Constitutional Law Final Outline

Judicial Power Art. III 2, Clause 2

Federal The Supreme Court has final review over issues of constitutionality The Supreme Court can declare laws invalid when they are in conflict with the constitution Congress is without the power to expand Supreme Court jurisdiction beyond what the constitution allows The concept of Judicial Review - The idea that it is the Judiciary, and not Congress, which has the authority and the duty to review the constitutionality of statutes passed by congress, and to invalidate those statutes if they violate the Constitution Seminal Case Marbury v. Madison There is judicial review of the constitutionality of actions of the Congress and Executive, not only judicial review, includes ability to be the final arbiter The Supreme Court has the Power TO SAY WHAT THE LAW IS. The Court has the duty to grant review, writ of certiorari, on important issues that raises question about what the constitution set out to accomplish. This power helps maintain uniformity between the states and ensures that each state is clear about what the law is. This power also ensures that the constitution is uniformly interpreted and remains constructive. This power stems from Article III. Court divided its analysis into several parts The court decreed that Marbury was entitled to the commission because it became a vested legal right when it was signed by the President and sealed by Secretary of State The court held that the law should afford Marbury a remedy for the deprivation of his right The court concluded that ordinarily a writ of mandamus (order the Executive to deliver the commission) would be an appropriate remedy for the deprivation Issue remained whether Marbury was entitled to invoke the original jurisdiction of the Supreme Court An act of the legislature repugnant to the constitution is void It is emphatically the province and duty of the judicial department to say what the law is Concept of judicial review if a law be in opposition to the constitution: if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the constitution, disregarding the law: the court must determine which of these conflicting rules governs the case. This is the very essence of judicial duty. State Judicial Review When the Supreme Court exercises jurisdiction over the state it is appellate jurisdiction The Supreme Courts appellate review of state court judgments is limited to federal questions The Supreme Court may determine whether a state court has reached a decision that is not in conformity w/ the constitution, but it may NOT review state court decisions regarding state law Martin v. Hunters Lessee

 Supreme court decided it had the power to review a judgment of a Virginia state court when federal constitutional issues are involved Court reasoned that Framers intended for the federal courts to exercise uniform appellate jurisdiction over both federal cases and state cases Expanded judicial review to state cases Uniformity: it is necessary to have a uniform interpretation of the Constitution, Fed Laws, & Treatises across the nation in order to avoid differing interpretations among the States. *** Keep in mind that while the Court may not answer political questions it may enforce Treaties Trail of tears handout Expansion of Judicial Review Cooper v. Aaron Involved Brown v. Board of Education, prohibiting school segregation Court rejected notion that desegregation could be postponed by the States relying on the supremacy clause, the court concluded that the Constitution is the supreme law of the land Cooper expands Marbury to the point that the Supreme Courts interpretation of the law stands as the law of the land (interpretation = law) Limits on Supreme Court Jurisdiction Marbury reveals that it is limited to cases in which ambassadors or other public ministers or consuls or vice counsels of foreign states are parties; cases b/w the US and a state; and cases brought by a state against citizens or another state or aliens, other cases only heard by appeal or certiorari Court treats mandatory appellate jurisdiction as discretionary Justices try to avoid deciding constitutional issues unnecessarily Congressional Control Over Jurisdiction of the Courts Constitution provides that Congress has the right to control the jurisdiction of the Supreme Court and the lower federal courts Article III, 2, cl. 2 Ex Parte McCardle Court upheld Congress attempt to deprive the court of jurisdiction refused to inquire into their motives the power to make exceptions is given by express words and must be given effect When jurisdiction ceases to exist, the court can only announce the fact and dismiss the cause US v. Klein somewhat overrule McCardle Congress cannot meddle w/ substantive judicial outcomes through its procedural control power The issue is still unresolved some read exceptions clause literally, others argue it cannot destroy essential role of the Supreme Court Justiciability Term used to describe the prerequisites to a federal courts exercise of judicial power

 Federal courts are courts of limited jurisdiction, constitution requires they can only hear cases and controversies Political Questions Federal courts precluded from hearing political questions. Applies when other branches are intended to resolve issues by the Constitution, as well as when other branches are more to resolve issues than the judiciary In general, court unwilling to consider legality or constitutionality of combat operations. The court has treated such cases as non-justiciable because control of foreign policy is textually granted to Congress and the President Also unwilling to involve itself in disputes regarding foreign and more foreign affairs issues Seminal case Baker v. Carr Case dealt w/ misapportionment in Tennessee, did not re-apportion districts after dramatic changes in the population, votes were worth much more in rural counties as opposed to urban areas Court concluded that a Tennessee case was justiciable because the subject was: Committed by the Constitution to another branch of government and Judicially manageable standards were available under the Equal Protection Clause Guaranty Clause v. Equal Protection Clause guaranty clause guarantees a republican form of government to the people in the states Is an equality decision much more so than a Republican form of government decision 14th amendment says no State shall, not the Federal Government shall not, your denying equal protection by denying equal vote representation Factors to determine whether there is a political question: 1) Commitment to another branch: A textually demonstrable constitutional commitment of the issue to a coordinate political question 2) Lack of standards: A lack of judicially discoverable and manageable standards for resolving the issue focused on what the judiciary can do 3) Unsuitable policy determination: The impossibility of deciding *the issue+ without an initial policy determination of a kind clearly for non-judicial discretion. 4) Lack of respect for other branches: The impossibility of a courts undertaking independent resolution without expressing lack of the respect due co-ordinate branches of government. 5) Political decisions already made: An unusual need for unquestioning adherence to a political decision already made. 6) Multiple pronouncements: The potential for embarrassment from multifarious pronouncements by various departments on one question. Court presented examples of what are generally considered political questions Foreign Relations, the court cannot enter into treaties but it can resolve cases where a state law violates a Fed treaty i.e. Martin v. Hunter Lessee. Dates of duration of Hostilities, Court cannot declare war to determine when to end a hostile confrontation. However it can take into consideration the state of the country during

this time and set certain laws to protect the citizens from the evils that arise out of the war i.e. enforcing public programs that lower the cost of housing during times of war. Validity of enactment, it cannot decide how long a proposed amendment to the Constitution should remain open to ratification. The Status of Indian Tribes - It cannot answer whether a tribe should be recognized as an Indian Tribe. Republican Form of Government - Court cannot question the structure of the government.

Case or Controversy Requirement Most important limitation on judicial power - this limitation has spawned multiple restrictions on the scope of judicial authority including the prohibition against advisory opinions, the ripeness and mootness doctrines, and the standing requirement Federal courts may only hear cases and controversies, meaning concrete issues only Policy: One justification for the case or controversy requirement is that it maintains the separation of powers by preventing the judiciary from performing legislative or executive functions A case is defined as a suit instituted according to the regular course of judicial procedures - Marbury v. Madison Muskrat v. United States for a controversy to exist the parties must have adverse interests Prohibition Against Advisory Opinions the case or controversy requirement has led courts to avoid acting as an advisor to the executive or legislative branches Prohibition against advisory opinions is based on the separation of powers, scared Court would just use their own opinions to affect legislation Non-advisory opinions based on the adversarial system, plaintiff and defendant have to have an interest in the outcome, and will advocate in a strong way for the outcome and this is the underlying principle behind the prohibition of advisory opinions Ripeness Doctrine case or controversy requirement also precludes courts from hearing cases that are not ripe for consideration A case that is brought too early is not ripe if it prematurely involves the court in a matter Typically what is wrong in ripeness is nobody has suffered any harm yet United Public v. Mitchell court held case was not ripe because it was stated in vague terms, and did not clearly indicate what the plaintiffs planned to do hypothetical threat is not enough Case concerning Civil Service Workers being prohibited from participating politically, challenged on grounds of free speech being violated Mitchell had not yet violated the Hatch Act, and this is why the court felt the case was not ripe he had not suffered any harm just because he wanted to do it in the future, does not make it ripe, court felt they were asking for an advisory opinion Until act was violated, Court felt they could not decide Abbott Laboratories v. Gardner - Case brought by pharmaceutical companies regarding an act designed to regulate the sale of drugs The court gave us a new test for the ripeness doctrine 2 factors

 The fitness of the court to make a judicial decision The hardship to the parties if the court withholds a decision Court concludes that the case was fit to be heard by the course because a future violation was guaranteed based on the burden that was being placed on the pharmaceutical companies to change all of their practices Distinction b/w United and Abbot Mitchell did not know of what he wanted to do, the pharmaceutical companies knew what they wanted to do, only way to reconcile the 2 cases Poe v Ullman A couple, one woman and their OB/GYN all joined as plaintiffs and alleged that Connecticuts anti-contraception law deprived them of life and liberty without due process Where a statute has a long history of non-enforcement and the statute will not likely be enforced, the case is not ripe judicial determination Court refused to hear the case on appeal, on the ground that the statute had been on the books for 80 yrs with only one reported prosecution and that there was thus not the requisite clear threat of prosecution Mootness Doctrine involves a claim that was ripe at one point, and is now moot because it no longer involves a case or controversy Parties are too late, and the court no longer will hear an abstract agreement A case is moot if it raised a justiciable controversy at the time the complaint was filed, but events occurring after the filing have deprived the litigant of an ongoing stake in the controversy Exceptions to why a moot case will be heard: Capable of repetition, yet evading review ex. Roe v. Wade Defunis v. Odegaard Law student sues because affirmative action barred him from getting into law school, discriminatory claim equal protection under the 14th amendment; the first reverse discrimination case to get up to the Supreme Court Became moot at the Supreme Court because he was in his 2nd to last term at school, was a case or controversy all the way up Mootness can arise at any time, any case that is settled becomes moot Court did not want to decide this social issue, used mootness as a technical device to avoid it In procedural cases we must look at what goes on underneath to lead to this actual result; a lot of the time the Courts feel the issue is too hot to touch Standing - involves two major aspects case or controversy and prudential concerns Congress can grant standing where the issue is a prudential one Question is whether the party bringing the action is suffering sufficient injury to have a meaningful stake in the outcome of the litigation Focuses on whether a plaintiff has a sufficient interest in the litigation to allow her to litigate the issues

 Standing also involves a prudential restraint even though a plaintiff has standing , level of injury may be so low that Court thinks it is reasonable to deny standing as a matter of discretion they refuse to hear the case The basic constitutional requirements for standing are: The plaintiff be injured The injury be caused by the defendant The injury be redressable by the court Important to note the different power structures in standing (the people, the government and the courts) Must look at the relationship b/w the person looking to assert standing, and the person they are in conflict with Warth v. Seldin Issue regarding a zoning ordinance that excluded low to moderately priced housing Petitioners included residents city, construction companies, developers, governing bodies Court dismissed each claim for lack of standing. Minorities and poor could not show that they would be able to move into the area in the absence of the ordinance. No actual injury to plaintiff Tax-payers in adjacent community could not prove injury caused by defendant because the taxes were raised by their own municipality not by Penfield. Injury not caused by defendant Building contractors could not show that but for the ordinance they had a specific project that was precluded by the statute. No actual injury by plaintiff A federal courts jurisdiction can only be invoked when the plaintiff himself has suffered some threatened or actual injury resulting from the putatively illegal action; Plaintiff must show that he has a personal stake in the outcome of the controversy. Prudential limitations on standing (discretionary) When the plaintiff asserts a generalized grievance shared by a large class of citizens, that harm alone normally does not warrant an exercise of jurisdiction. The plaintiff must assert his own legal rights or interests and cannot base the claim on the legal rights or interests of a third party. (see third party standing) Policy: Prudential rules of standing serve to limit the role of courts in resolving public disputes. Exception to prudential limitation - Congress passing a statute expressly or impliedly creating a right of action and thus standing. In cases where a statute has created a legal right the invasion of which creates standing, the standing question is whether the constitutional or statutory provision on which the claim rests properly can be understood as granting persons in the plaintiffs position a right to judicial relief Congress can give standing when the standing rule are prudential, not when someone does not satisfy case or controversy requirements Lujan v. Defenders of Wildlife

Issue regarding endangered species act being amended by government agency to exclude foreign animal The harm in this case was to the environment, to wildlife, not to an individual Court felt there was no standing b/c there was no injury in fact, there was no case or controversy b/c there was no identified, and particularized injury Important b/c Congress can try to give standing if they want, but will still have to meet the case and controversy requirement The problem w/ the congressional grant of standing of standing in this case has to do w/ the separation of powers, congress cannot abdicate their own responsibilities to the court If they want to enforce it, they can do so, but just cannot state that anyone can sue Congress can amend their laws, if they really feel there is an issue they can fix it, the burden to fix it should not be on the courts rd 3 Party Standing general rule is a group can assert the interests of its members most of the time i.e. trade groups which represent the interests of its members Rule came about b/c of Civil Rights, NAACP v. Alabama Alabama tried to get member list of NAACP, standing issue, how could NAACP sue for nondisclosure of its members if there was no injury to itself? Court held that NAACP could protect the privacy of its members, court wanted to protect the members from violence Another type of relationship is doctor/patient Taxpayer and Citizenship Standing in general, the rule is you cannot sue just b/c you are a taxpayer or citizen must still have a particularized injury but there are some exceptions Flast v. Cohen Government is subsidizing religion, violating establishment clause of 1st amendment, separation b/w church and state Issue is who has standing to challenge this in court plaintiff tried to say it was his taxpayer standing Court held that if you bring an establishment clause claim, and you are a taxpayer whos taxes are being used to pay for what you are against, then you do have a particularized injury to have standing Exception was created b/c it was a specific constitutional limitation, government cannot spend money on religion Exception only applies in cases of Congressional appropriations must directly take money out of your pocket Exam tip make a distinction b/w analysis and how you present your issue Analysis Standing Spot the issue Identify the plaintiff by class or status i.e. developer, citizen, etc. Relationship of the plaintiff to the defendant Actual Injury Look for the rights claimed i.e. is it legal protection right? Is it a statutory right?

Legal injury is it based on the constitution, statutory law, etc. Remedy/Causation If there is a standing issue on the exam it will fairly straightforward

Privileges and Immunities - 14th amendment, Section 1, Clause 2 Protects rights citizens have by being citizens of the United States Privileges and Immunities Test Whether the State regulation discriminates against people not from that state? Is the discrimination justified? Must look at whether there is a substantial reason Baldwin v. Fish and Game of Montana Montana allows Montana residents to purchase a license for hunting elk and other animals for $30, while non-residents are charged $225 Court held that the scheme did not violate the Privileges and Immunities Clause, b/c the right to recreation is not a right fundamental to national unity if the license fee is set at such a cost to essentially defray the cost of what is being maintained for the hunters than that is okay Certain things are allowed to be discriminatory such as licensing- where the cost are not intended to be prohibitive but set to recover the cost of what they are doing If State is burdening a fundamental right then we are going to take a real close look Inter-state Privileges and Immunities Article 4, Section 2 - The Citizens of each State shall be entitled to all privileges and immunities of citizens in the several States. State cannot discriminate against citizens of another state Sands v. Roe right to travel in 14th amendment privileges and immunities clause where a state is burdening somebodys ability to move into the state Protects rights citizens have by being citizens of a State Hicklin v. Orbeck Alaska requires that Alaskan residents be given an absolute preference over non-residents for all jobs on the Alaska oil pipeline Court stated that there was no evidence that the non-residents were a source of evil, only threatened in-state jobs by taking jobs from untrained/uneducated residents There was no substantial relationship b/w the evil the statute was trying to remedy and non-residents Reasonable relationship test/standard of review Substantial relationship b/w the danger represented by non-citizens, as a class, and the discrimination practiced upon them The states have to show that the people being discriminated against are the particular evil the states are trying to remedy Substantive Due Process

 Substantive Due Process written into the 15th and 14th amendment, and it is up to the Court to define it and tell us what it means You have to be given Notice and a Hearing as much as we need to know on criminal due process Fundamental idea of due process even when the process is perfect, the substance is so wrong that we are going to do something about it For a law to be valid at the very least must not be arbitrary and must relate to a legitimate interest of the State Not a problem b/c it is discretionary, but a problem b/c it is boundary-less Lawrence v. Texas Case dealing with police arresting a man for sodomizing another man in the privacy of his home Justice Kennedy phrases the case as a liberty case instead of a privacy case b/c liberty is a word actually in the constitution, reason is b/c the Supreme Court has the power to interpret the Constitution Court is engaging in its legitimate power to interpret the Constitution, and ends up defining what liberty means A HUGE DEAL Kennedy uses a rational basis standard of review there is no rational basis for this Texas law Dissent liberty does not reach this far, Scalia saying this is not rooted in our history or tradition, not a fundamental right there is no right to engage in homosexual conduct US v. Klein Federal statute dealing w/ abandoned property during Civil War could recover property abandoned during Civil War if satisfied loyalty requirement Klein had presidential pardon even though he was supporter of Confederacy, Klein won in Court of claims which stated presidential pardon satisfied loyalty requirement Before case heard on the governments appeal, Congress passed a statute providing that a presidential pardon meant the opposite, and that the Court was w/o jurisdiction to decide cases where a pardon had been granted The Court struck down the statute as unconstitutional, on the grounds that it violated the separation of powers and invaded the judicial function Any jurisdictional limitation must be neutral; that is, Congress may not decide the merits of a case under the guise of limiting jurisdiction. Practical Limitation: There is also a practical limitation upon Congress ability to cut back on the appellate jurisdiction of the Court. If Congress is motivated by hostility to a particular Court decision, defeating its own purposethe adverse precedent will be left in the books. Destroy UNIFORMITY

Congressional Power
Substantive Due Process Congressional Control of Judicial Power Commodity Futures Congress has the power to establish non-Article III tribunals as long as they do not interfere w/ Article III courts

 The Court applied the following test to determine whether the tribunal assumed Article III powers 1) Can it issue writ of habeas corpus 2) Is the area particularized 3) Does it have complete authority over the matter; is the ruling binding even without the review of a district court. 4) Can the parties seek remedy in other forums? Ex Parte McCardle McCardle was imprisoned by a military government imposed by Congress as part of post-Civil War Reconstruction. He brought a habeas corpus action in Fed circuit court, charging that the Reconstruction Acts under which he was imprisoned were unconstitutional. Before a decision was handed down, Congress passed a law repealing the portion of the 1867 Act which allowed appeals to the Court The Court upheld Congress restriction of the Courts jurisdiction. The decision that appellate jurisdiction is conferred with such exceptions and under such regulations as Congress shall make. The limitation enacted by Congress was such an exception The Court confirmed that Congress does indeed have at least some power to control the boundaries of the Courts appellate jurisdiction Boumedienne v. Bush Suspension clause says you cant suspend the right for a writ of habeas corpus unless in cases o invasion or rebellion and the public requires it Can the President and Congress take away the jurisdiction of the court to hear cases from prisoners in Gitmo? Since there is no doubt that they are being held as prisoners under their will, therefore the question is whether they have a right to habeas corpus to have their cases heard in court You have to give proper procedural rights to prisoners who are under the control of the US no matter where they are or how they got to be prisoners ultimately what was decided by the court Legal territorial status of Gitmo is it is Cubas land, US leasing the land long-term, but we do not have sovereignty over that land Bush administration argues that because they are not contained on US soil do not have a right to habeas corpus constitutional provision does not reach outside the territory of the US Court is concerned that the executive branch could simply by saying that is not the US there fore they do not have any constitutional protections, executive would be able to control whether the constitution applies based on physical location 3 arguments by Bush Administration Territory Jurisdiction is based upon space cant touch because they are not on US soil Aliens caught elsewhere Jurisdiction is based upon the person cant touch because they are not US citizens Adequate substitute

The statute is not an adequate substitute because the Military tribunal is not impartial, interests of the individual is to have a case heard by an impartial judge Would work if they could appeal to an Article III court; Congress attempted to take away the jurisdiction of the federal Article III courts Court ruled they cannot take way this jurisdiction when Congress exceeds its powers or violates constitutional rights Cannot remove power of the courts to say what the law is If there is a fundamental right involved, if there is a constitutional right at stake Article 1 does not state that it has be a citizen, nor within US territory just in cases where the public requires it can Congress suspend it Reason habeas has to be allowed is because of the separation of powers, this is one of the few constitutional checks and balances included in the main constitution Court is there to review the limit of executive power, it is in Article 1 Our liberty is safeguarded by the separation of powers, the system of checks and balances is designed to remedy situations such as these Bush administration uses the legislative history of the writ, and looks at old English law The meaning of the common law version of the writ is different from how it has been used in history Court summarizes the history and the court determines that the history is relevant, can guide decision making, is instructive, but not controlling Situation has changed throughout history, did not have the war technology we have today, communication has changed; it much easier for information to travel nowadays Also the historical record is not adequate, cannot tell what the writ did cover and did not cover, sometimes it was applied and sometimes it was not history itself is too messy to tell us something to control us plus the meaning of the writ is not clear A fundamental thing should not be controlled by a flawed legislative history Distinction b/w McCardle is he had a fair chance, had been heard by a district court in this case it went straight to the Supreme Court Court applied the Commodity Futures Test

Congressional Power Under Civil War Amendments 13th, 14th, 15th amendments were designed to change the federal/state balance of power, which afforded the federal government the authority to develop and implement a plan for moving toward freedom and equality Primary purpose of the amendments was to provide Congress w/ authority to enforce and implement the Amendments rights Congress shall have the power to enforce by appropriate legislation, the provisions of this article 14th amendment cannot deprive a person of life, liberty, property, or liberty w/o due process of the law, gives everyone equal protection of the law, and privileges and immunities

 In response to Civil Rights Acts, court rules 13, 14, 15 amendments only apply to state discrimination, not private discrimination Congress cannot expand scope, can only reach state discrimination Leads to Katzenbach v. Morgan English language requirement clearly targeting Puerto Ricans; Congress days this law in NY that imposes a literacy requirement violates the 15th amendment and we are going to pass laws to enforce the right of people to vote Literacy requirement is not an equal protection violation in and of itself, Congress is saying we are looking at the actual circumstances on the ground, the legislative facts, and this law and laws like this are used to accomplish an equal protection violation, and you court have told us that you cant stop people from voting on the basis of race We can reach the literacy because its effect and purpose The court is saying you can enforce the equal protection requirement as long as you can connect it up to what the equal protection clause protects, and you can go beyond the court if you can draw that connection enough to convince the court Rational Basis 1) Legitimate state (govt) interest/end e.g. w/ Obamacare regulating and effecting peoples health 2) Likely to further the state interest e.g. mandate that everyone have health insurance must be rationally related to a healthcare system where costs under control Means rationally related to accomplishing that end still test for commerce clause, necessary and proper Boerne v. Flores Was a state law, and court says RFRA is unconstitutional as it applied to the states, says something about the relationship of the federal government and the states, congressional law applies to every state unless RFRA is unconstitutional Courts says you cant tell this court what its standard of review should be so this law is unconstitutional therefore the states can ignore it, does not extend that far Created the congruence and proportional standard RFRA says as a matter of federal law we are amending every federal statute an exception when applied to federal law every single federal statute is subject to RFRA Congress can pass this law because it is simply giving space as a matter of statute to free exercise clause at the federal level this does not step on Courts power Congruence and Proportionality 1) Legitimate Federal Interest (must arise under the 14th amendment) 2) Means adopted must be congruent and proportional to the ends sought to be achieved This is more scrutiny than what was required in Katzenbach Congress has to show more in rational just has to show that it is rational, here they have to show large scale violations, that there is some serious problem that needs to be remedied

This is appropriate standard for the 14th amendment because court is protecting the proper balance b/w the states and the federal government if your gonna go kick those states in the shin you better show me they deserve it show the closeness of the relationship Distinction b/w judicial and legislative facts legislative facts are general, judicial more particularized to a person and the case at hand Necessary and Proper Clause Article I, Section 8, Clause 18 Necessary and proper clause applies to all the powers in the constitution, and the 13,14,15 amendments Congress has the power to make all laws that are necessary and proper for executing enumerated powers McCulloch v. Maryland offers a broad view of the necessary and proper clause Takes necessary and proper clause in the context of a state trying to tax the federal government When we are interpreting the constitution we must realize that it is not to be interpreted like a statute, it is a document that is designed to be interpreted over the years according to the time and in relation to the separation of powers The necessary and proper clause cannot be used to expand powers indefinitely, has to be tied to an enumerated power, federal government if not of limited power, but is one of enumerated powers Test Legitimate end if it is within the scope of the constitution Appropriate and plainly adapted (necessary and proper) consistent w/ letter and spirit of the constitution If what you are doing violates separation of powers it will not be within the spirit of the constitution The means (the law) must be tied to the ends (enumerated power) Comstock Extension five factor test to extend necessary and proper The breadth of the Necessary and Proper Clause The long history of federal involvement in this arena The sound reasons for the statutes enactment in light of the Governments custodial interest in safeguarding the public from dangers posed by those in federal custody The statutes accommodation of state interests, and The statutes narrow scope Its not the length of the chain it is the strength of the chain If you have the power to criminalize, and convict, and hold them in jail, then you have jailers and prison guards next question is now that we have them in custody can we detain them longer to protect the public Courts says that if you have a commitment to the person and the public to detain that person if he is dangerous, and if it satisfies these five factors then the chain is strong enough

 Dissent Thomas thinks links to the chain is too long, is not worried about the strength, overreaching Necessary and proper clause analysis Find a power Determine whether it is a direct straightforward application of that power, if it is not go on to your necessary and proper analysis

Power to Regulate the Economy

Contracts Clause Article I, Section 10 No state shall impair the obligation of contracts Federal government cannot deprive you of your liberty to contract under the due process clause Amendment 5 how they are limited in impair peoples rights w/ respect to contracts Big thing to look for is retroactivity, Congress and the states can effect contracts prospectively even under the contracts clause, but not retroactively Federal government effects contracts all the time e.g. warranties, healthcare law is another one Contracts clause all about when can the states modify existing contracts prospectively Dartmouth College v. Woodward Made a private college w/ pre-existing contract w/ England become a public college Court tells us that an incorporation is like a contract and is protected under the contracts clause Court said in this case corporations are people too Citizens United goes back to this case, because corporations are treated as people Very important case because of this ruling Energy Reserves Group v. Kansas Power & Light Co. The regulation being challenged was a Kansas statute which prevented Energy reserves Group (ERG), a natural gas supplier, from increasing the prices it charged to Kansas power as an esclation clause in the ERG-KPL K permitted The court held that the state does not unconstitutionally impair the obligations due under the ERG-KPL K Test: Whether the state law has, in fact, operated as a substantial impairment of a contractual relationship. Does not have to be a total destruction of contractual obligations Has this particular industry been regulated in the past. Legitimate public purpose: if the state law substantially impairs, then the state must have a significant and legitimate public purpose behind the regulation Such as remedying broad & general social or economic problems Identifying a legitimate state interest guarantees that the State is exercising its police power, rather than providing a benefit to special interests Once a legitimate public purpose has been identified: Whether the means to the end are reasonable and appropriate

Takings Clause 5th Amendment Eminent Domain The federal government cannot take personal property for a public purpose w/o just compensation What is the limit of the public purpose doctrine? Kelo v. City of New London Wanted to take properties on the waterfront to give to private owners to develop it in accordance w/ the cities wishes Taking of a non-blighted area Supreme court essentially says it is a legislative decision if the city wants to show its for a public purpose, and can find facts to prove it, then it is up to then Regulatory Taking When does a regulation qualify as a taking? if there is no reasonable beneficial use remaining after the regulation Penn Central Transportation Co. v. NY City Plaintiff was the owner of Grand Central terminal, which was designated as a landmark under the law. As a consequence, the buildings exterior was required to be kept in good repair and administrative approval was necessary for any alteration. Planned to build a 55-story building denied because it would clash with the Terminals beaux arts faade The court held that so long as landmark preservation is carried out as part of a comprehensive preservation scheme, development of individual landmarks may be curtailed without effecting a taking There was a reasonable beneficial use remaining after the regulation Commerce Clause Article I, Section 8, Clause 3 the most elastic Congressional power Congress shall have powerto regulate commerce w/ foreign nations, and among several states, and with Indian Tribes 2 areas have been firmly established Congress power over commerce w/ foreign nations has always been regarded as broad and plenary, and its power over commerce w/ Indian tribes has been regarded as similarly broad Congress is granted the power to regulate commerce among the several states could be among the states as states, or private people doing commerce among the states, or always has to cross state borders there are several possible readings Gibbons v. Ogden offered the Courts first authoritative interpretation of the Commerce Clause NY granted Ogden a monopoly to run steamboats between NY and NJ. Congress granted Gibbons a license to run a steamboat and Ogden sued The federal commerce clause is superior to a state law, and it allows the federal government to regulate commerce within the state even though the language in the constitution is limited to interstate commerce Commerce not limited to the interchange of commodities, extends t intercourse b/w nations, and parts of nations, in all its branches

 Commerce power extends to commerce among the several states, and cannot just exist at the external boundaries b/w the states but can also exist in the interior of a state- court defined interstate to include channels even if the activity is wholly intrastate Rule as long as you can show it is affecting interstate commerce, you can reach intrastate commerce Illustrates several important points 1) The federal commerce power when interpreted broadly, could shape the way the country and its markets develop 2) The Supremacy Clause can play a large role in settling federal-state conflicts 3) Judicial review would be necessary to interpret Commerce Clause conflicts 4) The Court tried to design formalistic categories, including before and during commerce, to create a predictable framework of analysis Lochner Era 1905 Not straight up commerce clause power, but rather economic due process, congress power is limited by the right to property property rights are being used to trump Congresss power under the commerce clause Court says you are taking away private rights including contract rights, and the commerce clause does not reach that far Houston, East & West Texas Railway Company v. United States Three railroad companies set their rates to discriminate against interstate traffic. Congress passed a law banning such conduct. It also regulated the intrastate commerce of the companies. The companies sued claiming that congress had overstepped its bounds (actually a commission set up by congress) Court sanctioned Congress w/ the power to regulate internal commerce of a state when the item being regulated had a close and substantial relationship to interstate commerce Test affects test if it affects interstate commerce even though all the commercial activity within state If it is an instrument of interstate commerce, then it applies as well First use of instrumentalities Policy purpose is to promote national unity and to insure uniformity of regulation against conflicting and discriminating state legislation Carter v. Carter Coal Co. Based on what affects inter-state commerce is it indirect or direct, commerce vs. production/manufacture Dealt w/ a law forcing the coal industry to have a minimum wage Coal has a huge inter-state commerce affect Court says activities related to production are an indirect effect on commerce, thus Congress cannot regulate wages under the Commerce clause Under necessary and proper clause, the means Congress has chosen (to effect minimum wage and hours worked) fits the aim of furthering a general minimum standard of living No enumerated power granted to Congress to do this

Commerce purpose to discourage competition among states to ensure commerce is done more fairly the constitutionally legitimate claims court rejects this because it is too indirect Manufacture of goods a purely local activity, the court drew a line b/w activities that have a direct effect on commerce and those having an indirect effect, w/ indirect effects beyond legislative control Activities relating to production have only an indirect effect on commerce, Congress can only regulate those things that have a direct effect on commerce, mining is not one of them NLRB v. Jones and Loftin Steel Court says labor relations do have an effect on inter-state commerce and thus Congress has a power to regulate it Distinguished from Carter because when industries do organize and strike it will affect the industry directly as opposed to the indirect affect in Carter Industrial strife can be remedied by regulating how workers can organize commercial purpose Non-constitutional purpose is social, no general police power for Congress to pass direct social legislation like that, has to tie it to one that is, thus why they used the commerce clause Congress has the power to regulate intrastate activities that have such a close and substantial relation to interstate commerce that their control is essential or appropriate to protect that commerce from burdens and obstructions Went further than Carter v. Coal, went back to Gibbons rule of very broad commerce clause US v. Darby Case concerned the regulation of lumber production by workers making less than minimum wages, required lumber industry to grant minimum wage and minimum hours worked Requpriires that they do not have to pay minimum, but if they want ship their product interstate then they have to Court held Congress could indirectly regulate the wages of employees who manufactured lumber- deferred to Congressional determinations This is not truly an affects case, more of an instrumentalities case Hammer v. Dagenhart is explicitly overruled Three Things Congress Can Regulate Under the Commerce Clause 1) Instrumentalities of commerce the things or persons used to carry the stuff e.g. train, cars, etc. Internet? 2) Channels the things through which the commerce is moving e.g. highways, airports, railroads You can regulate things and people only if they are an instrumentality or channel in commerce 3) Substantial Affects Heart of Atlanta Motel, Inc. v. United States Hotels denying black people accommodation, court ruled it was affecting interstate commerce because it was hard for black salesman to travel around and engage in commerce, in the aggregate hotels denying black people has a substantial effect Could not use the 14th amendment because the 14th amendment only applies to state misconduct very important point Public/State v. Private

 Test Substantial effect on interstate commerce Congress has the power to decide whether it is a substantial effect, and show the court that there is a legitimate end Legitimate end Means rationally related to that end Means was the Civil Rights Act of 1964 What court is saying in this is that we will allow Congress to trample individual liberty in favor of equality to extend its exercise of power under the commerce clause are allowed to make the choice b/w liberty and equality This takes us to something very deep in our constitution is our constitution defined by liberty or equality? Underlying premise was liberty, and 14th amendment was fundamental shift towards equality Katzenbach v. McClung Small barbeque restaurant which discriminates against black people the court ruled that the food they are serving came from interstate commerce or effects it Court used rational basis standard in concluding, racial discrimination in restaurants had a direct and adverse effect on the free flow of interstate commerce. Uses the substantial affects test, expands the scope of the commerce clause Wickard v. Filburn - arguably the high water mark in federal commerce clause power Case concerned a man who grew too much wheat according to the Agricultural Adjustment Act of 1938 and would have to pay a penalty for excess produce or give it to the states Plaintiff growing wheat for own consumption in violation of Agricultural Adjustment Act of 1938 had a close and substantial relation to interstate traffic. Court is concerned w/ surplus, shortfall, etc. - An individuals home consumption affected the market by withdrawing from that market and was not viewed in isolation, but with all other person growing and consuming their own wheat The rationale was that a farmer's growing "his own wheat" can have a substantial cumulative effect on interstate commerce, because if all farmers were to exceed their production quotas, a significant amount of wheat would either not be sold on the market or would be bought from other producers. Hence, in the aggregate, if farmers were allowed to consume their own wheat, it would affect the interstate market in wheat. United States v. Lopez Case dealing w/ regulation of guns in school zones, placed a limit on the power of Congress under the commerce clause, and outlined a new test Gun-Free School zone act did not regulate a commercial activity, or contain a requirement that the possession be connected in any way to interstate commerce, the Court held that Congress exceeded its power under the commerce clause Bringing a gun to school and education are not economic activity, no connection b/w gun at school and interstate commerce

 It is not commercial, nor economic thus it is not a legitimate end, it is not about the length of the chain, it is the strength There was no jurisdictional element, and states generally regulate education, and safety and welfare Morrison case discussed in Gonzalez Gender motivated violence against women is now a civil rights issue, and the court tried to reach it through the commerce clause Women travelling can be scared of the violence, however court disagreed and said violence against women is not economic in any way And Congress said they did not show a jurisdictional nexus New tool w/ Lopez to take on Congressional power under the commerce clause Gonzales v. Raich Court relied on WIckard, in concluding that marijuana use has a substantial effect on interstate commerce Unlike holding in Lopez, court was deferential to Congress, concluding that it need only determine that Congress had a rational basis for its conclusions Highly deferential the big distinction is this case involved quintessential economic activity, Lopez and Morrison were not economic activity To reach non activity like in Lopez and Morrison have to show the substantial effects, more scrutiny in its standard of review Taxing and Spending Power Taxing Power - Article I, Section 8, provides Congress w/ another important power, the power to tax A tax is permissible when Congress primary motive is to raise revenue, regardless of the actual motive of the legislature in enacting the statute doesnt matter if tax is used to penalize Spending Power Article I, Section 8, contains power to spend for the general welfare and defense Congress decides as long as there is a social value South Dakota v. Dole funds not allocated to highways of state where drinking age was under 21 Spending must be in pursuit of general welfare, any conditions imposed on the fund must be unambiguous so that the state can knowingly decide whether to accept or reject the conditions, and the spend provision must be related to the federal interest in particular national projects or programs Test for when federal government can manipulate states through a bribe First has to be perceived as for the general welfare Second - the condition of the state receiving funds cannot be at the whim of the executive has to be non-discretionary has to be clear the conditions that have to be met have to tell the states what to do Third the spending must be related in a fairly direct way to what youre asking the states to do, spending must directly related to the funding

Fourth look to see if there is another limitation in the constitution that would prohibit the federal governments spending on this particular issue

Executive Power Article II

The President is the Commander-in-Chief Article II, Section 2 Youngstown Sheet and Tube Co. v. Sawyer President can take over something when there is an active theater of war Court concluded that Truman exceeded the powers of the President when he ordered steel workers to end their strike and report to work Court ruled executive did not have the power in this case to take over the steel industry, cannot use Commander-in-Chief power, was no Congressional enactment and was not expressed in the Constitution Test for executive power under the concurrence by Jackson (what became the law) 1) President and Congress act together Court shows deference in this circumstances 2) Congress silent Court shows deference under most circumstances 3) President acts against Congress Court will scrutinize this more, if we are going to grant the president this power the president has to show that this power is conclusive and preclusive This has become the typology for executive power analysis Treaty Power Article II, Section 2, the President given the power to make treaties but the legislative branch is made a partner of sorts b/c it requires a 2/3 vote by the Senate for ratification Important to determine whether the treaty is self-executing or applied domestically at all Dames & Moore v. Regan Executive agreement allows president to enter into agreements w/ foreign nations Case dealt w/ Iranian hostage crisis, President Carter froze Iranian assets and unfroze them in agreement for the return of the hostages Court feels that it is not competent to deal w/ foreign relations issues, up to the executive branch w/ some involvement of the Senate Congress has allowed the executive to do this for 200 years; long term practice by the executive w/o congressional interference can become the standard for what the executive can and cannot do No explicit power, the court feels that it is a power that has developed over time Foreign relations president has lots of power, congress has some, judiciary has little That was the Bush Administrations argument in Boumedienne Structurally the judiciary felt that when people liberties and rights are involved they are the ultimate arbiters; distinguished from Dame b/c was just not a mere foreign relations issue involved rights and liberties

 Executive Privilege two types of executive privilege immunity from suit and privilege from disclosure U.S. v. Nixon Dealing w/ a subpoena for Presidential records, Nixon administration felt he had executive privilege and was immune from this type of judicial action Court felt there was a privilege, but the privacy only extends to cases dealing w/ national security, despite this presumption the privilege can be rebutted under certain circumstances Clinton v. Jones Suit based on sexual misconduct by Clinton prior to when he received office Court ruled that civil suit could be allowed in circumstances where it was before office War Powers The president has the power to conduct a war when the president sees fit If Congress acquiesces over a period of time, if there is a Congressional resolution, or if there is a treaty that Congress has ratified this is enough If they are against it, they can defund it The President ultimately decides what foreign policy is

Interbranch Relationships
Inter-branch problems 1) Who controls whom or what? 2) Admin. Agencies, Non-Delegation 3) Congressional Review of Executive & Admin. Agencies We cannot have administrative agencies that pass rules and regulations is legislation What is the standard for delegation Breadth is it overly broad? Articulable is it a standard that is articulable for the administrator or administrative agency? Delegation doctrine is you must tell what field that agency is meant to act and the standards must be explicitly outlined Fair game for this standard to be on the exam Congress creates something called the legislative veto Congress feels they should have the power to veto administrative actions Passed a bill to undo administrative regulations they do not like Theory is since we delegate it, we can limit that delegation

Relations of State and Federal Governments

Federal State People Relationships 14th amendment has a lot to do w/ the federal and state relationship E.g. Boerne test Commerce Power Taxing Power

 Spending Power Preemption federal law preempting state law, what happens after the federal government has exercises its power Express Preemption - Express preemption occurs only when a federal statute explicitly confirms Congress's intention to preempt state law Implied can be field or conflict preemption Conflict if state law conflict w/ federal law the state law fails What determines a conflict? Can you conform your conduct to both laws Conflict arises when it is impossible to comply with both the state and federal regulations, or when the state law interposes an obstacle to the achievement of Congress's discernible objectivesUnder the Supremacy Clause, any state law that conflicts with a federal law is preempted Gibbons v. Ogden Field Federal government has occupied this field and claims it is only up to them, States cannot get into the issue Even without a conflict between federal and state law or an express provision for preemption, the courts will infer an intention to preempt state law if the federal regulatory scheme is so pervasive as to occupy the field in that area of the law, i.e. to warrant an inference that Congress did not intend the states to supplement it Pacific Gas & Electric Co. v. State Energy Resources Conservation & Development Commission CA passed a law conditioning the construction of any new nuclear plant in the state on whether there were adequate storage facilities & means of disposal for the waste, A utility claims that Congress has preempted the entire field of nuclear regulation The court held that the CA statute was valid - Fed system deals with safety issues. CA deals with economic problems of storing & disposing waste. CA did not come into area pre-empted by Congress. No actual conflict b/c NRC could only give license saying it was safe. NRC would not build a plant contrary to CA requirements: simultaneous compliance. The TEST whether the matter on which the state asserts the right to act is in any way regulated by the federal government City of Burbank v. Lockheed Air Terminal The city passed an ordinance which made it unlawful for pure jet aircraft to take off from the Hollywood-Burbank Airport between 11pm-7am. The only plane that fit the description was an intrastate flight. There were acts passed by congress the Fed Aviation Act of 1958 and the Noise Control Act of 1972 The court held that the fed aviation act of 1958 & the noise Control Act of 1972 preempted a Burbank, CA ordinance that made it unlawful for pure jet aircrafts to take off from local airports b/w 11pm-4am except for one intrastate flight. Fed control is intensive and exclusive. They move only by Fed permission, subject to Fed inspection, in the hands of federally certified personnel and under an intricate system of Fed commands.

 Pre-emption is highly regulable by Congress, if Congress doesnt care the court does not care You can play a lot w/ pre-emption by defining the field, doctrine is extremely plastic Federal sets what the minimum law is that will preempt State laws; States can pass stronger laws, but not weaker ones Dormant Commerce Clause The Commerce Clause expressly grants Congress the power to regulate commerce "among the several states." The idea behind the Dormant Commerce Clause is that this grant of power implies a negative converse a restriction prohibiting a state from passing legislation that improperly burdens or discriminates against interstate commerce. The restriction is self-executing and applies even in the absence of a conflicting federal statute Triggers for a Dormant Commerce Clause Question in which the federal government has not acted: States acting Must affect interstate commerce Gibbons v. Ogden - the power to regulate interstate commerce "can never be exercised by the people themselves, but must be placed in the hands of agents, or lie dormant. Established the principle of the Dormant Commerce Clause restricting state action on economic regulation under the Commerce Clause Cooley v. Board of Wardens A PA law required all ships to use local pilots when the navigated the Delaware River. They fined anyone who didnt. P sued claiming that law conflicted with Congresss power to regulate commerce Conflict not b/w exercise of power but b/c the mere existence of federal power means the state cannot impose regulations on the owner (owners argument) Affirmed a PA law which required ships entering or leaving the port of PA to hire a local pilot. The states were free, the court held, to regulate those aspects of interstate commerce that were of such a local nature as to require different treatment from state to state. But the states could not regulate aspects of interstate commerce which, because of their nature, required a uniform national treatment Where Congress has acted to prohibit state regulation, Congress is said to have preempted the field. Even where Congress has not preempted the field, the very existence of the Commerce Clause forbids state regulation which places an unreasonable burden on interstate commerce Court grants Congress deference under the Commerce Clause w/ respect to the states South Carolina State Highway v. Barnwell Bros SC width restriction regulating the size of trucks b/c heavy trucks wear on the roads There are matters of state concern the regulation of which undoubtedly involves some regulation of interstate commerce, but which because of their local character and their number and diversity may never be fully dealt with by congress Very important distinction made here is that the SC law was against both intrastate and interstate commerce (Applicable to interstate and intrastate traffic alike) and the court also

alluded to their dicta in the Cooley case, which found highways to be peculiarly of local concern Southern Pacific v. Arizona The Arizona Train Limit Law of May 1912 made it unlawful for any person or corp. to operate within the state a railroad train of more than 14 passenger cars or 70 freight cars The Court held that the unchallenged findings leave no doubt that AZ Train Limit Law imposes a serious burden on the interstate commerce conducted by appellant. The state has a right to regulate acts not spoken to by congress provided that it does not materially restrict the free flow of commerce across state lines. This affects interstate commerce seriously Arizona conceded the burden, but said it was necessary for safety reason like South Carolina case Balancing Test Burden nature and extent state regulation imposes on interstate commerce State interest whether the state interest outweighs the burden being placed on interstate commerce Baldwin v. GAF Seelig NY sets up a regulation system of minimum payments to be made to milk producers by dealers. If milk producers in other states did not pay the farmers the same price as the NY farmers received their milk was not allowed in NY A state law cannot be upheld where it is enacted to protect only the economic well being of its own citizens and it interferes with interstate commerce. When a state discriminates against interstate commerce its actions are presumed invalid, but it may be valid if there is a legitimate social purpose and access to local markets is only incidentally restricted When a state seeks to promote a valid health and safety interest, on a non-discriminatory basis, the Southern Pacific balancing test applies. But, when a state discriminates against IC (as in Baldwin) its actions are presumptively invalid. Since it is possible that a state could validate a statute that discriminates against IC by showing that it advances a legitimate local purpose that cannot adequately be served by reasonable nondiscriminatory alternatives, the Court imposes on the state the obligation of showing that economic protectionism is not the objective Discrimination test Are there other less discriminatory means to accomplish legitimate state purpose/ends Two Exceptions to Dormant Commerce Clause Congressional Authorization - The first exception occurs when Congress has legislated on the matter. In this case the Dormant Commerce Clause is no longer "dormant" and the issue is a Commerce Clause issue, requiring a determination of whether Congress has approved, preempted, or left untouched the state law at issue Market Participation Exception - The second exception is "market participation exception". This occurs when the state is acting "in the market," like a business or customer, rather than as a "market regulator." For example, when a state is contracting for the construction of a building or selling maps to state parks, rather than passing laws governing construction or dictating the price of state park maps, it is acting "in the market." Like any other business in such cases, a state may favor or shun certain customers or suppliers.

South Central Timber Development, Inc v. Wunnicke Alaska sells some timber from state-owned lands at below-market prices. However, the buyer is required to partially process the timber inside Alaska before exporting it. A nonAlaska firm with no Alaska processing facilities attacked the local-processing rule as violating the dormant Commerce Clause. The state defended on the grounds that it was a market participant that was merely selling a commodity it owned The Court held that the market participant doctrine did not apply, and held that regulation violated the Commerce Clause

Federal Regulation of States 10th Amendment - The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people Makes explicit idea that the Federal government is limited only to powers granted in the Constitution According to the Tenth Amendment, the government of the United States has the power to regulate only matters delegated to it by the Constitution. Other powers are reserved to the states, or to the people (and even the states cannot alienate some of these). In modern times, the Commerce Clause has become one of the most frequently-used sources of Congress' power, and thus its interpretation is very important in determining the allowable scope of federal government Garcia v. San Antonio Metro Transit Authority Garcia sought overtime pay from the San Antonio Transit authority under the Fair Labor Standards Act. Should the provisions apply to employees of a municipally owned and operated mass transit system? 4 conditions must be satisfied before a state activity may be deemed immune from a particular federal regulation under the CC: 1. fed. Statute at issue must regulate the states as states under the CC. 2. statute must address matters that are indisputably attributes of state sovereignty 3. state compliance with fed. Regulation will directly impair the states ability to structutre integral operations in areas of traditional govt. functions 4. state/fed. Relation interest must not be such that the nature of the fed. Interest justifies state submission. It left to future courts how best to determine when a particular federal regulation may be "destructive of state sovereignty or violative of any constitutional provision." U.S. v. Prinz Implementation of the Brady Act required local officers to temporarily assist the Fed govt in carrying out the administration of the Act. Prinz and another local officer filed suit claiming the requirement of local assistance was unconstitutional. In conflict with Art I 8, 10th Amend, and sovereign immunity (11 Amend). Congress may not compel the states to enact or enforce a regulatory program, and cannot circumvent this prohibition by conscripting the states officers directly. (cant compel them to perform federally specified administrative tasks.)

 Congress action an intolerable incursion into state sovereignty Essential attribute of state sovereignty that they remain independent and autonomous w/in the sphere of their authority PRINZ reconciled with GARCIAGarcia seems to apply to generally applicable Fed law makingwhere Congress passes a generally applicable law, 10th Amend does not entitle a states own operations to an exemption just because its a stateBUT Where fed govt tries to force a state or local govt to ENACT legislation or regulation, or tries to force state officials to perform govt functions, THIS IS NOT A PART OF A GENERALLY APPLICABLE FED SCHEME! But is directed at the states basic exercise of sovereignty. Lopezs holding that the effect on interstate commerce must be significant, an incidental effect on commerce is not enoughseems to limit the scope of Garcia. The States will probably be able to invoke their 10th Amend rights and be free from regulation IF IT IS CLEAR that the activity does not substantially effect interstate commerce.

Federal Taxing and Spending Powers to Influence States Spending Power - cannot directly require States to change their laws because they have no police power, but can regulate them through controlling spending to the states South Dakota v. Dole Taxing Power federal govt can also tax the states to a certain degree e.g. social security, etc Sonzinsky v. United States Whether Section 2 of the National Firearms Act, which imposed a $200 annual tax on dealers in firearms, is constitutional exercise of the legislative power of Congress On its face, this was only a taxing measure w/ no regulatory provisions Every tax is in some measure regulatory, but a tax is not any les a tax b/c it has a regulatory effect, and long been established that an Act by Congress which is an exercise of taxing power is any the less so b/c the tax is burdensome Here it is productive of some revenue, and the Court felt it could not speculate as to Congress motive, or to the extent it restricts the activity taxed 11th Amendment Explicitly says a citizen from one state cannot sue another state Does not speak to judicial power of the States or citizens of the state suing that state Essentially became a Sovereign Immunity Clause states cannot be sued by citizens in State or Federal Court Hans v. Louisiana established 11th amendment as sovereign immunity clause Alden v. Maine Stands for the proposition that the doctrine of sovereign immunity generally prevents congress from subjecting the states to private suits in their own courts, even where the right sued on is Federal right

Congress has no constitutional authority to force the Maine courts to hear the workers suits, EVEN THOUGH THE SUIT WAS BASED ON A FED RIGHT THAT CONGRESS HAD AUTHORITY TO CONFER ON ITS WORKERS. State has sovereign immunity cannot be sued w/o its consent, so who can sue on behalf of the probation officers? THE FEDERAL GOVT Federal govt can sue the states to enforce its own laws, the States do not have sovereign immunity against the Federal govt th 11 amendment whatever the Supreme Ct. says it means, it means Simply put it says a citizen from Maryland cannot sue the state of Virginia, but it says nothing about judicial power of the States or citizens of a state suing that state Citizens of Maine read the amendment this way Young Doctrine allows a suit to vindicate certain rights particularly those under the 14th amendment Under the 14th amendment State includes Cities, subdivisions, and officers, but under the 11th amendment state only means state as state does not include cities or officers, but includes agencies of the govt Third meaning is state action Ex Parte Young - when a state officers official conduct violates the US Const. or a Fed statute, he is acting without true authority, and his conduct is therefore not really state conduct for purposes of the 11th Amendment Edelman v. Jordan explains all you need to know about young doctrine Plaintiff sued Illinois state officials for violating 14th Amendment by improperly administering Fed-state programs for Aid to the Aged, Blind and Disabled. Fed District Court ordered Ds to pay retroactive benefits for the misuse of the fund. Ford Motor Co. v. Dept of Treasury determined that where state is implicated, even if not named, it may be barred by 11th Amen. & Fed regulation. Young is only for prospective, not retroactive benefits b/c otherwise the state would be liable for damages. It is also for non-monetary relief b/c otherwise, the state would be liable. The lower courts held this to be an action of equitable restitution, but SC said that it still required monetary compensation from the Revenues of the State Young doctrine has four parts 1) Suing a person 2) Prospective relief only can get an injunction but no money 3) Continuing violation of the sort an injunction can remedy Hypo - if it is a case where 1 cop smacks you its not a continuing violation, if its a case where a cop smacks black people all the time then it is a continuing violation 4) Can have a monetary impact but the court must not award damages by itself Young Doctrine allows us to sue a state person in that person owns name as long as they are violating the constitution in their capacity for working for the state A way to enforce the 14th amendment You have to know the elements of the Young Doctrine

 Brown v. Board of Education citizens were able to sue the board, b/c local govts are not considered the State for 11th amendment purposes, only the state is immune even crazier Pennhurst State School & Hospital v. Halderman There was a federal question plead and also a state cause of action plead so the state action got into federal court based on supplemental jurisdiction Affirms Hans, and ruled that : The claim that petitioner violated the state law in carrying out their official duty at Pennhurst is one against the state and is therefore barred by the eleventh Amendment. Seminole Tribe of Fla. v. Florida Semi-independent nation of a tribe suing a State, federal govt has complete control over regulating Native American tribes, states have no control over the reservations Congress passed a law imposed a duty on the states to negotiate in good faith w/ respect to Native Americans trying to establish gaming casinos case arises under the Commerce Clause Seminole tribe suing to compel them to fulfill this duty Holding: the Indian Commerce Clause does not grant congress the power to abrogate a states sovereign immunity If Congress exercises a power under Article I cannot abrogate State Sovereign Immunity Young does not apply in this case b/c of procedural junk Idaho v. Coeur dAlene Tribe of Idaho Decided 1 year after Seminole tribe Facts: The tribe sought declaratory judgment to establish its entitlement to the exclusive use and occupancy of land as well as the invalidity of Idaho regulations allowing state use and regulation of such land. Holding: To interpret Young to permit a fed. court action to proceed in every case where prospective decl./inj. relief against an officer would be to adhere to an empty formalism & undermine the principle. It should reflect an understanding of the judiciarys role (Art. III), not a reliance on an obvious fiction. Rationale: The young doctrine applies to cases that call for interpretation of Fed law. Where a case questions the state laws it must bring its suit in a state forum. Young invoked when: no state forum available to vindicate fed. interest & to interpret fed. law. Usually, prospective relief is sufficient to invoke Young principle, but this is unusual b/c a quiet title action implicates a special sovereign interest. We must examine its effect on the state first. The states interest in its land & waters would be affected as intrusively as a retroactive levy on treasury funds b/c it would bar the states officer form exercising their gov. power over waters deemed by the state to be an integral part of their territory. Florida PrePaid v. College Sav Bank Congress passed a law called a patent law, which said state we are waiving your immunity The court rules that the States are immune states can ignore individual rights in properties No one thought the court would actually do this Central Virginia Community College v. Katz bankruptcy power, Congress passes a bankruptcy law Court says the state is not immune from bankruptcy- under Article I we now have the State is not immune under bankruptcy law

1)

2) 3) 4)

If you look at the language of bankruptcy, it says that laws must be uniform concerning the subject, so we are addressing this uniformity need Absurd situation where bankruptcy is an Article I power, and states have no immunity and can get money is not just injunctive relief, it is no Ex Parte Young How can this be? B/c the 11th Amendment has gone crazy If Congress passes a law under Article I, you cannot sue a state to enforce a right that you might have, Congress cannot waive a States immunity Except if it deals w/ bankruptcy Ex Parte Young has to be prospective, continuing violation, cannot be monetary relief Congress can waive States immunity under the 14th Amendment Federal govt can always sue the States to vindicate federal rights, if State is violating a federal law Congruent and proportional test Congress must pass a law that is congruent and proportional, otherwise the State is immune from that lawsuit Test for when Fedl govt cannot tell a state what to do Printz In limited circumstance State can still assert that the fedl govt cannot reach that far, must figure out that test