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CON LAW 1, Guide - Coggle Diagram

- - - - Article I powers – to Congress – “vested” to those “herein granted”
      - Article II powers – “The executive power” to President
    - - Twilight Zone Theory
        
        Congress + President – Power of Executive Highest ++
        
        Congress vs President – Power of Executive Lowest +-
        
        Absence of grant or denial from Congress – Twilight Zone” +
      - Youngstown Steel - Here – President’s seizure vs specific legislation by Congress as to what can and cannot be done
        
        +/-
    - - Trump v. Hawaii (2018) - ban on 8 nations peoples seeking entry
        
        Majority – is +/+ - broad discretion given to President - here based on foreign policy and national security – only need rational basis and not go behind reasoning
        
        Dissents – masquerade and vs Establishment Clause – neutrality and no legitimate bases when look as who record and so not rational
  - - - Executive vs. Judiciary
        
        more willing to side against president
      - Executive v. Legislative
        
        more willing to side with president
    - - CJ Burger – Unanimous Court
      - Subpoena from the court – all the tapes for in camera review
      - Rejects “absolute privilege” – judicial power to “say what the law is”
      - Accepts – need for protection of commun-ications – “Constitutional underpinnings
      - Accepts argument of separation of powers – in its own sphere – but not immune from judicial process
      - “Absent a claim of the need to protect military, diplomatic, or sensitive national security secrets, we find it difficult to accept the argument that even the very important interest of confidentiality of Presidential communications is significantly diminished by production of such material for in camera inspection with all the protection that a district court will be obliged to provide.”
    - - Manhattan D.A. state criminal subpoena to Mazurs - personal accounting firm of President Trump – Trump - sued D.A. in personal capacity to stop issuance of subpoena ---QUESTION OF SPECIFIC NEED (HEIGHTENED SCRUTINY)
      - Court – reviews history – right to every person’s evidence – no absolute immunity – no showing of interference – no issue of stigma – reject “specific need” to get
        
        Presume be properly managed - grand jury secrecy; not assume bad faith; trust courts [state]
      - Federal courts can always come in when does interfere
      - Kavanagh [with Gorsuch] concur - on remand - need to show “specific need”
      - Thomas - dissent -its ok to issue a subpoena you just cannot enforce it
      - Alito - dissent - 2400 prosecutors
        
        would set up a rule - (1) description of offenses to be investigated; (2) outline how subpoena relate to those offences; (3) explain why needs to be produced and while is President
    - - Inherent right to have subpoena but must be tied to legislative function [cf McCarthy - MHB - ?]
      - Balance
        
        (1) Courts must assess whether legislative purposes warrants significant step of involving the President - ? other sources reasonably could provide
        
        (2) Scope no broader than reasonably necessary for Congressional purpose;
        
        (3) Nature of evidence of valid legislative purpose - detailed and substantial;
        
        (4) Careful scrutiny by courts - as from rival political branch
      - But not need “specific need”
      - Congressional subpoena - four different committees – part of investigative role tied to - want info on finances of Trump
      - Thomas - dissent - no power - only as part of impeachment
      - Alito - dissent - legislative subpoenas are inherently suspicious - need much more than perfunctory showing of need - specificity as to type of legislation - special importance;
        spell out specific Constitutional authority for this investigation; scope of subpoena; and why this source is required.
    - - Can you prosecute a sitting President – or only Impeachment and Removal
      - Article II, § 4 – “High Crimes [“Political Crimes”] and Misdemeanors”
      - Procedures – [Judge] Nixon v. United States (1993) [political question]
  - - - Act allows President to strike out certain discretionary budget authority
      - Presentment Clause – Article I, Section7, Cl .2 – Presentment – must veto or sign – no conditional signing
      - Breyer – Dissent - could have done by separate bills – why not as part of whole bill
    - - Article I, § 7, Clause 2 – bills must be “presented” to President [Presentment Clause] and be approved or disapproved by him or her [Veto Clause] and that veto can be overridden by two-thirds vote of the Senate and House”
      - Pocket Veto – Article I, § 7, Clause 2 – if “presented to the President” and he not sign or veto [“not be returned” within ten days, then becomes law ---except
      - “if Congress by their Adjournment prevents its Return, in which Case it shall not be a Law.”
      - ? Now - NLRB v. Canning (2014) - “intersession” – And Appointments - ? Also to pocket veto
        
        The president of the United States may invoke the Recess Appointments Clause to fill a vacancy that exists during any sufficiently long Senate recess
  - - - Statutes
      - Budgets
      - Oversight
    - - Delegation and standards;
      - Line-Item Veto
      - One house veto of regulations
      - Appointment and Removal
  - - - Schechter Poultry v. United States – 1935
        Industry Codes bad – no standards
        
        legislative decisions being made by executive--> cannot be done without outlining strict standards for how to be executed
    - - Whitman v. American Trucking Assn (2001) - Clean Air Act –
  - - - Independent Counsel – Ethics in Government Act – at request of Attorney General – Federal Court can appoint; removal only for food cause or condition of impairment [by Attorney General]
      - Here is “inferior officer” and so Court can appoint
      - Scalia – dissent – here is clearly an executive and only President should appoint or remove [compare United States Attorneys]
      - MHB – separation of powers – here enhance Judicial Power – so OK
      - Factors in deciding principal or inferior
        
        2) Ability to perform duties ; more limitied-- more likey inferior
        
        3) Jurisdictional limits of office; limited = inferior
        
        1) subject to removal by higher branch official ; removal-- more likely inferior
        
        4) tenure ; temporary = inferior
    - - The Appointments Clause requires principal officers to be appointed by the President and approved by the Senate, but allows inferior officers to be appointed by the President, department heads, or the judiciary.
        
        PRINCIPLE OFFICERS-- APPOINTMENT THEN ADIVSE AND CONSENT BY SENATE
        INFERIOR OFFICERS-- ONLY APPOINTMENT NECESSARY
    - - Here Administrative Law Judges hold hearings and make recommendations that are binding unless overruled by SEC Commissioners -
      - Administrative proceeding invalid - as these judges are not appointed by Commissioners but by staff - and are “Officers” - only be appointed by President, courts of Law, Heads of Departments [here SEC]
    - - Appeals from PTO – under new statute – to Patent Trial and Appeal Board [PTAB]- review only by Federal Circuit Court of Appeals
      - All Administrative Patent Judges – appointed by Secretary of Commerce [Inferior Officers] - but here too much power – so if really inferior – then must have Secretary of Commerce have ability to review [doesn’t have to]
    - - Practicality/History/Practice vs Literalism
      - Art. II, §2, cl. 3 -
      - “Vacancies during the recess” - include those open before recess
      - “Recess” - includes intra-session as well as intersession [at least ten days]
      - “Pro forma” sessions - still count as sessions - Senate define own rules
  - - - Separation of Powers – practical approach – judicial type function – sentencing – so no issue of interference with legislative [setting penalty] or executive [applying delegated powers]
      - Appointment and removal – by President - ? Conflict with independence of judiciary – no - still stay as judges
    - - Court can still remove
      - Compare to “Presentment and bicameralism” cases
    - - Agency created in 2010 to deal with consumer issues
      - Agency consists of staff and a single Director - with a five year term; removed only for inefficiency, neglect or malfeasance [for cause].
      - Agency - broad administrative, quasi judicial, and quasi legislative power.
      - Here investigation of Seila - debt-related legal services entity - Agency asked for “civil investigative demand”[equivalent to an administrative subpoena]
      - Commission unconstitutional limits on power to remove
        
        Presumption that President - full power to remove - without qualifications
        
        Federal government entities -accountable to elected President
      - History - only two exceptions [disputed by dissent]
        
        Independent agencies - with number of individuals [Capital O - Officers - need advice and consent to serve] serving on Commission [presumptively non-partisan][FTC; NLRB; SEC]
        
        -Agency with small o - officers - appointed by President, Department heads or Courts [Morrison - Independent counsel]
      - Here - advice and consent single principal officer – unprecedented -- also - no control - not funded by appropriations but Bank Assessment
      - Severability issue - Court finds this part of statute severable - so agency continues [Cf Affordable Care Act]
    - - Federal Housing Finance Agency – money and oversight of Fannie Mae and Freddie Mac- enormous power – single director – only removable for Cause – apples Seila – versus separation of powers
      - Dissent – same arguments as in Seila – and here worse - not dealing with direct significant economic power and not deal with control over private parties
  - - - Treaties; Executive Agreements; Customary International Law
        
        “Last in time” – Article VI – overrides state law
        
        Treaties – Explicit Authority [Advice & Consent]
        
        Missouri v. Holland – 1920 – Treaty with Canada on Migratory Birds - Inland Waters – No authority under Commerce Clause – but independent authority – under Treaty Clause - Overrides – 10th Amendment
        
        Executive Agreements - Presidential Power – Inherent Authority
        
        United States v. Belmont (1937); United States v. Pink (1942); Dames and Moore (1981) - Individuals and States must comply with Executive Agreements
        
        Customary International Law - Unless overridden by subsequent Federal Legislation, customary international law is the “law of the land” and pursuant to Supremacy Clause, binding on state and local governments
        
        Recognition
        
        Zivotofsky v. Kerry (2015) - +/- - Still power to President
        
        now clear - [6 to 3 vote]
        
        Statute allow child born of American parents to have place of birth be “Israel” and not - as Department of state policy - “Jerusalem” - Power of Executive - at lowest - still - exclusive control of President
        
        The formal act of recognition is an executive power that Congress may not qualify. If the President is to be effective in negotiations over a formal recognition determination, it must be evident to his counterparts abroad that he speaks for the Nation on that precise question.
        
        Article II of the Constitution grants the U.S. president the exclusive authority to formally recognize a foreign sovereign, which is an executive power that Congress may not contradict via statute.
        
        The President of the United States has authority to settle judicial claims through an executive order if the settlement of claims is necessary for the resolution of a major foreign-policy dispute with another country and if Congress acquiesces in the president’s action.
        
        Supersedes state law
        
        whether its a treaty or an executive agreement, the supremacy clause applies
        
        customary international law
        
        congress can always pass legislation to overrule treaties, executive agreements, or customary international law
      - War Powers
        
        War Powers – “Constitutionalism”
        
        Not to Courts – Standing; Political Question
        
        Who Declares War? How?
        
        “War Powers Resolution” – § 1547 (d)
        
        Congressional Approval - ? Funding
        
        Power – rent controls; price controls
        
        War powers resolution --- Congress wanted more power over the president after the Vietnam war
      - War on Terror
        
        Context
        
        911
        
        USA Patriots Act
        
        Rasul v. Bush (2004) – habeas corpus for Guantanomo Detainees
        
        Padilla v. Rumsfeld (2004) – site of habeas corpus filing – where detained
        
        Hamdi v. Rumsfeld (2004)
        
        Detention of American Citizen on U.S. soil as “enemy combatant” – even for long period as long as war last [5 to4]
        
        Power – Executive + Congressional authorization [++]
        
        But “due process” applies [8 to 1] [Matthews v. Eldridge (1976) calculus]
        
        notice and opportunity to challenge factual basis before “neutral” decision-maker
        
        War not a “Blank Check” – Judicial Authority
        
        Due process guarantees that United States citizens held in the United States as enemy combatants must be given a meaningful opportunity to contest the factual basis for that detention before a neutral decision-maker.
        
        Hamdan v. Rumsfeld (2006) – must be minimal due process – UCMJ and Geneva Accords
        
        Boumediene v. Bush (2008) [5 to 4]
        
        Habeas corpus - apples to citizens and non-citizens - even if “enemy combatants” and located at “off-site” Guantanomo [where no legal but only de facto “sovereignty”]
        
        Our basic charter can’t be contracted away – Due Process apply
        
        Courts must provide detainees held as unlawful alien enemy combatants a writ of habeas corpus to challenge their detention, or, if a writ of habeas corpus is not available, provide an adequate substitute process to detainees that includes the same procedural protections and opportunities that would be provided in a writ of habeas corpus.
    - - President –Commander in Chief [Article II, § 2]; Executive Powers [Article II, § 1]; Treaties [Article II, § 2, Cl. 2]
      - Congress – Article I, § 8 [Budgets; war; captures; Navy; land forces; militia]; Article II, § 2, Cl. 2 [Treaties – 2/3 Advice and Consent]
    - - United States v. Curtiss-Wright Export Corp. (1936)
        
        Joint Resolution of Congress stop sales of arms; Presidential Proclamation – Criminal Indictment
        
        Foreign Policy – Inherent National and not from States
        
        “President alone has power to speak or listen as a representative of the nation”
        
        Inherent power of Sovereign
        
        MHB - +/+
  - - - Trump ban on 8 nations peoples seeking entry
        
        Majority – is +/+ - broad discretion given to President - here based on foreign policy and national security – only need rational basis and not go behind reasoning
      - Dissents – need more info as to real reasons – two say obvious is masquerade and so vs Establishment Clause – neutrality and no legitimate bases when looking at record and so not rational
  - - - Criminal Prosecution
        
        United States v. Nixon - CJ Burger – Unanimous
        
        “Absent a claim of the need to protect military, diplomatic, or sensitive national security secrets . . . difficult to accept that even important interest of confidentiality of Presidential communications is significantly diminished by production for in camera inspection with all the protection that a district court will be obliged to provide.”
        
        Trump v. Vance (2020) (Roberts)
        
        Manhattan D.A. state criminal subpoena to Mazurs - personal accounting firm of President Trump –
        
        Trump - sued D.A. in personal capacity to stop issuance of subpoena – Court – reviews history – right to every person’s evidence – no absolute immunity – no showing of interference – no issue of stigma
        
        Presume be properly managed - no heightened scrutiny – not assume bad faith of state courts and prosecutor - Federal courts can always come in when does interfere –
        
        No heightened scrutiny - (1) not official documents; (2) not needed to protect against unduly burdensome; (3)public interest in fair and efficient law enforcement - can raise a specific claim
      - Subpoena
        
        Congressional Subpoena – Rejected- Executive Privilege Applied - Senate Select Committee (D.C. Cir. 1974)
        
        Trump v. Mazurs (2020) – Roberts - Congressional subpoena - four different committees –- want info on finances of Trump – no specific need but must be tied to legislative function and then weighing of Congressional purpose and methods vs rights of executive
      - Civil
        
        Nixon v. Fitzgerald (1982) - Civil Suit – for damages – dismissal from government agency – “whistle-blower”
        
        Civil - Absolute Governmental Immunity/Privilege for President for official acts – part of President’s unique officer – Separation of Powers
        
        Cheney v. U.S. District Court (2004) – discovery sought - “secret meetings” by Vice President – Court not allow – Not Criminal case - needs exceptional circumstances and must take into account and show sensitivity “Separation of Powers” and Executive Privilege
        
        Clinton v. Jones (1997) - Sexual harassment suit - no basis for immunity for unofficial or private acts – no right to defer action - Immunity or limits must be tied to official acts - No separation of powers issues – will not interfere with performance of official duties
  - - - ? Intent for “independence of electors” - right to demand vote for the persons state said you should - ?
      - States set standards [? Proportional]
- - - - tax and spending clause
      - commerce clause
      - immigration and bankruptcy
      - money
      - etc
  - - - McCulloch v Maryland: The Constitution specifically delegates to Congress the power to tax and spend for the general welfare, and to make such other laws as it deems necessary and proper to carry out this enumerated power. Additionally, federal laws are supreme and states may not make laws that interfere with the federal government’s exercise of its constitutional powers.
        
        Limited Impact of 10th Amendment
        
        “In considering this question, we must never forget that it is a Constitution we are expounding.”
  - - - Article I, § 8 - power to regulate Commerce - with foreign nations; among the several states; and with the Indian tribes
      - What is “Commerce”;
      - “Among the Several States” - ? Direct
      - Impact of 10th Amendment
    - - “Power is complete in itself” - can be used to utmost extent - limited to objects
      - If an object is plenary [total] - as if no state governments
      - Pre-emption – Gibbons [Federal Charter] wins
      - Pre-New Deal Limits – then
    - - 1890-1937 -court narrowly defined and used 10th ammendment as limitiation
      - 1937- 1990s - expansive scope of commerce power and did not use 10th amendment as limit
      - pre1890 - power broadly defined rarely used
      - 1990+ narrow limit of the commerce power and revitalization of 10th amendment
    - - Tenth Amendment a Truism
      - Limited Application of 10th Amendment
      - Use for civil rights cases – Hotel/Resturant - 1964
    - - 3 broad categories of activities that can be regulated
        
        “Persons or things in interstate commerce”
        
        “Activities which substantially affect interstate commerce.” [“economic”]
        
        “Channels of Interstate Commerce”
      - Reluctance to apply to crime; education; family law – particularly local
      - Lopez – 1995 – Gun Free Zones Act – local authority – crime & education
      - Morrison – 2000 – VAWA – no economic basis
      - Gonzales v. Raich – 2005 – marijuana - “substantial effect” – “economic”
      - moved to substantial relation from rational basis
      - END UP--> commerce clause narrowly constructed; cannot easily be used as a base for fed legislation... aggregate impact not considered unless its specifically economic.
      - Fed gov now commonly bribes states to do things; those bribes are PERMANENT
    - - Individual Mandate - must purchase health policy or pay penalty
      - Commerce + Necessary and Proper
        
        No commercial activity involved
        
        Compels individuals to become involved in activity
        
        Clause not cover “non-activity”
        
        [Diet – order all to buy vegetables]
  - - - In interpreting federal statutes - presume not apply to states or areas traditionally regulated by states - Federal Government must show “substantial relation” to commerce
      - Retirement age for Judges; internal waters and migratory birds
      - Not “commandeer” states to undertake implementation of federal laws
    - - New York v. United States – 1992- “take title” – bad--Congress may not compel states to enact or administer a federal regulatory program.
      - Printz v. United States – 1997 – local officials collect background data for guns – bad Congress may not compel state officials to participate in the administration of federal programs.
      - But – Reno v. Condon – 2000 –drivers records use – “stream of interstate commerce;” states as “owners” of data bases --Congress may regulate states’ activities, using its Commerce Clause powers, provided that the regulation does not require the state to enact any laws or regulations and does not require state officials to assist in the enforcement of federal statutes regulating private individuals.
        
        when regulating--> state has sovereign immunity when acting as a commercial entity (selling data) -> state does not have sovereign immunity
    - - This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any state to the Contrary notwithstanding.
    - - Murphy v. NCAA (2018)
        
        To protect integrity of sports and compulsion by young people to gamble – Congress passed statute to bar sports gambling – with some exceptions
        
        Federal Bar to ban is bad – is “commandeering” – barred by 10th Amendment
        
        State is ordered not to “authorize” – vs federalism
        
        not able to compel states to pass legislation or not to do so
        
        Dissents – Concurrences - federal government could have banned directly – why not tell states to do it
  - - - The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States . . . ;
    - - The Congress shall have Power . . . To borrow Money on the credit of the United States
    - - Issues –
        
        “Spending” – for “General Welfare” – Now Clear – no real limit [Butler] [Rust – abortion – not even talk about options]
        
        A federal law may, as a condition of receiving federal funds, constitutionally restrict fund recipients from engaging in abortion-related activities.Not seen as discrimination but rather encourage activities in one way rather than another
        
        “Taxes” – for “Revenue” – Now Clear – no real limit [Social Security Cases; National Federation – ObamaCare]
        
        Application of 10th Amendment – “Obamacare case - Grants and Contracts – Limits to Retroactivity- not totally condition existing grants and contracts with new mandates – is “coercion”
    - - C.J. Roberts - here additional Payment to IRS – If Not Buy Insurance
      - Not mandate –but “tax”
      - Fact that call “Penalty” irrelevant
      - Scalia - Dissent [on this issue]
      - Here just not a tax -
      - is regulatory statute with a piece as to how enforce – and really is penalty
    - - 1) the exercise of the spending power must be for the “general welfare;”
        
        Rational Basis
      - 2) the conditions on the receipt of funds must be unambiguous;
      - 3) conditions must be related to federal interest in a particular national project or program;
      - 4) conditions must not violate any other constitutional provisions such as the Tenth Amendment.
  - - - Issue of Public Accommodation – Civil Rights Act of 1875 prohibited private racial discrimination by hotel, restrauants, transportation and otherpublic accomadations
      - act was ruled unconstitutional ; now well established that congress may prohibit private racial discrimination
    - - Student raped at Virginia Polytechnic Institute
      - Suit under Violence Against Women Act
      - Not Constitutional under Commerce Clause – “not economic activity” – schools; crime – State Sovereignty
      - 14th Amendment - § 5 – only “state action”
        
        Dissent – is “remedial” –intent of Amendment
    - - Voting Rights Act – Puerto Rican – 6th Grade Education – Right to Vote even if not speak English
      - Not vs. Equal Protection – authorized by 14th Amendment § 5; 15th Amendment § 2
      - Broad powers like Necessary and Proper
      - Dissent – Literacy Tests Valid –Franchise – matter of local concern
      - ? Still valid – limits on §5/ §2
  - - - “The Judicial Power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the united States by Citizens of another State, or by Citizens or Subjects of any foreign state.”
      - Hans v. Louisiana – 1890 – Bars suits for damages when suing state gov or official unless protected by other fundamental constitutional rights , even if action already taken. if fund. const right, must be weight against 11th amendment
      - Alden v. Maine - 1999 - applies to suits in state court - under federal law - against states -”inherent Sovereign Immunity
      - Ex Parte Young (1908) fiction– can sue state official – not acting as state official if acting illegally -
        
        EX PARTE YOUNG Parties can seek injunctive relief or declaratory judgment to stop when suing a Gov official preemptively
      - Scope – injunctive/declaratory judgment - Not Damages [Retroactive] – also to federal agencies and State Courts [Alden]
      - State Waiver/Implied Consent – Stringent Review - ? Still valid - “coercive”
      - Supremacy Clause Exception – 14th Amendment - §5 – “Congruence and Proportionality”
        
        Not to Commerce; Patent – only 14th Amendment - Seminole Tribe (1996) –
        
        As to 14th – only to race and sex – suspect classes; fundamental rights [voting; court access] – not age or disability
      - ONLY APPLIES TO CITIZENS; FOREIGN NATIONAL CANNOT SUE FOR DAMAGES AND MIGHT NOT GET INJUNCTIVE RELIEF OR DEC. JUDGMENT
      - A SUIT BY ATTY GEN, OR FED OFFICAL, OR FOREIGN NATION WOULD NOT APPLY 11th AMENDMENT; DAMAGES COULD BE REQUESTED! ONLY APPLIES TO CITIZENS OF ONE STATE OR OWN STATE
  - - - Commerce Clause; Taxing; Spending; Foreign Affairs; General welfare
      - Explicit Article II Authority
      - 14th Amendment
        
        Due Process
        
        Equal Protection
      - Power of States
        
        10th Amendment
        
        Inherent Sovereignty
        
        11th Amendment
- - - - Must be intentional conduct” – not negligence; not recklessness; not failure to warn
      - Must be by Government [State Action Doctrine]
      - Deshaney v. Winnebago – 1989 – abusive father gov owed duty to child
      - Must be challenge by Injured party [standing]
      - Must be not too late and not too early [mootness and ripeness
    - - Liberty - constraints [jail; probation]; reputation/stigma; Board of Regents v. Roth – 1972 – right to contract; right to be employed; right to acquire information; to marry; raise children, worship
      - Property - Goldberg (1970) – reasonable expectation – legitimate entitlement by Statute or Other Governmental Action - Social Security; Non-Probationary Employment
  - - - A. individual and government interest affected;
      - B. risk of erroneous action;
      - C. value of additional safeguards;
      - D. fiscal and administrative burdens
- - - - Commerce; Tax; Spending; Civil Rights Amendments; Foreign Policy; War
    - - 10 th Amendment [Commerce Clause - “(A) Channels of Interstate Commerce”; (B) “Persons or things in interstate commerce”; (C)“Activities which substantially affect interstate commerce.”]
    - - “11th Amendment” - Prospective [Ex parte Young]; Retroactive/Damages [Impact of 14th Amendment – Congruence and Proportionality]
    - - Horizontal Separation of Powers [formalism vs practicality; Judiciary and Other Branches]
    - - Scope of Action – preemption; occupy field
    - - Dormant Commerce Clause
      - Privileges and Immunities Clauses
  - - - Express Preemption
        
        Lorrillard v. Reilly – 2001 – Massachusetts Rules on Tobacco - ? expressly barred by Cigarette Labeling and Advertising Act
        
        Riegal – 2008 – Medical Device Regulation – bar state tort suits for defective devices if approved by FDA
        
        REGULATION STATES THAT STATE LAW IS TAKEN OVER BY FEDERAL
      - Implied Preemption
        
        Field pre-emption (scheme of fed regulation is so persuasive as to make reasonable the inference that congress left no room for states )
        
        Occupies the Field
        
        Hines – 1941 – registration of aliens; vs federal control of all immigration matters – dominant national interest
        
        Now
        
        Arizona v. United States – 2012
        
        Arizona statute – to deter illegal immigration
        
        Federal area of regulation and control – foreign policy and immigration – field pre-emption
        
        Leaves open – make inquiries of status [not yet conflict]
        
        Conflict preemption where compliance with both federal and state regulations is a physical impossibility
        
        ? “Mutually Exclusive” or “Minimum vs Maximum” or “Parallel”
        
        Florida Lime v. Paul [1963]
        No conflict yet – avocados oil content [state] and maturity [federal regulation] – still potential if farmers not act appropriately
        
        Depends entirely on intent of federal gov: allowing pollution above a level vrs setting minimum standard
        
        Impedes achievement of Federal Objectives
        
        Pacific Gas v. State Energy Resources – 1983
        
        Nuclear plants Authorization
        
        Nuclear energy [federal] vs Electricity Regulation [State] – federal –safety; state – economic; waste disposal – is economic [MHB - ?]
        
        Cases – very very fact specific – just need to follow principles
        
        Determined based on what federal objective is
      - ALL CASES – CASE BY CASE – ALMOST AD HOC
    - - Equal Protection Clause [rational basis]
      - Privileges and immunities [Article 4] [only as to citizens]
      - Dormant Commerce Clause
  - - - State Laws That Discriminate Against Interstate Commerce or Other States and Their Citizens [Out of Staters] - Almost always unconstitutional
      - If a law does not discriminate against out of staters, the court balances its burdens on interstate commerce against its benefits
    - - N.J. bans importation of waste collected or originating outside of New Jersey – trash and garbage is commerce – is protectionist in nature
    - - State must regulate evenhandedly - no discrimination
      - Is it a "legitimate local interest" - Non-Protectionist
      - Weighing - the importance of local interest vs burden on Interstate Commerce
        
        a. if more than an incidental burden on interstate commerce weighing - - must not be clearly excessive when compare burden on commerce to local concerns
      - Then look to see if are other more reasonable alternatives - with lesser impact on interstate commerce
      - A state law that furthers a legitimate local public interest and only incidentally affects interstate commerce will be upheld unless the burden imposed on interstate commerce is clearly excessive in relation to the putative local benefits.
      - Step by Step
        
        1)Is it a matter of local or national concern?
        
        2)If local, then what is impact on interstate commerce
        
        3) If significant impact, then need extraordinary matter of local concern to override need for uniformity [Tennessee Wine- 2019 - narrowly tailored to advance a legitimate local purpose]
    - - Congressional Approval – allow state regulation of liquor and insurance
      - when the state acts as a market participant rather than a regulator
  - - - a. no discrimination
      - b. fairly apportioned to be based on intrastate commerce
      - c. on an activity connected to the state
      - d. related to state services provided
    - - Previous rule – individual have to pay sales tax – but not force entities to collect sales tax unless physical presence or equivalent in state – Quill v. North Dakota (1992)
      - Now – “fair share” – stop competitive disadvantage to in state – and stop incentive to avoid physical presence
      - Dramatic change in sales – on line marketing – virtual showroom – and old rule – “extraordinary imposition” on state authority
      - physical presence in state no longer required
  - - - Right to Travel
        
        Right of citizen of one state to enter and to leave another state
        
        Right to be treated as a “welcome visitor” when temporarily in another state
        
        Right to be treated as equals when permanently move to another state
    - - NOT APPLIED: Congressional Approval – allow state regulation
      - NOT APPLIED: when the state acts as a market participant rather than a regulator
    - - 1) Dormant Commerce Clause [Discrimination and/or burden]
      - 2) Privileges and Immunities [Discrimination][only to citizens but “market participant” exception not apply; Congressional authorization not apply]
      - 3) Equal Protection [Discrimination] [Rational Basis Test]
      - 4) Might be Heightened Scrutiny – if “Right to Travel” – Combined Analysis
    - - 1) there is a substantial reason for the difference in treatment and
      - 2) the discrimination practiced against nonresidents bears a substantial relationship to the states objective
    - - Again – strict scrutiny – Compelling Interest Test – related to weighing of state interest
      - Bad for Benefits – Welfare – Shapiro v. Thompson (1969)
      - Bad for Access to Medical Care – Memorial Hospital v. Maricopa County (1974)
      - May be allowable for short period for divorce – high state interest – Sosna v. Iowa (1975)
    - - Can be some delay – avoid fraud and double voting – compelling reason
      - Nut not too long – narrow tailoring
      - Dunn v. Blumstein (1972) - one year too long
    - - MHB – What about differential tuition for out-of-state?
      - What about preference for state residents for pubic universities and colleges
    - - Not covered by Privileges and Immunities Clause
      - Rational Basis Test – Equal Protection Only; “Foreign Affairs Justification
      - Can ban travel to particular country [Cuba]; Can lose welfare benefits if leave country; Can revoke passport
      - Can bar entry from specific countries [Trump v. Hawaii (2018)
    - - General rule - need explicit waiver for state to control or affect federal authority
      - General Rule – need explicit waiver for federal government to regulate state authority
        
        Exceptions – Ex Parte Young Doctrine – Future Action
        
        14th Amendment – race; sex
- - - - City; County; Board of Education; Water District; USPS
    - - “traditionally and essentially exclusively reserved to the state”
      - Company Town
        
        Marsh v. Alabama – 1946 - free speech – company town – equivalent of city - but then later – not to Mall [Hudgens v. NLRB – 1976]
      - Public Services
        
        Utilities – Jackson v. Metropolitan Edison – 1974 –not government activity; also not so entwined
        
        Rejects (1) monopoly; (2) essential public service; (3) governmental control
      - Voting
        
        Clear – Governmental Function –
        Smith v. Albright – 1944 [closed primary]; Terry v. Adams – 1953 – “Jaybird” Association – equivalent of primary
      - Parks
        
        like the “fire department or police department”
        Evans v. Newton – 1966 – public to private - whites only - “public institution” – “public character of this park” –
    - - Judicial and law enforcement actions
        
        Defamation – Freedom of the Press – New York Times v. Sullivan (1964) – “Defamatory Ad”
        
        Restrictive Covenants- Equal Protection - Shelley v. Kramer – 1948 – private agreements but public enforcement – government action
        
        Judgment Enforcement – Due Process – Lugar v. Edmondson Oil – 1982 – direct involvement of state officer
        
        But Flagg Brothers v. Brooks (1978) – “self-help” – warehousemen pursuant to UCC – seize goods based on debts – “automatic” – no state action
        
        Peremptory Challenges
        
        Batson v. Kentucky – 1986 – challenges by prosecutor;
        
        Edmonson v. Leesville – 1991 – Civil Litigants
        
        Georgia v. McCollum – 1992 – defendant in criminal case
      - Government liscensing and regulation
      - Government subsidies
      - Voter initiatives permitting discrimination
        
        Reitman v. Mulkey – 1967 - 5 to 4 – find state action in initiative that change law to provide total discretion to sellers of homes
        Romer v. Evans – 1996 – Initiative repealing laws barring discrimination based on sexual orientation – was state action
      - Public Services - No
        
        Utilities – Jackson v. Metropolitan Edison – 1974 –not government activity; also not so entwined
        Rejects (1) monopoly; (2) essential public service; (3) governmental control
      - Schools – No
        
        Rendell-Baker v. Kohn – 1982 –Procedural Due Process – Schools for “special needs” students
        Rejects (1) income come from government; (2) students referred by government; (3) rules established by state; (4) education “traditionally exclusive prerogative of state”
      - Medical Services – No
        
        Blum v Yaretsky – 1982 – “Procedural Due Process” – Medicaid Patients – Nursing homes
        Rejects (1)standards set by state; (2) funding all from government; (3) imprimatur of state; (4) medical care “traditionally exclusive prerogative of state”
      - Privatization – How Far
        
        Manhattan Community Access (2019)
        
        Private Entity – manage public access channels that are mandated by law – claim violated free speech by barring one group from access
        
        No state action
        
        Not a traditional governmental function – “not powers traditionally exclusively reserved to the state –very very few such functions – not include hosting speech of others
        
        License and oversight/regulation – cases point out that not enough
        
        Reject idea – public access channels “property of New York City”
        
        Idea – “critical boundary – individual and government - “individual liberty and private enterprise
      - Burton v. Wilmington Parking Authority – 1961 -racial discrimination – lease in state office building – “joint participant” – state action
      - 11 years later – new Court
        Moose Lodge v Irvis – 1972 – private lodge – liquor license – no state action – not significantly involved with government action
      - Entwinement – Case by Case
        
        Rendell-Baker v. Kohn – 1982 - public school district send pupils to private school for certain education and training; mere contractor and no state action
        
        San Francisco Arts & Athletics v. U.S. Olympic Committee – 1987 – Federal statute reserves name Olympics - establishes a private entity – government charter – not state action
        
        NCAA v. Tarkanian – 1988 – NCAA – independent entity – through controls college athletics – no state action
        
        Brentwood Academy v. Tennessee Secondary School Athletic Association – 2001 – 5 to 4
        Statewide Association regulate state public and private athletics – “pervasive entwinement” – “close nexus”
        State action
- - - - Ability to enter into and enforce contracts
      - Pursue a trade or profession
      - Acquire, possess and convey property
    - - Text – Contract Clause – Article I, Section 10
      - 5th & and 14th Amendments – Due Process Clauses [Economic Substantive Due Process]
      - 5th Amendment – Taking Clause
    - - There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten Amendments, which are deemed equally specific when held to be embraced within the Fourteenth. . . . It is unnecessary to consider now whether legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation, is to be subjected to more exacting judicial scrutiny under the general prohibitions of the Fourteenth Amendment than are most other types of legislation. [Examples - right to vote; dissemination of information ; on interferences with political organizations; peaceable assembly]
      - . .. . Nor need we enquire whether similar considerations enter into the review of statutes directed at particular religious [practices] . . . or racial minorities; whether prejudice against discrete and insular minorities . . . and which may call for a correspondingly more searching judicial inquiry. . . .
      - FAMOUS FOOTNOTE 4 Sets the standard for judicial review in all cases involving constitutional rights
        
        fundamental right-- review is much stricter than rational basis
        
        discrete and insular minorities (race gender etc) --- also more searching judicial scrutiny
        
        Religion and Race/gender etc only two situations with higher scrutiny given--- all others assumed rational basis test
    - - 2 If so, does it serve a significant and legitimate public purpose?
      - 3) if so, is it reasonably related to achieving the goal
      - 1 is there a substantial impairment of a contractual relationship?
    - - rational basis
      - compelling evidence
      - strict scrutiny
  - - - Is there an adequate reason [reasonable basis] to affect life, liberty or property
      - If “fundamental right” – elevated to “compelling reason” [e.g. - family rights; privacy]
    - - Look at process to affect life, liberty or property – are they procedurally sufficient
  - - - a. only states or local gov [but can get to same by taking provision]
      - b. only existing contracts - not to future contracts
      - c. Seldom used now - need “substantial impairment” – and no rational basis
      - d. Limited to government contract [ “self-dealinjg” – Government retroactively change its own contracts - Higher level of scrutiny [NY/NJ Tolls]
      - Made insignificant by the courts protection of freedom of contract under the Due Process Clause of the Fifth and Fourteenth amendment
  - - - “nor shall private property be taken for public use, without just compensation”
      - 1) Private “property”
        
        What is “property”
      - 2) “Taken”
        
        When is Taking –[at what point say is taking – when raise issue; Temporary or Permanent]
        
        What is taking – possessory vs regulatory; “all economic viable use; partial or full
      - (3) “public use”
        
        What is an appropriate “public use”
      - (4) Just compensation
        
        What is “fair market value” – loss to the owner
    - - Possessory Takings
        
        Property Law determines if physical invasion – air space/easement
        
        any physical invasion – no matter how small – is a taking [Cable and apartment complex][set aside of raisins]
      - Regulatory takings
        
        at a certain point, a government regulation can go too far and become a taking - Pennsylvania Coal v. Mahon – 1922 – Holmes - subsidence
        
        Money/Personal Property - less complex rules than land/real property [exactions]
        
        Ordinary Regulations – weighing – Penn Central (1978)
        
        economic impact;
        
        investment backed expectations;
        
        character of the government action
        
        As to “character of actions” – clearest taking is when actions leaves “no reasonable economically viable use of property” –Lucas (1992)
        
        exceptions – not in original title; common law principals [Nuisance; public trust]
      - Can be Partial takings
        
        Define by state law – as to what is parcel – or state law as to each parcel – Muir (2017)
      - Can be “temporary takings”
      - Exactions/Conditions – Can Be Takings
        exaction-- conditioning a permit being granted on whether the owner will grant a public easement to beach access.
        
        Nollan/Dolan - individual land use exaction --- conditional approvals or denials [Koontz (2013)]
        
        the government may not require a person to give up a constitutional right in exchange for a discretionary benefit conferred by the government where the benefit sought has little or no relationship to the property
        
        The government may not, without just compensation, place land use conditions on an approval of a private property development plan unless there is a “rough proportionality” between the conditions and the impact of the proposed development.
        
        nolan and dollan nexus and proportionality tests
        
        A landowner who acquires land after regulations take effect can still raise a regulatory takings claim.
        penn central investment backed expectations is adjusted to allow for history of property
    - - 2 Is it property?
      - 3 Is the taking for public use?
        
        rationally related to a concievable public purpose
        
        Supreme Court not get into issue about what is appropriate use [Hawaii (1984)(divide property); Kelo (2005)
        – but states can and do define
      - 1 Is there a taking ?
        
        Possessory or Regulatory // partial and temporary
      - 4 Is just compensation paid?
        
        measured in terms of loss to the owner, the gain to the taker is irrelevant
        
        Primary Fight – eminent domain cases – loss to the owner – “fair market value” - Brown v. Legal Foundation of Washington (2003) (5 to 4) – IOLTA - -no pecuniary loss; Horne (2015) - full market value - no discounts for “what might have been”
- - - - Ex Parte McCardle - 1868
        
        May Congress withdraw jurisdiction from the United States Supreme Court after jurisdiction has been given?
        
        Yes. Although the Supreme Court’s appellate jurisdiction is derived from Article III of the Constitution, it is ultimately conferred “with such exceptions and under such regulations as Congress shall make” as outlined in the Exceptions clause of Article III, Section 2. Here, Congress had previously affirmed the Supreme Court’s exercise of appellate jurisdiction over habeas corpus actions in its 1867 Act, but repealed that provision of the act in 1868. By doing so, Congress exercised its constitutional right to limit Supreme Court jurisdiction. Thus, the Supreme Court had no jurisdiction to consider McCardle’s petition for a writ of habeas corpus.
      - Article III, § 1 – creation of “inferior courts” as Congress establish
      - Article III, § 2 – appellate review – such exceptions and such regulations
      - ? Absolute limit – or “Other remedies”
      - legislature can pass law that changes standards, future courts have to apply.
        legislature can not overrule a decided case.
      - United States v. Klein---Based on the principle of separation of powers in the United States Constitution, the legislative branch may not impair or direct the exclusive powers of the judicial or executive branches. (cannot tell the court how to rule in cases )
        
        Under the Constitution’s grant of power to Congress to make “such exceptions to appellate jurisdiction” as it deems appropriate, Congress could permissibly limit the ability of the Supreme Court to hear certain cases on appeal. However, in this case, Congress’s 1870 law did more than just make exceptions to the Court’s appellate jurisdiction. It went beyond that to actually require the Court to determine it was without jurisdiction if it found that a plaintiff was entitled to property rights based on a presidential pardon. This effectively required the Supreme Court to reach a certain result; it prescribed the rule of decision in a particular case. This is an impermissible extension of Congress’s power and is thus unconstitutional.
      - statue does not impinge on judicial power when it directs courts to apply a new legal standard
  - - - Cases and Controversies – Article III, § 1
        
        Constitutional Doctrines
        
        Prudential Doctrines
      - Self-Regulating
        
        Adversarial [Advisory Opinion]
        
        Standing – Injured [not benefitted]
        
        Timeliness [Ripe and not Moot]
        
        Narrow Rulings
        
        Avoid Constitutional Issue
        
        Necessity
      - “Wave” Theory
      - Standing, Ripeness and Mootness – Time Based
        
        Standing – Who [but Direct Injury - Immediate]
        
        Ripeness & Mootness – When
        
        Ripeness – Too Soon
        
        Mootness – Too Late
      - Issue – Why Force Violator To Sue vs. Screening
    - - prohibition against advisory opinions
        
        Advisory Opinions
        
        Tie -- to Ripeness and Mootness
        
        Need actual dispute –
        
        not give opinions to President or Congress – Compare to Canada; Europe
        
        Must be decision that ends dispute at that point –
        
        Hayburns Case – 1792 – factual options and then President decide – no good
        
        Finality Doctrine – part of Advisory Opinion – Plaut – 1995 – Once Case Resolved – Not Change by Statute -
        
        can create new right or rule by statute – to new cases - but not to final decision – not oust opinion by statute
        
        Not mandate decision - then only advisory
        
        court can get around advisory opinons in some ways ---> dicta which becomes advisory without advisory opinions
        
        ---> every time you have a rightness issue or mootness issue it becomes an advisory opinion.
        
        ---> declaratory judgments are inherently advisory as it has not happened yet.
      - standing
        
        Definition
        
        Whether this entity has the right to have this court decide the merits of the particular issues of this case
        
        The most important Justiciability issue!
        
        Rules – relatively straightforward! But Application [Ugh]
        
        Intent – avoid “generalized grievances”
        
        Purpose – Guidance to lower federal courts
        
        gives court abilities to not hear cases they do not want to hear
        
        Tests –Injury Causation Redressability
        
        3 standards
        
        causation-
        
        plaintiff must allege that the injury is fairly traceable to defendants conduct
        
        “fairly traceable” [Allen v. Wright – tax Exemption – segregation – no “tie’ to actions; Injury in Fact – Clapper – surveillence – too many steps to impact; Proximate; Timely - but now – California v. Texas (2021) – no penalty – means not enforceable - so no issue of causation as no enforcement to action of states or individuals who are told to comply with health insurance mandate; Carney v. New York (2020) – political balance n Delaware Courts – must show “ready and willing to run” – now [Imminence]
        
        redressability--
        
        the plaintiff must alleged that a favorable federal court decision is likely to redress the injury --small steps even if not solving problem completely is ok.
        
        Redressability – Lujan v. Defenders of Wildlife - no authority to order other agencies; Warth v. Seldin – new housing not happen; but can allow incremental steps [Massachusetts v. EPA – coastal erosion]; Uzuegunam v. Preczewski (2021) – nominal damages enough to show remedy – so redressability
        
        injury
        
        -- plaintiff must allege that he or she has suffered or imminently will suffer an injury
        
        Injury – Economic Dominant – “concrete and particularized;” actual and imminent [tied to ripeness] – Los Angeles v. Lyon – “chokehold” – no proof of future injury; concrete hram – Transunion v. Ramirez – must be in group actually impacted by turning over misleading credit files – not just those who had misleading credit files made and could have been impacted
        
        Prudential Standing Requirements
        
        prohibition of third party standing
        
        EXCEPTIONS
        
        A plaintiff has standing to bring a lawsuit on behalf of a third party’s right when that right is inextricably bound up with the activity the litigant wishes to pursue, and when it is unlikely that the third party can or will sue on his or her own behalf.
        
        prohibition of generalized grievances
        
        only exception to general grievance is direct federal expenditures that go to religious institutions under Flast v Cohen
        
        Special Doctrines
        
        Statutory Standing
        
        Zone of Interests
        
        “Zone of Interest” of Statute Intent to Protect or Regulate
        
        Slightly More Scope
        
        “Any person”
        
        “adversely affected or aggrieved”
        
        “Breadth of Interests” - Aesthetic
        
        Still “Justiciability Concerns” – Wave Theory
        
        APA; NEPA; CAA; CWA
        
        Economic v. Environmental – “One Way Street”
        
        Associational Standing
        
        Interests of Members
        
        “Need” – NAACP – Membership Lists
        
        Members Need Injury
        
        Economic Best – Trade Associations/Set Asides
        
        Issue Germane to Organizations Purpose
        
        Not Need Members to Prove Case
        
        Third Party Standing & Direct Injury Requirement
        
        Disfavored –
        
        Two steps – Own Injury and then Direct Injury to Injury Party Tie to Rights [“Close Nexus”]– Economic Best - Doctors – Abortion; [Singleton; June (2020) – Abortion – Doctors; Bartender – Sale of Beer to Men
        
        Scope – Tied to Injury of Suitable Party
        
        Racial discrimination – Selection of Jurors
        
        Commonality of Interests [Doctors – Abortion]
        
        Rule of Necessity
        
        “Justiciability” - Prudential Concerns
        
        Taxpayer Standing – Generalized Grievance
        
        Taxpayer Standing – Generally No Standing
        
        Limited Exception – Direct funding for Religious Purposes [?how long last] - Flast v. Cohen – 1968
        
        Exception to Exception –Valley Forge – 1982 - Not apply giving of government Property; Hein – 2007 - Not apply to Executive Expenditures; Arizona School Tuition – 2011 - Tax Credits – Not Apply
      - ripeness
        
        Basic standard - is "to prevent courts, through the avoidance of premature adjudication, from entangling themselves into abstract disagreements with organs of government" - "fitness of issues for judicial decision" balanced against "hardship to parties of withholding court consideration“
        
        Tie to Advisory Opinions and Standing
        
        Three step process - Almost ad hoc
        
        1 Is there a real claim?
        
        2 Is there a real injury – causation?
        
        (3) Should “we” decide - prudent judicial decision-making - discretion
        
        For a lawsuit to be ripe for adjudication, the injury threatened must be relatively immediate and certain to occur without court intervention.
        
        (1) In determining whether a case or controversy is ripe for adjudication, a court must evaluate the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.
      - mootness
        
        if anything occurs while a lawsuit is pending to end the plaintiff's injury, the case is to be dismissed as moot
        
        exceptions
        
        Capable of repetition but evading review
        
        Moore- election law with greater number of signatures required
        moot for current election as its over; however election is "capable of repetition, yet evading review" therefore not moot
        
        Voluntary Cessation
        
        case is not dismissed as moot if the defendant voluntarily ceases the allegedly improper behavior but is free to return to it
        
        Class actions
        
        class actions can continue even if named plaintiffs claims are rendered moot
      - political question
        
        allegations of constitutional violations that federal courts will not adjudicate and that the supreme court deems to be inappropriate for judicial review
        
        Baker v Carr For an issue to be a non-justiciable political question, one of six tests (listed in descending order of importance and certainty) must be satisfied:
        
        (1) a textually demonstrable constitutional commitment of that issue to another political branch;
        
        (2) a lack of judicially discoverable and manageable standards for resolving the issue;
        
        (3) an impossibility of deciding the issue without making an initial policy determination of a kind not suitable for judicial discretion;
        
        (4) a lack of respect for the other branches of government in undertaking independent resolution of the case;
        
        5) an unusual need for unquestioning adherence to a political decision already made; or
        
        (6) the potential for embarrassment for differing pronouncements of the issue by different branches of government
        
        What is a “Political Question” Is A Political Question
        
        Hierarchy of Application
        
        Foreign Policy – National Security
        
        Administration of Government Branch
        
        Separation of Powers – Horizontal
        
        Federalism – Vertical Separation of Powers
        
        Wave Theory – Changes over time and with Court
        
        Examples
        
        Election to House of Representatives – not; selection of President [Bush v Gore] – not
        
        Closing of military basis – is
        
        Recognition of China – is
        
        War – Vietnam; Iraq; Afghanistan – is
        
        Dealing with Detainees – not
        
        Bases and Procedures of Impeachment - is
        
        Baker – reapportionment – not; later – Veith/Rucho (2019)(5-4) – gerrymandering is
        
        Rucho v. Common Cause (2019)(Roberts)(5 to 4)
        
        Gerrymandering Is “highly partisan” – time, place and manner” - Art. I, § 4, cl. 1 - means commitment to let states - checked and nuanced by Congress
        
        How determine “fairness” – not get involved in “heated partisan issues”
        
        Dissents
        
        Are tests now – once weren’t; vs one person one vote and also 1st Amendment
        
        Judicial fact-finding of fairness – done all the time and do now with racial gerrymanders