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59 Cards in this Set

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Purpose of the parts of the 14th amendment?
1. P & I - intended to prevent state discrimination with respect to fundamental civil rights, such as those in the IV.

2. P & I - thought to include certain other fundamental rights found in the Bill of Rights such as speech and press.

3. P & I - might have been to incorporate all the provisions of the first 8 amendments.

4. DP - required states to provide fair or reasonable procedures prior to the deprivation of life, liberty, or property.

5. EP - probably designed to remedy a state's unequal enforcement of the laws.
There are 5
Slaughterhouse holding
The P&I from the IV is not the same as the P&I from the XIV.

So not all the rights are incorporated.
Slaughterhouse significance
This case is still good courts began using DP to to incorporate piece by piece. Courts have also used the EP to do this like in prohibiting the exclusion of blacks from juries.
Theories of Incorporation
Total Incorporation

Selective Incorporation

Fundamental Fairness
Does the 14th amendment govern the coduct of purely private actors?
What is the one part of the constitution that does govern the behavior of private actors?
13th - slavery
Who is a state actor?
state agency
through an officer or employee
What is state action?
Activity undertaken by the state, directly or indirectly
2 kinds of joint activity for state action
1. concerted or conspiratorial activity b/w a state actor and a private actor directed toward depriving another individual of his or her constiutional rights.

2. creation of a mutually beneficial relationship between a state and private actor in which the private actor takes action that would violate the 14th if undertaken by the state
Symbiotic relationship (state action)
Wilmington Parking Authority - restaurant was physically and financially integral and indispenble to the state's plan to operate its project
Will state regulation or licensing scheme alone constitute state action?
No - only if the state statute mandates the specific action being challenged
Is public funding enough to be state action?
No. There must be more. For example, the state must have a strong interest in the activity being done. (In the parking garage case it was an integral part of the enterprise.)
If California funds the private Thomas College money to do a study for the CA agricultural department regarding pesticide on corn, is this state action?
Probably, the research directly benefits the state dept
What is state endorsement of private conduct?
If CA has a statute that requires discrmination in selling your house...this would be state endorsement, b/c the state is making an affimative endorsement of otherwise private acts of discrmination
Lugar v. Edmonson Oil 2 part approach to state action -
1. the deprivation must be caused by the excercise of some right or privilege created by the state or by a rule of conduct imposed by the state or by a person for whom the state is responsible

2. the party charges with the deprivation must be a person who may fairly be said to be a state actor.
2 part approach using flagg bros case
1. there was a state statute authorizing the priavte sale of stored goods = yes

2. flagg was not a state actor - no state official was required in the sale, and flagg was not forced to sell
Is a private shopping mall state action?
Probably not - unless it takes on the characteristics of a town. Case which previously said yes to state action was overruled.
Key to Public Function Doctrine
"traditionally exclusively reserved to the states"
Kinds of Co-mingling for purpose of state action
1. coercion
2. encouragement (Mulkey)
3. symbiotic relation (Burton)
4. concerted or joint action (lugar)
5. government ratification (McCollum)
Judicial enforcement
Is confined to only those instances in which the state's judicial system acts to coerce private parties to refrain from their desired conduct (i.e. force to discriminate)

when private parties envoke constitutionally neutral laws, there is no state action
Symbiotic and other public- private relationships
Symbiotic (when state benefits from private action)

Licensing - not enough alone

Regulated and licensed private monopolies = not enough alone

joint action = can be enough (Lugar - writ of attachment which involved an officer helping in the act)

entwinement - can be
(TSSA was state actor, b/c so entwined with the state)
Policy for State Action
1. Preservation of individual liberty

2. Preservation of Separatio of Powers
Judicial Review def
The right of courts to decide if laws enacted by Congress or actions of the executive branch are in violation of the Constitution
SC cannot review final court judgments on matter of state law?
Yes, SC has the authority to review final judgments of the highest courts of the states, but only to matters of federal law.

Even if fed law involved...if state court decision is based on adequate and independent state law...SC cannot review case.
Justicability Doctrines
1. standing
2. no advisory opinions
3. ripeness and mootness
4. political questions
5. abstention
3 elements of standing
1. personal injury in fact
2. caused by the action complained of
3. redressable by the courts
Political Questions - exist when:
1. the constitution commits resolution to another branch of the government (but courts decide if there is such a commitment)

2. there are judicially cognizable standards by which the issues can be resolved

3. decision requires a judicially inappropriate policy choice

4. there is pressing need to adhere to a decision laready made by the president or congress

5. there is risk that judicial decision will embarass the nation
Marbury hold
when a statute and the constitution conflict...the constitution, as higher law, prevails
5 Justifications for Judicial Review
1. a necessary inference from a written constitution (policy?)

2. necessary rule in the judiciary interpreting law (policy)

3. implied form the Supremacy clause that the constitution is supreme law and binding on states (text)

4. inplied from Art III giving fed courts juris over all cases arisinn under constitution (text)

5. implied in fact that judges take an oath to support and uphold constitution (tradition)
Martin v. Hunter's Lessee - conflict over land VA statute and US treaty
Court held that in interpreting the consitution, the federal court has exclusive jurisdiction
What is actual or imminent injury for standing?
Actual, imminent, already suffered or if threatened will occur immediately.
Causation for standing
"substantial liklihood" that the injury occured would not have happened but for the defendant's actions
Are advisory opinions allowed?
No. It must be a case or controversy ... not hypothetical questions.
Ripeness factors
Specific harm - P must show that he has either:
a. already suffered harm
b. faced with specific present objective harm, or
c. under threat of specific future harm

Anticipatory review - ripeness prevents a litigant faced with an arguably invalid law from obtaining review of the law before its effective date.
Mootness def
A case is rendered moot when events occur after the case has begun which eliminate the P's stake in the claim
Exception to mootness:
1. life of the controversy is too short to fully be litigated prior to its termination

2. there is a reasonable expectation that the P will again be subjected to the same problem
Factors identifying a political question:
1. consitutional commitment of decision of the issue to another branch.

2. lack of standards for decision

3. decision requires a judically inappropriate policy choice

4. decision would lack respect for congress of the president

5. political decision already made

6. potential for embarassment
Baker factor #1 - issues commited for decision to congress or the president
Examples -

1. impeachment = political question(Nixon case- senate can run the process however they want to)

2. constitutional amendment = political question (congress has the sole power over the amending process - not subjec to judicial review)

3. qualification of members of Congress = not a political question (Powell case)

4. control of national guard = probably congressional
Baker factor #2 - issues lacking discoverable and manageable standards for decision
when stds are unscrutable and unworkable, the court may just be interfering with other lawful decision makers

1. ratification period for states - seem to have to standards to use

2. political gerrymandering - court said this was a judicial issue, b/c there is a std, but dissent though otherwise
Baker factor #5&6 - need to adhere to political decisions already made and the potential for embarassment from multiple voices
1. power to make war - political question usually

2. foreign affairs short of war - nearly always political questions - want one voice to speak on foreign affairs
where the federal court refuses to hear the case, usually because it would be to prvent conflict with other branches or...need for federal courts to refrain from interfereing with the ongoing litigation process of the state courts
Sep of Power

President Powers
1. executes law
2. exclusive power to appoint principal federal officers
3. veto bills or sign into law
4. extend diplomatic recognition
5. grant pardons
6. negotiate treaties
7. commander in chief of armed forces
Specific Constitional Powers of President
1. exec power vested in him
2. commander in chief of armed forces
3. grant reprieves and pardons
4. negotiate treaties
5. power to appoint principal fed officers (subject to senate)
6. appoint VP (subject to both houses)
7. extend diplomatic recognition
8. call Congress into extraoridinary session
9. take care that laws be faithfully executed
10. sign and veto bills
Does Congress have the power to appoint any exec officers?
NO - see Buckley v. Valeo
Commission by Congress for Fed Elec Commission was struck down b/c they have no power to appoint exec officials.
What do restrictions on removal of an inferior exec officer rely on?
whether removal restrictions are of such a nature that they impede the president's ability to perform his consitutional duty
Removal Powers of president
not specified in constitution

1. congress may restrict Pres power to remove inferior fed officers

2. congress may not restrcit Pres unilateral power to remove principal officers

congress may not impose restrcitions that impede the Pres ability to perform his constitutional duty
Can congress put restrictions on the pres power to remove purely exec officers?
No - Congress can only attach restrictions on pres removal of quasi leg or quasi judicial officers
Pres foreign affair power
It is great and it is unenumerated.

1. An exclusively federal power over foreign affairs was implied in the constitution

2. pres holds the plenary and exclusive power in the field of foreign relations, a power which does not require an act from congress

3. congress has vested in pres all of its authority on this issue by exertion of legislative power

Pres War powers
1. repel sudden attacks - prize cases (power inferred from 2 old statutes by congress)
2. protect american citizens and interests - when americans are abroad and threatned pres may attack (American med students, American hostages)

3. Aiding national allies - not sure here if Pres can do this without Congress

4. preemptive strike - pres probably lacks power to do this against national enemies
Congress has three options in delegating the appointment of "lower federal offiders" whose tasks are executive in nature
1. the Pres alone
2. The courts of law; or
3. the heads of depts (ie cabinet members)

Congress cannot appoint anyone in the executive

Remember - Pres is only one with authority to appoint top-level officals (with senate approval)
Can the Pres refuse to authorize the use of funds appropriated by Congress?
No - there is a no impoundment rule. This applied when Congress has approved funds and directed the Pres to spend them accordingly.
Can the Pres require that all executive departments cut out 25% of the funding appropriated for them by Congress, unless there is specific leg there Congress required the appropriates funds be spent?
Yes, as long as the Pres only cuts funds that Congress didnt require be spent.
Can federal judges appointed by the Pres and approved by the Senate be fired by the President?
Federal judges have life tenure during good behavior. So, no.
May Congress remove a member of the executive branch?
No, only by impeachment. Congress cannot otherwise remove or appoint members of the executive.
May the Pres grant pardons in the are of impeachment?
No. The H of R has full power over impeachment.
Even if activity is local & not regarded as commerce, it may be reached by Congress if it exerts
“substantial economic effect on interstate commerce and this is irrespective of whether such effect is what might earlier have been defined as “direct or indirect”
Does the power to regulate interstate commerce also include power to regulate local incidents thereof, including local activities?
Yes - Heart of Atlanta case

In interpreting these cases, consider is the activity, in the aggregate, being regulated having a substantial effect on interstate commerce
-Are all these restaurants in total having this affect?

Shows that it was the economic effect of racial discrimination that gave Congress power to make this decision
-this is market effect same as Wickard: reduce supply, increase price
Three broad categories of activity which Congress may regulate under its commerce power:
(1) Congress may regulate the use of the channels of interstate commerce (roads, airplanes, etc.);

(2) Congress may regulate and protect the instrumentalities of interstate commerce even if the threat is only from intrastate activities (people and goods); and

(3) Congress may regulate those activities having a substantial relation to interstate commerce (affectation doctrine).
Preemption in Commerce Clause
If the state makes a ststute, and there is a competing federal statute...go into a preemption analysis.

1. Did Congress expressly authorize or prohibit state regulation - or does the constitution expressly bar state action?
If so, that authorization or prohibition controls. If not, go to question 2.

2. Is there a direct conflict b/t the federal and state regulation (e.g. joint compliance impossible)
If so, federal law automatically pre-empts. If no direct conflict - i.e. the statutes both cover the same subject matter - go to 3.

3. Was the federal law intended to occupy the entire field?
If so, the federal law preempts the state law. If not - the state law stands.