CONSTITUTIONAL LAWProfessor Medina

Fall, 2002

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 Cannot be repealed, and there is a very difficult amendment process.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 that 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 lead to conflicts between the branches and between the state and local government.

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.

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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) Arising under the laws of the U.S.;3) Arising under treaties made by the U.S.4) All cases under maritime jurisdiction 5) Where U.S. is a party;6) Controversies between two or more states;7) Controversies between citizens of different states; and8) Controversies between citizens of different and foreign states.

b. Supreme Court has original jurisdiction over the following cases:1) affecting ambassadors and other public ministers,2) where a state is a party.

2. States that Supreme Court judges will serve life terms during good behavior and that their pay cannot be decreased. Federalist papers No. 78 (Hamilton)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. 6. The Constitution:

a. binds members of Congress;

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b. the executive branch;c. state governments; andd. the Supreme Court justices

by imposing on them the responsibility of obeying constitutional requirements even if the litigated case deals with the question.

7. The Constitution replaced the Articles of Confederation. It gave Congress the power to wage and declare war, the power to regulate coins, to create the U.S. Post Office, to deal with the Indians and appoint officers of federal service.

8. The Articles were adopted shortly after the Revolution to ensure unification of the states regarding common foreign and domestic problems with the understanding that each state would remain sovereign.

9. The Articles lacked the power:a. to tax,b. to regulate commerce; andc. two out of the three branches were missing;d. there was no executive authority;e. there was no general national judicial authority, except maritime; andf. no Bill of Rights.

10. The Constitution changed the framework set up by the Articles of Confederation:a. it created the executive branch;b. it granted to Congress the power to tax and regulate commerce; andc. created the Federal judiciary including the Supreme Court and if Congress chose, the lower Federal Courts

D. Marbury v. Madison (1801)-The Supreme Court has the power to declare laws unconstitutional; “The Judicial power of the U.S. is extended to all cases arising under the Constitution”.

Facts: President Adams was a lame duck when a Republican Congress was replacing a Democrat 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. Judge Marbury sued on writ of mandamus to force the President to deliver the commission. Marshall, wrongly, did not recuse himself from this case, despite his involvement.

Issue: Did Marbury deserve the commission? If so, and that right has been violated, does Marbury have a legal remedy? Is that legal remedy a writ of mandamus?

Holding: Yes, he had a right to it. When the President signs the commission and the Sec. Of State affixes the seal of the U.S. the appointee has a vested interest in the commission. The law must afford a remedy for the violation of a vested legal right.

Issue: Did the Supreme Court have the jurisdiction to enforce the writ of mandamus?

Holding: No. Even though a mandamus is proper in this case and the Supreme Court has the power to issue writs of mandamus to any person holding office, this statute conflicts with Art.

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III of the Constitution, which does not grant original jurisdiction to the Supreme Court over cases involving executive officers. If two laws conflict the Court must decide the case conformably with the Constitution. The Supreme Court can invalidate laws in conflict with the Constitution.

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 so in the Constitution. Especially since there is language that specifically addressed 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.

8. Marshall claims that (1) Court is given the power to issue a writ, the act is unconstitutional because it is inconsistent with Art. III because it has clauses which give the Court original jurisdiction in certain cases and appellate power in certain cases.

9. The list in Art. III is exclusive and Congress can’t add to it, so Congress can’t add

10. Thus to be consistent with Art. III, Congress can only issue mandamus as an exercise of its appellate jurisdiction, therefore Congress has no power to issue a mandamus because a statute giving it power is unconstitutional.

11. The Court did not have jurisdiction therefor Marbury does not get his commission. The statute is unconstitutional.

Rule: Courts are the final arbiters of the Constitution. WRIT OF MANDAMUS DENIED.

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NOTES: The Supreme Court has the power, implied from Art. VI, Sec. 2, to review acts of Congress and if found to conflict to declare them void.

Original jurisdiction- the power of a court to hear an action upon its commencement

Appellate jurisdiction- the power of a higher court to review the decisions of a lower court.

Regulation of Appellate Jurisdiction: Congress has created two methods of invoking Supreme Court jurisdiction:

Through appeal where jurisdiction is mandatory; and By certiorari (at the Court’s discretion). Generally a party must

petition for cert. Cert will be granted for final judgments or decrees rendered by the highest court of a state for issues involving the validity of a U.S. treaty, or a state statute that could be repugnant to federal law.

Judicial review- authority of the courts to review decisions, actions or omissions by another agency or branch of government

Writ of Mandamus- A court order issued commanding a public or private entity or an official thereof, to perform a duty required by law.

Vested right-a right that is unconditional, that cannot be taken away from a party.

One of the most important dilemmas in American constitutional law arises from the tension between the basic principle that the Constitution reposes sovereign authority in the people, who elect their representatives and perhaps competing principle that the Constitution itself defeats democratic efforts by the public to proceed in one or another direction. Is the Constitution an obstacle to democracy?

The courts have the final say over the political process. Judicial review is a means by which the courts may invalidate decisions of Congress and the President, subject only to the process of constitutional amendment.

Political Acts? Are they constitutional? Executive gets to decide because they are bound by the Constitution

who Congress gets to decide People

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.

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G. Martin v. Hunter’s Lessee (1816)-The Supreme Court has the power to review decisions of state court

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.

Rule: USSC has the power to review state court decisions, although it is not specifically provided for in Art.III.

Issue: Does the Constitution permit the Supreme Court to have appellate jurisdiction over constitutional cases pending in state courts? Can the court overturn state court decisions?

Holding: Yes, Court expands the power of judicial review to the states. The appellate power of the U.S. does extend to cases pending in state courts. Judgment reversed. Just as in Madison, the Court held that it had the power to review Acts of Congress for constitutionality. In Martin, the Court confirms its power to review the constitutionality of state courts decisions.

The Court in Martin found appellate jurisdiction to be a constitutionally permissible method for ensuring uniformity. The Supreme Court’s authority over state court decisions is limited to those decisions that involve federal questions. The Supreme Court may not review state court decisions that involve only state issues or those that rest upon “independent and adequate state grounds”.

Rationale: Article III gives the Court appellate jurisdiction in all cases arising under the constitution. Article III speaks in terms of cases. It is the case not the court that gives jurisdiction.

Article IV demonstrates that the framers of the Constitution expected that some cases subject to Fed. Court jurisdiction would also be subject to state court jurisdiction because it binds judges in every state to decide cases not only according to the state’s laws and constitution, but principally according to the Federal laws. The laws of the U.S. require national uniformity and by having only one final arbitrator can this be achieved. Idea of uniformity --doesn’t want different decisions on constitutional issues. Need one interpretation. As stated by Justice Story “ It is the case then, not the court that givrd jurisdiction”. 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.

Supreme Court review may become necessary because of state hostility to, or lack of sufficient sympathy for federal rights. State judges will be less likely to react sympathetically to federal claims and are susceptible to political influence. State judges are insufficiently independent of the forces against which constitutional guarantees are supposed to run.

Questions to ponder? What would be the evil in having disparate interpretations of the federal constitution?

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The risk of centralization outweighed the risk of harmony Other devices were available in order to minimize the latter risk and to bring about

uniformity

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

question of independent judiciary, which illustrates the 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 toola. 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.

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d. Promotes fairness – litigants must have standing – no third party complaints. 6. Cons:?????

a. By restraining itself, some people will be left without redress.

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.

3. McCullough v. Maryland (1819) The relationship between federal and state governments

Facts: Action arising out of violation of state statute. Def. McCullough, a federal bank cashier, refused to pay a state tax levied on the Bank of the U.S. McCullough issued bank notes in violation of a MD statute providing that no bank without authority from the state could issue bank notes except on stamped paper issued by the state. The state purports to place a tax on a federal entity; therefore this became a federal issue. There was serious disagreement regarding the U.S. government establishing a bank.

Like Marbury, this case defines power of federal government when MD taxed the national bank operating in its borders.

Issue: (1)Did Congress have the power to create a national bank? (2)Did a state have the power to tax the operation of an institution created by Congress pursuant to its constitutional powers without violating the Constitution?

Rule: Certain federal powers giving Congress the discretion and power to choose and enact the means to perform the duties imposed upon it are to be implied from the necessary and proper clause. The federal constitution and the laws made pursuant to it are supreme and control the Constitution and the laws of the states. The states have no power to burden the operation of federal laws designed to execute powers vested in the federal government by the Constitution.

Holding: (1) Yes, under the necessary and proper clause. Congress has the power to incorporate a bank. All three branches of gov’t act together therefore there is no tension on this issue.

Necessary and proper clause- The Constitutional provision which allows Congress the ability to make laws “necessary and proper” for the promotion of its enumerated powers.

Writ of error- A writ demanding a lower court to submit the record of a case for review.

(2)No, Maryland cannot tax a branch of the U.S. without violating the Constitution. (a) The Constitution and the laws made pursuant to the Constitution are supreme. (b) the control the laws of the U.S. and (c) cannot be controlled by them. A power to create implies a power to preserve. A power to destroy is wielded by a different hand, is hostile to and incompatible with these powers to create and to preserve. Justice Marshall opined

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that states retain the power to tax, however, the Constitution may restrict that power, i.e. citizens, Fed. Gov’t taxing national institution is unconstitutional because it is illogical.

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. There is 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.

4. 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.

5. 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.

6. The people of one state should not have to trust those of another to control the operations of a government to which they have confided their most important and valuable interests.

7. If MD could tax a bank; they could tax the mail or the mint. The federal gov’t could tax a state bank but not vice versa. The state power to tax could be destructive.

8. The “necessary and proper” clause gives Congress the power to make “all laws which shall be vested by the constitution in the U.S. government. The Federal Constitution and laws made pursuant to it are supreme and control the constitution and the laws of the States. The Constitution derives its authority from the people not from the states. Federalism is the basis of the Constitution’s response to the problem of governing large geographical areas with diverse local needs. The success of Federalism depends upon maintaining the balance between the need for supremacy and sovereignty of the federal govt and the interest in maintaining independent state government and curtailing national intrusion into intrastate affairs.

Enumerated powers-those powers expressly delegated by the Constitution in Article I, Sec. 8, to a particular branch of government. It includes “implied” powers, which are “necessary and proper”. Federal law prevails when there is a conflict between federal and state laws. Look to Article VI, the Supremacy Clause, to enforce the interpretation of the Constitution.

Implied powers- powers impliedly delegated to the various branches of government that, while not expressly stated in the Constitution, are necessary to effectuate the enumerated powers.

Federalism- a scheme of government whereby the power to govern is divided between a central and localized government.

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JUDICIAL REVIEW

Marbury answers the question of judicial review, the final review, by the Supreme Court.

Cooper v. Aaron: Federal court decisions interpreting the Constitution are the supreme law of the land are binding upon the states.

Sources of Judicial Interpretation: Text of the Constitution; Representation-reinforcement (reinforcement or improvement of democratic process); Natural law; Framer intent; Precedent or caselaw; Logic; and History

NOTES:

It is important that the populace, the Congress and the President view the Court’s opinion as legitimate. The sources, i.e. legal reasons, used by the Court give it legitimacy.

Cases don’t reach the Supreme Court unless the decision within the state is close (on both sides). Easy cases don’t ever reach the Court.

The Court will not allow/morality to decide an issue. (i.e. physician assisted suicide) All provisions of the Constitution, including those granting powers and those creating rights, should

be broadly construed. The Constitution simply does not contain specific answers to all questions for all times.

The meaning of the Constitution changes with changing circumstances, in accordance with changing social norms and needs.

4. Ex Parte McArdle-Congress has the constitutional power to make exceptions and regulations regarding the Supreme Court’s appellate jurisdiction.

Facts: Appeal from denial of habeas corpus. Def., a MS newspaper editor, was jailed for printing incendiary and libelous articles, and brought a habeas corpus proceeding. Congress passed an act forbidding the court jurisdiction over the matter.

Rule: Although appellate jurisdiction for the Supreme Court is not derived from acts of Congress, but from the Constitution, jurisdiction is nevertheless conferred “with such exceptions and under such regulations as Congress shall make”.

Issue: Does Congress have the power, under the Constitution, to make exceptions to the appellate jurisdiction of the Supreme Court?

Holding: Yes. Appellate jurisdiction for this Court is not derived from acts of Congress, but from the language of the Constitution. But jurisdiction is conferred “with such exceptions and under such regulations as Congress shall make.” The Constitution also gives Congress the express power to make exception to that jurisdiction.

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McArdle is clearly an example of judicial restraint. The authority of Congress to control the jurisdiction of the Supreme Court is not unlimited.

Just because an issue hasn’t been before the Court doesn’t mean it is constitutional. It just remains an open question.

Law is a flexible organ. It moves with case law. As a result, the law can appear inconsistent.

Only when cases can’t be reconciled does the Court come into the controversy.

Habeas corpus-a proceeding in which a def. brings a writ to compel a judicial determination of whether he is lawfully being held in custody.

Appellate jurisdiction-The power of a higher court to review the decisions of a lower court.

Original jurisdiction-The power of a court to hear an action upon its commencement.

Jurisdictional Limits- Individual claimants may not get judicial review.

Advisory Opinion-an advisory opinion cannot be issued by the Supreme Court. “We are an advisory body, but our power extends only to cases”. The Court would not be bound by an advisory opinion. “Mr. President, make your own decision. Congress, make your own decision. You have your own people to advise you”.

STANDING

5. Allen v. Wright

Facts: Blk. Parents sued IRS for granting tax-exempt status to discriminatory private schools, thereby interfering with desegregation of their public schools. Appeal of judgment granting declaratory relief, injunctive relief in a class action civil rights suit. Federal aid to private school caused alleged injury.

Rule: Standing requires a Plt. to allege a personal injury fairly traceable to the Def’s allegedly unlawful conduct and likely to be redressed by the requested relief.

Issue: Does standing require a Plt. to claim a personal injury fairly traceable to the Def’s allegedly unlawful conduct and likely to be redressed by the requested relief?

Holding: Yes. Article III of the Constitution limits federal jurisdiction to “cases and controversies”. The question of standing is whether a litigant is entitled to have the court decide the merits of the case. Standing doctrine (1) prohibits litigants from raising another person’s rights, (2) bars courts from adjudicating general grievances more appropriately addressed in the representative branches, and (3) requires that a complaint fall within the zone of interests protected by the law invoked.

The parents claimed two injuries, (1) direct harm from the mere fact of federal aid to discriminatory private schools, i.e. stigmatic harm, and (2) impairment of their ability to have their schools desegregated. They claimed that the tax-exemption was making it easier for parents to choose a private school over a public school. A federal court is not the proper forum for

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general complaints about the way that the government conducts its business. Judgment reversed. The court dismissed the first claim as too abstract.

NOTES: The injury cannot be abstract. The injury must be traceable to causation. The remedy must be redressable. No third party can assert a claim. The most significant constitutional element is the “injury in fact” requirement. Allen demonstrates that standing will usually not be found where a litigant claims that a tax incentive

has caused a third party to injure him, since the causation component is too attenuated. Membership in a minority group is insufficient alone to afford standing. ** It would be the President’s job to enforce the law in this case. **Enforcement of this law by the courts would open the floodgates of litigation because everyone

could sue. Stigmatic injuries could be difficult to prove. A stigmatic injury only affects those who were

directly harmed according to the Court. A stigmatic injury has to apply to a small, particular group. The Government action only affected the private school because they get the benefit of the

exemption, therefore the parents of the private school children would have standing, not the parents of public school kids. Public school kids, as a group, is too large.

It’s the President’s job to enforce the law, not the Court’s. It was the opinion of the Court that holding in favor of the black parents would open the floodgates

because then everyone would have standing to sue.

6. LUJAN v. DEFENDERS OF WILDLIFE

Fatcs: Appeal from a denial of motion for Summary Judgment for lack of standing. Defendants seek to have the Endangered Species Act interpreted to cover government agency activities in foreign countries. Plts. Are asking that the Sec. of State consult with wildlife groups before funding international projects abroad because of the alleged increase in the rate of extinction.

Rule: Congress may not convert the public’s interest in an executive officer’s compliance with a law into an individual right to sue.

Issue: May the public interest in a government agency’s proper administration of the laws be converted into an individual’s right by statute, thus allowing all citizens to sue?

Holding: “Questions of timing” serves as barriers to standing; the authors consider mootness and lack of ripeness of the issues. “Mootness” means that changes in the law or facts may render the issue moot as to the individual Plt. and Plt. no longer has a stake in the outcome. A case is moot if the justiciable controversy that existed at the time the complaint was filed has disappeared. “Ripeness” involves cases where the issues are sufficiently developed to deserve judicial attention. Under the principles of judicial self-restraint, the Court will not decide constitutional issues before it is necessary to do so. Generally, a ripeness problem is alleviated if the litigant has already suffered harm.

Notes: Lack of consultation can be an injury if it affects immediate residents.The injury may be threatened but it needs to be imminent.Plts argued that the statute injured them. The Court did not interpret the statute to read to give everyone a standing, just those who are directly injured under the federal law.

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Standing comes into play when:o Government conduct is being challenged as unconstitutional.o Challenge to federal statute

Plt must establish that they have standing to raise the dispute. Article III requires:o Injury in fact, not legal injuryo Caused by government actiono And injury is redressable by the Court

Congress handles general public grievances in the public arena, NOT the courts. It is opposed to a requirement where the court MUST decide on set rules, not discretion. Courts also say that they will not allow a claim to be brought by a 3rd party. Zone of Interest- if the claim is based on a statute-Is the Plt within the zone of interest? If you are not

benefiting of the statute, then you cannot sue under this statute, i.e. white collar crime-shareholders trying to sue and the suit didn’t address share holder concern.

Cases and Controversies-The jurisdiction of federal courts is limited to cases and controversies. This means the matter must be definite and concrete with parties having adverse legal interests. The controversy must be real and substantial. There must be a real and immediate threat of harm and danger to the interests of the parties brought about by the conduct of a party or a challenge to that conduct.

Advisory opinions cannot be issued. The Court will not review moot cases. If a matter has been resolved there is no case or controversy.

7. Baker v. Carr

Facts: Appeal from denial of injunction/challenge to state against apportionment system and elections.60-year-old Tennessee apportionment system attacked as obsolete. Tennessee voters seek reapportionment of state assembly districts; the districts have not been reapportioned since 1901.

Rule: The Guaranty Clause guarantees a republican form of government. The clause may not be used as a source of constitutional standard for invalidating state action, but an equal protection (14 th Amendment) claim may be used where it does not implicate a political questions.

Issue: Does an equal protection claim complaining of the mal-apportionment of a state assembly constitute a non-justicable political question, which the federal courts may not address?

Holding: No. This challenge presents no nonjusticiable “political question”. The fact that the suit seeks protection of a political right does not mean that it is necessarily a political question. It has been argued that apportionment cases involve no federal constitutional right except one resting on Article IV § 4, which guarantees a republican form of government. The case here neither rests upon nor implicates the guaranty clause. REVERSED.

Political questions are best left to the President or Congress. Vote dilution-one district has more significant voters than others but the same number of

representatives. EQUAL PROTECTION CLAUSE-A 14th Amendment clause providing that persons under the

same circumstances shall be afforded the same constitutional rights.

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GUARANTY CLAUSE-A clause in Article IV § 4 that (all three branches) the U.S. shall guarantee to every state in this Union a Republican form of government.

POLITICAL QUESTION-A question involving the use of discretionary authority by Congress or the Executive Branch.

Any case involving a political question is foundo A textual commitment-a constitutionally assigned duty or power to a branch of gov’t; oro A lack of judicially manageable standards for solving the question; oro The impossibility of a court’s deciding the issue without an initial policy determination of a

kind clearly for non-judicial discretion; o The impossibility of a court’s undertaking independent resolution without expressing a lack

of respect to other branches of government; oro An unusual need for adherence to a political decision already made; oro The potential for embarrassment from various pronouncements on a single issue by different

department of government; oro Criteria for deciding issue; or o Diplomacy

If none of these circumstances is present, the case should not be dismissed on the grounds that it is a political question.

An issue is a non-justiciable, i.e. political question if the Constitution has committed it to another branch of government, or if there is a lack of judicially discoverable and manageable standard for resolving it.

Political issues with constitutional dimensions generally are fair game for judicial review. Political questions are issues, which may have constitutional dimensions but are of a nature that they should be resolved in the political arena, i.e. foreign relations.

Political Questions vs. Justiciable Controversy: The Court will not decide questions that are political on the basis of the separation of powers. Political questions are generally determined on a case-by-case basis. Political questions usually involve foreign relations, military organization, constitutional amendments, political party disputes, congressional membership, or political rights. A question is political if:

There is a demonstrable constitutional commitment of the issue to the political branches;

There is a lack of manageable standards for judicial resolution; There is a need for finality in the action of the political branches; and There is difficulty or impossibility of devising effective judicial remedies.

B. The National Commerce Power1. 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.

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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 decisions4) Origins of enumeration

A loose confederation of states proved unsatisfactory. The governmentestablished under the Articles of Confederation was unable to guarantee that:

a. international commitments would be honored;b. assurance that sufficient force could be amassed to combat threats to security

originating both within and without the States; andc. the establishment of a framework within which stable economic growth might proceed

unhampered by localist jealousies.

Hence, a convention designed not only to amend the Articles, but also to replace them was called. The people” created the “new” government.

Under the Articles of Confederation the States were banded together, but behaved like independent nations joined by treaties. The framers wanted and envisioned a uniform national system rejecting the notion of a collection of states and instead created a direct link between the national government and the people of the U.S.. A body composed of representatives of the people.

The framers created two political capacities, one state and one local. All power stems from the consent of the people, of each individual state.

Within the Commerce Clause most of the conflict is between the federal government and the State in areas such as:

a. Spendingb. Taxc. War

→→→→→Court will be deferential to Congress, i.e. “Let Congress decide”

d. Foreign affairse. Immigration

→→→→→very broad view of what Congress can do and possibly legislate all aspects

Express limits are found within the Bill of Rights. Why? Not to protect the power of Congress, but to protect individuals from overzealous federal actors and to avoid tyranny.

Alexander Hamilton opposed the Bill of Rights because he thought that the opposite would happen, and that anything left off the list would be able to be abused.

NOT TO WORRY- the States are represented in Congress in the form of representatives who will be responsive to its constituencies, i.e. power of the vote will act as a check to Congressional power to ensure that power flows back to the states.. If the power flows to Congress, that’s OK, because that’s what the people want.

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VALUES OF FEDERALISM

What values are served by a system that distributes government authority between state and nation, i.e. “federalism”?1. Efficiency2. Promoting individual choice;3. Encouraging experimentation;4. Promoting democracy;5. Preventing tyranny; and

FORMS OF FEDERALISM

a. Neither state nor nation may have the power to act;b. National government may be given exclusive power to regulate in some areas;c. State governments may have exclusive power to regulate some areas; andd. State and national government may have concurrent power to regulate some areas.

NOTES: Powers not given to the federal government by the Constitution, or forbidding it, are vested in the State.

Article 1 Branch----Congress/Legislative

Basis of power in our constitutional structure Has primary policy making authority and legislative authority AND the power to regulate interstate commerce, which includes navigation Congress can regulate what’s in the state, it is not limited to what happened at the borders Commerce can regulate commerce Commerce is defined as: commercial intercourse between parties

Article II Branch----President/Executive

Has rule making power, i.e. regulation –enforceable as a statute, nut is the result of administrative action, not legislative

Adjudicative power, he can issue sanction

Article III Branch—Judicial/Supreme Court

Marbury /McCulloch/Martin v. Lessee Has the power to impose checks and balances Includes self imposed controls Controls external, i.e.

o Judicial nominationso Amendment processo Good behavioro Impeachment

Controls internal, i.e.o Case or controversy?

Gibbons v. Ogden (1824) very broad view

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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: Yes

Reasoning: 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.

NOTES:

State power vs. Art. I power is the most prevalent, i.e. State vs. Congress. Gibbons defined “commerce” as more than buying or selling an transporting goods over state

lines; it also includes navigation and other forms of intercourse between the states. Gibbons defined “among” as a state’s internal concerns that affect other states Gibbons invokes the Supremacy Clause in overriding the N.Y. statute

Lottery Case (1903) –local control over those things strictly local in nature

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.

How is this distinguishable from insurance contracts? The lottery ticket itself is evil. Similar to drugs or impure food.

Prohibition is a form of regulation. 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.

NOTES:

“Outlaws of commerce” are within the Commerce Clause and can be regulated by Congress The court upheld the indictment, defining “regulate” as “prohibit”

Hamer v. Dagenhart (1913) CHILD LABOR

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Holding: Congress exceeded its power under the commerce clause when it attempted to prohibit the transportation of products of child labor.

Issue: Can Congress regulate the transportation of goods produced in factories employing under aged children as a means of enforcing restrictions on child labor?

Reasoning: No. Congress cannot regulate commercial activities that occur wholly within the boundaries of an individual state and do not affect other states under its commerce power. The goods were harmless and Congress cannot regulate harmless goods, but Congress can regulate “evil” goods.

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.

Notes: 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.

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.

HARMFUL EFFECTS TEST-Congress may regulate interstate shipping of goods that are “of themselves harmful” Goods produced by child labor do not meet this standard.

The Shreveport Case (1914)

Facts: ICC fixed interstate RR rates westward from Shreveport to TX markets. Shipments from Shreveport to Texas were substantially higher for a shorter distance than from Dallas to Marshall, TX. It set a maximum rate for shipments from Shreveport to Texas and ordered the railway to charge.

Rule: Whenever the interstate and intrastate transactions of carriers are so related that the government of the one involves the control of the other, it is Congress and not the State that is entitles to prescribe the final and dominant rule, otherwise Congress would be denied the exercise of its constitutional authority and the State and not the Nation, would be supreme within the national field.

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. Courts make an exception for railways because they are instrumentalities of interstate commerce.”

NOTES: So, from these cases, the three established areas of commerce clause jurisdiction are: Channels Instrumentalities

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Local activities having a substantial effect on interstate commerce.

NRLB v. Jones and Laughlin (1937)(New Deal legislation) a more modern view

Facts: NLRA was to protect workers. P found that D violated the act by discharging employees at a steel plant for union activity. Court of Appeals held that the act was unconstitutional. Supreme Court reverses.

Issue: Is the NLRA a wrongful attempt to regulate industry, thus, invading the reserved powers of the states? NO

Is an act allowing federal supervision of labor relations a permissible exercise of the Commerce Clause? YES

Reasoning: Hammer 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. The steel industry affects all aspects of the economy; it affects vertical and horizontal economy. If an activity has a substantial impact, then Congress can regulate that activity.

Employment issues are “in the flow” of commerce and can substantially affect flow of commerce. However, manufacturing and employment related issues are too indirect.

NOTES:

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.

Direct Effects Test- Congress may regulate that which has a “direct effect” on interstate commerce, i.e. hours and wages regulated because 90% of poultry came from out of state, which had a direct effect on interstate commerce.

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

In most cases, the Direct Effect Test, will distinguish between national regulation of production (a purely local activity) and commerce.

An economic effect, even if slight, gives Congress authority under the Commerce Clause to regulate the activity.

Supremacy Clause-if it is granted to the federal government-it is “supreme” and will “trump” a state statute.

“Necessary and Proper” clause--- plays a small role in current (modern) affairs

US v. Darby (1941)—Modern Commerce Doctrine

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Facts: Fair Labor Standards Act's purpose was to exclude from interstate commerce goods produced for the commerce under sub-standard labor conditions. This act regulated hours and wages of American workers.

Issue: Does Congress have the power to prohibit the interstate shipment of goods produced under these conditions?

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. This view was a broader interpretation.

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.

NEW DEAL LEGACY

1. A realist approach, i.e. economic/pragmatic approach (Jones/ McLaughlin)2. Formalist approach, i.e. Darby,

a. Congress prohibited the shipment in interstate commerce of certain goods.b. Regulating directly-Congress directly regulates the wages and hours of employees

producing goods for interstate commerce.c. The Darby court justifies the direct regulation as a “necessary and proper” means of

enforcing the ban on interstate shipping. 3. Unfair competition-Court justifies the direct regulation on an “independent” ground, i.e.

eliminating unfair competition.a. It was lawful to pay substandard/sub minimum wages in some statesb. Paying such wages is “unfair” only in that some states chose to require employees there

to pay higher wages.

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: Yes

Reasoning: 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

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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.

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

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. Title II of 1964 Civil Rights Act, required full and equal enjoyment, etc, without discrimination on the basis of race, religion, etc.

Hotel and motels providing service or offers to serve transient travelers affected commerce per se.

Plt. sought a declaratory judgment that Title II was unconstitutional.

Issue: Does this local activity effect interstate commerce?

Holding: Yes. The Court upheld the statute as a valid exercise of the power to regulate interstate commerce.

Reasoning: 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. There was similar analysis as in Jones and Laughlin where the court looked at the industry as a whole.

Court acknowledged that in framing Title II, Congress was also dealing with a moral problem. That fact, however, does not detract from the evidence of the disruptive effect racial discrimination has had on commercial intercourse. In this case, aggregating works. It did not matter that the motel was “of purely” local character, because the power of Congress to promote interstate commerce also includes the power to regulate incidents and local activities in both State of origin and destination, which might have a substantial and harmful effect on that commerce.

Katzenbach v. McClung (1964)-restaurant discrimination

Issue: Whether Title VII, as applied to a restaurant receiving about $70,000 worth of food that has moved in commerce (out of $150,000 worth of total food) was a valid exercise of the power of Congress.

Holding: Yes

Reasoning: 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.

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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.

The court only had to find a reasonable relationship between the means used, and the goal of protecting interstate commerce. Judicial review must be exercised with great deference.

U.S. v. Lopez (1995)

Facts: D carried a gun to a TX school in violation of a federal Gun Free Schools Act. Appeal from reversal of conviction for knowingly possessing a firearm in a school zone.

Court of Appeal reversed ruling that the law was beyond the reach of the Commerce Clause. U.S. appealed.

Rule: Congressional authority based on the Commerce Clause extends to activities that implicate:

1) the channels, or the use of channels of interstate commerce (Heart of Atlanta, and Darby-labor relations)

2) the instrumentalities of interstate commerce; (Shreveport, Perez-facilitation of commerce)

3) activities having a substantial relation to interstate commerce, exchange of money for goods, to interstate commerce. (Jones-- commercial vs. non commercial, direct vs. indirect effect)

Issue: Was the act constitutional under the commerce power?

Does a federal statute based in the Commerce Clause, which regulates firearms in a school zone, exceed Congress’ power to regulate commerce?

Holding: No, it neither regulates a commercial act, nor contains a requirement that the possession of the gun be connected to intestate commerce (jurisdictional nexus).

Yes. The Constitution delegates to Congress the right to regulate commerce.

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 this is a criminal statute having nothing to do with commerce.

The Court did not agree with the U.S. contention of “cost of crime” reasoning:a. i.e. violent crime which §922 seeks to prevent spreads its cost through the

whole population by rising insurance costs;b. violent crime reduces the willingness of individuals to travel to certain areas

and may handicap the education process and thereby producing a less productive citizenry (National productivity argument).

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To follow this rationale would convert commerce power to police power, which is retained by the State. This would also allow Congress to regulate all activities that would lead to violent crime, no matter how tenuously it was related to interstate commerce.

Congress could have added the jurisdictional element by stating that the guns had to be from other states, etc.

Policy considerations are such that, if they could regulate this, Congress could regulate any crime at all.

Protects local control. It is not an essential part of a larger regulation that can be undercut; 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. However, this was an emergency situation and these things take years for hearings

Public concern over this problem was high. 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.

In Gibbons-the court noted that this authority is complete in and of itself and may be exercised to its fullest extent and only acknowledges those limitations set out in the Constitution. The power was given to broadly construe the clause. The terms “regulate” and “commerce” was defined broadly.

o However, those limitations based in the Constitution regarding Commerce, must extend from state to state and affect other states as opposed to activity solely taking place within one state.

In U.S. v. E. C. Knight, (Sugar Refining) the Court held that the power of the Commerce Clause did not extend to activities such as production and manufacturing and mining. The Court was looking for a direct effect to be within the Commerce Clause.

The Court also held in Houston v. U.S. (Shreveport Rate Case) where interstate and intra state commerce are so mingled that full regulation imposes incidental regulations on intrastate commerce, the Commerce Clause authorizes regulation.

In L.A. v. Schechter, (loan sharking case) he Court held that the Commerce Clause could regulate activities that directly affected interstate commerce, but indirect activities were out of the reach of Congress.

In N.L.R.B. v. Jones (Steel case) discarded the direct/indirect distinction, opting for a standard where Congress could regulate commercial activities with a close enough and substantial relationship to interstate commerce that their control is essential to protect that commerce from burdens and obstructions.

Darby/Wickard took a more expanded view of Congress’ authority under the Commerce clause. § 922 is a criminal statute and has nothing to do with interstate commerce or any sort of economic

enterprise. Therefore, it does not affect interstate commerce. § 922 contains no jurisdictional element that ensures that firearm possession affects interstate commerce.

(No nexus with interstate commerce)

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NOTES: Re: The Consumer Protection Act---The Perez case concerned loan sharking. It referred to Darby in that

do not look at specific activity, or Congressional activity to determine Congressional power, look to see if that activity directly effects commerce.

The Court will defer to Congress’ finding that an activity has an effect on interstate commerce. In the Bass (1971) case, the Court upheld Congressional power to regulate criminal activity. i.e. gun

regulation The Court has concluded that a rational basis exist for determining whether a regulated activity

sufficiently affects commerce:o Channels of interstate commerceo Instrumentalities of interstate commerce; ando Activities having a substantial relationship to interstate commerce

U.S. v. Morrison (2000)- changes the language NOT the concept

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. The statute contains detailed findings that “gender motivated violence” affects interstate commerce by:

a. Deterring potential victims from traveling interstate;b. Not engaging in employment in interstate business; andc. From not transacting with business and in places involved in interstate commerce.

Rule: Congress must first show a commercial or economic activity, and then show a substantial relationship to interstate commerce.

Holding: Supreme Court held that the civil remedy provisions of the Violence Against Women Act were 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. The Court was not persuaded by extensive legislative findings and they still found the statute unconstitutional.

The activity was non-commercial. POST-Morrison—mere presence of findings does not ensure relevancy. (Unlike Lopez)

Rehnquist Concurrence: gender motivated crimes of violence are not economic activity (Lopez). Cases in history have upheld Commerce Clause regulations of intrastate activity only where that activity is economic in nature. Concern expressed that Congress might use Commerce Clause to completely obliterate the Constitution’s distinction between national and local authority is well founded. (Lopez)

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.

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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.

NOTES: The Constitution requires a distinction between what is truly national and what is truly local.

Morrison assigned $$ to the cost of gender-based activities, i.e. crimes of violence and the effect it had on national commercial commerce. Morrison was a private right of action.

IMPLIED LIMITS: In National League of Cities v. Usery- the Court held that the Commerce Clause did not empower Congress to enforce the minimum wage and overtime provisions of the FLSA against the States “in areas of traditional government functions”.

The Court in Usery agreed that wages and hours of state employees affected interstate commerce, but found the application of the statute to state and local employees unconstitutional. THIS CASE WAS EVENTUALLY OVERTURNED.

Commercial = economic (the broader term) Non Commercial= non economic 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.

B. The National Taxing and Spending PowerQUESTIONS: DO WE NEED TO KNOW THE OLD DISTINCTION OF DIRECT/INDIRECT2. 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. Tax cannot be punitive in nature, but it can be used to raise revenue. As long as

Congress is raising money when it imposes a tax it will be found to be constitutional and it is almost impossible not to argue that an imposed tax is not being used to raise money.

3. Regulation Through Spending- whatever Congress can’t do under the Commerce Clause Congress can do under its Spending power, i.e. general welfare issue.

4. If conditions are attached that means that an entity is in a position of power and could exert pressure and coercion. “Not the carrot but the stick”. Congress and entice or reward States but not coerce.

5. Requirements before Congress can use spending power:a. Expenditure must be in pursuit of the general welfare to which the judgment of

Congress will be deferred;1. Congress’ power cannot be used to induce the states to engage in unconstitutional

acts, See Dole- funds were going to build highways-safe interstate travel in exchange for raising the legal age in which to buy alcohol

b. If there are conditions they are to be plainly and unambiguously stated, i.e. “you have to do ___________ to get the money”.

c. Some relationship between the object of funding and conditions, i.e. “the way the money is being spent and the conditions”

d. No other expressed constitutional prohibitions or violations (other than federalism) cannot require that the State violate the Constitution, See Butler- threat of loss-not the hope of gain is the essence of economic coercion.

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NOTES: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.

US v. Butler (1936)-The Taxing power may not be used to purchase compliance with a regulation that Congress cannot enact.

Facts: Agricultural Adjustment Act of 1933, New Deal Measure, 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.

Sought to stabilize farm prices by limiting production.

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 coercion.

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.

3) Congress cannot tax in an area of local concern.4) Congress does have the power to tax and spend for the general welfare, but

only in areas within the sphere of federal power.5) Congress cannot regulate a local business and cannot tax it, as the power to tax

is a form of regulation.

c. Steward Machine Co. v. Davis *(1937) *-unemployment compensation system. Congress may induce state social welfare legislation by use of Federal spending power.

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.

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Rule: Federal government may use spending power to promote the enactment of state legislation in the area of general social welfare without violating constitutional provisions.

Issue: Does a federal tax and credit scheme that promotes the enactment of state unemployment compensation legislation violate the 10th Amendment or any other constitutional provision?

Holding: NO. Did not violate the 10th amendment by coercing the states. Also did not violate implicit restrictions in the federal government. Plt. must show that the tax and credit scheme together are used to coerce or destroy autonomy of the states. Plt. confused motive with coercion. Every tax is regulatory. AFFIRMED.

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.

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 are 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.

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.

Justice Rehnquist wrote that Congress must state unambiguously the conditions it imposes on states that accept federal funds.

C. 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

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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.

a. Missouri v. Holland -Game Warden

Facts: Migratory Bird Treaty Act with Canada obliged both countries to seek legislation protecting birds. State of Missouri contends that the 1918 Migratory Bird Treaty Act with Canada is an unconstitutional interference with the States 10th Amendment reserved right.

Rule: A Congressional statute otherwise be invalid can be upheld in pursuance of a treaty.

Issue May a statute; otherwise constitutionally invalid be upheld if created in pursuance of a treaty authorized by Art. II?

Holding: Yes. By Art. VI, treaties made under the authority of the U.A. are declared Supreme Law of the Land. If a treaty is valid, then the statute is valid. AFFIRMED

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.

b. City of Boerne v. Flores- RFRA is unconstitutional because Congress does not have the power to determine what constitutes a constitutional violation.

Facts: Flores was seeking a building permit to build a church, and filed suit under RFRA when permit was denied. RFRA was enacted to prohibit gov’t from substantially burdening a person’s exercise of religion even if the burden results from a rule of general applicability.

Rule: Congress’ power under §5 of the 14th Amendment but it does not give Congress the power to determine what constitutes a constitutional violation.

Issue: Did Congress have the authority to pass the RFRA.

Holding: NO. Defendant contends that RFRA protects one of the 14th Amendment liberties, i.e. Due Process, the free exercise of religion.

§5 gives Congress the power to enforce the provisions of the 14th Amendment, which is “remedial”. RFRA cannot be considered remedial, preventive legislation because RFRA is so out of proportion to

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a supposed remedial object that it cannot be understood as responsive to, or designed to prevent unconstitutional behavior. REVERSED.

NOTES: Congress’ enforcement power given to it by §5 is just that, the power to enforce,

Congress has no right to determine what constitutes a constitutional violation. Congress has remedial powers not substantial. “Congress lacks power to define the right, only to remedy the right”. Only the judiciary can determine what is unconstitutional. Boerne added new and very different language. “Congruence and proportionality

between the injury that Congress is trying to prevent and the means chosen to remedy the violation of the 14th Amendment.

Free Exercise Clause- a clause in the 1st Amendment that prohibits the government from interfering with an individual’s religious practices.

Smith – Indians and religious use of peyote. The Court rejected the use of strict scrutiny and applied a different test which allows for more regulation of religion.

Consider this: whether distinctions between commerce power and taxing power make it easier to determine motive.

Power to Enforce Reconstruction Amendments. §5 gives Congress the power to create a cause of action allowing those

whose rights are violated to bring a lawsuit, rather than simply assert, §1 rights as a defense.

Congress has only remedial powers and can only remedy a violation. Congress cannot regulate private actors under §5, only state actors. Most federal statutes regulate private actors under Art. 1 §8

(Congressional Power to Tax and Spend) Congress lacks the power to suspend or waive sovereign immunity of

states under the Commerce Clause. Post-N.Y./Lopez language:

In Garcia Congress may regulate state actors when they are regulating other commercial activities as long as law is one of general applicability.

Garcia is a current view of the Commerce Clause doctrine Gregory v. Ashcroft -Congress must speak plainly and to the

point. The Court will not imply that a Congressional statute will apply to the State.

In working a hypothet:1.Who is the actor?2. Do they have power?3. Which power?

Tax→→→↘↘↘Commerce determines

analysisSpendingWarTreaty↗↗↗

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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.

Rule: The federal government may not order a state government to enact a particular legislation. The federalist structure of the national and state government under the Constitution bars the federal government from compelling state gov’t to enact certain legislation desired by the federal gov’t.

Issue: Was the take title provision unconstitutional?

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.

NOTES: The Act provided three incentives: Monetary- surcharge on waste brought in from out of

state. The act authorized the state to place a surcharge on the state bringing in the waste if that state missed its deadline to build its own facility. (General welfare and spending power)

Spending power is: Object of funding Plain and unambiguous language For the general w4elfare Doesn’t violate any other expresses condition

Access- additional surcharge for access to existing sites escalate and after a series of deadlines, access to those states could be denied. The state could deny access to the waste producing state that did not comply with deadline. (Routine exercise of commerce power, i.e. Dormant Commerce Clause analysis.)

Take Title provision- after 1996, if a state had not provided for its own waste disposal, the state had to “take title” to the waste and would then be obligated to take possession of the waste. (Waste disposal is commercial. (Coercion-does not give the State a choice of whether or not to comply)

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Test for “commandeering”- Congress may not commandeer the State’s legislative process.

“State” cannot surrender its own sovereignty or yield to the Federal Gov’t. because of (1) accountability and (2) prevention of tyranny, i.e. protection of the protection of an individual’s rights.

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. Brady falls because the government was asking state officials to “gather” information.

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. REVERSED

Dissent: If these were the rule, it would specifically be in the Constitution.

NOTES: Printz compelled action- the state was being required to act on behalf of the Federal Gov’t.

The Court determines whether an act will have a substantial effect on interstate commerce.

Commercial v. Non-Commercial Activity-If an act is non-commercial (i.e. Lopez) and within state control, the Court will determine whether an activity actually has a substantial effect on Interstate Commerce.

CONGRESS AND THE COMMERCE CLAUSE SLIDES

1. Congress and the Commerce Clause

The federal legislature is a government of enumerated powers. In order to regulate internal affairs, congress must be exercising an enumerated power.

2. How does the Court determine whether Congress’s legislation is within its commerce power? Congress may regulate instrumentalities of interstate commerce. Congress may regulate channels of interstate commerce Congress may regulate activities even purely local activities, which in the aggregate have a

substantial effect in interstate commerce.

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3.Economic or Non-economic? If the activity being regulated is determined by the Court to be non-economic, then

the Court will make its own determination of whether the activity has a substantial effect of interstate commerce.

If the activity being regulated is economic it would appear to be within Congress’ power to regulate interstate commerce.

4. Is Congress acting pursuant to an enumerated power? Commerce Spending Tax Treaty War Foreign Affairs and Immigration

5. How does a court determine whether activities have a substantial effect on interstate commerce? If Congress has provided a jurisdictional nexus between the activity being regulated and interstate

commerce. Court will look to whether the activity being regulated is commercial/economic or non-

economic/non-commercial.

6. Deference? Absent a jurisdictional nexus in the statute and regulation on a noncommercial (like education, gun

possession in schools and gender motivated crimes) traditionally left to state control, the Court will not defer to Congress’ judgment that an activity has a substantial effect on interstate commerce and may scrutinize the statute to make its own determination as to whether the non-economical activity has a substantial effect on interstate commerce.

7. Purpose? Congress may use its commerce power to accomplish goals not primarily directed at commerce.

o Anti-discrimination statuteso Crime statutes

8. Regulation of States? Congress may not commandeer state legislative processes as by requiring states to take title to waste. Congress may not conscript the state’s executive officers by requiring them to enforce a

federal regulatory program like the Brady Act provisions requiring state law enforcement officers to conduct background checks on prospective handgun purchasers.

Congress may regulate the states pursuant to its commerce power where the law is generally applicable to private entities.

Congress’ intent to include state bodies in generally applicable laws must be plainly expressed.

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DORMANT COMMERCE CLAUSE

STATE POWER TO REGULATE – DORMANT COMMERCE CLAUSEThe Dormant Commerce Clause kicks in when Congress has not acted (1) Preemption regulates the state’s ability to act; (2) Congress gives the State the authority to burden Interstate Commerce. Congress is dormant.

a. Express preemption- statute contains a provision specifically referring to preemption and indicating which state laws the national statute supplants.

b. Field exemption- here the scheme of federal regulation is so pervasive as to make reasonable the inference that Congress left no room for States to supplement it.

c. Conflict preemption- compliance with both federal and state regulations is a physical impossibility or state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.

States can’t isolate themselves. States cannot be allowed to balkanize, to group or band together.

Protectionism-States cannot act in a way that protects their own economy to the exclusion of other states. The protection of a state’s own economy is not a legitimate goal or purpose.

o What is a legitimate purpose of state regulation? Environmental protection Protection of health and welfare or safety of the state’s residents States may regulate in its “police power” to protect the health and welfare of

its residents, but they cannot regulate to protect their economy. Facially Neutral

o Does the statute burden interstate commerce?o What are the costs that the regulation imposes?o Is the burden significant or incidental?o Does the statute outweigh the burden?o Are there less burdensome or less discriminatory alternatives?

If so, is the state required to take that alternative?

A. 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 statutes

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 state residents.

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?

Gibbons v. Ogden (1824), the court has broadly defined the scope of “commerce among states” for dormant commerce clause analysis.

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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 those adopted under police power, violate the dormant commerce clause because they unduly burden interstate commerce?

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.

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.

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.

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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.2) Therefore, although the state had some interest in cantaloupe reputation, it

is clearly outweighed by the nation’s interest in unencumbered commerce.3) Thus, the court balanced state interests with the burden on commerce.

b. Requires inquiry into:6) 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.

7) whether the statute serves the legitimate local purpose; and, if so, 8) Whether alternative methods could promote the local purpose as well 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 and 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.

Philadelphia v. New Jersey (1978)

Facts: The 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. Facially discriminates because the effect is on its face and written in the language of the statute to ban ALL out of state waste.

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Holding: The Court holds that the statute is per se invalid. 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.

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.

Incidental burdens on interstate commerce may be unavoidable when a state legislates to safeguard the health and safety of its people.

One aspect of the Dormant Commerce Clause is that the States may not take themselves out of the stream of commerce if it means that other states will bear the burden of its isolationism.

States may not promote in-state interests at the expense of out of state interests. In determining whether a statute violates the Commerce Clause it is immaterial if the

statute is facially neutral if the effect is the same. Balancing Test- look at the burdens imposed by the statute and weigh the costs against

the benefits. If there are no benefits then the act was passed to attain other goals. City of Philadelphia is the 1st case where the Court found that processing of waste

was interstate commerce and a commercial activity.

C&A Carbone v. Clarkstown (1994)

Facts: Local ordinance that requires the routing of all local waste products to one local business violates the Commerce Clause. Facially discriminatory.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. There were no non-discriminatory alternatives. Reversed and remanded. Court held that the statute drove up the cost of out of state businesses to process their

waste. The statute favored local operators. Strict scrutiny The statute deprived out of state business of a market. Deprived other 1st line processors of the business The ordinance discriminated against out of state commerce.

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This statute was burdening Clarkstown residents Courts will all certain monopolies to in order to offer its residents services, i.e. cable,

waster management

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.

Kassel v. Consolidated Freightways (1981)

Facts: Iowa wished to protect its citizen’s health and safety by disallowing 65 ft. trucks on its highways, however, Iowa passed 2 exceptions to this statute. (1) Iowa truck mfg could obtain a permit to ship trucks that are as large as 70’ (2) Movement of mobile homes (oversized) if movement was within Iowa or to be delivered to Iowa resident. A 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. Surrounding states would have carried the burden. The Court looked at the legislative history to determine the actual “intent “ of the statute.

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.

Market Participant Doctrine

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.

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State can protect their natural resources but not hoard their natural rsources. Market is defined narrowly.

Privileges and Immunities Clause

Purpose of the privileges and immunities clause is to prevent states from exercising unreasonable burdens on citizens of other states. Limits ability of state’s to discriminate against out of state residents.

Analysis: Does the statute or regulation discriminate against a fundamental interest? i.e. the

opportunity to seek employment with a state entity is protected. Does the state have a substantial reason to discriminate?

o Is out of state residents the source of the evil that the state is trying to regulate? If the answer is “yes”, them the state can regulate.

Clause only applies to real persons. Only real persons can raise a claim under privilege and immunity.

ANALYSIS-no substantial reason for preferential treatment

Equal Protection Clause of the 14th Amendment Requires state to have a rational reason to treat entities differently. State cannot treat or regulate differently situated commercial actors in an

arbitrary or capricious manner. ANALYSIS:

o Capricious regulation of commercial actorso No legitimate purpose for discriminationo Ct. defers to state legislationo Is state trying to punish a commercial actor

Optician v. ophthalmologist

Preemption Clause- States are not allowed to regulate because the field belongs to Congress and through the

Supremacy Clause- the Federal Gov’t prevails. Express Exemption Field Exemption Conflict Exemption

DORMANT COMMERCE CLAUSE SLIDES

1. Does the state regulate activity evenly?a. Is the statute facially discriminatory or neutral? Even if it is facially neutral it is

burdensome.2. Does the State regulate for a legitimate purpose?

a. Isolationism;b. Balkanism; andc. Protectionism are not legitimate state purposes

Health, safety and welfare of the state’s citizens are legitimate and important interests for states to seek to advance.

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3. Even is the state is regulating for a legitimate purpose is there a burden on Interstate Commerce? (Link fact based statement to Legal based statement)

a. Is it significant or incidental?b. Is the degree of burden excessive when balanced against state’s interest?

Excessive vs. Incidental Significant vs. Insignificant Economical vs. Non economical Commercial vs. Noncommercial

4. May states burden Intestate Commerce?a. If there are less burdensome alternatives the Dormant Commerce Clause

requires the state to pursue those alternatives.b. States may be allowed to burden Interstate Commerce when they are market

participants. They may regulate a market in which they participate. “Market” is narrowly defined.

5. Restraint on state’s ability to regulate commercial actors.a. Express or impliedly preempted the fieldb. Conflict preemptionc. If state regulates are other state’s citizen’s treated differently than their own citizens?

6. Other restrains on state’s regulation of commercial activitya. Not arbitraryb. Not capriciousc. State can regulate if they regulate to accomplish a legitimate purposed. Equal protection under the 14th Amendment.

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.

State regulation of Interstate Commerce

Violation of Commerce Clause occurs when State law has been invalidated because it interfered with interstate commerce and foreign commerce.

Two Problems:

a. What is the source of the Court’s authority in this area?b. What are the criteria for determining when a state or local law improperly interferes with interstate commerce?

Under the Modern “Negative” or “Dormant” Commerce Clause doctrine states may not pass laws which impact interstate commerce causing harm to other states, whether intentionally or unintentionally, directly or indirectly (Only Congress can cause harm to the States). The aim is to have a unified nation.

The out of state residents who are harmed or burdened by another state’s law cannot protest the law because they lack access to the imposing state’s political process.

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Protection against discrimination(1) Who benefits from the law?(2) Who pays the costs of the law?

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; f. power to make treaties (w/ 2/3rds Senate approval); g. appointment of ambassadors, officers, Supreme Ct. Justices (w/ 2/3rds Senate approval)

4) 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.”

2. Most military powers are for Congress in Article I3. Separation of power- constitutional effort to allocate different sorts of power among three

governmental entities4. Checks & balances- constitutional effort to ensure that the system will be able to guard against

usurpation of authority by one branch.5. Purpose of checks and balances-

a. Efficiency because of division of labor among the branches;b. Prevention of tyranny; separation of power diffuses governmental power thereby

diminishing the likelihood that any one branch will be able to use its power against the citizenry.

6. Non delegation doctrine-the principal that Congress may not delegate its legislative power to administrative agencies, thereby forcing Congress to make the policy choices, rather leave this to unelected administrative officials.

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, during the Korean War, he 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

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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-seizure cannot be considered within Presidential power.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 & 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.

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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 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, ***(most influential) 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.

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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.

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

a. 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.

b. 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.

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.

Rule: Executive agreements are allowed for things necessary to foreign policy matters.

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 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.

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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.

INS v. Chadha (1983)

Facts: 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 decision on when people can be deported, and when a deportation can be waived. (The INS is the agency that makes these determinations.) The Court has almost no role when dealing with aliens. Court has very minimal review. Chadha was the 1st time the Court gave full review.

Issue: Is the one house veto a legislative act? Is it ocnstitutional.

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),

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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.

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.

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 i.e. Impeachment, treaties, appointment of Ambassadors:2) The more specificity in the constitution the more likely silence means rejection of that power.3) Statutes get passed when it goes through both houses and gets signed by the President or he vetos it

NOTES: Non-justiciable- not reviewable by the courts Presentment clause- Art. 1-which requires that all legislation be presented to the

President before becoming law. Bicameral requirement- Art. 1, which requires that the legislative branch be divided

into 2 houses, both of which approve all legislation by a majority vote. Legislative veto- mechanism used by Congress as a check on the exercise of delegated

authority where by Congress reserves for itself the power to override a particular such exercise.

Delegation doctrine- a result of the rise of federal agencies. These agencies answer to Art. II to help the President implement federal policy. The President does not create the agencies the legislature creates the agencies.

Agencies- a device used to fill in the gaps of legislation, particularly when it deals with scientific areas it may be more efficient for agencies to deal with those who are affected, i.e. EEOC, EPA

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Regulations once implemented are the same as statutes Agencies took hold during the New Deal era.

a. Congress could delegate to agencies:i. The rule making authority. There is a point when the delegation

gives too much power away, making it unconstitutional. Heads of agencies report directly to the President.

b. Agencies also have investigational powers, which mean that theoretically they can pass laws. Not a separation of power problem.

c. Adjudicatory powers-a major exception to this would be immigration because the Court always has the power to decide jurisdiction.

U.S. v. Nixon

Facts: Cert. granted after denial of a motion to quash a 3rd party SDT. Nixon challenged a SDT served on him as a 3rd party requiring the production of tapes and documents for use in a criminal prosecution. Nixon refused to turn over tape recordings and documents subpoenaed in the Watergate investigation.

Rule: The President does not enjoy an absolute generalized privilege, which would allow him to shield all communication from a SDT in a criminal proceeding.

Holding: Nixon’s first claim, that separation of powers bars the judiciary from evaluating his claim of privilege, must fail. Past decisions such as Youngstown show that the courts do have the power to invalidate acts of the executive and the legislative branches. It is the job of the judiciary and no other branch to determine what the law is. Nixon was claiming a broad, absolute privilege without any assertion that it is necessary for the protection of the military, diplomatic or national security secrets. JUDGMENT OF THE APPELLATE COURT AFFIRMED

Perhaps the Court envisioned that if the President claimed and enforced an absolute privilege for his communications he would then be “above the law”.

NOTES: executive privilege- right of the President to keep his communications confidential in certain circumstances.

d. Nixon us about compulsory process. Federal Marshal’s (who serve under the President) would have forced Nixon to comply, basically Nixon would have had to enforce a SDT against himself-so he resigned.

e. The AG is in charge of the enforcement of federal laws, but he answers to the President. He serves at the will of the President and is 2nd in command.

f. Fitzgerald v. Nixon - civil action for damages,( for unconstitutional firing) because of a decision made during the Nixon presidency-follows after Nixon resigned.

1. The Court held that the President is not liable for acts occurring during his Presidency. If the Court had allowed this liability (1) no one would be President i.e. too damaging to the Presidency

2. The President would be personally liable “Official act” is the deciding factor in executive privilege. Clinton v. Jones -unofficial act prior to taking office

o Clinton argues for a stay of civil litigation until his term is over to avoid being distracted from his duties as President. (Art. II)

o The Court unanimously ruled out that Art. II power required a stay of litigation –Article II does not require the Court to grant an automatic stay during the pendency of civil litigation, which means the President can be

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sued while in office for acts occurring before his Presidency. (no automatic stay)

Art. II President↓Special Prosecutor →→→→→→→→Once you delegate you may give up some control Mr. President and you are no longer exempt from absolute executive privilege. (The Special Prosecutor investigates his boss)

NOTES: The President needs to be able to speak candidly with his advisors, therefore the

President should have executive privilege, i.e.o Policy issueso Response of publico Media pressureo Particularly in regards to national securityo Controversial issues

The needs of the Criminal Justice system must be considered and overrides executive privilege. The Court decided that the needs of the people were so important and must be balanced with the needs of the indicted so-conspirator to be protected to ensure that they are properly convicted.

National security or military security needs should be presented before executiver privilege would be effective.

Privileges must be narrowly construed. Needs of criminal defendants or to ensure sufficient exists and must be balanced

with privilege.

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 seas5) 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?

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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. Foreign affairs power is for both Congress and the President.

It is not an unconstitutional delegation of Congress’ power to give the President authority to prohibit the sale of arms to a foreign nation engaged in conflict.

Notes: There was no violation of a statute here, but of a joint resolution. A joint resolution is not a law and it does not follow the “finely wrought” scheme. The President decides foreign affair issues.

Foreign power is exclusive to the federal gov’t not state government. Federalism plays no role in limiting foreign affairs and Presidential power plays special role in foreign affairs.

Federalism plays a small role in the areas of foreign affairs and immigration.

Immigration Foreign AffairsPlenary power doctrine ↓

↓

Chae Chan Ping Curtis Wright

↓ ↓

Civil Liberties Individual Liberties

Limits on Federal Government

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1. Judicial Review-as a limit on government power because Court will look to Congress or President in case or controversy and determine limits.

2. Commerce/Federalism (Balance of power between federal and state) –plays a major role today in the world of commerce spending- Court used principle to restrict federal legislation

3. Separation of powers- Budget cuts are not an executive function, therefore line item vetoes are unconstitutional

4. Individual Liberties

In foreign affairs it is the exclusive realm of the federal government even though it is not enumerated in the Constitution. The primary purpose of the constitution was to carve out those powers the framers though desirable to vest in the federal government leaving those powers not included in the enumeration still in the states.

Bowshear v. Synar- makes clear that Congress cannot carry out executive functions

Facts: Appeal from judgment in constitutional challenges to statute. Appeal from decision that Gramm Rudman-Hollings Act violated the doctrine of separation of powers.

Plt’s actions against Bowshear, the Comptroller General of the US, who was assigned by Congress, under the Gramm Rudmann-Hollings Acts, the duty of effectuating across the board spending reductions in the Fe. Gov’t. Synar contended that the Act was unconstitutional because Bowshear was authorized, under the Act, to exercise executive functions, violating the doctrine of separation of powers.

Issue: May an officer who is removable by Congress be given the job of executing a statute? When Congress elects to exercise its legislative power, it may not authorize a lesser representative of the legislative branch to acts on its behalf.

Rule: It is a violation of separation of powers doctrine for Congress to impose executive functions on an officer over whom Congress has the power of removal.

Holding: The broad power of Congress to remove the Comptroller from office provides evidence of the Comptroller’s subservience to Congress. The Constitution allows Congress to remove officers charged with executing its laws only by impeachment. Here, Congress can remove him by joint resolution or impeachment for “crimes less than treason.”

The Act clearly requires the Comptroller to engage/perform executive functions. The Court held that Congress couldn’t reserve for itself the power of removal of an officer except by impeachment. AFFIRMED

To permit an officer by Congress to execute the law that Congress enacts would be to permit a congressional veto. Congress is asking a congressional officer to engage in Administrative duties and tried to take power away from the executive.

White

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Dissent The majority’s approach is overly formalistic and rests on a provision for removal of the Comptroller that presents no real threat to the separation of powers doctrine. The role of Congress in the removal of the Comptroller should not be enough to make the Comptroller an agent of Congress who is incapable of performing executive functions.

This decision also turns on the fact that Congress could remove the Comptroller by joint resolution, which represented the same sort of legislative veto that was struck down in Chadha.

StevensConcurrence The Comptroller General must be characterized as an agent of Congress because of his

long-standing statutory responsibilities.

Morrison v. Olson-Supreme Court upholds constitutionality of the Independent Counsel

Facts Congress passed a law, which provided for an independent counsel, appointed by judicial branch to investigate and prosecute crimes by certain officials. Ethics in Government Act provided for the appointment of an independent counsel by a three judge Special Division of the Court of Appeals. (Appointments Clause)

No decision by the AG was reviewable under the Act, whether to seek or not to seek an IC. IC could be removed only by AG for “good cause” or by Congress by impeachment.

Olson and others sued after being subpoenaed by Morrison, a newly appt’d IC.

Issue: Does a provision for the appointment of an IC violate the separation of powers doctrine?

Rule: The Act does not violate separation of powers doctrine, as it gives the executive branch sufficient control over the IC to render the President able to perform his constitutional duties to ensure the execution of law.

Notes: IC statute was eventually declared unconstitutional because the removal process conflicted with the separation of powers doctrine. IC interferes with the executive function. Usurpation of executive power becomes a problem.

An inferior officer can perform only limited and specific duties and is removed by the AG.

IC’s jurisdiction is limited and is decided by the judges The IC has limited tenure The IC is removed by the AG The IC is not appointed by the President or with his approval.

ScaliaDissent: As the IC performs an executive function; President should have complete control over

the IC. IC is an inferior officer and not solely appointable by executive branch.

Metro WA Airport Authority v. Citizens for the Abatement of Aircraft Noise

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Facts: Before 1986 airports in the D.C. area were under the control of the Federal Gov’t. In 1986 Congress enacted the Transfer act, which authorized the transfer to Metro WA Airport Authority, a state agency. The transfer was conditioned on the creation of a Board of Review with the power to veto major decisions made by the Directors of the Authority.

Citizens sought to declare that the power to review decisions of the authority by the Board unconstitutional because of the separation of powers doctrine.

Holding: Court began its analysis by rejecting argument that the separation of powers principle was inapplicable because state statutes created the Board.

Separation of Powers scrutiny is mandated when: The entity is created by Congress; The powers of the entity are delineated by Congress; The purpose of creating the entity was to protect federal interest; and Membership in the entity is restricted to Congress

The Court then held that the statutes principles had been violated. The Constitution imposes 2 basic and related constraints on Congress:5. It may not invest itself with either executive power or judicial power (see

Bowshear)6. When it exercises its legislative power Congress must follow the “single, finely

wrought powers of Article I. (see Chadha)

RehnquistMarshallWhiteDissent: The separation of powers principle was inapplicable because the Authority and the Board

were creatures of state law. It does not follow that Congress created the Board or that Congress’ role is a factor mandating separation of powers scrutiny.

Notes: Bowshear made clear a “critical factor” in determining whether an official is “subservient to Congress”; it is the degree to which Congress maintains the power of removal. The Transfer act contains no removal provision.

The statute is a violation of bicameral and presentment provisions.

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

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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 couldn’t 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.c. 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.

4. 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. The court viewed the states rather that the Federal Gov’t as a guarantor of a citizen’s civil rights and the Court was unwilling to read the 14th as referring to any civil liberties already within state power to accord, secure and protect.

EQUALITY AND THE CONSTITUTION-14TH AMENDMENT

I. All persons shall be treated equally under the law.

II. Race and the Constitution

A. Doctrine of equal protection has evolved significantly during the last 200 years.B. Constitution and Slavery

i. Early to mid 1800s slavery was generally considered to be legitimate under the Constitution.1. See State v. Post-Court held that the Constitution’s promise of liberty is not

consistent with slavery.2. Dred Scott furthered this view in 1857. The Court held that

(1) Slaves were not “citizens” within the meaning of the Constitution.

(2) (2) States cannot grant to a slave the right of citizenship in the U.S.

(3) Congress has no authority to prohibit slavery.

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C. Post Civil War Amendment & Casesi. 13th Amendment abolished slavery

ii. 14th Amendment-equal protectioniii. 15th-voting rights

1. These three amendments did not completely abolish slavery. See Plessy-the Court held that while the 14th Amendment was enacted to enforce the absolute equality of the races, it was not intended to abolish distinctions based on color, or to enforce social equality or co-mingling of races (separate but equal)

State v. Post

Facts: Suit by slave seeking his freedom on the ground that NJ state constitution guarantees, “all men are by nature free and independent.”

Slaves were seen as inferior and therefore slavery was good for them and it protected them.

Issue: Does NJ constitutional statute require that slaves living within the state be set free?

Rule: Declaration of Independence guarantees that all men are created free and equal and the Constitutional promise of liberty is not inconsistent with slavery and it does not require the freeing of slaves.

Holding: If NJ convention had intended to abolish slavery it would have adopted some clear and definite provision to affect it.

Notes: This opinion points out how the language of the Constitution and its interpretation demonstrate that at the time of the framers, slavery was so widely accepted that abolition was not seriously considered but the possibility was left open of freeing the slaves at a later date.

???To what extent is judicial review a product of the surrounding culture? Some things are about LAW and some things are about MORALITY…i.e. slaves were seen as inferior and therefore must be cared for, hence, slavery was a good thing, and the abolitionists were seen as EVIL.

Plessy v. Ferguson (1896) ----Separate but Equal

Facts: 1890- La. Statute required railroad companies to provide separate but equal accommodations, (the separation of the races). Under the statute passengers using the facilities not designed for their races were criminally liable.

Plessy professed to be 7/8s white was prosecuted after refusing to leave a portion of the train reserved for whites. Supreme Court upheld the constitutionality of the statute.

Issue: Do laws requiring the separation of the races in public accommodations violate the 14 th Amendment?

Rule: The 14th Amendment was not intended to abolish distinctions based on color or to enforce social equality or commingling of the races.

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Holding: Laws permitting and requiring separation of the races in places in which races mingle do not imply the inferiority of either race and do not violate the 14th Amendment.

Notes: Plessy upheld the separate but equal standard and in essence upheld separation of the races. For separation to be proper:(1) The purported purpose of the separation had to serve a government interest other than making one race inferior.(2) There had to be a reasonable exercise of police power;(3) Great discretion had to be given to the legislature in determining what would promote the preservation of public peace and good order. (The Court held that separation would promote public welfare) (4) Justice Harlan in his prophetic dissent stated that separate but equal will not last. The Plessy decision will stimulate aggression more or less brutal upon the admitted rights of black citizens.(5) The Supreme Court in Plessy legitimated state enforced racial segregation and held that Equal Protection Clause was satisfied when state treated members of different equally.(6) Plessy was meant to give legal equality, not social equality. The Government will not force people to commingle.

Sources Used by the Court:

1. Law based on morality:a. Affirmative action;b. Hate crimes;c. Reproduction rights; andd. Sexual orientation

Intent2. Should judges go further beyond the framer’s intent?

Is the framer’s Intent still alive and well and used as a boundary on today’s court?

3. Legitimacy of Court’s decision (i.e. Miranda)a. Logical consistencyb. Precedentc. Honesty in the opinion

DISCRIMINATION

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A. 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.

All laws discriminate by making classes of people. Subject to rational basis test and 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:

2. what is the government interest?3. Is it (depending on the level):

a) legitimateb) importantc) compelling?

4. 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:5. is this an immutable characteristic (unchangeable by will)?6. ability of the group to protect itself in the political process?7. is the distinction the result of a fair, democratic political process?8. 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.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.

Dred Scott v. Sanford (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.

first substantive due process case

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the 14th amendment was motivated by this case and things like black codes.Stauder v. WV (1880)

Facts: State murder conviction of an African American was challenged because a statute forbade blacks from serving on juries.

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.

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.

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

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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. The law is in place to protect civil rights. The Court took a very narrow view of Equal Protection during this period.

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.

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.

The opinion of the Brown court thought that education was vital to the development of the nation and to participatory democracy. Segregation creates a stigmatic injury; see Allen v. Wright, where the court acknowledged the stigmatic injury but the Brown court determined that the children were an identifiable group. It is important to look to history but is more important to look to the plain language of the amendment for current analysis.

One of the goals of Reconstruction was to implement public education, but it was easier and safer to keep the schools segregated by the 1950s-public schools were well established, but segregated.

Brown II, fashioned a remedy, and the remedy was mandated integration “with all deliberate speed.” Full implementation of the principles of Brown I may require varied local solutions. It was left to school authorities to implement those solutions.

De facto segregation: comes about by forces other than a statute and was developed as a result of voluntary decisions.

Brown 1 statute was facially discriminatory, while Brown II was facially neutral. Underinclusive-a statute that has not included some groups who may pose a real

risk, i.e. diabetic, alcoholics, ex-offenders (see NYTA v. Beazer) Overinclusive- people or jobs that do not pose a safety risk i.e. methadone users

who sweep

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.

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Loving v. VA (1967)-Race specific classifications that are facially neutral

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 14 th 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. Protecting “racial superiority” was not a legitimate interest and will not be upheld.

Equal Application:Where a statute makes otherwise acceptable behavior criminal only because the participants are of different races, it is violative of EP, even if the participants are punished equally.

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.

City of Cleburn v. Cleburn Living Center

Facts Cleburn Living Center purchased an old building to develop group home for the mentally retarded. Cleburne zoning ordinance permitted a number of different types of structures to be build, but specifically disallowed group homes for the retarded. Permit was denied.

Issue: Are the mentally retarded deserving of protection under Equal Protection?

Rule: Classifications involving the mentally retarded are not entitles to a high level of scrutiny, in order to withstand equal protection review such classifications must be rationally related to a legitimate governmental purpose.

Holding What is the class here? Mentally retarded.Purpose served by the statute? Negative attitude-patients harassed, safety of patients

There was demonstrable animus exhibited toward the mentally retarded. Therefore the Court is willing to set rational basis scrutiny aside in favor of heightened scrutiny.

A law will be deemed unconstitutional unless the gov’t demonstrates that it has compelling interest that justifies the classification at issue.

Yick-Wo v. Hopkins (1886)

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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. This was a 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. The manner of administration determined that the statute was racially discriminatory and called for strict scrutiny.

See Gomillion, Civil Rights case involving gerrymandering to exclude almost all black voters from city limits. This was determined to be facially discriminatory.

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.

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.

Once it is determined that strict scrutiny does not apply, goes to the next level of analysis, rational basis.

Does not end the inquiry if strict scrutiny is not warranted.This case really establishes discriminatory purpose as a basis for de jure discrimination cases.

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):

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Evidentiary sources to reveal official actions: Historical background, especially if it shows a series of questionable official

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

account)The Court held that there was a high need for direct proof. Impact alone was insufficient.Administrative history: Facts here that would have suggested discriminatory intent:

changing zoning to single family to avoid the integrated housing. Making it harder to get multi-family rezoning 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.

McClesky v. Kemp

Facts: Blk. Def. was convicted in a GA. Court for murdering a white man and sentenced to die. He filed Writ of habeas Corpus alleging that Georgia’s capital punishment scheme was (1) administered in a manner that was personally discriminatory and (2) discriminated against non-whites. The state argued that the statute was facially neutral. Def. provided the court with a study that statistically found that blacks that killed whites were 43 times more likely to receive the death penalty. District Ct, found the study flawed and dismissed Def’s writ. Appellate court found the study valid but insufficient as to the evidence provided that demonstrated intent in the administration.

Issue: Can a facially neutral death penalty law be struck down simply because one race is being put to death more often than another.

Rule: A def. that alleges an equal protection violation has the burden of proving the existence of purposeful individual discrimination.

Holding: No. Def. must prove that those making the decision in his case acted with purposeful purpose. The Constitution does not require that a State eliminate any disparity with a potentially irrelevant factor in order to operate a criminal justice system that includes capital punishment. The Court upheld GA’s capital punishment statute and scheme.

McClesky stands for the proposition that the Equal Protection clause prohibits the government from engaging in actions deliberately undertaken to injure racial minorities The Court told McClesky that he needs evidence of individual statistics-which imposes a much larger burden on the Def. . The Equal Protection Clause stands for protection of individual rights in the context of race.

Facially Neutral Race Based Classifications:

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o Some laws that discriminate against a particular race are facially neutral in that a look at the text of the law will give a reader no hint of discrimination. When these laws have a discriminatory intent, they are unconstitutional.

MISC. NOTES ON RACE DISCRIMINATION:

Miller v. Johnson: redistricting matter in Georgia. District Ct. struck down the plan. Johnson appealed contending that under Shaw v. Reno deliberate race based voter classification (gerrymandering) is not illegal unless the Plt. shows that the district is bizarrely shaped. The Plt’s burden is to show that race was the predominant factor motivating the legislation.

o Strict scrutiny will apply because states have a compelling interest in remedying previous discrimination

Shaw v. Reno: state redistricting plan that created new majority minority districts. Held that Plts cannot demonstrate voter dilution by challenging redistricting.

o Shaw was a standing case but the Court held that Plt had suffered no injury; only individuals living within the district had suffered an injury.

AFFIRMATIVE ACTION/SET ASIDES

City of Richmond v. Croson

Facts: Suite regarding the constitutionality of a set aside program requiring prime contractors on city projects to subcontract a certain percentage of the contract to a minority business. (City as Gov’t actor=classic 14th Amendment case where the 14th speaks to states)

Rule: State must prove a compelling interest re: remedying specific discrimination.

Holding: States and their political subdivisions are not free to decide which remedies are appropriate. State remedial action must be in accordance with the 14th Amendment.

Benign classification: a classification scheme that favors one group over another but with harmless and non-biased intention.

Remedial classification: a classification that favors one group over another in an attempt to make up for past discrimination or ill treatment.

The Richmond plan was facially discriminatory because it denied certain citizens the opportunity to compete for a fixed percentage of public contracts based solely on race. In such cases, the Equal Protection protects personal rights.

Strict scrutiny must be applied to “smoke out” illegitimate use of race. State must have a compelling interest Must be narrowly tailored to avoid being over inclusive or under inclusive. Check if

there are race neutral alternatives available. Plan has to be flexible with no rigid numbers or quotas. No burdens on 3rd parties. Individual can’t take a direct hit. Is there a waiver out of the plan? What if you can’t find a minority diverse

workforce, can you go with the next bid or next best bid? And set aside must be:

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o Industry specifico Market specifico Race specific

Adarand v. Pena

Facts: Subcontractors low bid in a federal project was rejected because of a federal racial classification. (Actor is the federal gov’t)

Notes: 3 general propositions with regard to racial classifications: Skepticism-we should be skeptical of race-based classifications and subject

them to the most searching examinations. Consistency-all racial classifications must be strictly scrutinized regardless of

the burdened or the benefited Congruence-Equal protection in the 5th Amendment is the same as under the

14th. o Has to be specifico Identifiableo Narrowly tailored

Gender Discrimination- gender-based stereotype, classification must rest on some real difference b/t the sexes.

1. 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. Under Reed v. Reed the states may not arbitrarily prefer men over women as administrators of estates merely because it is administratively more convenient to eliminate one class of people from consideration.

Frontiero v. Richardson (1973)

Facts: Presumption that wives of servicemen 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 discrimination

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d) no relationship to abilityi. this is important because there are sometimes characteristics with

a reasonable basis for making distinctions.ii. Ex: mental retardation

d. Court analogizes women and slaves because their positions were similar1) 14th amendment designed to protect slaves, but did not mention women.2) Court determined that the 14th amendment also protected women. A

constitutional basis.

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 scrutiny. Further, although women could be trusted over men to drink beer, the statute prevented the sale, but not the use of beer.

Under Equal Protection a state must have an important reason to discriminate.

The Court held that gender based classification is subject to intermediate scrutiny.

o Needs an important interesto Substantially relatedo Not based on overly broad generalizations about the sexes

Laws that establish classification by gender must serve important governmental objectives and must be related to achievement of those objectives to be constitutional.

Dissent: whole point of equal protection is to protect women, not men.

Notes: Boren sets a new level of scrutiny in Equal Protection, i.e. gender based classifications is that they must be substantially related to the achievement of “important” governmental objectives.

Rational review standardo Rationally relatedo Legitimate governmental purposeo Almost always upholds a statute

Strict scrutinyo Necessary and compelling governmental interesto Almost always overturns a statute

Intermediate level of scrutinyo Actual purpose of legislature

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o Gender-basedo Classification must be substantially related to achieving an important

governmental function.

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: It does not make sense not to prosecute females. We are trying to prevent sex with minors.

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.

US v. VMI (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.

Califano v. Goldfarb

Facts: Widower brings suit seeking to have a portion of a federal act that discriminates based on gender held unconstitutional.

Rule: Laws that discriminate in favor of a certain class because of gender will be struck down if they do not reasonably compensate the favored group for past discrimination.

Holding: The distinction between men and women in the statute serve to deprive women of protection for their families that men receive as a result of their employment. The statute discriminates against female workers and male spouses. “Benign” gender classifications discriminate against men.

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Both sexes are disadvantaged; stereotyping at work, i.e., that most women who marry do not work and will be more dependent, unlike men who will probably work after marriage and will not be dependant on a spouse.

Califano v. Webster -provision of SSA had the effect of granting to retired female workers higher monthly old age benefits than those received by retired males workers.

o The Court concluded that the differing treatment of men and women was not accidental by product of a traditional way of thinking about females, but rather was deliberately enacted to compensate for particular economic disabilities suffered by women.

Nguyen v. Immigration

Facts: Plt was a child born to US soldier and Vietnamese mother. He came to the US at 6 y.o. to live with his father. At 22, Plt was convicted of 2 counts of sexual assault on a child and INS initiated deportation proceedings.

Father obtained an order of parentage to demonstrate paternity, nonetheless the son’s claim to be a US citizen born abroad failed because he did not meet specific requirements.

Court held 5 to 4 that the statute was consistent with guarantee of Equal Protection.

Kennedy opinion:The first governmental interest to be served is the importance of assuring that a biological parent child relationship exists.

**gender based classifications serve important governmental objectives and must be substantially related to the achievement of those objectives.

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

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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.

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

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 scrutiny1) if it is within this exception, apply rational basis.

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.

Note State can, in an appropriately defined class of positions, require citizenship as a qualification for office.

Roe v. Wade

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.

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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.

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.

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.

Planned Parenthood of S.E. PA v. Casey

Facts: PA Abortion Control Act required the following things in order for a woman to get an abortion:1. Informed consent provision:

Woman had to receive information about the procedure 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. Court reassesses the state’s interest and rejects the trimester framework.

Now the state can regulate abortion from conception 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

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of cases, neither of which has undermined the right Roe found in the fourteenth amendment:

Notes:

Griswold and its line of cases protect marital privacy and sexual intimacy. 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.

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