Con Law Outline
Main Issue of Constitution
1) powers of fed govt (federalism) v. State
2) internal allocation w/in federal govt among branches of govt : separation of powers, checks & balances
3) allocation of power & rights bw individuals and the government
4) slavery & equality
Constitution
1) sets up structures, insittutions, & offices
2) federalism & separation of powers
3) promoting commerce
4) individual rights
5) privileges & immunities
6) habeous corpus—right to challenge holding & custody
ALWAYS ASK WHERE IN CONSTITUTION IS CONFLICT ARISING FROM? WHAT SECTION? IS IT MENTIONED AT ALL?
National Legislative Powers
1) McCulloch v. Maryland
1)a.congress has power to incorporate bank; const gives congress discretion & power to enact means needed to perform duties imposed upon it & are implied by the Necessary & Proper Clause even though const has no mention of bank
1)b. arguments
1)c.greater power includes lessor powers—- reject as having too much power
1)d. N&P clause: does conveniently really come from necessary?; framers meant it to mean convenient
1)e.implied as incidental—- if somehting is implied or incidental by nature of power than it is okay
1)f.bc word “expressly” was not there, there is room for leeway
2) fed legislation must be based on powers granted by constitution
3) N&P Clause: provision to effectuate granted powers; Art1§8 lists powers related to banking
3)a.ex: post office: certain implied means, implied goes more towards definition & meaning or power, attributes that require power to function well and conveniently
Executive Powers (must come from constitution or act of congress; can only recommend or veto them, not create them)
1) Youngstown
1)a.commander in chief of armed forces doesnt have power to take possession of private property to stop labor disputes
1)b. not a power in const, was not executing a law
1)c.only lawmakers could do it; doesnt matter if previous presidents have done it
2) Two Sources fo Executive Powers: constitution or act of congress
3) const makes executive the commander in chief of army & navy, power to make sure laws are carried out
Emergency Executive Power
1) Korematsu
1)a.exclusion based on war w/ japan, not personal; congress granted president power to do so; only in time of war
1)b. exclusion was based on military dangers, not race, so long as not done out of racial hatred it is okay
2) restrictions that curtail legal rights of single racial group are immediately suspect; not always unconstit. but subject to rigid scrutiny
2)a.guilty should be personable, not inheritable
Judicial Power
1) Marbury v. Madison
1)a.const must be paramount law, judges take oath to protect it; court rejected request for writ of mandamus bc judiciary act that authorized courts to grant writs of mandamus on govt official exceeded powers of congress & unconsitutional
1)b. gave courts power to decide const issues when necessary to abjudicate a concrete issue;power to intervene w/ legislative actions
1)c.courts should provide safeguards against const violations by other branches: public interest in ensuring conformity
2) Doctrine of Judicial Review
2)a.gives court power to declare an act of coordinate branch of govt unconstitutional; may sometimes seem undemocratic
3) US v. Carolene: FN4
3)a.tries to give guidelines when when judicial review should be used
3) if majority is oppressing minority that has no way to protect itself through normal political processes
3) when state interferes with electoral or political processes
3)b. more exacting scrutiny under general prohibition of 14thA
3) voting rights, freedom of expression, political association, discrete & insular minorities (not women)
3)c.courts should use judicial review aggressively when electoral process broke down
3)d. strict scrutiny to laws directed to disadvantages groups (racial, religious, ethnic)
4) Martin v. Hunters Lessee
4)a.§ 25 of Judiciary Act authorizes appellate power of SC to cases pending in state court and is supported by const
4)b. w/o this ability there would be no uniformity each state would have diff laws, no two states would have same effect
Political Question Doctrine
1) Atlee v. Laird
1)a.participation in vietnam war is PQ not subject to review, no set judicially manageable standards
1)b. whether congress has taken sufficient action to authorize war adn whether president is justified in maintaining american forces are also political questions
2) PQD: if courts review these questions, they enter domain outside their competence & legit concern; would not have necessary data
2)a.often the case with foreign relations; would not have all the info or judicial standards (too hot
terstate commerce that could be regulated under CC
3)ii. possible eventual abuse of power is not argument against its existence, it was seen as widespread pestilence, morals
3)iii. lots of moral based CC statutes: Mann Act (white slavery); obscenities, food, drugs, plants, commstock (rebel. mail)
4) Shreveport Case (congress can set intrastate rates)
4)i. unjust discrimination in rates of common carriers is authority of congress to fix; has power to forbid discrimination by intrastate carriers when they affect freedom of movement interstate
4)ii. can regulate intrastate transactions which are so closely related to & effect interstate commerce
5) Regulation fo National Economic Problems
5)i. Hammer v. Dagenhart
5) congress exceeded commerce power by prohibiting interstate transportation of goods made at factories that used child labor; could not exercise police power so as to prevent unfair competition; goods harmless
5)ii. Direct Effect Test
5) if CC reached all transaction that could indirectly effect on interstate commerce than it would control everything
5)iii. NLRB v. Jones & Laughlin
5) gave congress power to regulate labor relations; if intrastate but has such close & substantial relation to interstate commerce than control is appropriate; could not fire people who joined unions; it was okay for commerce to regulate labor relations because strike by unions workers would greatly effect commerce
5)iv. US v. Darby: OVERRULES Dagenhart
5) prohibition of shipping goods produced under forbidden labor conditions is w/in congress authority
5) said states should not use substandard labor practices to their own economic advantage
5) intrastate activities that have substantial effect on interstate commerce can be governed by CC (broad)
6) Power of Local Activities Affecting Commerce
6)i. Wickard v. Filburn
even if activity is not local& isnt commerce it may be under
