CONSTITUTIONAL LAWProfessor Woods

Fall, 2000

POWERS OF THE BRANCHES OF GOVERNMENT AND HOW THEY INTERACT

I BACKGROUNDA. Our Constitution is influenced by the works of John Locke, who asserted a theory of government

followed by the Revolutionary leaders called the social contract. This theory held that autonomous people get together to form a government to protect themselves and their liberties against other individuals. Thus, individuals give up some sovereignty for the protection, but do not give up certain inalienable rights.1. A written constitution is a way to limit the powers of the government and to protect

individual liberties.B. The enumerated powers listed in the constitution establish the government’s only powers.C. The Constitution differs from statutes or codes

1. It is a broad, general structure.2. Cannot be repealed, and there is a very difficult amendment process.

D. Many themes flow through constitutional law:1. We have a limited government, evidenced through:

a. a written documentb. enumerating powers afforded to the government.

2. Antimajoritarianism. The framers feared the majority. These wealthy planters feared the masses taking over government. Examples:a. Two senators are elected from each state; thus, it is the state that is represented,

not the people.b. Electoral college can override the popular vote in an election.c. The judiciary is appointed, not elected.d. The Bill of Rights is the most precise protection of individual rights against the

majority.3. Theories of Interpretation. It is difficult to interpret a document that was written 200

years ago and intended for an agrarian society which no longer exists. There are two approaches:a. original meaning of the language.b. how it should be applied today.

4. Checks and Balances. For the greatest liberty, this structure allocating powers ensured that no one branch could become a tyrant. The three branches of government must check each other.a. Article I: Congress, Article II: Executive, Article III: Judiciary.

1) Placement within the constitution is significant as to how itshould be interpreted.

b. In order for the government to act, two branches of government must be involved.1) Ex: To pass a law, President must approve bill of Congress2) Ex: To enforce laws, the Executive and Judicial branch are involved.

c. Checks and Balances leads to conflicts between the branches and between the state and local government.

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E. History of the Constitution1. First government operated under the Articles of Confederation. Under the Articles, we

had thirteen independent colonies, not a nation.2. We needed a way to bring the states together and form a strong national government.

Constitutional convention was formed.a. The goal of the Convention was to amend the Articles and give the national

government power over commerce.b. Decided they needed to start over.

3. Because the Convention was held in secret, it is difficult to determine intent in many cases.

II CONSTITUTIONAL INTERPRETATION: JUDICIAL REVIEWA. Complicated for three reasons:

1. Absence of language – many areas of government action not addressed. Must look to the rest of the language to determine why it is not there.

2. Vagueness of language – resulted from the many compromises at the Convention.a. Ex: what does “commerce” or “cruel and unusual punishment” mean?

3. Political Policies – always interpret with the social and political ramifications in mind.B. General concepts of interpretation:

1. Originalism – what is critical is the intent of the framers. a. Must go back to the period in which it was drafted to determine the meaning then. b. If it is not expressly addressed, then it is up to the states or Congress to deal with. c. Only way to change is through the amendment process.

2. Non-originalism – should interpret the Constitution in light of contemporary circumstances.a. Cannot limit the Constitution to what existed 200 years agob. Leaving unaddressed rights to the legislature is wrong because fundamental rights

should not be left to the whim of the majority.c. Can evolve through interpretation.

3. Where should final interpretation occur? Theories:a. No authoritative interpretation. Followed by Jefferson and Jackson. Each branch

has authority and any conflicts will be resolved through the political process.1) Oppose judicial review. Feel that checks and balances are enough.

b. Each branch has authority in its own area. c. Judiciary is authoritative. This idea prevails today.

C. Article III1. Establishes Supreme Court and gives Congress the power to establish lower courts.

a. Gives appellate jurisdiction to the Supreme Court in all cases in law and equity:1) arising under the Constitution, 2) laws of the U.S., 3) treaties, 4) cases under maritime jurisdiction 5) where U.S. is a party,6) citizens of different states,7) between foreign states.

b. Supreme Court has original jurisdiction over the following cases:

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1) affecting ambassadors and other public ministers,2) where a state is a party.

2. States that judges will serve life terms during good behavior and that their pay cannot be decreased. a. framers were probably trying to keep judges in office and avoid political pressure and

fear of losing position.b. Protects ability to make impartial decisions.

3. Defines treason, the only crime mentioned in the Constitution. This is so officials cannot use the crime to prosecute certain groups.

4. Establishes trial by jury5. Does not, however, expressly grant to the courts the power to declare acts of Congress

unconstitutional. D. Marbury v. Madison (1801)

Facts: President Adams was a lame duck when a Democrat Congress was being replaced by a Republican Congress. Two acts of Congress created new judgeships. Adams had the Secretary of State, Marshall, sign the new judges’ commissions, but the commissions were not delivered before Jefferson took office. One judge, Marbury, sued on writ of mandamus to force president to deliver commission. Marshall, wrongly, did not recuse himself from this case, despite his involvement. Issue: Did Marbury deserve the commission?Holding: Yes, he had a right to it.Issue: Did the Supreme court have the jurisdiction to enforce the writ of mandamus?Holding: No.Rationale: The Judiciary Act of 1789 established that the Supreme Court had the authority to hear these writs. However, the Constitution specifically lists where the Supreme Court has original jurisdiction, and Marshall believed that the Act went against the Constitution. Thus, the Act gave the Judiciary power beyond what the constitution did. Marshall declared the rule that the Judiciary has the power to declare an act of Congress unconstitutional. He reasoned as follows:1. If the founders intended to give the Legislative branch the discretion to add power to the

Judicial branch, they would have stated in the Constitution. Especially since there is language that specifically addresses the issue. Why would founders include this if the Congress could change it?

2. Further, the Constitution is the supreme law, according to the Supremacy Clause in Art.VI, and we must respect it.

3. It is a permanent written document, it cannot be the supreme law if Congress can change it.

4. It is the duty of the Judiciary because of the Judicial Oath taken. 5. Judiciary must look at laws “arising under the Constitution.”6. Marshall did this because he feared impeachment, and because if the President had

refused to deliver Marbury’s judgeship, it would have undermined the power of the judiciary and ended in a constitutional crisis with each branch fighting for power.

7. A more narrow reading of this case is that the courts have this power when it comes to their own authority. This case dealt with Art. III and the powers of the court.

Rule: Courts are the final arbiters of the Constitution.

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D. Learned Hand: Alternative to judicial review is that the Congress would have the power to declare its own acts unconstitutional. 1. Judicial review is not a logical deduction from the structure of the Constitution, but only a

practical condition upon its successful operation. 2. Need to have a final arbiter becomes clear when you consider when the President must enact

statutes, etc.E. Cooper v. Aaron (1958) – recent case affirming Marbury. State officials have to adhere to

rulings of the USSC. Spurned by Brown v. Bd. of Education, where AR was forced to integrate schools. Federal police power to enforce a decision of the USSC.

F. Standard of Judicial Review 1. Conflict between judicial review and majoritarianism. You can have a democracy ruled

by the people without domination of the majority over the rights of everyone else.2. Protections against the majority are needed when it comes to dealing with the natural

rights recognized by Locke. 3. Carolene Products case – illustrates have courts look at legislative acts.

a. There is a fundamental tension in judicial review because the courts are declaring acts of Congress unconstitutional.

b. Thus how court reviews is very important.c. Court here said that the standard is a presumption of constitutionality. Rational

basis test – if there is any rational basis for this law, it will be upheld. Courts will not scrutinize to find some defect.

d. In a footnote which is more significant than the case itself, the court said that there are some instances where it must look more closely:

1) if some people are denied some kind of right2) if a discrete and insular minority is affected.

G. Martin v. Hunter’s Lessee (1816)Facts: Martin claimed title to land in VA on inheritance from a British citizen. US and England had entered treaties protecting the rights of British citizens who owned land. Hunter claimed that VA had taken the land before enactment of the treaties, so Martin had no claim to the property. VA court of appeals ruled in favor of Hunter and for the state’s authority to take the land. USSC reversed.Issue: Did the USSC have the authority to review the VA court’s decision?Holding: yes, Court expands the power of judicial review to the states.Rationale: Idea of uniformity, don’t want different decisions on constitutional issues. Need one interpretation. Also, Congress has the power under Art.III to create lower federal courts. If they created none, USSC would have no appellate jurisdiction spoken of in this article. Thus, the framers wanted them to have appellate jurisdiction over this. Further, state interests could prejudice decisions. Rule: USSC has the power to review state court decisions, although it is not specifically provided for in Art.III.

H. Political accountability of judges1. When Judge Baer changed his decision after considerable political pressure, brings to

mind the question of independent judiciary. Shows judge’s influence by publicity and criticism.

2. Judicial review played into politics in Marbury.3. Framers did not want USSC to be a political tool

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a. Lifetime appointmentsb. Can’t reduce salary (though Congress can refuse to raise salary!)

4. Federalists believed that the judiciary had neither the purse nor the sword to become corrupt.

5. Reasons for political accountability:a. think of Dred Scott decision upholding slavery. May want political pressure in

these situations.b. Appointed by Executive to further their political agenda.c. Only way the popular assent gets into judiciary.

6. Reasons against:a. limits on judiciary have worked, need no further restraints.b. Rights and precedentc. We expect fairness and impartiality.d. Legislature and executive may only protect the rights of the majority.e. Reason for separation of powers/checks and balances.

I. Political Question Doctrine1. Variance of concept of justiciability.2. A self-imposed limit on the power of the courts

a. Judiciary has decided that it will not override an act of another organ of government.

b. A voluntary doctrine, though grounded in the Constitution and the idea of separation of powers.

c. No textual basis for the doctrine.3. Marbury established the power of the court to hear cases, controversies, and rulings that

may have the effect of voiding an act of a representative branch of government.a. Origin of political question doctrine also in dicta to this case where the court

said that there may be political cases that should not be heard by the court. A matter committed to Congress or President.

4. The courts are not a political institution because they are not elected.5. Pros of political question doctrine:?????

a. helps define judicial roleb. helps conserve judicial resources – don’t hear as many casesc. improves decision making – if decision will not help the status of the parties

(live controversy) there is no point in hearing it.d. Promotes fairness – litigants must have standing – no third party complaints.

6. Cons:?????a. By restraining itself, some people will be left without redress.

7. Nixon v. U.S. (1993)Facts: Judge Walter Nixon, a MS federal judge, was convicted by a jury for making false statements to a grand jury and was sentenced to prison. Nixon refused to resign and collected his salary while he was in prison. House charged Nixon with three articles of impeachment for high crimes and misdemeanors. Presented the articles to the Senate, who gave them to a committee to review, pursuant to Senate Rule 11. Committee presented the full Senate with its findings and the Senate impeached Nixon by the required 2/3 majority.

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Issue: Did Senate Rule 11 violate the Constitution by precluding the entire Senate from taking part in the hearings?Holding: The Court did not reach the merits because it does not have the power to hear this case.Reasoning: a) "try": is a broad word - Does not give a judicially manageable standard of review. Also, three limitations are already imposed by Art.I which are the oath, the 2/3 vote, and that the Chief Justice must preside in impeachment cases against the President. These limitations are precise, and the framers did not want to add more, such as the full senate requirement. b) "sole" power of the Senate: Senate could not function independently if the courts are involved. Also, sole does not mean entire because of the previous limitation discussion (we have a list of specific limitations already). c) Constitution provides for judicial review of some things, but not this (bill of attainder, ex post facto) d) Two separate forums are provided – trial by senate and criminal. Judiciary is already involved in one. Would create bias to be involved in both. e) Courts also don’t have the resources of the legislature to find facts through hearings. f) This is the only check on the judiciary. g) Protections already exist in bringing the proceedings in House, yet trying in the Senate. Also protection in the 2/3 majority vote.Rule: Judicial impeachment is a non-justiciable political question.White's Concur: This case could be tried on the merits and Rule 11 would be constitutional.Souter's Concur: Sometimes judicial review may be necessary, as when Senate abuses its discretion. Calling it political question would preclude this. Cited to Baker v. Carr with its six criteria to consider whether something is a political question. (page 119 in treatise). Sole authority to impeach could be interpreted as opposed to the House.

7. Other areas where political question doctrine has been applied:a. Republican form of government clause – Congress has sole authority to determine

what this is. Pacific States v. OR.b. Foreign Relations – president has sole authority

8. Balanced Budget Amendment Problema. Issue: whether Court has the power to make Congress call a constitutional

convention. (the required number of states has passed resolutions calling for the convention to propose this amendment)

b. Art.V was written to ensure that the federal government saw to the needs of the people.

1) Amendment process needs 2/3 of both houses or 2/3 of the state legislatures.

2) In this case, Congress shall call a constitutional convention.c. Art.V places two checks on amendment process:

1) 3/4 of the states must ratify 2) Congress shall have control over the ratification method.

d. Reasons why it may be nonjusticiable:1) Senate has control over the process, so they may be able to call the

convention with no set time limit.2) Judicial economy3) Coleman case said that court has no say in the amendment issue

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4) Must ask if there is a textually demonstrable commitment to another department.

e. Reasons why it may be justiciable:1) Just because Congress shall call the convention does not mean that the

courts have no say so on the issue2) Art.V establishes a clear duty. By not performing calling the

convention, Congress breaches the duty. Judiciary should step in when another branch is overstepping its bounds or not performing its duties. Must be some check on Congress.

3) 28 USC § 1361 – courts have the power to compel an officer or employee of the US to perform a duty.

III. POWERS OF CONGRESSA. Sources and Nature of Legislative Power - Main source of legislative power is Art.I § 8 – the

enumerated powers of Congress.1. Other sources of power:

a. Art.I § 4 – procedure for electionsb. Art.III § 1 – power to create and define lower federal courts

c. Art.IV § 3 – power to regulate federal landsd. Reconstruction amendments, 13-15 give the power to make laws.

2. McCullough v. Maryland (1819) – like Marbury, defines power of federal government.Facts: MD taxed the national bank operating in its borders. Issue: Did Congress have the power to create a national bank? Did a state have the power to tax the national bank?Holding: Yes, under the necessary and proper clause. No, under supremacy clause.Reasoning: Nature of constitution is a broad outline. Although the enumerated powers do not specifically give the power to create the bank, the necessary and proper clause (Art. I § 18) gives Congress the power to pass laws necessary for carrying out the powers it does have. Necessary and proper clause is listed among the powers of Congress, not the limits. No reason why a bank cannot be formed to carry into execution the powers of the government. Further, Marshall pointed to the 1) Historical reasons behind the bank. 2) Just because the states ratified the Constitution, does not mean that they retain ultimate sovereignty, the people, not the states, ratified the Constitution. 3) Scope of Congressional power is not limited to enumerated powers. 4) Necessary means useful or desirable, not indispensable.

3. The articles of confederation stated that the powers "expressly" not provided to Congress are for the states. The Constitution does not use the word expressly, and its absence shows that the powers do not have to be expressly granted to Congress in the enumerated powers.

2. Necessary and proper clause is a way to execute the enumerated powers. Enumerated powers are powers in and of themselves. Necessary and proper powers are a means to an end. Must be a reasonable relationship between the means and the end. Ex: Congress has the power to lay and collect taxes, so the N&P powers give a way to do this, i.e., through a bank.

B. The National Commerce Power

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1. Commerce Clause – Art. I § 8 – "The Legislature of the United States shall have the power to regulate commerce with foreign nations, and among the several states."

2. Historya. National government needed more powers over commerce than it had under the

articles.b. Major theme at conventionc. Three periods of development:

1) Pre – 1937 – basic principles guiding Court were dual sovereignty and laissez faire economics.a. Restrictive interpretation of the commerce clause.b. Did not want to take power from the states.

2) Post – 1937 – New Deal period. Roosevelt threatened court packing scheme if the Court kept declaring his New Deal Acts unconstitutional. a. Economic crisesb. One justice switched sides and Court began a broad interpretation

of Congress' power.3) Post – 1995 – Going back to the restrictive view of what is commerce

a. Lopez and Morrison decisions3. Gibbons v. Ogden (1824)

Facts: NY statute granted D exclusive right to navigate steamboats in state waters. P navigated in this area two steamboats, pursuant to a license by an act of Congress.Issue: Is navigation within the confines of one state considered commerce within the reach of Congress under the commerce clause?Holding: YesReasoning: First court considered what commerce means. It is not restricted to buying and selling. Commerce is intercourse, and this comprehends navigation. Second, court considered what the meaning of "among the states" was. The word among means intermingled with. Must contain more than one state. However, Congress can regulate commerce that has an effect on interstate activities. Navigable waterways are channels of interstate commerce, and Congress can make rules that govern these channels. If Congress has this power under the commerce clause, then the states do not have this power under the 10th amendment.

4. Daniel Ball – A ship navigating exclusively in MI, transporting goods that were moving in interstate commerce. This was interstate commerce under the Congressional power because the ship was an instrumentality of commerce.

5. Paul v. VA – Insurance contracts are not articles of commerce. It is transacted entirely in one state. Concentrated on the transaction itself and separate that from commerce.

6. Lottery Case (1903) Holding: Court upheld the Federal Lottery Act which prohibited interstate carriage of lottery tickets.Reasoning: Lottery tickets are subjects of commerce because of the evils associated with the tickets. If some states don't have lotteries, they should not be subjected to having the evils in their borders. Leaves the question of why the state cannot protect itself. a. How is this distinguishable from insurance contracts? The lottery ticket itself is

evil. Similar to drugs or impure food.

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b. Prohibition is a form of regulation.c. Police power belongs to the states, but Congress can legislate if there is a

jurisdictional basis over these concerns. This is the foundation case for this type of regulation.

7. Hamer v. Dagenhart (1913) Holding: Congress exceeded its power under the commerce clause when it attempted to prohibit the transportation of products of child labor.Reasoning: Here, the statute did not attempt to regulate commerce, but attempted to end child labor. Distinguished from Lottery case because the goods made by child labor are not evil in and of themselves. The child labor is already completed when the goods are shipped. This is really aimed at preventing unfair competition. a. Lottery - Congress regulating the tickets is a direct means to accomplishing the

end of protecting non-lottery states. Here, the transportation of goods is not connected to the evil.

b. Defined the end to be regulated as one of unfair competition, not of child labor, and preventing unfair competition is a matter for the states.

c. Kidd v. Pearson - Distinguished manufacture from commerce. Manufacturing takes place only within a state and is only subject to state regulation.

8. The Shreveport Case (1914) Facts: ICC fixed interstate RR rates westward from Shreveport to TX markets. Holding: Congress does have the power under the commerce clause to regulate rates charged by states of trains involved in interstate commerce.Reasoning: Congress has right to control operations in matters having a substantial relationship to interstate commerce. States can't use intrastate commerce as a way to control interstate commerce.

9. So, from these cases, the three established areas of commerce clause jurisdiction are:a. Channelsb. Instrumentalitiesc. Local activities having a substantial effect on interstate commerce.

10. NRLB v. Jones and Laughlin (1937) (New Deal legislation)Facts: NLRA was to protect workers. P found that D violated the act by discharging employees at a steel plant for union activity.Issue: Is the NLRA a wrongful attempt to regulate industry, thus, invading the reserved powers of the states?Holding: NoReasoning: Hamer was just handed down, the Court decided not to overrule it, so distinguished this case on its facts. Court focuses on the steel industry as a whole and on the Depression and the need for action. Steel industry was significant to our nation. Strike in steel industry would have a widespread effect on interstate commerce. In fact, this particular company was spread out all over the country. a. Aggregate doctrine – steel industry as a whole. Distinguish from Kidd v. Pearson

because that was only one plant.b. Schechter Poultry (1935) – Court held that Congress could not regulate what took

place in NY livestock industry because it took place within the confines of the state.

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c. Carter Coal (1936) – Court uses proximate cause analysis – this narrows what the commerce clause covers. Wage and hour requirements are too far removed from interstate commerce.

d. Although the act at issue in NLRB did the same thing as the acts at issue in Schecter and Carter, the court distinguished it factually.

e. This case was the basis for the change in the commerce clause interpretation in 1937.

f. This case did not reject the "direct effects" test, but found that there was a direct effect on interstate commerce.

g. NLRB v. Friedman – Harry Marks Clothing – same act applied to a small company through the aggregation doctrine.

11. US v. Darby (1941)Facts: Fair Labor Standards Act's purpose was to exclude from interstate commerce goods produced for the commerce under sub-standard labor conditions.Issue: Does Congress have the power to prohibit the interstate shipment of goods produced under these conditions?Holding: Though the manufacture of these goods is not interstate commerce, their shipment is; thus, Congress has the power to regulate, as long as the power does not infringe upon some other Constitutional prohibition.Reasoning: Overruled Dagenhart. Court must decide whether the employment at hand is so related to commerce as to be within the reach of Congress. Here, the court could not question Congress' motive because there was a jurisdictional element in the statute (specifically for goods in commerce). Does not matter if Congress' motive is to regulate unfair competition. Rule: A test which is still in effect today: Power under the commerce clause extends to intrastate activities that have a substantial effect on interstate commerce. A broader interpretation.

11. Wickard v. Filburn (1942) Facts: Agricultural Adjustment Act imposed a penalty on D for bushels of wheat produced on his farm in excess of the national allotment. The wheat had been grown specifically for D's family's consumption, and was not sold.Issue: Is the Act constitutional when it extended federal regulation to production not intended for commerce?Holding: YesReasoning: There is no catch phrase or formula to determine the power of Congress. Must consider the actual effect on interstate commerce (don't look at direct v. indirect effects). D's consumption of wheat may be trivial, but when considered in the aggregate, with all others doing this, it is a substantial problem. This will affect supply and demand.Rule: Even if an activity is local, and not considered commerce, it is within the power of Congress if it exerts a substantial economic effect on interstate commerce.

12. US v. S.E. Underwriters (1944) – Upheld federal regulation of insurance contracts, even though previous cases said they were not articles of commerce. Court said that Congress may still examine the whole transaction to determine whether interstate commerce is involved. What is in the actual contract is a state issue, but the entire industry can be regulated under the commerce power.

13. Heart of Altanta Motel v. U.S. (1964)

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Facts: P owns and operates motel, and solicits patrons from outside of the state of GA. Seventy-five percent of its guests are from out of state. Refused to rent rooms to blacks, in violation of the Civil Rights Act of 1964. Issue: Does this local activity effect interstate commerce? Holding: YesReasoning: Purpose of the act is to provide equal access to public establishments. Discrimination by race burdens interstate commerce because it makes travel for blacks less enjoyable, and discourages them from traveling (this is the jurisdictional link between discrimination and interstate commerce). Does not matter that this is local because the power of Congress to promote interstate commerce also includes the power to regulate local incidents thereof. Similar analysis as in Jones and Laughlin where the court looked at the industry as a whole.

14. Katzenbach v. McClung (1964)Issue: Whether Title VII, as applied to a restaurant receiving about $70,000 worth of food which has moved in commerce (out of $150,000 worth of total food) was a valid exercise of the power of Congress.Holding: YesReasoning: Court again applied the rational basis test – it is up to Congress to make the jurisdictional link between discrimination and interstate commerce. Fact that this effect on interstate commerce is inconsequential because Congress determined that it did have a direct effect. Blacks are shown to spend less at restaurants where discrimination is practiced. Closely connected to interstate commerce because the less food the restaurant sells, the less it buys in interstate commerce. Also discourages new businesses from forming. Also, consider the aggregation doctrine.a. All the court had to find was reasonable relationship between the means used, and

the goal of protecting interstate commerce.b. Judicial review must be exercised with great deference.

15. Hodel v. VA Surface and Mining (1981) – Congress is protecting an interest: the environment. Similar to Lottery case. Issue was whether Congress had a rational basis for concluding that surface coal mining had a substantial impact on interstate commerce. Congress had undergone six years of hearings on the subject. If this was not regulated nationally, some states would have an advantage in unfair competition. Difficult for the states to regulate.

16. U.S. v. Lopez (1995) Facts: D carried a gun to a TX school in violation of a federal Gun Free Schools Act. Issue: Was the act constitutional under the commerce power?Holding: No, it neither regulates a commercial act, or contains a requirement that the possession of the gun be connected to intestate commerce (jurisdictional nexis).Reasoning: Need to find whether this has a substantial relationship to interstate commerce, because it is not a channel or an instrumentality. Not substantially related because:

a. This is a criminal statute having nothing to do with commerce. Congress could have added the jurisdictional element by stating that the guns had to be from other states, etc 1) Policy considerations are that, if they could regulate this, Congress could

regulate any crime at all.

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2) Protects local control.c. It is not an essential part of a larger regulation that can be undercut; d. Congress made no findings of why and how it affects intestate commerce with

which the courts could use to find why the law was passed 1) However, this was an emergency situation and these things take years to

do hearings. 2) Public concern over this problem was high.

e. Court also rejected the aggregation doctrine. Even if guns in school are found in many places, it still does not have a substantial effect because it is not economic activity.

Kennedy Concur: traditional state concern. Powers of states are sufficient to control.Thomas Concur: Must look to what commerce was when the Constitution was written.Breyer Dissent: Must give Congress leeway in finding a rational basis. Numerous reports generated showed that this did have an effect on interstate commerce. It is substantial considering the nature of the dangers.Souter Dissent: Guns are articles of commerce and affect commercial activity.

f. This opinion changed over sixty years of broad interpretation of the commerce clause.

17. U.S. v. Morrison (2000)Facts: Bronzkala sued Morrison, a fellow college student, for rape under the federal Violence Against Women Act – a federal civil remedy. Congress, this time, made numerous findings that states had been ineffective in dealing with the problem, and that the link to interstate commerce had a rational basis.Holding: The Act was declared unconstitutional.Reasoning: Although court made a number of findings, the court still has discretion in finding a rational basis. Court ignores the findings of Congress and holds that violent crime is within the police powers of the states. This is a non-economic statute and, thus, has only an attenuated effect on interstate commerce.Rule: Congress must first show a commercial or economic activity, and then show a substantial relationship to interstate commerce.Souter Dissent: considering the amount of data Congress collected, it is obvious that there is a rational basis for the finding. The commercial v. noncommercial distinction leads to tragic results.Breyer Dissent: Consider Heart of Atlanta where a non-economic act was within the power of Congress to regulate. Virtually all acts affect interstate commerce, and it is Congress who must make the determination, not the judiciary.a. Wickard is distinguishable from Morrison and Lopez: Wickard was clearly

economic and they used the aggregation doctrine. Aggregation doctrine is not to be applied in non-economic situations.18. Child Support Protection Act: is it constitutional?

a. Pros:1) Use of interstate travel to avoid making payment of child support.2) Parents seeking the money use the channels of interstate commerce.3) The support obligation is a thing moving in interstate commerce.4) When government tries to enforce the obligation, it uses the channels.5) States must take care of the child if the person does not pay

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b. Cons:1) If a parent is not even trying to pay, he is not using the channels2) Contacting the non custodial parent through service of process is not

using interstate commercec. The person is an instrumentality, the obligation is also an instrumentality that

moves through the mail.1) However, Congress would be able to regulate any act of persons.2) Also, the support obligation is not a tangible thing.

d. Congress has held hearings that have shown that the non-payment of child support substantially affects interstate commerce.

e. Also, using the aggregation doctrine, it is economic and there are billions of dollars of unpaid obligations. However, it is a criminal statute.

f. There is a jurisdictional nexis because the child is required to live in another state.g. States have tried to enforce these obligations, but have been unsuccessful. Now

parents don't have to file suits in other states.C. The National Taxing and Spending Power

QUESTIONS: DO WE NEED TO KNOW THE OLD DISTINCTION OF DIRECT/INDIRECT1. Regulation Through Taxing

a. Article I §8 – Congress shall have the power to lay and collect taxes.b. Taxes can have a penalizing feature when it is incidental to the primary motive of

collecting revenue. It cannot go as far as in the next case.c. Bailey v. Drexel Furniture (1922)

Facts: Nine months after Dagenhart, Congress passed another child labor statute under the taxing power. Child Labor Tax imposed a 10% excise tax on the yearly profits of employers of child labor who knowingly violated age and hours standards.Holding: The law was not a valid tax. It is regulation, rather than revenue-generating. Rationale: This is a prohibition, not a tax. 1) The amount of the tax is not proportionate to the extent of the conduct. 2) Scienter is an element here, and is not associated with taxes, but with penalties. 3) These factories would have to be inspected by the department of labor and the department of treasury. 4) The tax is also too high - It looks like a criminal fine. Although there should be deference to Congress, the presumption of validity cannot prevail because this is reserved to the states through the tenth amendment. Congress would be able to usurp any state power by calling it a tax.

1) Usually taxation is of a benefit. Child labor is an economic advantage, so it does not make sense to have the scienter requirement (you have the benefit, whether or not you know the worker is underage).

2) Therefore, this was a regulation, rather than a revenue-generating tax.3) Unconstitutional because Congress was trying to regulate the powers of

the state.4) In Veazie Bank v. Fenno, in 1869, the court upheld the constitutionality

of a federal tax on state bank notes. The court concluded that the excessiveness of this tax was the only problem. In Bailey, it is a combination of the factors that makes the tax unconstitutional.

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5) US v. Doremus – (1919) – “if the legislation enacted has some reasonable relation to the exercise of the taxing authority conferred by the Constitution, it cannot be invalidated because of the supposed regulatory motives which induced it.”

2. Regulation Through Spendinga. Debate between Madison and Hamilton whether taxing and spending power was

only to carry out the enumerated powers of article I (Madison) or if Congress had broad authority to tax and spend for the general welfare (Hamilton). Court adopted Hamilton’s expansive view in Butler. Taxing and Spending is, therefore, a separate and distinct power. Congress has the broad power to tax and spend for the general welfare so long as it does not violate other constitutional provisions.

b. US v. Butler (1936)Facts: Agricultural Adjustment Act of 1933 raised farm prices by reducing production. Farmers were paid not to grow food. Congress got the money to pay the farmers through a tax on the food processors.Holding: This was beyond the spending power of Congress.Rationale: The Act invades the rights of the states – regulation of production. Dual sovereignty of the 10th amendment counters Congress’s authority. This was a regulation because, even though the farmers had a choice of whether to grow less food, the results of not choosing would be financial ruin. Goes to their competitive edge, like coersion.Brandeis, Cardozo, Stone dissent: This is within the general welfare because of the Depression and the depressed state of agriculture. Spending power is an addition to the legislative power, not subordinate to it.

1) One month later, Congress appropriated funds for farmers to reduce acreage. It was not a tax, so no one had standing to contest it.

2) The broad view of Taxing and Spending power is what this case is mainly remembered for.

c. Steward Machine Co. v. Davis *(1937)*Facts: Social Security Act had a provision under which the proceeds of a federal payroll tax on employers went into a general treasury, not a specific fund. Taxpayers got a 90% credit on federal tax payment to a state unemployment fund if state law met federal requirements. (what you’d normally be paying to the federal government, you would pay to the state government.Holding: Did not violate the 10th amendment by coercing the states. Also did not violate implicit restrictions in the federal government.Rationale: Written by the dissenters in Butler. There was a massive unemployment problem in this country. The states were unable to give relief. The act is an attempt to find a method by which all states can work together for a common end. It is not coercion: every tax conditioned on conduct is temptation, not coercion. Purpose of the act is to place states on equal footing – it is in the general welfare. Distinguished from Butler on its facts (only one year before): 1) the farmers in Butler were being coerced into a contract with the federal government or risk financial ruin. Here, the states can simply repeal the laws. 2) Butler was a divided court. 3) Relief of unemployment is a much stronger national interest.

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d. South Dakota v. Dole (1987)Facts: a federal law required that 5% of allocable highway funds be withheld from any state where persons under 21 could legally purchase or possess alcohol.Holding: The law was valid as applied to P’s 19 year old limit on some beer. Congress can act under the spending power to encourage uniformity in age.Rationale: The condition is directly related to one of the main purposes of highway funds: safe interstate travel. The kids from other states were going to SD to drink. Conditions placed on federal grants are not regulation of states’ affairs. Offer benefits is not unusual and states can refuse if they find it coercive. Congress’s power may not be used to induce the states to engage in unconstitutional acts.

e. Basically, the court has held that Congress may place conditions on grants, so long as the conditions are expressly stated and have some relationship to the purpose of the spending program.

2. Spending for the general welfarea. Helvering v. Davis *(1937)*

Holding: Court upheld, under the general welfare clause, the social security act’s old age pension program, supported exclusively by federal taxes.Rationale: The discretion to decide what is in the general welfare belongs to Congress, unless the choice is clearly wrong, a display or arbitrary power, not an exercise of judgment. Great national need: number of people in the country 65 or older is absolutely and proportionately increasing. The number of these people who cannot take care of themselves is also growing. The problem is national, and the states have not been able to deal with it effectively.1) This was decided concurrently with Steward Machine.

3. Ex: in the early 1990’s, Congress passed a Religious Freedom Restoration Act. In response to Smith, the court ruled that native Americans could not use peyote in traditional religious rituals. The act attempted to overrule Smith which said that a state had to apply a compelling interest test before applying a certain law to a religious practice. The court struck down the act because Congress did not have the power to overrule the court. Recently, Clinton signed another law pursuant to the spending clause. Where federal funds are being used, those entities have to provide exceptions for religious exercise. So, Congress could accomplish the same objective by using the spending clause that it could not accomplish using other powers.

D. Foreign Affairs Power – Under Article I, Congress has several important powers with regard to foreign policy: to ratify treaties, to regulate foreign commerce, to define and punish piracies and felonies committed on the high seas and offenses against the law of nations, to declare war, to grant letters of marque and reprisal, to raise and support an army and navy, and to regulate immigration.1. Treaties as a Source of Legislative Power

a. Article II § 2 gives Congress the express power to make treaties.1) Constitution gives the President the power to make treaties with the advise

and consent of the Senate, providing that 2/3 of the senators present concur.

2) Treaties prevail over state law3) If a treaty conflicts with a federal law, the one adopted last in time

controls.

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b. Missouri v. HollandFacts: Migratory Bird Treaty Act with Canada obliged both countries to seek legislation protecting birds.Holding: Not a violation of the 10th amendment. The treaty did not contravene any prohibitory words found in the constitution. Here, a national interest was involved that could only be protected by national power. Therefore, the 10th amendment does not limit the scope of treaty power.

2. Other bases for legislative power over foreign affairsa. Perez v. Brownell

Holding: Court upheld federal statute mandating loss of U.S. citizenship for voting in a political election in a foreign country. Based on prevention of international tension. Power of Congress to regulate foreign affairs. Although there is no specific grant in the Constitution, there is no doubt of the existence of this power in a law-making organ. We must be able to function effectively with foreign nations.

b. U.S. v. Curtiss-WrightThe broad statement that the federal government can exercise no power except those specifically enumerated in the Constitution, and implied powers necessary to effect them is true only for internal affairs. This doctrine applies to powers which the states had. States never had international powers. The powers to declare and wage war, to conclude peace, to make treaties, to maintain diplomatic relationships, if they had never been mentioned in the Constitution, would have vested in the federal government, as necessary concomitants of nationality.

E. Applying National Powers to State Governments1. Origins of Immunities

a. McCullough v. MarylandMaryland’s tax on the national bank was invalid because the Constitution and laws made in pursuance thereof are supreme. They cannot be controlled by the states. A supremacy issue.

b. Collector v. DayInvalidated a federal income tax on the salary of a state judge as an instrumentality of the state government. Sovereign powers of the 10th amendment are the foundation for state immunity from federal taxes (analogous to the supremacy clause as foundation for federal immunity from state taxes).

2. State immunity from federal taxesa. Massachusetts v. U.S.

Holding: Court upheld a federal registration tax on all civil aircraft was imposed to pay part of the cost of federal air navigational facilities and services.Rationale: This was a valid tax because 1) its subject is a natural and traditional source of revenue, 2) it is inconceivable that such a tax could preclude traditional state activities.

b. New York v. U.S.Court upheld application of a federal excise tax to NY’s sale of mineral waters bottled and sold by the state to provide funds for a state health resort.

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3. Federal Immunity from State Taxes – since McCullough, the Court has never questioned the propriety of absolute federal immunity from state taxation. Nor has it upheld a single state tax laid directly upon the U.S. without the consent of Congress.

4. State Immunity from Federal Regulationa. Maryland v. Wirtz (1968)

The court upheld the 1966 extension of the Fair Labor Standards Act to state schools and hospitals because Congress has interfered with these state functions only to the extent of providing that when the state employs people in performing such functions, it is subject to the same restrictions as a wide range of other employers whose activities affect commerce, including privately owned schools and hospitals. In exercising a delegated power, the federal government may override countervailing state interests, whether these be described as governmental or proprietary in character.

b. National League of Cities v. Usery (1976)Holding: Overruled Wirtz. Tenth amendment violated by Congress’ forcing state payment of minimum wage.Rationale: An attribute of state sovereignty is the power to determine wages, hours, etc to carry out their government functions. Not within the commerce power to displace states’ functions or to force directly on the states choices of how integral government functions are made.Rule: Congress violates the tenth amendment when it interferes with traditional state and local government functions. The court did not attempt, however, to define what a traditional function house.

c. Garcia v. San Antonio Metro Transit Authority (1985) Issue: Whether the application of the Fair Labor Standards Act to state and local governments violated the tenth amendment.Holding: Court upheld application of the Fair Labor Standards Act to a municipally owned and operated mass transit system. Overruled Usery. Rationale: Don’t draw boundaries of state regulatory immunity in terms of “traditional government function.” (as in Usery). This is inconsistent with federalism. First, the Usery approach was unworkable. The “traditional” function of the states distinction allows judges to make policy determinations. Second, protection of state functions should be for the legislature, not the courts. Political process ensures that laws that unduly burden the states will not be promulgated. States retain sovereignty only where the Constitution has not divested them of power and transferred to the federal government.Dissent: Judicial enforcement of the tenth amendment is essential to carry out the intent of the framers in lessening the power of the national government.

d. New York v. U.S. (1992) – marks the return of federalism as a basis for declaring federal law within Congressional power unconstitutional as infringing on state sovereignty.Facts: A federal law, the 1985 Low Level Radioactive Waste Act created statutory duty for states to provide for the safe disposal of radioactive waste generated within their borders. Also made states liable for any problems from the waste – the “take title” provision. Issue: Was the take title provision unconstitutional?

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Holding: Yes, cannot make state legislatures adopt laws or make state agencies adopt regulations.Rationale: This impermissibly commandeers the state governments. Under article I, the federal government may not compel the states to enact or administer a federal regulatory program. States would “take heat” for bad decisions of Congress. Rejected Garcia’s conclusion that federal judiciary could not use the tenth amendment to invalidate federal laws. Does not matter if there is a compelling need for federal action.

e. Printz v. U.S. (1997)Facts: Brady Act purports to direct state law enforcement officers to participate temporarily in the administration of a federally-enacted regulatory scheme. Dealers must forward to CLEOs paperwork to determine if the purchasers can buy guns. CLEOs are empowered to grant waivers of federally Issue: Do these provisions violate the tenth amendment?Holding: Relevant historical practice tends to negate the Congress’s power to impose federal responsibility on state officers without the state’s consent. Enactments of the early Congress contain no evidence of an assumption that the federal government may command the states’ executive power in the absence of a particularized constitutional authorization. Dissent: If these were the rule, it would specifically be in the Constitution.

IV. DISTRIBUTION OF FEDERAL POWERS: SEPARATION OF POWERSA. Presidential Action affecting Congressional Powers.

1. Inherent presidential power? Article II of the Constitution begins, “The executive power shall be vested in a president of the USA.” Article II then enumerates specific powers of the president:a. commander and chief of the armed forces; b. power to grant reprieves & pardons; c. power to make treaties (w/ 2/3rds Senate approval); d. appointment of ambassadors, officers, Supreme Ct. Justices (w/ 2/3rds Senate

approval)2. Other powers of the president:

a. Recommends legislation to Congress.b. Receives ambassadors

1) Thought to be more “ceremonial” power, by Framers who did not desire a strong executive; this may explain why so many power require Congressional concurrence.

c. Most significant power in § 3: “take care” clause- “The president shall take care that the laws be faithfully executed.”

3. Most military powers are for Congress in Article I4. The Framers’ debate with regard to inherent powers:

a. Alexander Hamilton believes that since Article II does not limit the president to powers “herein granted,” as it does in the provision of Congress’ enumerated powers in Article I, the president has authority not specifically delineated in the Constitution.

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b. James Madison disputes this interpretation, contending that the opening language of Article II was “simply to settle the question whether the executive branch should be plural or single and to give the executive a title.” According to Madison, the president has no powers that are not enumerated in Article II.

c. The debate between Hamilton and Madison over inherent presidential power reflects the difficulty of resolving this issue by reference to the text of the Constitution.

5. Youngstown Sheet & Tube Co. v. Sawyer (1952) - The leading case addressing the scope of inherent presidential power (the ability of the president to act without express constitutional or statutory authority) Facts: In early 1952, the United Steelworkers Union announced a planned nationwide strike as a result of the labor-management dispute. Before the strike occurred, president Truman issued an Executive Order directing the Secretary of Commerce to take possession of the steel mills and to keep them running. Truman believed a steel strike could endanger the national defense and the war effort in Korea because steel was needed for weapons. The president reported his action to Congress. Congress took no action in response to the seizure. The president relied on the following powers to allow an emergency power: 1) commander-in-chief, 2) the take care clause, 3) executive power clause.Holding: The Court declared the seizure of the steel mills unconstitutional. Rationale: The justices in the majority gave several different answers to question of when the president may act without express constitutional or statutory authority. The general consensus in the majority was that the “Commander and Chief” power does not include the power to seize property because it is limited to foreign situations; not seizing private property located in the US. The implication being that there is no “presidential emergency power.” Frankfurter Concur: Would support any presidential action, even if not in the constitution or brought by an act of congress, that does not violate a specific Constitutional provision (more flexible than Black’s majority opinion). Can be outside of constitutional power if embedded in tradition; however, tradition does not support this particular action and it is unconstitutional.a. Four different approaches can be identified in the opinions in Youngstown:

1) There is no inherent presidential power; the president may act only if there is express constitutional or statutory authority.a) Justice Black’s majority opinion denied the existence of any

inherent presidential power. Under this approach, the president may act only pursuant to express or clearly implied statutory or constitutional authority. This seizure amounts to lawmaking because the policy it establishes changes the “status quo.” The rights of private citizens are being affected; and the 5th Amendment states that the govt. cannot deprive anyone of property without just compensation. “The President’s power, if any, to issue the order must stem from either an Act of Congress or from the Constitution itself." This approach is premised on the belief that inherent authority is inconsistent with a written Constitution establishing a government of limited powers. This approach protects liberty &

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democracy: the reason for the division of powersThey do not want the executer & maker of the law to be the same

2) The president has inherent authority unless the president interferes with the functioning of another branch of government or usurps the powers of another branch.a) A second approach, taken by Justice Douglas, allows the president

to act without statutory or constitutional authority so long as the president is not usurping the powers of another branch of government were keeping another branch from performing its duties. Douglas wrote: “The President might seize and Congress by subsequent action might ratify the seizure. But until and unless Congress acted, no condemnation would be lawful. The branch of government that has the power to pay compensation for seizure is the only one able to authorize a seizure or make lawful one that the president has affected."

b) The so-called "interstitial executive power approach" recognizes the ability of the president to act without express constitutional or statutory authority. This approach is premised on the believed that there is a need for the president to exercise powers not specifically enumerated in the Constitution or not expressly granted by Congress.

3) The president may exercise powers not mentioned in the Constitution so long as the president does not violate a statute or the Constitution.a) A third approach, sometimes referred to as the " legislative

accountability" approach, taken by Justice Frankfurter is that the president may take any action not prohibited by the Constitution or statute. Justice Frankfurter declared: "Nothing can be plainer than that Congress made a conscious choice of policy in a field of perplexity and peculiarly within legislative responsibility for choice. In formulating legislation for dealing with industrial conflicts, Congress could not more clearly and emphatically have withheld authority than it did in 1947.”

b) This was also the approach taken by Justice Jackson in his concurring opinion, which is perhaps the most famous opinion dealing with presidential power because he delineated three sounds of presidential authority:i. When the president acts pursuant to express our implied

authorization of Congress, the president acts are presumptively valid.

ii. When the president acts in the absence of either a congressional grant or denial of authority the president can rely only upon his own independent powers. There is "a zone of twilight” in which he and Congress have concurrent authority. The constitutionality of the President’s acts "depends on the imperatives of events and

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contemporary imponderables rather than on abstract theories of law.”

iii. When the president this obeys a federal law, such presidential actions will be allowed only if the law enacted by Congress is constitutional.

c) In Youngstown, Justice Jackson concluded that the President’s seizure of the steel mills fit into the third category because "Congress has not left seizure of private property and open field but has covered it by three statutory policies inconsistent with this seizure."

4) The president has inherent powers that may not be restricted by Congress and may act unless the Constitution is violated.a) Justice Vinson took the view that the president has inherent

authority, at least in some areas, and may act unless such conduct violates the Constitution. Under this approach, federal walls restricting the President’s power are unconstitutional. "The president is subject only to the people, and, under the Constitution, bound to serve the people affirmatively in cases where the Constitution does not explicitly forbid him to render the service."

b. All four of these approaches have some support in Youngstown and some support and other cases. No Supreme Court case definitively makes one of these approaches correct and the others wrong. Ultimately, the choice of approach must be based on a decision about the appropriate scope of presidential power and how best to check president. The choice of the approach is crucial in determining the analysis used and the likely outcome.

5. Presidents have long asserted a power to issue so-called “Executive Orders” relating to the organization of the executive branch, the use of the federal property, and the terms on which the federal government will enter contracts.

a. In Unites States v. Midwest Oil Co., the upheld presidential authority to protect oil resources on public lands, pending proposed legislation, by suspending statutory entitlements to file oil claims.

B. Congressional Action Affecting Presidential Powers1. Delegation of Rulemaking Power

a. Congress must keep its lawmaking powers; it can delegate its rule-making power by:1) Legislative objective (policy is to be set by Congress.)2) Congress must establish parameters, including when the maximum price

should be set, and what items the price may be set on.b. There is a less stringent standard today, than the standard of yesteryear.

In areas where Congress clearly has authority, Congress may delegate that authority to the President after Congress has made the policy. Congress must provide guidelines to President to implement policies. President may act as long as there is no express constitutional prohibition for him to act and as long as delegating does not violate non-delegation doctrine.

d. Yakus v. U.S. (1944)

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Facts: The 1942 war-time Emergency Price Control Act authorized the President appointed Price Administrator to issue regulations establishing maximum prices and rents to carry out the Act’s declared purposes to stabilize prices and to prevent speculative, unwarranted, and abnormal increases in prices and rents; and protect persons with relatively fixed and limited incomes from undue impairment of their standard of living. Rationale: The act is an exercise of Congress of its legislative power. In it Congress has stated the legislative objective, has prescribed the method of achieving that objective – maximum price fixing, and has laid down standards to guide the administrative determination of both the occasions for the exercise of the price fixing power, and the particular prices to be established. The Constitution does not require that Congress find for itself every fact upon which it desires to base legislative action or that it make for itself detailed determinations which it has declared to be prerequisite to the application of the legislative policy to particular facts and circumstances impossible for Congress itself properly to investigate. The essentials of the legislative function are the determination of the legislative policy and its formulation and promulgation as a defined and binding rule of conduct. These essentials are preserved when Congress has specified the basic conditions of fact upon whose existence or occurrence, ascertained from relevant data by a designated administrative agency, it directs that its statutory command shall be effective.

2. Legislative Veto – congressional check. Delegates power to the executive branch, but reserves the power to approve.

a. Based on Yakus, Congress cannot delegate its legislative policy. But, can delegate rulemaking authority to executive agencies. Legislative veto is a way to stay involved by checking the power.

b. Congress included in statute provisions authorizing Congress or one of its houses or committees to overturn and agency’s action by doing something less than adopting a new law. The typical form of a legislative veto provision authorized Congress to overturn an agency’s decision by a resolution of one house of Congress.

c. Legislative vetos also took the form of overturning agency rules by resolution of both houses of Congress or even by action of a congressional committee. Over 200 federal laws contained legislative veto provisions. Once Congress has delegated power to Executive Officials, it cannot reserve the power to set aside the Officials actions pursuant to the delegating statute. Such a “legislative veto” violates the bicameralism and /or presentment requirements of lawmaking provided by Art. I and more generally constitutes a Legislative encroachment on the Executive Power.

d. INS v. Chadha (1983)Facst: involved a legislative veto of an adjudicatory proceeding; Congress by resolution of the House of Representatives overturned an immigration judges decision to allow Chadha to remain in the country. Federal law gave either house of Congress the authority to overturn an INS decision to suspend deportation. Congress was making a policy

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decision on when people can be deported, and when a deportation can be waived. (The INS is the agency that makes these determinations.) Holding: the Supreme Court declared the legislative veto unconstitutional.Rationale: Justice Burger’s main premise was that Congress may legislate only if there is bicameralism, passage by both the house and the Senate, and presentment, giving the bill to the president to sign or veto. (Because lawmaking is subject to the “bicameralism and presentment clause” prescribed in Art. I § 7- a federal statute authorizing a one house veto of an Att. General decision is unconstitutional.) (Majority took strict originalist approach.) Chief Justice Burger continued declaring, "that the action was essentially legislative in purpose and effect." The effect of the legislative veto was to alter "the legal rights, duties, and relations of persons, including the Attorney General, executive branch officials, and Chadha. Accordingly, the court concluded that it was legislation and that it did not fit into any other limited situations under the Constitution where one branch of Congress can act alone. Chief Burger also expressly rejected the position that the legislative veto was necessary to issue adequate checks and balances. Chief Justice Burger's majority opinion was highly formalistic. Burger emphasized the formal structure prescribed in the Constitution for adopting laws and dismissed the functional concern that the legislative veto was essential to check administrative power.Concur: Justice Powell did not fully reject the concept of the legislative veto as the majority did; he just did not agree with Congress acting as the arbiter of individual rights for the citizens that it legislates in the name of. He believed that the problem was that the Congress assumed a judicial function in violation of separation of powers. He argued that in this case Congress made its own determination regarding individual rights-a function reserved for other branches.Dissent: Justice White wrote a strong dissenting opinion (functionalist approach- governmental efficiency: much like the dichotomy we saw in Youngstown case), emphasizing the need for the legislative veto as a check on the broad delegations of legislative power. (This is consistent with the Framer’s intent WRT checks and balances) Justice White explained that although the legislative veto was not contemplated by the framers of the Constitution, nor were the expansive delegations found in countless statutes creating administrative agency's. He also stressed the fact that no one would have standing to challenge Chadha’s presence in the US; and this case would not be going beyond the scope of the constitution, but merely implementing its underlying intent. Also, White lamented that the majority in Chadha invalidated "in one fell swoop provisions in more laws enacted by Congress than the court had cumulatively invalidated in its history." White could not spell-out all instances of hardship that could possibly occur.

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1) The dispute among the justices in Chadha was over the proper form of analysis in separation of powers cases. Neither the majority nor the dissent addressed whether the legislative veto is actually an effective tool for checking administrative agencies.

2) Almost immediately after Chadha, the court extended its holding to preclude legislative vetoes of agency rules. It is now clearly established that if Congress wants to overturn an executive action there must be bicameralism, passage by both houses of Congress, and presentment, giving the bill to the president for signature or veto. Anything less is a legislative veto and legislative vetoes are unconstitutional.

e. Purpose of Article I § 7:The concepts of bicameralism and presentment were derived from the federalist papers: The Framers saw checks and balances as an inherent part and parcel of the doctrine of separation of powers; and a necessary conduit for the maintenance of liberty. The Framers did not care that it was cumbersome, they felt it was a necessity. A government with unchecked powers would trample on the rights of citizens.1) When framers allowed a house to act alone they specifically noted

those times ie. impeachment, treaties, appointment of Ambassadors:

2) The more specificity in the constitution the more likely silence means rejection of that power.

3. Line Item Veto – Clinton v. N.Y. (1998)Facts: Act and Purpose: The Line item Veto gives the President the power to cancel the following three types of provisions which have been enacted by Congress and signed into law: (1.) Any dollar amount of discretionary budget authority; (2.) Any item of new direct spending; (3.) Any limited tax benefit.The Act required the President to abide by strict, precise procedures when exercising his cancellation authority such as: 1.) The veto must reduce the deficit;2.) The veto may not impair governmental functions or harm the national interest.3.) The President must notify Congress of intent to veto within 45 days.Bill Clinton exercised his line item veto power to nullify a section of the Balanced Budget Act that waived the federal government’s statutory authority to seek recoupment in taxes that New York had levied against Medicare providers. It was undisputed that the provision had been signed into law before it was canceled. Also, the veto was authorized by the Line Item Veto Act.Issue: May the president unilaterally repeal a statuteNO.Broader issue: Whether the Line Item Veto Act’s cancellation provisions violate Article I § 7’s “Bicameralism and Presentment Clause”Yes, because it “repeals” a statute’s provisions and amounts to policy-making by a president.Rationale: Government’s argument: They contended that the cancellations were not repeals or vetoes in the constitutional sense, but merely exercises of discretionary authority granted to the President by the Balanced Budget Act and the Taxpayer Relief Act read in light of the previously enacted Line Item Veto Act. The government relies upon Field v. Clark, which upheld the

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constitutionality of the Tariff Act of 1890. That Act contained almost 300 articles that were exempted from import duties, but directed the President to suspend the exemption of certain items “whenever, and so often” as he determined.1. No disapproval bill was passed for the cancellations involved here.2. There are important differences between the President’s cancellation authority pursuant to the Line Item Veto and the President’s return of a bill. (The return takes place before the bill becomes a law and is part of the entire bill; the cancellation occurs after it has become law and is only of a part of the larger legislation.3. The Constitution is silent regarding unilateral Presidential action that repeals or amends parts of duly enacted statutes. There are powerful reasons for construing constitutional silence on this profoundly important issue as equivalent to an express prohibition. The Framers never intended to give the President this much power.4. Congress cannot authorize the President to cancel appropriations provided by statute. To do so, in effect, authorizes the President to repeal an act of Congress.5. Congress cannot alter the procedures set out in Art. I. §7 with out amending the constitution ie. to make law need bicameralism and then presented to the president. By deleting line items of bills the President was making laws. Pres. can’t make lawsDissent: Justice Breyer, dissenting (much like Justice White in Chadha). The President did not repeal any law nor did he amend any law; he is not legislating. One cannot say that a President who prevents the deeming language from having legal effect has either repealed or amended this statute. Rather the President has exercised the power it explicitly delegates to him. He has executed the law, not repealed it. Because it cannot be said that the President’s exercised of the Act grants is a repeal or amendment, the fact that the Act’s procedures differ from the Constitution exclusive procedures for enacting legislation is beside the point. The Act was passed pursuant to Art. I § 7, so it cannot violate Article I §7.Dissent: Justice Scalia, dissenting. They “faked-out” the Supreme Court because the Line Item veto is no different from what Congress has permitted the President to do since the formation of the Union; no different from having a discretionary provision in any appropriationa. Question: Does the line item veto aggrandize the president’s power?

Woods thinks Clinton v. NY could have been deemed unconstitutional by using the non-delegation doctrine. Instead the court said it violated Art. I §7 which provided constitutional mechanism for making laws - bicameral & presented to President.

C. The Foreign Affairs and War Powers1. We are concerned with whether Congress or President is practicing a power outside of its

sphere because of potential encroachments on liberty.a. Article I § 8 defines Congress’s power in foreign affairs:

1) clause 1 – provide for the common defense2) clause 2 – commerce with foreign nations3) clause 4 – naturalization and immigration4) clause 10 – punish piracies and felonies on the high seas

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5) clause 11 – declare war6) clause 12 – raise and support armies7) clause 13 – provide for a navy8) clause 18 – necessary and proper clause

b. Article II defines the President’s foreign affairs powers:1) to make treaties2) appoint ambassadors and other public ministers with approval of

Congress.3) Ability to recognize a foreign government.4) Commander-in-Chief

2. U.S. v. Curtiss-Wright (1936)Facts: A joint resolution of Congress authorized the President to prohibit the sale of arms to Bolivia and Paraguay, which were engaged in conflict, if the President found that such a prohibition would contribute to the re-establishment of peace. The president declared an embargo, and D was indicted for violating its terms.Issue: Was the joint resolution an unconstitutional delegation of legislative power?Holding: No, the nondelegation doctrine applies to domestic affairs only.Rationale: Had this been internal affairs, it would have been open to a constitutional challenge. But, foreign affairs are different. The statement that the federal government can exercise no powers except those specifically enumerated, and such implied powers as necessary to carry out the enumerated powers, is only applied to internal affairs. In the foreign affairs realm, the President alone has the power to speak or listen as a representative of the nation. President has a better opportunity to know of conditions that prevail in foreign countries, especially in times of war.Rule: Delegation of power from Congress to the President can be broader in a foreign affairs context.a. Foreign affairs power is for both Congress and the President.b. Courts rarely speak of the constitutionality of the President using troops without

Congressional approval. The only case to address is the Prize cases ruled that the President had the power to impose a blockade on the southern states without a declaration of war by congress.

3. This case has been interpreted to find an inherent presidential emergency power4. One reason why we narrow delegation in domestic affairs is because it could be

taking powers reserved to the states. But, states don’t have the foreign affairs power.

5. This case was heavily cited during the Cold War era, but its influence is waning.3. Dames and Moore v. Regan (1981)

Facts: Presidential executive orders implemented an executive agreement between Iran and the U.S., securing the release of American hostages. The agreement called for the termination of all litigation between the governments and the people of the countries. Settlement of claims was to be through arbitration. P had its prejudgment attachment from an Iranian company vacated pursuant to the order.Holding: the court upheld the executive order.Rationale: The President’s action was taken pursuant to a specific authorization by Congress, under the International Emergency Powers Act. This category of delegation has the strongest presumption of Constitutionality and widest latitude of judicial

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interpretation. Although the authorization did not specifically allow the suspending of claims, it is still constitutional because Congress cannot anticipate every single thing that could occur when it passes legislation.Rule: Executive agreements are allowed for things necessary to foreign policy matters.a. Here, as in Youngstown, and Curtiss-Wright, we are discussing the presidential

power as to the rights of private parties. Concerned with protecting liberty.b. Court’s rationale for sustaining the action is similar to approach one of Jackson’s

concurrence in Youngstown where President was acting with Congressional approval.

4. War Powers Resolutiona. get this stuff from project

V. STATE POWER TO REGULATE – DORMANT COMMERCE CLAUSEA. Dormant Commerce Clause Test: the central question is whether the state or local law affects

interstate commerce.1. Describe the statutory scheme: Deals with state statutes2. Discrimination: Does the statute regulate in-state and out-of-state interests

evenhandedly? Facially discriminatory laws are those that draw a distinction between in and out of staters. Examples:a. Lewis v. BT Investment Managers – a state law prevented out of state banks from

owning an investment advisory business within the state.b. Baldwin v. GAF Seeling – a state law restricted prices of milk produced out of

state and prevented it from being sold at a lower price than in state milk. c. Reynoldsville Casket v. Hyde – the court declared unconstitutional a state law

that allowed a longer tolling period for the statute of limitations for suits against out of staters than for suits against in staters.

3. Burden: How specifically does the statute burden interstate commerce?4. Benefits:

a. what are the asserted local interests served by the statute?b. what are the actual local interests served by the statute?

5. Does the statute appear to be motivated by protectionism?6. Is there a less burdensome alternative?

B. Since Gibbons v. Ogden (1824), the court has broadly defined the scope of “commerce among states” for dormant commerce clause analysis.Issue: did the grant of the commerce power to Congress impliedly exclude all state regulation of interstate and foreign commerce?Discussion: If a direct, general power over something is granted to Congress, it is only for Congress. Ex: if a state tried to regulate foreign affairs. Some powers of Congress are exclusive because the Constitution expressly withholds the power from the states, but the commerce clause does not do this. Marshall drew a distinction between a state’s exercising its police power and a state exercising federal power over commerce. Some State laws have a considerable influence over commerce because they are a portion of that immense mass of legislation which embraces everything within the territory of a state not surrendered to the general government: these are more advantageously used by the states. Unresolved issue here is when do state laws, including

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those adopted under police power, violate the dormant commerce clause because they unduly burden interstate commerce?1. Police power/ commerce power test

C. Wilson v. Blackbird Creek (1829)Issue: can a state construct a dam that obstructed an interstate waterway?Holding: yes, the construction of a dam is a permissible exercise of a state’s police power.

D. City of NY v. Miln (1837)Upheld a NY requirement that ships report details on incoming passengers as a police power, not one interfering with commerce.

E. Cooley v. Bd. Of Wardens (1851)Facts: PA law required ships entering or leaving a state port to pay a fine to support retired pilots.Issue: Did the grant of commercial power to Congress per se deprive the states of all power to regulate pilots in ports?Holding: NoReasoning: Crucial question: Whether the subject is of a nature that requires uniform national regulation or a diverse local regulation. This was a local matter because of differences among ports and because a federal law adopted in 1789 expressly gave this to states.1. Local/national subject test2. Compare to Welton v. MO – where a state law was invalidated that required peddlers of

out of state merchandise to get a license because transportation and exchange of commodities is of national importance and requires uniform laws.

F. Barnwell - court upheld a state law which imposed length and width requirements for trucks. State had an important interest in protecting highway safety and preserving roads. Southern Pacific v. AZ – state law limiting length of RR trains was unconstitutional because the burden on interstate commerce outweighed any benefit to the state. So, central issue is whether the benefits of the state law outweigh its burdens on interstate commerce. If law is discriminatory against out of staters, it has a presumption of impermissibility – will only be upheld if deemed necessary to achieve an important government function..

G. Baldwin v. G.A.F. Seeling (1935)Facts: NY law regulated minimum milk prices and prohibited the sale in NY of milk bought outside the state at lower prices.Holding: the state could not do this.Rationale: NY attempted to project its legislation into Vermont by regulating the price of its milk. Such a power would set a barrier to traffic between one state and another as effective as if customs duties had been laid. Distinctions between direct and indirect burdens are irrelevant when the avowed purpose of the obstruction is to suppress or mitigate the consequences of competition between the states. Whatever may be between earnings and sanitation is too remote and indirect to justify obstructions to the normal flow of commerce between states. Constitution embodies a free trade philosophy between states.1. New Energy Co of ID v. Limbach – commerce clause does not prohibit all state action

designed to give its residents an advantage in the marketplace, but only action of that description in connection with the state’s regulation of interstate commerce. Direct subsidization of domestic industry does not run afoul of that prohibition, discriminatory taxation of out of state manufacture does.

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2. Henneford v. Silas Mason Co. – upheld a compensating use tax because the result is equality of tax with in and out of state goods, not a preference.

3. Breard v. Alexandria (1951) – The court upheld, over a commerce clause claim, an ordinance forbidding door to door soliciting of orders for the sale of merchandise, as applied to P and his crew of sales persons seeking subscriptions to out of state magazines. The court viewed the ordinances as protecting an important societal interest in residential privacy: Unwanted knocks on the door by day or night are a nuisance, or worse, to peace and quiet. Where there is a reasonable basis for the legislation to protect the social, as distinguished from the economic welfare of a community, it is not for the court because of the commerce clause to deny the exercise locally of the sovereign power of the state.

H. Dean Milk v. Madison (1951)Facts: a WI ordinance prohibited the sale of milk not processed at approved pasteurization plants within five miles of Madison’s central square. P, based in IL, bought milk from WI and IL farms, which it pasteurized at its two IL plants 65 and 85 miles from Madison. Chicago public health authorities licensed and inspected these plants under the Chicago ordinance, which was patterned after national standards. Madison contended that its standards were more rigorous than Chicago’s.Holding: the ordinance imposes an undue burden on interstate commerce. Rationale: The regulation, like the provision invalidated in Baldwin, in practical effect excludes from distribution in Madison wholesale milk produced and pasteurized in IL. In thus erecting an economic barrier protecting a local major industry from competition out of state, Madison plainly discriminated against interstate commerce. It cannot do this, even in the exercise of unquestioned power to protect the health and safety of its people, if reasonable, nondiscriminatory, adequate methods are available. Here, there were good alternatives available. Madison could charge the actual and reasonable cost of inspection to the importing producers and processors. The commissioner even testified that Madison consumers would be safeguarded adequately under either method.1. West Lynn Creamery v. Healy (1994) – statutory scheme here was to tax in state and

out of state milk producers with a subsidy going back to the in-staters. The court invalidated the statute because it was discriminatory – even though we have cases stating that an even handed tax is ok and a subsidy is ok, the tax on the in-staters is offset by the subsidy so the in-staters are not being burdened.

I. H.P Hood and Sons v. DuMond (1949)Facts: P was a Boston milk distributor who obtained his supply of milk from producers in NY. He had established three milk receiving and processing depots in NY under licenses from that state. When he applied for a license to open a fourth depot, he was denied. The basis for the denial was that the issuance would tend to create destructive competition in an area already adequately served. In his denial, the milk commissioner stated that the fourth depot would draw milk supplies away from other existing processing plants and would tend to deprive the local market of an adequate milk supply.Issue: May a state constitutionally enact restrictions with the purpose and effect of curtailing the volume of interstate commerce for the benefit of local economic interests? Holding: No, restrictions, imposed for the avowed purpose, and with the practical effect of curtailing the volume of interstate commerce to aid local economic interests will not be sustained. Rationale: The principle that permits a state to require a license is the state’s police power to

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protect health, safety, and welfare. License here, though, was a problem because it was unconstitutional as applied. (Not saying that a statute requiring licenses is invalid). The commissioner’s application of the statute was protectionist. Said that giving the P another depot would wrongfully compete with depots already there. The commissioner also felt that a milk shortage would come about because more milk would be going out of state. The founders felt that “our system, fostered by the commerce clause, is that every farmer and every craftsperson shall be encouraged to produce by the certainty of free access to every market in the nation, that no home embargos will withhold exports, and no state will, by customs, duties, or regulations, exclude them.” The statute cannot stand.Dissent (Black): The question here is whether all local phases of interstate business are to be judicially immunized from state laws against destructive competitive business practices. In Baldwin, it was because NY attempted to outweigh VT’s interest in controlling its own local affairs. Here, NY does not attempt to regulate the price of milk; rather, it seeks to promote health and to protect NY farmers from destructive competition. Such were the purposes of the PA milk law which was upheld in Milk Brd. v. Eisenberg Co. Dissent (Frankfurter): In effect, the majority holds that no matter how important the preservation of destructive competition may be to the internal economy of a state and no matter how unimportant the interstate commerce affected, a state cannot, as a means of preventing such competition, deny an applicant access to a market within the state if that applicant intends to ship out of that state.

J. Pike v. Bruce Church (1970)Facts: AZ required that all AZ cantaloupes grown in AZ be packed in AZ. The regulation is applied to prevent a CA company from shipping uncrated cantaloupes from its AZ ranch to its CA packing plant. The purpose of the requirement is to increase the demand for AZ cantaloupes which are of high quality.Holding: The AZ statute was invalid under the dormant commerce clause.Rationale: the state’s interest in enhancing the reputation of AZ cantaloupes is legitimate (though tenuous). However, this interest is clearly outweighed by the national interest in unencumbered commerce. The court has viewed with particular suspicion state statutes requiring business operations to be performed in the home state that could be more efficiently performed elsewhere. Even where the state is pursuing a clearly legitimate interest, this particular burden on commerce has been declared illegal per se. Rule: A state statute violates the dormant commerce clause, if it places a clearly excessive burden on interstate commerce, balanced against the local benefits.1. Source of the famous Pike test.

a. This would have been unreasonable to make companies build a packing plant in AZ, no matter where they were located.1. Therefore, although the state had some interest in cantaloupe reputation, it

is clearly outweighed by the nation’s interest in unencumbered commerce.2. Thus, the court balanced state interests with the burden on commerce.

b. Requires inquiry into:1) whether the challenged statute regulates even handedly with only

incidental effects on interstate commerce, or discriminates against interstate commerce either on its face or impractical effect.

2) whether the statute serves the legitimate local purpose; and, if so, 3) Whether alternative methods could promote the local purpose as well

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without discriminating against interstate commerce.2. Ex: what if the requirement was simply that the companies had to put a sticker on the

actual cantaloupes, instead of actually packing them there. The benefit is the same to the state. Burden is only the increased cost of placing the sticker on the fruit. The Pike test requires that the burden be clearly excessive in light of the local benefits. This would probably be ok. A less burdensome alternative to the situation in Pike.

3. In conclusion, AZ can regulate the production of cantaloupes, but not to the burden of interstate commerce. This is at the heart of the dormant commerce clause.

4. When you have a requirement that an individual must perform a certain task in state, court will more than likely find it to be an impermissible burden. Ex: an impermissible purpose would be to protect jobs in AZ. Implicit in these requirements is protectionism.

5. Hunt v. WA State Apple Advertising Comm – NC violated the commerce clause when it barred closed apple containers bearing any grade except that of the USDA or the no grade mark. WA’s grades were different, but equivalent to the USDA grades. Used the Pike test to determine that the statute raised the cost of doing business in NC for the WA dealers, but the NC ones were unaffected. State had not met its burden to justify discrimination in terms of a local benefit.

K. Minnesota v. Clover Leaf Creamery (1981)Facts: A state law was enacted that banned nonreturnable milk containers made of plastic but permitted other nonreturnable milk containers, largely cartons made of pulpwood, though the plastic originated out of state and the pulpwood originated in state.Holding: Court upheld the statute.Rationale: the court concluded that the statute was not simple protectionist legislation camouflaged in a recitation of environmental purposes. State interest outweighed the burden. State had a problem with disposing of the plastic waste. Court saw this through the legislative findings. This statute also helped to promote conservation of energy and other natural resources. Benefits clearly outweighed the burden on interstate commerce.

L. Philadelphia v. New Jersey (1978)Facts: state regulated out of state garbage in a NJ landfill. Prohibited the importing of most solid or liquid waste into the state. The law was enacted in response to the use of NJ landfills for disposal of waste from cities in PA and NY. Several NJ operators and out of state users of landfill sites (including Philadelphia) sued to have the statute invalidated on the ground that discriminated against interstate commerce.Holding: Garbage is an article of commerce. This is not within the power of state because NJ treated out of state waste differently than in state waste. Garbage disposal is a national problem. There is no basis for treating states differently because the environment will be affected the same regardless. This would have been permissible if the out of state waste was distinguishable or on a health and safety basis so that police power could have been used. 1. Distinguishable from quarantine laws which have often been upheld. Such laws banned

importation of materials which, at the moment of importation were hazardous. Here, by contrast, the solid waste whose importation was prohibited by NJ endangered the health only when buried in landfill sites, by which time there is no valid reason to differentiate between out of state and domestic garbage.

2. Dissent found it reasonable for NJ to guard against a worsening of its own waste disposal problem by banning the addition of out of state waste.

3. Incidental burdens on interstate commerce may be unavoidable when a state legislates to

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safeguard the health and safety of its people. 4. Maine v. Taylor (1986) – uncertainty about how the importation of live bait would affect

the environment, so upheld the state’s prohibition.M. C&A Carbone v. Clarkstown (1994)

Facts: town of Clarkston enacted a flow control ordinance. The practical effect of the ordinance was to require that any trash generated in the own be taken to a particular waste transfer station, which charged a tonnage fee for all trash it processed. The town had been required by the state to set up the waste transfer station. Instead of building the station itself, the town induced a local entrepreneur to build it, and promised the entrepreneur a certain volume of the trash to process. The town then required residents to take their trash there, as a means of delivering the guaranteed volume.Holding: The court held that the flow control ordinance violated the commerce clause. The majority described the ordinance as a local processing ordinance, whose purpose and effect was to hoard trash processing jobs within the town. The ordinance thus discriminated against interstate commerce – it deprived the state firms of the opportunity to do the processing. As a discriminatory protectionist statute, the ordinance was per se invalid.1. it did not matter that lots of instate trash processors were also deprived of the ability to

process Clarkston’s trash. A government authorized monopoly was no less discriminatory against out of state commerce than would be more typical ordinance protecting all local producers against out of state producers, such as the ordinance struck down in Pike.

N. Hughes v. Oklahoma (1979)Facts: OK barred the export for sale of any minnows which are procured from the natural waters of the state. The state argued that the ban was necessary to preserve the minnow population. But, the state placed no limits on importation.Holding: the statute was in violation of the commerce clause.Reasoning: this case is just like Philadelphia v. NJ. If the state really wanted to preserve the minnow population, they could have used alternative means, such as limits on how many could be fished. 1. Need to look at what the statute does do and what it does not do.

O. Kassel v. Consolidated Freightways (1981)Facts: IA statute prohibited use of certain large trucks within the state. Statute’s asserted purpose was to protect highway safety by limiting the size of trucks which are more likely to jackknife. D is a large common carrier under a certificate of public convenience issued by the ICC. D uses “doubles” extensively, which are expressly prohibited by the statute.Holding: Court upheld the lower court’s finding that the state law impermissibly burdened interstate commerce. Rationale: If the safety purpose of the statute is marginal and the statute burdens interstate commerce, it will not be upheld. IA gave no persuasive findings, and its law was out of step with other states’ laws. This statute increases the cost to companies and also aggravates highway accidents because there will be more, smaller trucks on the road. Less deference is due to the legislature where the regulation bears disproportionately on out of state businesses. Also the “border cities” exception found in the statute, allowing the forbidden large trucks in cities that border other state, suggests further that the statute was designed to burden interstate commerce (if safety was the concern, they would not have allowed exception). A state cannot constitutionally promote its own interests by requiring safe vehicles to detour around it.

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Brennan’s Concur: Three principles: 1. Courts are not empowered to second guess judgments of the legislature concerning the

utility of the legislature.2. Burdens on interstate commerce must be balanced against actual, at the time benefit3. Protectionist legislation is unconstitutional, even if the burdens/benefits are safety related.This legislation was protectionist, and therefore, impermissible.

P. Market Participant Doctrine1. state can be a market participant: when state is competing in the market it cannot

regulate it. Must distinguish between state as a market participant and a market regulator. This is significant because private industries would not be able to violate the commerce clause, and neither can the state when acting in the market as a private industry. State activity as a market participant is not the subject of commerce clause regulation.

2. Reeves Inc v. Stake (1980)Facts: Because of a 1919 cement shortage, SD built a cement plant which sold to in and out of state buyers. When there was a shortage, P challenged the preferential treatment the state plant gave to in state buyers.Issue: Was the preferential treatment given to SD buyers an impermissible burden on interstate commerce?Holding: the court upheld under the market participant doctrine. SD was a market participator, not a market regulator.Rationale: based reasoning on Alexandria Scrap. Nothing in the commerce clause prohibits a state from participating in a market and favoring its citizens. Examples are colleges charging lower fees to instate students, since their taxes pay for the school. Commerce clause is primarily for taxes and regulatory measures. Does not limit states’ ability to operate in the market.Dissent: Because SD is a state, it cannot operate as a private business. It will always respond to economic conditions politically. State action still burdens interstate commerce, even when the state is competing in a private market. a. The fact that this was not a natural resource was also important. Cement making

is a production process. Don’t apply the same principles as court applied in the natural resource cases.

b. State cannot regulate aspects that it does not participate in. only applies to the immediate transaction the state is involved with. 1) South Central Timber - AK was a market participant in the timber selling

market. Had a requirement that timber be sawed into cants no less than 9” before exporting. This required the out of state sellers to have a plant in AK. So, although market participant doctrine applies to actual selling, AK can’t use its position in the market to regulate other activities, such as the processing.

Q. Privileges and Immunities Clause1. Purpose of the privileges and immunities clause is to prevent states from exercising

unreasonable burdens on citizens of other states.2. Baldwin v. Fish and Gaming Commission of Montana (1978)

Facts: Montana required a substantially higher licensing fee for elk hunting for out of state citizens.Holding: this did not violate the privileges and immunities clause.

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Rationale: states can make distinctions between in and out of state residents for things like state universities, voting, and holding political office. These go to the core of the political process. The privileges and immunities clause insures equal protection of laws, and to things like acquisition of property and the pursuit of happiness. Natural rights are to be protected for citizens of other states. The elk hunting fee fell outside of the clause. Access to elk is not a basic right. Court characterized it as a sport, not economic, which would be related to livelihood. Additionally, only wealthy people can afford to do this. a. Something like fishing would be more related to livelihood; thus, states may not

be able to do this.b. Hypo: What about deer?

3. The test under the privileges and immunities clause (what the states must prove):a. substantial reason for the difference in treatment.

1) higher than rational basis.b. the discrimination bears a substantial relationship to the state’s objectives. This

type of test is an ends/means analysis:1) reasonable,2) substantial, or3) compelling relationship between the ends and the means.

4. United Bldg. & Const. Trades Council v. Mayor of Camden (1984)Facts: Camden ordinance required 40% of employers on contract jobs to be Camden residents. The city argued that this was a publicly funded project with city funds, so city should be able to choose whom to employ – a market participant argument. Holding: Market participant does not apply to privileges and immunities clause. The ordinance was unconstitutional.

R. The Effect of Federal Regulation: Preemption1. Dormant commerce clause applies in the absence of preemption – where congress does

not act in an area. Preemption comes in under the supremacy clause. If the government regulates in an area where it has authority, it preempts state and local legislation covering the same area. Two types:a. express preemption – congress specifically states that all state law is preempted.b. Implied preemption – a state and federal law has, arguably, the same subject

matter.2. Pacific Gas and Electric v. State Energy Resources Conservation Comm (1983)

Facts: For the construction of an electric power plant, CA required prior certification by the SEC (State Energy Commission) for the safe disposal mechanism. Basically withheld certification unless the company could certify that it would safely dispose of nuclear waste. A federal statute dealt exclusively with safety. No requirement in the federal act that was in the state act.Holding: the federal act did not preempt the state law.Rationale: There are three occasions, absent preemptive language, when Congress intended statutes to preempt state law:a. scheme of federal regulation is so pervasive as to make reasonable the inference

that Congress left no room to supplement it. Did Congress intend it to cover the whole “waterfront.” A question of statutory interpretation.

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b. the act of Congress may touch in a field in which the federal interest is so dominant that the federal system will be assumed to preclude state laws on the subject. Ex: immigration and foreign policy.

c. because the object sought to be obtained by the federal law and the character of obligations imposed by it may reveal the same purpose.

Even where Congress has not entirely displaced state regulation in a specific area, state law is preempted to the extent that it actually conflicts with federal law. Such a compliance arises when compliance with both federal and state regulations is an impossibility, or where the state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress. Here, because states have always regulated this, start with the assumption that it is not to be superceded. The federal law here does not regulate when plants can be built. Congress must have left this for the states. The federal statute preempts as to safety only. CA’s policy in passing the statute was to have fewer nuclear power plants. Government’s policy in passing its statute was to promote safety in nuclear power plants. The court interpreted the CA provision as being valid under the police power as promoting the economic welfare of its citizens, not safety. Compliance with state and federal law is possible.Rule: state law is preempted if it stands as an obstacle to the accomplishment of purposes and objectives of Congress

VI. SUBSTANTIVE PROTECTIONS OF ECONOMIC INTERESTSA. Origins of Substantive Due Process.

1. Due process clause is found in the Fifth and Fourteenth Amendments. The two clauses say the same thing – no person shall be deprived of life, liberty, or property without due process of law.a. 5th applies to the federal governmentb. 14th applies to the states

2. Traditionally, due process is a procedural concept – procedures that need to take place before government can deprive of life, liberty, or property.

3. Substantive due process says that there is something inherent vested in certain rights that the government cannot take away without sufficient justification. Arguments against:a. due process clause is not the proper place for these protections, it is the privileges

and immunities clause in the 14th amendment. b. Court is using this theory to protect unenumerated rights.

4. Pre 1937 economic regulation by Congress was struck down on the basis of the commerce clause. Also the court was striking down economic regulation by states under the due process clause. Theory goes back to Locke and his inalienable rights. Question is what are these rights? In 19th century, primarily property and contractual rights. However, in Calder v. Bull, judges debated the two theories:a. Justice Chase – government can neither violate the provisions of the Constitution

no infringe on rights that are part of the natural law.b. Justice Iredell – we have an enumerated Constitution and cannot have natural law

that is not in the Constitution. Natural law always changes.5. Fletcher v. Peck – A challenge to a GA statute that rescinded an earlier law that granted

land to individuals. The court found the resent of land unconstitutional. Because title had been conveyed to innocent owners, the law interfered with vested rights. These rights were protected by both the text of the Constitution and natural law.

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a. Terret v. Taylor – similar case where the court declared unconstitutional a VA law that would have taken title of certain property away from the Episcopalian church. Such interference with vested property rights violated principles of natural justice.

6. Slaughterhouse Cases (1873)Facts: LA passed a law giving a monopoly on N.O. slaughterhouses to a particular company. Butchers not included claimed the statute deprived them of the opportunity to practice their trade, violating due process and privileges and immunities. Holding: Court rejected all arguments. Fundamental civil rights, including the right to practice one’s calling, were in the domain of the political processes of the states. Therefore, the Ps should have looked to LA law for protection. The court recognized several rights of national citizenship, including free access to seaports and federal protection on the high seas. These rights could not be infringed by any state by virtue of the privileges and immunities clause.

7. Allgeyer v. LA (1897)Facts: LA statute prohibited anyone from obtaining insurance on LA property from any company not licensed in LA.Holding: Stuck down on the grounds that it violated freedom of contract and the right to earn a livelihood under substantive due process of the 14th.Rationale: the guarantee of liberty protects, not only physical liberty, but also such intangibles as the right to live and work where one wishes, and to enter any contracts necessary to accomplish any of these goals. State’s police power did not extend to barring contracts, like this one, which were both made and to be performed outside of the state.

8. Lochner v. NY (1905)Facts: NY statute forbade employment in a bakery for more than 60 hrs per week or 10 hrs per day.Issue: Is this a valid exercise of police power?Holding: No, interferes with the right to contract, a liberty protected under the 14th amendment.Rationale: Public health – the ends. The means are the regulation of hours. Court found no reasonable relationship between the ends and the means because good bread made in bakeries is not dependent on how long bakers work. The public interest as a whole is not affected. Not a law to safeguard public health, it is a meddlesome interference with the right of competent adults to contract. Slippery slope analysis – could go into all fields the government finds could be dangerous.Dissent: The court should not be guided by economic theory. This is a function of the legislature.a. Many cases can be brought under the commerce clause or due process.b. Themes present here:

1) the freedom to contract is a basic liberty protected under the 14th amendment.

2) The government can interfere only to serve a valid police power. Which was not found here.

3) Judiciary should carefully scrutinize legislation (judicial activism).9. Nebbia v. NY (1934)

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Facts: after a year’s legislative study of NY dairy industry, in 1933, NY enacted a law that regulated minimum and maximum milk prices.Holding: This was not a denial of due process because the law is not unreasonable, arbitrary, or capricious. The means selected have a reasonable and substantial relationship to the object sought to be obtained.Rationale: Equally fundamental with private right to contract is the right of the public to regulate in the common interest. Legislature found extensively that unrestricted competition aggravated consumers’ and producers’ interests. Ruthless competition destroys wholesale price structures. Courts don’t have the authority to override if the law has a reasonable relation to a proper legislative purpose. If the law passed here is not arbitrary and capricious, due process is satisfied.Rule: State is free to adopt economic policy reasonably deemed to promote the public welfare.

10. West Coast Hotel v. Parrish (1937)Holding: Upheld a state law that required a minimum wage and maximum hour for women employees. Court was clear that it was abandoning the principles from Lochner. The constitution does not speak of freedom to contract, but does speak of liberty and prohibits the deprivation of property without due process of law. Regulation that is reasonable in relation to its subject, and is adopted in the interests of the community is due process. The exploitation of a class of workers who are in an unequal position with respect to the bargaining power and are, thus, relatively defenseless against the denial of a living wage is not only detrimental to their health and well-being, but casts the burden of their support onto the entire community.Rule: government can regulate to serve any legitimate purpose, and the judiciary should defer to the legislature’s choices where reasonable.a. Carolene Products and Darby are examples of federal laws analyzed under due

process and commerce clause analysis.11. Duke Power Co. v. Carolina Environmental Study Group – modern statement of the

rule of economic due process. If you have a statute that governs economic or social issues, this is the standard: A presumption of constitutionality. a. We have seen this before with commerce clause analysis.b. This is the “arbitrary and irrational” standard. – burden of proof is now on the

challenger to prove that the law is arbitrary and irrational. Much harder to strike a statute now.

B. TAKINGS CLAUSE - Purpose of Taking1. Fifth Amendment does not forbid government from affecting private property, but

conditions government’s use of police power to affect private property on two criteria:a. taking must be for public use or public purpose

1) the taking is for a public use so long as the government is taking property to achieve a legitimate government purpose and so long as the taking is a reasonable way to achieve the goal.

b. just compensation must be paid.9) The Fair Market Value of the property at the time of the taking.

c. In Calder v. Bull, the court condemned such a practice as violating the natural law principles on which the Constitution was founded.

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2. First, you must determine that there is a taking of private property. Government can take by:a. physical confiscation or occupation of property b. through regulation

3. The government does not have to benefit economically. The test is whether there is an economic deprivation to the owner.

4. Berman v. Parker (1954)Facts: District of Columbia Redevelopment Act authorized an agency to acquire and assemble, by eminent domain or otherwise, real property to redevelop bad neighborhoods. Agency took by eminent domain a department store which was well-maintained, but in a bad area.Holding: This was a constitutional taking.Rationale: Legislature has the police power to determine that the community should be healthy, beautiful, well-balanced, etc. Here, Congress and its agencies took into consideration that some buildings in the neighborhoods would not be run-down, but that their taking would be beneficial for the entire neighborhood. It is not for the court to determine whether the legislature was correct. The taking was for the public purpose and reasonable to achieve the Agency’s goal of beautification.

5. Hawaii Housing Authority v. Midkiff (1984) Facts: HA was concerned that too much of its land was owned by relatively few people. Used eminent domain to take property with just compensation and sell to a larger amount of people.Issue: Can the government constitutionally take land from private citizens to sell to other private citizens?Holding: This was a constitutional taking for public use.Rationale: A legitimate use of police power. Uses the rational basis test: where the exercise of eminent domain power is rationally related to a conceivable public purpose, it is for the public good and thus constitutional. Here, the oligopoly created detriments to a normal functioning housing market.

B. Taking Through Regulation1. Penn Central Transportation v. New York City (1978)

Facts: Pursuant to a NY landmark law, a commission designated P’s terminal as a historical landmark and denied P’s request to construct a 55 story office building on the terminal. P argues that unconstitutionality of the law as applied to its terminal as an unconstitutional taking without compensation. Argued that it restricted its air rights. Also argued that those with historical landmark status were bearing all of the burden for a benefit to the entire public.Holding: This is not a taking because the building restrictions are substantially related to the promotion of the general welfare, and not only permit reasonable beneficial use of the state, but also affords other opportunities to enhance their land.Rationale: Three significant factors to determine when the injuries caused by public action require compensation:

a. the extent of the economic impactb. whether the regulation interferes with investment backed expectations.

3. the character of the government action.1) Is it a physical taking?

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2) Is it a regulating only the use of the property?The laws for the public purpose will often burden some people more than others. The NY law benefits all residents by improving the quality of life. No compensation was needed because the restriction did not interfere with the present use of the parcel. The plaintiffs were not deprived of an existing use, but future possible use of the property. For the air rights issue: the regulation did not prohibit all construction, just the 55 story building asked for (not a denial of all air rights). Further, Ps could build onto other parcels of land. This only decreased the property value, it did not deprive the property of substantially all economic use to require compensation – diminution in value does not constitute a taking.Rule: Deprivation of the most profitable use of land is not a taking.a. This air rights issue is distinguishable from Causby, where military flights above

a chicken farm were a taking when they deprived the owner of economic use of his chickens. The difference goes to the character of the government action: that was a physical invasion.

b. Court in this case speaks of the restrictions being substantially related to the promotion of the general welfare. 1) Before, we had a rational relationship test, here is a substantial one. 2) Court has been struggling to find the proper standard.

2. Andrus v. Allard (1979)Holding: Court found that the Eagle Protection Act which prohibited the sale of all eagle parts, even those already in possession, was not a taking.Rationale: The law did not eliminate all use of the property. Possession and transportation was still allowed. Did not have to surrender the artifacts, could still make money off of them by displaying, etc. a. A reduction in value is not a taking. b. Loss in future profits is also not a taking.

3. Lorretto v. Teleprompter (1982)Holding: Court found a taking in a city ordinance requiring apartment building owners to make space available for cable TV facilities.Rationale: Permanent physical occupations on land, such as installations of telephone lines, rails, and pipes are takings, even if they only take up a small space.

4. Keytone Bituminous Coal Assn v. DeBenedictis (1987)Holding: Court upheld PA law that limited coal mining to forbid mining that causes damages to structures.Rationale: Important public interests were served in protecting surface land areas. Does not make mining of certain coal commercially impractical, or deny all economically viable use of the land. All mines may still be operated for profit. No showing that the petitioner’s reasonable investment backed expectations have been materially affected by the additional duty to retain a small percentage of coal to support structures.a. PA Coal Case – the statute at issue took away the right to mine certain coal. This

interfered with investment backed expectations because these companies already had contractual commitments. Statute, importantly, had no public purpose.1. court gives deference to existing rights which are destroyed. Ex: in Penn,

there were no existing rights.

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b. Similar to zoning laws which limit the way in which a person may use his or her property and therefore have the effect of diminishing the property’s economic value. Generally, though, the courts refuse to find a taking, concluding that the regulation does not eliminate all reasonable economic viable uses of the property.

5. Nollan v. CA Coastal Commission (1987)Holding: Court found an uncompensated taking when the D forced P to grant a public easement in order to obtain a permit to build a larger beachfront house. This is because the larger house would block the view of the beach from the road. The easement would allow people to walk across P’s land to go from one public beach to another.Rationale: Applied a substantial relation test. (Chemerinsky says rationally related on page 516, also for Dolan). Unless the permit condition is substantially related to the development ban, the building restriction is not a valid regulation of the land, but an uncompensated taking. Impossible to see how the overall purpose of protecting the public’s view of the beach can be obtained by granting an easement for people already on the beach. Does not pass the substantial relationship test.Dissent: The end is to make certain that the public knows that it has access to the beach. Granting the easement will allow people from the road to see people crossing the easement and know that they have access to the beach. Also argues for the application of the rational basis test.

6. Dolan v. City of Tigard (1994)Facts: The government gave the owner of a store a permit to expand a building on the condition that the land be set aside for a public greenway along a creek to minimize flooding and a bicycle path to relieve traffic congestion.

Issue: Did the conditions of the development constitute a taking?Holding: no.Rationale: A two part test was to be applied:a. Is there a nexus between the legitimate state interest and the permit condition

created by the city? This requirement was created by Nollan. Here, there was an obvious relationship between the conditions on development and the goals in regulating. Ex: development in the area of the flood plan would increase runoff into the creek and requiring an area for flood control as a condition on development was a way to solve that problem. Also, the pedestrian and bike path was to deal with the increased traffic congestion caused by the additional development.

b. Rough Proportionality standard – to determine whether the degree of extractions demanded by permit conditions bears the required relationship to the government’s reasons for regulating. (a reasonableness test). Must be related in both nature and extent to the impact of the proposed development.

7. Lucas v. SC Coastal Council (1992)Facts: P bought two lots on the beach, but before they could build houses on them, an act prohibited the building of houses in that area. P wanted compensation for this denial.Holding: This was an uncompensated taking, and, therefore, unconstitutional.Rationale: Being deprived of all economic use is a taking which requires compensation. It is equivalent to a physical invasion. This is not a fact-specific inquiry, but once there is a permanent physical invasion, no matter how great the public interest, compensation must be paid.

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a. Use the three factors from Penn Central – here the P had investment backed expectations – bought the property with the expectation of developing it. This project was backed with substantial funds.

b. Compare to Penn where P was not deprived of all economically viable use of the land, as he was here.

9. Remedies for regulatory taking – Inverse Condemnation. Government has the option to terminate the regulation as part of the remedy it provides to people in takings cases. However, the government must still compensate for the amount of time that the regulation was in effect – First English Evangelical Lutheran Church of Glendale v. County of Los Angeles.

D. Contracts Clause – Art. I § 10.1. Used aggressively in the early part of the history. Although it is not used much today, it

is not dead (similar to privileges and immunities).2. Put in the Constitution to protect creditors from state legislation protecting debtors.

Linked to specific events related to the Revolutionary War.3. Not designed to protect freedom of contract because it only applies existing contracts, not

future contracts. 4. Does not apply to the federal government, but to the states. “No state shall…pass any …

law impairing the obligation of contracts.”a. Police power of the state allows contract interference for the general public good.b. But, there are some limits. US Trust v. NJ – legislation affecting rights of

contracting parties must be reasonable and follow a specific public purpose. Could the end be satisfied by less drastic means.

5. Blaisdell – modern era landmark case. Upheld statutes that created a moratorium on foreclosures. The test for when a state law could be struck down under the contracts clause:a. did the law in fact substantially impair a contractual relationship?b. ends/means test – court does not use rational basis, but necessary and important.

(purpose must be necessary to advance an important government interest)6. Allied Structural Steel v. Spannaus

Facts: P adopted pension that vested only when an employee worked to 15-20 years (depending on age) or at age 65. If an employee was fired or quit, there were no vested rights. MN act required employers who went out of business in MN to provide full pensions to employees who worked ten or more years. P terminated 10 employees, 9 of which who worked ten years or more, but had no vested rights in the company pension.Holding: the act substantially altered contractual commitments, and violated the contracts clause because there was no legislative purpose.Rationale: Court applied the Blaisdell test:a. This substantially impaired contract. Here, it was severe: forced recalculation of

ten years of pension rights, nullifies the express terms of the existing contracts and gives unexpected liability.

b. When there has been a substantial impairment, look to the public good of the legislation. No showing that it is necessary to address a social problem: it has a very narrow focus, there were no desperate economic conditions, and this area was never before subject to state legislation. Not even aimed at all employees.

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Importantly, there were no legislative findings to suggest a broad purpose. State could have easily used other means to get to this end.

No rational basis test, no presumption of constitutionality. The test for contracts clause cases is necessary and important. Dissent: The act was designed to remedy a serious social problem. The only ones harmed are those employers who have not adequately funded their pension plans. Necessary and important standard is too vague and gives judges too much discretion.

PROTECTION OF INDIVIDUAL RIGHTSI NATURE AND SCOPE OF THE FOURTEENTH AMENDMENT

A. Fundamental Fairness1. Primary source of the limits of governmental power with respect to individuals is the Bill

of Rights.2. Historically, the Bill of Rights applied only to the federal government, but the fourteenth

amendment applies it to the states. Two arguments of what the fourteenth amendment protects:a. total incorporation – first eight amendments are incorporated into the due process

clause. So the due process stated in the fourteenth amendment would mean the rights given by the first eight amendments.

b. selective incorporation – some of the first eight amendments are incorporated into due process. Also, due process means more than what is specifically listed in the constitution.1) this is the favored view2) Most of the protections of the Bill of Rights have been incorporated into

the fourteenth amendment by the Court. Two that have not:a) Seventh amendment right to a civil juryb) Fifth amendment right to a grand jury

3) the standard the courts have used is whether the right is fundamental to liberty within the context of our system. Ex: Duncan v. LA – although it is possible to have a fair trial without a jury in a system with other protections, it is essential to liberty to have a criminal jury trial in our system.

II PRIVACYA. Introduction

5. due process clause is not limited by enumerated rights in the Bill of Rights – this is the notion of modern substantive due process.a. Different from the Lochner era because that was the notion of economic

substantive due process. Freedom to contract was protected from government intervention.

b. Rights that are essential to liberty that are not in the Bill of Rights have been selectively identified as fundamental by the court. Decided on a case-by-case basis.

6. Fundamental rights are so essential that they are preferred and must be protected from majoritarian political process (besides those already in Bill of Rights).

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a. The test the court has designed to protect these rights is strict scrutiny. (three levels of possible scrutiny the court applies to legislation are rational basis, substantially related, and strict scrutiny)

1) State must show a compelling interest to deprive someone of these rights.2) Must be no other less-infringing means of achieving this compelling

interest. This is a very high standard that few statutes survive.7. These rights can be protected by a fundamental rights analysis (substantive due process)

or an equal protection analysis. Need to know how to analyze the same facts under both.B. Skinner v. Oklahoma (1942)

Facts: D’s habitual criminal sterilization act authorized sterilization of people convicted of three crimes of moral turpitude. Specifically excluded were white collar crimes. Petitioner was previously convicted of chicken stealing and robbery and was to be sterilized with his next robbery convicted.Holding: The OK statute runs afoul of the Equal Protection Clause.Rationale: Strict scrutiny is required because this legislation runs afoul of one of the basic rights of man, the right to procreate. This law is discriminating against blue collar crimes when similar white collar crimes such as embezzlement are exempt.Concur: This is a substantive due process issue. D was not given a hearing to determine whether his criminal tendencies were inheritable.1. So, the right to procreate is fundamental.2. Court was rejecting sterilization as a punishment, but the way the state did it.

C. Griswold v. ConnecticutFacts: Two people from Planned Parenthood were arrested for giving advice to married persons regarding contraception. The statute at issue prohibited contraception and made it a criminal offense to counsel anyone regarding contraception.Holding: The statute violated due process. Frames the issue as one of marital privacy.Rationale: The court tried to find a textual basis for the right to privacy. While association is not expressly included in the first amendment, it had previously protected such rights as parents’ being able to send their kids to public school. The first, third, fourth, and fifth amendments create zones of privacy – penumbras of privacy. Ninth amendment provides for other rights not specifically enumerated. Such a law cannot stand in light of the principle that a governmental purpose cannot be so broad as to invade protected freedoms.Goldberg Concur: The anti-contraception law is not even rationally related to the state’s interest to discourage extra-marital relations. The means were not even rationally related to the end. There were less-intrusive means available.Harlan Concur: Did not have to go through the penumbra analysis because fundamental rights other than those in the Bill of Rights are protected by the fourteenth amendment.Dissents: Ninth amendment is only applied to the federal government. Not made applicable to the sates through the fourteenth amendment. If a right is not enumerated, the court cannot create it. Also, if the people don’t like the law, should try to get the legislature to repeal it.1. So, there is federal right to privacy relating to contraception.2. Eisenstat v. Baird – court extended Griswold to non-married persons. Though Griswold

turned on marital privacy, marital privacy is really about two individuals with their own rights to privacy.

D. Roe v. Wade

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Facts: Roe, an unmarried pregnant woman, challenged the TX abortion laws which made abortion illegal except for the purpose of saving the mother’s life. Parallel GA statute involved in Doe v. Bolton.Holding: The statute unconstitutionally interferes with the right to privacy. Rationale: The first step is recognizing that the right to privacy is a fundamental right. The court finds this right through the fourteenth amendment. Next, the court must see if the infringement passes strict scrutiny (compelling state interest). State does have an interest in (a) protecting women’s health and (b) protecting the potentiality of life. Must determine at what point during the pregnancy the state interest becomes compelling enough to allow regulation (when contrasted with the mother’s interest in privacy).

The compelling interest to the mother in privacy is present during the first trimester – no state interest. The court balanced the risk of pregnancy against the risk of abortion. The risk of pregnancy in the first trimester is greater than the risk of abortion.

After the first trimester, the state may regulate the procedure in the interest in maternal health because the risk of the abortion to the mother is increased.

The state’s compelling interest to potential life is at viability (where the fetus is capable of living outside of the mother’s body). State also has a compelling interest in the health of the mother at this point. State may regulate any aspect after this. May ban abortion after viability if the woman’s health is not in danger.1. Excerpt from the oral arguments highlights the issue of whether the fetus is a

person subject to constitutional protections. The court decides not to make that determination.

2. Dissent felt that the right of privacy was an unfounded right. No textual basis in the constitution. There is no substantive due process. Court’s invalidation of first trimester restrictions is judiciary legislating.

E. Planned Parenthood of S.E. PA v. CaseyFacts: PA Abortion Control Act required the following things in order for a woman to get an abortion:1. Informed consent provision:

a. Woman had to receive information about the procedureb. Woman had to wait twenty-four hours after receiving the information before

getting the abortion.2. Minors had to get parental consent (but it contained a judicial bypass provision)3. Married women had to inform husbands of their intent.4. Reporting requirements for facilities that performed the abortions.Issue: Was the PA statute unconstitutional on its face in light of Roe?Holding: The statute was constitutional except for the spousal consent provision.Rationale: Court began its analysis by affirming its central holding in Roe. The central holding had three parts:1. The right of a woman to choose abortion before viability without undue interference from

the state.2. State’s power to restrict abortions after viability if the woman’s health is not in danger.3. State has a legitimate interest in protecting the health of women and the life of the fetus

from the outset of the pregnancy. a. Court reassesses the state’s interest and rejects the trimester framework. Now the

state can regulate abortion from conception

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b. Thus, the Casey court interpreted the third part of Roe’s central holding differently.

Goes into a discussion of stare decisis. Sets the standard to apply when overruling precedent: look to changes in the factual predicate for the decision, whether it is unworkable - Roe is not unworkable, but the trimester system can be overruled because of medical advances which have changed the risks of abortion, pregnancy, and changed the point of viability. Also, has the rule been relied on to the extent that it would be unjust to change it? Women in society have been dependent on this decision. Court addresses the pressure to overturn Roe – this is not a sufficient reason to overturn a decision. Next addresses the development of post-Roe case law. Two lines of cases, neither of which has undermined the right Roe found in the fourteenth amendment:1. Griswold and its line of cases protect marital privacy and sexual intimacy.2. Cruzan and its line deal with personal autonomy and the right to make decisions

regarding medical treatment. If the state could prohibit abortion, could also begin population control.

Court announces a new standard: the undue burden standard. A state cannot place an undue burden on a woman’s right to obtain an abortion before viability. Applying to the provisions of the statute:1. Informed consent – not an undue burden. The state can promote a pro-life policy to try to

limit abortion because of its interest in promoting childbirth from conception (can make obtaining an abortion more difficult or costly). This makes women more aware of the consequences. Would, however, be an inconvenience to many rural women who must make two trips because of the waiting period; but, a burden to some does not invalidate the provision.

a. This is a significant change in the law! Other cases had struck down such requirements on the basis of Roe’s trimester system.

2. Parental consent – the judicial bypass provision saved this requirement from being an undue burden. If the kid cannot get the consent, the court can give a decree stating that they do not need the consent.

3. Spousal consent – this was an undue burden in light of the terrible consequences for the millions of abused women. In these cases, the spousal consent requirement would act as prevention. Different from minors because they can have more restrictions under the fourteenth amendment.

Rehnquist Dissent: The undue burden standard is an unjustified constitutional compromise that allows the court to closely scrutinize all types of abortion regulations without the constitutional authority to do so. Abortion involves the purposeful termination of potential life and is thus different from the other areas of privacy like procreation and contraception. There is no deeply rooted tradition of abortion freedom in our country due to the many prohibitions that have existed since the adoption of the fourteenth amendment. The correct standard should be that states may regulate abortion procedures in ways rationally related to a legitimate state interest. Thus, the act should be upheld in its entirety.Scalia Dissent: a legislative decision whether to permit abortion on demand. Abortion is not a liberty protected by the Constitution because the Constitution says nothing about it, and longstanding American traditions have allowed its prohibition.

F. Stenberg v. Carhart (2000)Facts: Statute prohibited partial birth abortion where a substantial portion of the fetus is pulled through the vagina, except where the mother’s life was in danger. This still deals with a

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nonviable fetus. The statute’s plain language prohibited a gruesome partial birth abortion where the baby is vaginally delivered and the head is crushed, D&X (what the state intended to prohibit) but also the traditional method of abortion, D&E, where a limb is pulled into the vagina.Holding: the statute was unconstitutional.Rationale: Two reasons why this is unconstitutional:1. It lacks any exception for the preservation of the woman’s health. These regulations

force women to use riskier abortions. One type will not always be the safest, and, according to a body of medical knowledge, the prohibited types will often be the safest, yet the statute contains no provision to allow this.

2. It unduly burdens a woman’s right to choose abortion. Statute imposes an undue burden because it applies to D&X and the common D&E. Does not matter if the basic aim of the statute is only at D&X, because the plain language bans both. The state could design a constitutional statute by clearly prohibiting only the D&X procedure.

Rule: The statute requires a health exception where substantial medical authority supports the proposition that banning a procedure could endanger a woman’s health. Dissent: Upholding the horrendous D&X procedure shows how arbitrary the undue burden standard is.

G. The “Right to Die”1. In these cases, the way the judge frames the issue can determine the outcome of the case. 2. also, statutes can be challenged facially (unconstitutional as a whole) or unconstitutional

as applied.a. Framing the issue broadly is usually for a facial challenge.b. framing the issue specifically is usually for an as applied challenge.

3. Cruzan v. MO Dept. of Health (1990)Facts: P had been in a persistent vegetative condition for seven years, due to a car accident. Had motor reflexes, but no cognitive function. Could be kept alive through life support for thirty more years. Her parents sought to discontinue the tubal feeding when it became obvious that she had no chance of regaining cognitive facilities. P had told friends that she would not want to live as a vegetable or in a limited capacity. A MO statute required, in the absence of a living will, that the patient’s statements of intent be clear and convincing.Issue: Was the clear and convincing standard in the absence of a living will an unconstitutional infringement of the right to die?Holding: the evidentiary standard was not an unconstitutional infringement on the patient’s fundamental rights.Rationale: a competent person would have this right to refuse treatment. Must balance P’s liberty interest against the relevant state interests. There is a high state interest in the preservation of human life. MO can legitimately seek to enforce this with a heightened scrutiny requirement. This is the safest route because:a. not all incompetents have someone to make this decision for themb. family members will often make the wrong decisionsc. state can have a judiciary hearing to make the determinationd. state does not have to make value judgments about the quality of life. Better to

err on the side of keeping people alive, considering the factors such as medical advances and changes in the law.

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O’Conner Concur: narrow holding. Incursions into the body are repugnant under due process. Forcing medical treatment on someone is repugnant to liberty. Also, letting someone else make the decision is permissible under the constitution.Scalia Concur: a legislative determination. Common law would not have allowed this and there is no constitutional basis.Brennan Dissent: this is a fundamental right. The state’s interest is very general and the P’s particular and intense. MO should only impose procedural requirements to make an adequate determination of the person’s intent because living wills are seldom done, and family and friends may have a better idea of the intent. This is a compelling interest test. The state’s only interest is finding the patients’ true intent.a. This case defines the issue as whether the right to suicide is protected under the

constitution? The court held that it was not.b. the types of statements that would be clear and convincing evidence under the

statute would have been those specifically addressing the situation she was in.c. Clear and convincing standard is ok to determine the patient’s intent.

4. Washington v. Glucksberg (1997)Based on a fundamental rights(due process) analysis.Facts: Respondents, four physicians who want to assist the terminally ill in ending their lives, and Compassion for Dying, a counseling group for the terminally ill seek a declaration that Washington’s statute is, on its face, unconstitutional; they asserted a liberty interest protected by the 14th Amendment which extends to a personal choice by a mentally competent, terminally ill adult to engage in physician-assisted suicide.The physicians claim that the liberty interest they assert is consistent with the Ct.’s substantive due process progeny (Cruzan and Casey), if not with the nation’s practice. They assert that the line of cases establishes a liberty of “basic and intimate exercises of personal autonomy.”Issue: Whether Washington's prohibition against causing or aiding a suicide offends the Fourteenth Amendment to the United States Constitution. Whether the protections of the Due Process Clause include a right to commit suicide with another’s assistance?Holding: It does not. The asserted “right” to assistance in committing suicide is not a fundamental liberty interest protected by the Due Process Clause. The challenged statute does not violate the 14th Amendment, either on its face or as applied to competent, terminally ill adults who wish to hasten their deaths by obtaining medication prescribed by their doctors.Rationale: The laws of these United States have consistently condemned, and continue to prohibit, assisting suicide. “[A] consistent and almost universal tradition that has long rejected the asserted right, and continues explicitly to reject it today, even for terminally ill, mentally competent adults.” Due Process guarantees more than fair process, and the liberty it protects includes more than the absence of physical restraint.a. Due Process Analysis: Is the right to die a fundamental right and liberty which is

objectively “deeply rooted” in this nation’s history and tradition, thereby deserving protection under the due process clause?2. What is the right to die?

b. Washington’s state interests:1) Washington has an unqualified interest in the preservation of human life.

Cruzan.

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2) Washington has an interest in treating suicide, a serious public health problem, especially among persons in otherwise vulnerable groups.

3) Washington has an interest in protecting the integrity and ethics of the medical profession. Physician-assisted suicide could undermine the trust that is essential to the doctor-patient relationship.

4) Washington has an interest in protecting vulnerable groups-including the poor, the elderly, and disabled persons-from abuse, neglect, and mistakes; which extends beyond protecting them from coercion to protecting them from prejudices, negative and inaccurate stereotypes, and societal indifference.

5) Washington has an interest in preventing the erosion of societal mores. The state may fear that permitting assisted suicide will start it down the path to voluntary and perhaps even involuntary euthanasia.

Rationale-basis: The state’s interests are unquestionably important and legitimate, and Washington’s ban on assisted suicide is at least reasonably related to their promotion and protection.

5. Vacco v. Quill – equal protection claim was brought here: state allowed withdrawal of life support but not physician assisted suicide. The argument was that the classification treats similarly situated people differently. In an equal protection case, always: a. Define the class

1) Court holds that dying people are not a suspect class. This will involve the entire population at some point

b. Determine whether it is a fundamental right being burdened.2) The right to die is not a fundamental right, so the statute does not have to

undergo strict scrutiny, just rational basis. Ends/means analysis: the ends are the state interest. The means are the classification itself. Is the classification reasonably related to the state’s interest. (Strict scrutiny requires asking whether the classification is necessarily related.) Court discussed two aspects or legal issues that justified the decision: a. intent and

1) if you withdraw life support, you are not necessarily intending the death as is the case with assisted suicide.

b. causation. 1) if you withdraw life support, it is not the withdrawal that causes the patient

to die, it is the underlying disease. If you give someone a lethal dose of drugs in an assisted suicide, it is this that is killing the patient.

III. DISCRIMINATIONA. Source of Equal protection clause is the 14th amendment – applies only to the states. Federal

government is under the 5th amendment due process clause.1. Bolling v. Sharpe – equal protection as a principle is a component of due process. Due

process of laws includes equal treatment.2. Early equal protection cases dealt with economic issues.3. All laws discriminate by making classes of people. Subject to rational basis test and

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presumption of constitutionality. But, with certain types of distinctions, a closer judicial scrutiny is necessary because we cannot trust the legislative judgment to be fair. (the classes of people that they are making.)

B. Equal Protection Analysis:1. What is the classification/distinction that the legislature is drawing?2. What level of scrutiny is applied?

a. strict scrutiny for race, national origin, alienageb. intermediate scrutiny for gender and illegitimacy.c. rational basis for everything else like age, wealth, etc.

3. Does the classification satisfy the required level of scrutiny?a. Steps to go about determining this:

1) what is the government interest?2) Is it (depending on the level):

a) legitimateb) importantc) compelling?

3) does the distinction the government is drawing either:a) Reasonably (rational basis)b) substantially (intermediate) or c) necessarily (strict) promote the government interest.?

b. Reasons to apply heightened scrutiny:1) is this an immutable characteristic (unchangeable by will)?2) ability of the group to protect itself in the political process?3) is the distinction the result of a fair, democratic political process?4) History of discrimination against the group. This goes to the likelihood

that the classification reflects prejudice.c. Once it has been determined that strict or intermediate scrutiny apply, the

government has the burden to prove that the test is satisfied.C. Race

1. Framers were participators in and protectors of slavery. a. Article I § 2 – the 3/5 clause. Slaves were counted for taxation and representation

purposes as 3/5 of a person.b. Article I § 9 – prohibition on government from banning importation of slavery until

1808.c. Article V – protected the amending of these articles.d. Article IV § 2 – requires states to return escaped slaves.

2. Dred Scott v. Samford (1857) – declared the MO Compromise unconstitutional as interfering with property rights under the 5th amendment. The Compromise dealt with admission of new states divided between slave states and free states. Court held that a slave could not invoke diversity jurisdiction because blacks had no rights under the Constitution – they were not citizens, but property. a. first substantive due process caseb. the 14th amendment was motivated by this case and things like black codes.

3. Stauder v. WV (1880) Facts: State murder conviction of an African American was challenged because a statute forbade blacks from serving on juries.

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Holding: Court invalidated the conviction because of the discriminatory law.Rationale: Spirit of the Civil war amendments was to secure to blacks enjoyment of all civil rights enjoyed by whites. Right to exemption from discriminatory legislation is in the amendments.

4. Korematsu v. US (1944) - first case to apply strict scrutiny to race.Facts: P, an American citizen of Japanese descent, was convicted for remaining in a military area contrary to an order that all Japanese people should be excluded from that area.Holding: this law was in the war power.Rationale: legal restrictions on rights of a racial group are subject to the most rigid scrutiny. Public necessity is a basis for this law, not racial antagonism. Findings of the legislature showed the many disloyal Japanese people. Based on gravest imminent danger to the public. The war making branches of government found the law to be a proper and adequate measure to guard the national defense. Rule: In times of direst national emergency, groups of citizens may undergo restrictions for the public welfare. Murphy Dissent: the measure must be based on an assumption that all people of this ancestry have tendency for sabotage. A military judgment based on racial considerations should not be given the usual great weight. Jackson Dissent: should not question the accuracy of the order because it is unconstitutional. A military order only lasts during wartime, but the court’s sanction of it will last forever as precedent.

5. Plessy v. Ferguson (1896)Facts: LA law required that RR passenger cars have separate but equal accommodations for white and colored passengers. P was arrested in refusing to vacate a seat for whites. Involves two claims: under the 13th amendment and under the fourteenth amendment.Holding: This law does not conflict with the 13th amendment or 14th amendment.Rationale: 13th: this freed the slaves. Has been interpreted to prohibit conditions related to having been a slave or a descendant of one. This, according to the court, is not related to slavery.14th: involves: 1) a reasonable action for public good is valid under the state’s use of police power. This is shown with things like separate schools and interracial marriage bans. Every exercise of police power must be reasonable and extend only to laws for the promotion of public good, not oppression. 2) purpose is to promote equality before the law. Here, this was only separating people, not treating them unequally. 3) purpose is not to promote co-mingling. This is an issue of association. State does not have to abolish all color-based distinctions.Harlan dissent: Origin of statute was to exclude blacks. The fundamental objective is that it interferes with personal freedoms. The thin disguise of equal accommodation is not sufficient.

6. Brown v. Bd of Education (1954)Facts: Blacks sought admission to schools on a non-segregated basis.Issue: is the separate but equal doctrine unconstitutional by depriving P’s of equal protection?Holding: yes.

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Rationale: Because the schools are equal in facilities, the court looked to the effect of segregation itself on public education. Don’t look to history, but to present conditions. Stressed the fundamental importance of education, must be made available on equal terms. To separate the black children gives them feelings of inferiority which are irreversible. In education, separate but equal has no place. Separate schools are inherently unequal. Manner of Relief: courts must require Ds to make showing of prompt and reasonable start toward compliance, once there has been such a showing, the court may grant extra time. The “all deliberate speed test.” So, relief was not granted to the parties to the case.a. Compare to Griswold – reached the right outcome by convoluted reasoning.

Woods believes that the court erred when it did not hold that the intent of the 14th amendment be contrary to segregation in public schools. There were no public schools when the 14th amendment was drafted.

b. Could have said that this would be part of full citizenship.c. courts allowed the Ds to take a considerable amount of time to remedy the

situations.7. Loving v. VA (1967)

Facts: Ps, a black woman and a white man were married in DC, moved back to VA, and were arrested under the state statute prohibiting interracial marriage.Issue: Was the VA scheme of preventing marriage between people solely on the basis of race a violation of the 14th amendment?Holding: Yes, violates the equal protection clause.Rationale: alleged state interest was to preserve racial integrity. It is not enough under the 14th that all races are punished the same. Clear purpose of the 14th was to eliminate all official state sources of racial discrimination. Applied strict scrutiny. Must be shown to be necessary to the accomplishment of some permissible state objective. There is none here, this is white supremacy because only whites are punished

D. De Jure v. De Facto Discrimination. De jure – law neutral on its face discriminates in effect. Burdens one class differently. With de jure discrimination, you do not immediately go into a strict scrutiny analysis.1. Yick-Wo v. Hopkins (1886)

Facts: ordinance made it a crime to operate a laundry in a building not made of stone or brick. P was a Chinese man who was denied a license. 320 laundries were in the city – 240 were Chinese owned. 310 were wooden. No non-Chinese were arrested in violation.Holding: Whatever was the ordinance’s intent, it was discriminatory as applied. Amounts to a practical denial of equal protection. No compelling reason for the discrimination was shown.

2. Procedural consequence seen in Castaneda v. Partida – prima facie case of discriminatory purpose in neutral statute. Must show a discriminatory effect. Statistical evidence was so overwhelming that it suggested a discriminatory intent. Burden shifts to government to rebut by showing a non-discriminatory purpose.

3. Washington v. Davis (1976)Facts: test for police recruits had to satisfy certain physical, character standards, have a high school diploma, and receive a certain grade on a test developed by the civil service commission. The test was used throughout the federal government. Designed to test verbal ability, vocabulary, reading comprehension. Four times as many blacks failed.

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Issue: Was the test discriminatorily slanted toward whites?Holding: No, a statute is not unconstitutional solely because of a disproportionate impact. Rationale: The essential element between de jure and de facto discrimination is purpose or intent to segregate. A discriminatory purpose may be inferred from totality of facts, including that the law bears heavily on one race. But, the court has not held a neutral law that serves ends within the power of the government to pursue is invalid under the equal protection clause simply because it affects one race more than another. Disparate impact alone does not invoke strict scrutiny. As applied, the test does not prevent the government from upgrading the standards of its employees. Also, no discriminatory purpose was found. The test is neutral on its face and serves a legitimate government purpose.a. Once it is determined that strict scrutiny does not apply, goes to the next level of

analysis, rational basis. b. Does not end the inquiry if strict scrutiny is not warranted.c. This case really establishes discriminatory purpose as a basis for de jure

discrimination cases.4. Mayor of Philadelphia v. Educational Equality League, Batson v. KY, and McKlesky v.

Kemp - these cases require the statistical evidence to be such that it makes out a prima facie case of discriminatory purpose. Must be overwhelming.

5. Arlington Heights v. Metropolitan Housing Dev. Corp. (1977)Facts: an area was already zoned for residential single family housing. Tried to rezone for a multiple family housing which would be integrated.Holding: this was not unconstitutional discrimination.Rationale: Court elaborated on how to determine discriminatory intent or purpose. (Most legislators don’t say that their reasons are discriminatory):a. historical background, especially if it shows a series of questionable official

action.b. Sequence of events leading up to the decision.c. Departure from procedure or substance (ex: normal factors not taken into

account)d. Administrative historyFacts here that would have suggested discriminatory intent:a. changing zoning to single family to avoid the integrated housing.b. Making it harder to get multi-family rezoningc. Legislative reports, minutes, could have been statements made at a meeting.None of the these existed here, so a prima facie case was not presented. Also, zoning is strongly in the police power.a. Personnel Administrator v. Feeney – same standard with regard to discriminatory

purpose applies in a sex discrimination case.6. Mobile v. Bolden – Marshall’s dissent: difference may be appropriate where a

government is giving gratuities. (Gratuities meaning things like being a police officer that you don’t have a right to). But, for things like voting, a fundamental right, you need to show a discriminatory purpose.

7. Memphis v. Greene – white community existed where they put a gate on the street between it and a black community. Although this benefited the white property, it did not

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detract from the black property. No state burden because this is rational basis standard. This is within safety and police power.

8. In selective prosecution cases, need to show that similarly situated members were not prosecuted.

E. Gender Discrimination1. Recent area of jurisprudence stemming from the 1970s.

a. prior to this time, the courts used the rational basis test and upheld most statutes discriminating against women on basis of the “rule of the creator” – women were to be mothers and wives.

b. First case to strike down a statute on the basis of gender discrimination as violating equal protection was Reed v. Reed (1971) – legal presumption that women would not be appropriate administrators of an estate. Court found that this arbitrary legislative choice was forbidden by equal protection. Used a rational basis test, but stricter.

c. Frontiero v. Richardson (1973)Facts: presumption that wives of service men were dependent, but service women had to affirmatively prove that their husbands were dependent. Holding: The statute was invalid under the equal protection clause.Rationale: Used a higher test than rational basis. Classifications based on sex are inherently suspect and thus, must be subjected to a stricter scrutiny. 1) Classifications based on gender are suspect because:

a) immutability i. Could not changeii. immutable characteristic alone will not trigger heightened

scrutiny.b) history of discriminationc) stereotypes – partial basis for the history of discriminationd) no relationship to ability

i. this is important because there are sometimes characteristics with a reasonable basis for making distinctions.

ii. Ex: mental retardationd. Court analogizes women and slaves because their positions were similar

1) 14th amendment designed to protect slaves, but did not mention women.2) Court determined that the 14th amendment also protected women. A

constitutional basis. 2. Craig v. Boren (1976)

Facts: OK statute prohibited sale of non-intoxicating beer to males under 21 and to women under 18.Holding: This gender based differential did constitute a denial of equal protection to males.Rationale: Applied intermediate scrutiny. Must serve an Important government objective and must be substantially related to achieving these objectives. Although the protection of safety and public health are important goals, the relationship between gender and traffic safety is far too insignificant to satisfy the intermediate level of

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scrutiny. Further, although women could be trusted over men to drink beer, the statute prevented the sale, but not the use of beer.Dissent: whole point of equal protection is to protect women, not men.

3. Dothard v. Rawlinson (1977)- court upheld a state statute that prohibited women from being prison guards in an all male prison. Three reasons:a. Women’s ability to maintain order in jail is reduced by her womanhoodb. Sex offenders tempted to rape herc. Nonsex offenders tempted to rape her.

4. Michael M. v. Superior Court (1981)Facts: CA statutory rape law punished men, but not women, for having sex with underage people.Holding: The statute survived the 14th amendment equal protection claim.Rationale: important state concern here: to prevent teenage pregnancy. The means to get to the end are the classification itself. State has the burden. If you punish women as well as men, the women would not report their own pregnancies.Dissent: does not make sense not to prosecute females. We are trying to prevent sex with minors.

5. Rostker v. Goldberg (1981)Facts: Provision requiring males to register for the selective service but not females was challenged under equal protection.Holding: The classification (means) is substantially related to the state interest (ends) of raising and supporting armies.Rationale: women are statutorily excluded from combat, so exempting women from registration is closely related to Congress’s purpose. Staffing non-combat positions with women during a mobilization would be detrimental to military flexibility.

6. Geduldwig v. Aiello (1974)Holding: court upheld a CA statute that excludes disability that accompanies pregnancy and childbirth from CA disability insurance. Rationale: This is not a gender based problem, butt is classification based on pregnancy, so use rational basis test, not intermediate scrutiny. Does not exclude anyone because of gender because both men and nonpregnant women can collect. The pregnancy distinctions are not designed to effect invidious discrimination.a. Cases of discrimination against unmarried fathers.

1) under the test applicable to statutes that discriminate on the basis of gender, is the state warranted in presuming that unmarried mothers do, but unmarried fathers do not, enjoy a relationship with their children that justifies their exercise of distinctive powers and distinctive rights?

2) Argument against: women accept unshakable responsibility for the child, stereotype of male irresponsibility when it comes to children, may be based on social norms rather than biology. But, court can give presumption that women should decide what is in the child’s best interest.

3) A more wise approach may be a case by case analysis.7. JEB v. AL (1994)

Holding: State’s action in excluding men from a jury violated equal protectionRationale: This classification did not further the state’s legitimate interest of achieving a fair and impartial trial. Discrimination by litigants on the basis of gender during jury

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selection invites cynicism respecting the jury’s neutrality and its obligation to adhere to the law. a. Parties may still remove jurors whom they feel might be biased, but gender

simply may not serve as a proxy for bias.b. this is benign compensatory remedial discrimination.

8. US v. VA (1996)Holding: first phase of case found that VA violated equal protection by not letting women into the men’s military academy. VA had to create a female counterpart of the VMI. Rationale: VA had the burden that there is a justification for the discrimination, but did not meet the exceedingly persuasive justification that a state involved in defending gender discrimination must show. VA’s plan did not pass the requirements of the USSC.

9. MS Univ. for Women v. Hogan (1982)Holding: Court invalidated a statute that denied admission to men to an all woman Rationale: the state claimed that the statute’s objective was to make up for past discrimination of women. Yet, women were never discriminated against or lacked opportunities in nursing within the state. The state, therefore, failed to establish that the alleged objective is the actual purpose underlying the discriminatory classification. There was no evidence of discrimination against women who were nurses.

F. Alienage1. status of not being a citizen, but a resident. 2. for most of our history, this was not a suspect classification

a. Up until the late 1940’s, the court found a special public interest in rejecting challenges to state discriminations against aliens respecting such activities as land ownership.

3. governmental process exception – where there is an interest in the classification of aliens.Clearly a state can prohibit non-citizens from things like voting or holding elected office.

4. Graham v. Richardson (1971)– aliens are a discrete and insular minority. Apply strict scrutiny.

5. In these cases:a. Determine the level of scrutinyb. Then go to whether it is within the government function exception.

1) if it is not within this exception, apply strict scrutiny3) if it is within this exception, apply rational basis.

6. Sugarman v. Dougall (1973)Facts: NY law required citizenship as a condition of public employment subject to competitive examination. This covered any civil service job. People who have no input in policy making.Holding: the statute unconstitutionally discriminated against aliens.Rationale: state has interest in establishing who can participate in government and the broad concept of political community. But, the means to achieve this end must be precisely drawn. This statute is very broad. The restriction sweeps indiscriminately. Rule: State can, in an appropriately defined class of positions, require citizenship as a qualification for office.

7. Ambach v. Norwick (1979)

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Issue: May a state, consistently with the Equal Protection Clause, refuse to employ as elementary and secondary school teachers aliens who are eligible for citizenship but who refuse to seek naturalization?Holding: Yes, because teaching in public schools constitutes a government function, where there is wider latitude in limiting the participation of non-citizens.Rationale: in determining whether teaching in a public school constitutes a government function, look to the role of public education and the degree of responsibility and discretion teachers possess in fulfilling that role. Important role of public school teachers who have much discretion in influencing the attitudes of students toward government. Must now consider whether the statute bears a rational relationship to the state’s interest in furthering educational goals. The statute is carefully framed to serve its purpose because it only bars people who refuse to obtain citizenship.Dissent: the NY law is irrational. Don’t dispute that this is a government function. It is for the state to determine what teachers are qualified. No rational relationship between teaching and alienage. a. This case stands for the statement of the role of education as a government

function.b. Because it was a government function, the court applied rational basis.c. So, cannot exclude aliens from things like civil service jobs, practicing law,

receiving an education, becoming a notary public.1) contradiction because an attorney is as close to government and policy

making as you can get.G. Equal Protection v. Fundamental Rights – two distinct methods of analysis to apply to a fact

pattern.1. An equal protection claim is the traditional basis for analysis. Use rational basis unless

either:a. a suspect classification – it itself divides people who are deemed suspect, orb. infringes on a fundamental right.

2. These analyses can be used separate or together, but it is important to distinguish between the two.a. Classic example of a case decided on both equal protection and fundamental

rights analyses is Skinner.b. Always show the suspect class as the court has found. Use only these suspect

classes. (race, gender, alienage)H. Voting

1. A fundamental right. a. Nothing in the Constitution grants the right to vote. The voting amendments deal

only with discrimination in voting. b. Court has held that, if a right is granted, it must be granted to everyone equally.

2. Fortson v. Morris – there is no federal constitutional provision which either expressly or impliedly dictates the method a state must use to select its governor.

3. Carrington v. Rash – fencing out from the franchise a sector of the population because of the way they may vote is unconstitutional.

4. Harper v. VA Bd of Elec. – held that VA’s $1.50 poll tax to vote was an invidious discrimination. Although the right to vote in state elections is not expressly in the constitution, once the franchise is granted, lines may not be drawn which violate equal

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protection. Yick Wo recognized the fundamental nature of voting. Wealth is a capricious and irrelevant factor.

5. Kramer v. Union Free Sch. Dist (1969) Facts: NY statute provided that certain school district residents may vote if: they own or lease real property in the district, or are parents who have children enrolled in public schoolHolding: the statute deprived eligible voters of equal protection.Rationale: court must determine whether the exclusion of certain voters is necessary to promote a compelling state interest. There is no presumption of constitutionality. The state’s purpose is to limit the voting to those primarily interested in school affairs. But, this restriction is not tailored as necessary to achieve the goal. This law excludes many people with a great interest.a. not a suspect classificationb. but, affects a fundamental right, so strict scrutiny is applied.

6. Shaw v. RenoFacts: When NC got a new congressional seat after the 1990 census, the Attorney General objected to the one majority black congressional district, pursuant to the Voting Rights Act of 1965. In response, the General Assembly passed new legislation creating a second majority black district. Issue: does the revised plan, consisting of dramatically irregular shape constitute an unconstitutional racial gerrymander?Holding: Yes, appellants have stated a claim upon which relief can be granted under the Equal Protection Clause.Rationale: Once a racial gerrymander is established, it should receive strict scrutiny under the Equal Protection Clause. Gerrymandering has problems: reinforces perception that members of one group will vote the same, and sends a message to the elected representatives to try to conform to the views of this group and not the entire constituency. For these reasons, a P challenging a reapportionment statute under the Equal Protection Clause may state a claim by alleging 1) that the facially neutral legislation rationally cannot be understood as anything other than an effort to separate voters into different districts on the basis of race and 2) that the separation lacks sufficient justification. Look to traditional districting procedures such as 1) compactness, 2) contiguity, and 3) respect for political subdivisions because they are objective factors that may serve to defeat a claim that a district has been gerrymandered on racial lines. (these would render a plan valid, regardless of the reason it is drawn) Rule: Race-based districting demands close judicial scrutiny.White Dissent: would dismiss the P’s claim. Facts mirror those of UJO which held that members of the white majority could not plausibly argue that their influence over the political process had been cancelled by redistricting. The issue should be whether the classification based on race discriminates against anyone by denying equal access to the political process. The state’s intent of responding to the Attorney General’s objections by improving the minority’s prospects does not constitute a discriminatory purpose under the Equal Protection clause because it does not aggravate the unequal distribution of electoral power. The oddly shaped districts prove nothing – diverts attention from the political realities. Additionally, the state’s compliance with the Voting Rights Act is

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clearly a compelling interest. Further, the redistricting was precisely tailored as is required to meet the law.Stevens Dissent: Equal protection clause is violated when the state creates district boundaries for the purpose of making it more difficult for members of a minority group to win an election.Souter Dissent: Unlike other uses of race, districting decisions nearly always require some consideration of race for legitimate reasons where there is a racially mixed population. Also distinguishable because most other government decisions using race criteria use it to the advantage of one race at the expense of another.a. this is similar to gender cases where the problem is designed as stereotyping. We

are assuming a commonality of interest based on race, and this is unconstitutional.b. The injury is defined as color-based stereotyping.c. Apply strict scrutiny because, on its face, the drawing of the district cannot be

explained any other way.I. Travel – interstate travel.

1. Shapiro v. Thompson (1969)Facts: Three appeals from federal courts holding unconstitutional statutes denying welfare to residents who have not resided within their jurisdictions for a least one year.Holding: These statutes deny equal protection because the classification does not promote a compelling state interest.Rationale: this creates two classes of similarly situated people based upon the time they have lived in the state. The state’s purpose of inhibiting migration by needy persons into the state is constitutionally impermissible, no matter the reasons why the person desires entry. All citizens must be free to travel throughout states uninhibited by any statutes, rules, or regulations that burden this movement. Rule: People have a constitutional right to move from state to state, and any classification which serves to penalize the exercise of this right is unconstitutional unless it can be shown to serve a compelling government interest.a. Strict scrutiny requires the means to be necessary to the legitimate government

interest. Meaning, there is no other way we can do this.1) in this case, it was not even a legitimate government interest!

b. this is not a suspect classc. but it is a fundamental right of travel, and this is why we apply strict scrutiny.

2. Saenz v. Roe (1999)Facts: CA passed a bill limiting the maximum welfare benefits available to newly arrived residents. The bill limits the amount payable to a family that has resided in the state for less than a year to the amount payable by the state where the family previously lived.Holding: the statute was unconstitutional because the fiscal savings could have occurred through less discriminatory means. Rationale: three components of the right to travel:a. to enter and leaveb. to be treated like citizens of the statec. to be treated as a welcome visitorthis case does not analyze the right to travel under equal protection. It uses the privileges and immunities clauses under article IV and amendment 14th. Differences between the

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two: article IV is for discrimination by a state against non-residents. The fourteenth amendment is for distinctions among residents. Ex: non-citizens cannot extend college. This would involve article IV nonresidents. Ex: can’t go to college unless you live in state for one year. This is 14th because it discriminates between residents. There were less discriminatory means of accomplishing this fiscal goal.Rule: prohibits states from treating their own citizens differently with regard to privileges and immunities. a. this case applies strict scrutiny like Shapiro.

J. Welfare1. Dandridge v. Williams (1970)

Holding: MD’s Aid to Families with Dependent Children program, which gave most eligible families their computed standard of need but imposed a maximum limitation on the total amount any family could receive, did not violate equal protection.Rationale: This is state regulation in the social and economic field, not affecting freedoms granted by the Bill of Rights. It is challenged only because the regulation results in some disparity in grants of welfare payments to the largest families. In this area, the state does not violate equal protection merely because the classifications are imperfect. It is enough that the state’s action be rationally based and free from invidious discrimination.Marshall Dissent: the only distinction is between the size of the families, when the statute purports to assist all needy dependent children. The Mere Rationality test used by the court is for business interests. Concentration must be based on character of the classification and the relative importance to individuals in the class. There is also no compelling state interest.

K. ACCESS TO THE COURTS1. Griffen v. IL (1956) – a state must furnish an indigent criminal D with a free trial

transcript necessary for an adequate and effective appellate review of the conviction. Both equal protection and due process emphasize that in criminal trials, a state cannot discriminate. The ability to pay advance fees is not relative to the D’s guilt or innocence and cannot be used to deprive of a fair trial.

2. Douglas v. CA (1963) – a state must appoint counsel for an indigent for the first appeal granted as a matter of statutory right from a criminal conviction. Where the merits of the one and only appeal an indigent has as of right are decided without benefit of counsel, an unconstitutional line is drawn between rich and poor.

3. Ross v. Moffitt (1974) – Douglas does not require counsel for discretionary state appeals for review in the Supreme Court. Appeals are not required under due process, and the fact that one has been provided does not means that a state then acts unfairly by refusing to provide counsel to indigent defendants at every stage. Unfairness results only if indigents are singled out by the state and denied meaningful access to that system because of poverty. The state’s only duty is to assure the indigent defendant an adequate opportunity to present his claims fairly in the context of the state’s appellate process.

4. Tate v. Short (1971) - Texas could not imprison indigents for traffic violations because imprisonment must be the same for all Ds regardless of economic status.Texas cannot limit the punishment to a fine for the rich and imprison the poor because imprisonment in such a case is not imposed to further any penal objective of the state.

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5. Bearden v. GA – due process and equal protection make it unfair to revoke a D’s probation for failure to pay the imposed fine and restitution, absent evidence that the D was somehow responsible for the failure or that alternative forms of punishment were inadequate.

6. Boddie v. CT (1971) – could not require indigents to pay a fee to sue for divorce. Individuals must be free to enter and rescind contracts. Due process requires at a minimum that, absent a countervailing state interest of overriding significance, persons forced to settle their claims of right and duty through the judicial process must be given an opportunity to be heard.

7. US v Kraus (1973) – the Boddie analysis does not apply to bankruptcy fees because bankruptcy is not a fundamental right. Only use rational basis test.

8. Little v. Streater (1981) – because appellant has not choice of an alternate forum and his interests, as well as those of the child, are constitutionally significant, it was a violation of due process CT’s refusal to pay the cost of blood tests in paternity actions.

L. EDUCATIONSan Antonio Ind. Sch. Dist. V. Rodriguez (1973)Facts: Mexican American parents sued on behalf of school children who were members of a minority group going to schools with a low property tax base. Minimum Foundation School Program calls for state and local contributions to a fund apportioned among the school districts according to each district’s relative property taxpaying ability. The schools with less minorities in wealthy neighborhood had much more money per student contributed.Issue: Were the P’s denied of equal protection by being forced to attend schools with less funding due to the area’s property taxes?Holding: No, education is not a fundamental right under the Constitution.Rationale: This is not like any other case of wealth discrimination because the poorest families are not necessarily clustered in the same districts. Also lack of personal resources has not occasioned an absolute deprivation of the desired benefit. Where wealth is involved, the EP clause does not require absolute equality or precisely equal advantages. This is not a suspect class, because it is not saddled with disabilities or a history of unequal treatment, or need protection from the majority. This is not a fundamental right, so the court employed the rational basis test: education is not expressly or impliedly protected by the Constitution. Texas asserts that the program provides an adequate education for all children in the state. The schools at issue provide each child with the minimal skills necessary. Further, all taxes have discriminatory impact. The existence of some inequality in the manner of which the state’s rationale is achieved is not alone a sufficient basis for striking down the entire system.

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OPTIONAL BONUS SECTION: THE RIGHT TO TRAVEL

Shapiro v. Thompson – dissent by Justice Harlan stated that opinions of the court have suggested four provisions of the Constitution as possible sources of the right to travel:1. the commerce clause2. the privileges and immunities clause of article IV3. the privileges and immunities clause of the 14th amendment.4. the due process clause of the 5th amendment

Aptheker v. Secretary of State (1964) Facts: attack by top-ranking leaders of the communist party on the Subversive Activities Control Act of 1950, which denied passports to members of an organization “with knowledge or notice” that it was required to register as a communist organization.Holding: The court declared the statute unconstitutional on its face because it too broadly and indiscriminately restricts the right to travel and thereby abridges the liberty guaranteed by the 5th amendment. Rationale: the right to travel is a part of the liberty of which a citizen cannot be denied without due process. Since freedom of association is itself guaranteed in the 1st amendment, restrictions imposed on the right to travel cannot be dismissed by asserting that the right to travel could be fully exercised if the individual would first yield his membership in a given association.Concur: the right to move freely from state to state is a privilege and immunity of national citizenship. Absent war, there is no way to keep a citizen from traveling within or from the country unless he has been convicted of a crime or there is probable cause for issuing a warrant to arrest him.

Zemel v. Rusk (1965) Facts: refusal to issue passports to US citizens for travel to Cuba unless specifically endorsed by the Secretary of state. Appellant sought a passport to satisfy his curiosity about the state of affairs in Cuba and to make him a better informed citizen.Holding: court affirmed the denial of the passport.Rationale: The US and other countries have determined that travel between Cuba and the other countries of the western hemisphere is an important element in the spreading of subversion. In light of the these factors, the secretary concluded that travel to Cuba by American citizens might involve the nation in dangerous international incidents. The constitution does not require the secretary to validate passports for such travel. However, the right to interstate travel is constitutionally protected, but that freedom does not mean that areas ravaged by fires, flood, or pestilence cannot be quarantined when it can be demonstrated that unlimited travel to these areas would directly and materially interfere with the safety and welfare of the nation as a whole.

Haig v. Agee (1981) Facts: D, a former CIA employee then residing in W. Germany, announced and engaged in a campaign to expose undercover CIA agents stationed abroad and to drive them out of the countries where they are operating. In carrying out his campaign in various countries, his public exposure was followed by episodes of violence. Because of his activities, his passport was revoked pursuant to a 1966 regulation authorizing passport revocation when the secretary of state determines that an American citizen’s activities abroad are causing serious damage to the national security or the US foreign policy.Holding: Court rejected D’s contention that the revocation violated his right to travel.

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Rationale: The freedom to travel outside of the US must be distinguished from the right to travel within the US. No governmental interest is more compelling than national security. D has jeopardized US security. Restricting his foreign travel is the only way to limit these activites.

The Kent case laid heavy stress on the importance of the right to travel and took a correspondingly grudging approach to discretionary travel controls. Commentator says the Kent approach is preferable to the Agee approach because:1) the importance of the right to travel itself

a. International travel is related to freedom of speechb. Without the right to travel, criticism of foreign policy is impeded.

2) History supports less deference to executive discretion. a. Historically people have often relocated for various reasons

3) Aligns more closely with Congressional intent.a. congress has the most authority in this area.

Intrastate travel – not a fundamental right and will be upheld on a rational basis test.

WOODS LAW REVIEW: TOWARD FIST AMENDMENT PROTECTION FOR FREEDOM OF MOVEMENT

Farrakhan’s recent “world friendship tour” is a recent example that the right to travel, although constitutionally protected, is repeatedly undermined in the name of foreign policy and national security. Threats to prosecute Mr. F. or to revoke his passport raise troubling constitutional issues.

Freedom of movement is a fundamental right. Promotes the normative values of constitutional democracy: individual autonomy, self-realization, truth seeking, understanding, problem solving, self government, and social change.

Justice Douglas in the concurrence in Aptheker v. Sec of State – freedom of movement is essential to our society. Once this right is curtailed, all other rights suffer. This freedom, specifically in the context of international travel, should be fully protected under the first amendment.

Because discourse is conducted through systems that are social creations, international travel is a vital circumstance on which discourse depends. Interference should be constitutionally suspect as censorship of politics, art, or literature.

Right to travel has three distinct constitutional dimensions:1) travel to express a political viewpoint – essence of what constitution protects (even unpopular

travelers who truly challenge free speech with dispute).2) travel to gather information – political information, scientific and academic research, artistic,

cultural, and religious information. A transcendent imperative of the first amendment. 3) leisure and business travel. Not part of protected speech, but an aspect of personal freedom

indispensable to membership in a free society. A liberty protected by the fifth amendment.

Kent v. Dulles – link between freedom of speech and freedom of movement. Right to travel included within “liberty” of the fifth amendment.

When the restriction is deemed to be targeted at nonspeech concerns, the governmental regulation that abridges communication in a public forum weighs against the government’s interest in the regulation.

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Category one speech (from above, like Mr. F’s tour) should be characterized as symbolic political speech, and should enjoy the highest constitutional protection. Infringements on category one and two travel, then, require heightened judicial scrutiny. In order to avoid the pitfall of automatic deference associated with the government’s assertion of national security to justify the restrictions, the government should have to meet the highest standard established by the court in Brandenburg v. OH – travel should not be curtailed unless travel is directed to producing imminent lawless action and is likely to incite or produce such action.

Restricted Travel to Embargoed Countries – determination as to whether the means employed are narrowly tailored to accomplish the asserted goal. To satisfy this test, the government should be required to demonstrate that an individual’s travel expenses would significantly impair an embargo’s objectives.

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