con law hypos Forum

[usuaggie]

i found some con law hypos, but i'm having trouble thinking of authority for one in particular. maybe it is something we just didn't focus on in my class.



1.Assume Congress passed a law that says: The Supreme Court is prohibited from referring to or using or relying on international law or foreign law in the consideration of or decision with respect to cases before it. The Supreme Court subsequently decides a case (Roper v. Simmons(2005)) that makes the death penalty for minors unconstitutional on the basis that it is cruel and unusual punishment. The majority opinion refers to and relies upon international standards declaring the death penalty a violation of human rights and upon the nearly unanimous position of foreign states banning the death penalty for minors.In a later case Texas imposes the death penalty on a minor. Texas argues that the Roper case is illegal because it was decided in violation of the standards set by Congress for decision in the Supreme Court. The defendant, Darcy argues that the Congressional statute is unconstitutional. Decide the case explaining your reasoning fully.

http://www.scribd.com/doc/53471955/Con-Law-1-Hypos


ideas?

[Kilpatrick]

The first thing that comes to mind is U.S. v Klein. I think the law is unconstitutional because it prescribes how a court should decide an issue? Although Klein says issue of fact so I don't know if that's right. But I would still argue that it seems to pass "the limit which separates the legislative from the judicial power"

[Lawlskool]

The majority in Lawrence v. Texas cited a bunch of international cases in its opinion, so IDK what's up with not being allowed to consider international/foreign law...?

[Geist13]

We didn't cover much on the judicial power so I don't know about cases on point. Basically what follows is a wild guess. What jumps out immediately to me is that Article III vests the judicial power in "one supreme court [and the lower courts as established]" So I guess you could make a unitary executive type of argument (unitary judiciary) and say that the legislation passed is quasi-judicial and judicial discretion (judgment) is vested in the single court (and the lower courts as established). You could respond by arguing that quasi-judicial power has been historically delegated to the administrative state and so judicial discretion is not concentrated in the single judicial body. Also argue that this would violate separation of powers and cite some marbury v. madison language about the court being responsible for saying what the law is. Basically you would argue here that the court's function is all about judgment and by limiting their ability to use judgment Congress has intruded into the judicial power.

Also, I'd want to hit that little issue about the state refusing to comply with SCOTUS ruling on the constitutionality of an issue. Under Cooper v. Aaron, the state courts have to comply with SCOTUS constitutional rulings.

[DaydreamBeliever]

This is actually my professor.


Whatever help you guys could give me with these hypos. I would greatly appreciate.


Here is his answer for #2. The only one he answered.

Analysis of the problem
The call of the question is very specific and you should limit your answers to what is asked. This could involve the Full Faith and Credit clause as well, but that was not asked.
The standard of review now for the Congressional exercise of power under Section 5 of the 14th Amendment is from Boerne – the means chosen by Congress must be congruent and proportional to the ends sought to be achieved and the ends must be legitimate under the 14th Amendment as interpreted by the Supreme Court.
The Supreme Court has held that the 14th amendment reaches discrimination against homosexuals both under the Equal Protection Clause and Substantive Due Process. Thus Congressional action in the area is within its powers under the 14th Amendment as to subject matter.
In Boerne the court also required that when Congress acts to limit the states, federalism concerns are raised and Congress must make a showing that there is actually a problem to address. Under the facts as given, Congress held extensive hearings that showed that there was “widespread discrimination against gays and lesbians.” The discrimination takes many forms including violence based on the victim’s sexual orientation, prohibition of same-sex partners visitation in hospitals, and denial of insurance benefits.
The trouble with all of these showings is that they concern private discrimination and private acts, not state-sponsored actions and the 14th Amendment only reaches state-sponsored actions. If the evidence showed that state hospitals were denying the rights, or that state insurance was denying equal treatment, or that states did not enforce the crimes against gays, then the evidence would likely be sufficient. But you cannot assume facts not in the record (the problem). So the predicate for Congressional action of good evidence of state discrimination is probably not met and the statute is probably an unconstitutional exercise of power by Congress.
The strangeness of that conclusion under the facts in the problem is we have the State of Missarkana explicitly discriminating against same-sex couples. But that was not the evidence that was presented to Congress in support of passing the act under the 14th Amendment. Yes, you need to read things this closely and think this sharply about such distinctions.
Furthermore, there is nothing in the facts which indicates a connection between same sex marriages and violence against gays. It would seem that same-sex marriage would address the private discrimination in hospital visits and insurance benefits. But Congress can’t really reach private conduct under the 14th Amendment. The 14th Amendment reaches state conduct, not private conduct. One could argue that this sort of regulation is appropriate and is a legitimate means to accomplishing the end of liberty based on sexual orientation, but that is not sufficient. Congress can only stop states from violating the amendment.
There is a more subtle layer, however. If a state is not enforcing the liberty of its people and is supporting the denial of liberty, then Congress might be able to act, but it would still be acting against the state and would act based on the data showing state violations of liberty, not on the basis of private discriminatory actions per se. If Congress had acted based upon a number of states having laws like Missarkana, then it would probably be ok. But where as here Congress acted solely on evidence of private actions discriminating against homosexuals, Congress would need to make the argument and have the supporting data that the private acts show that states are not adequately protecting the 14th Amendment rights of its residents. This would likely be accepted by the Court as a way to show that Congress can indeed reach the states this way to remedy 14h Amendment violations. This argument must be made explicitly. I will not assume this is what you meant unless you say so. If you don’t state this explicitly, then I assume you do not know the state/private distinction.
A final consideration is that marriage has long been a matter of state law not federal concern. This cuts against federal action in this area.

[Teoeo]

i found some con law hypos, but i'm having trouble thinking of authority for one in particular. maybe it is something we just didn't focus on in my class.



1.Assume Congress passed a law that says: The Supreme Court is prohibited from referring to or using or relying on international law or foreign law in the consideration of or decision with respect to cases before it. The Supreme Court subsequently decides a case (Roper v. Simmons(2005)) that makes the death penalty for minors unconstitutional on the basis that it is cruel and unusual punishment. The majority opinion refers to and relies upon international standards declaring the death penalty a violation of human rights and upon the nearly unanimous position of foreign states banning the death penalty for minors.In a later case Texas imposes the death penalty on a minor. Texas argues that the Roper case is illegal because it was decided in violation of the standards set by Congress for decision in the Supreme Court. The defendant, Darcy argues that the Congressional statute is unconstitutional. Decide the case explaining your reasoning fully.

http://www.scribd.com/doc/53471955/Con-Law-1-Hypos


ideas?

Boerne v. Flores overruled Katzenbach v. Morgan because Congress was butting in on deciding what is or what isn't constitutional. You could make an argument that this is the same type of deal.