Understanding Constitutional Law: Separation of Powers & Checks and Balances

1. Constitutional Law Jody Blanke Professor of Computer Information Systems and Law

2. The Constitution • Separation of Powers • Art. 1 – The Legislative Branch • Art. 2 – The Executive Branch • Art. 3 – The Judicial Branch • Checks and Balances

3. The Enumerated Powers Clause • Art. 1 Sec. 8 of the Constitution • Authorizes Congress • to collect taxes • to coin money • to establish a postal system • to raise and support Armies • to provide and maintain a Navy • to regulate interstate commerce • to protect the writings of authors and the discoveries of inventors

4. Preemption • If Congress is authorized to make law, and does so with the intent that it be the only law, that law will preempt any state law

5. Figure A Ex. FAA Ex. Patent Act Figure B Ex. Cipollone (1993) Ex. Silkwood (1984) Ex. Federal Anti-Spam Act Preemption

6. 1st and 14th Amendments • 1st Amendment • “Congress shall make no law …” • 14th Amendment • “No State shall make or enforce any law which shall …” • Most protections/restrictions apply to both federal and state governments

7. State Action • Public vs. private • The Fourteenth Amendment prohibits states from certain discriminatory behavior • Citadel case (1995) • school can have a males-only admissions policy as long as it receives no public funding • Augusta National Golf Club • Moose Lodge v. Irvis (1972) • Issuance of liquor license is not state action

8. Commerce Clause • The interpretation by the Supreme Court of the scope of the commerce clause has changed dramatically over the years • Early on, the interpretation was fairly broad • Gibbons v. Ogden (1824) • Congress, rather than New York, had the authority to regulate steamboats on the Hudson River

9. Commerce Clause • With the advent of the Industrial Revolution and Big Business, the interpretation narrowed considerably • Hammer v. Dagenhart (1918) • The Court refused to let Congress regulate with “social legislation,” e.g., child labor laws

10. Commerce Clause • New Deal legislation pushed by F.D.R. and passed by the Congress was struck down by the Supreme Court in several 5-4 decisions • Schechter Poultry (1935) • Congress lacked the power to regulate intrastate poultry processing activity • The “Court Packing” Incident • Why not have 13 Supreme Court justices?

11. Commerce Clause • Supreme Court finally permits Congress to regulate intrastate activity if it effects interstate commerce (in 5-4 decisions) • Jones of Laughlin Steel Corp. (1937) • Wickard v. Filburn (1942) • intrastate activity may have a cumulative effect on interstate commerce

12. Commerce Clause • Supreme Court upheld the constitutionality of the Civil Rights Act of 1964 on the basis of interstate activity • Heart of Atlanta Motel v. U.S. (1964) • motel catered to interstate travelers • Katzenbach v. McClung (1964) • restaurant served food that was part of interstate commerce

13. Commerce Clause • Supreme Court finally draws an outer boundary to interstate activity • U.S. v. Lopez (1995) • Gun-Free School Zone Act • U.S. v. Morrison (2000) • Violence Against Women Act

14. Dormant Commerce Clause • State laws cannot unduly burden interstate commerce • Georgia would not be able to require all restaurants in the state to serve only dairy products from Georgia dairy farms • Maine v. Taylor (1986) • But, Maine was permitted to ban the importation of live bait fish

15. Freedom of Speech • Political speech • great deal of protection, but not absolute • ex. dangerous speech • ex. fighting words • ex. defamation • ex. obscenity • Commercial Speech • can be regulated for aesthetics • Cincinnati v. Discovery Network (1993)

16. Freedom of Religion • Free Exercise Clause • great deal of protection, but not absolute • ex. human sacrifice • Establishment Clause • separation of church and state • school prayer • “In God We Trust” • The Pledge of Allegiance • The Ten Commandments

17. Equal Protection • Can a state ever pass a law that treats black people differently than white people? Rational Basis Test Strict Scrutiny Test Intermediate Scrutiny

18. Equal Protection • Rational Basis Test • applies if no suspect class or fundamental liberty interest is involved • i.e., a good reason • State v. Ri-Mel (1987) • Minnesota required all for-profit health clubs to post a bond – no such requirement for not-for-profit health clubs

19. Equal Protection • Strict Scrutiny Test • applies if a suspect class or fundamental liberty interest is involved, e.g., race or religion • there must be a “compelling state interest” • i.e., a very, very, very good reason • Affirmative action • Grutter v. Bollinger (2003) – U. Mich. Law School • Gratz v. Bollinger (2003) - undergraduate

20. Equal Protection • Intermediate Level Scrutiny • applies to protected class, i.e., not quite a suspect class, e.g., gender or age • classification must be “reasonably related” to legitimate government purpose • i.e., a very, very good reason • Craig v. Boren (1976) • Oklahoma law prohibited the sale of 3.2% beer to males under 21 and females under 18 • .18% of females and 2% of 18-20-year olds were arrested for DUI