Outline Conlaw Adler Copy - Constitutional Law

1. US Constitution 2

2. Judicial Review 2

2.1 Review Legislation 2

2.2 Review state court decisions based on federal law 4

3. The Scope of National Power 4

3.1 Commerce Clause 5

3.2 Taxing Power 6

3.3 Spending Power 7

3.4 Necessary and Proper Clause 7

3.5 National power and state government – 10^th Amendment 7

3.6 Dormant Commerce Clause 9

4. Fundamental rights 10

4.1 14^th Amendment Privileges and Immunities Clause 11

4.2 Modern SDP and Economic Liberties 11

4.3 Modern SDP and Fundamental Rights 12

4.3.1 Contraceptives 12

4.3.2 Abortion 12

4.3.3 Sexual activity and sexual orientation 13

4.3.4 Right to die 13

4.3.5 Right to bear arms 14

4.4 Fundamental Rights Summary 14

5. Equal Protection Clause 16

5.1 Basic equality- RBR 16

5.2 Race - SS 17

5.3 Gender - IS 19

5.4 Alienage - SS 19

5.5 Illegitamacy -SS 20

5.6 Homosexuality 20

5.7 Wealth/ Income - RBR 20

5.8 Age - RBR 20

6. Fundamental interest 20

7. 14A §5 20

1. Art. I: Created Congress

   1. Sections 1-7: Set-Up Congress; elections; terms; how enact statutes

   2. Section 8: Enumerates Congress’s Powers

      1. Spending clause

      2. Taxing clause

      3. Commerce clause

         1. Dormant commerce clause

      4. N&P clause

   3. Section 9: Creates various Constraints on Federal Govt.

   4. Section 10: Created various Constraints against state Govt.

2. Art. II: Specifies rules for electing President

3. Art. III: Federal Judiciary

4. Art. IV: State Relations

   1. Section 2: Privileges and Immunities limitations on states, non-discrimination clause

5. Art. V: Amendment Process

6. Art. VI: Supremacy Clause/Oaths

7. Bill of Rights: 1-10 amendments and amendments 13-15: limit Congress’s power (& the states).

   1. 5A due process limitation on FG

   2. 10A FG=enumerated power, commandeering.

   3. 14A: PI (narrow, against State Government as US citizen), DP limitation on State, EP

8. Under Marbury v. Madison, SC has the power to review the constitutionality of federal executive actions and federal statutes.

9. Veto power and appointment of an office are entirely within the president’s discretion and cannot be judicially reviewed.

10. Where the executive has a specific legal duty to act or refrain from acting, the federal judiciary can provide a remedy, including a writ of mandamus

    1. specific, particular duty(“Safe Product Act” probably not a specific duty)

11. Issue: Two readings of Judicial Act

    1. Marshall’s reading: SC has OJ in any case where P seeks writ of mandamus

    2. SC has power to issue mandamus in cases otherwise within its Jurisdiction. Under this reading JA would not be unconstitutional

12. Constitutional Issue 1: Under Marshall’s reading, is JA, which gives OJ to SC to hear this case, consistent with the Constitution?

    1. Art. III § 2 Cl. 2 SC OJ and AJ:

       1. OJ: Trio Cases= Ambassadors, other public Ministers and Consuls, and those in which a State shall be a party

       2. AJ: all other cases

       3. Two reading of Cl. 2

          1. Floor and Ceiling, Marshall’s reading: SC has OJ only over Trio Cases

          2. Floor only: SC has OJ over Trio Cases, can also have OJ over other cases

13. Constitutional Issue 2: If not, does the court have the power of judicial review? Argument for judicial review:

    1. Constitutional theory argument

       1. constitution is supreme vis a vis statutes

          1. Written constitution: Power of the legislation is limited and defined by the written constitution. These limits are meaningless unless subject to judicial review.

             1. Counterargument: other countries with written constitution do not grant judiciary the power to invalidate conflicting statutes.

          2. original understanding at the time of the framers

          3. theory of popular sovereignty: people have an original right to establish fundamental principles in the Constitution

       2. Institutional allocation: it’s the judicial duty of SC to interpret the law, to invalidate statutes as unconstitutional (even if Congress thinks otherwise)

          1. Counterarguments:

             1. SC can interpret the law without deciding its constitutionality.

             2. Clear/ unclear violation: those examples (tax, duty, federal bill of attainder) are clear violation of Constitution, but JA’s violation is not as clear.

    2. Arising under jurisdiction of SC: Art III grants SC the JP over all cases arising under the Constitution, this implied JR

       1. Counterargument: SC’s power to decide cases under the Constitution still could have significant content without the power to invalidate federal statutes. E.g. SC can still apply federal statutes, and evaluate the constitutionality of state enactments.

    3. Oath. Counterargument: everyone has Oath

    4. Supremacy Clause: (Art. VI) Confirms the argument made in constitution theory

       1. Counterargument: Constitution should control over all other laws, this does not mean judiciary has the power to invalidate laws. Congress can supervise its statutes by itself.

1. Under Martin v. Hunter’s Lessee, the Supreme Court may review state court opinions, but only to the extent that the decision was decided based on federal law.

2. Rationale:

   1. prevent state attachments, prejudices.

   2. Ensure uniformity

   3. Art. III grants SC the power to review arising under “the Law of the United States”

   4. Parity between P and D: both get to choose a court

1. Theory of enumerated federal power

   1. Congress may act only when there is express or implied authority to act in the Constitution.

      1. 10th amendment: US is a government of limited power

      2. The fact of enumeration in Art. I indicates that the government has limited power

   2. Constitutional requirement for federal legislation

      1. Is the legislation within at least one of the enumerated powers, i.e. A. I §8?

      2. Does the statute violate some constitutional constraint, in particular an individual right, i.e. Amend. 1-10, A. I §9?

2. State power

   1. Only the state has police power that allows the state to adopt any law not prohibited by the constitution

3. Reasons for federal regulations (instead of State regulation)

   1. interstate externalities (pollution)

   2. state protectionism

   3. unfair competition: State race the bottom “Prisoner’s dilemma”

   4. uniformity

   5. effectiveness in federal enforcement

1. Art. I § 8 “Congress shall have the power… [t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes….”

2. Why is CC the main source of federal regulatory power

   1. Cl. 1 is not a general welfare power, so Congress needs to regulate this issue through the commerce clause.

      1. A. I §8 cl. 1

         1. Wide reading: Provide for general welfare (if cl.1 is wide, the rest of A. I is meaningless)

         2. Narrow reading: tax and spend so as to provide for the general welfare

3. Varying views regarding the Commerce Clause

   1. Initially, Gibbons, the SC adopted an expansive view of the scope of the commerce clause.

      1. The power to regulate interstate commerce is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed by the constitution.

      2. Activity outside commerce power if it’s an intrastate activity, AND does not extend to or affect other states.

      3. Activity inside commerce power if it’s interstate activity, OR affects other states.

   2. Pre-1937 cases: The predominant approach during the early twentieth century used formalistic doctrine to limit the power of the federal government to regulate under the Commerce Clause.

3. 1937-1995: more expansive view of the Commerce Clause

   1. National Labor Relations Board v. Jones & Laughlin: Congress can regulate any activity that has a significant effect on interstate commerce whether direct or indirect.

   2. United States v. Darby: Fair Labor Standards Act. Substantial effect test: Congress’s power to regulate interstate commerce extends to those intrastate activities that affect interstate commerce.

   3. Wickard v. Filburn: Aggregation principle: does the class of activities regulated have substantial effect on interstate commerce?

4. After 1995, since Lopez, SC struck down some federal statutes. The modern CC is:

   1. Congress may regulate under CC (Lopez):

      1. channels of interstate commerce (Direct effect);

      2. instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities (stream of commerce: destruction of aircraft, theft from interstate shipment,...