2. Division of HR and Org Effectiveness

MGMT 311 Barna

Shared Governance

-Federal and State governments share sovereign power
– 10th Amendment- State power unless expressly
granted to Fed

-commonly referred to as police powers

Police Powers

• not limited to criminal laws

• rights of states to regulate private activity for the good of society - healthy safety and security (delegated to local municipalities)

• states have very broad powers to regulate

Privileges and Immunities Clause

• Article 4 section 2

• Citizens in each state are entitled to enjoy the privileges and immunities of all the states

• Can NOT discriminate (property, employment, court system)

Exceptions to Privileges and Immunities Clause

The foreign state MUST have a SUBSTANTIAL reason for
treating non-residents different.
• Example-College Tuition
• Fees associated with Hunting and Fishing Licenses
• Homestead exemption
• Ward v. Maryland- Imposing an extra sales tax on nonresidents goods

Full Faith and Credit Clause

– Article 4 section 1
– Every State will respect every other state’s public
acts, records and judicial proceedings (civil only)
– Examples include deeds, wills, contracts, marriage
licenses

Importance of Full Faith and Credit Clause

– It allows people and businesses to effectively and
uniformly conduct business across state lines
• Protects people- protect orders (Violence Against Woman
Act) and child custody issues
• Allows 50 to act as 1

Separation of Powers

constitution provided for 3 branches of gov

• Executive- President

• Legislature- Congress

• Judicial- Court System

Checks and Balances System

– Legislature enacts laws, but require executive approval
(veto power)
– Judicial reviews the actions of both Executive and
Legislature but Legislature determines Courts jurisdiction
and Executive appoints justices.
– Executive- handles foreign affairs but treaties and
declarations of war require legislature approval
– No Absolute power

Executive

President

Legislature

Congress, have power over budgets, formal treaties with over countries must be approved

Judicial

Court System, not political as possible, once appointed serve for life

US v. Alvarez

Perfect example of C&B system

– Congress passes- Stolen Valor Act 2005- Bush signs
the law
– Supreme Ct- Unconstitutional in 2012 (Violated free
speech)
– President and Military- established a national
database for medal citations (verification system).
– 2013 Congress passes revised Stolen Valor Act
• 2013 version of the Act- addresses
deficiencies/defects
– Mainly limiting prohibition to situations involving
“fraud”

Commerce Clause (CC)

It was enacted to prevent the states from enacting laws that would interfere or restrict trade
and commerce among the states
– Article 1 section 8
– Congress has the authority “to regulate Commerce with Foreign Nations, and among the States”.
– Impact on Business

CC: Interstate v. intrastate

• Gibbons v. Ogden-1824- “substantially affected commerce”
– Involved steamboats between NY and NJ
• Wickard v. Filburn-1942
– Case involved Wheat production on individual farm
– Individual farm (personal use) impacts interstate commerce
• Heart of Atlanta Motel v. US-1964
– Hotel owner sued challenging the Civil Rights of 1964

CC Today

• Feds have jurisdiction over every commercial enterprise
• Gonzales v. Rich- California Marijuana

Dormant Commerce Clause

• State Regulations of interstate commerce
• It is a balancing test – purpose v. burden on interstate commerce
– Example NY Wine Law- limited sales of Cali wine to wholesalers
» Court held this discriminated against out-of-state wineries
» See also Total Wine case in Tennessee

Gibbons v. Ogden

• 1824

• steamboats NY and NJ

Wickard v. Filburn

• 1942

• Wheat production on individual farm

• individual famr (perosonal use) impacts interstate commerce

Heart of Atlanta Motel v. US

• 1964

• Hotel owner sued challenging the Civil Rights of 1964

Supremacy Clause

• Federal law is the “Supreme Law of the
Land”
– Article VI
– Federal Law v. State Law- Preemption occurs
– State/local law- may exceed Federal Law
• Environmental Laws
• Employment Laws

Tax Spending

• Congress has the explicit “Power to lay and collect
Taxes, Duties...etc.”
– Article I Section 8
– Taxes must be uniform
– If Reasonable- permissible under commerce clause

• Congress also has the “Power to pay debts and
provide for the common defense and General Welfare
of the US”
– Article I Section 8
– Congress can place stipulations on its payments to States
• Policies choices- taxpayers and politicians must live with
– Mandatory Vaccinations

Bill of Rights

were adopted to protect “individuals” against government

Corporations are considered “legal entities” or “legal person”
– As such corporations are protect by the Bill of Rights and enjoy the same protections

14th Amendment

“No state shall...deprive any person of life,
liberty, or property, without due process of law.”
– Originally applied only to the Federal Government
– Starting in the 1900’s Court started applying the same principle to State Governments
• Today the 14th Amendment applies equally to all forms/sources of government

Freedom of Speech

Essential to democratic form of government
– Courts have held this sacred
– Applies not only to spoken words
• Gestures, movements, clothing are also protected
• Courts have applied Reasonable Restrictions on Free Speech
– Courts must balance individuals and Society’s Rights
• Laws that Regulate contents of “Speech” must Show a “compelling government interest”
– For the law to be Constitutional there must be a compelling governmental interest that can only be furthered by the statute.
• Courts have held that Schools can limit free speech

Corporate Free Speech

is protected

free to make political contributions just like
individuals
– Not absolute; still subject to reasonable restrictions

Commercial Speech

refers to advertisement and marketing
– Government may limit misleading or false advertisement (Fraud)
– Bad Frog Brewery Case/ Beer Advertisement in Schools

Gov must show ______ to limit commercial speech

There exist a substantial government interest
• The law must directly advance that interest
• The law must go no further than necessary to achieve the interest

Unprotected Speech

• “Fighting words” - words likely lead to violence

• Defamatory speech

• Threatening speech

• Obscene speech

“Fighting words”

words likely lead to violence

Very fine line; content specific

Chaplinsky v. New Hampshire

1942; held “words by their very utterance, inflict
injury or tend to incite an immediate breach of the peace”; fighting words

Cohen v. California

1971; Wore a Jacket with “Fuck the Draft”; fighting words

Defamatory Speech

harms an individual reputation
– Tort- Several factors need to be considered

Hustler v. Falwell

1988; court protected criticism of elected officials and public figures; defamatory

Threatening Speech

There must be a “true threat” with intent to commit violence

Virginia v. Black

(2003)- upheld a Virginia Statute outlawing “cross burning” as a “true threat

Obscene Speech

Courts have struggled with this
– Justice Potter- “I Know it when I see it” Jacobellis v. Ohio 378 US 184 (1964)

Miller v. California

(1971) established a three part for obscenity –community standards, patently offensive, redeeming social value; obscene

Freedom of Religion

Government may not establish any religion nor prohibit the free exercise thereof
– “Establishment Clause”
– “Free Exercise Clause

Establishment Clause

No official religion/state sponsored religion

for a law/policy to be constitutional, it must not have the
primary effect of promoting or inhibiting religion
– Requires separation of Church and State just not complete separation
– Often involves issues such as:
• Prayer in schools; State vouchers for religious schools; Nativity scenes on public grounds
• Engel v. Vitale (1962) NY case that school sanctioned prayer was unconstitutional

Free exercise clause

Individuals may practice any religion of their choosing; guarantees individuals can hold whatever religious beliefs they want
– To limit free exercise the government must:
• Compelling State Interest for restricting free exercise; and
• The restriction is the only way to achieve that interest
– Restrictions must not be substantial
• Cannot modify or violate one’s belief’s
– Public Policy Exceptions
• Public Safety is an issue
• Life saving measures or vaccinations regardless of religious beliefs

Burwell v. Hobby Lobby Stores

(2014) Corporation are citizens and entitle to 1st Amendment protections not least restrictive measure, Free exercise clause

Church of Lukumi Babalu Aye, Inc. v. City of Hialeah

(1992) Regarding the practice of Santeria, Free exercise clause

Jacobson v. Massachusetts

(1905)- State can require mandatory vaccinations against smallpox, Free exercise clause

4th Amendment

Protects the “rights of the people to be secure in their
persons, houses, papers, and effects
– Better know as Search and Seizure
– Before searching or seizing property, law enforcement must have a search warrant
– Search warrant is legal authority to search or seize

Search Warrant require probable cause
– “PC” requires trustworthy evidence that the search is justified
– Are issued by a judge or a court

Carpenter v. US

(2018) Cell phone data; 4th Amendment

Terry v. Ohio

(1968)- a police officer may stop a suspect on the street and frisk him or her without probable cause to arrest, if the police officer has a reasonable suspicion that the person has committed, is committing, or is about to commit a crime and has a reasonable belief that the person "may be armed and presently dangerous

4th Amendment

5th Amendment

No person “shall be compelled in any criminal case to
be a witness against himself”.
– Cannot be forced to give testimony (answer questions) that
might subject to a criminal proceeding
– Applies to Federal and State cases
– Only Applies to natural person- not corporations or partnerships
• Sole proprietors with no legal business entity may invoke the 5th
– Fifth Amendment may be waiver
• Individuals have the right to remain silent but may not the ability

Miranda v. Arizona

(1966)- Burglary suspect questioned and confessed not advised of his rights; 5th Amendment

Due Process

The 5th and 14th Amendment provides for two types of Due
Process prior to a taking (life, liberty, or property)
– Procedural (equitable or Fair)
– Substantive

Procedural (equitable or Fair)

- requires prior notice and
opportunity to be heard
• Examples include right to call witnesses; present evidence; right to appeal a decisions; and right to be presented with exculpatory evidence

Substantive

focuses on the content of the law rather than
fairness
• Standard of Review for violations of fundamental rights:
– Government must have a legitimate and compelling reason
• Standard of Review not involving fundamental right:
– Rationally relates to any legitimate governmental interest
• Examples of fundamental rights- travel, marriage, family, privacy

Loving v. Virginia

(1967) Marriage was a fundamental right and
Virginia’s Racial Integrity Act violated the 14th Amendment (Due Process); substantive; racially motivated

Equal Protection

14th Amendment forbids states from denying any person equal
protection under the law.
– (like Substantive Due Process)- relates to
substance of the law or action
• The Courts use three Standards: Strict Scrutiny, Intermediate Scrutiny, Rational Basis Test

Strict Scrunity

is applied when the law prohibits or inhibits some people from
exercising fundamental rights
• There must be a compelling governmental interest
– Example- providing minority business preferential treatment for government contracts

Equal Protection

Intermediate Scrutiny

is applied in cases in based upon gender
• The law must be substantially related to government objective
– Example-Limiting beer sales to men under 21 but not woman (Craig v. Boren)

Equal Protection

Rational Basis Test

is applied to cases involving social welfare or
economics
• Is it related to a legitimate government interest
• Example-limiting certain business from selling alcohol

Equal Protection

Privacy Rights

No Expressed Constitutional Right to Privacy

Congress has enacted several statutes that protect individuals’
personal information from government and private business

Congress and States have also passed laws providing individuals
access to information

The US Patriot Act- Post 9/11

Griswold v. Connecticut

(US 1965)-held that the right of privacy was implied in 1, 3, 4, 5, & 9th Amendments; Privacy Rights

Statutes that protect individuals’ personal information from government and private business

• HIPPA-Health Information

• FERPA-Educational Information

Privacy Rights

Laws providing individuals access to information

Freedom of Information Act; Privacy Rights

The US Patriot Act- Post 9/11

-US Law more power to stop terrorist attacks
– There have been several Constitutional challenges, but no court has limited its power or authority

Privacy Rights