CON LAW I OUTLINE:
[Fed. law invalid unless Constitution authorizes – NO police pwr] [State law valid unless Constitution prohibits – police pwr] **do for EACH PARTS of the law!**
**Always analyze ENDS first [conceding end if go to means]**
**Can laws be SEVERED IF C OR unC?**
1. State or Federal law?
a. Federal challenges:
i. Justiciable? [avoidances – non-const. issues] [b/p CHALLENGER] 1. Political Question – no ct role [go to appropriate body for relief] a. Examples: Foreign relations (war decl., recognizing foreign gov’t, armed forces abroad).
b. Court can’t interfere w/ lawmaking!
c. Criteria for PQ [Baker]: (1) Constitutional Textual commitment to other branches; (2) lack of judicial expertise; (3) prudential concerns; (4) Impossibility of deciding w/o lack of respect due to coordinate branches; (5) unusual need to defer to Political decision; (6) gov’t must speak in one voice
d. CHALLENGER – re: individual rights [Marbury] e. Types of cases that are PQ:
i. 1) Guarantee Clause (Luther v. Borden)
ii. 2) Whether pres can terminate foreign policy/treaty w/out the senate (Goldwater v. Carr)
iii. 3) Challenges to impeachment process (Nixon v. US)
iv. [Election/reapportionment IS NOT PQ(Baker v. Carr)] 2. Advisory opinion & avoid C question – Not allowed in fed. ct, but okay in state ct opinions
a. [Ashwander v. TVA – (1) Separation of pwrs – keep cts out of leg. process, judicial role limited to deciding actual disputes; (2) judicial resources conserved b/c may be requested when law would not pass the leg.; (3) specific disputes, not hypothetical.] b. Avoid C question
3. Standing? [If question says “assume proper party challenging” à assume has standing] a. Concrete, actual harm and causation traceable to gov’t action
b. Standing Alternatives
i. 3rd party standing [Exception: Interchangeable economic interests, class action or organization representation] ii. Declaratory relief [esp. for states] 1. STATE:
a. play special role in C scheme
b. Too cumbersome political and econ if make state wait for harm.
c. Not want US to sue states if take money and not do required act
d. may suffer harm if spend $ or steps to implement FED law
a. Dole already entitlement to fed funds
b. Does not make states ineligible for future monies if do not comply
c. Uncertain whether states must spend money, so wait until harm
iii. Take action to make standing [violate the law] iv. Foreclose them from the activity?
c. Ripeness? [non-speculative] i. Not yet enforced à only advisory opinion?
ii. If state à don’t have to wait for harm? [politically & economically awkward to wait] d. Mootness [Injury gone, Exception: Voluntary Cessation w/ chance of return, capable of repetition (yet evading review – i.e. Roe), class action reps] ii. Fed. Power Source:
1. Commerce Clause
2. Spending & Taxing
3. Foreign Treaty power
a. [Note: Necessary & proper clause – this allows to use Commerce/Spending pwr] b. [Note: Is law irrational? Then might not meet minimum scrutiny] 4. McCulloch – Default test if more specific test of Congress’s pwr does not exist
a. Are ends legitimate?
b. Are means appropriate?
c. Marshall suggests as long as Congress has an implied or express pwr to act, ct should defer to Congress.
5. 14th Amendment §5 – congress can enforce civil rights amendments
6. What if FED does not state pwr (Or NOT obvious)
a. FED: Should fill in blank or choose most likely source
i. Rational basis [Lopez] ii. Not normally require formal fact findings [Lopez] b. CHALLENGER – Ashcroft can’t assume as a source when not stated so
i. Improper to assume b/c foreclose state sovereignty limits on Congress
ii. No General police pwr [Piling inference upon inference] Slaughterhouse
a. Appropriate means and legitimate ends? [McCulloch] b. Slaughterhouse apply? [race discr. only] c. Violate other Constitutional provisions [Separation of pwrs or interfering w/ individual liberties] iii. If Executive:
1. Youngstown[if executive order] 2. Foreign Power
3. emergency pwr
5. Preemption [do first – less interv. (not saying state law is unconst.)] a. Only when state conflicts w/ federal law
b. Say “state law supplements federal” [if want state preempted] 6. Executive Agreement
7. Executive Immunity or Privilege
8. Executive appointment/removal
iv. External limits:
1. DP [substantive, procedural, vagueness] 2. EP
3. DP 5th Vagueness –
a. use if re: fundamental rights or re: criminal
b. AND don’t provide a penalty or words are ambiguous
4. DP 5th excessive penalty
5. 10th amd – State Sovereignty [STATE P only] 6. 11th amd – State Immunity [STATE P only] b. State challenges:
i. Preemption [do first since non-C issue] ii. DCC [or dormant international commerce] [P – out of state resident] 1. mkt participant exception FIRST
iii. P & I [P – out of state resident AND Facial Discrimination] iv. Takings
v. K Clause
vi. Equal Protection [less interv. than DP – state can rewrite law; don’t want to disable state gov.] vii. Due Process [substantive & procedural] viii. P or I [P – any US citizen]
o Authority for judicial review of exec/leg. action
§ Marbury – duty & province of cts to review [power to declare other branch’s act unconst.] · Congress cannot allow Original jdx beyond those enumerated in Constitution.
· Cannot review veto leg., pwr making appointments
§ McCulloch – constitution is what gov. must do at minimum.
· Necessary & Proper clause – broad congressional discretion to choose means
§ Cooper – Judiciary branch can review all fed. & state gov’t action
o Authority to review state court judgments
§ Martin v. Hunter Lessee – (1) Constitution presumed SC could review state ct decisions; (2) SC judges are more insulated from political pressures; (3) uniformity in interpretation of fed. law.
§ Cohen v. Virginia – Judicial pwr extends to all cases arising under the constitution/law; extended Martin reasoning to state criminal cases
Art III, §1: “The judicial power of the US shall be vested in 1 supreme ct and in such inferior courts as Congress may establish.”
Art III, §2: judiciary has power over 9 cate
Four Part test:
Economic/Commercial or NOT
if commercial à AGGREGATE [Wickard]
Law cannot regulate noneconomic activity based on cumulative effect on ISC [Morrison]
Can reach non-economic activities if it regulates non-econ. Activity as part of a broader scheme of econ. Regulation.
Jdx hook/element assuring activity effects interstate commerce on case-by-case basis [Guns that travel interstate or car thieves that travel interstate]
Presence helps Congress AND ct may scrutinize economic nature closer if there is no jdx element.
Congress cannot rely on jdx hook/fact-finding alone (Morrison)
Congressional fact-findings of effect on interstate commerce
Attenuated link b/w regulated activity and the effect on interstate commence [piling inference upon inference] Traditional province of the states [criminal activity]
If State, then does 10th Amd trump commerce clause
Some categories id. as interstate –
1. econ. act. that subst. affects interstate comm..
2. crim. law w/ jx element ensuring nexus to interstate comm.
Raich – Facial attack ineffective in this case, used rational basis test in finding that Congress had reason to believe that failure to regulate intrastate manuf of possession of weed would leave gaping hole in Controlled substance act.
Perez – Extortionate credit transactions, though purely intrastate, may in the judgment of Congress affect ISC.
Nature of law:
§ If law is essential part of larger regulation of economy à AGGREGATE effects [Congress wins] · Req. data & # to find if essential
§ Darby Congress can regulate [substand. work condition OK]:
· Interstate transportation of goods harmful to public
· Intrastate if appropriate means to end of regulating interstate
· “motive” or “pretext” is irrelevant as long as the means are “rx adapted” to the end of protecting interstate commence.
· [bootstrap arg: Congress regulates local activities to direct ICS outcomes] o Non-Economic
§ STATE – argue state relegated area [violence & vindication] § FEDERAL: argue that it’s
· 1. economic
· 2. states can’t or won’t do it
· 3. facts show has subst. effect on interstate commerce [property loss, health, insurance] · 4. National problem, even if not econ.