POWER'S METHODOLOGY

4 STEPS

1. What is the power base?
    
2. What is the Breadth of the Power? 
    
3. What are the limits on the exercise of the Power?
    
4. Has the Power been exercised within the letter and spirit of the C.

8 Constitutional Limits

1. Specific Limitations
2. Separation of Powers (Horizantal Limitation)
3. Federalism (Vertical Limitation
4. Bill of Rights
5. Framers Intent
6. History, Tradition, and Precedent
7. Justice & Fairness
8. Political "the power of the vote"

Specific Limitations

the text of the constitutiton 

Separation of Powers

a power granted to 1 branch will restrict / limit another branch of that power 

Federalism

• relationship b/t the fed. government and the states
   
• 10th amend. - any power not granted to the fed. gov. by the C is reserved to the states 
   
• supremacy clause - Art. VI Sec. 2 - fed. law supercedes any inconsistent state law 

Bill of Rights

apply only to fed gov. made applicable to states throught the 14th amendment 

Judicial Power

Art. III

• Section 1 - supreme court, inferior courts created by congress
   
• Section 2 - Judicial power shall extend to all cases arising under the C, the laws of the U.S. and treaties made 

Judicial Limitations 

3

1. Appointment of new justices is done with advice and consent of the Senate
    
2. Constitutional Amendments 
    
3. no real power to enforce their decisions, legislature/congress must enforce through law

Judicial Branch Power Bases

Article III

and 

Judiciary act

Judicial Review - Marbury

-SC can review the constitutionality of the Actins of both the executive and legislative branches

- power to declare what the law is

- limit = no political questions 

Judicial Buzzwords

Arising Under

Letter and Spirit

Breadth

Constituion is paramount and supreme

Judicial Reveiw

Political Question

Plenary Power

Essential Funtion Hypothesis

Justiciability

Supremacy Clause

Necessary and Propper Clause

Exceptions Clause

Strengthens the implied powers

Government has the right to use whatever "means" necessary and propper to achive the "ends"

section 1 - grants all leg power to congress

Section 8 - Power Bases - Enumerated Powers

Section 9 - restricts the leg. power

section 10 - Limits the states in what they are empowered to do 

1. power to collecect taxes and spend governmental money 
2. power to borrow mone on credit of U.S. 
3. power to reg. commerce w/ foreing nations, among the states and w/ indian tribes
4. power to make all laws which shal be necessary and proper for carrying into execution the foregoing powers

Commerce Clause

the effects on Commerce Theory

if anything effects commerce, congress can control it 

commerce Prohibition Theory 

child labor chairs, congress stands at border and declaes what hte law is 

genius of the system

uniformity - only why a program will work is if it is done throught the Fed. Gov.

1. Congress has Exclusive control 
2. Commercial Commerce Power
3. Interstate Power

• fed gove system governs a states external affairs and its effects on the other states generally 

1. Separation of powers
2. federalism/ intrastate doctrine

• company must have 15 or more employees to qualify for interstate commerce 

1. commerce power is not to be made a police power
2. state autonomy
3. Specific C limitiations
4. Political - public vote can kick out abusers of commerce clause

congress shall have the power to lay and collect tases, to pay the debts, and provide for the common defense and genreral welfare of the U.S.

power limited by " for the common defense and general welfare"

1. congress cannot tax one person and give it to another they must tax in a general way and spend in general
2. congress cannot impose a tax as a penalty, for crime
3. Influeces of the Times Theory
4. Carrot Stick Approach

• leg. only gives states fed money w/ strings attached, must make it optional for states to opt in or out, falls into the genius of the systemtn theory

1. general welfare - must be in pursuit of the general welfare
2. Unambiguously Imposed - must unambiguously condition states reciept of fed. funds
3. related to fed int. - conditions must be related to the fe. int. in particular national projcects
4. other C provisions 

congress shall have the power to "declare war" to "provide fort he common defense" to "raise and support armies" and to " provide and maintain a Navy" to " make rules for the gov. and regulations of the alnd and naval forces"

1. congress had the power to freeze rents at war time level - war power does not necessarily end when hostilities do
2. war powers are limitied to the customs and usages of war - cant try someon in military tribunal after the war 

1. Bankruptcy
2. power to coin money
3. power to borrow money - concurrent w/ states
4. U.S. postal office
5. patents
6. copyrights
7. trademarks
8. D.C. Clause - power to pas the laws of D.C
9. maritime
10. piracy
11. C amdendment power

congress can extend the meaning of the C's EP clause but cannot restrict it 

threatens the judicail branch as the ultimate interpreter of the C 

section 1 - grants exclusive powr tot he pres. of U.S.

section 2 - deals w/ his powers as commander in chief

section 3 - deals w/ his relationsip w/ the legislature

section 4 - puts restrictions of impeachment 

1. implied powers - means to the ends
2. Enumerated powers

• Power to conduct foriegn affairs
• commander in chief power
• power to make treaties
• power to take care of the laws that have been enacted 

1. Impeachment 
2. president must have approval of senat befor treaties get ratified 

do not rise to the level of treaty

-state law < executive agreement < federal law

1. Pres has plenary power as " sole organ" of fed gov in the field on international relations
2. the same C rules don't apply to external issues as internal issues
3. Criminal lawmakeing authority related to foreign affairs is pres's power 

providing confidetiality for all pres communications

- Pres has Abs. Priv. dealing w/ foreign affaris, military, national security, diplomatic secrets

prsumption that pres comm is condidential

court must overcome presumtion to overcome a Qual Priv

use a balancing test

weigh importance of general priv. v. the inroads of such privileges on fair admin of crim justice (5ht DP) and (6th)

- hard to do, requries the House to impeahc and 2/3 Senate vote

- can be impeached for treason, bribery and other high crimes and misedemeanors

-HC&M's

-serious offenses, and abuse of the office for a breach of trust

- a gross breach of trust and severe abuse of power

-whatever the house says it is ( no def. standard)

1. obvious state action - if state or fed gov acts itself no explanation needed
    
2. Nexus Approach - state action methodology - when a private person becomes so entangled witht he state that it becomes a state actor, Use Ad-Hoc Sifting and Weighing 
    
3. Delegation/ public funtion doctrine - use this theory at the end of analysis, if a person acts becaus the state has delagated a traditional state responsibility 

1. Having a license from the gov is not enought to make you a state actor, need more 
2. there must be enough of a tie b/t private and state to be considered a state action/actor
3. must be some sort of sufficient participation by gov entity 
4. Inaction is not state action
5. a facially neutral statute is subject to enhance review only when it has both a discriminatoy purpose and disporportionate impact on race 

1. state actions decided on case by case basis
    
2. a link of only $ is not enough to form nexus
    
3. state only held resp. for private if it exercises "coercive power" or provides "significant encouragement"

Yes - State action

- state profits from discrimination

- private gets benefits from state

- mutual benefits - state provides parking for service

No - not state action

- state has nothing to do with the discrimination

1. Obvious state action:
•  is the state or federal government itself the actor?
2. Nexus Approach
• is a private party entangled witht the state?
• commanded or encouraged 
• licecense + something
• symbiotic relationship 
• inaction is not action
• does state profit from discrimination
• money not enough
• is D heavily regulated by state
3. Delegation/Public Function:
• has the state delegated its responsibility to a private party

14th Amendment

no state shall deny to any person w/in its jurisdiction the EP of the laws

EP only applies to the states, (fed gov as DP of 5th)

1. Discrimination - treating persons similarily situated differntly w/o suffiction reason
    
2. discrimination based on race is clearly unconstitutional and is prohibited 
    
3. EP changes w/ the times 
    
4. discrimination cannot be arbitrary and capricious 

De Facto 

-when there is "in fact" segregation/discrimination

-all balck or all whith school but done unintentionally

De Jure

-when there is "in law" segregation/discrimination

-ke is ther must be an intent to segregate 

EP Rules

1. Desegregation is notw Resuls Oriented, not Process Oriented
2. Bussing 
• no need for mathmatical exactness, 
• Presumption of violation - all one race shcools are not a violation but school boards have burden to prove
• Loaded game board - when a town ins naturally segregated, affirmitive action "zonin" may be required 
• Bussing is appropriate to bring integration

1. State Action?
• if yes, then move on
• if no, then go to Nexus, then delegation
2. Classification & Discrimination
• over-inclusion - every member of disadvantaged class possesses the trait
• under-inclusion - denies benefit to a group, but grants benefit to other groups whose inclusion imposes equal or greater costs 
3. Intent to Disriminate?
1. De Facto - p must prove intent of disc. 
2. De Jure - P does not need to prove intent
4. Standard of Review
• Rational Basis (RB Plus)
• Intermediate Scrutiny
• Stirct Scrutiny
5. Remedy?

1. unpopular trait
2. affiliation
3. stereotype
4. immutable charcteristics 

1. Mentaly disabled/ handicap disability
    
2. Homosexuals
    
3. Obvious Legislative desire to harm an unpopular group
    
4. wealth 
    
5. Age 

the D government must prove:

a compelling state interest, and

a Narrowly Tailored means

to reach the goal

3 Groups that demand Strict Srutiny

Suspect Classes 

1. Race
    
2. Affirmative Action
    
3. Alienage

1. Race is rarely if ever relevant to any legitimate gov. purpose 
2. racial classification violates a fndamental moral norm
3. defects in the political process make it expecially likely that racial classifications will be based on "hostility" or inaccurate stereotypes

Disparate Impact 

vs.

Disparate Treatment - Intent

Disparate Impact

- must have a neutral standard

- need a diploma to get ried, more whites get diploma, shows discirm

-unless comp. can show diploma is needed(use stats)

Disparate Treatment

-must be abel to prove intent 

1. the impact of the offical action
2. historical background of the decision 
3. the specific sequence of events leading up to the challanged decision
4. departures from the normal procedure or substantive sequence of a decision maker
5. the legislative or admin history by be relevant
6. statistics - show how something affects minorites more than others, this then shifts the burden
• used by defense to show hw they have not been discriminating in the past, and how they have been changing for the future 

Treating perosns simillarly situated differnetly w/ sufficient reason - for benign purposes, or for a good purpose which is to catch up a "race"

CON: it is reverse discrimination, against whites

PRO: racial marjority cannot discriminate against itself in a way that violates the 14th amend EP

1. Majoritatrian - maj cant disc. against itself 
    
2. Affirmative action is not invidous(hateful), but it is benign(to correct past wrongs)
    
3. affirmative action is a remedy so it's sustainable
4. strict scrutiny is applied 
    
5. color blindness theory - any type of disc. is never justified by the C, the C is colorblind

the D gov. must prove an:

important state interest, and 

means, fairly and substantially related 

to that goal

Women and Bastards

1. Gender (craig v. Boren)
2. Illigitamate / non-marital children

Originalism

-judges deciding C issues should confine themselves to enforcing norms that were clearly stated in C

-Arguments agaisnt

-influence of the times

- the true framers intent 

Non-Originalism

-judges should protect all fundamental rights in the C, and beyond the text of the C

-Arguments Against

-the C is like a Contract 

- the democracy argument 

Selective Incorporation Std.

- if a right is fundamental, then it is applicable to the states

Total Incorporation Std.

- if a right is in the Bill of Rights thin it's applicable to the states

Total Incorporation Plus Std.

-if right is in BoR or right is otherwise seen as a fundamental it is applied to the states 

Fundamental Rights

Duncan v. Louisiana

Bill of Rights

1. right to compensation for property taken by state
2. right of free speech, press, religion
3. right to be free from unreasonable searches and siezures
4. right to have evedence excluded that was illeagally obtained form crim trials 
5. right to be free form compelled self incrimination
6. right to counsel
7. right to sppedy and public trial 
8. right to confront opposing witnesses
9. right to a compulsory process for obtaining witnesses
10. right to a jury by trial 

Fundamental Rights 

Attached to the EP clause

1. Education
   -RB presumed
   -Must have suspect class to get [SS]
   -For P to win must get to RB Plus or IS 
2. Voting [SS]
   -denial of right to vote
   -dilution of right to vote
   -denial of access to the ballot 
3. Procreation and Marriage

1. class endures lifetime hardship
2. class impeds progess of the nation as a whole, imposing consts and liability
3. class is disabled by the state

1. class that reflects deep-seeded predjudice rather thatn legislative rationallity in pursuet of some legitimate objective
2. class. that tends to be irrelavent to any legislative goal
3. class been historically relegated to such a position of political powerlessness as to command extraordinary protection form the majoritarial political process
4. class disfavord by virtue of circumstances beyond their control b/c of immutable charachteristics

1. Substantive Component 

- Life, Liberty, or Property

2. Procedural DP Component 

- Criminal Arm - Life Liberty and Property Interests

- Civil Arm - Liberty and Property only

Criminal Arm of Procedural Due Process

Methodology

3 steps 

1. State Action?
2. Is individual being deprived of Life, Liberty or Property?
3. Due Process - what process is due
• use matthews 3 factors and weigh P's v. G's
1. Private Interest
2. Risk of Error/ Deprivation
3. Governmetn interes 

• freedom from bodily restraint
• right to contract
• right to engage in any of the common occupations of life
• right to acquire knowldedge
• right to marry, establish a home, bring up family
• right to worship god according tot he dictates of his own consience 
• right to enjoy these privileges long recognized at common law that are essential to the pursuit of happiness

• a "legitimate claim of entitlement" as oppsed to "abstract want or need"
• source of Property interes comes from Fed. , State law and Governemtn regulations, Not the C 

Substantive Due Process

Methodology

4 Steps

1. State Action?
2. What is the interest or right being limited?
• Liberty
• Property
3. Is the interest explicit in the C? Is intrest Implicit and a FR in the C?
4. Apply the Standard of Review
• Strict Scruitiny - Explicit, or Implicit & FR
• Rational Basis - if no FR

1st Amendment 

Methodology

3 Steps

1. State Action?
2. Look at Statute and Get the facts
• what does statute forbid, burden, or chill
• what could it forbid, burden, or chill
• does it impose a direct or indirect restraint
• does it prohibit speech 100% or merely burden
• does it burden or ban speech
• does it restrain action 
3. Apply appropriat FA Block Test to see if it should be upheld or struck down 

Freedom of Speech

5 Laws Congress may not pass

those abridging:

1. Religion
2. Press
3. Speech
4. Assembly
5. Petition

1. Public Forum Speech
• all people have a right togo on the streets and voice there opinion but they cannot put other people in danger by doing so 
2. Sybolic Speech [no speech at all]
• burining th U.S. flag is a type of protected symbolic speech
• however if a city has a burn ban city will have good case 

1. Criminal Solicitaiton
2. Perjury
3. Certain Types of Business Communications

1. Dangerous Speech
2. Low Value Speech