Constitutional Law – Moffat



Questions to Consider:

i. Should the court have reached the constitutional question?

a) generally, federal judges don’t touch constitutional issues if they don’t have to; they avoid it if they can b/c the constitution is a sacred document, stare decisis and dicta (if it isn’t relevant, its not law)

1) John Marshall, however, had a goal of what he wanted to do, so he stuck with it

b) other avenues Marshall could have taken to avoid the issue:

1) recuse himself – conflict of interest in dealing with presidential commission b/c he is the one who was previously responsible for delivering it

2) commission wasn’t actually delivered – could have made that essential

3) no jurisdiction – could have said the Act authorized appellate jurisdiction and not original (but to get to the constitutional issue in the first place, Marshall mis-read the act – the semi-colon – in such a way to allow it)

a. original vs. appellate

b. exclusive vs. concurrent

i. some cases must go to federal or must go to state, some you can choose – no matter which you choose, the case starts in the original jurisdiction

c. limited vs. general

i. federal courts have limited jurisdiction – only those cases spelled out in Article III

ii. presumption when lawsuit arises that it will go to state court; must prove you have right to be in federal court

4) judicial review

5) discretionary

6) act not unconstitutional

7) exceptions

ii. Was the Act of 1789 unconstitutional? Yes.

a) Marshall interpreted the Art III Exceptions Clause as limiting the power of Congress to expand the Supreme Court’s scope of original jurisdiction (setting the ceiling to its jurisdiction)

1) so b/c the Act allowed Supreme Court original jurisdiction for writ of mandamus, it is unconstitutional

2) Rush, however, disagrees with his interpretation, saying the Exceptions Clause is just the floor, and Congress has the authority to expand Court’s original jurisdiction

b) Marshall is ruling about the constitutionality of his own interpretation of the Act

1) ignores the “exceptions clause” b/c it doesn’t fit into his argument

a. “unless we read it my way, it has no meaning” – wrong (see below)

c) Alternative reading:

1) Article III: Supr Ct has to have original jurisdiction over cases where a state is a party and where ambassadors, etc, are parties – doesn’t say its exclusive

a. so, it could be concurrent w/lower federal courts and still not violate Art III

2) John Marshall is wrong in saying words have to be taken literally

a. look at 1st Amendment … can imply that no ‘unreasonable’ law abridging freedom of speech will be allowed

i. we don’t allow someone to yell ‘fire’ in a crowded theatre … its abridging free speech, but that rule is reasonable

b. its all about interpretation

iii. Can the Supreme Court declare laws unconstitutional?

a) Yes:

1) limits imposed on govt powers are meaningless unless subject to judicial enforcement

a. Const. is the expression of the ‘popular will’ and, therefore, properly controlled the exercise of all govt power, including Congress

2) inherent to judicial role to decide the constitutionality of the laws it applies

3) authority to decide ‘cases’ arising under the constitution implies power to declare unconstitutional laws conflicting with the basic legal charter

4) judges take oath of office and would violate that oath if enforce unconstitutional laws (don’t all other officers of govt take same oath?)

5) Art. VI Supremacy Clause

b) Marshall set up very important points with this case (a case that was very trivial):

1) Congress can not increase federal judicial power

2) gives federal courts power to review executive conduct

3) gives federal courts power to strike down congressional statutes (acts)

4) Constitution is regulatory???

iv. When may judiciary review executive conduct?

a) political questions – discretionary questions up to the President; Court has no business reviewing these decision

b) ministerial questions – judiciary will review when law imposes a duty on people

1. Power and Method of Constitutional Interpretation

a) Marshall: constitution is not legal code, instead “its nature requires that only its great outlines should be marked, its important objects designated … We must never forget that it is a constitution we are expounding … A constitution intended to endure for ages to come and consequently to be adapted to the various crises of human affairs”

b) United States v. Nixon

i. facts: President Nixon claimed executive privilege from turning over taped conversations and other documents in a conspiracy trial against him

ii. Who gets to decide what an executive privilege is?

a) Court said they do in a unanimous decision (Nixon said executive branch should)

iii. Neither the doctrine of separation of powers, nor the need for confidentiality of high level communications, w/out more, can sustain an absolute, unqualified presidential privilege of immunity from judicial process under all circumstances

a) separate powers were not intended to operate with absolute independence

b) a generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial

c) Clinton Case … counsel’s argument was that a sitting president is immune from service of process … Court again said it decides scope of executive privilege’ it will acknowledge when a president is immune

A. Division of Power b/n Executive and Legislature (Inherent President Power)

1. Youngstown Sheet & Tube Co., v. Sawyer

a) facts: during Korean War, Truman ordered the Commerce Department to keep striking steel mills operating to supply arms

i. commerce secretary contended President had power vested in Art II – “executive power vested in the President … he shall take care that the laws be faithfully executed … and shall be Commander in Chief of the Army and Navy”

ii. question of authority; who gets to decide the constitutionality of the order? Court says it will

b) Does the President have inherent executive powers not specifically given by constitution or statute but implied from several clauses?

i. Model #1 – no inherent presidential power

a) Black’s ‘majority’ opinion

b) President may act only if there is express constitutional authority or statutory authority

c) here, seizure of steel mills was unconstitutional b/c constitution doesn’t permit and there is no statute that allows for seizure of private property to stop labor disputes

d) check on the president:

1) Court

2) Congressional act

ii. Model #2 – president has inherent authority unless he interferes with the functioning of or usurps power from another branch

a) Douglas’ concurrence

b) here, this order interferes with Congress, who has spending power

1) seizure of property must be compensated (5th Amend.); President can’t order Congress to pay

2) it would have been OK to make the order if Congress had later backed Truman, but it didn’t

c) check goes to the courts

iii. Model #3 – legislative accountability

a) President may exercise powers not mentioned in the Const. so long as he doesn’t violate a statute or the constitution itself

b) Frankfurter concurrence

1) inherent power exists

a. unless Congress stops the president, he can act

b. check obviously is Congress

c) Jackson concurrence:

1) Three-part test: analysis of presidential power often starts here

a. Most power – president acts pursuant to an express or implied congressional grant

i. possesses his own power and that of Congress

b. middle ground -- President acts in absence of a grant or denial of authority

i. relies only on his own independent powers

c. Least power – president takes measures incompatible with will of Congress

i. relies on his own power minus any Congressional powers

ii. this case would fall here

iv. Model #4 – broad inherent authority

a) President may act unless he violates an explicit constitutional provision

b) gives a lot of power to President b/c Congress cant stop him unless explicitly stated in Constitution

c) may take on a life of its own in rare circumstances

1) if I am president and I invoke the power not explicit in constitution, I could be looked at as abusing my power which is interrupting separation of powers

2) more popular a president, more likely he is to get away with invoking his inherent powers

d) Dissent:

1) implied in Congress’ order to wage war

2) yes, President has inherent power

a. it’s a given; its always been done this way

i. but cannot violate specific constitutional provision

b. precedent set when Roosevelt claimed emergency powers during WWII to seize business (as did other presidents)

c. check is on the Court

3) this view gives the president the most power

c) HYPO

o Congress allocates $$$ for Project X

o President vetoes project

o Congress overrules veto with a 2/3 vote

o President impounds funds… is this constitutional?

i. Model 1: No. there was no power to do this in Constitution or a congressional order giving this power

ii. Model 2: No. funding is Congress’ job and President can’t take it over.

iii. Model 3: No. overruling veto was Congress’ way of saying you cant do this (no overruling and it might be ok)

iv. Model 4: Yes. has the power to do this at his own risk (likely never get in this situation b/c one branch would back off; they want to pick their fights)

B. Congressional Delegation of Power

1. prior history: Non-delegation Doctrine – cannot delegate congressional power to executive branch

a) congress created administrative agencies (as part of executive branch) to handle the daily activities that it takes to run government

i. conflict with separation of powers? each agency has legislative power to make rules, executive power to enforce them and judicial power to adjudicate them

b) out of need, though, now delegations are upheld wherever Congress furnishes an ‘intelligible principle’ that rulemakers are bound to follow

c) Why would Congress give away power?

i. expertise

ii. efficiency

iii. doesn’t have to be accountable

d) Yakus v. United States

i. delegation of power OK as long as:

a) states legislative objective

b) prescribes the method of achieving that objective

c) laid down standards to guide administrative determination of both the occasions for the exercise of the price fixing power and the particular prices to be established

ii. essentials of the legislative function are the determination of the legislative policy and its formulation and promulgation as a defined and binding rule of conduct

iii. Chevron v. Natural Resources Defense Council

a) if Congress has explicitly left a gap for the agency to fill, the agency’s interpretations of its governing statute are valid “unless they are arbitrary, capricious, or manifestly contrary to the statute”

b) if delegation is implicit, agency’s interpretation is valid if “reasonable”

2. Legislative Veto

a) INS v. Chadha

i. facts: House passed a resolution pursuant to a statute, overriding Attorney General’s decision to allow a deportable alien to remain in the U.S.

a) issue: Congress wants to delegate all of their power except what they want to retain in the legislative veto

b) legislative veto :: device which enabled Congress to monitor actions of executive branch and federal agencies; usually was included in the statute

1) enabled one or both houses to veto w/out approval of President

ii. [Burger] legislative veto unconstitutional b/c violated two distinct constitutional requirements: bicameralism (passage by both House and Senate) and presentment (giving bill to president for signature or veto)

a) four instances where one House can act alone: Art. 1, §7

1) House’s power to initiate impeachment

2) Senate’s power to…

a. try impeachment

b. approve presidential appointments

c. ratify treaties

iii. court invalidates the legislative veto b/c:

a) even though Congress originally delegated its authority over deportation cases to the Attorney General, it cannot alter that delegation except through new legislation

b) can’t be a qualified gift: you must give it all away; and then can’t cross into executive power b/c of separation of powers.

1) then we know who is making the decisions; by someone elected by the majority

2) if Congress is dissatisfied with the results of its delegation, it may counteract the problem only by passing a new law removing or restricting the agency’s discretion

c) valid legislation goes through bicameral approval

iv. [White Dissent] legislative veto is necessary as a check on the broad delegations of legislative power

a) although it wasn’t considered by framers, either was delegation

v. What’s really at stake here?

a) Accountability – makes Congress accountable again, like Constitution intended

b) Legislative veto an anti-majoritarian force? when Congress is supposed to be majoritarian

c) analysis of separation of powers cases? text and framers intent vs. functional justification

b) Clinton v. New York

i. facts: Congress passed legislation granting the President the line item veto, but when Clinton exercised it (keeping NY from being relieved of a tax debt), New York challenged it’s constitutionality

a) line item veto :: power to veto portions of enacted laws

b) Clinton was first President to receive this power

ii. line item veto is unconstitutional

a) violates Presentment Clause and it makes President a legislator

b) Senate compromises when it makes bills; if President can just get rid of the work they did in compiling and creating the bill, it takes away Senate’s power; undermines their work

c) Constitution allows President to veto entire bills before they become law (Art I, §7); the line item veto, however, allows the President to cancel only parts of a bill, after it has become law

d) Const. is silent on issue of unilateral presidential action that repeals or amends parts of duly-enacted statutes; court says this should be interpreted as prohibition of such action

iii. [Breyer Dissent] line item veto is not an amendment or repeal of a law; just exercise of Congressionally-authorized power (joined by O’Conner and Scalia)

a) someone must be confused – Scalia is an originalist

iv. policy considerations?

a) Congress attempting to lay the politically-unpopular burden of cutting popular pork-barrel projects on the President, rather than on itself?

b) Congress could pass popular spending they new would be vetoed, and blame it on the President

v. another application of Chadha principle?

C. Foreign Policy

1. traditionally the President is allowed vast, almost unlimited discretion in conducting foreign policy, including war.

2. United States v. Curtiss-Wright Export Corp

a) facts: joint resolution of Congress authorized President to prohibit the sale of arms to Bolivia and Paraguay, which were engaged in armed conflict; the President proclaimed an embargo, ( was indicted for violating its terms

i. unconstitutional delegation of power?

b) in situations involving foreign affairs, Congress may delegate to the President greater lawmaking authority (including power to ban arms sales abroad)

i. powers to declare and wage war, to conclude peace, to make treaties, to maintain diplomatic relations need be vested in the federal government – Constitution delegated this power to the President

ii. thus the President has exclusive power over foreign affairs and international relations; President alone negotiates and speaks for the nation

a) if he is to be an effective power abroad, Congress cannot contradict him

b) only (officially, anyway) limits on presidential power in this context are:

1) Congressional support to declare war

2) Senate consent to sign treaties

iii. the detailing of authority for conducting foreign policy rebuts the assumption that the President has complete control over foreign affairs simply by virtue of being chief executive

c) Court assumed the president’s foreign policy power is greater than his domestic power – why?

i. immediacy – President often has to make decision quickly and cant be asking permission to do everything

ii. international strength persona; need for a single voice

a) “sole organ of the federal government in the field of international relation …”

iii. secrecy and national security

d) Model 4 coming up here? … acting as long as he doesn’t go against constitution … what limits him then? … political process

3. War Powers – term used to describe various Constitution provisions granting the President and Congress the power to maintain and use armies

a) Art. I, §8 – Congress may:

i. declare war

ii. raise and support armies

iii. lay and collect taxes to provide for a common defense

iv. grant Letters of Marque and Reprisal (legalize private piracy and attacks against national enemies)

v. provide and maintain a Navy

vi. make rules for … the land and naval forces

vii. provide for calling forth the militia to execute the laws …, suppress insurrections, and repel invasions

viii. provide for organizing, arming, and disciplining, the militia

ix. suspend the privilege of the Writ of Habeas Corpus during rebellion or invasion

b) Art II, §1 – President

i. shall be Commander in Chief of the Army and Navy of the U.S. and the militias of the states when called into the actual service of the U.S.

ii. take care that the laws be faithfully executed

c) Congress has exclusive power to declare offensive war, though the President may repel sudden attacks w/out waiting for Congressional approval

4. Dames & Moore v. Reagan

a) facts: to release American hostages in Iran, Reagan suspends claims an judgments against Iranian govt

b) executive order OK if:

i. settlement claim is necessary incident to the resolution of a major foreign policy dispute

ii. can conclude that Congress acquiesced in the President’s action

c) here, quoting Youngstown, Rehnquist said “a systematic, unbroken, executive practice long pursued to the knowledge of the Congress and never before questioned … may be treated as a gloss on Executive Power vested in the President”

5. approaches to separation of powers issues:

a) formalist – assumes that Constitution recognizes three kinds of functions – legislative, executive, and judicial – that must be assigned to the corresponding branch

i. issues turn largely on classification of functions

b) functionalist – foundation is in ‘check and balances’ principle;’ can be no rigid division of govt functions

i. each branch may have ‘core’ functions, but issues should be measure based on:

a) maintaining system of checks and balances

b) preventing concentration of excessive power in a single branch

c) protecting individual liberty

d) allowing (subject to a check) a cooperative ebb and flow of power among the branches to promote effective govt

6. War Powers Resolution

a) Allows president to introduce armed forces into hostile situations pursuant to:

i. a declaration of war

ii. specific statutory authorization

iii. national emergency

iv. consult Congress where possible; submit report w/in 48 hours; withdraw after 60 days unless Congress has declared war or grants extension

b) created as reaction to Vietnam War

i. as an attempt by Congress to limit Presidential power (Model #3)

ii. passed over presidential veto

iii. many Presidents just ignore it

iv. allows action followed by a report to Congress

c) Campbell v. Clinton

i. facts: when Clinton used U.S/NATO forces to bomb Yugoslavia, Congress neither authorized nor forbade it, and several Congressmen sued to stop it

a) is it constitutional?

b) can President engage troops in international hostilities w/out a declaration of war?

ii. military action under the War Powers Resolution is nonjusticable, and the President may act w/out Congressional authorization to counteract third parties’ aggression

a) “the conduct of the foreign relations of our govt is committed by the const. to the Executive and Legislative – the political – branches, and the propriety of what may be done in the exercise of this political power is not subject to judicial inquiry or decision” Holtzman v. Singer

D. Impeachment

1. Art II §4 (pg 1560) “… removed from office by impeachment for and conviction of treason, bribery or other high crimes and misdemeanors”

2. Art 1, §2 House has sole power to impeach

3. Art 1, §3 Senate has sole power to try impeachments … 2/3 required to be convicted

4. What are ‘high crime and misdemeanors’?

a) At one end of the spectrum is the view that these are limited to acts that violate the criminal law and that can be deemed a serious threat to society … at the other end the view expresses by Gerald Ford: “impeachable offense is whatever a majority of the house says it is”

i. really the only way we know is through historical examples … if impeachment occurs or president resigns – like Johnson/Nixon

ii. who should decide what one is? history tells us that the people decide …

b) no Court cases addressing issue and none are likely – impeachment and removal process are nonjusticable political questions

5. situations:

a) Johnson

i. Tenure of Office Act – adopted to keep Johnson from firing Lincoln’s cabinet … said such firing would be a “high misdemeanor”

ii. what do you advise president to do?

a) well, if you fire him, you will be impeached

b) could argue act is unconstitutional; principles that firing someone is not an impeachable offense

b) Nixon

i. impeached, then resigned

a) obstruction of justice

b) using govt agencies for political advantages

c) failing to comply w/ subpoenas

ii. best evidence that he committed ‘high crime and misdemeanor’ was that he resigned

c) Clinton

i. perjury, obstructing justice

E. Main themes

1. Constitution doesn’t give us many answers to:

a) judicial review

i. originalism vs nonoriginalism

ii. articulate principles and values, what do you think const. should be doing?

a) do you value checks and balances, federalism, etc… how do you draw boundaries… do you like accountability

b) allocation of power b/n branches

i. whether Congress can restrict Judiciary

ii. who is ultimate arbiter? Congress? Judiciary?

iii. institutional integrity of judiciary

iv. judiciary as antimajoritarian force?

v. is the court performing its proper role in our system of government?

vi. Congress as law-making branch, key to democracy through impeachment powers?

vii. should Congress be able to delegate to exec branch?

viii. Limits to congressional power?

c) inherent powers of President?

i. should pres power be broader in foreign affairs then in domestic?

d) are these questions we’d be better off if we didn’t know the answers?

2. Major Cases: (use to illustrate answers)

a) Marbury

b) Youngstown

c) Curtiss-Wright

d) Dames & Moore

e) Chadha

f) Clinton & Nixon

I. Federalism: Division of Power and the National and State Governments

A. Supremacy of Federal Law

1. necessary and proper clause – national govt also has “power to make all laws that shall be necessary and proper for carrying into execution the foregoing powers and all other powers vested by this Constitution”

a) powers not delegated to the federal government, or prohibited by it to the states, are reserved to the states or to the people … only the state government possesses police power

2. In evaluating acts of Congress, there are always two questions:

a) Does Congress have the authority under the Constitution to legislate?

b) If so, does the law violate another constitutional provision or doctrine, such as by infringing separation of powers or interfering w/ individual liberties?

3. In contrast, when evaluating constitutionality of state law, there is a single question:

a) Does the legislation violate the Constitution?

4. Major Issues:

a) What is the scope of congressional authority?

b) What is Congress’ authority under specific constitutional provisions?

c) Does state sovereignty limit congressional power?

d) What limits, if any, exist on Congress’ ability to delegate legislative power?

B. Scope of Congressional Authority

1. McCulloch v. Maryland

a) facts: state imposed a tax on the national bank, which refused to pay it

b) John Marshall’s opinion considered two major questions:

i. Does congress have power to create national bank?

ii. Is the state tax on the bank constitutional?

c) JM’s arguments:

i. historical practice established the power of Congress to establish the bank … i.e. history of the first bank as authority for the constitutionality of the second

ii. refuted argument that states retain ultimate sovereignty b/c they ratified the Constitution

a) JM contended it was the people that ratified the Const so it is them that are sovereign

1) the Union is emphatically and truly a govt of the people NOT a compact of the states

b) suggestion is that the states don’t have much power

c) he all but reads the states out of the 10th Amendment … states aren’t very sovereign if you accept the idea that the power is in the people

iii. congressional power is very broad

a) “must allow national legislature discretion with respect to means by which the powers it confers are to be carried into execution which will enable it to perform the duties assigned to it in the manner most beneficial to the people”

b) adopted this expansive view BEFORE getting to necessary and proper clause

iv. Necessary and Proper Clause … Congress may choose any means not prohibited by the constitution to carry out its express authority

a) Contrary view is that the clause is a limit to Congress’ power, allowing it to adopt only these laws which are truly necessary

b) JM says necessary = useful or desirable

d) How do we get to incorporating a bank?

i. enumerated powers of Art I

a) “… we must never forget it is the const we are expounding”

ii. express constitutional powers related to $$$ such as to lay taxes and to borrow money

iii. to get that end, we need to incorporate a national bank

a) is that necessary? or just convenient? Logical? Rational?

b) JM just uses N&P Clause as just something that augments his argument

1) “Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, and which are consistent with the letter and spirit of the constitution, are constitutional”

a. can’t be pretextual – how to know? knocking on the door to congressional intent … separation of powers implications that Court can’t take Congress at it’s word

i. Is this an increase in court’s power over congress? Judicial supervision?

2) basically, federal laws must be rational

a. law must be logically related to a legitimate end

iv. is it fair to say JM gratuitously minimized importance of the states … did he have to elevate the people over the states?

e) Can MD tax the bank?

i. No – power to create bank includes the power to preserve it … a tax could greatly impeded bank’s operation ad potentially tax it out of existence

a) To tax is to destroy … slippery slope

b) JM is worried states are out to destroy national govt. … relationship of distrust

f) Crucial aspects of case

i. Emphatically declares federal govt supreme over the states; states don’t have authority to negate federal actions

ii. Expansively defines scope of Congressional power

iii. Limits the ability of states to interfere with federal activities, such as taxes or regulation son the federal govt

C. Commerce Clause and State Sovereignty

1. Art I, §8, … “Congress shall have the power … to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes. …”

a) Three overriding questions the court considers:

i. What is commerce? … is it one stage of business or does it include all aspects of business and even life in the U.S.?

ii. What does among the several states mean? … limited to instances where there is a direct effect on interstate commerce or is any effect on interstate activities sufficient?

iii. Does the 10th Amendment limit Congress? … if Congress is acting w/in the scope of the commerce power, can a law be declared unconstitutional as violating 10th Amendment?

2. Scope of congressional commerce power

a) Gibbons v. Ogden

i. facts: validity of NY license that gave ( monopoly to operate steamboats in NY waters; feds gave ( license to go to those waters.

a) [John Marshall]

ii. Commerce =

a) traffic, navigation, intercourse b/n nations, and parts of nations in all its branches … i.e. all phases of business

iii. Among the several states =

a) three possible definitions:

1) limit Congress to regulating interstate activities; intrastate would have been beyond its power

2) define among as concerning more than one state – Congress could regulate when the commerce has interstate effects, even if the commerce occurs w/in a state

a. purely intrastate commerce, however, is left to the states

3) define among as ‘in the midst of’ – all commerce in the country could be regulated b/c all occurs ‘in the midst’ of the several states

b) Court chose middle definition … requiring line drawing and case-by-case inquiry as to whether a particular activity has interstate effects

iv. 10th Amendment limit?

a) sole check on Congress is changing it through the political process

b) Congress has complete authority to regulate all commerce among the states; when acting under commerce clause authority, Congress may regulate as if state govts didn’t exist

3. Limitations to regulatory power through 1936

a) Champion v. Ames (The Lottery Case)

i. facts: Federal Lottery Act prohibited interstate shipment of lottery tix; challenged on the ground that it exceeded the scope of the commerce clause

ii. power of Congress to regulate commerce among the states is unlimited, is complete in itself, and is subject to no limitations except such as may be found in the Constitution

a) here the basis for regulating intrastate operations is to protect against the widespread pestilence of lotteries and to protect the commerce that concerns all states (that’s ok to do)

b) power to regulate interstate commerce includes the ability to prohibit items from being in interstate commerce

iii. Texas argument:

a) production, so not commerce (( court agrees)

b) doesn’t directly affect commerce (( court agrees)

c) regulate doesn’t mean prohibit (just on the extreme end of regulation) [( sorry, TX]

iv. pretext – Congress can’t regulate morality; this just a way to exclude commodities and activities that were injurious to health, morals, safety, and general welfare

a) Court doesn’t by it

b) John Marshall would probably approve – morality is a legitimate end

c) wherever this might lead, we are not there yet …opposite of slippery slope … “possible abuse of a power is not an argument against its existence”

b) Hammer v. Dagenhart (The Child Labor Case)

i. facts: federal law prohibited shipment in interstate commerce of goods produced in factories that employed children b/n ages of 14-16 for more than 8 hrs a day or 6 days a week

ii. the act in its effect does not regulate transportation among the states, but aims to standardize the ages at which children may be employed in mining and manufacturing w/in the state (pretext?)

a) mere fact that an item is intended for interstate commerce transportation does not make its production subject to federal control under the commerce power

b) the product in this case is harmless (as opposed to, say, lottery tix)

c) court gives another Slippery Slope argument

iii. there is no power vested in Congress to require the states to exercise their police power to prevent possible unfair competition

a) “grant of power to Congress over the subject of interstate commerce was to enable it to regulate such commerce and not to give it authority to control the states in their exercise of the police power over local trade and manufacture”

iv. later overruled by Darby

c) principled distinction b/c Child Labor Case and Lottery Case?

i. or perhaps a reflection of a conservative Court much more willing to defer to morals laws than to economic regulation?

d) Shreveport Case

i. facts: fed said to set railroad rates so that intrastate and interstate texas lines are competitive … wanted to prohibit a railroad from charging a higher rate for interstate services than was charged for similar intrastate service …

a) “RR rates have direct affect on intrastate commerce”

ii. Congress has to foster and protect interstate commerce, even if that means intrastate transactions would be controlled

a) here, the basis for regulating intrastate operations was to prevent obstruction of interstate traffic

e) Schecter Poultry Corp v. United States – 96% of chix on wholesale market from out-of-state; ( bought locally and sold locally; can’t regulate b/c conduct had no direct effect on interstate commerce

i. something can happen w/in a state and still be in commerce

ii. case deals with federal power asserted with respect to product which had come to rest after their interstate transportation (can’t do it)

f) Carter v. Carter Coal Co. – labor provisions are production, not commerce; mining, manufacturing, farming are purely local activities no matter what is done with the product afterward

i. Why? … efficiency

ii. Slippery Slope … if feds take over this power, whats next, and then all of state’s powers will be taken over by federal govt

iii. Case deals with federal power asserted before interstate commerce has begun (can’t do it)

iv. later overruled by Darby

g) Summary of 1887 – 1937 period:

i. adopted philosophy of Dual Federalism – view that federal and state governments are separate sovereigns, that each had separate zones of authority, and that it was the judicial role to protect that states by interpreting and enforcing the constitution to protect the zone of activities reserved to the stets

a) believed strongly in laissez-faire economics

ii. enforces through 3 doctrines:

a) Commerce – narrowly defined to leave zone of power to states; commerce is one stage of business distinct from earlier phases (mining, manufacturing, production, etc)

b) Among the States – restrictively defined so Congress could only regulate when there was substantial or direct effect on interstate commerce (stream of commerce)

1) but never formulated consistent way to distinguish direct from indirect effects

c) Tenth Amendment – court believed this reserved a zone of activities to the states and even federal laws w/in the scope of the commerce clause were unconstitutional if they invaded that zone

4. Demise of State Sovereignty – expansion of commerce power 1936-1992

a) President Roosevelt’s “court packing” plan … add a new justice for every one that was over 70; would have been six more, enabling him to get a majority to hold up his New Deal legislation …

i. 1937, Justice Owen Roberts changed his position on commerce clause legislation that previously had been invalidated: state minimum wage law for women and a federal law regulating labor relations

ii. not clear whether he changed his mind before ‘court packing’ plan or after b/c of political pressure … nevertheless, his change became known as “the switch in time that saved nine”

b) NLRB v. Jones & Laughlin Steel – National Labor Relations Act upheld as well as decision of the labor board finding that the nation’s 4th largest steel producer (with products shipped and sold in interstate commerce) had engaged in unfair labor practices by terminating employees at one of its plants

i. “stoppage of operations would have a most serious (direct) effect upon interstate commerce”

a) “fact that employees … were engaged in production is not determinative”

b) spoke broadly of Congress’ commerce power – power is unlimited and may be exerted to protect interstate commerce no matter what the source of the dangers which threaten it

ii. sets up shifting in meaning of ‘among the states’ to substantial economic effect (as opposed to direct/indirect)

iii. started to reduce zone of power reserved to the states

c) United States v. Darby

a) facts: ( indicted for violation of Fair Labor Standards Act challenged the its regulations as beyond commerce power

1) FLSA – prohibits shipment in interstate commerce of goods produced for interstate commerce by employees whose wages and hours don’t conform to the requirements of the Act

b) regardless of motive and purpose, regulations of commerce which don’t infringe some constitutional prohibition are within plenary power of Commerce Clause

1) just has to be a rational basis for believing there was an effect on commerce

c) Congress could reasonably conclude that substandard labor condition adversely affected interstate commerce by:

1) making interstate commerce an instrument for the spread of substandard labor conditions

2) causing dislocation of interstate commerce through the unfair destruction of businesses adhering to higher labor standards

d) 10th Amendment irrelevant? “power of Congress over interstate commerce can neither be enlarged nor diminished by the exercise or non-exercise of state power … the 10th amendment states but a truism [doesn’t add anything we don’t already know] that all is retained which has not been surrendered.”

1) power over commerce is already surrendered to the feds and since FLSA came within scope of Commerce Clause, 10th Amendment doesn’t affect decision

2) basically, judiciary wont use 10th amendment as basis for invalidating federal laws … sorry people in favor of state sovereignty;

a. essentially destroys notion that certain activities are automatically off-limits to federal regulation

e) overruled both Carter Coal and Dagenhart

d) local activities affecting commerce

i. Wickard v. Filburn

a) facts: Agricultural Adjustment Act, which set a marketing quota for wheat, was upheld even against a farmer who grew a small amount of wheat primarily for himself and a small amount for local sale b/c if many farmers did the same, it would affect the supply of wheat for interstate commerce

b) “even if appellee’s activity be local and though it may not be regarded as commerce, it may still be reached by Congress if it exerts a substantial economic effect on interstate commerce” (no matter how direct or indirect)

c) aggregation principle (cumulative impact doctrine) – ‘trivial by itself but taken together with that of many others similarly situated’ would have devastating consequences

1) if everyone grew excess for themselves, then they bring entire allotment to the market, potentially driving prices down

2) if everyone saved their own excess, they wouldn’t need to buy more, creating excess on the market and driving prices down

ii. summary for commerce clause after 1937

a) no longer did the Court distinguish b/n commerce and other stages of business … Congress could exercise control over all phases

b) no distinction b/n direct and indirect effect … can regulate any activity that taken cumulatively had a [substantial] effect on interstate commerce

1) can regulate purely intrastate activities if there is a rational basis for believing that there is an interstate effect … also if necessary to protect its regulation of interstate activities

c) 10th amendment no longer a limit to congressional power … federal law upheld so long as w/in the scope of Congress’ power, and the commerce clause was interpreted so broadly that seemingly any law would meet this requirement

d) b/n 1937 – 1995 not one federal law was declared unconstitutional as exceeding scope of Congress’ commerce power

e) Civil Rights laws and the Commerce Clause

i. 14th Amendment: “no state shall discriminate” … protects rights of private people to discriminate …Congress thus chose the commerce clause as authority to regulate private behavior

ii. Heart of Atlanta Motel v. United States

a) facts: motel refused to rent rooms to blacks in violation of Civil Rights Act and challenged its validity

b) in evaluating law and its application “only two questions are:

1) whether Congress had rational basis for finding that racial discrimination by motels affected commerce, and

2) if it had such a basis, whether the means it selected to eliminate that evil are reasonable and appropriate”

c) “testimony presents overwhelming evidence that discrimination by hotels and motels impedes interstate travel”

1) fact that Congress is legislating against moral and social wrongs doesn’t detract from the evidence of the disruptive effect that racial discrimination has on interstate travel

2) also doesn’t matter that motel was “of a purely local character” … if interstate commerce suffers, it doesn’t matter how local the operation

iii. Katzenbach v. McClung (Ollie’s Barbecue) – Civil Rights Act also applied to restaurant that refused to serve blacks, even though there were no claims that interstate travelers frequented the place, b/c the restaurant purchased food that had moved in commerce

a) fewer customers a restaurant has, less food it sells and the less it buys; discrimination imposes ‘artificial restriction on the market’ and interferes w/ flow of merchandise; discriminatory situations cause unrest and have a depressant effect on general business

b) cumulative impact … this one place may not affect it, but if everyone does it the effect will be wide-reaching

iv. broad definition of commerce power desirable?

a) Desirable recognition of the need for federal legislation or undesirable abandonment of basic constitutional principles?

b) Complex problems of 20th century necessitate that Congress have authority to act beyond narrow confines of pre-1937 decisions? … Or core principle that feds have limited power with most governance left to states?

1) broad approach leaves virtually nothing beyond reach of Congress …

c) Should judiciary protect interests of the states or is only check on Congress the political process?

v. two more important questions:

a) How can it be that different parts of const. can lead us to two different conclusions?

b) Can an arm of govt do something indirectly that they can’t do directly?

1) apparently yes since they did it

2) means to an end

5. Resurrection of state sovereignty (1990s +)

a) U.S. v. Lopez

i. issue: whether possession of a gun in a school zone was sufficiently related to interstate commerce to justify Gun-Free School Zones Act which made it a crime to possess a gun in a ‘school zone’

ii. answer was no; two fold decision:

a) nature of activity being regulated – where economic activity substantially affects interstate commerce, legislation regulating that activity will be sustained

1) activity being regulated must itself be properly characterized as economic in nature (gun possession isn’t)

2) regulation of the activity must be an essential part of a larger regulation of economic activity

b) relationship to interstate commerce – court’s duty to make an independent evaluation of whether a sufficiently substantial relationship or effect validates the exercise of power (too tenuous a connection in this case)

iii. dissent criticized for abandoning almost 60 years of precedent

iv. Three categories Congress may regulate:

a) use of channels of commerce (Heart of Atlanta; Darby)

b) to protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activity (Shreveport)

c) activities that substantially affect interstate commerce

v. questions unanswered (Chemerinsky):

a) How far can Congress go to protect channels of interstate commerce?

b) What is a substantial affect? ***

c) To what extent will and should the court defer to congressional fact finding to determine whether there is a substantial effect? ***

d) Is a distinction to be drawn between federal laws regulating commercial activities as opposed to noncommercial behavior?

e) Is a distinction to be drawn b/n matters traditionally regulated by the states and those where there is a history of federal involvement?

b) United States v. Morrison

i. facts: rape victim sued attackers under federal law providing victims of gender-motivated violence with civil remedies

ii. no authority to regulate intrastate crimes of violence that are not economic in nature and therefore do not substantially affect interstate commerce

a) goal of Rehnquist court is to re-establish dual federalism … along with 10th Amendment as a judicially enforceable limit on Congress’ power

b) “in those cases where we have sustained federal regulation of interstate activity bases upon substantial effects, the activity has been some sort of economic endeavor”

1) i.e. at a minimum it must be economic in nature

iii. rejects ‘costs of crime’ and ‘national productivity’ arguments b/c would permit Congress to regulate “not only all violent crime, but all activities that might lead to a violent crime, regardless of how tenuously they relate to interstate commerce”

a) if accepted, would allow regulation of any crime as long as its nationwide, aggregate impact has substantial effects on employment, production, transit, or consumption

iv. there are police powers that should be left to the states

v. here, state laws existed, but they wanted help with this problem … why if they want federal help are they not able to accept it when its offered?

a) When can states ask for help? Why cant states consent to shared power?

1) constitution protects people, not states, yet what we are talking here is about state sovereignty…. we don’t see in these cases about how the people fit with national government, just how people relate to states …

b) is court performing proper function in these cases?

| | | | |most important questions with regards to commerce |

| | | | |power… |

| |Commerce |Among the States |Regulate for what? |Zone of activities reserved |Who decides Z.O.A.? |

| | | | |for states? | |

|Gibbons – 1887 |( Navigation; |“affects” |Means/end |virtually none |political process |

| |( all traffic | | | | |

|1887-1937 |Not … |direct/indirect |Morality |bigger circle – includes |Court |

| |(manufacturing |(restrictive) | |those things defined as not | |

| |( production | | |commerce | |

| |( farming | | | | |

| |(narrow) | | | | |

|1937 – 1990s |( Broader definition |“substantial effect”; |still very broad |virtually none (10th |political process |

| | |maybe “economic” | |Amendment irrelevant) | |

|1990s + |( Broad | | |10th Am. tradition |6 think its political |

| |( Substantial effect | | |police power |process |

| |( “economic” | | |local problems | |

c) New York v. United States

i. fed statute: promote availability of disposal sights for low-level radioactive waste and to ensure states in which such waster was generated accepted responsibility for its disposal

a) required that states who failed to meet the federal guidelines would be required to take title to the waste generated and accept liability for any damages caused

1) left two options to states: either regulate according to federal scheme or risk liability by “taking title” – neither of which is constitutional

a. forcing states to accept ownership of radioactive wastes would impermissibly “commandeer” state govt

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

ii. Congress can’t use the states as an administrative arm for implementing regulatory schemes

a) can entice states to voluntarily join in, just cannot force

b) allowing Congress to commandeer state govt would undermine accountability b/c Congress could make a decision, but the states would take the political heat and be held responsible for a decision that was not theirs

iii. this case is significantly different b/c definition of commerce is stable … Rehnquist court was waiting for a case that fit within definition of commerce, but failed under the power of Commerce Clause

d) Printz v. United States

i. facts: fed act which required state law enforcement officers to participate in administration of a gun control scheme until federal system is underway; challenged as an unconstitutional requirement of local assistance

ii. Congress does not have power to command states to participate in a federal regulatory scheme; cannot circumvent the prohibition by conscripting the state’s officers directly

a) well, except for state judges – they have to follow and abide by federal law

iii. Essential Postulate 1 – congress regulates people not states

iv. Why cant Congress do this?

a) separation of powers problem – trying to usurp executive power of president

1) enforcement of federal law is left to executive branch … if Congress makes the states do it, they can be accused of trying to bypass the executive branch

2) power of the President would be subject to reduction if Congress could act as effectively w/out him as w/him by simply requiring state officers to execute its laws

b) Essential Postulate 2 – people need to know who is making the laws so that they can be accountable

1) by forcing state govt to absorb the financial burden of implementing a federal regulatory program, Congress can take credit for solving problems w/out having to ask constituents to pay for the solutions w/ higher federal taxes

a. cant pass over responsibility to state officials

2) [Dissent] says, though, state officials that take brunt of criticism will surely make it known that it was Congress that made the mistake

v. Why is it unconstitutional to enlist the temp help of executive officials if it is OK to impose on state judges to administer federal law

a) compare:

1) if state judges hear fed cases, they have to apply federal laws (supremacy) vs. telling states they must hear these federal cases – like Printz – … is there a difference?

b) Can congress enlist state judges to fed judicial service? Open question … court suggests judges and executive officials are different … and that if Congress wanted to they could ‘commandeer’ judges

1) why this power over judges but not over executive?

2) “early laws at most establish that the Constitution was originally understood to permit imposition of an obligations on state judges to enforce federal prescriptions, insofar as those prescriptions related to matters appropriate to judicial power”

vi. relationship of …

• People ( States

• People ( National Govt

• States ( National Govt ( 10th Amendment

e) Who gains, who loses? What is gained and what is lost? (by Rehnquist standards)

i. Congress

a) Loss:

1) Power – narrower definition (economic)

a. Jones (pg 105) – unanimous –

b. Reno (pg 143) – unanimous –

2) rational basis test (separation of powers, court can’t decide if the legislation is appropriate to the ‘record’)

b) gain:

1) precedent – Rehnquist court hasn’t specifically overruled anything (protecting stare decisis)

ii. States

a) gain

1) extended sovereignty

2) reserved powers (education, family, crim law, etc)

b) loss

1) can’t cooperate if cooperation means ‘coerced’

iii. People

a) Loss

1) not check of congressional power anymore (went to court)

2) majority laws can be overruled by courts

iv. Court

a) gain:

1) legislative review, they decide if the record is adequate; court decides what is narrower under the definition

2) becomes Ultimate Arbiter of Constitution (Marbury Model 3)

f) What difference does a congressional record make? How does its existence affect the court and its analysis?

g) Agree or disagree, both Marshall and Rehnquist courts read necessary and proper clause out of constitution?

6. How to approach a commerce clause question on final

a) Identify which kind of C.C. case it is

i. Traditional (lopez, morrison) – whether or not underlying activity is one of three part test (factual)

ii. Commandeering case (printz, new york) – almost a given that activity is in commerce, but there are structural reasons Congress cant regulate

b) Which case is this most like?

i. There will be similarities in the fact patterns

7. Critical Questions to ask under Commerce Clause:

a) Is there a zone of activity for the states? If yes, how do we define the zone?

b) Who protects the zone? Should we count on court or political process?

c) When is it appropriate for court to overrule laws?

d) Will the Rehnquist court give us more stability regarding the commerce clause? This court strongly supports federalism.

8. Dormant Commerce Clause

a) differences:

i. ordinary commerce clause – federal legislation, is it valid?

ii. preemption – valid fed legislation, but does it preempt?

iii. dormant commerce clause – no federal legislations, state legislation vs. commerce clause

b) How do we know whether a state law is valid under commerce clause

i. Does it discriminate against out of staters?

a) Philadelphia v. New Jersey – cant bring your garbage into our state b/c our landfill is full – discriminates on its face

b) if YES – presumed invalid

c) if NO – presumed valid

ii. What is purpose/effect?

a) Illegitimate – economic protectionism (protect own commercial interest at the expense of another), PER SE INVALID

b) Legitimate – health, environmental,

iii. Balance state and federal interests

a) if federal is greater, then law is unconstitutional

b) if state is greater, then court will look to see if there is a less restrictive alternative (LRA) that doesn’t discriminate

1) Minnesota v. Clover Leaf Creamery (239) – discriminates even-handedly

| |Does the law discriminate? | |

| | |Yes |No | |

|Is law | |Live bait | | |

|valid? |Yes |St. > Fed | | |

| | |Per se |Fed > St. |Imposes undue |

| |No | |Trucks |burden on I.C. |

| | | |mudflaps | |

| | | | | |

| | |Milk | | |

| | |(b/c LRA) | | |

II. Individual Liberties as a Limit on Government Power

A. Intro

1. overlap with previous sections

a) To what extent should the judiciary protect civil liberties and civil rights when doing so means striking down actions of popularly elected officials? (separation of powers)

b) To what extent should individual liberties be applied to state government and how aggressively should they be enforced? (federalism)

2. framers were very reluctant to enumerate extensive liberties; were afraid they would leave something out

3. underlying assumption of 13, 14, 15 Amendments is TRUST

a) before civil war, people trusted states to not abridge their civil liberties

b) reconstruction amendments enacted b/c framers acted under presumption that states couldn’t be trusted to protect individual liberties (especially of the newly freed slaves)

c) 13th = categorical ban on slavery or involuntary servitude

d) 14th

e) 15th = right to vote

B. Application of the Bill of Rights to the States

1. Privileges and Immunities Clause

a) Barron v. Mayor and City Council of Baltimore

i. John Marshall opinion

ii. Issue: whether the 5th Amendment ‘taking clause’ applied to the city

iii. Bill of Rights ONLY a restriction on federal actions, not state and local conduct

a) State constitutions provided for limitations on power for that particular government

b) At the time, this made sense b/c of faith in state constitutions and the shared understanding that the Bill of Rights was meant to apply only to federal gov

b) 14th Amendment

i. §1 privileges and immunities

ii. §2 due process (rights) – where is the right?

iii. §3 equal protection (people) – presupposes a right

c) Privileges and Immunities Clause :: “no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States”

i. suggests unqualified federal constitutional protection or some personal rights, and an intention to overrule Barron

ii. since the Bill of Rights are the most basic privileges or immunities, shouldn’t this provision be read as applying the B.O.R. to the states?

d) Slaughterhouse Cases – said purpose of 13th and 14th Amendments was solely to protect former slaves

i. Removed the privileges or immunities clause as a basis for applying the Bill of Rights to the states or for protecting any rights from state interference

ii. Court listed ‘privileges or immunities’ that would apply, but they had already been enumerated in the Constitution, which meant the clause had no real reason to exist

e) w/out the P&I clause, those who wanted to challenge legislation looked to the 14th Amendment’s Due Process Clause instead

f) Saenz v Roe

i. facts: California paid residents who had lived in the state less than a year lower welfare benefits than it paid other residents

ii. under privileges and immunities clause, a state must provide the same benefits to new residents as it does to other residents

a) constitutionally impermissible for a state to enact durational residency requirements for the purpose of inhibiting the migration by needy persons into the state

b) ‘right to travel’ protects:

1) right of a citizen to enter and leave states

2) right to be treated as a welcome visitor rather than an unfriendly alien when temporarily present in another state

3) the right to be treated like other citizens of a particular state when choosing to become a permanent resident

iii. [Rehnquist dissent]

a) what does right to travel have to do with this?

b) welfare benefits just like tuition subsidies, or right to vote, etc, which have residency requirements …

2. Incorporation Controversy

a) Total incorporation rejected: in interpreting Due Process Clause, Supreme Court has rejected the view that the entire Bill of Rights is incorporated w/in that clause and made applicable to state government

b) Selective Incorporation:

i. denial of certain rights protected under the Bill of Rights would violate Due Process Clause if the right at issue was essential to the concept of ‘ordered liberty’ or necessary to endure ‘fundamental fairness’

a) fundmental rights – implicit in ordered liberty; natural, essential to democracy (above the line)

1) not absolute right; still subject to some govt regulation (no perjury, no slander)

c) Debate centered around 3 issues:

i. history and framers’ intent – both sides argued their interpretation as to the intent of the 14th Amendment

ii. federalism

a) total – state autonomy is not a sufficient reason for tolerating violations of fundamental liberties

b) selective – states on their own are capable of advancing individual rights

iii. appropriate judicial role

a) total – selective would give too much judicial discretion as to what is a fundamental right

b) selective – total would mean more judicial oversight and less room for democracy

|Substantative |Individual, Fundamental Rights |

|Due Process Line |(court protects) |

| |Federalism |

| |(state’s rights; controlled by political process) |

iv. not incorporated:

a) 2nd Amendment right to bear arms

b) 3rd Amendment right to not have soldiers quartered in a person’s home (never has come up, although would likely find that it is incorporated)

c) 5th Amendment right to indictment by a grand jury in criminal cases

d) 7th Amendment right to trial by jury in civil cases

e) 8th Amendment right prohibition of excessive fines

v. incorporation could be criticized on federalism grounds as unduly limiting the states, but there is no reason why fundamental rights should vary depending on level of govt

d) Strict Scrutiny of Fundamental Rights – Court applies strict scrutiny to legislation that it determines has burdened a fundamental right (as opposed to rational basis)

i. Substantative Due Process

a) Is right above the line?

b) Do states have more or less freedom to regulate those rights than does federal govt?

ii. ‘above the line rights’ – fundamental – can be regulated and are protected by the Court

C. Concept of State Action

1. State Action Doctrine

a) provisions guaranteeing individual liberties prohibit the government from violating individuals’ civil rights, but don’t apply to private individuals’ intrusions

b) “State Action” includes acts by any govt officials on any level – federal, state, or local

c) Three Questions

i. Why do have the state action doctrine? What values are we protecting by making private conduct beyond 14th Amendment?

ii. Should private conduct ever be considered state action? When if ever do we want to turn private people into the state?

iii. When is the state’s failure to take action, state action?

d) Civil Rights Cases

i. facts: congress passes law that says it is unconstitutional for private hotels to discriminate on basis of race

ii. Court says 14th Amendment doesn’t apply to individual invasion of individual rights – Congress can’t regulate private conduct

a) What values protected? privacy, states rights, control of property, freedom of association

1) fundamental right that private people are allowed to discriminate

2) trust is again the underling issue; we trust people not to discriminate

b) Is there a difference in nature of the harm when state violates a right as opposed to if a private person interferes with that right?

1) symbolic harm attaches to govt interfering with rights

iii. Civil Rights Act of 1875 – invalid b/c it steps into domain of local jurisprudence, and lays down rules for the conduct of individuals in society towards each other

a) individual doesn’t deprive a man of his right to vote, hold property, buy and sell, etc. … he only interferes with the enjoyment of those rights

b) renders him amenable to punishment

iv. has never been overruled, although regulation of private conduct is achieved through other avenues, as we will see

e) Questions:

i. Can the state be said to authorize all conduct it does not prohibit?

a) b/c state has power to stop private infringement, failure to do so a state decision to permit it?

b) Can’t then any private infringement of constitutional value be a result of govt inaction?

ii. State Action preserves zone of private autonomy?

a) When state action arises, both the freedom of the alleged violator and the freedom of the alleged victim are at stake

b) Should there be a balancing test?

iii. State Action enhances federalism, preserving zone of state sovereignty?

a) but if states aren’t adequately protecting rights from private interference, does concern for state sovereignty justify allowing the violation to go unremedied?

f) Exceptions to state action requirement:

i. 13th amendment forbids people from being or owning slaves;

ii. govt can make laws that require private conduct meet the same standards set in the Constitution

iii. and …

2. Government Function Exception (When do private people become state actors?)

a) :: private entity must comply with the Constitution if it is performing a task that has been traditionally, exclusively done by the government

i. govt should not be able to avoid the Constitution by delegating its tasks to a private actor

ii. some acts are inherently govt in nature; private entity performing them should be limited by Constitution

b) Jackson v. Metropolitan Edison Co.

i. facts: when a state sanctioned private electricity monopoly cut service to a customer, she claims the shut-off was ‘state action’ which violated her due process rights

ii. there is a state action in the exercise by a private entity of powers traditionally exclusively reserved to the state

iii. mere fact that a business is subject to state regulation doesn’t by itself convert its actions into that of the State

a) inquiry must be whether there is a sufficiently close nexus b/n the State and the challenged action of the regulated entity so that the action of the latter may be fairly treated as that of the State itself

iv. ( is not providing a ‘public function,’ there is no obligation that the State provide electricity … long history of private utility companies

a) decline to hold that that all businesses involved with the public interest are state actors in all their actions

c) Management of private property

i. Marsh v. Alabama – ‘company towns’ are subject to constitutional restraints in performing municipal functions can’t prohibit distribution of religious literature

a) running a city is a public function

b) “the more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by the statutory and constitutional rights of those who use it.”

ii. Evans v. Newton – predominant character and purpose of parks are municipal, like fire department or police dept, not like a golf club or social club; cannot discriminate b/c it would imply state approval

a) city can’t avoid desegregation by turning its control over to a private entity

iii. shopping centers:

a) modern equivalent of a town square; public function is providing a gathering place for people and a place to disseminate info … distinguishable from company town?

b) On the other hand, can’t meet Jackson test for public functions – not a task traditionally and exclusively done by the govt

1) private owners generally have the ability to control their business, including exclusion of messages he disagrees w/ or that might interfere w/ business activities

d) Elections

i. Smith v. Allwright – denial of voting rights in primary elections is prohibited by the 14th Amendment even if the state delegates election administration to private parties because primaries are inherently governmental functions

ii. Terry v. Adams – political parties cannot escape antidiscrimination laws for primaries by recasting themselves as private “clubs”

e) Running and Regulating Schools

i. Rendell-Baker v. Kohn

a) no state action when a private school that received almost all of its funding from the government fired a teacher b/c of her speech

b) “state not responsible for private entities’ decisions unless it coerced or significantly encouraged them” Blum v. Yaretsky [nursing home as state actor?]

c) state action?

1) state subsidized? Acts of private contractors don’t become acts of the govt by reason of their significant or even total engagement in performing public contracts;

a. relationship b/n school and teachers is no different b/c state pays tuition

2) regulation? Even if extensive and detailed, doesn’t make state action unless additional nexus

a. various regulations showed little interest in school’s personnel decisions

3) performs public function? whether has been “traditionally the exclusive prerogative of the state”

a. private schools never exclusive to the state

4) symbiotic relationship? Government profited from the act (Burton)

a. school’s fiscal relationship with the state is not different from that of many contractors performing services for the govt

ii. San Francisco Arts & Athletics v. USOC – Congress granted the right to prohibit the use of the word “Olympic,” enjoined petitioner from calling its athletic competition the “Gay Olympic Games;” ruled that sports regulation was not a public function

a) “govt created and controlled corporations are (for many purposes at least) part of the govt itself”

1) here, though the Court said the USOC was a private entity and “the fact that Congress granted it a corporate charter does not render it a govt agent”

2) It’s a question of degree, how involved is the govt?

iii. NCAA v. Tarkanian – government’s own imposition of sanctions may be deemed non-state action if the sanctions were compelled by private parties

a) UNLV sanction hoops coach as per NCAA rule; UNLV was state actor but NCAA was not

b) although fostering and regulating collegiate activity is a ‘critical function,’ by no means is it a traditional, let alone exclusive, state function

iv. Conclusion – Court is unwilling to use public functions exception simply b/c private entity is managing a school or regulating schools or athletic events … b/c have long performed these tasks, they don’t meet Jackson test

|Government Function |

|Yes |No |

|Marsh – co-owned town |Lloyd/LoganValley– shopping centers |

|Evans – park for whites |Jackson – utilities cutoff |

|Terry & Smith –elections |Rendell-Baker – private school |

| |Flagg Bros. – debtor/creditor |

| | |

3. “Involvement” or “Encouragement” Exception (symbiotic relationship, etc.)

a) :: private conduct must comply with the Constitution if government has authorized, encouraged, or facilitated the unconstitutional conduct

b) Shelley v. Kraemer

i. facts: neighbors signed restrictive covenants banning house sales to blacks, but then some violated; when the sales were enjoined by the courts, the black buyers claimed judicial enforcement was “state action”

ii. can’t enforce discriminatory private agreements, b/c enforcement makes it a state action (but can’t proactively stop it either)

a) i.e. can’t stop the sale of a home to a black person when contract is made b/c neighborhood says they don’t want blacks;

b) but can’t tell neighborhood they must let a person live there, either (judge is neutral in this case)

iii. under this logic, however, almost anything can come under state action

a) if a decision by a state court represents state action, then ultimately all private actions must comply with the Constitution

b) i.e anyone who believes his rights to be violated can sue in state court, if the court dismisses b/c state law doesn’t forbid the violation, there is state action sustaining the infringement

c) court has only rarely applied Shelley reasoning for this reason

c) Bell v. Maryland – state criminal trespass law allowing property owners to eject blacks is void b/c states can’t pass laws which assist private individuals’ discrimination

d) Flagg Bros. v. Brooks

i. facts: warehouse sold debtor’s stored furniture under lien sale procedures authorized by New York statute; debtor alleged statute was a state action encouraging property seizures w/out 14th Amendment Due Process

a) debtor isn’t entitled to due process unless warehouse is deemed a state actor

ii. settlement of disputes b/n debtors and creditors is not traditionally an exclusive public function

iii. mere acquiescence in a private action doesn’t convert the action into that of the state

a) New York has not compelled the sale of bailor’s goods, but has merely announced the circumstances under which its courts will not interfere with private sale

iv. authorization is not encouragement or compulsion

e) Peterson v. Greenville

i. facts: ordinance forebade restaurants to seat whites and blacks together; blacks who were denied service staged a sit-in and convicted of trespassing

ii. convictions can’t stand b/c law is discriminatory (doesn’t matter that restaurant would have segregated anyway if law didn’t exist)

iii. courts can’t prosecute people who violate a law that is discriminatory

f) Reitman v. Mulkey

i. facts: CA law repealed an anti-discrimination statute (which, in turn, allowed for discrimination in housing)

a) statute = no discrimination

b) const amendment = “neutral”

ii. encouraging discrimination is state action

a) could find no other purpose of the statute than to authorize private discrimination

b) individuals no longer were making a solely personal choice to discriminate, now they have authority to do so

iii. states can always give more protection than is constitutionally required; just can’t give less

iv. this case, like Shelley, could be interpreted anything as a state action …

a) if any repeal of antidiscrimination law is impermissible encouragement, then isn’t the failure to adopt anti-discrimination laws also encouragement?

b) Isn’t the same true about the failure to adopt laws that prohibit all violations of constitutional rights?

g) Burton v. Wilmington Parking – private restaurant owner could not discriminate where the restaurant was located in a public building owned by a public entity; generally, if state profits from the business, it is a ‘symbiotic relationship’

h) Moose Lodge v. Irvis

i. facts: private club refused to serve drinks to blacks; contends that the state’s alcohol license encourages discrimination

ii. where discrimination is private, the state must have significantly involved itself … in order for it to be prohibited

iii. govt regulation/licensing of a private enterprise isn’t encouragement of their policies without further involvement (even if regulation is extensive)

a) Liquor Control Board played no role in establishing or enforcing the membership or guest policies of the Lodge … no symbiotic relationship

i) Government subsidies

i. Norwood v. Harrison – Mississippi can’t lend textbooks to segregated schools; constitutional obligation to steer clear of giving significant aid to institutions that discriminate

ii. Gilmore v. Montgomery – city can’t permit segregated schools and organizations exclusive use of public parks; “city’s actions significantly enhance the attractiveness of segregated private schools … by enabling them to offer complete athletic programs”

iii. Contrast w/ Rendell-Baker, which said a private school wasn’t state actor even though it received 90 percent of its funds from the state … “acts of such private contractors do not become acts of the govt by reason of their significant or even total engagement in performing public contracts”

a) ***court is most likely to find that govt subsidies are state action when the govt’s purpose is to undermine the protection of constitutional rights (i.e. Norwood and Gilmore were purposely trying to undermine desegregation)

j) tax-exempt organizations

i. cant discriminate b/c they get funding in the form of no taxes

ii. “government can’t avoid constitutional limitations by delegating its functions to private entities, even if the delegation is well-intentioned”

k) Deshaney v. Winnebago County

i. facts: when social worker ignored father’s repeated child-beating, the mother sued the state for failing to protect the child’s 14th Amendment Due Process right

ii. govt need not protect people from private actors, except during involuntary govt custody

a) it was his father who beat him up, a private person … state inaction, failure to protect Joshua, is not state action

iii. state action doctrine intended to prevent state from trampling individual rights, but not to require state to act to protect rights from private harms

l) Conclusion to entanglement:

i. Warren Court expansively defined … then Burger and Rehnquist Court narrowed

ii. Court is most likely to find state action based on entanglement if it can be shown that the govt’s purpose was to undermine protection of rights or if the govt is facilitating private conduct that otherwise would not occur

iii. To find state action based on this exception, there must be some govt action that can be identified as affirmatively authorizing, encouraging or facilitating constitutional violations

|Entanglement, Encouragement, Symbiotic |

|Yes |No |

|Shelley |Blum |

|Burton |Moose |

|Norwood |S.F.A.A. |

|Gilmore |Tarkanian |

|State |Marsh |Shelley |Terry |Burton |

|Acton? | | | | |

|Life Begins at Conception |( No abortion |( Roe avoids the question |( Sets bright line |( What is justifiable? |

| |( Life ( person under |( Casey – “potential life” | |( Destabilizes contraceptive |

| |constitution | | |cases |

| |( To abort, would be murder, | | | |

| |except when justifiable | | | |

|No const. right to have |( Becomes a political decision|( Roe & Casey dissents – |( Stops SDP ‘snowball’ by |( What would stop majority |

|abortion |by the states |rational basis test; leave to |stopping antimajoritan |from taking over all related |

| | |states |justistices from interpreting |decisions? |

| | | |implied rights | |

|Equal Protection / Sex | |( Gender equality |( Transfers issue to Equal |( Classify as E.P and a |

|Discrimination | |( Casey – forcing woman to |Protection |conflict exists b/n level of |

| | |carry pregnancy to term is | |review, instead of strict |

| | |violation of bodily autonomy | |scrutiny for F.R. it would be |

| | |(which men have) | |intermediate scrutiny |

|Religion |( As soon as it gets to court, they would be enforcing a | | |

| |certain religious belief; violates separation of church and | | |

| |state | | |

|Morality |( Public v. Individual |( Roe & Casey suggest that |( Letting it be individual | |

| |morality |private choice is up to the |choice reflect reality | |

| | |point of viability | | |

| | |( Post-viability, the effect | | |

| | |of what court is saying is | | |

| | |that fetus is a child, but | | |

| | |they have yet to come out and | | |

| | |say it | | |

|Balance |Competing interests: | | |

| |( Woman | | |

| |( State & fetus/child father | | |

| |( parents, | | |

| |( medical profession, | | |

| |( husband | | |

| |( Congress | | |

| |Who is most important? | | |

m) Roe v. Wade

i. facts: pregnant woman challenged a Texas law that prohibited abortion except where the life of the mother was in danger from the continuation of the pregnancy

ii. right to privacy encompasses a woman’s decision whether or not to terminate her pregnancy … however, a state may properly assert important interests in safeguarding health, in maintaining medical standards, and in protecting potential life … at some point in pregnancy, these respective interests become sufficiently compelling to sustain regulation of the factors that govern the abortion decision

a) with respect to the interest in the health of the mother, the ‘compelling’ point is at about the end of the first trimester b/c it is then that abortions become more dangerous than childbirth

1) from and after this point, a state may regulate the abortion procedure to the extent that the regulation reasonably relates to the preservation and protection of maternal health

b) with respect to the interest in potential life, compelling point is at viability b/c fetus presumably has the capability of meaningful life outside the mother’s womb (24-28 weeks)

1) court avoids question of life at conception … “the word ‘person’ as used in the 14th Amendment does not include the unborn. Thus, we pass on to other considerations”

a. “when those trained in medicine, philosophy and theology are unable to arrive at a consensus, the judiciary is not in a position to speculate as to the answer”

c) in effect, Court divided pregnancy into trimesters:

1) 1st – govt can’t prohibit abortions and can regulate only as it does other medical procedures

2) 2nd – govt cant outlaw abortion, but can regulate the procedure in ways reasonably related to maternal health

3) 3rd – post-viability, govt may prohibit abortions except of necessary to preserve life or health of the mother

iii. [Rehnquist Dissent] … abortion not a fundamental right … wants a rational basis review … “court’s sweeping invalidation of any restrictions on abortion during the first trimester is impossible to justify under that standard”

iv. [White Dissent] question of abortion should be left to legislative process; this is an “extravagant use of the power of judicial review”

v. criticisms:

a) abortion shouldn’t be protected b/c it is not in the text of the constitution nor intended by the framers

1) defense: other rights concerning family and reproductive autonomy have been protected

b) court gives insufficient weight to state’s interest in protecting fetal life

1) defense:

a. court was right not to decide when life begins

b. law shouldn’t force woman to be incubator against her will

c) court erred in using Due Process instead of Equal Protection; “forced motherhood is sex inequality”

1) defense: what does changing the level of review matter? either the state’s interest is sufficient or it isn’t …

n) Planned Parenthood v. Casey

i. facts: family planning clinic challenged the constitutional validity of a Pennsylvania law placing certain restrictions on a woman’s right to obtain an abortion

ii. Should we overrule Roe?

a) Questions court asks:

1) Is earlier decision unworkable?

2) Could limitation on state power be removed w/out serious inequity to those who have relied upon it?

a. “ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives”

i. gender equality argument … to force a women to take a baby to term is against autonomy, which men have

3) Was there an evolution of legal principles that undermined the doctrinal foundation of the precedents?

4) Has Roe’s premises of fact so far changed in the ensuing two decades as to render its central holding irrelevant or unjustifiable in dealing with the issue?

b) Compare to other cases

1) Lochner overruled by West Coast Hotel … facts of economic life were different from those previously assumed and warranted the repudiation of old law

2) Plessy (“separate but equal”) overruled by Brown … social understanding of the facts (that separate educational facilities were, in fact, inherently unequal) was fundamentally different in 1954 than original decision in 1896

a. These original cases ended up being wrong … they don’t work in our society

c) can’t overrule here b/c it would unnecessarily damage court’s legitimacy … the only reason to overrule here would be intense pressure … Roe is still workable

iii. Roe affirmed

a) Right to Abortion is protected b/c of the importance of the choice and the intrusion in forcing a woman to remain pregnant against her will

b) Family and reproductive autonomy are protected even though they are not in the text of the constitution, not intended by the framers, and not part of tradition state at the most specific level of abstraction

iv. key words: Interest in “potential life”

a) line should be drawn at viability, so that before that time the woman has a right to choose to terminate her pregnancy

1) viability is the time at which there is a realistic possibility of maintaining and nourishing a life outside the womb, so that independent existence of the second life can in reason and all fairness e the object of state protection that now overrides the rights of the woman

2) not saying life begins at viability, just that that is when regulation may begin

v. Court rejects trimester framework, instead the test should be whether a law imposes an undue burden on her choice to get abortion

a) law can’t put a substantial obstacle in the path of a woman seeking an abortion

b) here, 24-hour waiting period OK; requirement of getting detailed info about fetus is OK; reporting and recording requirements also OK;

c) spousal notification requirement is unconstitutional

vi. [Stevens] state’s interest in protecting human life is an indirect interest, supported by humanitarian and practical concerns …

a) state may express and promote its preference … but must respect right to choose and cannot persuade a choice one way or the other

b) here, law requiring materials that are clearly meant to persuade are unconstitutional … requirements that doctor inform about risks is ok … waiting period is not, it is undue burden b/c there is no evidence that such a delay benefits women

vii. [Blackmun] advocates to keep strict scrutiny test …

a) gender equity issues – by restricting right to terminate pregnancy, state conscripts women’s bodies into its service, forcing women to continue gestation, suffer pains of child birth, and provide years of maternal care w/out compensation

b) restrictive abortion laws deprive a woman of basic control over her life

viii. [Scalia dissent] urges court to ‘get out of this area’ and leave questions regarding abortion entirely to the state (make the issue a political question?) … argues for rational basis (as most dissents do)

|CASEY DECISION |

|Undue Burden (easier to regulate) |

|Disadvantages |Advantages |

|( hurts “innocent” people (no concurrent injury against () |( Diversity |

|( stigma [Thomas] |( “equalize playing field” |

|( lowering standards … “Michigan doesn’t have an interest | |

|in maintaining a law school at all, certainly not an elite | |

|one” | |

|( meritocracy | |

|( No stopping point … 25 years? | |

|( Taking race into account creates divide in society | |

o) Adarand Constructors v. Pena

i. facts: subcontractor’s low bid was rejected b/c the federal govt paid extra compensation to contractors who hired minority subcontractors

ii. all racial classifications, even if ‘benign,’ are subject to strict scrutiny

a) necessary to compelling state interest

iii. [Stevens Dissent] distinction b/n invidious discrimination and remedial preferences should be acknowledged; each should be treated differently

p) Grutter v. Bollinger (2003)

i. issue: whether the use of race as a factor in student admissions by the University of Michigan Law School is unlawful … “reaffirms law school’s longstanding commitment to racial and ethnic diversity from groups which have been historically discriminated against …”

ii. [O’Conner] law school has compelling interest in attaining a diverse student body … the school’s educational judgment that such diversity is essential to its educational mission is one to which we defer

a) good faith on the part of a university is presumed absent a showing to the contrary

iii. means chosen to accomplish govt’s asserted purpose must be specifically and narrowly defined to accomplish that purpose

a) goal of attaining a ‘critical mass’ of underrepresented minority students doesn’t transform its program into a quota … just a “plus” factor

b) “law school engages in a highly individualized review of each applicant’s file, giving serious consideration to all the ways an applicant might contribute to a diverse educational environment”

q) Gratz v. Bollinger

i. issue: decide whether the University of Michigan’s use of racial preferences in undergraduate admissions violates E.P.

ii. [Rehnquist] point system which gives 20 to all underrepresented minorities (1/5 of points needed or admission) is not narrowly tailored to achieve the interest in educational diversity

a) current policy does not provide for individualized consideration

b) effectively makes “factor of race decisive for virtually every minimally qualified underrepresented minority applicant”

r) what we know:

i. unconstitutional programs:

a) set-a-side

b) quota

c) points

ii. constitutional: race to be A factor, as long as applicants get individualized review

4. Gender Classifications

a) Early cases

i. 14th amendment doesn’t just apply to race … E.P is centered around analogical reasoning

a) analogical reasoning – comparing one thing to another

b) Spectrum:

1) Top: Race (strict scrutiny)

2) Where does everything else fit in?

3) Bottom: Wealth (rational basis)

ii. Reed v. Reed – administrative preference in favor of men; gender is irrelevant to the ability to administer an estate

a) says it uses rational basis review, but not really … “rational basis with teeth”

iii. Frontiero v. Richardson – permits men in the service to claim wives as automatic dependents, but women have to show that their husbands actually were dependant to qualify for benefits

a) What level of review should be applied? Why is an issue? Are their differences the law should take into account? Court always looks at to determine if person is in suspect class:

1) History … Carolene fn4 (and/or)

2) Immutable characteristics (and/or)

a. Legal burden placed on men

b. Counterpoint: men and women are different

i. Cases: maternity, military (strength), [statutory rape]

3) Political powerlessnes

a. Really? Aren’t they the majority?

b. Observation #1 – Not about the numbers … about being political minority

c. Observation #2 – don’t have to meet all three

4) Whose job is it to protect suspect classes? The court’s, to be an antimajoritan force on the process… to protect the political minority from the majority

b) plurality: Gender classifications should be subject to Strict Scrutiny; no majority so level of review remained uncertain

c) [Ginsberg and O’Conner] don’t want people to be stereotyped … if the purpose of the law is to promote a stereotype, it wont pass constitutional muster

iv. Craig v. Boren

a) facts: Oklahoma statute prohibits sale of “nonintoxicating” 3.2% beer to males under the age of 21 and to females under 18

b) intermediate scrutiny – gender-based classifications must be substantially related to the achievement of an important government interest

1) court is reluctant to make up intermediate scrutiny b/c at this time, there is an equal rights amendment on the table

a. ERA pushes to strict scrutiny?

b. Implicit assumption of ERA: no gender equality under 14th amendment … Slaughterhouse Cases

c) actual purpose – objective of statute is the enhancement of traffic safety … .18% of females and 2% of males in the age group arrested for DUI … disparity is too trivial to form the basis for a gender classifying device

1) Did Oklahoma even intend to increase traffic safety? Law doesn’t prohibit consumption of alcohol; wouldn’t have an effect on whether young men drank and drove b/c their female friends could go buy it for them

2) classification is just based on stereotypical notions about the behavior of young men and women (unconstitutional)

b) United States v. Virginia

i. facts: federal govt challenged Virginia Military Institute male-only admissions policy; state proposed Virginia Women’s Institute for Leadership as remedial plan

ii. state university may not exclude women, even if they offer separate women’s only program, unless they demonstrate an “exceedingly persuasive justification”

a) court says it is applying intermediate, but seems to be applying strict scrutiny

iii. purposes:

a) diversity in high education

1) cases that go through head: Brown, Grutter, Bakke

2) no persuasive evidence that VMI’s male-only admission policy is in furtherance of a state policy of diversity … pretext

3) VWIL is not VMI’s equal

a. Diversity would be ok if it as in entire educational system … this ok for race, too? No.

b. All eight justices in majority support diversity, we just don’t know how they define it

b) ‘citizen soldiers’

1) remedial plan does not afford women an opportunity to experience the rigorous military training for which VMI is famed … generalizations about ‘the way women are’ and what is appropriate for women no longer justify denying opportunities to women whose talent and capacity place them outside the average description

iv. [Rehnquist concurrence] it is not exclusion of women that violated E.P. … it’s the maintenance of an all-male school w/out providing any comparable institution for women … he says its ok to have single-sex school

a) arguing for diversity w/in the system … VA has Male schools, Female schools and Co-ed schools

c) Laws benefiting women

i. Mississippi Univ for Women v. Hogan

a) facts: man denied admission to all-female nursing school

b) intermediate scrutiny steps:

1) is justification “exceedingly persuasive”?

2) important govt objective and that the means employed substantially related to achievement of those objectives?

c) MUW’s female-only policy isn’t remedying for past discrimination, it tends to perpetuate the stereotyped view of nursing as an exclusively woman’s job

1) Supreme Court often invalidates laws benefiting women b/c they are based on stereotypes about their roles in the family and the economy

ii. Califano v. Webster

a) facts: under Social Securities Act female wage earners receive higher old-age benefits than similarly situated males

b) remedying society’s longstanding disparate treatment of women is a legitimate govt interest

1) not ok if statute enacted b/c of:

a. archaic, overbroad generalizations about women

b. typecasting of women’s role in society; i.e. weaker sex, child-rearers, dependants, etc.

c) here, allowing women, who have unfairly been hindered from earning as much as men, to eliminate additional low-earning years form the calculation of their retirement benefits works directly to remedy some part of the effect of past discrimination

1) “deliberately enacted to compensate for particular economic disabilities suffered by women”

5. Sexual Orientation

a) Romer v. Evans

i. facts: Colorado constitutional amendment barring laws that prohibit discrimination against gays was challenged under E.P

ii. CO Supreme Court said “the immediate objective of Amendment 2 is to repeal existing statutes, regulations, ordinances, and policies of state and local entities that barred discrimination based on sexual orientation”

a) Amendment draws from homosexuals, but no others, specific legal protection from the injuries caused by discrimination, and forbids reinstatement of these laws and policies

b) Imposes a special disability upon homosexuals alone; they are forbidden the safeguards that other enjoy or may seek w/out constraint

c) the amendment bears no rational relation to a legitimate govt purpose … only animosity towards homosexuals (per se illegal)

iii. Questions:

a) Purpose? Deny special privileges, or provide E.P

b) Is Sexual orientation a status or conduct

c) What level of review was applied? Rational bassi or rational basis w/ teeth?

d) Is court saying sexual orientation is a suspect class?

1) Political powerlessness

2) Immutable?

3) History?

e) S.O.P issues?

f) Federlaism (court taking away state decision?)

iv. Amendment 2: says state or any of its branches, etc, should enact or enforce … does this include the courts? … is this denying moe’s right to go to court? Because that is denial of E.P. and Due Process

a) Court says moe’s can get constitution changed … something like that

b) Marriage is above the line right; fundamental … necessary to compelling state interests

a) Law forbidding underage marriage – ok

b) Forbid incestial marriage – ok

c) Must pay tax on marriage – no

i. homosexual couple challenges the law, court analyze by:

a) History (yep)

b) Immutability (maybe, if it is, then SS)

c) Political powerlessness (maybe, they have a voice but its still a minority)

ii. reasons for the ban: (Romer [RB/IS, not SS], )

a) protect institution of marriage

b) economics, insurance

c) procreation

d) stabilize families

iii. reasons to overturn: (Plessy, Romer, Lawrence)

a) VMI ? no comparable institution available to them?

c) what is a special right?

i. Analysis:

a) How does it classify people?

b) Does it infringe on a fundamental right?

ii. law that gives right to specific group, even if non suspect

iii. law could pass to protect non-smokers…. but then in Colorado moe’s don’t get this opportunity to get a special law passed for them, that is the denial of E.P. … they are basically disenfranchised from the political process

iv. when there is a hybrid question, what drives the analysis? The highest or lowest standard?

d) Lawrence (from supplement)

i. facts:

ii.

6. Welfare and Education

a) Dandrigde v. Williams – right to receive welfare is not a fundamental right; therefore, a statutory maximum on welfare benefits doesn’t violate E.P.

i.

b) San Antonio School District v. Rodriguez

i. facts: poor and minority school children challenged Texas’ system for financing public education through local taxation which gave more money to students in districts with a higher tax base

ii. right to public education is not a fundamental right; therefore, laws affecting that right are subject only to rational basis review

Review Session: DEC 3, 11 – 1, 190A

Exam: 8:30 a.m. – 4:30 p.m. … in career services …

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