Con law cases

• Court has the authority to shoot down Congressional mandates that are unconstitutional
• Court can review acts of executive when there is a duty to act/when a personal right is at stake

• Courts can only make law when there is a case or controversy

• The court’s job is to interpret rules and say what the law is

• Constitution is superior to all other laws

• SCOTUS can review state court decisions on issues of federal law

• Court uses tools: founders’ intent, text of constitution, public policy, structure of government

• N & P clause does not require absolute necessity, just need an appropriate link between power granted and method Congress choses to effectuate it

• Broad reading of N & P clause that gives Congress discretion

Congress’ CC power is plenary with the only check being the political process

Marshall is struggling to find room for state regulatory power and permits it here allowing local law to authorize the damming of creeks

Takings clause only restricts federal gov & doesn’t apply to states

CC power is not exclusive, but only in the limited narrow exception of Congress delegating power re: pilotage in local ports

• First application of substantive due process

• Originalist method of analysis focusing on framers’ intent upholds slavery

• Can be a citizen of a state without being a US citizen

• Court reads Article III to mean that the court does not have appellate jurisdiction unless it is granted by Congress

• Court makes it clear that Congress cannot remove all habeas jurisdiction

Court makes it clear that it will read statutes in which Congress purports to strip jurisdiction very narrowly to minimize jurisdiction removed and avoid destroying court as a co-equal branch of government

• Limits Congress’ ability to strip court of jurisdiction

• May have been more about Congress interfering with executive power to pardon

• See Robertson v. Seattle Audobon

• 2 classes of citizens (fed & state), so 2 classes of Ps & Is (fed & state)

• Failed attempt at incorporation that rendered the P & I clause irrelevant except in context of right to travel

• Last time court gives serious thought to civil rights

• Complete end of reconstruction

• Federal public accommodations statute struck down

Manufacturing ≠ commerce

Direct vs. indirect effects on interstate commerce

Segregation is legal and if blacks feel unequal it’s in their heads

Court looks at intent to sell in determining interstate commerce effects. Court is drawing fairly arbitrary lines to balance CC & 10th A.

• Court implies a right to contract in Due Process Clause

• Analysis: (1) establish that state’s exercise of police power responded to health & safety concerns, (2) demonstrate regulation was reasonable

Lochner applied but law passes test

Court can only hear cases and controversies brought by those with standing

Idea behind CC is to prevent states from regulating in ways that harm interstate commerce by hogging commerce for the state

Court focuses on Congress' intent in analysis

Lochner applied – state exceeded limitations of power in furtherance of goal to foster homogeneous people by forbidding teaching German

With Meyer, extended concept of liberty beyond economic due process and into area of personal and family autonomy

Congress must provide statute with intelligible principle for directing agency to act in a certain way in order for the statute to withstand a non-delegation claim

New Deal statute struck down because goals were too broad

Court immunizes certain positions from being removed by president at will

• Even if a state has perfectly legitimate reasons for a law, the state can’t use illegitimate means and the law can’t (1) have extraterritorial effects or (2) discriminate against interstate commerce

• Sometimes local legitimate goals have to give way to greater national goal of facilitating interstate commerce

Directness, not magnitude of effect on interstate commerce matters

Discrimination between name brand and off brand milk is ok because statute reflects the real price differences found in the unregulated market

Discrimination between already existing and future off-brand milk violates equal protection because it is an artificial distinction that wouldn’t occur in the unregulated market

• With Nebbia, established deferential review

• Freedom of contract isn’t in the Constitution

• Regulation is due process if it is: (1) reasonable in relation to its subject and (2) adopted in interests of community

Court focuses on extent of effect, not directness

Framework for incorporation: (1) Is right of the very essence of scheme of ordered liberty? and (2) does abolishing right violate principles so rooted in traditions as to be ranked as fundamental?

• Does away with regulatory exclusivity

• Footnote 2 – when a statute mainly harms outsiders who can’t access political process, it will typically be struck down; however, if in and out of state parties are affected, deference

• Gets rid of formalistic line drawing and looks at whether law primarily burdens out of state parties

Deference (rational basis review) is used unless (1) political process is impeding itself or (2) prejudice against discrete and insular minorities

Aggregate effect of small textile companies

Replaces old test with substantial effects test

Congress must have rational basis to believe that in the aggregate personal wheat can have substantial effect

• Goals and tools in statute were narrower than in Schechter, so upheld

• Delegation was to agency and there were specific guidelines and dates

• Strict scrutiny because racial classifications, but compelling government interest in national security wins

• Dissent applies Carolene discrete and insular minority rule

• No deference used because almost all parties affected are out of state

• Great burden on interstate commerce suggests discrimination

• National uniformity is essential in RRs

14th A does not incorporate whole Bill of Rights, only ones implicit in concept of ordered liberty (Palko)

• Extreme deference upholds statute re: advertising on the side of trucks

• Best way to prevent arbitrary and unreasonable government is to make sure laws apply to all because majority must burden itself to burden minority

• Strict scrutiny with a twist to smoke out bad intent – statute must be narrowly tailored to further a legitimate health and safety goal

• If there are other ways to further legitimate goal, but state chooses method that regulates interstate commerce, bad intent is implied

• Executive cannot create laws

• Jackson’s concurrence: Categories of Executive powers: (1) president acts pursuant to authorization of Congress, (2) Twilight area – president acts in absence of Congressional grant or denial of authority, (3) president acts in direct conflict with Congress’ will

Segregation struck down, but strict scrutiny isn’t used because don’t want to make black people a suspect class because of marriage and Jim Crow

There is an EPC in the 5th A

Schools must use all deliberate speed to desegregate

• Only SCOTUS’ interpretation of the constitution matters and decisions made in cases are binding on everyone and become supreme law of the land

• Brown means all schools must integrate

Mud flap statute struck down even though non-discriminatory because interstate highway system has started so national uniformity is essential

Factors to determine whether something is a political question: Article III Factors (1) Textual commitment, (2) lack of legal standards, (3) policy judgment, Prudential Factors (4) finality, (5) embarrassment, and (6) lack of respect for a coordinate branch

CC used for public accommodations for race

CC used to integrate restaurant

• Penumbras analysis to support right to privacy

• Contraceptives allowed for married couples

Court upholds provision of Voting Rights Act even though Congress seems to have been interpreting the 14th A

• Interracial marriage is allowed, putting the final nail in the coffin of Jim Crow

• Unclear what this means: (1) race lines are bad, or (2) race lines are bad when they oppress

Criteria for incorporation: Is right fundamental to the American scheme of justice? (Palko)

No more freedom of choice plans - states created segregation problem, state has to affirmatively fix it

Balancing test: Absent discrimination, a law will be upheld unless the burden imposed on interstate commerce is clearly excessive in relation to the local putative benefits

Areas district court can control: faculty and staff, school construction, transportation, extracurricular activities, facilities

• Expands Griswald to individual right to privacy

• Contraception allowed for all

• Unsuccessful attempt at making women a suspect class, but strict scrutiny is still used

• Suspect class factors: (1) history of discrimination, (2) characteristic is immutable, (3) current lack of political power

• Strict scrutiny
• Balancing interests of government with fundamental right of woman

Plaintiff had burden of establishing that school had discriminatory intent and that the segregation was intentional

Can’t make a suburban district that was not part of the segregation problem part of the desegregation solution

• Standing: (1) Injury, (2) Causation, (3) Redressability

• Cannot assert someone else’s injury, but can assert someone else’s legal claim

• Cannot assert 3rd party rights (prudential rule)

• Agency has standing if (1) member has standing, (2) issue is germane to the reason the association exists, and (3) injury can be redressed without the injured member being party to the suit.

• For standing, causation between D’s act and P’s injury must be demonstrated

• Look for other possible causes of P’s injury

Retrospective relief is available under the enforcement clause of the 14th A

Court makes exception to prudential rule against asserting 3rd party rights in abortion case because (1) close relationship between rights holder and 3rd party and (2) limited ability of rights holder to assert own claim.

• Strict scrutiny applied to broadly characterized fundamental right to family (living together)

• Risk of going back to Lochner but look at history and tradition

Courts cannot control districts that have already been given a clean bill of health

Fact that law has disparate impacts based on race is not enough to make it discriminatory – must demonstrate discriminatory intent of law

• Intermediate scrutiny applied to sex classification re: alcohol

• Suspicion of stereotypes is a factor in striking down classification

• When there is proof of discriminatory intent, no deference

• Factors that indicate intent: (1) legislative history, (2) departure from normal procedure, (3) departure from substance, (4) pattern of racially disparate impact, (5) specific sequence of events leading to legislation, (6) historical background

• Proving intent: Step 1 – burden on P to show that race was a factor motivating action; if P fails, no discrimination, if P succeeds, Step 2 – D has burden to show the decision would have been the same even in the absence of discriminatory intent

• Congress can cast a broader net and ban a broader amount of conduct to ensure that violations will be caught

• Wide net becomes known as Congruence and Proportionality standard

Rational basis standard and deference on steroids used to uphold classification of RR retirees

• Benefit-burden balancing is done in a perfunctory manner

• Looks at affect on commerce, not on participants, implying that the DCC doesn’t explicitly protect out of state participants, just interstate commerce

• Analysis of burden on in-staters vs. out of staters is done in step 2 (benefit burden analysis) not just step 1 (discrimination analysis) implying that the distinction between the benefit burden test and the discrimination test is not as clear as expected

Intermediate scrutiny used on sex classification re: statutory rape

• Sex classifications based on real differences (i.e. pregnancy in relation to draft registration) may not be unconstitutional

• If legislature seems to have given good faith thought to classification, court is more likely to defer

• Uses three categories approach to presidential power from Youngstown

• Category 1 since presidential authority is presumed in the absence of disapproval in foreign affairs

P must demonstrate actual injury in fact for standing

• Presentment Clause requires all bills to be presented to the president to sign or veto

• Bicameralism requires that bills be approved by both the house and senate

• Majority = brightline approach to role of courts; dissent = functional approach

If a case appears to involve a federal question, SCOTUS can review unless state court puts in a disclaimer that decision was based on state constitution

• Chevron two step: (1) Is the statute clear? If yes, apply it; If no, (2) defer to any reasonable agency’s interpretation

• Court cannot substitute it’s own statutory interpretation for a reasonable agency interpretation

Rational basis + used to strike down law even though MR are not a suspect class

• Factors to determine if an agency court is constitutional: (1) Does it have the essential attributes of an Article III court?, (2) The nature of the right (article I courts can adjudicate public rights, not private ones), (3) What are the reasons for the Article I court? (focus on convenience, efficiency, and specialized knowledge)

• Majority = functional approach to role of courts; dissent = brightline approach

Sodomy statute that burdened all, not just gays (minority) is upheld

• Strict scrutiny cannot be used on every statute that has racially disparate impacts because that would be most statutes

• Equal protection rights are individual rights, not group rights; individual rights are violated by de jure race lines, but not necessarily by de facto race lines

• Congress places limits on president’s power to appoint those who execute laws – Congress can appoint inferior officers

• Factors: How much power is removed?, Core powers?, Is Congress trying to grab powers?, Is there a god policy reason for limiting power?

• Majority = functional approach to role of courts; dissent = brightline approach

Liberty interest is narrowly defined so right is not deemed fundamental based on history and tradition analysis

• Strict scrutiny is used to smoke out bad intent even though race classification is being used to benefit minority because race lines are bad

• Government interest to remedy past discrimination is not compelling in the absence of evidence that there was past discrimination

• State must try to use non-racial means of addressing problems first

• State race based action is more concerning than federal because 14th A is a explicit limit on states but a grant of authority to feds

• Court says army guy can’t get kicked out for being gay

• Looks at suspect class factors: (1) History of discrimination, (2) immutability, (3) political powerlessness

• Applies suspect class factors and finds homosexuality is not a fundamental right

• Courts have given up on Carolene

If law applies to all and doesn’t aim to burden religious exercise it is Constitutional

Undue burden analysis

• For standing, injury must be either already existing or imminent

• Majority = brightline approach to role of courts; dissent = functional approach

• Whatever Klein means, it doesn’t mean that Congress can’t amend statutes after the fact, even when doing so is specifically aimed at influencing the decision of a pending case.

• Reads Klein narrowly

• Courts can stop overseeing desegregation if (1) district is making a good faith attempt and (2) it would be impractical for court to continue supervision (with presumption being against continuing)

• Once a court gives up control, it can’t regain control even if resegregation starts happening

Baker factors applied to determine that court can’t intervene in congress’ impeachment of a judge

For standing, an injury of lost opportunity is typically only permitted in equal opportunity claims

• Majority says flow control ordinance is discriminatory so no need for balancing test

• Dissent says no discrimination, and uniformity is important in this area so regulation should be upheld

District cannot make black schools more attractive to entice white kids because (1) can’t make suburban schools part of remedy if not part of problem and (2) additional funding needed to make school better is too far removed from the goal of desegregation

• Old view of 10th A making a comeback

• Scrutiny: Is law regulating an economic activity? If yes, use rational basis; If no, look at other factors: part of broader regulatory scheme of economic activity, jurisdictional element, legislative findings

• Court uses intermediate scrutiny + (exceedingly persuasive justification of actual interest) to strike down policy of only admitting men to military school

• No strict scrutiny for gender because of real sex differences

Court applies what looks like strict scrutiny to strike down statute preventing gays from claiming discrimination because statute was both to broad and too narrow to fit the valid state interests and the statute was based on hate against a group with a history of discrimination

• Congress can enforce Court’s interpretation of 14th A, but cannot interpret it themselves

• Gets rid of Morgan

• Must be congruence and proportionality between injury to be prevented or remedied and means adopted to that end

Narrowly defined “right to commit suicide” is not fundamental so rational basis standard is used

Congruence and proportionality applied, but problem is small since disabilities only get rational basis review, so ADA is deemed too broad

• Congress can have an agency reinterpret a statute to avoid a supposed delegation of legislative power

• Some justices are dissatisfied with the intelligible principle standard from Hampton

• Court uses intermediate scrutiny of hypothetical interest to uphold gender classification for citizenship

• Dissent: Virginia intermediate scrutiny + is the appropriate standard

Congruence and proportionality applied and problem is bigger because sex discrimination gets intermediate scrutiny, so FMLA is upheld

• Sodomy statute is struck down when rational basis that looks like strict scrutiny is applied to broadly characterized right to engage in intimate contact in privacy of home

• Court never calls this a fundamental right to avoid gay marriage and end of DADT

Court claims to apply strict scrutiny to affirmative action claim but defers to educators to determine interest, presumes the use of race is benign, and doesn’t require that race line be last resort

Quota system for affirmative action is bad since it focuses on group, not individuals

• Statute can be read broadly because it involves international issues, but instead is read narrowly to pertain to individual rights

• Habeas corpus applies to prisoners of war

Congruence and proportionality applied and problem is big because it is a fundamental right for everyone, including disabled people, to access courthouses

• Aggregates effects of homegrown marijuana

• Economic activity includes production and consumption

• Court says outlawing type of partial birth abortion places no undue burden on women and furthers state interest

• Court claims not to defer to Congress’ factual findings, but appears to do so anyway

Can’t remedy past discrimination when schools have either never been segregated or have been given a clean bill of health