Con Law I



Con Law I

Outline

Introduction – Con Law is the structure of government or inter-relationship of government powers.

I. Our system of government:

A. Written text

B. 3 branches

C. Comity between federal and state systems

II. The United States Constitution

A. Article III – Federal Judicial Power

1. Supports the Constitution

2. So much of law has to do not with what judges say, but what the highest court would say.

3. Art. III refers to the establishment of a Supreme Court and the creation of other inferior courts at Congress’s discretion.

B. Article I – Legislative Power

1. Sets forth and identifies the legislative power – on the federal level, this is Congress – House and Senate.

C. Article II – Executive Power

1. Power of the President, VP, heads of departments

2. Current administration has used very strong exec power regarding anti-terrorism in light of 9/11.

Chapter 1 – The Federal Judicial Power

I. The Authority for Judicial Review

A. Marbury v. Madison – Marbury was appointed by President Adams before he left office and Jefferson came in. Jefferson ordered Madison to not send the commission to Marbury. Marbury sued Madison for not delivering the commission. He went to the SC to get a writ of mandamus, because he claimed original jurisdiction of the Supreme Court.

1. Questions posed by the Court:

a. Has the applicant a right to the commission he demands? Yes, Marbury had a right – the delivery was not necessary.

b. If he has a right, and that right has been violated, do the laws of his country afford him a remedy? Yes, the laws afford him a remedy. However, they discuss the role of the executive power in making these decisions. Specific powers are accountable under the political process.

c. If they do afford him a remedy, is it a mandamus issuing from this court? (Is there power in the U.S. Supreme Court to grant him a writ and the reviewability of the Judiciary Act? It as an act of Congress conflicts with the language of Article III of the Constitution. It is unconstitutional. So they are telling Marbury that he has to go to a lower court. He is bounced out not on the merits of his case, but on the fact that he is in the wrong court. (They’re saying we don’t have power to look at Marbury’s case, but we DO have the power to look at this act of Congress.)

i. Depends on the nature of the writ applied for and

ii. The power of this court.

2. Black letter rule: Where the Constitution, as interpreted by the Supreme Court, conflicts with the laws or actions of the other branches of government, the Supreme Court may declare such laws or actions invalid.

B. Authority for Judicial Review of state judgments

II. Limits on the Federal Judicial Power

A. Interpretive Limits – the Constitution

1. History and background – enormous debates among the framers regarding what should be in the text.

a. Structural significance

b. Role of Bill of Rights – B of R refers to amendments to the original text. Individual rights were thought of by the framers but not agreement on what should go in. Some thought with 3 branches of govt, there was no need to discuss indiv rights. Others thought the system would not be perfect and there was no way that individual branches would not encroach on indiv rights.

c. Slavery – huge issue in the framers’ debates.

2. Tools of construction

a. “Plain language” – when making a constitutional argument, you always start with the actual text of the section you’re referring to.

b. Original meaning – how it was actually construed by the public at the time it was written

c. Original intent – looks at the mindset of the framers at the time

d. Originalism v. Non-originalism

i. Originalism – the view that judges deciding constitutional issues should confine themselves to enforcing norms that are stated or clearly implicit in the Constitution.

ii. Non-originalism – the view that courts should go beyond that set of references and enforce norms that cannot be discovered within the four corners of the document.

3. Example of interpretation – 2nd Amendment: U.S. v. Emerson – the guy had a gun which went against a restraining order in conjunction with his divorce proceeding. He said the 2nd Amendment protected his indiv right to have guns. The court determined that it does give an individual the right to bear arms.

a. Look at the language – “A well-regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.”

i. “The right of the people” – what does “people” mean? It could mean individual persons, but it could also mean people in connection with the notion of militia regulated by the state.

ii. “Bear arms” – could mean all weapons or could mean only weapons as part of state defense.

b. Originalist reading of the 2nd Amendment – you could go with either argument, depending on what you think the original intent of the framers was.

c. Non-originalist reading – you would argue that today there are societal issues such as gun violence that need to be considered in the interpretation.

B. Congressional Limits

1. Exceptions and Regulations Clause, Art. III, § 2: The Supreme Court possesses appellate jurisdiction “both as to Law and Fact, with Exceptions, and under such Regulations as the Congress shall make.”

a. Primary case in interpreting Exceptions and Regulations Clause: Ex Parte McCardle – court read the language very literally and concluded that they didn’t have the power to decide the case. Case involved a heavy political battle – at issue was the fate of a journalist who had written articles criticizing Reconstruction. He petitioned for a writ of habeas corpus and part of his argument was that the act of congress was unconscionable because it set up a situation of military tribunals. His appeal went to the SC. After court head arguments but before decision rendered, Congress passed a law that says the SC can’t decide on this issue.

i. Problems inherent in this ruling – problems of citizens relying on the law, violation of separation of power to read the clause this broadly.

ii. Black letter rule: Although the Supreme Court’s appellate jurisdiction is derived from the Constitution, Congress has the power to make exceptions and regulations to this jurisdiction.

b. Yerger – open question of whether habeas corpus review could be completely yanked form the SC’s jx. Answer was…

c. U.S. v. Klein – SC says we need to explain why there might be checks and balances problems if this language is abused.

i. Did Congress surpass its constitutional authority when it enacted a law dismissing federal court jurisdiction on claims against the government supported by presidential pardons?

• Yes. The law violates separation of powers for two reasons. First, the law surpasses congressional power to create exceptions and regulations to the Supreme Court’s appellate jurisdiction. Second, the law interferes with the Executive’s exclusive power to pardon, a power granted without limit by the Constitution.

d. Felker v. Turpin – jurisdiction or “court stripping.” If there is such a court stripping power, then these pieces of legislation (antiterrorism and death penalty acts) minimize court review in certain categories of cases.

i. Did a federal statute making unreviewable courts of appeals’ decisions on prisoners’ second habeas corpus petitions violate the SC’s appellate jurisdiction?

ii. No. The law is not unconstitutional because it doesn’t infringe the SC’s authority to hear original habeas petitions. Art. III, §2 explicitly grants the SC original jx in certain cases. It goes on to grant appellate jx in all other cases “with such exceptions, and under such regulations as the Congress shall make.”

C. Justiciability Limits – Art. III “case or controversy” – there has to be a “case or controversy” in order for the case to be heard. The SC can’t just go out and decide constitutional issues – there has to be an actual case at hand.

1. Prohibition of Advisory Opinions – historical examples of communication between branches asking for opinions on what they think. This is advisory without having an actual case.

2. Standing – determination of whether a person is the proper person to bring a case before the court. (It would be overreaching for the court to rule on a case in which the person bringing the case is not suffering in any way.) Components (only one has to be missing to reject standing):

a. Injury – must be actual and imminent, concrete and not abstract, not merely speculative.

i. Imminence – how imminent should it be? You could be talking about something that will happen 20 years in the future if you have impact studies to back it up.

ii. Lujan v. Defenders of Wildlife – Ds were alleging standing based on injury to the environment and to their research. The majority thought the ecosystem nexus and animal nexus were too speculative. They said their plans to return were not concrete enough because they didn’t already have specific plans. They also had problems with the fact that pretty much anyone would be able to bring a suit.

iii. Wright v. Allen – Ps were parents alleging that their kids were being denied a desegregated education because IRS was exempting segregated schools from taxes. Court said there was no actual injury here. According to the court, if they had taken affirmative steps (like actually have their kids try to attend the schools) then there would be an actual injury.

b. Causation – the injury claimed to be suffered has to be allegedly or provedly caused by the defendants. So long as the injury is alleged in a way that the judge can see there is a causal link between the injury and what the D could actually be responsible for.

c. Redressability – must be a kind of injury that the remedy is within the court’s power to give.

d. “Prudential” Requirements – additional screens/barriers that keep plaintiffs out of court in the interest of efficiency.

i. No “3rd party standing” – notion of choosing P carefully – a P being able to argue on their own behalf. Notion is that you should do it for yourself and no one should do it for you.

• Exceptions – some of these are obvious, like bringing a suit on behalf of an infant child or someone who is incompetent.

• Singleton v. Wulff – Medicaid not paying for certain abortions and the doctor is suing because he’s not being paid for the abortions he’s performing. The real injury he’s claiming is for the women who can’t obtain the abortions. Court applies 2-part test:

← Closeness of relationship of the person bringing suit to the 3rd party (in this case court said no closer relationship than woman and doctor.)

← Likelihood that the 3rd party can sue on its own behalf (here the woman would not want to sue on her own because of stigma – fear of asserting her right.)

• Craig v. Boren – Okl drinking law that said women under 21 could drink near beer but men couldn’t. Bartender challenged the law and said he would lose business – this didn’t cut it. (But he also argued that it violated equal protection and he won on this.)

• Gilmore – mother tried to challenge her son’s death penalty. Court said no, he has to do it himself.

• Associational/Organizational – part is bringing suit on behalf of itself, but it’s also 3rd party standing. Allowed as long as the assoc asserts standing on behalf of indiv members who themselves would have standing, the interest that they assert has to be germane to the org’s purpose, and as an org you are arguing that the remedy you’re seeking is linked to the injury or interest that you’re claiming.

i. No “generalized grievances” e.g. citizen/taxpayer – general rule is that you can’t broadly as a taxpayer bring suit.

• US v. Richardson – federal taxpayer wanted to bring suit for an accounting from the CIA on how money was being spent. Issue was can a federal taxpayer bring this case? U.S. and CIA said this was a generalized grievance and if this guy could bring suit, then anyone who pays taxes could bring suit. His claimed injury was that he was not getting a report he’s entitled to. Response to this is that even if he got a report, it wouldn’t affect the amount of taxes he pays. Court says taxpayer status alone cannot result in standing.

• Flast v. Cohen – Flast wanted to challenge misallocation of money – public money being misspent because it was going to religious private schools. 2-part test for exception to no generalized grievances:

• Must challenge an enactment under the Taxing and Spending Clause of Art I of the Const

• Must claim that the challenged enactment exceeds specific constitutional limitations imposed on the taxing and spending power.

• Valley Forge Christian College v. Americans United for Separation of Church and State – AUSCS was challenging a conveyance of land to a religious organization and they claimed they met the 2-part Flast test. Court says yeah, it’s the taxing and spending power of Congress that’s being challenged, but here they have objected to the spending of an executive agency – this was the wrong branch, so no standing.

1. Ripeness – this is not about who, but about WHEN – usually not a problem because harm has normally already occurred, but sometimes harm is imminent and then it’s a matter of how imminent it is that you can actually go into court.

a. Ripeness defined

i. Must first ask question of standing in order to determine if something is ripe for review.

ii. Most of the time not a problem. It’s a problem to spot when the party is going into court asking for preenforcement review – declaratory or injunctive relief from something that is chilling them in the exercise of their rights.

b. Poe v. Ullman – case involving access to birth control. 2 couples with wives with serious problems relating to pregnancy are asking for declaratory relief that they will not get prosecuted if they break the law by seeking advice on birth control. The doctor wants to be able to dispense the advice.

i. Court says no ripeness, that contraceptives are out there and available. They said it would take an actual conviction of one of the Ps to seek review. You have to wait to break the law and truly argue that you have been injured. Court would like the facts to develop a little more in order to be ripe.

c. Griswold – similar case to Poe but the difference here was that the doctor was flagrantly violating the law and was actually prosecuted.

d. Abbott Laboratories v. Gardner – drug manufacturers challenged regs (requiring printing of brand name and established name) on ground that the Commissioner exceeded his authority under the statute.

i. Here Ps didn’t actually need to be prosecuted first to bring suit. So it’s relevant that the law will actually be enforced. Also it involves the day to day operations of huge drug companies.

ii. “The problem is best seen in a twofold aspect, requiring us to evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.”

2. Mootness – must be a live case or controversy at all stages; when events transpire over a case that make it no longer live, the court has to let go of the case.

a. Exceptions:

i. Capable of repetition yet evading review – example of this is Roe v. Wade. She brought the action and by the time the case came to the end the baby was obviously gone because it was like 2 years later. Court said nature of pregnancy is so short that no woman would ever be able to litigate.

• Compare with DeFunis v. Odegaard – guy was allowed to attend after claiming he was denied admission to law school because of affirmative action. He was finished with law school by the time the case ended. Here it was not capable of repetition for DeFunis. But in Roe, it could have personally applied to Roe again in her lifetime.

ii. Voluntary cessation by the defendant – a case is not to be dismissed as moot if the D voluntarily ceases the allegedly improper behavior but is free to return to it at any time.

• Friends of the Earth Inc. v. Laidlaw Environmental Services – rule stated by the court was that “a case may become moot if subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.”

iii. Class action suits – a properly certified class action suit may not continue even if the named P’s claims are rendered moot.

• United States Parole Commission v. Geraghty – the guy was the named P in a class action suit but he was released from prison before the case came to appeal.

• Issue was may an appellate court consider a challenge to a district court’s denial of class certification if the named plaintiff’s case is moot? Yes. Where the dispute remains between members of the potential class and the defendant, the mootness of the named plaintiff’s case does not prevent appellate courts from considering an appeal of the class certification denial.

3. Political Question Doctrine – a “what” question

a. What is a political question?

i. Certain kinds of cases could be a violation of the separation of powers. What makes this questions political? It is something the courts should just stay out of. It makes a great deal of sense to keep the court out of certain areas because it is the sole role of the other branches (the political branches) to deal with this stuff.

b. Baker v. Carr – established the test for determining a political question. Early case involving malapportionment challenges under the equal protection clause. Court said the clause challenges had to do with an argument involving coordinate branches of govt. Factors that define political question:

i. Text – A textually demonstrable constitutional commitment of the issue to a coordinate political department (means that in the constitution, it’s specifically given to a specific branch of govt) or

ii. Lack of judicial standards – a lack of judicially discoverable and manageable standards for resolving it or

iii. Policy determinations – the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion or

iv. The impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government or

v. Disrespect factor/respect for stare decisis – an unusual need for unquestioning adherence to a political decision already made or

vi. Embarrassment factor – the potentiality of embarrassment from multifarious pronouncements by various departments on one question.

c. Powell v. McCormack – congressman was in trouble with the law but won the House seat anyway and the House refused to seat him. He filed suit and said he’d won the right to sit in the House and he should be able to sit. House said it was a political question between them and Powell.

i. Textually demonstrable commitment to a political branch? No, text only says house seats its members if it meets the qualifications of age, citizenship, and residence.

ii. Court said all the House had the right to do was decide on those factors set out in the text.

d. Nixon v. U.S. – case involved a judge who challenged decision of Senate to try to convict and remove him from office as a federal judge with lifetime appointment on grounds that the procedure the senate used was unconstitutional.

i. Nixon argued the mini-committee they put together to try him was not the Senate trying him as the text states. Senate said it was their job to figure out how to go about it.

ii. Court ruled in favor of Senate and said that the “sole” power of the Senate means they can do whatever they want when it comes to this. So yes ( it’s a political question and not justiciable.

e. Goldwater v. Carter – issue was whether Goldwater could challenge the Pres’s decision to rescind a treaty. Goldwater said Senate has a role in approving the treaty, so they should also be able to have a role in rescinding it.

i. Court said const language is silent on issue of rescinding. One way to view this is that silence means advice and consent is not necessary, and other view is vice versa.

ii. Court said this is textually committed to the Pres and if there’s any dispute with the Senate it should be worked out in the political process.

f. Other examples – war, recall election?

Chapter 2 – The Federal Legislative Power – Article I

I. Intro – Congress and the States

A. Federalism – issues of state sovereignty and states’ rights.

B. McCulloch v. Maryland – issue was whether the state could tax the national bank that had been formed. It went through state court and won, then it went to the SC. Central questions:

1. Does congress have the power to charter a national bank? Yes.

a. Marshall says it’s not specifically stated in the constitution, but it is implied. He gets this implication from clause 18 – necessary and proper clause. He says this clause should be read expansively; we have to give Congress the power and flexibility to decide what is necessary to carry out its other powers. (MD’s argument against this is that it’s within their borders and not affecting other states, so it should be within their control.)

2. Can MD tax this bank? No.

a. Why not? The power to tax is the power to destroy. Court said we first said that congress had the power to set up a natl bank, and they also have the power to preserve the natl bank. If taxes are destroying the bank, then you can’t tax bc you’re getting in the way of Congress’s job to preserve it.

II. The Commerce Power – The Commerce Clause

A. Initial Era – Gibbons v. Ogden (defining case) – defined what commerce is. Gibbons was operating a ferry service that went against the monopoly held by Odgen.

1. Does Congress have the power to regulate commerce of the water between the states? Yes.

2. Why does Congress’s power extend to this particular realm? Court says it’s not only traffic, but intercourse. Waters cross state boundaries, so if Congress’s power is to be read expansively, it should include all objects down the line. This would include navigational and water laws.

3. Expansive reasoning to allow for Congress to include stuff.

4. What about interpretation of “among the states”? Court says that “It is the power to regulate; that is, to prescribe the rule by which commerce is to be governed.” Links the power as going back to the people. So national regulation is the most sensible thing.

B. 1890s-1937 – a limited federal commerce power (the court narrowly defined commerce during this phase)

1. What is commerce? Court very stingy about defs of commerce and among the states at this time. They say it has to be across state lines, NOT something that is intrastate. Due to the industrial revolution and growth of the natl economy – so interest in protecting states’ rights so that economy would grow.

a. U.S. v. E.C. Knight Co. – at issue was fed legislation with regard to sugar refinement and a challenge that this was unconstitutional. Court says that if manufacturing is part of commerce, then everything can be part of commerce.

i. Manufacturing is not commerce – Congress should only have the power to regulate the last steps in the process of actually moving products across state lines.

b. Carter v. Carter Coal Co. – congressional purposes given on pg. 108. 1 layer is an exam of the lang and 2 is the discussion of whether it’s legitimate.

i. Black letter rule: Purely local activities, such as the negotiation of wages and working conditions, are outside of Congress’s realm of authority under the Commerce Clause.

2. What does “among the states” mean? These cases are good examples of legislation intended to effectuate social justice purposes.

a. Shreveport Rate Cases (Houston, East & West Texas Railway Co. v. United States) – court upholds federal regs regarding railroads.

i. Black letter rule: Congress has the authority to regulate intrastate commerce where it has the potential to affect interstate commerce absent federal regulation.

b. ALA Schecter Poultry v. United States – sick chicken case.

i. Black letter rule: Once goods that have traveled in interstate commerce are sold or disposed of in the state of their final destination, they are no longer in interstate commerce and therefore not subject to federal law.

3. Does the 10th Amendment limit congressional powers?

a. Hammer v. Dagenhart – a father wanted to put his 2 kids to work in a mill and sued on the ground that Congress’s use of the commerce power to regulate child labor in the states by blocking the interstate transportation of child-made goods is unconstitutional.

i. 10th Amendment issue – Congress was trying to federalize the movement of articles made by child labor – this would have affected state sovereignty.

ii. Manufacture v. shipment bifurcation. States say we have the right to control what happens in our state, we have police powers. They say goods come from intrastate.

iii. Dissent points out what’s wrong with the majority opinion – this would later be used to overrule this case in US v. Darby.

iv. Black letter rule: The commerce power does not allow Congress to regulate in areas traditionally left up to the states’ police power, such as the area of child labor laws.

b. Champion v. Ames – lottery case; attempt by Congress to pass a law that is actually against immoral gambling. The Federal Lottery Act prohibited interstate shipment of lottery tickets. It was challenged as unconstitutional in that such shipments are not commerce.

i. Lottery tickets are traffic, and therefore are subjects of commerce.

ii. Black letter rule: Congress may, pursuant to the Commerce Clause, prohibit the interstate shipment of items adjudged to be evil or pestilent in order to protect the commerce concerning all states.

C. 1937-1990s – broad federal commerce power (court is looser in its definition of commerce and the 10th Amendment – change occurs because Depression caused a need for federal intervention – they wanted to control the economy. Also attempted court-packing by FDR.)

1. Key decisions changing the Commerce Clause Doctrine

a. NLRB v. Jones & Laughlin Steel – Natl Labor Relations Act which tries to protect workers. Court looks at this through a different lens and says this is not appropriate.

b. United States v. Darby – Fair Labor Standards Act. Earlier versions were stricken down but this time the majority said the legislation should be upheld. It’s appropriate to regulate among the states even if it has an indirect effect on sovereignty.

c. Wickard v. Filburn – case of the wheat farmer who went over the limits but kept the wheat for his own use. Agricultural Adjustment Act is the legislation in question – it only allowed farmers certain allotments of wheat, but he was going to use it himself.

i. Congress wanted this legislation to make sure the price of wheat didn’t get too high or low. It was a direct objective to help the economy by setting rules and not deviating from them.

ii. He says he wasn’t affecting anything and he was outside the reach of the act. Court says Congress was acting within the scope of its powers here. His contribution might be trivial, but if everyone does it, then it would really affect things.

iii. Known as the “aggregate effects theory” – congress can regulate even if the reach of its power goes into the area of indirect effects if they can argue that the aggregate would have an effect on interstate commerce.

2. Meaning of “Commerce Among the States”

a. Congress said we can’t act under the 14th amendment to regulate acts in the private sector. So to get at it, they end up using the commerce clause.

b. Heart of Atlanta Motel v. United States – motel was racially discriminating. Congress said the motel was near the highways and blacks were discriminated against and had nowhere to stay.

i. There was an aggregate impact on interstate commerce even though it was a local motel.

c. Katzenbach v. McClung (Ollie’s BBQ case) – similar to Heart of Atlanta in that it was a local business. The restaurant buys food in interstate commerce which they eventually sell to their customers.

i. Does a commercial enterprise serving the public fall within the reach of Congress’s commerce authority when it sells goods a substantial portion of which have moved in interstate commerce? Yes.

d. Antidiscrimination legislation – even though these cases upheld such acts, once Congress had the power to reach into issues like this, every potential plaintiff got swept in. The court of today says the 10th Amendment is infringed and these acts infringe upon state sovereignty when they are upheld. (The 10th Amendment argument focuses on why states have control over certain issues.)

3. The Tenth Amendment during this era

a. National League of Cities v. Usery – narrowly decided 5-4 decision upholding notion of state sovereignty as a protected zone against federal encroachment from minimum wage and maximum hour acts. There was a challenge here by the cities saying there was an onerous effect on states.

i. 10 years later, this case was overruled by Garcia.

b. Garcia v. San Antonio Metropolitan Transit Authority – Fair Labor Standards Act. Court said it was important to respect the role of states to enact legislation controlling their own workers – so they didn’t invalidate the FLSA.

i. National League of Cities is wrong and is overruled because it is unworkable. Unworkable to have a system where the Supreme Court could rule that acts were validly passed and then states can come in and say that they are being interfered with.

ii. It is not a question of national v. local when every person in congress comes from a local place – so there is a local interest built into the process.

iii. Sovereignty – control over intrastate activity. Proprietary interest would be something the state thinks it has the right to control but takes it a step further and says they have the sole right to control it and fed govt shouldn’t touch it.

D. 1990s-present – narrowing of fed commerce power & Revival of 10th Amendment as a constraint on Congress

1. What is Congress’s authority to regulate “commerce among the states”?

a. United States v. Lopez – the purpose of the Gun Free School Zones Act was to keep guns away from schools and prevent gun violence. Cost of crimes reasoning and national productivity reasoning for the commerce clause rationale – primary rationale is for public safety.

i. Does Congress have the right to legislate in this area by using the Commerce Clause?

ii. Majority sets up a test that builds upon case law. Congress may regulate the following:

• Channels of interstate commerce (classic examples are roadways, waterways, etc.)

• The instrumentalities of interstate commerce (the means for commerce, the actual objects themselves that move across state lines – like cars and railroad cars)

• Activities that substantially affect interstate commerce

• Rehnquist says stuff doesn’t have to just “affect” – it must “substantially affect” interstate commerce.

iii. Court said a gun is not an instrumentality of interstate commerce so it was the activity being regulated that must affect interstate commerce here.

iv. Court says there needs to be a jurisdictional nexus that was not present here. In order to uphold the law, there needs to be a requirement that anyone prosecuted under it actually be engaged in activity that substantially affects interstate commerce – Lopez was just one guy and did not meet that requirement here.

v. Wheat case not overruled – they distinguish it because the aggregate theory was acceptable because it applied to a specific economic area. There was a distinct commercial link there that was not present in the Lopez case.

vi. Statute must have express congressional findings regarding the effects on interstate commerce (in the leg history and findings). This was a warning to Congress to make a better showing next time.

vii. Dissent:

• Change to “substantially affects” – Stevens says we should be deferential to Congress and if they think there’s an interstate effect, we should trust them. Breyer wants to know why is has to be economically commercial as long as the nexus of interstate commerce is there.

• Majority’s response is that then congress would be able to go into any area they want.

b. United States v. Morrison – Violence Against Women Act civil remedy provision. 5-4 decision. Christy Brzonkala was sexually assaulted by 2 men at her university. One man went through the school’s grievance policy and was eventually readmitted so she dropped out of school. She tried to avail herself of the VAWA civil remedy. He argues this is an improper reach of the commerce clause power.

i. Court restates the Lopez test and determines there’s not enough of a connection here.

ii. This was different from Lopez though because there were a lot of congressional findings related to people not entering the work force because of gender-based violence.

iii. Court is maybe saying there’s a better way to go that isn’t through the commerce clause. Not enough of a nexus here because if you allow this under the commerce clause then congress could regulate any crime under the commerce clause. (Thomas is clearly saying don’t even bring anything before me unless it’s a law that regulates interstate commerce.)

2. Does the 10th Amendment limit congress’s authority? (Start by asking if Congress is working within the scope of their powers. If NO, then the mirror image demands that you ask – does this affect state sovereignty in such a way that I should raise a 10th Amendment issue? You only ask this when fed is stepping outside of its powers.)

a. 10th Amendment issues on exams – look for whether or not Congress is affecting state or local entities in ways they might complain is onerous. A big clue is when there’s mention of what the state or locality thinks of the regulation!

b. New York v. United States – regulation regarding low-level radioactive waste. Court struck down one of the 3 provisions of the radioactive waste act.

i. This was not a question of commerce because there was obviously commerce involved here. States got together to propose and lobby for this act of congress, so we know that congress can legislate in this area.

ii. The “take title” incentive provision – even though congress is acting within its scope, has it chosen a mechanism for carrying it out that is onerous? Are they commandeering the states? Unlike the other 2 provisions, this provision acted to punish the states if they don’t comply.

iii. Majority says this was too much – they are commandeering the states. The take title provision was unconstitutional because it was overreaching into the terrain of the states by commandeering them – forcing them to take title to radioactive waste.

iv. Dissent says all the other states wanted it this way and NY shouldn’t be able to just mess up the plan. Majority’s response is that Congress can just pass a law that directly regulates instead of making the states regulate in a certain way. They say they want the federal govt to use its own power to accomplish what they want – like they could have gotten the same result by reducing federal funds.

v. When Congress acts to direct the states to do something in a certain way, it violates the 10th amendment.

c. Printz v. United States – Brady Bill required state and local law enforcement personnel to do background checks on handgun purchasers in the interim until the federal check system was put into place.

i. You can’t command states to do things, but you can give financial incentives to do things. In one case the state has a choice and in the other it doesn’t.

ii. Majority said the provision of the bill was wrong because it was commandeering and forcing people to do their jobs in a certain way with respect to third parties or private parties.

iii. Black letter rule: Congress does not have authority to compel states to enact, enforce, or administer federal regulatory programs, and cannot circumvent this prohibition by conscripting state officials directly.

iv. Gun control a very loaded issue in which federalism issues are frequently raised.

d. Reno v. Condon – DMV law. The Court actually went in the other direction here regarding the 10th Amendment. They said there was NO 10th Amendment problem here.

i. Said it was ok for Congress to pass a bill which directed DMVs to not make available personal information of its customers.

ii. The states claimed they were being commandeered, but the govt saw it as prohibiting them from doing something, not commandeering them do to something.

iii. How is this case distinguished from the prior two?

• States not acting like sovereign regulators – this act doesn’t require the state to regulate as a sovereign. It’s regulating the states as the owners of databases. (Instead of regulating private citizens, they’re regulating the states themselves.)

• In the prior cases, fed govt had passed a law telling the states how to act as sovereign entities – redefining the role of states in the minds of private citizens. By contrast, here all the law was asking the states to do was act like the owners of the databases. No redefining their role as sovereign states here.

3. Current Court – generally see 5-4 votes on commerce clause issues.

a. Rehnquist, Scalia, Thomas, Kennedy, O’Connor – generally more skeptical of the reach of congressional power, more interested in defending the role of the states.

b. Souter, Ginsberg, Breyer, Stevens – nonoriginalist approach, we have to have a broader view of what a national problem might be.

III. The Taxing and Spending Power – “Congress shall have the power to lay and collect taxes and spend for the general welfare.” According to the Court, “general welfare” can be construed quite broadly.

A. For what purposes may Congress tax and spend?

1. Taxing – defined very broadly

a. United States v. Butler – essentially taxing is defined very broadly.

i. Focus on the Hamiltonian vision – the clause “confers a power separate and distinct from those later enumerated is not restricted in meaning by the grant of them, and Congress consequently has a substantive power to tax and to appropriate, limited only by the requirement that it shall be exercised to provide for the general welfare of the U.S.”

ii. The only restriction we will see is if the tax is so onerous that it becomes a penalty and requires the giving up of another right.

2. Spending – also defined very broadly. Conditions CAN be attached to the spending of federal funds – the allocation of federal funds to the states.

a. South Dakota v. Dole – conditioned allocation of federal highway funds on passage of a law that required 21 to be the legal drinking age of the state.

i. The majority said this was ok – Congress can place these restrictions. Court said there wasn’t very much money involved, so it wasn’t significant.

ii. The court found:

• There was a link.

• It was clearly related.

• And it was clearly stated.

IV. Congress’s Powers under the Post-Civil War Amendments

A. Who may congress regulate under the post-civil war amendments?

1. 14th Amendment – section 1 makes reference to the states – “the state shall not deny” – so under the 14th Amendment, Congress may regulate STATE action.

2. United States v. Morrison – U.S. was arguing that section 5 would allow for a remedy of the violation of her rights by a non-state actor.

a. Why did the court say they could not use section 5 to reach state action? The act was criminal in nature and it was part of the state’s police power.

b. Why could only state action be reached? U.S. also argued that the state had failed to protect women under section 5. So even though section 1 says it should be state action, U.S. said section 5 should reach out into private areas in which the state has failed in its role as a force in prosecuting individuals.

c. Black letter rule: Congress’s authority to regulate under the 14th Amendment extends only to state activity, not activities of private individuals.

d. Sec 5 of 14th Amendment – court goes back to prior cases touching on language and history and state action – and says that the court in the 1800s essentially said we think it’s very important to limit the reach of the 14th amendment to state action, and not private conduct. The constitution and the courts can’t legislate social attitudes (like force people of different races to associate with each other) but they can control this with regard to state action.

B. What is the scope of congress’s power under section 5?

1. Two theories:

a. Remedial power – the court explained this approach in Katzenbach, below.

b. Power to create new substantive rights – this could include entirely new statutory rights. [Current view of the court is that Congress cannot use section 5 to create new substantive rights, it can ONLY use the section to remedy.]

2. Katzenbach v. Morgan and Morgan – New York voters challenged a federal law prohibiting New York from enforcing its English literacy voting requirement.

a. Black letter rule: Section 5 of the 14th Amendment authorizes Congress to enact remedial legislation prohibiting enforcement of state laws found to abrogate civil rights, even though such state laws are not unconstitutional.

3. City of Boerne v. Flores – what convinces the court that RFRA doesn’t fall under the remedial power? The majority relies on the notion that if this is a remedy, you have to start out by pointing out specific wrongs. The law went off the track because its primary objective was to say the court did a terrible thing in the peyote case and now we’re overruling it.

a. Court looked at how far Congress could go in using section 5 of the 14th Amendment regarding scope of power. Court said in order to pass a law and rely on section 5, Congress has to have a purpose that is remedial not substantive.

b. What does remedial not substantive mean? To remedy a violation that has already occurred that you can document – responsive. Or seeking to provide a remedy so that you can prevent the violation from occurring. Congress can’t create new rights under section 5. The Court is the arbiter of what the text means.

c. Standard for evaluating whether or not the scope of the remedy is too broad/overreaching. Standard of congruence and proportionality.

i. Congruent to the harm.

ii. Proportional to the harm.

d. Black letter rule: Section 5 of the 14th Amendment gives Congress the power to enact laws as remedial measures and to prevent constitutional violations, but does not allow Congress to define the substantive scope of constitutional guarantees.

4. Smith (the peyote case) – Native Americans were using peyote for religious purposes and because they were using it, their rights to receive employment benefits were impeded. There was reason to believe they had at least a free exercise claim. But the court said the new test that we want to apply in the area of free exercise challenges is that if a neutrally applicable law interferes with free exercise rights, it is…

V. Congress’s Power to Authorize Suits against State Governments – 11th Amendment

A. Background and history on 11th amendment and state sovereign immunity

1. Article III, § 2 – covers the scope of the federal judicial power. Source of the different categories in which states can be brought in federal courts.

a. Judicial power of the U.S. extends to suits “between a state and citizens of another state” and “between a state, or the citizens thereof, and foreign states, citizens or subjects.”

2. Chisholm v. Georgia (1793) – private SC citizen sought to bring a private suit for damages against the state of GA. Court looked at the original text and said the power extends to a citizen of a state against another state. Huge negative reaction from the states to this. SO…

a. 11th Amendment was enacted to close the door on allowing this action. Closes the door on a suit from a citizen of state A against state B, and foreign citizens suing a state in the U.S.

b. Cluster of cases then come out interpreting the amendment. Key case is Hans.

3. Hans v. Louisiana (1890) – it would be unequal if the door were closed to citizens of one state to file against another state, but ok for the citizens of the same state to file against that state. Fair reading of the 11th Amendment should also insulate state B from suits by private citizens of state B.

a. Court said it would be too lopsided to allow in-state citizen to sue the state, but not out-of-state citizen to sue the state. So now neither can sue the state.

4. Why is state sovereign immunity as a defense such an important topic?

a. Financial interest of the state is an issue.

b. There’s supposed to be a mutually respecting structure between states and federal. If federal allows these suits, does that put states at the behest of fed power?

5. Sovereign immunity defense applies to:

a. What parties?

i. Citizens of state A v. state B

ii. Citizens of state B v. state B

iii. Foreign subjects v. any state

iv. (We are only talking about states and state subdivisions – not municipalities.)

b. What kinds of suits?

i. Suits for damages – defense is NOT allowed.

ii. Suits for injunctive relief – the defense IS allowed.

iii. Federal question AND diversity of citizenship nonfederal issue – immunity applies.

iv. Right of Congress to abrogate – looking to § 5 of 14th Amendment.

c. State/federal?

i. Alden v. Maine – says this doesn’t just apply to federal court, it applies to state and federal court.

6. Exceptions to the reach of sovereign immunity

a. Consent by the state to be sued. The legislators can decide that the state will consent.

b. Waiver – a state can waive their right to assert the defense of sovereign immunity.

c. State officers are sued for damages to be recovered from them, rather than the state itself. (This is a legal fiction.)

d. Congressional abrogation – this refers to the right of Congress under Article I to pass laws that essentially supersede sovereign immunity of the states.

B. Congress’s power to authorize suits against state govts

1. Fitzpatrick v. Bitzer – Court says historically speaking, the 14th Amendment came along to restrain state power to deny people due process. Every reason to believe that 11th Amendment should be used as a state limitation on their power. There might be situations in which section 5 actually trumps the 11th Amendment.

2. Seminole Tribe of Florida v. Florida (1996) – overruled PA v. Union Gas, which held that Congress may override the 11th Amendment and authorize suits against state govts pursuant to any of its constitutional powers, so long as the law in its text expressly authorizes such suits. This case involved Indian gaming – Congress passed a law (under PA v. Union Gas) allowing states to be sued for failing to negotiate in good faith with Indian tribes regarding formation of gaming compacts between those parties. The law was challenged as a violation of the 11th Amendment’s sovereign immunity.

a. Court said this was not ok, the act in question was not passed pursuant to a constitutional provision granting Congress the power to abrogate state sovereignty – it wasn’t a valid exercise of power.

b. Commerce clause was relied upon as the source of its power. Court said no, you can’t use Commerce Clause to abrogate state sovereignty because overreach of the Commerce Clause and PA v. Union Gas was wrong.

c. Dissent – said it is appropriate for Congress to use power in this way because Hans represents a misreading of the text. Hans just took the text of the 11th Amendment and just decided that the structure clearly meant something else. (Narrow 5-4 split about history and text.)

d. Black letter rule: Congress may not, outside enforcement of 14th Amendment Guarantees, authorize federal lawsuits against states in abrogation of the 11th Amendment.

C. Recent decisions concerning congress’s authority under section 5 to authorize suits against state govts

1. Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank and the United States (1999) – patent infringement case. Congress took a patent infringement statute for federal courts and added a provision expressing their clear intent that they are erasing state sovereign immunity for this area. Court holds that this was not a proper exercise of power.

a. Black letter rule: For Congress’s abrogation of state sovereignty pursuant to the 14th Amendment to be constitutional, it must (1) show a history or pattern of unconstitutional activity by states giving rise to a need for remedial or preventive federal regulation, and (2) limit the scope of the remedy, making it proportionate to the constitutional violations giving rise to the need for enforcement.

2. Kimel v. Florida Board of Regents (2000) – involving reach of section 5 to support provision of the ADEA that would allow suits by state employees against state employers. Court says this is not a proper use. Why? Because the City of Boerne test is not met. (Same answer in Florida Prepaid.)

D. Congress’s power to authorize suits against state govts in state courts

1. Alden v. Maine (1999) – can a private individual having no path in federal court to sue the state then go to state court to sue the state? Court says no, state sovereignty was a pre-11th Amendment idea and the role and importance of the state should keep it from being sued in state court. NO federal question in state courts.

a. Black letter rule: Congress does not possess the authority, under its Article I powers, to abrogate the states’ sovereign immunity from suits in its own state courts.

Chapter 3 – The Federal Executive Power

I. Inherent Presidential Power

A. Introduction

1. Questions explored in Youngstown and this section:

i. What is the source of the executive power in the constitution?

ii. What is the scope?

iii. What are its limitations?

2. Hamilton v. Madison views

a. Hamilton – there should be some understanding that the text is not the beginning and end of the power.

b. Madison – strict textual disposition – Article II should be the beginning and end of the power.

3. Youngstown Sheet & Tube v. Sawyer (Steel Seizure case) – national emergency where Pres directed Sawyer to take over the nation’s steel mills because there was a work stoppage. The national emergency was war.

a. Does the President have power beyond what is in the text? The court held that the answer was clearly no, but the justices wrote separately to explain why.

b. Tripartite structure:

i. Source

• Express view says you must really point to the source of the power. Majority goes with this view here and says President can’t do what he did in this situation.

• Inherent view goes with the broad fluid idea of powers that give the President more leeway in what to do in an emergency. Minority took this view and said circumstances dictate that this was the appropriate way to go.

ii. Scope

iii. Limits

c. This case is famous because of the concurrence of Justice Jackson. He sets forth a theory of how the exercise of executive power in a national emergency should be examined. 3-part test:

i. When the President acts pursuant to an express or implied authorization of Congress, his authority is at its max, for it includes all that he possesses in his own right plus all that Congress can delegate.

• In this case, Pres notified Congress of what he was doing and basically asked them to join him, but they didn’t act. Prong 1 of the test was not met here.

ii. When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain.

• Pres was arguing that he was in this zone here.

• ??

iii. When the Pres takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter.

• Does this apply to the situation here? ???

d. Black letter rule: The President does not have the inherent authority to order the involuntary surrender of private property to the government.

B. Scope of Inherent Power: The Issue of Executive Privilege

1. United States v. Nixon – during hearings someone revealed that everything in the Oval Office is taped. So they wanted to subpoena the tapes. Nixon refused to turn over the tapes – he wanted to hand over edited transcripts of them. The arguments go to the Supreme Court.

a. Primary argument is executive privilege and the court unanimously rejects this. Nixon said there’s a need for absolute confidentiality. But when you claim absolute privilege that would insulate the Pres from even having to answer questions about whether the scope of the privilege is justified – slippery slope argument, more like a monarchy if we do it this way.

b. Argument that this case is not justiciable because it’s an intrabranch dispute between inferior and superior branch of the executive branch. Court says Article III is not violated by this.

c. Court says is there a balancing test that we can look at for executive privilege? Are the circumstances enough to trump? Majority says there is privilege and they need to engage in balancing – but they think the Nixon arguments are not dispositive.

d. Black letter rule: Conversations between the President and his advisors are generally privileged, but the privilege is not absolute.

II. The Authority of Congress to Increase Executive Power

A. Clinton v. City of New York – Congress was trying to work with the President here. The legislation at issue is the Line-Item Veto Act, which did away with the usual way of signing OR vetoing – because Pres could sign but also cross out certain lines first that he didn’t like. Congress’s rationale for the system was efficiency – they wouldn’t have to keep going back and forth between Congress and the Pres. They wanted it to look as much as possible like the typical system – so it would still not go into law if 2/3 of Congress overrides the line-item veto.

1. Can the Congress hand over the power rather than wait for it to be usurped? Court says no, there are significant separation of powers issues that are exposed if this happens.

2. Court says Congress is supposed to shape the law and if they put stuff they want in it, it shouldn’t just get crossed out by the Pres. It would lend itself to a situation in which the President is having the last word – which textually speaking his is not supposed to do. Argument that this is not the way the rule is set out in the text.

III. The Constitutional Problems of the Administrative State

A. The Non-Delegation Doctrine and its Demise

1. Non-delegation Doctrine – there can’t be a delegation of power from one branch to another.

2. Old cases that say there IS such a doctrine (New Deal era):

a. ALA Schecter Poultry Corp v. United States – Congress delegated authority to an executive agency, which created criminal regulations that Schecter was indicted for violating. Rule was that Congress may not delegate law making authority to an executive agency without prescribing specific standards for exercise of that authority.

b. Panama Refining Co. v. Ryan – Congress delegated to the President the power to restrict or prohibit the interstate and foreign transport of petroleum. Rule – it is a violation of the separation of powers for Congress to delegate law-making authority to the President without imposing standards or rules limiting their authority.

3. Modern case in this area – there is NO non-delegation doctrine.

a. Mistretta v. United States – the Court finally confronted the issue after Congress had continued to delegate. The court overruled the nondelegation doctrine. The more appropriate way of understanding the nondelegation principle is in a more flexible way.

i. In this case, the legislation was the Federal Sentencing Reform Act that set guidelines for criminal sentencing. Separation of powers problem – argument is that the judiciary should decide how to sentence.

ii. Court says the old understanding of nondelegation is not correct. They say there needs to be a general policy set forth – as long as the commission is clearly told what powers they have and what to do, it is ok.

iii. Separation of Powers

• Originalism v. Non-originalism

• Originalism – look to the intent of the framers and what was in their mind at the time of the original text.

• Non-originalism – look at the intent and text but in modern context – how they apply in the current day.

• Formalism v. Functionalism (in sep of powers context):

• Formalism – formalists in sep of powers area base their arguments on what is set forth in the original articles. This approach led to the nondelegation doctrine as it originally existed.

• Functionalism – more flexible approach – look at modern day problems to see what will work. Congress really can’t carry out all of its business unless it delegates some of its powers. It should be allowed unless there’s a really strong argument that the Constitution will prohibit it. The functionalists won in the area of the nondelegation doctrine and in Mistretta the court said delegation is ok.

B. The Legislative Veto and its Demise

1. INS v. Chadha – the Legislative Veto provided for one house to veto certain actions of the executive branch. Here it was put in an immigration act. Under the INS, there were administrative law judges. Chadha had been here for awhile and was determined to be on an expired visa so he applied for suspension of deportation. The ALJ at the INS decided to suspend his deportation. The atty general reported the suspension to Congress. Under the Act, one house had the option to pass a resolution to veto the atty gen’s decision of suspension. The House did this.

a. Issue: Is the one-house legislative veto unconstitutional, even when authorized by a properly enacted statute? Yes.

b. What does the text say about what power belongs to the executive and legislative branches with regard to lawmaking that is at issue here?

i. Article I sections 1 and 7

ii. Bicameralism – court discusses why 2 houses are important – having 2 bodies insures full study and debate on subject matter. Important way of balancing power so that each state is equal in one way.

iii. Presentment – discussion of the role of the Pres – there to provide a checking function.

c. Court says the legislative veto is one house, let’s also look to the text to see what it says about only one house acting.

d. Dissent by Justice White – functionalist approach, he thinks we should also look at other concerns.

e. Black letter rule: Legislative action is not legitimate unless there is bicameral approval and presentment to the President.

C. Checking Administrative Power

1. The Appointment Power – Article II, section 2 – Appointments Clause. Language that mentions “Advice and Consent of the Senate” is very important.

a. Morrison v. Olson – issue is whether the constitution requires that the Pres exercise sole and exclusive control over the appointment of all executive officers. Holding was NO.

i. The statute would allow appointment of independent counsel that would investigate high offices. Special prosecutor is selected by a panel of judges and then the judges step out of it. This was upheld by the majority. (This is the act that led to the appt of Ken Starr, special prosecutor in the Clinton case.)

ii. Majority determined that the office was inferior and not principal. They said because atty general has dismissal power, she has a boss and she must be inferior. Also the degree of independent discretion is really limited by virtue of the fact that she can be dismissed and there are some limits based on good cause for why she can be removed.

iii. What have we lost from not having an act like this anymore? (what? I thought it was upheld)

• We no longer have accountability – no longer have an independent creature of authority to embark upon these investigations.

• Maybe it will be adopted again, but more likely to stay with the status quo – Congress calling for congressional hearings, etc., but it’s the legislative power, not a prosecutorial power.

iv. Black letter rule: Singe the Independent Counsel is an inferior officer, a law giving judges the authority to appoint an Independent Counsel did not violate the Constitution.

2. The Removal Power – does not rely on any text at all.

a. More recent cases have tried to strike a middle ground between formalism and functionalism. The Pres is the primary authority to remove principal officials.

i. Guidelines:

• Congress does have some authority.

• Court has held that Congress can place some limits on removal power by the Pres, but they can’t completely prohibit.

b. The impeachment of Andrew Johnson

i. Myers v. United States

ii. Humphrey’s Executor v. United States

iii. Wiener v. United States

iv. Bowsher v. Synar – question was whether Congress could create a creature called the comptroller general to oversee functions of the budget and then still have the power to remove. Court said even though there can be a blending of Article I and II powers, if it appears that an official is carrying out an executive branch function, the most Congress can do is limit the functions but can’t remove. The subquestions are:

• Is it a situation in which the office in question should be independent from the President? Then it’s a good idea for Congress to place limits.

• If Congress limits, are the limits themselves constitutional with reference to other parts of the text?

v. Morrison v. Olson

IV. Separation of Powers and Foreign Policy

A. Inherent v. Enumerated debate

1. Article I, sec 8, cl 11 gives enumerated powers

2. Notion of inherent powers – inherent means predated, existing as a predecessor to the things in the document.

a. Domestic – Article I

b. Foreign policy – Article I – Leg.

3. Formalism and functionalism

4. Federalism – federal govt is a govt of limited powers that don’t belong to the states. All of this goes out the window when we talk about foreign policy.

B. Are Foreign Policy and Domestic Affairs Different?

1. United States v. Curtiss-Wright Export Corp. – this case involved a challenge to a resolution that delegated authority from legislative branch to executive branch to stop selling arms to other countries. Issue of presidential power and how broadly it should be defined.

a. Focus on inherent powers and Article II. Article II talks about importance of the President as Commander in Chief of the armed forces, etc.

b. What about additional sources of authority that don’t exist in Article II but still are the powers of the President? Focus on rationales for why Pres should have more power in foreign arena even though Article II only talks about Pres as Commander in Chief.

c. What reasons does the court give? Where does this additional power come from? If not enumerated it is inherent – but inherent in what?

i. Underlying arguments – there is no reason for the Pres to exceed executive power. If you just see it as a national stage (Pres v. Congress), Pres should be presumed to be the leader in that battle.

d. Black letter rule: The non-delegation doctrine does not bar Congress from delegating great authority and discretion to the president in the conduct of foreign affairs.

2. Notes on Curtiss-Wright

a. This case can’t be considered controlling law bc current court has not addressed the issue. Many cases like this are dismissed in lower courts on justiciability grounds.

b. Today the view tends to be an abrogation of the executive authority on the world stage.

c. Concept of inherent powers is at its apex when talking about Article II and international affairs, but not necessarily the predominant constitutional view.

C. Treaties and Executive Agreements – executive order, special agreements, any creature in policy area not explicitly in the constitutional text (which is the power to make treaties.)

1. Executive agreements don’t have to go through congressional review but treaties do. (Naming is everything – if called a treaty it needs to be treated like one and vice versa.)

2. Dames & Moore v. Regan – Article II, § 2. Complaint alleged a separation of powers argument – said this agreement was a way of getting around the treaty power. The President ordered the dismissal of pending litigation against the govt of Iran in US courts and forced the claims into arbitration pursuant to an “executive agreement.”

a. Black letter rule: The President has the power to settle claims by US citizens against foreign govts, even without the consent of the US citizens whose claims are compromised.

D. War Powers

1. Article I, sec 8, cl 11 – gives Congress the power to declare war (SC has never said what “declare war” is.)

2. Article II, sec 2 – gives Pres the power as commander in chief.

3. War Powers Resolution – imperfect solution that came out of a bunch of lawsuits and political debates re Vietnam.

a. Purpose, policy, and structure are to elucidate what the test says. Reporting requirements meet the middle ground.

b. Some members of Congress think this gives Pres too much authority.

c. Still not sure about constitutionality – one case that arose regarding it was dismissed for lack of justiciability.

V. Checks on the President – what are the appropriate procedures to remove an executive?

A. Suing and Prosecuting the President (Civil/criminal suits against Pres.)

1. Nixon v. Fitzgerald – can the President be sued for acts while in office? Nixon was no longer in office when he was sued here. He was being sued because Fitzgerald was fired and the Pres claimed he did it and then he retracted his statement.

a. Nixon claimed he should be immune from civil suits in order to allow the office to function effectively. Majority agreed with this view that the Pres should not be wrapped up in civil suits while in office because it will detract from his duties.

b. This is still the rule today, but confined to suability for acts while in office.

c. Black letter rule: The President is shielded by absolute immunity from civil damages liability for acts done in his official capacity as President.

2. Clinton v. Jones – can the President be sued for acts before he was in office (and at the time of suit he is in office)? Clinton was sued while in office for sexual harassment that occurred while he was gov of Arkansas.

a. Court said this is a different situation and it will be allowed. Here a suit won’t disable the Pres from carrying out the demands of his office when it deals with something he did before he was in office. They also said it would not take enough of his time to be a problem because it could be resolved quickly by the judge.

B. Impeachment

1. Article I, sec 2, cl 5 – House shall have the sole power of impeachment.

2. Article I, sec 3, cl 6-7 – Senate shall have the sole power to try all impeachments.

3. Issue of what “high crimes and misdemeanors” means in order to qualify for impeachment.

a. “Whatever the house considers it to be”

b. In the absence of explicit definition, that’s essentially what it becomes.

Chapter 4 – Limits on State Regulatory and Taxing Power

I. Preemption of State and Local Laws

A. Preemption – federal v. state – Article VI Supremacy Clause. Supremacy – federal law preempts state law. If fed law and state law in the same area go up against each other, federal law will win.

B. Express Preemption – look at plain language, legislative history, policy

1. Cipollone v. Liggett Group, Inc. – guy sued Liggett on behalf of his deceased mom for various state common law claims because of her death from the hazards of smoking, and Liggett asserted that the claims were preempted by federal statute.

a. Court had to deal with fed law v. state law regarding tobacco warnings. Federal law is argued to be preemptive of any common law claims brought in this area. Here the reference to state law refers to decisional common law of the state.

b. Court’s holding was that the act itself – the language of the revised act – did preempt claims based on failure to warn and the neutralization of federally mandated warnings to the extent that those claims rely on omissions or inclusions of petitioners’ advertising but doesn’t preempt claims based on express warranty, intentional fraud and misrepresentation, or conspiracy.

c. Black letter rule: Federal statutory law, which contains express preemptive language, may be interpreted – based upon the intent or purpose of the federal law – to preempt some, but not all, state common law claims.

C. Implied Preemption – kicks in when there is no credible argument that there’s express language in the statute. Why do we even need this category – can’t we just assume that if it’s not express, Congress intended to leave it out? This is a hindsight thing – a lot of times they just don’t have the foresight to include certain things.

1. Three ways:

a. “Conflict” – physical impossibility

b. “Impedes federal purpose” – impediment or obstacle to federal objective

c. “Field” – federal law occupies the field

2. Cases

a. Conflicts preemption

i. Florida Lime and Avocado Growers, Inc. v. Paul – section of CA’s agricultural code which addresses the minimum oil content (8%) of avocados for sale. The federal law here does not have as high a standard or specificity, so FL wants to follow the federal law.

• Court holds that there is no conflict preemption here. You can’t argue that it’s physically impossible to comply with both laws (because you just have to give the avocados more time to grow.)

• And the federal law doesn’t give a specific number that would conflict with 8%.

b. Preemption because state law impedes the achievement of a federal objective

i. Pacific Gas & Electric Co. v. State Energy Resources Conservation and Development Group – state law which placed a moratorium on construction of new nuclear power plants within the state, was not preempted by fed law that governed the regulation of safety aspects concerning nuclear power plants.

• Even if no conflict you might argue that Congress had legislated so its intent was to accomplish a very different objective than what the state wanted to accomplish.

• Here the Atomic Energy Act had no express language that showed intent to preempt the state law. And no direct physical impossibility here.

• So the argument falls upon whether the purposes are at odds – that the fed law can’t achieve its purpose if the state law is upheld.

• Functionalist approach wins here – Court says it does frustrate, but on the other hand, maybe it’s an obstacle that under the current law could legitimately erect for their own purposes.

• Black letter rule: State law is preempted if it stands as an obstacle to the accomplishment of the full purposes and objectives of Congress; however, the court will not interfere where there is a permissible basis for the state law.

c. Preemption because federal law occupies the field

i. Hines, Sec of Labor of PA v. Davidowitz – clear example of intrusion into the area of regulation. Court said Congress’s power is exclusive in regulating immigration.

II. The Dormant Commerce Clause – textual source is Article I, section 8, that talks only about Congress.

A. Why a Dormant Commerce Clause?

1. Text – gives exclusive power to Congress in some areas, such as foreign policy and concurrent power re commerce and police powers.

2. H.P. Hood & Sons, Inc. v. du Mond, Commissioner of Agriculture and Markets of New York – Mass corp trying to make inroads on its ability to distribute milk and is contesting a NY statute regulating milk distribution. The NY agriculture commissioner denied Hood, a Boston milk distributor, a license to build a new milk distribution facility, and Hood challenged the denial based on the dormant commerce clause.

a. The idea of protectionism for the states can be bad for keeping the states uniform.

b. May a state deny a license for a new plant to acquire and ship milk in interstate commerce on the grounds that such limitation on interstate business will protect and advance local economic interests? No.

c. Black letter rule: States may not enact laws that burden the exportation of local products in order to protect and advance local economic interests.

B. The Dormant Commerce Clause before 1938 – Historical Tests

1. “Cooley Doctrine” – Cooley v. Board of Wardens of the Port of Phila. – court upheld the state law using a test they called the subject matter regulation test.

a. The approach tried to figure out whether states were exceeding their authority by looking at the statute. If an area of local concern that doesn’t touch upon a subject of national concern, then history tells us that the state can do that.

b. Problem with this approach because there is no bright line rule between what is a national and local concern. But hasn’t been explicitly overruled.

2. Direct v. Indirect – is the regulation directly or indirectly affecting interstate commerce?

a. If the regulation is only indirectly affecting, then it’s ok.

b. This approach has been rejected too because it’s not clear enough.

C. The Contemporary Test for the Dormant Commerce Clause

1. Shift to a Balancing Approach

2. Modern tests – Pike (1970) sets forth that there are 2 kinds of dormant commerce clause violations.

a. Discriminatory – directly discriminatory laws enacted by state or local entities.

b. Even-handed on face but burdens interstate commerce nevertheless.

c. Cases leading up to this:

i. South Carolina State Highway Dept. v. Barnwell Brothers, Inc. – whether the restrictions on weight and length of semi trucks burdens interstate commerce. Barnwell Brothers challenged a law prohibiting operation of trucks on state highways as an unconstitutional burden on interstate commerce.

• Black letter rule: A state law placing width and weight limitations on trucks operating on state highways does not impose an unconstitutional burden in interstate commerce so as to violate the commerce clause.

• The court said the state highways are built, owned, and maintained by the state, and the state has a primary concern in their safe and economical administration. They say this is a legislature decision and not a judicial one.

ii. Southern Pacific Co. v. Arizona ex rel. Sullivan, Atty General – Arizona created a law limiting the number of railroad cars per train as a safety measure, and Southern Pacific railroad asserted that the law violated the Commerce Clause.

• Are the benefits of a purported state safety-measure law limiting the length of trains outweighed by the burdens on interstate railroad commerce? Yes.

• Black letter rule: In deciding whether a state law – created for its safety measures – violates the Commerce Clause, the court will balance the benefits of the law against the burdens it imposes on interstate commerce.

3. Determining if a law is discriminatory

a. Facially discriminatory laws – these laws are per se invalid. These invoke the most rigorous level of scrutiny by the courts.

i. Strict scrutiny analysis – ends/means analysis. The ends must be legitimate, important, compelling.

• Type of ends that a state could invoke that would make it past the legitimacy ends part of the analysis – protecting citizens, safety, health concerns.

ii. City of Philadelphia v. New Jersey – law says that other states can’t take their garbage and dump it in NJ. Court says this is facially discriminatory. Court says nothing was wrong with the end, but there’s a problem with the means.

• Ends-means test – court analyzes govt action by asking if they have a valid end and a valid means to go about it. Here the means was discriminating against out of staters.

iii. C & A Carbone, Inc. v. Town of Clarkstown, NY – flow-control ordinance which requires all solid waste to be processed at a designated transfer station before leaving the municipality. It doesn’t say it places the transfer station in a place such that it will discriminate against out of staters, but that is what’s going on here.

iv. Hughes v. Oklahoma – local attempt to protect natural resources. Challenge to statute stating that no one may transport or ship minnows for sale outside the state which were procured within the waters of this state. Court says they have to choose the least discriminatory alternative of carrying out their purpose, and here they didn’t do that.

v. Maine v. Taylor – regulation by state regarding the shiner minnow. Case similar to Hughes where the court says let’s look at the end and the means – here they said the means were appropriate. There was no other way to protect the state interest here.

• This was the one case in which the court used strict scrutiny (ends/means test) and actually upheld the law.

• The only way to handle the infection of baitfish is to block other fish from coming in. (Borders drawn around the state for a quarantine-type situation, not to be economic protectionists.)

b. Facially neutral laws – facially neutral but discriminatory in purpose/effect/impact. Court is concerned that laws will just be rewritten to be neutral on their face even though they still end up discriminating.

i. Analysis – initial first step you don’t have in the first way – you have to actually show the discrimination first. Look at legislative purpose, motivation behind the law, etc. If you can establish that it’s discriminatory, then the analysis is the same as above – strict scrutiny.

ii. Hunt v. Washington State Apple Advertising Commission – NC statute that seems pretty neutral in that it applies to everybody – it requires that all apples sold or shipped into the state bear no grade other than the applicable US grade or standard.

• Problem with the WA labels because their labels are stricter and their standards are higher, and they would have to re-label all of their boxes – overwhelming evidence of the discriminatory impact that this had on Washington state apples.

• Court looked at how it was playing out and if there was any other way to accomplish the same end. They concluded that there were other ways to go about this.

iii. Exxon Corp. v. Governor of Maryland – the MD law prohibited petroleum producers and refiners from operating gas stations within the state (to correct inequities in the distribution and pricing of gasoline that favored company-operated stations during the oil shortages in the early 70s.) But no gas products are produced in MD, so the law mostly affected out-of-staters. The court held this did not violate the commerce clause.

• The law doesn’t alter the flow of gas into MD, it doesn’t discriminate among out of state producers/refiners. It doesn’t favor in state refiners over out of state because there are no in staters. Just because the burden of the law falls on some out of state companies does not by itself establish discrimination against interstate commerce.

• Does a state law that causes some business to shift from one interstate supplier to another impermissibly burden interstate commerce so as to violate the Commerce Clause? No.

• Black letter rule: A state law that causes some business to shift from one interstate supplier to another does not impermissibly burden interstate commerce.

iv. West Lynn Creamery, Inc. v. Healy – Massachusetts law imposed a tax on in-state milk sales (whether it was produced in-state or out-of-state) and the proceeds went to local dairy farmers. Court said this was invalid because the challenger has made a good case in showing discriminatory impact in purpose or effect – emphasis on making this showing.

• Black letter rule: A state pricing order, which imposes a tax on the sale of local products, the proceeds of which are distributed as a subsidy to in-state producers of the product, discriminates against interstate commerce and is unconstitutional under the Commerce Clause.

v. State of Minnesota v. Clover Leaf Creamery Co. – Minnesota law banning the sale of milk in plastic nonreturnable, nonrefillable containers was challenged on the ground that it had a discriminatory purpose.

• Black letter rule: A facially neutral state law will violate interstate commerce if the incidental burden imposed on interstate commerce is clearly excessive in relation to the putative local benefits.

4. Analysis if a law is deemed discriminatory

a. Dean Milk Co. v. City of Madison, Wisconsin – ordinance required pasteurization within 35 mi of the border of Madison. Madison said you could still be disadvantaged if you lived in-state, just as if you lived out of it.

i. Court said no, you can’t be insulated just because some in-staters are also affected.

b. Maine v. Taylor and United States

5. Analysis if a law is deemed non-discriminatory – Even-handed but burdensome? Not overtly discriminatory but being challenged because nevertheless they impose an undue burden on interstate commerce.

a. Analysis is balancing test – benefits v. burdens

b. Pike v. Bruce Church – enumerates the balancing test. Bruce Church Inc. challenged Arizona law that prevented transportation of uncrated cantaloupes within the state on ground that it violated the Commerce Clause.

i. Black letter rule: Where a statute regulates evenhandedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits.

c. Bibb v. Navajo Freight Lines – mudflap case, IL wanted particular mudguards on all trucks in the state. Court goes through classic balancing of benefits and burdens. Benefit was safety. Burden was that every vehicle that doesn’t conform will have to stop outside the state to change its guards.

i. Black letter rule: In determining whether a state’s nondiscriminatory highway safety law violates the dormant commerce clause, the court will uphold the law unless the total effect of the law as a safety measure is so problematical as not to outweigh the national interest in keeping interstate commerce free from interferences that seriously impede it.

d. Kassel v. Consolidated Freightways Corp. of Delaware – Iowa’s statute banning trucks more than 60 ft in length from using state highways was challenged by Consolidated, which preferred 65 ft trucks, on ground that it violated the commerce clause.

i. May a state regulation offering only marginal safety benefits be an unconstitutional burden on interstate commerce? Yes.

ii. Black letter rule: Although state regs concerning highway safety carry a strong presumption of validity, if the furtherance of safety is marginal or the burden on commerce is substantial, the regs will be declared invalid under the commerce clause.

e. CTS Corp v. Dynamics Corp of America – Indiana passed an anti-corporate takeover law protecting domestic corporations. Dynamics Corp. wanted to purchase CTS, and challenged the law on commerce clause grounds.

i. Does the Commerce Clause invalidate a state law that seeks to regulate the method of corporate takeovers? No.

• Here the law

• (1) was equally applicable to instate and out-of-state offerors,

• (2) doesn’t create inconsistent regulation by multiple states, and

• (3) applies to domestically incorporated corporations with resident shareholders.

ii. Black letter rule: State law that delineated shareholders’ voting rights and limited the effectiveness of the tender offers did not violate the commerce clause because of the 3 reasons above!

6. Exceptions to the Dormant Commerce Clause

a. Congressional Approval

i. Western and Southern Life Insurance Co. v. State Board of Equalization of California – insurance company challenged state law that imposed a retaliatory tax on out-of-state insurers doing business in CA. Congress had passed a law giving the states the authority to tax insurance companies.

• May Congress give the states the power to enact laws that restrict the flow of interstate commerce? Yes.

• Black letter rule: Congress, by its authority to regulate commerce among the several states, may give states the power to enact laws that restrict the flow of interstate commerce.

b. The Market Participant Exception – (define) Criticism is that we can’t really be sure where to draw the line and be sure the state is being a participant.

i. Hughes v. Alexandria Scrap

ii. Reeves, Inc. v. Stake – court upheld the state law regarding sale of cement. Court said it was a nonregulatory law because it was their own cement, controlled by the state.

• SD built a state-owned cement plant, which sold to private buyers, but later gave preferences to in-state private buyers because demand was too high for them to meet all orders. (Reeves was a long-time out of state buyer who challenged this.)

• May a state, which produces goods for sale to private buyers, give preference to in-state buyers? Yes.

• Black letter rule: States that are market participants in the buying or selling of goods, as opposed to market regulators, are not bound by the Commerce Clause and thus may favor in-state interests.

• SD here was a market participant as the seller of cement. SD would have been a market regulator if for example, the policy required privately owned cement plants within the state to sell exclusively to in-state residents.

iii. White v. Mass. Council of Construction Workers

iv. South-Central Timber Development v. Wunnicke – they regulated by imposing a post-sale requirement on the timber that all timber purchased by them had to be processed in the state. Challenged by an out-of-stater.

• Alaska was acting as a market regulator by acting as more than a mere seller of timber. They were regulating how and where the timber would be processed.

• Black letter rule: Although state-owned businesses may favor resident purchasers, they may not attach conditions to the sale of products that will burden interstate commerce.

III. The Privileges and Immunities Clause of Article IV, § 2

A. Introduction

1. Test – Is there discrimination in allocation of P & I? If so, is level of scrutiny met?

B. Analysis under the P & I Clause – ends/means analysis. Assuming there’s a discrimination, can it be justified? (i.e. there’s a substantial end and the means are substantially related to that end.) Like can you demonstrate that the source of the evil is linked to out-of-staters and you’re trying to deal with that in this way? (They are the problem and there’s no way to deal with it other than discriminating against them.)

1. What are the “privileges and immunities of citizenship”?

a. Protects constitutional/fundamental rights, and recognition that certain economic interests are fundamental to survival – like the right to earn a living.

b. Toomer v. Witsell – court looked at shrimp fishing and the fact that in-staters had to pay a small fee and the out-of-staters had to pay 100 times that for the license. This is a P&I issue because some people depend on the shrimp fishing for their livelihood.

c. United Building and Construction Trades Council of Camden County v. Mayor and Council of Camden – a municipal ordinance required that 40% of employees working on city-funded projects be city residents. It was challenged under the P&I clause.

i. Will a local ordinance violate the P&I clause if it discriminates against non-residents by burdening a “fundamental” privilege, such as employment, and there is no substantial reason for the disparate treatment? Yes.

ii. Black letter rule: The P&I clause prevents states (and cities) from discriminating against non-residents if:

• 1. the discrimination burdens a “fundamental” privilege and

• 2. there is no “substantial reason” for disparate treatment. (Here the court couldn’t tell from the record if there was a substantial reason, so they remanded the case to find out.)

d. Baldwin v. Fish and Game Commission of Montana – issue here was discrimination against out-of-state elk hunters. Court said this was recreation, not like the shrimp case because that was a right to earn a living.

2. What justifications are sufficient to permit discrimination?

a. Supreme Court of New Hampshire v. Piper – challenge by Vermont resident to NH statute that you had to be a resident of that state to be a member of that bar. Court said this was a P&I issue because it deal with a right to earn a living.

Chapter 5 – The Structure of the Constitution’s Protection of Civil Rights and Civil Liberties

I. Introduction

A. Purpose of Bill of Rights

1. Does Bill of Rights only apply to federal government?

a. Original view was that the Bill of Rights only applied to federal government. (Barron v. City of Baltimore 1833).

b. Evolution to 14th Amendment (post Civil War.)

2. Does the 14th Amendment (especially equal protection, due process, and P or I) extend application of Bill of Rights to state and local governments?

a. Slaughterhouse Cases (1873) – the court said no. Case dealt with a challenge to a LA law dealing with livestock.

b. Evolution of today:

i. P or I Clause of 14th Amendment – very different from P&I. Set of provisions from first section of 14th Amendment – intended to provide protections to citizens on a national level based on a whole host of fundamental rights. It was supposed to accomplish what the court said couldn’t be done in Barron, so that everyone could be free from discrimination. Language includes “state.”

• Saenz v. Roe (1999) – group of individuals that had just moved to CA from another state challenged CA law saying that if you’re seeking welfare, your benefits will be pegged to your former state.

• Couldn’t be a P&I challenge because that is for out-of-staters. Court said P or I has included the right to move freely from state to state.

• Any penalty imposed on new residents is a violation of their fundamental right to travel.

ii. Incorporation Doctrine – “selective incorporation” through interpretation of the Due Process Clause. Relied upon one word, “liberty,” in the DP clause.

• Purpose was to take cases brought against state and local actors. Court held any meaningful interpretation of liberty in 14th Amendment incorporated protections of other parts of the Bill of Rights.

• Gitlow was challenging censorship under the 1st Amendment. But since 1st Amendment says “Congress shall not abridge…” the states argued that it didn’t apply to them. The Court said that “liberty” of the 14ht Amendment applies the 1st Amendment to the states.

B. Key Transitions

1. Civil War and Reconstruction

2. “State Action” – actually government action

a. Article I, sec 8 – even though Bill of Rights requires a triggering of govt action, if Congress has power under an enumerated provision of Art I, sec 8 then they can reach into the private sector.

II. Application of the Bill of Rights and the Constitution to Private Conduct

A. The requirement for State Action – the court doesn’t always use the same tests. So go through the framework talking about the norm of state action and those of official employees of the govt who speak for the govt. Then go through each of the exceptions to see if one or both apply.

1. The Civil Rights Cases – held that there must be state action. Normally state action is activity of the government and its actors.

2. United States v. Stanley

B. Exceptions to the State Action Doctrine

1. Public Function Exception – applies when a private entity is essentially acting like a government actor.

a. Marsh v. State of Alabama – court developed its first exception, the Public Function Exception.

i. Individual Jehovah’s witness said her free speech was infringed upon when she tried to use her free speech in the city of Chichawa, which was a private company town.

ii. Court said if we can look at the activities and see that it’s analogous to a govt entity, then it will enable a lawsuit to be lodged against this private entity. This applied here to the company town.

b. Jackson v. Metropolitan Edison Co. – adheres to the traditional exclusively reserved test (whether the action is traditionally exclusively reserved for the government.) Here a woman wanted to sue a private company for due process concern.

c. Elections

i. Terry v. Adams – election activity. Jaybird Party was running its own primary elections. Court said they were serving a public function and are enabling discrimination.

d. Private Property used for public purposes

i. Evans v. Newton – a public entity when faced with the reality of desegregation of their park, passed it along to a private party.

• Black letter rule: Operating a park constitutes a public function, so the owner is subject to the 14th Amendment.

ii. Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza – Shopping center owner barred union members from picketing on it property in front of the Weis. The union claimed the shopping center served a public function and that its 1st Amendment rights prevailed.

• Black letter rule: Shopping centers serve a public function and therefore, the 1st Amendment applies.

iii. Lloyd Corp. v. Tanner – anti-war demonstrators were told to leave a shopping center and they sued the shopping center owners for violating their 1st Amendment rights.

• Black letter rule: There are no 1st Amendment rights in a private shopping center if the speech at issue is not related to the activities at the shopping center. (Dumb opinion because you can’t regulate speech based on content per the 1st Amendment.)

• This opinion rejected the holding of Logan Valley Plaza.

iv. Hudgens v. National Labor Relations Board – labor unions picketing in a privately owned mall claimed their 1st Amendment rights were violated when they were threatened with criminal trespass prosecution.

• Black letter rule: The 1st amendment does not apply to people entering privately owned shopping centers – operating a privately owned shopping center does not constitute a public function.

2. Entanglement Exception – thorny area in which the court has accepted cases and tried to carve out exceptions. Governing in a situation in which there is a private entity that’s acting in a way that is infringing on an individual’s rights – but looking at the facts there’s a possibility that that govt has encouraged, authorized, or ratified the conduct such that you can impugn the activity to the government. (The state actor is actually the private actor that is acting at the behest of the state.)

a. Has the government encouraged, authorized, facilitated private conduct?

b. Judicial and Law Enforcement Actions

i. Shelley v. Kraemer – covenant. Court as government actor by enforcing a racially restrictive covenant. First time the court usin the state action doctrine by finding there was state action in the enforcement. This particular court enforcement was keeping the racial discrimination going.

ii. Lugar v. Edmonson Oil Co. – prejudgment attachment. Debtor claimed a due process violation through the govt’s use of a prejudgment attachment procedure. Argument that this doesn’t involve govt action at all – Edmonson would say the underlying action is with us, all we did was fill out a petition and the attachment process is prescribed by govt action, but the underlying debt is owed to us. Argument against is that Edmonson is acting under color of state law.

• Court’s answer is yes, prejudgment attachment can be a form of govt action that can be read through encouraging this attachment to occur. Using court and govt officials to sieze property involves state action. Court consolidates all of the doctrines and this test they put forth is supposed to represent that.

• 2-part test:

• (1) The deprivation must be caused by the exercise of some right or privilege created by the state or by a rule of conduct imposed by the state or person for whom the state is responsible.

← In this prong – you will only be asked about rights/privileges that are very clearly stated. Question will be – is it a deprivation of a right granted?

• (2) The party charged with the deprivation must be a person who may fairly be said to be a state actor.

← You don’t need to look for a govt official – but look at the private actor and see if there’s a relationship between this person and the govt.

iii. Edmonson v. Leesville Concrete Co. – peremptory challenges. An injured construction worker suing for negligence claimed that allowing the defendant to exclude jurors based on their race violated his equal protection rights under the 14th Amendment.

• Does excluding jurors based on their race in a civil action constitute state action? Yes.

• Two-part test:

• Whether the constitutional deprivation resulted from the exercise of a right or privilege deriving from state authority. (Yes in this case, because peremptory challenges exist because of state law.)

• Whether the private party charged wit the deprivation is a state actor. To determine, we look at 3 factors:

← The extent to which the actor relies on governmental assistance and benefits,

← Whether the actor is performing a traditional govt function, and

← Whether the injury is aggravated uniquely by governmental authority.

• Court says without governmental assistance, the jury trial system would not exist, so there is clearly state action here.

c. Government Regulation

i. Burton v. Wilmington Parking Authority – parking/restaurant – a black man was denied service in a restaurant located in a govt-owned building.

• Black letter rule: When a state becomes entangled in a private party’s actions so that the state and the private party have a symbiotic relationship, the private party must comply with the 14th Amendment.

• The building was publicly owned and was dedicated to public use, financed by public money, etc. so this was state action.

ii. Moose Lodge v. Irvis – liquor. Irvis sought to be part of a private club that had received its liquor license from the state.

• Just because a private entity receives a service from the state, it is not necessarily state action. If this was the case, almost anything could be state action since states provide electricity, water, police protection, etc.

• The state must have a “significant” involvement in the discrimination in order to violate the 14th Amendment.

• Black letter rule: A private club that obtains a state liquor license does not necessarily engage in state action for purposes of the 14th Amendment.

iii. American Manufacturers Mutual Insurance Co. v. Sullivan – insurance. A disabled worker claimed an insurer was a state actor and deprived him of his property in violation of the 14th Amendment. The PA law required employers to either obtain workers com insurance from a private insurer, obtain it through the state fund, or seek permission to self-insure. The law sets forth a review procedure for determining the necessity of medical treatment.

• The mere fact that a business is subject to state regulation does not make it a state actor. There must be a close nexus between the state and the challenged action for state action to exist.

• This close nexus exists if the state has coerced or significantly encouraged the action. Mere approval or acquiescence by the state is not enough.

• Here the state does not compel an insurer’s decision to invoke the utilization review. The insurer makes the decision without standards established by the state.

• Black letter rule: A private company in a highly regulated industry, such as worker’s comp, is not a state actor if it makes its own payment decisions without state approval or encouragement.

d. Government Subsidies

i. Norwood v. Harrison – textbooks. Case in which it was very clear from record that govt funds for textbooks were going to racially segregated schools. Court said there was state action because it allowed itself to become entangled in a mechanism in which it was clearly providing support.

ii. Rendell-Baker v. Kohn – fired teacher. Whether a teacher at a private school that was heavily funded by the state could sue for violation of her rights. Answer was no.

• Black letter rule: Publicly-funded and regulated private organizations are not state actors under the 14th unless the govt compels or influences their actions.

iii. Blum v. Yaretsy – nursing home. Medicaid patients claimed the state could be held liable for the failure of private nursing homes to provide them adequate notice of decisions to transfer or discharge them. Court said no state action here.

• Black letter rule: The state is not liable for decisions made by private parties which the state did not coerce or significantly encourage.

e. Initiatives encouraging violations of rights

i. Reitman v. Mulkey – housing. Prospective renters were denied an apartment based on their race. They challenged a state constitutional provision that barred all laws prohibiting racial discrimination in housing. (CA Prop 14 prohibited any state agency from limiting any person’s right to decline to sell/rent property to any person for any reason.) Court held that initiatives can constitute state action for purposes of determining whether or not there’s a violation of state action.

• Black letter rule: A state constitutional provision that bars laws prohibiting discrimination involves the state in discrimination in violation of the 14th Amendment.

• Court said that Prop 14 would involve the state in private racial discrimination to an uconstitutional degree.

Chapter 6 – Economic Liberties

I. Economic Substantive Due Process

A. Introduction – History and Original Concepts

1. 5th and 14th Amendments – due process. Each of these have dp clauses and by the language, there’s a right to life, liberty or property free from govt interference subject to due process constraints.

a. What does due process mean? Procedural due process has to do with notice, right to be heard, etc.

2. “Economic” liberties – the SC read into it that there are certain substantive values that are implicit in life, liberty, and property

3. Substantive v. Procedural due process

4. Lochner v. New York (1905) – Laissez faire? Judicial intervention? This case epitomizes an era. The law had to do with wages at bakeries. The challenge was that it interfered with the freedom of contract. Court ruled in favor of the individuals as against the legislation that would protect the bakers. Court said liberty of contract was a core constitutional freedom that existed and had to be protected.

a. Liberty of contract

b. Govt power to interfere?

c. Judicial scrutiny – court said we need to determine what level of judicial scrutiny is appropriate as to due process clause stuff. They came up with a 3-tiered hierarchy of review:

i. Strict scrutiny – reserved for special circumstances where a fundamental right is involved, etc.

ii. Intermediate scrutiny – intermediate cause for concern that isn’t higher or lower – so they made up this middle level.

iii. Rational basis – the presumption is that the law is valid, it must be met by a valid end and a reasonable means.

B. Economic Substantive Due Process Since 1937 – Post-Lochner Era

1. Pressures for Change – Lochner era ended because of pressures for change – jurisprudential, political, and economic pressures of the time.

2. The End of Lochnerism – cases started to go in a different direction because of the same stuff that led to commerce clause interpretation change – to promote the idea that govt involvement in a more protective nature was important. Drifting away from laissez-faire perspective and into the New Deal era. FDR’s court-packing plan so he could get more justices on his side on the court started changing things – interpreted as being frightening enough to get some justices to change their way of thinking.

a. West Coast Hotel Co. v. Parrish – employee sued employer to recover difference between her actual wages and the state minimum wage requirement.

i. Is a state law setting the min wage for women a valid and reasonable exercise of the state’s police powers? Yes.

ii. Black letter rule: Regulation that is reasonable in relation to its subject and is adopted in the interests of the community satisfies the due process clause of the 14th Amendment.

iii. The legislature has wide discretion in determining what is necessary to protect public health, safety, morals, and general welfare.

b. United States v. Carolene Products Co. – case involved filled milk. Congress was trying to protect public health by putting restrictions on what could go through interstate commerce as milk – not milk with oil.

i. New attitude of deference to acts of legislature. If passed, all it needs to survive a due process challenge is rational basis – legitimate ends and means (legitimate end and rationally/reasonable related means.)

ii. Footnote 4 – If there’s a defect in the political process that fails to protect fundamental rights, then there is a defect in the system and judges should be able to step in and fix this. For example, Bill of Rights should not depend upon the outcome of majority votes.

3. Economic Substantive Due Process since 1937

a. Williamson v. Lee Optical of Oklahoma – solidification of modern rational basis. This is today’s modern test. Law that anyone not a licensed ophthalmologist or optometrist could not fit lenses without a prescription. This discriminates against the liberty of opticians.

i. Court said the legislature must have had some reason to enact this law, and if people have problems with stuff like this they need to take them to the polls and not the courts.

ii. The law was a valid and reasonable exercise of the state’s police powers.

iii. Black letter rule: Economic legislation will be upheld so long as there is any conceivable justification for it.

b. BMW of North America v. Gore – has to do with whether damages could ever be so great as to violate a due process right to liberty and property. Majority discusses 3 factors for why the penalty was excessive in this case:

i. Degree of reprehensibility of the conduct (no reprehensible conduct here)

ii. Ratio (here it was completely unacceptable – 500:1)

iii. Sanctions for comparable misconduct (max civil penalty for this conduct is 2K and the most other states impose is 10K)

II. The Contracts Clause – Article I, §10: “No state shall…pass any law…impairing the obligation of contracts.”

A. Basic Concepts

1. State/local laws – we’re only talking about state and local laws for this area. We are actually talking about LAWS that are passed.

2. Contracts – very limited concept, we are talking only about anything that can be conceptualized as a contract.

3. Existing, Not Future – we’re only talking about already-existing contracts.

B. History

1. 1800s – the courts would strike down laws as interfering with the Contract Clause.

2. 1897-1943 Lochner Era – no diminished respect for contract, just a different analysis. Talk about freedom to contract being an economic liberty under the due process clause. So it laid dormant until the 1930s.

3. Late 1930s to Current Day: Blaisdell Rationale – began accepting contracts clause challenges. They have upheld very few contracts clause challenges.

a. Home Building & Loan Assn. v. Blaisdell – MN law that put a freeze on mortgage foreclosures because of financial situation in the state. This kind of relief was look at by the court through the lens of state power. Opinion starts with very strong language that sounds like they will strike down the law, but they end up upholding it. Juicy language: “Emergency does not create power, does not increase power, etc.” It gives you every reason to think that since emergency doesn’t create power and the constitution was created in a time of emergency, they will strike down the law. But then they go on to say “While emergency does not create power, emergency may furnish the occasion for the exercise of power.”

i. The law doesn’t excuse them from their contract obligations – it just stretches out the time period.

ii. Black letter rule: A state may impose temporary conditions on the creditor-debtor relationship so long as there is an emergency, the legislation is addressed to a legitimate end and the relief afforded is proportional and reasonable.

C. Current Test

1. Private Contracts

a. Energy Reserves Group, Inc. v. Kansas Power & Light Co. (1983) – at issue was a KS law concerning the pricing of gas that interfered with a private contract dealing with escalator clauses. (The state-enacted legislation precluded natural gas supplier from charging prices established in contract with the buyer.) They conclude here that the means are rationally related – they are trying to protect the consumers from these escalator clauses.

i. 2-prong test:

• 1. Is there a substantial impairment?

• 2. If there is, is it justified by the ends-means test? (Does it serve a legitimate public purpose? Is the means rationally/reasonably related to the ends?)

ii. Black letter rule: A state may enact legislation that infringes on the contractual rights of parties so long as the substantial impairment is justified by a significant and legitimate purpose.

b. Allied Structural Steel v. Spannaus (1978) – pension plan issue. State enacted legislation that required employers to pay pension benefits to employees whose benefits had not yet vested.

i. Substantial impairment (on exam, even if no substantial impairment, go on with the analysis – discuss the ends-means test anyway.)

• Abrogation

• Unusual/unprecedented

• Narrowness

ii. Ends – must be legitimate, important public purpose. Was there one here? No.

iii. Means

iv. Black letter rule: A state may not unilaterally change the contractual obligations of parties to a pension fund absent a reasonable justification.

2. Government Contracts – hazier and less precise area of the doctrine – no neat 3-part test. Overall attitude of the court can be generalized though. They will apply a greater level of scrutiny than with respect to private contracts. Why is this?

a. U.S. Trust v. New Jersey (1977) – NJ statute at issue referred back to an arrangement made between NY and NJ years earlier. NJ wanted to pass a law that would undo that contractual arrangement after circumstances had changed.

i. Court’s rationale – they say that even though the earlier cases have mostly upheld laws against these challenges, the Contracts Clause is not a dead letter. The substantial impairment will be examined according to the factors we discussed earlier, but…

ii. When a state impairs the obligations of its own contract, the reserved powers doctrine has a different basis.

iii. The end articulated by the state will not be presumed to be legitimate or important – they will have to show something more.

iv. The means – looks very much at alternatives, are there other ways to accomplish this, etc.

v. Black letter rule: Legislation abdicating a govt’s obligations will only be upheld if it is both reasonable and necessary to serve the purposes claimed by the government.

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