Outline for constitutional law, Study notes of Law

Download Outline for constitutional law and more Study notes Law in PDF only on Docsity! INTRODUCTION Constitutional Law Methods (1) Text (2) History (3) Structure (4) Precedent (5) Policy   What is a constitution? 1. Pre-commitment device - rules of limitation to allow productive government 2. Constitutive rules - enabling rules, creating institutions, officials "We the People" 3. Rules of change - amendment procedure 4. Complex set, across time, generations, involving enforcement and significant interpretation   Constitution functions to create a set of enabling rules that creates the entity it governs ● Preamble → creates “We the People” ● Article I → creates + empowers the legislature o enumerated powers, protection of rights, limitations on state powers ● Article II → creates + empowers the executive o no specific subject matter ● Article III → creates + empowers the judiciary o extent of powers + subject matter ● Article IV → relations between states o full faith + credit clause ● Article V → amendments o difficult, so instead we interpret the hell out of what we have ● Article VI → supremacy clause o self-declaration that this Constitution is the law of the land ● Article VII → ratification ● Bill of Rights o looks different than original proposal, which focused on containing self interest Articles of Confederation ● Each state retained sovereignty & confederation expressly granted powers Problems o no power to enforce taxes o individual power of the states (allowed them to violate treaties) o no judicial branch or executive o limited maritime jurisdiction o trade wars among states o overlapping laws between states What if you don’t like a Supreme Court decision? 1. Amendment 2. Appointments 3. Impeachment 4. Ignore Court 5. Pack/Reduce the Court 1 6. Remove Jurisdiction 7. Relitigate   2 Political Question Doctrine Baker v. Carr (1962)  Political question doctrine (one is sufficient to be a Political Question) o Textual Commitment o No Judicial Standards o Prior Non-Judicial Policy Determination o Lack of Respect o Finality o Uniformity/Avoid Embarrassment Cases Facts Holdings Nixon v. United States (1993) Impeached, tried in Senate, delegated to committee Claimed was not legitimately "tried" (1)Textual Commitment (Senate has sole power to try impeachment, no check) ● Sole: full discretion on substance, no judicial limits (2)Finality (Already Impeached, decision decided, unclear if can reseat a judge) Powell v. McCormack (1969) House didn’t seat Powell after allegations of fraud  Judiciary says must be seated, 3 requirements to be a representative: (1) Age (2) Citizenship (3) Residency  Must follow constitution, question if House claims he is "3-years-old" whether judiciary can interfere Federalism & The Powers of Congress Necessary and Proper (N&P) Clause To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof. Article I, Section 8 Enumeration includes "implied powers" (N&P clause)  Enumeration presupposes something not enumerated  10th Amendment: "expressly" omitted Deference to Congress on degree of necessity  Will step in if in violation of constitution Preemption/Supremacy (suspending/displacing state laws)  Federal Government is more than the sum of state governments  Power to Tax = Power to Destroy  Power to Create = Power to Preserve o States cannot tax Federal Government 5 LEGISLATIVE POWER Commerce Clause To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes; Article I, Section 8 Old Commerce Clause Interpretation (Gibbons)  Manufacturing/Producing v. Commerce  Product v. Process  Assist States  Commerce Enabling v. Commerce Prohibiting  Direct/Indirect  Stream of Commerce Commerce: commercial intercourse; not limited to buying/selling (Gibbons) Among: concerning more than one state Old Commerce Clause Cases Facts Holdings Gibbons v. Ogden (1824) NY gave Ogden the exclusive right to operate steamboats in NY waters Gibbons operated a competing ferry service licensed by statute enacted by Congress “commerce” must include navigation “among” can’t be limited to “interstate waters” because no such thing exists federal law trumps state law in exercise of concurrent powers U.S. v. E.C. Knight Co. (1895) U.S. challenged sugar refinery acquisition under Sherman Act manufacturing ≠ commerce Champion v. Ames (1903) Federal Lottery Act prohibited interstate transportation of foreign lottery tickets carrying from one state to another commodities that are ordinary subjects of traffic and have in themselves a recognized value in money → interstate commerce Hammer v. Dagenhart (1918) Child Labor Act prohibited transportation in interstate commerce of goods produced in factories employing children under 14 or employing 14-16 year olds for more than 8 hours a day or 6 days a week production ≠ commerce conditions of production don’t travel with products → product/process distinction twofold constitutional problem → transcends commerce power + 6 intrudes on purely local matters 7 Taxing and Spending Powers The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States Article I, Section 8 Constitutional Requirements  Relates to the common defense and general welfare  Must be uniform  Tax may not be a criminal fine (if it does CANNOT go to the general treasury)  Must originate in the House Hamilton (adopted today): Congress has the power to tax and spend for any purpose that it believed served the general welfare as long as it does not violate another constitutional provision 10 Taxing and Spending Cases Facts Holdings Bailey v. Drexel Furniture Co. (1922) Child Labor Act placed 10% tax on profits of any company using child labor Naturally and reasonably related to tax collection NOT solely for another purpose United States v. Butler (1936) AAA taxed ag processors and used funds to subsidize farmers to reduce production In service of other enumerated powers or SEPARATE (can be independent of other enumerated powers) No penalty provision extraneous to any tax need Steward Machine Co. v. Davis (1937) Required employers to pay unemployment tax to U.S. treasury Credited 90% if already contributing to state unemployment fund Collective action problem: (prevents race to the bottom) Every tax is in some way regulatory Incentivization is NOT coercion  hope of gain is NOT a threat of loss United States v. Kahriger (1953) Revenue Act imposed a tax on gambling & required registration Tax upheld even if negligible revenue Principle interest does NOT need to be raising revenue South Dakota v. Dole (1987) Withhold 5% of federal highway funds for states whose minimum drinking age is less than 21 One area of affirmative, substantively given power to states (21st amendment) Conditional Spending indirectly doing what you cannot do directly 5 Requirements of Conditional Spending :  Related to the General Welfare  Unambiguous  Related to Federal Concern/National Interest  No Independent Bar (cannot incentivize unconstitutional activities)  No Coercion (extreme pressure = coercion, not ever seen in case) The Budget item that is cut is GERMANE to policy goal National Federation of Individual Mandate: Penalty imposed if you don't get healthcare Penalty can be a tax where:  Administrative: $ ⇒ general treasury (IRS code, gov’t collects revenue, Dept. 11 Independen t Business v. Sebelius (2012) insurance of Labor enforces)  No Excessive Burden (Not Coercive) Coercion: "pressure turns into compulsion" (no case where this has happened) Tax does NOT require:  Clear Statement Rule  Scienter Requirement (framing does NOT matter) Can Tax Inactivity Tax Power > Commerce Power Regulating State Governments Cases Facts Holdings Garcia v. San Antonio Metropolitan Transit Authority (1985) FLSA challenge Congress has the constitutional authority to regulate the wages and hours of state employees under the Commerce Clause. Rely on Structure of Government itself to limit Congressional power (Procedural Safeguards) There are no specific powers given to states through the 10th amendment (rejects traditional state functions) States retain sovereignty that is reserved from Federal Government Gregory v. Ashcroft (1991) State age-based retirement requirement for judges (unconstitutional under the Age Discrimination Act) Clear Statement Rule required for sensitive state matters/traditional areas of state sovereignty  Rule of statutory interpretation - assume federal government didn’t mean to interfere with state sovereignty, must state so clearly  Intended as safeguard for federalism New York v. United States (1992) Authorized States to impose surcharge, eventually exclude out-of-state waste States given choice to create waste facilities or take title of waste (false choice) Three Incentives 1. Surcharge - Taxing/Spending (allowed) 2. Refuse - Interstate commerce (allowed) 3. Take Title – coercion (false choice) (Legislative) Anti-Commandeering Rule  Federal Government does NOT have 12 Foreign Affairs Cases Facts Holdings Missouri v. Holland (1920) Migratory Bird Treaty Act of 1918 between U.S. & U.K. Must relate to some National Purpose/Interest Reid v. Covert (1957) civilian killed her serviceman husband on a military base and was convicted by a military tribunal pursuant to jurisdiction under a treaty between US + GB Affirmative Limitations (Bill of Rights+) limit Treaty Power "Supreme Law of Land" language (w/out pursuance to rest of constitutional language) intended to keep pre-existing treaties before founding of United States valid Where treaty intrudes on state procedural rules, self-executing only if "clear statement"  Applies to intimate areas, own operations, traditional state functions  could argue only applies to criminal matters Medellin v. Texas (2008) Capital Murder by Mexican National in U.S. but was not read rights under Vienna Convention under ICJ (U.S. was a signatory) International Treaty does NOT have immediate domestic influence on courts (Congress must enact implementing legislation) (U.S. didn't enter "self-executing treaty") Bond v. United States (2014) Chemical Weapons Convention Implementation Act: "chemical weapon" definition broad Bond used chemicals which gave mistress uncomfortable rash through mail Statute does not reach this type of conduct  Needs clear statement rule to intrude on state criminal jurisdiction  Does NOT meet common/plain definition of "weapon" (Scalia dissent: only do interpretation when ambiguous meaning) LR: Trigger political safeguards, cannot create rule limiting overall power 15 State Regulation & The Dormant Commerce Clause States should NOT be acting in an area reserved to Federal Government (violates Federalism, Preemption) Congress can authorize States to economically discriminate (ex: New York v. United States) Protectionism: Economic Discrimination with the purpose/effect of favoring local industry Purpose: unity, economic efficiency, representation reinforcement of out-of-state interests (but goes against constitution’s principles of particular representation) Cases Facts Holdings City of Philadelphia v. New Jersey (1978) NJ law prohibits importation of waste collected out of state (facially discriminatory) Asking whether this is protectionist  Could you have done this a lot easier? Balancing to question the motives Three Part Motivation/Purpose Test (consider all together through lens of protectionism) - o legitimate local concern o out-of-state burden o least restrictive means (purpose could not be achieved not discriminatorily) Do NOT need to consider effects on other states if purpose is NOT protectionist If effect is incidental NOT protectionist Maine v. Taylor (1986) Banned imported baitfish to protect natural ecosystem Legitimate local concern, out-of-state burden, least restrictive means Hunt v. Washington State Apple Advertising Commission (1977) NC required apples using U.S. grade or no grade for apples imported, purpose = prevent fraud Washington had higher grading system, costly to change practice to ship to NC Facially neutral rule can still be discriminatory Discriminates against Washington apples  NOT legitimate local concern o Protecting against fraud a façade  Out-of-State Burdens o Raises cost, removes economic advantage of Washington apples  NOT least restrictive means o Could've carved out exception for higher graded apples Market Participation Doctrine (Exception) Halberstam Argument: natural state monopoly counts for MPD but NOT a state mandated monopoly Hughes v. Alexandria Scrap Corp Market-Participant Doctrine 16 (1976) & Reeves, Inc. v Stake (1980) States can discriminate as players, not as regulators  State owned industry OR  State as purchaser South Central Timber Development v. Wunnicke (1984) Alaska required purchasers of state produced timber to process it within the state before being shipped out (Ruled Unconstitutional) Cannot Impose:  Downstream conditions (within state)  Substantial regulatory effect outside of state 17 [President] shall take Care that the Laws be faithfully executed Article II, Section III Constitutional Arguments Text: President shall nominate (Principal) Officers of the United States (w/ advice and consent of the Senate) Congress can vest appointments of Inferior Officers to President, Head of Departments, Lower Courts Take Care Clause Separation of Powers: Congress can NOT appoint Inferior Officers = Self- Aggrandizement Principal v. Inferior Officer (if no one between the officer and the President) Counterargument to Constraints Unitary Executive Theory: the entire executive power is vested in the President 20 Cases Facts Holdings Myers v. United States (1926) REMOVAL Postmasters appointed/removed by President with advice and consent of Senate Purely Executive Principal Officer Act of Removal = Executive in Nature Take Care Clause: President is responsible the laws are faithfully executed (Executive Power fully vested in Article II) Humphrey’s Executor v. United States (1935) REMOVAL RESTRICTIONS Statute authorized President to remove FTC members only for specific reasons ("good cause") FTC members supposed to be non-partisan Quasi-legislative/judicial Principal Officers Executive officials with quasi- legislative/judicial functions can be subject to "good cause" restrictions Buckley v. Valeo (1976) APPOINT FEC structured w/ appointments by Senate, House, and President Violates Appointments Clause Text: Only President can appoint: Principal Officers of the United States  Executive officials who have significant authority and confirmed by Senate Informative & Investigative powers can be delegated to mixed commissions because its within what Congress can do on its own Bowsher v. Synar (1986) REMOVAL Automatic across the board spending reductions Comptroller General can be removed by joint resolution by Congress under "special standards" UNCONSTITUTIONAL CG is executing the law by interpreting the law/implementing a legislative mandate Power to remove = Power to control  All types of officers (principal and inferior) Morrison v. Olson (1988) Independent Counsel can investigate/prosecute certain high ranking New Standard of Review whether removal restrictions are of such a 21 REMOVAL RESTRICTIONS government officials Created Special Division "court" power to choose IC AG's sole decision whether to appoint IC AG (not President) can fire IC subject to "good faith" Inferior Officer nature that they impede POTUS’s ability to perform their constitutional duty Does NOT Violate the Appointments Clause  Congress is empowered to create inferior officers outside of the Executive Branch (Less immunity/privilege for lower level officer) Does NOT Violate Separation of Powers  "good faith" removal and "subject to judicial review" does not impermissibly interfere/undermine President's Powers  IF limited, reasonable THEN does not undermine the take care clause Legislative Veto INS v. Chadha (1985) Overstayed visa, deportation, met standards to not deport AG recommended stay deportation Statute allowed House Sub- Committee Veto Actions that are legislative in "character and effect" subject to: Bicameralism and Presentment (Pres. Veto)  (argue) original legislation permitting legislative veto underwent Bicameralism and Presentment Character of House SC veto is legislative because it alters duties of executive brand officials (AG) Cannot delegate a power to yourself a power you don't have (self-delegation unconstitutional) Legislative Vetoes are unconstitutional, but many still exist today (few lawsuits challenging them) Executive Privilege   United States v. Nixon (1974) Subpoena for documents/recordi AG delegated power to SP, can take it back by firing or amending/revoking regulations 22 Missouri ex rel. Gaines v. Canada (1938) MO maintained all- white state law school while agreeing to pay black residents’ tuition at neighboring states’ law schools Must provide equal access to public education within the state  Doesn’t matter what opportunities other states provide or whether they’re equal Sweatt v. Painter (1950) TX opened separate black law school Ordered admission of a black student into a white law school The parallel school wasn’t equal objectively (professors, books, etc.) and subjectively (prestige) McLaurin v. Oklahoma State Regents (1950) Black student had to learn, eat, study in separate areas Equal physical facilities ≠ Equal opportunity impaired and inhibited his learning Brown v. Board of Education (1954) Desegregation of Public Schools Feeling of inferiority Separate but equal is invalid in public education Questioning Social Science in reasonings The End of Separate but Equal Cases Facts Holdings Bolling v. Sharp (1954) 5th amendment due process clause contains EPC element constraining fed govt Missouri v. Jenkins (1995) Thomas Concurrence: Racial Isolation Itself is not a harm Loving v. Virginia (1967) Felony for white person to marry non- white person (equal penalty for each party, but not illegal for black/Hispanic to marry) Implied interest to preserve whiteness No permissible state objective (fails strict scrutiny)  Racial integrity canNOT be a legitimate/permissive purpose under the 14th amendment (invidious discrimination) Palmore v. Sidoti (1984) Private biases cannot be a legitimate/permissive purpose Desegregation 25 Cases Facts Holdings Brown v. Board of Education (1955) Issue: Relief/Remedy Desegregation NOT Integration Remand cases to evaluate schools under "equitable principles" with "all deliberate speed" Resulted in slow adoption Cooper v. Aaron (1958) Directly blocking desegregation SCOTUS intervened because of outright defiance Green v. Count School Board (1968) Allowed students to choose school, default was to remain ⇒ Effect = little desegregation Must have “unitary” school system  no black/white schools "freedom of choice" UNCONSTITUTIONAL Swann v. Charlotte- Mecklenburg Board of Education (1971) Percentages(math-based)/race-conscious assignments useful for relief mechanisms Intradistrict remedy for past segregation Three Principles  constitutional violation stemmed from purposeful state manipulation of schools’ racial composition  scope of judicial power is limited by scope of constitutional violation  judicial intervention ends once school district achieved “unitary” status 26 Milliken v. Bradley (1974) Federal courts can NOT impose interdistrict remedies absent interdistrict violation/effects CanNOT desegregate Detroit and suburban school districts combined o Counterargument : state encouraged "white flight" complicit in discrimination (but suburbs never technically segregated) Right ⇒ Violation ⇒ Remedy Missouri v. Jenkins (1995) District Court ordered remedy = create magnet schools Attempting to attract students outside of students into your district = interdistrict remedy Discriminatory Intent Cases Facts Holdings Washington v. Davis (1976) Police Force test of verbal ability, vocabulary, reading (nothing empirically showing necessary) Higher percentage of black applicants failed ⇒ disparate impact No proof of discriminatory proof Invidious Discrimination requires:  (1) Disparate Impact  (2) Discriminatory Intent/Purpose o Acted because of X not despite X IF Facially Neutral requires (for intent):  (a) Smoking Gun  (b) Extremely lopsided impact (raises suspicion) o Can be inferred from totality of the relevant factors (but high bar) (Yick Wo) Village of Arlington Heights v. Metropolitan Housing Development Corp. (1977) IF mixed motives: Discriminatory & Nondiscriminatory Intent) THEN: Burden of Proof shifts to defendant to show measure would have passed absent bad motive Personnel Administrator of Massachusetts v. Feeney (1979) state civil service preference for veterans operated overwhelmingly to the advantage of males Discriminatory Intent requires: “because of its impact on the class not in spite of its impact” 27  Means = adversative method Remedy was to create VWIL (less funding, less educational opportunities, different method of teaching "cooperative) “exceedingly persuasive justification” (adds to intermediate scrutiny for gender discrimination) Sex classifications uses:  NOT Perpetuate legal, social, economic inferiority of women  Single sex education (possibly) 30 Due Process “nor shall any state deprive any person of life, liberty, or property, without due process of law” Lochner v. New York (1905) NY Statute: can't work in bakery for more than 60 hrs/week for 10hrs/day ANTI-CANON Interferes with liberty of individuals to make contracts = fundamental right  Intrusions must be carefully reviewed: o Fair, reasonable, appropriate exercise of policer power OR o Unreasonable, unnecessary, arbitrary interference  Only interfere if to enhance public health, public safety, or public morals Laissez-Faire Antithetical to judicial restraint Dissent  Rational basis+ review (looking at reasons, impermissible here)  Defer to leg. for reasonableness, bakers may’ve special need (substantive) The Demise of Lochner and the Modern Approach to Economic Regulation Cases Facts Holdings Nebbia v. New York (1934) Legislature considers milk "an essential item of diet" Creates Milk Control Board to fix minimum and maximum prices of milk Context: Great Depression (oversupply of milk) Rational Basis Review Can adopt reasonable policies to promote public welfare/interest as long as NOT willful arbitrary (not random) or discriminatory West Coast Hotel Co. v Parrish (1937) Minimum wage for women Constitution doesn’t mention "freedom of contract" as a liberty (premise of Lochner missing) Legitimate end to protect health of women U.S. v. Carolene Products (1938) Prohibiting Filled Milk Deference: presume facts, burden of proof on challenger 31 Footnote 4: heightened scrutiny for:  Bill of Rights  Political Process  Religion, National Origin, Race  Discrete + Insular Minorities Williamson v. Lee Optical of Oklahoma (1955) Deference to legislature Hypothetical reasoning May be wasteful, inefficient, unwise - not a substantive due process violation There has not been an economic due process case struct down since this case 32 (legitimate/permissible reasons) with undue burden Stare Decisis  Unworkable  Reliance  Doctrinal anachronism (outlier)  Change in factual premises    35 LGBT Cases Holdings Bowers v. Hardwick (1986) Upheld prohibition on sodomy (applied to all individuals, straights too) Lawrence v. Texas (2003) Criminal law for same- sex people to engage in anal sex Right to privacy  Sexual behavior  Home History/Tradition  No longstanding history targeting same-sex anal sex  Few states enforce laws  Other jurisdictions (international) NOT equal protection (due process extends farther)  But the law discriminates against homosexuals by legal criminalization Moral disapproval is not a good enough reason O'Conner Concurrence  Governing majority findings something immoral is NOT a legitimate interest  "bare desire to harm" a particular group Obergefell v. Hodges (2015) Centrality of marriage to human condition: Fundamental Right Due process clause protects  Individual autonomy and dignity  Intimate relationship between two people  Families and children  Marriage is keystone of the social order Can NOT define rights by who exercised them in the past Avoids EPC argument (so no heightened form of scrutiny) Bostock v. Clayton County (2020) Discrimination of homosexual/transgender = sex/gender discrimination (maybe, depends if extended) SUGGESTED not holding Hyperformulist, procedural evaluation -> avoid substantive/anti-domination claims Dissent’s worried will lead to heightened scrutiny for LG(B)T discrimination 36 Guns/Self-Defense Cases Holdings District of Columbia v. Heller (2008) D.C. statute prohibited possession of usable handguns in a home Individual NOT JUST collective 2nd amendment right to keep and bear arms NOT just in a war context/military purpose History: use of arms for self-preservation and defense McDonald v. City of Chicago (2010) Whether to incorporate 2nd amendment individual right to keep and bear arms to the states Self-Defense/Keeping and Bearing arms  Fundamental to our scheme of ordered liberty  Deeply rooted in nation's history/tradition DISSENT  if you only rely on history for fundamental rights -> not protecting anything new  Ordered liberty NOT our ordered liberty  NOT comprised within the term liberty Originalism How does it fit in with Common Law Tradition, Brown, EPC for Women Due Process and Equal Protection Cases Facts Holdings U.S. Department of Agriculture v. Moreno (1973) Equal Protection Clause Case Food Stamp Act clause voided eligibility where household had unrelated persons “bare desire to harm” a particular group is NOT a legitimate government interest  Acts purpose was to harm the hippies applies "on the record review" but claims using rational basis review EPC not DPC because no substantive right to a government benefit (do NOT have "positive" rights) City of Cleburne v. Cleburne Living Center (1985) Equal Protection Clause Case Zoning specifically excluded homes for "intellectually disabled" Irrational objections against intellectually disabled Applies “on the record review” but claims using rational basis review Furthest extension of rational basis review Moore v. City of East Cleveland Due Process Clause Case Institution of the family is protected liberty 37 approves rates Shut off power without notice Nexus Examination 40 Enforcement of the Fourteenth Amendment Cases Facts Holdings Katzenbach v. Morgan (1966) Voting Rights Act Section 4(e) prohibits English- language literacy requirement to vote Designed to enfranchise New York's Puerto Rican population New York's stated purpose is NOT invidious Court gives deference to Congress' reasoning there is possible invidious discrimination Congress' Interests  (1) Non-discriminatory access to vote  (2) Non-discriminatory access to public services Congress is applying strict scrutiny to the New York law Cause of Action, preventing constitutional violations to proactively prevent litigation City of Boerne v. Flores (1997) Religious Freedom Restoration Act (RFRA) sets forth strict scrutiny test where exercise of religion is "substantially burdened" Congruent and Proportional to preventing or remedying a constitutional violation as defined by the court Enforcement can only be remedial/corrective NOT substantive/plenary Smith (1990): Neutral laws do NOT violate free exercise of religion Altering the free exercise clause is NOT allowed (can make counterarguments on all these points)  Text : “Enforcement” in §5  Structure : Separation of Powers (judiciary’s role to interpret cons. rights)  Precedent : NOT unlimited §5 power  History : purpose of construction amendments was remedial not plenary  Policy : IF Congress determines what constitutional rights, we have what is the point of the constitution No modern history of general legislation discriminating against religious groups 41 United States v. Morrison (2000) Private gender motivated violence is not a constitutional violation Targeting selective enforcement of gender motivated crimes (21 states) = unconstitutional NOT congruent nor proportional  (1) applies to all states  (2) no consequence or remedy for perpetrators of selective enforcement  (3) sanctioning private cause of action 42