Term
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Definition
1. APPROVAL. When Pres. acts pursuant to express/ implied authorization of Congress, authority is max.
2. SILENCE. When President acts in absence of either a congressional grant or denial of authority, he can only rely on his own independent powers.
3. DISAPPROVAL. When the President takes measures incompatible with the expressed or implied will of Congress, his power is lowest. |
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Term
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Definition
| Justice Sutherland: “the President alone has the power to speak or listen as a representative of the nation,” Congress may provide the President with a special degree of discretion in external matters which would not be afforded domestically. |
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Term
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Definition
| The Constitution is the paramount and superior law; it is a fundamental law. |
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Term
| Martin v. Hunter’s Lessee |
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Definition
The Supreme Court has the power to review the decisions of the state courts on matters of constitutional law. Article 3, Sec 2, Clause 1 gives diversity jurisdiction, where federal courts can hear state cases.
POLICY: We want uniformity of law. We don’t want forum shopping |
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Term
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Definition
| Established the primacy of federal law over state law with the Supremacy Clause. |
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Term
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Definition
| When a federal law is in conflict with the Constitution. |
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Term
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Definition
| When a state law is inconsistent with federal statute or treaty. A principle of federalism that says that the federal law wins. |
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Term
| Political Question Doctrine |
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Definition
| Courts have the authority to decide questions of law but lack the authority to decide questions that are purely political in nature. Same idea that legal questions are “justiciable,” and political questions are “nonjusticiable.” |
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Term
| Political Question factors from Baker v. Carr |
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Definition
1. Textual constitutional commitment of the issue to a co-equal branch.
2. Lack of judicially manageable standards. Too hard or too vague or there’s no law for the court to decide.
3. The impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion.
4. Lack of respect for other branches.
5. Finality.
6. Embarrassment from conflicting pronouncements. |
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Term
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Definition
| Standing is whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues. |
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Term
| NOT cases of controversies |
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Definition
1. Moot cases: The original cause of dispute is gone.
2. Unripe cases: Dispute has not come to pass and is not likely to come to pass.
3. Collusive cases: Where one side simply wants the validity of the law tested and hires someone.
4. Zone of interest: Who can sue for statute violations.
5. Advisory opinions. |
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Term
| expressio unius est exclusio alterius |
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Definition
| The expression of one excludes another. If the contract has a list of 20 items, it makes the list look complete. If it’s not in the list, then it’s OK. If there are gerbils, hamsters, Collies, kittens, boas, etc., then fish would be OK. |
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Term
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Definition
1. Injury. Must be “concrete and particularized” and “actual or imminent,” not “conjectural or hypothetical.”
2. Causation. Did govt. cause the problem? It must be “fairly traceable” and “not too remote” or “not the result of ind. action of 3rd party.”
3. Redressability. Will a court order redress the problem? Must be likely, not speculative. |
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Term
| Separation of Powers balancing |
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Definition
| Textual commitment where Constitution clearly allocates decision-making power to one branch v. No judicially discoverable/manageable standards (no law). |
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Term
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Definition
| Article 1, Section 7, Clauses 2-3 shows the federal legislative procedures in how a bill becomes a law. |
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Term
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Definition
| Congress gave the President the power to have a line-item veto. Court uses a textual argument (Art. 1, Sec. 7, Clause 12) to say that this would give the President too much power because it would allow him to cancel parts of duly enacted statutes. It violates the Presentment Clause. |
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Term
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Definition
| The theory that one branch of government must not authorize another entity to exercise the power or function which it is constitutionally authorized to exercise itself. |
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Term
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Definition
| Determine whether Congress has a “rational basis” for concluding that economic activity being regulated substantially affects interstate commerce. |
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Term
| NLRB v. Jones Laughlin Steel |
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Definition
| Supreme Court held that Congress could now regulate production of goods.. |
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Term
| 3 ways that Congress can regulate commerce |
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Definition
* Express: Is it in interstate commerce? Things moving are instrumentalities (channels/means trucking/Internet).
* Implied: Does the intrastate activity affect interstate commerce? From the Necessary and Proper Clause.
* Use of channels of foreign or interstate commerce that Congress deems is being misused (shipping stolen goods, etc.). |
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Term
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Definition
| Concerned Civil Rights. Court had to use the Commerce Clause because this was a business. Court held that the power to promote interstate commerce includes the power to regulate local incidents that might have a harmful effect on commerce. |
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Term
| Affectation Doctrine factors |
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Definition
i. Does it “substantially affect” commerce?
ii. Use the rational basis test.
iii. Aggregation factor.
iv. Must be economic activity.
v. State sovereignty at play? |
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Term
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Definition
| This concept says that the STATES, even in absence of any federal statute, are implicitly prohibited from interfering with interstate commerce. Or, limitation on the power of the states to regulate the transport of goods, services, people, or information. |
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Term
| State laws regarding commerce (Dormant Commerce Clause) |
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Definition
1. Protectionist. “unconstitutional per se.”
2. Discriminatory. Presumed “unconstitutional,” but rebuttable presumption. State has BoP.
3. Even-handed. Does it treat in- and out-of-state people the same? Presumed “constitutional” but there is a rebuttable presumption. Challenger has BoP. |
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Term
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Definition
| For even-handed law under DCC: Court will uphold a nondiscriminatory statute unless the burden imposed on interstate commerce is clearly excessive in relation to the putative local benefits. |
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Term
| Discriminatory Test (From Maine v. Taylor) |
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Definition
Does statute burden interstate transactions “incidentally” i. Violate commerce clause only if burdens imposed on interstate are clearly excessive in rel. to local benefits.
Do they “affirmatively discriminate” ag. interstate com.?
i. More demanding scrutiny. Once statute discriminates ag. interstate commerce “either on its face or in a practical effect,” burden falls on state to demonstrate that the statute “serves a legitimate local purpose” AND purpose couldn’t be served by nondiscriminatory means. |
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Term
| Protectionist law under DCC |
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Definition
This law is to preserve a resource for the people of that state. It is “unconstitutional per se.”
i. Is there a valid safety or health purpose for the law?
ii. No balancing test needed.
iii. Is the purpose of the law legitimate (health, safety, environmental or consumer protection) or illegitimate (simple economic protectionism)? |
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Term
| Two exceptions to the Dormant Commerce Clause |
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Definition
a. Market Participant Doctrine: Allows states to favor their own citizens when the states are engaged in an economic transaction. Applies only when state is acting as a market participant, not as a market regulator.
b. Congressional authorization: Congress can adopt legislation that allows a state to place undue burdens on or to discriminate against interstate commerce. |
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Term
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Definition
| This is the principle that governmental power is divided between the state and federal governments. |
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Term
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Definition
* Express: Federal laws says something contrary to state law; federal law wins.
* Implied: Look at the “congressional intent.”
* Field: Is scheme of fed. reg. so pervasive as to make reasonable inference that Congress left no room for state
* Conflict: Compliance either is:
* Impossibility: Physical impossibility.
* Frustration of purpose: Does the state law stand as an obstacle/frustrate federal law? |
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Term
| No Commandeering Principle |
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Definition
| The federal government cannot order state institutions to spend money or resources to implement federal programs. (Goes with Federalism) |
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Term
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Definition
| Article 1, Section 8, Clause 1 says that Congress can tax and spend for the general welfare. Where Congress may be unconstitutional is when a condition is imposed on the states from the federal government. The exercise of spending must be in pursuit of the “general welfare.” (Federalism) |
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Term
| Congress’ Power to Impose Conditions Upon the States Under the Spending Clause |
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Definition
a. Spending by fed. govt has to be for general welfare.
b. Condition must be unambiguous.
c. Condition must be related to purpose of appropriation.
d. Withhold may not violate Constitution.
e. Withhold may not amount to coercion, only encouragement.
* Conditions 3/5 are connected. If not related, can only marginally withhold funding |
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Term
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Definition
| Loansharking case, but Supreme Court said Congress could regulate it anyway. Ruled that it was an “economic activity.” |
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Term
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Definition
| Supreme Court ruled that without a jurisdictional element, Congress could not regulate guns in school zones because it’s not an economic activity. Congress had broad lawmaking authority under Commerce Clause, power was limited, and did not extend so far from "commerce" as to authorize the regulation of the carrying of handguns, especially when no evidence that carrying them affected the economy on a massive scale. |
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Term
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Definition
| Congress could not enact Violence Against Women Act because it was too far removed from the Commerce Clause. Congress cannot regulate non-economic violent activity because it may have an effect on interstate commerce. |
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Term
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Definition
This is the principle that there are certain individual rights that are fundamental (rights that the government is not allowed to infringe). Also known as liberty. 3basic rights:
1. Privileges and immunities (free speech and privacy).
2. Court systems have to be fair (nor shall any state deprive life or liberty).
3. Equality (Equal protection). |
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Term
| Four steps to analyzing any substantive due process problem |
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Definition
State action. Determine whether P’s rights are invaded by government or private party.
Fundamental Right. If violator IS state actor, ask whether P’s fundamental rights are infringed.
Determining the standard of review. If govt is invading fund. rights, court will use “strict scrutiny.” If activity is NOT fund right, use “rational basis test.”
Applying the standard of review. Apply to see if it’s constitutional. |
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Term
| Economic Substantive Due Process |
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Definition
| The concept that businesses have a constitutional right to be free from governmental regulation. Pretty much over. |
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Term
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Definition
| (Substantive Due Process) If there’s a rational basis for legislation, then it’s constitutional. Burden of proof is on the challenger to prove that it’s unconstitutional. (Later applied to NON fundamental rights) |
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Term
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Definition
| (Substantive Due Process) Applies to fundamental rights. Presumed Unconstitutional. Burden of Proof is on the state. |
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Term
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Definition
| Fundamental Right -- the right to make decisions that are of an intimate and personal nature. Unenumerated right. |
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Term
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Definition
(Substantive Due Process: Unenumerated Rights)
State adopted a law to forbid teaching foreign language until high school. Law was against Germans. Defined the unenumerated rights: to engage in common occupations, aquire knowledge, marry, home, children, worship God and to enjoy “the pursuit of happiness.” |
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Term
| Pierce v. Society of Sisters |
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Definition
(Substantive Due Process: Unenumerated Rights)
Oregon made a law that required parents to send kids to public schools until the eighth grade, prohibiting private and parochial schools. Parent’s rights case. |
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Term
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Definition
(Substantive Due Process: Unenumerated Rights)
Aunt allowed kid to sell religious pamphlets on the street corner. She was violating child labor laws. Court said that it constitutional because of the child labor angle. (No violation on religious freedom or parenting.) |
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Term
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Definition
(Substantive Due Process: Unenumerated Rights)
Interracial couple was not allowed to marry. Supreme Court relied on the Equal Protection Clause to invalidate the Virginia statute. Violation of the Due Process Clause of the 14th Amendment. Freedom to marry is a fundamental right. |
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Term
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Definition
(Substantive Due Process: Unenumerated Rights)
Established that the institution of family was a fundamental right. If something is a fundamental right, then more than rational basis protects it. Some laws require strict scrutiny. It’s about balancing between rights of the individual and an organized society. Or balancing the interest of the state with violation of individual liberty. |
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Term
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Definition
(Substantive Due Process: Unenumerated Rights)
Applies to fundamental rights. Presumed Unconstitutional. Burden of Proof is on the state. Compelling government interest and the law must be the least restrictive. |
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Term
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Definition
(Substantive Due Process: Unenumerated Rights)
State prohibited anyone who was behind on child support from marrying. Strict scrutiny because it is about marriage – fundamental right. Used balancing test to balance the interest of the state with the right of the individual. Statute interfered directly and substantially with the right to marry. |
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Term
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Definition
(Substantive Due Process: Unenumerated Rights)
Weird parent/father case. Traditions protect the marital unit, not the bastardly daddy. Importance is that tradition can be specific or general/battle between rules and standards. |
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Term
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Definition
(Substantive Due Process: Unenumerated Rights)
Liberty at issue is the interest of the parents. Oldest fundamental liberty. State cannot inject itself into private realm of family to question the parent to make the best decisions concerning the rearing of children. |
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Term
| Skinner v. State of Oklahoma |
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Definition
(Substantive Due Process: Unenumerated Rights)
Oklahoma had a statute that called for the sterilization of anyone who committed crime of moral turpitude. Court said that marriage and procreation are fundamental rights. First time strict scrutiny appears. |
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Term
| H.P. Hood & Sons v. Du Mond |
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Definition
| State of New York refused petitioner a license to receive and process milk for shipment out of state on grounds that it would lead to “destructive competition” and it might create milk shortage in NY. Protectionist law based on financial reasons. No balancing test needed. POLICY: States are not separate economic units. Producers should be able to sell wherever in U.S. because of “free access” idea. Plus, need to consider consequences if states starting hogging goods – like cars, oil, coal, etc. |
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Term
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Definition
| Marijuana case. Supreme Court held that Congress could regulate homegrown pot under the Commerce Clause |
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Term
| Southern Pacific Co. v. State of Arizona |
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Definition
Even-handed case because it applied to all trains. State says it’s because of safety reasons, but court thinks this is skeptical.
a. Court looks at the cost to interstate commerce and weighs the benefits of the people in the state with the burdens of those out of state.
b. Balanced test said that the state interest is outweighed by the interest of the nation in a train system that is efficient. |
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Term
| Bibb v. Navaho Freightlines |
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Definition
| Even-handed case about mud flaps. Court held that this is one of the few cases in which local safety measures that are nondiscriminatory in nature place an unconstitutional burden on national commerce. Problem was the delay in changing the mud flaps – cost time |
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Term
| Philadelphia v. New Jersey |
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Definition
Protectionist. A New Jersey statute prohibited importation of garbage into the state because the landfills were filling up. State was trying to save the resources for THIS state. No balancing test.
a. Ask if there is a valid safety or health concern? Nope |
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Term
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Definition
| Supreme Court struck down a flow-control ordinance that required all trash collected within the city to be brought to a particular privately owned landfill. Court ruled that this was a protectionist measure that discriminated against out-of-state landfills and that is was a per se violation of the DCC |
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Term
| United Haulers Association v. Oneida-Herkimer Solid Waste |
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Definition
| A local ordinance required that all trash within the county to be transported to a publically owned facility. Trash haulers complained that they could take the trash out of state for half the price. Supreme Court said this was even-handed because it required use of a public facility, not a private business, so the law did not favor local businesses. |
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Term
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Definition
| Discriminatory law was upheld. Statute prohibited people bringing in baitfish from out of state because they may carry a parasite that was not in the Maine fish. Court set up a test. |
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Term
| Hunt v. Washington Apple Commission |
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Definition
| Protectionist, although state tries to argue that it is to prevent deceit to consumers. Court held unconstitutional |
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Term
| Kassel v. Consolidated Freightways |
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Definition
| Even-handed on its face but really discriminatory. Iowa said that double trailers couldn’t use the highways, although they were allowed in border states. Court said that the law was unconstitutional because of laws in other states allowed them. |
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Term
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Definition
| Protectionist. Supreme Court upheld that South Dakota’s state cement plant could sell only to state residents. Reasoning was that the state had the same freedom to choose its customers as a private company. Market Participant Doctrine. |
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Term
| South Central Timber District v. Wunnike |
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Definition
| Protectionist. Alaska sold timber to the highest bidder, but required that it be processed in the state. Supreme Court struck the law down because Alaska was acting as a regulator more than a seller because it was attempting to control the product after it was sold. Not under Market Participant Doctrine |
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Term
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Definition
Congress adopted a law that reduced the amount of highway funding any state would receive by 5% unless the state raised the drinking age to 21. 5 elements:
a. Spending by fed. has to be for general welfare.
b. Condition must be unambiguous.
c. Condition must be related to purpose of appropriation.
d. Withhold may not violate another part of Constitution.
e. Withhold may not amount to coercion, only encouragement. |
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Term
| U.S. v. Carolene Products |
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Definition
Set up two tests to look at Substantive Due Process.
Rational Basis Test: If there’s a rational basis for legislation, then it’s constitutional. BoP is on challenger to prove that it’s unconstitutional. (Later applied to NON fundamental rights)
Strict Scrutiny Test: Applies to fundamental rights. Presumed Unconstitutional. Bo P is on the state. Compelling government interest and the law must be the least restrictive. |
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Term
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Definition
First case to use “right to privacy.” 1st Am guarantees at core fundamental rights plus penumbra/derived rights (right of assembly, privacy). 9th Am has to do w/ rights.
a. Law about marriage/family rights btwn husband/wife.
b. Law can’t forbid use of contraceptives, although it can regulate their sale.
c. Look to tradition/collective conscience of people to determine whether principle is “so rooted as to be ranked as fundamental.” |
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Term
| Ends/Means Tests for Substantive Due Process |
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Definition
a. For rational basis: Ends are a legitimate state purpose. Means: Appropriate or some tendency to accomplish legitimate end.
b. For strict scrutiny: Ends are a compelling government interest as compared to an individual right. Means: Likely to accomplish the government interest. Must be the least restrictive means/alternatives to accomplish the goals. |
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Term
| Basic Fundamental Rights Model |
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Definition
Does interest qualify as personal liberty under DPC?
Is protected liberty one designed to be fundamental?
Does challenged law interfere with fundamental liberty in a serious enough way to impinge on or unduly burden that liberty, triggering strict scrutiny?
If so, does law substantially further compelling govt interest?
Has govt chosen least burdensome mean of achieving its compelling interest? |
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Term
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Definition
| Massachusetts enacted a law that made it a felony to give contraceptives to an unmarried person. Court said unconstitutional, relying on Griswold that the right of the individual to be free from unwarranted intrusion into matters so fundamentally affecting a person as the decision to bear or beget a child. |
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Term
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Definition
| Two rights at stake: bodily integrity and question of becoming a parent. Right protects woman from unduly burdensome interference with freedom to decide. Govt cannot put an obstacle or an undue burden on right to terminate a pregnancy |
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Term
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Definition
Holding:
Recognition of the right of a woman to choose to have an abortion before viability and to obtain it without undue interference from the state.
Confirmation of state’s power to restrict abortions after fetal viability unless they endanger woman’s life/health.
State has legitimate interests from outset of pregnancy in protecting life of woman and health of fetus that may become a child. |
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Term
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Definition
| Connecticut law authorized Medicaid funding for childbirth but not for abortion. Here constitutional because the law places no obstacles on abortion, only prevents funding for it. |
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Term
| Three questions to ask when arguing precedent |
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Definition
1. Reaffirm v. Overrule
2. Distinguish cases v. find that it is applicable
Might just be one minor factor that distinguishes it
3. Not controlling authority
Did case come from same jd?
Has cited case already been overruled?
Was it majority opinion/concurring/dissenting opinion |
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Term
| Intent arguments with stare decisis |
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Definition
(From Casey) Intent arguments here--much stronger in case of statutory interpretation than they are in Constitutional interpretation
Intent of legislature is pretty much the whole ballgame in statutory interpretation--focus on this
With Constitutional interpretation, it is an argument, but not the be-all, end-all |
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Term
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Definition
| Obligation to follow precedent begins with necessity. Only matters if you disagree with the former decision. Even though you think it’s wrong, you have to respect it. Four reasons that would justify overruling a case that you thought was wrongly decided. Has to be wrong plus something else. 4 questions: Unworkable? Not relied upon? Undetermined? Changes in fact? |
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Term
| Planned Parenthood v. Casey |
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Definition
| Reaffirms the holding in Roe and asks if the law imposes an undue burden on a woman’s right to choose to terminate her pregnancy. Big case for stare decisis. |
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Term
| Definition of privacy (from Casey) |
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Definition
| Law affords constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing and education. Cases recognize the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child. |
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Term
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Definition
| Woman in persistent vegetative state. Parents want to pull plug. Missouri statute says need “clear and convincing” evidence to be taken off life support. Court looked at if fundamental right to refuse lifesaving medical treatment. Court said state’s strict procedural requirements did not violate DPC because idea was that the patient could determine rights, not surrogates. Any liberty to reject life-saving treatment belongs to the patient, not the family. Compelling interest: Saving lives. |
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Term
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Definition
| Court found that there was no fundamental liberty interest present. It was easy for the court to sustain the Washington law that prohibited aid to someone committing suicide because it had several legitimate state interests (saving human life, protecting vulnerable groups, guarding against euthanasia). |
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Term
| Substantive Due Process Analysis (Glucksburg) |
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Definition
i. Due Process Clause specifically protects fundamental rights and liberties that are objectively “deeply rooted in this nation’s history and tradition” and implicit in the concept of ordered liberty such that neither liberty nor justice would exist if they were sacrificed.
ii. Need a “careful description” of the asserted fundamental liberty |
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Term
| District of Columbia v. Heller |
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Definition
| DC adopted a law that banned the possession of handguns but allowed rifles and shotguns in homes/businesses. Court said that there were two interpretations of the 2nd Am. Court said unconstitutional because 2nd Am protects the right to keep and bear arms for the purpose of self-defense. No standard of review given. Scalia on prefatory clause argument. |
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Term
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Definition
| Chicago ordinance outlawed the possession of handguns. Court said unconstitutional. No standard of review given. Under stare decisis, a provision of the Bill of Rights that protects a right that is fundamental from an American perspective applies equally to the federal government and the states. Due Process Clause of 14th Amendment incorporates the 2nd Amendment right from Heller |
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Term
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Definition
| Georgia statute made sodomy a crime. Court upheld. No fundamental right for homosexuals. (Overruled by Lawrence.) |
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Term
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Definition
| Begins and ends with “liberty” Overrules Bowers v. Hardwick. Issue is framed as “right to privacy,” not right to engage in homosexual activity. Liberty as spatial and transcendent opinions: Spatial--Behavior/Conduct Transcendent--Feelings/ relationships--based on transcendentalist movement. What we are really concerned with here is the transcendent aspect. |
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Term
| Procedural Due Process Formula |
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Definition
1. Is it necessary to determine whether the Due Process clause even applies to the particular governmental action being challenged?
2. If Due Process clause does apply, what procedures does the government have to follow? |
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Term
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Definition
| PDP is guaranteed by the 5th and 14th Amendments stating that “no person shall be deprived of life, liberty or property without due process of law. Three issues: Scope, What and When |
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Term
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Definition
| (SoP) Results are different because the President had Congressional the power, unlike in Youngstown. Legislative history said that Congress has accepted the President’s authority to settle claims. Congress gave the President the power in the past to settle the claims. Here, it is FOREIGN claims. It is a 1 under the tripartite theory. |
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Term
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Definition
| Federal courts have jurisdiction over government officials who have custody of prisoners and therefore have statutory jurisdiction to issue writs of habeas corpus on behalf of detainees. |
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Term
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Definition
President has authority to detain American citizen captured overseas as enemy combatant, but only for a limited time
President must follow procedural due process protocol in giving these detainees a fair hearing on whether or not they are terrorists
Habeas corpus does not appear in the Bill of Rights |
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Term
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Definition
Unconstitutional for Congress to make habeas corpus unavailable to prisoners detained in war on terror/relegate them to judicial review of CSRT. his Court's case precedent recognized that fundamental rights afforded by the Constitution extend to Guantanamo
Rule: Prisoners may invoke the fundamental procedural protections of DP |
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Term
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Definition
SoP Federal Election Commission head could NOT be appointed by Congress because violated President’s power to nominate officials under Appointments Clause.
i. If the agency only issues reports, head does not have to be appointed by the President.
ii. If any of the three powers will be conducted by the agency, must follow the Constitutional rules with the President nominating and the Senate confirming |
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Term
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Definition
| SoP President Harding removed the Postmaster of Oregon from office. Supreme Court held that the President alone could terminate officers who held a “purely executive function.” This is the President’s constitutional role. |
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Term
| Humphrey’s Executor v. U.S. |
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Definition
SoP President Roosevelt fires Humphreys from Federal Trade Commission when he takes office. Court held President could NOT remove him without cause.
i. Head of the FTC was NOT a purely executive officer, so President’s power was limited.
ii. Removal “with cause” was added by the Supreme Court to help with the balance of powers.
iii. FTC head part of “headless fourth branch” |
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Term
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Definition
| SoP Supreme Court held that Congress can only remove officers by impeachment because any other method would upset the separation of powers. |
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Term
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Definition
| SoP INA provided for a one-house veto, which the Supreme Court held was unconstitutional because it went over the executive branch’s power and was against bicameralism. |
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Term
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Definition
| SoP Significance was that we want to make sure that the checks and balances include the President. The court balances the President’s need and privilege with meeting people confidentially with Due Process. |
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Term
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Definition
| SoP Congress gave the President the power to have a line-item veto. Court uses a textual argument (Art. 1, Sec. 7, Clause 12) to say that this would give the President too much power because it would allow him to cancel parts of duly enacted statutes. It violates the Presentment Clause. No provision in Constitution allows President to enact/amend/repeal statutes. |
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Term
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Definition
| Civil Rights case where a diner wouldn’t serve blacks. Under Commerce Clause, Congress could regulate. |
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Term
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Definition
| High watermark for commerce. Allowed Congress to regulate a farmer growing wheat for personal use because it affected commerce. Idea was that “substantially affected” commerce. |
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Term
| Two general tests for state action |
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Definition
1. Did the government significantly involve itself in the action of the private party?
2. Is the nexus between the private party and the state sufficiently close such that the action of the private party is fairly attributable to the government? |
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Term
| What constitutes state action? |
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Definition
a. Seeking judicial enforcement of a contract.
b. Entering into joint enterprise (private/govt).
c. State encourages/compels private action.
d. Performing a public function traditionally, exclusively performed by government.
e. Pervasive entwinement. |
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Term
| What does NOT constitute state action |
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Definition
a. Entering into a contract with a private party.
b. Entering into a contract with the government.
c. Mere approval/acquiescence by state in private action (rubber stamping).
d. Government funding or grant of a monopoly.
e. Membership of govt in private organization. |
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| Arises from 14th Amendment, Section 1 “No state shall” that provides states shall not interfere with the fundamental rights of Americans (procedural due process, substantive due process and equal protection). The government has to treat people equally and fairly. |
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| (State action cases)Three main ones that basically said if state was involved (like in a primary or voting), they were unconstitutional. |
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| (State action) Person was arrested for distributing religious literature in Chickasaw, which was a town almost completely owned by the Gulf Shipbuilding Corp. Since the company owned the town, it was acting like government so court found state action. Fact that performing a public function is state action. |
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(State action) Black family tried to move in; private restrictive covenant on property, would not allow blacks live there; tried to enforce through courts.
a. Holding: in granting judicial enforcement of the restrictive agreement in these cases, the States have denied petitioners the equal protection of the law, and therefore the action of the state courts cannot stand. |
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| Burton v. Wilmington Parking Authority |
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| (State action) A privately owned restaurant in a public parking garage denied blacks. Leases were part of the government because land was not a surplus. Violates Equal Protection Clause. This is the high watermark in state action because it was “intertwined” and a “joint enterprise.” |
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| (State action) Privately owned electric company cut off power to Jackson without a hearing. No state action because the function here is not “traditionally, exclusively” performed by the state. Government only had mere approval, not encouragement. |
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| (State action) Black guy wasn’t allowed to eat in Moose Lodge. No state action because liquor licenses weren’t enough for state action. |
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| 3 Traditional Areas for State Action Cases |
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Definition
1. Procedural due process
2. Substantive due process
3. Equal protection |
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| (State action) Mrs. Brooks evicted from apartment and arranged furniture to be stored Flagg Brothers; they threatened sell her goods if did not pay; Supreme Court said a warehouse selling goods without notice to the owner was permitted but not compelled by the state statute; and was not state action because not traditionally a function reserved to the state. |
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| Lugar v. Edmondson Oil Co. |
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| (State action) Ex parte attachment of property; Supreme Court held did constitute state action as a private party’s joint participation with state officials in seizure of disputed property is state action). Joint participation. |
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| (State action) Nursing home moved elderly father different level care, doctors committee determined whether move without family at hearing; family say lack of procedural due process. Holding: court says action nursing home holding hearing not state action; go through various tests—not joint enterprise, encouragement, coercion. |
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(State action) Private, new perspective school got 100% funding from the public schools; contracted with all of the schools in the county; public school send mentally challenged children to their school, terminated employment of teachers, said violated rights under first amendment. Holding: court says not state action.
Huhn variation—if school had discriminated against students on the basis of race; thinks would have been state action there |
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| NCAA v. Tarkanian; & Brentwood v. Tennessee Secondary Athletic Association |
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Definition
Both cases a party had been disciplined by a private, non-profit athletic assoc. brought suit against claiming that assoc. violated constitutional rights). Fact Pattern #5: where pervasive entwinement comes from.
Differences in cases: both athletic associations, took actions against member schools; NCCA—not state actor, BUT TSAA has all public and private schools, based on history called a state actor—all people from one state and pretty clear state of Tennessee set up TSAA, automatically sat on board, etc. |
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