Professional Documents
Culture Documents
Supremacy Clause
Article VI, Section 2, of the U.S. Constitution
o Federal laws take supremacy over state laws
If federal and state law conflict, federal law wins
o McCulloch v. Maryland
Default Rule
States can't destroy federal entities
o So, we come to the idea of...
Preemption
o When a state law goes away because of a federal law, the term we use is "the state
law is preempted"
o There are several types of preemption; all have a Constitutional base in the
Supremacy Clause, and all go back to Congress' intent
Express Preemption
o This is when Congress passes a law and says "we expressly preempt state laws on
this topic/in this area."
Not terribly controversial
o Whether or not something preempts state law or not is at some level, a question
for Congress (although Court determines whether or not it exists)
Congress can also say "this does not preempt"
o This is typically straightforward, as it starts off with a clear statement about what
state law is being pushed aside
Implied Preemption
o This is more complicated, and there are different types
Field Preemption
You only have a federal law, and Congress has displaced the state from any
regulation in this field
o This is very rare
A field is off limits
o Nuclear Plant Safety is an example of this
Whether or not Congress acts at all in this category, the states cannot; they are
preempted by field preemption
There is a regulatory gap; Congress has occupied a field, and anything a state
does in it is no good
Therefore, nobody may be regulating as Congress won't, and the states can't
When it exists, we interpret it very narrowly
A state can still, say, set a speed limit on a road directly alongside a nuclear power
plant
Conflict Preemption
o There is a federal law, then there is a state law, and there is some sort of conflict
between the two
Literal Impossibility
Not terribly controversial, like express preemption
o "The wall in this room must be blue," and another with authority says "The walls
must be anything but blue"
It is literally impossible to comply with both directives
Obstacle Preemption
This can be complicated, and is the most controversial part of preemption
o It's not express, and its not literally impossible
You have a state law, and a federal law, and you could comply with both
Conservatives love this to displace state law
Even though its literally possible to comply with both laws, if the state law is
allowed to continue its existence at the same time as the federal law, the
purpose of the federal law will be undermined
o First, you must figure out what is the purpose of the federal law....is the state
law an obstacle to fulfilling the federal law's purpose?
o Then, you need to figure out whether this state law that you could comply with
concurrently has such an effect on that purpose, that it is an obstacle to
achieving it
A court must now make a number of judgment calls on these questions
See Geier v. American Honda
o Federal law trumps subsequent state law that is not an obstacle to existing federal
law, but rather expands it
Nevertheless, state law trumped and invalidated by preemption
See American INS. Assoc. v. Garamendi
o Cali law conflicts with Presidential order's method of handling affairs
Cali law preempted and invalidated
Contracts Clause
The Contract Clause prohibits states from enacting any law that retroactively
impairs contract rights.
o It applies only to actions of the STATE (including all of it's subdivisions...cities,
towns, counties, etc.)
The Federal Government CANNOT violate it under ANY circumstances
The Framers were concerned about States passing laws with respect to debts
o That is, that States would do things and say "I know you (Big Bank) loaned my
citizen here, in NJ, money to buy a farm...so we're going to pass a law that says he
doesn't have to pay you!"
The concern was that a state or states would "abolish" debts
Almost all of this was the fact that one state would say to someone from another
state "hey listen, we're going to take care of our own and we just aren't going to
pay you back."
Over time, this expanded beginning with Marshall, and started to apply to more
situations
o It started with contracts, and expanded as it moved forward
1) So, again, this DOES NOT APPLY TO FEDERAL GOVERNMENT
2) It's backwards looking; you can't impair an obligation of a contract that does
not yet exist
3) Can't be a merely incidental effect; if you have a law of general applicability
that has a merely incidental effect of affecting a contract, that isn't good enough
Example is the Freedom of Religion Clause...freely exercise your choice of
religion
o Say you're a Native American, and you're a member of your native church, and you
smoke paoti as part of a ceremony and go to work the next day (as a drug
counselor), you're drug tested, and then fired for + results
o You go to seek unemployment benefits, and you're told you cannot get them
because you tested + on a drug test, which inhibits your right to benefits
o You sue because the law infringes your freedom of religion
You are unlikely to win; this is a law of general applicability that merely
affects your freedom of religion
o Alternatively, you're a member of the Church of Santeria, and sacrifice chickens as
part of your practices
o Where you live creates a series of laws that prohibits killing live animals within the
city limits, but has exceptions such as kosher slaughterhouses
o You sue, because it infringes your right
You are likely to win; such laws are not determined to be generally applicable;
they are targeting your church
This appears general, but is actually pretty specific
Basically, if the law appears to be of general applicability, it will not be in
violation of the Contracts Clause
4) Applies to both Public & Private Contracts
Assume Florida passed a law that said, if you're in Florida, you must buy oranges
grown in Florida
o This is unconstitutional under the Dormant Commerce Clause
Public
o 1) Normal Rules Apply
o 2) States can contract around the contract clause
Private
o 1) In order for there to be a violation, the impairment must be substantial (more
than a material breach)
"All or most of a party's contractual rights are destroyed" acc'd to Court
o 2) Reliance on right(s) of impaired
o 3) Duration matters
A delay in being able to exercise a contractual right, all other things being equal, is
less likely to be an impairment if we eliminate that right totally
o 4) History matters
If a State has never been in a particular area and issues a law in respect to it,
that's more likely to be an impairment
o 5) Social Interests that ought to be accomplished
What is the state's goal? What is it trying to do? How important is that?
Restrictions on State Power (like the Contracts Clause) can be express, OR
they can be from the structure/values of the Constitution itself
o Facially Neutral (On its face, treats in-staters and out-of-staters alike, but has
the purpose or effect of discriminating)...two subtypes
Impact Only
There's an impact on interstate commerce (if there's no impact, there's no problem
at all, obviously)
o The impact is on both instate and interstate commerce
Start with the presumption that the law is constitutional.
o Challenger has the burden to show otherwise
This is the exact opposite of a Facially Discriminatory statute analysis
The Supreme Court uses a test that balances the local benefits of the law v. the
burdens on interstate commerce; the Pike Balancing Test...CHART
o Now, do the burdens substantially outweigh the local benefits? (this is very
hard to do)
Discriminatory Effect
Assume a state passes a law that says "All apples sold in this state must use our
grading system for apples, instead of the USDA"
o Not facially discriminatory...doesn't matter where the apples came from
o Not impact only, as it had no effect on instate commerce, but only out of state
commerce, which used the USDA
This is because, in fact, the state here DIDN'T use USDA
So, it was discriminating against out of state commerce explicitly with this
restriction
These are always struck down
o YOU LOSE, OR,
o Go to Facially Discriminatory, OR,
o Apply Modified Pike Balancing, the opposite of regular Pike Balancing
Law assumed unconstitutional, STATE must show the burdens DO NOT
outweigh legitimate local benefits, and if they do that, then must show there's a
LESS discriminatory way to achieve those benefits
Basically...this is impossible
Discriminatory Purpose
No longer used, because its basically the same as Discriminatory Effect
o Market Participant
The Dormant Commerce Clause DOES NOT APPLY in these situations; it acts as
an exception to the restriction of government by the Constitution in these specific
instances
When a state is acting is acting as a producer or supplier of a marketable good
or service...in such a role, it may permissibly discriminate against
nonresidents.
Example of "OK" MP Action
When a state is engaging in the buying or selling of goods, it may choose to buy
from local companies at a higher price than it would pay out of state, or sell to
local companies at a lower price than it would otherwise receive.
The state, in participating in the market, is doing what "you or I could do"
See South Central Timber v. Wunnicke
Alaska got involved in selling its timber, which was ok as a MP under the
DCC...BUT, then it also tried to force purchasers to process the wood in
Alaska, which the state wasn't involved in directly
o A state may not impose conditions, whether by statute, regulation or contract, that
have a substantial regulatory effect outside of that particular market.
The state cannot use its position in one market to influence another
Alaska owned timber; that made it a participant in the market of buying and
selling timber
o HOWEVER, it could not pass a law saying everyone in Alaska must only buy or
sell to specific parties
The State may not avail itself of the market-participant doctrine to immunize
its downstream regulation of a market it is not actually a participant
"Fundamental Rights"
o What the Clause is seeking to balance (not the same as Fundamental Rights under
Due Process...same term, two different meanings)
Rights that are important in establishing a national harmony and national union
o Three Rights Exist unde the PIC according to Court
Right to Engage in a Trade or Business
State must treat instate/out citizen of state equally UNLESS it has a REALLY
good reason
Right to Own and Dispose of Property
Again, a state cannot treat its citizens differently than out of staters in respect
to owning and disposing of property UNLESS it has a good reason
Right to Access Courts
Again, a state cannot treat its citizens differently than out of staters in respect to
court access UNLESS it has a really good reason
***None of these mean the Constitution says you have a right to do
them...they are in regard to the state's treatment of said rights***
NOTE: The clause uses the word citizen, rather than person
The clause ONLY APPLIES TO PEOPLE (HUMANS, not corporations), and
they MUST be citizens
o Cannot be violated with respect to a non-U.S. citizen, OR corporations
TEST
o First, what is the problem, and does this involve a state citizen?
o Second, is the state law violating a fundamental right (one of three above?) Try
to make it fit into one if it isn't obvious, or shimmy it into a related "Fourth"
category, or you lose.
o Third...under this clause, a state may not deny essential rights to a resident of
another state unless there is a substantial justification (reason) for the difference
in treatment (Causation)
o Fourth, the nonresident must be shown as the constitute a peculiar source of
the evil at which the statute is aimed
There must be a specific connection between the state goal, and the
discriminatory action...the out of staters must be a special source of the
problem the state is trying to address (Remediation)
o Fifth, there must be a lack of workable, less discriminatory means as an
alternative
Abortion Cases
See Roe v. Wade
o Statutes that make criminal all abortions except when medically advised for the
purpose of saving the life of the mother are an unconstitutional invasion of privacy.
o The Court finds that an abortion statute that forbids all abortions except in the case
of a life saving procedure on behalf of the mother is unconstitutional based upon
the right to privacy.
However, it does allow for regulation and proscription of abortion when the
statute is narrowly tailored to uphold a compelling state interest, such as the
health of the mother or the viable fetus.
o The Court could have said
Life begins at conception
All up to the states
Looked at this as Equal Protection
All up to the woman
o They did none of these...the Court tried to balance things...TEST (which
narrowly tailored its factors)
1) Preserving the health of the mother, noting that there are risks in having, or not
having, an abortion...these interests CAN be compelling in infringing on the right
to abortion
2) Preserving the health of the potential baby, which CAN be compelling in
infringing on the right to abortion
The tricky part...balancing the intersts
Roe adopted a trimester approach
o At the end of the First Trimester, the Court said that the state's interest in
perserving the health of the woman becomes compelling
Until this point, the risk of an abortion IS NOT GREATER THAN the risk of
carrying the pregnancy full term
Until this point in time, the state cannot ban abortion UNLESS the state has a
sufficiently and narrowly tailored reason in acting to preserve the health of the
woman
o At the end of the Second Trimester, the Court said that the state's interest in
preserving the potential life becomes compelling
At this point, the state can ban abortion...it was reasoned that at this point, the fetus
can be viable and live outside the womb
There needed to be an exception here, however, for the life and health of the
mother
This framework is no longer in complete use...it was amended by subsequent
cases
-Between Roe and Casey, the Court underwent some changes in its Justices, and
the notion of abortion/medical tech improvements had an impact-
Sodomy Cases
See Bowers v. Hardwick
o The majority opinion argued that the Constitution did not confer "a fundamental
right to engage in homosexual sodomy"
It upheld the constitutionality of a GA sodomy law criminalizing oral and anal sex
in private between consenting adults when applied to homosexuals
o The dissent framed the issue as revolving around the right to privacy, accusing the
Court of an "overall refusal to consider the broad principles that have informed our
treatment of privacy in specific cases."
In response to invocations of religious taboos against homosexuality, Blackmun
wrote:
"That certain, but by no means all, religious groups condemn the behavior at issue
gives the State no license to impose their judgments on the entire citizenry."
See Lawrence v. Texas OVERTURNED Bowers
o In the 63 ruling, the Court struck down a similar sodomy law in Teaxas and, by
extension, invalidated sodomy laws nationwide, making samesex sexual activity
legal in every U.S. state and territory
o Note: If something is struck down as a violation of Equal Protection, is says
nothing about whether or not the government can do what its doing, it ONLY
says you can't distinguish between GROUPS of people
With DUE PROCESS, it's saying you CAN'T do what you're doing,
government...THE RULING, THEN, IS MORE SWEEPING IN ITS EFFECT
o 5 votes said this was Due Process (lead by Kennedy)
Kennedy said that this was an issue of substantive due process, directly challenging
Bowers
The majority decision also held that the intimate, adult consensual conduct at issue
here was part of the liberty protected by the substantive component of the
Fourteenth Amendment's due process protections.
Holding that "the Texas statute furthers no legitimate state interest which can
justify its intrusion into the personal and private life of the individual", the court
struck down the antisodomy law as unconstitutional.
o 1 vote concurrence, using Equal Protection (O'Connor)
Disagreed with the overturning of Bower and disputed the court's invocation of
due process guarantees of liberty in this context.
Rather than including sexuality under protected liberty, she used the equal
protection argument and struck down the law because it was directed at one group.
O'Connor maintained that a sodomy law that was neutral both in effect and
application might be constitutional, but that there was little to fear because
"democratic society" would not tolerate it for long.
A law limiting marriage to heterosexual couples would pass the rational scrutiny as
long as it was designed to "preserv[e] the traditional institution of marriage" and
not simply based on the state's dislike of homosexual persons.
o 3 vote dissent, (lead by Scalia)
Since the court does not find homosexual sodomy to be a fundamental right, and
merely describes it as an exercise in liberty, a rational basis scrutiny should be
applied, and in doing so, the law would be upheld.
The court's willingness to overturn Bowers rather than use stare decicis, is
inconsistent with other case law such as Planned Parenthood, and the court should
be consistent and stable
Since all laws, by definition (as example, prostitution, using heroin, etc) affect
liberty, they would all be unconstitutional under this courts ruling.
Race Cases
See Plessy v. Ferguson (overturned)
o A Louisiana statute required railroad companies to provide separate, but equal
accommodations for its Black and White passengers.
The Plaintiff, Pless, was prosecuted under the statute after he refused to leave the
section of a train reserved for whites.
o A law, which authorizes or requires the separation of the two races on public
conveyances, is consistent with the Fourteenth Amendment of the United States
Constitution unless the law is unreasonable.
The Fourteenth Amendment of the Constitution does, however, require that the
exercise of a States police powers be reasonable.
Laws enacted in good faith, for the promotion of the public good and not for the
annoyance or oppression of another race are reasonable.
o As such, the statute was reasonable.
See Brown v. Board
o Black children were denied admission to schools attended by white children under
laws that permitted or required segregation by race; the children sued.
Even if the tangible factors of segregated schools are equal, to separate black
children from others of similar age and qualifications on the basis of race,
generates a feeling of inferiority and may affect them permanently
o Separate but equal educational facilities are inherently unequal.
Overturned Plessy
See Loving v. Virginia
o The state of Virginia enacted laws making it a felony for a white person to
intermarry with a black person or the reverse.
The constitutionality of the statutes was called into question.
o Restricting the freedom to marry solely on the basis of race violates the central
meaning of the Equal Protection Clause.
The fact that Virginia bans only interracial marriages involving whites is proof that
the miscegenation statutes exist for no purposes independent of those based on
arbitrary and invidious racial discrimination.
See Washington v. Davis
o A higher percentage of black applicants than white applicants failed a qualifying
test administered by the District of Columbia Police Department.
Some of the unsuccessful black applicants claimed these effects constituted
unconstitutional discrimination against them.
o Proof of a disproportionate impact is not enough, standing alone, to ground a
finding that a law amounts to unconstitutional discrimination.
Disproportionate impact is not irrelevant, but it alone does not trigger the rule that
racial classifications are subject to the strict scrutiny standard of review.
The police forces efforts to recruit black police officers are evidence that the
police department did not intentionally discriminate on the basis of race.
o The exam is rationally related to the legitimate government purpose of ensuring
that police officers have acquired a particular level of verbal skill.
See Grutter v. Bollinger
o A white law school applicant challenges a law schools use of race as a factor in
the admissions process.
Schools may consider race as a part of the admissions process as long as it is only
one factor in an individualized process.
The law school in this case was conducting highly individualized reviews of each
applicant, and Justice OConnor determined that race was only one of many factors
considered to determine the applicants eligibility.
Schools have a compelling interest in having diverse student bodies, i.e.
educational diversity
See Parents Involved in Community Schools v. Seattle School District
o When determining where to place a child or where to transfer a child both school
districts use race as the qualifying factor on where to send the child.
o Seattle allows students to choose a high school but when too many students choose
a school they decide based on siblings in schools and the race of the child.
School plans that use race alone as a qualifying criterion for school assignments is
unconstitutional; using race to eliminate racial disparity is a compelling interest,
though
In order for a state actor to engage in discriminatory actions it must do so in a
way that is narrowly tailored to achieve a compelling state interest.
See Fisher v. University of Texas
o Texas legislature enacted a law requiring the University of Texas to admit all high
school seniors who ranked in the top ten percent of their high school classes.
After finding differences between the racial and ethnic makeup of the university's
undergraduate population and the state's population, the University of Texas
decided to modify its race-neutral admissions policy.
o The new policy continued to admit all instate students who graduated in the top ten
percent of their high school classes.
For the remainder of the instate freshman class the university would consider race
as a factor in admission.
o Open issue; not decided yet
Gender Cases
See Frontiero v. Richardson
o Appellant asserts that a military practice that automatically allowed the wives of
male officers to be considered as dependents and thus receive the rights of
dependents was unconstitutional gender based classification.
WHY? Because it required the female officers, in order to get the benefits for their
husbands, to actually prove that their husbands were dependent upon them
o Classifications based on sex are inherently suspect and must be subject to strict
judicial scrutiny
Classifications based on sex are inherently suspect per the Due Process Clause of
the Fifth Amendment and the Equal Protection Clause of the Fourteenth
amendment and must be subject to strict judicial scrutiny
See Craig v. Boren
o Oklahoma State maintained different drinking ages between men and women for
the consumption of 3.2% alcohol beer.
The Appellant now alleges that this difference violates the Fourteenth Amendment
of the United States Constitution
o Gender-based classifications must satisfy intermediate scrutiny requirements to
pass constitutional muster (intermediate scrutiny created and used here)
The gender based classification must serve an important government objective and
be substantially related to the achievement of such objective.
The District Court unequivocally found that the objective to be served by the
statute is increased traffic safety.
o The Court disagreed with these findings, and as such, it is not constitutional as
it is inconsistent with the EPC
See United States v. Virginia
o Virginia Military Institute (VMI) was the only single sexed school in Virginia.
VMI used a highly adversarial method to train (male) leaders of the future; there
was no equal educational opportunity to that of VMI in the State for women.
o Gender based classifications of the government can be defended only by
exceedingly persuasive justifications.
The State must show that its classification serves important governmental
objectives and that the means employed are substantially related to those
objectives.
The justification must be genuine, not hypothesized, and it must not rely
onoverbroad generalizations about the differences between males and females.
Generalizations about the way women are or what is appropriate for them will no
longer serve to justify denying opportunity to those whose talents and capabilities
make them exceptions to the average description.
The appropriate remedy here is to admit women, and that's just what the ruling did.
Other
See City of Cleburne, Texas v. Cleburne Living Center, Inc
o The Petitioner, City of Cleburne (Petitioner), denied a special use permit to the
Respondent, Cleburne Living Center (Respondent), for the establishment of a
group home for the mentally retarded in the community.
The Court of Appeals of the Fifth Circuit determined that this group is a
quasisuspect class and that the ordinance violated the Equal Protection Clause of
the United States Constitution
o The Court said no; this is neither suspect nor quasisuspect (the following
reasons are not a check off list; they are things the Court considers)
The Court described the group visavis it's nature...it is not a monolithic group, such
as women (all women can get pregnant)
The mentally retarded are not monolithic as they vary widely between one another
in their capibilities
Further, if a group has political power, there is less concern
This group of people has attracted law makers' interest for some time and on many
issues
How do we distinguish other groups, then, if we open up this group to judicial
review?
Too many "opens the floodgates"
The immutability of the change
The obviousness
There may be a trait that combines a group, but if it isn't obvious, they may be less
likely to need protection
See Romer v. Evans
o Colorado voters adopted Amendment two to their State Constitution, precluding
the government from adopting measures that would protect homosexuals from
discrimination.
The state trial court enjoined enforcement of the act.
o A bare desire to harm a politically unpopular group cannot constitute a legitimate
governmental interest
Amendment two relegates homosexuals to a solitary class and withdraws from
them, but no others, legal protections arising from discrimination.
Its reach includes the States public accommodation laws, as well as laws
prohibiting discrimination in the housing, insurance and education markets.
A law making it more difficult for one group of citizens to seek assistance from the
government than another is a denial of the Equal Protection of the laws in the
most literal sense
(i.e. the means do not fit whatever ends sufficiently to pass rational basis review).o
Moreover, the means of Amendment two are so broad in relation to its ends (to
prevent the deterioration of sexual morality) that we cannot credit them.
The Supreme Court of the United States (Supreme Court) is left with the
conclusion that Amendment two constitutes a classification for its own sake.
Class legislation is obnoxious to the Fourteenth Amendment. (i.e., the ends are
illegitimate).
Commerce Clause
Congress was given the power to regulate commerce so that national commercial
interests might prevail over what the Federalists called local protectionist
"factions"
o Over time, Congress' abilities to tap into that power have changed concurrently
with the Court's views
Framing-Civil War: Congress barely did anything related to the CC; Ogden is the
biggest event
Civil War-New Deal: Congress was very restricted by the Court in its use of the
CC
New Deal-1995: Congress was barely restricted at all by the Court
1995-Present: Zigzagging like crazy! Restricted, unrestricted...it's anybody's
game, really!
Framing-Civil War
See Gibbons v. Ogden (1824)
o The laws of New York granting to Robert R. Livingston and Robert Fulton the
exclusive right of navigating state waters with steamboats are in collision with the
acts of Congress.
The acts of Congress under the Constitution regulating the coasting trade are
supreme.
State laws must yield to that supremacy, even though enacted in pursuance of
powers acknowledged to remain in the States.
A license, such as that granted to Gibbons, pursuant to acts of Congress for
regulating the coasting trade under the Commerce Clause of Article I confers a
permission to carry on that trade.
o A state may not pass legislation inconsistent with federal law which regulates a
purely internal affair regarding trade or the police power, or is pursuant to a power
to regulate interstate commerce concurrent with that of Congress
States do not have the power to regulate those phases of interstate commerce
which, because of the need of national uniformity, demand that their regulation, be
prescribed by a single authority.
A state does not have the power to grant an exclusive right to the use of state
navigable waters inconsistent with federal law.
o The power to regulate Commerce is:
The power to regulate; that is, to prescribe the rule by which commerce is to be
governed.
This power, like all others vested in Congress, is complete in itself, may be
exercised to its utmost extent, and acknowledges no limitations, other than are
prescribed in the Constitution.
In interpreting the power of Congress as to commerce among the several states:
"(Dormant Commerce Clause)"
The word among means intermingled with.
o A thing which is among others, is intermingled with them.
Commerce among the States, cannot stop at the external boundary line of each
State, but may be introduced into the interior
o Comprehensive as the word among is, it may very properly be restricted to that
commerce which concerns more States than one.
Sometimes, whether or not Congress acts, the states may or may not be
affected/restricted
(Just because Congress can regulate commerce does not mean a state cannot, so
long as it does not unduly burden commerce)
o Marshall thought otherwise in this case, but was proven wrong later on
o Defining how far the power of Congress extends:
The power of Congress, then, comprehends navigation, within the limits of every
State in the Union; so far as that navigation may be, in any manner, connected with
commerce with foreign nations, or among the several States.
Because Congress regulated navigation, New York could not.
This was the first major case to analyze the powers of Congress under the
Commerce Clause.
o In so doing, the Court interpreted the powers to be very broad, reaching any
activity that affected commerce between or among states.
The Court also decided that there was a distinction between direct and
indirect regulation
o The Court said that Congress may only regulate directly; indirectly is no good
Why these views?
o Laissez Faire Mentality
During this era, Lochner Court held that the Due Process Clause (Substantive)
prohibited State regulation of the right to contract (broadly speaking; see case)
From 1995-Today
Shifts in both directions; broad scope of Congressional power under CC, but also a
narrow scope
See United States v. Lopez
o The activity being regulated must substantially affect interstate commerce.
When an activity is not directly connected to commerce, the Congressional
regulation will usually not be upheld, especially when the activity is traditionally
regulated by the states.
o TEST: There are three broad categories of activity Congress may regulate under
the commerce power.
First, the channels of interstate commerce. (defer to congress)
Roads, waterways
Second, the instrumentalities of interstate commerce/people or things in interstate
commerce (defer to congress)
The things used to accomplish it, like trucks!
-If the activity falls into one of the above categories, the Court doesn't have to
question "Commercial" aspect-
Third, activities having a substantial effect upon interstate commerce (Court
examines...see CRS/Bottom Up info below)
Interpreted along the lines the Complex Regulatory Scheme, OR the "Bottom Up
Approach"...YOU ONLY NEED A YES UNDER ONE, BUT BE SURE TO
APPLY BOTH
o This case (Lopez, and also Morrison) takes a "bottom up approach"; the
Complex Regulatory Scheme is a "top down approach" (See Raich)
Bottom Up Approach
o Lack of jurisdictional hook
The government has no hook to establish a connection to interstate commerce here;
this Act has nothing that requires anyone to do anything in respect to interstate
commerce
o Nature of the Activity
Economic (commercial) vs. NonEconomic (noncommercial)
If activity is economic, be sure to apply aggregation principle/N&P
If any activity is noneconomic, STOP; no economic, no commerce, no commerce
clause power
Make sure to analyze the issue under both economic/noneconomic approach if the
act can go both ways, which usually, it can depending on the perspective you take
o Lack of Findings (very important, like jurisdictional hook)
Congress failed to produce evidence showing that this affected interstate commerce
If and when Congress DOES produce findings, the COURT will then ASSESS
THEM anyway (via the Chain of Reasoning)
o Chain of Reasoning
Too many inferences and distance between the act/the "affect"
o Lopez was a big deal because contrary to the prior cases on the CC, here, the
COURT is telling us what IS and ISN'T economic instead of Congress making that
call
See United States v. Morrison
o Court applied Lopez test (three broad categories test); it failed all three
o The Court further defined the aggregate effects test (see Wickard v. Filburn) by
noting that intrastate activities must be considered in the aggregate only if the
activities themselves are economic in nature.
You DO NOT GET TO USE THE AGGREGATION PRINCIPLE BEFORE YOU
KNOW IF THE ACTIVITY IS ECONOMIC
You CANNOT take noneconomic activity, make it economic, and apply the
principle
o This holding makes clear that Lopez is not a speed bump in the Supreme Courts
Commerce Clause jurisprudence, but rather a new direction altogether.
The Supreme Court is more capable of reining in congressional action as not
substantially related to interstate commerce
o This case provided the ability
See Gonzales v. Raich
o Congress may regulate intrastate activity where the behavior, in the aggregate, can
impact interstate commerce.
Used Wickard to back up reasoning; agriculture is economic, marijuana is
agriculture, therefore economic...
o Complex Regulatory Scheme (A regulatory approach that is complex and
large scale)
FIRST...is there a CRS?
Yes...in the case of drugs, there are "schedules" classifying them
Schedule I drugs are those that Congress has decided have no medical uses,
including marijuana
SECOND...does the CRS regulate an economic market or enterprise?
If it doesn't, then Congress cannot use the CRS approach to justify what its doing
o Here, the Court TELLS US what ECONOMIC is...the production, distribution, and
consumption of commodities...very broad definition of a term meant to be limiting
YES, the Court found that the CRS does regulate an economic market/enterprise
here
THIRD, how badly would preventing Congress from doing what it did hurt the
CRS
In this case, the Court concluded that Congress shouldn't be hindered in its control
here because it would destroy the CRS
Therefore, preventing Congress from acting here would badly hurt the CRS, and to
enough of an extent to justify what Congress did
Jenga example...if you take away this regulation (a block), would the tower "sway
badly?" If so, Congress MAY ACT...If not, Congress has NO REASON to act, and
its action isn't necessary
Separation of Powers
The relationship between the political branches of the federal government is often
referred to as the separation of powers and/or checks and balances
o The former suggest noninvolvement of branches that do not possess a specified
power
o The latter signifies division and dispersion of a as well as the separation specified
power between the branches
Purpose
o The purpose is generally identified by courts as two-part
Prevention of tyranny
Most authorities stress this factor more heavily
Federalist Paper No. 47 stressed the accumulation of all governmental powers
would bring tyranny
o Separation of power facilitates the rule of law since different entities make,
administer, and interpret the law
o Back then, there was fear of legislative power being too strong
Today, the fear lies with the executive power
o Occasionally, fear lies with the judicial power being too powerful
Checks and balances in the Constitution are also viewed as tools for limiting the
size and power of the federal government, since a broad consensus is required to
change the status quo
Efficiency of administration
The three-part federal structure was originally seen as a move toward efficiency
The framers sought to establish a strong executive to conduct foreign/military
affairs more effectively at the federal level
o Ironically, a modern complaint is that the separation of powers creates inefficiency
in governing
Fear of
Poaching
o Stealing powers or capabilities of another branch and exercising it
Interference
o Interfering with the operation of another branch
Overreaching
o One branch aggrandizing itself at the expense of another, be it through poaching,
interference, poaching, or by taking an action that does neither, but still makes the
single branch too powerful
Two Approaches
o Formalism
Demands adherence by each branch to the powers granted to that branch
Congress can make laws only if it follows specified procedures
o It may not enforce the laws it makes
Conversely, the President enforces laws but may not make them
A formalist takes separation of powers as a command of the Constitution's text
and structure
o Functionalism
Commands fidelity to the purposes of the distribution of powers
To functionalists, the Constitution's distribution of powers is violated only if one
branch of the federal government aggrandizes its power at the expense of
another
A functionalist views the separation as a component of fulfilling the
Constitution's goals
o There are problems with both approachs
Formalism lacks clarity or definition in the distinction between making,
executing, and adjudicating
Functionalism carries a lack of understanding as to precisely how separation of
powers facilitates the aforesaid goals
o Both approaches share concern over separation functions and avoiding power
imbalances within the branches of federal government
A Fourth Branch?
o Agencies like the FTC, FAA, EEOC, NLRB, and EPA combine the powers of all
three branches and are subject to varying levels of control by the branches
A formalist would conclude them to be unconstitutional while a functionalist
would argue they are creative tools for delivering federal goods, services, and
regulations that aren't in the Constitution
Delegation of Power Between Branches
o Generally, one branch may not delegation its power to another
Buuuuuut there are exceptions to this, and it varies from situation to situation
o See note sections on each branch of government for examples
Anti-Commandeering Doctrine
Federalism is the separation of powers between the states and federal government
If Congress exercises its power under the Commerce Clause with respect to a
state instead of the country, can that power be limited? YES
o EXAMPLE
We know that Congress can enact federally enforceable minimum wage laws
throughout the country
But, what if Congress passed a law that said "if you work for a state, you must be
paid the minimum wage"
This isn't a commerce clause question; this is a question of whether or not
Congress may do this, as it is acting in respect to a state
This is where federalism comes in; we have a situation here where a sovereign
power is directly infringing on a sovereign power...government onto state,
specifically
"AntiCommandeering Doctrine" (ONLY Applies when Congress trying to do
something under Commerce Clause)
o Congress cannot order a state legislature to take action, even if Congress could
pass that law itself...that is, Congress cannot make the state it's "puppet"
Mid-1930s until 1976
o There were no federalism limits in re the Commerce Clause
All that mattered is that the Commerce Power allowed Congress to do what it
wanted to do
1976 until 1985
o National League of Cities
The case imposed a Substantive Immunity
Congress had passed a statute that extended the minimum wage to city and state
employees
Cities and States sued, claiming that this was unconstitutional
o The Court found a problem here because of federalism, and used a test to explain
(unimportant, as it changes again in the near future)
Basically, the Court ruled that Congress was regulating states' activities that were
matters of state sovereignty...Congress had no power to do this
Additionally, there is no sufficiently important federal interest to override this
state activity being regulated
It granted the states immunity from regulation of this sort; regulation that
regulates a state as a state in regard to state activity
o The PROBLEM that arose from this down the line was.....what is a traditional
state function? Where do we draw that line? It was very difficult/near
impossible
1985 until TODAY
o Garcia v. San Antonio
The Court essentially took itself out of the business of substantive immunity
That is, "if Congress has the power to regulate under teh CC, the mere fact that it is
recognizing it in respect to a power that a state typically has as a state function, it
does not matter"
If it has the Commerce Clause, it has the power
o EXCEPT when a State is politically isolated (which cannot exist, and has
never been explained)
Note that it was a pretty big deal that the Court overruled itself, let alone did so
within 10 years
o BUT
This did not send us back to "No Federalism"
o This created an era of Procedural Immunity (NOT Substantive)
Substantive is simply not having the power to do something
However, procedurally, things are a little different
In the Substantive Immunity Era, Congress could not use the Commerce Power
to do certain things
In the modern era (Procedural), the Court held that there are times Congress
uses the power in an inappropriate way
o So, HOW they're doing things is the problem...they have the power, but they
are not using it properly procedurally speaking
Substantive Constraint: You cannot do this
Procedural Constraint: You cannot do this...this way
This allows reconstruction of the intended action to accomplish it properly
o NY v. U.S. (Congress can't commandeer a Legislative body to carry out a federal
function)
States were trying to deal with nuclear waste, and were concerned with disposing
of it properly
The solution states came up with was, "you, states, will take title, and then, have
financial respnsibility for it UNLESS you create a federally approved site."
o The Court struck down that portion of the Statute
o It did not say that Congress wouldn't have the power to do this (create garbage sites
for nuke waste in all states)
The Court said the problem is, the procedure put into place to carry out its
intended goal was the problem
The Court said that Congress was commandeering the states to pass a
law...Congress commanded states pass a law to do this...Congress cannot take
over a state legislature to pass a law that it could pass itself
o U.S. v. Printz (Congress can't commandeer Executive body to carry out a federal
function)
Congress tried to force local enforcement to do background checks instead of
just giving them money to do it
Commandeering problem; can't do it THIS WAY
o CONGRESS CAN TELL STATES THAT THEY CANNOT DO SOMETHING
War Power
The Constitution has numerous provisions within it on the subject of making and
waging war; it does not explicitly adopt a different governing framework for war
or other national emergencies
o Consequently, it's questionable whether, when, and how national security should
affect separation of power issues, as well as the content of civil liberties from free
speech restrictions/jury trial availability/equal protection guarantees
The Framers divided responsibility for making war between the branches in order
to deter the nation from lurching into war unwisely
o Congress has the powers to:
Declare war
Purse in war and in peace
Make rules governing the army and navy
Protect states from invasion/may respond to state calls for assistance in dealing
with domestic violence/may call forth militia to "execute the Laws of the Union,
suppress Insurrections, and repel Invasions"
o The President is Commander in Chief,
However, his authority in that regard is not explicit
Even if the president has power to do something, there is always a question of
whether or not and to what extent individual rights protections come into play
o This can also happen when both the President and Congress act together
Congress has the power to appropriate money for things, including the military
o Its specifically mentioned in the Constitution; this reflects the Framers' fear of a
standing military
Congress has to refund the military every 2 years
Congress gets to define the law of nations (international law), and declare war
o The President
Commander in Chief
Prosecute military action
Head of the military apparatus
o Together, the two branches work together
Treaties are formulated together; the Senate has to ratify the treaty (the President
signs them), although most of them don't have domestic effect if Congress doesn't
act to implement them as so
See Boumediene v. Bush
In both Boumediene and Ex Parte Quirin, Congress and the Executive branches
worked together in an attempt to sort of exclude the Judiciary
The War Powers Resolution
o It is the Congressional prerogative to declare war under Article , Section: 8,
Clause 11.
However, the President has the ability to take action when attacked, be the
aggressor of foreign or domestic origin
See The Prize Cases
o The President's power to deploy armed forces, according to this resolution, can
only happen in three cases
Congress declares war
Congress authorizes it
The United States has been attacked
o IF the President enters into hostilities without Congressional authorization and acts
on his or her own to engage in warlike activities, under the statute, the President is
required to notify both houses of Congress of this action within 48 hrs
At this point, if Congress doesn't affirmatively authorize the action (via a
concurrent resolution between the two Houses) within 60/90 days (depends on
situation), he must bring the troops home
o Basically...the President can act unconstitutionally for 6090 days?....right?
o Additionally, there's no presentment here when Congress passes a concurrent
resolution to stop the President's actions; it is simply binding (isn't this VERY
unconstitutional?)
Distinguish from Chadha case, where there was issue over only 1 house of
Congress acting
An additional problem with this resolution is who would challenge it? Rather, who
could challenge it?
Who would have standing to do this? (Also, this may be a political question)
o Member of Congress?
Nope. They're not injured by this act. If anyone is, it's the President...
o The President?
Maybe, or maybe not has standing.
But he's not going to go to the Courts about this
No President has ever recognized the Constitutionality of the War Powers
provision; they all say they're doing things on their own accord, not pursuant to the
Resolution
o A soldier?
The best option here, but the challenge would have to be after the 60/90 period,
which would then violate the resolution
However, by that point, the conflict has ended because the President has either
gotten Congress to support him, Congress has gotten pissed and said TROOPS
HOME NOW, or the conflict has simply ended
"The Law of War"
o In war, if you are an "enemy combatant," that is a "good thing"
It's a designation that allows you to do something in a time of conflict that if you
did and you weren't an enemy combatant, would be a bad thing and get you into
trouble
You can't shoot people in a noncombat situation from day to day
You can't, however, commit genocide and rape
o What if you're an "unlawful enemy combatant?"
You're guilty of the crimes you commit, i.e. you shoot someone, it's murder
You can be tried differently and much less formally
o There are factors/traits involved for one to be classified as the above, and how
you're deemed to be either
How you conduct yourself, what you carry, what you do, how openly you do it, etc
The Law of War and the Courts
o See Ex Parte Quirin
During times of War, the constitution explicitly states the President may wage
war and carry into effect all laws concerning; the conduct of the war, regulation of
Armed forces, and all laws defining and punishing offences against the laws of
nations.
Absent clear conviction that a presidential order violates the constitution, the
court will not set those orders aside.
Laws of nations or the law of war determine the rights and status of enemies of the
country, or enemy belligerents.
The President ordered all enemies be tried in front of the military tribunal tribunal
and would not be allowed access to civil courts, thus relieving them of the right to
habeas corpus.
o The court also stated that as long as those crimes are indeed crimes of war, they
can be tried in front of this tribunal, and this order is constitutional.
If the crime is not a crime of war, then it should be tried in front of a jury.
While the citizens of the United States are owed their 5th and 6th amendment
rights, it is not clear that these rights should extend to noncitizens and enemies of
war.
The court will not afford those rights to enemies of war that violate laws of war.
The court makes distinctions between prisoners of war and enemy belligerent.
Depending on the distinction of the criminal can affect his/her rights; however,
here it is clear the prisoners are enemy belligerents who clearly violated laws of
war.
In distinction to Ex Parte, see Boumediene v. Bush
Aliens detained as enemy combatants on that territory (Guantanamo, i.e. "U.S.")
were entitled to the writ of habeas corpus protected in Article I, Section 9 of the
U.S. Constitution
o The Supreme Court held that fundamental rights afforded by the Constitution
extend to the Guantanamo detainees as well
Treaty Power
The Constitution gives the government the power to enter into treaties, and takes
that same power away from state governments
o This power is exclusively federal
A treaty is negotiated by the President, but in order for the US to be bound by it,
the Senate must ratify it with a 2/3 vote
o Once the Senate does that, the treaty is enforced throughout the country as binding
o We already know that treaties are not generally self executing, and Congress as a
whole must act; bicameralism/presentment
Additionally, we often need legislation passed to implement the treaty
Meddelin
o Remember, Congress needs an enumerated power to act in passing legislation
What if Congress was trying to pass a Treaty that was not under an
enumerated power in its content?
o We find ourselves at the Necessary and Proper Clause
(1)There must be a legitimate end that Congress is attempting to implement
(2)The means that Congress chose must be "useful" or "convenient" to
implementing the ends
(3)The means Congress chooses cannot be prohibited in the Constitution itself
(such as creating a church)
(4)What Congress does cannot be a pretext, that is, it can't be using the means as
an end to itself (this has NEVER happened yet)
Doctrine of Severability
We cannot always figure out Congress' intent
A severability clause is usually placed in laws that Congress writes, stating that "if
a portion of this statute is struck down, we intend that the rest become law"
o That is, if a portion of a law is found unconstitutional, can the Court simply strike
it down and pass the rest
o This is where the SC comes into play...it tells the Court yes, you can do that
Otherwise, the Court won't know what to do/the intent of Congress will be unclear
The President
The President does not have absolute power.
o The Framers were terrified of that idea, hence the separation of powers
o Much of the President's powers are delegated by the Constitution
The President is the figurehead of the Executive Branch, although power is often
delegated to the members of his Cabinet and other officials
See Youngstown case for a look at limitations placed on the Executive Branch's
powers and its relationship with Congres
The power to veto a bill
o See Clinton v. City of NY
The Line Item Veto Act allowed the President to veto parts of a bill after it had
been enacted into law
The Act, for reason of that ability, was found unconstitutional and in violation of
the Presentment Clause
A bill must be vetoed in its entirety; not picked apart
Allowing such to occur would allow the President to "tweak" laws into different
pieces of legislation entirely, rather than what was initially approved and passed by
Congress
The argument is that the President would be taking power from Congress
Foreign Affairs
o The Executive Branch essentially has exclusive power in the conduct of foreign
affairs, although foreign affairs power is also vested in the national government as
a whole
See United States v. CurtissWright
The nondelegation doctrine does not bar Congress from delegating great
authority and discretion to the President of the United States (the President) in
the conduct of foreign affairs.
o Moreover, the President is the US' sole representative for foreign affairs, and he
has broad authority with which to conduct them as is
While the Constitution does not explicitly say that all ability to conduct foreign
policy is vested in the President, it is given implicitly and by the fact that the
executive, by its very nature, is empowered to conduct foreign affairs in a way that
Congress cannot and should not.
o The President has an array of political and diplomatic means available to enforce
international obligations, but unilaterally converting a nonselfexecuting treaty into
a selfexecuting one is not among them
See Meddelin v. Texas
A treaty is not binding domestic law, it said, unless Congress has enacted statutes
implementing it or the treaty itself conveys an intention that it is "selfexecuting.
The spectrum from Youngstown was implemented here
Under it, the decision was reached as such
o Unless a Treaty is selfexecuting, the President cannot enforce it as national law
o Unless a Treaty is explicitly and legislatively implemented/executed statutorily
by Congress, the President cannot enforce it as national law
o In Meddelin, the President fell into the #3 end of the spectrum; he was at his
weakest
Executive Orders/Power Limits
o The President cannot "do whatever he wants"
o However, there are instances where he has authorization to issue executive orders
to accomplish certain goals
This power is not absolute, and it is not limitless
He must often, but not always, be authorized by the Constitution or by Congress
See Youngstown
See *Dames & Moore
o Legislation cannot infringe upon the President's Constitutionally granted Article II
Executive Powers, or usurp them
See Free Enterprise Fund v. PCAOB
The Powers of the President/Test for Presidential Authority
o See Youngstown Steel
Justice Jackson's opinion took a somewhat flexible approach to the issue,
eschewing any fixed boundaries between Congress' and the President's power.
He divided Presidential authority vis a vis Congress into three categories, ranked in
descending order of legitimacy:
(1) Those cases in which the President was acting with express or implied authority
from Congress...Apex powers: those given by Congress both express and
implied/those inherent from Constitution (Most Powerful)
(2) Cases in which Congress had thus far been silent or there is concurrent
authority
(3) Cases in which the President was defying congressional orders; here, the
President's power is at its weakest (No statute? No power.)
o He classified this case as falling within the third category.
The area between 1 and 2 is the "Zone of Twilight," that is, the power isn't so
much an on/off switch, but more of a "dimmer"
The President's powers sort of depend; it is impossible to formulate an abstract
test because things that go on vary all the time; this is a functionalist view
o If Congress hasn't said yes or no, then the President's acting on his own is going to
"depend" (Black said it doesn't matter what Congress didn't do or say; the law is
rigid and written)
In order to apply the spectrum above, you would first look to see if there was a
statute/collection of statutes, that gave the president the authority to do what
he did or wanted to do
If there was no statute, you'd be in the Zone of Twilight and have to apply the
particular situation
Judicial Review
The doctrine under which legislative and executive actions are subject to review
(and possible invalidation) by the judiciary
o Judicial review is a tool to maintain the checks and balances between the
branches of the governmental system (where in the context of the U.S., the
judiciary checks the other branches of government).
There are rules and limitations to this concept
o For example
In order to have standing in federal courts, a petitioner must have injury,
causation and redressability.
Massachusetts v. EPA
o Typically the injury of greenhouse gases would be too tenuous for an individual to
claim is a direct injury.
o However this is the State that is filing suit not the individual.
The State has a quasisovereign interest.
o To have standing to sue in a federal court the petitioner must have; injury in fact,
causation, and redressability in the claim, these elements are easier to meet if you
are a State rather than an individual
o Another Example
Federal courts have jurisdiction to hear a constitutional challenge to a legislative
apportionment.
Baker v. Carr
Structural Limits
Limits clearly and expressly set in the Constitution itself
Appointment of Judges
o The appointment of judges
o The framers put into a place a very strong protection for judicial independence;
Article III's first part, which says judges serve for life
Once you are appointed, you can't be fired, and the Constitution says your salary
can't even be reduced while you're in office
o That is, you can make a predictive judgment on appointment, but you can't really
control people once they get to court
Impeachment of Judges
o Hasn't done much historically
o Never really done much good at all, actually
o The Constitution doesn't say we can't do it...we just haven't
Amendment
o This doesn't really happen much anymore.
The 27th Amendment, the last one made, was part of the original Bill of Rights
Submitted to the States in 1789, but not adopted until 1992
Substantive Limits
Justiciability
o Article 3's provision that the court's reviewing ability is limited to cases and
controversies only
o Does this really limit anything?
The Judges are doing the construing of what case/controversy means
If they determine the dispute is not a case, the court lacks power, and judicial
review is limited
But, the COURT is doing the limiting
So, the court is controlling its own power
o Someone else amends, someone else appoints, someone else impeaches
o The COURT construes whether or not it is a case/controversy
o Advisory Opinions and Standing fall under the scope/scrutiny of this concept
This is the court's exercising of its power of judicial review, to determine if it has
the power of judicial review...in the instant matter
Prohibition On Advisory Opinions
o Example
War was going on between France and England
Washington didn't know what to do if one of their ships got stopped by the
US...what were our neutralities?
He tells Jefferson to write the Supreme Court, questioning the international law
implications of stopping a combatant in our waters when we are neutral
He wants the Court to advise him on the matter
The Court writes back to Jefferson for Washington, which states the Constitution
says the Court may only hear a case or controversy
Neither are here. The Court does not answer "abstract questions." So, if you
stop a ship and are accused of wrongdoing, then the Court would weigh in
The Court rendered an advisory opinion of...no advisory opinion
The notion here is, the Court was trying to draw the line between what it means
to exercise judicial power and what is policy making
o The court preserves its ability to be a court, rather than make public policy
like a legislature
The Political Question Doctrine (doesn't come up often)
o The doctrine is grounded in the federal judiciary's desire to avoid inserting itself
into conflicts between branches of the federal government
It is based in the separation of powers and whether a case is justiciable (hearable
by the court) is determined on a case by cases basis.
o It is justified by the notion that there exist some questions best resolved through
the political process, voters approving or correcting the challenged action by
voting for or against those involved in the decision.
In regards to foreign relations, if there has been no conclusive governmental
action regarding an issue, then a court can construe a treaty and decide a case.
Regarding the dates of the duration of hostilities, when there needs to be definable
clarification for a decision, the court may be able to decide the case.
o The factors to be considered by the court in determining whether a case
presents a political question are:
Is there a textually demonstrable constitutional commitment of the issue to a
coordinate political department (i.e. foreign affairs or executive war powers)?
That is, "this text belongs to another political department, and its their job to
handle this."
Is there a lack of judicially discoverable and manageable standards for resolving
the issue?
That is, we don't have standards to figure this out...we aren't equipped to handle
this
The impossibility of deciding the issue without an initial policy determination of a
kind clearly for nonjudicial discretion.
The doctrine is about maintaining the separation of powers; the court will decline
to act in a case when doing so would have this notion of undermining the
separation of powers
The impossibility of a courts undertaking independent resolution without
expressing lack of the respect due coordinate branches of government.
The relationship of the court with the other branches...is it overstepping its reach?
Is there an unusual need for unquestioning adherence to a political decision already
made?
Would attempting to resolve the matter create the possibility of embarrassment
from multifarious pronouncements by various departments on one question?
o When a question is enmeshed with any of the other two branches of the
government, it presents a political question and the Court will not answer it
without further clarification from the other branches.
It is not about avoiding questions of politics...its about perserving separation of
powers
Mainly, whenever the Court is involved in a possible butting of heads with
another power
However, the Court will hear on Legislative v. Executive issues...it's the Court's
job to interpret those sorts of things!
Standing
o The ability of a party to bring a lawsuit in court based upon their stake in the
outcome
o Are the people who are bringing this lawsuit the "right people?"
o If they are not, then there is no case or controversy
Three Part Test
Injury in fact
o Imminent to have occurred/particularized and not a generalized grievance (see
below)
o It must be both concrete & polarized, and actual/imminent
Injury must be "fairly traceable to the violation"
o The person you're accusing must've caused the injury at hand (think Torts, sort of)
Injury must be "redressable" by the relief sought
o The remedy you want must be able to fix it
o There is debate over this between Justices
Ginsburg says
Civil penalties are a way of deterring behavior we don't like, because nobody will
want to pay out for things twice, and therefore the violation is deterred from future
occurrence
Ultimately, this means there is more standing because anytime there's a civil
penalty, you can argue there will be a deterrent effect
You can broadly view the issue of standing under this argument
Scalia disagrees
The problem is, companies aren't people and you can't predict their behavior...they
don't think like people because they're a collection of people
Also, we have to assume these companies will make the "right" choice in their
behavior
He says you have to estabalish more to get standing, and champions a narrower
view of standing
o Quality of Standing
Ripeness
If you're "too early" even if you have standing, your claim isn't ripe
Mootness
If you're "too late," your claim falls moot
Cases can become moot
o That is, when the plaintiff removes themself from being subject to suit
i.e. suing over something affecting you at your job as a federal employee, but then
voluntary quitting that job and going elsewhere
o They will almost never become moot when the defendant says oh sorry, I won't
do it again
Point is, you need to make sure you address the problem at the best possible time
to do it
This idea ties in with the "imminent" aspect of the injury in fact
Generalized Grievance
o Something that affects everyone in the same way
Nobody would have standing for something like that; there is no particularized
injury
The injury must be particularized in order for there to be standing
In such situations, sometimes, certain entitites can create a scenario in which they
can have standing
Organizational Standing
o In order for an organization to have standing, a member must have standing
o The purpose of the organization is germain to the litigation
o Don't need the individual to litigate the suit
For examples of standing in action, see:
o Friends of the Earth v. Laidlaw Environmental Services, INC.
o Massachusetts v. EPA
Interpretation Methods
Originalists (Textualists); Originalism
o See themselves as "agents" of the founders
o Interpret by looking at the text and intent of the Framers
o Scalia argues for this, stating that elections ensure "currentness" of laws, and that
the Constitution should be looked at by its text and the original intent
Doing otherwise goes against the purpose of the Constitution; that is, the law
should remain steadfast and not be reflective of changes
We want to know what they meant when they wrote it; if we don't, people will
reinterpret things too subjectively and personally
o Sub-method: Original Understanding
Look at the intent of the public back then, as well as the ratifiers
This is very different from originalism
Its not so much about what their intent was, but the reasons behind it
Eight Reasons to be an Originalist
o Originalism reduces the likelihood that unelected judges will seize the reigns of
power from elected representatives.
o Originalism in the long run better preserves the authority of the Court.
o Nonoriginalism allows too much room for judges to impose their own subjective
and elitist values. Judges need neutral, objective criteria to make legitimate
decisions.
The understanding of the framers and ratifiers of a constitutional clause provide
those neutral criteria.
o Lochner vs. New York (widely considered to be a bad non-originalist decision).
o Leaving it to the people to amend their Constitution when need be promotes
serious public debate about government and its limitations.
o Originalism better respects the notion of the Constitution as a binding contract.
o If a constitutional amendment passed today, we would expect a court five years
from now to ask what we intended to adopt. [Can the same be said for a court 100
or 200 years from now?]
o Originalism more often forces legislatures to reconsider and possibly repeal or
amend their own bad laws, rather than to leave it to the courts to get rid of them
This theory produces less subjective judicial decision by way of ferreting out the
original intentions of the Framers
o Historical materials are often incomplete or indeterminative, however
There were no tape recorders 300 years ago, and the notes we have from then are
often different from what actually took place
The Federalist Papers were pro-Constitution propaganda; they were not intended to
be used as a source of original intent
o *Apply the original understanding to an analogous situation today...this can be
difficult
Search by government...did the framers think about infrared helicopter searches?
In the case on the matter, equated by Court to a "search" even though there's NO
WAY of knowing the framers would've considered it a search
The point is, originalism still requires that we make contemproary judgments,
even though we're supposed to be looking to the original intent
Textualism
o The "plain meaning rule"
o Literal reading and interpretation; structural textualism
Words may be clarified by examining their relationship to other provisions of the
text
o What if things are ambiguous but don't fit well?
NonOriginalists (Purposivists)
o See themselves as "partners" of those who drafted or ratified constitutional
provisions
Interpret in accordance with its overarching purposes to address the needs of
contemporary society
Brennan argues for this, stating that the Constitution is adaptable to changing
times, and is not static
o Eight Reasons to be a Non-Originalist
The framers at the Convention in Philadelphia indicated that they did not want
their specific intentions to control interpretation.
No written Constitution can anticipate all the means that government might in the
future use to oppress people, so it is sometimes necessary for judges to fill in the
gaps.
Intentions of framers are various, sometimes transient, and often impossible to
determine. Text is often ambiguous and judicial precedents can be found to
support either side.
In such cases, why not produce the result that will best promote the public good?
It's better than flipping a coin.
Nonoriginalism allows judges to head off the crises that could result from the
inflexible interpretation of a provision in the Constitution that no longer serves its
original purpose.
(The amendment process is too difficult and cannot be relied upon to save us.)
Nonoriginalism allows the Constitution to evolve to match more enlightened
understandings on matters such as the equal treatment of blacks, women, and other
minorities.
Brown vs Board of Education (on originalist grounds, it was decided incorrectly).
Originalists lose sight of the forest because they pay too much attention to trees.
The larger purpose the animating spirit of the Constitution was the protection of
liberty, and we ought to focus on that.
Nazi Germany: Originalist German judges did not exercise the power they might
have to prevent or slow down inhumane programs.
Look to subject matter that the law addresses; the reason and spirit of the law
o May interpret the Constitution by considering the values, concepts, and principles
behind the text
Precedent
o We've got 200 years of interpretation behind us!
o A court's opinion is important not because of who wins, but why they win
o The Supreme Court almost never overturns a previous decision concerning
statutory construction
o If the Court was "wrong" in determining what Congress intended, Congress can
simply pass a statute amending the interpreted legislation to overturn the Supreme
Court's Construction
o The Court, however, has been more willing to overturn its decisions construing the
Constitution, but precedent may save a decision once made that Court may not
adopt if the case was a "clean slate"
o There is a factual scenario; on the basis of precedent, is it more like previously
decided case X, or Y
Why?
o You're interpreting not only the Constitution, but the past as well
o The Supreme Court is very reluctant to overrule prior Supreme Court
interpretations
This is a problem if you're an originalist, and precedent disagrees
Constitutional Structure
o Look at the document as a whole in order to interpret a part
o Interpret things in such a way that they are consistent with eachother, and reach a
conclusion by that stream of logic
Natural Law
o A higher law/God's law type approach
That is, a person who believes that higher moral law ought to trump inconsistent
positive law.
o Is now only infrequently suggested as an interpretive guide, even though many of
the framers of the Constitution recognized its appropriateness.
Contemporary Values
o Exactly what it says.
o Society changes, as should the interpretation and application of the Constitution
International/Foreign Law
o Use of foreign law by the Supreme Court in interpreting the Constitution has
caused controversy
Mainly because its OUR law, not the world's
Interpretation in Action
The Second Amendment
o Scalia wrote the opinion
Originalist style of interpretation
See DoC v. Heller
o Opinion/Interpretation
The Second Amendment protects an individual right to possess a firearm
unconnected with service in a militia, and to use that arm for traditionally lawful
purposes, such as selfdefense within the home.
"A well regulated Militia, being necessary to the security of a free State, the right
of the people to keep and bear Arms, shall not be infringed."
o The prefatory clause A well regulated Militia, being necessary to the security of
a free State merely announces a purpose.
It does not limit or expand the scope of the operative clause the right of the people
to keep and bear Arms, shall not be infringed.
o The operative clauses text, "right of the people," and history demonstrate that it
connotes an individual right to keep and bear arms.
The militia consisted of all males capable of acting together for the common
defense.
The Antifederalists feared that the Federal Government would disarm the people in
order to disable citizen militias, thereby enabling a politicized standing army or a
select militia to rule.
The Antifederalists therefore sought to preserve the citizens militia by denying
Congress the power to abridge the right of individuals to keep and bear arms.
This interpretation is confirmed by analogous arms bearing rights adopted in state
constitutions immediately preceding and following the Second Amendment
Furthermore, the drafting history reveals three proposals that unequivocally
referred to an individual right to bear arms.
Interpretation of the Second Amendment by scholars, courts, and legislators from
ratification through the late 19th century also supports the Courts interpretation.
No precedent forecloses this interpretation.
United States v. Miller limits the type of weapons to which the right applies to
those in common use for lawful purposes, but does not limit the right to keep and
bear arms to militia purposes.
Regarding "arms," the Second Amendment right is not a right to keep and carry
any weapon in any manner and for any purpose.
It is the right to bear weapons in the case of confrontation
The Court has upheld gun control legislation including
Prohibitions on concealed weapons and possession of firearms by felons and the
mentally ill,
Laws forbidding the carrying of firearms in sensitive places such as schools and
government buildings, and
Laws imposing conditions and qualifications on the commercial sale of arms.
The historical tradition of prohibiting the carrying of dangerous and unusual
weapons supports the holding in United States v. Miller that the sorts of weapons
protected are those in common use at the time.
o Constitutional rights are not absolute
When something "violates" one of those rights, we must decide how to handle it
That is, how does the judiciary exercise its review over the issue at hand
Sometimes, the judiciary wants the conduct to be ballparked...good enough
o Others, they will closely scrutinize what you do, like an issue of civil rights or
freedom of speech as two examples
How closely the judiciary looks at the questioned legislative action makes a
difference
o The opinion above does not set a standard for assessment of the judiciary's
regulation
The issue courts have currently is, how closely to look at something