Constitutional Law I

General;

Possible sources of constitutional interpretation

Text

Intentions of rule-makers

Prior court decisions

Moral and political principles

Of american tradition

Of present american society

The correct ones

Standard of review- not in constitution, made by judges

Minimum rationality standard. decision affirmed if could have been made by at least one rational person. (concern for efficiency, trust people reviewing)

Substituted judgment standard- what would I have done in that case? (people can’t be trusted, judges are unelected and life tenured).

Federal Courts

• Is there a lawsuit brought in federal court? Justiciability (advisory, standing)
• Does the suit involve an advisory opinion?
• Not permitted. A decision must affect the outcome of the problem. Example letter to president.
• Does the P have standing? Three ways
• Conventional; Two elements
• Actual injury requirement-
• causation
• Causal connection between that injury and the allegedly unconstitutional (or otherwise illegal) act of govt. warth v. seldin
• Redressibility- substantial likelihood that judicial relief requested will prevent or redress the claimed injury. duke power co. v. Carolina..
• Ask what is the nature of relief sought?
• Injunctive-then P herself must be under a very significant threat or likelihood of actual injury in near future. (past exposure to illegal conduct not enough). so not just plan to travel there, but concrete plans to travel and tickets bought etc.
• Damages- then injury can be past exposure to illegal conduct.
• Citizen standing- doesn’t work on own.
• For fed. taxpayer-to show stake in outcome/standing, need;
• P is fed. taxpayer
• Congress has authorized federal spending for particular purpose in appropriations measure (v. general regulatory measure).
• Federal spending for that purpose would violate establishment clause of first amendment.

justiciability

• Is the claim moot?
• Actual controversy must exist at all stages of appellate or certiorari review and not simply at date the action is initiatied.
• Is the claim ripe?
• A claim must have matured or developed to a sufficient degree. Applied count by count to complaint. Timing
• Does the claim raise a political question? None allowed.
• Foreign relations
• Dates of duration of hostilities
• Validity of enactments
• Elements
• Some provision in constitution that says another branch has this and no judicial review
• Lack of judicially discoverable standards for resolving
• Impossibility of deciding case without policy determination
• Impossibility of deciding case without expressing disrespect to other branch of govt.
• Unusual need to stick to political question already made
• Potential for embarrassment if everybody in govt has different answers to one question.

• Is there an issue of the power of the federal courts to make a ruling on the constitutionality of governmental action?
• Power of judicial review.
• Marbury v. Madison; court has duty to regard constitution as supreme law of land, therefore can’t uphold statute that is unconstitutional, therefore power of review over congress.
• Some want broad interpretation – gives judiciary more power
• Some want narrow interpretation – gives judiciary less power
• Does it involve Supreme court review of a state court judgment?
• Power of supreme court to review state court decisions.
• Yes. necessary to promote uniformity of constitutional law among states. Also courts have right to protect against unconstitutional laws.
• Doctrine of adequate and independent state grounds.
• principle that issues of federal law resolved by state courts will not be reviewed by the SC if the state court’s judgment rests upon a “adequate and independent” state ground
• that means would the final decision be different if fed. question resolved differently.
• . if state court decision indicates clearly and expressly that it is alternatively based on bona fide separate, adequate, and independent grounds, we will not undertake to review the decision.2. If not clear, will accept that state court decided that way because it believed that fed. law required it. 3. if state court chooses to rely on fed. law (like any other precedent) then state court only has to say it.
• Does the problem involve congress’ restricting the subject matter jurisdiction of the lower federal courts or of the supreme court?
• Congressional control of federal court subject-matter jurisdiction.
• Constitution gave power to congress establishing judicial courts with such “exceptions” as congress shall make. Here congress has made exception and court has to abide. Maccardle
• But congress can’t tell court what to do about administrative stuff (issue of fact) and can’t intrude on other branches (decide how court reviews presidential decisions). Klein.
• Is there a lawsuit brought against the state or a state official in federal court?
• 11^th amendment and congress’ power to authorize suits against the states.
• first interpretation; (context of language in constitution) precludes only those cases brought against states by citizens of another state or of a foreign nation, where only ground for subject-matter Is diversity. Here-does not apply to claims brought against states under fed. law.
• Second interpretation; (literal reading of language in constitution) precludes all cases brought against states by citizens of another state or of a foreign nation. (because language says “any”).
• SC in alden v. maine says; 11^th amendment immunity comes from fundamental aspect of sovereignty NOT constitution.

Federal statute

· Does the problem involve a federal statute or regulation bearing directly or indirectly on interstate commerce?

o Interstate commerce clause and the necessary and proper clause.

o Interstate commerce;

§ Law; constitution gives power to regulate interstate commerce

§ Elements

· Regulation-any including prohibition

· Interstate-between states

· Commerce

o Channel- stuff that crosses

o Instrumentalities- things that help cross

o Things that affect interstate commerce (use Necessary and property cause)-

· Federal subject matter (within scope of congress)

o Primary purpose/ultimate objective-then ok

o Direct exercise of IC (express in statute)

§ Darby then ok even if primary purpose not fed. concern.

o Not direct- darby bootstrap – see necessary and proper

o Lopez says direct exercise is constitutional even if not aimed at fed. concerns.

o Morrison and Gonzales did not overrule darby of that point.

o

o Necessary and proper clause

§ Law; constitution gives congress power to do what is necessary and appropriate to carry out it’s delegated powers.

§ Applies when; not within congress’s enumerated powers,

· Is this regulatory means an appropriate way of accomplishing some objective relating to a fed. concern?

o What is regulatory means? Fed (no need for Nand P) non fed (use Nand P).

o End is legitimate/ask what is objective?

§ Tied to enumerated concern?

· Interstate commerce

· Immigration

· Raising money for armed forces

· Declaring war

· Etc.

o Lopez (+darby)- Substantial causal connection; If enumerated concern is commerce clause- test; is there a rational basis for congress to believe that this regulated activity will have a substantial effect on interstate commerce (for aggregate of class, not individual).

§ Factors;

· Substantial effect; either to increase or decrease rate something that crosses state lines.

· One factor could be legislative findings about effects upon IC of that activity

· Also could statute could contain jurisdictional requirement guaranteeing tie to IC

· Argument that if argument that “substantial factor” fits, makes def of substantial factor so broad it’s not a requirement/limitation anymore.

§ Lopez only applies to third category of commerce definition.

· Any appropriate means to accomplish end (doesn’t have to be best or necessary, just reasonable to fulfill).

o Test; rationale basis to believe that regulation is casually related to some fed. objective. McCollough

§ Standard of review

· minimum rationality standard of review.

§ When 2 sections of statute or two statutes.

· Darby bootstrap. Federal regulation of a nonfederal concern (subject matter) is constitutional because it is necessary and proper means of promoting or assisting the immediate regulatory impact of a particular exercise of an enumerated fed. power which has already been shown to be constitutional.

§ Tied to enumerated concern.

· Does the problem involve a federal statute or regulation purporting to be a tax bearing upon the private sector?

o Taxing power

§ Law; taxing clause authorizes only true taxes, not penalty levies.

· True tax has these things;

o Revenue raising purpose

o Raises at least some revenue

o Does not primarily seek to enforce non-tax regulations

o Does not explicitly tie incidence of tax to criminal activities

o Has a non-excessive rate

· Regulatory impact;

o Ok as long as tax is true tax. “actual congressional motivations behind true tax are not subject to judicial review.”

o

· Does the problem involve a federal spending measure directed to the private sector?

o spending power is limited by enumerated powers of congress.

§ Spending has to be for general welfare.

§ Must state conditions unambiguously

§ Conditions must be realsoanbley related to purpose of expenditure.

§ Conditions not coercive.

§ expansive interpretation (buckley)

o congress can regulate other areas, by requiring entities that accept govt. money to act in certain manner.

· Does the problem involve federal control of money, naturalization, aliens, admirality issues, copyright, or patents?

o Fiscal power, -provide for same currency, having uniform legal value in all states…

o naturalization power,-congress has exclusive power

o power to exclude aliens,- full power

o the admiralty power, -to legislate with respect to events or transactions occurring on a navigable waters of the US, even if not related to interstate commerce.

o and the copyright and patent powers.- fine.

· Does the problem involve a potential conflict between a federal law, on the one hand, and a state or local law on the other?

o Federal preemption. See state section.

· Does the problem involve the US dealing with at least one other nation?

o Foreign affairs power. See more then one branch.

· Does the problem involve federal control of property owned by the US?

o Property power. See more then one branch.

·

State

· Does the problem involve federal regulation of state governmental activities, either through direct regulation or conditions tied to receipt of federal funds?

o State immunity from federal regulation-

§ Apply if statute governs public as well as private;

· Only immunity that states have from fed. regulation is to protect them against procedural irregulatrities tin national political process. Not clear (hodel says ok if fed. regulation addresses matters that are clearly matters of state sovereignity)

§ Apply if statute requires legislatures to act/govern in a certain way.

· Congress can’t direct states to regulate in particular field or particular way, but can create incentives for states to regulate.

· Is there a lawsuit brought against the state or a state official in federal court?

o 11^th amendment and congress’ power to authorize suits against the states. See fed. court section.

· Does the problem involve a state or local regulation burdening interstate commerce or non-residents?

o Dormant interstate commerce clause

§ Does a state regulation affect interstate commerce?

§ Is there federal preemption (see last question in state)?

§ Is state or local govt acting as market regulator or market participant?

· Participant when enters market as buyer, seller, producer or customer. Subsidization of private businesses is example of state acting as buyer (general) then ok,

o Possible Exceptions

§ Hoarding natural resources

§ Reaching outside state’s own immediate market

§ +congress can override.

o Limitations; market participant doctrine must be limited to allowing state to impose burdens on commerce within market in which it participates. South central timber case.

· Regulator, example; tax credits and tax exemptions, then no exception and keep going with analysis.

§ Does the statute on its face seem non-discriminatory?

· Legitimate local public interest? And

· Effects on interstate commerce incidental? Then

· Challenger must prove that; quantity of aggregate burdens upon interstate commerce is very large and that quantity of aggregate benefits to accruing to state’s interest is very small. (in other words large difference).

· Illegitimate, unconstitutional, or unimportant local factor goes against state case.

· Existence of less burdensome alternative is factor against state.

§ Does the statute clearly discriminate against out of state interests? Court says that reciprocity agreements are facially discriminatory. Two tests from two cases, use hunt.

· HUNT v. Washington apple, says;

o State must justify it in terms of local benefits flowing from the statute and unavailability of nondiscriminatory alternatives.

o Elements (burden on state)

§ State’s purpose is legitimate (not protectionist)

§ Sum of local benefits is greater then aggregate burdens upon interstate commerce

§ No nondiscriminatory alternatives adequate to preserve local interests at stake.

· New energy co. of Indiana v. limbach

o Looser test that requires only;

o Legitimate govt. objective and

o necessary means.

o But even when uses this test court weighs factors anyway.

o Finally maybe congress has delegated the state/local some of its interstate commerce power.- cooley says (and maine qualified) that court is supposed to accept congressional delegation of power to state and local. But fed statute would have to include language of this sort;

§ “…in violation of any law or regulation of any state even those laws and regulations which would otherwise violate supreme court’s dormant interstate commerce clause principles”.

o Privileges and immunities of article 4.

§ Even if ok under commerce, it will violate this clause if

· It infringes on a fundamental interest

o Promote development as single nation

§ Owning property

§ Having a private sector job

§ Practicing law etc.

· Without substantial justification; elements of ok justification.

o Substantial

o Nonresidents are peculiar source of evil addressed

o State measure narrowly tailored to meet problem.

· Does the problem involve state or local regulation of alcohol?

o Section 2 of 21^st amendment

§ Law; Prohibits “transportation or importation into any state for delivery or use therein of intoxicating liquors in violation of local laws”. This gives states broader regulator power in this area. States have substantial control over whether to permit importation or sale of liquor and how to structure its distribution.

§ Exceptions;

· Excise tax exemptions for local liquor not permitted.

§ Purpose of law; aim of temperance or “retard consumption of liquor within their boarders”.

§ Hawaii case tax on liquor exempted kind made in Hawaii, held invalid.

§ Brown case, effect was wholesaler couldn’t change price across country; ONE STATE MAY NOT PROJECT ITS LEGISLATION INTO OTHER STATES.

· Does the problem involve a potential conflict between a federal law, on the one hand, and a state or local law on the other?

o When there is a fed. law that conflicts;

§ Federal preemption and Federal law prevails based on supremacy clause.

o When there is not a fed. law that conflicts. 3 theories

§ Total exclusiveness

· Grant of power to congress was totally exclusive of any retained power over interstate commerce. States can’t regulate at all.

§ Concurrent powers

· States may regulate interstate commerce with respect to any particular subject matter until congress enacts law that says otherwise (or directly conflicts).

§ Selective exclusiveness

· Some state and local regulations are permissible, but others are not, supreme court draws line.

· SC adopted this one and uses it.

More then one branch

· Is there an actual or potential conflict between two or more branches of the federal govt?

o Separation of powers

§ Question of president’s power to determine national policy?

§ Question of congressional interference with presidential prerogatives?

§ Issue of presidential immunity?

· Does the problem involve the US dealing with at least one other nation?

o Foreign affairs power

· Does the problem involve federal control of property owned by the US?

o Property power.

State courts have power to rule on fed. constitutional law. and us supreme court can review state court resolution of fed. issue. US supreme court can review state court resolution of fed. issue.