Con Law

Federalist Papers

100

Federalist 10 

Group or indivuduals who are trying to dominate the interests of others

Majoritarianism: one large group dominating the violation of minority rights.

200

How to address factions

Destroy faction causes: restrict liberty or unify interests 

Destroy effects of factions: break into small groups that have to negotiate 

300

Federalist 51

• balances and checks on power
• Checks and balances are there to cause conflict which allows the branches to keep each other in check.
• No about just the federal government but also within state and federal governments.
• Federalism: state governments check federal ambitions

400

Federalist 78 

• judicial branch is the weakest because it lacks power over the sword and the purse.
• Sword: enforce the laws & Purse: budget
• The most immediate, powerful levers.
• Courts cannot enforce their decisions
• If the legislature could change the constitution, then it’s dangerous to also hold its will on the others.
• Emphasizes judicial independence: it is far removed from the legislature and life tenure.

500

Brutus 15

Judicial branch is too powerful (the most dangerous) 

3 reasons it is too powerful:

• SCOTUS judgments are final, there is no power above Court to overturn or correct their errors and control the decisions.
• Life tenure protects the justices from any punishment for their errors or judgments.
• Judicial review makes the courts too powerful and superior to the other branches.

Commerce Clause

100

Gibbons v. Ogden 

• Navigation = interstate commerce = Congress has power
• Interstate commerce = navigation and transportation between states.

200

Direct v. Indirect Test  

• Directly effecting interstate commerce or as soon as you enter into some kind of commerce that is within interstate commerce

E.C. Knight: Manufacturing exceeds the direct relationship of interstate commerce.

300

Substantial Effects Test 

Substantial effects test: if it substantially affects interstate trade, then federal regulation applies.

Shreveport Rate: If intrastate activity has large effect on interstate activity, then Congress gets to correct that behavior.

400

Stream of Commerce 

Stream of commerce test: if economic activity is a part of ongoing stream of commerce between multiple states.

Swift & Co. v. U.S.

500

Current State of Commerce Clause 

• Does the activity currently exist or is it being compelled?
• If it does exist, is the activity regulated?
• Channels of interstate commerce?
• Instrumentalities of interstate commerce?
• Activities with substantial relation to interstate commerce?

Commandeering Doctrine

100

10th Amendment 

powers not delegated to Congress are reserved to the states, or the people.

200

Coyle v. Oklahoma 

• Federal act admitting Oklahoma to the Union dictates the location of the State capital and is unconstitutional.
• There are some powers (state powers) beyond the control of Congress.

300

New York v. US (2nd one) 

• Low level Radioactive Waste Policy: Monetary incentives, Success incentives, and Take title sanction
• Congress cannot commandeer the legislative processes of the states by compelling them to enforce and enact federal regulatory program
• Can enforce states with incentives but cannot enforce.

400

Reno v. Condron 

• Upholds the constitutionality of the DMV records acts.
• Sees the states as data holders; does not force states to issue regulations of their own citizens.

500

Garcia v. San Fransisco 

• Previous standard is unworkable
• Overexerts judicial in marking discretionary policy-based decisions
• State/local governments’ activities have extended into new areas.
• Overturns NY v. US: no sacred principal province of state authority or authorization
• Leave zone of states sovereign interests to political and policy determination.
• Federal-state relationship is NOT a policy determination is constitutional.

Conditional Spending/Taxing Powers

100

South Dakota v. Dole 

• Not a power that Congress can use directly use on states.
• Congress can make federal funds conditional
• Limits:Pursue general welfare, Genuine choice by states, Must be related to federal interest, and No violate other constitutional.
• Not commandeering because states have a choice.

200

NFIB v. Seblius (pt. 2) 

• Boundary of tax and penalty: Cannot be excessively punitive, Cannot involve a scienter requirement (knowledge and awareness affecting liability), and Tax not administered by usual tax collector
• Not excessively punitive, cheaper than buying private insurance.
• Assessed by the IRS.
• Many taxes exist to influence conduct, but it cannot be a penalty.

300

NFIB v. Sebelius (pt. 3) 

• If federal government is going to give money for Medicaid then states have to meet all requirement.
• Application to ACA Medicaid conditional spending:
• Type of condition:Withholds finds not related to expansion but to all of Medicaid and Condition threatens other programs, not just the new program.
• Does not leave states’ choice. 

400

Bailey v. Drexel 

Many taxes have an incidental motive of regulating behavior.

• Does not mean they are not taxes
• Presumption of validity – most times, assume they’re validity within taxing powers

500

Boumediene v. Bush 

Habeas is limited to US sovereignty

• US leases Guantanamo Bay from Cuba, does not hold formal sovereignty, although it has exclusive jurisdiction and control.
• Objective factors and practical concerns: Citizenship and status of the detainee + due process rights of the enemy combatant status determination, Nature of the sites of apprehension and detention, and Practical obstacles in resolving access to habeas.

Executive/War Powers

100

Ex Parte Milligan 

• Court stated that since civilian courts were still open thus Milligan’s rights were violated
• Government cannot try and convict Milligan in military courts, can only try when the civilian tribunals are not operating.

200

Trump v. Hawai'i

Mandel: Looking at the order itself, what are we trying to accomplish: national safety.

• No instructions to discriminate on the basis of religion.
• Low level of review for this because the duty is usually given to President and Congress.
• Applying rational basis scrutiny.
• Giving deference to the President.
• Campaign Trail statements are not admissible

300

Hamdi v. Rumsfeld 

• Detention permitted
• Require fair opportunity before neutral decisionmaker.
• Balancing test: Hamdi’s interests v. government’s interest in national security and the war.
• Some level of due process, just not the normal level.

400

Dames & Moore 

President can freeze the assets because it is mentioned in the Act (President froze the Iranian assets in the US)

President does have the power to suspend claims in American courts.

• President uses the executive agreement along with the domestic order as well.
• Congressional legislation under IEEPA Hostage Act
• In Zone of Twilight, however it is truly in the middle of elements 1 and 2.
• No direct congressional authority, still defer to Presidential authority, especially on foreign affairs.

500

Youngstown Steel 

President is stuck within the hard boarders of powers that the constitution has laid out.

Tripartite analysis:

• President + Congress = authority at its maximum
• President + silent Congress = zone of twilight
• President without Congress = powers at lowest ebb (still has constitutional express powers + highest level of court scrutiny)