seng con law outline

8/3/2019 Seng Con Law Outline

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Constitutional Law Outline

General Info

Jurisdiction of the Federal/State Courts

I. Federal Courts (limited Jurisdiction)a. Cases Involving

i. Federal questionii. Diversity Cases (parties from two different states)

b. Supreme Courti. Original Jurisdiction

1. Cases involving Ambassadors or state officials

2. Cases involving the state as a partyii. Appellate Jurisdiction

1. All other cases (as granted by congress)II. State Courts (General Jurisdiction)

a. Can here all cases regarding state criminal, civil law

General Framework of the Constitution

I. Article I: Congressional Powersa. Section 8: Powers of congress

i. Allows congress to create courts by legislation The judicialpower of the United States shall be vested in the Supreme Courtand such inferior courts as the congress shall from time to timeestablish.

b. Section 9: Limits on congressional powersc. Section 10: Limits on State powers

II. Article #2: Executive Powersa. Section 2: Allows for the president to appoint federal judges with the

advice and consent of the congress.

i. Lifetime appointments unless impeachedIII. Article #3: Judicial PowersIV. Article #4: Interstate RelationsV. Article #5: Amending the ConstitutionVI. Article #6: Supremacy Clause

a. Constitution is the Supreme Law of the LandVII. Amendments Applicable to this class

Legend

Yellow = LawGreen = ElementBlue = CasesPurple = Study Aid

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a. 13th:b. 14th: Due Process/Equal Protectionc. 15th:

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I. Judicial Review

Marbury v. Madison

Facts: Marbury was given a Justice appointment by John Adams and Marshall(the secretary of state) failed to deliver the appointment. Jefferson came intooffice and directed his secretary of state not to deliver the commission. Suit

was filed by Marbury asking for a writ of mandamus to enforce the appointmentagainst Madison (not Jefferson because it was not his job). Questions asked by the court

o (1) Has the applicant a right to the commission he demands? Yes, because the commission had been affixed with a seal, Madison

had a vested legal right to the position.o (2) If he has a right and that right has been violated do the laws of his

country afford him a remedy? Yes

o (3) If they do afford him a remedy is it a mandamus issued from thiscourt?

Rule: When a commission has been signed by the President, the appointmentis made; and that commission is complete when the seal of the US has beenaffixed to it by the secretary of state.

Rule: When the government takes away someones vested right, the veryessence of civil liberty (implicit in the Constitution) the law will provide aperson with an appropriate remedy.

Rule: The court can not decide on an issue based on a political question butonly a question at law. The distinction is whether the matter is regarding adiscretional issue (it is political) or if there is a distinguished right provided(then it is a question at law).

o If the law imposes a clear duty on a public official and that officialviolates the law, then thee court may intervene.

Illegality and Public Officials

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o If a public officer is acting legally, performing his duties, the officeris protected by his position.

o If a public officer acts illegally, he is stripped of the color of hisoffice and is no longer acting as a public officer.

He may be sued like any other person

Statute Lawo The laws of the United States which shall be made in pursuance

thereof must be made in compliance with the Constitution.o The court has the power to determine whether a given legislative

statue is in compliance with the United States Constitution. (JudicialReview)

o The court is granted this power because they take an oath to supportthe Constitution and by enforcing an unconstitutional law, they would

be breaking their oath to the court.---------------------------------------------------------------------------------------------

II. Congressional Power/State Law

Rules: Congressional Conveyance of Jurisdiction

Supreme Court (Original Jurisdiction)o Article III section II of the US Constitution grants that there will be

one Supreme Court of the land, which is granted original jurisdiction in

all cases related to Ambassadors & State officials Cases where the state is a party.

o Legislation limiting or revoking the original jurisdiction of the SupremeCourt would be struck down as Unconstitutional because the jurisdictionis granted by the Constitution.

Supreme Court (Appellate Jurisdiction)o The constitution grants the power to convey affirmative appellate

jurisdiction upon the Supreme Courto If a jurisdictional power has not been conferred it is assumed that it is

not within the courts jurisdiction.o If one is trying to file an appeal, it best to first look to see if there is a

statute that confers the jurisdiction on the court for that particularcause of action.

Lower Federal Courts (Original Jurisdiction)o Congress has the power to confer classes of cases, and set jurisdictional

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amounts and otherwise regulate the lower federal courts.o Congress has the power to create lower federal courts at their

discretion.

Ex Parte McCardle (Jurisdiction Conferred by Congress to the Courts)

Facts: During the time of construction McCardle was a newspaper editor andpublished anti-reconstruction editorials. McCardle was arrested and his casewas tried in the federal court. He filed a writ of habeas corpus under a statutethat was passed by Congress in 1867, which provided that if someone was beingdetained they could bring a habeas corpus action to the federal court (whichwas denied and then appeal to the supreme court. After his writ was denied bythe lower court he appealed to the Supreme Court. Right before the decision

was to be rendered, congress repealed the act which said the Supreme Courtdid not have the appellate jurisdiction over writs of Habeas corpus. Courts Opinion

o Congress has the right to repeal legislation conveying jurisdictionappellate jurisdiction.

o Therefore, Congress was within its power to repeal the legislation andthe court no longer had jurisdiction to grant the writ.

Rules: The Supremacy Clause

(10

th

Amendment): The Constitution is the supreme law of the land and althougheach state is their own sovereign, the Supremacy clause limits their power.(10th Amendment strips some of the sovereignty from the states and therefore,the constitution act upon the states)

o Not in regards to State Law unless it is an appeal from a state courtinvolving a Federal Law.

Martin v. Hunters Lessee(Supremacy Clause) Facts: Lord Fairfax owned most of Northern Virginia but was a loyalist and

when he fled to England, his land was confiscated. His heir claimed that heowned the land, but Virginia had taken the land and sold them to other parties.After the war a federal treaty returned all land back to its British owners.Virginia refused to comply with the treaty. Supreme Court held thatconstitution and laws and treatys are the supreme law of the land. Therefore,the treaty trumps the Virginia court decision. But, the Virginia court still did

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not honor the decision and would not enforce it because they were the highestcourt of Virginia (no jurisdiction).

Courts Opiniono Because the United States Constitution, Treaties, and Legislation trumps

state law, the court has the power to issue the writ.o The court did not issue the writ of mandamus against the court of

Virginia because they issued their opinion and therefore, they feel thatthe court will recognize what they lawfully should do without beingforced. (Which they did)

Rules: Supreme Court Jurisdiction in State Cases

When federal law is included in a state court decision (which is alleged to bebased predominantly on state law, it will not be reviewed by the Supreme

Courtwheno (1) There is clear and express indication that it is alternativelybased on a separate adequate and independent ground; or,o (2) The opinion makes a clear statement that federal law is onlyused as guidance and does not compel the decision the court hasreached. (plain statement)

Rules: Diminishment/Enhancement of Federal Rights

A state court cannot diminish federal rights and at the bare minimum, eachindividual is entitled to rights provided under the US Constitution.But, States can provide more rights to their citizen that what is provided inthe Constitution if it is based solely and independently on state law.But, if there is a congressional statute or a treaty, it will trump state law.

Michigan v. Long (Federal Jurisdiction over State Cases Using Federal Law)

Facts: D was convicted when Marijuana was found in his car. Police hadsearched his car under a Michigan statute that allowed them to look for

weapons if probable cause. Michigan Supreme Court found this unconstitutionalbecause it was an illegal search due to a lack of probable cause which was aviolation of the US Constitutions 4th Amendment and the Michigan StateConstitution. State appealed to the Supreme Court who reversed the StateSupreme Courts ruling. Michigan Supreme Court refused to apply the ruling

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Element #2 : Standing

Standing: The party coming before the court must be the proper party to the

dispute There are two types of standing (Constitutional, Prudential) Constitutional (Article III) Standing

o (1) P must be injured-in-fact Injury to a legal right Injury to finances Physical or intangible injury which can be articulated

o (2) Injury-in-fact must be caused by D (the injurer)o (3) Injury must be redressed by the court (a remedy can be assigned)

Prudential Standingo As a matter of policy, the court will refuse to recognize standing in

particular cases even though in a constitutional sense, the person hasbeen injured-in-fact.

o Prudential Limitation #1: The harm to an individual is too general P has suffered something in common with everybody else in

society. Court says that there are too many people injured and therefore

the person should go through the political process.o Prudential Limitation #2: The party in coming in front of the court is

asserting the rights of a 3rd party. Exception: In some cases a 3rd party may bring suit on behalf of

another party if it is based on discrimination or a 1st amendmentissue.

Congressional Conference of Standing

o If there is no Constitutional standing Congress CANNOTconfer standingthrough legislation (against he constitution)

o If there is no Prudential standing Congress CAN confer standing throughlegislation

This is so even if the original case has been retired, future casesof a similar nature may be granted standing.

Craig v. Boran (Prudential Standing Challenge; 3rd Party Issue)

Facts: State law prohibited the selling of a product to men at an older age thenwoman. Suit was brought by underage boy, and a distributor of the product.

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Reasoning: The boy turned 21 and no longer had standing (no longer an injury-in-fact; Article III). The suit by the distributor was allowed because althoughshe was a 3rd party, she still was bringing a claim on a 1st Amendment issue.

Warth v. Seldon (Prudential v. Constitutional Standing) Facts: A zoning restriction was passed which only allowed single family houses.

Three groups attempted to gain standing to litigate in this case. Reasoning

o Group #1: Argued discrimination against low income families, but nonelived within the area. No Standing. Ps did not live in the area, and onlycontended that they may want to in the future. (Constitutional)

o Group #2: Lived in the area and paid taxes and said that the zoning madetheir taxes too high. No Standing. The complaint was too general to be

granted standing (Prudential)o Group #3: White people brought alleged that they were denied the right

to live in a diverse environment because the zoning ordinance keptminorities out. No Standing. White people cannot bring suit on behalfof a 3rd party, who were the minorities. (Prudential)

Lujan v. Defenders of Wildlife (Constitutional Challenge to Standing)

Facts: Congress passed an endangered species act and P asserted that it appliedto countries outside the US and brought suit.

Reasoning: No Standing. The fact that the Ps may want to watch birds in thefuture does not entail a specific injury (injury-in-fact).

Element #3 : Ripeness

Rule of Ripeness: The power of the courts to pass upon the constitutionality ofacts of Congress arises only when the interest of litigants require the use ofthis judicial authority for their protection against actual interference.

o If a case is brought too early, then the court will not render a decision(they dont want premature cases)

o Most of the time, the cases have had the problem of ripeness due to aprudential reasoning being, that as a matter of policy, the time is notright to here the matter.

However, recently the courts have relied on Article III to statethat there is no case or controversy because the case is not ripe.

o A hypothetical threat is not enough.

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Rule of Illegal Conduct: Past exposure to illegal conduct does not in itselfshow a present case or controversy regarding injunctive relief.

o If unaccompanied by any continuing, present adverse effect.o Past wrong were evidence bear on in whether there is a real and

immediate threat of repeated injury

United Public Workers v. Mitchell (Ripeness)

Facts: An act did not permit workers to participate in political campaigning. Psbrought action alleging that it was discouraging them from participating andasked for an injunction.

Reasoning: Not Ripe. The court could not speculate on what activities the Psmay want to take part in. Since they had not tried to participate in any politicalcampaigning the suit was brought to early.

City of Los Angeles v. Lyons (Ripeness)

Facts: P was pulled over and was assaulted by the police when he was placed in achoke hold. P brought alleging the choke hold was unconstitutional suit askingfor an injunction to stop the police from using this type of force withoutreasonable necessity.

Reasoning: Not Ripe. There was no immediate threat that it would happen againand therefore, the case was not ripe. But, if the P were asking for damages,they could be assigned.

Element #4 : Mootness

Rule of Mootness: The controversy must touch the legal relations of theparties having adverse legal interest which are definite or concrete.

Exception #1: A case which may be moot in respect to one plaintiff may bebrought in the form of a class action.

o However, the plaintiffs in the case may have to be switched atdifferent points where, the legal issue is no longer applicable to aparticular plaintiff.

Exception #2: An exception to the requirement that there be a livecontroversy at the time of decision exists for those controversies capable ofrepetition yet evading review. (The case will keep coming in front of thecourt, but never will be resolved because it is ALWAYS moot by the time it isheard)

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o Applies in those cases where the litigated issue will always be mooted bythe passage of time in litigation and the plaintiff will be subject to thechallenged action in the future.

o Is not as applicable to cases where the issue may come before the court

again but NOT by the same plaintiff.

Defunis v. Odegaar (Mootness)

Facts: P challenged the affirmative action policy of a Law School and wasentered the class while the case was pending in the court system. Case went onfor years and by the time it came in front of the court, he was near graduatingand the school was had no intention of making him leave regardless of thecourts decision.

Reasoning: Moot. The injury was not existent anymore since the law school was

letting him graduate. Also, even though other people may come before thecourt with the same complaint, it was very unlikely that the P in this case wouldever bring the same case before the court (wont need another law degree).Therefore, it does not fall within the exception (may come up again but not thesame plaintiff)

Element #5: Question at Law (Not Political Question)

Rule Regarding Political Questions: A court will not hear a case that is based on

a political question because political questions USUALLY do not entail a case orcontroversy.

o But, just because a lawsuit involves a political process does not mean it isa political question.

o Some questions clearly raise separation of powers concerns that are ofArticle III dimension and are more presumably able to be heard by thecourt. (This does not occur that often)

Question at Law v. Political Question: A question at law which involves apolitical topic will be heard if there is a judicially manageable standard thatthe court can re-apportionment and it has not been committed to anotherbranch.

Example of a Political Question: Is a particular government a republican formof government?

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Baker v. Carr (Question at Law)

Facts: Each county had one representative in the state legislature but the Ps (agroup of citizens) felt that there should be equal representation in proportion

to the population of each county. Ds argued that this was a political question. Reasoning: Not Political Question (Question at Law). Just because the question

had to do with politics, it was still judicable. The question entailed interpretingthe Constitution because it had to with an equal protection issue (not a violationof Article IV).

Nixon v. United States (Political Questions)

Facts: Federal judge was impeached because he gave false statements to a jury.The congress appointed a group of senators (therefore, did not come before

the entire senate). He argued that this violated the Constitution and wantedthe court to decide the case. Reasoning: Political Question. The senate has the power to determine how they

will review evidence for an impeachment case. This power was NOT given to thecourt, and was granted solely to the senate. The framers designed the systemthis way because

o (1) Judge could be tried on criminal charges and would appear again infront of the court. This could invite a bias decision.

o (2) Places a check on the judicial branch Dissenting Opinion: Dissent felt that this was a question at law because it called

for the interpretation of the constitution as to what the word try means.

Goldwater v. Carver (Political Question)

Facts: In order for a treaty to be formed it is made by the president andconfirmed by the senate. However, the president (without the consent ofcongress) ended a treaty. Congressman brought suit alleging that the presidentwas outside his power when he unilaterally ended the treaty.

Reasoning: Political Question. The court allowed for the president to end thetreaty without the consent of congress. This was decided because there havealways been issues between congress and the executive branch and the issuesshould be settled at the political level (the constitution never addresses howtreaties should be ended).

o Also, foreign affairs are an issue where the courts generally dont getinvolved.

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IV. Congresss Power (Article I Sec 8)

Congressional Power to Enforce/Create Laws

10th

Amendment Supremacy Clause: The Federal Government makes theSUPREME LAW of the Land.o A state may not place regulations on powers granted to the federal

government without consent from the federal government (includes allfederal instrumentalities)

o Even if the state has a concurrent power, they cannot interfere with thefederal execution of that power. (Fed is represented by all, the stateonly represents the people of that particular state)

o All powers not expressly granted to the government or incidentally

granted to the government through the necessary & Proper Clause arereserved by the states. Congressional Power: Congress has the power to execute all powers expressly

enumerated in the constitution under Article I Sec 8. As well as laws/powersthat are implied by the constitution if they are the means of for the purposeof enforcing an enumerated power.

o (Laws that are incidental to carrying out one of the enumerated powers) Necessary and Proper Clause: The sound construction of the constitution must

allow to the national legislature that discretion with respect to the means bywhich the powers it confers are to be carried into execution, which will enablethat body to perform the high duties assigned to it in the manner mostbeneficial to the people. They may do this by enforcing incidental powers whichare necessary to enforce enumerated powers.

o Necessary = Convenient or useful to anothero Congress can determine this based on what they find convenient and

they are their own judge. It should be asked what is the best way tocarry out this power?

Formula: Congress may create powers that are not enumerated by theconstitution which are necessary to enforce or carry out enumerated powersif. (Political Question)

o (1) The means are constitutional (not specifically restricted orprohibited by the constitution)

o (2) The end is an enumerated power (legitimate end)

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McCulloch v. Maryland (Necessary & Proper Clause)

Facts: Congress chartered a national bank (supported by Alexander Hamiltonand apposed by Jefferson). Became a major controversy both legal and political

as to whether the federal government should be able to charter a national bankin a State. Maryland and several other states fought the bank and came up withthe idea to make the bank less competitive by imposing a state tax on thefederally chartered bank. McCulloch refused to pay the state tax because itwas federally funded and as a result he was arrested and jailed.

Reasoning: Court found that the States COULD NOT impose a tax on afederally chartered Bank and that the Federal Government did have the powerto create a federally chartered bank in order to enforce the enumerated powerof regulating commerce.

Question #1: Does the Federal Government have power to charter a bank?o States Argument: Not enumerated and therefore reserved for the

state. Necessary should be viewed restrictively and the chartered bankwas not an absolute necessity to regulating commerce.

o Courts Holding: Regulating commerce is an enumerated power granted tothe Federal Government by the Constitution.

Creating a federally chartered bank was a means necessary to theconvenient and efficient regulation of interstate commerce eventhough it may not be ABSOLUTELY necessary.

Question #2: Does a state have the power to tax a federal instrumentality (thebank)?

o States Argument: The federal government does not have the power tolay direct taxes on anything within the state. Therefore, because thestate is located within the state, they have the power to lay taxes on thebank. The right to tax the bank is a concurrent power.

o Courts Opinion: The 10th Amendment enumerates that Federal Law isSupreme.

The federal government may place regulations (i.e. taxes)concurrently on a state because that state has representationwithin congress.

However, a state cannot regulate the federal government withoutthe federal governments consent because they are not arepresentative of the entire nation and only of that one state.(only their own states interest in mind)

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Historical Background of Commerce Regulationso Throughout the 19th Century, the question of federal regulatory power

over commercial transactions rarely came up. Most issues were resolvedlocally or at the state level.

o

In the late 1800s-1936 changes due to the progressive movement pushedfor more federal regulation of commercial activities. Congress set up theInterstate Commerce Commission in 1887.

In 1890 Congress enacted the Sherman Anti-Trust Act to protectconsumers and small business from mega business (monopolies).

Original Application of the Commerce Clause Only applied to issues involvingcommerce and not towards issues involving production, manufacturing, orprocessing.

Modern Application of Commerce Clause (1937) If a production or

manufacturing of a product has an effect on the national economy, thecongress may regulate the activity.o This is a case by case determination

Three Major Ways Congress Can Find A Commerce Law Violationo (1) Using the channels of interstate commerceo (2) Any instrumentality of interstate commerceo (3) Anything that has a substantial relationship to interstate

commerce

Civil Rights & The Commerce Clauseo

History 1880 The court ruled that congress has no power to regulatediscrimination in private business under the 14th Amendment. Thismade discrimination a state issue and the federal government couldnot step into regulate.

1964 The federal government began to use the InterstateCommerce Clause to regulate the issue of discrimination. They didthis by arguing that certain practices of discrimination had animpact on interstate commerce and therefore, was in their realmto regulate.

Gibbons v. Ogden (Federal Regulation of Navigation)

Facts: New York State granted Ogden exclusive rights to use the New Yorkwaters. Gibbons was also running a boat through the waters and had beenlicensed under the laws of the US for carrying on the coasting trade. Ogden

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attempted to get an injunction denying Gibbons the right to use the waterwayand Gibbons contended that New York had no right to grant the monopoly.

Reasoning: Held for the Fed Govo States Argument: The word commerce is limited to the buying and

selling and interchange of commodities.o Courts Opinion:

Commerce includes a commercial intercourse between the states. The federal government regulates all commercial transactions

amongst the states (refers to outside the state where aswithin would refer to inside the state)

Commerce is only furthered by navigation and includes it andtherefore, the right is granted to the Federal Government as if itwere expressly written.

Also, feds must govern because it applies to all the states and notjust one (need for uniformity) Every district has the right to be involved in commerce

Wilson v. Black-Bird Creek Marsh Co.(Unlegislated Federal Powers, 1829)

Facts: State of Delaware authorized a company owning marshy lands to build adamn to keep venom from destroying occupiers health. Owner of a Sloopregistered under Federal Navigation laws broke the damn to get their vesselthrough and the owner of the Marsh brought suit.

Reasoning: The court found in favor of the Marsh owner stating that theFederal government had not legislated over that particular Marsh andtherefore, it remained within the state power.

o But, if there had been federal commerce legislation enacted then thestate power to regulate would be void.

Cooley v. Board of Wardens (Diversity in the Law, 1851)

Facts: Congress passed a law allowing states to pass laws regulating pilots onboats. A Pennsylvania law was enacted that required a state licensed pilot to bestationed on a ship when entering their harbors. D was sued because he did notcomply with this restriction and brought suit alleging that it wasunconstitutional because states cannot regulate commerce.

Reasoning: Court held in favor of Pennsylvania. Matters of local concern that donot have effects on other states may be regulated by both the federalgovernment and the states.

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o This was an example of a local issue where diversity in the law may havebeen necessary (Pennsylvania may have different needs then in New York)

o There was NO need for a uniform rule

United States v. E.C Night Company (Pre-1937 Non-Commerce Ex., 1908) Facts: E.C controlled the processing of about 98% of the sugar in the US, and

therefore, they were able to control the price. The justice department arguedthat they were controlling the sugar industry thus forming a monopoly whichwas a violation of the Sherman Anti-Trust Act by restraining trade.

Reasoning: Court held that this was not a violation because the complaint had todo with the production of sugar and not the distribution of the product(precedes commerce).

o Indirect to US commerce

US v. Darby (Post-1937 Effects on Commerce, 1941)

Facts: Fair Labor Standards Act of 1938 prohibited the shipment in interstatecommerce of lumber which was manufactured by employees who were not paidthe minimum wage. State contended that the power to regulate wages andpermitted work hours was left to the state and were not directly related tointerstate power.

Reasoning: Court did away with the indirect and direct distinction and heldthat the activities were so interrelated to interstate commerce and had aneffect on the national government, and therefore, could be regulated by thefeds.

Wickard v. Filburn (Post-1937 Effects on Commerce, 1938)

Facts: Congress (as a result of the great depression) created legislationregulating the amount Farmers could plant so that they could raise the pricesby limiting supplies. A small farmer in Ohio grew crops solely so that he and hiswife could live off of them (never went to the market) and needed to plantmore then what was allowed.

Reasoning: Supreme Court ruled that the federal government could regulate thefarmer even though is actions were not directly related to interstate commercebecause they would have an effect on interstate commerce.

o If all farmers were allowed to do this, then it would have a GREATEFFECT on interstate commerce and the economy as a whole.

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Gonzales v. Raich (Federal Supremacy)

Facts: California allowed the use of medical marijuana with a prescription formedical purposes. However, under federal law, the positional of marijuana wasABOLSUTLEY ILLEGAL. D grew her own pot in her home, for her own use, and

was arrested by the federal government. Reasoning: Court held that even though the state of California allowed for the

legal use of marijuana, the federal law trumps because of the SupremacyClause. Furthermore, the law was valid because even the private usage ofmarijuana has an affect on the underground drug market for interstatedistribution of marijuana which has an effect on the national government.

Heart of Atlanta Motel v. United States (Commerce Clause & Civil Rights)

Facts: A motel was situated in downtown Atlanta which was close to many

interstate entities (buses, highway, etc.) The hotel was also advertisednationally through billboards. The restaurant of the hotel only would seatwhites and made blacks get food in the back (no seating). Suit was broughtalleging that the discrimination affected interstate commerce and therefore,was in violation of the constitution and was subject to congressional regulation.

Reasoning: Court held that racially discriminatory measures restrict customersand therefore, affect interstate commerce. If blacks were allowed in therestaurant business would be even greater, and more meat would be required.Although this is one case, it is applicable at a larger level.

Lopez & Morrison Cases (Limitations on Commerce Clause Application)

Facts: In Lopez, Congress enacted a statute which made it a federal crime tohave a gun within 1000 feet of a school. In Morrison, Congress enacted astatute which made it a federal crime to commit an act of violence againstwomen. In both cases, the court based their enactments on the negativeaffects guns on school grounds and violence has women have on interstatecommerce. Congress reasoned that violence on woman restricts them fromgoing into certain neighborhoods to conduct business, or traveling. Lopez wasbased on the idea that violence in schools impacts education which eventuallyaffects the economy.

Reasoning: In both cases, the court held that Congress had exceeded theirlimitations of their power and that the statutes were invalidated because theyhad nothing to do with an economic issue and they were not commercially based.

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VI. Other National Powers

Power of Taxation

Article I Sec 8(1): The Congress shall have the power to lay and collect taxes.

Indirect v. Direct Taxeso Indirect Taxes:

Must be uniform throughout the USo Direct Taxes:

Must be made in proportion to the census. Includes

(1) Poll Taxes (taxes on individuals) (2) Property Tax (made locally)

Taxation for Regulatory Purposeso

A tax that has regulatory purposes is valid if upon the doing an act orgaining a possession there is an automatic tax. (Looks like a tax then it isa tax)

Congress can use the taxation power to destroyo If the tax is only payable depending upon the scienter (persons state of

mind) or intent of the person, then it is not a tax, but it is a regulationand therefore, not valid. (Looks like a penalty then not a tax).

Hilton v. United States (Indirect Taxation)

Facts: All citizens who had a carriage were taxed. It was argued that becauseit was aimed towards property, it was a direct tax. Reasoning: Court found that it was not a direct tax because the use was being

taxed and not the actual carriage. Therefore, it must be applied equally toeveryone.

Bailey v. Rexal (Invalid Regulatory Tax)

Facts: Congress was unable to regulate child labor through interstate commercelaws. They then attempted to impose a tax on goods that were produced bychild laborers. Suit was brought alleging that such taxes were purelyregulatory having nothing to do with revenue and were therefore, invalid.

Reasoning: Court struck down the taxes holding that they were purelyregulatory. Congress cannot impose taxes that are only assignable depending ona persons knowledge or intent (knowledge that person is under 18).

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Sonzinsky v. United States (Valid Regulatory Tax)

Facts: Every dealer of firearms had to register with the Collector of InternalRevenue and pay a special tax of $200. P alleged that the tax was not forrevenue but rather to suppress the traffic of firearms which was not withintheir powers.

Reasoning: Court held the tax to be within the power of congress to assign.This was because the tax was payable towards all people who wanted todistribute firearms regardless of knowledge or intent. The tax was automatic.It may have had regulatory purpose but that is not an issue.

Spending Power

Article I 8(1): Congress shall have the power to pay the debt and provide forthe general defense and provide for the general welfare.

Congresss Spending Power: Congress may distribute money for any purpose aslong as it is for the benefit of the general welfare.

o This spending power is not limited to items in which congress canregulate under Article 1 Sec 8.

o Congress does not have the power to regulate the general welfare. Conditions Placed on Federal Funds: Congress may place conditions on the

money provided for the general welfare, for which if they are not compliedwith, will result in money not being distributed.

o Examples: 1965 Civil Rights Act Congress decided that any publicinstitution could only receive federal funding with the condition thatthey do not partake in discriminatory practices.

United States v. Butler (Spending Power)

Facts: Congress passed the 2nd Agricultural Control Act which imposed a specialtax on agriculture which was placed in a special fund. The money was thendistributed to pay farmers for leaving land vacant to avoid surplus during thegreat depression (to help the economy). Suit was brought alleging thatcongress could not spend money on agricultural production.

Reasoning: The court held that this act was unconstitutional. However,congress does have the right to place conditions on the money that they giveout for the general welfare.

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War Power/Treaty Power

War Power: Congress has a great amount of legislative power under the warpower.

o Congress may regulate all types of activities that, in the absence of war,

they would not be able to do so.o These regulations may remain in place as long as the effects of war are

still felt in the United States. (At this point there is no standard todetermine this)

Treaty Power: The president enters into treaties with foreign nations andCongress has the power to confirm them and regulate them.

o Treaties are Supreme Law of the Land and DO trump state law and policepowers.

o Treaties DO NOT supersede the Constitution and must be made in

pursuance of the Constitution.

Woods v. Cloyde (War Powers)

Facts: During WWII Congress enacted the Housing and Rent Act of 1937 whichregulated the amount of rent people could charge due to the shortage ofhousing (rent control measure). Suit was brought alleging that because the warwas over, Congress no longer had the power to enforce the act.

Reasoning: The Court held that congress could use the war powers for as long asit was necessary and proper. The Act could be enforced for so long as theeffects of war were still being felt.

Missouri v. Holland (Treaty Power v. States Power)

Facts: In the 1920s the United States entered into a treaty with Japan thatthey would not shoot a type of endangered geese. To enforce this treaty,Congress created an Act protecting the bird. Missouri brought suit allegingthat the Act infringed on a State power to regulate.

Reasoning: Court held that all laws must be in pursuance to the treaty clauseand therefore they trump state police powers.

Reid v. Covert (Treaty Power v. Constitutional Rights)

Facts: Two women in England killed their husbands on military grounds(husbands were in the military). Both women were civilians. The women weretried and convicted by Court Marshall with no jury. The US had entered into atreaty with England and Japan, that people on military grounds would be tried

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by Court Marshall. However, the women brought suit alleging that this violatedtheir constitutional right to a trial by jury.

Reasoning: Court held that the treaty could not be enforced. Treaties do notsupersede rights guaranteed to American citizens by the US Constitution.

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VII. Sovereign Immunity

History of Sovereign Immunity

Article III 2: Originally, suits could be brought against the state in FederalCourt under Article III 2: Supreme Court can hear cases (1) Between a State

and citizens of Another State (2) Cases in which the state would be a party. 11th Amendment: The Judicial power of the United State shall not be construed

to extend to any suit in law or in equity commenced or prosecuted against one ofthe United States by Citizens of another State, or by Citizens or Subjects ofany Foreign State.

o A suit could still be brought against another state in Federal Court forredress of violations of Federal Law (not domicile state).

o However, citizen of a state could not bring claim to Federal Court allegingviolation of Federal Law against their domicile state.

Hans Case (19th Century): 11th Amendment does not only repeal the Citizen-State/and Alien-State Clauses Article III, but instead was designed toincorporate the principle of sovereign immunity under which a state may not besued in Federal Court without the states consent. STILL GOOD LAW

Chism v. Georgia (Pre-11th Amendment; 1793)

Facts: A suit was filed in the Supreme Court against the State of Georgia wasby two citizens of North Carolina to collect on a Pre-Revolutionary War debt.When individuals tried to collect on the bonds, they would not honor them.

Reasoning: Supreme Court held that under Article III 2 the Supreme Courtcould hear the case because it was between a State and citizen of AnotherState and came within the original jurisdiction because it was a case in which aState shall be a Party

o This was not a popular decision opinion amongst the states

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Cohen v. Virginia (Post 11th Amend; Federal Violation Suit Against State)

Facts: Reasoning: Court held that under the 11th Amendment, a suit could be brought in

federal court regarding a violation of federal law. But, this is not extended to a

person within one state suing their own state for violation of federal law.

Hans v. Louisiana (Modern 11th Amendment Interpretation)

Facts: Louisiana citizen alleged that the state had violated the Contracts Clauseof Article I 10 by reneging on bonds that the state had issued duringReconstruction. The P had brought the suit through the federal question door(since the 11th amendment boarded up other access to the Federal court).

Reasoning: Court did not allow the suit to be heard. They held that the 11th

Amendment was intended to secure state immunity (which was brought through

the English Common Law).

Exceptions to 11th Amendment Sovereign Immunity

Suits brought by the United Stateso The US as the Superior Sovereign must of necessity at times bring suits

against a state.o Congress has from time to time allowed private parties to bring a civil

suit on behalf of the US. Suits Filed By Another State

o A state may bring a suit against another state if the plaintiff state issuing to redress either

(1) An injury to itself, or (2) An injury suffered by a large proportion of its citizens who

would otherwise have no means of obtaining redress.o This only applies to suits brought by a US State and other countries are

still subject to the 11th Amendment. Supreme Court Review of State Court Decisions

o When a state consents to being sued in their own state court, the reviewof that court may be heard by the Supreme Court

o This is so, even though they may not have been able to hear the casethrough original jurisdiction.

The Stripping Doctrine Ex Parte Youngo The Stripping Doctrine allows a suit to be brought to enjoin a state

official from violating the Constitution or laws of the US.

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o This is explained through a legal fiction that when a state official actscontrary to federal laws, the official is stripped of their title, and isthen a private citizen in the eyes of the law.

o Stripping Doctrine rests on Article VI 2 of the Constitution which

prohibits the state from violating the Constitution. Since the state has no right to violate the Constitution they cannot

confer this write onto their officials.o Suit must be brought against the official in both by name and must

he/she must be sued in both the Official capacity and (Purposes of Const. Violation) Individual capacity (Purpose of proving fiction)

o This doctrine ONLY applies to a state official in violation of federal lawand does not apply to a state official in violation of state law.

Alden v. Main (Suit Brought By US)

Facts: Group of probation officers sued their employer (the state of Maine)alleging that the state had violated the overtime provision of the 1938 Fair LaborStandards Act. The suit was dismissed in Federal District Court but they thenbrought the suit again in State court.Reasoning: Court held that under the idea of sovereign immunity, states areimmune from suits in their own courts and case was dismissed. However, the casecould have been successful if the suit was brought on behalf of the United States.

Ex Parte Young (Stripping Doctrine)

Facts: Young was the attorney general of Minnesota and it was alleged that lawswere unconstitutional and so Young was sued for an injunction to prevent himfrom enforcing the Minnesota law on the grounds that they were violating theconstitution. Young argued that he could not be sued because nobody can suethe state of Minnesota from enforcing their laws.

Reasoning: Court held that the suit could be brought because the laws wereviolating the Constitution. Therefore, the official was acting outside the colorof his office and was not protected by sovereign immunity. This was notconsidered a suit against the state because he was not acting in representationof the state.

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Retroactive v. Prospective Relief (Stripping Doctrine)

Prospective Relief Rule: A plaintiff who brings suit against a state official underthe Stripping Doctrine is only entitled to prospective relief and notretroactive relief.

The prospective relief may include:o (1) An injunction to modify future behavior of the Do (2) Prospective monetary relief for attorneys fees or costs for suits, or

where a state official is fined for contempt in violation of a federalinjunction.

Stripping Doctrine does not allow retroactive relief for monetary damages,compensation, or an injunction directed at undoing a completed transaction.

o Retroactive relief would require payments to be maid from the statetreasury which is barred by the 11th Amendment.

Edelman v. Jordan (Prospective v. Retrospective Relief)

Facts: Alleged that the Illinois department of public aid was receiving federalmoney for welfare but was not following federal restrictions for processing in atimely manner as required. Suit was brought against the director of public aidfor an injunction to compel him to comply with the federal statute. Because hehad not acted in a timely manor there were back payments that the state owedthe recipient. The court issued a prospective injunction compelling the directorto comply with federal law in the future but also an injunction requiring thedirector to pay back payments to the P and members of the Ps class (paymentsthat the state owed because they had not processed applications in a timelymanor) This was appealed to the US Supreme Court.

Reasoning: Court affirmed the prospective injunction but disaffirmed theretroactive injunction requiring payments out of state funds. The court heldthat by requiring the retroactive damages, it would turn the suit into one notagainst he director but rather against the state because it was taking themoney out of the state treasury.

Official Immunity (Common Law)

The 11th Amendment does not bar the recovery of retroactive damages fromstate officials personally, and therefore, they are shielded by Common LawImmunity.

o Purpose: To assure that government officials will not be unduly inhibitedin discharging their duties out of fear that they could be subject topersonal monetary liability.

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Absolute Immunity Protection under ANY circumstanceso Applicable To: Legislative (state only), Prosecutorial, Judicial government

positions.o Examples

(1) Judge orders that someone be sterilized even though that wasagainst Indiana Law (she was retarded). She sued the judge butthe court said that no matter how stupid the judge was she couldnot sue judges for damages.

(2) Prosecutes someone who they know is innocent for publicityand personal gains you cannot sue the prosecutor for damages butonly for an injunction.

Limited/Qualified Immunity More of an objective good faith immunity but notsubjective and only bars immunity in certain circumstances.

Applicable To: Executive Officials (Ex. State Police, Directors of Public Aid)o Also applicable to a legislature or judicature who is acting in an

executive capacity (not based on job title) Immunity In situations where the law is objectively uncertain and a

reasonable person in the executives position would not have realized thatthe challenged conduct was in violation of federal law.

No Immunity If there is a violation of a certain law and a reasonableofficial would have know that the law was certain.

o Ex. If a police officer arrests someone and hits him over the headwith a nightstick. All police officers know that it is illegal to assaultarrestees.

Congressional Abrogation/Expansion

Expanding States Rights Under 11th Amendment: Congress may direct that thestripping doctrine not be employed in selected federal question cases, with theresult that these claims against state official would be barred from federalcourt.

o Congress has the power to narrow the lower federal courts subjectmatter jurisdiction by excluding certain cases, even those that may ariseunder federal law.

Narrowing States Rights Under 11th Amendment: An attempt by Congress toabolish the states sovereign immunity from suit will only be upheld if tworequirements are met:

o (1) Clear Statement Rule: Congress must have made its initiation toabrogate the immunity unmistakingly clear in the language of the statute.

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Severs as notice to the stateso (2) Enacted Under 14th Amendment: Legislation may not have been

enacted under one of Congresss enumerated Article I powers but ratherpursuant to the 14th Amendment.

Congress CANNOT expand the federal courts subject matterjurisdiction beyond the limits defined by the Constitution by usingArticle I powers.

14th Amendment allows congress to enforce the amendment byappropriate legislation which includes allowing suits to be broughtagainst a state.

Pennhurst ()

Facts: Alleged that in a school for the mentally disabled was violating the 8th

and 14

th

amendments of the Const. The sued the school under federal law 1973where institutions could not be discriminatory when receiving federal aid, aswell as state law. Lower court found the school liable and the first time andwhen it went to the Supreme Court it was remanded and it was affirmed understate law. If you can find something illegal under state law they will decidethat first before determining the constitutional law. State then appealed tothe United States Supreme Court.

Reasoning:

Seminole Indian Tribe v. Florida (Expansion)

Facts: Seminole Tribe brought suit against the State of Florida for violatingthe good faith negotiations requirement of the Indian Gaming Regulatory Act.Florida moved to dismiss the Tribes action, alleging that the lawsuit violatedFloridas Sovereign immunity. Court of appeals held that the 11th Amendment didshield Florida from federal suit and that under the Ex Parte Young decision theparty could not enforce its right to good faith negotiations by naming Floridasgovernor as party to the suit.

Reasoning: Court held that stripping doctrine could not be used and thatcongress did not have the power to abrogate the states sovereign immunity.Court could not use the commerce clause to allow suit to be brought against thestate.

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State Waiver of Consent to Suit

State Waiver Rules: A suit may be brought against a state in federal or statecourt if the state has waived its 11th Amendment immunity by consenting to thesuit.

The waiver must beo Voluntaryo Expresso Unequivocal

This is usually accomplished by the legislature and cannot be done through usingCongresss enumerated power such as the commerce clause.

State can waive their right to immunity in state court but maintain theirimmunity in federal court.

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VII. State Regulatory Powers

Subtopic #1: Power of Taxation

Types of State Taxes

(1) Property Taxo Direct tax on the ownership of propertyo Generally computed by a % of the value of the property

(2) License Tax/Occupation Taxo One pays a tax for engaging in certain activities or occupationso Ex. Lawyers pay a tax to get their license to practice law

(3) Net Income Taxo Can be taxed either as an individual or a corporationo Usually a % of ones income

(4) Sales Tax/Use Taxo Tax on the sale of an itemo Tax on the use of an item

Limits on the States Ability to Tax

(1) Commerce Clause: If a state tax is either discriminating or placing a burdenon interstate commerce, it will be limited or enacted.

o Discriminating occurs when one a state favors their own products at theexpense of the national economy or other states.

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o Four Factors: (1) Does the activity that is being taxed have a sufficient nexus

to the state? Substantial activity within the state (2) Does it discriminate against interstate commerce?

If discriminatory, it will be struck down unless a state canshow that there was no less discriminatory way to achieve alegitimate state interest.

(3) Is the tax fairly apportioned? Apportionment States must apportion their taxes so that

each state is getting fair share of the revenue. Income Tax Formula = Payroll % + Property % + Sales %/3 Not all apportionments are identical and this is allowed as

long as the apportionment is in accordance with a uniform

formula made in good faith (4) Is the tax related to some service? The measure of the tax must be reasonably related to the

extent of the activities or presence of the taxpayer in thestate.

NOT based on whether the amount of the tax exceeds thevalue of the benefits the state has afforded the taxpayer.

(2) Due Process Clauseo A state can only tax where they have jurisdiction (cannot tax outside of

jurisdiction)o A state has jurisdiction over what is within their borders or that has

some nexus to the state. (3) Equal Protection Clause (4) Article I 10Imports/Exports: A state CANNOT tax imports or exports

o Placing taxes on imports would discourage trade within a state.o However, this is a limit to this regarding when at item ceases to be an

import for taxation purposes.o Old Package Doctrine: An item is an import while it is still in the original

package. But, once it has been removed and used, it is mixed propertyand can be taxed. (NOT GOOD LAW ANYMORE)

o Modern Standard: An imported item may be taxed once it has beencommingled with other products within a state.

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Limbock

Facts: Producers of gasoline where getting tax credit so long as the tax creditswere reciprocated. P alleged that this is discriminatory because if they do notgive the tax credit, the Indiana companies will not get the credit for what they

have done. Reasoning: Court said that the reciprocity argument does not hold here because

you are giving an advantage to companies in Ohio. However, Ohios remedy mustbe to sue and not to take matters into their own hands. They cannot do aretaliatory measure.

Subtopic #2: Regulations in Violation of the Commerce Clause

Article I 8 & The History of State Regulations

Article I 8o (1) Grants congress the power to enact federal legislation to regulate

interstate commerce.o (2) Grants congress the right to strike down state laws that discriminate

or burden interstate commerce. (West Lynn Creamery) Cooley Doctrine (Outdated Law)

o Exclusive Zone (where uniformity in federal law is needed) FederalGovernment possesses the exclusive power to regulate. Any state lawthat regulates subjects falling in this zone violated the commerce clauseeven if there was no conflicting federal legislation.

o Concurrent Zone (does not demand uniformity in the law) The statespossess a concurrent power to regulate and may do so as long as thefederal commerce power has not been enacted.

If congress decides to regulate the area itself then any conflictingstate laws will be struck down under the Supremacy Clause.

o Problem with the method: Offered no clear way to determine whichactivities require a uniform national rule, falling within the exclusive zone.

Indirect/Direct Test (Outdated Law)o Laws that place a direct burden on interstate commerce were invalidated.o Laws that only indirectly burdened interstate commerce were upheld.

The Modern Test

Three ways that laws are in violation of the Interstate Commerce Clause

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o (1) Purpose is to control out of state transactionso (2) Discriminate against interstate commerceo (3) Laws that burden interstate commerce

Legitimate State Interest (Rational Relationship Test)o

(1) The law must have a legitimate purpose or goal, and Purpose or goal must fall within the states police powers to

regulate the safety, morals, and general welfare of the public. State police powers are constrained by the state and federal

constitution as well as preemptive federal law. It is enough that a state might be perusing a police power purpose. There are two purposes that a state may not pursue and will cause

a law to be struck down even if there were other actual purposesof the law

(1) Laws may not be enacted to regulate interstate orforeign commerce. (2) Law may not be enacted for the purpose of shielding a

state from the effects of interstate commerce oreconomic protectionism

o Will not allow a state to shield residents from theconsequences of free trade among the states.

o Per se if it directly produces economic protectionismo Not per se if the indirect affect is economic

protectionism, and not struck down in all caseso (2) The means chosen by the state must be reasonably adapted to attain

that end. Courts are unlikely to find that a statute lacks a rational basis Question is whether a reasonable legislator might have though that

the law should achieve the desired end. Not, whether the law in fact furthers the purpose

Baldwin v. State (Economic Protectionism; Per Se)

Facts: In the 1930s states were providing support to local farmers so that theywould not go out of business. In New York, the state set up a minimum price formilk, so that farmers could survive. However, the law would be ineffective iflower priced milk could be brought in from out of state. So, New Yorkprohibited the sale of milk in New York from by sellers of another state, unless,the price paid for the milk was equal to the price in New York.

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Reasoning: Court found that the statute violated the commerce clause eventhough there was a legitimate state interest of keeping an adequate supply ofmilk during a shortage (health measure). Because the statute created abarrier of trade at the states borders, and the means to achieve the state

purpose was through economic protectionism, the law was held to beunconstitutional. This was a per se violation because the law had a directaffect.

Mince v. Baldwin (Economic Protectionism; Not Per Se)

Facts: New York regulation required that cattle be tested and free of diseaseprior to entering the state from another state. Federal government arguedthat the state was erecting a trade barrier at border by requiring only out ofstate cattle to be tested.

Reasoning: Court upheld the statute even though it was in fact erecting abarrier at the states borders. The legitimate state goal was to protect thehealth of the citizens from diseased cows as well as the local cattle herds.They held this to be a sufficient restriction even though it indirectly had aneffect that could be related to economic protectionism.

Further Limitations on State Regulations

(1) Discrimination against Interstate Commerce (2) Burdens on Interstate Commerce (3) The Market Participant Doctrine

Discrimination against Interstate Commerce (Try This 1st )

State laws that are rationally related to a legitimate state purpose but involvediscrimination against interstate commerce will be invalidated under thedormant Commerce Clause if the state has less discriminatory ways toaccomplish its purpose.

Discrimination Discrimination occurs when one state favors local over out-of-state interests.

If a state places the same restrictions on in state activity as it does on out ofstate activity, it is not discriminatory.

o But, a law may be found to discriminate against interstate commerce evenif some of its burdens fall on local interests.

A state law will only be invalid per se if the purpose of the discriminationmeasure was for economic protectionism.

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Three Ways that a state law is discriminatoryo (1) On its face Discriminatory by the way it was written

Example: Law that required only apples from another state to belabeled in a certain way.

o

(2) Impact on Interstate Commerce

A law that is facially neutral butwhose practical effect is to place greater burdens on out-of-stateeconomic interests than it places on their local competitors.

o (3) As Applied Less Discriminatory Alternatives

o If a state law is found to be discriminatory against interstate commerceit will be invalidated under the dormant clause unless there are no lessdiscriminatory way to achieve the states goal.

o The party challenging the law to suggest that there are less

discriminatory ways and once this is done, the state must show that thealternative would be less effective in achieving the states end.

Sporhase v. Nebraska (Non-Discriminatory Restriction)

Facts: Nebraska law barred the shipment of ground water out of state if thewater was needed locally.

Reasoning: Court upheld the law even though it was because it placed equalregulations on in state shipments and transferring water, therefore, not beingdiscriminatory against other states.

Dean Milk Co. v. City of Madison (Burden on local Interests; Struck Down)

Facts: Madison enacted legislation stating that Milk manufacturers could onlypasteurize them in Madison or the Milk plant has to be inspected by Madisonbut they would only go 25 miles outside the city. Dean Milk was located inIllinois and they wanted to sell Milk in Madison and they were denied a license.Madison argued that they need to make sure that the milk is properlypasteurized because they needed to protect the babies.

Reasoning: Court held that the health concerns would make a viable argumentbut they were not using the least discriminatory means. The means that theywere using, although they placed an equal burden on the state of Madison (theyhad to have the cows tested as well) placed more of a burden on out of statevenders, and also could be seen as enforcing the interest of keeping milk saleslocal to help local economy.

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Burdens on Interstate Commerce (Try this 2nd )

Balancing Test: A state law that is rationally related to a legitimate goal andthat does not discriminate against interstate commerce may still be invalidatedif the burdens placed on interstate commerce heavily outweigh whatever

benefits to the state. Test is useful if the burden is considerable and the benefit is low or

nonexistent but not useful when they are more equal. A plurality of courts has adopted the approach of making states find an

alternative measure that places less burden on interstate commerce.o However, this represents a very strict standard of judicial review

because it can be seen as undermining legislature (acting as a superlegislature)

Southern Pacific Co. v. Arizona (Burden Outweighs Benefit) Facts: An Arizona law limited the length of trains that could operate in the

state. Government argued that the regulation placed a heavy burden oninterstate commerce since trains that to be broken up into shorter ones wellbefore entering Arizona. Arizona argued that the purpose was for safety.

Reasoning: Court held that the regulations burden outweighed the benefitbecause it ended up increasing rather then increasing due to the fact that alarger number of trains operated in the state.

Kassle c. Consolidated (Least Burdensome Alternative)

Facts: The state of Iowa enacted a law that barred trucks longer than 55 feetfrom using the states highways. The statute was enacted to provide for thesafety of Iowa citizens. This was challenged by a trucking company who arguedthat a 65 foot truck was as safe as a 55 foot truck and it placed a burden oninterstate commerce.

Reasoning: Court held that the state did have a legitimate interest in providingfor the safety of their citizens and that you could not balance safety andburden on interstate commerce. But, because allowing 65 foot trucks was nomore dangerous then allowing 55 foot trucks on the highway, and it was lessburdensome, the 55 foot limit violated the commerce clause and they had to usethe least burdensome regulation.

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The Market Participant Doctrine

Market Participant If a state enters the marketplace as a participant, itsactions are treated as being like those of a private party, and the state isexempt from the restraints of the commerce clause. This applies when the

state is engaged in buying, selling, or dispensing of goods or services.o State Subsidies: States may also be able to claim market participant

status when they distribute subsidies. If funded by general tax revenues then probably not a problem.

But, if funded by special tax funded by local and out of statebusiness, then there is a problem (more like a rebate or exempt)

When a state distributes tax credits or exemptions they areacting in their sovereign capacity and not as a market participant.

Market Regulator If the state attempts to exercise control over the actions

of private parties beyond the market in which it is a participant, the state willno longer be except from the commerce clause.

South Central Timber (Market Regulator)

Facts: Alaska had state owned timber and said they would only allow the timberto be sold to buyers who would process it within the state of Alaska. Alaskaargued that they were being a market participant and that the company was allstate owned and therefore, they could sell it to whomever they want and theywould naturally favor those who support local processors (keeps the money inthe state).

Reasoning: Court held that Alaska can choose to only sell the timber to Alaskaresidents as market participants but they could not use their ownership of thelumber to set regulations and conditions on how the lumber could be processed.By doing so they are acting as market regulators and violating the commerceclause.

Reeves v. Stake (Market Participant)

Facts: State of South Dakota was selling cement from a state owned cementplant and restricted their sales to only citizens of South Dakota.

Reasoning: Court held that when the state is acting as a market participant,they are acting as any other private property and they can decide only to sell tolocal residents. If they go into business using state resources they can goaround the anti- discriminating and burden rule to keep the product in thestate.

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Camp Loophenum v. Main (Tax Exemption; Struck Down)

Facts: The state of Maine set up a program to service Maine residents where alocal resident were entitled to charitable exceptions on their property taxes if

they serviced people within the state but not if the organization servicedexemptions outside the state. The P was a camp that serviced mostly childrenfrom outside the state and brought suit because they were not entitled to thetax exemption.

Reasoning: Court struck law down as discriminatory. There is a distinctionbetween a tax exception and a state subsidy. If the state had been granting astate subsidy they would have been exempt through the market participantdoctrine.

Alexandria Scrap (State Subsidy; Upheld) Facts: State set up program where any instate junkyard that picks up a junk car

will get a bounty for picking it up and recycling it. But, out of state junkyardscould only collect the bounty if they showed title to the car. Out of state

junkyard argued that this discriminated against out of state junkyards. Reasoning: Court said that Maryland was not erecting trade barrier, they were

merely trying to protect the environment and there is nothing to prevent thestate from operating their own program (subsidy or bounty). In doing so, theycan favor their own residents over out of stators. This does not violate thecommerce clause.

Subtopic #3: Privileges & Immunities Clause

Article IV 2: The citizens of each state shall be entitled to all privileges andImmunities of citizens of the several states.

o Meaning: States are prohibited from engaging in certain types ofdiscrimination against citizens of another state.

o You must be a citizen of a state to be protected by Article IV and Aliens and foreigners are not protected under this clause. Corporations are not citizens for purposes of this clause

o The clause is only triggered when dealing with a fundamental righto Even so the discrimination may be upheld if the state can demonstrate

that there is a substantial reason for treating out of statorsdifferently. (Must ask three questions when addressing this issue)

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(1)Does the challenged law affect a fundamental right, privilege, orimmunity that falls within the purview of the clause?

o (1) The right to pass through or travel in a state (travel freely)o (2) The right to reside in a state for business or other purposeso

(3) The right to do business within the state (work freely)o (4) The right to take hold or dispose of property within a stateo (5) The right to speak freelyo (6) The right to contracto (7) The rights enumerated in the Bill of Rights

(2) Is the laws discrimination of a type that is prohibited by the Clause?

o Partially excluding out of stators from fundamental right is considereddiscrimination under this clause.

(3) Does the state have a substantial reason that justifies its

discrimination against citizens of another state?o A law that is discriminatory against a fundamental right is not

automatically invalidated.o If defender of the law is granted the opportunity to justify the measure

by showing that there is a substantial reason for the difference intreatment.

o Test for Substantial Reason: State must show that (1) There is a substantial reason for the difference in treatment;

and (2) The discrimination is closely related to the states objectives,

and there are no less discriminatory or restrictive ways ofachieving the states goal.

Baldwin v. Montana Fish & Game (Non-Fundamental Right)

Facts: A Montana statute restricted the sports hunting of elk to Montanacitizens only.

Reasoning: Court held that because the case regarded sports hunting whichwas not a fundamental right, that it was not protected by the privileges andImmunity clause and could remain instituted.

United Building v. Council of Camden (Fundamental Right; Substantial Reason)

Facts: The Camden city council passed an ordinance that required 40% of allemployees of contractors and subcontractor working on city projects to beCamden residents.

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Reasoning: Court held that the ordinance was in violation of the privileges andimmunities clause because it restricted out of stators right to work within thestate. This was so even though, under the commerce clause, the regulationwould be upheld because the state was acting as a market participant. The case

was remanded back to the state supreme court because it had to be determinedif the state had a substantial reason that would justify such discrimination(burden of proof switches to the state at this point).

Crandall v. Nevada (Right to Travel)

Facts: The state of Nevada instituted a tax on persons leaving the state. Reasoning: Supreme Court held the tax to be unconstitutional on the grounds

that it restricted what the court said was the fundamental right to travel. Oneof the arguments for the right to travel was that it was protected by the

commerce clause but this was not convincing to the court. But rather, it is abasic right that is implicit in our constitutional structure. If you start taxingthe right to travel then the 1st Amendment right to petition the government isdisturbed because they cannot travel to petition. Barriers infringe upon theright to go to Washington and petition the federal government.

Edwards v. California (Right to Travel)

Facts: A California law was passed in the 1930s prohibiting individuals frommoving to California who were not self supporting or holding a job. This was toprevent too many people without jobs from moving to California due to the DustBowl in the Midwest.

Reasoning: Court held that the law should be struck down because it was inviolation of the commerce clause. People had the right to move to get jobs andbetter themselves and that had an effect on the national economy.Furthermore, the right to travel was a fundamental right granted by theprivileges and Immunities clause.

Subtopic #4: The Doctrine of Preemption

Doctrine of Preemption

Valid federal law, including statutes, treaties, executive agreements,

administrative rules, and common law, supplants or supersedes state law that is

inconsistent with the specific terms or overall objectives of federal law.

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Express Preemption: Congress expressly describes the extent to which afederal enactment preempts state law.

o Any state law contrary to that express design will be preempted Implied Preemption Intent of congress must be inferred from the

circumstances.o (1) Conflict Preemption: When a state law clashes with federal law by

imposing inconsistent obligations on affected parties or by interferingwith the objectives of a federal scheme.

Physical Impossibility Congresss intent is implied based on thefact that it would be physically impossible to conform to bothfederal and state standards.

Ex. State statutes mandate that all cancer patients getscripts for weed. Federal law prohibits prescribing weed to

cancer patients. Because you cannot do both, congressionalintent to preempt is implied. Obstacles A state law may conflict with federal law by creating

an obstacle to the accomplishment and execution of the fullpurpose and objectives of Congress. Steps to determine

(1) Identify the federal objective (2) Determine the extent to which state law interferes, if at

all, with the realization of that objective. (3) Considering the strength of the state interest judged by

standards of traditional practice, when deciding how seriousa conflict must be shown before declaring the state lawpreempted.

o Preemption may be more difficult to prove where astate has viewed the issue as within their domain fora longer time as apposed to a new matter.

o (2) Field Preemption: If a state law operates within a field of law thatCongress intends the federal government to occupy exclusively, the statelaw will be preempted by federal law.

Gade v. National Solid Waste Management Association (Conflict Preemption)

Facts: Illinois enacted a Hazardous Waste statute for people working andoperating hazardous waste. It was for the purpose of protecting the workersand the general public. However, there was a federal regulation OSHA whichregulated the same area, but adhered to different requirements. Illinoiscontended that their regulations were for the purpose of policing.

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Reasoning: Court held that the OSH Act preempts all state law and constitutesa direct clear and substantial way regulation of worker and heath safety.Furthermore, the Illinois law did not work with the overall scheme of a uniformfederal standard and stood in the way of full implementation of the federal law.

Nelson v. Pennsylvania

Facts: Congress passed the Smith Act which prohibited the violent overthrowof the US government. After that, each state, to show their patriotism, passedsimilar state laws that were getting the credit.

Reasoning: Court held that although there was no direct conflict between thestate laws and the federal law, Congress had preempted the field andtherefore, the state law was preemptive by federal law.

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VIII. Article II: Presidential Powers

Subtopic #1: Domestic Powers

Lawmaking Powers

Article I 1: All legislative Powers herein granted shall be vested in a Congressof the United States.

o President may recommend legislation or veto measures that have beenapproved by congress.

o President may act as either (1) Executor of the law of the Land; and (2) Commander-in-chief of the armed forces

Power to Execute Law of The Land (If there is no power granted from eithersource, then there is nothing for the President to execute)

o (1) An Act of Congress; oro (2) The Constitution

Commander-in-Chief of the Armed Forces: The President is commander of themilitary (although he does not declare war)

o The President may execute orders, not authorized by Congress, during adeclared war, when they are within The Theater Of War (See WWIIExample)

Presidential Power Speculum (From the Youngstown Concurrent)o (1) Highest Presumption of Power When he acts pursuant to an Act of

Congress

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By express statute or implied statutory authorization Courts rarely will take on both the President or Congress

o (2) No strong presumption against or for power When President inacting on one of his independent power without any congressional

authorization. Congress could have acted but has NOT done so Twig light Zone (fuzzy as to whether president can act or not)

o (3) Minimal Presumption of Power Where the President acts contraryto what Congress has ordered.

Actions will prevail if what the President is doing is within theConstitutional power and is beyond the scope of power congressholds.

o President will also have MORE power when he is of the same political

party as the majority of Congress (President is the leader of his politicalparty) Emergency Situations: The President cannot execute laws that have not been

enacted by the legislature even in the time of a national emergency.o They theory is that through the Constitution, the President has been

granted all the power necessary to deal with an Emergency. Theater of War

Youngstown Sheet v. Sawyer (Domestic Powers/Lawmaking Powers)

Facts: In the midst of the Korean War steal workers began to go on a wartimestrike. Steel was needed for war efforts and for national defense. PresidentTruman issued an order directing the secretary of commerce to take control ofthe steel mills and grant all workers an immediate raise. However, the Taft-Hartley Act governed that the President should get an injunction against theUnion preventing them from striking. The Act had specifically left out, thePresident being able to take over private businesses. However, Truman hadvetoed this act, and being a Democrat, wanted to avoid problems with the Union.

Reasoning: Court held that the action taken by Truman was outside his power.In an opinion written by Justice Black, the court held that the Presidents poweris derived from either an act of congress, or from the constitution.

o The Constitution does not grant the President the power to act outsidesuch grants in the time of emergency. Therefore, because congress didnot enact an act that allowed for such seizures and in fact, had opted outof allowing such seizure when creating the Taft-Hartley Act, thePresident was acting contrary to congress.

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o Additionally, his role as commander-in-chief of the military, did not grantsuch power. Seizing Private American mills was outside the theater ofwar and too remote from the actual war.

o Example of Theater-of-War seizure In WWII the US had possession

of the Philippians and it was known that the Japanese were going toConquer. The President ordered the steel mills destroyed to prevent theenemy from utilizing it to their advantage. This was held to be okaybecause the seizure was made within The Theater of War.

Dissent: Dissent argued that there was a long line of Presidential past behavioracting in such matter. The unbroken pattern of presidential behavior isrelevant to the Constitutionality of such an order and may act as basis forutilizing such power.

Concurrent: Justice Jackson wrote a concurrent (which is often cited to more

then Justice Blacks opinion). Jackson argued that there is a speculum ofpresumption of powers (listed above). He placed Trumans order in a minimalpresumption of power due to the fact that it was contrary to the orders ofcongress due to the fact they had specifically not included authorization ofsuch seizures in the Taft-Hartley Act.

Subtopic #2: International Powers

International Power(s)

The President maintains powers over foreign affairs as derived from the

Constitution and the English Tradition.

Treaty Power: The President can negotiate treaties and then must hand themover to the senate for ratification.

o Termination: At this point, the President may terminate the treatywithout the consent of Congress (based on the idea that appointmentshave to be affirmed by congress but President can terminate themwithout consent).

o Court has held this to be a non justiciable issue because it is a politicalquestion.

Executive Agreements: An accord reached by the President that does not needthe consent of congress.

o Such accords are more likely to be held as constitutional if they aregranted by the use of a power that is already granted to the President.

o Benefits

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(1) Executive agreements can take effect even in the face ofSenate opposition that would doom a treaty.

(2) Even where adequate Senate support may exist, executiveagreements can take effect immediately without delay

o

Deficit (1) If the accord requires the implementation of legislation or

funds, congress may not be willing to go along. (2) Congress may respond by passing a law that overrides the

executive agreement or requires renegotiation.o

Goldwater v. Carter (Treaty Power)

Facts: President Carter recognized the Peoples Republic of China as the sole

government of China; he announced that he was terminating the 1954 MutualDefense Treaty between the United States and the Republic of China (Taiwan).Members of Congress filed suit in federal court challenging the Presidentsaction claiming that a President may abrogate a treaty only with the consent of2/3 of the senate or a majority of both houses of congress.

Reasoning: Court dismissed the suit on the grounds that it was not a politicalquestion. However some judges said that because the Constitution was silent onthe matter he did not need consent. Others thought that based on theappointment termination without consent, the President was granted this poweras well.

Reagan Case (Executive Orders)

Facts: An agreement was made with Iran to release American hostagespursuant to an agreement with the Soviet Union. The agreement allowed fortermination of all charges against Iran prisoners in American courts, andarbitration of claims against them would instead be brought in an InternationalTribunal. One of the companies that had a claim against Iran said thatPresident did not have any authority to make such an order.

Reasoning:

Subtopic #3: War Powers

War Powers

Article I 8: Congress shall have Power to declare War

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o The founders did not want the President (like the King) to be able to leadthe country into a state of war without their consent.

o President acts as commander-in-chief of the armed forces, but mustwait for congress to declare war before entering into battle.

Foreign Invasion (Prize Cases): If a war be made by invasion of a foreign nation,the President is not only authorized but bound to resist force by force.o He is bound to accept the challenge without waiting for any special

legislative authority.o This has been looked at as a curse on the president though, because

they are worried that by not taking action, they are not fulfilling theirduty to protect the nation.

The War Powers Resolution (1973): In the case of national emergency wherethe President cannot consult with Congress before initiating military action, he

must notify Congress within 48 hours after troops have been introduced intothe territory, airspace, or water of a foreign nation, while equipped forcombat, unless the deployment is merely a supply, replacement, repair, ortraining.

o The President is obligated to terminate their use within 90 days UNLESSCongress in the interim has declared war, specifically authorized the useof troops, or extended the 90 day period.

Military Court Marshals: Civilians arrested during times of war cannot be courtmarshaled and tried in military tribunals if they were apprehended outside theTheater of War.

o This is especially so, civilian courts are available.o Heresy evidence WILL be admitted, if due to war it would be

inconvenient to produce witnesses, ect.

The Prize Cases (Presidential Response to Foreign Invasion)

Facts: When the South succeeded from the Union and captured military ports,President Lincoln declared a blockade of southern ports without a formaldeclaration of war from Congress (they had been out of session for some timeand he did not call them back). British ships that were going or coming werecaptured and auctioned. The legality of these captures and the blockade wasbrought to the courts. It was argued that because Congress had not declaredany war, the captures were illegal.

Reasoning: The court held that proclamation of the blockade itself is officialevidence that a state of war existed, which demanded and authorized thepresident to take such measures. The court further held that, if a war be made

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