Standing- No injury, D didnt cause injury, Ct cant redresso Generalized grievance not ok. Cant just argue law is bad.

Prudential principle If no one has standing it should be probably be given to

congress

o Must show 3 things Injury-Actual or imminent Causation-Fairly traceable to D Redress ability- Court can make a ruling that fixes the

problem

o Allen v. Wright- Challenge of tax exempt status of segregatedschools

Not a concrete harm, abstract generalized grievance Little causation No redress ability

o Lujan v. Defenders of Wildlife- (92) Challenge of funding forprojects EPA

No standing because no injury in fact (plane ticket may havebeen enough)

o Massachusetts v. EPA- (07) Challenge to EPA to regulategreenhouse gasses.

Injury to state as a whole Big dissent from the right.

o Prohibition of third-party standing- Generally a plaintiff must assert his own claim. Exceptions- 2 factors- closeness of relationship and likelihood

that third party could sue on his own behalf

Abortion doctors


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Bartender White landlord on behalf of blacks

3. Ripeness Injury in Futureo Inevitable Injunction

Poe v. Ullman- Court avoided b/c no actual violation, had todeal with it in Griswold v. Connecticut.

o Final Decisiono Present, Concrete effectso Hardship from Delayo Readiness of issues for adjudication

United Public Workers v. Mitchell- Public workers wantedadvisory opinion that they were allowed to be involved in

politics (court said no, no ones rights had been violated)

4. Mootness Injury in Pasto 3 exceptions

1) CRYER- Capable of Repetition Yet Evading Review Roe v. Wade- Pregnancy can happen again, litigation

takes longer than term of pregnancy.

Defunis v. Odegaard Law student deniedadmission, given injunction and allowed to graduate

Ruled Moot given individualized relief Anyone else injured would have the same ability

to litigate

2) Voluntary cessation Friends of the Earth v. Laidlaw- Mercury levels to

high Laidlaw closed facility voluntarily

Does not make case moot unless very final Could allow people to start and stop activity

3) Class Actions U.S. Parole v Geraghty- Class action challenging

parole board rules

Suit can survive even if named plaintiff becomesmoot

5. Political Questiono A. Malapportionment


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Baker v. Carr- Can decide Malapportionment cases basedon Equal Protection instead of Guaranty Clause

o B. Political Gerrymanderingo C. Federal Office Qualificationo D. Foreign Policyo Short Test-Baker v. Carr-

Textual Commitment of Issue to other branch (Nixon) Judge Nixon challenged impeachment, Senate in

charge of impeachment, nothing says how it is run-

Impeachments committed to senate

Judicially Manageable Standards lacking; Determination ispolicy not law (Vieth)

Need for Finality w/o judicial review: urgent: branch conflictundesirable (Goldwater)

Goldwater said Senate had to rescind treaty, Ct. said non-justiciable on Foreign Policy

Congressional Power Is law constitutional

o Is it within enumerated powers in Constitution? A. Art. 1 Section 8

Cl. 1 Tax and Spend Cl. 3 Regulate interstate/foreign commerce Cl. 5 Coin Money & regulate value Cl. 11 Declare war; raise/regulate military; capture

rules

B. Amdts. 13-15, 19, 24, 26o Is it prohibited elsewhere?

Separation of powers- Powers for each branch Federalism- Powers given to state Individual Rights- Cant abridge individual rights (speech

e.g.)

Commerce Clause

4 eras of Commerce Power

1) Gibbons Erao mid 1800s Broad power, not used much

2) E.C. Knight Era


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o 1895-1937 narrow power, many laws struck down E.C. Knight- anti monopoly Schechter Poultry Consumer and labor Carter Coal prices and production

3) Wickard era- Wickard v. Fillburno 1937-1995 Broad power, almost everything interstate commerceo Flow=Interstate commerceo Promoting and removing obstacles=Interstate commerceo Judicial Deference-rational fact finding of congresso Aggregation- Substantial effect can be in the aggregateo 3 categories of Commerce Power

1) Channels 2) Instrumentalities 3) Substantial Effects

o 37-42-Labor/economic/consumer lawso 60-70s-discrimination/ criminal laws

Heart of Atlanta v. US-Staying in a hotel =Commerce Katezenbach v. McClung- Food in commerce. BBQ

restaurant cant discriminate.

4) Lopez and Morrison Era (Current)o Renewed certain limits to commerce powero Lopez (1995) Gun free school act, fed. Law on guns in school

Not economic activity- dont use the aggregate No leg. Findings on commerce affects Congress ended up passing a law saying guns that had been

in interstate commerce within range of job training center

which was upheld

o Morrisson (2000)Violence against women act, penalized gendermotivated violence on federal level

Held- not substantially affecting interstate commerce Showed Lopez was not a speed bump Sexual assault did not substantially affect interstate

commerce

o Gonzalez v. Raich- Court upheld Fed Law disallowing MedicalMarijuana

Held marijuana is a market and could use aggregate


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Kind of like argument in wickard Substantial effects- use words market and

aggregate

o Pierce v. Guillen upheld states having to collect info on roadhazards

Court upheld 9-0 based on channels Fear was info would be used in litigation

Congress said info was non-discoverable Was a 10th amendment argument

Congress cant force states to do things Post Gonzalez v. Raich

o 1) Definition of economic if interstate market exists (even illegal)

look at aggregate affects Includes production/growing/manufacturing

Borderline cases-arson/local endangered specieso 2) How much evidence of substantial effects on interstate

commerce

Deference; Morrison compared to Raicho 3) How much must be Inter state or economic of whats regulated

10th Amendment - Is it a reminder or actual right?

Possible meanings-o 1) Congress cant legislate at all on matters traditionally states

Hammer v Dagenheart- Child labor laws= state issue US v. Darby Overturned Hammer, Upheld minimum wage

Said that 10th amendment was just a reminder and didnot grant substantive rights to state

o 2) Congress cant subject states to generally applicable laws National league of cities v. Usery- Said fair labor

standards act did not apply to state govt

Garcia v San Antonio-Overturned Usery, Congress canextend fair labor act to state govt

Reno v.Conden- Upheld drivers privacy protection against10th amendment challenge

Established Garcia was still good law Info can be article of commerce


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o 3) Congress cant coerce state officials in certain ways NY v. US- Congress cant force states to take title for

Radioactive waste

Printz v. US- Could not force state cops to do backgroundchecks for Brady act

10th Amendment tracks commerce clause powerso same eras as CC

Tax and Spend- 1) Kinds of spending allowed

o US v. Butler- Congress taxed certain farmers and gave money toothers

Tax & spend is not a means to an endo SD v. Dole- Funding string on Highway funds, forced states to

make drinking age 21

4 Conditions 1) General welfare- very deferential 2) Unambiguous 3) Relatedness- very deferential 4) Other Constitutional Limits 10th Amend.

o Sabri v. US- Congress can pass law against bribery b/c money isfungible so any federal funds could be affected.

Executive Power Inherent Presidential Power-

o Youngstown v. Sawyer- President ordered AG to take over steelmills during a strike during the Korean War Seizure of steel mills

not ok.

Overturned-Blacks majority said no unenumerated powers Jackson concurrence=most cited opinion

3 prong test- 1) When president acts pursuant to an act of

congress=broadest leeway, most authority

2) When pres. acts based on independent powerwith congressional silence. (twilight zone)

o Probably has authority 3) When pres. acts in opposition to will of

congress


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o lowest level of authorityo Only clear pres. authority ok

Authority of Congress to increase presidential powerso Clinton v. NY- Line Item veto

Majority-Not ok b/c laws are compromises, Kind of likeBlacks majority in Youngstown

Efficiency not enough to get rid of constitutional procedures(Kennedy concurrence)

Dissent- not technically a repeal or amendment Evolving meaning-Omnibus bills may take veto power

away from pres.

Executive Privilege-o US v. Nixon- How do you deal with exucitive privilege? Is it a

political question?

State secrets-absolute privilege. General claim- Balancing test-Confidentiality needed for

executive vs. justice.

Criminal usually much more important than civil Foreign Policy Powers-

o 1) Broader- a) Justiciability (Goldwater v. Carter) b) Executive agreement/orders-Pres. usurping some of

congresses powers

c) War- Compromise-authorization of force Treaties and executive agreements-

o Treaties Negotiated by P, effective when ratified by CG Termination=political question, lots of different ways

o Executive Agreements Deals between P and foreign powers, not sent to the senate C is silent Acquiescence doctrine

Dames and Moore v. Regan- Iran Hostage fund Congress impliedly authorized by not saying no Even with congressional silence (Curtis Wright

gives power to avoid embarrassment)

o Executive/Congressional agreements-NAFTA


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Treaties by statute War Powers-

o Congress is not going to stand in way of Pres. if people are gettingkilled.

o Pres. has kind of taken over war powers bc of change in society War on Terror-

o Hamdi v. Rumsfeld-Detainment of US citizen at Gitmo 5-4 ok to hold plurality 8-1 had to give procedural due process Led to Bush appointment of Alito and Roberts b/c they were

strong executive supporters.

Pres. can detain but have to have some kind of hearing, nota full trial

o Boumediene v. Bush- Held not ok because separation of powerprotects individual rights

Separation of powers- not ok suspension of habeas corpusLimits on State Power

Supremacy Clauseo If a federal law conflicts with a state law Fed law wins

Dormant Commerce Clauseo States cant impede interstate commerce

Privileges and Immunityo No discrimination against out of staters

Preemptiono Express

If Fed passes a law and states that states cannot pass anylaw on topic.

As broad as it gets (Erisa- fed retirement law specificallysays it preempts)

o Narrower Lorillard Tobacco-Cigarette advertising regs preempted

Arguments against States rights Congress knows how to expressly preempt

Argument for Leg History- moving in this direction


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Exception to preemption Whiting- Licensing of business not punishing immigration

States can pass licensing regs Law was based on e-verify Not complete field preemption for immigration

o Implied Conflict or interference Given Federal law does state law

Conflict (Florida Lime-avocado regulation) States can have stricter guidelines

Impede or Interfere (Pacific Gas) California legislated on economic issues of

nuclear plant, Fed had to do with safety

Interference argument-Fed was trying topromote nuclear, Cal was trying to limit

Field Preemption 3 main reasonso Foreign Policy (core federal law)o Fed Law so comprehensiveo Fed law strikes a balance, not a minimum

Does Fed intend to occupy entire field (Hines)o Alien registration-immigration a national issueo How broadly (Whiting) Arizona immigration law not completely

occupying field (States can pass licensing laws)

Dormant Commerce Clause-

2 part testo 1) Facially Discriminatory

Laws that are discriminatory against out of state citizens getstrict scrutiny (no alternatives to important non-

discriminatory purpose)

Dean Milk v. Madison- Law against out of state milk,Burden on government to disprove alternatives

Alternatives so it was overturned Court does not care if its expensive as long as it

is not prohibitive

Maine v. Taylor- Law against out of state bait fish


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No alternative, could not separate good fishfrom bad fish. (seemedfishy)

United Hauler v. Oneida- Govt landfill, When govt acts as a market participant no

dormant commerce clause

o 2) Facially neutral Balancing Test Strike if

A) Unjustified Burden ( Kassel) Ban on double trailers Held invalid b/c prohibited interstate commerce Burden on commerce outweighed state interest

B) Inconsistency (Kassel, Bibb)

C) Pretext for discrimination (Pike, Exxon) Must prove discriminatory result as well as purpose

o Exceptions- Congressional Approval-Insurance Industry Market Participant- State as a buyer or seller

States can choose to buy or sell from in state States cant try to regulate downstream commerce

through that buying and selling

Privileges and Immunitys (Only applies to citizens, not corporations)

Ask 3 questions o Does the law affect a fundamental right, privilege or immunity?

What are fundamental rights? 1) Pass through or travel in state. 2) Reside in state for business or other purposes. 3) To do business in the state. 4) To take hold or own property. 5) Exemption of higher taxes than in state. 6) Medical services. (Maybe not state funded)

Baldwin v. Montana fish and game- Higher hunting license price for out of state, hunting

not a fundamental right.

United Workers v. Camden-


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Workers had to live in the city. Not DCC b/c marketparticipant but P and I b/c right to earn livelihood.

o Is the laws discrimination the kind that is protected?o Does the state have a substantial reason?

Stronger than Dormant Commerce Clause, it actually is in the text Only applies to discrimination, not burdens to out of state citizens must

be actually discriminatory.

o Toomer v. Witsell-SC rule making it 10 times more expensive forout of staters to get shrimp licenses

o New Hampshire v. Piper-Have to be citizen to be licensedattorney

Discrimination and many good alternatives Recreational activities are not fundamental rights

o Baldwin v. Montana fish and game Out of state hunting license more expensive ok

Individual Rights-

Twining v. New Jersey- Incorporation of Bill of Rights by 14thamendment to states-5th amnd. Against self incrimination

o States cant abridge rights since 14th amendment incorporatesrights for state

State action doctrine- 14th amendment does not apply to private actors,only the 13th applies to individuals. (Cant own slaves)

Public Function Exception-o When private parties fill roles generally held by govt essentially

state action and cannot abridge rights

Marsh v. Alabama-Jehovas witness wanted to preach oncompany town streets

Court held company town was essentially a state actorand could not restrict speech

Jackson v. Metro Edison Co- Private electric company shutoff service to a lady without a hearing.

Action not traditionally associated with sovereignty. Just because something is regulated by the state does

not mean that it is a public function for the purpose of

the exception.


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Terry v. Adams- (Jaybird case) Jaybirds essentially pickedcandidate

Jaybird primary was essentially the primary andtherefore state action.

Entanglement- Applies if the govt authorizes, encourages, or facilitatesprivate conduct that violates the constitution.

o How much encouragement = state action? Shelley v. Kraemer- Enforcement of covenant against

selling property to colored people

Courts enforcement of contract = state action Court has not expanded past these circumstances

Lugar v. Edmondson- Prejudgment attachment of property Attachment of property is state action

Edmonson v. Leesville concrete- Preemptory challengesof jurors.

Exclusion of jurors is wielding state power Brentwood Academy v. Tennessee athletic association-

High school sports association- (entwinement? Maybe a new

exception?)

Economic Substantive Due Process-

Economic Substantive Due Process-Upheld if there is a rationalrelationship to a legitimate interest (very deferential)

o Lochner era= EC Knight era CC (not good law) Held regulation of bakers violation of sub Due process Would strike down if

insufficient important interest law insufficient necessity alternatives less infringing overinclusive doesn't serve interest

Nebbia v. NY- upheld milk regs. (Rational basis test)

o End of Lochner Era=West Coast Hotel v. Parrisho West Coast Hotel v. Parrish Minimum wage for women and

children upheld

Beginning of Rational basis test


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o US v. Carolene Products- Ban on Milnut (footnote 4) Rational basis-any stated fact can support law

o Williamson v. Lee Optical- Forbade opticians to make glasseswithout a prescription

Really showed that any purpose counts and that there is notreally any economic substantive due process rights that will

be enforced

Only economic substantive due process decisions in the modern erao Punitive damage limitso BMW v. Gore- Repainted BMWs

Punitive damages too much more than compensatory Reprehensibility?

o State Farm v. Campbell- Litigating damage suits and thensticking policy holder with damages when they lose

Usually single digit multiplier Sometimes egregious damage with low economic damage

allows for higher multiplier (Rare)

The Contracts Clause-

Only applies to state laws affecting existing contracts.o Home Building v. Blaisdell- Minnesota law prevented

foreclosures for two years

Economic difficulties held to be emergency Contracts were made with assumption of state action in

emergency.

Close scrutiny if severe impairment 3 Part test-

1) is there a substantial impairment of a contractualrelationship

2) if so, does it serve a significant and legitimatepublic purpose

3) if so, is it reasonably related to achieving the goal?o Allied Structural Steel v. Spanous- Minnesota pension benefit

act violated contracts clause

Only law overturned by Contracts Clause Minnesota cant impose fee on funds retroactively


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Fee was not an expected regulation at time of contractformation

Equal Protection- Discrimination based on classification (facially neutral have to show discriminatory purpose as well as result) Strict Scrutiny- Necessary to a compelling interest

o Race-Facially discriminatory Korematsu v. US- only law to be upheld under strict

scrutiny

Compelling interest in preventing espionage Not really a good case to cite

Loving v. Virginia- Law against interracial marriages(disadvantages both races, still a problem)

Stigmatized other races, not ok Brown v. Board of Ed. Overturned separate but equal

Separate can never be equal Johnson v. California- Segregation of prisoners for first 60

days to prevent race based gang violence

Strict scrutiny-Overturned Over inclusive-not everyone is in a race based gang Possibly doesn't serve interest or make it worse

o Race-Facially neutral Washington v. Davis- Test to be a police officer, disparate

impact not enough for strict scrutiny without intent.

Impact can be evidence of intent sometimes, just nothere.

McCleskey v. Kemp- Equal protection challenge to deathpenalty for a black man.

Would have had to show intent (Juror bias) Particularized individualized discrimination (judge bias) Historical evidence Comparator

o Judicial power to remedy- Courts can order desegregation for violations (Swan v.

Charlotte Mecklenberg) but cannot impose multidistrict

remedies for districts where there are no violations (Milliken

v. Bradley)


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o Affirmative Action Cases- Parents Involved v. Seattle School District- Affirmative

action in high school enrollment tie breakers

No race based assignments for high school Grutter v. Bollinger- Race as a factor for law school

admission (upheld narrowly) Individual review

Race can be a plus factor as long as it is not so heavilyweighted that nothing else matters

Gratz v. Bollinger- Race in undergrad at Michigan- Not ok because not individual review

o Alienage- (Mostly) If relates to self govt = rational basis Graham v. Richardson- Arizona welfare for resident aliens

Strict scrutiny- Aliens are people to for EPC

Foley v. Connelie- Alien wanted to be state trooper Not violation of EPC b/c state troopers enact public

policy

Police use force to deprive you of rights, you get tochoose your lawyer (distinguish Griffith) you don't get

to choose your police officer

Plyler v. Doe- Law not allowing children of illegal aliens togo to school

Intermediate scrutiny for illegals Court said not ok Must serve substantial interest to some meaningful

degree

Intermediate Scrutiny- substantially related to an important govt interest,(if not facially discriminatory have to show both intent and effect)

o Gender- Reed v. Reed- Law stating that when there were two people

in same category for who administers will you pick male

Court said rational basis but really looked at it w/intermediate scrutiny.

Said that it wasnt rational to pick the male, everyoneshould be on equal footing but could have easily said

efficiency was state interest


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Frontiero v. Richardson- Married women officers couldn'tget money for male spouses like men could for female

spouses

Ct. said strict scrutiny Ct. said important means more than legitimate Administrative costs are not sufficient interest

Craig v. Boren- Law against selling 3.2 beer to 18 guys butok for 18 girls

First Ct. to say intermediate scrutiny Underinclusive-women who drink and drive not

covered

Overinclusive- not all men would drink and drive US v. Virginia- VMI- Women werent allowed, all womens

school argued to be equal, wasnt

Intermediate scrutiny- Exceedingly persuasivejustification for classification

Mississippi University for women v. Hogan- Men couldnot enroll= violation of EPC

Counter acting social discrimination is not ok reasono Non-Marital Children-

Laws that deny rights to all non-marital children that maritalchildren have always violates EPC

Laws that give rights to some non-marital children but notothers decided on case by case basis

Rational Basis w/ Bite- arbitrary and unreasonable???o US Dept. of Ag. v. Moreno- Law against food stamps for people

who live with unrelated roommates.

Meant to not give food stamps to hippy communes Animus not a legitimate interest

o Cleburne Texas v. Cleburne living center- Living center forretards, town denied application for special permit

NIMBY- Not rationally related to interest- Cited floods but hospital

right next door (under inclusiveness is indicative of animus)

Rational Basis- rationally related to a legitimate govt interest (challengerhas the burden of proof)


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o Everything elseo Railway Express v. NY- signs on truck not allowed unless for own

business.

Under inclusive b/c it did not address ads for own company(ok) does not have to cover everything

o NY Transit v. Beazer- Methadone users not allowed to work Over inclusive b/c not all methadone users will be bad

employees, (ok) over inclusive ok, not a suspect class and

rationally related to purpose.

o Age-Rational basis, age is immutable but changes SC says rationalbasis

Mass. v. Murgia- Mandatory retirement at 50 Held acceptable-rationally related to state interest of

physically capable police force

Rational relationship-age as a proxy Could have argued-

Narrower alternative Over breadth-excludes 51 yr. old in good shape Under inclusive- 30 yr. old fat boy Doesn't serve interest

Probably doesnt matter b/c rational basiso Disability- Heller v. Doe allowed civil commitments.

Rational basis is review standard but broad statutoryprotection under ADA.

o Wealth- Other than poll taxes, discrimination against poor getsrational basis scrutiny.

San Antonio v. Rodriguez- property tax for education okeven though some schools better than others.

o Sexual Orientation- Romer v. Evans- Colorado amendment 2 stating

Homosexuals were not a protected class

Ct. said rational basis but really was closer to bite After Lawrence v. Texas looks more like heightened or

bite

Fundamental Rights- Family Autonomy-


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o Right to marry Zablocki v. Redhail- No marriage license if man has

unsupported dependents if they are wards of the state (also

argued as discrimination, only rational basis on poor

argument)

Strict Scrutiny Over inclusive- Covers those who cant pay as

well as wont pay

Alternatives Ineffective at serving interest

o Right to Custody of Children- Michael H v. Gerald D.- Rights of adulterous father- none

according to majority, Scalia looks to history as to what has

been protected

Define right narrowly Brennan-Dissent- right to non conform

Evolving meaning Define right broadly

o Right to Parents control in upbringing of children Meyer v. Nebraska- Law making it a crime to teach

German to elementary school children

Right to choose education for children Pierce v. Society of Sisters- Law forcing people to send

children to public school

Unreasonably interfered with liberty of parents todecide on childrens education

Reproductive autonomy-o Right to procreate-

Skinner v. Oklahoma- Overturned habitual criminalsterilization

Majority ruled based on Equal Protection Concurrence ruled on Substantive Due Process Procreation is a right

o Right to purchase and use Contraception Griswold v. Connecticut- Ban on providing contraception

Not ok-contraception is part of privacy right


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o Right to Abortion- No spousal consent, parental consent if judicialend around

Roe v. Wade- Abortion is a fundamental right, also possiblya discrete and insular minority.

Trimester framework- 1st no regulations (exception licensed doc) 2nd limited regulations mainly ok for maternal

health reasons

3rd can ban w/ exceptions for health of mother Planned Parenthood v. Casey- Abandoned trimester

framework.

Pre-viability- State can regulate as long as there is noundue burden

Spousal notice regulation not allowed Not strict scrutiny-somewhere in between

(intermediate scrutiny)

Joint opinion OConnor, Kennedy, Souter Gonzales v. Carhart- Court upheld a ban on partial birth

abortions

Applies but modifies undue burden test Def. probabilistic burden, added deference State can burden and dissuade Cant disallow Moss thinks Carhart could have won

Argue equal protection (skinner and Zublocki) Discrimination between women based on how

the fetus is sitting

Could have argued commerce clause EC Knightto get Thomas

Women could file as applied challenges Medical Care decisions

o Medical treatment cant be imposed with out due process and atleast rational reasons

o Right to refuse medical treatment (not absolute, vaccines) Cruzan v. Missouri Health- Required clear and convincing

evidence of patients will to pull plug


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o Doctor assisted suicide- Not a fundamental liberty Washington v. Glucksberg- States can criminalize assisted

suicide

State interest in life generally Difference between not accepting treatment and dying

of something else and affirmatively taking action

Gonzales v. Oregon- Fed cant disallow states from allowing assisted suicide

(preemption) (Police power)

Sexual Orientation-o Lawrence v. Texas- Law against homosexual sodomy overturned

Right to privacy allows private homosexual activity(kennedy)

History does not say homosexual activity fundamentalright(Scalia)


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