Show:
I'VE GOT THE POWER
You Should Get Tested for That
I Take Exception With That
Stand By Me
Stranger Danger
100
What parts of the Constitution provide authority for Congress to pass legislation (that we have learned this semester; be specific, the sections!)
Commerce Clause - Article 1, Section 8 Spending - Article 1, Section 8 Civil Rights Power - 14th Amendment, Section 5
100
In terms of standard of review, what is the distinction in a Lopez analysis between "economic" and "non economic" activities?
Economic activity - can use aggregation principle in showing substantial effects on interstate commerce; rational basis review and no leg findings necessary Non economic activity - cannot use aggregation principle in showing substantial effects; heightened scrutiny and legislative findings required, although even then may not be sufficient (see Morrison: GMV; see Lopez: COC)
100
The 2 major exceptions to the normal commerce clause analysis include:
Jurisdictional hook (example: legislation limiting application of state to "across state lines") Broader regulatory scheme (example: Raich - regulation of marijuana part of Controlled Substances Act)
100
A statute provides for compensatory, declaratory, and injunctive relief. A claim is filed; the government claims a lack of standing due to no redressability being available. What will the court rule?
Redressability - "some form of effective relief." Any compensatory relief available is sufficient for redressability.
100
What are 4 examples of rights of "national citizenship" under the P & I clause that are "vital to interstate harmony" and "the vitality of the nation as a whole."
1) Right to engage in business dealings on equal footing with locals 2) Right to receive medical services at a private facility 3) Right to access local state bar / practice law in a state 4) Right to be employed in common trades (private employment)
200
Under Boerne, who gets to determine the scope of rights protected under the 14th Amendment? What is the power of Congress in enacting the Civil Rights Power after Boerne?
SCOTUS is the only entity that can define the scope of the 14th Amendment; Congress cannot substantively disagree on the law with the Courts. "SOLELY REMEDIAL"
200
For a conditional spending scheme to be constitutional, what must be shown?
Dole Test 1) Advancement of "general welfare" of U.S. (deference to Congress in defining) 2) Unambiguously clear statement of conditions in scheme 3) Relatedness / nexus between conditions and asserted purpose of scheme 4) Scheme cannot encourage Constitutional violations Sebelius test for coercion 1) Does the scheme provide conditions that affect issue A for the purpose of addressing program / issue A, OR does the scheme provide conditions that affect issue A for the purpose of addressing program / issue B (Sebelius - the ACA was SO different from prior Medicaid program as to be entirely new); no coercion analysis if category 1 2) If category 2, is the difference between accepting and rejecting the scheme so disproportionate as to make the pressure coercive? (Sebelius - ACA provided a lot of money if accepted, but taxed state 10% of budget if they rejected)
200
The exceptions to the prudential requirement against "no assertion of third party rights" include
1) Enforcement would indirectly harm third party rights (example: Craig v. Boren) 2) Enforcement would hurt the relationship between plaintiffs and third parties (example: Pierce v. Sister Schools) 3) Third party somehow barred from asserting own rights (standard: genuine obstacle) 4) Congress statutorily waives prudential requirements through creation of statutory right.
200
In showing an injury in fact for a claim seeking injunctive relief, what must be shown?
Actual or threatened injury that is concrete and particularized. Actual - not just past injury; "continuing adverse effects" Threatened - "reasonable likelihood" that conduct would occur against; Lyon factors - whether plaintiff would have to commit a crime, whether it was an official policy, and the number of reported incidents
200
The State of NY passes a law stating that 60% of employees to be hired for a state project are to be from the local community. An out-of-state employee challenges the law under the Dormant Commerce Clause. Will the law survive the challenge, and why?
Yes, the statute will survive under the Market Participation exception (this case is analogous to White). The statute reflects the power of market participants to choose the business partners they engage with.
300
Of the 3 sources of authority, Civil Powers Power, Spending, and Commerce, which of the 3 are limited by the 10th and 11th Amendments? Are all of them? Are none of them? Why or why not?
Commerce - limited by 10th and 11th; 10th limits encroachments on core of state sovereignty; 11th was held in Seminole to only be abrogable by the bankruptcy clause and the 14th Amendment. Spending - conditional spending scheme can be accepted and voluntarily waives SSI; acceptance of conditional spending scheme also waives state from being able to assert 10th Amendment protection Civil Rights Power - recognized as one of the only proper sources of authority to abrogate SSI (since chronologically after the 11th); not barred by 10th Amendment core of state sovereignty either
300
A local ordinance bars people over 65 from entering into courthouse. Congress, in response, passes the Age Discrimination Act to remedy such ordinances; many similar ordinances have been recognized as constitutional by SCOTUS. In asserting a claim under the Age Discrimination Act, the plaintiff says "as applied," the local ordinance here denies access to court due to age. How will the court assess the claim?
Under the Boerne test, the Civil Rights Power of Congress must be "solely remedial" and "congruent and proportional" to the right being protected. If the federal act would prohibit otherwise constitutionally permissible activities, as is occurring here, then legislative findings showing a "broad pattern of unconstitutional behavior" is required. In terms of how the court will review these findings, the standard of review is determined by the scope of the right being protected. Ordinarily, the right here would be age discrimination, a right the court has found only has rational basis review. However, under Lane, the plaintiff is alleging an "as applied" violation of the fundamental right to access the courthouse. As such, the federal statute will likely be upheld. As the right is a suspect / fundamental right classification, the civil rights power of Congress is therefore broad and the court will assess the legislative findings using a rational basis standard of review.
300
The general exception to a normal "ripeness" analysis is:
The claim asserting a potential violation of equal protection / equal treatment under the 14th Amendment as applied to certain individuals.
300
Congress under the ESA created a citizen-suit provision granting standing to any person who suffers an injury through violation of certain provisions of the ESA. Robert files a suit under the ESA's citizen-suit provision alleging a violation. The Government challenges Robert's standing by alleging that Robert's injury is a generalized grievance, an assertion of a third party right, and is not in the zone of interests. Will Robert's suit be dismissed for lack of standing?
Congress, through the creation of a statutorily created right, may waive the prudential requirements of standing. However, the Constitutional requirements (injury in fact, causation, redressability) cannot be waived. Assuming that Robert's claim involves a "concrete and particularized" injury in fact, fairly traceable to the defendant's conduct, that the court can provide some effective relief for, his suit will survive the standing analysis, aside from the prudential limitations asserted by the Government here.
300
As discussed in Exxon, the threshold question when considering the application of the Dormant Commerce Clause?
Whether or not the law substantially affects interstate commerce (remember, the dormant commerce clause arises from an unused power of Congress to regulate interstate commerce under the regular Commerce Clause.)
400
Morrison affirmed a fundamental limitation on the Civil Rights Power, first recognized in the courts all the way back in the Civil Rights Cases. What is that limitation?
14th Amendment / Civil Rights Power has no power to remedy discrimination caused by private actors.
400
A state passes a law hoarding all oil resources in the state for in-state businesses and denying gas stations servicing out-of-state cars access to the reserves. The purpose of the law is to ensure that the state is prepared for the coming oil shortage. Under the dormant commerce clause, how will the court assess the law?
Overtly discriminatory against out of state interests, per se invalid - strictest scrutiny applied to the law. Must show 1) compelling non-protectionist state interest (protectionist interest = economic benefit to in-state residents at the expense of out of state residents) and 2) no less discriminatory alternatives available. Debatable whether or not this was a protectionist interest (hoarding of resources generally is protectionist), but even if its not, there are definitely less discriminatory alternatives available. Only Maine has survived element 2, so its unlikely the state here would survive it.
400
AWE stands for several exceptions to the 11th Amendment including:
Abrogation - requires 1) unambiguous clear statement of intent to abrogate SSI by Congress and 2) proper authority of Congress to abrogate (bankruptcy, civil rights power; no other Article I power) Waiver - requires clear and unambiguous voluntary waiver by State; no implied constructive waivers will be sufficient except for State's invocation of Federal jurisdiction through transfer of case from state to federal court; acceptance of conditional spending scheme can be waiver if conditions clear Ex Parte Young - federal claim, federal court, against state official in official capacity, retrospective relief (injunctive); limited in Seminole - court must assess whether state iterates "exhaustive" list of remedies (if remedy scheme is narrower than EPY, or if remedy scheme is comprehensive, then no EPY is available)
400
Michelle alleges a violation of the APA's requirement that "notice and comment" procedures be provided before a rule-making occurs by an agency. No other injury is alleged. Will Michelle's suit survive a standing challenge?
No; Earth Island held that a violation of a procedural due process right, alone, without any other "concrete injury", is insufficient for standing purposes. Note: Ft. 7 of Lujan said that a violation of a procedural due process right need not show that the plaintiff would have WON on the substantive issue had they received proper due process.
400
The State of NY identifies people from FL as having a particularly "evil" tendency to take bath salts. As such, the State of FL passes a law banning Floridians from ever applying for the NY bar. Robert Hupf, a U.S. citizen and a Floridian, challenges this law under the P & I clause. Will such a law survive a P & I analysis?
1) U.S. Citizen, discriminated for out-of-state 2) Discriminated on the right of national citizenship (right to apply for state bar) 3) Substantial reason? Particular "evil" = tendency to take bath salts 4) Close relationship between means chosen (banning bar access) and substantial reason? - NO; heightened scrutiny review (comparable to intermediate)
500
DAILY DOUBLE: What is the holding in Georgia and how does it affect the Civil Rights Power?
No one I have talked to seems to know the real answer to this question. If you know, please email out the answer to all the rest of us!
500
A Federal law requires all legislative, executive, and judicial state officials to embrace a new identification regulatory system that will embed biometric identification scanners into official's wrist for tracking purposes. Aside from any other doctrinal issues, will this law survive a 10th Amendment challenge?
NY - 2 categories of legislation, laws of general applicability (applies only to private individuals or private individuals AND state actors; clear statement required for law to apply to state actors; under Garcia - no judicially enforceable 10th Amendment limitations) and laws that target states in their sovereign capacity (as law makers, regulators, enforcers). Law here only applies to states and affects the sovereign capacity of states (is not "non-sovereign capacity," such as info-storing, as was found in Condon) Laws targeted at states in their sovereign capacity infringe on the protected core of state sovereignty. In NY, the Court held that Fed regulations could not "commandeer" legislative functions; in Printz, the Court held that Fed regulations could not "dragoon" administrative enforcement officials. However, the court in Printz did recognize that cooption of state judicial officials would be allowed. Thus, the part of this statute affecting state judicial officials would survive the 10th Amendment challenge; the part of the statute affecting state administrative / legislative officials would not.
500
A state passes a law that requires all computers bought in NY to be bought from a state agency; any other computer bought from anywhere else is to be destroyed. The reason is because the state is trying to prevent cyberbullying and plans to put in cyber security into all computers sold by this agency to prevent cyberbullying. An out of state American citizen who sells computers challenges the law under a P & I analysis. The state asserts a market participation defense. How will the Court assess the claim and defense?
1) Naturalized American citizen 2) Discriminated on right of national citizenship (right to engage in business on equal footing with locals) 3) Substantial reason - evil of non software encrypted computers to cyberbullying 4) Close relationship between means chosen and substantial reason? NO; heightened scrutiny standard, relationship is NOT CLOSE What about market participation exception? P&I doesn't have such an exception.
500
A plaintiff alleges a threatened injury that the U.S. government will spy on their meetings with Muslim clients in the future. The plaintiff believes past instances have occurred and provides some evidence of such. Will the Court find this alleged threatened injury sufficient for standing purposes?
Ordinary standard for threatened injury - not conjectural / hypothetical, must be imminent threat. In Clapper, the Court recognized an even higher standard, "certainly impending," in cases involving powers of government where other branches have discretionary power and authority (immigration / intelligence). Despite the evidence presented in this case, the Court would be unlikely to find the threatened injury to be "certainly impending."
500
Local ordinance states that all garbage in the state needs to be sold to the State of NY's garbage facility on 21th St. An out-of-state garbage company sues under the Dormant Commerce Clause. Will the ordinance be struck down?
As discussed in Carbone, DCC applies to local ordinances, even if the ordinance discriminates against in-state sources. As discussed in Hollers, generally, if law states that something should all go a single entity, overtly discriminatory and should be excluded. However, if law is sending all of that something to a STATE AGENCY, and not to a private entity, will be upheld (state engaging in market as participant).