Con Law I

Front 1

Authority for Judicial Review (Marbury v. Madison)

Back 1

Create power for judicial review
-The people give the constitution power and the S. Ct. is the decider of what the law says

Front 2

Authority for Judicial Review (Martin v. Hunters Lessee and Cohens v. Virgina)

Back 2

S. Ct. has power to review both civil and criminal cases arising in state so long as the federal question is presented on appeal.

Front 3

Limits on Judicial Power

Back 3

1) Interpretive limits
2) Congressional limits
3) Justiciability limits

Front 4

Limits on Judicial Power (Interpretive limits)

Back 4

1)Originalism: look at original meaning and framers intent

2)non-originalism: meaning today is not the same as it was when it was raitified. Contemporary meaning

Front 5

Limit on judicial power (congressional limits)

Back 5

1) Internal limits: the text itself

2) external limits: limitations set in other provisions of the constitution

3) Structural limits (Separation of Powers)

Front 6

Limits on Judicial Power (Justiciability Limits)

Back 6

1) No Advisory Opinion
2) Standing: Constitutional and Prudential
3) Political Question Doctrine
4) Ripeness
5) Mootness

Front 7

Limits on Judicial Power (Justiciability Limits, No Advisory Opinion)

Back 7

2 requirements:
1) Actual Adverse Litigants
2) Substantial likelihood a favorable decision would bring about change
Hayburn case: congress cannot re-open already decided cases

Front 8

Limits on Judicial Power (Justiciability Limits, Constitutional Standing)

Back 8

3 requirements:
Injury in fact: must be particularized, imminent, actual
Causation: traceable, not too attenuated
Redressability: Favorable ruling will not redress plaintiff's injury

Front 9

Limits on Judicial Power (Justiciability Limits, Prudential Standing)

Back 9

-No 3rd Party Standing, except when close relationship or obstacle preventing original P from bringing suit)
-No Generalized Grievances: When an alleged injury is shared by all it lacks particularity.

Front 10

Limits on Judicial Power (Justiciability Limits, Political Question Doctrine)

Back 10

Raise questiosn about intent of the constitution and rebutting policies of SOP (Baker v. Carr factors)
*(1) a history of the issue's management by another governmental branch;
*(2) a lack of judicially manageable standards for resolving it;
(3) the impossibility of deciding the case without an initial policy determination calling for nonjudicial discretion; (4) the impossibility of resolving it without expressing lack of respect due other government branches;
(5) an unusual need for unquestioning adherence to a political decision already made; or
(6) the potential of embarrassment from a variety of announcements by different governmental departments

Front 11

Federal Legislative Power (Commerce Clause)

Back 11

Commerce Clause comes from Article 1 S 8 Cl. 3 and states "Congress has teh power to regulate commerce between teh nations among the states and indian tribes."

Front 12

Federal Legislative Power (Commerce Clause, Initial Era)

Back 12

1824-1890 Gibbons v. Ogden
Commerce is not limited to traffic but buying and selling interchange of goods

Front 13

Federal Legislative Power (Commerce Clause, 2nd Era)

Back 13

1890-1937 EC Night
Commerce is not manufacturing and production

Front 14

Federal Legislative Power (Commerce Clause, 3rd Era)

Back 14

1937-1995 NLRB
Commerce is all stages of commercial transaction

Wickard: Aggregate principle

Front 15

Federal Legislative Power (Commerce Clause, Modern Rule)

Back 15

Congress may regulate:
1) Channels of IC
2) Instrumentalities of IC
3) Economic Activiies that in aggregate have a substantial effect on IC

Front 16

Federal Legislative Power (10th Amendment Limits)

Back 16

The Tenth Amendment to the U.S. Constitution reserves those powers therein, not expressly delegated to the federal government or prohibited to the state, to the states or to the people.

Front 17

Federal Legislative Power (10th Amendment Limits, Federal laws applying to individual and states equally)

Back 17

Garcia v. San Antonio Metropolitan Transit Authority (Fair Labor Standards Act)
-Nothing to suggest these generally applicable rules like fair labor standard acts that there is nothing inherent in states make up to give it immunity from complying with federal labor standards just like a general employer would.

Front 18

Federal Legislative Power (10th Amendment Limits, Federal Laws Applying only to states)

Back 18

NY v. United States:Fed gov't cannot force state government to enact a particular legislation

Printz v. United States: Cannot force state to enforce federal regulatory programs

Reno v. Condon: Regulates states as owners of databases

Front 19

Federal Legislative Power (Taxing Power as a Regulatory Device)

Back 19

Tax: Generate Revenue and Regulate something

Penalty: Excessive or Extreme and the goal is punishment

Drexel Test:
1) Exceedingly burdensome?
2) Seek to punish?
3) Who is enforcing the statute?

Front 20

Federal Legislative Power (Taxing Power as a Regulatory Device, What can they tax?)

Back 20

Anything that is not "impermissible"
1) When punitive nature of the tax overstates the taxes purpose
2) Is activity being regulated one that should be left to the states?

Front 21

Federal Legislative Power (Spending Power as a Regulatory Device)

Back 21

Congressional Spending Ability
U.S. v. Butler: Congress can lay/collect taxes for the general welfare of the nation

Front 22

Federal Legislative Power (Spending Power as a Regulatory Device, Dole Factors + NFIB)

Back 22

South Dakota v. Dole Factors
1) Is expenditure for the general welfare?
2) Is the condition stated ambiguous?
3) Is the condition stated rationally related to federal interest or goal of the program?
4) Does it violate any other constitutional programs?
5) Is it a coercive condition? (NFIB)

Front 23

Limits on State and Regulatory Taxing Power (Preemption)

Back 23

Constitutional authority from Article VI supremacy clause providing the constitution and laws and treaties made pursuant to it are the supreme law of the land

Front 24

Limits on State and Regulatory Taxing Power (Preemption, Types)

Back 24

1) Express: Fed statute says it preempts state one
Lorillard Tobacco
2) Implied:
-Conflict: Physically Impossible (Florida Avocado)
-Obstacle: Impedes Fed Goal (PGE)
-Field: Fed Statute already addresses issue/in field (AZ v. United States)

Front 25

Limits on State and Regulatory Taxing Power (Dormant Commerce Clause)

Back 25

Inferred from Commerce Clause in Article 1 of the U.S. Constitution
-Commerce Clause expressly grants congress to regulate IC among the states
-Idea behind DCC is not that the grant of power implies negative commerce
-It is a restriction prohibiting states from passing legislation that improperly burdens or discriminates against IC

Front 26

Limits on State and Regulatory Taxing Power (Dormant Commerce Clause, Facially Discriminatory)

Back 26

Facially Discriminatory: Explicitly discriminates against out of staters

Carbone: Town cannot require wast haulers to pay to use a transfer station within the town when it burdens out of staters.

Front 27

Limits on State and Regulatory Taxing Power (Dormant Commerce Clause, Facially Neutral)

Back 27

1) Discriminatory Effect (Has a disparate impact on out of staters) Hunt v. Apple Advertising: no health benefit to restricting other states apples bc they all came in large boxes and they could not inspect them all each time.

Discriminatory Purpose: (desire to help in staters) West Lynn Creamery: taxed milk and gave the tax income to instate dairy farmers. Out of state dairy farmers were discriminated against bc they did not receive the additional income

Front 28

Limits on State and Regulatory Taxing Power (Dormant Commerce Clause, If a law is deemed discriminatory?)

Back 28

1) Is there a legitimate state purpose for enacting the law? (Economic Protectionism)
2) Less discriminatory alternatives available?

Dean Milk: Practical effect of 5 mile is discriminatory, not essential to protect local health interests and less discriminatory alternatives were available

Front 29

Limits on State and Regulatory Taxing Power (Dormant Commerce Clause, If a law is deemed non-discriminatory?)

Back 29

Law is presumed valid and challenger bears the burden of showing on IC an excessive to states interest

Loren v. Pike
1) Does non-discriminatory law place undue burden on free flow of IC?
2) Is state interest more valuable to IC?

Front 30

Limits on State and Regulatory Taxing Power (Dormant Commerce Clause, Exceptions)

Back 30

1) Congressional Approval: congress has the authority to overrule SC decision bc Dcc comes from CC and they regulate it.
2) Market Participant: government is acting as a market participant and can favor its own citizens as other businesses could

Front 31

Limits on State and Regulatory Taxing Power (Privileges and Immunities Clause)

Back 31

1) “The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states”
2) Limits the ability of a state to discriminate against out-of-staters with regard to fundamental rights or ability to earn
3) P&I only applies to discriminatory laws.
4) DCC applies to corps and aliens, but P&I only to citizens

Front 32

Limits on State and Regulatory Taxing Power (Privileges and Immunities Clause Analysis)

Back 32

1) has the state discriminated against out of staters with regard to “privileges and immunities” that it accords its own citizens? (generally lack of gov’t protection, life, liberty, property and pursuit of happiness)
2)If so, does the state have sufficient justification?
Can be applied to constitutional rights (rare) or to important economic activities (common)

Front 33

Federal Executive Power (Inherent Presidential Power)

Back 33

Must have some congressional authority but has some inherent authority to act on his own

Front 34

Federal Executive Power (Authority of Congress to Increase Executive Power)

Back 34

Youngstown Sheet and Tube Co. v. Sawyer
1) Justice Jackson identifies three levels of Executive Action
a) Actions in accord with “express or implied authorization of Congress.”
b) silence/absence of congressional grant or denial of authority, “zone of twilight”
c) presidential actions that are “incompatible with the expresses or implied will of Congress.”
2) Justice Frankfurter, concurring:
look at the “history of practice” where the executive has been doing this multiple times with the silent acceptance/allowance of Congress.
3)Justice Black, majority: power is either statutory or congressional. formalistic textual approach
absent either of these, the president does not have power to act.

Front 35

Federal Executive Power (Scope of Inherent Power: The issue of Executive Privilege)

Back 35

United States v. Nixon (President)
Executive privilege is allowed under a claim of need to protect military, diplomatic or sensitive national security secrets, BUT it does not exist for unqualified residential privilege.

Front 36

Federal Executive Power (Checking Administrative Power, Appointment Power)

Back 36

Morrison v. Olson:
Principal Officer: needs both congressional and presidential approval (judge, senator, chief of staff, etc.)
Inferior Officer: limited scope of duties, limited time, must report to another, strict presidential power

Front 37

Federal Executive Power (Checking Administrative Power, Appointment Power)

Back 37

Generally, the President can remove executive officials; Congress cannot (except by impeachment). Separation of powers; Congress cannot infringe on the executive, however they can limit his removal power by statute if the executive position is one that requires independence and a quasi judicial or legislative function. Also, to limit executive’s removal powers to “good cause” is acceptable.

Front 38

Federal Executive Power (Treaties and Executive Agreements)

Back 38

Exec. Orders have the same effect as treaties and have never been successfully challenged.
Self Executing and non self executing treaties – understand the difference, also differences between treaties, statutes and agreements; enumerated constitutional procedure v. not mentioned. (Dames & Moore v. Regan)

Front 39

Federal Executive Power (War Powers)

Back 39

Problems in determining the outcome of the inherent conflict between Congress and President – absence of case law and court’s frequent dismissal as nonjusticiable (lack of standing or political question).
Questions are: what is “war” and how may congress limit the president’s warlike actions?

Front 40

Federal Executive Power (Presidential Power and the War on Terrorism)

Back 40

Hamdi: Detainees have a right to due process; definitely if citizens

Boumediene: May have due process rights but have constitutional privilege to habeus corpus if held in Guantanamo Bay

Front 41

Federal Executive Power (Military Tribunals)

Back 41

Ex Parte Quirin: Unlawful combatants are *** subject to capture and detention, but in addition they are subject to trial and punishment by military tribunal for acts which render their belligerency unlawful.

Front 42

Federal Executive Power (Checks on the President, Suing and Prosecuting the President)

Back 42

Nixon v. Fitzgerald
A former President of the United States is entitled to absolute immunity from damages liability predicated on his official acts

Clinton v. Jones
A sitting President of the United States is not entitled to immunity from damages liability predicated upon his unofficial acts before taking office.

Front 43

Protection of Civil Rights and Liberties (Rejection of Application to the States Before the Civil War)

Back 43

Barron v. Baltimore
The 5th Amendment Takings Clause does not apply to city government

Front 44

Protection of Civil Rights and Liberties (Privileges OR Immunities Clause)

Back 44

Slaughterhouse Cases:
The Thirteenth and Fourteenth Amendments of the United States Constitution apply only to former slaves. The Fourteenth Amendment protects the privileges and immunities of national, not state citizenship

Saenz v. Roe:
Under the Privileges and Immunities Clause, a State must provide the same benefits to new residents as it does to other residents

Front 45

Bill of Rights/Constitution to Private Conduct (State Action Doctrine)

Back 45

States Action: government actors are bound by constitution, but not private citizens or entities. P must be able to argue that the opposing private party is acting in the stead of a government agency and that action is unconstitutional
3 Factors:
Reliance: to what extent does the private actor rely on Gov’t assistance and beneits
Function: whether the actor is performing a traditional gov’t function that been engaged in exclusively by the govt.
Aggravation: whether the injury that P complains of is aggravated in some unique way by the govt’
Court looks at the totality of the circumstances.

Front 46

Bill of Rights/Constitution to Private Conduct (Exceptions to State Action Doctrine, Public Function)

Back 46

Marsh v. Alabama (Broad): A private entity that acts like a governmental body and performs a public function is subject to the United States Constitution

Jackson v. Metro Edison Co (Narrow): The actions of a private entity are not considered state action unless there is a sufficiently close nexus between the State and the challenged action

Front 47

Bill of Rights/Constitution to Private Conduct (Exceptions to State Action Doctrine, Entanglement Exception)

Back 47

Shelley v. Kraemer: Private parties may voluntarily abide by the terms of a restrictive covenant but may not seek judicial enforcement of such a covenant because enforcement by the courts would constitute state action contravening the Equal Protection Clause of the 14th Amendment

Front 48

Economic Liberties (Substantive Due Process of Lochner)

Back 48

Lochner v. New York: Legislation enacted using a state’s police powers that interferes with an individual’s right to contract must directly relate to the goal of protecting public health or safety and must have an appropriate and legitimate end

Front 49

Economic Liberties (Economic Substantive Due Process Since 1937)

Back 49

West Coast Hotel v. Parrish: Regulation that is reasonable in relation to its subject and is adopted in the interests of the community satisfies the due process clause of the 1st Amendment

U.S. v. Carolene: When reviewing legislation, the existence of facts supporting the legislation is to be presumed and such legislation shall not be pronounced unconstitutional unless it is such character as to preclude the assumption that it rests upon some rational basis

Front 50

Fundamental Rights Under Due Process and Equal Protection (Framework for analysis)

Back 50

1) Identify the interest
2) Is it a fundamental right?
3) Has the right been infringed?
4) Evaluate States interest
5) Evaluate the means the state uses and its relationship to accomplishing the ends

Front 51

Fundamental Rights Under Due Process and Equal Protection (The Right to Marry)

Back 51

Zablocki v. Redhail: state may not deny a marriage license to someone for not paying child support

Front 52

Fundamental Rights Under Due Process and Equal Protection (Right to Custody of One's Children)

Back 52

Michael H. v. Gerald D.:upholds state presumption of legitimate child because SDP rights follow tradition

Stanley v. Illinois:The states interest in fit parents is not sufficiently justified when the state could take a child away from a fit parent.

Front 53

Fundamental Rights Under Due Process and Equal Protection (Right to Keep the family together)

Back 53

Moore v. City of East Cleveland: restricting family living arrangments gets strict scrutiny

Front 54

Constitutional Protection for Reproductive Autonomy (Right to Procreate)

Back 54

Analyze w/ equal protection; Imposition of sterilization is not appropriate for felon whose crimes are not related to penalty. Recognize right to reproduction as a fundamental right.

Front 55

Constitutional Protection for Reproductive Autonomy (Right to Purchase and Use Contraceptives)

Back 55

Griswold v. Connecticut: Within the realm of married couple, restrictions on contraceptive use is an invasion of privacy. Court finds privacy implicit in the 3rd, 4th, 5th and 9th Amd. (the penumbra of rights/zone of privacy) Finds the state law too broad to accomplish the ends of the state when the imposition is so intrusive to privacy.

Einstadt v. Baird: Looks at prevention of contraception and finds that means is not sufficiently related to the purpose of allowing unwanted pregnancies. (recognizes as a fundamental right a person’s decision to have or not have a child.)

Front 56

Constitutional Protection for Reproductive Autonomy (Right to Abortion Roe v. Wade)

Back 56

Roe v. Wade: right to terminate pregnancy before viability is fundamental under privacy

Instituted the trimester framework
Blackmun Majority- (adopted Harlans Conrnc from Griswold) -Right to privacy broad enough to encompass abortion:
-trimester framwork
1. 1st- no state infringement
2. 2nd can regulate in interest of protecting mother
3. state can regulate in interest of protecting potential life

Front 57

Constitutional Protection for Reproductive Autonomy (Right to Abortion Planned Parenthood v. Casey)

Back 57

Abandons trimester framework and establishes Undue Burden Test
1) woman's right to abort before viability without undue state interference
2) states power to restrict abortions after viability as long as there are exceptions to protect woman's life or health
3) states legitimate interest in protecting health of the woman and life of fetus.

Front 58

Constitutional Protection for Reproductive Autonomy (Right to Abortion Planned Gonzales v. Carhart)

Back 58

SC ruling upholding the Partial-Birth Abortion Ban Act of 2003 finding it not to impose an "undue burden" on the due process right of women to obtain an abortion.

Front 59

Constitutional Protection for Sexual Orientation and Activity (Lawrence v. Texas)

Back 59

(Kennedy) Conviction of gay man in TX for engaging in “deviant sexual intercourse” overturned. Fundamental principles of liberty (not the Constitution) protect the individual from state intrusion into the home. **Embraces Blackman’s dissent in Bowers
i. Liberty should be defined more broadly (opinion talks about liberty not privacy)
ii. Unclear reasoning: Majority ruled that either (1) there is a fundamental right involved and strict scrutiny applies or (2) there is no fundamental right conclusion and instead the law is so irrational that it doesn’t even pass rational basis review (simple morality insufficient as gov interest)
iii. History most sodemy laws not directed at homo’s
iv. Reliance says no one has relied on laws
1. Dissent: says states relied on laws:
2. Know that there is a difference between states relying v. persons relying.
v. Don’t know what this case is based on: