Constitutional Law

1. Framework for government to establish institutions that will protect unalienable rights
   1. Plurality of Institutions

      Anotações:

      • They assure a proper balance of government power. Drafters knew that mankind are inherently evil, therefore they set a framework that will pevent any single branch, group or person to have complete power over the government. 
      1. Federalism

         Anotações:

         • Americans are: We the people of the United States and We the people of the several states. Dual citizenship.
      2. Three branches of governemnt
      3. Other institutions

         Anotações:

         • Government deals with a variety of other institutions such as voluntary associations, business associations, foreign nations, the church and the family. Each group including the government has authority over specific jurisdictions, not to be go outside of their appropiate scope.
2. Constitutional Aims

   Anotações:

   • 1) provide for effective gov. that will protect citizens from the deprovation of others.  2) Establish limitations on the government to protect citizens against overbearing government.
3. Base on the General Principals of Law
   1. Legal order by the rule of law

      Anotações:

      • Two components comprise a legal order characterized by the rule of law: 1) existance of a society in which there are multiple competing institutions 2) adherence to a religion which maintains a clear disntinction between the tracendent creator and his created order. 

1. Federal Courts

   Anotações:

   • Deal with matters enumerated in the constitution and matter that Congress specifically assigned for Fed. courts to handle such as diversity cases.

1. States sovereignty

   Anotações:

   • States are Quasi-Sovereign in the sense that they have all the charactersitics of a sovereign state (people, territory, a system f government and laws) but do not posesse the right to conduct relations as an equal with other nations. 
2. National Sovereingty

   Anotações:

   • Comes from a combination of the states and the federal govenrment, based on the acient hebraic model.  Even under the articles of confederation the states were not just simply an alliance but an union of different separate states.  We are one people of many people

Anotações:

• The Supreme Court's power to review whether acts of the legislature or the executive branch are constitutional 

1. Marbury v. Madison- Establishes Judicial Review

   Anotações:

   • Makes distinction between matters of obligation (law) and matters of discretion (policy/prudential). Per Chief Justice Marshall, it is the job of the court to settle matters regarding the law, including matters regarding the general principal of law, and not prudential (policy matters). Swift v. Tyson, Marbury v. Madison.  Also, per J. Marhall the right of people to establish their government comes from God. 
   1. Prudential v. Legal Matters

      Anotações:

      • Makes distinction between matters of obligation (law) and matters of discretion (policy/prudential). Per Chief Justice Marshall, it is the job of the court to settle matters regarding the law, including matters regarding the general principal of law, and not prudential (policy matters). Swift v. Tyson, Marbury v. Madison. Also, per J. Marhall the right of people to establish their government comes from God. 
      1. Subject to Laws of Nature
2. Backward looking

   Anotações:

   • As opposed to forward looking which is basically political in nature (executive/legislative branch)  Political questions must be in accord to an enumerated power
3. Cooper v. Aaron: Supreme Court decisions "is" the law

   Anotações:

   • SCOTUS declares itself the supreme interpreter of the constitution. It also declares that it has the power to bind the states, and even bind non-parties. In  other words, it pronounced that the Supreme Court can now make laws, which is the job of the legislature.  Dean: SCOTUS opinions should not be law but evidence of law onlyThis position goes against the views of Marburry, Thomas Jefferson, Abraham lincoln. In other words, they rejected the premises that the Supreme Court's interpretation of the law should bind the other parties. 
4. Martin v. Hunter Lessee- Supreme Court review of state court decisions

   Anotações:

   • In coming to this decision the court in Martin focus on an original intent argument based on the wording of the constitution rather than LON. Justice Story pinted out that under the Supremacy clause (Article VI) and that there needs to be uniformity among the different state laws if they deal with or contradict a federal law. 
   1. Federal Matters

      Anotações:

      • - Federal Courts have Judicial Power States have duty to apply Federal law
   2. State Matters

      Anotações:

      • - State courts have state judicial power - Federal Courts have a duty
      1. Michigan v. Long-

         Anotações:

         • The Supreme Court has no power to decide, review a state court's decision if the decision was decided solely on state law, but when the laws are intertwined, the the Supreme Court has the power to review it. 
5. Article III

   Anotações:

   • Judicial power of the United States shall be vested on one supreme court, and such inferior court Congress from time to time ordains and establishes. 
6. Exceptions Clasue

   Anotações:

   • Exceptions clause is a clause in the U.S. Constitution that grants Congress the power to make exceptions to the constitutionally defined appellate jurisdiction of the Supreme Court. This clause refers to USCS Const. Art. III, § 2, Cl 2 of the U.S. Constitution. This provision reads: “In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the Supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make”.

Anotações:

• Standing: PL must show that tha government has engaged in illegal activitity that causes injury to the plaintiff and that the court has the power to remedy that injury. If a plaintiff lacks standing to bring a lawsuit against the government a court has not jurisdiction to hear the case. the matter is said to be non-justiciable. Genralized grievances have not standing, yet tax-payer standing is still a debated issue. Standing is a combination of constitutional requirments and prudential considerations. 3 Elements of standing" 1) identification of the illegal government activity 2) Courts can only hear cases with real facts (cases before the court) as opposed to making speculative judgements. 3) Exclude third persons from litigating cases who have suffered no injuries 4) Case of contoversy requirement: prevents court from becoming a judicial debate forum

1. Requirements

   Anotações:

   • Ripeness Mootness Political Question
2. Purpose

   Anotações:

   • Serves as a way of limiting judicial challenges to those who are harmed in some direct and personal way. 
3. "Prudential Add-ons"

   Anotações:

   • Even with standing court can still dismiss a cause as a prudential matter. This is not constitutional for they are to take every case that comes before them but many
4. Limits "physic injuries" and remote/uncertain grievances
5. Gov. not liable for ommission of the law

   Anotações:

   • If the law is not being followed, that in itself does not give grounds for someone to have standing. However cases like EPA v. Massachussents, liberal judges erroneously held that the EPA had standing based on evidence of greenhouse effects.

Anotações:

• The Court is to solely decide on the rights of individuals not to inquire how the executive or Executive officers perform their duties in which they have a discretion.

1. Question "A" purely discretionary Matters
2. Question "B" Judicial-like matters
3. Concepts reflected in cotemporary question doctrine

   Anotações:

   • 1) distinction between law and policy 2) Constitution confers some judicial-like making decisions to political branches 3) Marshall "courts must take every case that comes before them even if they may create tension with political branches. 
4. Baker v. Carr

   Anotações:

   • 1) If matter is textually committed to one of the political branches then the courts have no jurisdiction 2) If the matter lacks a "judicially dicoverable and manageable standard (no rule which to measure or it will be impossible to bring to provide a court setting for the matter- Court can't review them. 3)If a matter calls for a political detemination, something truly political in nature, then the court has no jurisdiction to hear it. 4,5,6: matter within the court's jurisdiction but the ocurt decides, as a prudential measure, not to rule on the matter.

1. Article III cl.1

   Anotações:

   • The Judicial power of the United States 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.
2. Exceptions

   Anotações:

   • 1. Suits against a state by the U.S. e.g. U.S. v. Arizona 2. Suits agains a state by another state 3. Suits against political subdivisions of states
3. The officer-suit fiction

   Anotações:

   • Even though a state may not be sued, a state official may be sued and injunctive relieve obtained , in effect, against the state. (Ex-Parte Young Case) Elements: - State official mus tbe sue individually - possible injunctive relief against the state but no compensation for past wrongs - absolute inmunity for some state officials for some official acts

1. Article I- Government (Congress) Enumerated Powers

Anotações:

• Gives Congress the power to choose necessary means to carry out the government enumerated powers. e.g. McCulloh v. Maryland- SCOTUS held it was ok for Gov to come up w/ a national bank to finance the war and taxes (enumerated powers) The way J. Marshall approached the issue on this case was by asking framework questions (orginal intent-textualism) method of interpretation.

1. Allows congress to make pruential judgements within the constitional context
2. FRAMEWORK FOR ANALYSZING "MEANS" CASES
   1. Marshall's Approach: 1) Is it a power confferred on Congress?

      Anotações:

      • 1) is the mean to serve a legitimate end? (By legitimate we mean one that is to serve a general principal of law?) 2) Is the end within a constitutional scope? (is the end an enumerated power, which is defined by subject (letter) and object (spirit)
      1. No?
         1. Unconstitutional
      2. Yes?
         1. Is the statue "plainly adapted" for accomplishing or achiving a legitimate end that is within the scope of the constitution?

            Anotações:

            • Is the "nexus" between the mean and the end clear? If the end is a state power "policing" then it is unconstitutional. When the legislative mean is plainly adapted it is a "pretext".
            1. No?
               1. Pretext. Uncosntitutional
            2. Is it prohibited?

               Anotações:

               • By the constitution or a general principal of law?
               1. Yes?
                  1. Unconstitutional
               2. No
                  1. Constitutional

                     Anotações:

                     • Discretionary means that Congress decides are most beneficial to the people, that are essential, convinient and useful, subject to this framework, are ultimately not subject ot judicial review.
         2. No?
            1. Unconstitutional
   2. Current View Approach
      1. Can the court conceive no rational nexus between the statatue and a constitutional objective?

         Anotações:

         • Rational basis test. Yet, it does not require the achivement of a specific enumerated power or legitimate object. vague standard. In other words, under this rational basis test, any remote relevance to a federal objective will do. e.g. Comstock (The only nexus between being a sexual predator and an enumerated power is that the prisoner is in a federal prison)
         1. Does the statue unreasonable extend federal jurisdiction as to infringe the states?
            1. Then, Constitutional

1. Article I Sec. 8

   Anotações:

   • the United States Congress shall have power "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.
   1. Justice Marshall Analysis
      1. Power of Congress

         Anotações:

         • 1) Is the object a legitimate one? Does it conform to a general principal of law? LON 2) Is the Object is entrusted to the government? Is the end within a constitutional scope? (is the end an enumerated power, which is defined by subject (letter) and object (spirit)
         1. Measures by which Congress executes its powers

            Anotações:

            • a. Are Calculated  to effects objects entrusted to the government? Is the "nexus" between the mean and the end clear? If the end is a state power "policing" then it is unconstitutional. When the legislative mean is plainly adapted it is a "pretext". b. Are they prohibited? Does the constitution expressely or implicitly prohibits that measure? (prohibition principal) Is it prohibited by a general principal of law?
            1. Congress ultimately has the power to judge the degree of a measure's necessity

               Anotações:

               • Only Congress has the power the review prudential measures. 
   2. Current Court Analysis
      1. Power of Congress

         Anotações:

         • 1) Is the object legitimate? for the modern court a legitimate end means "within the scope of the constitution" in a vague way. Substantial Effect test (Wickard/filburn) Congress may regulate any activity that in the aggregate has a substantial effect on interstate commerce subject to (Lopez) meaning, Congress has the power to regulate not "whatever activity" but only economic activity that has a substantial effect on interstate commerce. However, under lopez a non-comercial, no-interstate, non-economic activity may be regulated if " it is an esential part of a larger regulation of economic activity" 2) Is the object instrusted to the government?Modern court allows Congress to regulate interstate commerce for the object of exercising a police power
         1. Measures by which Congress executes its powers

            Anotações:

            • 1) Are the calculated effect objects entrusted to the government? The modern court will use the "calculated effect test, instead of the rational effect test" (lower level of scrutiny) [In other words, the modern court does away with the nexus test which inlcludes the rational bases test and calculated effect test] Thus pretext is always allowed allowing the federal government policing power over the states under the commerce clause. b. Are not prohibited? Does the constitution expressely or implicitly prohibit the measure? (prohibition principal) However, to the modern court it is irrelevant if the statue violates a general principal of law.  Under Nebelius, (Obamacare case) the court held that inactivity  in the form of an individual mandate can also be regulated under the commerce clause. 2) Are not prohibited? In other words, does the constitution expressely or implicitly prohibit the measure? Here, it is irrelevant whether in conforms to the law of nature and nature's God. 
            1. Congress power to judge the degree of a measure of necessity

               Anotações:

               • Congress is not likely to review the necessity of prohibition prohibition statues. Congress sometimes (unconstitutionally) reviews prudential decision of the political branches.
            2. Modern Substantial Effect test

               Anotações:

               • 1) is the object righteously intrusted to the government? Congress under modern interpretation can regulate interstate commerce for the object of promoting general welfare in the broadest sense 2) Calculated to the effet objects entrusted to the government? Any activity that has a substantial effect in achieving a general welfare  can be regulated by Congress.  3) Are not prohibited? (In other words does the cosnstitution expressely or implicitly prohibits it?

Anotações:

• The power to lay taxes is indespensible to each state existance, and is a power of which , in its own nature, capable of resideing in, and being exercised by different taxes is an incident of sovereignty. 

1. Article I Sec 8

   Anotações:

   • The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States;
   1. Justice Marshall Analysis
      1. Power of Congress

         Anotações:

         • 1) Is the object legitimate? (does it conform with the law of nature and nature's God? Romans 13 2) Objects instrusted to the government (enumerated power defined by subject (letter) and object (spirit) Define the subject matter. i.e. "lay" "collect" "taxes" as unsed in article I sec 8 and define the object. Here, is to raise revenue.
         1. Measure by which congress executes its power (subject to judicial review)

            Anotações:

            • a. Are calculated to the effect objects instrusted to the government.?  (Is it clear that the statue is to raise revenue, or is it deignated to regulate some matter not within the enumerated powers? If is not plainly adapted to raising rvenues then it is a pretext for regulation. (Factors to consider: Drexel Furniture: is the heavy exaction for a departure from a detailed and specific course of bsuiness? Is the tax on the net income regardless of the frequency of the action being taxed. is the tax imposed only for doing a specific act that seems regulatory in nature (e.g. hiring children) Are businesses subject to inspection by the department of treasury or department of labor? b. Are not prohibited? (Does this tax fall into one of the express or implied prohibition of the Constitution. e.g. if its a direct tax, is it in proportion to the census? is it consistent with the general principal of law?
            1. Congress power to judge the degree of a measure's necessity

               Anotações:

               • The question of whether taxes are to high is a matter of discretion or political judgement to be reviewed by the electorate, not the courts. 
   2. Current Court Analysis
      1. Power of Congress
         1. Measure by which congress executes its power

            Anotações:

            • 1) Is the object legitimate? for the modern court a legitimate end means "within the scope of the constitution" in a vague way. Substantial Effect test (Wickard/filburn) Congress may tax any activity that in the aggregate has a substantial effect on interstate commerce subject to (Lopez) meaning, Congress has the power to regulate not "whatever activity" but only economic activity that has a substantial effect on interstate commerce. However, under lopez a non-comercial, no-interstate, non-economic activity may be regulated if " it is an esential part of a larger regulation of economic activity"2) Is the object instrusted to the government?Modern court allows Congress to regulate interstate commerce for the object of exercising a police power. Factors to consider under Sebelius: whether payment is made to the U.S. tresury, whether the amount  of payment calculated is much the same way as income tax liability, whether the payment provisions are included in the tax code, whether the payments produce revenue, whether the payment is less than the cost of insurance, the act specifies no scientier element, and the IRS has enforcing powers. Drexel Furniture: is the heavy exaction for a departure from a detailed and specific course of bsuiness? Is the tax on the net income regardless of the frequency of the action being taxed. is the tax imposed only for doing a specific act that seems regulatory in nature (e.g. hiring children) Are businesses subject to inspection by the department of treasury or department of labor?b. Are not prohibited? (Does this tax fall into one of the express or implied prohibition of the Constitution. e.g. if its a direct tax, is it in proportion to the census? is it consistent with the general principal of law? 2) Are Not Prohibited (Does this tax fll in one of the express or implied prohibitions of the constitution? if its a direct tax, is ti in proportion to the census?
            1. Congress power to judge the degree of a measure

               Anotações:

               • The questions of whether taxes are too high is a matter of discretionor political judgement reviewable for he electorate and not the courts. modern courts often disregard this. 

Anotações:

• Defining general welfare and provide is crucial here.  Provide, in the right meaning of the word, is not "spending" per se, but to provide for those debts incurred as a result of achiving an enumerated power. "General Welfare" federative" powers which by in nature can not be exercised by the states. 

1. Article I Section 8

   Anotações:

   • "Congress shall have the general power to pay debts and provide for the common defense and the general welfare of the United States."
   1. Path of Analysis
      1. Power of Congress

         Anotações:

         • a. Object is legitimate (consistent with the law of nature?) b. Object instructed to the government? Depends on the definition of general welfare "one of the 4 views" If its limited to other enumerated powers (Madison view) the spending cases should fall under the means analysis. If General Welfare is defined as a disntinct power it should be analyzed as an object case (Hamilto's view). If General Welfare is defined as to inlclude all the general powers of government , it should be analsyzed under the substantial effect test of the commerce caluse.
         1. Madisons View

            Anotações:

            • The power to spend is simply a means for achieving the other enumerated power. 
         2. Hamilton's View

            Anotações:

            • Congress's power to spend is independent of the other enumerated powers. 
         3. The Commerce Clause- Modern Court Analysis- substantial Effect test
            1. Buttler Dissent

               Anotações:

               • Congress can spend for the enumerated powers and offer money to the states to encourage them to exercise their reserved powers in a manner approved by the national government. Coercive/Encouragement
            2. The gov. position in Butler

               Anotações:

               • Congress may spend for any purpose it chooses which would largely eliminate the distinction between the enumerated powers and powers reserved to the states.  Coercive/Encouragement?
            3. Cases subsequent to Butler

               Anotações:

               • The court approved spending schemes arguably more expansive than the enumerated and reserved powers to the states (not legitimate powers of the civil government) Coercive in Nature e.g. Sebelius
         4. Measures by which Government executes its power

            Anotações:

            • a.  Are calculated to the effects objects entrusted to the government (If general welfare is defined in the Madison or Hamiltonian view, this test is used to identify pretext. If is identified under any of the 3 views under the substantial effect commerce clause then the "plainly adapted" test is irrelevant because nothing would be pretext. b. Are not prohibited (not prohibited by the constitution- all the views) Not prohibited by the general principals of law (Madison/Hamiltonian view)
            1. Congress power to judge the degree of a measure's necessity

               Anotações:

               • A political judgement not to be subject to judicial review. although some courts get involve in prudential decisions which clearly violates the scope of their delegated authorithy. 
               1. Conclusion

                  Anotações:

                  • Depending the definitions one gives to the two terms "provide" and "general welfare" the Spending Clause gives the federal government one more tool, in addition to the current interpretations of the power to tax and regulate commerce among the states- to centralize power in the national goverment.
2. Dole Test for analyzing conditions for the states to received federal funds

   Anotações:

   • 1) Is the Spending for General Welfare? (the court doesn't define general welfare) 2) Has the federal government made the condition clear so the states know exactly what they are comiting to ? 3) Are the conditions placed on the state related to the purpose of spending? 4) Is the condition coersive?

Anotações:

• The "dormant" Commerce Clause, also known as the "negative" Commerce Clause, is a legal doctrine that courts in the United States have inferred from the Commerce Clause in Article I of the United States Constitution. 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 conflict between state and federal statutes, but Congress may allow states to pass legislation that would otherwise be forbidden by the Dormant Commerce Clause

1. Marshall Analysis

   Anotações:

   • power to regulate interstate commerce belong solely to the federal government. However, a state law enacted to exercise police powers, even if they place some burdens on interstate commerce can not be striken down by the court but instead it would be up to Congress to pass a state law pre-empting the state from passing the state law. 
   1. Path of Analysis
      1. Powers of the state (matter of judicial interpretation)
         1. Object is legitimate

            Anotações:

            • a. (is this a power that the civil government may exercise as governed by the law of nature?)
            1. Objects instructed to the government

               Anotações:

               • Objects intrusted to the government ( Is the object of the state statue a power reserved to the states and one that thepeople of the particular state delegated to their state government, i.e. a police power, and not a power exclusive to the national government?)
               1. Measures by which a state executes its powers (Subject to Judicial review)

                  Anotações:

                  • a. Are calculated to the effect objects intrusted to the state government , if not calculated, they are a pretext. if a state action is not calculated to the effects object entrusted, it must be a pretext for achiving an unlawful object, either an enumerated power, such as the comerce power, which is exclusively federal, or an illegitimate power. b. Are not prohibited (Does the U.S. or state constitution expressely or implicitly [by its structure] prohibit that means/ state statue? Is there a federal statue that lawfully pre-empts the state law? By definition there is no federal statue in a dormant  commerce clause case, so this would not apply) Is it consistent with the general principals of law?)
                  1. Congress's power to judge the degree of a measure's necessity? (Not subject to Judicial review)

                     Anotações:

                     • Congress's power to judge the degree of a measure's necessity? (Not subject to judicial review. Where a state analysis is lawful under the above analyis imposes an incidental burden on interstate commerce, Congress has the power to determine whether the burden on interstate commerce outweights the benefir of the state's exercise of its police power. Congress, not a court, is to exercise the best judgement as to what is "best for America" In other words, it is a political or prudential decision. Another way of expresing this standard is to say thatthe courts may not "inquire into the degree of necessity" by measuring the relative values of a burden on the interstate commerce against the benefit of the health, safety or welfare measure. 
2. Modern Court view

   Anotações:

   • The states have concurrent power with the Federal Government to regulate interstate commerce.  The only way the courts will struck down a state law is, by using some sort of baling test, where it will be determined whether the state law has too great of a discriminatory effect  or places to great of a interstate commerce burden compared to any police power benefit that might derive from the state law. 
   1. Path of Analysis
      1. Power of the state (matter of Judicial Interpretation)
         1. Object is Legitimate

            Anotações:

            • The Modern court sometimes strikes state statues as not having a legitimate end but will not admit that it is looking to the law of nature, e.g. Lawrence v. Texas.
            1. Object is instructed to the government

               Anotações:

               • Because the power to regulate interstatecomerce is now viewed as concurrent, a state statue that regulates commerce can't logically be unconstitutional simply because it is designed to achieve an unlawful object. the entire analysis shift to the means
               1. Measure by which a state executes its power (subject to Judicial review)

                  Anotações:

                  • a. Are calculated to effect objects intrusted to the state government. (Since states have the power to regulate interstate commerce, the calculated to the effect analysis is not relevant because the test is not designated to expose pretext for achieving an end that is not within the powers of the states b. Are not porhibited (1) The Court has essentially written into the constitution its own prohibitory scheme: Category One. Facial Discrimination- No other alternative for achieving a legitimate end (strict scrutiny) unless one of the other five exceptions applies) Category two. Discriminatory purpose. No other alternative for achieving legitimate end ("strict scrutiny") (unless one of the five exceptions applies). Category three. Discriminatory effect- Simple balancing test- southern pacific.  Category four- Incidental effect on interstate commerce- clearly excessive balancing test (Pike) (2) The U.S. Constitution or state constitution expressely or impliedly (by its structure) prohibits that measure. (3) A federal statue preempt the state law. (By definition there is no federal statue in a dormant commerce clause case, so this step wont apply) (4) Is it consistant with the general principals of law (LON)?
                  1. Power to judge the degreee of a measure's necessity

                     Anotações:

                     • a. Under categories three and four  (in b.) above the court determined whether the burden on interstate commerce outweights the benefit of the state's exercise of its powers. In other words, courts have the power to judge the degree of a measures's necessity. b. Congress can preempt a court's judgement in categories three and four cases- the burden on interstate commerce outweights the benefit of a states exercise of its power. In other words, Congress can second guess a court's judgement as to the degree of a measure's necesity. c. The Court has rules that Congress may delegate its powers to regulate interstate commerce to the states in categories one and two above, allowing them to discriminate against out of staters (e.g. New York v. United States)
                     1. Conclusion