Conlaw I with Gulasekaram 2011

ConLaw I with Gulasekaram 2011

Threshold Questions
Judicial Review (Art. III §2 and Art. VI, Marbury) / SCOTUS can declare federal and state acts unconstitutional
Jurisdiction (Art. III §2 Exceptions Cl.) / Congress can take away appellate Jx over certain cases
Justiciability
(Art. III §2 Case and Controversy Clause)
Note:
Advisory Opinions / Standing / Constitutional Requirements

Personal injury
Causation and
Redressability

/ Prudential Requirements

No 3rd party claims
No generalized grievances and
Not outside “zone of interest”

Mootness / Too late. Exceptions: 1) consistently evades review, 2) voluntary cessation, and 3) continuing consequences
Ripeness / Too soon. Exception: pre-enforcement review of criminal laws
Political Qs / Political discretionary act or non-political ministerial act?
Comity / Vertical SOP
Practicality / Need power of purse and/or sword to enforce decisions
Limits on Federal Legislative Power
Commerce Power
(Art. 1 §8 + Necessary and Proper Cl.)
*10th and 11th Am: can’t single out states and tell them what to do or invade Zone of Activities /

Channel,
Instrumentalities, or
Activities = must be RB to find regulated activity substantially affects interstate commerce (can aggregate local if economic in nature or noneconomic if necessary to broader scheme)

Tax and Spending Power (Doletest)
(Art. 1 §8 + Necessary and Proper Cl.) /

General welfare,
Clear and unambiguous statement of condition,
Germane, and
No other constitutional bar
Coda = no coercion

Foreign Affairs Powers /

War (Art. 1 §8 + Necessary and Proper Cl.)
Treaty (Article VI Supremacy Cl. + Necessary and Proper Cl.)

Civil Rights Enforcement Power
(13th-15th Enforcement Cl. + Nec. and Proper Cl.) / Can regulate state action/actor by congruent and proportional act for equal protection issue already defined by SCOTUS
Limits on Federal Executive Power
Enumerated Powers / See Article II
Implied Powers
(Youngstown con.  also other opinions?) /

Maximum power where Congress has spoken for P
Zone of twilight where Congress has not spoken (see tradition)
Minimum power where Congress has spoken against P

Limits on State Power
Preemption
(Supremacy Clause of Article VI) /

Express,
Implied (conflict or field), or
Constitutional/federal exclusivity

Dormant Commerce Cl.
(Negative Implications of CC in Art. 1 §8) /

Discriminatory laws (facially or in purpose/effect) = SS
Exceptions: 1) market participant, 2) congressional approval
Nondiscriminatory laws but IC burden = Pikebalancing test

Art. IV §2 Privileges and Immunities Cl. / Discrimination against out-of-state citizens involving a fundamental right must survive intermediate scrutiny (and out-of-state citizens must be a “peculiar” evil)
14th Amendment Privileges or Immunities Cl. / At least supports right to travel (Saenz)
Incorporation (14th Amendment) / Selective (majority) or total
Substantive Due Process
(5th limits feds and 14th limits states)
Economic Liberty / Not a fundamental right, so RB (Lee Optical)
Personal Liberty (aka right to privacy)
(family, marriage, sexuality, reproduction, & death) /

Is there a fundamental right? If no, then RB.
See tradition, values and competency (Griswold con.)
If yes, then was it infringed? If no, then RB.
If yes, then SS
Undue burden for abortion (Casey)
Heightened scrutiny for sexuality (Lawrence)

------FEDERALJUDICIAL POWER------

Judicial Review (Marbury v. Madison = Constitution means what SCOTUS says it means)
= SCOTUS’ power to interpret the Constitution and declare a government act unconstitutional
Authority
Art. III §2(Marbury = if SCOTUS can hear cases arising under the Constitution, it must decide what law applies and when two laws conflict it must be able to pick one) and
Art.VI Supremacy Clause and Oath(Marbury = the judicial oath requires SCOTUS to uphold the Constitution, which is the supreme law of the land, so it must trump conflicting statutes)
The other branches take the same oath and have a chance to decide, but the judiciary gets to decide last (inherent in concept of SOP)
History
1803: can declare a federal act unconstitutional(Marbury= Congress cannot modify SCOTUS’ original Jx because Art. III §2 is not a floor but exhaustive (limited Jx). Since the Constitution trumps under the Supremacy Clause, the Judiciary Act of 1789 purporting to give SCOTUS original Jx over writs of mandamus is unconstitutional so no power to force Madison to deliver required commission to Marbury)
1816: can review judgments of state courts on federal questions(Martin = Art. III §2 limits appellate power to types of cases, not particular courts, and allows SCOTUS to hear cases “arising under”)
State courts are still supreme on issues of state law
1821: can declare a state act unconstitutional(Cohens)
1958: once SCOTUS announces a constitutional ruling it is applicable everywhere(Cooper= states cannot ignore Brown because they have taken oath under Art. VI to uphold the Constitution and Brown is what SCOTUS has decided the Constitution says about school segregation)
Policies
Balanced co-equal branches (purse, sword, and judicial review)
Ppl who write/enforce laws shouldn’t be the same who decide constitutionality
Judiciary is not as subject to politics and pressures of the moment
Undemocratic? Possibly, but it’s so engrained now. Can always amend!
Congressional Restrictions
Judicial exclusivity in constitutional interpretation
Congress cannot supersede a constitutional decision legislatively (Dickerson= Congress’ attempt to overrule SCOTUS’ glossy constitutional interpretation in Miranda by statute is unconstitutional)
So how can we overturn a ruling by SCOTUS?
Amending the Constitution under Art. V (very difficult)
SCOTUS can reverse itself
But Congress can take away appellate Jx over certain cases under Art. III §2 Exceptions Clause(Ex Parte McCardle= Congress gave SCOTUS statutory appellate Jx over habeas corpus cases. A military prisoner appealed his case on this basis, but Congress repealed SCOTUS’ Jx before the case was heard so SCOTUS has no Jx and could not proceed at all b/c it’s as if the act never existed)
Modern example = Marriage Protection Act with clause that strips SCOTUS of appellate Jx over cases under the act
Issue-specific Jx-stripping statutes have never been tested. Does this interfere with the essential function of the Court as implied by the Constitution?
Effectively means no federal judicial review (serious due process issue) since:
Congress can strip Jx from lower courts (b/c made them Art. III §1) and
SCOTUS usually declines to exercise original Jx power under Art. III §2
Justiciability doctrines (all derived from interpreting Article III §2 Case & Controversy Clause)
= Constitutional basis for SCOTUS to restrict own power by determining which cases to hear
Affirmative grant in Art. III §2 implies that it doesn’t extend to anything but case/contro.
Threshold Questions
None are about the merits of the case, but they do have substantive effects
Advisory Opinions (no dispute between adverse litigants and decision will not affect change)
= opinions on the legality of executive or legislative action that do not involve a “case”
Some states allow it, but SCOTUS doesn’t because:
There’s no case as required by Art. III §2 (nonadversarial)
SCOTUS only wants to issue opinions that affect injuries/change rights or duties
Even if it looks constitutional there could be a set of facts where it isn’t, so an advisory opinion wouldn’t be a guarantee
Too broad—just b/c unconstitutional doesn’t mean anyone would challenge it
Instead, use declaratory judgments (28 USC 2201) to ask for a declaration of rights after the law’s passage but before enforcement
Don’t confuse with certification questions (ex. 9th Cir. asking Cal. to rule on issue of California law, which Cal. can decide to do or not, or answer any question it wants)
Standing (mandatory Jx component that can be raised at any time)
= there is a case or controversy, but are the plaintiffs the right people to be in court?
Policy = promotes efficiency and SOP (fewer suits) and accuracy (specific controversy)
Requirements
Personal injury-in-fact
Concrete and particularized (Sierra Club= walk through the park!)
Ex. bodily, $, lost opportunity to participate in race neutrality, aesthetic offenses, vote dilution… not just ideology (Florida Health Care Case = mere existence of state statute against fed health care triggers duty of state to defend it)
Imminent (Lujan = intent to return to Egypt to see wildlife does not support imminent injury…should have bought a plane ticket!)(Lyons= can’t show likelihood that you will be choked by cops again, so can only sue for injuries and not injunction) (Michigan Health Care Case = individuals’ present injury of being compelled to reorganize affairs)
Associational standing ok for organizations if any of its members could have sued and the claim is germane to organization’s purpose
Causation
Injury fairly traceable to D (Allen = claim that IRS allowing tax-exempt status to private schools is hampering public schools’ desegregation too speculative and indirect, relying on actions of 3rd parties)
Redressability
Will P get relief from judicial decree? (Massachusetts = risk of catastrophic harm to Mass. from global warming is remote but real—already some coast gone--and would be reduced to some extent by enforcing the Clean Air Act) (Lujan = no guarantee funding agencies will follow Sec. of Interior’s orders and this agency only supports a fraction of funding for animal projects abroad so could still go extinct)
Overlaps with causation as a practical matter (simply no advisory opinions?)
No 3rd party claims
Exception = if interests are so closely aligned (Massachusetts= state can represent interest of its residents) (Craig = beer seller can challenge gender differentiated drinking age even though he can buy beer himself)
No generalized grievances
Can’t be an abstract question of wide public significance
If you’re only suing as a citizen/taxpayer, then lobby Congress
Exception = Establishment Clause of First Amendment
No suits outside “Zone of Interests” (part of group intended to benefit from law)
Not demanding & Congress can expand (Akins = Congress gave voters standing to challenge failure of FEC to treat AIPAC as a PAC subject to disclosure requirements)
Policies
Don’t want intermeddlers, want someone who actually has stake in the outcome
But then groups just go out and find nominal plaintiffs
Mootness
= Too late! It’s no longer a case or controversy b/c circumstances have changed
Ex. a party died or a law changed
Exceptions
Consistently evades judicial review because of timing (ex. abortion won’t make it through litigation in time)
D’s voluntary cessation, where court wants to prevent D from starting again
Continuing/collateral consequences (Ex. criminal conviction where you’ve already served your time but you want your reputation and civil liberties back)
Ripeness (often about declaratory judgments)
= Too soon! It’s not yet a case or controversy (even if you have standing)
Policy
Court wants to know how it develops and what the facts are (similar to advisory opinions, except these are not asked for by legislatures) BUT SEE: (Michigan Health Care Case = fed has interest in knowing now and since purely legal issue which would not be clarified by further factual development, it is ripe)
Exception: undue hardship (ex. pre-enforcement review available for criminal laws)
Political Question Doctrine (first in Marbury)
= A question that is committed to the unreviewable discretion of another branch (SOP)
Not about relationship with states (Baker= can review EPC challenge to state apportionment system since Art. IV §4 Guaranty Clause is not implicated (if it was then political QS!) and mere fact it’s about a political right does not mean it’s a political question)

Political Discretionary Acts / Non-Political Ministerial Acts
Non-reviewable / Reviewable
If executive is granted discretion/choice by Constitution's text/structure (committed solely to one branch's discretion and it's a discretionary act where there are no metrics to judge the act by) / Executive simply must do as part of the job. Non-discretionary/textual limitations
Ex. veto power and appointment power / Ex. warrants before wiretaps

Questions to ask (Baker):
Is it textually committed to discretion of a branch other than judiciary? (Powell = House refused to sit Powell for financial impropriety because of the Art. I §5 Qualifications Clause, but these qualifications are limited to those enumerated so judicial review and Congress must seat him. QS is whether C has the power, not how power should be exercised)
Is there a judicially manageable standard (is the court competent to decide political considerations)? (Nixon= no review for judicial impeachment b/c important check)
Will breed disrespect for the court or show its impotence?
Will show disrespect for co-equal branches? (Goldwater= treaty disputes are btwn co-equal branches who can protect themselves through political process. Judiciary not mediator!)
Is there potential for embarrassing the nation (foreignpolicy = politicalb/c need finality)

State/Comity Based Limitations
State supreme courts are final interpreters of the meaning of state law and constitutions
Federal courts will not review state court decisions when there are “adequate and independent” state grounds for decision (Long= SCOTUS requires a “plain statement” that a case was decided solely upon state law grounds, or else it has Jx)
Practical Constraints
= Since a judicial decision alone is not enough to bring about rule of law you need states willing to follow it or an executive willing to use force or a legislature willing to use money to make them
Constitutional constraints
Judicial selection: the nomination and confirmation process Art. II §2
Impeachment Art. II §4
Court-packing Art. III §2 (Congress has power to set size and budget)
Court-stripping Art. III §2 Exceptions Clause
Amendments Art. V

------FEDERALLEGISLATIVE POWER------

Enumerated powers under Article I § 8 (not general, unenumerated police powers like the states)

Necessary and Proper Clause (Art. 1 §8)
= A methodology for Congress to exercise its enumerated powers.
Not an independent enumerated power! Can only use it in conjunction with something else in Article 8
Should be read broadly as “appropriate” and not as “essential.”
Congress’ own judgment deserves deference as long as it adopts means which tend directly to the execution of enumerated powers and are appropriate and plainly adapted to achieving legitimate needs (McCulloch v. Maryland= Congress can incorporate a bank because it is in relation to enumerated spending power. And Maryland can’t tax it b/c power to tax is power to destroy and states have no power to burden federal government or federal constitutional laws because the Constitution is supreme and that undermines the Union by indirectly taxing other states who had no representation to the process)
Suggests by negative implication that the federal government can’t aggrandize itself at the expense of the states
Where RB (default scrutiny) comes from?
Commerce Clause over IC and Foreign(Art. 1 §8 + Necessary and Proper Clause)
Justification for most laws (regulatory, civil rights, and criminal)

Internal Constraints
Can currently regulate 3 broad categories (Lopez):
Channels of interstate commerce, like highways
Instrumentalities of interstate commerce that actually move across state lines (people or things) (ex. Heart of Atlanta = can proscribe racial discrimination in public accommodations along interstate highways)
Activities having a substantial relation to IC (even though wholly intrastate)
Test: Congress needs a RB (w/ findings! (Lopez)) that activity substantially affects interstate commerce(Raich= can regulate noneconomic intrastate activities (articles for home use) if necessary for a broader economic scheme (b/c fungible))
Purely local activities can be aggregated to meet this test, but only if they are economic in nature (Morrison)
For enumerated powers to mean something there must be limits and national/local distinction! Can’t be too attenuated.
Regulates activity, never inactivity. (Florida Health Care Case) But why not require affirmative conduct if necessary and proper?
External constraints (always constraints on Congress, but come up mostly in CC context)
10th Amendment (2 Qs: is Act invading Zone of Activity and is it commandeering?)
Normative questions:
Substantive: should the matter be left to the state or federal government?
Institutional: should judicial intervention or the political process resolve these questions? After all, Congress is made up of state representatives.
2 interpretations:
Express Reminder/Truism (doesn’t actually do anything) (Darby)
Congress acts only if they have the authority, but if they do then they can override state prerogatives
Zone of Activities (substantive)
Reserves methods solely for state control (Garcia). Congress cannot violate such a zone even if Art. I §8 allows it (prevent tyranny)
What is within the sole province of the states?
Original powers of states (before federal government) reserved by the 10th Amendment (US Term Limits= power to add qualifications created by the existence of the national government)
Powers delegated by the Constitution to the states
Not the power to burden the union or other states(US Term Limits= adding term limits dumbs Congress and hurts the country)
Congress can’t commandeer (aka coerce into action) state legislative process
Limits on methods of regulation, not subject matter
Not limits on subject matter since effort to define traditional gov. functions that are immune from fed regulation is unworkable (Garcia = political process should sort out whether municipal transit authority is subject to minimum wage laws, and it has by this law being passed. Ok to use CC to regulate state employees! Oerruled National League of Cities)
Can’t:
Single out states(NY = tax on bottled water from state-owned springs is ok b/c not a source of revenue capable of being earned only by a state)
And tell them exactly what to do(Printz= can’t issue directives requiring states to address problems through legislation or command state officers to enforce federal regulatory programs, here can’t make local cops perform federal gun background checks)
Have to offer real choices that would be ok to offer alone (NY = choice between taking title to waste and being sued as the owner of the waste is not a choice because both coerce state governments into service of feds, but ok to offer choice between regulating w/out specifics and being preempted by ok fed regs.)
Can regulate states as private actors along with individuals
State autonomy is not violated if state is regulated as a private actor/the law is generally applicable (Reno= ok to limit sales of databases since regulating states as commercial actors, even though de facto it’s just the DMV)
Policies
States should be autonomous / serve as laboratories of democracy
People can vote with their feet
The federal gov. protects basic rights against tyranny of local majorities
Help w/ problem of neg. externalities (ex. pollution) and free riders
11th Amendment (enacted to overruleChisholmwhich allowed SC citizen to sue GA)
Case study: the Health Care Act
Constitutional: health care market is special where inactivity is really just putting off an activity, and regulating this is essential to a larger regulatory scheme
Not constitutional: Commerce Clause has only ever extended to activities, and not buying health insurance is inactivity.