Constitutional Law

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Principle

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Congressmust have express or implied power to act. § Article 1 § 8: grants congress enumerated legislative powers,in general, congress may legislate under an express provision of theconstitution. o Most of congress’ legislative powerhas ben derived from the Commerce Clause.

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Analysis

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1. Does congress have authority? ____

2. If so, does the act violate anotherpart of the constitution?

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COMMERCECLAUSE

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ArticleI § 8: “Congressshall have the power.. to regulate commerce among the several states. “OverviewUltimately, the court will defer to congress’ decision about anactivity substantially affected interstatecommerce if the activity is economic, so long as there is arational basis under Wickard.Even if one would say this is not economic and therefore wouldbe inappropriate to apply the substantialaffects test it may still be regulatedby applying the test in Raich, which allows the regulation of activitieswhichare part of an overall economic class in broad regulation.

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COMMERCECLAUSE (cont.)

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ArticleI § 8 grants congress the power to regulate interstate commerce among the severalstates. Specifically, congress may pass legislation that pass lawsregulate (1) channels of interstate commerce, (2) instruments and goods involved in or that use interstate commerce;and (2) activities that have asubstantial effect on interstate commerce, including some intrastateactivities.

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Channels

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1. connectionsbetween statesa. R: Channels of interstate commerceare the physical connections between states used for the purposes of interstatecommerce.b. Includes: i. Highways, rivers, railways

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Instrumentalities

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: goodsor people that move through statesa. R:The type of goods and people involved in, and that have actually passed throughinterstate interstate commerce channels. b. Includes: i. Trucks, boats ii. Pieces of properties that havepassed from point A to B

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Activities Substantially Impact IntCommerce

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Thepower of congress to regulate activities extends only to those that substantially affect interstatecommerce. The court will defer to congress in regulating Economic activity, but not for non-economic activity presumedto be non-commercial.

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MORRISONTest

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i. ____ Is Intrastate Activity Economic in Nature? 1. Yes: deference to congress for regulating, but not dispositive a. Commercial Activity, exchange of goods or services for money 2. No:presumptively unconstitutional, only upheld if factual link a. Non-commercial,not produced/used for sale _____ ii. Jurisdictional Element In statute? 1. Yes: requiring the regulated activity to affect interstate commerce favors regulate, but not definitive a. Language that connects regulated activity to interstate commerce 2. No:(Morrrison) _____ iii. Legislative Findings Support Regulation 1. Yes: Help show factual link where not obvious, not sufficient alone a. Congress Reasonably finds substantial impact on IC _____ iv. Link To interstate commerce too Attenuated? 1. Yes:shows substantial impact more likelya. too many steps to bring gap between activity and int. comm. 2. No: cannot regulate a. Implicates Federalist considerations – activities regulated by states

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United States v. Morrison

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Unconstitutional to regulate Domestic violence, does not affect interstate commerce _________ i. Congress argues that GMV deters victims from traveling interstate, engaging in activities and increases medicalcosts. Hours of work missed due to domestic violence

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Economic Activities

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a. In General, economic activity can be regulated as long affects can be aggregated in some way to impact IC. (Wickard) a. R: They are presumed to impact Int. commerce in the aggregate, as long as the relationship is not too attenuated (Morrison) i. R: economic activities may be regulated if the aggregateeffect would substantially impact interstate commerce (Wickard)

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Non-economic activity

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a. Non-economic activity generally must directly impact interstate commerce or be part of abroad regulation program. (generally NOT aggregated) i. R: One or more specific instances must have an impact on Int.Comm; otherwise link between activity and impact is overly attenuated (lopez); 1. Lopez – School Gun Safety Act unconstitutional regulation of local state activity. a. Too many steps to bridge gaps between local activity and Int.Com. b. Slippery slope to regulating non-economic, local activity with traditional state powers. ii. R: Non-commercial local activities maybe considered in the aggregate IF fall within a larger economic regulatory scheme (Raich) 1. Allows regulation of Individual instances of personal non-economic activity if it would otherwise would impede regulatory efforts; (Raich) a. Gonzales v. Raich --> Personal cultivation + medical use of marijuana may be regulated as part of broad regulation of interstate pot markets i. CSA law regulated supply and demand of illegal markets, Home-grown personal pot can affect this market,. ii. H:Congress may criminalize -non-commercial personal cultivation for medial use , even if state law permits.

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If Specific individual instance or personal activity

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- Is the entire law being challenged or an individual application of it? _____________________*Q:Regulation targets activity of single individuals? · Non-Economic --> (Lopez/Morrison) o Cantregulate non-economic activities unless has actually touched interstate commerce. · Economic --> (Katzenbach) o Considered in the aggregate, is there a substantial effect on interstate commerce? **Q:Law regulating entire industry? Individual instance of activity part within umbrella?· **Q:Is regulation a necessary part of scheme? Would non-regulation frustrate regulatory scheme’s objectives? o If individual and personal instance can impede broad regulatory objectives --> can regulate (Raich) **Economic or non-economic, compliance w/ state law or not **Aggregate effect of personal activity may effect scheme

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EXAMPLES

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- CAN REGULATE: o Personal medical pot use (aggregate test OK) o Individual health care insurance - CANT REGULATE - Possession Of gun near school o Domestic Violence

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Is federal law valid?

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If yes, use Raich, Wickard, Darby

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Aggregation

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Leaving a home grown or local non-economic segment of the market unregulated would affect congress’ ability to regulate the national commerce market generally (Raich, Wickard)

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Broad Regulation of Commerce (Ominous) v. Narrow As Applied challenge

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Non-economic things may be aggregated if it is reasonably adapted to a larger economic activity, under Raich Rational basis; significant connection. Raich.

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Intrastate Activity

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Intrastate activity that substantially affects interstate commerce is valid(Darby and WIckard)

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Historical Cases

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Can bringin history for broad scope of Commerce Power. (Darby)

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Congressional Findings

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demonstrate substantial effect on interstate commerce, which helps. XXXON LAW ISSUES OUTLINE 9

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Indirect

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Look ataffects on commerce not the actual harm itself, rejects direct test and movestowardsubstantialaffects test (NLRB)

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Rational Basis

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(civil rights cases) As long as rational basis and the means were reasonable and appropriate.(Even if little far fetched and wrong) (Breyer Dissent in Morrison more deferential).CriminalLaw Has economic effect (Perez loanshark)

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If Federal Law is Invalid

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use Lopez, Morrison

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Non-Economic

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Can’t..aggregate non-economic [unlike WIckard] (Morrison)

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Narrow Bill

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(DistinguishRaich)

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No Jurisdictional Element

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limits congress reach and not too broad (Lopez)

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Congressionalfindings

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(onlyhelpful not dispositive)

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Attenuation

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Too many steps are required to make the leap from regulating local activity to the effect of interstate commerce. On that theory congress could regulate all traditional state activities (marriage).“Court’s definition of economic activity is breath taking and threatens to sweep all of productive human activity into federal regulatory reach.” (O’Connor in Raich). Compare togood cases. Majority of Lopez.

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Applied Challenge

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dissent in Raich

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TraditionalPolice Power

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This is anarea in which the state has traditionally regulated (education,crime,marriage, zoning). Congressional regulation in this area raises a politicalaccountabilityproblem,as expressed by Justice Kennedy in (Lopez)

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Labs

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The states are laboratories of experimentation, as suggested by Justice O’Connor (Raich).Congressional regulation in this area trenches on state sovereignty and raises concerns of federalism

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Necessary and Proper Clause:

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Article I § 8: Congress has the power to “ make laws which shall be necessary and proper for carrying into execution” their constitutionally enumerated powers.

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Prewrite

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The necessary and proper clause of Article I § 8 grants congress the flexibility to create laws or otherwise act in areas where the constitution provides no explicit authority to do so. Legslative acts must be (1) conducive or useful for beneficial exercise of an enumerated power (2) with rationally related and reasonably related to the execution of such a power, , as well as (3) non-coercive.

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Useful or Coducive

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A law is useful or conducive if it is rationally related and reasonably adapted to the beneficial exercise of an enumerated power. (Mccholloch v. Maryland) Comstock N&P Test: More likely N&P if statute is: a. A modest addition to existing statutes (Comstock) b. Extends Public Welfare or safety (Dole) c. Accounts for state’s interest and Autonomy (Comstock) d. Is narrowly tailored to address a legitimate federal interest

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Rationally related/narrowly tailored

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***a. Constitutional to tax citizens who don’t obtain health insurance under the Tax and Spending clause (Sebellius) – INDIVIDUAL MANDATE **i. National Fed. Of Independent. Business v. Sebellius Constitutional to require citizens to obtain healthcare or pay a tax penalty under the Taxing and Spending Clause *1. Fine imposed by IRS, collected by treasury, used for government revenue ***b. Constitutional to ALLOW states the power to keep prisoners beyond their prison sentence if determined to be dangerous to society (Comstock) **1. US v. Comstock --> Constitutional, Child protection Safety Act that allows state gov to determine if prisoners are too dangerous for release after sentence *a. DOES NOT limit state power or choice – give them the ability to act *b. Part of established statutory prison framework *c. For the general public welfare/safety ***ii. NOT COERCIVE to use an enumerated power to induce state cooperation in areas where Congress doesn’t explicit power ot act (Dole)

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TAXING AND SPENDING CLAUSE

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Article I § 8: “congress shall have the power to lay and collect taxes, duties, imposts and excises, to be the debts and provide for the common defense and general welfare of the US, but all duties… shall be uniform throughout the U.S.”

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Taxing Power

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Generally, a tax can be imposed if (1) intending to raise government revenue or (2) where revenue collection occurs is imposed for regulatory purposes and is not punitive. However, Congress may not use its taxing powers to circumvent Commerce Clause limitations OR as a penalty for non-compliance areas where Congress would otherwise not tax. (Sebellius)

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Taxing Power II

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1. Substance and Application: Is it a tax? a. Does it look like a tax? i. IRS collection ii. Tied to income b. Produce government revenue? i. Used by treasury c. Is it overly excessive in order to compel? d. Structured like a penalty? i. Scienter requirement 2. Limitations:

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Spending Power:

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X Statute is based on Congress’s taxing and spending powers under Article I § 8..The court has provided an expansive interpretation of Congress’s spending powers, giving wide deference to Congress in determining the “general welfare” to be promoted via spending. Congress may utilize its spending power to induce, but not coerce, state cooperation in places where it cannot directly regulate under the Commerce Clause. Congress may utilize funding conditions to do this, but conditional funding that is overly coercive or compulsory risks runningafoul of the 10th amendment. Specifically, Congress may use its tax and spending power to encourage state action where (1) it promotes the general welfare (2) requirements on states are unambiguous (3) any condition is non-coercive and (4) the law doesn’t violate the constitution.

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Limits on Spending Power

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R: Can Implement conditional spending and withhold state funds to regulate other areas where (Dole) ***1. Promotion of Common welfare **a. Congress has been given wide deference in determining the general welfare (Butler) **b. Rational Relationship between common welfare and spending ***2. Constitutional **a. Must abide by constitutional limitations **b. Cannot require states to act outside ***3. Related to federal interest **a. Reasonable relationship between conditions on grant and federal interest in program *i. Unlikely to overrule here, deferential standard ***4. Unambiguous Requirements *a. Clear statement rule *b. States must be able to exercise there choice with full knowledge of implementation

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FACTORS: COERCION

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c. *Sebellius Conditions: i. Significant change to pre-existing program ii. State reliance on settled expectation iii. Overall AMOUNT the states would lose 1. Cannot withhold such a large amount that forces states to act 2. Encourage turns into coercion --> 10% state total funds

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FACTORS: COERCION - Examples:

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o Unconstitutional ***Withholding a large portion (10%) of funds depended on by state is coercive (Sebellius)• National Fed. Of Independent. Business v. Sebellius- Unconstitutional where congress withdrew Medicaid funding under the spending clause unless states adhered to Act’s expansive Medicaid program requirements --> o Cannot threaten to withhold substantial funding states depend on(10%)o States had no real choice, “gun to head” --> Requiring farmers to enter production contract in order to receive subsidies they depend on to survive (cant buy compliance)• US. v. Butler – gave subsidies only to farmers who restricted production and entered in contract w/ gov. Farmers who didn’t would be financially ruined. o Constitutional ***Federal law requiring drinking age of 21 to receive 5% highway funds (dole• South Dakota v. Dole - Mild encouragement versus coercion general welfareo condition imposed directly related to the purpose of federal highway funds – safe travely. ***Requiring tax for those who don’t sign up for health insurance (Sebellius)

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EXAM PREP

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***Law involves tax, subsidy, rebate***Medicare, unemployment, crime control, highway constructure***Using spending or tax to encourage state activity in common welfare***Withholding money usually granted

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EXAM PREP - Constitutional

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***Argue 4 elements – dole test ***Rational relationship, findings – o The federal interest in the is X , and it is reasonably related to the federal interest in Y, based on the findings the record show this. Like in Dole, where highway funds used for highway safety were withheld, and reasonably related, to encouraging highway safety by preventing premature drunk driving and underage access to booze in another state. ***Non-coercive, just an incentive (distinguish sebellius)***Deferential standard – wide deference to Congress determining common welfare***No external limits – generally, no external limits, have never applied 10th amendment in the context of spending like in CC cases.

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EXAM PREP - Unconstituional

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***Distinguish Dole – attack all four elements **Coercion – has high percentage of state funds, choice is clearly compulsory/10th amendment concerns

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10th AMENDMENT & ANTI-COMMANDEERING

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NOTE: Anti-commandeering applies only where congress is exercising CC powers. Prewrite: The federal statute calls to question the 10th amendment’s anti-commandeering principle. Congress may violate the 10th amendment where it enacts a law that displaces state’s freedoms to create and structure internal operations in areas traditionally controlled by states rather than the federal government. The 10th amendment serves to protect the infringement of the core principles of state sovereignty that were in tact when states entered the constitution. Specifically, it acts as a constitutional restraint on commerce clause powers where used to commandeer a state’s legislative process by requiring state implementation of fed. regulation (US v. Ny) or commandeer state officials by requiring regulation of private behavior of individual citizens. (Printz). Specifically, the 10th amendment is violated when congress utilizes its commerce clause power to impose an affirmative duty upon states (NY). However, it is not violated where congress merely prohibits a harmful activity (Reno) . Congress may, however, encourage state activity by enacting laws pursuant to enumerated powers, such as spending (Dole) or regulate states in areas where federal preemption applies.

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10th amendment

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The powers not delegated to the US by the constitution, nor prohibited by it to the states, are reserved to the States respectively, or to the people.”***The court has been interpreted the tenth amendment as a federalism-based limitation on Congressional power. ***10th amendment evidentiary function of state sovereignty, embodies idea that states were sovereign upon entering the union***One sovereign cannot tell another sovereign how to act or regulate

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Anti-commandeering

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The supreme court has held that the 10th amendment prohibits Congress from adopting a statute that “commandeers” state legislative powers to dictate local policy. Congress may run afoul of the 10th amendment where it attempts to regulate states as states or requires state officials to regulate its own citizens. This doctrine restricts Congress from pursuing federal objectives by imposing, targeted, affirmative duties such as the title provisions did in New York , or using its power to coerce state action such as Congress did in Sebellius. Further, as in printz, a federal regulation cannot commandeers local state officials by requiring background checks be performed on citizens buying handguns.

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Clear statement rule

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Federal law used in a way that regulates activities traditionally under the power of the state must contain a CLEAR STATEMENT expressing congressional intent to regulate such a local matter. Cannot regulate traditional state powers without intruding on the principles of state sovereignty.

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Reconstruction amendment enforcement clause exception ?

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when acting pursuant to the 14th amendment, congress can impose disparate geographic regulations where it has a reasonable basis to do so - rooted in contemporary conditions that call for it.

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Examples: UNCONSTITUTIONAL COMMANDEERING**needs work

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Unconstitutional to regulate states as states with a federal law that…,. ***Requires State Regulations for local activity (New York) ***Fed. Statute Enforcing Treaty Cannot Be used to regulate local matters Enforcement Enforcing a Treaty Regulate Local Matter by Enforcement Power to Regulate Local Activities NOCLEAR STATEMENT o Federal Law cannot regulate local matters criminalize loc violates 10th amendment impermissible regulates local matters regulate localmatters by criminalizing acts to enforce a treaty local acts to enforce atreaty enforce local matters by criminalizing intrudes on State regulation Cannot require states to adopt anEPA regulation to take title of waste (NY v. US)§ U.S. V. New York:Unconstitutional Radioactive Waste disposal law required states to arrange fordisposal or take possession/laibility of radioactive waste · Singlesout states as states, not a law of general application· Forces/coercesstates by requiring compliance or taking on liability ***Cannot Compel State Action viaCoercion (Butler)o Sebellius – withdrawing 10% funding crossesline from encouragement to coerciono Butler – requiring contract and reduction of crops to gain subsidies vImposea Duty on Local Officials / Regulate Private Citizens (Printz)o Printz v. U.S. – unconstitutional to require chieflaw enforcement offer to perform a background check for hand guns; cannotCOMMANDEER states to regulate citizens § Congresscan regulate commerce§ but cannot single out state officials andrequire them to perform certain tasks§ Requiringstates to regulate private individual behavior is commandeeringvFederallaw cannot intrude Traditional State Sovereignty unless CLEAR statement to dosoo CATEGORIES:cannot impede onlocal:§ Crime,education, marriage, zoning o CLEARSTATEMENT RULE: If no clear, congressional statement of intentto do so, it is Unconstitutional to apply an ambiguous statute in a way thatintrudes on traditional principles of state sovereignty§ Bond v. U.S. – Chmical Weapons convention makingfederal crime to possess/use chemical weapon cannot be applied as a local crimeunless clear congressional intent ****also standing issue (see outline)· Congressmust intend local application, · broadinterpretation of regulatory language does not sufficie· ifstatute is unclear, but can be read in a way that would intrude on traditionalstate sovereignty, it is unconstitutional *§ Gregory v. Ashcroft– Mandatory retirement provision for state employees cannot be read to apply tohigh ranking officials such as judgment · Congresswas not clear that the law applied to policy makers / judgements o BLURPOLITICAL ACCOUNTABILITY§ Iffederal enactment – do citiznes know who to vote out

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Examples: UNCONSTITUTIONAL COMMANDEERING

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1) Incentives Or Encouragement as Indirect Regulation a) Can indirectly regulate an activity by using enumerated power to induce or encourage cooperation in another field 2) Preemption of state law inconsistent with federal interests 3) Regulates states generally, Not use states to regulate private behavior a) Prohibits action rather than requires it b) Reno v. Conlon– constitutional law that prevented DMV from disclosing information about citizens i) 1.Doesn’t require states to regulate their own citizens ii) 2.Doesn’t force enactment of regulation by state leg. iii) 3. Doesn’t require state official to implement or enforce federal mandate or law regulating private individuals (1) DISTINGUISH from Printz – Prohibition, regulate inactivity versus requiring action from states; regulates states as commercial actors rather than use state to regulate private behavior

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Q: Does the statuteregulate STATES AS STATES ? Use state officials to regulate private citizens within them?

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General Regulation of states as commercial actors VERSUS using states to regulate private behavior of citizens? o IF SO --> alternative? Can congress use spending power to encourage activity?

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EXAM TRIGGER - Commerce clause 10th amendmentviolation

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***Tradition Police powers --> fire, police, sanitation ,education, marriage, zoning, public health, parks rec ***Regulating Private Citizens o Regulating States as states or using states to regulate private behavior ***Affirmative Duty Requirement (NY and Printz) o “You must” --> anticommandeering o “You May not” --> prohibition, congress can do this (Reno) ***Coercion or Threat that Forcesstates to choose o Does the state actually have a choice? (Obamacare) o State must choose between two bad options (Sebelliusand NY)

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RECONSTRUCTION AMENDMENTS: ENFORCEMENT CLAUSES

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Reconstruction Amendments: The reconstruction amendments contain provisions that empower congress to enact civil rights legislation. These amendments were intended to be limitations on the power of states and enlargement of congressional power. Where as under Article I, congress cannot commandeer states or abrogate state sovereign immunity, these are permissible in certain circumstances under the enforcement power of the reconstruction amendments.

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Thirteenth Amendment

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Prohibits slavery and involuntary servitude, except as punishment for a crime. § 2 provides that “Congress shall have power to enforce this article by appropriate legislation.” This amendment has been interpreted as applying to individual actors, allowing prohibition of privatediscrimination.

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TheFourteenth Amendment

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Providesthat all persons born or naturalized in the US are citizens and that no statecan abridge the privileges or immunities of such citizens, nor many statesdeprive any person of life, liberty, or property without due process of law ordeny any person equal protection of the laws. § 5 gives congress the power toenforce, by appropriate legislation, the provisions of this amendment.a. -Can override equal sovereignty -Can abrogate sovereign immunity

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TheFifteenth Amendment

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vTheright of citizens of the United States to vote shall not be denied or abridgedby the United States or by any State on accountof race, color, or previous condition of servitude.” Like other Reconstructionamendments, Congressional enforcement.***Analysis:Not a broad guarantee of right to vote. States still determine eligibility. Butcannot deny rights based on race, color, or former slave status.

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CONGRESS’sEnforcement Power: 13th AmendmentEnforcement Power (§1981,82)

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The 13thamendment attempts to eradicate the badges and incidents of slavery. The courthas interpreted § 2 enforcement powers as a grant Congressional power toregulate private individual conduct. Specifically, congress may prohibitprivate racial didscrimnation as part of its power to eliminate such “badgesand incidents of slavery.” Contrast to the civil rights cases. ***§1982 – all citizens “have the sameright, in every state and territory, as enjoyed by white citizens… to inherent,purchase, lease, sell, hold, and convey… property”o §1982 applies to prohibit private discrimination and Congress has the power toadopt laws to that endo Congresshas broad legislative authority under the 13th amendment ***§1981 right to “enforce contracts, to sue, beparties, give evidence, and to the full and equal benefit of all laws andproceedings for the security of persons and properties as is enjoyed by whitepeople”o 1981applies to prohibit discrimination in private contracting and Congress can legislate within the scope of§ 2 thirteenth amendment powers

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14th AmendmentEnforcement Power (§ 5)

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Section 5 of the 14th amendment provides congresswith an increasingly important alternative source of power to regulate andpolice state conduct. It has beeninterpreted as a positive grant of legislative power authorizing Congress tosecure 14th amendment protections. Specifically, whereas the 13thamendment applies to private conduct, Morrisonheld that the 14th amendment applies to state conduct. AlthoughCongress may not use § 5 to expand the scope of constitutional protections, itmay pass “appropriate legislation”such that (1) prevents or remedies the violation of a constitutionally recognized right, (2) is “proportional and congruent”to such a constitutional violation, and (3) does not violate equal state sovereignty, unless required by exceptionalcircumstances. ***Note: When congress is protectingfundamental rights or those of race/gender, requires lessevidence/documentation showing reason behind legislation.

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Violation of a ConstitutionallyRecognized right (Flores)

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a) R: § 5 enforcement powers are limited topreventing or remedying violations of constitutional substantive rightsrecognized by the Supreme Court/explicitly in the constitution --> i) CANNOTexpand the scope of constitutional rights/protectionsii) “Cannot enforce a right by changingwhat the right is” (1) City of Beorne v. Flores– unconstitutionalregulation that prohibited laws substantially burdening exercise of religionunless showed compelling interest/lease restrictive(a) This legislation alteredthe meaning of the free exercise clause --> not enforcement (b) Power to ENFORCE, not determinewhat constitutes a violation

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Congruent and Proportional (Flores)

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a) R: § 5 legislation must be congruentand proportional to the constitutional violation , a means that is narrowlytailored to the ends of preventing harm ***i) WhenCongress purports to use its remedial enforcement powers to prevent aconstitutional violation under the 14th amendment, the means ofremedying must be congruent and proportionalto the ends of preventing the violation. ***ii) Unlesslaw is protecting an explicit 14th amendment right expressed in § 1 ***iii) Congress must document findings toshow that legislation is appropriate§ City of Beorne v. Flores – Unconstitutional, congress using 14th amendmentenforcement powers to regulate 1st amendment voting conduct underthe RFRA. · TheRFRA is not proportional in providing a remedy to the constitutionalviolation because it has sweeping coverage over every level of government andstate officials.· Congresscannot enforce the 14th amendment via legislations that expands orcontracts the scope of constitutional limits

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Equal Sovereignty Principle (Shelby County)

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--> R: A law that does not treat statesuniformly requires showing that the statute’s disparate geographic legislation, is sufficiently related to the problem it targets. (1) Congress generally cannot regulatespecific states while leaving others open to pass legislation withoutinterference. ii) Imposing current burdens must bejustified by current needs iii) Exceptionalconditions (that used to exist) may justify exceptionallegislation(1) only the 14th amendmentallows departure from principle of equal state sovereigntyb) IFCANT SHOW THIS --> risks undermining the principle ofequal sovereignty amongst states inherent to constitutional federalism. (Shelby County)2) Can“commandeer” under the 14th amendment ***Example: o Shelby County, Alabama v. Holder – VRA §4(b) unconstitutionally intrudes on equal statesovereignty where § 5 disparate geographic coverage is not justified by currentneeds **Exceptionalconditions at issue during enactment no longer exist **Requiredonly some states to get preclearance before passing voter legislation **Requirements/burdensnot substantially related to or justified by modern discrimination, even thoughstill exists,

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11th Amendment and StateSovereign Immunity

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The 11th amendment represents thebroad federalist principle of state sovereign immunity embedded in theconstitution and in tact when states entered the union. The court have shapedan expansive interpretation of state sovereign immunity by requiring a consentor express congressional authority to bring suit against states. Further,Congress’ abrogation power has been limited to legislation that is “congruentand proportional” to the constitutional harm and is under the § 5 of the 14th amendment. Citizens,may bring suit against an official where state conduct causes ongoing/imminentharm, but is limited to injunctive relief and may not seek monetary damages. Exam:Look for a federal law that creates a right, but is unenforceable if statesdecide to ignore it, individuls are left without remedy because they cannot suein state or federal court for violations of it.

****NOTE: State sovereign immunityapplies in both federal and state courts (Alden v. maine)

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§ 5 Abrogation Of State SovereignImmunity

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Whenacting pursuant to the 14th amendment, Congress may override 11thAmendment state sovereign immunity by authorizing suits against stategovernment. (Fitzpatrick) The 14thamendment was enacted after the 11th and thus may modify in servingas a limitation on state power. (Fitzpatrick)Specifically, congress can authorize suits via legislation that (1) is expressly enacted under § 5 of the 14thamendment, (2) provides a congruent and proportional remedy to the harm it seeks to prevent,and (3) there exists a pattern of state discrimination showing such harmcaused by the constitutional violation (Fitzpatrick,Seminole Tribe of Florida, Garrett). However,when protecting 14th amendment rights or classes that receive heighted scrutiny, Congress has much greaterauthority to permit suits against state governments when may authorize suits wit ***R: In order to authorize privateindividuals to recover money damages against States, there must be a pattern ofdiscrimination by the States whichviolates the 14th amendment, and the remedy imposed by congress mustbe congruent and proportional to the targeted violation. alen

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1) Clear statement - ExplicitlyPursuant to the 14th Amendment

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a) R: Congress must make a CLEARSTATEMENT that they are acting under the 14th amendment if authorizesuits for state violations (SeminoleTribe)i) Canoverride the 11th amendment onlywhen acting pursuant to § 5 (1) Seminole tribe of Florida v. Florida– Congress cannotauthorize suits against states under Commerce clause legislation (a) Indian Gaming act enacted pursuantto Article I § 8 commerce clause power(b) Cannot abrogate under Article Ipowers, only § 5 14 amendment (2) Fitzpatrick v. Bitzer – Can abrogate under § 5 , Civilrights act sufficient(a) § 5 14th amendmentgrants exercise of authority over areas constitutionally regulated by otherentities

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2) Congruent and Proportional (Flores)

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a) R: The legislation authorizing suitsmust be congruent and proportional tothe constitutional violation it seeks to prevent,i) Mustbe valid under the Flores test of § 5enforcement powers. (1) University of Alabama : Title I not congruent orproportionate to remedying constitutional violations(a) Requirement of reasonableaccommodation of disabilities significant expansion of what is constitutionallyrequired

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3) Pattern of State Discrimination (flores)

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a) R: The constitutional violation mustbe evidenced by pattern of state discrimination by the State which violates the14th amendementi) Remedyauthorizing suits can be congruent and proportional only where pattern ofdiscrimination to be remedied(1)University of Alabama v. Garret –Cannot bring case where legislative record of ADA fails to show a patent ofirrational statediscrimination against the disabled(a) Evidence was limited to discriminationby local gov, not protected by state sov. Immunity (b) Compares evidence to VRA findings,insufficient in comparison

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4) **Heightened Scrutiny andAbrogation

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a) R: congress is Not required to show apattern of discrimination where suits authorized under legislation protectingrights/class of heightened scrutiny (hibbs)b) R Congress can authorize suits under§ 5 for actions that actually violate the 14th amendment (Georgia)

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EXCEPTIONS TO SOVEREIGN IMMUNITY

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Individuals can sue states where: ***1.Ex parte young – o Seekinginjunctive relief against state officials ***2.14th Amendment Abrogation o clearstatement + congruent/propotional ***3.Bankruptcy cases ****Essentially, asuit can be brought against a state for conduct that actually violates theFourteenth Amendment.