http://www.law.cornell.edu/supct/html/06-1195.ZS.html
DC v. Heller (Guns)
http://www.law.cornell.edu/supct/html/07-290.ZS.html
San Antonio (it is linked a few posts down).
Facts
U.S. Establishes a federal bank
Justifies this by the “necessary and proper” clause
Maryland wants to tax the federal bank in Maryland
the U.S. refused to pay the tax
Issues:
May the court imply federal powers?
If so: does the federal government have the power to charter a bank?
Does the state of Maryland have the power to tax the federal bank?
Rules:
A federal power may be implied where that power is a necessary means to the goal of one of the enumerated federal powers.
1) federal power is enumerated
2) States generally have plenary powers (i.e. full powers)
a) May federal power be implied? Yes.
i) Federal power may be implied if it is “necessary”
— necessary means indispensible?
— necessary means rational, appropriate.
*a rational means
//a power may be implied if it is necessary means to attain the end of one of hte enumerated powers
implied powers must be rationally related to express powers
Rationale:
Constitution is created by the people, not the states, the states are merely the agencies of the people
“What would this lead to” “What Could this lead to” “What IS this leading to?”
SYNERGIES
–ECONOMIES OF SCALE
— Network effects
–Entry Costs
–Interchangeable parts
–Assembly lines
–Specialization in production
–Specialization in trade
POWER POINTS
MODEL EXAMS
Joe sues the protestors for tortious interference with his business: he
requests damages for his toilets and an injunction banning the protestors.
Karl sues to enjoin Joe from ejecting the protestors. You are the judge.
How do you rule?
Tortious interference with an economic interest is an intentional tort. The tortfeasor must have intended to at least have committed their action; the ordinary and logical consequences of the tortfeasors actions will also be presumed to be the intention of the tortfeasor. That presumption may be rebutted by the tortfeasor, and the tortfeasor bears the burden of proof that the outcome of their actions was neither intended nor foreseeable: that they did not, and could not, have known the outcome would result from their intended act.
Here, the tortfeasor is an unincorporated association. Presuming the association has resources and its members can be identified it is a matter of joint and several responsibility for the actions of the group. Joe must prove the group a) owed a legal duty (to not destroy his property) b) breached that duty (by destroying his property) c) and that this breach of duty caused, as a matter of fact and law damages. The invitees to a business are licensees and must exercise ordinary care on the premises of the business. If Joe can show that members of the protest group indeed destroyed his property then he will likely have a remedy: it will be a question of factual proof. The facts here are not given with sufficient specificity to say for certain, but the elements of an action in tort for damage to property are given.
The action for injunction will be tougher to obtain because injunction is a remedy in equity, not law but will also likely be granted. Equitable remedies are only available if the legal remedy is inadequate: risk of a recurrent injury indicates the legal remedy (money damages) would be inadequate. Joe has not acted inequitably, and issuing the injunction would be fair and equitable because it conserves resources and averts future conflicts.
Karl brings a lawsuit to enjoin Joe: Karl’s lawsuit will likely fail. First, Joe has a property right which ordinarily will not be interfered with. Property rights may be relativized against other fundamental rights, but Karl does not have a fundamental right in this case. Meanwhile, Karl has other remedies other than the exceptional equitable remedy: if Karl wishes to provide toilets and food to the protestors he is free to do so – on his own property.
————
“The Safe Park Law” may be seen as interfering with the right to bear arms guaranteed by the Second Amendment. Historically, the second amendment right has been subject to reasonable police restrictions in the interest of public safety. If the police law is a rational means to a permissible end, which does not unduly invade a fundamental right it will stand. Presumably the purpose of the law is public safety, a permissible end; and indeed, prohibiting weapons is a reasonable means to the end, since weapons make violence deadlier. The right to bear arms is however a fundamental right. Laws which interfere with fundamental rights must do so in the least restrictive way and must be necessary. The police can well point out the presence of protests, homeless people, and children in parks as reasons why the gun ban is necessary. The only alternative to a gun ban would be to have metal detectors and fences around the entire park, which is not possible because parks are large and often forested. Consequently this law is a necessary means to a permissible end and the least restrictive invasion of a fundamental right and will likely be found to be constitutional.
“The No Park at Night Law” may be found to be unconstitutional however whoever wishes to challenge it must bear the burden of proving that the law is unconstitutional. Moreever, even if found unconstitutional the court can and likely will try to sever the unconstitutional parts of the law from the constitutional parts.
“Park” is not defined in the “The No Park at Night Law” however “Park” is defined in the “Safe Park Law” which will likely be used by the court in a structural argument: the same term found in two different laws may be interpreted to have the same meaning.
Article 1 which closes the park at night is likely constitutional as a reasonable means to a needed end (public safety): crime is likelier at night and few people use parks at night for recreation. No fundamental right to use a public park exists and so rational basis means end review without strict scrutiny applies.
Article 2 may be attacked as an unconstitutional delegation of legislative power (lawmaking) to the executive (the police) in violation of the principle of separation of powers. While it may seem reasonable to empower the police with rule-making authority the police in this case are given no guidelines from the legislator and in fact are delegated legislative power in violation of the principle of separation of powers. Consequently Article 2 will likely be found unconstitutional, even though laws are presumed to be constitutional and will be interpreted as such whenever possible.
Article 3 appears to be a rational means to the end of ensuring the public park will be properly used. While the park is open to the general public the violators of the park’s rules may be fairly excluded from the park for violating it’s rules because their own actions caused their being banned.
Article 4 may be found to be a violation of the right of freedom of association. Public protests historically have had many hard battles between the police who wish to prevent riots and protect the public. The police do not seek to prevent protests however protests present risks. Historically, the U.S. Supreme Court has repeatedly ruled that reasonable restrictions on the right to assembly may be allowed in the interest of public safety. The rule clearly infringes a fundamental right – the right to peaceably assemble – and so the measure must be necessary and the least restrictive possible. The measure is not too restrictive since seeking a permit is not an outright ban. The measure is necessary to avoid riots and looting which are the risk of any protest march. The end, public safety and well being is permissible. Consequently Art. 4 will likely be found to be constitutional as a rational and necessary means to a permissible end which, although burdening a fundamental right, does so in the least restrictive way possible.