Introduction Generally—What Does The Constitution Do?
particularly if the law also applies to private entities
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Congress may not impose affirmative duties on state governments Reasoning: Data is a “thing” or “good” of interstate commerce (Authorization) Congress passed the law themselves and it “prohibits” the states from doing something This law affects BOTH state and private entities Regulates state actvties, but does NOT control the states way of regulating the people Different then prior precedent: Contrary to NY b/c this is NOT requiring state to pass a law Unlike Printz b/c it is congress enforcing a law against the state—not forcing state executive to enforce a law against the people Overall Summary: When it is just a federal statute regulating the behavior of entities (whether state or private) the 10th amendment is NOT offended b/c no commandeering of the state leg. or exec. process; rather, we have an application of a general law against the state May Congress authorize citizens to sue their states under federal causes of actions? NO—but there are exceptions 11th amendment: (Answer to the above question is governed by the 11th amendment) Text: “The judicial power of the US shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the US States by Citizens of another state, or by citizens of subjects of any foreign states” This means that a private plaintiff may NOT sue a state for damages in federal court 11th amendment serves as a limit on the jurisdiction of federal courts The 11th amendment was passed in response to the Chisholm case Chisholm: SC said it was OK to sue the state of Georgia and there was an uproar Current 11th amendment interpretation: As a matter of case law, 11th amendment is read to mean that in-state and out-of-state citizens can NOT sue the state governments Hans case made states immune from suits from their own citizens States can NOT be sued for damages in federal court—period States have full sovereign immunity where they are seeking monetary damages for states violating federal law—can NOT happen in state or federal courts (Alden v. Maine) Alden v. Maine Summary: Congress using §5 of the 14th amendment authorized federal courts to award monetary damages in favor of private parties discriminated against by a state government on the basis of their “race, religion, sex, or national origin” Rule: State governments may NOT be sued in state court, even on federal claims, w/o the state’s consent Reasoning: Constitution does not speak directly to this issue, but it hinges on the “fundamental aspect of sovereignty that the states enjoyed before ratification and they enjoy up to this day” Federalism requires that this occur—“state sovereign immunity is necessary to maintain the state sovereignty that lies at the heart of federalism” “Sovereign immunity derives NOT from the 11th amendment, but from the structure of the original constitution itself” Must respect a sovereign—don’t need to worry that states will violate their own peoples rights Jones thinks this is a really weak argument b/c it would mean that states never do anything bad to their citizens Problems: Must choose between federalism and textualism b/c 11th amendment is NOT textually as broad as it has been interpreted Exceptions (“ways around”) sovereign immunity A citizen may sue state officials for injunctive relief Done through a “ex parte young” case Can only get injunctive relief—cannot get monetary damages or relief States can waive their 11th amendment immunity Courts will NOT “assume” lightly that they waived their immunity—there must be an explicit waiver of the rights Usually occurs when the federal government requires them to waive immunity to get federal aid or grants Federal government may sue in behalf of a class of people 11th amendment does NOT bar suits against cities and municipalities States may be sued for money damages under 13th, 14th, and 15th amendments These civil rights amendments were pass later and trump the 11th amendment WHY may Congress authorize suits against states pursuant to § 5 of the 14th amendment? 14th amendment was enacted after 11th (thus meant to supersede) 14th amendment is meant to protect individual liberties from incursion by the state (acts as an express limitation on the states) “Nor shall any state deprive any person of… without due process of law and equal protection” §5: Acts as a new grant of authority (new enumerated power) “Congress shall have power to enforce, by appropriate legislation, the provisions of this article” Gives Congress a new hook—no longer need Article 1 hooks/powers It is a power expressly given to Congress to regulate states Rule: When Congress, acting appropriately to §5 of 14th amend., then the federalism limitations we discussed leave Congress may tell states what to do, AND Congress may subject states to suits in federal courts, AND This section is NOT limited by powers of federalism The real question becomes: When is Congress acting appropriately pursuant to §5? WHO can Congress regulate under the 14th amendment? Rule: Congress may ONLY regulate state actors, not private citizens using §5 (Morrison) This is different than the 13th amendment (slavery) which applies to private actions CanNOT regulate IBM or Google using the 14th amendment US v. Morrison Summary: A college girl was raped; school did very little; she sued under the VAWA which provided a civil remedy for the victims of gender-motivated violence Holding: §5 canNOT be used to regulate private behavior Reasoning: Text of the 14th amendment is clear that it applies ONLY to the states Court did NOT stop here b/c there is VERY strong policy arguments against the text (i.e.- where is the rape victim’s remedy?) This was passed during the civil war, and the consensus was that this was only a state action (judges on the court that first interpreted it were ones that helped pass it so they would know what it meant) (Historical support) HOW can Congress enact laws under §5? §5 reads: “Congress shall have power to enforce…” ONLY the power to enforce This allows them to give remedies and enforce rights and powers under 14th am Rule: Courts determine what rights due process and equal protections protect, congress protects those rights Congress canNOT create those rights! Katzenbach v. Morgan & Morgan—This is an OUTDATED approach Summary: Voting Rights At provided anyone from Puerto Rico who graduate 6th grade could NOT be denied voting rights b/c they were unable to speak English; NY sued stating this was unconstitutional Holding: Congress acted appropriately under §5—“Congress can used §5 to prohibit conduct that does NOT violated the 14th amendment, but could lead to a violation of the 14th amendment” This is enforcement—not a creation of a right Reasoning: Ct. gives huge amount of deference to congress “It was for congress to assess and weigh the various considerations” This was a rational basis test “Prophylactic measures” are appropriate use for Congress They are appropriate b/c §5 gives power to Congress to “enforce” by “appropriate measures” This is like the N&PC Just as the N&PC lets congress do things that are “appropriate”, so does §5—it lets Congress enforce the problems the courts have recognized and do things that are “appropriate” Dissent: Judicial branch defines, NOT congress If Congress is allowed to define liberties, it would contradict what the constitutional expressly disallows City of Boerne v. Flores—(6-3) This is the CURRENT approach Summary: City challenged the Religious Freedom Restoration Act which expressly overturned the recent SC decision and reinstated the “compelling government purpose” test; church in Texas was prevented from remodeling b/c it was a historical landmark Holding: Katzenbach was NOT overturned—§5 can still be used to regulate conduct explicitly stated by the ct and prophylactic measures are OK, but that is NOT the case her §5 power is to enforce, NOT define new rights §5 power is “remedial”—NOT “definitional” Congress canNOT decree “the substance of a right by changing it” Test: (Two parts) The behavior of the states and response by congress must be congruent and proportional Congruence, AND Congruence = the right kind of law Proportionality Proportionality = the right amount of the law Reasoning: “If congress could define its own powers” the constitution would “no longer be the superior law” and congress could tinker with it as they desire They originally considered using “necessary and proper” for the 14th amendment, but they reworded the amendment to limit the power to enforcement only Dissent: Not really focused on this case, but want the decision in Smith to be changed Pennsylvania v. Union Gas Co. Holding: Congress may override the 11th amendment and authorize suits against state governments pursuant to any of its constitutional power so long as the law in its text expressly authorizes such suits Congress must explicitly articulate they are abrogating state immunity Seminole Tribe of Florida v. Florida Summary: Congress passed the Indian Gaming Act that authorized a tribe to bring suit in federal court against a state to compel the state to negotiate in good faith with the Indians for a compact for gambling; Florida refused to enter into a negotiation with local Indians Holding: Overruled Union Gas AND gave test for valid abrogation of state immunity Reasons Overruling Union Gas is OK: It created confusion in the lower courts It didn’t have a majority rationale to reach the decision It was a departure from the previous understanding of how the constitution worked Wasn’t decided too long ago—reliance issue It was a “constitutional” case—court is more willing to overturn if it is a constitutional case Congress can easily fix a statute, but it is difficult to change the constitution—a misinterpretation of the Constitution is more dangerous and really, really hard to amend the constitution—the court itself can just fix the mistake it has made How Broadly SHOULD state sovereign immunity extend? Majority: It is broad and sweeping principle and monetary damages can only be brought it if is line with the proportionality and congruence test Minority: The text of the 11th amendment does Not support the holding and the judges are using state rights and sovereign immunity to get rid of distasteful federal social regulations It is lack of candor—conservative judicial activism Test/Process for Valid Sovereign Immunity (A) Unequivocal expressed intent by Congress to abrogate states immunity in statute, AND Typically need to put the word “states” in there to ensure it is explicit enough (B) Congress acted “pursuant to a valid exercise of power” Must use §5 AND be (1) Congruent and (2) Proportional CanNOT be a Article 1 power (e.g. CanNOT use the CC as the hook) Congruent= fits, and Proportional= fits (must “fit” and “fit”) Three Step Process to Determine if it is Congruent and Proportional (1) Identify the underlying constitutional right of the issue Determine what type of right it is and how much protection is given to it by the constitution Constitutional Rights/Levels of Deference: Rational Basis Rule: Is it reasonably/rationally related to a legitimate government interest Give GREAT deference to states—it is very rare that the state’s actions are unconstitutional Areas that are NOT given suspect classification Ex: Age, economic rights, religious freedom Intermediate Scrutiny Rule: Is it substantially related to an important government interest This means less deference to states—won’t uphold if action is merely reasonable Ex: Gender Strict Scrutiny Rule: Must be narrowly tailored to meet a compelling government interest Give very little deference to states—this means most behavior will be unconstitutional Ex: Race, free speech, appear in court, or other suspect classifications (2) Assess the history of unconstitutional conduct by the states and the adequacy of congressional findings Look to see if there is a “pattern and practice” of the state violating the constitutional right Look for the “§5 prophylactic trigger” Look for the pattern of discrimination so that the right needs to be protected (3) Compare constitutional doctrine with statutes remedial scope (it is over or under inclusive) Check that the “means and the ends” fit—this is the test Application of Valid Abrogation Test in Cases Florida Prepaid v. College Savings Bank & US Summary: Congress amended patent laws to expressly abrogate state immunity; P claimed that Florida violated his patent for financing future college expenses Holding: Met prong 1, but NOT prong 2 Constitutional Right: Patent Infringement No level of scrutiny is being applied here b/c it is an authorization case—not a rights case Tried to use Art. 1 authorization (patent clause and CC), but it did not work Adequate History: Insufficient—no real evidence that the state was acting unconstitutionally, not just acting badly Congress even said in their finding that states typically “obey patent laws”, but wanted it passed to protect future problems This is a crock b/c the Boerne standard was NOT in place when this Act was first passed by Congress Kimel v. Florida Board of Regents (Rational Basis Right) Summary: ADEA makes it unlawful for an employer, including a state, to “fail or refuse to hire or discharge an employee on the basis of their age” Holding: Met prong 1, but NOT prong 2 Prong 1: Explicitly stated that immunity was abrogated Prong 2: Not met because… Right: Age discrimination (rational basis) States have a rational basis to discriminate on age (it saves them money not to employ old people who easily get sick) Evidence: Insufficient evidence of a “pattern of discrimination” The evidence presented of discrimination was in the private sector—not by the states Court requires a “large” record of state discrimination Dissent: It does not make sense that Congress can pass a right, but not give a remedy to a violation of that right How can they have a hook for the statute but NOT the remedy? This is a political question—let the political process take care of it, NOT the cts How can we assume that just because one magically works for the state government they will stop their discriminatory tendencies—if one discriminates in the private sector those same people will do it in the government sector All 4 dissenters want Union Gas to be the standard (all you need is expressed intent to abrogate) Board of Trustees Univ. of Alabama v. Garret (Rational Basis Right) Summary: P was diagnosed with cancer and was head nurse; took leave of absence and when she came back they didn’t give her the head nursing job again Holding: Met prong 1, but NOT prong 2 Prong 2: Right: Not be discriminated b/c of a disability (rational basis) State had a rational basis to discriminate b/c of a disability to save money and time for the hospital Evidence: (More here than Kimmel, but it is still insufficient) There is A LOT of evidence showing discrimination, BUT although it was bad, very little was unconstitutional O’Conner comments that the lack of litigation on the issue in the past indicates that not much of the discrimination was unconstitutional Not enough for “widespread pattern of unconstitutional behavior” Example included: Deaf teacher and hearing test Dissent: (Breyer) If there is a pattern and practice in private conduct of discrimination, why would it be any different for the state? Nevada Dept. of Human Resources v. Hibbs (6-3) (NOTE: Rehnquist switched his vote to write the majority opinion and save doctrine the ct had established thus far) (Intermediate Scrutiny) Summary: P sought leave from his job w/the state to care for his ailing wife; they fired him for taking too much time off Holding: Met prong 1 AND met prong 2 Analysis: (Prong 2) Right: Gender (Intermediate level right) Evidence: Rule: Heightened scrutiny = easier to establish pattern of violation by state Don’t need to necessarily show unconstitutional behavior by the states, just need to show some level of discrimination “B/c the standard for demonstrating the constitutionality of a gender based classification is more difficult to meet than our rational basis test—it was easier for Congress to show a pattern of constitutional violations by the state” Tennessee v. Lane (Strict Scrutiny) Summary: D is a paraplegic who had to appear in a court house and had to crawl up flights of stairs to access the court room; other paraplegics couldn’t access court Holding: This case dealt with rational basis, intermediate scrutiny, and strict scrutiny rights, but the court parsed our the strict scrutiny right and held that Title 2 could be used to abrogate state sovereign immunity Analysis: Right: Appear in court (strict scrutiny) Evidence: B/c right is so large and important, the court is very generous in their reading of the record and will find that the means and ends fit—even if the record is lacking Rule: Appropriateness of the remedy depends on the gravity of the harm that is trying to be prevented Given the huge right on the other side of the scale, the prophylactic measure is appropriate Even one violation may be sufficient (under strict scrutiny) to warrant the prophylactic measure Means must be “tailored”—they were here b/c states had to only make “reasonable accommodations” for people to attend court Dissent: Scalia: “I yield to lessons of experience—the ‘congruence and proportionality’ standard, like all such flabby tests, is a standing invitation to judicial arbitrariness and policy driven decision making” Get rid of the standard rely merely on “enforcing” the 14th amendment principles like the amendment reads The broad sweep of legislation (covering private actions) shows that the act was NOT congruent or proportional US v. Georgia Summary: Paraplegic inmate in Georgia was denied outside access, couldn’t move wheelchair, and had to sit in own feces Holding: In a case where P himself argues a constitutional violation, §5 is immediately satisfied and you don’t need the proportionality or congruence test—it is IMMEDIATELY fulfilled b/c this is NOT a prophylactic measure, but truly enforcing a right that existed under the 14th amendment If you have an actual constitutional violation (not alleging that they violated a statutory right created by congress—e.g. ADEA), you don’t need §5 analysis Scalia: Still need to limit the test to “enforcement” Federalism Policy Discussion: Pro-Federalists: (Pro state rights) Framers wanted power to be diffused btwn the diff. states b/c they were fearful of federal tyranny Each state needs to be a laboratory to try to see if we can get things to work differently Each state has different weaknesses and they know best how to handle them Democracy functions through speaking to your local leader who really knows you/your problems Anti-Federalists: (Pro federal government) A of C didn’t work for a reason—you need a strong centralized government Communication has progressed enough where the federal government is close enough to the people to know their needs and wants Uniformity is better Civil war erupted over states rights Our federal government is structured in such a way that state’s voices can be heard When Stare Decisis May be Disregarded See Seminole Tribe Limits on State Power Dormant Commerce Clause Generally Police Power Congress has enumerated powers, but the states have the “general police power” Power of the states to protect the health, safety, welfare, and morality of its citizens Policy Support: The states had this power before they ratified the constitution and the power remained with them after the ratification Limitations on State Action: Express Limitations: Written in the constitution Textual limitations committed in the constitution Ex: States can’t coin money States may be expressly limited from doing things UNLESS congress gives its consent Ex: Waging war Express limitation housed in the individual liberties of the constitution Ex: Bill of rights and the guarantees to individuals are applied against the state Implied Limitations: Come from doctrines that have to do with state’s place in federal system Supremacy—federal law trumps state law (Article 6) State and federal laws do NOT have to be in direct conflict for federal law to trump No testing on the supremacy clause Preemption—federal law preempts state law Congress passed a statute Dormant Commerce Clause No statute has been passed Rule: State and local law may NOT place an “undue burden” on interstate commerce Congress has NOT passed a statute—if they had, then it would be preemption ONLY occurs in situations where Congress has NOT regulated a certain industry, but could if they wanted Involves a state law that touches on some aspect of interstate commerce Justification for the Doctrine: Arguments For: Text: Art. 1 §8 makes regulating commerce the specific business of Congress Structure: “The Constitution was framed upon the theory that the people of several states must sink or swim together, and that in the long run prosperity and salvation are in union and not in division”—Cardozo Historical: Framers intended to prevent state laws that interfered with interstate commerce Framers “meant” for this to happen—they didn’t want protectionalist legislation Economic: Economy is better off if state and local laws don’t impeded interstate commerce Political: States and citizens should NOT be harmed by laws in other states where they lack political representation Functionability: It is NOT reasonable for Congress to follow each state and see if any of their laws infringe on interstate commerce—they don’t have time Arguments Against: Text: Little textual support—nothing in the constitution, just inferences Structure: Separation of Power: Court in administering their test acts more like a legislature Judicial restraint—constitution gives congress power to regulate commerce and congress can invalidate laws that unduly burden interstate commerce—NOT for judiciary to decide Federalism: Courts should not invalidate state laws Policy: Let the politically accountable branch be the one that decides Developing a balancing test is clumsy and unworkable It is like “judging whether a particular line is longer than a particular rock is heavy” Evolution of the DCC: Past tests have never been overruled and there isn’t anything giving deference to a particular one, so they are all factors in the current balancing test Police Power v. Commerce Power (Gibbons- Steamboat) Rule: If states purpose was to do “police power stuff”, it was OK If purely commercial or commerce—NOT ok Local v. National Subject Matter (Cooley- Required to use local pilot to leave the bay) Rule: Laws under local subject matter were OK, Laws under national subject matter were NOT OK Local subject matter was something that you didn’t need uniformity on, but national subject matter were items where uniformity was needed Problem: Subject matter could be local, but its influence could be severe nationally Direct v. Indirect Burden No one knew what this meant—casebook didn’t even cover it—still no one knows what it is Current DCC Approach: (Explicit Balancing Test—see bullet point 9) Rule: Weigh/balance the benefits the states get against the national impact/burden of the legislation on interstate commerce Threshold Question: Does the law discriminate against out of staters? (MUST ASK FIRST) If discriminatory—Strong presumption (rock) against being constitutional State must dig itself out—burden on the state to prove benefits are greater than the burdens to interstate commerce If NOT discriminatory—Strong presumption (rock) for being constitutional Burden on the individual to prove that burdens outweigh the benefits 2 Ways To Be Discriminatory Facially discriminatory Draws obvious lines between in and out of staters Neutral on its face, BUT is discriminatory in its affect OR purpose No geographical discrimination Applies equally to in and out of staters Functionally equivalent to facially discriminatory Justices Opinions about the Approach: Scalia and Thomas HATE this test! “Like judging whether a Directory: resource -> collection -> EA88E61A-F827-4590-985B-EC1F412EAE4E collection -> A chapter of the kappa beta delta international honor society collection -> Example of a Letter of Application for Candidacy for Business and Separate Accounting* Program Accreditation collection -> Northeastern Council of Business Schools & Programs (October 14-15, 2016) collection -> Defense of Investment Professionals: Securities Litigation in the finra arbitration Setting By collection -> Airborne Topographic Lidar EA88E61A-F827-4590-985B-EC1F412EAE4E -> Jurisdiction over the Parties or Their Property (jop) collection -> Riparian Water Boundaries Titles and Rights EA88E61A-F827-4590-985B-EC1F412EAE4E -> Five Juicy questions where the heck does property go upon death of decedent? 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