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200 Cards in this Set

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What are the (3) cases and their rules that give rise to the Federal Judiciary's authority for Judicial Review?
1) Marbury v Madison: Congress and executive branches cannot pass laws that are contrary to the Constitution, and it is the role of the Federal courts to interpret what the Constitution permits; 2) Martin v. Hunter: SC review of state judgments is constitutional b/c C's structure for its allowance and need for uniformity of laws across the nation; 3) Cohens v. Virginia: State laws in opposition to national laws are void, the U.S. Supreme Court has appellate jurisdiction for any U.S. case and final say.
The (3) limits of the Federal Judicial Review:
1) Interpretive Limits, 2) Congressional Limits, 3) Justiciability Limits
Types of Interpretive Limits:
1) Originalism: enforcing C norms that are stated or clearly implicit; changes only through amendments; finding out the original specific intent of the framers; 2) Non-originalism: enforcing norms that are not within four corners of C; changes through amendments and interpretation; using abstract intent.
DC v. Heller (2008 gun rights case)
The second amendment upholds the right of private citizens to keep and bear arms outside of militia service.
Congressional (3) Limits over the Judiciary:
1) Ex Parte v. McCardle (1868 publishing case): Congress has the authority to withdraw appellate jurisdiction from the SC at any time; 2) US v Klein (1871 confederate estate case): Congress invades the province of the judiciary by prescribing the rule in a particular case; 3) Robertson v. Seattle Audobon (1992): SC rejected that Congress was directing a judicial decision as Congress had changed the law itself.
Justiciability (5) Limits/Doctrines:
1) Prohibition of Advisory Opinions, 2) Standing requirements (constitutional and prudential), 3) Ripeness, 4) Mootness, 5) Political Questions
4 points on the Prohibition of Advisory Opinions:
1) Justices cannot give advisory opinions, 2) Hayburn's case posits that hypothetical contemplations or non-judicial duties cannot be assigned to the courts in their official capacity, 3) Plaut v. Spendthrift Farm (1995 final judgments case): Unconstitutional for a statute to require federal courts to reopen final judgments, 4) Nashville v. Wallace: the case retains the essentials of an adversary proceeding, involving a real, not a hypothetical, controversy.
(3) Constitutional Standing Requirements:
1) Injury suffered personally/imminently of P meets Art 3's cases and controversies factor, 2) Causation and traceability of the injury, 3) Redressability such that the court can provide relief in the matter.
Allen v. Wright (1984 private schools case):
Citizens do not have standing to sue a federal govt agency (IRS) based on the influence that the agency's determinations (private school tax exemption) might have on 3rd parties (supporting discriminatory practices indrectly).
Mass v EPA (2007 loss of shoreline case):
Greenhouse gases are air pollutants and the EPA may regulate their emission as the govt agency has the last word as to the use of natural resources.
Lujan v. Defenders of Wildlife (1992 speculative injury case):
No standing b/c threat of a species' extinction alone did not establish an individual and non-speculative private injury. Scalia even asserted that a plane ticket to an affected area would've satisfied imminent injury factor.
Why bother with the injury requirement for Constitutional Standing?
To not waste judicial resources; to reduce pressure on courts to establish new precedents.
Federal Election Comm v Akins (1998 PAC reporting case):
Congress may pass a statute (PAC reporting regulations) who's violation may be a legally cognizable injury for standing purposes.
(2) Prudential Standing Requirements (judically created but not C-derived so Congress may overwrite):
1) Prohibition on 3rd-party standing, 2) Prohibition of generalized grievances.
Prohibition of 3rd-party standing definition and (3) exceptions:
P must assert their own rights and interests and not on those of 3rd parties unless 1) Funding issue & initimate involvement, 2) if rights/interests are not redressable by any other means, 3) Economic policy frowns upon resisting the efforts of entrepreneurs.
Elk Grove v Newdow (2004 school pledge of allegiance case):
No standing by non-custodial parent challenging daughter's school recital of pledge. No rule really but exemplifies use of Standing Reqs as a way to either reach out OR avoid constitutional issues.
Prohibition of generalized grievances definition:
Prevents suits when P's only injury is concerned with having the govt follow the law; A prudential principle that prevents standing when the asserted injury is substantially shared by others in society.
(3) Cases governing prohibition of gen grievances:
1) US v Richardson (1974 CIA expenditures case, P w/o standing b/c too general injury), 2) Flast v Cohen (1968 private schools funding case, P w/ standing as injury (1 tax/spending) was against C separation of religion (2 C limitation) (2-part Flast test)), 3) Hein v Freedom from Religion Fdn (2007 executive funds for faith-based initiative case, P w/o standing as funds were for executive WH use not for specific religious use).
Ripeness definition and (2) cases:
Along with mootness, determines when litigation may occur; to separate matters that are premature for review b/c injury is speculative; 1) Poe v Ullman (1961 contraceptives case, P w/o standing due to non-enforcement of anti-contraceptives law), 2) Abbott labs v. Gardner (1967 generic-name labeling case, P has standing b/c of substantial economic hardship and legal question despite non-enforcement of law).
What's a problem with the Standing requirements cases?
How does one reconcile pockets of jurisprudential void where no one would presumably have standing? If no one then who?
Mootness definition, examples, and (3) exceptions:
A matter is moot if further legal proceedings can have no effect OR events have placed the case beyond the reach of the law; Egs: a) D dies during appeals process, b) P dies and action doesn't survive, c) Settlement is reached thereby killing live controversy, d) Law is repealed or expired. Excpts: a) For wrongs capable of repetition to P soley but evading review, b) Voluntary cessation of wrongs but capable of repetition, c) Class-action suits, P is removed but controversy remains live.
Roe v Wade (1973 abortion case almost thrown out on mootness):
Despite conclusion of pregnancy, the prohibition is a wrong capable of repetition (pertains soley to P as P may become pregnant again) and if case not heard harm may evade review.
DeFunis v. Odegaard (1974 reverse-racism admissions case rendered moot):
Case was rendered moot b/c law school admitted and was about to graduate P; the wrong wasn't capable of repetition to this P.
Friends of Earth v Laidlaw Environ Services (2000 mercury discharge case):
Despite P's claims rendered moot, the class of unnamed Ps still retain the live controversy for the case to continue.
Political Question Doctrine definition and examples:
Allegations of constitutional violation that federal courts will not adjudicate b/c 1) C provisions left to other branches of govt, 2) No adequate standards to be applied, 3) Prudent not to interfere. Examples: Malapportionment, Partisan Gerrymandering, Impeachment procedures, and the President's foreign affairs powers.
Baker v Carr (1962 malapportionment TN case):
The reapportionment of state legislative districts is not a political question, and thus is justiciable by the federal courts. Brennan introduced six-part test for determing political questions. 1) Text in C that issue belongs to another department, 2) Lack of standards, 3) Impossibility w/o policy determinations, 4) Lack of respect of other branches, 5) Unusual need to defer to existing political decisions, 6) Embarrassment from conflicting pronouncements with other branches of govt.
Best way to answer PQD questions:
Best way to answer is to (dis)analogize these political question doctrine cases from the hypo.
Davis v. Bandemer (1986 political gerrymandering case):
Political gerrymandering cases are probably justiciable under the Equal Protection Clause by showing 1) Intent to discriminate (easier to show), 2) Actual success in discrimination (more difficult and most common bar for gerrymandering cases).
Vieth v. Jubelirer (2004 PA gerrymandering case):
Gerrymandering claims present a non-justiciable question, as there are no judicially manageable standards available to resolve gerrymandering questions despite dissentors presenting probable manageable standards.
Powell v. McCormack (1969 congressional self-governance case):
Congress may not in any way alter the qualifications of its members from the exclusive list given in the Constitution (age, length of citizenship, and inhabitant of state where elected); PQD should've applied here but US SC injects itself into the operations of the house of representatives.
Goldwater v. Carter (1979 PQDoctrine and foreign policy case):
President Carter could unilaterally break a defense treaty with the Republic of China (Taiwan) without Senate approval, was essentially a political question and could not be reviewed by the court, as Congress had not issued a formal opposition.
Nixon v. US (1993 impeachment of a judge case):
The contention that Senate committees appointed to gather evidence in an impeachment trial are unconstitutional is nonjusticiable, because impeachment is a political question; Textually demonstrable (Brenna's 1of6 factor) that Senate has sole power to try impeachments.
Article 1 Section 8 contains:
Federal govt's enumerated power on which all fed laws must hang, most other powers come from 13th (slavery) and 18th (prohibition) amendments; States have powers not enumerated to the Federal govt such as police powers.
McCullogh v. Maryland (1819 case about State's taxing power):
Because federal laws have supremacy over state laws (necessary and proper clause broadens commerce clause's power), Maryland had no power to interfere with the bank's operation by taxing it.
Necessary and Proper clause rule:
Allows Congress access to un-enumerated/ancillary powers as long as it helps further the goals of the enumerated powers.
Commerce Clause defining case (steamboats):
Gibbons v. Ogden (1824 case on NJ/NY steamboating): New York monopoly was an unconstitutional interference with the power of Congress over interstate commerce (navigation and shipping is included with trade/sale under commerce clause and implied that even intrastate commerce may be regulated by commerce clause).
Lochner Era limited what enumerated power via which cases?
Commerce Clause limitations, US v EC Knight posited that mft is not a regulatable area; Carter v Coal held that just bc a commodity will be sold in interstate commerce doesnt give Congress the right to regulate it before the event occurs.
What are 3 definitions of Among the States?
1) Regulation of intrastate transactions bc of their impact on interstate commerce (Shreveport Rate Cases 1914); 2) Regulation of intrastate transactions that only have a direct effect on interstate commerce (ALA Schechter Poultry v. US 1935); 3) Regulation of transactions in the stream of commerce.
Does the 10th Amendment (reserved to the States) limit Congressional Powers?
1) Yes according to Hammer v. Dagenhart (1918 child labor) as Congress had no power to regulate labor conditions; 2) No according to Champion v. Ames (1903 interstate lottery case).
1937-1990s era broadened what enumerated power:
Commerce Clause.
Commerce Clause broadening (3) cases (New Deal labor, police, wheat):
1) NLRB v Jones Steel 1937 labor relations case; 2) US v Darby 1941 labor relations case overturned Hammer and 10th's limiting effect (just a truism); 3) Wickard v Filburn 1942 wheat case where Congress can regulate an act due to its aggregate effect on interstate commerce despite no inidividual substantial effect on interstate commerce.
Commerce Clause re-broadening (4) cases (Civil Rights, Regulatory, Criminal):
1) Heart of Atlanta Motel 1964 case for prohibition of racial discrimination in public accomodations; 2) Katzenbach v McClung 1964 case for prohibition of racial discrim of interstate traverlers in food, lodgin, etc; 3) Hodel v. Indiana 1981 strip mining regulation bc of substantial effect on interstate commerce and bc of Congress rational basis; 4) Perez v US 1971 loan shark case where Consumer Credit Protection Act was applicable
3 categories of problems the Commerce Clause reaches:
1) Channels (rivers, sea, rail, cars, etc); 2) Instrumentalities (boats, ships, trains, persons, etc); 3) Substantially affecting, relating Activities to interstate Commerce (Interstate, Instrastate if economic in nature and Congress rational basis is evident; non-economic in nature no see Lopez).
The state government can act in any sphere not ? to them by:
Prohibited; 10th Amendment.
The federal government can pass laws only in areas ? delegated to it:
Specificially; 10th Amendment.
National League of Cities v Usery 1976 Fair Labor Standards Case:
FLSA was unconstitutional by 10th Amendment's limiting effect as such regulations were in areas of traditional govt functions and in consideration of the substantial economic burden incurred by FLSA compliance; Rehnquist posits that power is allowed so long as the means chosen are reasonably adapted to the legitimate ends.
Usery only applies when Congress was regulating ? govts, not when Congress was regulating ? conduct:
State, Private.
Garcia v. San Antonio MTA 1985 FLSA case (no limiting 10th):
Congress had the power (under commerce clause) to regulate municipal transit system bc of substantial fed funding despite stare decisis pointing to the contrary.
Commerce Clause power evolution from the 1990s until now:
Narrowing and revival of the 10th as a constraint.
US v Lopez 1995 TX gun at school case:
Possession of a gun near school is not an economic activity that has a substantial effect on interstate commerce; A law prohibiting guns near schools is a criminal statute that does not relate to commerce or any sort of economic activity; The other cases concerned economic activities that allowed the limiting power of the 10th Amendment.
US v Morrison 2000 VAWomanA1994 case:
Part of VAWA was unconstitutional bc activity (violence) had only an attenuated effect and not a substantial one on interstate commerce; Based on Lopez which excluded activity that was not directly economic in nature even if there were indirect economic consequences.
Commerce Clause Doctrine (3 areas):
1) Channels; 2) Instrumentalities; 3) Activities of substantial,aggregate affect,relation to interstate commerce (if economic in nature then defer to Congress' rational basis test OR if non-economic then Lopez).
Pierce Country v Guillen (2003 intersection data case):
Since the legislation to keep all state road information private are aimed at improving safety in the channels of commerce and increasing protection for the instrumentalities of interstate commerce, they fall within Congress's Commerce Clause power.
Gonzales v Raich (2005 marijuana case):
Congress may ban the use of marijuana under the commerce clause even where states approve its use for medicinal purposes; last case over commerce clause and surprising since Scalia ruled in favor of this via the Necessary and Proper clause despite earlier votes on limits to the commerce clause.
Does the 10th Amendment limit Congress's Authority?
Yes, as of the 1991 Gregory v Ashcroft case that did not see a clear statement in Age Discrimination fed legislation to trump Missouring Retirement Age change; Also see NY v US 1992 radioactive waste case (10th limits fed from coercing state govts) and Printz v US 1997 Brady handgun violence prevention act (10th limits fed from commandeering state police powers).
Did the 10th limit Congress in Reno v Condon 2000 Driver Privacy case?
No, because 1) drivers' information was an article of interstate commerce and 2) DPP Act doesn't commandeer state power like in NY or Printz but is more like a statute like that regulating States' issuance of bonds.
Does Congress have broad Tax and Spend power?
Yes, see US v Butler that held that Congress may T&S as long as its for the general welfare. However, NY and Printz cases provides avenues for limitig T&S power in the future via 10th Amendment.
Sabri v US (2004 landlord bribery of federal official case):
Congress may make it a federal crime to bribe officials of non-federal organizations that distribute some federal funds without requiring prosecutors to prove that the bribe actually affected federal funds.
Conditions (4) on grants to state governments:
1) Condition must promote the general welfare 2) Condition must be unambiguous 3) Condition must relate to the federal interest in particular national projects or programs 4) Other constitutional provisions may provide an independent bar to the conditional grant of federal funds.
The (3) post civil war amendments:
1) 13th prevents slavery except as punishment for crime 2) 14th holds that all persons born or naturalized are citizens 3) 15th holds that the right to vote shall not be denied or abridged.
Whom may Congress regulate under the post civil war amendments?
Originally, private conduct was not regulatable. Now, however, congress may prohibit private racial discrimination see Jones v Mayer (1968 selling and leasing property case). 13th empowers congress authority over private & state actors; 14th only over public & state actors; 15th only over private actors.
US v Morrison (2000 constitutionality violence against women act case):
VAWA of 1994 is unconstitutional bc it exceeded congressional power under the commerce clause and under s5 of the 14th as C stresses enumerated powers that limit federal power in order to maintain a distinction bw what is truly national and what is truly local.
What is the scope of congress's power under the post civil war amendments?
Initially expansive via S5 of 14th as held in Katzenbach that increase the rights of citizen puerto rican voting rights case of 1966 beyond what the judiciary has recognized; Scope is now narrower via S5 of 14th as held in Boerne, Florida Prepaid, and Kimel.
Katzenbach voting rights case rule:
A positive grant of legislative power authorizing Congress to excericse its discretion in determining the need for and nature of legislation to secure 14th guarantees.
City of Boerne v Flores (1997 church development in historic hood case):
Congress exceeded its S5 powers bc statute was not congruent and proportional to the remedy sought.
What's congress's power to authorize suits against state governments?
Initially, Art3 S2 allowed suits against state government by citizens; Now, 11th prohibits such suits thereby changing Art 3 S2.
(3) ways around the 11th amendment to hold state govts accountable in federal court:
1) Suit against state officers 2) Suit when the state waives 11th's immunity 3) SC held that Congress may authorize suits against state govts persuant to S5 of 14th (See Fitzpatrick v Bitzer 1976 damages due to discrimination case and Pennsylvania v Union Gas 1989; but Seminole Tribe 1996 indian gaming case overruled congressional authorization to sue state govts).
After Seminole Tribe, Congress may authorize suits against states only pursuant to:
S5 of 14th.
Florida Prepaid 1999 college savings patent infringement case:
Abrogation of states' rights is not constitutional under Patent Act; Congress could only abrogate states sovereign immunity pursuant to S5 of 14th and not Article 1.
Kimel v Florida 2000 age discrimination in employment case:
Determined that the Congress's enforcement powers under the Fourteenth Amendment to the Constitution did not extend to the abrogation of state sovereign immunity under the Eleventh Amendment where the discrimination complained of was rationally based on age.
Kimel's (3) statute requirements for federal abrogation of states rights:
1) Clear statement of law 2) Voluminous & rigorous congressional record of violation of 14th S1 protections 3) Even with record statute must be congruent and remedy proportional.
Rule of Garrett 2001 disabilities act case:
ADA was unconstitutional insofar as it allowed states to be sued by private citizens for money damages as not allowed under the 11th where the discrimination complained of was rationally based on a disability.
Hibbs 2003 FMLA case:
FMLA was narrowly targeted at sex based overgeneralization and was thus a valid exercise of its power under S5 of the 14th; due process issue therefore heightened scrutiny.
Heigtened level of scrutiny types (3):
1) Strict scrutiny if necessary to achieve a compelling govt purpose (ie discrimination based on race or infringement on fundamental rights) 2) Intermediate where theres substantial relationship to achieving a substantial govt purpose 3) Rational basis
Tennessee v Lane 2004 access to courts case:
Congress has the power under S5 of the 14th Amendment to abrogate the States' sovereign immunity in cases implicating the fundamental right of access to the courts.
US v Georgia 2006 ADA applicability in prisons case:
Congress has the authority to apply ADA to the administration of state prisons to the extent that it relates to conduct that actually violates the Fourteenth Amendment; Thus Congress was granted more authority over the States in this area of disability rights.
Does Congress authorize suits against states in state courts?
No see Alden v Maine 1999 FLSA overtime of officers case that held Article I of the United States Constitution does not provide Congress with the ability to subject nonconsenting states to private suits for damages in its own courts.
Article I describes:
The powers of Congress, the legislative branch of the federal government.
Article II creates:
The executive branch of the government, comprising the President and other executive officers.
Article III establishes:
The judicial branch of the federal government, the Supreme Court of the US and lower courts as created by Congress.
Article IV outlines:
The duties the states have to each other as well as those the federal government has to the states and also provides for the admission of new states and the changing of state boundaries.
Article V describes:
The process whereby the Constitution may be altered via amendment proposals and their subsequent ratification.
Article VI establishes:
The US Constitution, laws, and treaties as the supreme law of the land; forbids a religious test for holding office; and hold the US responsible for debts incurred by the US under the Articles of Confederation.
Article VII describes:
How many state ratifications are necessary for the Constitution to take effect.
Bill of Rights consists of:
The first 10 amendments to the US Constitution.
Subsequent Amendements consists of:
The 17 subsequent amendments to the US Constitution.
Youngstown Sheet & Tube v Sawyer (1952 inherent presidential powers in expropriation of steel factories case):
The President did not have the inherent authority to seize private property in the absence of either specifically enumerated authority under Article Two of the Constitution or statutory authority conferred on him by Congress.
What's the scope of the President's inherent power:
Limited by the issue of executive privilege which allows the president to keep secret conversations with or memoranda to or from advisors.
US v Nixon (1974 watergate scandal case):
The Supreme Court does have the final voice in determining constitutional questions; no person, not even the President of the United States, is completely above law; and the president cannot use executive privilege as an excuse to withhold evidence that is demonstrably relevant in a criminal trial.
Cheney v US (2004 secret energy task force case):
The right to production of relevant evidence in civil proceedings does not have the same constitutional dimensions as in US v Nixon; IOW it does not share the urgency or significance of the criminal subpoena requests in Nixon.
Does the congress have the authority to increase executive power?
No, see Clinton v City of NY (1998 Line Item Veto Act case) that held the act was without legal force because the U.S. Constitution did not authorize the President to enact federal law of which both houses of Congress had not previously approved the text.
What are the (3) constitutional problems of the administrative state?
1) The Non-delegation Doctrine (now Demised) 2) The Legislative veto issue (now Demised) 3) Checking administrative power issue.
ALA Schechter Poulty v US (1935 bad poultry case and nondelegation doctrine):
National Industrial Recovery Act was an unconstitutional delegation of legislative power to the Executive, and was not a valid exercise of congressional Commerce Clause power (b/c Schechter was an intrastate poultry player).
Panama Refining v Ryan (1935 Hot Oil Case and nondelegation doctrine):
Specific parameters must be laid down in the delegation of power to the president to enforce legislative statutes.
Whitman v American Trucking (2001 EPA regulating air case and nondelegation doctrine):
The Clean Air Act properly delegated legislative power to the Environmental Protection Agency, but the EPA cannot consider implementation costs in setting primary and secondary national ambient air quality standards.
What is bicameralism?
Passage of legislation by both chambers of Congress.
What is presentment?
Passaige of legislation by giving the bill to the President for signature or veto.
INS v Chadha (1983 suspension of deporation case and the legislative veto issue):
Congress may not promulgate a statute granting to itself a legislative veto over actions of the executive branch which is inconsistent with the bicameralism principle andPresentment Clause of the United States Constitution.
If Congress wants to overturn an executive action there must be (2):
1) Bicameralism 2) Presentment; Anything less is a legislative veto and legislative vetoes are unconstitutional.
(3) Ways for Congress to Check Administrative Power:
1) congressional statutes governing agencies 2) Congressional control over agency budgets 3) Executive appointment and removal power (as long as it follows bicameralism and presentment requirements).
Article II S2 Appointment Power leading (1988 Independent Counsel case):
Alexia Morrison v Olson case about superfund regulations; The Independent Counsel Act is constitutional (but now expired as of 1999), as it does not increase the power of the judiciary or legislative branches at the expense of the executive.
Valeo (1976 appointment power of Congress case):
A federal law that empowered the Speaker and the President Pro Tempore of the Senate to appoint Federal Election Commissioners was unconstitutional as Article 2 only empowers the President to do so.
Myers v US (1926 presidential removal power case):
The President has the exclusive authority to remove executive branch officials and does not need the approval of the Senate or any other legislative body.
Humphreys Executor v US (1935 presidential removal power of independent agents case):
The President may not remove any appointee to an independent regulatory agency except for reasons Congress has provided by law.
Wiener v US (1958 presidential removal power of war claims commissioner case):
As Congress intended to create a War Claims body that was entirely free from control or coercive influence, the President did not have the authority to remove these individuals at will.
Bowsher v Synar (1986 congressional assignment of removal powers case):
Congress cannot reserve removal power over executive officers to itself, except forimpeachment; The Balanced Budget and Emergency Deficit Control Act of 1985 violates the separation of powers doctrine.
Morrisson Independent Counsel v Olson (1988 appointment and removal case):
The Independment Counsel Act is constitutional (but now expired as of 1999) as it puts the removal power squarely in the hands of the Executive Branch via the Attorney General and only for good cause for removal.
Two limits on the President to remove subordinates:
1) Good cause removal requirement 2) Special prosecutors are subordinate to Presidents attorney general thereby keeping power of removal in the executive branch.
Are foreign policy and domestic affairs different?
Yes see US v Curtis Wright Export Corp where presidential powers are broadened by limiting exports in regard to national security issues.
Why is Article 2 different from Article 1 and 3?
Article 2 executive branch enumerated powers are not as large.
Does the Supreme Court tend to uphold executive agreements?
Yes see Dames and Moore v Regan Secretary of the Treasury where executive orders dissolving judgment and claims against Iran were constitutional as per International Emergency Economic Powers Act.
What is the difference between an executive agreement and a treaty?
An executive agreement requires senate approval while a treaty does require it; the benefits of a treaty relate to an executives need for political gains.
War Powers act allows the president:
To send armed forces into action abroad only by authorization of Congress (within 48 hours) or if the US is already under attack of serious threat (must withdraw within 60days absent further authorization or declaration of war).
How can Congress force the president to remove troops as per War Powers Act after 90 days?
1) Congressional removal of funding for illegal war effort 2) Congress may impeach President for violating War Powers Act (will USSC find Act constitutional?).
2 cases concerning suing and prosecuting the President:
1) Nixon v Fitzgerald where the pres is entitled to absolute immunity from liability for damages based on his official acts; 2) Clinton v Jones where a President is subject to civil suits for actions committed before assuming the presidency.
May a President be criminally prosecuted?
No but it has not been attempted; On one side is the belief that impeachment and removal should be the only remedies against a president; however no person is above the law is a basic principle.
Gerald Ford impeachment definition:
An impeachable offense is whatever a majority of the House of Representatives considers it to be.
Would the USSC adjudicate impeachment issues?
No because of the political question doctrine.
Are the bill of rights applicable to States actions?
Yes in the modern United States via the 14th Amendments Due Process Clause; BofR not applicable in pre and post civil war era (Barron v Mayor of Baltimore 1833 eminent domain case where Justice Marshall held that the first ten amendmentments contain no expression indicating an intention to apply them to the State governments) and (1872 Slautherhouse cases where 14th Immunities clause was attempted to be applicable to States).
1999 Saenz v Roe case California welfare for out of staters case:
A California statute was held unconstitutional against new residents in contravention of their right to inter-state travel (an already existing right btw; inherent) and 14th Amendment S1 guarantees; first time in american history that ussc used the P and I clause to invalidate a state law.
Twining v New Jersey 1908 self incrimination case:
Held that 5th amendment rights to not self incriminate apply only to federal court cases; USSC also established that certain rights of the BofR might apply to the states under the 14ths due process clause (incorporation).
2 opposing sides to incorporation debate:
1) Those who believe that all of the B or Rs should be deemed included in the Due Process Clause of the 14th 2) Those who believe only some of the B of R were sufficiently fundamental to apply to state and local governments.
Are most rights in B of R incorporated in the 14ths Due Process Clause as applied to the states?
Yes for example see Duncan v Louisiana where the right to a jury trial is required as applied to the states via the 14th.
What is the state action doctrine?
See the civil rights cases US v Stanley 1883 where EQP applies only to state action not segregation by privately owned businesses; The doctrine that the constitutions protections of liberties and equal protection apply only to the government at all levels (fed, state and local).
2 exceptions to the state action doctrine:
1) The public function exception (when a private entity is performing a traditional governmental function) 2) The entanglement exception (when a private entity is performing a govt authorized encouraged or facilitated conduct).
What is Procedural Due Process?
The procedures that government must follow when it takes away a persons life liberty or property.
What is Substantive Due Process?
1) Whether the government has an adequate reason for taking away a persons life liberty or property; 2) The sufficiency of the justification for the govts action (not on the procedures followed); 3) The govt must prove that its action is necessary to achieve a compelling purpose.
An example of procedural due process:
The requirement of notice and a hearing prior to a custody hearing.
An example of substantive due process:
The requirement of showing a compelling reason for terminating custody such as by abuse or neglect.
What was substantive due process like during the Lochner Era?
As in the Slaughterhouse cases the 14th was held only to protect federal govt rights and privileges; The Lochner Era routinely struck down state laws that infringed on freedom to contract; See Allgeyer Lochner Adkins and Weaver cases.
What was substantive due process like post 1937?
The end of the Lochner era which used rational basis test for govt regulation of economic issues but heightened scrutiny would still apply to non economic regulations; See Muller (max hours law) Nebbia (consumer protection law) West Coast and Carolene Products (end of Lochnerism) and Williamson; too much deference to govt regulation?
US v Carolene Products 1938 Filled Milk Case:
Reaffirms West Coast Hotels holding of having judicial deference to the government over economic regulations; but heightened scrutiny will be remain applicable over the 1st 10 amendments andor over issues regarding insular minorities or the political process (the right to vote for example).
William v Lee Optical of OK 1955 business regulation case:
The Court held that state laws regulating business will only be subject to rational basis review and that the Court need not contemplate all possible reasons for legislation.
In what area can there be said a rebirth of economic due process has occurred?
In regard to constitutional limits (via Due Process Clause) on punitive damages; See BMW of NA v Gore 1996 corrupt dealership case where excessive punitive damages awards violate substantive due process if 1) the degree of reprehensibility is not high 2) the ratio of punitive to compensatory damages is high and 3) comparison of the punitive damages award and civil or criminal penalties imposed for comparable misconduct is disparate.
3 factor analysis for challenges to punitive damages:
1) Reprehensibility 2) Ratio of compensatory harm to punitive damages 3) Comparison of punitive damages to statutory damages.
What is the 3 question framework for Equal Protection Analysis?
1) What is the classification (facial or impact) (is there differential treatment) 2) What is the appropriate level of scrurity (strict or rational) 3) Does the govt action meet the level of scrutiny (compelling or legitimate purpose)?
What does the USSC focus on when evaluating the means of the particular law to the end in regard to equal protection?
On the degree to which a law is underinclusive (law doesnt apply to all who are similar to those targeted) andor overinclusive (law applies to those who need not be included in order to achieve the purpose); a tighter fit of inclusiveness is sought when using strict scrutiny.
Under the rational basis test in regard to equal protection the govt must have:
A legitimate purpose such as advancing a traditional police purpose via protecting safety health or public morals.
Rare case where USSC used the rational basis test to strike down a State law discriminating against homosexuals:
Romer v Evans 1996 case where a Colorado statute that prevented protected status under the law for homosexuals was held unconstitutional as not rationally related to a legitimate state interest of police power for protecting safety public health or public morals.
What is the courts enormous judicial deference under the rational basis test due in part to?
Its due to the courts willingness to accept any conceivable legitimate purpose as sufficient even if it was not the govts actual purpose; See US Railroad Retirement Board v Fritz 1980 case which upheld discrimination on one set of unretired workers in regard to dual benefits.
Under the rational basis test laws will be upheld unless:
The government classification is not rationally related to a legitimate state interest (New Orleans v Dukes 1976); the govt has a legitimate purpose if it advances a traditional police purpose protecting safety public health or public morals.
Under rational basis review must the purpose be actual or is any conceivable purpose enough?
The actual purpose of a law is irrelevant and the law must be upheld if any state of facts reasonably may be conceived to justify its discrimination; those attacking the rationality of the classification have the burden to negate every conceivable basis (FCC v Beach Comm 1993).
In sum the 3 parts of the rational basis test:
1) Rational relation to legitimate state interest (police purpose) 2) Legitimate purpose (S PH PM) 3) Reasonable relationship to its purpose and not clearly wrong a display of arbitrary power or an excercise of judgment.
Does rational basis review tolerate underinclusiveness (does not regulate all who are similarly situated)?
Yes see Railway v New York 1949 where only trucks on official business can advertise for themselves and the law excluded those in the sole business of advertisement.
Does rational basis review tolerate overinclusiveness (regulates more than those that need not be included in order to achieve the purpose)?
Yes see NYCMTA v Beazer 1979 where drug users and even successful methadone users are discriminated for open job positions.
(2) Occasional cases where the USSC has found laws to be so arbitrary and unreasonable as to fail rational basis review:
1) USDA v Moreno (1973 no food stamps for mixed families case) as the unrelated person provision was irrelevant to the state purpose of the Food Stamp Act; 2) City of Cleburne TX v Cleburne Living Ctr 1985 anti group home case as classification appeared to based on irrational prejudice of retards.
Classifications (facial or impact) based on race or national origin are reviewed under (see Dred Scott case for historical background):
Strict scrutiny where the law is upheld if it is proven necessary to achieve a compelling govt purpose and that it cannot achieve its objective through any less discriminatory alternative.
(Facial) race specific discrimination cases (3):
1) Korematsu v US (1944 express discrim of japanese internment case) which unusually upheld a law as national security concerns outweighed the rights of japanese americans; 2) Loving v Virginia (1967 facial discrim anti miscegenation case that affected multiple races) which held the law unconstitutional; 3) Plessy v Ferguson 1896 separation of the races facial discrim case that held separate but equal constitutional.
Case that ruled separate but equal unconstitutional:
Brown v Board of Ed 1954 segregation of schools case which held the law unconstitutional bc separate facilities were inherently unequal; Distinguished from Plessy bc of the totality of the effects on public education research of social sciences disagreement on the facts with the Plessy court justices.
Johnson v California (2005 racial segregation in prisons case):
Racial classifications must receive strict scrutiny even when they may be said to affect the races equally.
Facially neutral laws with a discriminatory impact may be reviewed under strict scrutiny if:
there is proof of a discriminatory pupose; thereby allowing their treatment as specifically racial or national origin classifications.
Washington v Davis (1976 discriminatory impact in DC polic officer applications case):
An police application process will not held unconstitutional solely because of disproportionate discriminatory impact; a plaintiff must prove discriminatory motive/purpose on the state actors part.
McCleskey v Kemp (1987 discriminatory impact in application of death penalty case):
Although stats show that the death penalty was applied racially disproportionately (discriminatory effect); a discriminatory purpose must be shown as the govts motivation in the laws application.
City of Mobile v Bolden (1980 at large municipal system and racially discriminatory impact case):
Facially neutral electoral disctricting is constitutional even if the system dilutes the voting strength of black citizens; IOW the requirement of proving a racially motivated intent is essential to voting rights (15th) cases as in EQP (14th) cases; Contrast with Rogers v Lodge where discriminatory purpose was found in a very similar case based on the presented facts.
Is proof of a discriminatory effect also required?
Although never expressly addressed it appears purpose and effect are required; See Palmer v Thompson 1971 closing of swimming pools case which held the closings as not a violation of EQP clause as it affected everyone equally.
How is discriminatory purpose proven?
By proving that the govt desired to discriminate; its not enough to prove that the govt took an action with knowledge that it would have discriminatory consequences; See Personnel Administrator of MASS v Feeney 1979 veterans and gender class case which upheld a veterans employment law as 1) the classification was indeed neutral (not gender based) and 2) the laws adverse effects did not reflect invidious gender based discrimination.
Another way that discriminatory purpose is proven:
Once racial discrimination is shown to have been a substantial or motivating factor behind the law then the burden shifts to the govt to disprove this intent behind the law; See Arlington Heights and Hunter v Underwood (1985).
3 step analysis of alleged discrimination in peremptory challenges:
See Batson v Kentucky 1) Criminal defendant must set forth a prima facie case of discrimination by prosecutor 2) If so then the prosecutor must show race neutral explanation 3) Trial court must decide whether the explanations are persuasive or if D has established purposeful discrimination.
Typical remedies after finding an equal protection violation:
1) Invalidation of the law (see Loving v VA as invalidating the anti miscegenation law) 2) Issuance of injunctions as well.
First case to limit the remdial powers of the courts in desegregation cases:
Milliken v Bradley 1974 outlying school disctricts case which held that with no showing of significant violation by the outlying disctricts and no evidence of interdistrict violations; the courts desegregation remedy was wholly impermissible not justified by Brown v Board.
Cases and rules that ended federal desegregation remedies:
1) Board of Ed of OK City v Dowell 1991 as the district had followed the remedies and implemented a unitary school system despite that the schools may become segregated again; 2) Parents v Seattle Schools 2007 race factor case which held that public schools may not use race as the sole factor but only as one factor of many in making desegregation determinations.
Review test to use in challenges to affirmative action programs:
Strict scrutiny; see Richmod v JA Croson 1989 that found racial quotas for awarding govt contracts are not justified by inherently unmeasurable claims of past wrongs; the city therefore failed to demonstrate a compelling interest.
University of California v Bakke (1978 admissions case):
Invalidated the strict set aside admissions rule but held that admissions may use rule as just one factor to benefit minorities to enhance diversity (ie the compelling state interest).
2 Grutter v Bollinger cases (Michigan Law and Undergraduate admissions) and their rules:
Michigan Law School admissions is constitutional as race was just one factor in the admissions decision; Michigan Universitys admissions was unconstitutional as it gave automatic point increases rather than making individual determinations.
May election districts be drawn to increase minority representation?
Yes if for political reasons see Easley v Cromartie 2001 NC disctricting case as it was drawn upon voting behavior and not for affirmative action reasons; IOW race cannot be the predominant factor.
Level of scrutiny (review test) for gender classification cases:
Rational basis test was used in pre 1970s; Strict scrutiny in 1973 Frontiero v Richardson enlisted female benefits case; Intermediate scrutiny in 1976 Craig v Boren alcohol for 18 year old females but not 18 yr old males case that held the sex discrimination as not substantially related to the achievement of important government objectives.
US v Virginia 1996 VMI admissions case:
Upheld the use of intermediate scrutiny in gender classification cases and emphasized there must be an exceedingly persuasive justification for the gender classification.
How is gender classification proven?
As with racial classification 1) the law may exist facially or 2) If the law is neutral then provide both discrminatory impact and discriminatory purpose by the govt.
When is it gender based discrimination?
When the program at issue does discriminate people based on sex exclusively; see Gedulig v Aiello 1974 no insurance for pregnancy case which held that denial of benefits for work loss resulting from normal pregnancy does not violate the EQP clause of the 14th as women pertained to both pregnant and nonpregnant parties.
First principle that arises from gender discrimination cases benefitting women and disadvantaging men:
1) Gender classifications benefitting women based on role stereotypes generally will not be allowed (see Orr v Orr 1979 women only alimony case; Miss U v Hogan 1982 women only nursing school case; Michael M v Sup Ct of Sonoma County 1981 women only rape law case; Rostker v Goldberg 1981 Military Selective service for men only case).
Second principle that arises from gender discrimination cases benefitting women and diadvantaging men:
2) Gender classifications benefitting women designed to remedy past discrimination in opportunity generally are permitted (see Califano v Webster 1977 retired worker seeking the former formula for females case).
Third principle that arises from gender discrimination cases benefitting women and disadvantaging men:
3) Gender classifications benefitting women bc of biological differences bw men and women (see Nguyen v INS 2001 law that benefitted mothers over fathers was constitutional case as the difference bw them was real in the birthing process).
The ninth amendment:
Is not a repository of rights or even a provision that is itself interpreted but instead is a justification for the Court to safeguard unenumerated liberties (enumeration of C rights doesn't disparage non enumerated rights).
The existence of a right triggers what 2 distinct burdens on the govt:
1) Substantive burden on the govt to demonstrate that the law is necessary to achieve a compelling purpose 2) Procedural burden on the govt to provide adequate procedures when the govt takes away a persons life liberty or property.
4 part framework for analyzing fundmental rights:
1) Is there a fundamental right (if so strict scrutiny otherwise rational basis review see Washington v Glucksberg 1997 case that found no fund right in asst suicide) 2) Is the constitutional right infringed directly and substantially 3) Is there a sufficient (compelling or legitimate) justification for the govts infringement of a right 4) Is the means sufficiently related to the purpose (necessary and no other less restrictive means OR reasonable and no requirement to use least restrictive alternative).
3 aspects of reproductive autonomy to be fundamental rights:
1) Right to procreate (see Skinner v OK 1942 compulsory sterilization as a violation of EQP case) 2) the right to purchase and use contraceptives (see Griswold v CT 1965 ban on contraceptives as violation of marital privacy case AND Eisenstadt v Baird 1972 ban on contraceptives for unmarried couples as violation of EQP case AND Carey v Population Services 1977 ban on contraceptives for minors case) 3) the right to abortion (see Roe v Wade 1973 ban on abortion as violation of EQP and use of quasi legislative rulings case).
Planned Parenthood v Casey (1992 spousal notification of abortion case):
USSC held that spousal notification law was invalid under the 14th bc it created an undue burden on married women seeking an abortion while parental informed and 24 hr waiting periods were constitutionally valid regulations.
Why did the USSC use undue burden analysis over strict scrutiny in the right to abortion cases?
Bc strict scrutiny would have been too hard which would have illegalized all regulations on abortion; allows states to regulate the medical procedures as long as there is no substantial obstacle in the path of a woman seeking an abortion.
Gonzales v Carhart (2007 partial birth abortion ban act of 2003 case):
The act was not shown to be void by vagueness or that it imposed an undue burden on a womans right to abortion based on its overbreadth or lack of a health exception.
City of Akron v Akron Center for Reproductive Health (1983 waiting period before abortion case):
The Court declared unconstitutional a part of a city ordinance that prohibited a physician from performing an abortion until 24 hours after the pregnant woman signed a consent form; See also Thornburgh v American College 1986 case; these holding were shifted under Casey.
Has the USSC repeatedly held that the govt is not constitutionally required to subsidize abortions?
Yes see Maher v Roe 1977 case that allowed limits by state Medicaid to only pay for first trimester abortions that were medically necessary; the law placed no undue burden in the womans right to an abortion and since financial need alone did not identify a suspect class under EQP then (rational basis review) and the law was rationally related to legitimate state interest (of encouraging alternatives consonant with legislative policy).
Harris v McRae (1980 public funding of medically necessary abortions case):
States that participated in Medicaid were not required to fund medically necessary abortions for which federal reimbursement was unavailable as a result of the Hyde Amendment; The funding restrictions of the Hyde Amendment did not violate either the Fifth Amendment or the Establishment Clause of the First Amendment.
Belloti v Baird (1979 parental notice and consent to abortion case):
States may require parental notification before a minor may obtain an abortion but must provide an alternative procedure to parental approval.
Lawrence v Texas (2003 illegal sodomy case):
A Texas law classifying consensual adult homosexual intercourse as illegal sodomy violated the privacy and liberty of adults to engage in private intimate conduct under the 14th amendment; overruled Bowers v Hardwick 1986 homosexual activity case.
Some (3) Types of unprotected and less protected speech:
1) Incitement of illegal activity 2) Fighting words; the hostile audience; and the problem of racist speech; 3) Obscenity.
Cases that restricted speech bc it created a clear and present danger to the recruiting practices of the US armed forces:
Schenck; Frohwek; and Debs WWI cases involving the Espionage Act of 1917.
Abrams v US (1919 criticism of WWI case):
Defendants criticism of U.S. involvement in World War I was not protected by the First Amendment because they advocated a strike in munitions production and the violent overthrow of the government; Holmes dissent was a departure from his earlier decisions in this area for the Ds did not have the requisite intent to cripple and hinder the US prosecution of the war.
Gitlow v NY (1925 dissemination of communist pamphlets case):
First case to apply 1st amendment to the states through its incorporation into the due process clause and first case to use a reasonableness approach rather than the clear and present danger test; Holmes dissented again stating that the danger was not present and only a small minority held the views and the uprising was planned for the future.
Whitney v California (1927 criminal syndicalism case):
States may constitutionally prohibit speech tending to incite to crime; use of the reasonableness approach rather than the clear and present danger test.
Dennis v US (1951 participation in commmunist party case):
Use of the risk formula approach; Judge Learned Hand In each case courts must ask whether the gravity of the evil discounted by its improbability justifies such invasion of free speech as necessary to avoid the danger.
What is the brandenburg test?
See Brandenburg v OH 1969 syndicalism case that held that OHs criminal syndicalism statute violated the 1st as applied through the 14th bc it broadly prohibited the mere advocacy of violence rather than the unprotected incitement to intentional imminent and likely lawless action.
Has the USSC expressly held that fighting words are a category of speech unprotected by the 1st amendment?
Yes see Chaplinsky v NH 1942 where there are certain well defined limited classes of speech which tend to incite an immediate breach of the peace.
Has Chaplinsky been overruled?
No but the court has never upheld it neither by overturning convictions via 1) narrowing the fighting words doctrine to apply only to speech directed at another person that is likely to produce a violent response 2) finding many fighting words statutes to be unconstitutionally vague or overbroad and 3) finding prohibition of specific words to be impermissible content based restrictions of speech.
Cases that have narrowed the fighting words doctrine:
Street v NY 1969 flag burning case that overturned the conviction as it didn't likely provoke the average person to breach the peace; Cohen v California 1971 fuck the draft case that overturned the conviction as the speech was not directed to a specific person; TX v Johnson 1989 flag burning case conviction overturned persuant to Cohen holding.
Cases that invalidated fighting words laws as vague and overbroad:
Gooding v Wilson 1972 GA opprobrious words case that overturned the conviction as the statute was not carefully drawn to punish only unprotected speech; Rosenfeld Lewis and Brown also vacated convictions as the offensive speech to the police was protected even if uttered in anger filled with profanities and likely to anger the audience.
Cases that held narrow fighting words laws as unconstitutional content based restrictions:
RAV v City of St Paul 1992 cross burning case that overturned the convictions as the city ordinance proscribed both fighting words and protected speech and bc the regulation was content based and aimed at expression of disfavored views.
Feiner v NY 1951 inciter on public streets case:
Unlike precedents which used clear and present danger test to protect speech; the court agreed that the police were motivated solely by a proper concern for the order and protection of the general welfare; Blacks dissent concerned the need to arrest the agitators not the speaker which was used later in the civil rights era cases.
The 1st amendment requires that the police try to control:
the audience that is threatening violence and stop the speaker only if crowd control is impossible and a threat to breach of the peace is imminent.
Is group libel protected by the 1st amendment?
No see Beauharnais v Illinois 1952 racist speech case that affirmed a conviction via an IL statute against racist speech; however the statute would certainly be declared unconstitutional today based on vagueness and overbreadth grounds.
Is a cross burning statute that provides its prima facie evidence of intent to initimidate constitutional?
No see Virginia v Black 2003 cross burning case that held that cross burning by itself could not support a conviction without further evidence of intent as it was an unconstitutional restraint on speech.