1
Q
What are the Six Modalities of Constitutional Interpretation?
A
- Text
- Structure
- History
- Doctrinal
- Prudential
- Ethical
2
Q
What is Textual Interpretation?
A
A strict reading of the text of the constitution
3
Q
What is Structural Interpretation?
A
Using other parts of the constitution to provide meaning and context (comparative)
4
Q
What is Historical Interpretation?
A
- Original Intent
- Original Meaning
- Context
- Traditions
Historical evaluation of the framing, ratification, and other actions during the time of the creation of the constitution.
5
Q
What is Doctrinal Interpretation?
A
Stare Decisis - prior interpretations of the constitution by the supreme court.
6
Q
What is Prudential Interpretation?
A
Balancing the costs/benefits of various interpretations to seek the most practical or pragmatic alternative.
7
Q
What is Ethical Interpretation
A
The moral and ethical commitments reflected in the constitution.
8
Q
What is individual sovereignty?
A
The people are sovereign and grant power to the government which limits governmental power.
9
Q
What is the Locke Theory of Governance?
A
- Each person has a state of nature of perfect freedom and equality.
- Government is necessary to enforce the law, fairly without prejudice
- People consent to form and restrict rights to protect life, liberty, and property.
10
Q
What is the Montesqui view of Government?
A
Separation of Powers - checks and balances
11
Q
What are the major outcomes of Marbury?
A
- Constitution is regulatory
- Congress cannot exceed limits of constitution in granting jurisdiction
- Court can compel excutive action for ministerial (legal) duties, cannot for political duties
- Judicial Review - review of legislation for constitutionality
- Appellate Review not Orginal Jurisdiction
12
Q
Categories of Justices
A
- Textual, Structural, Historical - Originalist
- Doctrinal (precedential) - C.L. Traditionalist
- Moral/Ethical - Ethical
- Prudential - Pragmatist
13
Q
What is a case or controversy?
A
Adverse proceeding between litigants
Muskrat - Request for advisory opinion denied
14
Q
What are the 5 limits on Jurisdiction?
A
- Case or Controversy (No Advisory Opinions)
- Standing
- Ripeness
- Mootness
- Not a Political Question
15
Q
What is Standing?
A
A party must be the proper person to bring suit
- Real Injury
- Injury “fairly traceable” to Defendant
- Redressable by judicial action (Remedy by judgment)
Lujan - Future observations of endangered species was too speculative to serve as a real injury.
16
Q
What is Ripeness?
A
A case or controversy whose disposition is not too early or too late for ajudication
17
Q
What is Mootness?
A
A question that has already been resolved, no longer requiring ajudication
18
Q
What is a Political Question?
A
A question whose remedy is best resolved by political action, either through the legislative or executive branches.
19
Q
What are the 3 elements of standing?
A
- Concrete and Particularized
- Causation (Traceable)
- Redressable by Judicial Action
20
Q
What constitutes a concrete and particularized case?
A
- Injury in Fact (Type)
- Actual or imminent, not conjectural (Time)
21
Q
What is concrete?
A
Real not abstract (tangible harm), or ideological harm (government not following the law)
22
Q
What is particularized?
A
- Injury suffered by oneself (subjective injuries are not particularized)
- Violation of a constitutional right is an injury
23
Q
When does a party have standing?
A
- When an injury exists at time of filing (original case)
- No standing, if an injury does not exist at time of filing
24
Q
When is a case moot?
A
- When a case that had standing (injury at time of filing) loses standing because the injury is gone (settlement, withdrawl, etc.) after filing.
- De Funis* - University of Washington law school student’ s challenge to an affirmative action program, where DeFunis graduated before the Supremes could hear it.
25
When does a Taxpayer have standing?
Generally no standing for unconstitutional "tax and spend", exceptions are;
1. A taxpayer,
2. That can show a logical link between the status and issue,
3. A nexus between status/issue and unconstitutionality;
1. Like the Establishment Clause (separation of church and state)
*Flast* - tax and spend for religious aid group
26
Can 3rd Party's have standing?
Generally no, except when:
* no antagonism exists between the 1st and 3rd party.
* That is, they share common interests and identities of rights, or
* there is an obstacle/impediment for the 1st party to bring suit.
*Singleton* - A doctor (third party) brings an action for his patients regarding overly restrictive abortion laws.
27
What are the policy reasons for no 3rd party standing?
1. 3rd parties must assert their own rights
2. Parties (1st and 3rd) may be antagonistic
28
What is "fairly traceable"?
The injury must be plausibly traceable to the defendant.
29
What is redressable?
That a judicial action will have some effect or provide some remedy.
30
What is the Supremacy Clause?
U.S. Constitution is the supreme law of the land
31
What are Adequate and Independant Grounds?
If a case is heard based on state law that is independent of federal law and provides an adequate grounds for relief, SCOTUS cannot review the decision.
32
What is the "State" Plain Statement Rule?
State courts should plainly state that the decision rendered was based only "independent state grounds".
33
What are the Prudential Aspects of Standing?
* Prohibition against 3rd party standing
* General Grievances
* Zone of Interest (in a group a statute was designed to protect)
34
What are the 2 Elements of Ripeness
1. Fitness of the issues for judicial resolution (prevalent legal issue)
2. Substantial hardship to the parties without judicial review
35
What are 3 Factors to consider about Ripeness?
1. Likelihood that the policy will be enforced
2. Present injury
3. Is there a need for further factual development?
2 & 3 are like "Actual and Imminent" in Standing
36
What are the 4 exceptions to Mootness requirements?
1. Collateral Consequences - a secondary/collateral issue that survives the primary issue
2. Capable of Repetition and Evading Review - if the injury can happen again to the same P. (*Roe v Wade*)
3. Class Action Cases - where a member of the class is continually injured
4. Voluntary Cessation - if the D ceases injurious behavior but could begin again at any time.
37
What are the 6 factors of political questions?
1. Separation of Powers
2. Lack of judicially discoverable and managable standards for resolving it
3. Protection of Executive and Legislative Spheres
4. Mutual Respect between branches of government
5. Embarassment from multifarious pronouncements from various departments
6. Adhere to prior decisions of other branches
1, 2, 3 - Are structural
4, 5, 6 - Are Prudential
38
What are the clauses of the 14th Amendment?
* All born or naturalized persons are citizens of the US and state in which they reside.
* No state shall make or enforce any law which abridges the immunities or privileges of US citizens
* No state shall deprive any person of life, liberty, or property whithout due process of law.
* nor deny any person within its jurisdiction the equal protection of the laws.
39
What does the Privileges and Immunities clause protect?
Right and privileges granted as US citizens, access to seaports, right of travel, right to file lawsuits, foreign government infringments.
*Slaughterhouse* - Limited P&I clause
40
What are Public Interest Policies?
Policies which limit rights of individuals to serve the greater common interest, provided the limit is within the (Police) powers of the state and is not unconstitutional.
*Munn* -
41
What types of public interest regulations fall within the states "Police Powers"?
* Public Health
* Safety
* Morals
* General Welfare
*Nebbia* - Price controls on milk during the depression
42
When can "Police Powers" be envoked?
When the government needs to regulate some aspect of public interest.
* Is the regulation/law fair, reasonable, necessary?
* If unreasonable then, unconstitutional or a "violation of liberty"
* If reasonable then constitutional
43
What is the rational basis test?
Would a "rational and fair" person accept the "basis" of the law for the law in question. Routinely applied to socio-economic laws
## Footnote
*Ferguson -* Limiting the business of debt adjustment to lawyers exclusively*.*
44
What is total incorporation?
Assimilation of all bill of rights rights within the construct of the 14th amendment penumbra of liberties, and applied against the states.
*Adamson* - Justice Black's historical and original intent argument made in dissent
45
What is the natural rights theory?
* The social contract gives rise to natural rights.
* Legislative Power cannot infringe on natural rights
* Judicial Split
* Iredell - strict textual reading of natural rights
* Chase - Can go beyond text, to social contract to find natural rights
*Caldor -*
46
What is incorporation?
Incorporating the bill of rights into the liberties asserted by the 14th amendment against the states.
BOR not incorporated against the states:
* 5th amendment - Right to Grand Jury indictment
* 7th amendment - Right to a Jury Trial - *Duncan*
* 3rd amendment - Housing Troops
* 8th amendment - Excessive bails and fines
47
What is selective incorporation?
The selective incorporation of bill of rights liberties, the only ones not currently included are a right to a grand jury indictment, and right to a jury trial.
*Adamson* - Frankfurter's textual and structural argument that you dont need two amendments if the liberties of the first were intended to be fully incorporated.
48
What does the Equal Protection Clause cover?
* Racial classifications (strictly not allowed)
* Classification infringed (race, sex, etc.) or fundamental rights
49
When is strict scrutiny used?
Equal protection clause to undo racial classifications, infringments based on classifications (race, gender, etc.), and abridging fundamental rights.
50
What does the Due Process clause protect?
* Liberty of Occupation and freedom to contract - *Lochner*
* Incorporation of other rights (BOR, Nontextual) - *Adamson*
* Substantive Autonomy Rights (Nontextual) Privacy Rights - *Meyer*
51
What are the steps to review Substantive Due Process?
1. Indentify the right/liberty at issue.
2. Is the right/liberty fundamental or subject to heightened scrutiny?
3. Has the right liberty been infringed or substantially impaired?
4. Apply correct level of scrutiny, strict, balancing test, or rational basis.
52
Who has final authority, SCOTUS or State Supremes?
SCOTUS has final authority over all cases that arise under the laws and treaties of the United States.
*Martin* - Va. ruled one way, SCOTUS the other. SCOTUS won.
53
What are the reasons for no "Advisory Opinions" from SCOTUS?
* Structural - the Constitution prohibits encroachment of the powers of other branches, advisory opinions could result in SCOTUS telling them what to do.
* Prudential - Judiciary should be deciding the constitutionality of actual issues, not hypothetical ones.
54
What limitations can Congress place on SCOTUS?
1. Can impeach justices - *Nixon*
2. Appointed justices are confirmed by Congress
3. Can amend the constitution to overrule SCOTUS
*Ex. Parte McCardle* - Congress can regulate jurisdictional rules.
55
What are fundamental rights?
Enumerated and Non-textual rights that have been determined to be guaranteed by the constitution.
* Precedent
* History
* National Values
56
What examples of fundamental rights?
1. Right to raise your child as you see fit - *Pierce, Troxel*
2. Right to pursue an education - *Meyer* (state prohibition on German language classes)
3. Right of procreation - *Skinner* (forced sterilization)
4. Right to not procreate - *Griswold* (denial of contraception falls within penumbra of rights in BOR)
5. Right to marry (Inter-racial) - *Loving*
6. Right to marry (same sex) - *Obergefell*
7. Right to sexual intimacy (privacy) - *Lawrence*
8. Right to use contraceptives when unmarried - *Eisenstadt*
9. Right to live together as a family -
10. Right to refuse medical treatment as a competent adult - *Cruzan*
11. Right to an abortion - *Roe, modified by Casey*
12. Right to interstate travel - *Saenz, Shapiro*
57
What are Non-Fundamental Rights?
Non-textual rights that are deemed important but not fundamental, these are reviewed as rational basis, or a balancing tests
58
Who has the burden in the rational basis test?
Under rational basis, all laws are considered constitutional unless the **plaintiff** can show that the law is not rationally related to a permissable government interest.
*Williamson* - Regulations for eyeglass prescriptions (Holmes dissent)
59
Who has the burden in "strict scrutiny" cases?
The **government** must show that the legislation is narrowly tailored, that is by the least restrictitve means, to serve a compelling government interest or purpose.
60
What are examples of non-fundamental rights, but protected liberties?
1. Economic rights
2. Grandparents rights to children - *Troxel*
3. Government funded abortion
4. Physician assisted Suicide - *Glucksberg*
5. Marry in Jail
6. Prisoner's right to vote
7. Felon's right to a gun
8. Right to Raise Extended Family - *Moore*
9. Rights of Biological Out of Wedlock Father - *Michael*
61
What is the "undue burden" test?
A balancing test applied to abortion cases which evaluates whether a regulation/statute has the "purpose" or "effect" of placing a substantial obstacle in the path of a woman seeking an abortion.
*Casey* - Waiting period for potential abortion not deemed unconstitutional.
62
What is substantive due process?
Substantive rights not enumerated but contained within the term "liberty" and supported by the 9th amendment.
63
How has the undue burden test been applied to abortion?
## Footnote
*Casey*
* Undue Burden
* Spousal Consent
* Doctor's admitting privileges - *Whole Woman's Health*
* Facilities meeting ambulatory surgical standards - *Whole Woman's Health*
* Not Undue Burden
* 24 hour waiting period
* Providing full disclosure of abortion process
* Providing details of alternatives to abortion
* Written consent
* Tests for fetus viability
64
What was the holding in *Barron*?
Prior to the civil war, the BOR was not applied to the several states, *Barron* confirmed that the BOR only applied to actions of the US government.
65
What was the holding in *Strauder*?
The Supremes applied the equal protection clause of the 14th amendment to strike down a law not allowing african americans to serve on juries. The race based element was struck down, other non-race criteria could be used.
66
What were the *Civil Rghts* cases?
The court construed the 14th amendment as applying only to state actions and not to dicrimination by individuals. In this case public houses (inns, motels, etc.).
67
What was the holding in *Yick Wo*?
The discriminatory **application** of racial neutral legislation was also in violation of the 14th amendment.
68
What was the holding in *West Coast*?
*West Coast* overruled *Lochner* by allowing minimum wage laws to stand for women and children in Washington state. The court specifically said that the 14th amendment "does not speak of freedom to contract."
69
What was the holding in *Carolene* Products?
For economic regulations, apply:
1. Rational Basis
2. Assumption of constitutionality
70
What is important in *Carolene* Products - Footnote 4?
A stronger test may be required than rational basis if:
1. Legislation violated a specific constitutional prohibition.
2. Restricted political processes that could otherwise repeal unwarranted legislation.
3. Resulted from prejudice against discrete and insular minorities.
71
What are types of Political Questions?
* Foreign Affairs, Policy
* War and Executive
* Constitutional Amendment Process
* Impeachment
72
What are the two balancing tests in Substantive Due Process?
1. Undue Burden - Applied to Abortion Legislation
2. Rational Basis with a Bite - Balance between State's Interest and Person's Interests
73
What is Rational Basis with a Bite?
In cases where the government action indicates an **animus** toward a non-suspect group, the rational basis test requires the **state** to show that the legislation was rationally related to a permissable government purpose.
* Cleburne* - Zoning permits not granted to keep a group home for the mentally disabled from being located in the city.
* Moreno* - Unrelated family members not eligible for food stamps overturned due to harming a politically unpopular group
74
What are the steps for procedural due process analysis?
1. Private vs public interest
2. The risk of erroneous deprivation under current process
3. Probable value, if any, of additional or substitute processes or procedures
4. Governments interest, fiscal and administrative burden of the additional or substitute procedures/processes
*Mathews* - termination of disability benefits
75
What are the Steps for an Equal Protection analysis?
* What is the classification?
* Textual/Facial
* Effect/Impact and Purpose/Intent
* Is the classification suspect, or quasi suspect?
* Yes
* Apply Strict Scrutiny
* No
* Apply Rational Basis or Intermediate Scrutiny
76
What are the two frames for Equal Protection classifications?
* The classification difference is based on a "fair and substantial relation" to the legislative objective.
* The most frequent frame is "rationally related to furthering a legitimate government interest."
*Murgia* - Mandatory retirement age of 50 - Rational Basis
77
When is an equal protection class "under-inclusive"?
* When a law does not burden or benefit all those who are similarily situated (same class)
78
When is an equal protection class "over-inclusive"?
* The law extends the benefit or burden not only to those in the class (similarily situated) but to others as well.
79
How rational must rational basis be?
"The state's rationale must be something more than the exercise of a strained imagination; while the connection between means and ends need not be precise, it, at the least, must have some objective basis."
*Logan*
80
What was the holding in *Cleburne*?
A special use permit exclusively for a mentally handicapped group home was not related to any rationally related government purpose. The use permit requirement was meant to be an barrier.
*Cleburne*
81
How big does the class need to be for Equal Protection?
As few as 1
## Footnote
*Willowbrook* - a single property owner prevailed against the city for easement rules only applied to them. The court held that an irrational and arbitrary state action violated equal protection even in a class of 1.
82
What is the purpose of the Equal Protection Clause?
To eliminate all official state sources of invidious racial discrimination in the States.
*Loving*
83
What is the definition of invidious?
Unfairly discriminating, unjust
84
What is the definition of nugatory
Of no value or importance
85
What is the significant difference between public and private interest policies?
* Individuals give up some of their rights when the liberty/property is within the public sphere.
* Inviduals have stronger protections from government intrusion in the private sphere.
86
What is the modern definition of "Liberties"?
Anything that is implicit in the concept of ordered liberty.
87
What are the factors to overrule "Stare Decisis"?
* Workability
* Is the law working?
* Reliance
* Is the law being relied on?
* Undermining legislation with the doctrine
* What ripple effect would this have on other laws?
* Whether the facts/basis of ruling has changed
* Has time changed the need for the law?
88
What constitutes "Property"?
* Real Property (Land)
* Pecuniary Property (money)
* Chattels (Stuff)
* Legitimate Claim or Entitlement to Government Benefits
* Welfare
* Social Security
* Job in some cases
89
What are the general aspects of procedural due process?
* Once an individual has been given a "life, liberty, or property" interest by the State, the State cannot limit without proper procedural due process.
* Decision maker must be impartial, biased judge violates procedural due process.
* A lack of proper opportunity to be heard when interests are being limited, violates procedural due process.
90
Which Amendment applies to Equal Protection?
* Federal Discrimination - 5th Amendment
* State Discrimination - 14th Amendment
91
What is Affirmative Action?
Class (Race, Gender, Ethnicity, etc.) based policies to assist historically disadvantaged (minorities) classes to redress prior discrimination (socio-economic status).
92
What are some arguments against Affirmative Action?
* The Constitution is color blind
* Racism in any form or direction is outlawed
* We can remedy specific instances of racism with race-based laws
* Punishing current generations of white citizens as a result of past generations actions is wrong
* Equal Protection clause guarantees a fair process, not any specific outcome
93
What are some arguments for Affirmative Action?
* The Constitution is really not color blind
* Despite our best intentions, racism still persists in society
* The disparity between classes of citizens based on race still exists and needs to be fixed.
* Affirmative action is qualitatively different, closes the disparity gap
* Equal Protection clause guarantees equality of outcomes/results.
94
What is the difference between equality and equity?
95
What are the Affirmative Action Cases?
* *Bakke* - Diverse Student Body a compelling Gov't Interest (but no quota), immutable traits or stereotypes not allowed.
* *Croson* - 30% Minority Set-Aside deemed unconstitutional and did not achieve the aims of the program (no evidence of remediation of past harm) Quota did not match labor market
* *Grutter* - Quota's are impermissable, program must;
* Flexible versus mechnical or categorized
* No undue burden
* Serious consideration of Race neutral alternatives
* Not indefinite, duration until compelling Gov't interest met (critical mass)
* *Gratz* - Mechanical system deemed unconstitutional
* *Parents Involved* - Program classified children by race and re-assigned to promote diversity. Found unconstitutional
* *Fischer* - Multiple means available to be considered, race not only consideration.
96
What are the Equal Protection Alienage exceptions?
* Cannot exercise political rights, cannot be engaged in "Political Functions" like:
* Probation Officers
* School Teachers
* Police
* Appointed Officials making Policy Decisions
* Actions taken by the Executive or Legislative branches
* Unlawfully entered and remaining
* Except children cannot be denied education
*Bernal* - Non-resident notaries are okay (ministerial function)
97
What are the rights afforded fathers (parents)?
* Biological + Relationship = Fundamental Right to Parental Relationship
* Biological + Relationship + Adulterous = No fundamental right (Rational Basis)
*Michael* - Right of out of wedlock father to have a relationship with biological children
98
Is Societal Discrimination enough for Equal Protection?
Societal discrimination not enough, must be direct discrimination by the government
99
What is State Action?
When acts of private individuals can be attributed to the government so that we can hold the private actor to constitutional standards.
100
What are the four ways a private action qualifies as State Action?
1. When private party takes on a **Public Function** - *Marsh*
2. **Coercion or Significant Government Encouragement** of a private party - *Shelley*
3. **Symbiotic Relationship** between private party and government - *Burton*
4. **Entwinement** of private party and government - *Brentwood Academy*
101
What does it mean for a Private Party to take on a Government Function?
When a private party engages in actions traditionally or exclusively reserved to the state. Takes on what the state does.
*Marsh* - A private company town that takes on characteristics of a municipality, is subject to state action.
102
What does Coercion or Significant Government Encouragement mean?
* A private action is discriminatory
* Assistance by Government is necessary to implement
* Purpose to evade Constitutional requirements
*Shelley* - Sale of property to black buyers when the deed restricted sales to white only.
103
What is meant by Symbiotic Relationship (Significant Involvement / Joint Participation) in State Action?
A private actor who is in a "mutually beneficial" relationship with the Government can be a state actor.
* Must show the relevant contact between the state and private party.
* State must be a partner or joint venturer
* A nexus between the state and act at issue.
*Burton* - Private coffee shop in public parking garage that refused to integrate.
104
What is meant by the Entwinement doctrine in State Action?
When the private actor and government are so entertwined as to be indistinguishable.
## Footnote
*B**rentwood Academy* - Private high school sport regulatory body contained so many state employees to essentially be a state group.
105
What was the essential holdings in the *Civil Rights* cases?
* 14th amendment prohibited state discrimination
* Discrimination between private individuals was not covered by the 14th amendment
* Remedial or corrective power against state action discrimination.
106
What are the important holdings in *Shelley*?
* Government enforcement of private discrimination a constitutional violation
* A private discriminatory practice is not unconstitutional until the state gets in involved
107
What does Free Speech embrace?
The government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.
Exceptions:
* Obscenity
* Incitment
* Fighting Words (Provocation)
* Speech Integral to Criminal Conduct
108
What is the *O'Brien* Test?
For Speech that is conduct, three factors are considered to determine if regulation violates free speech
1. The regulation must further an important or substantial government interest
2. The government interest must be unrelated to the suppression of free expression
3. The incidental restriction on alleged freedom must be not great than is essential to the furtherance of that interest.
109
What are the steps to evaluate a 1st amendment question?
1. Is the issue based on the content?
1. If yes, then strict scrutiny applies unless in an excepted category
2. If no, then intermediate scrutiny is applied
1. If Conduct, then *O'Brien* Test
110
What does "content based" mean in 1st Amendment terms?
"Content based" asks how the expression (message) affects the listener.
* Text/Face
* Justifications
111
What does Religious Liberty protect?
* Establishment Clause
* Cannot discriminate among religions
* Excessive government favoritism toward religion
* Free Exercise Clause
* Belief (no prohibition)
* Conduct can be prohibited
* Neutral law generally applied - NO FREE EXERCISE CLAIM
* Targeted non-neutral - Strict Scrutiny
112
What must a petitoner do to obtain a higher level of scrutiny in equal protection cases?
* Challenger must establish;
* Classification is intentional
* Purpose to discriminate
* Disproportionate effect not enough to trigger higher scrutiny
*Washington v. Davis* - Police qualifying test's effective discrimination not enough to establish strict scrutiny without intent
113
What are important equal protection cases?
* *Washington* - Police qualifying test not found as equal protection violation, no intent
* *Village of Arlington Heights* - denial of low income multi-family housing in a single family residential development not discriminatory
* *Feeney* - Upheld inherently biased Veterans preference due to disproportionate number of men versus women veterans (found no intent to discriminate)
114
Which Amendment covers private actions?
The 13th's ban on slavery and indentured servitude apply to state and private entities.
115
What three areas can Congress regulate with respect to Interstate Commerce within the Commerce Clause?
1. Channels of Commerce
2. Instrumentalities of Commerce
3. Activities which have a Substantial Relation to Interstate Commerce
116
What are Channels of Interstate Commerce?
Modes of commerical activity, like internet sales, or products which originate in one state and are sold in a different state.
117
What are instrumentalities of Interstate Commerce?
The actual means of moving interstate commerce around, like trucks, rail, ships, internet.
118
What are the factors to determine if an activity has a **substantial** **relation** to Interstate Commerce?
* Regulated activity is commerical in nature
* If Congressional statute contains a jurisdictional element
* Congress reasonably found regulated activity substantially affects interstate commerce
* Link between interstate commerce and regulated activity is not too attenuated, that is too remotely connected.
119
What is a jurisdictional element?
A simple phrase added to a statute that requires the regulated activity to substantially affect interstate commerce.
120
What are some areas of law generally reserved for the states?
* Family Law
* Murder/Crimes of Violence
* Private Cultivation/Consumption
* Primary School Standards
121
What is the vacuum theory
Every place is subject to legislation, state, federal, or both. There can be no place where a legislative vacuum occurs.
122
What was the holding in *Whole Woman's Health*?
The court used the **undue burden test** to strike down laws that were viewed as placing an undue burden on women seeking an abortion.
* Doctors must have hospital admitting rights
* Abortion facilities must meet ambulatory care standards
123
What is Heightened Scrutiny?
A balancing test that weighs the State's interests against a Person's interests. Applies a fundamental right analysis to a non-expressed privacy right.
Lawrence - law criminalizing gay sodomy
124
What is a fundamental **difference** between the Commerce Clause and the Tax and Spend power of the Federal Government?
* Commerce Clause is **direct** action to regulate activities. Cannot be refused
* Tax and Spend is **indirect** action via conditions on money received from the Federal Government and can be refused.
125
What does the necessary and proper clause allow Congress to do?
* Whatever means are necessary and proper to carry out its enumerated powers.
* McCulloch v Maryland*- The establishment of a national bank would be necessary and proper to further Congress's monetary powers.
126
What are the required elements of the Necessary and Proper Clause?
* Legitimate ends
* Within Scope of Constitution
* Appropriate
* Adapted to that end
* Not prohibited
* Within Letter and Spirit of Constitution
127
How many states are needed to satisfy the "interstate" requirements of the Commerce Clause?
* Commerce among the states usually means more than one
* Could just be one if the activity is located in a single state but affects interstate commerce
* Activities entirely within a single state that do not have an interstate commerce component are excluded from Congressional regulation
## Footnote
*Ogden*
128
What are the elements of the Commerce Clause (modern), post *Wickard*?
* Activity has a **substantial affect** on interstate commerce - *Wickard*
* Individual acts **taken cummulatively** affect interstate commerce - *Wickard*
* Congress has **deference to determine** for itself that the act has a substantial affect on interstate commerce. - *Heart of Atlanta, Katzenbach*
129
What standard does Congress need to meet with respect to Commerce Power regulation?
* **Rational basis** to find that action substantially affects interstate commerce
* That the selected means (regulation) meets the legitimate ends
130
What is the Marshall test for Separation of Powers?
* End,
* Means that are necessary,
* adapted toward useful end
* and proper
* not prohibited by constitution, within letter and spirit of constitution
* that is legitimate within the scope of the constitution
* Necessary and proper clause extended enumerated powers, not a power of its own.
131
How does an executive agency (IRS, EPA) get its power from Congress?
1. Bicameralism and Presentment - Formalistic
2. Non-Delegation (or Intelligible Principle) Doctrine
1. General Policy
2. Public Agency is to Apply it
3. Boundaries of the delegated authority
3. Separation of Powers
1. Appropriation of powers (Agrandisment)
2. Shrink powers of other branches (Encroachment)
4. Appointment/Removal Procedures
132
What are the President's enumerated powers?
* Veto - After Presentment
* Commander-in-Chief
* Pardon (Federal Crime)
* Treaty (Executive Agreements)
* Appointments
* Execute the laws
* Receive Ambassadors
* State of the Union
133
Can the President make laws?
Executive Orders must have a base in President's Powers
* Enumerated
* Bicameral/Presentment (delegated by Congress)
* Impoundment
* Discretionary Spending
134
What is State Sovereignty?
No suits by citizens of of same/different state against a:
* state (arm of the state) in **federal** court
* state (arm of the state) in **state** court - *Alden*
*Alden* - Overturned FLSA provision allowing citizens to sue states in state courts.
135
What are the exceptions to state sovereignty?
* Consent (established within Tax and Spend)
* Filed against individual office holders (ex. parte Young)
* States v States, US v States, Another Sovereign
* Congressional abrogation of immunity by statute
* Cannot under Article I power
* Can under 13, 14, 15th amendments
136
What is the Privilege and Immunities Clause of Article IV?
Non-discrimination principle - States cannot discriminate against out-of-state citizens (not corporations) with respect to fundamental intersts:
* Is the interest fundamental to:
* Interstate harmony
* Interstate economic unity
* Is the regulatory scheme:
* Substantially related to
* a substantial governmental interest justifying the discrimination
* Piper* - Denied entry to New Hampshire bar as Vermont citizen
* McBurney* - Freedom of information act for Va citizens upheld
137
What is the Dormant Commerce Clause?
The clause prohibits state protectionism through discrimination against out-of-state commerce.
* Textual, or
* Purpose, or
* Effect
* Dean Milk* - Prohibiting out of state milk in Madison Wisconsin
* Oregon Waste* - Waste disposal surcharges overturned
138
What are the elements of the Dormant Commerce Clause?
Does the law discriminate against out-of-state commerce
* Yes - Law presumed invalid, unless it is necessary to serve a legitimate interest (no protectionism)
* No - Presumed valid, struck down if burden on interstate commerce is much higher than the benefits
139
What are the exceptions to the Dormant Commerce Clause?
* If the state is a market participant it can discriminate
* Congress can approve discrimination
140
What are the three ebbs of Presidential Power defined by Justice Jackson?
* Congress agrees with Presidential Action - Highest level of presidential power
* Congress silent about Presidential Action - Twilight (limited period) of presidential action
* Congree disagress with Presidential Action - Lowest level based exclusively on presidents enumerated powers
141
What are the two types of treaties?
* Self-Executing
* Requires no additional government action to take effect
* Non Self-Executing
* Requires legislative action (implementing statutes) to take action
142
What is the standard for pre-enforcement Ripeness of an Administrative Regulation?
* An administrative regulation whose implementation is imminent
* Substantial likelihood of enforcement
143
What is the Establishment Clause
NOT TESTED
The government shall not make laws "respecting the establishment of religion"
144
What are the three factors to challenge the Establishment Clause?
NOT TESTED
* The law must have a secular purpose
* The law must be nuetral to religion
* The law must not foster an excessive government entanglement with religion
145
What was the holding in *Youngstown Tube and Sheet*?
The president cannot exercise power beyond that enumerated by the constitution without Congressional delegation
146
What is the aggregation effect in Interstate Commerce?
Even small consumers in a single state can be subject to the Commerce Clause if the aggregate effect of all of the individual actors has a substantial affect on commerce.
## Footnote
* Wickard* - Wheat
* Raich* - Home grown sticky icky,
147
What is the test for Congressional conditions to states on spending grants?
* General Welfare
* Unambiguous Condition on State Funds
* Related to a Federal Program
* Cannot violate another Constitutional Provision
148
What does the Commerce Clause regulate?
Interstate Commerce
* Can regulate or prohibit commerce
* Cannot force individuals/companies to produce
149
Can Congress use the N&P clause against the states?
* 13th Amendment, § 2
* Against individuals - Slavery
* 14th Amendment, § 5
* P&I, DPC, EPC
* Against state actors (must be state action before congressional regulation)
* 15th Amendment, § 2
* Voting Rights
* Enforce by appropriate legislation
150
What is the test for the application of the N&P clause against the states?
* Identify the Right that Congress is trying to protect/enforce
* History of past Constitutional violations
* Congruence/Proportionality
* Is the remedy **necessary/appropriate** to stop future violations of the constitutions?
* Is the remedy a proportionate response to the harm?
151
What is Federalism?
A balance between the Supremacy Clause (Preemeption Doctrine) of the constitution and 10th/11th State Sovereignty Amendments.
152
What is executive immunity?
While president, cannot sue the president for liability for official acts and the collateral effect of the acts.
* Acts occurring before being president can be pursued - *Clinton*
153
What is executive privilege?
**_MC_**
Some actions of the president are subject to privilege, especially in the areas of National Security, etc..
* The judiciary will apply a prudential balancing test to determine
* The need for the information, versus
* The need to keep the information secret
* The information will be reviewed in-camera by the judiciary and the information assessed for privilege.
*Nixon* - Watergate tapes
154
What is Historical Gloss?
Judge Frankfurter suggested that presidential action:
* should be viewed with an historical gloss to determine the actions that presidents had traditionally taken (historical modality).
* Even for those acts that the president might not have direct authority, the historical precedent would suggest authority. (Presidential squatter rights)
155
What is Preemption?
**_MC_**
Federal law preempts state law due to the Supremacy Clause
* If a state statute and federal statute are in conflict, feds win
* Pacific Gas* - California provision limiting nuclear power plant construction until waste disposal is addressed upheld
156
What are the types of Preemption?
**_MC_**
* Express (stated) Preemption - All state laws are preempted
* Legislation
* Executive Order
* Administrative Rule
* Implied (not stated) Preemption -
* Field Preemption - If the feds occupy the entire field, then preemption (Nuclear Energy)
* Conflict Preemption
* Impossibility - statutes are at odds, feds win
* Obstacle - state law is an impediment to federal action.
157
What are the two main theories of the 11th Amendment and Immunity
* Diversity
* Citizens of another of state cannot bring suit against a state in federal court - **Minority**
* Immunity
* States (and arms of the state) are immune from suits brought by in-state citizens and citizens from another state. - Majority
158
What are the § 5 Enforcement Cases?
* *Boerne* - RFRA found unconstitutional when applied to the states when not discrimination was being remedied, denial of a building permit to a catholic church
* *Garrett* - ADA compliance by UA was overturned not allowing recovery from the arm of the state
* *Hibbs* - Equal application of FMLA was found to be within congressional enforcement power
* *Lane* - Tennessee immunity was abrogated by the ADA when it was need to ensure access to a courthouse.
159
What was the holding in *Katzenbach*?
The voting rights act of 1965 was found to be a valid exercise of Congressional enforcement (15th Amendment)
* The use of a "test" to qualify for voting
* if less than 50% of the eligible voters could vote
* The test would be suspended until such time the discrimination was remedied
* A judicial panel would review "preclearance" of any changes to the state voting laws for offenders
Con Law Rhodes
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