Con law rules

Dormant Commerce Clause

1. Has congress acted?

   1. If yes, then they have federally preempted. 

   2. If they have not acted, then legislation is constitutional. However, some actions are so bad that they’re unconstitutional on its face. 

   3. States may regulate interstate commerce when Congress has not acted. (Gibbons/Willson)

   4. BUT state laws that infringe on areas that are truly “national,” or admit of only one uniform system of regulation, may violate the Commerce Clause even if Congress has not acted. It all depends on the type of law at issue. (Cooley)

   5. BUT, Congress can permit state laws that otherwise would violate the Commerce Clause. (Wheeling Bridge) 

      1. In the absence of Congressional action, there are three broad principles: (1) Laws that facially discriminate against interstate commerce are subject to a virtually per se rule of invalidity. (2) Facially neutral laws are subject to the Pike balancing test, which states that burdens a state or local law imposes on out-of-state commerce must not be clearly excessive in comparison to the local benefits. (3) Otherwise applicable dormant commerce clause principles do not apply when the state is acting as a market participant.

Commerce Clause

1. Channels of interstate commerce

   1. River, road airport . . . 

2. Instrumentalities of interstate commerce and people and things in interstate commerce

   1. Truck, airplanes, ship . . . 

3. Activities that substantially affect interstate commerce

   1. Modified by subsequent cases

      1. MORRISON: these activities must be economic

      2. RAICH: doesn’t necessarily require activities be economic, but economic activities can be considered in the aggregate

         1. Defines economic activity as distribution, production, or consumption

         2. Rational basis test has a role in determining whether the law has a substantial effect on interstate commerce

      3. NFIB – prong only applies to activities, NOT inactivities

Spending power

1. Dole

   1. Spending in pursuit of general welfare but Congress is given considerable deference as to what constitutes the general welfare

      1. Briefly throw in idea of what can justify general welfare

   2. Conditions must be clear and unambiguous

   3. Conditions must be related to federal interest the spending is for

   4. Spending cannot violate constitution

   5. spending cannot be unduly coercive, states must have a real choice to refuse (NFIB)

Taxing power

Is it more like NFIB (penalty) or Bailey (tax)

• Who collects it? IRS

• Is there a knowledge requirement?

• proportion of payment? (high or low penalty)

Necessary and Proper

1. McCulloch

   1. Broad power, so long as it’s attached to another enumerated power

2. Comstock

   1. Factors supporting federal authority

      1. Breadth of N&P

      2. Long history of federal involvement in this area

      3. Sound reasons for the statute’s enactment

      4. Statute’s accommodation of state interests

      5. Statute’s narrow scope

   2. NFIB did not apply Comstick factors so they’re not binding, but you can consider tehm

3. NFIB

   1. Narrows the power → Congress cannot create a great, substantive, independent power (like requiring health care)

Presidential powers Starting point

• Youngstown

  • Establish the test (zone 1,2,3)

    • Zone 1: P acts in accordance with express or implied authorization, his authority is at its maximum because it includes al of his own power in addition to whatever Congress has delegated

      • Presidential act is likely legal;

    • Zone 2: in absence of a congressional grant or denial of authority, P may rely only on his own independent powers, but there is a zone of twilight of concurrent authority or where distribution is uncertain

      • Presidential power = president’s own independent power

        • Boundary btwen congressional and presidential power depends on the facts

        • Assuming congress has not legislative, this appears to fall into Youngstown category 2

    • Zone 3: president acts contrary to the expressed or implied will of congress, Presidential power is at its lowest

War power

• Analogize to Youngstown

• Youngstown

  • Truman steel seizure is youngstown 3 bc it implicitly violates Taft-hartlet act (president has no power)

• Prize cases

  • Only congress has the power to declare war, but when congress isnt in session, then the president can unilaterally repeal acts

Veto power

• Reserved solely to P

• Chada

  • Legislative veto is unconstitutional bc it violates the presentment clause (it must be presented to the P to be signed) and bicameralism (each house must agree to every bill)

  • one house legislative veto is unconstitutional; If any part of the law is unconstitutional, it is severable and cut from the rest of law

• Clinton v. City of NY

  • Line item veto act is unconstitutional bc P can only sign or veto a bill in its entirety (not just a piece)

Removal power

• Meyers

  • P can remove appointed officials without senate consent if the person is central to the executive branch function

• Selia Law

  • 2 exceptions to Meyers:

    • Members of multi-member expert commissions that perform both legislative judicial functions (humphreys); and

    • Inferior officers with limited duties and no policymaking or administrative authority

• Morrison v. Olson

  • P can remove inferior officers

    • Principal officer: appointed by P, confirmed by Senate

    • Inferior officer: other people can pick

  • Appointment Clause states that interbranch appointments are permitted so long as they are not incongruent

Recognition power

• Reserved solely to P to ensure one voice in foreign relations

• zivotofsky : obama’s refusal to write israel on passport is Youngstown 3 bc it violates statute BUT court finds statute unconstitutional bc it mandates president to act contrary to its policy of neutrality

• Interbranch appointments are okay so long as there’s no incongruity (can’t be wacky)

Presidential Privileges and Immunties

1. The President, VP, and all civil officers of the U.S. shall be removed from Office on impeachment for, and conviction of, Treason, Bribery, or other high Crimes and Misdemeanors. ⇐ (Impeachable Offenses)

Was P’s act done  in or out of office? Did it involve official or nonofficial info? Is it a civil or criminal trial?

• Nixon v. Fitzgerald

  • P has EP from damages actions arising out of official conduct birth while in office and after leaving officer

• Clinton v. Jones

  • Sitting PO has no immunity from federal civil litigation for non official actions before term 

• Trump v. US 

  • No immunity for unofficial acts

  • Absolute immunity for official acts within OP’s exclusive authority

  • Presumptive immunity for acts where P’s authority is shared with congress 

• Can mention necessary and proper power

Procedural Due Process

1. Does the plaintiff have a liberty or property interest?

2. If yes, then was the interest deprived?

3. What process does the Constitution require to protect that interest; what was due (Goldberg/Matthews)?

1. Goldberg

   1. Procedural Rights

      1. Recipients must be able to present their cases orally, in person;

      2. Right to confront adverse witnesses;

      3. Right to counsel fi they can afford it;

      4. Decisionmakers can rely on evidence adduced at the hearing, and must state the reasons and the evidence upon which they relied

2. Matthews

   1. Balancing test to determine what process is due:

      1. The private interest that will be affected by the official action

      2. The risk of an erroneous deprivation of the interest through the process used and the probative value, if any, additional or other procedural safeguards

      3. The Government’s interest, including the burden of additional process

2. Military detentions

   1. Hamdi

      1. The plurality explains that due process demands that a citizen held in the US as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decision maker.

Fundamental Rights under Due Process 

• Is it a fundamental right?

  • Washington v. Glucksberg test

    • Must be carefully described; and

    • Must be objectively deeply rooted in this nation’s history and tradition and implicit in the concept of ordered liberty (that a functional society would recognize

  • If yes, strict scrutiny test

    • Compelling state interest: govt’s best rationale

    • Narrowly tailored: least restrictive means to achieving the goal 

  • If no, rational basis test (Williamson)

    • Case illustration

    • Glucksburg

    • Lawrence & Obergefell (did not apply glucksburg)

  • Casey: undue burden → state’s can pass laws restricting abortion so long as they do not pose an undue burden on person seeking abortion; after viability, subject to rational basis

Immigration

1.  Does it involve immigration? (Chae Chan Ping)

   1. Is there a treaty?

      1. Last in time rule: between a statute or treaty, most recent rule applies

   2. Does it exceed the enumerated power of Congress?

Inherent power in nations to decide who enters the country and who doesn’t

Treaty power

1. Missouri v. Holland

   1. Is there a treaty? Does it conflict with state law (10th amend issue)

      1. Binds US as a whole, treaty supersedes state law (supremacy clause)

   2. Is the treaty constitutional?

      1. If yes, it is permitted because congress can do whatever is necessary and proper to execute it 

      2. If not, it is not valid

   3. Does it reach state crime?

      1. Bond: Federal statute will not be interpreted to reach state crime unless congress has made its intent to do so clear

Reconstruction Amendments Voting

1. Is Congress encroaching on state power?

   1. Voting rights

      1. South Carolina v. Katzenback

         1. Court is not saying its unconstitutional; they’re saying that this violates §1 so they can exercise §2 authority to limit state’s ability to have literacy tests 

         2. Uses McCulloch; if ends is constitutional, any means adapted to that end are constitutional 

      2. Shelby county

         1. Violated 15th amendment because outdated data

      3. Katzenback v. Morgan

         1. Mccollouch means ends test → plainly adapted to that end and consistent with the letter and spirit of the constitution

            1. Section 5 power is bigger, not dependent on a violation, not clear how much bigger

      4. Boerne (clarifies how much bigger from Morgan)

         1. §5 action must be congruent and proportional to the harm 

            1. Otherwise it would be too broad, too far §5 power is broad but not overtly so

         2. Example: Morrison

            1. VAWA applies uniformly across the nation → violates proportionality

            2. Too broad, applies nationwide

Bank

1. McCulloch v. Maryland (1819)

   1. Is the Bank constitutional? Yes

      1. Under Congress’ Necessary and Proper Clause power, the bank is a constitutional means to the ends of collecting taxes and disbursing loans

   2. Can a state tax the Bank? NO

      1. tax = power to destroy & supremacy clause – states have no power over the operation of the federal govt

Property/Contracts rights and natural law

Fletcher v. Peck

1. States and federal government cannot pass any law impairing the obligation of contracts. A state can’t repeal its own statute if it is a contract in its nature

Calder v. Bull

1. Constitutional law cannot be voided purely based on natural rights. Held that state legislature can’t deprive a citizen of a vested property right, even when such an act is expressly prohibited in the Constitution.

Dartmouth College v. Woodward

1. Court held that the contracts clause prevents a state from modifying or violating contracts of public or private corporations

American Indians

Johnson v. M’Intosh

1. Indigenous nations have the right of occupancy but not the right to transfer the land. Only federal government has the right to transfer land

Cherokee Nation v. Georgia

1. Cherokee Nation establishes tribal status as “domestic dependent nation,” in between a state and a foreign nation

Worcester v. Georgia

1. state law does not operate in tribal lands; it is a distinct community with own territory where LA laws can have no force

Interstate economy

Gibbons v. Ogden

1. Three possible views on state power to regulate interstate commerce

   1. States can regulate interstate commerce along with the federal government (like power of taxation, not this via Gibbons).

   2. States have no power at all (Johnson concurrence in Gibbons).

   3. If Congress has acted, contrary state law must give way to federal law (preemption).

Wilson v. Black Bird Creek Marsh Co.

1. If congress has legislated, states may not regulate (preemption). [valid today]

2. If congress has not legislated, states may regulate. [modified by subsequent cases]

Cooley v. Board of Wardens

1. Laws that infringe on areas that are truly “national,” or admit of only one uniform system of regulation, may violate the commerce clause even if Congress has not acted

PA v. Wheeling & Belmont Bridge

1. Congress can permit state laws that would otherwise violate the Commerce clause.

Economic Regulation in the Modern Era

Nebbia v. New York

1. Due process alone does not prevent states from enacting economic policies to further the public good as long as the laws are not arbitrary or unreasonable.

Home Building & Loan Assoc. v. Blaisdell

1. In times of economic emergency, states may alter the form of contracts so that they do not alter substantial obligations under the contract

West Coast Hotel v. Parrish

1. Expanded state power to pass economic legislation. Constitution doesn’t explicitly say anything about a liberty of contract, which means that it’s okay for the government to use its lawmaking powers to favor disadvantaged workers

U.S. v. Carolene Products

1. Whether a law is rationally related to a legitimate government interest. A court must determine if there is a rational basis for the legislature to have passed this law. If the answer is yes then the law is constitutional and can be applied

Williamson v. Lee Optical Co.

1. Law need not be logically consistent with its aims to be constitutional, it just needs to rationally be trying to correct some evil

Congressional Regulations of State Governments

Garcia v. San Antonio

1. Test for determining state immunity from federal regulation under the commerce clause: Whether the regulation as applied to state activity is destructive of state sovereignty or violative of any constitutional provision

Gregory v. Ashcroft

1. Clear statement rule: If Congress intends to regulate traditional functions of state governments, it must make its intent unmistakably clear in the language of the statute

New York v. United States

1. Federal government can’t order a state government to enact a particular legislation

Printz v. United States

1. Rule: Congress cannot compel state officials to participate in the administration of federal programs

2. Anti Commandeering for ministerial/reporting requirements does not apply

Murphy v. NCAA

1. Generally, Congress cannot commandeer state legislatures and prohibit legislation. Two exceptions:

   1. Congress evenhandedly regulates an activity in which both states and private actors engage OR

   2. The federal law purports to preempt state law

State “Sovereign Immunity”

Louisiana v. Jumel

1. Can’t bring suit against a state for money damages unless the state consents, which also applies to federal questions

Hans v. Louisiana

1. rule : A state may not be sued in federal court by one of its own citizens even if the cause of action arises under federal law

Seminole Tribe v. Florida

1. Congress may not abrogate states’ sovereign immunity protected by the Eleventh Amendment unless through an exercise of power derived from §5 of the Fourteenth Amendment.

Executive Privilege (subpoena)

• Nixon

  • P’s EP yields to specific evidential need in criminal case (absent a need to protect military, diplomatic, or sensitive national security interset)

• Trump v. Vance

  • Sitting P has no immunity from state criminal subpoenas for personal, nonofficial docs

• Trump v. Marzars

  • When congress was trying to subpoena docs from the P, consider whether

    • Purpose warrants the substantial step of involving president and his papers

    • subpoena is no broader than reasonably necessary

    • subpoena advances a valid legislative purpose

    • Burdens on P

    • Other factors