Targeted Con Law

Scope of Judicial Power

Limited to cases and controversies:

• Arising under U.S. Constitution, federal laws, and federal treaties

• When U.S. is a party

• Between 2 or more states, or between a state and citizens of another state

• Between citizens of different states, or between citizens of the same state claiming lands under grants of different states, or

• Between a state—or its citizens—and foreign states, citizens, or subjects

Judiciary has the power to review:

1. Another branch’s act and declare it unconstitutional

2. The constitutionality of a decision by a state’s highest court

3. State actions under the Supremacy Clause to ensure conformity with the Constitution

11th Amendment Immunity

• Prohibits citizens of one state from suing another state in federal court

• Immunizes states—but not local governments—from suits in federal court for money damages or equitable relief

• Bars suits in federal court against state officials for violating state law

Exceptions to the 11th Amendment

• Consent

• State official sued for injunctive or declaratory relief

• Damages paid by state officers

• Congressional enforcement of 13th, 14th, and 15th Amendment rights

Rule: Adequate and Independent State Grounds

SCOTUS cannot review a final state-court judgment that rests on adequate and independent state grounds.

Adequate State Grounds

State law fully resolves the issues

Independent State Grounds

The state court’s ruling does not depend on an interpretation of federal law

Elements of Standing

A plaintiff must establish:

1. Injury in Fact

2. Causation

3. Redressability

4. Prudential Standing

Injury in Fact (Standing)

• π suffered a concrete and particularized injury, but it need not be physical or economic.

• A future injury must be actual or imminent.

Causation (Standing)

π’s injury was caused by ∆’s violation of a constitutional or other federal right.

Redressability (Standing)

The relief requested will likely prevent or redress the injury

Prudential Standing (Standing)

π is a proper party to invoke judicial resolution of the dispute

Exceptions to General Standing Rule:

Taxpayer Status

A taxpayer generally has no standing to challenge a government’s allocation of funds, but a a taxpayer does have standing to:

• Litigate how much is owed on her tax bill

• Challenge government expenditures as violating the Establishment Clause

Exceptions to General Standing Rule:

Third-Party Standing

π lacks standing based on 3rd party claims except when:

• There is a special relationship between the π and the 3rd party;

• The 3rd party is unable to assert its own rights; and

• There is a risk that disallowing 3rd party standing will dilute the third party’s rights

Exceptions to General Standing Rule:

Organizational Standing

An organization can sue on its own behalf or on behalf of its members if:

• Its members would have standing to sue in their own right; and

• The interests at stake are germane to the organization’s purpose

Exceptions to General Standing Rule:

Legislative Standing

Legislators lack standing to challenge laws they voted against, but the legislature may have institutional standing if the claim has something to do with its institutional functions.

Timeliness

Ripeness

π must have experienced a real injury or imminent threat of injury

Timeliness

Mootness

• There must be a live controversy at each stage of review.

• A case is not moot if:

  • The controversy is capable of repetition but evading review

  • ∆ voluntarily ceases its illegal or wrongful action upon commencement of litigation, but could resume it at any time

Justiciability Issue

Advisory Opinions

Federal courts are limited to deciding actual "cases" or "controversies”. Abstract or hypothetical disputes are prohibited.

Justiciability Issue

Declaratory Judgment

Federal courts may hear lawsuits seeking a determination of the legal effect of proposed conduct but not damages or injunctive relief if conduct poses a “real and immediate danger” to a party’s interests

Justiciability Issue

Political Question Doctrine

An issue is not subject to judicial review when the Constitution has assigned decision-making on the subject to a different government branch, or the matter is inherently not one that the judiciary can decide.

Abstention

A federal court may abstain from deciding a claim only when strong state interests are at stake. A court may abstain:

• Because there is unsettled case law (Pullman)

• From pending state criminal cases in the absence of bad faith, harassment, or invalid state statute (Younger)

• If parties are seeking injunctive relief that would interfere with a complex state regulatory scheme (Burford)

• If the case is substantially similar to another case being heard in state court (Colorado River)

Commerce Clause

Congress has power to regulate the channels and instrumentalities of interstate commerce, as well as intrastate activities that substantially affect interstate commerce.

Commerce Clause

Analysis for Congressional Regulation of Intrastate Activities

Ask: Economic or non-economic activity?

1. Economic → Aggregation Principle/Substantial Effects

   1. Congress needs rational basis for concluding that the total incidence of the activity substantially affects interstate commerce (economic activities are presumed to have substantial economic effect)

2. Non-Economic → Very limited, requires direct connection to channels/instrumentalities of interstate commerce

Congressional Powers

Taxing Power

• A tax by Congress will be upheld if it has a reasonable relationship to revenue production.

• The General Welfare Clause gives Congress plenary power to impose taxes to raise revenue for any public purpose.

Congressional Powers

Spending Power

Congress has the power to spend for the general welfare—i.e., for any public purpose—not just to pursue its enumerated powers, and may place conditions on disbursed funds

Congressional Powers

Limitations on Conditional Spending

Congress cannot

1. Impose unconstitutional conditions

2. Enforce conditions that are ambiguous or unrelated to the program

3. Coerce state behavior with its spending conditions

Congressional Powers

Property Power

No express limit on Congress’s power to dispose of federal property. However, Congress may only take private property for public use with just compensation and to effectuate an enumerated power.

Congressional Powers

Power Over Noncitizens and Citizenship

• Congress has plenary power over noncitizens in the United States, subject to the 5th Amendment Due Process Clause.

• Congress has exclusive authority over the naturalization (citizenship) process

Congressional Powers

Necessary and Proper Clause

• Congress has the power to enact any legislation necessary and proper to execute any authority granted to any branch of the federal government.

• NOT an independent source of power → MUST carry into effect another enumerated power.

Congressional Powers

Power to Enforce Civil War Amendments | 13th Amendment

• Ban on Slavery

• Gives congress power to adopt legislation rationally related to eliminating racial discrimination

• Only amendment that authorizes Congress to regulate purely private conduct

Congressional Powers

Power to Enforce Civil War Amendments | 14th Amendment

Equal Protection & Due Process

• Permits Congress to pass legislation to enforce—not to expand or create—equal protection and due process

Congressional Powers

Power to Enforce Civil War Amendments | 15th Amendment

Voting

• Prohibits state and federal governments from denying any citizen the right to vote based on race, color, or previous condition of servitude

Presidential Powers

Domestic Power

• Power to enforce—but not make—the law

• Can issue executive orders telling administrative agencies what to do

• Can set enforcement and rulemaking priorities, subject to control by congressional statute

Presidential Powers

Pardon Power

Can grant pardons at any time after the commission of a federal offense—not state crimes or cases of impeachment

Presidential Powers

Veto Power

• President has 10 days to act on proposed legislation once presented by Congress

  • Sign → Bill becomes law

  • Veto → Bill sent back w/ objections; can be overriden by 2/3 vote in each hosue

  • Nothing → If Congress is in session, bill becomes law; If Congress is adjourned, bill does not become law

Presidential Powers

Appointment of Officials

President appoints all “officers of the United States” (e.g., U.S. Supreme Court justices, cabinet secretaries) with the advice and consent of the Senate.

Presidential Powers

Removal of Officials

The president may generally remove any executive appointee without cause and without Senate approval.

Presidential Powers

President’s Powers re. Foreign Affairs

• Commander-in-Chief

• Treaties

• Executive Agreements

Presidential Powers (Foreign Affairs)

Commander-in-Chief

• Only Congress can declare war.

• The president can take military action without a declaration of war in the case of actual hostilities against the United States, but Congress may limit these activities through its military appropriation (i.e., funding) power.

Presidential Powers (Foreign Affairs)

Treaties

• President has exclusive power to negotiate treaties, which must then be ratified by a 2/3 vote of senators present.

• Treaty cannot conflict with Constitution; if it does, Constitution trumps the treaty

Presidential Powers (Foreign Affairs)

Executive Agreements

• President has power to enter into executive agreements with foreign nations without Senate approval

  • Conflicting federal statutes and treaties take precedence over executive agreements

  • Executive agreements take precedence over conflicting state laws

Appropriation

If Congress explicitly mandates expenditure of funds, then the president …

… cannot impound those funds by refusing to spend them.

Appropriation

If Congress does not explicitly mandate expenditure of funds, then the president …

… may decide whether to spend the funds.

Legislative Veto

It is unconstitutional to attempt a legislative veto of an executive action

Delegation of Legislative Power

• Congress may delegate some of its authority to the executive branch if Congress specifies an “intelligible principle” to guide the delegate.

• NOTE: Certain powers are nondelegable (e.g., impeachment power, power to declare war).

Judicial Immunity

A judge has ___________ from civil liability for damages resulting from judicial acts, but does not have immunity regarding ________.

“absolute immunity”; “nonjudicial activities (e.g., hiring and firing court employees)”

Legislative Immunity

Members of Congress have ______________ for statements made and conduct that occurred in the ______________.

“absolute immunity from civil or criminal liability”; “regular course of the legislative process”

Executive Immunity

President has immunity from civil liability regarding …

… any act performed as part of the president’s official responsibilities.

Executive Immunity

President has no immunity from …

• A civil action based on alleged conduct before the president took office or completely unrelated to presidential duties (even while in office)

• Compliance with a subpoena in federal or state criminal proceedings and

• Compliance with a congressional subpoena involving personal matters (at the court’s discretion and subject to restrictions).

Federal Immunity

States cannot regulate the federal government except when …

… permitted by Congress or when the regulation is not inconsistent with federal policy.

Federal Immunity

The federal government and its instrumentalities are immune from taxation by the states except for …

… generally applicable indirect taxes that do not unreasonably burden the federal government.

State Immunity from Federal Regulation

Tenth Amendment's Anti-Commandeering Doctrine | General Rule

Congress cannot commandeer state legislatures by commanding them to enact/not enact specific legislation

State Immunity from Federal Regulation

Tenth Amendment's Anti-Commandeering Doctrine

Congress can regulates states through conditional funding if the condition:

• Is for the general welfare

• Is unambiguous

• Relates to federal interest in particular national projects or programs

• Does not induce states to act unconstitutionally and

• Does not exceed the point at which “pressure turns into compulsion.”

Dormant Commerce Clause

• Limits the power of states to legislate in ways that impact interstate commerce.

• If Congress has not enacted legislation in a particular area of interstate commerce, then states can regulate interstate commerce so long as the regulation does not:

  • Discriminate against out-of-state commerce

  • Unduly burden interstate commerce or

  • Purposefully regulate wholly out-of-state activity.

Dormant Commerce Clause | Analysis

Dormant Commerce Clause

Discrimination Against Out-of-State Commerce

RULE: A state or local government cannot enact a discriminatory regulation that protects local economic interests at the expense of out-of-state competitors except when:

1. The regulation is necessary to an important state interest AND

2. No nondiscriminatory means are available to achieve that purpose

Dormant Commerce Clause

Undue Burden on Interstate Commerce

RULE: A nondiscriminatory state regulation may be struck down if it imposes an undue burden on interstate commerce. To determine if an undue burden exists, a court will:

1. Balance the purpose of the state law against the burden on interstate commerce AND

2. Evaluate whether there is a less restrictive alternative.

Dormant Commerce Clause

Exceptions

• Market-Participant

• Traditional Government Function

• Congressionally Permitted Discrimination

Dormant Commerce Clause Exceptions

Market-Participant

A state can favor local commerce or discriminate against nonresident commerce if the state is acting as a buyer or seller and not as a market regulator.

Dormant Commerce Clause Exceptions

Traditional Government Function

State and local regulations can favor state and local government (not private) entities if the entities are performing a traditional government function (e.g., waste disposal).

Dormant Commerce Clause Exceptions

Congressionally Permitted Discrimination

An otherwise impermissible state regulation is valid if it is unmistakably clear that Congress intended to permit it.

Federal Preemption of State Law

General Rule

• Federal law supersedes conflicting state or local laws.

• If federal law does not preempt state law, then a state is free to enact legislation regarding the same issue.

• Federal law sets a floor below which a state law cannot go, but federal law does not set a ceiling above which state law cannot go.

Federal Preemption of State Law

Express Preemption

• Constitution makes federal power exclusive or

• Congress has enacted legislation explicitly prohibiting state regulation in the same area

Federal Preemption of State Law

Implied Preemption

• Field Preemption — Congress’s pervasive regulation shows an intent to occupy the entire field, or

• Conflict Preemption — When it is nearly impossible to comply with both laws or when state/municipal frustrates the federal law’s purpose

Full Faith and Credit Clause

A court must give out-of-state judgments effect if:

• The court rendering judgment had jurisdiction over the parties and the subject matter

• The judgment was on the merits (addressed substantive elements of a claim or defense) and

• The judgment was final (settled the rights of the parties and disposed of all issues).

State Action Doctrine

The Constitution generally protects against wrongful conduct by the government—not private parties. State action, which encompasses action by federal and local governments, is therefore a prerequisite to triggering constitutional protections.

State Action Doctrine

Traditional Government Function

State action occurs when a private person carries on a traditional government function, which is an activity that is traditionally performed exclusively by the state (e.g., running primary elections, running a company town).

State Action Doctrine

Entwinement

State action may exist if there are sufficient mutual contacts between the conduct of a private entity and the government such that the government is pervasively entwined with the entity and:

• Constitutional standards should apply to the private entity

• A mutual benefit results (e.g., joint venture) or

• The state creates a private entity by special law to further governmental objectives and retains permanent control of the entity.

Mere licensing or regulation of a private party is not state action. The state must affirmatively facilitate, encourage, or authorize the activity.

Factual Trigger for Procedural Due Process Analysis

Deprivation of life, liberty, or property without adequate process.

Procedural Due Process

Steps for Analysis

1. Was there a deprivation of a life, liberty, or property right?

2. If yes, courts determine amount of process due (usually some form of notice and opportunity to be heard).

   1. Balance (1) private interest, (2) government interest, and (3) risk of erroneous deprivation through procedures used vs. value of additional/substitute procedural safeguards.

Procedural Due Process

Courts determine the amount of process due by weighing:

• Individual interest affected;

• Risk of erroneous deprivation and value of additional safeguards; and

• Government’s interest, incl. burden/cost of additional process.

Procedural Due Process

Individual whose interest is being deprived is generally entitled to:

1. Notice of government’s action by an unbiased decision-maker, and

2. An opportunity to be heard

Substantive Due Process

General Rule

Laws should be reasonable (not arbitrary) and protect individual freedom.

Substantive Due Process

Level of Scrutiny for Government Action Infringing on Fundamental Right

Strict Scrutiny: Government has the burden of proving that the law is the least restrictive means (i.e., necessary) to achieve a compelling government interest.

Substantive Due Process

Level of Scrutiny for Government Action Infringing on Ordinary Right

Rational Basis Review: Challenger has the burden of proving that the law is not rationally related to a legitimate state interest.

Restrictions on Fundamental Right to Travel

Reasonable residency requirements/waiting periods may be imposed on receipt of some government benefits, but durational residency requirements that impinge on the right of interstate travel by denying newcomers “basic necessities of life” are permitted only if the state can satisfy strict scrutiny.

Restrictions on Fundamental Right to Voting/Ballot Access

• Ordinary/non-discriminatory restriction → RBR

  • E.g., voter registration, short-term residency reqs, photo-ID reqs, disallowing write-in voting, prohibiting felons from voting.

• Sever (discriminatory) restriction → Strict Scrutiny

  • E.g., poll tax, property ownership req, disallowing 3rd party candidates

The fundamental right to privacy encompasses the right:

1. To marry

2. To obtain and use contraception

3. To engage in intimage and consensual sexual behavior

4. Of parents to make decisions regarding the care, custody, and control of their children

5. Of families to live together

6. To possess obscene material

7. To refuse medical treatment

8. To avoid disclosure of personal medical information

Fourteenth Amendment Equal Protection Clause

When government substantially burdens a fundamental right or intentionally discriminates against a suspect class

Apply strict scrutiny:

• Requires the government to prove that its action is the least restrictive means to achieve a compelling governmental interest

Fourteenth Amendment Equal Protection Clause

Suspect Classes

• Race

• Ethnicity

• National origin

• Citizenship status

Fourteenth Amendment Equal Protection Clause

When government intentionally discriminates against a quasi-suspect class

Apply intermediate scrutiny:

• Requires the government to prove that its action is substantially related to an important governmental interest.

Fourteenth Amendment Equal Protection Clause

Quasi-Suspect Classes

• Gender

• Legitimacy (nonmarital children)

Fourteenth Amendment Equal Protection Clause

When governmental action does not impact a fundamental right or discriminate against a suspect or quasi-suspect class

Apply rational basis review:

• Challenger must prove that the law is not rationally related to a legitimate governmental interest (i.e., is arbitratry or irrational)

Fourteenth Amendment Equal Protection Clause

To trigger strict or intermediate scrutiny, there must be _________________ on the part of the government.

discriminatory intent

Fourteenth Amendment Equal Protection Clause

Facially Discriminatory

Language of the law distinguishes between different classes of persons

Fourteenth Amendment Equal Protection Clause

Discriminatory Application

• A facially neutral law is applied differently to different classes of persons

• Need proof of purposeful discrimination

Fourteenth Amendment Equal Protection Clause

Discriminatory Impact

• A law that is neutral on its face and in its application disproportionately impacts a particular class

• Need proof of purposeful discrimination, such as legislative history

Article IV Privileges and Immunities Clause (i.e., the Comity Clause)

Prohibits a state from discriminating against citizens of another state with respect to fundamental rights or essential activities (e.g., pursuit of employment, transfer of property, access to state courts).

Privileges and Immunities Clause

Discrimination against out-of-state citizens may be valid if the state can show:

1. A substantial reason for the difference in treatment and

2. A substantial relationship between the discrimination and the state’s objective

14th Amendment Privileges or Immunities Clause

Protects citizens from infringement by the states upon the privileges/immunities of national citizenship (e.g., interstate travel, voting for national offices, entering public lands, peaceable assembly).

5th Amendment Takings Clause

Provides that private property cannot be taken for public use without just compensation. It serves as a check on the government’s eminent domain power.

5th Amendment Takings Clause

A person must have a _____________ to challenge a governmental action as an unconstitutional taking.

property interest

5th Amendment Takings Clause

Types of Takings

• Physical

• Recharacterization

• Regulatory

• Exaction

5th Amendment Takings Clause

Physical Taking

• Seizure of property

• Primary challenge is whether the owner has received just compensation.

• May also arise from damage to or destruction of property.

5th Amendment Takings Clause

Recharacterization Taking

When the government recharacterizes private property as public property

5th Amendment Takings Clause

Partial Regulatory Takings Analysis

Regulatory takings that do not result in a permanent total loss of the property’s economic value are also referred to as “partial” regulatory takings and are subject to a three-part test:

1. the economic impact of the regulation on the property owner;

2. the extent to which the regulation interferes with the owner’s reasonable, investment-backed expectations regarding use of the property; and

3. the character of the regulation, including the degree to which it will benefit society, and whether the regulation violates any of the owner’s essential attributes of property ownership.

5th Amendment Takings Clause

Per Se (“Total”) Regulatory Taking

When a regulation results in:

1. a permanent physical occupation of the property by the government or a third party or

2. a permanent total loss of the property’s economic value.

5th Amendment Takings Clause

Exaction Taking

Exacting promises from a developer does not violate the Takings Clause if there is

1. an essential nexus between legitimate state interests and the conditions imposed on the property owner and

2. rough proportionality between the burden imposed on the property owner and the impact of the proposed development.