Federal Legislative power

Question 1

When Can the Congress Act

Answer 1

Congress can only act if there is an express or implied authority in the Constitution

Question 2

Congress requires these two things in order to act

Answer 2

Constitutional Authority (Express or Implied)
The congressional act does not violate another Constitutional Provision

Question 3

Rule for congressional power to act

Answer 3

Congress may use any means plainly adapted or rationally related to furthering one of its enumerated powers

Question 4

Federal Legislative Power

Answer 4

Article 1 + Enforcement Clauses (14A §5)

Question 5

McCulloch:

Answer 5

Means rationally related to legitimate ends = Necessary & Proper

Question 6

N&P:

Answer 6

an additional power granted to congress to regulate interstate commerce

Question 7

Rational Basis Test:

Answer 7

used to determine whether the means employed by Cong. are legitimate - so long as means are not in violation of Cong. authority, Congress may take whatever reasonable means necessary to achieve that end.

Question 8

Congress Enumerated Powers

Answer 8

1. Commerce: 3 categories (RB for aggregated Substantial Effects, but Lopez factors if non, econ)
2. Taxing/Spending: Plenary; Dole 4 Part test; not too coercive (e.g., Sebelius)
3. Enforcement: - Sec. 5 of 14A (Boerne: remedy/deter via congruent/proportional); 15A (Shelby “Current conditions”); 13A (“badges and incidents of Slavery”)

Question 9

Limits on Congressional Powers

Answer 9

1. 10A: no commandeering state legislative (NY) or executive (Printz)
2. 11A: no subjective non-consenting states to lawsuits unless state consents OR enjoining state officials OR clear abrogation + Sec 5 Power

Question 10

Commerce Clause

Answer 10

(Currently in Narrow Era, 1995 - NOW)
Determined by a categorical approach which Congress many regulate under Perez
→ Can regulate both private and state: But regulation under this against states runs into an 11th Amendment issue, So do 14th Still.

Question 11

Rule: Congress: Can Regulate 3 Categories of Interstate Commerce

Answer 11

1. Channels - movement (interstate commerce travel through)
2. Instrumentalities - goods (good which cross interstate)
3. Activities substantially affecting Catch-all - Lopez/Morrison (5 factors to determine whether an activity actually affects interstate commerce)

Question 12

Lopez/Morrison (5 factors to determine whether an activity actually affects interstate commerce)

Answer 12

1. Is activity economic in nature or an essential part of larger economic scheme: (Homegrown Wheat, marijuana)
2. Jurisdictional Element: Provision within the regulation which limits the reach of the regulated activity to those which have traveled through interstate commerce
3. Congressional/Legislative Findings: (showing substantial effect on Interstate commerce)
4. Links not too Attenuated: means are related to interstate commerce
5. Federalism: (Whether regulational maintains distinction between national + local) May not aggregate if non economic

Question 13

Ollie’s BBQ:

Answer 13

even if hotel if local, if goods provided come from flow of interstate commerce Congress can regulate

Question 14

Heart of Atlanta Hotel

Answer 14

example of 3rd category. Even though local the racial discrimination substantially impacted IC

Question 15

Lopez:

Answer 15

regulation of Guns in school does not fit within the 5 factors used to determine whether an actively substantially affects interstate commerce.

Regulating guns in schools is not an essential part of a larger regulation of economic activity
The regulation of guns in schools contains no jurisdictional element which would ensure, by a case-by-case basis that the firearm possession in question affects interstate
No finding which demonstrate that legislature may regulate
The argument that guns in schools greatly impact interstate commerce is too attenuated

Question 16

Morrison

Answer 16

Congress attempted to regulate gender violence through the commerce clause
Gender motivated crimes are not economic activity
There is no interstate inclusion within the statute
Court was unpersuaded by the finding that gender motivated violence substantially affects interstate commerce
Links between regulating gender violence and interstate commerce is too attenuated
Petitioners argument would allow COngress to regulate anything and destroy the distinction between national and local authority
We reject the argument that Congress may regulate noneconomic violent criminal conduct based solely on that conducts aggregate effect on interstate commerce

Question 17

Rache

Answer 17

Congress argued that their outlawing of marijuana was in relation to the commerce clause because marijuana is an economic good

Marijuana is a commodity in the market similar to Filburn
This case is distinct from Lopez and Morison given that marijuana is an economic activity

Question 18

Taxing & Spending

Answer 18

Plenary power to lay + Collect taxes
Rational basis review but canNOT have coercion/coercive ties to $

Rule: Congress has broad taxing and spending authority NOT limited by other Enumerated powers

SD v. Dole Test: Conditions on Spending Must Meet 4 Requirements

Question 19

If conditions are set on spending (south Dakota v. Dole TEST).

Answer 19

1. For general welfare → Rational Basis
2. Unambiguous and clear conditions so states can exercise their choice knowingly of the consequences
3. Germane/Related (Is spending condition rationally related to the federal spending program)
4. Spending Conditions must not otherwise violate the constitution (especially 10A/federalism)
   → Cannot turn pressure of funds into compulsion
   → Feds canNOT coerce States
   → Compare:
   SD v. Dole: min. Drinking age for states that receive federal funds 5% in federal highway funding in SD = NOT coercive
   Sebelius: 10% of the budget amounting to 100% of Medicaid funding = Coercive

Question 20

Sebelius: Invidivual Mandate

Answer 20

Individual Mandate
→ Commerce clause regulates economic activity: does not regulate economic activity which forces people to participate in a market they did not previously

→ Taxing power: So long as it raises revenue it’s Constitutional, it’s a tax which congress has authority to make

Question 21

Sebelius Medicade Expansion

Answer 21

→ Congress cannot threaten to give states more money in a program that they have already been giving states with an added condition
→ Congress can decide not to spend
And threaten to abolish the program
Altogether

→ Too much money (i.e., 10% of the overall state budget) being revoked is too coercive

Question 22

Section 5 of 14th Amendment

Answer 22

Rule: Congress has the power to prohibit state action that violates 14A through appropriate legislation

ATTACK:
Regulating state or private action?
Narrow or broad TEST:

Question 23

Slaughter House Cases:

Answer 23

→ 13th Am.: Application of indentured servitude intended not for butchers ability to chose their work, but African Americans once slaves; only applies to slavery

→ 14th Am: Privilege and Immunities: The only rights which are protected under privileges and immunities are fundamental rights
→ No privileges and Immunities enforcement by Congress; essentially nullifies the
P&I clause; but see Saenz
→ Due Process: only applies to rights within the meaning of liberty
→ Equal protection: only applies to racial discrimination

Question 24

Saenz:

Answer 24

If you are U.S. citizen and once you travel to and reside in a State, you have the same privileges and immunities in that state as a natural citizen
→ If state subjects newcomers to 2nd class status, the Court applies Strict scrutiny and
Will strike down such law; can’t have 1st or 2nd class citizens
→ Selective Incorporation: Some of the Bill of Rights (1st 10 Amendments) are
Fundamental enough to be considered as liberty and thus protected by 14A due
Process. Test:
1. Whether right is fundamental to our scheme of ordered liberty or so fundamental a democracy could not function without that right
2. Deeply rooted in this nations history and tradition

 → Question is: What rights are protected as “liberty” under 14thA which Congress can
      Enforces on the states?

Question 25

State Action Doctrine

Answer 25

State Action Doctrine: 14th Amendment (all provisions) only applies to State/Gov’t action
→ Does not apply to private sector
→ Exceptions
1. Public Function: Private entity must comply with Const. If performing task traditionally or exclusively done by gov’t (like prisons)
2. Entanglement Exception: Private entities must comply with Constitution if the government has authorized, encouraged, or facilitate the entity’s conduct
→ so much entanglement between private actor and government, Consti.
Applies to the actor as an agent of the government

Morrison: 14th Am. only restricts gov’t action; not private action (No state action for gender based violence)

Question 26

Pre Civil War Bill of Rights

Answer 26

Bill of Rights (Amendments) do not apply to States, only General Gov’t

Question 27

Post Civil War:

Answer 27

Congress was to enforce all of these against states
13A: No slavery or indentured servitude shall exist (unless prison labor)
15A: No denial of right to vote based on Race
19A: No discrimination to vote based on sex
24A: No poll tax (Pay to vote)
26A: no age discrimination to vote as long as 18

Question 28

Two Different Tests for Application of 14th Amendment

Answer 28

(Do Narrow Test First, then broad test in Essay Analysis)

Narrow Boerne Test

Broade: Katzenbach

Question 29

Boerne Test

Answer 29

Congress has no authority to subject each state and local law to a strict scrutiny test which applies to general laws which do not directly interfere with a specific right [i.e. liberty]
→ Congress may:
1. Remedy OR Prevent likely const. Violations via
2. A pattern or practice of actual discrimination OR any likely violations
→ Actual Discrimination: Anything that the court applies strict scrutiny to
Under the Equal protection cases
3. Using means which are congruent and proportional
→ Congruent: means related to the kind of ends
→ Proportional: related in degree employed

Question 30

Boerne

Answer 30

Boerne: If the problem was religious bigotry, and Congress’s solution (RFRA) impacted state laws (zoning) that have nothing to do with religious bigotry,
then the solution is not congruent (not related in kind).

If the problem is miniscule at best (infrequency of states using zoning laws to engage in religious bigotry) and the solution is sweeping (RFRA applies to all state laws), then the solution is not proportional (not related in degree).

The upshot: when Congress uses its Sec 5 of 14A power to pass a law that is not congruent and proportional to remedying/preventing likely constitutional violations, the Court suspects that Congress is trying to change the substantive meaning of the Constitution (Equal Protection Clause), which it can’t do.

Going forward, if Congress wants to prevent constitutional violations by states for types of discrimination that receive rational basis review, it would need evidence of a “pattern or practice of unconstitutional conduct” (i.e., irrational discrimination, or discrimination that fails the rational basis test) by the states. Congress didn’t have any evidence at all of states using zoning laws for purposes of religious bigotry. So RFRA was declared unconstitutional as applied to the states.

Question 31

Broad Katzenbach

Answer 31

Congress can enforce the 14thA through rational basis
1. Legitimate Ends: congress has power through 14th A
2. Legitimate Means: Rational Basis
→ Even if Congress has limited the enforcement, Congress can go beyond The limitation if such limitation might impede a Const. Power
Congress has

Katzenbach v. Morgan (no literacy tests for Puerto Ricans in NY) was about Congress’s power under Sec 5 of 14A to enforce Equal Protection with appropriate legislation.

Question 32

Did Congress Violate Any other Congressional Provisions/Doctrines?

Answer 32

Second Step: If Congress did have the authority to act, has Congress engaged in Constitutional violation?

Question 33

10th Amendment:

Answer 33

Federalism → congress cannot commandeer State legislative (NY) or executive (printz) for it’s own purpose

Question 35

→ Legislative Commandeering:

Answer 35

→ Congress imposes policies on states
→ New York [Radio active waste] Can tell states to regulate waste, cannot Tell states how to regulate waste
→ Fed. Gov’t cannot compel state to enact or administer fed. Regulatory Program

Question 36

→ Executive Commandeering:

Answer 36

→ Congress tells states how to regulate or act/administer federal policy
→ Printz - forcing states to do background checks for handgun licensing

Question 37

EXCEPTION:

Answer 37

States acting as marketplace participant and NOT regulating as state
In their governing or sovereign capacity
→ Reno: Selling DMV information

Question 38

Federalism Serves Three Functions:

Answer 38

1. Increases and protects liberty
2. Promotes political accountability
3. Prevents Congress from cost shifting costs of policy to states

Question 39

Rule of Decision:

Answer 39

When Federal Law conflicts with State law, federal law is supreme only if they can prove
1. The exercise of power is conferred to Congress by the Const.
2. The provisions at issue must at best read as one that regulates private actors

Question 40

11th Amendment

Answer 40

Grants states immunity from being sued by citizens of others states

Question 41

Hans

Answer 41

Hans: Extend 11A. To prevents suits against citizens suing states they live in

Question 42

Semiole Tribe:

Answer 42

Congress cannot authorize suits against states under Article 1 Power (federal questions)

Question 43

3 Exceptions to State Sovereign Immunity

Answer 43

3 Exceptions to State Sovereign Immunity
1. Consent/Waiver: State express consents or waives (typically where congress attaches a condition to the law saying states must waiver their 11A right not to be sued to receive funds)

2. State officials sued in Fed. court for injunctive relief (ex parte Young)
   → cannot sue treasury for monetary damages
   → can sue for money damages directly from the officer in question
3. Clear Abrograton: if Congress clearly abrogates state immunity due to valid enforcement of §5 of 14tA (Fitzpatrick - prohibition of race or sex employment discrimination)

a. Analyze 14A §5 Boerne test first, then Next, if the government had been engaging in EP violations, then you continue to assess whether Congress is remedying/deterring such violations by congruent and proportional means. If YES, then Congress had authority to enact the law (and also to abrogate state 11A immunity, assuming Congress also makes a clear statement of abrogation). If NO, then Congress had no authority to enact the law (and also no authority to abrogate state immunity).

Ex. Congress may explicitly abrogate 11A State Immunity when it legislates pursuant to power to enforce 14A Fitzpatrick Congress authorized federal courts to award damages against states violating TItle VII race/sex discrimination in employment

*Cannot work against private individuals because 14A only applies to public government actors.

Question 44

Bottom line

Answer 44

Congress CanNOT abrogate State immunity from lawsuits under Art. 1 commerce, or Taxing/Spenging powers… so congress would use 14A power to authorize damages lawsuits against states (public, gov’t actors) violating federal laws

BUT Congress CanNOT regulate private actors under 14A so Congress would use Art. 1 commerce or taxing/spending power (Or other Art. 1 power) to authorize lawsuits against private actors.