Con Law I - All Topics

Dormant Commerce Clause - Def

Judicial doctrine that restricts the ability of states to pass state legislation that affects IC.

Applies only to state law

Applies only when Congress has not acted (if they have = Preemption analysis)

Dormant Commerce Clause - Rule

Whether local law discriminates against IC or is generally applicable to local & IC

1. If discriminatory = Strict Scrutiny (Maine v. Taylor)

   1. Ct will ask whether there was a less restrictive way of achieving the policy goals

   2. If yes, statute struck down

2. If evenhanded = Pike Balancing Test

   1. Ct will ask whether local benefits are clearly outweighed by the burdens the statute places on IC

Carbone - Test for facially discriminatory laws

Per se invalid unless:

1. No other means to advance legitimate local interest

2. Rigorous scrutiny; “clearest showing”

Other DCC Cases

1. Hunt v. Washington State Apple Advertising Commission 

   1. NC apple growers wanted to restrict WA apple growers 

   2. Failed strict scrutiny 

2. Exxon v. Governor of Maryland

   1. State passed law prohibiting refiners from operating gas stations w/in the state  

   2. Nondiscriminatory (survived balancing test) 

3. Great Atlantic & Pacific Tea Co. v. Cortrell 

   1. Laws that discriminate for purpose of opening up IC still must survive strict scrutiny 

   2. Discriminatory 

4. New Energy Co. Of Indiana v. Limbach 

   1. Direct state subsidies do not violate DCC 

DCC Exceptions

1. Market-Participant: distinction between market participants and regulators

2. Provider of government services

Preemption Categories

1. Express = explicit preemptive language

2. Field = congressional intent to exclusively regulate in this area; no room for the states to supplement w/ own legislation

3. Conflict = compliance w/ both federal and state regulations is a physical impossibility or state law stands as an obstacle to the objectives of Congress

Arizona v. US

State immigration laws got in the way of federal immigration laws b/c immigration is already heavily regulated by the federal gov.

10A

Powers not delegated to the US by the Constitution, nor prohibited by it, are reserved to the states, or, to the people

NY v. US - Anti-Commandeering Doctrine

Congress may not require a state to enact state regulation.

Printz

ACD applies to state law enforcement and cannot commandeer executive branch of state govs.

Testa

Congress can require state cts to hear federal CoAs (application of supremacy clause).

The Civil Rights Cases

1. 14A applies only to state govs

2. 13A DOES apply to individuals but NOT civil wrongs

Marsh v. Alabama

If a private entity operates as a public town, they are a state actor and members of the public are entitled to the freedoms of the Constitution there.

Manhattan

A private entity is a state actor under the public function exception when exercising powers usually reserved to the states.

Burton

Symbiotic relationship test is fact & context dependent (state action getting more narrow)

Moose Lodge

Having a gov license does not automatically make one a state actor (state action getting even more narrow)

Lindke v. Freed

Social media user is a state actor if:

1. Action is traceable to state’s power/authority

2. Purported to exercise that authority

Art. II - Prez Powers

Sec.1, Cl. 1 - Vesting Clause

Sec. 2 - Prez Power - Commander-in-Chief

Sec. 3 - Prez Duties - Take Care Clause

The Separation of Powers

The text of the Constitution allocates the national power among the legislative, executive, and judicial branches, in a framework providing for separation of functions as well as interlocking checks on the accretion of power.

Youngstown - EO

2 Sources of Prez power for EO:

1. An Act of Congress

2. From the Constitution itself

Only Congress is vested w/ lawmaking; Prez is restricted to recommending/vetoing laws and ensuring the faithful execution of properly enacted law (in good times & bad)

Youngstown - 3-Part Typology of Prez Power

1. Max Powers = when Prez acts pursuant to Congressional authorization (express or implied)

2. Zone of Twilight = statutes silent on Prez action

3. Lowest Ebb = Prez acts contrary to express/implied will of Congress (Prez powers minus Congress power)

US v. Nixon

Endorsed presumptive privilege

1. Ct balances the importance of executive privileges (need for candor & confidentiality) w/ the fair administration of criminal justice

2. Privilege cannot rest on a generalized interest in confidentiality

Trump v. US - Structural Categories

1. Acts w/in conclusive & preclusive authority = absolute immunity

2. Acts w/in outer perimeter of official responsibility = presumptive immunity

   1. Cannot inquire into motives

   2. Not unofficial just b/c illegal

3. Unofficial acts = no immunity

INS v. Chadha

Legislative vetoes are unconstitutional

Congress may not reserve the right to review & reject executive actions w/o complying w/ the constitutional requirements of bicameralism & presentment

Foreign Affairs Clauses

1. Art. I, Sec. 8 - Congress power of the purse & other war provisions

2. Art. II, Sec. 2 - 2/3 of the Senate must consent to Prez treaties

3. Art. II, Sec. 2 - Prez is commander in chief & can make treaties

4. Art. II, Sec. 1 - Vesting Clause

US v. Curtiss-Wright

Prez’s power must be interpreted differently and more broadly regarding foreign affairs.

Zivotofsky

Prez has sole power to recognize federal sovereignty.

Art. III, Sec. 2, Cl. 2 - Exceptions and Regulations Clause

This clause grants Congress the authority to make exceptions to the Supreme Court's appellate jurisdiction and to regulate the jurisdiction of lower federal courts.

Art. VI, Cl. 2 - Supremacy Clause

This clause establishes that the Constitution, along with federal laws made pursuant to it and treaties, is the supreme law of the land, superior to state laws.

Marbury v. Madison

1st case where SCOTUS found something Congress did unconstitutional; established power of judicial review + SCOTUS is final interpreter of the Constitution.

Cooper v. Aaron

SCOTUS decisions are binding on all states b/c Supremacy Cl. makes constitution supreme law of the land + Marbury made SCOTUS the final interpreter of it.

Martin v. Hunter’s Lessee

SCOTUS has appellate jx over constitutional decisions by state courts.

Cohens

SCOTUS has appellate jx over court decisions regarding claims arising under federal law.

Ex Parte McCardle

Pursuant to E & R Cl., Congress may limit a court’s jx to hear a case.

Ex Parte Yerger

Jx limits are to be construed narrowly.

US v. Klein

Congress’ power to limit court jx does NOT include prescribing rules of decision b/c that would violate SoP.

Robertson v. SAS

Not an impermissible “rule of decision” if statute “compelled changes in law, not findings or results under old law.”

Art. III, Sec. 2, Cl. 1 - Case or Controversy Requirement

Restricts federal judicial power to actual, concrete disputes between adverse parties, preventing courts from issuing advisory opinions.

28 USC 2201(a) - Declaratory Judgement Act

DJ’s are not AO’s b/c they have an actual case or controversy.

Muskrat

No case, no controversy = no power; federal cts will not issue AO’s.

Re: Advisory Opinions

Case must be actual dispute between adverse litigants seeking resolution of concrete dispute that can be finally resolved by federal cts; federal cts will not provide legal advice to other branches.

Lujan Elements

P must have suffered an:

1. injury in fact (invasion of legally-protected interest)

   1. Which is concrete & particularized

   2. AND actual or imminent (not conjecture or hypothetical)

And be able to demonstrate:

2. Causation (“fairly traceable”)

3. Redressability

Havens Realty

Standing can be provided by Congress through the deprivation of legislative rights which would create an injury.

Spokeo Concreteness Factors

1. Concrete does not mean tangible

2. Historical practice

3. Congressional judgement

4. Risk of concrete harm may be sufficient

TransUnion

Close historical or CL analogue for asserted injury.

FDA v. AHM

1. Cannot spend your way into an injury

2. No ideological injuries

3. Concrete means real, not abstract

Singleton

No 3rd-party standing w/ exceptions:

1. Ct examines relationship of litigant to the person whose right he seeks to enforce

2. And the ability of the 3rd party to assert their own right

Friends of the Earth

Deterrence is redress of injury so = remedy.

Mass v. EPA

Special solicitude for the quasi-sovereign powers of the states.

Defunis v. Odegaard

Federal cts are w/o the power to decide questions that can’t affect the rights of litigants before them.

Exceptions:

1. Voluntary cessation of allegedly illegal conduct (refers to behavior of D - did they stop the wrong to get rid of the suit)

2. Capable of repetition yet evading review (not about D’s conduct, it’s about the thing being litigated)

Art. I, Sec. 8, Cl. 18 - Necessary & Proper Clause

Congress shall have power to make all laws necessary & proper for executing powers.

McCulloch v. Maryland

Congress possesses powers not explicitly in the Constitution; necessary = appropriate & legitimate, covering all methods for furthering the objectives covered by the enumerated powers

• + power comes from the people

• + cts should read the Constitution expansively

Art. I, Sec. 8, Cl. 3 - Commerce Clause

Congress shall have the power to regulate commerce among the several states (+ foreign nations and Indian tribes).

Gibbons v. Ogden

Expansive view of the CC

1. Congress has power to regulate navigation via the CC

2. Congressional regulation in this case conflicts w/ state (direct collision = fed wins)

3. Valid congressional regulation of IC preempts inconsistent state regulation

Lopez Factors

1. Does statute regulate economic/commercial activity?

2. Does statute contain a jx element?

3. Does statute regulate a traditional area of state concern?

4. Are there congressional findings regarding the activity’s effect on IC?

Other Commerce Clause Cases

NLRB v. Jones & Laughlin: Congress may regulate intrastate industrial activities that have a close and substantial relation to interstate commerce, regardless of whether they involve production or manufacturing.

US v. Darby: Congress may regulate interstate commerce to prohibit the shipment of goods produced under substandard labor conditions, as such conditions have a significant impact on interstate commerce.

Wickard v. Filburn: Congress may regulate purely intrastate activity under the Commerce Clause if, viewed in the aggregate, that activity exerts a substantial economic effect on interstate commerce.

Heart of Atlanta: Congress may regulate the movement of persons across state lines as commerce, supported by congressional findings of effect on interstate commerce.

Katzenbach v. McClung: Congress may regulate local businesses under the Commerce Clause where their activities, viewed in the aggregate and supported by congressional findings, affect interstate commerce.

Morrison: Congress may not regulate non-economic activity under the Commerce Clause, even with supporting findings, where the activity falls within a traditional area of state concern.

Gonzales v. Raich: Congress may regulate purely local, non-commercial activity when it is part of a broader class of activities that, taken in the aggregate, substantially affects interstate commerce.

13A - Enforcement Clause (Jones v. AHM)

Congress has the power to rationally determine what slavery is & the authority to translate that determination into effective legislation.

14A, Sec. 1 - Equal Protections

1. Privileges and Immunities Clause

2. Due Process Clause

3. Equal Protections Clause

All prohibit/require states to protect rights

14A, Sec. 5 - Enforcement Clause

1. Broad Scope: Congress may use power to expand the scope of rights & even define meaning of constitutional provisions, so long as Congress does not dilute rights (Katzenbach)

2. Narrow Scope: Congress may only provide remedies for rights recognized by cts; Congress may not create new rights or expand the scope of rights (City of Boerne)

City of Boerne - 2-step Test

1. What is the constitutional right at issue and to what degree is it being violated?

2. When comparing the right to the scope of enforcement legislation, is the legislation “congruent & proportional” to the right it seeks to enforce?

Employment Division v. Smith

Neutral, generally applicable laws may be applied to religious practices even when not supported by compelling government interest.

Art. I, Sec. 8, Cl. 1 - Taxing & Spending Power

Grants Congress broad authority to levy taxes and spend money for the "common Defence and general Welfare of the United States".

US v. Butler

1. T & S is a broad power limited only by the requirement that it be in pursuit of the general welfare

2. AND not limited by direct grants of legislative power found in the Constitution

Sonzinsky

1. Do not examine the motives of Congress in regards to T &S

2. Tax cannot be a penalty disguised as a tax

NFIB v. Sebelius - Functional Approach

1. Burdensomeness of the purported tax

2. Existence of a knowledge, or scienter, requirement as predicate to liability under tax

3. Process by which the tax was enforced

South Dakota v. Dole - Limits to SP

1. Must be in pursuit of the general welfare

2. Must be unambiguously stated that funds are granted conditionally

3. May be illegitimate if conditions are unrelated to federal interest in spending program

4. Other parts of the Constitution may be independent bars

5. Condition may not be “unduly coercive”