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Constitutional Law

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Constitutional Law

Course Info

Professor: Unknown Semester: Fall 2015 Source: Conlaw_FL15.txt

Topics Covered

Detailed Outline

I. Judicial Review and Constitutional Interpretation

Marbury v. Madison: Establishes judicial review of Acts of Congress.

  • Art. III §2 extends to all cases arising under the Constitution
  • Judiciary Act of 1789 §13 adds writs of mandamus to original jurisdiction → unconstitutional
  • “It is emphatically the province and duty of the judicial department to say what the law is”

Scope of Judicial Review:

  • Federal courts supreme in exposition of federal law (Cooper v. Aaron)
  • Review of state court judgments: S. Ct. has appellate jurisdiction (Martin v. Hunter’s Lessee)
  • Certain matters require uniform national legislation; states are incompetent to handle them inconsistently

Constitutional Interpretation Methods:

  • Originalism: intent, meaning/understanding
  • Textualism: plain text
  • Purposivism: purpose behind provision
  • Living constitutionalism / dynamic interpretation
  • “We must never forget it is a constitution we are expounding” (Marshall in McCulloch)

Political Question Doctrine:

  • Textual commitment to another branch (e.g., Senate has “sole power to try impeachments” — Nixon v. US)
  • Lack of judicially discoverable or manageable standards (Baker v. Carr)
  • Justiciable: legislative malapportionment (Baker), one-person one-vote (Reynolds v. Sims)
  • Non-justiciable: impeachment of judges, guarantee clause, validity of amendments

II. Justiciability

Standing (Constitutional — Lujan v. Defenders of Wildlife):

  1. Plaintiff personally suffered injury (concrete, particularized, actual or imminent)
  2. Causation: injury caused by defendant’s acts
  3. Redressability: favorable decision would remedy the injury

Prudential Limits (Congress can remove):

  • No third-party standing generally (Craig v. Boren exception)
  • Taxpayer standing insufficient unless Flast test met (direct expenditure under Taxing/Spending Clause)

Ripeness: Must be harm or immediate threat of harm; state law generally can’t be challenged before enforcement.

Mootness: Controversy must exist at all stages of litigation.

No Advisory Opinions: Requires actual dispute + substantial likelihood of relief.

III. Federalism — Enumerated Powers

Necessary and Proper Clause (McCulloch v. Maryland):

  • Broad implied powers: “necessary” means useful/convenient, not “absolutely necessary”
  • Gov’t cannot use implied powers as pretext for great independent powers (taxing, foreign affairs)
  • Two faces: (1) deference to Congress; (2) court reserves power to invalidate if rights infringed

Historical Evolution of Commerce Clause:

  • Gibbons v. Ogden: “commerce” = virtually every activity affecting more than one state; “regulation” = plenary power; includes intrastate parts of larger interstate enterprise
  • Formalist era: manufacturing/mining/agriculture = intrastate commerce (Hammer v. Dagenhart — overruled)
  • New Deal: overrule Dagenhart; rational basis review (Darby Lumber)

Lopez Three-Category Test (United States v. Lopez; United States v. Morrison):

  1. Channels: roads, rivers, train tracks, airspace
  2. Instrumentalities: people, machines, automobiles that pass through channels
  3. (Intrastate) activity substantially affecting interstate commerce — must be economic activity; jurisdictional element helps (converts substantial effects into instrumentalities)

Gonzales v. Raich: Regulating local medicinal marijuana upheld under Commerce Clause; aggregate effect of all intrastate homegrown marijuana substantially affects the interstate market (applying Wickard v. Filburn).

NFIB v. Sebelius (ACA Individual Mandate):

  • Commerce Clause cannot compel inactivity into activity (“calling into commerce”)
  • Mandate survived as a tax: revenue-generating purpose, collected by IRS, no scienter, no criminal sanctions, amount is a penalty less than price of insurance
  • Medicaid expansion: spending condition coercive when threatening all existing Medicaid funding

National Solutions Test (implicit in Lopez/Morrison):

  • Is there a national problem requiring collective solution?
  • Are states separately incompetent (e.g., regulatory arbitrage)?

IV. Taxing and Spending

What is a Tax? (Sebelius/Sonzhinsky):

  • Revenue-generating purpose
  • Does not virtually prohibit activity; dampen it (pigovian tax)
  • No scienter requirement; no criminal sanctions
  • Clear statement it is a tax (collected by IRS, congressional intent)

Spending Power Limits (South Dakota v. Dole; Sebelius):

  1. Must be for general welfare
  2. Conditions must be unambiguous
  3. Conditions must be germane to federal interests
  4. Conditions must not be coercive (Sebelius — all-or-nothing Medicaid = coercion)
  5. Conditions must not violate independent constitutional rights
  • Congress can do through conditions what it could not do directly (Dole — drinking age via highway funds)

Treaty Power (Missouri v. Holland):

  • Self-executing vs. non-self-executing treaties
  • Can implement beyond Art. I §8 powers, but not beyond the Constitution (Reid v. Covert)
  • Must involve international problem, not purely domestic (Bond v. United States)

V. Tenth Amendment and Anti-Commandeering

Garcia v. San Antonio Metropolitan: Courts cannot draw the line between state/federal powers; federal political process protects states’ interests (partially overrules National League Cities).

Anti-Commandeering Doctrine:

  • Federal government cannot commandeer state officials to enforce federal law (Printz v. United States)
  • Federal government may not compel states to enact or administer a federal regulatory program (New York v. United States)
  • But: if legitimate use of federal power (taxing, spending, commerce) that incentivizes (not commandeers) state action → constitutional (Dole)

Issues with commandeering: blurs accountability, burdens states financially, increases federal power, robs President of power to enforce laws.

VI. Dormant Commerce Clause

Core principle: Even without federal legislation, states cannot discriminate against interstate commerce.

VII. Separation of Powers

Jackson’s Tripartite Framework (Steel Seizure / Youngstown Sheet & Tube):

  1. President + express/implied authority from Congress → maximum power
  2. President + absence of congressional action → acts on independent authority (foreign affairs, executive agreements)
  3. President + disapproval of Congress → only constitutional powers (least power; highly suspect)

Foreign Affairs and War:

  • Congressional power to make war; President can authorize military action (War Powers Resolution: report within 48 hours, 60-day authorization limit)
  • Vesting clause + “receive ambassadors” → President’s exclusive power to recognize sovereigns (Zivotofsky v. Kerry)
  • Detainees: Writ of Habeas Corpus survives at Guantanamo (Boumediene v. Bush — de facto jurisdiction)

Procedural Requirements for Legislation:

  • One-house legislative veto violates bicameralism and presentment (INS v. Chadha)
  • Line-item veto = unilateral power to change text of duly enacted statute — unconstitutional (Clinton v. New York)
  • Non-delegation doctrine: Congress must give intelligible principle for agency lawmaking (largely toothless today)

Appointment and Removal:

  • Congress cannot appoint officers to agencies (Buckley)
  • If officer performs purely executive functions → removable at will by President (Myers, Bowsher)
  • Officers of independent agencies with quasi-legislative/judicial powers → removal limited to good cause (Humphrey’s Executor)
  • Independent counsel → good cause removal by AG upheld (Morrison v. Olson)
  • Two layers of good cause removal = too difficult, interferes with removal powers (PCAOB)
  • Recess appointments: require recess of more than 3 days (NLRB v. Canning)

VIII. Individual Rights — Historical Development

Bill of Rights originally applied only against federal government (Barron v. Mayor & City of Baltimore).

Slaughterhouse Cases: Privileges or Immunities Clause of 14th Amendment narrowly construed — protects only privileges of national citizenship, not state citizenship; did not protect general civil rights against states.

Lochner Era:

  • Substantive due process used to invalidate economic regulation: liberty of contract in 14th Amendment (Lochner v. New York)
  • Presumption against state economic regulation
  • J. Holmes dissent: “The Fourteenth Amendment does not enact Mr. Herbert Spencer’s Social Statics”
  • Pulled back by: West Coast Hotel (no freedom of contract in Constitution); Nebbia (rational relation to legislative purpose suffices)
  • Carolene Products fn. 4: Lesser presumption of constitutionality when:
    1. Legislation violates specific Bill of Rights/14th Amendment prohibition
    2. Legislation restricts ordinary political processes (voting, speech, association)
    3. Legislation directed at discrete and insular minorities

Modern Legacy: Extreme deference in economic regulation (rational basis); robust review in enumerated rights and minority protection.

IX. Equal Protection

Levels of Scrutiny:

  1. Strict scrutiny (race, national origin): narrowly tailored to a compelling governmental interest
  2. Intermediate scrutiny (sex/gender, illegitimacy): substantially related to an important governmental objective
  3. Rational basis (economic, social regulation): rationally related to a legitimate state interest

Rational Basis Review

  • Very forgiving; almost everything passes (Railway Express, Williamson v. Lee Optical)
  • Over-inclusiveness and under-inclusiveness both OK
  • Post-hoc rationale sufficient

Race and Equal Protection

Brown I (1954): De jure segregation in public schools violates Equal Protection.

  • Racial classifications trigger strict scrutiny
  • Historical purpose of 14th Amendment; Carolene Products fn. 4 rationale; changed importance of education

Brown II: “All deliberate speed” → later: integration must be implemented now (Green v. County School Board)

Key Distinctions:

  • Brown attacks de jure segregation, not de facto (structural) segregation
  • Parents Involved: Once segregation remedied, subsequent segregation = private choices; no duty to remedy

Facial Neutrality and Discriminatory Impact:

Affirmative Action:

  • Race-conscious admissions: compelling interest = diverse student body; plus-factor OK, not quota (Bakke)
  • Strict scrutiny applies to all racial classifications (Croson)
  • Narrow tailoring: compelling interest; individualized review; no quota system (Grutter/Gratz)
  • Diversity in education = compelling interest, but narrow tailoring requires close analysis (Fisher v. UT)

Korematsu v. US (1944): Japanese internment upheld in wartime — demonstrates limits of strict scrutiny under military deference; teaches that courts may fail to protect minorities in exigent circumstances.

Reverse incorporation: 5th Amendment Due Process = Equal Protection against federal government (Bolling v. Sharpe).

Sex and Gender

  • Intermediate scrutiny: classifications must serve important governmental objectives and be substantially related to achieving them (Craig v. Boren)
  • “Exceedingly persuasive justification” required for gender-based classifications, approaching strict scrutiny (US v. Virginia — VMI)
  • Pregnancy = not sex discrimination (Geduldig v. Aiello); Congress used Title VII to fix this
  • Sex stereotypes → heightened intermediate scrutiny

Sexual Orientation

  • Not a formally recognized suspect class (though see Windsor, Obergefell)
  • DOMA struck down under 5th Amendment DPC + EPC animus rationale (US v. Windsor)
  • Animus principle: law whose “sheer breadth” can only be explained by hostility to a politically unpopular group fails rational basis (Romer v. Evans — Amendment 2)

Rational Basis with Teeth (“Anti-Animus Principle”):

  • Statutes motivated by bare desire to harm an identifiable group fail even rational basis
  • Moreno (hippies / food stamps), Cleburne (group homes for disabled), Romer (Amendment 2), Windsor (DOMA)

X. Substantive Due Process (Modern)

Modern Doctrine (post-Lochner):

  • Applies robustly in: marriage (Loving), abortion, intimate family decisions, certain fundamental rights
  • Fundamental rights analysis: “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty”
  • Not applied to economic regulation (rational basis after West Coast Hotel/Nebbia)

Incorporation of Bill of Rights against States (via 14th Amendment DPC):

  • Mechanism: Due Process Clause (Privileges or Immunities dead after Slaughterhouse)
  • Selective incorporation: nearly all Bill of Rights provisions incorporated “jot for jot”
  • Not incorporated: 3rd Amendment, 7th Amendment, 5th Amendment Grand Jury component (Hurtado), 6th Amendment unanimous verdict requirement (Apodaca)

XI. First Amendment

Free Speech

Evolution:

  • “Clear and present danger” test (Schenck)
  • J. Brandeis: danger must be imminent and serious to justify suppression (Whitney)
  • Modern Brandenburg test: Speech not protected only if speaker intends to incite violation of law that is both imminent and likely (Brandenburg v. Ohio)

Content-Based vs. Content-Neutral:

  • Restricting speech based on content → strict scrutiny
  • Restricting speech on time, manner, place (content-neutral) → intermediate scrutiny
  • Targeting expressive conduct for its expression → strict scrutiny (Texas v. Johnson)
  • Targeting non-expressive conduct with incidental effects on speech → relaxed intermediate scrutiny (US v. O’Brien)

Exceptions: obscenity; defamation (actual malice for public figures — NY Times v. Sullivan); fighting words (but must be content-neutral — RAV v. City of St. Paul)

Campaign Finance:

  • Buckley v. Valeo: Limits on contributions → intermediate-ish scrutiny (symbolic expression + anti-corruption interest); limits on expenditures → strict scrutiny (direct speech)
  • Citizens United v. FEC: Corporate independent expenditures protected under First Amendment; overrules Austin; anti-distortion interest not compelling

Establishment of Religion

Lemon Test (Lemon v. Kurtzman):

  1. Statute has secular (not predominantly religious) purpose
  2. Primary effect does not advance/inhibit religion
  3. No excessive entanglement between government and religion

Endorsement Test: Does government appear to take a position on religion making non-favored feel denigrated? (Allegheny County v. ACLU)

Coercion Test: Psychological coercion to participate in religion violates Establishment Clause (Lee v. Weisman — graduation prayer)

Ceremonial deism: “Under God” in Pledge of Allegiance = ceremonial, not religious endorsement.

Historical practice exception: Long-standing practice (e.g., legislative chaplains since 1791) presumptively constitutional (Marsh v. Chambers).

Free Exercise of Religion

  • Sherbert v. Verner: Established strict scrutiny for free exercise (overruled for neutral laws)
  • Employment Division v. Smith (1990): Neutral laws of general applicability do not violate 1st Amendment, even if they burden religious practice
  • Exception: Hybrid claims (free exercise + another fundamental right); targeted anti-religious laws
  • Burwell v. Hobby Lobby (2014): RFRA requires strict scrutiny (least restrictive means) when neutral law substantially burdens closely held corporation’s religious exercise

XII. Second Amendment

  • Individual right to bear arms for self-defense (District of Columbia v. Heller)
  • Incorporated against states (McDonald v. Chicago)
  • Limitations: unusual weapons may be regulated; time, place, and manner restrictions OK
  • Standard: intermediate-ish scrutiny for restrictions on commonly-used weapons

Key Doctrines

Key Cases

Exam Approach

1. Federalism / Commerce Clause

  • Is this a channel, instrumentality, or activity substantially affecting interstate commerce?
  • Is the regulated activity economic? Jurisdictional element?
  • Taxing power: revenue-generating, pigovian, not a penalty?
  • Spending: conditions unambiguous, germane, not coercive (Sebelius all-or-nothing problem)?
  • Anti-commandeering: Is this compelling states to enact/enforce federal law (Printz) or just an incentive (Dole)?

2. Separation of Powers

  • Presidential action: which Youngstown zone? Express authority / congressional silence / congressional disapproval?
  • Appointment: principal vs. inferior officer?
  • Removal: purely executive → removable at will; independent agency quasi-powers → good cause
  • Legislative veto, line-item veto → categorically unconstitutional

3. Equal Protection

  • What classification? Race → strict scrutiny; sex → intermediate; economic → rational basis
  • Discriminatory impact alone insufficient; need discriminatory intent (Washington v. Davis / Arlington Heights)
  • Affirmative action: compelling interest (diversity in education OK); quota system = fatal; plus-factor = OK
  • Animus principle: bare hostility toward a group fails even rational basis (Moreno, Cleburne, Romer, Windsor)

4. Substantive Due Process

  • Fundamental right? Deeply rooted in history and tradition?
  • Economic regulation → rational basis (post-Lochner)
  • Marriage, abortion, intimate decisions → robust review

5. First Amendment

  • Content-based → strict scrutiny; content-neutral → intermediate
  • Expressive conduct: is regulation targeting expressive element (strict) or incidental (O’Brien)?
  • Establishment: Lemon test; endorsement test; coercion test; ceremonial deism
  • Free exercise: neutral law of general applicability → Smith (no violation); targeted at religion → strict scrutiny; RFRA for federal statutes → least restrictive means

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