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CONSTITUTIONAL LAW
SPRING 2008
ARMSTRONG
Exam Thought Process
Has the federal government been granted the power to so act?
This may be, even if not explicitly granted in the Constitution
RECALL:
• Sovereign immunity prevents suits against US and officers w/o its consent
• 11th provides limitations re suits against states in federal courts
o States can still be sued on causes of axn passed by Congress pursuant to delegated powers, and state officials can be sued for violating C rights
• Federal courts can only hear cases or controversies (general, present dispute)
• Harm complaint of must be real, and litigants must have personal stake
• Injury must be remediable by judicial relief sought
• SC won’t review a state court decision unless all state procedures have been exhausted, judgment is final, and federal issue is conclusive
• SC will refrain from deciding political questions
INTRODUCTION TO THE COURSE AND THE CONSTITUTION
• Article III: Judicial branch and Judicial Power
o Places judicial power in SC and any lower courts that congress creates
• Article I: Legislative branch
o Enumerated powers (legislative powers, vested in Congress)
o Limitations
▪ Congress does not have general police power based on the Constitution
• Articles I, IV, and VI: Limitations on States
o Dormant commerce clause
o Pre-emption
o Privileges and immunities
o Supremacy clause: Constitution is supreme law of the land, so state powers are limited
• Amendments
o 5th and 14th: Individual liberties as limitations on federal and state governments
o 10th: powers not delegated to US by C, nor prohib by it to states, are reserved to states
• NOTES
o Structurally, the C can provide a sense of how to interpret it (e.g. Art 4 rxns on states)
POWERS OF THE NATIONAL (FEDERAL) GOVERNMENT
JUDICIAL POWERS
o Source: Article III
▪ The C provides for one SC and such inferior courts as Congress may establish
• But Art III doesn’t require them to grant full jxn to lower courts
o Scope
▪ In essence: SC authority to review acts
• USSC has appellate jxn over non-enum SM (3.2.2)
• USSC exclusively interprets const’lity of congressional acts or EOs (Marbury)
o Congress can’t expand jxn beyond C
• State must obey USSC constitutional decisions (Cooper v. Aaron)
▪ Art 3.2: Jurisdiction is limited to cases:
• In L/E, involving the C, acts of Congress, or federal treaties
o Or those affected amb/pub mins / consuls, or admiralty
• In which the US is a party
• b/w a state and citizens of another state
• controversies b/w 2+ states OR
• b/w citizens of different states / diversity cases
▪ Limitations on scope
• Doctrine of adequate and independent state grounds
o Court won’t review case b/w separate and suff state law basis for const exists
▪ GR: court, upon reviewing state ct decision, only reviews fed Qs
▪ When fed const claim is premised on unsettled question of state law, fed court should “stay its hand” to give state courts a chance to settle it
• Sovereign immunity doctrine
o US (or federal officers acting as such) can’t be sued w/o consent
▪ Consent general comes from federal statute
• 11th Amendment (see chart at bottom)
• Suits against states in their own courts
o fundam aspect of present sov, except as altered by subs amendmts
o Jurisdiction of the Supreme Court
▪ Original: ambassadors, public mins, consuls, and cases where state a party
• Provision is self-executing; Cong can’t restrict/enlarge SC’s orig jxn (Marb)
• Concurrent jxn (w/ lower federal courts) is possible
• Art III, sec. 2. Limited to controversies b/w 2+ states (28 USC 1251)
▪ Appellate: all other cases re law/fact, with exceptions/regulations as legislated
• Judicial review (see section below)
• Statutory regulation of appellate jxn (3.2)
o Invoked by appeal (mandatory), or by certiorari (more common)
▪ Appeal / mandatory
• From 3-judge federal district court panels that grant/deny injunctive relief
▪ Petition for writ of certiorari
• for judgments of state’s highest court, where:
o Const’lity of US statute/treaty in Q OR
o State stat in Q on grounds it viols C / fed law
• From federal COA in any civil/crim case
▪ Granted only where special/important reasons
• Not related to merits; just that < 4 justices felt it desirable to review it
o Limitations on statutory regulations
▪ Other political restraints on SC
• Senatorial confirmation of justices (art 2.2.2)
• Impeachment (2.4)
• Court-packing (3.2) / control over size/salary
• Amendments to overturn SC rulings (though rare – only 4 times)
o Cong: 2/3 vote, then ratify by ¾ states (traditional method)
o 2/3 states can apply to call const convention for proposing A’s
o Political culture of self-restraint, & reversals in const doctrine can occur by jud axn, w/o changing words
o Limitations on jurisdiction of Federal Courts
▪ “Case or controversy”
▪ [Doctrines of Justiciability – see section below)
• No advisory opinions (below: policy from Rescue Army)
• Standing (see breakout below)
• Ripeness
• Mootness
▪ Additional conditions for review of state court decisions (req’ts)
• Claimant has exhausted all available state remedies
• State judgments be final
• State decision turned on subst “federal question”
• Can’t be an “adequate and indep state ground” for ruling
▪ Other policies of “strict necessity”
• Must be const issues raised in a case
• Prudential principles of judicial self-restraint
▪ Challenges to state axn in federal courts
▪ Political questions (see below)
o Effect of declaration of unconstitutionality
▪ Theoretically binding only to parties, but practically to everyone
▪ Retroactive: in all cases open on appeal and to all events
▪ Partial invalidity: where part of statute is unconstitutional, Court looks to legislative intent (severability) to decide whether whole statute is invalid
JUDICIAL REVIEW
• Allows SC to hold unconstitutional:
o 1) acts of other branches (Marbury, Cooper, Dickerson, below)
▪ Marbury v. Madison: established jud review re other branches
• Judiciary had power to interpret laws re const (not leg)
• Jud Act did conflict with Const
o M did have vested right to commission (once sealed), w/ legal remedy (since executive had specific duty [not political matter]), but mandamus on orig jxn would have enlarged orig jxn (which is not okay)
• Thus, court can’t auth writ of mandamus b/c it’s contrary to the C as an act of orig jxn
o Affirmed constitutional supremacy
o Prov. of Jud Act of 1789 = unC b/c Cong can’t allow O jxn beyond enum sits
▪ Cooper v. Aaron (p. 20): extended Marbury; the interp of 14th in Brown is supreme law, and Art IV makes it binding on states
• (including governor/leg) to extent it doesn’t conflict
▪ Dickerson v. US (p. 21): held Miranda decision shouldn’t be overruled by acts of Congress since it was a constitutional rule rather than simply an exercise of supervisory authority in absence of congressional direction
• Dissent: problem = court says it has power to apply C AND expand it; too much, antidemocratic power
o 2) state statutes and executive action
o 3) & review state court judgments (w/in fed jud power)
▪ When they present a federal question for review (otherwise no jxn)
• State courts are final arbiters of state law
▪ Martin v. Hunter’s Lessee: held that C gives SC power to review constitutionality of decisions by state’s highest court (through app power); upheld sec 25 of Jud Act (provided for review of final decisions of highest state courts rejecting claims based on federal law) re land dispute
o Hunter lost since court said land never belonged to VA
• Uniformity of law, avoid biased ints
• App jxn b/c matter re fed statute, app jxn in orig axn b/c re national treaty
▪ Cohen v. VA (p. 18): reaffirmed 25 (in case involving DC lottery tickets), concluded jud power extends to cases under C or law of US, whoever the parties
• Sustained jxn to review validity of state laws in criminal proceedings
• Political restraints on federal courts
o Exception Clause of 3.2.2 allows Congress power to limit SC’s app jxn (Ex P McCardle)
• PROS AND CONS (break-out chart at bottom)
o Pros: no other practical substitute; c/b; uniformity across states; protects from erosion of const norms; ascertain meaning of acts from leg body (intermediary)
o Cons: no textual support for it (any power not deleg was reserved to states); unelected court might thwart rep law; shield for political actors; not essential
|JUDICIAL REVIEW | |
|PROS |CONS |
|Important in a system of decentralizing government to have checks/balances; limits on |No textual support for judicial review |
|govt power are meaningless unless subject to judicial enforcement |any power not delegated by C was reserved to states |
|No practical substitute – it’s a way of solving a practical problem of government |Unelected court might thwart enforcement of law that |
|Only recourse we have; other ways were specifically rejected |presumably reflects will of voters |
|Uniformity throughout the states |Shield for political actors: When PAs avoid making |
|Normal politics v. constitutional politics. |constit’l judgmts out of reliance on court’s ability |
|JR might protect people from erosion of const’l norms during “normal” times |to resolve Qs, evade responsib. as citizens of democ |
|Gov’t not representative anyway; doesn’t take |party (Brest) |
|Fed (No. 78) –belonged to Jud to ascertain meaning of C and acts proceeding from leg |There are well-established democracies that don’t |
|Act as intermediary b/w leg and people |have it |
|It is implied through the authority to decide cases arising under C (esp those | |
|conflicting with basic legal charter) | |
| | |
|Oliver W. Holmes: most imp type of JR is that of state court decisions re federal law, | |
|since we want unif and consist’y w/ C | |
SUPREME COURT AUTHORITY / CASE AND CONTROVERSY / MOOTNESS / RIPENESS
LIMITATIONS ON JURISDICTION OF FEDERAL COURTS
• CASE OR CONTROVERSY (3.2.1)
o Prohibition on advisory opinions
▪ Definite and concrete (i.e. no abstract questions)
▪ Standing must exist (see section below)
o Adverse legal ints
o Substantial controversy (can be resolved by judicial decree of conclusive character)
• DOCTRINE OF JUSTICIABILITY
o No advisory opinions (below: policy from Rescue Army)
▪ Need adversarial proceedings (no collusive or friendly suits)
▪ Ensure against too-broad terms
▪ Don’t want to rule where one fails to show injury
▪ Avoid construing a statute where it’s otherwise possible to avoid the question
▪ Inherent limitations of judicial review process
o Standing (see breakout below)
o Ripeness
▪ Prevent premature adjud; too remote/speculative
• Arises in cases of request for anticipatory relief
▪ Rest of art 3 c/c grounds, but sometimes based on discretionary, remedial, or prudential grounds
• United Public Workers v. Mitchell: need violation first; can’t presume an agent will act wrongfully (e.g. exec branch employees re Hatch Act)
▪ Laird v. Tatum: spec apprehensiveness no good – need spec present obj harm or threat of spec future harm
o Mootness
▪ Actual case or controversy must exist at all stages of review
• (if the matter has been resolved, there’s no c/c)
• Exc (not moot): Recurring issue
o capable of repet yet evade review (preg cases – Roe v. Wade)
• Exc (not moot): Collateral legal consequences
• Exc (not moot): voluntary cessation
• Exc (not moot): CAs, if others’ claims still viable
▪ Litigants who had standing at outset are deprived of concrete stake in outcome by changes in facts/law
▪ Reconcile art 3 with preventing parties from manip the courts
▪ Concrete interest, however small
o Political question doctrine (see below)
• Limitations on statutory regulations
o Court-stripping: Under “exceptions and regulations,” Cong may limit SC’s app jxn (3.2.2)
▪ Ex Parte McCardle: Reconstruction Acts allowed former Confed states to be ruled by mil gov’t. Cong passed an act that repealed to protect Reconstruction and say it the issue won’t go before Court (like here, w/ libelous news editor)
• 17-32, 47-49, MARTIN, COOPER
STANDING
• Prudential requirements (articulated in Valley Forge Christian)
o No assertion of third party rights (generally)
▪ Assert only his own rights
▪ EXC: also rights of others where: 1) diff for 3rd to assert rts, or 2) special relship
• Overbreadth doctrine: person can challenge statute on grounds that it violates the 1st rights of 3rd parties not before court
▪ Association has S if:
• Members have standing
• Interest asserted is germane to association
• Neither claim nor relief requires members participate in suit
o No adjudication of generalized grievances (e.g. taxes)
▪ injury clear enough that you can show how it would be affected by remedy
• But see below re taxpayers
▪ Lujan v. Defenders of Wildlife (p. 32): here, the public int in property admin of laws couldn’t be converted to an individual right by statute that denominates it as such and permits citizens to sue. Did not meet the injury in fact (gg) + redressability req’ts, so lacked standing.
• Cong can’t create a right to suit out of pub int in Exec’s compliance with law; that transfers exec powers to courts
o “animal-” & “voc- nexus” theories were not R bases for suit
▪ FEC: upheld broad conferral of standing in light of prudential concerns re sharing voting activity info
o Plaintiff is within zone of interests
▪ But this req’t can always be negated by Congress
• Bennett v. Spear (p. 45): ZOI obstacle was negated by citizens-suit provision of ESA
• Constitutional requirements
o Personal injury in fact
▪ Distinct and palpable
• Such a personal stake in outcome as to assure concrete adverseness that sharpens pres of issues (Baker v. Carr)
▪ Actual and imminent
▪ Particularized and concrete
• BUT: SCRAP: the fact that an injury is widely shared and relatively insubstantial to any particular litigant won’t defeat this.
o Law students were allowed to challenge ICC rate-setting policy on ground that it discouraged recycling
• Massachusetts v. EPA: state sued in parens patriae capacity, claiming EPA violated CAA by not addressing global climate change.
o The effects of greenhouse gases on coastline were particularized since the coastline is large
o Causation
▪ “Fairly traceable”: D’s illegal axn is legal cause of P’s injury
• Allen v. Wright (p. 42): no causal connxn b/w gov’t and injury to schoolkids; link too tenuous to provide standing
o Deprival of opp to be educated in integrated schools was a judicially cognizable injury, but not fairly traceable to alleged gov’t conduct
• But M v. EPA: EPA’s refusal to reg emissions contributes to mass injury
▪ Not the result of 3rd / indep actor not before the court
o Redressability
▪ Remediable by court (a favorable decision will likely lead to redress)
• M v. EPA: although reducing emissions alone wouldn’t fix environment, it didn’t mean the court lacked jxn to address it re EPA’s duty
▪ causal connxn b/w alleged injury + relief requested
• in Lujan: no assurance that threat of withdrawing US funding (a small fraction of total funding) would cause projects to be terminated
• Congressional power to confer standing
o Vermont Agency of Nat Res (p. 46): cong-auth privately initiated public axn met c/c req’ts (okay if injury is shown)
▪ Priv indiv has standing as an assignee of gov’t claim
o But see Lujan, above. Can’t go beyond req’t of injury in fact
• No citizens’ standing (to claim that federal statutes are constitutional; too indirect)
• No taxpayer’s standing
o unless for spec injury from fed expenditure or alleging spec const limit was exceeded
▪ Flast v. Cohen (allowing challenge to def statute granting aid to religious schools)
▪ Valley Forge: limited this to gov axn under spending clause (not in-kind transfer of property)
▪ Hein: further limited to challenges brought under EC against congressional appropriation (held it inapp to exec expenditures on faith-based initiatives)
• FEC: upheld broad conferral of standing in light of prudential concerns re sharing voting activity info
• No legislators’ standing
o Exc: challenge const of govt axn if they have suff personal stake in dispute and suffer a concrete injury (Raines)
▪ Raines v. Byrd: No standing for leg who had voted against Line Item Veto Act
▪ Coleman: standing, since their vote was nullified
• Standing of a state
o State may attack validity of fed axn affecting state’s own property int
▪ But cannot attack fed statutes on ground that Cong exceeded its delegated powers (absent auth by Cong), nor can state assert PP the claims of its citizens against fed govt
o But it can assert such claims against another state
POLITICAL QUESTION “DOCTRINE”
• Even if a case meets other requirements, SC generally will not decide a case that presents a PQ rather than a justiciable controversy
o Separation of powers – leaves it up to executive or legislative branches
• Strands of modern PQ doctrine
o Textual (Constitutional) strands
▪ Some matters committed to unreviewable disc of political branches (Marbury)
▪ Constitutional interp – has there been a textually demonstrable constitutional commitment of issue to a certain political department?
o Prudential strand
▪ Otherwise-legal Qs should be left to other branches as matter of prudence
▪ Judicial discretion: is there a lack of judicially discoverable/manageable standards for resolving the issue? Enforcemt probs? Inst difficulties?
• Criteria (from Baker v. Carr, re Guaranty Clause)
o Textually demonstrable constitutional commitment of issue to political branches
▪ Colegrove v. Green: court declined to address cong redist scheme since “C conferred on Cong excl auth to secure clear rep by states” (1.4)
o Lack of manageable stds for judicial resolution
▪ Note: this may mean more likelihood re #1
o Need for finality in action of the political branches
o Difficulty/impossibility of devising effective judicial remedies
• Application
o Guaranty Clause – Republican form of government (Art IV, addressed in Baker)
• Commits to political branches any question of enforcement
▪ Baker: Tennessee voters said required reapport (reviewable on EP basis, not GC)
• Note: the decision said that EPC has manageable stds whereas GC doesn’t – but a vague dxn b/c reapp issue could be enforced under both
▪ Luther v. Borden: GC empowered another dept (Cong?) to resolve issue of breaking/entering by agents of martial law in RI (amid insurrection)
o Foreign relations – sometimes (depends on means of resol – speak with single voice?)
▪ Goldwater v. Carter: Q re whether Pres could unilaterally terminate a treaty was PQ since it was a dispute b/w coequal branches
o Existence of hostility (finality of decision and certainty required)
o Validity of legislative enactments or constitutional amendments (usually a PQ)
▪ Coleman v. Miller: Q re R period of time for state ratification = nonjust PQ, since impeachment meant to be a check on judiciary (also, a need for finality)
o Military organization
o Impeachment (1.3.6.)
▪ Nixon v. US: Fed judge challenged trial by Senate committee as unconst; court said nonjusticiable (1.3: “Senate shall have sole power to try”)
• NOTE: McCormack was distinguished b/c court said it could only determine cong quals – not whether someone satisfied them
o Internal political dispute (mostly PQ)
▪ Bush v. Gore: recounts were unconst under EPC; but perhaps a bad call, since statute reserved to political branches the task of addressing contested elections
• 12th doesn’t mention judiciary re electoral college
• Maj opinion didn’t really address PQ issue
▪ Vieth v. Jubelirer: alleged gerrymandering was a PQ; lacks manageable stds
• The race question wasn’t basis; pol affil not that discernable; EP for persons, not political parties
o Political rights – not necessarily (might involve 5/14th Qs, w/ well-developed jud stds)
o Congressional membership – sometimes
|POLITICAL QUESTION DOCTRINE | |
|PROS |CONS |
|Ability to avoid controversial const Qs, limits court’s role in democ |JR serves to effectuate and uphold the const – matters were placed in |
|society |C to insulate them from majoritarian control |
|Allocates decisions to branches w/ superior expertise in certain areas|No evidence that particular rulings affect jud’s |
|Fed court’s self-int disqualifies them from ruling on certain matters |credibility/legitimacy |
|SOP – minimizes judicial intrusion into operation of other branches |court’s mission should be re upholding C; not political capital |
| |confuses deference with abdication |
NATIONS AND STATES IN THE FEDERAL SYSTEM
JUDICIAL REVIEW OF STATE LAW
• History of legislative branch in relation to states
o AoC were weak; states were separate pol entities and congress had very little power
▪ Peace/war, ambassadors, treaties/alliances
▪ Exports/imports, value of coins, trade
▪ Trial of piracies/felonies, appeals re captures
▪ Indian affairs
o AoC emphasized limits of powers
o Constitution
▪ Cong’s most important powers: levy taxes, reg interstate/foreign commerce
• Necessary and Proper Clause (1.8.18)
o Cong may choose any means not prohib by C to carry out express authority
▪ Choice of means: w/o a means of enf, you create dependency on other gov, which is contrary to C (McCulloch)
o Framers
▪ Hamilton/Madison thought it was harmless – just meant useful
▪ Jefferson thought is meant essential – strictly limited fed gov’t (strict cxnist)
▪ Evidence re intent
• Placed among enumerated powers, not limitations
• Terms purport to enlarge, not diminish powers vested in govt
• Purports to be an additional power
• 10th elimin. “expressly” – so “powers not deleg to US” could be invoked
o Enumerated powers (primarily Art. 1.A)
▪ 13, 14, 15, 16, 19, 23, 24, 26
▪ W/o enum, Cong has no auth (since no general police power re heal/saf/welf)
▪ Articles 1/2 didn’t provide specific state immunities (only thing: 10th)
o Scope of leg power, and relationship to state government authority
▪ McCulloch v. Maryland: broadly construes Cong powers, narrowly limits authority of state govs to impede fed gov. Said Cong can charter a corporation
• BUS established after dispute
o Pros: augment capital, pecun aids, facilit payment of taxes
o Cons (Jeff’s crits): unconst; “necessary” meant essential – C meant to restrict them only to what was absolutely necessary
▪ But Hamilton: not the intent; they have a range of “necessary” terms, e.g. absolutely
▪ Explicit sanction of doctrine of implied powers
• Maryland tried to limit operation of BUS by taxing it (any bank not chartered by state paid either annual $12,000 or 2% on all notes)
• Can Cong create the BUS?
o Historical (albeit unreviewed) practice suggests YES
o “it is a C we are expounding,” not a statute ( dramatic expans
▪ If there’s a power, there’s a right to create means of enf
o N, here, means useful/desirable, not “essential”
▪ n/p clause in 1.8 (expands) not 1.9 (limits)
▪ choice of means ( right to choose nat’l bank
• means should: tend directly to execution, be appropriate and plainly adapted
o no req of nec/indispensability
• Can it collect a tax from BUS?
o NO; this would impede operation and perhaps kill the BUS
▪ Power to create ( power to preserve
▪ States can’t destroy what was enacted by enum powers
o Taxing BUS = taxing other states + those w/o rep in state (illegit)
▪ There is no right to tax the means; avoid abuse
▪ Govt shouldn’t be dependent upon states
▪ Rep reinforcement: courts should make up for flaws in operation of rep gov or breakdowns in pol process
• Important points
o Refutes compact federalism (i.e. state = ult sov b/c they ratified
▪ instead, the people are sov and fed gov supreme
o expansively defines cong powers (strong nationalist position)
o limits ability of state to interfere with fed activities (tax/reg)
▪ though C doesn’t expressly prohib, there are limits
• States have no power, by taxation or otherwise, to retard, impede, burden or control operations of con laws (instrument) enacted by Congress to carry into execution the powers vested in general govt.
▪ US Term Limits v. Thornton (p. 76)
• AK voted to amend state C to impose term limits (3 for HR, 2 for S)
• Court said states have no auth to change/add/diminish reqs of qual clause (instead, they must use C amendment process)
• Disting McC: even if gov immune from state tax, not from state TLs
• Supremacy Clause (6.2)
o State law is void is inconsistent with purpose of federal law
• Commerce Clause (1.8.3, discussed below)
Types of congressional powers:
Express/enumerated powers (1.8)
Implied powers under N/P (1.8)
Inherent powers (usually: foreign affairs)
Note: no domestic inherent powers
Curtis v. Wright
Major powers of Congress:
Postal
Aliens, naturaliz, citizenship
Columbia
Elections, congressional
Civil
Rights
Interstate Commerce
External/Foreign affairs
Defense
Spending for general welfare
Taxing
Admiralty
Bankruptcy
Lands owned (federally owned lands under property clause)
Eminent domain
COMMERCE CLAUSE AND FEDERALISM-BASED LIMITS
• Source (1.8.3, but also parts of Art IV and 13/14/15)
o Framers: wanted to create effective nat’l regulatory power over interstate commerce
▪ “Cong shall have power to regulate commerce with foreign Nations, and among the several states, and with the Indian Tribes”
• Discussion
o Congress may regulate “channels” and “instrumentalities” of interstate commerce, and activities that have a “substantial effect” on it
o Rational Basis review
▪ If a local activity viewed in aggregate has subst effect on interstate commerce
• Only economic activity (Lopez)
▪ E.g. aggregation (Wickard, Gonzales)
COMMERCE POWER BEFORE THE NEW DEAL / NEW DEAL CASES
• Pre-1887: few cases re commerce power
o Gibbons v. Ogden (p. 83): G said he had right to operate steamboat despite monopoly rights, since licensed under fed law as “vessels in coasting trade.”
▪ Interp’d fed statute to pre-empt NY monopoly law under Sup Clause of Art IV; thus, G authorize to operate there
▪ “Commerce” = traffic, also intercourse. All phases of bus, incl. navig.
▪ “Among states” = intermingles; concerning 1+ state (not “in midst of”)
• ( case by case inquiry re whether interstate effects
▪ State sov and 10th don’t limit congressional power here. The sole check on congress in this area = political process.
• 1887-1937: Narrower view of scope of CP
o Cong used CC as basis for enacting econ regs, and many federal laws were invalidated as exceeding scope of power or violating 10th (thus rejects Gibbons)
o First time SC really used power of JR to invalidate federal/state laws
▪ ConLaw since 1937: court has deferred to federal/state economic regs
▪ 1900 – 1937: Congress more active in trying to use commerce clause as basis for regulating industrial nation we had become
o Commerce = narrowly defined as one stage of business
o Direct/indirect effects test
▪ ICA and Sherman ( challenges ( new jud limits on CP
▪ US v. Marigold (p. 84): Cong enacted laws to improve water and land transport, and laws prohib importation of counterfeit money
▪ US v. EC Knight Co. (Sugar Trust Case) (p. 85)
• ASRC acquired companies, gov challenged under Sherman (claimed monopoly); court said statute didn’t extend to challenged monopoly, b/c Cong couldn’t const reach a monopoly in “manufacture” under CC
• “commerce” is not a part of manufacture
o Challenged axns related excl to acq of refineries; no distinct relation to commerce b/w states
• Dissent: combo affected freedom to buy/sell ( direct effect
▪ Schechter Chickens = no direct effect, so unconst
o Substantial effects test
▪ Emphasized the practical physical/economic effects of regulated intrastate activs on IC
▪ Houston E&WT Ry Co. v. US (p. 86): several RRs had set rates for hauls within TX lower than those b/w TX/LA. ICC ordered them to end. Court said RR operations had close and substantial relation to interstate traffic – it was essential/approp to security of that traffic, effic, fair terms
• Cong has power to foster/protect IC, take measures to that end
o Stream of commerce test
▪ Some local activities can be regulated b/c “in” commerce or integral part of “current of commerce”
▪ Swift v. US (p. 87): sustained Sherman Act injxn against price fixing by meat dealers (stockyard was just in interruption to commerce)
o National police regulation
▪ Used CP to deal with issues of morality/criminality, e.g. gambling, prostitution
▪ Champion v. Ames (Lottery case) (p. 87): upheld Fed Lottery Act of 1895 (man indicted for shipping Paraguayan tix from TX to CA); subjects of traffic, thus subjects of comm. Didn’t worry re implics; possible abuse/power not an arg ag!
• power to reg IC includes ability to prohibit items from being in IC
o Dissent: But you just defeated the operation of the 10th!
• Still, helped sustain many laws excluding things claimed to be harmful
o Hipolite Egg Co v. US (p. 88): shipment of eggs confiscated under Pure FDA b/c label failed – but after it passed out of IC.
▪ Seizure of stuff outside IC (at pt of destination) was ok
o Hoke v. US: upheld Mann Act (prohib transport of women in IC)
▪ As incident to its power over transport, cong can adopt means convenient to its exercise (and that can have the qualify of police reg)
o Dual federalism: fed/state gov = separate sovs w/ sep zones of auth; jud role to protect states by interp/enforcing C to protect zone of activs reserved to states
• (re holdings below, court was more likely to adhere re economic regs, and less likely re morals regs); conserv
▪ court narrowly defined “commerce” to leave zone of power to st
▪ restrictively defined “among the states” = only subs effect on IC
▪ 10th reserved zone to states; fed laws in scope of CP = unC if invaded
o zone of activities = even if commerce and among states, still couldn’t regulate if it intruded into zone of activities reserved to states
▪ mining, manufacturing, and production
▪ Hammer v. Dagenhart (Child Labor Case) (p. 89): grant of CP was to enable reg commerce; not control states in police power over local trade and manufacture (thus the law regulating goods produced in kid factories was invalidated); feared implics of uphold (end of commerce)
• In Lottery/Hipo/Hoke, we could only reg be prohib use of facil of IC to effect evil – that’s not so in Hammer. Here, the goods are harmless.
o The law is unC b/c it controls production, which is for local reg
o Regulating kids’ hours in state transcends auth ( doomsday
• Dissent: sending products across states = no longer states’ control
o Cong should carry out pub policy even where indirect effect
• 1937 – New Deal legislation
▪ RR Retirement Board v. Alton RR Co. (p. 91): Cong lacked power to establish compulsory retirement/pension plan for all carriers subject to ICA.
▪ Schecter Poutry v. US (p. 91): (re Nat’l Industrial Recov Act) struck code provision re hours/wages re chicken industry, since intrastate activities and sold only to local retailers. Schecter violated wage/hour practice re live poultry.
• Rejected analogy to stream of commerce rationale from Swift
• Activs local in immediacy don’t = interstate b/c of distant repercussions
o No direct effect
o Demoralization of price structure
o No const justif in great importance of maintaining wage distrib
▪ Carter v. Carter Coal (p. 93): invalidated law establishing NIRA-like regulatory scheme for bituminous coal industry. (Carter had brought SH suit against co to enjoin from paying tax and complying w/ code.)
• Primarily production = local, local evils
• Any effect is secondary and indirect
• Dissent (Cardozo): don’t interpret D/I too narrowly. Prices for intrastate sales closely reate to those for interstate sales – need protection
o FDR’s court-packing plan
▪ Since things like NLRA and SSA had been declared unC, wanted strong measures to save New Deal from judicial invalidation
▪ FDR’s plan failed, but did he win the war?
• 1937: Owen Roberts “switch in time that saved nine”
o Beginning in 1937, court showed great deference to congressional axn under CP
EXPANSIVE COMMERCE POWER: 1937 – REHNQUIST COURT
1937-1995: Broad. No federal law declared unC as exceeding scope of commerce power
• Arbitrary decisions and irreconcilable outcomes ( need for change
• Depression, fear of laissez-faire attitude
• Tests – Extending commerce clause
o Close and substantial economic relation (NRLB)
o In commerce (Darby) (commerce prohibiting technique)
o Aggregation / substantial effect (Wickard) (cumulative effect)
• Key decisions changing CC doctrine
o 1) NLRB v. Jones & Laughlin (p. 97): J&L was a big multi-state enterprise for coal. The NLRA attempted to regulate all industry. Did it invade the reserved power of the state?
▪ “close and substantial relation” to interstate commerce
• The transport issue – Congress made cnxn b/w goods and IC
▪ When industries organize on a national scale, making their relation to IC the dominant factor in their activities, you can’t say their relations are a forbidden field into which Cong can’t enter when nec to protect IC from industrial war
• NOTE: after NLRB, changes in court ( dominance of deferential stance toward CP
o No more dxn b/w commerce and m/mp – now control over all phases of business.
o No dist b/w D/I effects – Cong can reg any activity that cumulatively had effect on IC.
o No more limit by 10th; now, fed law upheld as long as in scope of Cong power
o Law: Cong could reg any activity if a substantial effect on interstate commerce
▪ prob: it puts virtually nothing past Cong, as long as doesn’t viol another C prov
o 2) US v. Darby (p. 99): Could Cong prohibit shipment in IC of lumber manuf by employees w/ wages state int (RR require national uniformity; safety int was not great enough to o/w
▪ Bibb v. Navajo Freight Lines (p. 220): struck law re use of mudguards on tructs; disprop effect on interstate commerce, and conflicting reg measures (burden > safety int)
▪ Lewis v. BJ Investment Managers (p. 220): struck FA law prohibiting ownership of local investment advisory bus by oos banks, etc. This overtly prevented foreign enterprise from competing – local favoritism
▪ Edgar v. MITE (p. 221): struck Illinois Business Takeover Act designed to reg tender offers made to target companies with certain specified bus contacts with Ill. Burden > local benefit
▪ CTS Corp v. Dynamics (p. 221): upheld law providing purchaser who acquired control shares in Inidiana corp could acquire voting rights only to extent approved by majority vote of prior disinteresd stockholders. Here, interest in proteting shareholders. Most of those affected are instate. Thus interest > burden to others.
202-222, BALDWIN, HP HOOD, KASSEL
ARTICLE IV PRIVILEGES AND IMMUNITIES / PRE-EMPTION
• Privileges and Immunities clause
o Another limit on stat reg, a rights-conferring provision that guarantees to “citizens of each state all p/I of citizens in several states”
o Like the DCC, it bars certain leg that discrim against oos economic ints
• PRIVILEGES AND IMMUNITIES (4.2.1)
o “The citizens of each State shall be entitled to all P/I of Citizens in Several States”
▪ Gives protection of laws to cits who travel, prevents discrim ag oos (like 14th)
• It restrains state efforts to bar oos-ers from access to local resources
o Major points
▪ State law is invalid only if it:
• 1) burdens a “fundamental right” and
• 2) no subst reasons exist with a “close relation” to the discrim (Camden)
o Use high level of scrutiny, consider whether less restrict. means
▪ Some discrim ok. Only dxns that bear on vitality of nation as single entity must treat all cits equally (Utd)
o Key to subst reason = show oos-ers are part of problem (Utd)
o Sup Ct of NH v. Piper (p. 8) – struck rule limiting bar admission since rule reasoning didn’t meet subst text, means not related
o Differences b/w this and DCC (p. 223)
▪ Only fundamental rts and “imp econ activities” are protected (not ALL comm.)
• And even then, only if there’s a subst reason for treating oos-ers diff
• Baldwin v. Montana Fish/Game (p. 5) – rejected challenge to elk-hunting scheme imposing higher fees on oos; not a fundamental right
• Hicklin v. Orbeck – Alaska Hire statuts invalid as attempt to force all bus benefitting from econ ripple to bias their emp practices
▪ No protection for corporations; applies to citizens only
▪ No market participant exception (see United Building)
• White v. Mass. Construction Council (p. 239) – court upheld Boston reg that said 50% workers on public works had to be Bostonians.
o Withstood DCC under mkt participant exc
• United Building v. Mayor/Camden (p. 3) – addressed Camden reg requiring const co’s to hire at least 40% Camdenites
o city said it was mean to remedy urban decay and emp flight
o while you can press to hire city residents, you can’t necessarily bias private contractors against oos (based on PI)
▪ even though discrims against NJ who are not Camden residents as much as ag oos-ers, NJ citizens at least have chance to remedy through pol process
o rxn on state behavior = rxn on munic behavior
o MP exc doesn’t apply since diff purpose than DCC (jud-created to prevent econ prot)
▪ No Pike balancing test; higher std of review (like intermediate scrutiny)
• Std: balancing test < this one < DCC per se rule
▪ Cong approval/consent
• Under DCC, Cong can auth (through exercise of CP) st practices that would be imperm. But PI is a rights provision that Cong can’t waive.
▪ Personal rights involved, so it does not matter in what position state is taking
o Things usually protected (Corfield v. Corvell)
▪ right to travel in or through a state
▪ right to common calling (seek employment
▪ to reside in a state for business or other purposes
▪ right to do business in a state
▪ right to take, hold and dispose of real and personal property
▪ exemption from higher taxes or impositions than are paid by in-staters
▪ S. Court added later can’t refuse to make medical care available to oos-ers (people seeking abortions in other states was the issue, doe v. Bolton
• PRE-EMPTION UNDER THE SUPREMACY CLAUSE (6.1.2)
o “This C & Laws of the US & Treaties made under US auth, shall be supreme Law of the Land; Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding”
▪ State law must yield to C, and C’ly permitted federal laws and treaties
• If a law is preempted by Cong axn (within scope of delegated powers), it is invalid under Sup Clause
o i.e. as long as cong acts within its authority, it can completely displace state law addressing same subject it is has exp/imp shown intent to do so
▪ Preemption rulings: Look at leg intent re congressional action
• 1) laws imposing new limits on state authority
• 2) laws removing preexisting barriers to state reg
o Major points
▪ Use this where there’s some federal axn putting limits on what a state can do
• Consider it in the context of the 10th
▪ Ct has sometimes, but not always, relied on the existence of unexercised federal administrative authority to justify a preemption finding
o Types
▪ Express pre-emption
• state law invalid if Congress intended to displace it (e.g. ERISA)
▪ Implied
• Regulatory field
o Cong must “clearly intend” to occupy a regulatory field
▪ Show the statute is meant to displace all st law
o State law may still be preempted even if consistent
▪ Rice v. Santa Fe Elevator Corp (p. 234): grain warehousing. Look at intent to occupy field
• Pervasiveness of reg, fed int, tradition
• Conflict preemption: state law imposts inconsist obligs or interferes w/ objectives of federal scheme
o Impossibility: state law invalid if impossible to comply with both fed/st laws
▪ FA Lime & Avocado Growers, Inc. v. Paul (p. 235) – fed gov set guidelines re avocado maturity. Though these conflicted with CA law, regs could co-exist even though reg same area
▪ Gade v. Nat’l Solid Wastes Managemt Ass’n (1992) (p. 236) – No dupl between f/s law (OSHA reg conflicts w/ IL safety statute)
▪ *Note the difference between PG&E / Gade: PG&E narrowly construed fed goals, but Gade = broad view; PE statutes all about cxn of laws
• Perhaps b/c in Gade, it’s about h/s concerns closely related, v. safety/econ concerns which don’t nec conflict
o Obstacle / frustration of purpose: state law invalid if it prevents goals of competing fed law
o Analysis
▪ What’s fed obj? To what extent does st interf?
▪ Hines v. Davidowitz (p. 235): court barred Penn’s Alien Regis Act of 1939 b/c federal ARA of 1940. No clear test, but det whether, under circs, penn’s law = obstacle to accomplishment and execution of full purposes and objs of Cong
o Differences b/w PE and DCC
▪ Under DCC, Cong hasn’t addressed the issue.
▪ PE is about Cong intent. Though it’s grounded in C, you look at stat interp and whether Cong meant to displace st law
o PG&E v. State Energy Resources Commission (p. 230) – no preemption here!
▪ PG&E (() argued CA law, which imposed morat on cxn of nuc plants, was preemp by AEA (CA law = safety/econ aspects); AEA was meant to reg safety
▪ RULE: st law inconsistent w/ fed law will be preempted, but whether a st law is inconsistent often depends on the court’s characterization of the laws
▪ cong has left suff auth in sts to allow devlop of nuc pwr to be slowed or even stopped for econ reasons
o preemption and foreign affairs powers
▪ Crosby v. National Foreign Trade Council (2000) (p. 236) – struck Mass law barring state entities from buying from co’s DBI Burma since cong passed fed law imposing sxns on Burma. Mass law was more stringent, presented an obstacle to accomplishment of Cong’s full objs. Cong intended to limit econ pressure ag Burmese Gvt, so Mass law interfered w/ affairs and effective diplom
▪ NOTE: a common end doesn’t neutralize conflicting means
• Congressional consent to state regulation
o Congress can consent to otherwise unconst st laws when const limitation on st power is not matched by similar or identical limit on fed power
o US v. South-Eastern Underwriters (p. 236) – Sherman Act applied to insurance bus, even though court had held insur not commerce ( McCarran Act, which limited applic of antitrust laws to bus, sought to assure continued state auth over insur. Silence by cong doesn’t impose a barrier to reg/tax by states
o Prudential Insurance v. Benjamin (p. 238) – NJ insur corp objected to collection of tax of 3% of premiums received from all bus done in SC (no similar tax required of SC corps) Court held discrim under CC, but also, McCarran validated tax
• Devices for congressional ordering of f/s relationships
o Consent
o Preemption
o Cong role in determining scope of IG immunity
o Fed incorp of state CL
o State admin of fed law
• State taxation of interstate business
o Cong can determine what’s permissible, balancing local needs with int in nat econ
o IC is not immune from state taxation
▪ Four part test (Complete Auto Transit v. Brady)
• Tax applied to activity with subst nexus with taxing state
o > than that required for MC in DP (Quill v. ND)
• Fairly apportioned
• Doesn’t discrim ag IC
• Fairly related to services provided by state
• Intergovernmental tax immunities
o McCulloch: power to tax=power to destroy, and to allow a state to do this would be to affirm auth of a state to negate fed gov auth, which is contrary to fed suprem. Fed gov and its instrums are immune from st-imposed interf
o expansion of immunities, statutory grant of immunity
• intergovernmental regulatory immunities
• mutual obligations among the states
o two restraints on interstate obligations
▪ P/I
▪ Extradition Clause
• Obligated rendition of fugitives from justice
• But often held unenforceable, to avoid conflict b/w state/fed
o Interstate compacts (1.10)
▪ Help re interstate collaboration – congressional consent needed prior to entry
▪ Used with boundaries, nat resources, allocation, floods, transpo, tax, crime
222-243, UNITED BUILDING, PG&E
EXECUTIVE BRANCH AND SEPARATION OF POWERS
• SOURCE OF POWER
o §1 – vested in Pres, must be 35, citizen, resident for last 14 years
o §2 – CIC of army, power to make treaties with advice and consent of senate if /3 of those present concur, appoint ambassadors, judges
▪ President is comm. in chief of the armed forces and shall have certain powers
• Grant pardons and reprieves
• Make treaties
• Appoint judges and other federal officers
• Recommend measures to congress
• Receive ambassadors
• Take care that laws be faithfully executed
o §3 – state of the union, convening Congress
o §4 – Pres, VP, all civil officers of US can only be removed for treason, bribery, or other high crimes and misdemeanors
• Important notes re Article Two
o Article II vests executive power in the President without qualification. It differs from Article I, which delegates to Congress all legislative powers “herein granted.”
▪ This disparity has given rise to arguments that the President has inherent powers beyond those specified in the C
EXECUTIVE VIOLATION OF SEPARATION OF POWERS (44-60)
• Background
o Art. II, §2, cl.1: “executive Power shall be vested in a President of the United States.” Some powers might be inherent in Pres (i.e. apart from statutory grant of pwr)
▪ SOP not intended to be airtight; two branches must gen agree on things
▪ Presidential seizure
o Shift to focus re horizontal SOP b/w leg/exec branches
• Youngstown Sheet & Tube v. Sawyer (The Steel Seizure Case) (p. 245)
o Was Truman acting within exec power when he issued EO directing the Sec of Commerce (Sawyer) to take poss/operate nation’s steel mills (out of fear that work stoppage would jeopardize national defense during Korean War?
o No; he was lawmaking, which was not the intent (Taft-Hartley rejected such axn)
o Jackson concurrence: Tripartite Analysis
▪ 1) Acts pursuant to express or implied auth of C or Congress (Pres power=max b/c Art. II power and also express/implied auth from Cong)
• Max power – power granted by both Cong and A 2.1 (high level of presumption to allow his actions)
▪ 2) Zone of twilight(concurrent power, but no cong grant or denial of auth
• Gray area – pres. Neither authorized nor prohibited
• Power stems from N/P clause (1.8)
• test of power is likely to depend on the imperatives of events and contemporary imponderables
• NOTE: in this zone, there’s room re emergency powers (e.g. standing to address K/prop rights)
▪ 3) President’s axns are incompat w/ express/implied will of Cong (Pres pwr = lowest when acting in contravention of Cong will) [Truman here]
• Min power – congress has acted already (highly scrutinize axns)
▪ Other considerations
• Exec power clause doesn’t constitute a grant of all exec powers of which gvt is capable. If it did, founders would not have added spec items
• Must balance “faithfully executed” w/ DPC of 5th
• no inherent power to act outside the realm of power in an emergency
• Not CIC of domestic stuff (or even all war stuff, since Cong has power to raise/support armies, provide navy
o Black opinion (formalist approach)
▪ there are NO undefined, inherent presidential powers
▪ here, lawmaking was not okay
o Frankfurter concurrent (anti-formalist)
▪ Here, congress acted (and said it needed to authorize action)
▪ View C in light of “gloss” life has written onto it
▪ NOTE: this type of functional approach has been supported, esp re regulatory times (New Deal) – need capacity to impose/enforce detailed and exper reg over complex industries, free from ordinary partisan political battles
o DISSENT: Vinson
▪ Pres should really only be accountable to ppl, so he does have inh pwr – and also power in emergencies (custom!)
• Unilateral executive agreements
o Unique power; bypass treaty-making (no auth needed)
▪ May also supersede state leg under Sup Cl
▪ US v. Belmont –recog/dipl/assignment re Soviet Union were all part of int’l compact, valid w/o Senate auth
▪ US v. Pink – Pres has power re recog, and under Sup Cl, such compacts have similar dignity as treaties
• Dipl recog = 2.3: “shall receive ambassadors and other public ministers”
o Cong arguably has no power to interfere there (?)
o Dames & Moore v. Reagan
▪ Reagan issued an EO suspending all US claims pending against Iran. (to get hostages back, US agreed to let all claims between US/Iran be decided by a tribunal) This left Dames &Moore out $3.5 million they were entitled to from the Iranian gov’t
▪ Pres power at max b/c of implied cong auth under IEEPA (Int’l Emerg Econ. Powers Act)
• No explicit Congressional approval, but never said couldn’t do it – also, implicit acq in historic allowance (Where congress acquiesces to the president’s necessary action to resolve a foreign policy dispute, the courts won’t interfere)
▪ But note: did this case err by condoning leg inaxn? Or construing failure of cong to auth as leg disapproval?
EXECUTIVE DISCRETION IN TIMES OF WAR AND TERROR (60-91)
• Constitutional sources of power
o President is executive (2.1)
o President is CIC of armed forces (2. 2.1)
o Congress declares war (1.8.11)
▪ Cong power to “declare war,” and to raise/support armies/navies
o Congress raises and supports armies and navies (1.8.12-13)
o C debates suggest Pres must have some inherent power to defend ag “sudden attack.”
▪ Even if such exists, is there inh power to wage offensive strikes? Can this construed to extend to foreign military actions to defend allies?
▪ The fact that Congress is given war power might suggest public support is req’d
▪ Consultation: if possible before introducing and while in hostilities.
▪ Report: in writing 48 hrs prior to intro, setting forth circs, C/leg auth, etc.
▪ Terminating: 60 days after report, terminate unless decl war, Cong auth, ext, or unable to meet due to armed attack upon US. (ext. for 30 days if unav milit nec
• War Powers Resolution of 1973
o Pres may use troops if: war decl, auth by Cong, or attack on US/territs/armed forces
▪ Requires collective judgment of Congress and President re troops & hostilities
o (Quasi-C law meant to focus on process/relationship b/w branches [post Vietnam])
• EMERGENCY CONSTITUTIONALISM and Executive Detention of Enemy Combatants
o Generally: no “state of emerg” provision for suspending C. A few provs re emergencies.
▪ Susp of indiv rights (1.9.2): “WHC shall not be suspended, unless in rebel/Invas the public Safety may require it.” (Placemt in Art. I suggests leg approval req’d)
▪ 1.8.15: Cong pwr re “calling for Militia to exec laws, supp insurr, repel invas”
▪ 1.2.1: Pres shall be CIC of state militias when they are called.
▪ 1.10.3: fed limits on state pwrs – can’t, w/o cong consent, lay duty, keep troops in time of Peace, make agreeemt w/ another st/ctry, or engage in War, unless actually invaded, or in such imm Danger as will not admit of delay.”
▪ 4. 4: “Cong…shall protect each of [state] against Invasion; and on appl. of leg or exec (when leg can’t be convened) against domestic violence.”
▪ 3rd: no quartering in peace w/o cons of Owner, must be lawful during war
▪ 5th re grand jury indictmt is relaxed for martial law: “No person shall be held to answer for cap/infamous crime, unless on presentmt or indictmt of Grand Jury, exc re land/naval forces/militia, when in axl service in war or public danger.”
▪ 4 Geneva Conv, all virtually accepted by every country in the world
▪ 3rd Geneva Conv. refers to POWs (others refer to sick/wound solds/civs)
▪ WHC = produce body; establish why being held; used when detained by gvt
o Continuous view: C applies during war
▪ Ex Parte Milligan – Post-Civil War, court held Lincoln’s susp of WHC was ok, but didn’t empower him to try and convict – before military tribs – citizens (Milligan lived in Indiana his whole life) who had been detained during the war
▪ Rasul – habeas statute confers a right to JR of legality of exec detention of aliens in a territory over which US exercises plenary/excl jx, but not ‘ult sov.’ (Gitmo)
o Strict view: C suspended during war.
▪ Ex Parte Quirin – Pres procl that saboteurs (unlawful enemy combatants) are subj to trial in milit tribunals (i.e. no RJT)
• Unlawful combatants—incl ‘enemy combs’ who, w/out uniform, come secretly thru lines to wage war—are not POWS, and are subj to milit trib
• Pres power at max b/c acting per C auth (CIC & war time & grave danger) and expressly delegated powers of Cong
▪ Joint Resolution for the Auth for Use of Military Force (AUMF) (post-9/11)
• Pres = broad auth to use all nec/approp force ag nations/orgs/ppl he determines harbored/planned/auth’d/comm’d/aided terrorist attacks…, to prevent int’l terrorism ag US by such entities ( gitmo detainment
▪ Eisentrager (military tribunals ok for enemy aliens captured abroad)
▪ Hamdi (AUMF allowed detention of enemy combatants, but DP requires notice & meaningful opp to contest facts before neutral decisionmaker)
• Hamdi = US cit captured in Aghanistan (i.e. not w/n jxn), but WHC applies to every indiv detained in UC
• ct didn’t decide if det ok, but remanded b/c DP (Matthews test)
• Ginsberg/Souter: the Non-Det Act (post-Korematsu) auth’d release
o NDA = an explicit cong prohib ag exec dets absent cong auth, thereby placing President Bush’s powers at their lowest ebb.
• Scalia: restricted holding to cit-detainees and implied that anyone held outside US territory might be beyond reach of Court
▪ Rumsfeld v. Padilla (2004)
• US cit detained re dirty bomb at O’Hare
• NDA requires cong auth for det
• Unlike Quirin b/c there, Cong had auth’d dets as part of Arts of War
• Reversed on jxl grds: Padilla had not properly filed his WHC against Sec of Def, should have brought action ag commander of the brig in SC
▪ Hamdan v. Rumsfeld (2006)
• 10/01 EO, Bush announced that dets engaged in unlawful acts of war (incl intl terr) would be tried by milit trib. Relied on CIC, AUMF, and 10 USC §§821, 836 (discussed tribs w/o spec auth their use in this context)
• Congress hadn’t auth milit tribs, but had req’d other safeguards in UCMJ
o Thus, execn power at lowest ebb
o "military comm’ns" created to try enemy combatants suffered certain fatal proc defects under UCMC/Geneva, and were w/o other legal auth to proceed, despite Cong attempt to deprive of jxn to decide that issue by passing Detainee Treatment Act
• Disagreement over whether "charge" of conspiracy could be maintained to justify determination of enemy combatant status
• Effect of ruling: Although milit comms as created by Exec, did not provide detainees with direct access to fed cts, but only with access to a fair and impartial hearing to a tribunal with Cong auth and DP
• Leg effect: Cong passed Milit Comm Act of 2006 —it strips all rights of ECs, allows Pres to determine meaning Geneva to det, to hold tribs, & strips ECs of right to WHC; lacks safeguards of concern in Hamdan
CONGRESSIONAL ENCROACHMENT ON EXECUTIVE POWER (LEGISLATIVE AND EXECUTIVE ACTIONS)
BICAMERALISM AND PRESENTMENT (CONGRESSIONAL CONTROL OVER EXCUTIVE OFFICERS (91-31.)
• Congressional Encroachment on the Executive Power
o Exec power has burgeoned broadly
o 2 methods of congressional self-help:
▪ (1) leg vetoes of axns performed under pwr delegated by Cong (INS v. Chadha)
• Attempt to overturn exec axn w/o bicameralism (passage by both houses) or presentment (giving bill to Pres for his signature or veto).
• arises where cong deleg discr power to exec. to control, Cong requires exec to present any action taken thereunder to certain members of Cong for approval. If they disapprove, they veto. This is unC because to be valid, leg action (the veto) must be approved by both houses and presented for pres auth. also violates implied SOP. (INS v. Chadha).
• “one-house veto” = adopted by Congress in a wide range of statutes to avoid the problem of agency “capture” by powerful private interests
▪ (2) quasi-constitutional statutes (Bowsher v. Synar)
• enacted by Congress to exert control over executive officers’ jobs
• Bicameralism and presentment
o Actions which are legislative in character and legislative in effect must abide by bicameralism and presentment (and pursuant to 1.7.2-3)
o Bicameralism
▪ law can’t take effect without concurrence of prescribed majority of members of both houses (1.7.two)
o Presentment: leg must be presented to Pres before becoming law (1.7.two)
▪ only four areas where cong can act alone:
• initiate impeachments
• conduct trials on impeachment charges
• power over pres apptmts
• power to ratify treaties
• Legislative and Executive Actions
o Nondelegation Doctrine
▪ In theory, C grant of all leg powers to Cong entails a principle of nondeleg— that Congress may not delegate its leg power to another branch of gvt
▪ THE STANDARD – Touby v. US (1991).
• Leg power can be deleg to exec officers and/or admin agencies. Such power must not be uniquely confined to Cong, and deleg must include intelligible standards for action by delegatee.
▪ This is weak, in the context of foreign affairs
o Pres sometimes needs sole power to speak as nation’s rep
▪ US v. Curtiss-Wright Export Corp – Joint Res gave pres pwr to prohib sale of arms to Bolivia/Parag (involved in armed conflict). This was not an unC deleg
o Legislative vetoes of executive actions are invalid because they do not meet bicameralism or presentment
▪ Alteration of the rights and statuses of individuals = law = typically leg exercise
▪ INS v. Chadha (US 1983) – Cong gave INS (exec) pwr to deport/susp-dep of aliens, but had to be app by Cong. Either house could pass resol overriding dec.
• This leg veto prov was unC since it was leg exercise and wasn’t w/n any express excs allowed 1 house to act alone
• Here, AG was acting as leg and needed to present to Pres (and if vetoed), then passed through both houses by 2/3 vote
• NOTE: Despite Chadha, Cong continued to enact leg veto provs, apparently assuming fear of budg retal would assure exec would honor
o Line items vetoes may be unconstitutional
▪ Clinton v. NY (1998)
• Clinton cancelled a prov of Balanced Budget Act (re Medicaid and farmers funds), per Line Item Veto Act
• LIVA: power to “cancel in whole” 3 types of provs that have been signed into law: (1) any dollar amt of discr budget authority; (2) any item of new direct spending; or (3) any limited tax benefit. In identifying items for cancellation he must consider leg history, purposes, etc.
o He must determine, wrt each cancellation, that it will (i) reduce the Federal budget deficit; (ii) not impair any essential gvt fxns; and (iii) not harm the natl interest.
o A cancellation would take effect upon receipt by Congress of notif. However, a majority vote of both Houses is suff to void
• C silence re unilateral Pres action that repeals or amends parts of duly enacted statutes as authorized under LIVA, should be construed as express prohibition. (Should have followed procedure from Chadha.)
o exec power is at lowest ebb here
• Breyer dissent: system is too complex to require Pres to veto or sign separately thousands of approp bills. (functionalist view)
• Scalia dissent: did not violate NDA because Pres was exercising an exec power (under the Act) rather than a leg power. (functionalist view)
• Congressional Control Over Executive Officers
o ANALYSIS
▪ 1) Is the officer one in which independence from the president is desirable?
• If so, con may limit removal power (and jud may even, absent stat)
• HE test = purely exec v. q-leg/jud
▪ 2) are Congress’s limits on removal constitutional?
• Cong can’t completely prohibit pres removal, but can limit it to where there’s “good cause.” Also can’t give self sole power to remove exec off
o Appointment of executive officers
▪ 2.2.2 – Appointments Clause – Pres shall appoint sup officers (such as cabinet heads), with advice/consent of Senate. Allows Cong to vest appointmt of infer officers in either Pres acting solo, heads of dept (cabinet officers), or Cts of law. Congress is plainly excluded from appointing executive officers
• BUT, cong can’t appt offices who exercise signif exec auth
• Buckley v. Valeo (US 1976) – providing for appt of most FEC members by cong officials was impermissible, since they aren’t heads of depts.
• AC doesn’t mention removal; look to 2.4 impeachment power
o Removal of executive officers (look at 2.4 impeachment power)
▪ Every nonelected federal official is deemed to be (1) a principal officer of the US; (2) an inferior officer of the US; or (3) a mere employee
• If inferior, cong can’t appoint but can direct other branches to appt
▪ Constitutional text
• Appointments Clause of Art. II, §2, cl. 2 states that principle officers must be appointed by the Pres “with the advice and consent of the Senate.” Inferior officers though may be appointed in various way according to the Congress’ choice (courts of law can do it, Pres alone, or in the Heads of Departments)
o BUT, Congress cannot appoint officers who exercise a significant executive authority. Buckley v. Valeo
• Appointments Clause doesn’t say anything about removal of officers. Only Art. II, §4 impeachment power discusses removal
o From the outset, power to remove subord exec officials by routes other than impeachment has been assumed. Trend: Pres probably can remove high level, purely exec officers (e.g. Cabinet members) at will, w/o interf from Cong. But after Morrison v. Olson, it appears Cong may provide statutory limits (e.g., removal for good cause) on Pres power to remove all other exec appointees
▪ now, generally, pres has power to remove exec officials, but cong can limit if it is an office where indep from pres would be desirable.
• But cong can’t completely prohibit all removal, and can’t give removal power to itself (exc: impeachment)
▪ cong can’t impose exec fxn (give itself power) on exec officials over which it has power of removal (exc: impeachmt)
• Bowsher v. Synar (1986)
o decl unconst: Bal Budget & Emerg Def Red Act (req’d concls from US CG [remov by joint res of Congr/Pres] and if Pres didn’t agree, Cong could overr w/ 2/3 vote b/c of ineffic, negl, malfeas)
▪ C = Cong only has POR via impeachmt for high c’s
o CG=Exec off b/c has pwr to interpret & make mandates to pres
o Essentially, if CG exercises exec pwr, Cong shouldn’t control. And removal power (vested in Cong under this act) is control
o White dissent: CG is also leg fxn, and bic/pres are met b/c provs
• Cong may limit Pres removal when (1) it’s an office where indep from Pres is desirable (i.e. FTC); (2) if the law doesn’t outright prohibit removal, but might limit removal to “good cause”
• Buckley v. Valeo
o any appointee exercising signif auth per US law is an officer of US and must therefore be appointed per 2.2.2
o though Cong can vest appt of infer officers in cts or dept heads, cong app of FEC members here = not ok since they’re dep heads
▪ Pres has power to remove “purely executive officers”
• Myers v. US
o struck statute re that certain groups of postmasters (i.e. officers of the US) could not be removed by Pres w/o consent of senate
▪ broad endorsement of executive autonomy in removals
o It was a “R implic” from Pres’s power to execute laws that he should select those who were to act under his dirxn in exec law
▪ Distinction b/w “purely exec” officers v. “quasi-leg” or “quasi-jud” officers
• Humphrey’s Executor v. US
o FTC Act specified causes for removal of Comm’rs and held that, in view of agency fxn, Cong could limit pres power of removal
▪ Ct found Myers principle limited to “purely executive officers” as opposed to those that were quasi-leg/jud
▪ If not purely executive, cong had unfettered control
o Dxn re Myers: this one held Pres could not remove a member of an indep reg agency in defiance of restrxns in statut framework
• Weiner v. US
o statute established that War Claims Commission, unlike the HE, did not specify permissible grounds to remove a member of the Commission. The Ct emphasized that the Commission’s fxn was of an intrinsic judicial character and held the removal illegal
o As to officers who were not purely executive, power to remove existed “only if Congress may fairly be said to have conferred it.”
INDEPENDENT COUNSEL, EXECUTIVE PRIVILEGE (312-338)
• Independent counsel
• Morrison v. Olson (p. 313)
o Cong passed a law providing for IC, appointed by jud branch, to invest/pros crimes by certain gov’t offs. IC could only be removed by AG (an exec of) for “good cause.”
o TEST: are removal rxns are of such nature that they impede pres abil to perf C duty?
o Ethics in Gov’t Act of 1978 doesn’t viol SOP, as it gives exec suff control over the IC to render Pres able to perf C duty to ensure faithful execution of the laws
▪ Dxn Bowsher, upholds const of limits on pres abil to remove indep counsel
• Unlike Bowsher, here, Cong had no role in removing IC
o IC = inferior officer (temp, 1 task, limited duty), so Cong can vest appt in special jud div
▪ IC should be indep of pres since it invest/pros exec officials
• Interbranch appointments/removal
o Cong is barred from removing officials outside the leg, but can sometimes do interbranch removal where there’s no danger of usurpation or encroachment
o Mistretta (p. 317)
▪ statute allowing Pres to remove members of the US Sentencing Commission “for good cause” did not violate SOP
▪ even though commission consists of judges and is part of jud branch, it does not perform jud duties. So giving removal authority to exec didn’t upset balance of power by allowing Pres to coerce judges in adjudicating cases
▪ Congress can deleg as long as it is specific and detailed and not too excessive
• Executive privilege
o ability of the pres to keep secret conversations with memoranda to or from advisors
▪ Seen as necessary in order for pres to receive candid advice
▪ Protect national security (diplomacy requires secrecy)
o US v. Nixon (p. 321)
▪ Can Pres be subj to jud process re criminal axns done while in office?
• It’s not about pres DP, it’s about DP for other indicted conspirators. You have to consider the int of the other people in receiving DP
• case was justiciable since pres had auth to deleg power re prosecs, and he had done so through actions of AG, in creating office of special pros
▪ recognizes existence of EP, but refuses to make it absolute
• need for evid at criminal trial > EP (DP/jud concerns)
▪ other notes
• 1) it is role of ct to decide whether pres has exec priv (and scope)
o M v M says it’s province of jud to say what law is
▪ (though doesn’t preclude final auth to another branch)
• 2) EP exists – need for candor in comm. w/ advisors, need for confide
o Derives from sup of each br w/n own assigned area of c duties
o EP = inherent pres power (contrast with Youngstown)
• 3) EP not absolute; must yield when imp ctrvailing ints (e.g. interf w/ jud’s abil to perf c fxn.)
o Nixon v. Fitzgerald (p. 325)
▪ pres’s unique statute under C and singular imp of duties of office justify absol immune. Thus, pres/ex can’t be sued for $ damages for conduct in office
o Clinton v. Jones (p. 326)
▪ Pres, while in office, may be sued for conduct (official or unofficial) that occurred before taking office
• Remains unsettled whether pres may be criminally pros while in office, or whether sole remedy = impeachment/removal
▪ Pres may not be sued for injxn & $ damage for actions taken while in office.
o NOTE: judgment in cases of impeach. shouldn’t extend further than removal from office
BILL OF RIGHTS, 5TH AND 14TH AMENDMENT SUBSTANTIVE DUE PROCESS
• DUE PROCESS
o Limitations on government power re individual rights
▪ Few explicit references to indiv rights
• 1.10: ban on state impairment of K
• 4.4: P/I
▪ Limits on fed gov
• 1.9 – WHC
• Art III narrow def of treason
o BOR = attempt to restrict gov from interfering with individual rts
▪ Just the fed gov at first, but later 14th extending it to states
BILL OF RIGHTS, INCORPORATION OF THE BILL OF RIGHTS, ECONOMIC SUBSTANTIVE DUE PROCESS (339-341, 354-376)
• Bill of Rights and Post-Civil War Amendments
o Pre-Civil War: BOR doesn’t apply to states (very little protection of indiv rights)
▪ Barron v. Mayor and City Council of Baltimore (p. 340)
• wharf owner sued City for ruining use of his wharf, arguing that its actions violated 5th prohibition on takings w/out just compensation
• here, court still believed BOR applied only to fed (since nothing explicit)
▪ prior to the 14th, the status of rxns on states was limited to 4.2 (P/I)
o Post-Civil War: states not bound by Am 1-15
▪ Slaugherhouse cases narrowly read P/I re federal action
• Blocked use of 14th P/I as subst restraint on st econ leg
▪ Post- Civil War ratif of 13th, 14th, and 15th that all dealt w/ slavery and cit’ship
• 14th Am gave blacks US citizenship, not State citizenship
• 14: “All persons born or naturalized in US and subject to jx thereof = cits of US and state wherein they reside. No State shall make or enforce any law which shall abridge P/I of cits of US; nor shall any State deprive any person of L/L/P, w/o DP of law; nor deny to any person w/in its jx the equal pxn of laws.”(could then argue BOR should apply to states
o First part = response to Dred Scott
• Second part = applies directly to states
▪ Privileges and immunities (14th)
• Privileges & Immunities Clause only protects federal rights. S-H Cases
• Substantive Due Process under the 14th Amendment – the beginning
o Selective incorporation approach
▪ Palko v. Conn (p. 355)
• Certain provisions fundamental to scheme or ordered liberty
• not all of BORs have been incorporated to sts (2nd, 3rd, 5th, 7th, and 8th)
• No direct app to states; always need to go through back door of DP (14)
▪ Adamson v. CA (p. 355)
• Self-incrim doesn’t apply to sts, even though conviction here violated it
• Black dissent: DP requires total incorp, since 14th extends complete pxn
o Curb jud discret. Note: Black’s view is more clear (more st aut)
• Frankfurter dissent: total incorp is limiting and would limit st aut
o Trend toward incorporation
• Prior appr = looks at facts. Does st action violate FF implicit in DP?
• New appr = look at prov. Essential to FF such that it should apply to sts?
▪ Duncan v. Louisiana (p. 357) – guy in prison up to 2 years for battery
• Since 6th is key to fundamental scheme of justice, it applies to states
▪ Factors considered: intent of framers, federalism, and appropriate role of SC
• Substantive Due Process v. Procedural Due Process
o Procedural DP: Usually applies re crim proceedings or with deprivation of property
o Substantive DP ( economic liberty / Lochner era
▪ Court initially rejected protxn of economic liberty, but allowed more with SDP
• States often raise issues of SDP b/x they enact laws under police powers
▪ Calder v. Bull (p. 362)
• national law tradition, idea that written C reaffirms preexisting fundam rts that were entitled to pxn whether or not explicitly stated in basic doc
▪ Munn v. Illinois (p. 365)
• Upheld state law regulating rates of grain elevators as approp use of PP
▪ RR Commission cases (p. 365)
• power to reg is not power to destroy – you can’t do it to effect takings
▪ SCC v. Southern Pac RR
• Corporations are “persons” within meaning of 14th
▪ Mugler v. Kansas (p. 365)
• Upholds re intox bevs, w/ limits; can’t use mere pretenses to invoke SDP
• If purported exercise of PP has no real or subst rel to those objects, or is a palpable invasion of rts secured by fundam law( duty of cts to say
▪ Allgeyer v. Louisiana (p. 365)
• The move toward substantive DP is complete!
• Invalidated state law on SDP grounds. (law prohibited obtaining insur from marine insurance co w/o license)
• Broad articulation of lib of K ( development of SDP
o All K that may be proper, nec, and essential to carrying out to a successful conclusion the purposes above mentioned
o Economic regulation in the Lochner era
▪ Lochner v. New York (p. 366)
• NY labor law limiting bakers’ hours – unconstitutional
o While this interferes with right of K, the lib of K is not absolute
o DP of law includes the fundamental right to make a contract
• law that infringes on freedom in the marketplace and freedom of contract is unconstitutional if it does not bear a reasonable relation to a legitimate governmental purpose
o Laws that infringe on right to K are subject to strict scrutiny
▪ Means/end analysis: It could be a legit end (h/s), but the means used (reg # of hrs) is not sufficiently related
• Effect: Court, which believed in laissez-faire econ, invalidated tons of state/fed laws that infringed on the right to contract after this case
• Holmes dissent: these are Qs for leg, not jud. We’re imposing our own econ theory here, which is wrong.
o should invalidate only when a rational and fair man necessarily would admit that the statute would infringe fundam principles as they have been understood by traditions of our ppl and law
▪ Modern era: decline of judicial scrutiny
• Gov interest need only be legitimate and the means only rationally related to that legitimate interest
• Nebbia v. New York
o Grocer convicted for selling milk below the mandated min price
o Rule: price controls that are nondiscrim & bear R rel to proper leg purpose are constitutional
o Statute upheld here, but later overturned in Baldwin under DCC
o Counters Lochner in saying there’s no absolute right o K or prop
▪ Since board's order was not unR or arbit and that C DP protections did not prohibit state from fixing selling price of milk, D's conviction was appropriate
• West Coast Hotel Co. v. Parish
o Upheld state min wage law for women
o Wiped out three themes from Lochner era:
▪ Court questions any fundamental right to contract
▪ If there is a rt to K, examine it w/ a very deferential view
▪ Redistribution of wealth / protecting weak, is a legit int
• Carolene Products
o Noteworthy case: (1) establishes the contours for rational basis review; (2) has the most famous footnote in Court history
o Law forbids interstate shipmt of “filled milk” for health reasons
o Used very deferential review; uphold economic regs as long as supported by any conceivable rational basis
▪ even if it’s not the real reason and is just articulated
▪ court presumes facts in existence to support rat’le
▪ (basically, the govt’ will win every time)
o Stone’s Footnote 4
▪ Attempts to articulate JR post-Lochner.
▪ 3 categs of econ reg when heightened review is approp:
• law infringes on funda rights (e.g. BOR)
• law restricts pol process and normal political process won’t cure
• law discriminates ag discrete/insular minorities (religious, national, or racial minorities)
• Williamson v. Lee Optical
o state law prohibited optician from dispensing glasses or fitting lenses w/o Rx by an OK-licensed doc
o States are free to regulate econ relations; don’t overturn unless there is no conceivable justification for the legislation
▪ Continues w/ super deferential view; even if it is proven illogical, it is the Leg’s role to do “C-B analysis”; the leg has already done h/s analysis and it was their job
LOCHNER’S DEMISE, SUBSTANTIVE DUE PROCESS AND PRIVACY (376-384, 413-4.4)
• Modern era: decline of judicial scrutiny
o Gov interest need only be legit and the means only rationally related to that legit int
▪ DP requires reasonable relation to a legitimate state interest, not arbitrary or discriminatory. Nebbia. Lee Optical
o Nebbia v. New York
▪ Grocer convicted for selling milk below the mandated min price
▪ Rule: price controls that are nondiscrim & bear R rel to proper leg purpose are constitutional
▪ Statute upheld here, but later overturned in Baldwin under DCC
▪ Counters Lochner in saying there’s no absolute right o K or prop
• Since board's order not unR or arbit and that C DP protxs did not prohibit state from fixing selling price of milk, D's conviction was approp
o West Coast Hotel Co. v. Parish
▪ Upheld state min wage law for women
▪ Wiped out three themes from Lochner era:
• Court questions any fundamental right to contract
• If there is a rt to K, examine it w/ a very deferential view
• Redistribution of wealth / protecting weak, is a legit int
o Carolene Products
▪ Law forbids interstate shipmt of “filled milk” for health reasons
▪ Very deferential review; uphold econ regs as long as any conceivable rat’l basis
• even if it’s not the real reason and is just articulated
• court presumes facts in existence to support rat’le
• (basically, the govt’ will win every time)
▪ Stone’s Footnote 4 – establishes exceptions to “any conceivable RB”
• Attempts to articulate JR post-Lochner.
• 3 categs of econ reg when heightened review is appropriate:
o law infringes on funda rights (e.g. BOR)
o law restricts pol process (normal process won’t sure) and normal political process won’t cure
o law discriminates ag discrete/insular minorities (religious, national, or racial minorities)
o Williamson v. Lee Optical
▪ state law prohibited optician from dispensing glasses or fitting lenses w/o Rx by an OK-licensed doc
▪ States are free to regulate econ relations; don’t overturn unless there is no conceivable justification for the legislation
▪ Continues w/ super deferential view; even if it is proven illogical, it is Leg’s role to do “C-B analysis”; the leg has already done h/s analysis and it was their job
• Takings Clause: 5th amendment; incorporated a specific right under 14th DPC to states
o Private property shall not “be taken for public use, without just compensation.”
▪ St/fed resorts to pwr of eminent domain are common, and prolific source of lit (private lands taken for schools, airpts, etc.); gov’t can take, but it must pay
o Regulatory taking
▪ if deprives owner of all beneficial use of property, or if reduces economic benefit (per economic effect on owner, interference with reasonable investment-backed expectations, and character of government action).
o Judicial deference: A comprehensive plan with a public purpose satisfies public use.
▪ Kelo v. City of New London
• City plan included condemnation plans (for creation of private large co bldg). Pet’rs refused to sell, sued saying it would violate “public use” rxn under 5th.
• 5 main points:
o Public purpose doesn’t mean literally a public use
o Economic development is a public purpose (though dissent disagrees)
o When challenged taking is part of integ plan, look at whole plan and not piecemeal versions ( here, it was a carefully considered dev plan
o Level of review is a rational basis standard
▪ city’s determ that area at issue was sufficiently distressed to justify a program of econ rejuv is entitled to deference
▪ (Kennedy concurrence felt this was a bit too deferential)
o There was RB and no convincing evid that taking was directly intended to benefit a private party
• O’C dissent worries that this means now all priv prop is vulnerable to being transferred to another priv owner as long as it will be deemed more beneficial to public. Only 3 categs when this is allowed:
o Sov can transfer priv prop to public own (road, hospital)
o Sov can transfer to private parties (often CCs) who make it available for public use (stadium, pub util)
o In certain exigencies, takings serving a public purpose also satisfy C even if prop destined for subseq priv use
• The contracts clause
o 1.10: an explicit constitutional guarantee to contract
▪ Limitations: applies only to existing contracts and only to state and local gov’ts, not fed
o Judicial deference: Rational Basis review. Home Building & Loan
▪ Home Building & Loan Ass’n v. Blaisdell
• Minn Mortgage Moratorium Law authorized cts to grant relief from mortgage foreclosures and exec sales by extending pd of redemption from foreclosure sales. ext modified lenders’ K rt to foreclose, and the lender challenged the constitutionality of the law
• RULE: States can legislatively alter remedies for cllxn of debts if the law reasonably relates to a public purpose & protects basic value of creditor claims. (Scrutiny is R relationship to achieve a legitimate gov’t ends.)
• Functional analysis, to account for economic crisis of Depression
o State PP ok here, where vital public ints suffer
o Q no longer just rt to K, but use of R means to safeguard econ
▪ Op of statute can’t outlast emergency or destroy all Ks
o Contemporary doctrine: contracts clause revival and private obligations
▪ 3-part rule
• St law must subst’ly impair a K rel’ship (if not, K clause doesn’t apply)
• If you have subst impairment, do you have a legitimate purpose?
• If so, is it reasonably related to a legitimate government interest?
▪ Allied Structural Steel v. Spannaus
• Invalidated Act re employers who had established pension plan and who terminated the plan or closed a Minnesota officer – required to pay a “pension funding charge” if pension funds were insufficient to finance full pensions for all employees who had worked at least 10 years
• Act’s imposition of a new obligation on the employer violated K clause
• Brennan’s dissent insisted that clause applied only to laws which “diminished or nullified” private K obligs. Here, “like all positive social legislation,” simply imposed “new, additional obligs on a partic class”
▪ Exxon Corp v. Eagerton
• generally applicable laws are not K impairments (fairly deferential); at issue = an increase in AL severance tax for oil/gas extracted from AL wells, + prohib on passing the increase from producers to purchasers
• Marshall drew dxn b/w laws specifically directed at K obligs and those, like here that merely had the effect of impairing K rts
o Contemporary doctrine on Dual-Standard for Private / Public Contracts
▪ if State impairs its K, use "reasonable and necessary" scrutiny.
▪ United States Trust Co. v. New Jersey
• NY/NJ covenant designed in part to assure bondholders that bond revenues would not be used to great extent to finance predictably unprofitable rail ops. Suit challenged NJ’s repeals of it
• Modern interps of K clause didn’t drain it of force. Law impairing state’s own obligs is entitled to less deference than leg interfering w/ private Ks
• Heightened review: a law impairing state oblig must be R & nec to serve important public purpose to pass under K clause.
o (not SS, but does suggest gov needs greater justif. RB + bite.)
o Why heightened review? “If a State could reduce its financial obligs whenever it wanted to spend $ for what it regarded as an important pub purpose, K Clause would provide no protection.”
• Modern SDP for Non-economic Liberties
o ( does DP auth Ct to infer from DPC fund’l values not traceable to C text/hist/strx?
o Fundamental right to privacy: contraception/abortion
▪ Antecedents:
• Meyer v. Nebraska
o struck law prohibiting teaching of foreign languages. law “materially” interfered w/ lib re calling of teachers, opps of pupils, and power of parents to control kids’ education
▪ Recognizes parental right to control rearing of children
• Pierce v. Society of Sisters:
o struck law requiring kids to attend public schools. Under Meyer, law interfered w/ lib of parents to direct upbringing and educ
• Skinner v. Oklahoma
o Invalidated OK Habitual Crim Sterilization Act since deference to state PP wasn’t warranted b/w marr/proc are fundamental libs
o Use SS here since discrim of indivs in viol of C guar of just laws
▪ Griswold v. Connecticut – first to recognize constitutional right to privacy
• P convicted for counsel to viol law by providing contrac info to married
• Rt of priv (zone of priv from BOR) cannot be invaded absent a showing that leg is necessary to accomplish a compelling state interest.
o Enum of rts shouldn’t be construed to deny/dispar others
• Goldberg concur: add’t fundamental rts; 9th is a catch-all
• Harlan’s concurrence: doesn’t viol DPC unless it violates rt assured by letter/penumbra of BOR; or viol basic values “implicit in concept of ordered liberty.” statute re married couples = intol/unjust invas of priv
o Judges will inject values. But we can guarantee jud self-restraint by (1) history, (2) basic societal values, (3) federalism / SOP
▪ The liberty, or privacy of the home, at issue here, requires any statute to be subjected to “strict scrutiny.”
o right of privacy is not absolute.
• Black/Stewart dissent: can invade unless prohib’d by spec C prov. Don’t need to keep C up to date; framers provided for it (amendmt proc)
• Legal Consequences of Griswold/means-end analysis:
o b/c right of privacy = fund right ( heightened level of scrutiny
▪ if Gov’t infringes on a fund right, law is subj to SS
▪ the ends(gov’t int in passing law must be compelling
▪ the means(must be necessary or narrowly tailored
| |Means |Ends |
|DCC (discriminate) |Legitimate |Only means necessary |
|DP (not fundam) |Legitimate |Rationally related (low level & almost always |
| | |upheld) |
|DP (fundam) |Necess or narrowly tailored |Compelling (SS/heightened level) |
• Scope of privacy after Griswold
o Eisenstadt v. Baird [1972]
▪ Expanded Griswold; priv for indivs, not just married ppl
▪ Decided on EP grds (not DP)… scheme treated married & unmarried differently – irrational under RB review
▪ Eisenstadt+Griswold= fundam rt to decide to beget a kid
▪ Important step in expansion of right of privacy
o Carey v. Population Services (p. 422)
▪ Will law be effective in discouraging the targeted behavior?
▪ Court ups the level of scrutiny here; more than RB or R int. Now: significant int
ABORTION CASES (424-450)
• Non-economic liberties: Abortion and Contraception
o Parental rights antecedents (Meyer, Pierce, Skinner)
o Liberty includes right to marital privacy (not necessarily fundamental) (Griswold)
▪ Privacy is an individual right, not just marital right (Eisenstadt)
▪ Strict scrutiny for rxns on access to contraceptives (requires more than bare assertion that burden is connected to such policy) (Carey)
o Right to privacy includes abortion decision (Roe)
▪ Spousal or parental consent requirements invalid w/o alternative jud bypass proc (Danforth, Bellotti I & II)
▪ State need not fund abortion (Maher, Harris, Rust)
o Pre-viability: state cannot place undue burden on right to abortion.
o Post-viability: state cannot regulate abortion w/o health exception. Casey, Carhart
▪ Undue burden = substantial obstacle to women seeking abortion
▪ Roe v. Wade
• TX law = crime to procure abortion exc to save mother’s life.
o Despite mootness issue, ct heard b/c it will occur frequently
• upheld broad rt of priv and personal aut, entitling woman to terminate preg but also enabling st reg of abortion at various stages of preg
o Mom’s int compelling after 1st trimester
o Int in fetus becomes compelling at viability
o So the effect of Roe is:
▪ 1) st can’t reg in 1st trim
▪ 2) can reg only w/ R related to woman’s health
▪ 3) can reg exc. when nec to protect health of mother
• Scrutiny:
o If not a fundamental right, then rational review
o If a fundamental right, then strict scrutiny
▪ Means/end analysis
• 1) is this law serving compelling st int?
• 2) is it sufficiently tailored?
▪ Other regulation from Roe to Casey
• Struck down b/c they don’t serve purpose of protecting health of mother, and present obstacles to exercising fundamental rt to choose
o Regulation of medical procedures
▪ Doe v. Bolton (p. 429):invalidated portions of GA law requiring abortions to be performed in accredited hospital, prior approval of abortions by hospital staff comm., and approval of abortion by 2 docs in addition to attending doctor
▪ Akron v. Ctr for Repro Health (p. 429): inf consent, b/c info was designed to discour rather than inform
o Spousal consent
▪ PP v. Danforth (p. 429): b/c H can’t veto W’s rt to ch
o Reporting requirements
▪ Thornburg v. Am Coll of OBGYN (p. 430): b/c it would chill rt to choose
o waiting periods
▪ Akron (p. 429): b/c unR cost and harmful to woman
• Upheld
o Treatment of minors (par notice/consent reqs)
▪ Bellotti v. Baird (p. 430): as long as jud bypass proc so parental rt doesn’t = absolute/arbit veto
o Abortion funding
▪ Maher v. Roe (p. 430): law didn’t provide reimbur for “non-therap” abortions (ones not for prot of woman). But leg can make value J for life, if no obstacles created (deferential review since st spending own $)
▪ Harris v. McRae (p. 431): st didn’t have to provide Medicaid funds even when rape, etc. as long as didn’t place obstacles. Didn’t have to remove those not of its own creation.
▪ Rust v. Sullivan (p. 432): no duty to subsid, and can choose to fund life over abortion, etc.
▪ Webster v. Repro Health (p. 434): upheld that life – conception
▪ PP v. Casey (p. 434): regs – informed consent, 24 hr waiting pd, par consent w/ jud bypass, spousal consent
• Upheld central pt of Roe: fund rt to terminate, but now undue burden is new rule
o But left post-viability rules the same since int in child becomes compelling over mom’s right to choose
• UB: purpose or effect of creating a substantial obstacle on the woman’s rt to choose before viability is unconst b/c not aimed at informing, but hinders choice.
o 1) was a rt infringed?
o 2) is infringement justified?
o 3) is int suff related to ends it seeks to achieve (i.e. more lax than SS review)
• Liberty / woman’s bodily integrity / gender rt
• On stare decisis and when not followed:
o Precedent unworkable
o Reliance interest (diff to overrule)
o Old rule is abandoned doctrine
o Facts now signif diff, rener old unjustif
• Regs: informed consent (not subst obst/UB), 24 hr waiting pd, par consent w/ jud bypass (ok), spousal consent (UB), records (no UB)
• Stevens concur: prob = st can’t persuade women to choose childbirth over abortion.
• Blackmun’s concurrence and dissent: Would have kept SS; repro choice
• Rehnquist dissent: O’C wanted to respect stare decisis and Roe, but then strongly changed Roe and overturned other abortion cases
• Bottom line of Casey:
o Intent on part of the legislature to frustrate or even deny the fundamental right upheld in Roe
o real test is an effects test: does law as it’s applied have effect of placing a substantial burden on the rights of women to choose
▪ Ayotte v. Planned Parenthood of Northern NE (p. 443)
• Facially invalid not always best remedy for abortion law containing unconst provs. See if you can sever
▪ Stenberg v. Carhart (2000, p. 444)
• struck law banning “partial birth abortions” w/o providing for excs to preserve mother’s health (did contain prov re protecting woman’s life)
• but unconst under Casey; “Where subst med authority supports prop that banning a particular procedure could endanger women’s health, Casey requires it to include a health exc when proc is ‘necessary, in appropriate med J, for preservation of the life or health of the mother.’
▪ Gonzales v. Carhart (p. 445): Act banning intact D&E wasn’t a subst obstacle to late-term but pre-viab abortions; it was concern for approp role of doc. Medical uncertainty (re Act’s prohibition) = suff basis to say not UB. Should use an as-applied challenge. But it’s not unconst in large amt of cases.
• NOTE: important factors were 1) [in]frequency of procedure, 2) lack of medical consensus, 3) scienter (knowingly performing), 4) specific as to actions/conditions
• Ginsberg dissent: it didn’t include safeguards for women’s health, which is needed to withstand SS! Dxn from Stenberg b/c this proc is safer. The law doesn’t protect fetuses; it targets only a method. It deprives women of a choice, and reflects ancient notions re women’s role.
o Absence of health exc burdens all women for whom it’s relevant, but purp of health exc = protect women in exc cases!
SUBSTANTIVE DUE PROCESS AND FAMILY, SUBSTANTIVE DUE PROCESS AND SEXUALITY (450-469)
• Non-economic liberties: family and relationships and sexuality
o Freedom to marry is fundamental, protected by EP/DP (Loving, Zablacki, Safley)
▪ Loving v. VA (1967)(p. 450) – struck VA’s ban on interracial marriage since rt to marry = fundamental, protected under 14th
▪ Zablocki v. Redhail (1978) – struck law that said couldn’t get married if unpaid court-ordered child supp; places rt to marry firmly w/in zone of priv & uses SS
▪ Turner v. Safley (1987) – prison inmates had a fundamental right to marry and this couldn’t be impinged based on a discretionary view of prison officials
o Fundamental rt to life w/ extended family (SS) – Moore
▪ n/a for unrelated roommates (rational basis) – Bella Terre
• Bella Terre v. Boraas (1974) – held diff than Moore; no priv rts for family-oriented zoning rxns, excl. most unrelated groups from village
▪ Moore v. East Cleveland (1977) – struck zoning ordinance limiting occ to single “family” (narrowly defined – grandma w/ 2 grandsons didn’t count)
• Fundamental rt to keep family together, including extended (trad/hist)
o fundamental rt of parents to make childrearing decisions – Troxel
▪ n/a for adulterous parent – Michael H
▪ Troxel v. Granville (2000) – granting GPs visiting rts over objs of sole surviving fit parent = viol of mother’s SDP
• Stevens dissent – parent’s lib int not a const shield
• Scalia dissent – not our role
▪ Michael H (1989) – CA law had held that adulterous father doesn’t have parental rts; a rt must have societal respect to be fundamental, and adultery is not, so no rights were violated here.
• Unitary family idea (Scalia)
• Brennan dissent – ct is making subj value J; change C w/ time!
o fundamental rt to decide sexual conduct – Lawrence
▪ progression of SDP in sexuality area
• Griswold said that married couples can have contraception
• Eisenstadt extended Griswold to unmarried persons
• Roe w/ Casey modifs allow woman’s choice to terminate via abortion
▪ Bowers v. Hardwick (1986)
• Court found no cxn b/w family, marriage, or procreation (fundamental values allowed in Griswold, Eisenstadt, and Roe) and homosexual activity – so no fundamental right
o But note, it’s not clear that those weren’t upholding sex auton
o Ct combines a narrow interp of prec w/ narrow char of rt asserted, so the right doesn’t fall under the right to privacy
• B/c no fundamental right, look to RB(is this statute rationally related to a legit state interest? YES. Int = morality, and you can legislate it.
o The relationship itself is a fxn of liberty of persons to choose what relations to have with other consenting adults
▪ Lawrence v. TX (2003)
• sodomy statute, as applied to 2 adults engaged in private, consensual sexual conduct = viol DP.
• Ct doesn’t call fund rt tho suggests it, but still uses RB but still upholds!
• zone of privacy and includes an autonomy of self which includes freedom of thought, belief, expression, and certain intimate conduct
o law didn’t just outlaw sodomy; it demeaned personal rel’ships that homosexuals have and develop via sexual activity
o no legit state int here to justify intrusion into private lives
• overrules Bowers: it is ok to overturn b/c no reliance on it, leads to uncertainty, and doesn’t withstand careful analysis
o Bowers court overstated hist criminalization of sodomy; it wasn’t meant to deal re consenting adults in private
o trad = long-standing/ancient history vs. just recent history
o this court refocused the Q as: personal rel’ship that, whether or not formally recog by law, is w/n lib of persons to choose without being punished as criminals
• O’C concur – on EP grounds. Doesn’t join re overruling Bowers
o moral disapp not a legit st int
• Scalia dissent – believes passes RB review. Morality int.
o Only fund rts (those deeply rooted in hist/trad) quality for heightened scrut
• Thomas dissent – law is silly. No general right to privacy.
• Effect: can you legislate morality? Is there a fundamental rt to s-s marr? Depends on how you look at hist/trad. Broadly a rt to marriage – but narrowly = no rt to s-s. under Loving, broadly said funda rt to marr.
• Romer v. Evans – struck class-based leg directed at homos as viol of EPC (born of animosity t/w class of persons affected, no rat rel to legit purp)
▪ Gay marriage
• Goodridge v. Dept of Public Health – struck prohib ag s-s marriage
▪ Gay parenting
• Bottoms – upheld removal of child from custody of lesbian mothers (that was a felony in VA)
• Lofton v. Sec of Dept of CFS – denial of adoption rts to foster parents; no priv rts in adopt context, and st int re kids in optimal dev conditions.
• Meyers – since this decision, court has held certain spects of family life are fundamental rts and SS test must be met when looking at state laws
o Other SDP claims to privacy and autonomy
▪ Kelly v. Johnson – heightened scrutiny re appearance of officers of law
▪ Whalen v. Roe – no priv re database of dangerous drug prescriptions
▪ Youngberg v. Romeo – invol-committed retarded man had lib int in safety and freedom of movement, and training to ensure safety
▪ But Kansas v. Hendricks – int in avoiding phys restraint may be overridden by civil commitment statutes when proof of dang + something else (mental illness)
SUBSTANTIVE DUE PROCESS AND RIGHTS OVER DEATH (469-480)
• Non-economic liberties – RIGHT TO DIE
o Questions involved
▪ Does have state have an int in preserving life? (e.g. abortion cases) Does the State have the ability to legislate morality? (e.g. same-sex cases) Where in the C do we find these fundamental rights? (methodically e.g. abortion cases)
▪ Is a right of privacy based on bodily integrity and decision autonomy operating in these cases? And what level of due process is afforded to these cases?
o Four situations
▪ Suicide when one is healthy or only temporarily ill
▪ withdrawal of life support when one is terminally ill (more bodily integrity arg: rejecting intrusion)
▪ physician-assisted suicide when one is terminally ill (less bodily integrity arg)
▪ active euthanasia by a physician when one is terminally ill
o arguments for right to die
▪ bodily integrity
▪ decisional autonomy
o non-fundamental rt to refuse unwanted medical treatment (Cruzan)
▪ balancing test: state interests v. liberty interest
• state interests: preserving life, preventing suicide, preventing involuntary euthanasia, protecting vulnerable groups
▪ no fundamental right to physician-assisted suicide (RB) (Glucksberg)
• no EP violation either (RB) (Quill)
• Cruzan v. Director, Miss. Dept of Health
o no “clear and convincing evidence” of Cruzan’s wishes to die (just telling her friend that she didn’t want to be a vegetable, wasn’t enough) [clear and convincing standard is not violative of Due Process under the 14th Amendment]
▪ if there’s no clear and convincing evidence that someone wants to die, the state can’t prohibit withdrawal of life support.
o there’s a const-protected int in refusing medical treatment (not a fund rt); it’s inferred from previous SDP opinions.
▪ Not strict scrutiny
▪ Balance interests of indiv v. state interests
• Individual – Interest belongs and resides w/in the individual and the state can stop families
• State – protection and preservation of life, especially re incompetent, is an acceptable interest. Also, group of ppl could be coerced into choosing this option (the poor, elderly, disabled, etc.).
o 3 unanswered questions:
▪ Cruzan did not articulate a level of scrutiny in evaluating the governmental regulations of personal decisions. Not a fundamental right, so not strict scrutiny, but that’s all we know.
▪ Cruzan didn’t clearly resolve “clear and convincing evidence”, but we do know that a living will would most likely be persuasive.
▪ Court didn’t explicitly state what would happen if Cruzan had clearly designated a surrogate to make these types of decisions for her
• Washington v. Glucksberg
o Washington law prohibited any person from causing or aiding in suicide (a felony)
▪ law exc: withdrawal of life-sustaining support (Cruzan) is not assisted suicide
o analysis
▪ Examines nation’s history, practice, and legal traditions as in substantive due process cases (Griswold, Michael H., Moore, Bowers
▪ The reason why there was a constitutionally protected interest in Cruzan rather than here, is b/c in CL you could always refuse medical treatment b/c that was battery. Turns on bodily integrity and refusing forced medical treatment vs. here where it turns on decisional autonomy (which is less protected)
▪ Footnote 2: Court struck down a facial challenge and struck down a challenge of particular group, but did leave open the possibility that others could bring axn
o Holding
▪ ban on assisted suicide is not unconstitutional, either on its face or as applied to competent, terminally ill adults who wish to hasten their deaths by obtaining medication prescribed by their doctors
▪ not a fund rt, so use rational basis review ( R related to legit st ints in preventing abuse, preserving life, avoiding slippery slope re vol/invol, and integrity/ethics of medical profession.
o O’C concur – no general rt to suicide, but maybe recognized rt to permanent sedation
▪ Doctrine of double effect: drug’s purpose is to alleviate pain but it kills too
▪ AIDING IS WRONG, BUT WITHDRAWAL OF LIFE SUPPORT IS OKAY
o Breyer concur – deals more w/ rt to die with dignity.
o Stevens concur – no categ’l right to commit/assist. every possible appl would be valid
▪ Cruzan dealt with decisional autonomy.
• Vacco v. Quill
o Same Qs as Glucksberg, but with EP challenge – re prohibiting assisted suicide while permitting patients to refuse lifesaving medical treatment
o NY didn’t violate EPC. Everyone was treated the same; all had right to refuse unwanted medical treatment
o Difference in causation between PAS (physician is actively hastening the death) and withdrawal of life support (underlying disease causes the death)
BOTTOM LINE IN PRIVACY RIGHTS
• Laws infringing fundamental rights get strict scrutiny. Law must be narrowly drawn to compelling state interest
• Laws infringing regular rights get rational basis. Law must have rational relation to legitimate state interest
• Abortion: undue burden / substantial obstacle test, health exception
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