Excuse the holes throughout the summary. There may be sections that we covered more in depth than others. We also had a short period of time to cover the last 3 sections so they were a bit rushed. Please enjoy, use it if you’d like, and comment with any helpful tips.
I.
I have been a bit spotty on covering all of the material from this semester. From Article III Judicial authority and justiciability doctrines to Article I & II limits on the political branches. We also covered Article IV protections on individual liberties, and we will close the course out with levels of scrutiny and equal protection under the Fourteenth Amendment.
We covered is the reach of the federal courts, and especially the Supreme Court under Article III. Original jurisdiction of the Supreme Court is shall extend to all cases of law and equity arising under the Constitution, the laws of the United States, treaties, or any laws made under their authority. The reach of Congress in changing the appellate jurisdiction of the Court is limited to those under Article III § 2 cl. 3 “under such regulations as Congress shall make.” Congress has a unique power here, subject to the exceptions proscribed by the Court. Congress may not take away all avenues to federal court jurisdiction. (see habeas corpus case).
Article III creates the Judicial branch of the United States government. It provides for the “cases and controversies” which the Court will hear and adjudicate. Article III also provides for the Original and Appellate jurisdiction Court. The main requirement of the Court under Article III pushed us into justiciability. The first and most formidable requirement to be heard in the federal courts. (1) Standing; which requires that a party before the court be injured, has identifiable causation, and the court can remedy the injury. Third-party standing is the next issue that comes to mind. When a party does not have the ability, resources, or otherwise to bring their suit in federal court, a party may bring the suit on their behalf. Furthermore, if the party would also be harmed by the failure to adjudicate the Court has identified proper standing. (2) Ripeness; the Court requires that the case before the federal courts is ripe for review. Meaning that some kind of harm as occurred or that there is an impending harm to come. (3) Mootness; the Court further identified that the claim may not be moot. This requirement means that the claim still be identifiable. There are a few exceptions here such as avoiding the issue, or that a harm may occur again in the future. (see Roe v. Wade). (4) Political Question; the Court has stated in a multitude of cases involving political actions that those under the “republican form of government clause” be left to the representative branches. Consequentially, this includes gerrymandering. (see Rucho v. Common Cause, as the most recent Court precedent). There are other issues in the justiciability doctrine field. Such that parties cannot bring suit in federal courts for merely being a U.S. citizen or a U.S. taxpayer, however, in limited circumstances they may be able to bring suit under the tax payer exclusion.
II.
Commerce Clause Jurisprudence was our next beast to tackle. We began at Gibbons v. Ogden, one of Chief Justice Marshall’s big ones. This was the case where he discussed the “intercourse” of commercial transaction. Primarily, the concept was that, if commerce was entering the state from outside of the physical borders it still counts as commerce for purposes of the Commerce Clause. In Wickard v. Filmore, another perennial case that reaches “negative commercial impact,” is one that the commerce of several states, such as the wheat industry, would be negatively affected if everyone where allowed to grow their own wheat for consumption. This was an extremely broad reading of the constitutional power to regulate interstate commerce.
Consequentially, this broad reading was later limited up until 1937. The cases were read to limit things that were commercial only. In other words, manufacturing jobs and other like work that had an impact on commerce but was not a direct result of commercial action, was not regulated by the Commerce Clause power. The Court later changed gears by not invalidating a commerce related federal statute until 1995.
In United States v. Lopez, the Court created a test related to the recitation of Commerce Clause power in a Second Amendment case. The statute in Lopez regulated gun zones within 1,000 feet of a school. The Court determined that there were three types of impacts on commerce: (1) Channels, (2) Instrumentalities, (3) anything that has a “substantial effect on commerce.”
The first of these, channels, is what Chief Justice Marshall was discussing in Ogden. Where something is traveling in the stream of commerce (a term we hear in later cases), it can be regulated by Congress. Second, instrumentalities of commerce are things that do the actual traveling “among the several states.” An example would be, Congress regulating the traveling speeds of truckers that move freight interstate, this would be the instrumentality for which commerce moves interstate. Third, and most applicable to Lopez, the actions have a substantial effect on commerce. This is a lot more difficult to define and is something that “you know when you see.” But the Court has discussed that a mere recitation of the commerce clause power or recitation that the act has a substantial effect, doesn’t mean that is necessarily true. In United States v. Morrison, the Court discussed the recitation issue. The Court determined that the action must be commercial and not be applied to wholly law enforcement related activity, or those that are applicable to the states police powers.
After the test in Lopez was established, we moved forward into the taxing powers of the United States government. We covered very limited case law on the subject, as I believe it, this week we were running behind. We discussed in short, the ability of Congress to tax for the general welfare and that the taxes purpose must be attached to that welfare. (See United States v. Butler). Once we discussed the basic principles of the taxing power, we discussed condition grants of federal money and whether the federal government may condition these funds. In South Dakota v. Dole, the Court expressed a willingness to allow conditional grants on highway funds, so long as the state kept their speed limits at 55 miles per hour or in another similarly situated case, raised the drinking age to 21. Yet, there are conditions on the condition itself. The condition must be express and cannot be unduly coercive. (See NFIB v. Sebelius). Even where a tax is called a penalty, it may sometimes be given the effect of a tax, such as the one discussed in Sebelius.
III.
Under the Civil War Era statutes, 13th Amendment, 14th Amendment, and 15th Amendment, Congress’s power was expanded to include the ability to enact legislature to effectuate these amendments powers. The largest of the three, in terms of effect, is the 14th Amendment’s § 5 authority.
Section 5 of the 14th Amendment provides “[t]he Congress may shall have the power to enforce, by appropriate legislation, the provisions of this article.” Under this authority Congress may enact legislation that is meant to protect against governmental discrimination, state action discrimination, and may carry over into private conduct where that conduct is either a public function or is “so entangled/entwined with a public function.”
One of the most controversial decisions on this matter is Shelby County, Alabama v. Holder. In Shelby County, the Court determined that the Voting Rights Act (“VRA”) as reaffirmed by Congress violated Congress’s authority under § 5. The Court held that where a justification for a law is no longer applicable to the current state of things, that it is invalid to enact legislation under § 5 that relies on the pre-existing formula was designed to combat. (See Shelby County, Sec. II, ¶ 1.). The Court held that Congress went too far in reauthorizing the Act without taking measures to reassess Sections 4(b) and 5 of the VRA. Although, it does not matter how you come out politically on this matter, the Court had warned in previous decisions that this kind of reaffirmance while keeping states that had improved at bay, was not permissible. In short, the law has to be “sufficiently related to the problem that it targets,” if the states had improved voting rights in their respective jurisdiction, keeping those restriction would not be sufficiently related to fixing the problem that had “already been fixed,” or at least improved at unprecedented levels. (This does not mean, however, that there are not pervasive actions by states that suppress voters, this is merely a recitation of the Court’s reasoning).
IV.
We moved into the 11th Amendment, and the sovereign immunity doctrine. A state has few exceptions to the 11th. (1) If they consent to suit, they may be sued by their citizens. (2) If the federal government sues the state for violation of federal law. (3) If the state is a party of a bankruptcy proceeding it is not immune. (4) Congress may only authorize suits against the state where the authorization is § 5 of the 14th Amendment. Furthermore, under (4) of this list, Congress must be express that they are abrogating the 11th Amendment when they enact laws that provide a private right to suit against state governments under § 5 of the 14th Amendment. (See Seminole Tribe of Florida v. Florida). In City of Boerne, Congress is limited to enacting laws that prevent or remedy violations of rights recognized by the Supreme Court, and they must be “proportionate” and “congruent” to the constitutional violation. The 14th is remedial, not substantive. Meaning that the 14th Amendment’s § 5 power must be connected with remedying an issue of discrimination or other constitutional violation.
The Court discussed in Alden v. Maine, that states cannot be sued in state court for federal claims without their consent. This opinion, authored by Justice Kennedy, highlights an attempt by Congress to circumvent the 11th Amendment’s prohibition on suits against the state governments without consent or otherwise valid under Congress’s § 5 authority. The Court concluded, there must still be consent. Which only makes sense. If Congress could authorize suits against the states under their legislative powers, then the concepts of federalism would likely flounder.
V.
The federal Executive Branch is one of sufficiently ambiguous decrees of authority. Article II § 1 provides, “the executive power shall be vested in the President of the United States.” The Court addressed this extremely broad authority in Youngstown Sheet & Tube Co. v. Sawyer, in which it seems that every single Justice wrote an opinion on this “inherent” authority.
Justice Black began by giving the opinion of the Court. Justice Black believed, and held, that “the President’s power must stem from an act of Congress or from the Constitution itself.” Under Youngstown, there were other statutory provisions that would grant the President authority to seize the mills he did. But the government’s concession that these conditions were not met, meant they had to act under the Constitution or another congressionally enacted law. Justice Black continued, by expressing Congress’s intent to reject such emergency provisions in the Taft-Hartley Act, showing that if Congress intended this authority, they would have included such language in the statutes promulgated for the seizure of the steel mills. Furthermore, Justice Black highlights an important separation of powers rationale. The President being required to see that the laws are faithfully executed, provides insight into the idea that he was not to be a law maker. That Congress was to provide the vessels of executive power.
Following Youngstown, as a class, we discussed the Executive Privilege and whether the President should be able to keep certain communications from the other branches. Whether there are any teeth in a Congressional subpoena for such documents. We covered, in short, United States v. Nixon, which determined that Richard Nixon was required to turn over recordings that could have held communications of wrongdoing as it pertains to the Watergate scandal. The Court determined that because the documents, not being turned over, would interfere with the 6th Amendment rights of the criminal defendants in the Watergate robbery, it would be unconstitutional–as denying the criminal defendant exculpatory evidence–not to allow their release.
*It is said that Executive Privilege only runs as far as it does not interfere with another constitutionally mandated right of the individual. It seems, however, that as of now it has strength against political forces in the other democratically elected branch. If Congress wishes to subpoena records from the Executive branch, those subpoenas have no teeth until the judiciary gets involved. Yet, Congress has a clear path to impeach and remove the President for failure to comply if you can convince the Houses that obstruction is a high crime or misdemeanor for purposes of impeachment. (i.e. Impeachment Hearings, 2019) But, as we have seen in the current phase of impeachment, the judiciary has put its foot in the race by enforcement–or at least suggested compliance–of these congressional subpoenas.
*This is not pertinent to the course as a whole but is pertinent to current events and will likely come up if [Prof. Name] decides to include a question on Executive privilege.
VI.
The next set of topics we covered from preemption, both express and implied, to the Privileges and Immunities clause of Article IV § 2. We also, in short, covered the Dormant Commerce Clause.
First, preemption can be broken into two categories. One of which can be broken into subparts. Express preemption is statutorily expressed supremacy of the law over state and local laws that may interfere with the federal law. Plain and simple. Implied preemption and its three subparts are the second branch of preemption. (1) “Field preemption” occurs when a federal statute is intended to occupy a specific field of law or regulation. This preemption, however, must be determined by congressional intent; which is often difficult to determine. A good example would be a federal statute regulating the amount of mercury may be released into an active river (see Clean Water Act). Congress may set a standard minimum that the state or local government cannot abrogate any lower. (2) “Conflict preemption” requires that the federal law and the state law be in conflict first and foremost. Furthermore, it requires that the two laws be impossible to comply with at the same time. If so, the Supremacy Clause tells us that the federal law prevails. (3) “Federal Objective preemption” is determinative on the fact that the federal law is meant to have a set objective in mind. This preemption speaks for itself. If a state or local law interferes with that federal objective, then the federal law prevails.
One key, as our professor put it, in determining whether the preemption has occurred is to look at congressional intent. This is often found–although if the legislature cannot write it into the text of the bill how are we to truly know–in the legislative history, inter alia. When looking at congressional intent your next step would be determining the floor v. ceiling argument. If it is a floor, state and local ordinance may not enter the basement. If it is the ceiling, then the state or local law may not enter the attic. The state laws must occupy the space between the two and are free to vary in degrees of enforcement within that space.
Second, the Privileges and Immunities (“P & I”) Clause of Article IV § 2. The P & I Clause protects against laws that are discriminatory against out-of-state citizens (citizens of the United States only) in favor of in-state citizens. Corporations and Immigrants do not apply under the P & I Clause. This clause, however, does not protect against market participation . . . that is for the Dormant Commerce Clause to wrangle. This provision ultimately protects against discriminatory actions by state and local laws that impinge fundamental rights. One such example? Travel.
Third, we discussed in short, the Dormant Commerce Clause. Most specifically, that is applies to economically discriminatory actions by the state against another state’s citizens. This applies wholly to economic activity, but I think we all know that in most instances that is an ever-changing dial.
VII.
We moved on to incorporation of the Bill of Rights to the States by the 14th Amendment and their application to state and private conduct. We did not discuss in great detail the different thoughts on incorporation, but the prevailing theory is selective incorporation. Meaning that only certain amendments in the Bill of Rights are incorporated by and through the 14th.
The Slaughter-House Cases, which, in short, nullified the Privilege and Immunities Clause of the 14th Amendment. That is all we covered on that particular topic. (ha!)
We shortly covered Ex Post Facto laws and Bills of Attainder, not a lot of litigation here, so the most important point is to understand when they are blatant enactments of legislature targeting once legal activity or singling out one person (or class) for punishment.
The largest portion of this section was on the State Action Doctrines. Public Function and Entanglement. The State Action Doctrine merely applies the Federal Constitution to state actions (considering firing an employee who works at the county courthouse because they are a part of the LGBTQ community).
The public function exception in applying the federal constitution to private actions seems pretty clear. If the company, entity, utility is performing an inherent public function, then the constitution applies to those particular actions (think firing without some sort of hearing requirements or subjecting people to first amendment violations in a small company town established for purposes of mining). we have these other two exceptions. The entanglement exception requires that the function being performed by the private entity be a traditional governmental function. Traditional functions in the sense that we have seen them in our immediate time seems to make sense, but since the 1960’s we have definitely “entangled” more and more governmental functions that may have been traditional for the purposes of the last 50 years but were definitely not so for the preceding 150 years. Undertaking a factual analysis in this regard would make sense. Yet, if we decided on a hard line of 1776 to measure the traditional government function arguments, we would lose a lot of federal constitutional protections that would ultimately be subject to private discrimination because they did not operate all the way back. Also, economic changes have definitely increased private business involvement in traditional functions of government.
The key in understanding these two exceptions to the State Action Doctrine is whether or not you take a full factual analysis to determine if the function is actually public or if it is traditional.
VIII.
Economic Liberty, Substantive Due Process (pre-Lochner and post-Lochner), the Contracts Clause, and Takings. All substantially important considerations when discussing our economic rights in the United States.
During the Lochner period, substantive due process raised its brow. What substantive due process means is that in order for the government to interfere with your right to earn wages, otherwise participate in contracts, or participate in the market economy as a whole; the government could not deny those rights unless there was a police power to be served. Such as, public safety, public health, or public morals. Furthermore, the judiciary is to scrutinize interference with the right to contract and other economic activities. It must be necessary to a state end. (e.g. Unionizing, Minimum wage, Maximum hours, etc.).
In United States v. Carolene Products, Inc., the Court expressed the two different types of scrutiny that were required. First, “not necessary to have a more searching judicial inquiry” outside the rationally related police power (public safety, health, or moral). Second, it is necessary to have a more searching judicial inquiry where there is a “discrete and insular minority” at play. In other words, the former is rational basis test, and the latter is strict scrutiny.
Takings in the constitutional sense require two major elements: (1) That the property be for public use. (2) That just compensation be provided. The first, is one of constant debate. As Kelo v. New London highlights. The second, is merely a determination on the fair market value of the property at the time of the taking where no just compensation had occurred.
Conclusion:
As you can tell, we covered a lot of material, and this is limited to a summary with no major case law included. There are some reasonably short sections in this summary. There are also sections that I would like to delve deeper into, but that is for another time.
Enjoy!
A Student's Blog on The Constitution 