Sum and Substance Audio on Constitutional Law
Author:
Cheh, Mary M.
Edition:
11th
Copyright Date:
2023
/
74 tracks
have results for constitutional law
Rules of Self Restraint 2 results
- Second, if a case raising a constitutional issue can be disposed of on a non-constitutional ground, court say that that's to be preferred. So if a court is taking up a case and there's a constitutional basis to decide it but there's also a non-constitutional basis to decide it, if they have that choice, they say that they prefer to decide it on a non-constitutional basis. Because if they do, then they may never have to reach a constitutional issue and that's thought to be better. Third and relatedly, if possible, courts have said that statutes should be construed in a way to avoid constitutional issues. So assume you're asked to evaluate some statute and assume that there are two plausible, and it has to be plausible, two plausible ways of interpreting that law, one of which will raise a constitutional issue and one of which will not. In that case, the courts say and you should notice that they prefer that interpretation which will avoid the constitutional issues. So please just...
- Okay, before we leave the issue of the power of the courts, let's just take a moment here to talk about so-called rules of self-restraint, rules that the court imposes on itself. The court has adopted certain techniques for avoiding constitutional questions. These techniques are not constitutionally required, they're rules of prudence. Sometimes the court follows them, sometimes it doesn't. We talked about one such rule when we talked about third party standing. The court uses these rules when it feels it has a need to. There's no guidance as such about their use, but I want you to keep them in mind, just keep them if you will in your hip pocket. We can't predict precisely when the court will use these techniques, but they're good ones to add to whatever arguments you may have about why a court shouldn't decide a case, a particular constitutional issue. And if you invoke them appropriately it can be pretty impressive in any analysis. So what are they? Let me give you three classics,...
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Supremacy of Federal Law and Pre-emption 7 results (showing 5 best matches)
- All right. Let's talk about the third limit on what states can do. Remember, we're gonna focus on the third and the fourth. The third is the supremacy of federal law and limits on states arising out of the constitution under the supremacy doctrine. Article six of the constitution says that the constitution and all the laws of the United States, and by that we mean all the laws of the United States, constitution, statutes, treaties, regulations, whatever are the supreme law of the land and they prevail over all other law. And that means state or local law of whatever character, whether it's state constitutional law, state statutory law, whatever. So for the principle of supremacy, the rule that you have to know is that federal law prevails over conflicting state law. You can take that to the bank. That's the rule. Federal of any character prevails over conflicting state law of any character. If there's a conflict between state law and federal law, federal law wins.
- Sometimes you have a conflict that arises out of an inability to carry out federal law because the state law is just getting in the way. It obstructs or impairs the ability of federal law to be carried out. We then say that you have a state law that's frustrating the carrying out of federal policy. There are lots of examples of that. One might be a situation where say you had a state food labeling law. You know, you've seen labeling laws when you go to the store. But you also had a federal food labeling law, even though the federal food labeling law didn't say anything about ousting the states in that area, and even though perhaps there wasn't a direct conflict, maybe you could have both labels on an item, maybe one purpose in Congress passing that law was to simplify and make it easier to read, for example, labels on food. And if that were true, then the state law would frustrate the objectives of the federal policy. And if manufacturers had complied with the state law also,...
- Now, that principle is pretty straightforward and pretty simple. You just have to know it. The harder question though is when do you have a conflict? Because the existence of federal law on a topic and a state law on the same topic doesn't automatically mean that the state law is in conflict and has to give way. In fact, some state laws might be complementary to or supplementary to federal law. What we're looking for here is conflict. If they're in conflict, federal law prevails.
- So what could amount to a conflict? Well, sometimes you'll have a situation where the law of Congress simply says that a state may not act in an area. Well, then that's a direct conflict. If federal law says that States may not act in an area, then they may not. Sometimes you'll have a conflict because of physical impossibility where you can't comply with both laws at the same time. For example, let's say the federal law said cars have to have rubber bumpers and assume that the relevant state law said in its jurisdiction that cars have to have metal bumpers. Now, obviously manufacturers can't put on both and there's a conflict, and so in that case, the federal rule would prevail.
- In general, watch out, in fact, patterns, if you're given a federal law and a state law and they're regulating the same behavior or the same topic you have to ask, is there a conflict? And I want you to lean very heavily in your answers on the word conflict. You may have to argue about it, of course, you may have to imply it from the facts or discuss whether it's the case or not. And there may be this subsidiary further issue about, well, what is the scope of the matter that's preempted by Congress acting? But, again, if there is a conflict, then federal law prevails, and that's the rule.
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Jurisdictional Limits 3 results
- One of them is the so-called arising under jurisdiction, or federal question jurisdiction, as it's called. Federal courts can hear cases involving matters of federal law, any kind of federal law, could be a treaty, a statute, a federal regulation, a constitutional provision, whatever. Second, federal courts may also hear cases involving parties from different states.
- What Texas or Maine says about its own law between its own citizens is up to it. There has to be a federal question, or diversity of citizenship, or a basis actually found in Article III for a federal court to hear a case. So that's the first limit of article three. If you have a question about parties being in federal court, make sure it falls within the jurisdiction of Article III.
- But here's the point about this. Here's the very first limit on what federal courts can and cannot do. Unless a case falls within one of the categories of jurisdiction. A federal court may not hear it. So if a case involves only, let's say, a state contract, or a state tort law fight between citizens of the same state, that's none of the federal courts business. The federal court can't hear cases like that. It may not hear them.
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Eleventh Amendment protections for states 9 results (showing 5 best matches)
- In terms of this, imagine let's say that the Congress is regulating wages. And in that law, even though Congress can regulate wages and it can even tell states what wages it should pay its own employees, let's assume Congress also said in that law that an individual who didn't get a proper wage from his or her state, that they could go into federal court and sue the state, as employer, for the damages. Would such a law be constitutional? Well, it could work if it were applied to private employers but is it constitutional if it applies to the states? Can you, under such a law, hail a state, and we mean a state as such by the way here, Maine, Illinois, New Jersey, what have you, can a person be given a cause of action by Congress under the commerce power to sue a state to recover unpaid wages, to sue a state for damages in federal court?
- It said, "First of all, we're not telling you about any laws that you have to enact as your own laws or that can't enact as your own laws. We're not commandeering your legislative process. We're also not taking your state executive officials and making them enforce federal law against your own citizens. We're simply telling you that you, the state, can't sell this information to other private parties without the driver's consent and that you must comply with this federal law." So in the case of Reno v. Condon, the Supreme Court unanimously upheld the Driver's Privacy Protection Act of 1994 as applied to state governments.
- Let's say it's a subject like wages or the environmental law. There may be in addition other limitations, depending upon whether Congress is dealing with a state as such. Congress can pass laws telling states what to do. It can tell them, as we said, to pay the minimum wage to their employees. It can tell them to comply with workplace safety rules at the state offices. It can tell them to comply with environmental laws in its own operations.
- But, as we have also said, there are things Congress may not do when they're dealing with states. It can't tell states what laws to enact or not to enact as their own state laws. It may not commandeer executive officials to enforce federal law against the states' own citizens and it may not give causes of action against an actual state by private individuals either in federal court under the 11th Amendment or in the states' own courts under principles of sovereign immunity.
- And states were told by this federal law, the statute passed by Congress, that they couldn't disclose that information without the driver's consent. And the federal law provided other limitations but basically that was the key part of it, this privacy protection.
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Martin v. Hunter’s Lesee 7 results (showing 5 best matches)
- Finally, if those two arguments aren't enough to sustain Supreme Court authority to review state court judgments involving matters of federal law, there's also a very, very strong policy argument about why federal courts ought to be able to review state court judgments. And it's the argument of uniformity, the uniformity of federal law, particularly the uniformity of constitutional law. Now, just think about this, if states could decide federal constitutional issues, which they can if they're brought first in state courts, and if they were not subject to the review by the Supreme Court of the United States, then potentially you could have very untenable situations where the federal Constitution could mean 50 different things in 50 different states. So, as Chief Justice Marshall said in a case, decided in 1821 after Martin v. Hunter's, Lessee, but dealing basically with the same issue, he said, and I'm quoting again, "States and state courts are not wholly independent sovereigns....
- First, there's a very strong textual argument that the Supreme Court has review authority over state court cases when those cases involve federal law. And here's what that argument is, since state courts are allowed to hear and decide federal claims, and since Article Three of the Constitution, by its plain words, gives the Supreme Court jurisdiction over all cases arising under federal law, including constitutional law or treaties, legislation, whatever, then, by definition, by reference to the text of the Constitution, the Supreme Court can decide all federal and constitutional issues, no matter where they come from, whether they come from federal courts, or whether they come from state courts.
- Thus, the Supreme Court can review cases involving federal law where those cases arise in federal court, or if they arise in state court. In other words, it's the question presented, not the court, that gives the Supreme Court its power to review. Okay, so we have this power of judicial review. It's broadly interpreted, it's potent, it binds all of the actors in the government, including state and local actors. And it's the centerpiece of constitutional law. And that is not going to change. Marbury v. Madison is not going to be overruled. Amidst all the uncertainty that you may encounter in law school, I can assure you unequivocally, that Marbury will stay on the books and you can feel confident at least about that. But you should know that there are fundamental differences about how judicial review ought to be exercised. And there are different views, sometimes radically different views about how the court ought to go about deciding constitutional cases, and exercising its power of...
- They then turned to the state law and decided the case under state law thinking that the treaty didn't control and as a result, awarded the land to the group claiming under the state law title. But then, that Virginia court ruling was appealed and the case went to the Supreme Court of the United States. And the Supreme Court of the United States said, "Wait a minute. We're also reading this federal treaty. And we conclude that the treaty does apply. It does control." So the Supreme Court of the United States reversed the Virginia state court and ordered judgment based on the treaty to the other party.
- Consider the case of Martin vs. Hunter's Lessee, a case that was decided shortly after Marbury, and is almost as well known as Marbury, at least to law students anyway. In that case, the Supreme Court considered whether it would review a judgment of a state court that involved a matter of federal law. Here's what happened. Two parties, two groups, were both claiming title for the very same tract of land in Virginia. It involved this very immense, invaluable area in the northern neck of Virginia. And both groups were competing over who actually owned the land, who actually had title to it. Interestingly, in that case, Chief Justice Marshall had to recuse himself, because he was actually involved with one of the groups of claimants. In any event, the case was over title to this land, and the case was started in Virginia state courts. One group was claiming under a title of state law, a title given by the state. The other group was claiming under a federal treaty. Now, the Virginia...
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The Equal Protection Tests: Strict Scrutiny 15 results (showing 5 best matches)
- And we saw this again in a 1996 case, Romer versus Evans. There the Court in a six-to-three vote struck down a voter-initiated state constitutional amendment in Colorado. The amendment prohibited all state and local governments in the state, even if they wanted to, even if their people wanted them to, from adopting certain civil rights laws. They couldn't adopt these laws to protect a single class of persons, namely persons with a gay, lesbian, or bisexual orientation. Any other kind of group could seek protection of the laws under the civil rights statutes, but these groups, under this state constitutional amendment, could not.
- So what are the ingredients of this default rational basis test? Again, the law is presumed constitutional, the burden is on the plaintiff to show that the law is unconstitutional, that the law only has to be rational, that is to say not crazy, and any reason, any basis for treating two groups differently would be upheld under the rational basis test. And again, the government doesn't even have to provide the legitimate reason. The court itself will try to supply it, if necessary. The court will use all of its imaginative powers and think up a legitimate reason why the government could act as it did.
- First, as we've been discussing, there's our friend, the rational basis test. And of course, you should recognize this from our discussion under substantive due process. And there's a real kinship between that test here and that test there. It's very, very flimsy. It's the law would be presumed constitutional, the burden is on the challenger to show that it's irrational, that it's crazy. So there's the rational basis test.
- And in analyzing the constitutional amendment there under equal protection, and remember Justice Kennedy authored this majority opinion and he also authored the opinion in Lawrence versus Texas, striking down laws criminalizing sodomy, he was in the majority writing for the majority in Romer versus Evans, and Kennedy said that the disqualification of a single class of persons, preventing them alone from seeking the ordinary protection of the laws, not special protection, just the ordinary protection of the laws, was unprecedented. And because it was so stark and unprecedented, the majority looked at the reasons offered by the government for this unprecedented difference of treatment. And the majority found that the reasons that the state gave were unconvincing and trivial.
- And you should note that the Supreme Court has never yet applied anything more than a rational basis test to distinctions based on sexual orientation. But even applying the rational basis test, the Court said, and it said this in a number of cases, we still conclude that these laws are unconstitutional because we conclude that the sole reason, the sole justification for these laws are outright rank prejudice against these groups and that's not a legitimate objective of the government. The law was just stigmatizing, just a bare desire to harm and express disapproval of one group.
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The Commerce Power 5 results
- Now a somewhat more modern example of the reach of the Congress authority came in the case of Heart of Atlanta v. the United States. That case involved the constitutionality of the Civil Rights Act of 1964, and as you know, that's a major civil rights law which banned discrimination, racial discrimination in a whole variety of facilities, such as theaters, hotels, restaurants and so on. A lawsuit was filed by the Heart of Atlanta Motel in Georgia saying that Congress didn't have power to pass such a law under the commerce clause and apply it to it, the Heart of Atlanta Motel. The hotel said, "Look, we don't really deal in interstate commerce. We're just a hotel here in Atlanta and we can't be included within that statute." And in fact, in that case, Heart of Atlanta Motel said two things. First it said, as I have mentioned before, that there's this matter of statutory construction to confront. The hotel said, "We aren't even covered by this law. If you look at the terms of the law...
- ...the law and interpreting it, and how sometimes companies can get out from under a regulation that Congress passes under the commerce power by that strategy, there was this case, Solid Waste Agency of Northern Cook County v. the United States Corps of Engineers, which was decided in 2001. At issue there was the Clean Water Act and whether the Clean Water Act conferred authority on the Army Corps of Engineers to regulate the filling of isolated wetlands. Because these wetlands served as watering holes for migratory birds, there was a claim on the part of the federal government that the federal government could control even these very, very local little tiny wetlands. The wetlands weren't navigable waters of the United States, far from it. They were wholly intrastate and they included such things as abandoned sand and gravel pits that simply got filled up when it rained, and then dried up rather quickly. So in looking at the particular issue and declaring that the matter...
- ...what happened over time was that the court found it pretty hard to establish workable, principled limits on the affirmative Congress' power. And by the time of the New Deal, especially given our very complicated, integrated economy, the Supreme Court pretty much gave up on trying to find limits and it returned to the broad based Gibbons v. Ogden functional approach. And to see this modern approach, I'm going to give you some examples and show you how broad the power of Congress is under the commerce power. There was a case decided in the 1940s called Wickard v. Filburn. Now in that case, the plaintiff challenged a law, the Agricultural Adjustment Act passed by Congress under the commerce power, whereby Congress set up a whole complex scheme of setting prices and setting production quotas for various commodities. And under that complex scheme, it also set production limits for wheat and the amount that could be charged for wheat. There was this particular farmer who went... ...law,...
- Congress can regulate mining and manufacturing and securities and food and drug laws and transportation and the environment and labor laws. Congress' authority under the Congress power is very broadly construed and it's been that way since the New Deal period. Congress can regulate commercial activity of all kinds, all dimensions, across state lines, again using the channels of interstate commerce or the instrumentalities of interstate commerce. And not only that, again it can also regulate any economic or commercial activity, which by itself or in combination with similar activities, substantially affect interstate commerce. And it's Congress' judgment whether an activity substantially affects interstate commerce, and its judgment will be upheld by the court so long as it is rational. This very broad interpretation has its roots in a very early case that you'll probably read, Gibbons v. Ogden, where Chief Justice Marshall gave a very broad and functional reading to the commerce...
- So basically, what you have to do is ask yourself, if 10,000 people did what this individual farmer did, and if you asked yourself the question and conclude that these multiple acts, these aggregated acts, these cumulative effects which Congress could rationally look at and make a conclusion about, that all of them together, considered together would have a substantial effect on interstate commerce, then Congress can regulate it. And obviously, that's a very generous test to a broad reach of Congress' power. So again, you ask, did Congress have any rational basis to think that the particular regulated activity by itself or cumulatively with all similar activities of the same kind, would that have a substantial effect on interstate commerce? Could Congress rationally so conclude? If the answer is yes, the law will be upheld.
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Fundamental Rights Equal Protection 4 results
- Okay. Let's talk for a minute about so-called fundamental rights equal protection. Fundamental rights, that's our final category here where we have some form of heightened scrutiny. Now, if the government is picking on people or burdening them in some way because they're exercising a constitutional right, the courts has said that it'll apply a kind of strict scrutiny. It's a little variable. Some of it sounds like mid-level scrutiny in some of the cases. Some of it sounds like strict scrutiny, but it's certainly a form of heightened scrutiny. And here's an area where oddly enough, this is very peculiar, equal protection has a kind of close kinship with substantive due process. And here's how it works. Let's say you have some sort of constitutional right, maybe it's a substantive due process right to marry, or a First Amendment right to express yourself. What if the government passes certain laws that say, for example, that everybody can give a speech in the park, but not law...
- Now, we're not getting into whether these are good or bad laws. Well, there's arguably a First Amendment or a substantive due process kind of issue in those respective cases because you're burdening those particular constitutional rights in the hands of certain people. And you're singling out certain groups and treating those groups differently with respect to those rights. So, you could think about this as an equal protection kind of a case because the government is dividing people into groups and saying that some can exercise their rights and others can't. Now, that has our typical equal protection flavor, but you know what, ordinarily, if you're claiming a violation or a burden on a constitutional right, you don't bother trying to make it into an equal protection kind of case. You simply invoke the particular right at issue, whether it's First Amendment or due process, or what have you. And you frame it that way, and you don't worry about equal protection. However, and as I said,...
- ...Amendment for this purpose, but there are still these references to equal protection. And I want you to know that in case you see a case along those lines. Now, the court hasn't said that you can't have any durational residency requirements. For example, sometimes you have to wait a year for certain kinds of benefits. In fact, you may know this personally, maybe you've had to wait a year to get in-state tuition benefits when you went to a state university and you moved to that state, that sort of thing is okay. But what we're talking about is withholding, making you wait for a period of time for government benefits that are the very means of survival like welfare benefits or indigent healthcare benefits. Those waiting periods, those durational residency requirements will be judged by strict scrutiny. And saving money or just trying to keep out poor people from coming into the state, that's not going to cut it. That's not going to be enough. And so, these laws have been struck...
- ...that protection is located, the court has said, in equal protection. And the equal protection requirement applies in state and local governments. There's a separate provision in the Constitution for Congress. There's a provision that says, you know, the members of the House of Representatives are to be elected "by the people" and the court has read that to be the one person, one vote requirement for Congress. Now, it's just the House of Representatives I could note because the Senate, you get two senators for every state, even little tiny populous state or the most populous state, they all get two. And that's because the Constitution so provides for this compromise between the small states and the big states when the Constitution was adopted. But that's an aside. You don't really need to know that, but it's interesting. Now, probably in survey-type courses in comm law, you're probably not going to take up voting rights cases. And if you did, you wouldn't go into very much...
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The Necessary and Proper Clause 4 results
- And if you go through that exercise, you would still then, you know, because this is the way we do things in law school, you would still then say, "I wanna argue in the alternative, which is to say, if we had to reach the constitutional issue, how would we evaluate it?" Okay. So in other words, you understand the subject matter of the law, you ask whether there are possible plausible alternative constructions and once you get past that, you ask whether the law can be traced to any particular constitutional power and then you identify what that power is. You identify the power you think Congress is permitted to take the action under. For example, if you had a statute and you were told Congress was regulating beekeeping or the production of honey, you would say that beekeeping, as regulated, is an economic activity or business activity, and Congress is authorized to regulate such subjects under the commerce power. And in addition, it's authorized to take all necessary and proper...
- Now, before we actually turn to the enumerated powers, I want to give you by way of approaching issues that involve congressional powers, a kind of a way to think about these things. If you're asked whether a particular statute is constitutional or not, and that's not an uncommon way to test in this area, if you're asked about the constitutionality of a statute, there are certain steps you should think of taking. First, you should understand what the statute is all about. Describe it. Say what it does. Second, just see if there's any plausible interpretation that would allow the court to avoid deciding the constitutional question. Remember the notion that we brought up earlier, if the court has in front of it a statute, and if they're too plausible, and I wanna emphasize plausible, interpretations, one of which would raise serious constitutional difficulties and one of which would make the statute plainly okay, the court says it will prefer that interpretation that will render the...
- Okay. Now, once you've gotten this far, you've characterized the statute, you thought about plausible alternatives, you identified the constitutional power that is likely to sustain the statute together with the Necessary and Proper Clause, then you're still not done. You have a fourth step. You have to ask yourself, "Okay. Assuming all of this is fine..." and you've argued through it on your test or what have you, you have to ask, "But are there any other limits elsewhere in the Constitution?" Sometimes referred to as external limits, because they're external to the grant itself, are there any other limits on the way the Congress can exert its authority in this question?
- And there are two big external limits on congressional power. One is federalism or state protection type limits, and that's what we're gonna take up shortly. And the second, is of course, the whole variety of individual liberty protections under the Bill of Rights. And that, we'll take up a bit later on. In terms of the individual liberties, imagine that Congress passed a law saying no talking on buses. Now, could Congress regulate bus transportation under the commerce power? Absolutely. It could. And there's probably not another plausible interpretation because it's pretty plain, no talking on buses. And so the question there is, so far so good, but are there any other limits that would restrict what Congress can do? And in that case, there would be an individual liberty limit because we would have to think about free expression and whether free expression and the First Amendment would invalidate a law that said no talking on buses. That would be an external limit.
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Introduction and general overview 3 results
- Constitutional law can be divided into two broad categories. First, there are the powers exercised by the government and second, there are the individual liberties protected against actions by the government. In fact, for those of you who are taking constitutional law, as a subject at a school where it's offered in two courses, you know that that's in fact, the dividing line between the two courses, as I mentioned, between powers on the one hand, and liberties on the other. We're going to look at powers first. At the outset, you need to recall that the Constitution, as it was originally adopted without the Bill of Rights is primarily a plan of government. It creates the national or federal government, with its three great departments, the executive, the legislative, and the judicial. And it also allocates powers between the federal government and the states. That is, it carves out powers for the federal government, this new national government that's going to now exist, and the...
- Hello, this is Professor Mary Cheh, and these recordings cover the subject of constitutional law. Now, obviously, we're not going to look in every nook and cranny of our subject. And we won't cover every single case that you've been covering in your course, but certainly, we're going to cover the main cases and the main topics and along the way, I'd also like to highlight some areas where your professors may like to test you and offer some observations about how you might go about responding. So let's begin.
- Now when looking at the separation and division of powers among the branches, and between the national government and state, local governments, obviously questions can arise, which in essence are going to ask you what part of the government of this somewhat complicated scheme that we've created, what part of the government gets to take what action? For example, when we talk later about the powers of the President, we'll see that the President is the one who appoints executive branch officials. Congress has a role to play, but it may never directly appoint executive officials under our system. As another example, if there's a conflict between federal law and state law on a particular topic, who wins under the doctrine of supremacy of federal law, the federal law will prevail. So, when looking at any question of governmental power, in class or on an exam, you have to consider first whether the particular governmental branch of body that's taking the action is constitutionally...
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- Sometimes the court shows this deference by applying a constitutional test that's very, very weak, so weak as a test that it allows legislatures to pretty much do whatever they want. One of these is the so-called rational basis test, as we'll see, which would uphold a law as long as there's any rational basis for it. And sometimes the court is concerned about whether an issue really lends itself to a judicial answer at all. Because the court is fully aware that its work has to be based on principle and its principles have to be articulated, and that it will have to give guidance and offer predictability in the law, sometimes the court worries about its effectiveness as a court and that it might be put in question. For example, the court might very well think that there are real constitutional limits on Congress's power under the Commerce Clause, as we'll see, but it may not necessarily agree, however, that there are always workable, principled, court-enforced limitations that it can...
- And here's the main point about all of this, and I want you to be completely aware of this before we go much further, the court is very self-conscious about the nature of its role in the governmental scheme. Over and over and over again in a variety of ways, you'll see that the court's concern about its proper role-plays as much a part sometimes in the outcome of a case as the actual constitutional question itself. And I want you to think about that a little bit because it means that every case is often not just about the particular constitutional question presented, every case is also a case about what the court thinks its proper role ought to be. If you keep that in mind, it will enable you to better understand the outcome of some of the cases and it will enable you to be more sophisticated if you're asked to analyze cases in class or on a test.
- Second, the Justices are particularly well suited to interpret the Constitution and say what the fundamental law means because of their mode of operation, which is to use reason, and analysis, and principle, not expediency and compromise as is common in the political arena. And in this regard, supporters of a vigorous exercise of judicial review contend that the justices, overall, do a very good job of using reason and analysis in interpreting the Constitution and deciding what our fundamental principles require.
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The State Action Doctrine 8 results (showing 5 best matches)
- Now, I suppose, before we get into that, there's a prior question why do we even have a state action doctrine at all? Why not just apply all of the constitutional guarantees, freedom of expression, for example, to the actions of everybody. Well, first, we have to have some line between government and private conduct because if nothing else, the constitution by its terms seems to contemplate that. For example, if you read The First Amendment, you'll see that it says, "Congress shall make no law abridging the freedom of speech." Well, Congress is the government or the 14th Amendment says, "Nor shall any state deprive you of equal protection or due process of law." Meaning, again, the government. So, the constitutional text itself anticipates that we're going to have to have some kind of boundary between governmental conduct and non-governmental conduct.
- To begin our discussion about individual liberties, we're starting with a gateway or entryway issue, namely the issue of state action. The reason we start with state action is this. Except for the 13th Amendment, which abolishes slavery, and it abolishes slavery no matter who's doing the enslaving, all other constitutional guarantees are protections that we enjoy against the government. Only against the government. Not against each other, not against corporations, not against non-governmental actors such as private entities of any kind. The constitution guarantees as a whole variety of things. Equal protection, due process of law, freedom of expression, and so on. But again, these are protections against governmental invasion, not invasion by private parties or private entities.
- Finally, remember what we've said from the beginning about the court being mindful of its legitimacy of its role in the democratic scheme. Every time the court expansively defined state action, it's potentially opening the door for wide-ranging applications of constitutional guarantees. It's opening a door as a result to the court intervening and monitoring the decision of a whole variety of actors and doing so in the name of the constitution. In other words, if we have a broad state action doctrine, we're potentially making federal courts turn all of those decisions, all of the decisions of those non-governmental entities, into constitutional cases. In order to forestall that wide-ranging scenario, to limit that, the state action doctrine exists and reflects the court's own concern about its proper role in intervening in a wide array of social issues.
- ...individual. The non-governmental entity and we ask is that person or that entity engaging in an activity or a function that's so uniquely government-like in its nature, that even though it's being engaged in by a private party? Nevertheless, because of the nature of the act, we're going to treat it as if the government is acting. And if so, then, of course, we would apply constitutional guarantees. The classic case here is Marsh v. Alabama, which was decided in 1946. It's the so-called company town case and involved the Gulf Shipbuilding Corporation, which had a company town in Chickasaw, Alabama. And in that case, you had a group of Jehovah's Witnesses who wanted to come onto the property of this company town and go on the sidewalks and distribute their literature. And the company town employees threw them off the property and said, "Get out of here. You can't distribute your literature here. This is private property. Go away." Well, one of the Jehovah's Witnesses, Grace Marsh,...
- And when the Supreme Court got the case, the court said, "Like Wilmington Parking Authority, the court was gonna treat Amtrak like a state actor because it was effectively in business with the government, the two of them, together." So what were the facts? Well, the government had created a corporation, which by itself would make the corporation a state actor because all corporations are effectively chartered by the government. And if that would make them state actors, think about it. All corporations would be subject to constitutional limitations and we knew already that that's not true, but here, the United States government created this corporation by a special law and in creating it, in furtherance of its particular governmental objectives and setting out in its creation that the government retained for itself permanent authority to appoint a majority of the corporation's board of directors. Now, under those circumstances, that's as if the government is acting. It's acting...
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- Let's look at each of these things in turn. We'll start with the who question. The doctrine of standing. Standing is a very important issue in constitutional law. And it's an issue you'll probably spend some time on, and you may very well be examined on. What we'll do is look at the general rules of standing first, and then we'll talk about some of the specialized rules of standing.
- The Court said that those members of Congress lacked the sufficient personal, particularized harm and that's what's needed. The Court said that a legislator had no standing as a legislator to challenge a law which was properly enacted or which he or she simply thought was unconstitutional. Now does that mean that members of a legislature never have standing as members of the legislature to challenge a law? No. If a law specifically harms some right that the lawmaker has, for example like being denied the right to vote or to take one's seat in the legislature and not just claiming a right of general political difference, the outcome would be very different.
- And by the way, the ruling in Raines v. Byrd didn't mean that no one could ever sue to challenge the Line Item Veto legislation, because as it happens there were plaintiffs who were able to sue and challenge the Line Item Veto which was in fact, at their behest, declared unconstitutional. But it was at the behest of those plaintiffs who were given standing to challenge the law because they were persons or groups who in fact were actually affected by then-President Clinton's use of the Line Item Veto. Because there was money that they were supposed to get in the budget under the law that was passed, but in fact, it was line-item vetoed and it was lost to them. And so they could claim a personal direct harm. In that case, it was Clinton v. The City of New York, the City of New York was among those who actually lost money by virtue of the operation of the Line Item Veto. Therefore, the City of New York and the particular plaintiffs who would have gotten the money but didn't because...
- So if you're seeking an order to take care of your harm, you need to show that that order would in fact take care of the harm. That it would address or redress, hence the term redressability, the harm that you're talking about. Thus you need three things for standing: injury in fact, proof of causation, and proof of redressability. And if you have to have standing to ask for the particular relief you're requesting. Now that's the black letter law which you have to simply commit to memory because if you get a standing question, you're gonna have to write that down.
- There's another case to consider in the same vein, it's Raines v. Byrd, where the Court found that members of Congress who had voted against the so-called Line Item Veto law had no standing to challenge the statue as violative of separation of powers. The Line Item Veto was legislation which would give the president the power to veto certain parts of a spending bill. The rule had been and is that the president may only sign or veto the whole bill, not parts of it, not line-item parts of it. But the question was if it was challenged by members of Congress who voted against it, who thought it was unconstitutional, did those members have standing just because they were members of Congress who voted against it and believed perhaps fervently that it was unconstitutional? Did they have standing? No.
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Substantive Due Process-Fundamental Personal Liberties, part 2 21 results (showing 5 best matches)
- So, that's what I would call razor-thin sort of agreement on the meaning of undue burden in the area of abortions. Also, in terms of abortions, please note, and this was true prior to Casey as well, that the state has a far greater latitude to regulate abortions if they involve minors. States can require, for example, that minors, unemancipated minors, notify their parents before they can get an abortion. The laws can even require parental consent. And so long as these notice and consent laws have something known as a judicial bypass as part of them, which means that the juvenile, the minor, is allowed to bypass the law and go to court and show that it's not in her best interest to comply with the law's requirements, these laws will be upheld. And if the law has a judicial bypass, states can require parental notice and consent because they involve minors, unemancipated minors, meaning those who are living with their caregivers. In addition, whether minors are involved or not, the...
- Then came 2022 in the case of Dobbs v. Jackson Women's Health Organization, which completely upended a woman's constitutional guaranteed right to terminate her pregnancy. And the case overruled Roe v. Wade and Planned Parenthood of Southeast Pennsylvania v. Casey. And as a parenthetical, you may recall the furor caused by the leaking of a draft of this opinion weeks before it was actually issued. What was at issue in Dobbs was a Mississippi law prohibiting abortion except for a medical emergency or severe fetal abnormality after the 15th week of pregnancy. And that would put it several weeks before viability and thus several weeks before Roe and its progeny recognized a constitutional right to terminate a pregnancy without an undue burden from the government.
- And under that view, abortion is not only a specially protected right, it was actually outlawed from 1868 to 1973 when Roe was decided. So, no special protection. State legislatures can regulate, and their regulations will be upheld on the weakest test known in constitutional law, namely, rational basis review. Now, contrariwise, the dissenters and their view of constitutional interpretation was evolutionary, the so-called living constitution, where our history and our traditions are not captured whole in a single moment. And this is a quote, "Rather, its meaning gains content from the long sweep of our history and from successive judicial precedents, and abortion fits within those precedents about bodily autonomy, sexual, and familial relations, and procreation." Abortion is among these interests as there are "few greater incursions on a body than forcing a woman to complete a pregnancy and give birth." And thus, abortion, as a specially protected right, fits within the court's...
- In other words, there was nothing in history or tradition or even in some sort of emerging consensus that argued that this was a fundamental right, something so highly valued by society that it should be specially protected by the courts as a fundamental constitutional right. Chief Justice Rehnquist distinguished a prior case, Cruzan v. the Missouri Department of Health, which did say that a competent adult person does have the right to refuse unwanted medical care, even if that would result in hastening that person's death. But the Chief Justice said that that wasn't the same as assisted suicide, that there's no abstract fundamental right to autonomy to control one's body. Instead, that case involved a more specific right rooted in the common law against forced medication, which, in fact, could be a battery.
- One justice, it was actually then-Justice Rehnquist, summarized this principle by noting, this is a quote also, "You may have a constitutional right to travel, but the government does not have to give you bus money." So, the constitutional right to travel doesn't have to give you bus money, so, too, with an abortion. Maybe the government can't get in your way in certain circumstances, but it doesn't have to support or pay for you to get an abortion. Please note, even when it pays for all other medically necessary health procedures for individuals, and even when the woman is too poor to pay for the abortion herself, the government still doesn't have to pay for her abortion.
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Substantive Due Process-Economic Substantive Due Process 8 results (showing 5 best matches)
- And from there, that case forward right up until now, whenever the legislation regulates marketplace kinds of interests, social interests such as the prices of commodities or wages or the registration of motor vehicles or business practices, anything like that, the court has said that the legislature is best able to judge what is appropriate. And the legislature, not the court, has the authority to determine what the law should be. The courts have no authority to second guess these legislative judgments and as long as these judgments are rational, and again, that's really easy, they will be upheld. And that's how the court has acted from the 1930s up until this moment. So in terms of legislation affecting economic or social interests in the modern period, if you have any law that's in that realm, we have this very, very lenient test under substantive due process. It's the rational basis test. And contrary to Lochner, there's no fundamental right of liberty of contract. There's only...
- The next due process area we take up is this area of substantive due process. Now, the Bill of Rights has substantive rights and that's handled through the incorporation debate. But there is a question. Might there be some honor written on enumerated, unspecified other liberties that the court could determine even though unwritten, that are very special, very important and could get special constitutional protection under due process of law. Now, the language of the Due Process Clause again, is that the government shall not deprive any person of life, liberty or property without due process of law. And some commentators have said that this is only, if you read the text, only a procedural protection. It's not a source of rights at all. It doesn't have any substantive content. But others have focused on the word liberty, and have said maybe due process means that there certain liberty interests beyond the Bill of Rights, that are special and that the government is prohibited from...
- ...reason, any old reason really for regulating and in fact, that's mostly what the Constitution protects. And the government can pretty much regulate anything in any way it wants so long as it has a rational basis for doing so. And there will be no due process of law violation if it has some reason, any reason. The reason can be dumb. It doesn't have to be wise. It doesn't have to be good. Any reason will do. But then, there's still this further question. But are there some interests nevertheless that are so important to our personal liberty that they may be regarded as special or fundamental, that the court can identify them and protect them with some sort of heightened test, not rational basis? Even though they're not written down, even though they're not part of the Bill of Rights or anything, are there these fundamental liberty interests out there that are so important to the individual that surely they must have some greater protection by the courts against government... ...law...
- Now, let's say you were faced with a question where you were asked about the constitutionality of a law, let's say one that required businesses perhaps to have certain environmental equipment installed on business premises. And let's say the equipment was really, really expensive and that the benefit it produced for the environment was really, really minimal. In fact, anybody objectively looking at the law you were given would say, "Hey, that's a pretty dumb law and it was costing businesses a lot of money for very little benefit." What if the businesses challenged the law under substantive due process? They would lose in a heartbeat. The law would be upheld because again, the court has basically deferred to the legislature in this area and any reason will do. Maybe the legislature wanted to require that kind of equipment because it wanted to build up the environmental equipment industry. Or maybe it just wanted some small environmental benefit and it didn't care how high the cost...
- In Lochner, you had this New York law that limited the number of hours that an employee could work as a banker. Under the law, the employee couldn't work more than 10 hours a day or 60 hours a week, and the Supreme Court ruled that that statutory limit as unconstitutional. Now you know today with respect to regulation of hours and wages, we don't even blink at that. But in 1905, the court said that that law was unconstitutional. Relying on substantive due process, the court said there's a fundamental right, a fundamental liberty right of each person to sell his or her own labor on terms that that person chooses. That was liberty of contract. And in protecting that right, so you could work as much as you were willing to work, the court said two things. First, the state cannot interfere at all with our liberty of contract if the reason they're doing that is a blatant out and out attempt to simply regulate private contracts. The court said that there's no authority at all in the...
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- Second, your constitutional challenge must be based on a constitutional provision that specifically limits taxing and spending. Then, if you have that, and you're challenging a taxing or spending action, you'll come within the exception, and you can sue as a taxpayer.
- It means that that person or that group doesn't have standing. But please note a further point. What if the only possible plaintiffs you could think of...what if all of them lacked standing? That could be the case, for example, with certain generalized constitutional provisions.
- In other words, there might be some constitutional provisions where none of us have a sufficiently particularized or concrete injury, to raise the issue in court. And if that's so, then the complaint and the solution to that problem has to lie in the political process, in the political arena, and not in the courts.
- Now, as it happens, the only provision the court has ever recognized as a specific constitutional limit on taxing and spending for the purposes of this exception to taxpayer standing rules is the establishment clause. The establishment clause is in the first amendment, and we're going to take it up later, but it's the one that prohibits the government from establishing religion, including paying money to support religious exercises, or paying, for example, for a minister's salary.
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Congressional Control of federal court jurisdiction and the Exceptions Power 6 results (showing 5 best matches)
- I mean, just think about it for a moment. If Congress completely withdrew, let's say, all of the Supreme Court's appellate jurisdiction, that would mean that the last word on constitutional law would come from the various lower federal courts or the 50 states, and what a jumble of inconsistency that would turn out to be. Or if Congress withdrew all of the Supreme Court's appellate jurisdiction, let's say, to review the constitutionality of acts of Congress. That would result in Congress being entirely free from constitutional review by the Supreme Court. Now some commentators argue that the court must play this special function role, but others are not so sure. Some think that the court should be reigned in by Congress, potentially controlling what kinds of cases it may hear, or at least threatening or posturing to do so. Now as I said, the court has never definitively resolved the issue of the scope of the exceptions power, and it remains uncertain precisely how far Congress can go...
- Third, there's a possible limitation that has never actually been endorsed by a court. But it's an idea talked about among commentators and in law review articles, and I'm sure many professors have gotten tenure talking about this, and it's taken on a good deal of support in the literature. It's an argument that you should know about and understand even though it remains theoretical and academic. This third potential limit on the exceptions power arises from the idea that there must be some outer limit to what the exceptions power permits Congress to do. Defined by saying that Congress can't use its exceptions power to interfere with the fundamental role of the Supreme Court. Congress may not interfere with the Supreme Court's role to decide constitutional questions in a way so broadly that it would in essence take away what is called, and here in quotes, "the special function of the Supreme Court" and hence, that's where this limit gets its name. It's called the special function...
- First, there are some things apparently that Congress could not do under its exceptions power. For example, Congress could not violate individual liberties. Congress couldn't say for example, that only white people can bring appeals to the Supreme Court of the United States. That would violate the equal protection of the laws.
- ...from it, and that after all, was what Marbury's case was specifically all about. Remember, that's why Marbury was thrown out of court. Recall that he said that the Judiciary Act of 1789 conferred original jurisdiction to get rid of mandamus directed to the Secretary of State. But the court said, "No, Article II sets out what the original jurisdiction is, and your type of case wasn't included, and Congress can't add to the those cases or subtract from them. So good bye, you lose. No jurisdiction." So Congress can't control the original jurisdiction of the Supreme Court. But here's where you get your intriguing question. Does Congress have any power to alter the appellate jurisdiction of the Supreme Court? Article III says that the Supreme Court has appellate jurisdiction of all of the kinds of cases that Article II sets out. Cases that arise by virtue of diversity of citizenship, under federal law, admiralty and so on. But there's more. Article II goes on to say that the Supreme...
- ...by that, I mean Congress couldn't use the exceptions power to try to make particular cases come out a certain way on the merits. That would be invading a judicial function. For example, Congress couldn't say the Supreme Court has appellate jurisdiction over cases involving environmental law, but in any such cases, it can't decide any issues relating to the fourth amendment. If Congress decided to do something like that, it would be trying to put a thumb on the scale, or steer the court to a particular outcome by letting the court decide a certain kind of a case, but not letting it review all of the issues raised in that case. If Congress decided to do something like that, it would be invading the judicial province of deciding cases and violate separation of power's principles. So whatever the scope of the exceptions power, whatever the power of Congress is to withdraw cases from the Supreme Court's appellate jurisdiction, it apparently has to be a neutral withdrawal of a whole...
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- "Further," he said, "to convince us otherwise, something more than a merely plausible textual basis for the agency action is necessary." And the agency must instead point to a clear congressional authorization for the power that it claims. Now, this decision appears to herald major new limits on agency authority across the economy, limits which haven't been imposed in almost 80 years. There will be major ramifications from this ruling, and mostly, you will be able to take them up in further detail in administrative law courses, but nevertheless, you need to know at least enough and be familiar with enough this case in the context of delegation doctrine for constitutional law courses.
- Okay. Now, I want to return to a related topic, namely the legislative veto. The legislative veto presents an interesting twist on the delegation issue, and it leads us to a fourth point about Congress and domestic executive authority. And the question is, is the so-called legislative veto constitutional? Well, what is this legislative veto? To understand it, you have to understand that Congress realized that one of the advantages of delegation was to delegate broadly for all the reasons cited previously. But it further realized that there were certain disadvantages. The chief one being that whenever you delegate authority broadly, you're actually giving up power. So, in thinking about the flipside of delegation, Congress started to think perhaps there was some way it could delegate broadly and yet at the same time control what the delegations resulted in.
- Now a third issue, a third point in the area of executive powers, domestic executive powers relates to how much authority can Congress actually give to the president. And here, I refer to something known as the nondelegation doctrine. Now, Congress, as you know, passes lots of laws, and in those laws, it can't necessarily provide all of the details of the programs that it wants. In fact, what it does do is delegate a terrific amount, indeed, a spectacular amount of authority to the executive branch or administrative agencies to basically adopt rules and regulations to carry out legislative programs. That's why if you've ever looked at the code of federal regulations, the CFR, you'll see that they're very, very extensive. Many, many books are filled with all sorts of federal regulations. So, Congress is constantly delegating its authority to those executive branch or administrative agencies.
- And third, passage of laws in complex and controversial areas may in fact only be possible with considerable compromise leaving the path open for administrative interpretation. In other words, to get a consensus position, members of Congress might have to say that it was their intention to have a general or even vaguely written law that administrative agencies could then shape according to the underlying intelligible principle. Okay, so what happens in West Virginia versus EPA in 2022? Well, in that case, the Supreme Court imposed a major limit on administrative agencies, there it was the EPA, on their authority to broadly interpret the Clean Air Act to regulate coal-fired power plants which happened to be the largest source of emissions that cause climate change. The six-three conservative majority said that the EPA had statutory authority to regulate emissions generated on site of a power plant but not regulate the source of power more broadly.
- ...that was pretty darn clever, right? I mean, a really great idea, grand scheme. There was just one little problem with it. The Supreme Court ruled that it was unconstitutional. And it said that in the case of Immigration and Naturalization versus Chadha, it said that the legislative veto operates as an end run around the legislative process. The court said if Congress delegates broadly and doesn't like what comes out, doesn't like some of the regulations that come out of the administrative agency pursuant to that delegation, its proper response is not this sort of halfway house of a legislative veto. Its proper response rather is to go through the full legislative process and say what it wants through the full legislative process. And constitutionally speaking, the full legislative process requires passage of a law by both houses, which is known as bicameralism, and it requires the presentment of a bill to the president for signature or to exercise a veto, and that's known as...
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Non suspect classifications 3 results
- Finally, consider discrimination on the basis of sexual orientation. Recall that in striking down the Texas law making gay sex a crime, Lawrence v. Texas, and invalidating the Colorado constitutional amendment that banned the passage of laws protecting LGBTQ persons, Romer v. Evans? The Supreme Court did not say that sexual orientation warranted any form of heightened protection. And the court also didn't say that most recently in 2015 in the gay marriage case, Obergefell v. Hodges, it didn't say that there either. Indeed in Romer, this court specifically used instead it was using the rational basis test and that rational basis review mimics what most court of appeals have decided in terms of discrimination on basis of sexual orientation.
- But again, it was rational basis review with bite and constitutional protections were provided but still the court said it was only applying rational basis review. There are good arguments for recognizing some kind of explicit heightened protection with respect to discrimination based on sexual orientation and you should at least be familiar with them. First, discrimination on this basis, generally reflects stereotyping and prejudice and little else. Second, there's a long history of discrimination against gay and lesbian, and bisexual people. And third, research increasingly shows that sexual orientation is immutable, it's not a choice, so it's more like eye color or skin color.
- And all such discrimination will be judged under rational basis review unless the discrimination is based on race or ethnicity, alienage, gender, illegitimacy or the exercise of a constitutional right, then in those cases, there would be some form of heightened scrutiny. And if a new group comes along and claims that it should be added to the heightened review list, let's say the physically disabled or people who have addictions or whatever, then go through the analysis that we just did with age, mental disability, or sexual orientation, see whether there are characteristics like race or gender and be mindful all along the way that the court has not been activist in this area recently then know the relevant tests under equal protection and apply them as appropriate to whatever facts you're given.
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The basis of discrimination must be purposeful 10 results (showing 5 best matches)
- Now, note, the plaintiffs don't have to show that the government behave with a bad purpose completely or totally, but the court in Washington versus Davis made clear that they have to show at least that bad purpose was a motivating factor in what the government did. Lacking that, the rule is that a law's mere disproportionate impact, even if it affects persons on the basis of race or gender, more persons on the basis of one race or the other, or more women than men, that's not enough to convert it into a form of racial or gender discrimination. Now, we could ask, "Why do we have this requirement of bad purpose?" Why isn't it enough to show that a law has a disproportionate impact or effect, let's say in racial or gender terms, the same way we do with certain statutes, non-constitutional laws where we have a test based upon disproportionate impact? And we do that in statutes. And I'm sure you've encountered that somewhere along the line.
- So, in the very first instance, you have to figure out if you're given a law and you want to think about the validity of the law in terms of equal protection, you have to figure out on what basis does this law classify or discriminate? How do you start? How do you do that? Well, of course, you begin by looking at the face of the law, the words, you read the law. We can determine by reading the law whether it's classifying on the basis of general economic or social factors or whether it's, instead, classifying on one of the five bases that is going to trigger heightened review. For example, if a law on its face, by its terms, said that men but not women may serve as administrators of estates, then clearly you have a classification based on gender and the rules governing gender classification will apply. But that's an easy kind of a case. You look at the law, you see what it says.
- Now, here's a slightly harder case. What if the law is neutral on its face? And by that I mean it doesn't mention any of the five bases that would trigger heightened scrutiny. It's simply a piece of ordinary economic or social legislation, or so it seems. How then might you determine on what basis that law is classifying? Do you just look at the face of the law and say, "Gee, it looks okay, it looks like ordinary economic and social legislation"? Well, sometimes you have to go beyond that. In addition to looking at the words, you might also look and see whether the law, although neutral on its face, is actually applied administratively with a bad purpose, with the purpose to discriminate on the basis of race, alienage, gender, and so on. And if you discover that that was the case, then you're going to judge the law as a discrimination based on one of those illicit bases.
- To take a more recent example, courts have examined how legislators have drawn election or voting districts. And the court has said that although race could be a factor, it might be a factor in drawing election districts, if its predominant purpose, if the predominant purpose behind the government's drawing of the district lines, and you have to look at the districts district by district, if the predominant purpose is race-based, then the court is going to judge it as a form of racial discrimination. The point here is that it's not enough sometimes just to look at the words of the law, you have to sometimes look beneath the law, beneath the words, into how a law is being applied. You have to look at the application. And if you're able to discern a discriminatory purpose on one of the illicit bases, let's say race, then the law is going to be judged as a racial discrimination case. But even now we're still not done. There's an even trickier apart to this.
- Consider the case of Yick Wo and Wo Lee versus Hopkins. In that case, Yick Wo and Wo Lee sued to challenge a San Francisco ordinance that said in effect, "If you're going to operate a laundry in San Francisco, you have to do so in a stone or cement building." And the reason for that, of course, was that San Francisco was worried about fires. So, the city said, "You have to operate laundries in stone buildings." "Fine." Now that looks like an ordinary statute, right? An ordinary economic regulation. It's neutral on its face. Nothing specially to note. If you're operating a laundry, you have to do it in a cement or stone building. No big deal. The law doesn't talk about race, or ethnicity, or gender, illegitimacy, anything like that. But it turns out that the law provided that an administrator, a government employee, could give an exemption under the law. And it further turned out that pretty much every person of Chinese ancestry who came in to get the exemption didn't get it. Bur...
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Federalism Limits on the Commerce Power 19 results (showing 5 best matches)
- Now, local Sheriffs challenged the law and said it violated state sovereignty because state and local officials were being forced to do the work of the federal government, enforcement work of a federal statute. And as a sovereign entity, these governments should have structural immunity from being forced to carry out federal law, carry out federal programs against their own citizens, being forced in effect to be the heavy hand, if you will, against their own population by carrying out federal law. Well, again, writing five to four and, you know, you'll see in this area that you have a lot of these laser-thin majorities and the switch of one justice could have made a difference, but in any event, writing five to four, Justice Scalia sided with the sheriffs. He said that the constitutional text does not explicitly speak to the problem, but in looking at various sources and looking at the historical understanding and practice, looking at the structure of the Constitution and prior...
- So what we're gonna do now is look at limits on Congress's commerce power that arise outside of the grant of the power. In other words, the power might reach particular subjects, but there are these external limits that say, "Well, but you might be able to reach those subjects, but you can't regulate in the way you want to." And these external limits arise, again, from constitutional principles sounding in individual liberties, which we'll talk about later, or because of matters of federalism. Starting first with federalism, federalism limits on Congress's commerce power. We're going to look at the 10th Amendment as a limit, and we'll look at some limits that arise out of the 11th Amendment, and then some general fundamental principles related to the sovereignty of states in our constitutional scheme.
- In other words, we're going to examine certain ways that Congress has tried to use its power to tell state governments what to do. And we will want to see what is or is not permissible. We're going to ask four questions. First, can Congress force states to comply with federal law? For example, can Congress make states follow the minimum wage law when dealing with its own state employees? Can it make states adhere to federal environmental laws in the operation of state facilities? What we're going to see is that courts initially tried to protect states in that regard, but then abandoned the effort. Second, can Congress go so far under the commerce power as to actually tell states what laws they either have to enact or they may not enact as their own state laws? Third, can Congress force state executive officials to enforce federal law against the state's own citizens? And fourth and finally, can Congress authorize citizens to sue their states under federal causes of action, either in...
- They think of it as a piece of state legislation, and the state legislators are responsible for it. But in fact, they're not responsible for it because Congress made them do it. But Congress won't be held responsible for it because it looks like the state is doing it. So the court said that the Congress may not force states to pass laws as their own state laws. Congress just can't direct them to do that. And I guess part of the idea here is that we really have to know which set of bums we need to throw out at the next election. So Congress can't tell states what laws to enact. It can't prescribe what legislation they must adopt. It can't tell them to do that. It can't commandeer state legislative processes to enforce federal law. And very recently, the court made clear that just as Congress may not tell states what loss to enact, it also may not tell states what state laws they can't enact.
- So the next question that arose, the third one, can Congress come into your state's bureaucracy or its executive or administrative machinery, its executive officials, and make them, force them to enforce federal law against their own citizens? Can Congress make state and local governments enforce federal law against the State's own citizens? Congress took up that issue in a case called Prince versus the United States in 1997. At issue there were provisions of the Brady Act, which is a federal gun control law that makes purchasers of a gun wait a certain period of time before they can get their gun. The law required at that time that until there was a federal program in place, and at that time there was not yet a federal program in place, until there was a federal program in place to check people under the statute to perform these gun checks, until that happened, the federal law prescribed that local sheriffs were required by the federal law to perform the background checks on...
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Time Place and Manner Controls of Expression 7 results (showing 5 best matches)
- Now, second, in addition to making sure the law is content-neutral, a valid time, place, and manner regulation has to leave open ample alternative opportunities for speech. It would be okay, for example, for a town to ban sound trucks, say, near hospitals, or maybe in residential communities, or to ban those things, for example, between certain hours, let's say 11 p.m to 7 a.m. And obviously, that would be an appropriate way to keep peace and quiet in those locations at those times. And obviously, a law like that would leave lots of other places in the town, lots of other times where you could use sound trucks or other devices that would otherwise be impermissible. In contrast, it wouldn't be constitutional even as a time, place, and manner control for the city to ban sound trucks always, everywhere, every day because that would completely shut off that avenue of expression. Also by way of example, consider a generalized ban on all residential picketing. That would go too far. That...
- Now, please note right at the outset that this is not really a very vigorous test at all. It's not very strict, it's certainly not exacting scrutiny, it's not a complete nothing either, but it certainly isn't the degree of intensity that we would see with content control. And in that regard, you have to see again, that there's a big divide between finding out whether the government is engaging in content control or alternatively, just time, place, and manner controls on expression. Okay. Let's look a little bit more closely at time, place, and manner restrictions. First again, you have to make sure that the law is truly content-neutral on its face and as applied. You can't pick out certain messages, or ideas, or viewpoints for regulation because that would be content control and not time, place, and manner control. For example, consider a statute that banned demonstrations inside the Supreme Court building. Compare that to a law that banned political demonstrations inside the...
- ...administered neutrally. In this regard, please pay close attention to certain scenarios that you might encounter. Watch out, in particular, for licensing and permit schemes. For example, look out for laws saying something like, "You need a permit to march or a license to distribute your literature." Watch out for those kinds of schemes and watch to see if they lack clear, precise, or neutral kinds of standards, or whether they have no standards at all. We're especially worried if there is executive discretion left to some government official to pick and choose, let's say, who gets the license or who gets the permit. That's very important to be on alert for that because if the executive official has the discretion to pick and choose who gets to march or who gets to use what area for a demonstration and so on, then we're very worried that that person will favor, through the permitting scheme, messages which he or she agrees with or disallows messages which he or she disagrees...
- For example, consider an ordinance that required all persons who wanted to march on the public streets to do so only between the hours of 7 a.m and 9 p.m. The law required that you first obtain a permit 24 hours in advance and assume further that the ordinance provided that the permits would be issued on a first-come, first-serve basis. Now that would be neutral. That would be okay. It wouldn't be a form of content control. The executive would have no discretion. It would be first-come, first-serve. The executive couldn't pick out messages or protests that they favored or disfavored. But let's say the ordinance was later amended to provide that permits would be given only if the chief of police found that a particular march would, in the view of the chief of police, promote the public interest or convenience. Or let's say that the law said that the head of the city council could decide who would get a permit depending upon whether the march promoted the public interest. Anything...
- Now, sometimes the government can fail a time, place, and manner test even if it is pursuing a significant interest, which, as we said, can be pretty much many things. It can include promoting aesthetics, preventing fraud, preventing litter, things of that nature. But even if you have a significant interest, a law can be struck down, again, if it's not well-tailored. Consider an ordinance from the Village of Stratton, the case decided in 2002. There, the court struck down a local law that made it a misdemeanor to engage in door-to-door advocacy without first registering with the mayor and getting a permit.
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The Privileges and Immunities Clause of the 14th Amendment Due Process of Law 13 results (showing 5 best matches)
- If states give those rights to its own citizens, it has to extend them to you, even though you don't reside there. But privileges and immunities of national citizenship under the 14th Amendment in contrast, as I said, has basically become meaningless. Now, I'd like to digress from the 14th Amendment just a little bit here, a little side path, and talk about the Second Amendment and the right to bear arms. For over 200 years, the Second Amendment had no meaning as a specially protected individual right. But then in 2008 in a five, four blockbuster decision, the majority of the court announced that under the Second Amendment, an individual has a constitutional right to possess handguns for self-defense. And in so holding in the case of District of Columbia versus Heller, the court struck down the District of Columbia's gun laws. DC probably had the most restrictive gun laws in the nation because effectively the laws banned all handguns. And even as to allowable weapons like long guns,...
- But five of the justices using those traditional bases of argumentation said, "Yes, there is an individual constitutional right to possess a handgun for self-defense. And it's not just about protecting state militias." And the majority also said was that under the individual right that it announced, the District of Columbia's laws were unconstitutional. However, the majority didn't tell a whole lot about exactly what standard it was going to apply to this now-announced individual right. It was easy in Heller because DC pretty much-banned handguns entirely. If there were state laws limiting handguns, for example, that you had to be a certain age, or you couldn't have a criminal record. The test to judge the validity of such laws, was that going to be strict scrutiny, or rational basis, or something in between? The majority opinion refused to be pinned down on any particular test.
- Now, the court's reliance on this history-only approach, and forsaking analysis such as weighing of cost and benefits, or evolving values, or change circumstances, is the hallmark of a constitutional interpretation approach that looks backward, and not what I sometimes refer to as, "A living constitution" approach, which we will see explains a lot about the court's extraordinary 2022 term, and the uprooting of other case law, including the court's decision in that term overruling Roe versus Wade. But more about that later. Once looking to history and tradition, the majority pursued a long journey through the Anglo-American history of public carry and concluded that New York did not meet its burden to justify, on historical grounds, the state's proper cause requirement for public carry.
- There was a dissent by Justice Breyer joined by Justices Sotomayor and Kagan. And they based their view on the fact that they saw the Second Amendment as allowing states to take account of the serious problems posed by gun violence, and that the majority's history-only approach, itself problematic in deciphering relevant history, ignored the significant dangers of guns and left states without the ability to address them. So, in this case, as in others that we'll see, the court's interpretive approach with the conservative majority, now well ensconced, is to look at history and tradition and not cast a broader lens for looking at what is, or is not a constitutional right, and what is or is not a strong enough reason for the state, nevertheless, to regulate something that's a constitutional right.
- Okay, moving forward from here, we're now going to assume that we have state action. And we're going to turn to the substantive constitutional guarantees, but just please remember, as we go through this before you get to those substantive guarantees, we have to have some state action involved. Okay. So, in terms of where we're starting, I wanna start with the 14th amendment Privileges and Immunities clause. In terms of individual liberties, we really only concentrate on just a few provisions of the constitution. It's the 14th Amendment. And we'll see that there are other provisions in the First Amendment, but the 14th Amendment has various parts. The 14th Amendment has a Privileges and Immunities clause, also has equal protection and due process. But in terms of just getting started, we're going to look at the 14th Amendment, which was passed in 1868.
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Procedural Due Process, what counts as a life, liberty, or property interest 7 results (showing 5 best matches)
- Now going further with liberty interest, liberty interest might also include physical punishment inflicted by the government, either in school or in jails. Now you don't have a constitutional right to have the government protect you from injuries caused by other people, but if it's the government who's holding you in jail, or if you're a child in school and the government administers physical punishment, that counts as a liberty interest too. Liberty interest can also include loss of statutory or constitutionally protected rights. Now most constitutional rights, as we know, are not absolute, meaning that the states can sometimes have a sufficient reason to deny you your constitutional rights. But the point here is that before the government takes away your protected rights or interests, you're entitled to procedural due process to make the government show that it has accurately made its case. It's a liberty interest, for example, that parents have a fundamental right to maintain a...
- ...I am known for that. But before I get branded in that way at the hands of the government, I'm entitled to notice and an opportunity to be heard because I have a liberty interest in my good name, and I'm entitled to some procedures to determine whether the government was making this allegation adequately, accurately or not." But in his case, in his case, the court rejected his claim and distinguished Wisconsin v. Constantineau. This case was the case of Paul v. Davis. And the court said this, mere, by the way, always watch out for the use of the word mere, because when courts use the word, mere, it usually means the plaintiff gets nothing. In Paul v. Davis, the court said, "Mere injury to one's reputation is not a liberty interest protected by procedural due process. Maybe you have a sort of a tort claim against the government, but you don't have a constitutional claim." And the reason why the court left Wisconsin v. Constantineau on the books because the court said that in that...
- To illustrate the difference between executive and adjudicative type acts on the one hand, and legislative acts on the other, let's say the government throws Sally Smith off the welfare roles. She has a procedural due process claim if she's thrown off the roles, but there's no procedural due process claim for her in particular if the state were to pass a law that ended all welfare programs, including the one that Sally was relying on. Now of course, Sally's gonna be heard just as much by the action of the legislature by actually abolishing the program she's relying on, as she would if she individually were thrown off the roles. But she would not be entitled to her own personal notice and opportunity to be heard that the legislature was going to pass a law that would affect her like that. Now to get prime to think about whether you're actually facing issues of procedural due process, I want you to see that if you have in your facts, some sort of administrative, executive or...
- Okay. So next, what do we mean by property? Well, property embraces a wide variety of interests, including tangible things like real property and personal property, Fighter, the Horse, Green Acre, things of that sort. Intangible property is also included. The main issue here though, is not these sort of conventional kinds of property. The main issue is whether government benefits count as property, whether things like welfare payments or government licenses, or even a government job counts as property. And the crucial distinction about whether these things count as property is whether the government has created an entitlement, an entitlement to those government benefits, licenses and jobs. And please notice that label and use it, entitlement. You have a property interest in government benefits if you currently enjoy the benefit and if you have an entitlement under the law. The way the law is crafted if the government says that you can continue unless there's good cause shown or you...
- Okay. Now we're going to take up our third and last topic under due process, which is procedural due process. Now as the name suggests, procedural due process concerns procedures or how the government acts. Procedural due process doesn't create any fundamental rights or any new interest in life, liberty or property. It simply provides that if the government deprives you of certain already acquired interests in life, liberty or property, then it has to use certain procedures before it deprives you of those interests in order to ensure that the government is actually acting fairly and accurately. And it doesn't mean that the government can't take your life or your liberty or your property. It means that if it does so, if it's going to do so, you're entitled to fair procedures to see whether the government is acting accurately and according to law.
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- Now, a word about intermediate scrutiny and what that test entails. Intermediate or mid-level scrutiny applies primarily to gender discrimination and to discrimination based upon illegitimacy. But I don't want you to be fooled by the label because as with strict scrutiny, so-called mid-level scrutiny or intermediate scrutiny is really a very heightened form of review. It's not just midway between strict scrutiny and rational basis. It's a heightened form of review and its heavy artillery. It's just a little bit softer than strict scrutiny. And here are the ingredients for mid-level scrutiny. First, there is, again, no presumption of constitutionality. And, again, as with strict scrutiny, the government has the burden of proof to show that the law is constitutional. And third and here's a little bit of difference between the two tests, the actual test here is that the law must substantially further, instead of being necessary, it must substantially further an important government...
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Commander in Chief Powers 12 results (showing 5 best matches)
- Now, this is a very controversial statute, because there's a significant debate about whether the executive branch and Congress, in their relations under this act, whether it's constitutional or not. Sometimes, executive officials have adhered to the law and followed it. Sometimes the executive branch has ignored it. And we don't have any precedent to settle the question of its constitutionality. The best we have, as a matter of legal principle to guide us. Again, generally speaking, Congress is charged with the authority to declare war, or otherwise authorize military action, and the President is the chief general, and the President carries out that military action.
- There were several questions raised in the case. First, does the President have independent constitutional authority without any congressional authorization in carrying out military action to detain citizens or others as enemy combatants, and to detain them indefinitely?
- And in that case, unless the President has independent constitutional authority, then the President may not act.
- And that leads to principle number three, the President's ability to prosecute a war, or to conduct foreign relations, to take military action, must still be exercised in accordance with constitutional requirements, including the Bill of Rights.
- They weren't conventional prisoners of war, but they were enemy combatants. And those individuals, about 600 of them, were transferred to Guantanamo Bay, Cuba, where we have a military base, and the Supreme Court has said that constitutional authority applies there. Others were, of course, held in secret locations. But I'm not focusing on that, but rather on the people who were held at Guantanamo Bay.
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“Internal” Limits on the Commerce Power 7 results (showing 5 best matches)
- Sure enough, one day you had your basic high school senior who came to school and he had in his backpack with his books, his 38-caliber handgun and five bullets. He was arrested and charged under the federal statute for this federal crime. He defended, not by saying he didn't do it, because actually he was caught red-handed. He defended by saying that Congress didn't have the authority under the commerce power to reach mere possession of a gun near a school. And in something of a surprise to some, in a case that caused some constitutional law professors to slap their foreheads and go, "Whoa," the court in a 5-to-4 ruling, held for the first time in decades that here was a subject beyond or outside of the reach of the Congress' commerce authority, and therefore it was unconstitutional.
- But here's a question for us to consider at this point. Are there some subjects that are actually not within this broad commerce authority? After all, a specific grant of authority of Congress to do certain things necessarily presupposes that there are some other things that are not included. There are some subjects that might just go too far or be too far removed from economic or commercial activity to be within Congress' commerce power. Even with the aid of the Necessary and Proper Clause. Well, between 1936 and the beginning of the New Deal period, until 1995, all of those decades, the Supreme Court did not strike down any federal law, not one, as being beyond the scope of Congress' commerce power. But in 1995, in the case of United States v. Lopez, the court considered the constitutionality of something known as the Gun-Free School Zone Act of 1990. That law, and here I'm characterizing what it was, made it a federal crime for an individual to possess, and I'm only talking about...
- ...inactivity is bringing one's wheat to market. And what if in the case of Heart of Atlanta you characterized the activity there as inactivity, as hotels and restaurants not serving, being inactive, not serving African-Americans. Could you then by those reformed kind of characterizations put things in a category of inactivity and then say it was beyond Congress' power to regulate? Probably not. Because individuals who are not buying insurance are not otherwise engaged in a business, like farming or running a hotel. But still, questions arose because of the court's ruling. And by the way, also in the Sebelius case, the majority concluded that the outcome wouldn't change with the help of the Necessary and Proper Clause, because if an act of Congress is beyond its power and the Necessary and Proper Clause is to help Congress in executing a power it does have, the Necessary and Proper Clause doesn't come into play because there's nothing to help. There's no power that's constitutional...
- ...didn't have any jurisdictional nexus to interstate commerce. And like in Lopez, the activity regulated, which was gender-motivated violence as such, did not in any sense, the majority said, "implicate commercial or economic activity." So even though Congress had made extensive findings of what it thought was the connection between gender-motivated violence and effects on interstate commerce, things like lost wages, lost work time, and it did make extensive findings on those points and others, the Supreme Court said that Congress acted beyond the reach of the commerce authority. Because it said that in the final analysis, the courts would have to judge at the outset, whether there was any commercial connection. And if it found that there wasn't, or at least not a sufficient one as in Lopez, as they did in Lopez, the court would have to find that Congress had extended its power too far and gone too far in the area of traditional state law. And again, if Congress were allowed to go...
- ...intrastate commerce, the intrastate market. And in that sense, the Raich case was just like Wickard v. Filburn. The majority, and particularly the concurrence by Justice Scalia in which he emphasized the interplay of the Commerce Clause and the Necessary and Proper Clause, the Congress could regulate aspects of marijuana, not just aspects related to interstate sales or something like that, but it could regulate all aspects, as it could in Wickard, all aspects of wheat, here's marijuana. Because in trying to have a comprehensive statute controlling illicit substances, Congress had to be able to do so in a way that considered the homegrown market as well. It had to be able to regulate the whole market effectively. It had to count homegrown marijuana as well to prevent, for example, you know, slippage of those products that marijuana into interstate sales and so on. And it didn't matter by the way, in that case that the state had permitted by its own state laws medical marijuana,...law
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Powers of the Courts 1 result
- Now, why do we start with the federal courts as opposed to say powers of Congress or the powers of the President? Well, I guess we have to start somewhere. So why not the courts? But that's not the answer. There's actually a very specific reason why we start with the courts. And the reason, and everybody knows this who has ever taken constitutional law, it's the reason why we start with the famous case of Marbury versus Madison. We start with the courts because, in our scheme of government, the federal courts and ultimately the Supreme Court are charged with saying what the Constitution means and what it requires. The federal courts and ultimately the Supreme Court exercise a power that we know of as the power of judicial review, the power of judicial review.
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- Well, in constitutional interpretation, as you'll see over and over, the courts have some regular suspects that they round up to help them figure out what the constitutional language means. They look at the text. In other words, at the actual words or language of the Constitution. They look at the history surrounding the adoption of the text. They look at the structure of the Constitution as a whole, where clauses are located. That is, what clauses surround a particular provision.
- The court, in other words, is the last word on the matter. In fact, this idea that the court is the last word on what the Constitution requires recalls another justice's famous quote about the court. He said, and again I'm quoting, "We are not final because we're infallible. We're infallible because we are final." And so, they are. So again, the power of judicial review is the power of the court's to say according to the court's own interpretation of what the Constitution means, whether acts of other governmental actors are or are not consistent with the Constitution. And if they are not, to declare them void and of no effect. The court's judgment will be the law of the land. Unless the court changes its mind or unless there's a constitutional amendment, which, of course, is a very difficult thing to accomplish. In fact, we've only had 27 amendments in over 200 years. And really only 17 if you were to put aside the Bill of Rights. So as you can see, amendments are really quite rare....
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Privileges and Immunities Clause Limits on State discrimination against non-residents 6 results (showing 5 best matches)
- ...final one, the plaintiff's claim that access to the public information constituted a privilege or immunity, a fundamental right under First Amendment. But the court said that there was no historical tradition for that. You were trying to gain access to the government's own information. No one was interfering with your freedom of expression. And so the court said, "There's no fundamental right sounding in Privileges and Immunities under Article IV, that would give you a Privileges and Immunities claim. Okay. Now, to give you kind of a summary of what the Constitution means, as a limit on what states can do. First, remember that states are expressly forbidden from doing certain things under the Constitution or forbidden unless Congress gives approval. But again, we don't spend time on that because those are not the issues that your professors will spend time on. But third, states are limited by the doctrine of supremacy of federal law. If you have a fact pattern, here's what...
- Now before I sum up on the subject of constitutional limits on state powers, there's one additional federalism restraint that I want to mention. But it's actually more of a kind of individual liberty protection. But it does operate as a limit on certain state discrimination against commercial activities. So in that sense, it complements the limitations of the Negative Commerce Clause. And I'm referring to a provision in Article IV of the Constitution. Can you guess what it is?
- The fourth kind of limitation on states, you assume a situation where state and local law is being challenged and there's no federal law on the topic. So in other words, in your fact pattern, let's say on a test, all you're given is the state law. There isn't any federal law. Congress hasn't done anything. It's just the state law. That what law will generally be upheld, unless it discriminates or unreasonably burdens, imposes unreasonable burdens on Interstate Commerce, in which case, it's gonna be struck down on the Negative or Dormant Commerce Clause. But remember, even then, you have to complete your analysis. There may be ways around the Negative Commerce Clause. One is to establish that the state is acting as a market participant or variations under that or the state is granting a subsidy. The other is if Congress has given consent or permission for the state to so act. And finally, if you find some form of discrimination in your fact pattern, you might be able to see instances...
- ..., it also protects against discrimination in the commercial realm. However, Privileges and Immunities is both broader and narrower than Commerce Clause protections. It's narrower because as I said, it applies only to the problem of discrimination. It doesn't speak to unreasonable burdens. And it applies only to a certain kind of discrimination, discrimination against people because they are non-residents of that state. So also narrower, because, again, it doesn't protect corporations. So please watch out for these limitations. It only protects citizens. On the other hand, Privileges and Immunities is broader in the sense that the protection applies in various circumstances. And watch this. If it does apply, Congress may not by legislation, overcome it because this is considered a constitutional Liberty type of protection. Congress can pass a statute to overcome a protection under the Privileges and Immunities Clause. Although we did say, remember, Congress could pass statutes...
- ...in 2013, which is McBurney v. Young. And by the way, you don't have a lot of Privileges and Immunities cases because there just aren't so many. But in that case, a state law granted Freedom of Information Act rights to state residents, state citizens, but not to out of state residents or citizens. So, if somebody from out of state wanted to come in and use the Freedom of Information Act to get information about government activities, could they be barred, which is what the state did. And the claim was that this was a violation of Privileges and Immunities. Well, first, and obviously there is a discrimination based upon residency. You have to have that to even get in the door of Privileges and Immunities. But you did have it here. And the case didn't involve corporation, so that wasn't a problem. So you have discrimination against out of state residence. The plaintiff said that the state violated fundamental rights protected by Privileges and Immunities, the right to pursue...
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- The third of these four limitations is that there are limits on what states can do in terms of the supremacy of federal law and principles of preemption. For example, assume you have a federal law and a state law, and they're both valid in their sphere, but they can't both be complied with at the same time. In those circumstances, federal law always wins. Federal law prevails and we'll see how that works momentarily. But the fourth and final limitation, an area where you're likely to spend a good deal of time, I hope enjoyably, are limits on what the states can do arising simply out of the grant of congressional powers to Congress. Not because Congress has actually passed a law or used its powers, and there's a conflict between the federal government and the states. No. It's just that in some cases, just because, just because some powers are given to the federal government, just because they have powers and they haven't even used them, that nevertheless, it implies that states...
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The Free Exercise Clause 6 results (showing 5 best matches)
- There, a bakery owner refused to bake a cake for the wedding reception of a same-sex couple, based on the bakery owner's religious objections to same-sex marriage and, he said, his unwillingness to use his artistic skills to effectively express support for gay marriage. Now, in that case, the Supreme Court set aside the Colorado Civil Rights Commission conclusion that the baker violated the gay couple's civil rights. And it set it aside because the Commission, the Supreme Court concluded, reached its conclusion in that context, where the commissioners were displaying hostility to the baker's religious claim, and then thereby were forsaking neutrality toward religion, as required by the Free Exercise Clause. Well, we're at a point where it actually concludes our work. So I very much hope you enjoy your constitutional law courses, and that these recordings have been helpful to you. Thanks very much, and goodbye.
- This kind of regulation will be upheld so long as it's reasonable and generally applicable. At this point. I do wanna note, however, a small footnote, something known as the ministerial exception, to generally applicable reasonable laws, there are various generally applicable reasonable laws that regulate employment, such as rights of employees not to be fired in certain circumstances. But those laws, even though they're reasonable, and generally applicable, may not be applied if they interfere with the freedom of religious groups to select their own ministers, because that's historically considered a key part of free exercise.
- The government can regulate religiously inspired conduct, even if it affects religious practices, even if it affects those practices substantially. The test is, so long as the government is not aiming at the religious behavior because it is religious behavior, it can regulate even religiously inspired conduct under generally applicable rules. So laws saying things like no use of drugs like peyote, even if that affects some religious groups in their actual religious ceremonial purposes, that would still be okay. The government can say no snake handling, no child labor, all of those things can be upheld, even if applied to persons who have fervent religious beliefs, and that the law will substantially interfere with their religious practices.
- It banned this practice because as it turns out, it was practiced by a particular religious sect in the community, the Church of the Lukumi Babalu Aye. The church struck down Hialeah's law, it said, because it said, "You're not just engaging in neutral objective pursuits by protecting animals here, you're actually aiming at this conduct because it's religiously inspired."
- The government of Hialeah didn't prohibit other kinds of animal slaughter. It didn't prohibit hunting. It didn't prohibit other kinds of killings, the product of which can be found in the meat department or the food store. It wasn't a genuinely neutral regulation. It wasn't generally applicable and reasonable. It was in fact, aiming at the religious practices of this particular group, the Santeria religion. So the court applied a strict scrutiny and struck the law down.
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- ...general welfare kinds of things, that sort of stuff, there's a limit, but it's only that the classification, not the arbitrary. The distinctions can't be arbitrary. But, again, that's a very, very weakling kind of a test, and laws challenged under the test will undoubtedly be upheld. However, in addition to protecting us against arbitrariness, which is obviously very modest, the court has identified five bases of difference in treatment that will be judged more severely either under a strict scrutiny test or what we call intermediate or mid-level scrutiny, still a form of heightened scrutiny. Now, these five classifications, these five bases of treating people differently, these kinds of discrimination include, first, racial and ethnic discrimination. Second, discrimination based upon alienage, meaning whether you're a citizen of the United States or not. Third, discrimination based on gender. Fourth, discrimination based on illegitimacy, by which we mean discrimination against...
- Okay. That concludes our discussion of procedural due process. And, in fact, it concludes our discussion of due process in general. And what we're going to do now is turn to the Equal Protection Clause, equal protection of the laws. The Equal Protection Clause of the 14th Amendment says that no state shall deny any person the equal protection of the laws. First, who exactly is protected by that? Well, it says persons, and persons include corporations and non-citizens. Second, against whom is the clause applied? Well, it appears in the 14th Amendment, so it protects us against state and local government denials of equal protection. But in terms of the federal government, although there's no explicit, specific Equal Protection Clause applicable to the federal government in the Bill of Rights, you should note that the Equal Protection Clause has been effectively read into the Due Process Clause of the Fifth Amendment in the Bill of Rights.
- So here's another technical point for you. Let's say you're evaluating a law passed by Congress, say something based on discrimination in terms of race and you're looking to see whether it denies equal protection. You would say that the federal government is denying equal protection as it is a component of the Due Process Clause of the Fifth Amendment. That's how it's dealt with. And sometimes you'll see that in cases so now you'll know and not be surprised by this where justices are talking about an equal protection kind of issue, an equal protection kind of case like racial discrimination in the context of the federal or national government, but you'll see they're invoking due process of law. That's because the Due Process Clause of the Fifth Amendment incorporates an equal protection component against the federal government.
- ...aside, what do we mean by equal protection? You have this protection, but what does it guarantee? Does it mean that all laws have to apply equally to everybody all the time? No. In fact, we couldn't have such a rule because ordinary economic and social legislation in general, inevitably, has to treat people differently and to classify them. Just one example, legislators decide when people can drive automobiles and they usually pick a certain age. Well, that's a classification. It's a kind of discrimination. People who have obtained the age, well, they can drive. People who have not, they can't. That's not equal. But, in general, when the government does that sort of thing, when it treats people differently and makes those kinds of distinctions, which I said they do all the time, we don't really worry very much about that and don't think of it as a violation of equal protection. We assume that those kinds of classifications, those kinds of distinctions are simply part of the...
- ...protection is really aimed at, then what does it protect? Well, first it protects us against arbitrariness, arbitrariness in the way classifications are drawn. If the government draws distinctions between us or among us, for example, you can drive at a certain age, but not at another, you can go into a certain business but not into another, that one kind of business can remain open until midnight but others, say liquor stores have to close earlier, with those kinds of classifications, we say that the government cannot create those classifications in a completely arbitrary way. In other words, there has to be some basis, any basis, really that would make it justifiable. In other words, it just can't be crazy. It can't be insane. Now, obviously, that's a very, very lenient requirement and it's just like the rational basis test we looked at under substantive due process. And pretty much here, as there, to invoke the rational basis test is basically to uphold the law and uphold the...
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A?rmative Action in higher education admissions 7 results (showing 5 best matches)
- A group of plaintiffs challenged the constitutionality of that amendment under a theory of prior cases that said those kinds of prohibitions on race preferences violated equal protection. Those prior cases, though, were read by a majority in the court, for example, in Schuette vs Bamn, to prohibit only changes in government procedures or laws. For example, they took up an initiative to prevent busing, that was deemed to be necessary to achieve integration. But the Schuette majority said "No, that's not what the Michigan constitutional amendment preventing states from having race-based preferences is about." The Michigan amendment was not about race-based injuries, but only about whether Michigan voters could determine that policies of race-based preferences not be continued. Thus framed and as such, the court ruled in that case that the people of Michigan, the voters of Michigan could adopt that amendment and that amendment was upheld.
- Another aspect of a well-tailored law is that there should be some time limit, putting sunset provisions on these race-based affirmative action programs. Well, in that case, the court said in terms of this time limit, "We would expect," although they didn't say it was an absolute time limit, "that in another 25 years, these kinds of programs won't be necessary." And the dissenters consider that no time limit at all. So bottom line, in the end, the majority concluded, based upon the standard indicia of a well-tailored law, that the admissions process of the law school was both compelling and well-tailored.
- Well then, what was the compelling justification? It was, again, the educational benefits that would flow from having a critical mass of under representative minority applicants. And the majority said, "We will defer to the law school's judgment, that such diversity is essential to their educational mission." So you could have, at least in that context, the objective of diversity as a compelling justification. Now, the dissenters attack, in that case, on number of grounds. They said that this strict scrutiny is not really any kind of strict scrutiny that we're familiar with, this differenced the educational mission as stated by law school experts, instead of the court deciding things for itself.
- Now, another indicia of a well-tailored law is whether an affirmative action program causes undue harm to non-minorities. And as to that, Justice O'Connor said, "No, there's no undue harm to non-minorities because the scheme of the law schools' admissions process is that everybody gets an individualized consideration, and an individualized chance to show how he or she would contribute to diversity. And as a result, if someone didn't get admitted, there's no stigma involved. There's no harm in that sense. It's just the process of admission like anything else, you either get in or you don't, based upon the processes that they apply."
- Well, that was as a compelling justification. But there was also the issue about tailoring. And so, we had to look at that as well. Well, the court said, this is also well tailored, because race is only a factor in the admissions process. It's not a quota. It's not a set aside. What you had at the law school was an admissions process that the court said makes a holistic individualized assessment in which everybody gets a chance to show how he or she will add strength and diversity to the class and diversity of many kinds. And therefore, the court regarded as properly tailored, it was not a blunt quota type of an arrangement.
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- Now in the area of commercial speech, just be very careful and watch out for overbroad laws, laws that are not well tailored. That's the thing that really tends to get the government in trouble in this area. A well-tailored law is really what you need. And if you don't have it, then the law will be struck down.
- As one example, the Court struck down a law that prohibited beer labels from disclosing the alcohol content of the beer. The Coors Brewery Company challenged the law, and the Court agreed with Coors and said that the law was unconstitutional. The Court said that the government may have a significant interest in preventing the display of alcohol content because it may be true, as the government was arguing, that that might lead to more drinking and greater alcoholism. Maybe beer companies might start to compete for greater content of alcohol in their advertisements, and maybe that's not a good thing.
- The Court has unanimously upheld laws to protect minors in these matters, but note, there are some instances where the government has gone too far to protect minors because the laws are over broad. For example, the government went too far in a Child Pornography Prevention Act, which not only ban the use of children to create pornography, it also prohibited explicit images that appear to use children, but didn't actually use children, they either used younger-looking adults or computer images, virtual pornography.
- But remember, also, right out of the gate with commercial speech, you have this dichotomy. If the commercial speech is false, misleading or deceitful, if the government's regulating that kind of advertising, the government pretty much has free rein to regulate and to prohibit. It's when it's not in those categories that the government has to have a genuine and significant reason to regulate. And it has to have a well-tailored law to achieve its objective, which pretty much means that if the government's objective could be achieved in a manner that doesn't restrict as much speech, as much advertising, the courts are likely to invalidate the law.
- But the Court said that the law was too broad, it was overbroad. It found that it was significantly ineffectual and under inclusive for the purposes that the government identified. It had both too much and too little going for it. For example, the law applied only to labels not to advertising generally. And it didn't apply to wine or other spirits only beer. So the Court effectively said, "You know, if you were really worried about alcoholism and companies getting into these content or strength wars, then, in fact, you've chosen a rather ineffective and perhaps arbitrary, perhaps certainly overbroad and under inclusive way to get at the problem." So it struck it down under the test of Central Hudson.
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- Okay, let's turn away from the rational basis test and look at some other more vigorous tests under equal protection. Starting first with strict scrutiny. And then, we'll look at the so-called intermediate or midlevel scrutiny test. Strict scrutiny applies in the area of racial or ethnic discrimination. It also applies in cases where state or local governments, not the federal government are discriminating against non-citizens. And it also applies in some cases where the government is discriminating based on the exercise of a constitutional right.
- Moreover, the law can't be over inclusive and it can't be under-inclusive. It has to be a nice, precise fit. We have to be able to say that the government really, really needs this law, this classification, this discrimination because it has a compelling objective. And there's basically no other way for it to get where it needs to go other than by using that discrimination.
- So what is strict scrutiny? Well, it's pretty strict as the name suggests. First, there's no presumption of constitutionality for the law that's being challenged. Second, the government has the burden of proving that it needs to use that classification that's being challenged. And you see that's quite different in an allocation of the burden of proof. The burden of proof shifts from the plaintiff in rational basis cases to the government under strict scrutiny.
- Third, the test is that the law, the classification, the discrimination that the legislator is relying on must serve a compelling objective and be very narrowly tailored. This is a very stiff test. The classification that the government is using, let's say it's race, must be necessary to achieve some compelling objective. In other words, it has to be in pursuit of something very, very significant. And it has to be very, very precisely tailored to achieve that something very, very significant.
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Abstract Questions 2 results
- There were no allegations beyond the bare-bones question about whether the oath requirement was constitutional. The Socialist Labor Party didn't say whether their members took the oath, and therefore, were on the ballot. They didn't say whether they didn't take the oath, and weren't on the ballot, or whether they were on the ballot at one time, and then were thrown off because they didn't comply. They didn't say anything about the particulars. So, their case was viewed as too abstract.
- Now, relatedly, courts won't answer so-called abstract questions. And this sort of shades into rightness in a way. But to highlight the distraction, by abstract questions, we mean questions that lack specificity. They're in their nature, if you will, like hypotheticals. An example is the case of Socialist Labor Party v. Gilligan. The Socialist Labor Party wanted to challenge a state law that said you had to take an oath in order to get on the ballet to be a candidate. They wanted to challenge that requirement. So, they filed a lawsuit but they offered no specifics.
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- And the court really struggled with that because affirmative action cases rely on racial classifications. That's true, and they make distinctions on the basis of race. But at the same time, people recognize that there may be a lack of equivalence between a policy designed to perpetuate a caste system under racial discrimination and one where the legislature more benignly is trying to eradicate the effects of prior discrimination, that there's a fundamental difference some of the justices have noted between good intentions and bad. And some argued that maybe there should be a difference in the constitutional test because of that.
- And there's another aspect. Whites are not minorities in this sense. And in another sense, you could say that they're discriminating against themselves because whites being in the numerical majority, if they didn't want affirmative action programs they could use their political muscle and do away with them. And in some cases, some states, they have done that by constitutional amendments, for example. Moreover, the argument would continue, whites are not equivalently at risk like racial minorities. They may not need any particular special solicitude. They may not need affirmative action programs.
- Now, the really big battleground in race discrimination cases has to do with affirmative action. And in those kinds of cases, the government is saying, ''Look, we're not enacting a race-based law to harm racial minorities. Instead, we're adopting such laws to make up for past discrimination or to achieve the good effects of having diversity in our society.''
- ''No,'' said the court, ''This is still a race-based classification, a race-based statute. And so that means that we're going to look at it extremely closely and very severely to see what the justification for it is. We don't care if it applies to all the races, it's still a classification drawn on racial terms.'' And when the court did take it's very close look under strict scrutiny, it discovered that the point of the law really was to preserve white purity or some such thing, and the superiority of the white race and plainly that was going to be struck down, and it was.
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Foreign A?airs Powers 3 results
- Now, the president here has some constitutional power to act unilaterally on his own, to do things like receive ambassadors, or foreign ministers, to recognize foreign governments, to talk to representatives of foreign governments, to go to countries and have conversations with heads of state. And the president doesn't need any Congressional approval for those sorts of things. However, when talk turns to action, then the president usually needs some form of congressional authorization, even if only acquiescence.
- So the president acts as the chief foreign policy spokesperson and can do so without congressional approval. But when talk turns to action, Congress gets back into the picture, and must approve or ratify treaties, and can affirmatively negate executive agreements. Now, just as an aside here, please note that all treaties and executive agreements are forms of federal law. And under the doctrine of supremacy of federal law, they prevail over conflicting state law. Another point here, executive agreements and treaties don't automatically become binding as domestic law unless they are denominated self-executing treaties. Otherwise, you need additional congressional legislation to make the treaty binding as domestic law. So there will be treaties that we have to adhere to in the international arena. But they don't necessarily become binding domestic law unless Congress passes a statute on that point.
- But the state of Texas said, "Oh, we're not listening to any of that. There's no binding authority on us." And the Supreme Court agreed with Texas. The Supreme Court said that Congress never made the treaty domestic law because Congress never passed a statute saying that the treaty had to be adhered to in the United States. So the fact that the International Court of Justice issued a ruling and the fact that the then president issued some memorandum, neither of that made for binding federal law in the United States and therefore, there was no reason why Texas had to follow the requirements of the treaty. And it didn't, and the man was executed without adherence to the requirements of the treaty.
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Doctrines of Vagueness, Overbreadth, and Prior Restraint 7 results (showing 5 best matches)
- So substantially, and please lean on that word, substantially, substantially overbroad laws will be struck down on their face. And when a law is struck down on its face, basically, you're saying there are no set of circumstances where this law could be saved, where it could be upheld. It's just irretrievably overbroad, such as the ordinance I just mentioned.
- And that idea has special resonance in the First Amendment area because in the First Amendment area, we're especially concerned about vague laws because they would actually operate to make people self-censor. And that's because if a person really doesn't know what the law prohibits, he or she will tend to steer clear of whatever they think the line might be to make sure that they don't cross it.
- A law is overbroad and unconstitutional on its face if it is substantially overbroad, if it substantially sweeps in more expression than necessary to serve the government's legitimate objectives. For example, there's a case that dramatically illustrates overbreadth, and I wanna share it with you because it is such a dramatic example.
- The case was Board of Airport Commissioners v. Jews for Jesus, and it was decided in 1987. In striking down that law, just as O'Connor said, that it was so sweeping in its reach that it would even apply to someone just going to the counter at the airport and asking the agent about the next fight to Des Moines.
- Now, be careful. Don't jump to overbreadth simply because a law is slightly or somewhat overbroad. If it can be interpreted by the courts and applied more carefully and narrowly, if it can be construed in a certain way, then it can be saved. What we're talking about here is substantial overbreadth.
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The Spending Power 7 results (showing 5 best matches)
- And by the way, as you travel around the country, you may notice in a lot of states that you see signs saying that you can go right on red. You may also see a lot of signs in many highways saying that there's a 55-mile-an-hour speed limit. Now although that has been relaxed somewhat recently, these were put in place in the '70s as a way of saving gas. The 55-mile-an-hour speed and the right on red, these state laws, turns out that they all sprang up at around the same time around the country. How was it that all states at the very same time, passed laws imposing 55 miles as the speed limit and allowing cars to go right on red? Was there some sort of spontaneous combustion by the states? Every state suddenly getting the same idea at about the same time and adopting the very same laws? No. Those were conditions placed on federal highway funds and the states adopted those laws in precisely the fashion as we've described. Congress couldn't make the states adopt those laws as their own,...
- Now the fourth limit on conditioning money on states taking action is that the conditions cannot be violative of independent limits on spending, and independent constitutional limit. This doesn't mean anything sounding in state sovereignty. What we're talking about is telling states what to do and conditioning the money on they're doing certain acts that would actually violate individual liberties. Congress couldn't say for example, "States, here's some money, but as a condition, you have to outlaw the Democratic party in your state." Obviously, that would violate freedom of expression and freedom of association, and it wouldn't be permitted.
- Here's a hypothetical or question you could get. You're asked about a statute passed by Congress and maybe it's a statute passed by Congress under the commerce power and affects states directly. And maybe you come to the conclusion that Congress doesn't have the power to go that far. Sometimes, you may be asked an additional part of the question. Well, what could Congress do, nevertheless, to get states to take the action that Congress wants?" Let's say you're asked for example, about the reach of Congress' power and under the Commerce Clause, you're asking whether Congress can require states to enact a law as its own state law. And you come to the conclusion correctly under the commerce power, that it can't do that. But then you're asked, "Well, identify another way that Congress could accomplish its objective." And you could say, "the spending power, the spending power. Congress could offer the states grants of money and attach conditions to get the state to adopt the law as its...
- ...-speaking, there may be political issues, but Congress can spend, spend, spend. For our purposes, the most significant aspect of this power is how it's used as a way to make state and local governments do what Congress wants them to do. Congress can attach reasonable conditions to granting money to state and local governments to get them to comply with what Congress wants them to do. And it's very important because even though there are some limits on what Congress can do, as we just discussed, if Congress cannot act on states directly, the spending power's a very nice way to make an end runaround those limitations. Congress can get around those limitations by offering states lots of money and saying, "Do you want this money? Well, you have to comply with these conditions." And so, if Congress wants to regulate in an area but maybe it doesn't want to regulate directly, or maybe it can't constitutionally regulate directly, for example, telling states what laws to... ...laws,...
- ...money for your schools. But do you know what? In order for you to get this money, we're going to attach certain conditions. We're going to say that if you want this money," and usually you know, it's good chunk of money, "you have to do all the things that we want you to do." Basically as I said, it's kind of like a bribe but we don't call it that. But it can operate that way. And again, basically Congress says, "Here, boy, come on. Get this money. But first, you have to give us your paw. First you have to lie down. You have to do what we want you to do and we'll give you a treat. We'll give you this money." And the court has upheld this use of the spending power. Congress can say, "Here's money, again, for your roads, but you have to consent to be sued in federal court." Or "here's money for your health programs, but you have to have your state officials enforce federal law for us." In other words, it's a way around the limitations we've already discussed, and it's a way for...
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- In terms of the 14th Amendment, unlike the commerce clause, that means Congress can enact laws and directly tell states what to do because the 14th Amendment itself says nor shall any state, any state deprive any person of life, liberty, or property without due process of law or deny them the equal protection of the laws.
- So let's consider a case, Katzenbach v. Morgan, decided in 1966. The backdrop of that case was a New York law that said that you had to read or write the English language in order to be able to vote. It was a literacy test. And the Supreme Court had already ruled in a prior case that literacy tests as a condition for voting do not violate the 14th Amendment. But then along comes Congress using its enforcement powers under the 14th Amendment and passes this law that bans literacy tests as a condition for voting.
- The New York law was challenged as being violative of the ban put in place by Congress. And then, the question became how can Congress use its 14th Amendment enforcement power to ban a practice that the Supreme Court has previously ruled doesn't violate the 14th Amendment? Nevertheless, the court upheld what Congress did. How did that work?
- And there, the court said, Congress could view literacy tests as an instrument, as a device, as a way or means of stopping people, for example, people of Spanish heritage, Latinos, Puerto Ricans, others who may have been living in New York at the time, to actually stop them from being able to vote, and that would amount to racial discrimination or ethnic discrimination and that would be a violation of the 14th Amendment, protection of equal protection of the laws.
- Okay. Let's look at our final power of Congress namely the power of Congress to enforce the provisions of the 14th Amendment. Later, we're going to talk about the substantive provisions of the 14th Amendment when we talk about individual liberties, things like due process of law and equal protection but in addition to protecting, safeguarding individual liberties under Section 1 there's also a Section 5 in the 14th Amendment that confers power on Congress to, by appropriate legislation, meaning passing statutes, to enforce the provisions, the protections of the 14th Amendment. So in other words, Section 5 of the 14th Amendment is a source of power for Congress to enact legislation. And it's a source of power for Congress to enact legislation as it happens that can and in fact must apply against governments, states included, states, local governments always included.
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The Negative Commerce Clause and Unreasonable Burdens on Interstate Commerce 10 results (showing 5 best matches)
- Finally, even if the law is non-discriminatory, the state law could still be struck down. If you looked at the law itself and analyzed it under the facts and determined that it created an unreasonable burden, which is to say an excessive burden on interstate commerce, an excessive burden on the movement of goods, and a rather weak or tiny benefit to the state. And if you have that, that kind of gross disproportionality, an excessive burden will be found, and the law will be struck down. But remember too, we shouldn't lose sight of this. States are given broad latitude to regulate and they can burden interstate commerce to some considerable extent, just not an unreasonable burden. And just because a law places some burden on interstate commerce, that doesn't make it unreasonable. You have to have this gross disproportionality that I've described. Because state regulation is almost inevitably going to play some burden on interstate commerce, that's the nature of regulation.
- So in essence here, the rules in the area are, first, no discrimination, if the law is discriminatory for protectionist reasons, economic protectionism, it's going to be, per se, invalid. If it's discriminatory against interstate commerce for health and safety reasons, then the law might survive, but only if the state proves that it had no reasonable non-discriminatory ways of achieving its objective and rarely, rarely would a statute be able to survive that test. Most laws of that kind will crash and burn because you're able to think of at least some alternative, some non-discriminatory alternative.
- Now, there are a whole variety of cases where state laws have been found unconstitutional as unreasonable burdens. And so let's talk about a couple. One is Southern Pacific v. Arizona. The Southern Pacific railroad company versus the state of Arizona involved a situation where Arizona wanted to limit the length of trains that ran on the railroad tracks in that state. The law wasn't discriminatory because intrastate, as well as interstate trains, would be so limited. But the question was whether it was an unreasonable burden on interstate commerce and there the court said yes. First, the court discounted the safety benefits from the law. It said that any benefits that Arizona would get by having shorter trains and less swaying and whiplash of the cars would be more than offset by the increase in dangerous or harms of having many more trains run on its tracks. The trains would be shorter, yes, but there'd be many more of them, so the court found that the safety benefits were marginal...
- Now, there's a second way you can strike down a law as violative of the negative commerce clause. We've looked at discrimination, but the second way is if a law imposes an unreasonable burden on interstate commerce. If so, it will be struck down. And in determining whether a state statute unreasonably burdens interstate commerce, the court has given states very, very wide latitude. It allows them to go some considerable distance in burdening interstate commerce when it's regulating within the state. And that's because states should be able to, again, act for the health and safety and welfare of their citizens. And if the law is not discriminating against interstate commerce, we assume that the political process of that state will check any state excesses. Why? Well, if the instators are burdened equally as the out-of-staters by whatever the regulation is, if they're affected just as much, then the idea is that they will be sure that the state will is not too excessive because it's...
- Consider what would have to happen to comply with the Arizona law. Let's say you're an interstate train business. You could either avoid Arizona altogether in your operations, which would be quite inefficient if it was necessary to go through Arizona, or you could adopt the short train car limit as your common denominator so that to the extent your interstate trains might wind up in Arizona, you'd be in compliance, or you could take your train up to the border of Arizona, uncouple the cars, reconfigure them and drive them across Arizona and do the same thing at the other end. Any of those alternatives would be an excessive burden on interstate commerce and an excessive burden on the movement of goods. It would be very costly, very time-consuming, very inefficient, and for what? The court said for relatively nothing. And therefore, it struck down the law, this gross disproportionality between benefit and burden, and concluded that the train limit law was an unreasonable burden on...
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- Now, we've already noted that the president has the power to execute the laws under Article I, Article II rather, Section I says that the executive power shall be vested in the president of the United States. And we know that Congress, as I said, passes many laws and the president carries them out, but sometimes the power to execute the law will be a duty to execute it. And it leads to our second point about domestic executive power, namely, the president's power to execute the laws can sometimes mean that the president has a duty or obligation to execute the laws. After all, Article II, Section III says that the president shall take care that the laws are faithfully executed.
- The second corollary to powers of the president in the executive's area is this question about the president's duty to execute the laws. Not just the authority, but the duty. You must do this. The issue came up most prominently in something called the impoundment controversy. The impoundment controversy, and the duty of the president to execute the laws of Congress.
- Well, that raised this question about whether the president has a duty, not just the power, but the duty, the obligation to execute laws that Congress has passed. Well at that time, the impoundment issue never percolated all the way up to the Supreme Court, but it did produce a number of lower court opinions. And in general, those opinions confirmed that the prior Supreme Court cases and the understanding and reasoning about the issue, which is basically as follows, the president must carry out congressional laws if specifically so directed. The president must spend the money if specifically so directed.
- Now, this matter came up, as I said, in the impoundment controversy, and here's what was going on. During the Nixon administration, President Nixon was a Republican and he faced an overwhelmingly Democratic Congress, which was passing a whole bunch of laws, authorizing a lot of programs, and providing funds for those programs.
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- But in terms of executive power as such, which is to say the powers of the president to execute the laws, we start by recalling what's really a basic civics lesson about the division of powers between the president and Congress. And it's this, Congress makes the laws and the president carries them out. So, Congress passes the laws and the president is supposed to execute them or carry them into operation after the president has enacted them. Now, this fundamental proposition leads to four corollary propositions or questions that I want to take up. One is can the president ever act without congressional authority? Are there some emergency domestic powers? Two, the president has power to execute the laws, but when does that power become a duty to execute the laws? Three, can Congress delegate too much authority to the president? And four, if Congress does delegate broadly, can it take some of it back to something you'll see it's called the legislative veto? But before we turn to those...
- ..., the top of the president's power. And unless there's some constitutional prohibition, for example, a violation of individual liberties, presidential power will be upheld. It will be presumed institutional. Presidential power, under those circumstances, is at its height, its maximum. Indeed, if the president couldn't act in those circumstances with congressional authority, then that would mean there was no federal power over the subject at all. And so, the president is really at the height of the president's powers, the apex in those circumstances where Congress has approved of what the president has done. Second, there are other circumstances where the president acts and Congress hasn't said, yes, it hasn't authorized the action, but it hasn't said no either. There, the president can rely on somewhat Justice Jackson called "twilight authority." Justice Jackson said, "Where congressional inaction in the face of an urgent need, the president might be allowed to act." One of the...
- ...branch and the legislative branch is really determined by actual politics, not precedent. Because that's where the struggle between the branches typically takes place. And it's determined more by the practices and customs of how the president and Congress sort things out to deal with this blending of their powers. And in fact, many issues involving the president and the president's relationship to Congress, particularly, let's say in the area of foreign affairs, won't even be decided by courts simply because they're deemed political questions. So, the real action here is not in the courts, but there is a good deal for us to say anyway. Okay. We're going to start with the domestic powers of the president, where the president is acting here at home. And, in general, the president plays a direct role with Congress in lawmaking by virtue of the fact that the constitution anticipates the president playing apart by signing bills into law or exercising a veto. And, of course,... ...law...
- Okay. Let's look at the first question. Can the president act domestically without any congressional authority? Does the president have some kind of, let's say emergency domestic powers? We said that Congress makes the law and the president carries out the laws, but what if the president is acting without authority of Congress? Truly, is that ever okay? We don't have many cases on this. And the reason why is, again, because the courts don't like to take them up. And if they do get them, they're spectacularly generous in reading congressional statutes as authorizing whatever the presidential action was that's being questioned. The courts will search and almost always find some kind of congressional authorization for an executive act, whether it be express or implied, authorization by acquiescence or ratification, something. And here's something for you to consider, and it may be a little worrisome. There are tens and even hundreds of statutes that give the president emergency power...
- ..., but there's an urgent need to act, then there too, the president may have the authority to act. Now, finally, Justice Jackson also identified a third category where the president is acting contrary to congressional will, then the powers of the president are at their lowest end. The president can rely only on his own constitutionally-granted authority minus any power that Congress has over the subject. And that's a very, very narrow opportunity for the president to act. And it's a very perilous action by the president in those circumstances. And it's just as Jackson said, and I'm quoting here, "Executive power should be viewed with extreme caution in such circumstances." Jackson viewed the circumstances of Youngstown Sheet & Tube as in that category three. And therefore, he found no presidential power. In such cases, the president's power can only be upheld if the law enacted by Congress negating the president's power is actually unconstitutional. So, that's the construct....
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Statutory standing 11 results (showing 5 best matches)
- Let's take an example. Let's assume that Congress passed a statute and it required that all banks had to give customers a receipt for any banking transaction whatsoever and that the law provided that if the person didn't receive a receipt, that that person, and the law would say any person, could sue for $100 in liquidated damages if there was a violation of the receipt requirement. Now, assume you went to your bank, you engaged in a banking transaction, and you didn't get a receipt. Before Congress passed its statute, you wouldn't have had any cause of action against the bank. The bank is under no duty by law, common law, or otherwise to give a customer a receipt. But now because Congress has passed this statute, it has created a new interest in you, a statutory right, a cause of action, which you would have for harm to that right.
- Think about this in connection with the law requiring banks to give a receipt. What if the law said banks had to give a receipt and it allowed any person, that was the language, any person to sue to enforce the law? What if I or you went to the bank and didn't get a receipt when you engaged in a transaction? Well, that's fine, but what if I'm a person, any person, and I heard that when you went to the bank you didn't get a receipt? I just heard that. And I say, "Look. It says any person. I'm any person, and I heard that the law was not complied with." Would I have standing? No. I haven't suffered any personal, or concrete injury, or injury of any kind by virtue of the violation of the statute. So Congress can say any person may sue all at once. It can say any citizen may sue, and it can say it over and over until the cows come home, but still, article three requires that standing be recognized only for persons who have suffered an actual injury or were actually harmed by the statute...
- So they filed a lawsuit to challenge the exclusionary zoning law. But the initial question, and ultimately, the determinant question, was did they have standing to challenge the zoning law? The court first acknowledged that the group of plaintiffs did have an injury-in-fact because after all they wanted to live in Penfield, and they couldn't live in Penfield. That's an injury-in-fact that counts. They wanted to live there. They couldn't live there. They had a personal concrete harm. But the question was whether they satisfied the causation and redressability requirements. Was their inability to live in Penfield barely traceable to or caused by the government's exclusionary zoning statute? And even if they got that statute struck down, would there be any developers able and willing to build the houses that they could afford to live in, in Penfield? The court said no. And therefore, there was no standing. It said that the plaintiffs didn't fairly trace the harm of not being able to...law
- Now, sometimes these questions arise with competitors in business situations like the hypothetical I just gave you, or sometimes it could arise in environmental statutes. For example, there was this case, Bennett v. Spear, decided in 1997. Congress passed a law that allowed a government agency to regulate the use of reservoir water. It was an environmental law seemingly protecting fish and wildlife, you know, to preserve the water for the fish. Now, when the water was regulated, in particular, how much water was released from the reservoir, the plaintiff who challenged the validity of the regulations was not anybody protecting fish, interested in fish, owning fish, or anything that had to do with fish. But, in fact, it was ranchers who said that their share of the water would be restricted under the new regulations and that they would be harmed by the regulations. Did they have standing to challenge the regulations that were adopted? Did they have standing under the statute to sue?...
- Now, Penfield had a situation, which is not all that uncommon in suburban communities, where the zoning for houses in residential areas was limited to large acreage, large lots. In Penfield, you couldn't build a residential home unless there was a minimum of two acres for your lot. So you had to have two acres. The plaintiffs challenged the zoning law and said it was effectively preventing them from being able to move to Penfield, to move out of Rochester, and go live in Penfield. They said that they were persons of low and moderate-income and of minority racial groups and that they couldn't afford to live in Penfield. And they said the reason they couldn't afford to live in Penfield was that there was no housing of the kind they could afford. And they said, moreover, the reason there was no housing of the kind they could afford was because of this exclusionary zoning law, this two-acre lot rule. There was only housing, in other words, for the affluent, for rich people, that is...
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Mootness 1 result
- Now, in this regard, you'll probably encounter the case of DeFunis v. Odegaard decided in 1974 where a law student applied to a state school but was denied admission. He claimed that the admissions policy of the school were unconstitutional because he said they preferred people on the basis of race. So he wanted to go to the law school, but he was denied admission. And he said that the denial was unconstitutional, and he filed his lawsuit. But during the pendency of his lawsuit, he had actually been admitted to the law school. The court ordered that he be allowed to enroll pending the outcome of the suit. And by the time his case got all the way up to the Supreme Court of the United States, he was about to graduate. And even though the parties themselves didn't raise the issue, the Supreme Court said in effect, "Wait a minute, is this case moot? The plaintiff is already in law school, and he's about to graduate. And that's what he wanted out of the lawsuit. And, in fact, the law...
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Powers of Appointment and Removal of Executive o?cials 7 results (showing 5 best matches)
- But what if Congress vests the appointment of inferior officers elsewhere, as Article II anticipates? Is it okay, for example, that Congress allows the appointment of independent counsels by the courts of law? That was the question raised in Morrison v. Olson. Is it okay if Congress vests the appointment of individual or special prosecutors, independent counsels, not in the President, but in the courts of law?
- The underlying rationale for this is that the executive branch is charged with carrying out or executing the laws, and it can only act through agents. And the President can only retain control and responsibility of executive functions if the President plays the primary role in appointing his or her own agents.
- Principal officials, again, have to have the advice and consent of the Senate, in both respect to inferior officials, although Congress may vest the appointment of such officials elsewhere, in heads of departments, or the President alone, or in courts of law. What the Congress may not do, again, it may never do, is directly itself appoint executive branch officials. That would be unconstitutional.
- Now, with respect to those inferior officers, Article II Section 2 Clause 2 says that Congress may vest the appointment of those officers in the President alone, in department heads, or in the courts of law, so that that section, in essence, grants the primary responsibility to the President to make those appointments, but again, gives Congress some role to play. And it's important to know what that role is, and what it is not.
- It has some role to play, but there's a fundamental proposition here. Congress may never directly appoint executive branch officials. That's the key. Congress may never directly appoint executive branch officials. What Congress may do is play its role with respect to principal officials, the advice and consent of the Senate, and with inferior officials, may vest the appointment of those officials, in the President alone, in department heads, or in courts of law. But Congress may never directly appoint executive branch officials.
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Gender Discrimination 4 results
- The second case is Michael M. v. Superior Court. There, the court upheld a statutory rape law, which was applicable to men only. A male could be convicted of statutory rape. By statutory rape, I mean sexual intercourse with an underaged person. It's consensual intercourse, it's not forcible rape. It's called statutory rape because it's made to be rape by statutory definition. And under this particular state law, a male could be convicted of statutory rape but a female could not be convicted under the law. Now obviously, that's a form of gender discrimination, but here the court upheld the discrimination because it found that the two groups were again, in a situation where there were real differences between men and women that could be taken into account. That the law was not just a stereotypical statute based upon broad generalizations about how men behave, how women behave. That there was a sufficient basis to justify mid-level scrutiny. Well, the real difference in that case and...
- And we have seen and still see stereotypic thinking that men get to do this and women get to do that, or they can't do this, or they can't do that, and this has resulted in dramatic, unequal treatment to the individual person. So when looking at cases over the past 30 to 40 years, the court began applying a kind of heightened scrutiny. And under the heightened scrutiny, and again we refer to it as mid-level but it's heightened, we actually see a very wide swath of legislation where the court has struck down these laws that discriminate against men or women. And again, men are the beneficiaries of this protection just like women, because men no less than women in some cases, have had their ability to participate fully in society limited by notions about what a proper man is to do, what a proper woman is to do and how they should live their lives. So the court has struck down a variety of these laws, laws that require different treatment of men and women at the hands of the government.
- ...between men and women. And there are two cases I'd like to focus on. One is Rosser v. Gulberg, the male-only draft registration case. And there, the court upheld that law, even though and even though now you know that males are only required to register for the draft, but that is crumbling because women are serving in all capacities in the military now. But at that time, only males were required to register for the draft. And in fact, that may still be the case today. And the key to that case had to do with the fact that there was an issue in that case that wasn't even litigated. It wasn't litigated at the time, but it made all the difference in the world, in terms of the outcome of the case. And that was this. That there was then an iron clad rule that women were entirely eliminated and not permitted to have combat roles in the military. And that's important here. They were completely barred from combat and that played a critical role in the decision at the time when... ...law...
- ...cases, particularly the ones authorized by Justice Ginsburg, but it's important to look at this case. You can see that it's slightly different application than other cases involving mid-level scrutiny, involving gender, because in this case the majority did not require that the government proved that there were no gender neutral ways of accomplishing their objective. And there were gender neutral ways and it was proved by the fact that there were many other states that also had statutory rape cases, also trying to prevent unwanted teenage pregnancy, and applied those laws in a gender neutral fashion. And it just shows you that mid-level scrutiny in the hand of other justices, particularly Justice Ginsburg, particularly looking at VMI, is very difficult for the government to satisfy. And the availability of alternatives to gender discrimination, a gender neutral approach, can be enough to doom a statute. And that's something you have to pay attention to if you have a problem...
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Exception to Commerce Clause Limits: The Market Participant Doctrine 6 results (showing 5 best matches)
- Now, again, in that case, too, even though the ruling about discrimination and that discrimination was not applicable, the court did go on to ask the question as it did in the waste hauler's case about whether nevertheless, the state law imposed an unreasonable burden on interstate commerce. But in the tax case, as well as in the hauler's case, the court found that the state law was not unreasonably burdensome and upheld it on that basis as well.
- The first one arose in the case of United Haulers Association versus Oneida-Herkimer Solid Waste Management Authority. Now, in that case, you had two local county governments. They owned and operated a government waste facility. So, in that sense, the government was in business. It was in the waste business. But it went a little bit further. It used its law-making authority, its regulatory authority to advantage itself in this business.
- What it did was it passed a law saying that all waste haulers could continue to pick up garbage in those counties, but they had to use the government's waste processing facilities. And as it turns out, that waste facility charged a much higher tipping fee, that's what it's called when you tip the garbage over at the facility, than was available in the open market. Now, the ordinance did treat in-staters and out-of-stater waste haulers the same, but in-state haulers, out-of-state haulers, they all had to bring their garbage to the state processing facility.
- So, in that sense, it was discriminatory in favor of the government's business operations. And clearly, that sort of thing would be unconstitutional if, for example, the government passed a law saying that all waste haulers had to deposit their waste at a private facility in the state. And indeed in an earlier case, the court said specifically that, that that was unconstitutional. But now here, the court was saying that because the state owned the facility, because it was a state-run business, that this form of discrimination in favor of the state making all the waste haulers bring their business to them was okay. Well, why was that okay?
- Something can be called discrimination, it's a form of discrimination, but what the court was saying was that it's not discrimination of a kind for the purposes of the dormant commerce clause. We don't think the same issues are at stake. And so, you'll see this in other areas of the law, the same exact word used in different context may not mean the same thing. But the court, you know, at this point, said that it wasn't going to interfere. And so you have this other class of cases where a kind of discrimination, but not discrimination for the purposes of the negative of the commerce clause, it doesn't count.
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Political Questions 1 result
- ..., Congress could decide on qualifications of its members again, but only age, citizenship and residency. If it went beyond that, then that wasn't a political question. It became a matter for the court to look into. And importantly, you have to keep in mind particularly on any exam question you may have, to look very carefully at the particular question that's being asked of the court. For example, the court decided an unusual case. Zivotofsky v. Kerry. The issue was whether a congressional statute that required the state department to list Israel as the place of birth of an American born in Jerusalem on that person's passport, whether that statute was constitutional or not. Now the status of Jerusalem, whether it's to be recognized or not as belonging to Israel or any other country, has long been a matter that presidents have left alone. They've taken a position of neutrality. And the argument was that Congress, by passing this statute, was impliedly recognizing Jerusalem...
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- On the one side, Justice Black said the due process clause was meant to incorporate the bill of rights against the States and it was meant to do so without qualification. In other words, that's exactly what it was meant to do. It means no more than that. It means no less than that. It's a perfect incorporation and judges shouldn't have this latitude, this discretion to pick and choose among the Bill of Rights which provisions that they think are incorporated and which are not. Now, Justice Black was a justice who was very keen on limiting the interpretive discretion of justices in terms of the constitution. And as he put it, he wanted to prevent justices from acting like a continually sitting constitutional convention.
- Okay, let's turn to the back to the 14th Amendment, and now we're gonna look at the due process clause. There are two due process clauses in the constitution. One is in the 5th Amendment applicable to the federal government, and the other is in the 14th Amendment applicable to state and local governments. Both employees, similar language, and they both protect all persons from the deprivation of life, Liberty, or property without due process of law. And so we're going to speak of them together.
- Now, there are 3 aspects we need to look at under the 14th Amendment due process clause. First, we're going to talk about due process of law as a way to apply the bill of rights against the States. This is the so-called incorporation debate, and you may encounter that language. Then we're gonna talk about substantive due process, which is reading the due process clause as a source of rights, substantive rights, even beyond the Bill of Rights. And then we'll talk about procedural due process.
- But on the other side, there was this alternative view of Justice Frankfurter who said the content and meaning of the language due process of law is both more subtle and more significant than Justice Black would recognize. For Frankfurter due process embodied this core concept of ordered liberty, the fundamental balance that society has to strike between order and liberty. And he said, and I'm quoting, ''that we applied the bill of rights to the States, not as incorporation per se, but rather because the due process clause in bodies, fundamental protection for certain rights, some of which happened to be in the Bill of Rights, but that's a coincidence.''
- Okay. Let's look at due process of law and this so-called incorporation debate, the incorporation of the Bill of Rights to the States. Decades ago, this was a fairly controversial topic, but it's all been pretty much settled now, but, but here's the story. When the 14th Amendment was passed in 1868, it included this due process clause and many wondered if the due process language was meant to be some sort of a shorthand way of applying against the States, all of the protections of the Bill of Rights, because prior to the passage of the 14th Amendment, it was held, it was settled that the Bill of Rights, for example, the First Amendment, Fourth Amendment, that the Bill of Rights applied only against federal or national actions and not against state or local governments, but there was a good deal of unhappiness with that. Many felt that the fundamental liberties in the Bill of Rights should apply against state and local governments too.
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Article III limits in general 1 result
- Okay. Now, let's turn to consider the limitations on when Federal Courts can act. Federal Courts can have the power of judicial review, all right, but that's not going to mean very much if they can't decide a case. Courts may only act in cases properly before them in matters, fit, and appropriate for judges to decide. So precisely what constitutional limits affect the circumstances under which Federal Courts can act? The main limits arise out of Article III. Article III is the article that establishes the Federal Courts, and there were three limits under Article III that we need to mention.
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Marbury v. Madison 5 results
- Consider this, the constitution is written in language that is subject to considerable interpretation. Who decides whether due process of law has been denied or even what due process of law means? Who decides whether the constitution has in fact been violated or been adhered to? Perhaps the Congress or the President could decide if their acts conformed to the constitution. Let's say, for example, that Congress passes some sort of a statute. We could say that Congress, by passing that statute, made a determination that the law was not in conflict with the constitution. So even though Congress would agree with the first fundamental proposition that the constitution is superior, it's written, it's binding, Congress might not think that what it actually did was in conflict with the constitution.
- The principle that makes judicial review especially potent, that makes it a strong form of judicial review is the second fundamental proposition out of Marbury, and it's this, the constitution is a species of law. It's a kind of law. And under the constitution, as Chief Justice Marshall emphasized in Marbury, it is the province and duty of the federal courts and ultimately the Supreme Court to say what the law is, including to say what the constitution is and what it requires. Now, in Marbury, to talk about the actual facts of the case, Mr. Marbury was seeking a writ of mandamus directed to the President of the United States and his Secretary of State requiring them to deliver to him his commission to be a federal justice of the peace.
- In Marbury, the court relied on essentially two fundamental propositions to decide that yes, indeed the federal courts do have this power of judicial review. The first fundamental proposition had to do with the nature of the constitution itself. The court in Marbury said the constitution is fundamental binding law. And by that, they meant it's superior to and prevails over ordinary legislation or other governmental acts. It's a written constitution, and it was meant to bind all actors to its requirements. So in terms of the nature of the constitution, it's fundamental law superior to ordinary legislation and binding on all actors of the government.
- Instead, we've taken this very expansive view of the power of judicial review announced in Marbury. Indeed, many of you may have in your text a case called Cooper v. Aaron decided in 1958 where the Supreme Court sweepingly announced that in a case properly before it the federal judiciary is supreme in its exposition of the law of the constitution. The Supreme Court decides what the constitution means procedurally and substantively and its view is binding on all of the other governmental actors.
- Now, judicial review didn't have to be as was decided in Marbury. We could have had a lesser form or a weaker form of judicial review. As I said, we could have had a situation where everybody agreed that the constitution was fundamental law, superior and binding on everyone. Still, the other actors in the government could have decided for themselves whether their acts were or were not consistent with the constitution, but we didn't do that. And I would just put the question to you, would the President or Congress be the best judge of the constitutionality of their own powers? To put that question, I think, is to answer it.
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Content Control of Expression 6 results (showing 5 best matches)
- Now if you do have content control, remember the courts are very, very vigorous in applying strict scrutiny, requiring that the laws be compellingly justified and very carefully tailored. As an example of a need for very close tailoring, there was a case decided in 2000. United States v. Playboy Entertainment Group. At issue was a federal law that required cable TV operators who specialized in transmitting sexually oriented programming, to either fully or completely scramble their air transmissions so you couldn't see or hear anything that was going on, and block out those transmissions entirely between the hours of 6 a.m. and 10 p.m. The programs couldn't be put on between 6 a.m. and 10 p.m. They could only be put on in the overnight hours of 10 p.m. to 6 a.m., because otherwise the law required that the operator scramble them, get rid of these sexually oriented programs, scramble them entirely or block them out entirely, just eliminate them during those effective daytime hours....law
- ..., the basic structure of freedom of expression law. Now at the outset, there's this major dividing line, a great divide between two kinds of government controls that affect speech. One is called content control, and the other is time, place and manner controls. In terms of content control, unless speech falls within a category, a narrow set of special categories of unprotected or lesser protected expression, and I will be talking to you about those shortly, if it doesn't fall within one of those, and if the government is aiming at the person's message, if it's trying to restrict one's opinion or one's views, then that kind of behavior by the government is unacceptable and invalid and it will be unconstitutional unless the government is able to show that it has some compelling justification under a very, very strict kind of scrutiny, and it's very, very hard to satisfy. This is the bedrock of the First Amendment. The government simply may not restrict a person's opinions or...
- ...Confederate Veterans. It was a 5-4 case decided in 2015 and the idea there was the plaintiff was saying, if the state allowed for these other vanity or special plates, could this group get what it wanted too, namely a plate with the Confederate flag on it? But the government said no. And the question was whether the government had to allow this group to have its message. It's the opposite of what we saw in Wooley v. Maynard. Well, the court drew a distinction that exists in the law between when the government is speaking for itself and when the government is regulating the speech of others. When the government speaks for itself, the First Amendment doesn't determine the content of what it can say. We assume that government speech is regulated by the democratic process. Governments are elected and they're elected for certain reasons, for certain positions. So governments, for example, could encourage people to get vaccinations, or to recycle their goods. They're entitled to...
- ...majority in that case said, "No, this is government speech. Governments have long controlled what's been on license plates and have used them to speak to the public. The notion also is that it's the government's property, that licenses are the government's property and rarely do people with their own property allow others to put messages there that they don't agree with. And the government has maintained control over these messages over a long period of time." And so, the majority said that this was government speech and therefore the First Amendment didn't apply. The government could say, "You can have a Confederate flag." Now other kinds of forced speech are also forms of content control too, like the forced message on a license plate. For example, if the government tries to make people stand for the national anthem, or if it forces students to salute the flag, or even in one case, to force a utility company to include messages about conservation and other environmental laws...
- ...Now here's another example. If a state tells parade organizers, as they did in Massachusetts, that if they were going to have a march, a parade, that they had to open it up to all people who wanted to participate. And under the Massachusetts Open Meetings Law, Massachusetts told parade organizers that their St. Patrick's Day parade had to include gay pride marchers. But the court said as to that, "No, you can't do that. The state can't force messages on these parade organizers. They had their own message for the parade, which didn't include gay pride messages. And if the gay rights marchers wanted to have a parade, they could have their own parade because this was freedom of expressive association for the organizers of the St. Patrick's Day parade." The court also said in the case of Boy Scouts of America v. Dale, which was decided in 2000, that the government couldn't force the Boy Scouts, who promote their own view of what's upstanding living, and have a view that homosexuality...
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The Establishment Clause 2 results
- Second, even if there is no purpose as such to aid religion, the law could also be struck down if the law's overriding or primary effect, the effect was to aid religion. So, if its primary effect is to aid religion, then that could be a basis to strike the law down as well. Finally, third, if the operation of the government's law can be seen as excessively entangling the government with religious entities or religious activities, then that too could amount to an establishment violation. If it turns out that the government's actions are all mixed up with and operating together with religious entities, if they're working in tandem, if they're working together as a kind of partnership, that too can result in invalidity. Now, more recently, the court has folded this last prong, this idea about entanglement into the primary effect factor asking again, is the lowest primary effect to aid religion? And an entanglement may influence the answer to that question. So, that's sort of a general...
- ...connections with religious activity are okay as long as the government doesn't actually coerce or force anybody into believing anything or coerce or force anybody to support religious activity. As long as there's no coercion, and that would be the test for some of the justices, as long as there's no explicit religious indoctrination by the government, then there's no establishment. There are other justices, sometimes a majority, who have sort of coalesced around something called the Endorsement Test or a kind of neutrality test that is prohibiting the government from taking actions that appear to endorse religious activity or belief. We've not quite gotten to a complete consensus on that though. And the Lemon Test, though it might be very disliked is as I said, still kicking. That's the main point here. We have to look at the test at least because it still is operative. And the rules are as follows, a law will be struck down as an establishment violation if you have any of...
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Ripeness 4 results
- Now, sometimes that kind of scenario is referred to as involving dead letter statutes, dead letter statutes, where statutes have been on the books forever and no one is applying them against anybody. And then somebody happens along. Maybe they saw the law of statute in a codebook and decided that they wanted to challenge it. But there is, in fact, no reasonable prospect that those laws are gonna be enforced against anybody, and so the court has deemed them to be not ripe.
- Now, sometimes this is referred to perhaps more graphically as the bleeding plaintiff rule. We don't wanna have to anticipate what the harm is to you. We wanna see your harm. Show us your wounds. Show us your pain. We wanna be able to have the issue sharpened so that, in fact, a court can decide the case precisely and narrowly. And to use our fight analogy, we want the fight to have started. Now there's no set formula for ripeness, sorry to say. And the best thing we can do is to consider some examples. Probably a rather extreme example, but it does make the point, is a situation where a plaintiff is trying to challenge a law that's only been proposed but has not yet been passed.
- You see, we don't know if the law will ever be passed, and even if it were to be passed, we don't know what provisions would ultimately be in it. It wouldn't be a case that would be right for decision to challenge a statute that had only been proposed. Another example, in some cases, plaintiffs have attempted to challenge statutes that they say are going to be applied to them, but have not yet been. Now, ordinarily, we expect the plaintiff to take an action that would invoke a statute. It must be some real substantial indication or a genuine threat as the courts have said that the government is going to enforce the statute against you, the plaintiff.
- Now, incidentally, you may know that the contraceptive case ultimately did come to the court. Activists found someone to be a test case. Someone who actually got arrested under the statute, and that famous case is Griswold v. Connecticut, and we're gonna take that up in the area of individual liberties. But if you have a law that's on the books for a long time, it's never been enforced against anybody ever, it's not enough to say that you heard about it or that you've seen it or that you're worried about it. No, the court wants some clear indication of a genuine threat of enforcement before it's going to allow you to sue. Those cases wouldn't be ripe.
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- ...And these arise largely in the area of remedies. That's the other compelling justification. Good effects doctrine, leave it to university admissions. All these other programs are remedies, remedies to make up for prior discrimination against racial minorities. And in terms of remedies, the Court has said that you can have such remedies, even if they're not court required. We're not talking about that. We're talking about affirmative action plans and remedies that are not ordered by courts to remedy segregated schools, for example. But we're talking about voluntary affirmative action plans. We're talking about situations where a part of the government, let's say a fire department or police department or school board, decides voluntarily on its own, that it's going to have an affirmative action program. It hasn't been ordered to have won by a court. It's not being required to do something in the face of a constitutional violation. No, independently voluntarily, it's saying that it...
- The city didn't have a compelling justification, the court said, because it had no adequate evidence to show that it, the city itself, had discriminated in the letting of contracts in the past. And it didn't have any specific findings that the city itself was actually responsible for financing or propping up discrimination against minority firms in the industry. So it didn't even meet the first prong. It didn't have a compelling justification to make up for past discrimination, because it couldn't show that it was responsible for or contributed to any such past discrimination. But even if Richmond did have a compelling justification, even if it had won, the law would have failed anyway. Because the city didn't meet the second prong, that is, the program was not well-tailored.
- So if you're given an affirmative action plan as a hypothetical, something on a test, and you have to evaluate it, how should you proceed? First, find out whether you're talking about a program that involves university admissions, higher education, because in that context, at least, the good effects argument could work to make for a compelling justification. As we've seen, the admission of different people to achieve racial diversity can be compelling in the context of higher education. And if furthermore, race is only a factor, not a quota, as part of an individualized assessment of all applicants, then you could have the appropriate tailoring and the law could be upheld.
- But outside of higher education admissions, the court has basically limited compelling justifications to making up for past discrimination by particular governmental bodies. So you'd have to find in your facts, some statistics, some evidence, or you'd have to hypothesize, they're either gonna give you the facts or you have to posit them, that the government unit involved, that it has some firm basis, some factual predicate, that it has discriminated in the past, that it has discriminated in the past. And even then, if you find that you're still not done, remember, you have to make sure that the law is well-tailored, narrowly tailored, to make up for that past discrimination, that it's limited in time, in application, and that it minimizes harm to nonminorities.
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Substantive Due Process-Fundamental Personal Liberties, part 1 6 results (showing 5 best matches)
- ...insularity, and their sensitivity to minority beliefs, and practices, and positions, that they are, in fact, in a better position, better able than the legislature to protect personal rights, while enduring principles and not just as Justice White said, shifting economic arrangements are an issue. So that's an answer to question one, why a two-tiered approach? But here's question two, even if we accept the existence of fundamental rights in the personal sphere, why are some things counted as fundamental, but others are not? Why have we developed a particular methodology about how we can figure that out? How can we discover which rights are fundamental and get special constitutional protection by the courts, and which are not? And here again, you need to be aware of what some of the views are. The court has said, among other things, it looks at the basic values of our society drawn from history, drawn from tradition, and drawn from customs. And what they do in part is to look...
- So what Justice Douglas relied on, where he got his fundamental right to use contraceptives if you're married, was that he looked at all of the Bill of Rights, and he said, "All of the protections of the Bill of Rights or many of them, give up certain emanations or penumbras. And from these mists, you might say, from these are thrown off implications," he said, "from which we could derive a fundamental right to maintain intimacy and privacy in the marriage relationship. And a law that prohibited the use of contraceptives, particularly with the specter of the state enforcing that law by invading marital bedrooms, he said, "violated fundamental rights derived from these emanations or penumbras thrown off by the Bill of Rights." Now, other Justices were more straightforward. They didn't shrink from identifying substantive due process as the home for this new fundamental right. And that's what they relied on.
- And finally, he said, that our nation's tradition makes it clear that marriage is as he called it, "the keystone of our social order." And so, he looked at all of these underlying rationales for protecting marriage as fundamental. And then he found that there was really no difference in those rationales, whether it was an opposite-sex couple or same-sex couple. And so we said that the right to marry is a fundamental right, inherent in the liberty of the person under due process of law. And he also threw in equal protection as well. And as applied to same-sex couples, the right should be protected as it is with opposite-sex couples. Now, the dissenters, particularly Justice Scalia, really could not countenance this. Justice Scalia said that the court's decision was an opinion that even lacked the thin veneer of law. And he said, and I'm quoting here, because as you know, Justice Scalia is very quotable. "Buried beneath the memories, and straining to be memorable passages of the...
- ...'s switched direction. It moved to a different area for finding substantive due process rights. Fundamental rights continue to be read into the constitution under the due process clause, but they emerged in the area of personal rights, personal decisions, and personal choices. So, what are these new fundamental rights, these new specially protected rights, these unenumerated, but nevertheless, really important rights found by the court under due process of law? Well, we get off to a big start with a major case called Griswold v. Connecticut, decided in 1965. And a question that follows us all along is how does the court go about identifying these rights? There, the court considered the constitutionality of a Connecticut statute that banned the use of contraceptives, even by married couples. And in that case, the court announced that there was a fundamental right for married couples to use contraceptives. Where did that come from? The majority opinion was written by Justice...
- ...they would ask whether the specific practice that was at issue in a case, let's say it's sodomy, was a practice that was actually protected under the laws in the past. They wouldn't rely on some more open-ended voyage into history and custom or societal values to see whether a protected right, for example, the right to maintain intimate relations with other persons was protected when thinking about sodomy. No, they wanted to look at history from a very specific vantage point. That's one thing, in general, looking back at history, tradition, and customs. Beyond that, some justices, most notably, Justices O'Connor, Kennedy, and Souter, for example, reflected in their opinion in the Casey case, the abortion case, that we'll talk about. They tell us that they would also rely on what they called reasoned judgment, reasoned judgment. That is, the members of the court use their best thinking to see whether certain interests are such an importance to society, that they should be deemed...
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- ..., meaning being born to parents not married at the time, and discrimination based on the exercise of a constitutional right. Well, how did that occur? How did the court decide to add these categories and not others? What was it about those classifications that led the court to think that some form of heightened review was appropriate and why those and not others? Why discrimination on the basis of gender, but not discrimination on the basis of age or wealth or mental disability? Well, what the court tended to do was to compare classifications, let's say, compare gender or these other classifications with racial classifications to see if there were some characteristics or similarities that would provoke a heightened scrutiny. And among the things the court would look at would be, one, whether the legislature was acting against a particular group that had suffered a long history of discrimination against it. It would also look at, two, whether the trait that was listed or used...
- Stereotyping, we happen to think it's impermissible for the government to treat individuals based on characteristics that they might share with the group, even though it has little or nothing to do with that person's individual ability to perform, especially if those traits are immutable or simply a byproduct of the fact that they were born, like having certain characteristics that maybe you're male or you're female. And to have the government award benefits or burdens to people based upon immutable characteristics that have little or nothing to do with the individual's ability to perform, then we're only left to conclude that basically, in those cases, the government is discriminating in a prejudicial way against them because they're a member of a group. For example, laws that are based on stereotypes about persons because they're male or female, there are stereotypes about proper male and female roles in society. For many, many years, as you know, the laws confined men and women...
- A classic example here are non-citizens, aliens, non-U.S. citizens. They can't even vote. So, here's a case where we doubt that the ordinary majoritarian political process will be available to them. They're going to be perpetual outsiders, perpetual losers, and perpetual prey if you will, for being picked on by the majority. So, they're good candidates for the court to apply some form of heightened review when it's looking at laws that discriminate against them. And this heightened review allows the court to determine if a law affects non-citizens, if in fact it's just rank discrimination, or if it's somehow is reasonably justified. Now, in terms of the various factors that I've identified, the court has never been very systematic or clear or neat about how it takes all those factors into account, but it has repeatedly invoked them in various cases to the degree that we know that they are at work in the court's assessment of whether a certain classification should get a form of...
- ...or ethnic discrimination. And as I said, it's fairly easy to have a rigorous test applied to racial discrimination because historically, we know that the Equal Protection Clause was meant to apply there. Its pervading purpose was to outlaw racial discrimination. But once you move outside of racial discrimination, it gets a little trickier. There's no historical evidence, for example, that the framers of the 14th Amendment intended to do anything about laws that discriminated against women or discriminated against non-citizens or other groups. In fact, not only did the framers not contemplate those matters, they may well have accepted such discrimination as constitutionally legitimate. However, the Equal Protection Clause was not adopted and is not written in terms explicitly of race. The language talks about protecting any person from the denial of equal protection. And beginning in the 1970s, the court began to identify other classifications other than race that would trigger...
- ...on, what's happening in society, if you don't like the laws that are being adopted, you and I, and the rest of us, we can simply go out and try to effect change in the legislative process. We can participate in the give and take of the democratic system. We can try to get our political views adopted or our candidates elected, stuff like that. Now, it doesn't necessarily mean that we're gonna win in that process, but it does mean that we have a chance to participate, a chance possibly to win. We can log roll, we can form coalitions with others. We can mix it up politically so to speak. And we can have some role to play in a legislative process. But with certain groups, discrimination against them, the court has said, and this arises from just a footnote in a certain Supreme Court case, sometimes the court says you have certain groups where you have prejudice against them, and they are what they call "discrete and insular minorities," discrete and insular minorities. And when...
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- ...ve looked at rules with respect to standing that were basically essentially based on Article III and the case and controversy requirement. The third-party standing rule is a rule that the court has fashioned for its own governance, it's not Article III. And as a consequence, and technically speaking, if Congress wanted to change third-party standing rules adopted by the court, it could do so. Third-party standing rules and the third-party standing doctrine could be overcome if Congress chose to do so because again, the rule against third-party standing is not constitutionally mandated. So what are the rules that the court has fashioned for itself with respect to third-party standing? Well, as I said, the general rule, even though it's only a prudential, not a constitutional command, is that there is no third-party standing, but the court has found some occasions where it's relaxed the rule or created in effect exceptions. It's really one exception with a few factors, I guess, and...
- ...doctor was permitted to sue and raise the rights of a patient in challenging an anti-abortion statute. Now first, the doctor himself had to have some injury and he did. He couldn't get a fee for the abortion procedure and he couldn't give proper medical advice as he deemed appropriate because of the restrictions in the statute. So in that case, he suffered some injury himself by the operation of the law. Second, there was a close relationship between the party in court, the doctor, and the party not in court, the patient, it was the doctor-patient relationship. And finally, the court said there were barriers or hardships to the third party coming into court herself, namely the notoriety that might be associated with having an abortion, given that that person might be identified in court papers. That, the court said was a sufficient obstacle to the woman coming into court and raising her own rights. So the court allowed the doctor to raise the rights of the woman and her...
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Free Expression Summary 2 results
- If it's content control and it's not in one of the special categories, then we know that it gets exacting scrutiny. And it's likely to be struck down because the government has to show a compelling justification, an overriding need to regulate that speech. And the law has to be extremely well drafted with no alternative way for the government to reach its objective. This is a very, very stringent test.
- In terms of time, place, and manner, make sure that the law is not overbroad. Make sure that it advances some significant government interest and that it's fairly well-tailored. Now if the speech is in a non-public forum, remember that the government can pretty much engage in content control and in time, place, and manner control so long as it's reasonable, reasonable in light of the nature of the property and to what the property is dedicated.
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- By way of example, there was a particular case where a community passed a law that allowed churches and only churches to veto the issuance of liquor licenses. The churches could veto the issuance of a liquor license if the liquor store was gonna be located too near their church that was struck down.
- Another case was a tax that exempted religious publications only, no other publications, just religious publications from the tax. The law said that the religious publications would have these special benefits, these special tax benefits which weren't available otherwise to anybody else. So that, too, was struck down.
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- So now, I want to talk to you about kinds of speech that are forms of content control but that, nevertheless, fall into certain categories that are either thought of as unprotected speech or they get lesser protection under the First Amendment. Now, as we said, if you have content control, you're going to get a very, very strict scrutiny and very, very few laws will survive that rigorous approach.
- Another example, and this one, I'm particularly fond of this one, there was an ordinance adopted by a local government. And again, this is me quoting here the language of what was a crime. It was a crime "for one or more persons to assemble on the sidewalks and there conduct themselves in a manner annoying to passersby." Now that's quite a law, and I guess we might all be arrested under it. It was struck down as overbroad and vague.
- The case that set out the test was Brandenburg versus Ohio. There you had a Ku Klux Klan leader who was at a rally on a rural farm in Ohio. And basically, what he was doing there, they were having this rally, and he addressed his followers and asked him to take revengeance, that was his word, not mine, or violence against government officials, and in particular, the president of the United States. As a result, because of what he said, he was prosecuted under a state law that made that sort of encouragement of the overthrow of the government or violence against government officials punishable.
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The Negative Commerce Clause and Discrimination against Interstate Commerce 10 results (showing 5 best matches)
- Now let's turn to a bigger subject and it's called the Negative Commerce Clause, the fourth prohibition on actions by states under the Constitution. Now sometimes, remember, Congress may not use all the powers that it's given. But sometimes, just because Congress is given a power over an area, even if it hasn't exercised it, the states cannot be in that area. And so, what you have simply in your facts that you'd be given to test in this area, you'll be given a state or local law that regulates or touches upon some area of interstate commerce or economic activity of some kind. The Constitution expressly neither prohibits the states from taking action in the area, nor is there a federal law that you're going to say on your facts that conflicts with the state law. So you don't have either of those situations. In fact, what we're going to assume that in your hypothetical or fact pattern, you're told explicitly that there is no federal statute on the topic. If you have that kind of a...
- The basic rules that we've come down to with the Negative Commerce Clause are these. States can pass laws that regulate interstate commercial activity or have an effect on interstate commerce. But first, they must not discriminate against interstate commerce. And second, they must not unreasonably burden interstate commerce. That's the essence of it. States can't discriminate against interstate commerce and they may not unreasonably burden interstate commerce. They can regulate activities that affect commerce, but again, they can't discriminate and they can't unreasonably burden. Now to break this down into its component parts, we're going to start first with the matter of discrimination. The absolutely strongest argument that you can make to invalidate any state or local law under the Negative Commerce Clause, is that it discriminates against interstate commerce. And by that, I mean it treats interstate commerce worse than in-state commerce, or prefers in-state commerce over...
- The first is the situation where the state is discriminating against interstate commerce for the purpose of favoring in-state commerce, for the purpose of favoring in-state citizens. These laws are purposefully discriminatory and states are passing them for economic protectionist purposes. They're doing it on purpose to help intrastate economic activity or to harm out of state economic activity. These laws are very bad, so bad that the rule is they are per se invalid. They are per se invalid. A state simply may not do this. A state may not discriminate against interstate commerce to achieve some in-state economic advantage. That's a very, very bad thing, very, very bad. And this would include, for example, state laws that place a tariff or an extra tax or cost on out of state goods, but don't apply the same tariff to in-state goods. Or if the state gives the in-staters a preference over the use of state resources, like oil. Or if the state mandates that local businesses first...
- Another example, there was a law that prohibited the sale of out of state milk in that state at any price that was lower than in-state milk, thereby insulating the in-state dairies from competition. All of those kinds of laws will be struck down as per se invalid. Now there's a second kind of discrimination. This other kind of discrimination against interstate commerce is one where the state is discriminating, yes. So you do have discrimination. But the state is defending or saying that its purpose is not economic protectionism. It isn't trying to gain some sort of economic advantage by its discrimination. Instead, the state says, "We're discriminating, that's true. But we're doing it in order to serve our legitimate health and safety interest under our police powers." Now when you see that sort of situation, it turns out that under the Commerce Clause, a state may have some ability to discriminate, but it's very, very narrow. The rule won't be per se invalidity, but it's still...
- ...Milk v. Madison, which was decided in the 1950s. The city of Madison, Madison, Wisconsin, made it unlawful to sell milk as pasteurized in that city unless the milk had been first processed and bottled locally at an approved plant. A plant that was approved by the city. Now that law is plainly discriminatory because it has the effect of requiring out of state companies to use in-state processing facilities as a condition of selling milk in Madison. And the city said, "Well yeah, it's discriminatory but we're not doing this for economic protectionist reasons to force businesses to use our local companies. No, no, no. We're not doing it for that. We're doing it for health and safety reasons. We don't have a discriminatory economic protectionist purpose here. We're doing it for health and safety reasons." And the reason why, the reason they said why they were discriminating is because they wanted to have a wholesome supply of milk. They said they wanted to make sure that the... ...law...
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Case and Controversy Limitations 1 result
- The chief purpose of the case in controversy requirement is to create a boundary, a line between what is law and what is politics. In other words, a person has to have a particular legal grievance, a lawsuit of a traditional kind, that's capable of being dealt with by judicial power. If all you have is a pure policy dispute of some sort, maybe you think there should be a new road in your town, maybe you think we should spend more money on healthcare and less on military arms? Well, for that kind of a dispute, you go to the legislature, you don't go to the courts to get that kind of matter addressed.
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Executive Privileges and Immunities 4 results
- So for those two reasons, the court said, and it was a close case, 5-4, that the President needed and would get absolute immunity from civil lawsuits for damages. Now, the majority added its view that the ruling didn't mean the President was completely above the law. Because the court said, after all, there were other remedies, the remedy of impeachment, or perhaps the consequences in the next election, and certainly the judgment of history. Though I kind of doubt whether those remedies were the ones that Mr. Fitzgerald was seeking.
- The court said that what was involved here was a criminal prosecution, specific, important need for the information and that evidence in a criminal case was required, it wasn't a fishing expedition, that in that particular case, the specific information was of a nature where the court really needed to carry out its duty as a court to comply with due process of law. And the court said that the lower courts could follow procedures to protect the information from unwarranted disclosure. So in that case, the court did order disclosure. And, just as President Nixon was required to turn over the tapes of Oval Office conversations, the Supreme Court ruled at the end of the 2020 term that President Trump had no absolute right to refuse compliance with the state grand jury seeking his personal financial records. The case is Trump v. Vance.
- But in both cases, the court said that the President would have to turn over the information. And speaking for the 7-2 majority in both cases, but in the majority in the Trump v. Vance case, the criminal case, the state criminal subpoena, Chief Justice Roberts said the following, "No citizen, not even the President, is categorically above the common law duty to produce evidence when called upon to do so in a criminal proceeding." This was widely viewed as a very, very important case involving access to information even as to a sitting president. Now, in addition to the President enjoying some protections against the disclosure of information, the President also enjoys an immunity from private suits, private suits for damages, for actions taken as President.
- And in that case, you had a government employee, who sued the President for damages arising out of the fact that he, the employee, had gone before Congress and testified about these cost overruns in the military. And apparently, when President Nixon heard about that, he was pretty mad. In fact, he was so mad that he told his aides to fire the guy. Unfortunately, the firing was contrary to civil service laws. So Mr. Fitzgerald wanted to sue a number of the people in the chain of command, including the President himself for damages. He wanted to sue for what he said was an illegal act and an illegal firing.
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- So the first question under procedural due process is, is there a deprivation of a life, liberty, or property interest that counts? And if the answer is no, that's the end of the matter. If however, the answer is yes, then you go back and ask, okay, what process is that person due? What do you get under due process of law? What does it mean? Ordinarily, it means, notice reasonably calculated to let you know what's going on and some sort of an opportunity to be heard.
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Government aid to religious schools 1 result
- Third, just as prior in his dissent, made the point that the law would invite he thought religious strife, that it would seriously entangle church and state and he thought promote dissension among religious groups. It would force people of different religions if they wanted to send their kids to the public schools, to basically have to send them to the religious schools, even if it wasn't necessarily their own faith, because those were the only schools that were available to be an alternative to the public schools, and he thought that the program would create this dissension and religious strife. Now, I don't know that that's actually happened in fact I don't think it has. But that was his prediction at the time and his worry. But the bottom line was the government's use of these vouchers was upheld. It was not an establishment violation.
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Advisory Opinions 1 result
- And remember the case we talked about early on, Martin v. Hunter's Lessee? Where one party was claiming land under a federal treaty? And one was claiming land under state law. If there's ever a real fight about treaties and their application, if somebody on one side is arguing that the treaty means this and somebody on the other side is saying that the treaty means something else, and something hangs in the balance where the court can give judgment for one side or the other, well, that would be different. But the court said it wasn't going to look at the treaties and just give an opinion because as with any other kind of advice, advice from your friends, advice from your family, we know what people do with advice. They ignore it. And courts don't want to be ignored. Courts want their judgments to bind the parties.
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The Power to Tax 1 result
- So it came up with this test. It does have a test for the validity of taxing. And it's essentially no test but you can judge it. Here it is. A taxing statute will be upheld as a taxing statute, are you ready, so long as it raises some revenue. And that test is so easy, so simple to satisfy that really taxing statutes are not even challenged because the test is so lenient. And the court has basically left the field and taking a very hands-off attitude in looking at revenue-raising statutes, taxing statutes. Again, a taxing statute will be upheld so long as it raises some revenue, any revenue. And it doesn't matter if deep down, no kidding around, the law is really about regulating or taxing out of existence some behavior.
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Display of Religious Symbols 1 result
- Now some professional wiseguys, otherwise known as law professors, have come out and referred to this as the Reindeer Rule. Apparently, if you sprinkle around enough secular items with religious items like reindeer, then your display can probably survive. So context is everything. And hence, the Reindeer Rule. Now history can also play a large part, too. Consider the recent case of American Legion v. American Humanist Association which was decided in 2019. There the court held 7-2 per Justice Alito that the Bladensburg Peace Cross erected in 1925 on public land in Prince George's County, Maryland as a memorial to World War 1 veterans did not violate the Establishment Clause.
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Discrimination against non-citizens 2 results
- ...jobs, government jobs, because be careful, we're not talking about employment in the private sector. Certain government jobs that because of their nature can be reserved to people who are in the most fundamental sense members of the polity, which is to say people who are citizens, not non-citizens. So, elected government positions. But also less obvious public-type positions like public school teacher, police officers, probation officers. The court has said that these kinds of jobs can be reserved for people who are citizens and the government can say no non-citizens. Now, the reason for that is because they either involve the inculcation of political values like teachers or are involved in a direct administration of the law like police officers. And because of the sensitivity of these jobs in that regard, and the persons who are subject to the supervision of people holding these jobs, non-citizens can be discriminated against by state and local governments and told...
- Now, note, the rule I'm talking about doesn't apply to just any government position, lesser kinds of positions, ones that don't either involve the inculcation of political values, like a teacher, or the direct administration of the law like a police officer. There was a case that went all the way to the Supreme Court involving notaries public. You know who those folks are. They have those stamps and they attest to your signature. Okay? But one state said that in order to be a notary public in that state, you have to be a citizen of the United States. Well, the court said that that was way, way too far down the food chain. It wasn't a policy-making position, it wasn't a particularly sensitive position, and therefore, states had to have a compelling justification to show why people had to be citizens to be notaries public. And although they tried, the court found the government's arguments unpersuasive.
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- ...that's because Congress can take broad action under its commerce powers. We know that it can speak in preempt state action but it can also speak and permit state action that would otherwise be prohibited. By way of an example, recall that we talked earlier about the case of Philadelphia v. New Jersey where the court struck down New Jersey's ban on the importation of out-of-state garbage. The very next day Congress could have passed a statute and said, "All states including New Jersey, all states or any state is free to ban the importation of out-of-state garbage into its borders." Would that then make it okay? Yes, yes it would. If Congress permitted the state to take a discriminatory action or to place an excessive burden on interstate commerce, that would be okay. Of course, we will require that Congress be clear in its language but if it were then the state law is valid and that's because Congress, when it acts under its affirmative commerce power, has the full power to...
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- Publication Date: November 8th, 2022
- Subject: Constitutional Law
- Series: Sum and Substance Audio
- Type: Audio
- Description: Sum & Substance Audio Series allows you to assimilate the essentials of the course at your convenience – listen while working, commuting, exercising or just relaxing. The information and ideas you struggled with previously are now brought to life simply and succinctly. The Audio provides Quick Reference Indexing, allowing you to quickly locate every topic in the entire recording. Also provided are exam tips to maximize your performance and Lifetime guarantee. These Audios are time saving, convenient and effective.