Outline Flashcards
State Action - Generally
The State Action Doctrine provides that the application of constitutional rights only applies to government actions.
State Action - Private Entities
Private entities are not required to comply with the Constitution (Civil Rights Cases)
State Action - Public Functions Exception
Private entities must comply with the Constitution if it is performing a task that has been traditionally and exclusively done by the government (Marsh v. Alabama)
State Action Found:
“Company-owned” town (Marsh v. Alabama)
Private party holding preprimary election (Terry v. Adams)
Use of private property as public park (Evans v. Newton)
No State Action Found:
Utility service that was “extensively regulated” (Jackson v. Metropolitan Edison Co.)
Operation of private shopping center (Lloyd Corp. v. Tanner; Hudgens v. NLRB)
State Action - Entanglement Exception
Private entities must comply with the Constitution when the government affirmatively authorizes, encourages, or facilitates unconstitutional action.
State Action Found:
Enforcing racially restrictive covenant (Shelley v. Kraemer)
Issuing prejudgment writ of attachment for creditor (Lugar v. Edmonson Oil)
Private parking business that is located in a state-owned public facility (Burton v. Wilmington Parking Authority)
Funding discriminatory private school (Norwood v. Harrison)
Neutral stance that would allow discrimination to occur in the sale and rental of private housing (Reitman)
No State Action Found:
State issuance of liquor license for private club (Moose Lodge v. Irvis)
Private nursing home that received Medicaid funding (Blum v. Yaretsky)
Private school that received federal funding (Rendell-Baker v. Kohn)
State Action - Entwinement Exception
Private entities must comply with the Constitution if the private entity is overborne by the pervasive entwinement of public institutions and public officials.
State Action Found:
Association that regulates high school sports: (i) which most public schools belonged; (ii) governing body was made up mostly of public school officials; (iii) whose meetings were held during school hours; (iv) whose employees could join the state retirement system; and (v) which is funded by gate receipts from high school sports events (Brentwood Academy v. Tennessee Secondary School Athletic Association)
State Action Not Found:
NCAA, which is a nationwide voluntary association of private and public universities that establishes rules regarding collegiate supports; cannot be sued for urging a college to suspend coach for recruiting violations (NCAA v. Tarkanian)
State Action - Federal and State Statutes
State law can require that private conduct meet the same standards the Constitution requires (e.g. Civil Rights Act)
Justiciability Doctrines
There are five major justiciability doctrines:
- the prohibition against advisory opinions,
- standing,
- ripeness,
- mootness, and
- the political question doctrine.
All must be met for any federal court to hear a case.
Justiciability - Advisory Opinions
The Court will not render an advisory opinion to Congress or the President on the constitutionality of some contemplated action or legislation because such an opinion does not involve a “case or controversy.”
A case is justiciable so long as the case retains the essentials of an adversary proceeding, involving a real, not a hypothetical, controversy. (Nashville v. Wallace)
Constitutional Standing - Elements
To establish standing, a plaintiff must have a significant personal stake in the resolution of the controversy, which means the plaintiff must demonstrate:
- an injury in fact,
- causation, and
- redressability
Injury in Fact - Generally
The injury in fact must be an invasion of a legally protected interest that is (a) concrete and particularized (Lujan v. Defenders of Wildlife), and (b) the injury must be actual or imminent rather than hypothetical (City of LA v. Lyons).
Causation - Generally
There must also be a causal connection between the injury and conduct complained of, such that the injury is fairly traceable to the defendant’s conduct (Allen v. Wright).
Causal Connection Found:
Plaintiff challenge to federal law limiting liability of utility companies in event of nuclear accident; but for the act, the plants would not be built (Duke Power Co. v. Carolina Environment Study Group)
No Causal Connection Found:
Challenge to IRS tax exempt policy for racially discriminatory private schools, could not show personal injury from the policy or that it was the cause of the schools discrimination. (Allen v. Wright)
Redressability - Generally
Plaintiff must demonstrate the relief he is entitled to will substantially eliminate or redress the injury. (Warth v. Seldin; Linda R. S. v. Richard D.)
No Redressability Found:
Plaintiff’s challenge to zoning ordinance that did not allow multi-family/affordable housing to be built, could not show that if the ordinance was lifted, they would be built (Warth v. Seldin)
Mother’s challenge to state refusal to enforce a criminal law that required fathers to pay child support, no proof it would properly redress her lack of support (Linda R. S. v. Richard D.)
Standing - Generally
Standing is the determination of whether a specific person is the proper party to bring a matter to the court for adjudication.
Prudential Standing - Generally
The Court has identified two major prudential standing principles:
- A party generally may only assert his or her own rights and cannot raise the claims of third parties not before the court.
- A plaintiff may not sue as a taxpayer who shares a grievance in common with all other taxpayers.
Prudential Standing - Third Party Claims
A party generally may only assert his or her own rights and cannot raise the claims of third parties not before the court.
However, a litigant may have third-party standing to bring suit on behalf of a third party if:
- there exists a close relationship between the parties, and
- there are genuine obstacles to the third party suing on his/her own behalf (Singleton v. Wulff)
Standing Found:
Doctor challenged a state law excluding Medicaid benefits for abortions not medically required (Singleton v. Wulff)
White man suing on behalf of blacks for racially restrictive covenant (Barrows v. Jackson)
Bartender sued on behalf of male patrons for law not allowing men to drink until 21 (Craig v. Boren)
No Standing Found:
Mother seeking to file writ of habeas corpus for son on death row, but son had not appealed (Gilmore v. Utah)
Prudential Standing - Generalized Grievances
A plaintiff may not sue as a taxpayer who shares a grievance in common with all other taxpayers. (US v. Richardson)
Standing Found:
Challenge to government expenditures to private religious institutions in violation of the Establishment Clause of the First Amendment. (Flast v. Cohen)
No Standing Found:
Suit to compel CIA to disclose information regarding its expenditures (US v. Richardson)
Ripeness - Generally
A plaintiff must establish that the harm has occurred or will imminently occur (Abbot Labs v. Gardner).
A plaintiff is generally not be entitled to review of a state law before it is enforced (Poe v. Ullman).
Ripe for Review:
Challenge to act requiring different drug-labelling, to take effect in the near future, upheld because it was inevitable they’d have to comply (Abbot Labs v. Gardner)
Challenge to a state law prohibiting discharge of sewage from boats (Lake Carriers Assn. v. MacMullan)
Not Ripe for Review:
Challenge to state statute prohibiting giving advice for use of contraceptives, but where state had not enforced (Poe v. Ullman)
Resident aliens seeking declaratory judgment on question of if they go to work in Alaska whether they will be let back into the U.S., found merely hypothetical (International Longshoremen’s and Warehousemen’s Union, Local 37 v. Boyd)
Challenge to federal law prohibiting federal employees from taking part in political campaigns, found merely hypothetical (United Public Workers v. Mitchell)
Mootness - Generally
A plaintiff must present a live controversy at all stages of federal court litigation. If anything occurs while a lawsuit is pending to end the plaintiff’s injury, the case is to be dismissed as moot. (Defunis v. Odegaard)
Mootness Exception - Wrongs Capable of Repetition but Evading Review
A case is not moot if the issue is capable of repetition yet evading review; meaning, where a party could be subject to the same conduct again and it would be unable to be resolved because of the short duration of the action (Moore v. Ogilvie; Roe v. Wade)
Moot:
Equal protection challenge to law schools admission; man was allowed to attend and was graduating by time case reached Court (Defunis v. Odegaard)
Not Moot:
Challenge to state law that required 25,000 votes to nominate a candidate (Moore v. Ogilvie)
Challenging state law prohibiting abortion (Roe v. Wade)
Mootness Exception - Voluntary Cessation
A case is not moot if the defendant voluntarily ceases the complained of conduct but is free to return to it at any time.
A defendant claiming that his voluntary cessation renders a case moot bears the burden of showing that it is absolutely clear the allegedly harmful conduct could not reasonably be expected to recur. (Friends of the Earth v. Laidlaw)
Not Moot:
Holder of NPDES permit was violating mercury discharge limits but ceased conduct (Friends of the Earth v. Laidlaw)
Political Question - Generally
A federal court will not decide political questions. The Court has held that constitutional interpretation in these areas should be left to the politically accountable branches of government (the President and Congress).
Political Question - Examples
Non-justiciable Political Questions:
Suit challenging the President’s conduct of foreign policy for rescinding a treaty (Goldwater v. Carter)
Former Chief Judge’s suit challenging Senate impeachment process (Nixon v. US)
Claims of political gerrymandering (Vieth v. Jubelirer)
Not Political Question (Justiciable):
Congress’ denial of allowing Senator to take his seat was found to not be textually committed to House to resolve, so matter could be heard (Powell v. McCormack)
Malapportionment brought under the equal protection clause (Baker v. Carr)
Congressional Action - Generally
Congress may act only if there is an express or implied authority in the Constitution.
States may act unless the Constitution prohibits the action.
The Constitution grants Congress broad authority under the Necessary and Proper Clause to use any means necessary to carry out an end that is within its express or implied authority (McCulloch v. Maryland; US v. Comstock).
Commerce Clause - Generally
Congress shall have the power… to regulate Commerce with foreign nations, and among the several states, and with the Indian Tribes
Only gives Congress the power to regulate existing commercial activity; Congress cannot compel activity, even if it affects interstate commerce (Sebelius mandate)
In Gibbons v. Ogden, the Court defined “commerce” as every aspect of commercial intercourse which involves two or more states.
Commerce Clause - Substantial Effect on Interstate Commerce
When regulating intrastate activity, the Court will uphold the regulation if it is an economic or commercial activity and there is a rational basis upon which Congress concluded that the activity in aggregate, substantially affects interstate commerce (Gonzales v. Raich)
Examples:
Home grown wheat could be regulated (Wickard v. Filburn)
Possessing a gun is not an economic activity, and cannot be regulated (US v. Lopez)
Cannot regulate gender-based crimes because they are not economic activities (US v. Morrison)
Commerce Clause - Limits of Regulation
While broad, there are limits to what specific activity can be regulated. US v. Lopez clarified what Congress’ power under the Commerce Clause entails:
- Regulate the use of channels of interstate commerce;
- Regulate and protect the instrumentalities of interstate commerce, including the power to regulate persons or things in interstate commerce; and
- Regulate those activities that have a substantial effect on interstate commerce.
Commerce Clause - 10th Amendment Limitation
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
Valid Enforcement:
Application of Fair Labor Standards Act to public transportation (Garcia v. San Antonio MTA)
Invalid Enforcement:
Requiring states to take title to radioactive waste unconstitutional (NY v. US)
Requiring state and local LEO’s to conduct background checks on handgun permit applicants unconstitutional (Printz v. US)
Taxing and Spending Clause - Generally
Generally, Congress has the power to tax and spend for the general welfare (US v. Butler).
Congress can condition receipt of federal funding on states enacting certain regulations, so long as:
- it is for the general welfare;
- the conditions for receiving the funding are unambiguous and expressly stated;
- there is a nexus between the condition and the federal interest; and
- it does not violate any other constitutional provision (South Dakota v. Dole).
Allowed: Withholding 5% of highway funds if drinking age wasn’t 21 (South Dakota v. Dole)
Not Allowed: Taking away Medicaid funding for not implementing expansion in Obamacare; too coercive (Sebelius)
§5 of the 14th Amendment
§5 of the 14th Amendment gives Congress the power to enforce, by appropriate legislation, the provisions of the 14th Amendment (Congressional Power of Enforcement)
Congress is limited to enacting only remedial legislation necessary to enforce and prevent violations, they cannot use §5 as a means for defining or expanding rights. (City of Boerne v. Flores)
Remedial measures taken must be congruent and proportional to a widespread and persistent deprivation (Kimel v. FL Board of Regents)
11th Amendment - Generally
The Judicial power of the U.S. shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state.
11th Amendment - When Suits Against States are Permitted
- If it is a suit against a state officer brought in federal
court; - If the State has waived its 11th Amendment immunity and
consents to being sued; or - Congress may abrogate state sovereign immunity if:
a. it unequivocally expresses its intent to abrogate a
state’s immunity; and
b. it acts pursuant to a valid grant of constitutional
authority (Seminole Tribe of FL v. FL)
Examples:
Suit against a state as remedial measure allowable if it is in response to a widespread and persistent deprivation of a constitutional right (Kimel v. FL Board of Regents; Board of Trustees, U of AL v. Garrett)
Can allow suit under Title II for direct violations of 14th Amendment (US v. Georgia)
Allowing suit under ADA for failure to provide adequate means to access courts, upheld because access to court is a fundamental right (TN v. Lane)
Cannot allow citizens to sue state in state court (Alden v. Maine)
Executive Action - Generally
The Executive Power is vested in the President by Article II.
Where the President acts without an express Constitutional grant of power, his actions fall within the inherent executive powers.
Youngstown Sheet and Tube v. Sawyer delineated three “zones” of inherent presidential power which guide the Court in determining whether the President’s actions are permissible.
Justice Jackson Presidential Zones of Power - Zone 1
Zone 1: When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate
Acts are only held unconstitutional under these circumstances, if the federal government as an whole lacks power in the area
Justice Jackson Presidential Zones of Power - Zone 2
Zone 2: When the president acts in absence of either a congressional grant or denial of authority, he can only rely on his own independent powers; “twilight” zone for presidential powers
No general rule as to the constitutionality of actions that fall into this area
The more Congress acquiesces, the more it enables, if not invites the acts
Justice Jackson Presidential Zones of Power - Zone 3
Zone 3: When the president takes measures incompatible with the express or implied will of Congress; “low ebb” of his powers
Because the president is disobeying federal law, actions undertaken will be allowed only if the law enacted by Congress is unconstitutional.
Delegation of Power - Non-delegation Doctrine
Principle that congress may not delegate its legislative power to administrative agencies
Delegation declared unconstitutional when Congress delegates its powers to the President or his agencies without providing policy standards and guidance for the delegated powers. (Panama Refining Co. v. Ryan)
Delegation of Power - Demise of Non-Delegation
In Whitman v. American Trucking Assoc., the Supreme Court held that delegation of legislative power was constitutional so long as Congress provides “intelligible principles” to guide an agency in its exercise of discretion
Executive - Legislative Veto Power
In INS v. Chadha, the Supreme Court held a legislative veto which does not require bicameralism and presentment to the President was unconstitutional
Congress cannot grant to the president line-item veto power because procedures for enacting and vetoing laws are expressly stated in the Constitution and any changes to such processes must be by constitutional amendment (Clinton v. City of New York)
Executive - Appointment
Article II, §2 empowers the President, with the advice and consent of the Senate, to appoint “all ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States
However, Congress may vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.
Executive - Removal
As to removal, the Constitution is silent. Generally, the Supreme Court has held that the President may remove executive officials (Myers v. US)
Congress cannot reserve for itself the power to remove an executive officer except through impeachment (Bowsher v. Syner)
Executive - Removal Limitations
Congress can limit the President’s removal power by requiring good cause be shown before removing any other executive appointees (Morrison v. Olsen)
Congress can limit the President’s power to remove inferior officers who are intended to operate independently from the President (Humphrey’s Executor v. US; Weiner v. US)
Congress cannot impose a double layer of protection of removal because it prevents the President from “taking care that the laws be faithfully executive” (Free Enterprise Fund)
Executive - Matters of Foreign Policy
The President retains broad authority and substantial discretion in the conduct of foreign affairs (US v. Curtis-Wright)
Treaties
The President is empowered to make treaties with foreign nations with the advice and consent of 2/3 the Senate.
Under the Supremacy Clause, treaties confirmed by the Senate are “the supreme law of the land.”
Executive Agreements
The President, with the implicit approval of Congress, has the power to settle claims of United States citizens against foreign governments through an executive agreement.
President Carter’s agreement with Iran to lift a freeze on Iranian assets in return for American hostages upheld (Dames and Moore v. Regan)
