STANDINC
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CL 1
General Principles
A. Constitutional (p. 37)
1. Actual injury (concrete, personalized, can he non—economic)
2. Causal relation between injury and delëndant AND
3. Likely to be redressed by court decision.
13. Prudential (p. 48)
I. No third party plaintiff (except obstacle and close relationship)
2. No generalized grievances
3. Plaintifl in zone of interests (usually’ statute)
II.
Application of Generalized Grievances
A. Taxpayer
• l”rothingham is general rule no standing
a. Flast exception
• Must be challenging legislation Art. 1, section 8 (Congressional
appropriations)
a. Valley Forge, Schlesinger, 11cm And
2. Must he claiming a speci tic Constitutional guarantee (maybe only
Establishment Clause)
a. Richardson, I 1cm
[3. Citizenship status No standing allowed on this basis
C. No possible P not grounds lbr standing
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Ill.
Congressional grant of standing
A. Allowed if recipient is personally entitled Congress can’t delegate power to
enforce laws or permit a general citizen interest in laws ol procedures being
enforced. Must be a specific interest (see page 35 in Lujan), hut can he widely
shared (see Akins page 45).
13. USSC can’t invalidate Congressional grant of standmg on prudeiflial grounds,
only Constitutional.
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IV.
2013 Cases
A. Future injury = certainly impeding (Clapper)
13. Executive refuses = Do third parties have standing to defend?
1. No standing to defend on state law (ilollingsworth 5/4)
2. Standing to defcnd in federal law-need authorization? (Windsor
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6/3)
FEDERAL JUDICIAL POWER
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CL 2
A. Souiteof Power— Coast. Art. III. Sec. 2
Subject matter I imit
2. Must be case or controversy
a. Advisory Opinion
b. Standing (handout I)
e. Ripeness
d. Mootness
13. Judicial Power over other branches
Judicial Review availability to declare conflict with Const.
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Marbury
2. Power over executive Marbury
a. No immunity ftw any office all subject to mandamus or injunction
1,. Judiciary won’t do sonic things political Question
1. Won’t order acts within political discretion
2. Won’t Fill office Conlid. Agent
3. See l3aker v. Carr p.57
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C. Congressional control over Judiciary
1. Congress may grant jurisdiction in the positive; silence or absence of statute means
no jurisdiction: can write in negative and lake away jurisdiction ilCongress so
desires.
McCardle
2. Congress can contro] except
a. Other limits in the Consi.
h. Can’t exercise judicial power dictate result
c. Can’t interfere in continuing jurisdiction on—going ease
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3. USSC
a. Congress can’t reniove original jurisdiction in Const.
b. Essential functions argument as a limit on Congress (probably not accepted)
e. Practical problems
1. Freeze USSC precedent
2. Freeze lower cts. And state cts.
d. Control number USSC Justices
4. Lower Ièderal courts
a. liven lëwer theoretical limits
b. If abolish all, state courts still hear
D. Executive control over judiciary
1. Power to appoint, subject to Senate conlirmalion
2. Enforcement
CONSTITUTIONAL LAW
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CL 3
CONGRESS
A. Legislative in character & effect = Present. & Ilicameralism
B. Excessive delegation not violated if Congress provides an intelligible
principle. If not excessive delegation, call in rulemaking.
C. Rulemaking, ii appropriate & no interference with another
branch Legislating
D. Once given discretion or power to exee., supervision or
control = Legislating
E. Congressional discretion to give incidental power to other
branches under App. CI.
II.
Cl JADI IA
Ml STRI 1’ l’A
MISTRETTA
CI IADI IA
MORRISON
EXECUTIVE
A. President
1. C—in-C
military & foreign limited domestic
2. No general power to solve national emergencies
3. Executive laws
must have Congressional grant
YOUNGSTOWN
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YOUNGSTOWN
YOUNGSTOWN
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II. I ixecutive 0111cc Appointment
1. Principal President with Senate
2. Interior Congress vest in President, Judicial,
Fleads of Dept.
3. lnterhranch OK if appropriate
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MORRISON
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C. Executive Office Removal
I. At Will of President is rule
2. Congress can’t remove executive officer
JR Cong. Removal
3. Congress can list reasons if President ultimately
removes
4. II. Lx. not pure exec. vs. quasi, hut, does
limited removal of this office substantially interfere
W/Pres. Running exec.
MORRISON
MORRISON
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Ml Yl l{S
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BOWSI IER
FIUMP.FXFC.
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Ill.
MORRISON
JUDICIAL
A. Federal Judges generally hear cases controversies,
hut can have other service if appropriate
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MISTRIJTA
B. Judiciary can make rules.
lv.
MARBURY & McCRADLF
NO BRANCFI CAN PERFORM SUBSTANTIAL FUNCTIONS OF ANOTIIFR I3RANCI I
USSC can’t act like executive
can’t order appointment
of certain officers or order certain things.
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A. Congress can’t act like court can’t prescribe decision or
interfere in continuing jurisdiction.
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SEPARATION OF POWERS
If Control is legislative
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A SECOND VIEW
CL-3
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A. If Legislative function, then CHADA problems if no Presentment and
llicameralism in the function.
13. If’ I xecutive function, then 130WS1-II R problems because legislature can’t
Control an executive function on general separation of powers
nc iples
even if the control satisfies Presentment and Ilicameralism.
II.
If Control is executive
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A. If Legislative function, then the issue is excessive delegation of legislative
power and the intelligible guidelines of Mistretta or separation of powers tinder
llowsher.
13. If Executive function, Constitution should be satisfied and what is being done is
either executing the laws, part of explicit or inherent executive power of’
rule nuiking.
COMMERCE CLAUSE
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CL 5
DEFINITION OF COMMERCE ITSELF
A. Gibbons
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Commerce
=
buying. sd line and transporting, not manulacturing or agriculture.
Ii. Gibbons “among’’ points of origin and destination matter (two di IThrent states). don
ourney into intrastate itrts.
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C. Jones and L
II.
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t
break
no labels; realistic assessment; national economy.
REGULATION OF INTERSTATE AND INTRASTATE
A. Channels of interstate commerce.
13. Any aspect or instrumentality of transportation (e.g., plans. railroads, interstate highway) or
communication (e.g., phone, mail) including links that are intrastate.
C. CLOSE RELATION TO, OR SUBSTANTIAL AFFECT ON, INTERSTATE COMMERCE
Substantial
=
Wickard
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aggregation (hypothetical multiplier).
2. Affects quantity, qtiality, identity, etc. of goods or people moving in interstate commerce.
Ill.
PROHI BITION (‘?T?)
A. Darby Congress may prohibit the movement of anything in interstate commerce (regulate
prohibit)
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13. In exercise of power to prohibit. Congress can control conditions of maiiulhcturer or regulate
manulhcture, production. or possession as a means to the end of prohibition (Ames, Darby).
IV.
MODERN RETHINKING
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LOPEZ. MORRISON. RAICH AND SEBELIUS
A. No federal power on subsiantially alThcts te.st regarding non—economic matters in iraditional
areas of stale concern.
13. Federal power more likely if challenged action is part of’a larger, concededly valid statutory
scheme.
C. Failure to enter the market is not an economic event that can he regulated.
D. Are we too entrenched in the commerce clause precedents to change?
V.
OTHER CLAUSES IN CONSTITUTION AS LIMITS ON FEDERAL GOVERNMENTS
COMMERCE CLAUSE POWER (e.g., 1st A)
I)ORMANT COMMERCE CLAUSE
Discrimination
A. On face
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13. Purpose
C. Effect
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out of state (Protectionism)
against
per se invalid (Phil. V. NJ
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CL 6
invalid (I lood
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garbage. hughes
Boston milk, NY source)
some say invalid (I hint
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minnows)
legislative history
North Carolina apples)
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usually if believe there is a
purpose but no good evidence. If not, then balancing burden on interstate commerce v
local interests or benefits (although some justices question whether balancing is still
valid
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Scalia in CTS). If advances a real or “important” state purpose, burden on
interstates commerce proIably declared incidental unless special need for national
unithrmity (Kassell
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Iowa trucks). If burden on interstate commerce is incidental, stale
statute upheld unless burden is clearly excessive in relation to putative local benelits.
Question of degree (Pike
II.
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Arizona cantaloupes).
Exceptions
A. Health or Safety
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13. Market Participant
usually quarantine
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State not as regulating, but either
1. State itself producing or running a business OR
2. State providing subsidies or other incentives to aid in-state business.
Article IV, Section 2
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A. Fundamental Right
13. Not absolute
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PRIVILEGES AND IMMUNITIES CLAUSE
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Private workers or public projects
OK if substantial reason
C. No market participant exception
PREEMPTION AND COMMERCE CLAUSE REVIEW
CL 7
PRIiMPTION (CONGRESSIONAL INTLNT)
I.
CON’! PL [I’L
A. hxplieit
B. Implicit
1. So pervasive
2. Dominate federal interest
3. Object and character of obligations
[I.
PARTIAL
A. I xplic it
11. Implicit
I. Compliance with both impossible
2. State regulatory provision is an obstacle to lëderal goal
If lèderal statute
A. Power
13.
10th
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see handout CL5 for Commerce Clause basis and limils
Amendment additional limitation
I. Garcia National League currently dead
to state Governments.
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2. NY v US
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3. Printz v US
generally applicable federal laws can he applied
federal can’t commandeer state legisLature
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cannot commandeer state executive
4. Alden v Maine
II.
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can’t commandeer state judicial system
If state statute
A. Preemption (with federal state)
13. Dormant Commerce Clause CL 6 (with no federal statute)
ELEVEN AMENDEMENT, TAXING POWER ANI) SPENI)INC POWER CL S
11111
Amendment
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Can’t
sue
a state in federal court unless:
1. Plaintiff= United States government OR
2. Cause of action grounded in statule bused on Amendment later than I
OR
3. Defendant is politically and financially’ independent subdivision of’ state (e.g. sonic cities.
counties)
4. Ex parte Young
officer
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relief is a prospective injunction, named defendant is individual state
Article I. Section 8—taxing power as a basis for federal legislation (icOT INCLLDE TAX
AMEND 16)
A. TAX (source of revenue
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valid) v IENALTY (punishing wrongful conduct —inalid)
13. FACTORS
1. Extent of fmancial burden (more money, more likely to be penalty’)
2. Scienter requirement (more statute requires intent, more likely to be penalty)
3. Who collects? (any agency other than IRS, more likely to he penalty)
Article 1, Section 9—power to spend for General Welfare as a basis for federal legislation
A. General Welfare not limited to enumerated powers in 1.8 (US v Butler)
13. CONDITIONAL GRANT (purpose of the SS valid) V DISGUISED REGULATLON
(ultra vires—invalid)
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C. FACTORS
1.
2.
3.
4.
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South Dakota v Dole (p. 163).
Pursuit of the General Welfare
Unambiguous
Related to the federal interest in particular national project or program
Not bared by other Constitutional provisions
D. Sehclius acceptance of condition by state must he truly VOLUNTARY
condition is cost prohibitive to state
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invalid if
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STATE ACTION CL 9
PUBLIC FUNCTION
A. Lxpansive
Marsh (1946)— company’ town
2. lvans (1966)— ton park
3. Logan Valley (1968)- mall
13. Restrictive
1. Jackson (1974)— public utility traditionally exclusively reserved to the state.
2. 1 ludgens (1976)— mall overrule Logan Valley
3. llagg Bros. (1978)— elections, towns, education, lire, police protection and tax
(But see Rendell-l3aker)
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C. Today
I. Traditionally exclusively
II.
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collection.
Flagg list, with Rcndell—l3aker application.
CONTACTS
A. Expansive
1. Shelly (1948) —judicial enforcement
2. Burton (1961)—
a.
=
state action (See Lugar and Leesville)
Symbiotic relationship
h. Lease provision could have required
3. Rein an (1967)— authorization or encouragement
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B. Restrictive
Evans (1070)— interpretation not = state action
2. Moose Lodge (1972)— licensing not enough state must significamly involve itselfiih
d iscri iiii nation
3. Jackson (1974)— sufficiently close nexus
a. Not Burton detailed regulation not symbiotic
h. Not Reitman approval of procedures not approval or encouragement
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C. Today
1. Can’t affirmatively use law to violate l4A or can’t use some rule ol decision for which
state is responsive Shelly, Lugar and Leesville (but beware Evans and Flagg).
2. Burton symbiotic narrow not mere regulation, licensing or funding.
3. If no Burton, has state exercised coercive power or significant encouragement.
4. Different rules for racial discrimination than other aspects of the 14A?
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SUBSTANTIVE DUE PROCESS CL-H)
5tIi
Amendment ( ftderal) and 14(11 Amendment (state) DP clauses are more than simply
procedural guarantees more than simply the process by which the government takes
liberty or IiI or property. Vests:
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ay your
I) Definition of “liherly’ Ii istory look to ‘. alues of Western Civilization to see hut is
included and how important the liberty is fundamental used to describe a “most
i m porki nt’ liberty
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2) I low much process is “due”? No rights or liberty interests are absolute
a.
b,
Weigh the importance of 11w purpose
Relate the statute to the purpose (means/end)
FUNDAMENTAL LIBERTY
COMPELLING PURPOSE
NECESSARY TO TIlE
ACCOMPLISHMENT OF
INTERMEDIATE: LII3ERTY
IMPORTANT PURPOSE
S :13 STA N TI ALLY
RELATED
MERE LIBERTY
LEGITIMATE OR
APPROPRIATI PURPOSI
RATIONALLY
RI IATI D
Distinguish from Incorporation there, history means Anglo—American history, not Western
Civilization. I larlan natlLral law, history; Black must he tied into a speeilieally mentioned
right.
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PURPOSEFUL I)ISCRIMINATION
CL II
A. TYPES
On lace oF the law or act on
2, Neutral on face, but discriminatory administration (Yick Wo—Outrageous Statistics)
3. Neutral on face and administration. but elkets one race disproportionatel)
a. Adopted or administered with racial motive or purpose
h. Neutral motive or purpose. combination ofother societal (actors producing the
ehect.
DE JURE
Dh FACTO
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1.2. Ia
3b
B. RULES FOR DE .IURE
1. On face
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Compelling test
2. Yick Wo (administration)
3. Neutral
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Compelling test
Must show discrimination is motivating factor
a. Perry Mason
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Compelling test.
b. Original intent and current impact
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burden shifting.
c. Impact and factors (Arlington Heights or Zimmer)
Burden shifting
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Burden shifting.
delèndanl must show legitimate. non—racial purpose.
C. REMEMBER
1. Above rules when Supreme Court directly interpreting the
14th
Amendment.
2. If Congressional statute pursuant to Commerce Clause, question is Congressional
intent. Can ban mere impact without purpose if they so desire. (Title VII P sllo\%s
disparate impact; D has burden of showing job related and justified by business
necessity; P can then show that other employment practices would work as well;
business necessity cannotjustify an intentional discrimination).
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3. If Congressional statute pursuant to Section 5 and 14111 Amendment, question is
whether Congress can ban more than Supreme Court (more liberal).
SChOOL I)ESECRATION
Purpose or Intent needed Ibr
14111
Segregative activities in part
=
Violation
=
CL-12
Amendment Violation.
whole district violation.
Swann remedies available to District Court.
1 violation, alhrmative duty to integrate, not just disestablish.
Purpose or intent satisfied ifl
Pre—1954 segregation (by statute or Board action)
2. No efiort to integrate
3. Impact sEill in existence at time of trial
Conservative Limitations:
1. Requirement of purpose or intent
2. Resegregate not actionable if not due to Board
3. Milliken
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no interdistrict remedies
“Green” factors:
Student assignment. transportation, physical facilities. Extra currieulars.
fhculty assignments. resource allocation and general quality of education
AFFIRMATIVE ACTION CL-13
I. All cases split
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essentially 5—4 decisions.
2. Adarand modern rule
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Strict scrutiny to racial classifications, whether benign or not.
Liberals still want intermediate scrutiny, hut clearly dissenting position today. Congress
treated in same manner as states (Metro Broadcasting overruled).
3. Specific remedial orders or legislation satisfies strict scrutiny (Powell—appropriate body:
O’Connor—firm basis for belief; Scalia—specilically identified victims of past
discrimination). Clear that role models, societal discrimination. broadcast diversity and
ork in inner cities does not satisfy’.
4. In educational context. Grutter reallirms Bakke and holds that educational diversity
satisfies the compelling interest test. l3ut the means still matter
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No quotas. race as a
fhctor seems to he valid, specified number of points invalid.
5. Problem for advising clients—Liable ifno plan to minority plaintiffs; liable if plan to
white plaintiffs.
6. Critical mass? I low long?
EQUAL PROTECTION
CL-14
I lighest Level of Scrutiny
Strict Scrutiny (Race, including aflirmative action; National On gin; A I ienage
except necessary to political community)
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OR
Impact
I.
2.
3.
on Fundament Rights (limited by San Antonio v. Rodriguez).
Voting (poll tax)
Access to court (transcripts/attn’y on civ appeal)
Right to travel interstate (welKire/residency but Saenz & privileges &
immunities)
All three must be combined with wcalth discrim.
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TI ST:
1. COMPELLING state purpose (v.eigh importance)
2. Statute NECESSARY to the accomplishment of purpose (least restrictive
alternative) (narrowly tailored)
II.
Intermediate Level of Scrutiny’
Gender (except “real” gender differences). Illegitimacy. Liberal or Affirmative
Action. Plyer
TEST:
1. IMPORTANT state purpose (sometimes SIGNIFICANT)
2. Statute SUBSTANTIALLY related to accomplishment of state purpose
Ill.
Deferential Level of Scrutiny (“mere” classification
scrutiny) Economics, age, all non—heightened
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the deihult or residuary
TEST:
I, LEGITIMATE state purpose
2. Statute RATIONALLY related to purpose
May be level in between 11 and Ill Mentally challenged, Brennan in Fritz, Romer.
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IV.
Indicia of Suspectness (how to get heightened scrutiny)
A.
B.
C.
D.
Rodriguez (1973) p. 801
Murgia (1976)—p. 766
Plyler (1982) p. 807, lb. 1
Cleburne pp 762-763
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