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Constitutional Law I
University of Kansas School of Law
Levy, Richard E.

Con Law, Levy, Spring 2014
Constitutional Frameworks
Federal Powers Framework
1.      Federal Law is within the scope of the Commerce power or necessary and proper to its implementation if:
a)      It is within the modified Lopez Categories:
I         Regulate Use of the Channels
II      Regulate and Protect Instrumentalities and Persons/Things In 
III   Activities Having a Substantial Effect on IC
i          Effects Must be Substantial
A.    May Consider Aggregate Effects of a Class of Economic Activities, but Not of Non‐Economic Activities.
B.     Statutory Jurisdictional Nexus May Link Each Case to IC.
C.     Findings May Inform Court’s Independent Judgment.
D.    May not Rely on tenuous connections that would eviscerate whether the Effects are Substantial depends on may be upheld as a tax
b)      Improper means to regulate under the Commerce Power
I         Cannot Breach Sovereign Immunity
i          Within the Scope of Sovereign Immunity: Under Sovereign Immunity States May Not be Sued without their consent:
A.    Against States
1.      In Federal (Hans) and State (Alden) Courts
2.      Applies to the State but not to
a.       Subdivisions (Alden) (city, state university, county)
b.      Officers in Suits for Injunctive Relief (Ex Parte Young; see Alden)
B.     Consent
1.      State consented in the original constitution to:
a.       Suits by the United States (Alden)
b.      Judicial Orders in Bankruptcy Cases (Katz)
2.      Induced Consent & Spending Conditions (Alden; Dole)
ii        Abrogation of Immunity: Two Part Test under Seminole Tribe
A.    Abrogation must be express in statute; and
B.     Statute must be a valid exercise of power (Fitzpatrick)
1.      Power Contemplates remedies against states
2.      The power was granted after the 11th amendment.
II      Cannot break the No-Commandeering Rule
i          Congress may not simply commandeer the legislative process of the States by directly compelling them to enact and enforce a federal regulatory program
2.      Federal law is within the scope of the Taxing and Spending power or necessary and proper to implement if:
a)      Tax or Spending Measure
I         Must Raise Revenue/Spend Money
II      Must be for the General Welfare (See Butler)
III   Regulatory purpose/Effect Not Relevant  (See Kahriger)
b)      Conditions
I         Dole Test for Conditional Spending
i          The spending power is not unlimited, but is instead subject to several general restrictions:
A.    The exercise of the spending must be in pursuit of the general welfare.
B.     Condition must be known and unambiguous
C.     Conditions of federal grants might be illegitimate if they are unrelated to the federal interest in particular national projects.
1.      (Dole case about drinking age and highway funds used kids would jump state lines and drive back on highways. )
a.       (This is a generous link. This implies that any general connection would suffice.)
D.    Independent Bar (See above)
c)      Necessary and Proper (Sabri) (RB Test) – Applies if something other than taxing and spending but is reasonably justified by its relationship by its relationship- like a crime against a federal program
I         End: Enforce Tax or Spending measure
i          (They are enforcing their own spending dollars)
II      Means: Reasonably related (Direct Regulation-Sabri)
d)     Improper Means: When taxing and spending measures are so harsh that compel states to comply with federal mandates it is improper
I          Coercion
i          Some circumstances are not allowed when financial inducement offered by Congress might be so coercive as to pass the point at which “pressure turns into compulsion”. –Sibelius
A.     (In Dole case they would only lose a small portion of their highway funds so it is not coercion)
3.      Enforcement Power (allows court to regulate and remedy to prevent a violation – used for the 14th amendment- can abrogate sovereign immunity under 14th amendment- a way around the means)
a)      Remedy violation as defined by the court in City of Boerne: Power of congress is the ability to enforce violations, cannot find violations
I         The Means that Congress provides must be Congruent and Proportional to the underlying violation
i          The higher the level of scrutiny that the court would apply in assessing the violation that Congress is remedying, the broader the power of Congress to prevent or remedy violation.
A.    Intermediate Scrutiny/Strict Scrutiny- Broad Authority
B.     Rational Basis: Narrow to find violation
Preemption Framework- State Law questions
A.    While there is a presumption that Congress does not intend to preempt state law, particularly in areas of traditional state authority like common law tort remedies, English & Wyeth, the presumption may be overcome in three ways
1.      Express preemption: Congress’ intent to preempt state law is clear if within an express preemption provision.
2.      Occupation of the Field: State law is preempted if-
a)      Congress’ intent to occupy a field is clear because
I         Federal Law is so pervasive it leaves no room or states; or
II      The field is one in which the federal interest is dominant; and
i          (Immigration law, Collective bargaining)
b)      The

im from removing officers who do not faithfully execute the law.
i          Congressional consent prevents the president from removing unfaithful officers and may not be required (Myers, Bowsher)
ii        Double for cause removal provisions prevent the president from removing or requiring removal of unfaithful officers and are invalid (FEF)
II      Congress May limit removal by requiring the President (or an at will officer controlled by the President) to have “good cause” for removal, unless that would interfere with the President’s essential functions, in light of-
i          The level of the officer and the extent of his or her policymaking discretion. (Morrison); and
ii        Whether the functions performed by the officer are core executive functions or “quasi-legislative” and/or “quasi –judicial” functions (Humphrey’s Executor)
A.    (If Congress creates the agency based on their act- like the FTC, then that is close to “quasi-legislative” and that you have to have for cause to remove, not just policy dispute)
2.      Foreign Relations
a)      Diplomacy
I         Congress: Consent to Appointments
II      Executive:  Appoint and Receive
b)      Agreements
I         Treaties
i          In the constitution
ii        Treaties have the same weight of statute.
iii      President represents and acts for the United States in day-to-day international affairs.
iv      President has exclusive power to negotiate treaties. They require 2/3 of the senate to approve them.
II      Executive Agreements
i          Agreements with foreign nations that do not require senate consent.
ii        Not expressly provided for in the constitution
iii      Federal Statutes and treaties take precedence over Executive Agreements
iv      Executive agreements take precedent over state laws
v        In Belmont and Pink cases the executive agreement was okay because there was implicit approval through statutes providing for disposition of funds
vi      In Dames and Moore the executive agreement was okay because there were statutes delegating broad executive emergency power and that indicated congressional “acceptance”