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CON LAW OUTLINE

I. The Nature and Sources of the Supreme Court’s Authority

a. Article III

i. Created federal judiciary system and defines its powers

ii. One supreme ct and inferior cts as Congress may ordain

1. dispute of necessity, said can’t trust states:

a. likely to be biased

iii. independence of federal judiciary:

1. federal judges life tenure

2. salaries can’t be decreased

3. unlike states, not subject to electoral review

iv. § 2: Fed judicial power in 9 “cases” and “controversies”

1. Vindicate and enforce powers of the federal gov

a. Const, treaties, laws of US, when US a party, ambassadors and public ministers and consuls, cases of admiralty and maritime, cases beween state, or its citizens, foreign or its citizens

2. Interstate umpiring function, resolving disputes between states and their citizens

v. Allocation of judicial power between SC and lower fed cts

1. SC = original juris over cases affecting amb, pub min, states a party….in all other cases SC graned appellate jurisdiction

2. SC held Congress can give lower federal cts concurrent juris even when Const gives SC original

3. SC’s original limited to disputes between two or more states

vi. Trial of all crimes, except impeachment, by jury, in state where committed

vii. Treason for levying war

b. Const never expressly grants fed cts power to review constitutionality of fed or state laws ro executive actions…..maybe silence unessesary to enumerate

c. Federal courts of limited jurisdiction

i. Art III sect 2 defines scope of federal ct authority

1. subject matter juris

2. standing, mootness, etc from art III

ii. Congress limits federal court jurisdiction

1. SC said fed ct may only hear if stat and const authorization

2. So if no statue, limits power

3. Congress can create exceptins and regulations to SC appellate jurisdiction

d. Judicial Review (2-21, 26-29)

i. Marbury v. Madison

1. The Commission signed by Pres and Senate consented were withheld from the applicants and they requested their delivery. The Court determined that the applicant had a vested legal right in his appointment and because the applicant had a legal title to the office, the laws afforded him a remedy. However, the Court held that § 13 of the Act of 1789, giving the Court authority to issue writs of mandamus to an officer, was contrary to the Constitution as an act of original jurisdiction, and therefore void.

2. U.S. Const. art. II, § 2

a. declares, that the president shall nominate, and, by and with the advice and consent of the senate, shall appoint ambassadors, other public ministers and consuls, and all other officers of the United States, whose appointments are not otherwise provided for.

b. authorizes Congress to vest, by law, the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.

3. U.S. Const. art. II, § 3

a. declares, that he shall commission all the officers of the United States

4. Marshall interprets Article III as SC has original jurisdiction in all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party. In all other cases, the SC shall have appellate jurisdiction

5. Art III enumerated its original jurisdiction and Congress couldn’t enlarge it

6. Authority for judiciary review the constitutionality of executive and legislative acts….(Const silent)

ii. The Legitimacy of Judicial Review

1. Const doesn’t explicitly grant judicial review

2. Cooper v. Aaron

a. The court is the ultimate or supreme interpreter of the Constitution

b. Fed cts also have the authority to review the constitutionality of state laws and the actions of state officials

c. background of opposition by Arkansas officials to public school desegregation in Little Rock in the aftermath of Brown v. Board of Education.

d. Holding: Denied school board’s claim that they weren’t bound by the Supreme Court’s decision in Brown.

3. Dickerson v. United states

a. Miranda said certain warnings must be given, and it is a constitutional decision of the Ct, which may not be overruled by an Act of Congress

4. Const does give Congress the right to amendment- Article V to overrule the Supreme Court

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Justiciability Doctrine

• Advisory opinions, ripeness, mootness, and political question doctrine

• Created and articulated by US SC, neither const nor framers expressly mentioned

• Sources of rules

o Art III Sect 2:

▪ Federal judicial power in terms of 9 categories of cases and controversies

o Prudent Judicial administration

• Tied to separation of powers

• Conserve judicial resources

• Improve judicial decision making by providing the federal courts with concrete controversies best suited for judicial resolution

• Promote fairness, especially to individuals who are not litigants before the court

• These jusitifications should be balanced against the need for judicial review to prevent and redress violations of federal law

• 11th amendment limits judicial review

o prevents federal court relief against state govs

• SC limits judicial review by stating abstentation and refrain from deciding certain matters

The “Political Question” Doctrine

e. Political Question Doctrine (31-48)

i. A textually demonstrable commitment of the issue to a coordinate political department, lack of judicially discoverable and manageable stds for resolving, impossibility without a policy determination, impossibility of undertaking indep resolution, potentiality of embarrassment

ii. Used in

1. Republican form of government clause and electoral process

2. foreign affairs

3. Congress’s ability to regulate its internal processes

4. the process for ratifying constitutional amendments

5. instances where the federal court cannot shape effective equitable relief

6. the impeachment process

iii. Jusitifications

1. allows judiciary to avoid constitutional questions and limits the court’s role in a democratic society

2. allocates decisions to the branches of government that have superior expertise in particular areas

3. federal ct’s self interest disqualifies them from ruling on certain matters

4. justified on separation of powers grounds as minimizing judicial intrusion into the operations of other branches of gov

iv. In Marbury, questions, in their nature political, or which are, by the Constitution and laws, submitted to the executive can never be made in this court.

v. Political = nonjusticiable

vi. “A textually demonstrable constitutional commitment of the issue to a coordinate political department”

vii. Guaranty Cl of Art IV sect 4

viii. Baker v. Carr

1. Plaintiffs, residents of several counties, filed a complaint against defendants, state officers and election officials, alleging that a state statute arbitrarily and capriciously appointed representatives without reference to any logical or rational formula and that it deprived them of the equal protection of the laws in violation of U.S. Const. amend. XIV. The held the complaint's allegations of a denial of equal protection presented a justiciable constitutional cause of action upon which plaintiffs were entitled to a trial and a decision. The right that plaintiffs asserted was within the reach of judicial protection under U.S. Const. amend. XIV. The court further found that if discrimination were sufficiently shown, the right to relief under the Equal Protection Clause would not be diminished by the fact that the discrimination related to political rights.

2. The political process was not likely to correct the constitutional violation, and judicial review provided democratic rule

3. Rule: The Guaranty Clause of Art. 4 which guarantees a republican form of government may not be used as a source of a constitutional standard for invalidating state action, but an equal protection claim may be so used where it does not implicate a political question

4. An analysis of any case held to involve a political question will reveal

a. a history of the issue’s management by another gov. branch

b. a lack of judicially manageable standards for resolving it

c. the impossibility of deciding the case without an initial policy determination calling for nonjudicial discretion

d. the impossibility of resolving it without expressing lack of respect due other government branches

e. an unusual need for unquestioning adherence to a political decision already made

f. or the potentiality of embarrassment from a variety of announcements by different governmental departments on one question

5. Luther v. Borden (case w/in Baker v. Carr; 1849)

a. Facts: The (s sought to justify their otherwise tortious breaking and entering on the ground that they were agents of the established lawful gov’t of Rhode Island, which was then under martial law to defend itself form active insurrection, that the ( was engaged in that insurrection, and that they entered under orders to arrest the (.

b. Holding/Rationale: Justice Taney found textual and practical reasons for concluding that if any department of the US was empowered by the Guaranty Clause to resolve the issue, it was not the judiciary. The Court went through Justice Brennan’s several issues that make a case nonjusticiable and refuted each of them. Held this case was different and could be decided.

6. The Court has rarely found constitutional questions nonjusticiable in the decades since Baker

a. Powell v. McCormack- Court’s post-Baker reluctance to declare a const question unconstitutional

b. Goldwater v. Carter- Case presented a nonjusticiable political question. He claimed the issue was political because it involves the authority of the President and the conduct of our country’s foreign relations, arguing that the controversy should be left for resolution by the Executive and Legislative Branches since the Constitution is silent as to the Senate’s participation in the abrogation of a Treaty

i. Said not political under Baker criteria that there was no “Textually demonstrable constitutional commitment” of the treaty nor was there any lack of judicially discoverable and manageable standards

ix. Nixon v. United States

1. Impeachment Trial Clause- Art I, Sect 3- Senate shall have sole power to impeach

2. Petitioner, a former federal judge, challenged his impeachment conviction. Petitioner argued the impeachment proceedings violated the authority of the Senate under the Impeachment Clause, U.S. Const. art. I, § 3, cl. 6, to "try" all impeachments because the whole Senate did not take part in evidentiary hearings. The Court held the controversy was a nonjusticiable political question as there was a textually demonstrable constitutional commitment of the issue to the legislature and a lack of judicially discoverable and manageable standards for resolving it. The Impeachment Clause granted sole authority over impeachments to the Senate, and did not require or provide a means of judicial review. As impeachment was designed to be the only check on the judiciary by the legislature, it was counterintuitive to have judicial review of impeachment proceedings. There were no discoverable standards for judicial review of impeachment proceedings, and fashioning relief was difficult.

3. The textually demonstrable commitment of the issue to coordinate political department aspect is primarily for separation of powers

4. The lack of judicially discoverable and manageable standards aspect is a question of the Court’s competence or ability to resolve the issue even if it is not committed to another branch

5. Framers intended two proceedings against officeholders, judicial trial and legislative impeachment, deliberate as to ensure independent judgments

6. JR of impeachement would be inconsistent with framer’s views of impeachment

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Case or Controversy Requirements: Advisory Opinions, Standing, Mootness and Ripeness

f. The Rule against Advisory Opinions, Standing, Mootness & Ripeness (48-49)

i. Case or controversy requirement: Art. III, §2 limits the jx of fed courts to “cases” and “controversies.”

ii. Article III sec 2 – judicial power shall extend to a list of enumerated cases and controversies..

1. case or controversy must be concrete and non-hypothetical

2. must involve parties claiming an injury personal and concrete

3. Must arise neither too late or too soon

iii. Rule against Advisory Opinions

1. An advisory opinion is an opinion by a court that has no legal binding effect or lacks a concrete legal dispute; Supreme Court will not give them to either the Pres. or Congress. Note, however, that state courts may be allowed to render advisory opinions.

2. Opinions on the legality of executive or legislative action that did not involve an actual case, no binding legal effect

3. Three branches of gov have certain checks upon each other, and judges of a court in the last resort…

4. Rescue Army v. Municipal Ct of LA

a. under the court's policy that constitutional question should not be decided unless absolutely necessary, the court declined to exercise its jurisdiction.

b. If has to be, defined narrowly

5. Justifications

a. Separation of powers maintained by keeping courts out of legislative process…judicial role is limited to deciding disputes; it does not include giving advice to Congress of the president

b. Judicial resources are conserved bc advisory opinions might be requested in may instances

c. Helps ensure that cases will be presented to the Court in terms of specific disputes, not as hypothetical legal questions

iv. Standing to Litigate (52, 56-69)

1. Court scrutinizes the parties bringing suit to ensure they have a concrete and particularized interest

2. Standing is a determination of whether a specific person is the proper party to bring a matter to the court for adjudication.

3. Justifications

a. Promotes the separation of powers by restricting the availability of judicial review…limited role of cts

b. Serve judicial efficiency by preventing a flood of lawsuits by those who have only an ideological stake in the outcome

c. Improve judicial decision making by ensuring that there is a specific controversy before the court that there is an advocate with a sufficient personal concern to effectively litigate the matter

d. Serve the value of fairness by ensuring that people will raise only their own rights and concerns and that people cannot be intermeddlers trying to protect others who do not want the protection offered

4. Requirements: Derived from from Ct’s interpretation of Art III

SC identified three constitutional standing requirements

a. Personal injury (injury in fact)

i. P must allege that he or she has suffered or imminently will suffer an injury..concrete and particularized

b. Fairly traceable to the government (causation)

c. Redressable by a court,

5. Three prudential standing principles…Congress may override

a. No 3rd party standing

i. a party generally may assert only his or her own rights and cannot raise the claims of third parties not before the court

ii. 4 exceptions

1. where the 3rd party is unlikely to be able to sue

a. and there is a reason to believe the advocate will effectively represent the interests of the 3rd party

2. Close relationship between P and 3rd Party

3. Overbreadth doctrine

a. A person generally can argue only that a statute is unconstitutional as it is applied to him or her

4. Standing for associations

a. An assoc. or org. can sue based on injuries to itself or based on injuries to its members

b. Org has standing only if it or its members would be affected in a tangible way by the challenged action

b. No assertion of generalized grievances

i. P may not sue as a taxpayer who shares a grievance in common with all other taxpayers.

c. No claims outside the zone of interest protected by the relevant statute or constitutional provisions

i. party must raise a claim within the zone of interests protected by the statute in question

6. Lujan v. Defenders of Wildlife (actual injury requirement)

a. Defenders of Wildlife (() seek to have the Endangered Species Act interpreted to cover gov’t agency activities in foreign countries. The ESA contains a provision created by Congress that allows a “citizen-suit” when an agency fails to conform to the Act.

b. Court reasoned that respondents lacked standing under Article III The burden of proof was not met regarding causation and redressability of respondents' injury.

c. Injury in fact not established because “someday” future intentions to observe animals don’t establish actual or imminent injury…Also failed to establish redressability because wouldn’t reduce a project or harm endangered species if minimal us support were stopped. P here only had a generalized grievance and under Article III, the cts can’t hear that

d. Bad for separation of powers bc lets Congress transfer from President to the Cts the power to take care that the laws be faithfully executed

7. Allen v. Wright (causation)

a. Rejected the basis for standing because injury alleged is not fairly traceable to the gov. conduct. Uncertain as to how many racially discriminatory private schools were in fact receiving tax exemption

8. Raines v. Byrd (injury fact)

a. Legislators have no standing to bring this suit on the constitutionality of the Line Item Veto Act

b. Neither deprives members of congress of an adequate remedy nor forecloses the act from constitutional challenge

9. Flast v. Cohen

a. The bar to taxpayer standing should be lowered in claims that allge that congressional action under the taxing and spending clause is in derogation of those constitutional provisions which operate to restrict the exrvise of the taxing and spending power

b. If denied something like freedom of speech, even if one of many, can bring challenge to ct

10. FEC v. Akins

a. The information injury at issue here, directly related to voting, the most basic of political rights, is sufficiently concrete and specific such that the fact that it is widely shared does not deprive Congress of constitutional power to authorize its vindication in the federal courts

b. Where harm is concrete, though widely shared, Court has still found “injury in fact”

v. Mootness and Non-ripeness (69-71)

1. (outgrowth of standing) Although the parties have a justiciable issue when they commenced litigation, changes in the facts or law relevant to the case may render the issue moot as to the individual (’s. An actual case or controversy must exist at all stages of the litigation. Must have actual controversy at all stages of federal court proceedings, at both trial and appellate levels

a. If events subsequent to the filing of the case resolve the dispute, the case should be dismissed as moot

b. “Mootness is the doct. Of standing in a time frame. The requisite personal interest that must exist at the commencement of the litigation (Standing) must continue throughout its existence (mootness).

c. Mootness avoids unnecessary federal court decisions, limiting the role of the judiciary and saving the courts’ institutional capital for cases truly requiring decisions

d. Some exceptions

i. Likelihood of future recurrence of past harm

1. a secondary or collateral injury survives after the plaintiff’s primary injury has been resolved

ii. Wrongs capable of repetition yet evading review

1. the injury must be of a type likely to happen to the P again

2. injury of inherently limited duration so that it is likely to always become moot before federal court litigation is completed

iii. A defendant’s voluntary cessation

1. doesn’t deprive a federal court of its power to determine the legality of the practice…only moot if subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur

2. Ripeness involves seeking to prevent premature adjudication; dispute is insufficiently developed and is instead too remote or speculative to warrant judicial action (abstract disagreements)

a. Can’t present a case for resolution because it rested mainly on the challenger’s fear of future, punitive action…Rested largely on speculative apprehensiveness and some future misuse

b. Whether a case is ripe:

i. The hardship to the parties of withholding court consideration and the fitness of the issues for judicial decisions

1. Reflects const and prudential considerations

c. Justifications

i. Advances separation of powers by avoiding judicial review in situations where it is unnecessary

ii. Enhances judicial economy by limiting the occasion for federal court jurisdiction and the expenditure of judicial time and revenues

d. Criteria for determining ripeness---If hardship demonstrated in any of three ways, likely to be found ripe..harm in denying jud. Rev.

i. The more a plaintiff can demonstrate substantial hardship to a denial of preenforcement review, the more likely a federal court is to find ripeness

1. when individual is faced with a choice between forgoing allegedly lawful behavior and risking likely prosecution with substantial consequences, the federal courts will deem the case ripe rather than insist that an individual violate the law and risk the consequences

ii. enforcement of a statute or regulation is certain and the only impediment to ripeness is simply a delay before the proceedings commerce.

1. where the application of a law is inevitable and consequences attach to it, the Court will find the matter ripe before the actual proceedings occur

iii. Found hardship based on collateral injuries that are not the primary focus of the lawsuit

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Supreme Court review of state judgments and political restraints on federal courts (71-75)

g. Supreme Ct review of state cts (not explicitly listed ability in Const…now const doct)

i. Martin v. Hunter’s Lessee

1. Established the power of SC to review the constitutionality of federal executive actions and of federal statutes

2. defended the legitimacy of Supreme Court review of state court judgments rested on interpretations of federal law and rejected highest VA law

3. Rule: Said Art III left considerable discretion to Congress with respect to the allocation of jurisdiction to federal courts

a. If congress didn’t decide to create lower ct tribunals, SC could only hear a few cases where it held original juris

4. Would be public mischief to only low state courts appellate power… state judges presumed to be men of honor, took an oath, wisdom, necessary for uniformity of decisions throughout the US

ii. Cohens v. Virginia

1. Convicted for selling DC lottery tickets in VA

2. Ct decided against them on the merits

3. Rule: SC had authority to review state judgments

a. Judicial power extends to all cases arising under the constitution or a law of the US, even criminal

4. Some state judges might not be independent since dependent on state leg for salaries, so can’t let constitutional questions rest here

h. Political Restraints on the SC: May Congress Strip the Court of its Jurisdiction?(75-85)

i. Exceptions clause of Art II, Sect 2, cl 2-most powerful tool Congress has

ii. Article V used to add amendments and turn over specific SC decisions

iii. Presumptive lifetime tenure of SC Justices through impeachment route

iv. Congress sets the size of the Ct- FDR’s proposed court packing plan of pro-New Deal Justices

v. Selection Process of Justices- Art II Sec 2 cl.2

1. President nominates Justices to SC but appointment will not be effective unless the President obtains “Advice and Consent of the Senate”

2. political branches selection process for Court exerts obvious influence on the direction of the Court

vi. “Exceptions” in Art III to Supreme Ct’s appellate jurisdiction- another way for Congress to retaliate against unpalatable Court decisions

1. Congress can subtract from fed ct’s jurisdiction that is prescribed in the US Const

vii. Purpose of most jurisdictional stripping bills is to achieve a change in the substantive law by a procedural device

1. hope jurisdictional restrictions is the de facto reversal, by means far less burdensome than those required of a constitutional amendment, of several highly controversial SC decisions dealing with high profile matters (abortion, school prayer, busing, etc)

viii. Ex Parte McCardle

1. Used by advocates proposals to limit SC jurisdiction

2. McCardle brought habeas corpus proceeding to SC under act which authorized federal courts to grand h.c. to anyone restrained in violation of the Const and also authorized appeals to SC

3. Congress adopted a rider to a bill repealing part of the Judiciary Act of 1789 that authorized SC appellate review of writs of h.c.

4. Rule: Appellate jurisdiction of the SC not derived from acts of Congress, it is conferred from the Const But they are limited and regulated by the act

a. , jx is nevertheless conferred “which such exceptions and under regulations as Congress shall make.” It’s a holding that allows Congress great power, but they can’t make ridiculous blocks and laws.

5. Const gives Congress the express power to make exceptions to that appellate jurisdiction………judicial restraint

a. the exceptions to appellate jurisdiction from Act of 1867 are expressly repealed so no judgment can be rendered when act “never existed”

b. 1868 Act an unmistakable exception to the Court’s appellate jurisdiction, thus dismissal necessary

c. However, the act does not except form that jurisdiction any cases but appeals from Circuit courts und the act of 1867. It doesn’t affect the jurisdiction previously exerciesed

6. Historical background- height of tension between Congress and President

ix. Internal restraints inherent in Art. III

1. Hart’s opinion

a. Art III limit on congressional power….Exceptions power of Congress cannot be exercised in a way that would interfere with the essential or core functions of the Ct.

2. Wechsler

a. Antithetical to the plan of the Const for the courts-which was quite simply that the Congress would decide from time to time how far the federal judicial institutions should be used within the limits of the federal judicial power

3. In Art III Congress has discretion whether to create lower federal courts; Congress also has discretion to define their jurisdiction

4. Three approaches to Cong. Control of Fed Ct. Juris

a. Federal Courts must have full judicial power as described in Article III

b. Congress has the authority to determine the jurisdiction of the federal courts because Congress has discretion as to whether to establish such tribunals

c. The existence of lower federal courts is constitutionally required, at lease for some types of claims (see in Martin)

i. The judicial power of the US shall be vested

ii. It is the duty of Congress to vest the judicial power of the US, the duty to vest the whole judicial power

x. External restraints from constitutional sources other than Art III

1. even if it can’t be read to curtail Congress’s power over appellate juris, other things can be used

a. Bill of Rights

2. 11th Amendment- Sovereign immunity

a. from SC’s interpretation

b. Protects state autonomy by immunizing states from suits in federal court, but it provides this independence by risking the ability to enforce basic federal rights

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National Powers and Local Activities: Origins and Recurrent Themes

i. Legislative powers: basic framework and intro to Commerce Clause (75-85)

i. History

1. justification for American federalism: liberty and public good

2. State regulation of various aspects of public policy thought to encourage a diversity of approaches and promote creative experimentation and responsive self-government

3. Article I, sect 10- expressly bars states from a short list of forbidden acts, including entering into treaties, coining money, granting titles of nobility, passing bills of attainder, ex post facto laws, or laws impairing K, laws impairing obligations of K, requires congressional consent before imposing customs duties, etc

4. Congress may act only if there is express or implied authority to act in the Constitution; states however may act unless the Const prohibits the action

a. Art I- creates federal leg power

b. 10th amendment

i. powers not delegated to US by Const, nor prohibited by it to the states, reserved for states or people

5. Broad authority accorded by SC to Congress to regulate commerce, spending, and Reconstruction Am.

6. As of late, SC limited scope of Congress’s power under commerce clause, sect 3 of 14th Am, and revived 10th am as limit on fed power

7. Necessary and Propert Cl- Art I sec 8 cl. 18 (89-99, 107-110)

a. “Congress shall make all laws that are necessary and proper”

b. the placement of the clause suggests that its an expansion of powers b/c all the enumerated ones are above it, so it is considered to be an expansion and not limitation

ii. McCulloch v. Maryland (basic framework: Necessary and Proper- Art I Sec. 8 cl. 18)

1. History behind the case: Brief economic boom from 1815-1818, then depression and panic, so the national bank called in many of its loans and ppl couldn’t pay them, so popular uprising…state gov’ts often were the ones who couldn’t pay and then out of revenge acted in ways that were retaliating against the national bank (happened here with Maryland)

2. Marshall used the case to broadly construe Congress’s powers and narrowly limit the authority of state govs to impede federal gov

3. Issues/Application

a. Does Congress have the authority to create the bank of US?

i. Yes: historical practice

ii. Refute the argument that states retain ultimate sovereignty because they ratified the Const

1. people sovereign, not states

iii. address the scope of congressional powers under Art I

1. bank not enumerated in Cost, but if all was then more of a legal code

iv. Meaning of the Nec and Proper clause Art I Sect 8 Cl. 18

1. Nec and Proper clause gives Congress the power to make all laws which shall be necessary and proper for carrying into execution the powers vested by the Consti in the US gov

2. Congress may choose any means not prohibited by the Const to carry out its express authority

3. Necessary means useful or desireable

4. terms purport to enlarde, not diminish the powers vested in the gov

5. Rejected any contention that gives Congress limitless authority

b. Is the state tax on the bank constitutional?

4. Rule: Certain federal powers, giving Congress the discretion and power to choose and enact the means to perform the duties imposed upon it, are to be implied from the Necessary and Proper Clause

a. The States have no power to burden the operation of federal laws designed to execute powers vested in the federal government by the Constitution.

5. Rule: The federal Const and the laws made pursuant to it are supreme and control the Constitutions and laws of the state

a. Const doesn’t exclude incidental or implied powers, not express

i. Const needs to loast for perpetuity so can’t detail all

b. Const allows Congress discretion to choose the means to impose duties imposed on it as long as the end is legitimate within the scope of the const

c. Const gives states power after enumerating nat gov power

6. MY can’t tax the U.S. bank, which is properly created within Congress’s power and can’t impede or burden the operations of constitutional laws enacted by Congress..power to tax is the power to destroy

a. Could greatly impede its operation and potentially even tax out its existence

7. Success of federalism is a balance between the need for the supremacy and sovereignty of the federal gov and the interest in maintaining independent state government and curtailing national intrusion into intrastate affairs

8. Rejects compact federalism, emphatically declaring federal government is supreme over the states and that the states have no authority to negate federal actions

9. Court expansively defines the scope of Congress’s powers

10. The Court limits the ability of states to interfere with federal activities, such as by imposing taxes or regulations on the federal government

j. The Commerce Power

i. Art I sect 8 cl.3- grants Congress the power “To Regulate Commerce with foreign Nations, and among the Several States, and with the Indian Tribes.”

ii. Commerce power also in parts of Art IV authorizing congressional action as do the Reconstruction amendments (13-15)

iii. Used to suppress the interfering and un-neighborly regulations of some states, to promote a national market and curb the balkanization of the economy

iv. History(123-124)

1. Pre 1937-

a. Court adopted an expansive view of the scope of the commerce clause (Gibbons v. Ogden)

i. Commerce is intercourse and includes all phases of business, including navigation, which was at issue

ii. Among states means intermingled with and concerning more than one state.

iii. Congress’s power, like all others vested in Congress, is complete in itself, may be exercised to it utmost extent and acknowledges no limitations, other than are prescribed in the Const. Congress has complete authority to reg all commerce among states

b. From late 19th cent to 1937 adopted a much narrower construction and invalidated many federal laws as exceeding the scope of this authority

i. First time SC aggressively used its power of judicial review to invalidate federal and state laws

ii. Ct narrowly defined the meaning of commerce so as to leave a zone of power for the states

1. one stage of business

iii. Defined among states as allowing Congress to regulate only when there was a substantial effect on interstate commerce

1. must have direct effect

iv. 10th amendment reserved a zone of activities to states and that even federal laws within scope of commerce were unconstitutional if they invaded that zone

2. 1937 to 1995 ( 146-8, 150-2)

v. Judicial Deference Toward Exercise of the Commerce Power 1937 to 1995

1. Generally

a. ”switch in time” happened in the Court and Roberts started upholding New Deal legislation; cases involving the Commerce Clause and New Deal leg was often upheld(allowed Congress a wide birth to enact helpful legislation

b. not one federal law declared unconstitutional as exceeding the scope of Congress’s commerce power, expansion of Cong power

c. until US v. Lopez and then Morrisson showed partial return to more interventionist

d. No loner a distinction between commerce and other stages of business…No longer a distinction between direct and indirect-Congress could exercise control over all phases of business and Congress could regulate any activity that taken cumulatively had an effect on interstate commerce

e. No longer was 10th amendment a limit on congressional power; instead, a federal law would be upheld so long as it was within the scope of Congress’s power, and the commerce clause was interpreted so broadly that seemingly any law would meet this requirement

2. “Affecting Commerce” rationale

a. Wickard v. Filburn- (quintessential ex of Ct giving def review to New deal and Congress, 1942)

i. Facts: Act for quota of wheat

ii. Holding: Although activity be local and not regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce, and this irrespective of whether such effect is what might at some earlier time have been defined as ‘direct or ind’ or if it the activity is a question be ‘production’

iii. Own actions may be trivial, but taken together with others becomes far from trivial, a substantial effect on interstate commerce

iv. Created substantial effects test: Justice Jackson required a showing of “substantial economic effect on interstate commerce.”

b. Maryland v. Wirtz

i. Upheld amendments to Fair Labor stds Act that extended coverage to every employee who is employed in an enterprise engaged in commerce or in the production of goods for commerce

3. Use commerce power for social ends: Civ rights act of 1964 a facility was covered “if its operations affect commerce, or if discrimination is supported by State action.”

a. Heart of Atlanta Motel v. US

i. Facts: Racial discrimination against blacks at hotel

ii. Hold: Discrimination by hotels impedes interstate travel both in impairing the black traveler’s pleasure and convenience and in discouraging travel on the part of a substantial portion of the black community

iii. Questions the court in evaluating law and application

1. whether Congress had a RATIONAL BASIS for finding that racial discrimination by motels affected commerce

2. If it had such a basis, whether the means it selected to eliminate that evil are reasonable and appropriate

iv. TEST: “The determinative test of the exercise of power by Congress under the Commerce Clause is simply whether the activity sought to be regulated is ‘commerce which concerns more States than one’ and has a real and substantial relation to the national interest. “

v. The power to promote interstate commerce also includes the power to regulate the local incidents thereof, including local activties which might have a substantial and harmful effect upon that commerce

b. Katzenbach v. McClung

i. $70000 worth of food which has moved in commerce is a valid exercise of the power of Congress; Not serving blacks and their total loss as customers has a close connection to interstate commerce and is highly restrictive upon interstate travel by blacks…burden on interstate commerce

ii. Hold/Rule: Congress had a rational basis for finding racial discrimination by restaurants cumulatively had a direct and adverse effect on free flow of interstate comm.

c. Perez v. US

i. Art I sect 8 authorizes to punish only the counterfeiting of the money, piracies and felonies at sea, and offenses against law of nations.

ii. Congress has enacted a host of federal criminal laws under the authority of the commerce power as a RATIONAL basis to believe that even intrastate loan sharking activities had a sufficient effect on interstate commerce

iii. Upheld a federal prohibition of extortionate credit transactions

iv. Loan sharking is a way organized interstate crime holds its guns to heads of poor and rich and siphons funds from numerous localities to finance its national operations

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Current Doctrine: Revising the Limits on congressional authority (153-171)

k. New Limits on the Commerce Power since 1995

i. Commerce Clause Analysis:

1. A law is w/in Congress’ commerce power if it regulates:

a. channels (public roads)

b. instrumentalities (cars, but usually personal)

c. an activity which substantially affects interstate commerce

2. go through each one above

3. then under Morrison/Lopez look to four factors:

a. activity is commercial or economic

b. has Congress made findings of an affect on interstate commerce?

c. How attenuated the link is between the regulated activity and the effect on interstate commerce

d. Is this an area, like education/traffic safety, that’s left to the states to regulate??

ii. Started limiting Congressional power of interstate commerce

1. can’t be too tangential and uncertain

2. can’t regulate noneconomic activity and say when looked at cumulatively, had a substantial effect

iii. United States v. Lopez

1. Facts: Gun Free School Zones Act making it a federal offence to possess a firearm in school zone

2. Act neither regulates a commercial activity nor contains a requirement that the possession is substantially connected in any way to interstate commerce so the Act exceeds authority of Congress

3. Gibbons v. Ogden- commerce is intercourse and acknowledged the limitations of commerce clause inherent in language

4. Ct began by emphasizing the Const creates a national gov. or enumerated powers

a. Returned to Art I limits to Congress’s legislative powers to those that are express and implied in Const

5. Rule: Congress can regulate 3 types of activities:

a. The use of the channels of interstate commerce

b. Regulate and protect instrumentalities of interstate com or persons or things in interstate commerce even though threat only from intrastate activities

i. Includes the power to regulate persons and things in interstate commerce

c. Activities having a substantial relation to interstate commerce

i. Gun near a school didn’t substantially affect interstate commerce and therefore fed law unconst

6. No sense an economic activity that might by repetition effect interstate commerce. Const withholds Congress a plenary police power that would authorize enactment of every type of legislation

7. Nexus: if something was explicitly listed in the statute that showed a connection between guns in or near school zones and int commerce, then maybe not have been struck down

iv. Gonzalez v. Raich

1. Upheld federal statute

2. Rule: Congess may use its power to regulate commerce among the states to prohibit the cultivation and possession of small amounts of marijuana for medicinal purposes

3. CA may have created exemption, doesn’t exist in federal law

4. looked at cumulatively has a substantial effect on interstate commerce

5. Stands for the proposition that intrastate production of a commodity sold in interstate commerce is economic activity and thus substantial effect can be based on cumulative impact

v. Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers

1. Army Corps exceeded its statutory authority under Clean Water Act by trying to regulate small ponds and habitat for birds

2. Migratory bird rule falling outside the text of congressional intent underlying statute

3. Rule would result in significant impingement of the States’ traditional and primary power over land and water use

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Other Enumerated powers of Congress: the spending power, the treaty power, and the power conferred by section 5 of the 14th Amendment

II. The Spending Power as a Regulatory Device (221-222, 230-235)

a. National spending power Art I sect 8 cl 1- Tax and Spending Clause

i. The Congress has a broad power to tax and spend to “provide for the common defense and general welfare” (helps education, crime control, Medicaid, Medicare, social security, etc.) so long as it does not violate other constitutional provisions

ii. Initially a difference between a direct and indirect tax, overruled in Flint

iii. Difference between the judicially created regulatory and revenue raising taxes no long or any practical significance

iv. Regulation through spending: Congress can use its spending power to “regulate” areas, even where it otherwise has no power to do so, by requiring entities that accept government money to act in a certain manner (i.e. attaching “strings” to gov’t grants)

v. Ct said Congress may place conditions on such grants, so long as the conditions are expressly stated and have some relationship to the purpose of the spending program

b. South Dakota v. Dole-1987

i. Background: US v. Butler( the Court held that Hamilton’s broader view was better. Spending power not limited to ends Congress could achieve through over powers

ii. Hold: Congress acted directly under its spending power to encourage uniformity in the state’s drinking age (withhold 5% of federal highway funds to states with drinking age less than 21)

iii. Hold: Legislative effort within the constitutional bounds even if congress can’t regulate drinking age directly because Congress may attach conditions on the receipt of federal funds and has employed the power to further broad policy objectives

iv. Rule: Spending power not unlimited

1. Must be in pursuit of the general welfare

2. If conditioning state’s receipt of federal funds, it must do so unambiguously enabling the states to exercise their choice knowingly, cognizant of the consequences of their participation

3. Conditions on federal grants might be illegitimate if they are unrelated to the federal interest in particular national projects or programs

4. Other constitutional provisions may provide an independent bar to the conditional grant of federal funds

v. Condition directly related to one of main purposes of highway funds are spent- creating safe interstate travel

vi. Congress offers mild encouragement to States to enact a higher min drinking age but laws remain prerogative of States

III. Treaties, Foreign Affairs and Federalism (238-242)

a. Under Art II Sect 2: Congress has several important powers with regard to foreign policy: to ratify treaties; to reg foreign commerce; define piracies; declare war; grant letters of marque and reprisal; to raise, support and regulate an army and navy; to regulate immigration

b. Treaties

i. Const gives the President the authority, “by and with the Advice and Consent of the Senate, to make treaties provided two thirds of the Senators present concur.”

ii. Treaties are law of land and prevail over conflicting state laws, and if conflict between federal statute and treaty the one adopted last controls and treaties can’t violate the constitution

c. Missouri v. Holland

i. Facts: MO claimed migratory bird act unconstitutional interference with the rights reserved to the states by the 10th amendment on Treaty created between the US and GB proclaimed by President

ii. Rule: Art II sect 2 the power to make treaties is delegated expressly and by Article VI treaties made under the authority of the US are declared supreme law of the land

iii. Treaty can’t be valid if infringes with Const

iv. Although Solid Waste v. US army corps held bad, but here enforced through a treaty to regulate is different

v. Treaty doesn’t contravene any prohibitory words to be found in the Const and only question if has some radiation from terms of 10th am

vi. Here, a national interest is involved and can be protected only by national action in concert with another power…not sufficient to rely on the states

vii. Treaty and statute must be upheld

d. Bricker Amendment Controversy

i. Proposal through concern with treaty power and broad statements in Missouri v. Holland, provision of a treaty which conflicts with this constitution shall not be of any force or effect, adding sect 2: a treaty shall become effective as internal law in the US only through legislation which would be valid in the absence of the treaty

e. Reid v. Covert

i. During Bricker debate, dealt with congressional power under Art I sect 8 to provide military jurisdiction over civilian dependents of American servicemen overseas

ii. Court rejected argument that the law might be independently supportable because of the existence of an international agreement

iii. Said found nothing in Supremacy Clause in Art VI sect 2 which intimates that treaties and laws enacted pursuant to them do not have to comply with the provisions of the Constitution,

f. Perez v. Brownwell

i. That there is power in Congress to regulate foreign affairs has been repeatedly recognized by the Court

ii. Although there is in the Constitution no specific grant to Congress of power to enact legislation for the effective regulation of foreign affirs, there can be no doubt of the existence of this power in the law making organ of the Nation

g. Powers conferred by sect 5 of the 14th Amendment (970-973)

i. Another one of Congress’ enumerated powers and can invoke it to enforce the 14th

ii. 14th Amendment, §1: no state shall make any law that shall deprive any citizen due process and equal protection; §5: Congress shall have the power to enforce the above listed w/in §1 of the 14th Amendment

iii. United States v. Morrison

1. Questions constitutionality of a federal civil remedy for the victims of gender-motivated violence of Violence against women act

2. Congress relied on its authority to pass this act under sect 5 of 14th and section 8 of Article I of the Constitution

3. Rule: 14th amendment’s language and purpose to limit congress’s power to attack discriminatory conduct to prevented 14th am from obliterating balance of powers between states and federal gov, 14th by its own limitations prohibits only state action

4. Civil remedy here not corrective in character, and under section 5 must have a “congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end”

5. It is not aimed at proscribing discrimination by officials which the 14th am might not itself proscribe; it is directed not at any state or state actor, but at individuals who have committed criminal acts motivated by gender bias…under sect 5, Congress may regulate only state and local governments, not private conduct

6. Regulation and punishment of intrastate violence that is not directed to the instrumentalities of interstate commerce is the exclusive jurisdiction of local government

iv. Relation to the 11th Amendment

1. A private party may not sue an unconsenting state for damages (but can for injunctions) in federal court, except when Congress has abrogated (cancelled expressly and unequivocally) the state’s immunity like through an act of legislation that uses §5 power of the 14th Amendment

2. Relevant question: Can this legislation be validly applied to a state actor or is it beyond Congress’ scope and violates state’s sovereignty/immunity?

a. Kimmel v. Florida Board of Regents (2000): State workers alleging age discrimination under the Federal Age Discrimination in Employment Act may not sue their employers (i.e. the State) b/c Congress lacks the power to override the State’s 11th Amendment immunity from fed lawsuits and Court held not a valid exercise of §5 enforcement.

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Federalism based on limits of Congressional Power; the anti-commandeering principle of the 10th amendment (178-202)

IV. External Limits on the Commerce Power; State Autonomy, Federalism and the 10th and 11th amendments

a. As seen by Lopez and Morrison, congressional regulatory power regarding private activity remains broad, under rationales finding the activity either “in” or “affecting interstate commerce”

b. 10th amendment specifies- “the powers not delegated to the US by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people”

c. In number of rulings in 1980s Court tried to clarify stds of Natl League of Cities, then Garcia overruled it, and abandoned judicial efforts to impose a state autonomy restraint on Congress, but a more limited set of external federalism resurfaced in NY v. US and Printz v. US….antifederalist revival with Lopez and NY

d. State Autonomy Limits on Congressional Power

i. National League of Cities v. Usery—Only case from 1937 to 1990s that federal law declared unconstitutional as violating the 10th amendment ..later overruled

1. state autonomy defense held sufficient to invalidate the application to state and local governments of a federal law otherwise permissible under the commerce power

2. Fair Labor Stds Act to extend min wage to all employees

3. Held extension unconstitutional, couldn’t extend to state w/out violating the 10th amendment and infringing on state’s sovereignty

4. Congress sought to regulate directly activities of States as public employers, transgresses an affirmative limitation on the exercise of its power akin to other commerce power affirmative limitations contained in Const. Congressional enactments fully within grant of Commerce clause may be invalid because found to offend against the right to trial by jury in 6th or DPC of 5th

5. Alters state’s abilities to structure employer-employee relationships and these activities are typical of those performed by state and local governments in their dual function

6. If congress could withdraw this state’s power, little left of the states’ separate and independent existence

7. 3 part test:

a. Showing that the challenged statute regulates the “States as States”

b. Federal regulation must address matters that are indisputably attributes of state sovereignty

c. Must be apparent that the State’s compliance with the federal law would directly impair their ability ‘to structure integral operations in areas of traditional governmental functions’

ii. Garcia v. San Antonio Metropolitan Transit Authority

1. Subjection of a municipal transit authority to minimum wage and overtime requirements of Fair Labor Stds Act

2. The effort to articulate the boundaries of state regulatory immunity in terms of “traditional government functions” has proved “unworkable”

3. Ct made little headway in defining scope under National League of Cities …invites an unelected federal judiciary to make decisions about which state policies it favors and which it dislikes

4. Imposing such limits not the business of the Court

5. Principal means chosen by framers to insure the role of the States in the federal system lies in the structure of the fed gov itself

6. Over the course of history, the principal institution in brokering state/federal relations has been the political party

7. Justice Blackmun’s opinion of political safeguards of fed (above)

8. Justice Powell’s – state’s role in our system of government is a matter of constitutional law, not legislative grace. Federal political officials, invoking CC, sole judges of the limits of their own power is inconsistent with the fundamental principles of our const system

a. Stressed importance of state and local autonomy to principles of democratice self government

b. Enforcement of fed laws and regs in staff/civil service hands

iii. Commandeering state processes- can’t commandeer the legislative processes of the States by directly compelling them to enact and enforce a federal regulatory program….commandeering invalidated

iv. New York v. United States 1992

1. Facts: Act required states to dispose of radioactive wastes and states with disposal sites get to charge surcharges

2. First time in 55 yrs Ct invalidated a federal law

3. Rule: Congress has substantial power under the Const to encourage the States to provide for the disposal of the radioactive waste generated within their borders, the Const does not confer upon Congress the ability to compel the States to do so.

a. NY could regulate the disposal of readiactive wastes, however the “take title” provisions unconst because it gave state governments the choice between either accepting ownership of waste or regulating according to the instructions of Congress

4. Impermissible for Congress to impose either option

a. Forcing states to accept ownership of radioactive wastes would impermissibly commandeer state governments

b. Requiring state compliance with federal regulatory statutes would impermissibly impose on states a requirement to implement federal legislation

i. 10th am limits the scope of Congress’s power under Art I, so Fed gov can’t compel the states to enact fed leg or regulatory program even if Cong can under CC

ii. would have to use conditional spending if Congress wants to get it (SD v. Dole)

iii. allowing Congress to commandeer state govs would undermine gov accountability because Congress would make decision and states would take political heat

5. However, Congress not powerless

a. May set stds that state and local govs must meet and thereby preempt state and local actions

b. Congress may attach strings on grants to state and local govs and through these conditions induce state and local actions that they cannot directly compel

6. Rule: Such authority is outside of Congress’s powers and infringes on state sovereignty reserved by the 10th amendment

v. Printz v. United States 1997

1. Facts: Brady Handgun Violence Prev Act commanding state and local law enforcement officers to conduct background checks on prospective handgun purchasers and to perform certain related tasks violates the Constitution

2. Rule: Federal gov may not commandeer the states to enact or administer a federal regulatory program can’t recruit state to enforce absent an express constitutional authorization for such command

3. States are autonomous, sovereign entities, not mere instrumentalities of the fed . gov., violates separation of powers

4. Also, as a general matter, under the Constitution it is the responsibility of the President and the Executive branch of government to enforce federal laws, Congress can’t strip president of his powers.

5. Precedent and national history support Court’s holding

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Dormant Commerce Clause: “undue burdens” on interstate commerce and the “market participant” exception to dormant commerce clause (244-246)

V. Federal Limits on State Power to Regulate the National Economy

a. The commerce barrier to state arises in two situations

i. Congress is silent( the objection to state authority rests entirely on the negative implications of the commerce clause of Art I sect 8-on the unexercised commerce power itself…called dormant commerce cl.

1. power “To regulated Commerce w/ foreign Nations, and among the several States, and w/ the Indian Tribes.”

ii. Congress has exercised the commerce power, and the challenge to inconsistent state action rests on both the exercise of the commerce power under Art I sec 8 cl. 3 and the preemptive effect of federal legislation under the supremacy clause of Art VI

b. State Regulation and the Dormant Commerce Clause

i. DCC- principle that state and local laws are unconstitutional if they place an undue burden on interstate commerce

ii. SC inferred this limit on state regulatory power from the grant of power to Congress to regulate commerce among states in Art I sect 8. Even if Congress has not acted, even if its commerce power lies dormant, state and local governments cannot place an undue burden on interstate commerce

iii. The court invalidates some “protectionist” state legislation, even in the absence of congressional preemption. Const nowhere fives Ct this task

1. Art I sect 10 bars states from imposing duties on imports/exp in foreign commerce. But text of Const nowhere expressly limits state power to regulate interstate commerce, nor imposes any explicit barrier to state protectionism or discrimination against trade

a. Ct drawn on negative implications of the grant of power to Congress to regulate interstate commerce

b. Art I sect 8 provides “The Congress shall have Power to regulate Commerce among the several States”

c. Ct read judicially enforceable limits on state legislation when Congress has not acted

iv. Constitutional history

1. Framers centralized power to regulate interstate commerce in Congress because viewed destructive trade wars amongst states as great problem

2. Hood & Sons v. Du Mond

a. State may not deny a milk processing license to an out of state distributor in order to stabilize in state milk supply

b. Desire of forefathers to federalize regulation of foreign and interstate commerce stands in sharp contrast to jealous preservation of state’s power of own internal affairs

v. Values served by “dormant” commerce clause

1. Historical- framers intended to prevent state laws that interfered with interstate commerce

2. Economic- state laws that protect local economic interests at the expense of out of state interests are said to impair both the political and economic vision of the framers..don’t want to impede IC

3. Political- States and their citizens should not be harmed by laws in other states where they lack political representation

4. Courts consistently rebuffed attempts of states to advance their own commercial interests by curtailing the movement of articles of commerce, either into or out of the state, while generally supporting their right to impose even burdensome regulations in the interest of local health and safety

5. Cardozo’s “the several states must sink or swim together”

6. Congress can’t anticipate every possible economic activity so judiciary does need to get involved

vi. Criticisms

1. Drafters would have included in Const a provision prohibiting states from interfering with interstate commerce

2. Const gives Congress the power to regulate commerce and Congress can invalidate state laws that unduly burden interstate commerce…should not be a task for an unelected federal judiciary

vii. Test

1. No more police power/commerce power, local/national subject matter, direct/indirect test

2. The test depends on whether the state or local law discriminates against out of staters or treats in-staters and out of staters alike

a. If the court concludes that a state is discriminating against out of staters, then there is a strong presumption against the law and it will be upheld only if it is necessary to achieve an important governmental purpose…If any of 3 below met, virtually per se invalid (Ct has a high level of scrutiny)

i. Facially discriminatory (explicitly)

ii. Discriminatory purpose

iii. Discriminatory Effect

b. The court concludes that the law is nondiscriminatory, then the presumption is in favor of upholding the law and it will be invalidated only if it is shown that the law’s burdens on interstate commerce outweigh its benefits

3. Balancing the benefits of a law against the burdens that it imposes on interstate commerce

4. A state or local law that discriminates against out of staters will be upheld only if it is proved that the law is necessary to achieve an important governmental purpose

a. Invokes the STRICTEST SCRUTINY of any purported legitimate local purpose and of the absence of nondiscriminatory alternatives

5. central issue in dcc is whether the benefits of the state law outweigh it burdens on interstate commerce

a. burdens on interstate commerce

b. Benefits to a state or local government

1) Dormant Commerce Clause Analysis: [(1) Has Congress spoken about the activity? (2) If Congress hasn’t, does the state law at issue discriminate/unduly burden against interstate commerce?]

a) (5 inquiries)

i) Is the law rationally related to a legitimate state purpose?

a) Under the states’ police power, a state may regulate and tax for the health, safety, morals, and general welfare of the public.

ii) Does the law have the practical effect of regulating out-of-state transactions?

iii) If the law discriminates against interstate or foreign commerce, does it represent the least discriminatory means for the sate to achieve its purpose?

iv) Are the burdens of the law places on interstate or foreign commerce clearly excessive in relation to the benefits which the law affords the state?

v) Does the law represent the least burdensome means for the state to achieve its goals?

viii. Laws that facially discriminate against out of state commerce (257-263, 269-274

1. forbidden protectionism, upheld only if necessary to achieve an important purpose

2. Philadelphia v. New Jersey

a. Court held unconstitutional a NJ law which prohibited the importation of most solid or liquid waste which originated or was collected outside the territorial limits of this state

b. Rule: The commerce clause protects other States from efforts by one State to isolate itself in the stream of interstate commerce from a problem shared by all

c. Law unconstitutional because it had not been preempted by federal legislation and rejected suggestions that interstate movement of waste was not “commerce” within the commerce clause

d. All objects of interstate trade merit Commerce Clause protection

e. State laws which are basically protectionist in nature unduly burden interstate commerce and thus are unconstitutional

f. Even if ultimate purpose to protect the health and safety of its citizens, it may not accomplish this by discrimination against articles of commerce coming form outside the state

g. Other alternatives were available, like limiting amount of waste

h. As a result, it improperly against out of state production and unduly burdens interstate commerce

i. Reaffirms Dean Milk co. – recognizes waste is an element of commerce and must be regulated. States may regulate it only if done in a away which is not unduly burdensome

3. Chemical Waste Management v. Hunt

a. Ct invalidated on dormant cc grounds an Alabama law imposing a hazardous wastes generated outside AL and disposed of at a commercial facility in AL, but not upon identical wastes having a source in AL

b. Applying strictest scrutiny he found that the state had available less discriminatory alternatives for reducing the volume of haz. Waste disposal, such as higher fees, etc.

c. Outside waste posed no greater cost to AL then instate

4. Oregon Waste Systems v. Department of Env. Quality

a. Ct invalidated discriminatory fee on different fee for out of state v in state waste disposal

b. Found differential surcharge facially discriminatory and thus subject to the “strictest scrutiny” or a “virtually per se rule of invalidity”

c. A facially discriminatory tax that imposes on interstate commerce the rough equivalent of an identifiable and substantially similar tax on intrastate commerce does not offend the negative Commerce Clause

5. Maine v. Taylor [Blackmun’s opinion; 1986]

a. Court upheld a law banning the importation of out-of-state baitfish. The Court held the ban had a legitimate environmental purpose stemming from “uncertainty about possible ecological effects on the possible presence of parasites and nonnative species” in shipments of out-of-state baitfish, and that purpose could not be adequately served in nondiscriminatory ways.

b. Reiterated the Court’s commitment to special scrutiny of discriminatory laws. Discriminatory laws may be upheld only if they serve “a legitimate local purpose that could not be served as well by available nondiscriminatory means.”

c. [Shows the Court will use a heightened scrutiny and can still find if no other nondiscriminatory options are available, even a facially discriminatory law, will be upheld. ]

ix. Facial Discrimination by Localities

1. Dean’s Milk Co. v. Madison

a. Madison ordinance made it unlawful to sell any milk as pasteurized unless it had been processed and bottled at an approved pasteurization plant located within five miles of the city

b. Rule: A locality may not discriminate against interstate commerce, even to protect the health and safety of its people if reasonable alternatives exist which do not discriminate and are adequate to conserve legitimate local interests

c. Ordinance erects an economic barrier protecting a major local industry against competition from without the state

d. Must be decided whether the ordinance can be justified in view of local interest and available methods for protecting those interests. Reasonable and adequate alternatives exist

e. Irrelevant that the law also discriminated against in staters: It is immaterial that Wis. Milk from outside Madison is subjected to the same

2. Fort Gratiot Sanitary Landfill v. Michigan Dept. of Nat. Resources

a. MI law prohibited private landfills from accepting solid waste outside the county that their facilities are in

b. Ct found the law indistinguishable from the dcc purposes from the waste import ban in Philly

c. State may not avoid the strictures of the Commerce Clause by curtailing the movement of articles of commerce through subdivisions of the State, rather though the State itself

3. C & A Carbone v. Clarkstown

a. Relied on Dean Milk to invalidate town’s local processing requirement for sold waste

b. While immediate effect is to direct local transport, its economic effects are interstate in reach. By preventing everyone except the favored local operators from doing initial processing step, ordinance deprives out of state business of access to a local market. No less discrim because in state or in town processors are also covered by the prohibition

c. Discrim against interstate commerce in favor of local business or investment is per se invalid, save in a narrow class of cases in which the municipality can demonstrate, under rigorous scrutiny, that it has no other means to advance a legitimate local interest

x. Laws protectionist in purpose or effect (274-280)

1. A purpose may be difficult to discern from the text and history of a statute…also, a law with benign purpose may have an unduly discriminatory effect, while a law motivated wholly by protectionist intent might fail to produce significant discriminatory effects

2. State Barriers to Out of State Sellers

a. Baldwin v. GAF Seelig (leading case holding that states may not protect local economic interests by limiting access to local markets by out-of-state sellers-even in the absence of facial discrimination(if the law is facially neutral, if it has a discriminatory outcome, it’s most likely per se invalid

i. Rule: States may not protect local economic interests by limiting access to local markets by out of state sellers, even in the absence of facial discrimination

ii. NY’s milk law set a barrier to traffic between one state and another as effective as if customs duties, equal to the price differential, had been laid upon the goods

iii. Ct said couldn’t validate the Act as police measure with only incidental impact on commerce: This would be to eat up the rule under the guise of an exception. Economic welfare is always related to health

b. Limits of Baldwin: compensating using taxes

i. Henneford v. Silas Mason Co. (tax okay)

1. Rule: upheld WA tax on retail sales within state and another section on privilege of using WA goods bought at out of state must pay compensating tax

2. local retailers will be helped to compete upon terms of equality with retail dealers in other states who are exempt from a state sales tax. Local buyers will no longer be tempted to place their orders in other states to escape local sales tax

ii. Bacchus Imports v. Dias

1. invalidated a HA statute that exempted from the State’s liquor tax a brandy distilled from a root of an indigenous shrub

2. the court has invalidated facially neutral statutes that actually appear to exist solely in order to protect a particular interstate interest or target a particular out of state interest

3. Enacted to promote local pineapple wine, thus because the exemption was motivated by an intent to confer a benefit upon local industry not granted to out of state industry, the exemption was held invalid

iii. Hunt v. WA state Apple Advertising Comm’n

1. NC law that state no grade other than applicable US grade or std…Since no USDA label NC banned

2. Law could not stand even if enacted for the declared purpose of protecting consumers. Instead of finding the law flawed because of any protectionist motive, the Court relied mainly on discriminatory effect.

3. The practical effect of not only burdening interstate sales of WA apples, but also discriminating against them

4. The burden falls on the state to justify it both in terms of the local benefits flowing from the statute and the unavailablibility of nondiscriminatory alternatives adequate to preserve the local interests at stake

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DCC- “undue burdens” on interstate commerce and the “market participant exception”

3. Facially neutral laws and Pike Balancing

a. The Ct treats laws that facially discriminate against interstate commerce and laws that are “protectionist” in purpose or practical effect as “virtually per se invalid” A law that is neither discriminatory not protectionist, however sill may be reviewed and struck down under the Ct’s residual balancing test

b. Establishing that a facially neutral law can be found discriminatory if there is proof of discriminatory impact

c. Balancing test: asks whether the burden on interstate commerce outweighs the benefit to the regulating state

d. (Suppose the measure is rationally related to a legitimate state goal, it does not discriminate against interstate commerce, and the burdens it imposes on interstate commerce do not clearly outweigh the benefits the state receives from the law. The Court has suggested that such a law might still be unconstitutional if “the local interest…could be promoted as well as w/ a lesser impact on interstate activities.”)

e. Pike v. Bruce Church Inc

i. Az statute prohibited church from shipping uncrated cantaloupes form the company’s AZ ranch and required cantaloupes from AZ be packed and identified as from AZ (not transported to CA facilities)

ii. Ct invalidated the requirement because(balancing test) where the statute regulates even-handedly 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. If a legitimate local purpose is found, then the question becomes one of degree. And the extent of the burden that will be tolerated will of course depend on the nature of the local interest involved and on whether it could be promoted as well with a lesser impact on interstate activities

iii. Purpose was not to promote safety or protect consumers from unfit goods, its purpose and design are simply to protect and enhance the reputation of growers within the State

iv. State’s interest may be legit, but the State’s tenuous interest in having the company’s cantaloupes identified as originating in AZ cannot constitutionally justify the requirement that the company build and operate an unneeded 200,000 packing plant in the state

f. Kassel v. Consolidated Freightways Corp.

i. Facts: IO statute restricts the length of vehicles it can use on its highways, so Consolidated can’t use its 65 ft doubles within its borders

ii. Rule: A state safety regulation will be unconstitutional if its asserted safety purpose is outweighed by its degree of interference with interstate commerce

iii. Rule: While bona fide safety regulations are entitled to a strong presumption of validity, the asserted safety purpose must be weighed against the degree of interference with interstate commerce.

iv. Less deference will be given to the findings of state legislators where the local regulation has a disproportionate effect on out of state residents and businesses

v. State didn’t show any persuasive evidence that 65 ft less safe than 55 ft

vi. Could have achieved its purposes equally well though an alternative measure that would have placed fewer burdens on interstate commerce

vii. Consolidated showed IO’s law substantially burdens interstate commerce by compelling truchikng companies either to route 65 foot doubles around IO or use smaller trucks…violation of CC

4. State burdens on Trade

a. Exxon Corp. v Gov of MY

i. Sustained law prohibiting producers or refiners of petroleum products from operating retail stations in MY

ii. The law does not discriminate against interstate goods nor does it favor local producers and refiners

iii. Act creates no barriers whatsoever against interstate independent dealers: it does not prohibit the flow of interstate goods, place added costs, or distinguish between out and in state companies. The absence of any of these factors fully distinguishes this case from those in which a state has been found to have discriminated against interstate commerce

iv. Even though refiners might be driven from MY market, there is no reason to assume that their share of the entire supply will not be promptly replaced by other interstate refiners

v. CC protects interstate market, not particular interstate firms from prohibitive or burdensome regulations, should go to wisdom of statute not burden to interstate commerce

b. Min v. Clover Leaf Creamery

i. Upheld state law that banned the retail sale of milk products in plastic nonreturnable containers but permitted sales in nonreturnable containers-mainly pulpwood

ii. Pulpwood was a major instate product

iii. Rejected challenges cased on both the antiprotectionistm principle and the Pike balancing formula

iv. The law does not effect simple protectionism, but regulates evenhandedly by prohibiting all milk retailers from selling their products in plastic without regard to whether containers or sellers are from outside of State. Since the statute does not discriminate between interstate and intrastate commerce, the controlling question is whether the incidental burden imposed on interstate commerce by the MI act is clearly excessive in relation to putative local benefits…here stat minor

v. Pulpwood industry likely only one to benefit at the expense of out of state firms.

vi. Burden not clearly excessive and no approach with a lesser impact on interstate activities is available

vii. Only if the burden on interstate commerce clearly outweighs the State’s legitimate purpose does such a regulation violate the Commerce Clause

viii. Note: least restrictive alternative generally is used in con law only where heightened scrutiny is applied

c. Market Participant Exception to the Dormant Commerce Clause (311-316)

i. The court’s concern about detecting parochialism was found inappropriate when the state functioned not as a regulator of the market, but rather as a market participant

ii. Where state itself produced goods for commerce or where engaged in programs/incentives to aid in state business

iii. State may favor its own citizens in dealing with government owned business and in receiving benefits from government programs

iv. Although DCC doesn’t apply in this case, might be vulnerable to other constitutional challenges such as based on the priv and imm clause of Article IV or equal protection

v. Preferential state expenditure poses less harm to commerce clause values than do discriminatory regulation or taxes because they are less coercive, less hostile, may benefit national welfare, self limiting and less likely to cause resentment and retaliation

vi. State business may favor in-state purchasers, but they may not attach conditions to a sale that discriminate against interstate commerce

1. can’t have a substantial regulatory effect outside of the particular market

vii. South Central Timber Dev. v. Wunnicke

1. Facts:AK offered to sell large amounts of state owned timber if the buyers, including SCT, agreed to process it within state boundaries, but SCT wanted to but and ship to Japan to process

2. Rule: If a state imposes burdens on commerce within a market in which it is a participant, but which have a substantial regulatory effect outside that particular market, they are per se invalid under the Federal Commerce Clause

3. “Market” for Commerce Clause purposes is narrowly defined and precludes a state’s exercise of leverage in the market in which it is directly participating in order to regulate a “downstream” market

4. Ak can’t govern the private, separate economic relationships of its trading partners downstream; as a typical seller it has no say over how the product is used after sale

5. Local processing requirement burdens interstate commerce, it is per se invalid under FCC

6. It is well accepted that state restrictions burdening foreign commerce are subjected to a more rigorous and searching scrutiny. IT is crucial to the efficient execution of the Nation’s foreign policy that “the Federal Gov speak with one voice when regulating commercial relations with foreign governments”

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Privileges and Immunities Clause of Article IV; Preemption (316-324)

VI. The Privileges and Immunities Clause of Art IV

a. Art IV sect 2- “The Citizens of each state shall be entitled to all Privileges and Immunities of Citizens in the several States”

b. Another basis for attaching state and local law

c. Limits ability of states to discriminate against out of staters with regard to constitutional rights/fundamental rights or important economic activities

i. Even if fundamental, will be upheld if state can demonstrate that there is a “substantial reason” for treating out of staters differently

d. Overlaps with other parts of Const, like CC, it serves as a restraint on state efforts to bar out of staters from access to local resources

e. Like 14th amendment equal protection clause, it protects citizens against discrimination-in this context, on the basis of state residence

f. Test

i. Does the challenged law affect a “fundamental” right, privilege or immunity that falls w/in the purview of the Clause?

ii. Is the laws’ discrimination of a type prohibited by the Clause?

iii. Does the state have a “substantial reason” that justifies its discrimination against citizens of other states?

g. Differences between CC and P&I Clause

i. Corporations enjoy no protection under the P&I

ii. Congress may consent to state practices that would otherwise be impermissible under the CC, the P&I is a right provision, not a grant of authority to Congress, and so is arguably nonwaivable by Congress

iii. Standard of review for P&I is arguably stricter than the balancing test used in dcc analysis, though not as strict as that for discriminatory legislation challenged as a commerce violation

iv. P&I extends not to all commercial activity, but only to “fundamental rights”

v. Ct recognized no “market participant” exception to P & I violations as it has in commerce clause scrutiny

vi. P & I only to out of staters while dcc can be used to challenge state an local laws that burden interstate commerce regardless of whether they discriminate against out of staters

h. United Building & Construction Trades Council v. Mayor and Council of Camden

i. Facts: Challenge to Camden, NJ ordinance requiring that at least 40% of the employees of contractors and subs working on city construction projects be Camden residents

ii. P&I clause and Equal protection clause would be unconstitutional if done directly by the State can no more readily be accomplished by a city deriving its authority from the state. Thus, even if the ordinance has been adopted solely by Camden, and not pursuant to a state program or approval, the hiring pref would still have to comport with the clause

iii. Ct establishes that the terms “citizen” and “resident” are essentially interchangeable for purposes of analysis under clause. Thus, whether the exercise of privilege is conditioned on state residency or municipal residency, he will just as surely by excluded.

iv. 2 step inquiry to discrimination against out of state residents whether the ordinance burdens one of those privileges and immunities protected by the Clause

1. whether an out of state resident’s interest in employment on public works contracts in another state is sufficiently “fundamental” to the promotion of interstate harmony so as to fall within the purview of the CC……yes common calling is a fundamental right

2. Is there a fundamental reason for having this kind of difference in treatment? (heightened level of scrutiny than the DCC)

a. Remanded on this issue bc don’t know if out of staters are part of the prob of rising unemply and mid class flight

v. While CC acts as an implied restraint upon state regulatory powers, the P&I imposes direct restraint on state action in the interests of interstate harmony

vi. Both NJ residents living outside of Camden effected just like out of staters, but NJ residents had opportunity to expand or contract municipal power by voting in state elections, out of staters had no such power

vii. The ordinance affected the rights of non-residents to pursue a livelihood of their choosing, clearly a fundamental privilege protected by clause.

viii. Note: ordinance might have been valid under CC since city acting as a market participant, such analysis doesn’t apply to P&I…That clause imposes a direct restraint on state action in the interest of interstate harmony

i. Congressional Ordering of Federal-State Relationships by Preemption and Consent

i. “dormant” cc limits state regulatory power in the absence of congressional action, but the cc is not dormant when Congress acts in an affirmative exercise of power

ii. Court operates as an important yet only limited partner of Congress in articulating federalism limits on state power; that Congress often plays a decisive role in determining the relations between state and federal power; and that the interrelationships between state and federal law present subtle and complex problems for Congress and Court

iii. Preemption of State Authority (324-333)

1. Art VI- When Congress exercises a granted power, the federal law may supersede state laws and preempt state authority, because of the operation of the supremacy clause of Art VI

2. this doctrine mandates that valid federal law, including statutes, treaties, executive agreements, administrative rules, and common law, supplants or supersedes state law that is inconsistent w/ the specific terms or overall objectives of the fed law. (derived from the Supremacy Clause, Art. 6, cl. 2)

3. Types

a. Express: when congress expressly describes the extent to which a federal enactment preempts a state law

b. Implied

i. Conflict state law clashed w/ federal law by imposing inconsistent obligation affected parties or by interfering w/ the objectives of the federal scheme

ii. Field: the state law operates w/in a field of law that congress intends the fed gov to occupy exclusively

4. Pacific G&E v. State Energy Resources Conserv. & dev. Commn

a. Facts: P maintained that certain provisions of CA’s Warren-Alquist Act were invalid because it was preempted by Congress’ passage of the Atomic energy Act

b. Rule: a state law inconsistent w/federal law will be preempted, but whether a state law is inconsistent w/ federal law often depends on the court’s characterization of the laws

c. In passing the Act, Congress preempted state regulation of the radiological safety aspects involved in the construction and operation of nuclear plants but intended for the states to retain their traditional responsibility in the field of regulating electrical utilities for determining questions of need, reliability, cost, and other related state concernse

d. Congressional intent in passing the Act was to give the federal government exclusive regulatory power over the radiological safety aspects involved in the construction and operation of nuclear plants, it didn’t intend to preempt the states from exercising their traditional responsibility in regulating electrical utilities, etc.

e. CA says moratorium for economic problems bc high costs, therefore statute lies outside occupied field of nuclear safety regulation and doesn’t interfere with federal regulation of nuclear waste disposal…..economic reasons while the states ensured safety (narrowly construing state purpose)

f. Doesn’t conflict with NRC’s findings because says only that it is safe to proceed with such plants, not that it is economical, so CA’s statutory provision doesn’t interfere ith the objective of the federal regulation

g. Promotion of nuclear power by congress not to be accomplished at all costs, and licensing and safety provisions and the continued preservation of state regulation in traditional areas okay.

h. There has been no preemption with regard to provision

5. Types of preemption

a. Express statement

i. Explicit preemptive language precluding state or local regulation in an area

b. Implied occupation of a regulatory field

i. Scheme of federal regulation is so pervasive as to make reasonable the inference that Congress left no room for the States to supplement

ii. If Congress expresses a clear intent that federal law will be exclusive

iii. Comprehensive federal regulation evidences a congressional desire that federal law should completely occupy the field

c. By implied preclusion of conflicting state regulations

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

6. Note: Congress’s explicit preemption to supersede state law

a. Because “the Act of Congress touches a field in which the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject

b. Because the object sought to be obtained by the federal law and the character of obligations imposed by it may reveal the same purpose….(Fidelity v. de la Cuesta)

7. Field preemption

a. Rice v. Santa Fe Elevator Corp.

i. Ct requires a clear and manifest purpose showing that Congress meant to occupy a field

ii. Congress legislated a field states traditionally legislated

iii. Purpose evident pervasive, touch field,

b. Florida Lime & Av. v. Paul

i. Preemption as a situation where “compliance with both federal and state regulations is physically impossible”

ii. Federal regulation by means of minimum stds of agricultural commodities, however comprehensive for those purposes of marketing that regulation may be, does not of itself import displacement of state control over the distribution and retail sale of thos commodities in the interests of the consumers of the commodities within the state

c. Gade v. National Solid Wastes Mgmt

i. Several Ill provisions for licensing workers who handle hazardous waste preempted by federal Occupational Safety and Health Admin regulations

ii. Even though the federal regulations aimed only at worker safety and state regs aimed at both worker safety and public health

iii. Conflict preemption, reading the federal scheme to forbid duplicative regulation

d. Crosby v. National

i. Struck down Mass law barring state entities from buying goods and services with Burma

ii. Congress’s mandatory and conditional sanctions on Burma preempted the earlier Mass law, since Mass’s more stringent and inflexible provisions presented an obstacle to the accomplishment of Congress’s full objectives under the fed. Act

iii. Delegation of effective discretion to President to control economic sanctions against Burma and Congress intended to limit economic pressure of Burmese gov to specific range

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Executive Encroachment on legislative powers

VII. Executive Encroachment on Legislative Powers

a. Article II , Sect. 2, cl. 1: vests executive power in the President without qualification.(enumerates specific powers to the president) In this respect, it differs from Article I,sect 1 cl. 1 which delegates to Congress all leg. Powers “herein granted”

b. Youngstown Sheet v. Sawyer

i. Faced with imminent steel strike during Korean war, president ordered gov seizure of steel companies to prevent strike.

ii. Rule: The President as the leader of the executive branch, is bound to enforce the laws within the limits of the authority expressly granted to him by the Constitution, and he cannot usurp the lawmaking power of Congress by an assertion of an unspecified aggregation of his specified powers

iii. Rule: President’s powers in the area of legislation are limited to proposing new laws to Congress or vetoing laws which he deems inadvisable (formalistic)

1. power must stem either from an act of Congress or from the Const itself. No statute that authorizes this not act of Congress

iv. Commander & chief doesn’t have ultimate power to take possession of private property, his functions, limited by the Const, in the law making process to recommend laws he thinks are wise and veto, and the Congress to make the laws as found in the Const (Art I , sec 1 and Art I sec 8)

v. However, Justice Jackson’s concurrence used most

1. President’s power is at its max when he acts pursuant to express or implied congressional authority…presumptively valid

2. in the absence of congressional grant of power, President acts solely on the basis of his powers as specified in the Const

a. there is a zone of twilight in which he and Congress may have concurrent authority

b. depends on imperatives of events and contemporary imponderables rather than on abstract theories of law

3. When Pres’ acts in contravention of congressional action, he may do so only where it can be shown that Congress has exceeded its constitutional powers and the Pres is acting in his own sphere of authority….when incompatible with expressed or implied will of Congress, his power is at its lowest (**** this case falls here***)

vi. Approaches Featured in Youngstown

1. There is no inherent presidential power; the president may act only if there is express constitutional or statutory authority

a. Only pursuant to express or clearly implied stat or const authority (majority in Justice Black’s)

2. The president may exercise powers not mentioned in the Constitution so long as the president does not violate a statute or the Constitution

a. Frankfurter, Jackson

c. Executive Authority over foreign and military affairs (354-360)

i. Executive branch has frequently resorted in foreign relations to unilateral executive agreements rather than treaties if concurred by 2/3 of the Senate according to the procedures set forth in Art II sect 2

ii. Treaty- agreement between US and foreign country that is negotiated by the president and is effective when ratified by the Senate

iii. Executive Agreement- an agreement between US and foreign country that is effective when signed by the president and the head of the other gov….no Senate ratification is necessary

1. Const makes no mention of executive agreements, but are const.

2. US v. Belmont

a. Ct sustained the validity of an executive agreement and held that it took precedence over conflicting state policy

b. Negotiations and agreements were within competence of the president and assignment and agreement, unlike treaties, don’t require Senate participation

iv. Dames & Moore v. Regan

1. Facts: P filed suit to recover funds owed on a contract with gov of Iran, but the order of attachment was voided by an Executive Agreement

2. Rule: The President lacks the plenary power to settle claims against foreign governments through an Executive Agreement; however, where Congress at least acquiesces in the President’s actions, the President can settle such claims

3. Rule: When Congress implicitly or explicitly authorizes presidential action, the action is given the greatest presumption of validity and burden of persuasion would rest heavily upon any who might attack it

4. Hold: Here, President’s exact decision not contemplated in the IEEPA, but substantial powers to seize and handle foreign assets was conferred in the Pres by congress

5. Had congress not implicitly approved of the action, the President would have been beyond his bounds

6. Cited Youngstown Sheet case with Jackson’s concurrence

a. When actin against Congress, Pres power was limited to express constitutional grants in Art. II.

b. At the other end, pres power was greatest when acting with congressional approval (as he did here)

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Executive discretion in times of war and terror

VIII. Executive Discretion in Times of War or Terror (360-385)

a. The President, the Congress, and the War Power

i. Const gives Congress the power to “declare war” Art I sec. 8 cl.11 and to raise and support armies and navies (art I, sect 8 cl. 12&13)

ii. It confers upon the President the authority to act as Commander in Chief of the armed forces- Art II, sect 2, cl. 1

iii. War powers Resolution of 1973

1. President may introduce troops into hostilities pursuant only to

a. A declaration of war

b. Specific statutory authorization

c. Or a national emergence created by attack upon the US, its territories, possessions or armed forces

2. President in every possible instance shall consult Congress

3. Pres will submit within 48 hrs to the Speaker of House and to pres pro tempore of the Senate a report, in writing, setting forth the circumstances necessitating the introduction of armed forces, the const and leg authority, and other such info…

b. The President, the Courts, and Executive Detention of Enemy Combatants

i. Emergencies and Constitutional text

1. no state of emergency exception, only in Art I, Sect 9, cl 2- suspension of individual rights- writ of habeas corpus suspended only in cases of rebellion or invasion the public safety may require

2. Congress shall have power to provide for calling for the militia to execute laws of union, suppress insurrections and repel invasions, Art I sect 8 cl. 15

3. President shall be commander and chief of state militias if called Art II sec2 cl 1

4. No state shall without the consent of congress keep troops or ships of war in time of peace, engage in war, etc unless actually invaded or in such imminent Danger as will not admit of delay ArtI sect 10 cl 3

5. Congress shall protect each state against invasion and against domestic violence- Art IV, sect 4

6. 3rd amendment- limits discretion to conscript private property

7. 5th requirement of grand jury indictment is relaxed for martial law

ii. Views of emergency constitutionalism

1. Strict

a. Const continuous, invariant in war or crisis.

b. Ex Parte Milligan

i. Pres Lincoln’s suspension of the writ of habeas corpus had not properly empowed him to try and convict before military tribunals citizens who had been detained during the war. Const protections applied to Milligan during war

ii. One of plainest constitutional provisions was infringed when Milligan was tried by a court not ordained and established by Congress, and not composed of judges appointed during good behavior. Another guarantee of freedom was broken when Milligan was denied a trial by jury

c. Allowing a curtailment of liberties during those periods would act as a one way ratchet, reducing civil liberties permanently while increasing executive power

2. Loose-

a. In wartime, all usual constitutional bets are off

c. Ex Parte Quirin (Military tribunal)

i. Facts: When third Reich sabotage agents were apprehended within US during WWII, they argued it would be unconstitutional for them to be tried before a military tribunal, sought trial in civil courts

ii. The detention and trial of foreign espionage and sabotage agents within the US during time of war, by a military commission appointed by the President, is constitutional .

iii. Law of war draws a distinction between the armed forces and the peaceful populations of belligerent nations and between lawful and unlawful combatants

iv. Lawful comb. are subject to capture and detention as prisoners of war by opposing military forces

v. Rule: Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful

1. spies are such

2. every citizenship, even US doesn’t relieve a person of such consequences

vi. This court cannot say that Congress in preparing the 5th and 6th amendments intended to extend trial by jury in cases of alien or citizen offenders against the law of war otherwise triable by military commission

vii. Congress explicitly provided that military tribunals had jurisdiction to try offenders or offenses against the law of war in appropriate cases…not difference if actually committed espionage or not

d. Joint Resolution after 9/11 giving President the broad authority to engage armed forces in hostilities without defining any particular nation against which the force should be directed

e. Johnson v. Eisentrager

i. WWII era, german civilians captured in pacific theater war in Germ

ii. Ct stressed that aliens in that case could not be extended the priv of litigation in US courts because they at no relevant time were within any territory over which the US is sovereign, and the scenes of their offense, capture, trial and punishment were all beyond the territorial juris of any US court

f. Rasul v. Bush 2004

i. Federal judges have jurisdiction to consider habeas petitions from Guantanamo detainees who argue they are being held unlawfully

ii. Distinguished form Eisentrager because here gtmo prisoners are not nationals of countries at war with the US, and they deny that they have engaged in or plotted acts of aggression against the US; they have never been afforded access to any tribunal much less charged with and convicted of wrongdoing

g. Hamdi v. Rumsfeld 2004

i. Facts: Hamdi, an American citizen designated as an enemy combatant, argued that he was entitled to contest such designation in court

ii. Rule: Due process requires that a citizen held in the US as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker

iii. Rule: US may detain hamdi for duration of these hostilities hamdi and other individuals legitimately determined to be Taliban combatants who “engaged in armed conflict against the US” pursuant to Congressional Act

iv. Rule: Nevertheless, the writ of habeas corpus remains available to every individual detained within the US citizen; the writ remains a critical check on Executive, ensuring that Hamdi was properly before an Article III court to challenge his detention by this writ

v. Rule: Circumstances of Hamdi’s seizure not undisputed, but a citizen-detainee seeking to challenge his or her classification as an enemy combatant must receive notice of the factual basis for the classification, and a fair opportunity to rebut the gov’s factual assertions before a neutral decisionmaker

vi. Hamdi plurality suggests that military tribunals might be able to afford adequate process to even citizen enemy combatants

h. Hamdan v. Rumsfeld

i. Petitioner, a Yemeni national in custody at an American prison in Guantanamo Bay, Cuba, filed petitions for writs of habeas corpus and mandamus to challenge the Executive Branch's intended means of prosecuting a charge of conspiracy to commit offenses triable by military commission

ii. Abstention was not warranted as petitioner was not an Armed Forces member and the tribunal convened to try him was not part of the integrated system of military courts established by Congress. Review of the commission's procedures in advance of a final decision was appropriate as petitioner had no automatic right to review of the commission's decision before a federal court under the Detainee Treatment Act, Pub. L. No. 109-148, 119 Stat. 2739 (2005). The fact that petitioner already had been excluded from his own trial provided a basis to presume that the procedures employed would violate the law. On the merits, the military commission convened to try petitioner lacked power to proceed as its structure and procedures violated the Uniform Code of Military Justice. The President's practicability determination was insufficient to justify variances from the procedures governing courts-martial. The procedures also violated the Geneva Conventions as they did not meet common article 3's requirements.

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Congressional encroachment on the executive power; legislative and executive actions; bicameralism and presentment

IX. Congressional Encroachment on the Executive Power (385-396)

a. Legislative and Executive Actions

i. Nondelegation doctrine

1. one option for congress to control executive power is to be very specific and limiting in the delegation of power to agencies, so that rulemaking power will in turn be limited

2. “The Nondelegation Doctrine”: The Court has often said that because Art. I, §1 vests “all” legislative power in the Congress, Congress may not constitutionally delegate its lawmaking power to another branch of gov’t. However, this so=-call nondelegation doctrine is a fiction. Congress may—and often does—authorize the other branches to establish rules or standards for a particular area. But Congress must set forth by statute guidelines.

a. The Court’s tolerant attitude toward delegation of lawmaking authority reflects a flexible and pragmatic view of separation of powers. Congress often lacks the time and expertise to develop intricate rules and regulations for many areas covered by federal legislation.

3. Touby v. US

a. Rule: Congress doesn’t violate the Const because it legislates in brad terms so long as it lays down by legislative act an intelligible principle to which the person or body is directed to conform

4. Schechter Poultry

a. Ct struck down provision of nat. Indust. Recovery Act that authorized the Pres to approve codes of fair competition

5. Panama Ref. Co. v. Ryan

a. Ct struck down another provision of NIRA on delegation grounds

b. These are only two cases, both in early 1930s, that ct found a violation of the nondelegation doctrine

ii. INS v. Chadha 1983

1. D challenged const of federal statute which purported to authorize one house of congress, by resolution, to invalidate the decision of the Attny Gen. (delegated by Congress) to allow a particular deportable illegal immigrant to remain in the US

2. Rule: Because it constitutes an exercise of legislative power and is thus subject to the bicameralism and presentment requirements of Article I of the Const, the fed statute purporting to authorize a one house veto of the Attny Gen’s decision to allow a particular deportable alien to remain in US is unconstitutional

3. Rule: Action is clearly an exercise of legislative power, which makes it subject to the bicameralism and presentment requirements of Article I of the Constitution unless one of the express constitutional exceptions authorizing one House to act alone applies…here none apply

4. Thus, to accomplish what has been attempted by one House of Congress requires action in conformity with express procedures of the Const’s prescription for legislative action, passage by a majority of both Houses, and presentment to the Pres (for his signing)

5. Such requirements were built into the Const to act as enduring checks on each branch and to protect the people from the improvident exercise of power by mandating certain prescribed steps

6. By attempting to bypass steps, Congress acted unconstitutionally

7. Once Congress makes its choice in enacting legislation, its participation ends. Congress can thereafter control the execution of its enactment only indirectly by passing new legislation

b. Bicameralism and Presentment (396-402) Art I sect 7

i. Bicameralism (a legislative act of Congress must be approved by both the House and Senate)

ii. Presentment (Before any measure approved by the House and Senate can become law, it must be presented for approval to the Pres; if the Pres vetoes the measure it may become law only if it is repassed by 2/3 majority in each House. )

iii. Clinton v. NY

1. Facts: Line Item Veto Act allowed president to cancel provisions that have been signed into law. Parties affected by Clinton’s cancellation of a provision of the Balanced Budget Act of 1997 challenged the constitutionality of the act

2. Rule: The cancellation provisions authorized by the Line Item Veto Act are not constitutional

3. A cancellation takes effect upon receipt by Congress of the notification of the cancellation. However, a majority vote of both Houses is sufficient to make the cancellation null and void

4. Although the Constitution expressly authorizes the President to veto a bill under Art I, sec 7, it is silent on the subject of unilateral Presidential action that repeals or amends parts of duly enacted statutes

5. Constitutional silence should be construed as express prohibition

6. If there is to be a new role for the Pres in the procedure to determine the final text of a law, such a change must come through the amendment procedures and not by legislation

7. didn’t have to address separate of powers issue…

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Congressional Control over executive officers

c. Congressional Control over Executive Officers (402-419)

i. Art II sect 2, the Appointments Clause, provides that the Pres shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, Judges of SC, and all other Officers of US…but Congress may by Law vest the appointment of inferior officers

1. so pres gets to appoint superior officers with the advice and consent of the senate…but Congress appoints inferior officers, who report to superior officers.

2. Although Congress has broad authority to delegate legislative power to itself or to its agents

ii. Buckley v. Valeo

1. Congress excluded from appointing executive officers

2. An agency with a majority congressionally named personnel could only exercise those powers that Congress might delegate to one of its own committees, impremissinble because could not be considered heads of departments, (other is courts of law in which inferior officers could be appointed by congress)

iii. Removal of executive officers

1. App Cl silent as to removal of executive appointees from office, only explicit constitutional reference to the removal of executive personnel lies in the impeachment provisions

2. Bowsher v. Synar

a. Facts: appeal deficit control act findings assignment of certain functions under act to the comptroller general violated separation of powers

b. Rule: The assignment of executive powers to an agent o officer of the legislative branch violates the doctrine of separation of powers. The only exception is that Congress always can remove an executive official through the impeachment process

c. Comp. Gen is subject to removal powers dictated that he will be subservient to congressional control, only through impeachment

d. This Act is unconstitutional as Congress can not retain the power of removal by joint resolution and impeachment, but the Constitution says Congress only has power of removal via impeachment for high crimes (not inefficiency, etc.)

e. By placing execution of act in hands of officer controlled by Congress, the doctrine of separation of powers is violated

iv. Removal by President:

1. Art. II, §2, cl.2 doesn’t say anything about when and how the Pres has the power to remove executive officials who serve at the pleasure of the Pres

2. The Court has thus applied structural or functional vs. textual arguments to these cases

3. The Court has held though that Congress may limit Presidential removal when (1) it’s an office where independence from the Pres is desirable (i.e. FTC—Fed. Trade Commission); (2) if the law doesn’t outright prohibit removal, but might limit removal to “good cause”

4. Myers v. US

a. Unconstitutional legislative provisions that certain groups of postmasters could not be removed by Pres without consent of Senate

b. Meyers rules stands simply for “the unrestricted power of the Pres to remove purely exec officers

5. Humphrey’s Executor v. US

a. Pres can’t remove a member of an indep. Regulatory agency in defiance of restrictions in the statutory framework

b. Congress could limit Pres’s power of removal ; and myers principle for purely executive officers

c. FTC acted as a quasi legislative quasi judicial

6. Wiener v. US

a. Ct applied Humphrey’s rule here

b. Commission’s function was of an intrinsic judicial character and held the removal illegal

c. As to officers who were not purely executive, power to remove existed only if Congress may fairly be said to have conferred it

7. Morrison v. Olson 1988

a. Facts: Ethics in Gov Act which created the independent counsel/special prosecutor, was challenged as unconstitutional

b. Congress’ creation of the independent counsel was not unconstitutional usurpation of power…it allows the attorney general to fire an independent counsel for “good cause”. Hence limits on removal of the indep. Counsel didn’t violate the Constitution

c. Rule: Appointments clause mandates that only the President appoint principal US officers. However Congress may invest in Judiciary power to appoint inferior officers. The court observed that Congress had no role in removing the independent counsel

d. Ct says independent counsels are inferior…He is subordinate to Attny Gen. role restricted to investigation and prosecution of federal crimes, and tenure limited

e. Doesn’t violate separation of powers because congress is not trying to usurp executive or judicial authority. Rather it created an executive and judicial office not unduly beholden to itself

f. Distinguished Chadha by holding Ethics Act didn’t directly give Congress power…Where in Chadha struck down legislation review of executive actions

g. Distinguished bowsher and upheld the constitutionality of limits on the president’s ability to remove the indep counsel

v. Interbranch appointments

1. While Congress is categorically barred from participating in the removal of officials located outside the legislative branch, the Court has sometimes upheld interbranch removal authority in other contexts where there is no realistic danger of usurpation or encroachment

2. Mistretta v. US

a. Ct rejected both antidelegation and general separation of powers attacks on an unusually composed commission created to set federal guidelines for crime sentences

b. Used flex approach of Morrison over more formalistiv Bowsher and Chadha

c. Excessive legislative discretion in violation of constitutionally delegated power rejected and in a complex society, Congress cannot do its job absent ability to delegate power under broad directives

i. Nondelegation doctrine is a hoax and this is an increasingly complex society so Congress can delegate as long as it is specific and detailed and too excessive

d. Framers rejected that notion that three branches must be entirely separate and distinct. In adopting a flex understanding of separation of powers (see Youngstown- jackson’s opinion) have recognized a checked and balanced power w/in each branch

e. Congress can’t exercise or delegate powers to other branches but allow some commingling of branches when poses no danger(Morrison)

f. Only unconst if Congress created body in Judicial branch that more appropriately should be vested in other branches and undermine judicial integrity

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Bill of Rights and post civil war amendments: pre civil war application of Bill of Rights to the states; privileges and immunities clause of 14th amendment

X. The Bill of Rights and the Post-Civil War Amendments: Fundamental Rights and Incorporation Dispute (445 – 448)

a. Guarantee of individual liberty in B of R originally limited to fed. gov

b. First eight amendments detail protection of individuals

c. Incorporation of Bill of Rights in 14th Amendment’s Due Process Clause and after Civil war national concern of protection from state govs too

d. Pre-Civil War Situation

i. Few explicit references to individual right in original Constitution; most litigated limitation on state power was the ban on state impairment of contracts under Art I sect 10

ii. Barron v. Mayor and City Council of Baltimore

1. Barron claimed that the City made his wharf useless by divesting streams during construction and said violated 5th amendment by not justly compensating for it

2. Issue: Whether the takings clause of the 5th Amendment applied to the city

3. Rule: The amendments to the Constitution were intended as limitations solely on the exercise of power by the US government and just compensation prov of 5th not applicable to the legislation of the states

4. People and state establish their own Const and Article I sect 10 expressly lists restrictions upon state govs, and amendments have no expression indicating to apply them to states

5. the Bill of Rights applied only to the federal gov.

e. Privileges and Immunities Cl of the 14th Am (448-457)

i. Post- Civil War ratification of the 13th, 14th, and 15th Amendments that all dealt w/ slavery and citizenship

1. Amendment 14: “All persons born or naturalized in the US and subject to the jx thereof are citizens of the US and the state wherein they reside. No State shall make or enforce any law which shall abridge the P/I of citizens of the US; nor shall any State deprive any person of life, liberty, or property, w/out due process of law; nor deny to any person w/in its jx the equal protection of the laws.”(could then argue that the BOR should apply to the states

ii. While Art IV sect 4 announced that the citizens of each state shall be entitled to all Privileges and Immunities of Citizens in several states

1. priv and imm to protect fundamental rights from state and local interference

2. some think 14th doesn’t include bill of rights

iii. Slaughter House Cases (Interp 14th) (Dissents are later followed)

1. Facts: LO created a 25 year slaughterhouse monopoly which several butchers who were not included objected

2. Rule: The 14th amendment protects the privileges and immunities of national, not state, citizenship, and neither the Equal Protection, Due Process, or Privileges and Immunities Clauses of that amendment may be used to interfere with state control of the privileges and immunities of state citizenship

3. Purpose of amendments was to eliminate remnants of slavery, not effect any fundamental change in the relations of the government

4. No interpretation of this Amendment, or 13th may be used to prevent the State of LO from exercising its police power here to define particular priv. and imm

5. Rendered 14th Amendment Priv. and Immunities Clause ineffectual as a means of protecting individual rights from state abridgment

6. In addition, ruled out the possibility that the B of R could be enforced upon the states as priv and imm of national citizenship

7. Dissent: Subsequently, the court adopted the position of Bradley and began selectively incorporating parts of those Amendments into 14th Am DPC

a. The 14th Amend. was intended to provide security against violation by the States of the fundamental right of the citizen. Any laws which establishes a sheer monopoly, depriving citizens of the privilege of pursuing lawful employment, does abridge the privileges of those citizens, and does deprive them of liberty and property w/out due process of law. It is futile to argue that none but persons of the African race are intended beneficiaries of this provision.

8. EPC has been used extensively to prohibit state action which is discriminatory in any irrational way

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Aftermath of the Slaughter-House Cases

f. Aftermath of the Slaughter House Cases (462-467)

i. Selective incorporation: not all of the BORs have been incorporated to the states (the 2nd, 3rd, 5th grand jury requirement in criminal case, the 7th for juries in civil trials, and the 8th guarantees against excessive fines have never been incorporated)

ii. No direct application of the BOR to the states; always need to go through the back door of the Due Process Clause in the 14th Amend.

iii. Saenz v. Roe- ] (modern decision and first time since Slaughter-House Cases has the P/I clause been at issue)

1. First time in American history the Supreme Court used the privileges or immunities clause of the 14th Amendment to invalidate a state law

2. Facts: CA discriminated against citizens who had resided in the state for less than one year in distributing welfare benefits, the statute was challenged and held to be unconst

3. Rule: Durational residency requirements violate the fundamental right to travel by denying a newly arrived citizen the same privileges and immunities enjoyed by other citizens in the same state, and are therefore subject to strict liability

4. Rule: state must provide the same “priv and imm” to new residents as it does to its citizens

5. First sentence of Art IV sect 2 provides that the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states. The right of a newly arrived citizen to the same P & I enjoyed by other citizens of the same state is protected not only by new arrival status but also as citizen of US

6. Citizenship clause of 14th am protects all citizens’ right to choose to be citizens in state wherein they reside

7. Neither mere rationality not mere intermediate std of review should be used to judge the constitutionality of a state rule that discriminates against someone bc of other state domicile

a. State’s legit interest in saving money provides no justification

iv. Rational basis of review

1. a test employed by the court to determine the validity of a statute in equal protection actions, whereby the court determines whether the challenged statute is rationally related to the achievement of a legit state interest

v. Strict Scrutiny

1. Method by which courts determine the constitutionality of a law, when a law affects a fundamental right. Under the test, the legislature must have a compelling interest to enact law and measures prescribed by the law must be the lease restrictive means possible to accomplish goal

g. Current incorporations of the bill of rights

i. 1st Am’s establishment clause, fee exercise clause, and protections of speech, press, assembly and petition

ii. 4th Am’s protection against unreasonable search and seizures and the requirement for a warrant based on probable cause; also the exclusionary rule, which prevents the government form using evidence obtained in violation of the 14th Amendment

iii. 5th Am’s prohibition of double jeopardy, protection against self incrimination, and requirement that the gov pay just compensation when it takes private property for public use

iv. 6th Am’s requirements for a speedy and public trial, by an impartial jury, with notice of the charges, the chance to confront an adverse witness and to have compulsory process to obtain favorable witness, and to have assistance of counsel if the sentence involves possible imprisonment

v. 8th Am’s prohibition against excessive bail and cruel and unusual punishment

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Economic Regulation: the Lochner Era….ECONOMIC SUBSTANTIVE DUE PROCESS

XI. Substantive Due Process: Rise, Decline, Revival under 14th am

a. 5th and 14th Am provide that neither the US nor state governments shall deprive any person of “life, liberty or property” without due process of the law

b. Substantive DP- A constitutional safeguard limiting the power of the state, irrespective of how fair its procedures may be; substantive limits placed on the power of the state

c. Asks whether the government has an adequate reason for taking away a person’s life, liberty, or property. In other words, substantive due process looks to whether there is a sufficient justification for the government’s action. Whether ther is such a justification depends very much on the level of scrutiny

i. Rational basis

1. subs dp met if law is rationally related to a legitimate gov purpose

ii. Strict scrutiny

1. used to protect fundamental rights

2. gov will meet subst dp only if it can prove that the law is necessary to achieve a compelling gov purpose

d. DP clause used not to ensure that the government followed proper procedures, but to ensure that laws served an adequate purpose

e. In its first major interp of 14th am, in the Slaughter House Cases, the majority rejected any notion of substantive dp. But the dissenters’ plea for the protection of fundamental values prevailed by the end of the 19th century

f. Lochner Era: Judicial Intervention and Economic Regulation

i. For three decades, court Lochnerized- scrutinizing economic regulations with care and frequently striking them down

ii. Liberty protected by the dp clauses, liberty of K were major preoccupations with laissez faire economy and liberty as “fundamental” and “specific”

iii. However, part that the 14th am protects under substantice due process certain unenumerated rights still stands today

iv. Lochner v. NY 1905 (rise of subs dp as protection for eco and prop rights)

1. Facts: state labor law prohibited employment in bakeries fro more than 60 hours a week or more than 10 hrs a day. Lochner permitted an employee in his bakery to work over 60 hrs in one week

2. Rule: To be a fair, and appropriate use of a state’s police power, an act must have a direct relation, as a means to an end, to an appropriate and legitimate state objective

3. Rule: A law that infringes on freedom in the marketplace and freedom of contract is unconstitutional if it does not bear a reasonable relation to a legitimate governmental purpose

4. Right to K is a liberty of individual protected by 14th

5. Three major principles followed until 1937

a. Freedom of K is a basic right protected as liberty and property rights under the dp. Clause of the 14th amendment

b. Gov could interfere with freedom of K only to serve a valid police purpose: that is to protect the public safety, public health, or public morals

i. States possess a certain police powers relating to the safety, health, morals, and general welfare of public; when a state acts to limit right to labor or K, it is necessary to determine whether rights of state or indiv shall prevail

c. It was the judicial role to carefully scrutinize legislation interfering with freedom of contract to make sure that it served a police purpose

6. 14th am limits state’s exercise of its police power, otherwise state would have unbound power, it is not sufficient to say act relates to public health…it must have a more direct relation, as a means to an end, to an appropriate state goal, before an act can interfere with an individual’s right to K

a. here it is an illegal interference with the rights of individuals

b. strict scrutiny required by said fundamental right

7. Cannot be said that production of healthy bread depends upon the hours that the employees work and that limiting hrs of work has a relationship to public health

v. Note: modern courts move away from lochner era and withdrawn careful scrutiny in most economic areas but has maintained and increased intervention with respect to a variety of non-economic liberties

vi. Read liberty expansively including freedom of contract, and noneconomic proctection interests under the 14th amendment including free speech against states as among fundamental personal rights and liberties, parental autonomy,

vii. Judicial scrutiny of Economic Regulations During Lochner Era

1. Invalidated a considerable number of laws on substantive due process grounds

2. Muller v. Oregon

a. Physical well being of women becomes an object of public interest

3. Coppage v. KS

a. –“yellow dog” K

b. To not allow to be part of labor org violation of dp

c. Have right of personal liberty and K for sale of labor

4. Adair v. US

a. Held unconst under due process clause of 5th am, a federal law barring “yellow dog” K on interstate RR

b. Right of a person to sell his labor same right as purchasing labor

c. Liberty of K, equal for employer and employee

5. Adkins v. Children’s Hosp

a. Liberty of K could not be subjected to greater restriction in the case of women than of men

6. Price Regulations

a. Variety of restraints on laws that interfered with price

7. Restrictions on business entry and other

a. New State ice co v. Libermann

i. Ct invalidated OK law which treated the manufacture of ice like a public utility

ii. Invalidated constraint on competition that curtailed entry into a particular line of business

8. Means-ends scrutiny of health regulations

a. Did recognize the validity of state interest in curtailing business practices that defraud or injure health, criticizing the means rather than the ends of the legislation

b. Weaver v. Palmer Cros.

i. Invalidated total prohibition of use of bedding materials of shoddy

ii. Ct found absolute prohibition of shoddy purely arbitrary: protection of health and against consumer deception didn’t justify so drastic a remedy

iii. Scrutiny more intense here than “mere reasonableness” st

viii. Criticism of Lochner Era

1. The was wrong in protecting freedom of contract as a fundamental right and that it erred in concluding that the government only could interfere with this right to enhance pubic health, public safety, or public morals

2. The decisions were inconsistent

a. Max hrs for women but not min wage laws

3. Degree of judicial activism too high

a. Unelected judges were unduly substituting their values for those of popularly elected legislatures to protect rights that were not expressly stated in the Const

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Modern Era: decline of judicial scrutiny

g. Modern era: decline of judicial scrutiny of economic regulations (503-513)

i. gov’t interest need only be legitimate and the means only need to be rationally related to that legitimate gov’t interest

ii. Abandoning laissez faire philosophy of Lochner era, the Depression created a perception that government economic regulations were essential, FDR being elected to second term: proposed court packing plan and upset Ct invalidated several pieces of New Deal legislation as part of its commitment to laissez-faire philosophy

iii. Since 1937, not one state or federal economic regulation has been rfound unconstitutional as infringing liberty of contract as protected by the due process clauses of the 5th and 14th Amendments

iv. Nebbia v. NY

1. State milk board fixed nine cents as the price to be charged for quart of milk and D sold for less

2. Rule: Upon proper occasion and by appropriate measures, a state may regulate business in any of its aspects, including fixing prices

3. Rule: Price controls that are nondiscriminatory and bear a reasonable relation to a proper legislative purpose are constitutional.

a. A state is free to adopt whatever economic policy may be reasonably deemed to promote the public welfare

4. General rule that use of property and making of K free from gov, but neither are absolute

5. Equally fundamental with private interest is the public’s to regulate it in the common interest

6. 5th and 14th don’t prohibit gov regulation for public welfare, merely guarantee law shall be consistent with DP

7. DP requires law not unreasonable, arbitrary or capricious and that the means selected have a “real and substantial” relation to object sought

8. Ct appeared to question the premises of the Lochner era that the government only could regulate to achieve a police purpose and that the Court needed to review laws aggressively to ensure that thy truly served a police purpose

v. Note: Due process

1. the constitutional mandate requiring the courts to protect and enforce individuals’ rights and liberties consistent with prevailing principles of fairness and justice and prohibiting the federal and state govs from such activities that deprive its citizens of life, liberty or property interest

vi. West Coast Hotel Co. v. Parrish

1. overruled Adkins and upheld a state minimum wage law for women

2. violation of due process alleged by those attacking min wage regulation for women is a deprivation of freedom of K

3. Liberty under Const is necessarily subject to restraints of due process, and regulation which is reasonable in relation to its subject and is adopted in interest of comm. Is due process

4. Public interest is health of women and protection from unscrupulous and overreaching employers

5. Women’s class receives least pay, bargaining power weak, readily victims

6. leg entitled to adopt measures to reduce evils

7. Three themes that carried us through the Lochner era are wiped out

a. Court questions any fundamental right to contract

b. If there is a right to contract, should be examined with a very deferential view

c. Redistribution of wealth; Protecting a weaker party, is a legitimate interest

h. After the New Deal: Minimal Judicial Scrutiny or Judicial Abdication?

i. United States v. Carolene Products

1. Facts: Rejected a due process challenge to federal prohibition of interstate shipment of filled milk

2. Congressional finding that caused undernourishment, adulterated

3. Statute would deny DP which precluded the disproof in judicial proceedings of all facts which would show that a statute depriving the suitor of life, liberty, or property had a rational basis

4. Test: rational basis within the knowledge and experience of the legislators

a. VERY deferential level of review

b. Economic regulations will be upheld as long as they are supported by ANY conceivable rational basis

i. Even if the articulated rationale is no the real reason the law was passed; just needs to be an articulated rationale and that will suffice

5. FOOTNOTE 4- by Justice Stone…

a. Distinguishing cases in which greater judicial scrutiny may be appropriate

b. an attempt to articulate an approach to judicial review after the Lochner Era and to explain why Lochner was wrong

c. Even though there is a deferential review for economic regulation, there are 3 categories when a heightened judicial review is appropriate

i. A law that infringes on fundamental rights, like those under the Bill of Rights

ii. A law that restricts the political process itself and the normal political process won’t cure it

iii. A law that discriminates against discrete and insular minorities (religious, national, or racial minorities)

d. We need to protect and have heightened review in these three categories to help those who can’t fight for themselves in the legislative process

e. Must consider if legislation that constricts political processes, amendments 1-10, is to be subjected to a more exacting judicial scrutiny under the general prohibitions of the 14th amendement

f. Suggests judicial intervention is more appropriate the less political processes may be trusted to even out factional winners and losers over time

g. Courts would generally presume a law constitutional. However, this deference would be replaced by a “more searching judicial inquiry” when it is a law that interferes with individual rights, or a law that restricts the ability of the political process to repeal undesirable legislation, or a law that discriminates against a “discrete and insular minority”

ii. Minimum rationality review

1. Olsen v. Nebraska

a. Upheld law fixing max employment fees

b. Not concerned with wisdom or appropriateness of legislation

c. Only defense is public policy and that is not expressed in Constitution so not used in validity standards

2. Lincoln Federal Labor Union v. Northwestern Iron & Metal

a. Sustained state “right to work” laws

b. Court returned closer and closer to earlier constitutional principle that states have power to legislate against what are found to be injurious practices in their internal commercial and business affairs, so long as their laws don’t run afoul of some specific federal constitutional prohibition or of some valid federal law

iii. Williamson v. Lee Optical Co.

1. Facts: A state law prohibited any person from fitting or duplicating lenses without a prescription from an ophthalmologist or optometrist. It also prohibited the soliciting the sales of frames and the renting of space in retail store to any person purporting to do eye exams

2. Rule: The Due Process Clause will no longer be used to strike down state laws regulating business and industrial conditions because they may be unwise, improvident, or out of harmony with a particular school of though…States are free to regulate economic relations, and the court will not overturn such laws unless there is no conceivable justification for the legislation

3. For protection of abuses of legislature, people must resort to polls, not the courts

4. It is for the legislatures, not the courts, to balance the advantages and disadvantages of the new requirement

5. The day is gone when the Court uses the DPC to strike down state laws regulatory of business and industrial conditions, because they might be unwise, improvident, or out of harmony with a particular school of thought

6. Leg may have concluded prescriptions are essential frequent enough to justify requiring on in every case

7. It cannot be said that the regulation of not allowing advertising had no rational relation to legitimate objective

iv. Ferguson v. Skrupa

1. Ct reversed invalidation of a state statute regulating the business except as an incident to the practice of law

2. SC spoke of its abandonment of the sue of the vague contours of the DPC to nullify laws which a majority of the Court believed to be unwise

3. Ct won’t sit as a super leg. To weigh wisdom of legislation

v. Ct revived substantive due process in area of economic liberty on possible limitations on punitive damage awards in civil cases

1. BMW NA v. Gore- provides for uniform general treatment of similarly situated persons- the essence of the law

a. Award as excessive

vi. Retroactive legislation and revival of substantive due process

1. Eastern Enterprises v. Apfel

a. Invalidated provisions of the Coal Indus. Ret. Ben. Sct that required companies previously employing coal miners to bear portion of health care costs

b. Concerns of due process clause to invalidate economic legistation

c. Although hesitant to subject econ leg to due process scrutiny as a general matter, Ct has given consideration to due pro. Challenges with retroactive effects

d. Change can destroy the reasonable scrutiny and security of property ownership, unprecedented scope, doesn’t serve its purpose

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The Takings Clause and Contracts Clause

XII. The Takings Clause of 5th amendment incorporated as a specific right under 14th am DPC to the states

a. Private property shall not be taken for public use, without just compensation- 5th

i. Both State and fed gov have the power of eminent domain- to take private property when necessary for governmental activities

ii. The takings clause was the first provision of B of R to be applied to the states absorbed into 14th amendments’s due process guarantee

b. Takings clause is about ensuring that the government does not confiscate the property of some to give it to others, also about loss spreading

i. Taking = gov confiscates or physically occupies property

ii. Property = entire group of rights inhering in the citizen’s ownership

iii. Just compensation= measured in terms of loss of the market value of owner

iv. Limit to already existing K

c. Property may not be taken by the states for “private” rather than “public use” (5th am)

d. Therefore, requires

i. Just compensation

ii. Public use

1. expansive definition so virtually any taking will meet the requirement

2. as long as it is an exercise of state’s police power

a. if rational basis test is met

b. gov acts out a reasonable belief that the taking will benefit the public

e. Berman v. Parker

i. It is within the power of legislature to determine that the community should be beautiful as well as healthy, spacieas and clean…If those who govern DC decide that the nation’s capital should be beautiful as well as sanitary, there is nothing in the 5th amendment that stands in the way

f. 2 categories of regulatory taking

i. deprives property owner of all eco beneficial use of property

1. like if gov had physically taken it

ii. Didn’t rob them of all use (Analyze under factors

1. eco effect of prop owner

2. prop expectations from the owner foreseen as their investment opportunity

3. character of the government’s action

g. Kelo v. City of New London

i. Rule: State may not use power to take property of one private party for sole purpose of transferring it to another private party, even if first party is paid just compensation

ii. 5 main points:

1. Public purpose doesn’t mean literally a public use and this has been the standard for quite some time

2. Economic development is a public purpose

3. When the challenged taking is part of an integrated plan, the Court will look at the whole plan and not the piecemeal versions (looking at the whole redevelopment plan to see if it is a public use)

4. Level of review is a rational basis standard

5. There was a rational basis and there wasn’t any convincing evidence that the taking was to directly intended to benefit a private party

iii. City’s exercise of eminent domain power in furtherance of economic development plan satisfied constitutional “public use” requirement, even though city was not planning to open condemned land to use by general public, where plan served public purpose

iv. Court defines “public purpose” broadly….economic development can qualify as public use for domain purposes

v. NO per se rule that bars eco development as public purpose

vi. Ct. examines redevelopment plan

1. when challenge making part of plan

2. if challenging only piece, but you should evaluate as a whole, not parceled out

vii. Level of review the Ct is giving here

1. extremely deferential level of review

2. only need be a rational basis to serve a public purpose

3. similar level of review to subs dp with respect to economic regulation

viii. No convincing evidence that the Taking was to directly benefit a private party

1. if had found that, would have gone other way

2. so long as the government acts out of a reasonable belief that the taking will benefit the public

3. For public use here because the city’s action reasonably believed that its action would create over 1000 new jobs and increase economic growth

ix. The ct.’s authority extends only to determining whether the City’s proposed condemnations are for a “public use” within the meaning of the 5th amendment

1. Plan for public use, looking at issue of economic development

2. Eco. Development, vitalization, doesn’t violate Takings Clause

3. Eco dev- creating jobs for community, etc, so satisfies public use requirement

XIII. The Contracts Clause

a. No state shall pass any law impairing the Obligation of Contracts- Art I, sect 10

b. Explicit constitutional guarantee to contract

c. 2 limitations

i. only applies to existing K

ii. doesn’t apply to federal government, only state gov or local law

1. challenges to federal interference with K must be brought under due process clause where they will receive the deferential rational basis of review

d. History of K Clause

i. Major purpose was to restrain state laws affecting private K

ii. During first part of 19th century Ct used K Clause aggressively to invalidate state and local laws that interfered with rights under existing K

iii. Didn’t use much during Lochner, made superfluous by the Court’s protection of freedom of K under the due process clauses of the 5th and 14th Amendments

iv. The modern era K clause began in 1934 with Blaisdell, so K clause rarely been used to invalidate state and local laws

1. struck down only if there is substantial impairment

2. law fails to serve a significant and legitimate public purpose

3. But government interference with gov K will receive greater scrutiny than its inference with private K because distrust of gov to act in its own self interest

e. Contracts Clause before 1934

i. Active use of K clause to limit ability of state and local gov to interfere with existing K

ii. Limits on K Clause

1. narrowly construe charters from state governments and thereby limit the circumstances in which they could be regarded as contracts limiting state regulation

2. while gov could not impair contractual duties, it could modify the remedies available under a K

3. K clause not absolute. The government could interfere even with existing contracts to achieve a valid police purpose

a. A police power is an exercise of the sovereign right of the government to protect lives, health, morals, comfort and general welfare of the people and is paramount to any rights under contracts between individuals

iii. Fletcher v. Peck

1. The law was barred either by general principles which are common to our free institutions or by the particular provisions

2. unconstitutional for GA to rescind its grant of land, Ct said law violated K clause and also infringed on natural law principles

iv. The protection position of corporations later in the 19th century was due less to any shield supplied by the Court than to legislative unwillingness to impose restraints-reflecting in the laissez faire philosophy of the day

v. Charles River Bridge Case

1. Company’s charter to operate a toll bride didn’t prevent the state from authorizing construction of a competing free bridge

2. Any ambiguity in the terms of a K must be construed in favor of the public

3. certain powers of the state were held to be inalienable

a. Neither K clause not the due process clause has the effect of overriding the power of the State to establish all the regulations that are reasonably necessary to secure the health, safety, good order, comfort, or general welfare of the community; these powers cannot be abdicated nor bargained away, an is inalienable even by express grant

f. K clause in the 1st third of the 20th century

i. SC’s aggressive protection of freedom of K under the due process clauses made the K clause superfluous

ii. Freedom of K protected under due process was even broader than that safeguarded by the K clause

1. K clause only to already existing K

2. DP- existing or future

g. Contracts Clause since 1934

i. Home Building & Loan Ass’n v. Blaisdell

1. Facts: During Great Dep, MIN authorized county courts to extend the redemption period from foreclosure sales

2. Rule: The reservation of the reasonable exercise of the state’s protective power is read into all contracts. A state may affect the obligations between two contracting parties so long as

a. an emergency exists

b. the legislation is addressed to a legitimate end

c. the relief afforded and justified by the emergency could only be of a character appropriate to that emergency

d. the conditions upon which relief is granted do not appear to be unreasonable

e. the legislation is temporary in operation

3. Rule: States can legislatively alter remedies for the collection of debts if the legislation reasonably relates to a public purpose and protects the basic value of creditor claims. (Scrutiny is reasonable relationship to achieve a legitimate gov’t ends.)

4. Prohibition in K clause is not an absolute one, state continues to possess authority to safeguard the vital interests of its people

a. State can interfere if it has a valid police purpose, and it describes the police power broadly enough to include debtor relief, protecting people from foreclosure of their mortages, as a valid governmental objective

b. Emergency measure of limited duration to protect the vital interests of the community.

c. Law was not for mere advantage of particular individuals but for the protection of a basic interest in society

5. The protection of K presupposes a government which views contractual obligations as worthwhile

6. A rational compromise must be found between public needs and private rights, especially when an emergency is found to exist

ii. Note: Ct struck down state acts impairing contractual obligations in the following

1. Exemption of payments on life insurance policies from garnishment

2. Repeal of law protecting purchasers at state-conducted tax sales from attempts by the state to invalidate the transaction because of irregularities

3. Change of procedures for enforcement of payment of benefit assessments pleged as security for municipal improvement district bonds

4. Blaisdell marked the deathknell of the K clause’s viability as a means to assail the validity of state laws

iii. Contemporary Doctrine: K clause revival and obligations

1. 3 part rule:

a. the state law must substantially impair a contractual relationship (if not, then it doesn’t even trigger the contracts clause)

b. but if you have that substantial impairment, Court will ask do you have a legitimate public purpose

c. then, is it reasonably related to a legitimate gov’t interest?

2. US Trust Co. v. NJ

a. A law impairing a state’s own obligations was entitled to less deference than legislation interfering with private contracts

b. Formulated a heightened std of review: a law impairing a state obligation must be “Reasonable and necessary to serve an important public purpose” in order to pass the muster under the contracts clause

c. Why heightened review? “If a State could reduce its financial obligations whenever it wanted to spend the money for what it regarded as an important public purpose, the Contract Clause would provide no protection at all.”

3. NJ and NY port authority compact

a. NJ tried to get out of it

b. Ct said: where a state interference with PRIVATE contracts is challenged courts properly defer to legislative judgment as to the necessity and reasonableness of a particular measure as it is customary in reviewing economic and social regulation

c. BUT greater judicial scrutiny was warranted when a state was charged with impairing its OWN obligations…

i. an impairment here may be constitutional if it is reasonable and necessary to serve an important public purpose

ii. seems indicative of strict scrutiny

d. Not appropriate here bc state’s self interest is at stake….If a state could reduce its financial obligations whenever it wanted to spend the money for what it regarded as important public purpose, the K clause would provide no protection at all

e. Neither reasonable nor necessary to achievement of the plan

4. K Clause revival and private obligations (above too_

a. Allied Structural Steel Co v. Spannaus

i. application of the clause to private rather than state obligations

ii. invalidated the application of Min’s priv pension benefits act

iii. Act’s imposition of a new obligation on the employer violated the clause. Found the impact of the law both substantial and severe emphasizing that the law retroactively modified pmt obligations

h. Partial return to greater deference

i. Court rejected contracts clause attacks on alleged state impairments on private contracts

ii. Energy Reserves Group v. Kansas power & Light

1. 3 step inquiry when state or local gov interferes with existing private K

a. whether the state law has in fact, operated as a substantial impairment of a contractual relationship

b. the state, in justification, must have a significant and legitimate public purpose behind the regulation

c. whether the adjustment of the rights and responsibilities of contracting parties is based upon reasonable conditions and is of a character appropriate to the public purpose justifying the legislation’s adoption

d. similar to the traditional rational basis review

iii. Exxon Corp. v. Eagerton

1. Rejected K clause challenge

2. emphasized that the alleged impairment of the K obligations was merely the incidental by-product of a generally applicable rule of conduct

3. Distinction between laws specifically directed at contractual obligations and those, like here, that merely had the effect of impairing contractual rights

4. designed to advance a broad societal interest

i. Retroactivity and regulatory laws

i. K clause applies only to state, not fed action and retroactive legislation may affect private rights other than those based on a contract

ii. Ex post facto clauses have long been held to apply on crim, not civil, but some additional restraint on retroactivity has been found in due process, particularly challenges to federal legislation

iii. But, like K clause and “takings” barriers, this due process limit may bot help if there is a sufficiently overriding public interest

iv. With respect to federal legislation, the DP retroactivity barrier ahs been found greater when the gov seeks to modify its own K obligations

v. Retroactive leg may offend dp if it is particularly harsh and oppressive but adding that the strong deference accorded legislation in the field of national economic policy is no less applicable when that legislation is applied retroactively

______________________________________________________________________________

Fundamental Right to Privacy: contraception/abortion

XIV. The revival of substantive due process, for noneconomic liberties: Reproduction; Family; Sex; Death (544-629)

a. SC held that some liberties are so important that they are deemed to be fundamental rights and that generally the government cannot infringe upon them unless strict scrutiny is met

i. Gov must decide if liberty sufficiently important to be considered fundamental

1. if not then rational bais test is applied (Carolene Products footnote)

2. if right not fundamental only a legitimate purpose is required for the law to be sustained

ii. If so, strict scrutiny usually used

1. gov must present a compelling interest to justify infringement

2. must also show that the law is necessary to achieve the objective

a. no less restrictive alternatives

b. Most all of these rights have been protected by the Court under the due process clauses of 5th and 14th Amendments and/or equal protection clause of 14th am, some rights protected solely under due process

i. Right to refuse medical care as an aspect of the “liberty” protected under the due process clause

ii. Right to travel as safeguard under equal protection clause

iii. Right to vote under equal protection clause and 15th amendment

c. If right protected under DPC, the constitutional issue is whether the government’s inference is justified by a sufficient purpose

d. If under equal protection, the issue is whether the government’s discrimination as to who can exercise the right is justified by a sufficient purpose

e. Fundamental Rights to privacy: contraception / abortion

f. Antecedents

i. Meyers v. Nebraska- Right to Marry

1. Liberty guaranteed by dp clause to protect basic aspects of family autonomy

a. Freedom from bodily restraint

b. Right to individual K

c. To engage in any of the common occupations of life

d. To acquire useful knowledge

e. To marry, establish a home and bring up children

f. To witship God according to your own conscience

g. Genrellay to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness of free men

2. Parents right to raise kids, right to marry, right to custody, right to keep family together are fundamental rights, (not absolute) (requ. Stric scrut)

3. opportunity to acquire knowledge of other languages and power of parents

4. no adequate justification for restraints on liberty

ii. Pierce v. Society of Sisters – Right to make parenting decisions

1. State can’t require a parent to go public over private for schools

2. Similar to meyer

3. Subjecting law to rigorous scrutiny

4. Liberty of parents and guardians to direct upbringing and education, no general power of the State to standardize kids by forcing public school

iii. Skinner v. Oklahoma- Right to marriage and procreation

1. Invalidated in 1945

2. Besides this case Lochner (1935) to Griswold, no rigorous due process review

3. Usual deference to state police power not warranted here: legislation which involves one of basic civil rights of man

a. marriage and procreation are fundamental

b. discriminations made against groups or types of individuals in violation of the constitutional guaranty of just and equal laws

g. Griswold v. Connecticut- Right to Purchase and Use Contraceptives

i. Facts: Doctor and lawman were prosecuted for advising married persons on the means of preventing conception….found unconstitutional

ii. Rule: The right to mental privacy, although not explicitly stated in the Bill of Rights, is a penumbra, formed by certain other explicit guarantees. As such, it is protected against state regulation which sweeps unnecessarily broad

iii. An argument here like Carolene prod, disproportionate impact on women…reasons from Carolene listed below

1. Area of infringement of enumerated (bor)

2. Discrete insular minorities

3. When there has been a defect in the political process(fairness)

iv. Focusing a right of privacy between a husband and wife

1. Focused not on right to avoid procreation or make other reproductive choices, but focused on need to protect the privacy of the bedroom from intrusion by the police and the ability to control information about contraceptive use

2. List of amendments 1, 3, 4, 5….penumbras…creating various zones of privacy

a. Things that emanate from amendments, but marital relations not met

b. No specific place in bill of rights

c. Trying to say it is not Lochner, in all these places, trying to avoid this era because criticized

v. Hard to distinguish Griswold and Lochner

1. Identified the wrong right

vi. Concurrence by Harlan----most pervading part of opinion

1. the Connecticut statute does not violate the Due Process Clause unless it violates some right assured by the letter or penumbra of the BOR; or violates basic values “implicit in the concept of ordered liberty.”

a. Believes the statute making it a criminal offense for married couples to use contraceptives is an intolerable and unjustifiable invasion of privacy

2. Line of reasoning eventually used in later cases like Roe, etc

3. Arguing that this right infringed by statute is actually protected by substantive due process clause of 14th amendment

a. violates basic values that are implicit in the concept of ordered liberty

4. Judicial self restraint

a. look at our values,

b. history of solid recognition of country’s values,

c. roles of federalism and separation

d. says even textualists still inject their values

e. these values will keep judges from overreaching

5. right to privacy a right to be protected here, subject to strict scrutiny

h. Heightened form of scrutiny – court must be compelling..statute must be compelling

i. The means that the court uses to compel the interest must be strict and narrow

ii. Similar to type of analysis in lochner

i. Ends--- Different constitutional claims require different levels of scrutiny- Carolene Pr.

i. D.P.C.- discriminatory

1. State in enacting that law, had to have legit state interests, only would be upheld if no other alternative means to affectuate this legitimate interest

2. Ends

a. legit

3. Means/end fit

a. Only means/necessary

ii. Due Process- Fundamental right

1. in Lochner era fund right to K, same as now fundamental right to privacy

2. end must be compelling to infringe on const/fund right

3. This is a strict scrutiny----what the ct looks at here as suggested by Harlan analysis

4. Means/end

a. Necessary (narrowly tailored)

iii. Due Process- non fundamental right

1. End- Legitimate

2. Means/ends fit- rationally related

| |Means |Ends |

|Dormant Commerce Clause |Legitimate |Only means necessary |

|(discriminate | | |

|Due Process (not |Legitimate |Rationally related (low |

|fundamental) | |level and law is almost |

| | |always upheld) |

|Due Process |Necessary or narrowly |Compelling (strict |

|(fundamental) |tailored |scrutiny/heightened level)|

iv. Rational basis test

1. used under due process clause or equal protection must meet at least this

2. The law must be rationally related to a legitimate governmental purpose

a. Objective must be legitimate for the government to pursue it

b. Need not be the actual purpose of the litigation, rather any conceivable legitimate purpose is sufficient

3. Challenger has burden of proof…

a. Upheld unless challenger proves that the law does not serve any conceivable legit purpose or that it is not a reasonable way to attain the end

4. Enormously deferential to the government

v. Intermediate scrutiny

1. substantially related to an important governmental purpose

2. objective must be more than reasonable, must regard as important and substantially related to achieving the goal

3. burden on gov

vi. Strict Scrutiny

1. if it is necessary to achieve a compelling government purpose

2. vital, as compelling, also law must be shown to be necessary at means to accomplishing the end

3. Law is the least restrictive or least discriminatory alternative

4. government has burden of proff

5. most intensive, law usually declared unconstitutional

6. used with discrimination to the right of privacy, important in almost all areas involving individual rights and equal protection

j. Eisenstadt Case- p. 556

i. Law prohibited distribution of contraceptives to unmarried people

ii. Right of privacy means anything, it is the right of an individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget kids

iii. Served no legitimate governmental purpose

iv. Decided on Equal Protection grounds and not Due Process… State set up a scheme that treats married and unmarried ppl differently and that is irrational under a rational basis review

v. So, Eisenstadt + Griswold = the right to decide whether to beget a child is a part of the fundamental right of privacy

vi. Equal protection!!!!

1. classification systems

vii. lowest level of review

1. doesn’t reach this std

2. don’t put for rationale for distinction between marriage and unmarried

viii. Extending the scope of Griswold

1. saying beyond intimate marital relations

2. about the choice to have kids

k. Carey v. Population Services Int

i. Struck down NY prohibition of the sale or distrib of contraceptives to minors under 16

ii. Strict scrutiny required for restrictions on access to contraceptives because such access is essential to exercise of the constitutionally protected right of decision of childbearing matters

1. whether or not to have children at the heart

2. Strict scrutiny must be met for the government to justify the law restricting access to contraceptives

3. fundamental right, regulations with this type of burden only by compelling state interests and must be narrowly drawn to express only those interests

iii. Minors have some const rights, but state power over kids greater than over adults

iv. Unpersuaded that the state interest in discouraging sexual activity among young were sufficiently significant

l. Roe v. Wade 1973

i. Roe- TX law to have abortion except by medical advise to

ii. Rule: the right of privacy found in the 14th amendment’s concept of personal liberty and restrictions upon state action is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy

iii. Begins analysis by history, liberty of 14th am, penumbras of Bill of Rights

1. Focus on right of privacy,

a. then cites ct. recognition of personal privacy in amendments 1, 4,5,

b. Found in 14th amendment’s conception of personal liberty and restrictions upon state action (as ct thought)

c. Or in 9th amendments’ reservation of rights to people, is broad enough to encompass a woman’s decision whether or not to terminate pregnancy

d. Did not find privacy, like Griswold, in the penumbra of the bill of rights, but instead finds liberty protected under due process clause

2. only personal rights fundamental

a. right to privacy with marriage, family, child rearing

b. detriment to women of having kids---medical, distress, psychological and physical

c. Right to privacy not absolute, states have some rights

i. Safeguard health

ii. Medical std

iii. Protect potential life

iv. Regulation allowed if “compelling state interest”

3. Strict scrutiny must be used in striking the balance because the right to abortion was a fundamental right…

a. Justified by only a compelling state interest

b. Legislative enactments must be narrowly drawn to express only legitimate state interests at stake

iv. Doctrinal framework

1. When abortion may be protected and when not

2. Gets to overall framework as to when court intervenes

a. whether law impinges on fundamental right protected by the Const under due process clause

i. if not, then go to rational (optical) less strict review

ii. if it is, court uses strict scrutiny

b. whether or not state’s asserted interest is legit

c. Ct looks to whether the fit is sufficient by means used and ends

v. State has right at some point as to the health of mom and potential human

1. Unborn never recognized by law as a person

2. State interest grows as term approaches

a. because abortions became more dangerous than child birth

b. compelling point is at viability

3. Trimester scheme

a. after 1st may regulate

i. before 1st can’t ban and regulate only as other procedures as requiring a licensed physician

b. 2nd trimester

i. gov can’t outlaw abortion,

ii. gov may regulate the abortion procedure in ways that are reasonably related to maternal health

c. 3rd trimester

i. at pt of viability gov may prohibit abortions except if necessary to preserve the life or health of the mother

vi. TX law too broad, violates dp

1. so vindicates right of physician to administer medical treatment according to professional judgment up to the points where important state interests provide compelling justifications for intervention

m. Roe v. Wade Constitutional Values

i. Protected privacy interest

1. roots privacy right it protects in the liberty clause of the 14th amendment due process clause

a. Technique restoring to penumbras drops out

ii. Balancing competing gov. interests

1. Women’s prima facie right to abort her pregnancy can be defeated only by compelling state interests, which are

a. Protecting woman’s health

b. Protecting the potentiality of human life

2. At different points in the trimester scheme those interests become sufficiently compelling to justify state restraints

n. Doe v. Bolton was the companion case to Roe

i. Physician could consider all attendant circumstances in deciding whether an abortion should be performed

ii. Struck down requirements of prior approval by hospital staff and that the attending physician’s judgment is not sufficient

______________________________________________________________________________

Abortion continued

o. Abortion Regulation from Roe to Casey

i. Roe v. Wade- SC held Const protects right for a woman to choose to terminate her pregnancy prior to vioability…that gov may not prohibit abortions prior to viability and that government regulation of abortions had to meet strict scrutiny

ii. Planned Parenthood of Central MO v. Danforth

1. struck down requirement of spousal consent

2. state can’t delegate authority, even to spouse, to prevent abortion during the first trimester

3. struck down another provision requiring an unmarried woman under 18 to obtain the consent of a parent as a prerequisite to obtaining an abortion

iii. Informed Consent requirements: Gov’t can require informed consent for medical procedures and waiting periods

1. Akron v. Akron Center for Reproductive Health (1990): law required the physician to tell the woman about the development of the fetus and to say that the unborn child is a life at the point of conception; Court struck this down b/c the info wasn’t available to inform the patient, but was designed to discourage her from her fundamental right to choose

2. Regulation prohibited doc from performing an abortion until 24 hours after signing a consent form; Court struck down the waiting period b/c this is an unreasonable cost (woman would have to make 2nd trip to the health facility) and harmful (could increase risk of complications by making the woman delay the abortion)

iv. Reporting Requirements

1. Thornburg v. American Coll. Of Obst. & Gyn. (1986): required lots of info about women getting abortions (essentially you could deduce who the women was) and so the Court found the real purpose was to identify who women were who got abortions

v. Bellotti v. Baird

1. SC held that a state may require parental notice and or consent for an unmarried minor’s abortion, but only if it creates an alternative procedure where a minor can obtain an abortion by going before a judge who can approve the abortion by finding that it would be in the minor’s best interest or by concluding that the minor is mature enough to decide for herself (Planned parenthood v. Ashcroft)

vi. Webster v. Reproductive Health Services

1. poised to overturn Roe?

2. strongly criticized Roe

a. attached trimester distinctions to balance the rights of the mother and state’s interest

b. said rigid framework

c. didn’t see why state’s interest only came into play only at the point of viability

i. equally important before

vii. Planned Parenthood v. Casey

1. Rule: A law is unconstitutional as an undue burden on a woman’s right to an abortion before fetal viability, if the law places a substantial obstacle in the path of a woman seeking to exercise her right

2. reaffirmed Roe and held that government may not ban abortions prior to viability

3. Government may regulate abortions before viability so long as it does not place an undue burden on access to abortions

a. Overruled viability distinctions and also the use of strict scrutiny for evaluating government regulation of abortions

b. Viability as the key dividing line during pregnancy; before viability, the government may not prohibit abortion, but after viability, abortions may be prohibited except where necessary to protect the woman’s life or health

4. Essential that the holding should be retained

a. Fundamental rights are protected even though they are not mentioned in the text of the constitution

b. Right to abortion constitutionally protected because importance of the choice and the intrusion in forcing a woman to remain pregnant against her will

c. Fundamental right is women’s bodily integrity: DPC of 14th and controlling word is liberty, acknowledge that judiciary has discretion to define r fund rights

d. Stare decisis and circumstances that justify overruling an earlier precedent

i. Basic decision of Roe was based on constitutional analysis which can’t now repudiate

ii. Shouldn’t be overturned unless it proves unworkable or if new information arises which renders the decision unjustified in the present

5. Undue burden std: Test for evaluating the constitutionality of a state regulation of abortion is whether it places an “undue burden” on access to abortion. The undue burden standard is the appropriate means of reconciling the State’s interest with the woman’s constitutionally protected liberty…needs to be signigicant

a. To promote State’s profound interest in potential life, may make measures to inform that the woman’s choice is informed

b. Upheld a 24 hour waiting period, requirement that the woman be told of the availability of detailed information about the fetus, and the reporting and recording requirements

c. Looks at three things: (1) has there been a right infringed? (2) is that infringement justified? (3) is the interest sufficiently related to the ends it seeks to achieve (more lax than the general strict scrutiny review)

viii. What constitutes undue burden?

1. Stenberg v. Carhart (can’t ban partial birth abortions)

a. Undue burden test

i. Combines whether the right was infringed, is the infringement justified by a sufficient purpose, and are the means sufficiently related to the end sought

1. no level of scrutiny articulated in Casey

ii. Internal tension

1. if its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortionbefore the fetus attains viability

2. to promote state’s profound interest in potential life, throughout pregnancy the state may take measures to ensure that the woman’s choice is informed, measures designed to advance these interests will not be invalidated as long as their purpose is to persuade to choose kid and these measures can’t be an undue burden on the right

iii. Undue burden exists only if a court concludes that a regulation will prevent women from receiving an abortion

ix. Other results pertaining to abortion

1. Casey validated waiting periods

2. Casey also validated informed consent requirements (Akron- not allowed if designed not to inform consent but rather to dissuade her)

3. Reporting and recording requirements generally upheld so long as the information is protected as confidential

4. Many states have regulated how drs can actually perform abortion, used to be unconstitutional, but now that Casey’s undue burden test, the Court more inclined to allow such laws

5. SC repeatedly has held that the government is not constitutionally required to subsidize abortions even if it is paying for childbirth (Harris)

a. Existence of a constitutional right doesn’t create a duty for the government to subsidize the exercise of the right

b. Denial of public funding places a woman in no different position than she would have been had no Medicaid program or no public hospital

XV. Constitutional Protection for sexual activity and sexual orientation

a. Privacy: family relationships

a. Meyer(since this decision, the Court has held that certain aspects of family life are fundamental rights and the strict scrutiny test must be met when looking at state laws

b. Marriage: protected under the Due Process Clause and the Equal Protection Clause

b. Lovers v. Virginia

i. Struck down ban on interracial marriage, relied principally on equal protection

ii. Said also deprive liberty without due process of the law in violation of the DPC of the 14th amendment

c. Zablocki v. Redhail

i. Ft vindicated the right to marry, but via an equal protection route

ii. Shouldn’t need court permission to marry if supporting a kid

iii. Right to marry fundamental

iv. Marshall does place the right to marry firming w/in the zone of privacy and uses strict scrutiny

v. Cannot be upheld unless it is supported by sufficiently important state interests and is closely tailored to effectuate only those interests

d. Turner v. Safley

i. Struck down restrictions on prisoners to marry

ii. Marry is fundamental right

e. Moore v. East Cleveland

i. Invalidated a zoning ordinancy limiting occupation to members of a single fam

ii. Subst due process as grounds for invalidation, suggesting stricter scrutiny than rationality review when city takes such an intrusive regulation of the family

1. must examine the importance of gov interests advanced and the extent to which they are served by the challenged reg

2. Const protects sanctitiy of family, deeply rooted in tradition

f. Belle Terre v. Boraas

i. Found no privacy violation from family oriented zoning when excluding most unrelated groups

ii. Distinguished Belle because it had affected only unrelated individuals

g. Troxel v. Granville

i. Court must accord special weight to parents’ own determination

ii. DPC of 14th protects fundamental right of parents

iii. Violated dp of mother

h. Michael H. v. Gerald D

i. Child born to wife is legitimately child of the marriage

ii. Interest traditionally protected by our society is with unitary family

iii. a fundamental right has to have had societal respect to be fundamental and this adulterous affair has never been respected under the CL and so Michael H.’s rights were never violated

XVI. Privacy of Sexuality

a. Bowers v. Hardwick

i. Right to privacy doesn’t protect a right to engage in private consensual homosexual activity

ii. Court found that there was no connection between family, marriage, or procreation (fundamental values allowed in Griswold, Eisenstadt, and Roe and homosexual activity (so no fundamental right)

iii. Homosexual activities not within these rights

iv. B/c no fundamental right, look to the rational basis test(is this statute rationally related to a legitimate state interest? Yes, it was. The state’s interest at stake is morality.

1. So, the state can legislate on morality.

b. Lawrence v. Texas 2003 ] (overruled Bowers v. Hardwick and didn’t really use the Casey stare decisis four factor test

i. Rule: Texas’s sodomy statute, as applied two adults who engaged in private, consensual sexual conduct, violated their right to liberty under the Due Process Clause.

ii. Holding: states may not prohibit private consensual sexual activities between consenting adults of the same sex

iii. Court never actually claims a fundamental right to engage in homosexual sodomy but suggests it and yet, seems to apply a rational basis test (which isn’t the strict scrutiny applied to fundamental rights)

1. But, if they’re just using rational-basis test, the Court would be much more deferential and wouldn’t actually strike down the law; so the Court must be using a heightened scrutiny

iv. Specially talking a lot about privacy and notions about privacy and some right to privacy is impinged; zone of privacy and includes an autonomy of self which includes freedom of thought, belief, expression, and certain intimate conduct.

v. Liberty under the 14th Amendment is the nature of this right

vi. Bowers: it is ok to overturn it b/c no reliance on it, leads to uncertainty, and doesn’t withstand careful analysis (factors from Casey, but this case doesn’t give as much attention to these factors as Casey did)

1. Criticsm of Bowers existed and so that encouraged the Court to overturn it, BUT, lots of negative response to Roe and yet not overturned in Casey

vii. The Court says this law didn’t just outlaw sodomy, but it demeaned personal relationships that homosexuals have and develop via sexual activity

viii. Tradition:

1. Bowers court overstated the history of criminalization of sodomy by both homosexuals/heterosexual

2. And the last half century’s laws are more important than the ancient law: ALI Model Penal Code

3. Like the Harlan concurrence in Griswold? Traditions are important, but Harlan suggests that the view of tradition should be long-standing/ancient history vs. just recent history

ix. Constitutional protection for all individuals in the most intimate and private aspects of their lives

x. Tradition that the state is not omnipresent in the home

xi. Effects

1. can’t have laws prohibiting private consensual homosexual activity

2. powerful affirmation of a right to privacy

a. safeguard privacy even though it is not enumerated in the Constitution

b. like family autonomy, contraception, and abortion

c. recognizes that sexual activity is a fundamental aspect of personhood and that it is entitled to constitutional protection

d. Most important decision to date recognizing the rights of gays and lesbians to equal dignity and equal treatment under the Constitution

e. Constitutional protection for medical care decisions

f. Broadly, there is a fundamental right to marriage, but narrowly there is a no historical right for same-sex marriage. Under Loving v. Virginia, broad historical reasoning was used in saying that there is a fundamental right to marriage.

c. Right to refuse medical care

i. 4 ways one can hasten death p. 617 (note 2)

1. Suicide when someone is not terminally ill

2. Withdrawal of life support, while one is terminally ill (withdrawal of artificial nutrition and hydration)

3. Physician-assisted suicide when one is terminally ill (terminally sedation might fall here)

4. Active euthanasia by a physician when one is terminally ill (patient is so far gone, that the patient is passive in the process)

ii. Cruzan v. Director, Missouri Dept. of Health

1. competent adults have a constitutional right to refuse medical care

a. protected liberty interest--- battery in past cases

2. Rule: Is there a constitutional right to refuse medical treatment? Yes (but not, according to this case, is there a constitutional right to PAS). Also, not fundamental right just constitutional protected liberty interest.

3. A state may require clear and convincing medical evidence that a person wanted treatment terminated before it is cut off

a. State’s important interest in protecting life and ensuring that a person desired the end of treatment before it is suspended

b. Imposition of heightened evidentiary requ’s here okay

4. The state may prevent family members from terminating treatment for another.

a. The right to end treatment belongs to each individual

b. No automatic ensurance that the view of close family members will necessarily be the same as the patient’s would have been

d. Washington v. Glucksberg 618

i. Rejected the claim that the WA law prohibiting assisted suicide violated a fundamental right protected under the due process clause

ii. Rule: Right to assistance in committing suicide is not a fundamental liberty interest protected by the Due Process clause

iii. Common law has always punished or disapproved of both suicide and attempting suicide

iv. In almost every state assisted suicide is a crime

v. This decision is despite changes in medical technology and notwithstanding an increased emphasis on the importance of end of life decision making

vi. Because not considered a fundamental right, WA law is upheld so long as it met a rational basis test

1. law reasonably served many legitimate interests

a. preservation of life

b. protecting ethics and integrity of medical profession

c. protecting vulnerable groups

d. stopping path to voluntary and even involuntary euthanasia

e. Vacco v. Quill

i. Held NY didn’t violate equal protection clause by prohibiting assisted suicide while permitting patients to refuse lifesaving medical treatment

ii. Everyone treated the same regardless of physical condition, is entitled, if competent, to refuse unwanted lifesaving medical treatment

iii. Distinction between assisted suicide and withdrawing life sustaining treatment

f. Gonzales v. Oregon (before the Court right now, and in the news)

i. Whether the Federal Control Substances act, , can be used to authorized physician-assisted suicide.

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