Raechelle C. Yballe

ConLaw I

Prof. Huhn

University of Akron

JUSTICIABILITY

Political Question

• Baker v. Carr Factors
  • Is there a textually demonstrable constitutional commitment of the issue to a coordinate political department
  • Is there a lack of judicially cognizable and manageable standards for resolving the problem?
  • Will solving the issue require an initial policy determination of a kind clearly for nonjudicial discretion
  • Will it be impossible for a court to undertake an independent resolution of the issue without expressing a lack of the respect due to the coordinate branches of gov’t?
  • Is there an unusual need for unquestioning adherence to a political decision already made?
  • Potentiality of embarrassment from multifarious pronouncements by various departments on one question

Standing (RITZ)

• Elements
  • Injury in fact to the P
  • Traceable to the government’s action
  • Likely to be redressible by the courts
• Statutory Standing: where P is bringing suit under a statute
  • Injury in fact to P
  • Traceable to government’s action
  • Likely to be redressible by the courts
  • P is within the zone of interests protected by the statute

Separation of Powers

• Youngstown (presidential seizure: what is the scope of the executive’s powers?)
  • BLACK – textual argument
    • The powers of the three branches are defined by the constitution
      • Creation of legal rights = legislative
      • Execution/enforcement of law = executive
      • Adjudicatory = judicial
  • FRANKFURTER – traditionally, Congress has allowed this power to vest in the executive BUT has limited it
  • JACKSON – tripartite theory of separation: powers are not fixed by overlap and fluctuate depending on how the executive interacts with the congress
    • President acts pursuant to an express/implied legislative authority
      • President’s authority is at a maximum
      • Includes all executive power plus those delegated by Congress
      • President personifies federal sovereign
      • STRONG presumption of constitutionality
      • Afforded the widest latitude of judicial interpretation
      • Act can only be unconstitutional if the federal gov’t as a whole lacks power
    • Congress is silent and the President acts
      • President can rely only on his own constitutional powers
      • ZONE OF TWILIGHT
        • Pres and Congress have concurrent authority   OR
        • Distribution is uncertain
        • Silence may be an invitation == BUT no bright line rules
        • Test will depend on the facts/circumstances
    • President’s act is incompatible with the expressed/implied will of Congress
      • He can only rely on his own constitutional power  MINUS any constitutional powers of the Congress that overlaps
      • Must be scrutinized with caution because to sustain constitutionality of the act would be to wrench from Congress authority/power its supposed to have
• Chadha (delegation of legislative authority to the executive branch)
  • BURGER: When Congress delegates legislative authority, it must abide by that delegation until it is revoked or legislatively altered è it cannot use the one house veto
    • Determinations of policy can only be implemented through bicameral passage followed by prsentment
    • Framers intent: when either house acts alone and outside bicameral leg. role, Framers defined procedure to do so narrowly and precisely
      • Only 4 provisions where either house can act on its own
    • Textual argument:
      • I, 1 = legislative powers to house and senate
      • I, 7, 2 = every bill shall be passed by both houses
      • I, 7, 3 = order/resolution/vote necessitating concurrence by both houses must be presented to the president
  • WHITE: Where Const. is silent, court should determine if statute is consistent with the purpose of Art I and the principles of separation of powers
    • Only bills and their equivalents are subject to bicameralism and presentment
    • One house veto = important tool for the new administrative state
  • Legislative action = alters legal rights, duties, and relationships of persons
• Synar (legislative officer with executive function)
  • MAIN CONCERN: congressional usurpation of executive branch functions
  • Congress cannot remove an executive officer
  • BURGER: Congress cannot reserve for itself the power to remove an officer charged with an executive function except by impeachment
    • If it reserves this power = congressional veto
    • Congress can fire the office for actual/perceived transgression è affects policy
    • In order to make policy determinations, Congress is bound by the Constitution to follow the principles of bicameralism and presentment
    • Once Congress enacts a particular piece of legislation, the only means to control the execution of that legislation is by passing other legislation
  • WHITE: does the statute so alter the balance of authority among the branches of gov’t such that it poses a genuine threat to the basic division between lawmaking power and the power to execute laws?
• Nondelegation Doctrine (Mistretta)
  • Congress cannot delegate power to administrative agencies unless they give an intelligible principle for issuing rules/law

COMMERCE CLAUSE

• GENERALLY
  • I, 8, [3]
  • 2 functions
    • Grants Congress the express power to regulate commerce among the several states
    • Grants Congress an implied power to regulate intrastate commerce (affectation doctrine)
    • Limits the States’ power to regulate interstate commerce
  • U.S. v. Lopez – 3 broad categories of activity that can be regulated/protected
    • Use of channels of interstate commerce
    • Instrumentalities of interstate commerce and persons or things involved in interstate commerce even if the threat comes only from INTRAstate activities
    • Regulate those activities that, in the aggregate, have a substantial economic effect on interstate commerce (affectation doctrine)
• AFFECTATION DOCTRINE (U.S. v. Lopez)
  • Does the regulated activity, in the aggregate, have a substantial, economic effect on interstate commerce?
  • MAIN CONCERN: preserving federalism  (U.S. v. Morrison)
    • Constitution enumerates Congressional power
    • Expanding Commerce Clause may obliterate distinction between nation and local authority
  • Federal statute must pass the RATIONAL BASIS TEST  (U.S. v. Morrison)
    • Ends must be legitimate
    • Means must be appropriate
• DORMANT COMMERCE CLAUSE
  • Prof. Huhn says Kassel is THE case for studying DCC
  • Generally
    • Limits the States’ power to regulate interstate commerce
    • Is not expressly stated in the Commerce Clause but is a creature of statutory construction (expresio unius)
    • Congress is silent
    • PURPOSE: ?
  • IDENTIFY the state interest
  • Protectionist Laws (Phila v. NJ; West Lynn Creamery)
    • Per se unconstitutional
    • State bears BoP to show that law is not protectionist (?)
    • Protectionism can be accomplished through
      • Legislative means
      • Legislative ends
  • Discriminatory Laws (Maine v. Taylor, Hunt v. Wash. Apple)
    • Presumed unconstitutional
    • Difference between protectionist and discriminatory laws is that a protectionist law has no legitimate purpose
    • TEST
      • Benefits > burdens
        • Legitimate local purpose
          • Health
          • Safety
          • Consumer protection
          • Welfare
        • Purpose may be
          • Actual purpose    OR
          • Plausible purpose
      • Less burdensome alternative
    • BoP on the State to meet BOTH prongs
    • Statute can be discriminatory
      • On its face         OR
      • In its effects
  • Even-Handed Laws (Pike; Southern Pacific v. AZ)
    • Presumed constitutional
    • TEST
      • Benefits > Burdens
        • What is the burden imposed on commerce?
        • Legitimate local purpose?
      • Even if there is a legitimate local purpose, is there a less burdensome alternative to accomplish the state interest?
    • Challenger bears BoP of showing EITHER
      • Benefits < burdens    OR
      • There is a less burdensome alternative to accomplish the state’s interest
• SPENDING CLAUSE (SD v. Dole)
  • TEST: (Gee W U R In Baghdad)
    • Must be in pursuit of the GENERAL WELFARE (cts. should defer substantially to the judgment of Congress)
    • If Congress conditions receipt of federals funds, it must do so UNAMBIGUOUSLY
    • Conditions must be RELATED to the federal interest in particular national projects or programs
    • Other Constitutional provisions may provide INDEPENDENT BAR to the conditional grant
  • Conditioning federal funds must not be coercive
  • Inverse relationship between
    • Relatedness of condition to the federal purpose
    • Percentage of funds withheld
  • Where Congressional regulation of commerce is unconstitutional, Congress may still be able to INDIRECTLY exercise control through Spending Power
• MARKET PARTICIPANT DOCTRINE
  • An exception to the dormant commerce clause
  • Under MPD, even protectionist laws are constitutional
  • If State participates in the market, then it can put conditions on the sale
  • State cannot regulate what happens AFTER sale
  • Example:
    • State can say: you can’t bid for our trees unless you are a company from out state è constitutional under MPD
    • State can say:
• PRE-EMPTION
  • Generally
    • Congress has spoken
    • Conflict between a federal statute and a state statute
    • Does federal law trump state law?
  • State law less burdensome than fed law
    • E.g. federal law imposes 20 hours of training for truckers; state law imposes only 10 hours of training
    • TEST:
      • Interstate commerce? If so, fed. supercedes
      • If  INTRAstate, does it substantially affect commerce? (Affection doctrine)
    • Federal law will usually be upheld on the basis of Commerce Clause
    • State law = pre-empted
  • Fed law less burdensome than state law
    • Federal law only requires 20 hours of training; state law 40 hours of training and 2 days of testing and a written exam
    • IS THE STATE LAW CONSTITUTIONAL?
    • PRE-EMPTION DOCTRINE
      • Legislative Intent: did Congress intend to pre-empt state law? (TOUCHSTONE inquiry)
        • Express Pre-emption
          • look to the face of the statute
          • expressly states that conflicting state law is pre-empted by fed. law
        • Implied Pre-emption – rebuttable presumption that there is no pre-emption
          • Field Pre-emption
            • Federal law has created a “pervasive scheme of regulation”
            • E.g. granting licenses to radio/television through FCC
            • Congress intended to “occupy the field”
            • Any inconsistent state law is pre-empted by federal law
          • Conflict Pre-emption: can state and federal law co-exist?
            • Impossible to comply with BOTH federal and state law
              • State law will be pre-empted by fed. law
            • Frustration of the purpose of the federal law
              • State and federal law conflict
              • But, not impossible to comply with both
              • E.g.: state argues safety; feds argue uniform national standards
              • Then you’re back to Congressional intent (ASK PROF HUHN)

DUE PROCESS

PROCEDURAL DUE PROCESS

• GENERALLY
  • Gov’t cannot deprive someone of life, liberty, or property without a hearing
  • Goldberg v. Kelly = there must be pre-deprivation hearing
  • The fundamental requirement of DP is the opportunity to be heat at a meaningful time and in a meaningful manner (Matthews v. Eldredge)
  • DP is flexible and calls for such procedural protections as the particular situation demands (Matthews)
• Roth
  • Requirement of DP applies only to the deprivation of interests encompassed by the 14th Am.
  • Range of interests protected is NOT infinite
  • Must look to the nature of the interest at stake
• 3 ISSUES FOR ANALYSIS
  • WHETHER the gov’t depriving someone of
    • Life
    • Liberty
    • Property

• If ppty  right is at stake à NO AFFIRMATIVE DUTY DOCTRINE APPLIES
• Ppty rights are
  • created by K
    • not dispositive of whether DP is due (Sindermann)
  • created by statute
  • created through understandings/promises
  • NOT inherent rights
  • NOT created by Constitution

• If so, WHEN should the hearing take place?
• WHAT kind of hearing? (What procedural safeguards must be followed?)
  • Matthews Test
    • What private interest is protected?
    • Risk of error vs. value of additional procedures?
      • How clear-cut or how ambiguous is the decision that gov’t has to make?
      • Will additional procedures add to more accurate determination?
    • Burden imposed on the gov’t?
      • Administrative convenience
      • Cost of benefits
• No Affirmative Duty Doctrine
  • Initially, the gov’t had no Constitutional duty to feed, clothe, give medical care, etc.
  • Goldberg v. Kelly
    • If gov’t establishes/gives a statutory entitlement, its actions in giving/depriving that entitlement must comport with the Constitutional requirements

SUBSTANTIVE DUE PROCESS

• ANALYSIS
  • Is there state action?
  • Is there a fundamental right?
  • If no, use Rational Basis Test (language from McCullough v. Md.)
    • TEST
      • Ends must be legitimate
      • Means must be appropriate
        • Does the law have SOME tendency to accomplish the ends?
        • Very low threshold
    • Challenger bears BoP
      • Ends are illegitimate
      • Means are not appropriate
    • Most laws under this test are held constitutional
  • If yes, use Strict Scrutiny Test

§         TEST

·        Ends

o       Must be legitimate

o       Must be compelling

§         is the gov’t interest strong enough to outweigh the infringement of individual fundamental rights

o       actual vs. plausible gov’t purpose

·        Do we look at the legislative history to see actual purpose?

·        Or do we take the state’s reasons for plausible interest test?

·        Means must be necessary

• Causation element
  • Must be likely to accomplish the gov’t interest
  • Close nexus or direct relation

§         Will statute achieve its goal?

o       Least restrictive alternative

§         State bears BoP

·        Ends are compelling and legitimate

·        No feasible alternative à means are necessary

§         Most laws under this test are held unconstitutional

State Action Doctrine (14th Am.)

• Generally(Lugar)
  • State action is prerequisite to the assertion of rights contained in both the first 8 Ams. and the 14th
  • Conduct that deprives a person of federal rights must be attributable to the State
    • Deprivation must be caused by exercise of right/privilege created by the state
    • Party to be charged with the deprivation must be a person who may fairly be said to be a state actor
      • State official
• Two rubrics
  • Private actor subject to constitutional requirements b/c state has delegated a traditional state function to it
  • Private actor subject to constitutional requirements b/c
    • State has become entangled with private entity
    • State has approved/encouraged/facilitated private conduct
    • MODERN TEST: Was gov’t significantly involved in the decision that is being complained of
• Is there state action?
  • Join participation?
  • Symbiotic relationship?
  • State encouragement?
  • PURE INACTION  = NO AFFIRMATIVE DUTY (Deshaney)
  • MERE ACQUIESENCE = not state action (Flagg Brothers)
  • MERE REGULATION = not state action
• Public Function Doctrine
  • The more open a private property is to the public, the greater the likelihood that it will be subject to Constitutional constraint (OLD TEST)
  • Was the function the state delegated to the private actor “traditionally exclusively a governmental function”  (MODERN TEST)
    • Education: not a traditionally exclusively governmental function