Constitutional Law I – Outline



Constitutional Law I – Outline

I. Federal Judicial Power

a. Power of Judicial Review

i. Marbury v. Madison (1803)

1. Republican v. Federalist factual context re an undelivered judicial commission

a. Court held that it could not constitutionally hear the case as a matter of original jx

i. Thus Act allowing for such jx unconstitutional by means of expansion

2. Implicit that acts of both Congress and the executive are reviewable, and that the Supreme Court is the one to decide if a political question exists

a. Necessity of limits – Congress cannot have the authority to set its own limits

b. Art. II §2 – power to decide cases arising from the Constitution

b. Limits of Federal Judicial Authority (Justiciability)

i. Political Questions Doctrine (focus on subject matter)

1. What is a political question

a. A question invested in the political branches to resolve rather than the judiciary

b. Query whether the doctrine comes from the Constitution itself or rather an exercise of prudential discretion

i. Preservation of political capital

2. Characteristics of a political question

a. Textually demonstrable constitutional commitment of the issue to a coordinate political department

b. Lack of judicially discoverable and manageable standards for resolving the issue

i. Nixon v. USA – not manageable because the word “try” in the context of judicial impeachment has broad meanings

1. Impeachment the only check that the legislature has on the judiciary

ii. Baker v. Carr – Equal Protection standards well-developed thus managable

c. Potential embarrassment - need to “speak with one voice”

d. Issues could produce enforcement problems or other institutional difficulties (i.e. chaos)

i. Luther v. Borden – Congress must necessarily decide what government is established in the state before it can be determined if such government is republican or not (Guaranty Clause)

Spectrum of deference to other branches:

Strict Scrutiny →→→ Intermediate Scrutiny →→→ Rational Basis →→→ Pol. Quest.

↓ ↓ ↓ ↓

Presumption of important & Presumption of No review

Unconstitutionality closely related Constitutionality

ii. Prohibition of Advisory Opinions

1. Art. III §2 requirement of “case” or “controversy”

2. Advisory opinion results when an opinion is issued in the face of lack-of-standing, mootness or non-ripeness

a. Importance of separation of powers

iii. Standing (focus on litigants)

1. Requirements (per Lujan v. Defenders of Wildlife)

a. Injury-in-Fact

i. Must be concrete/particularized and actual/imminent (not abstract)

ii. Otherwise need to use the political process if “generalized grievance”

b. Causation

i. Injury must be traceable to the challenged conduct of the defendant

c. Redressability

i. Dependant on type of relief sought (i.e. damages or injunction)

ii. Must demonstrate that relief sought will have a direct effect on this alleged injury to plaintiff

2. Congress’s power to confer standing

a. Private citizens rights of action

b. Zones of interest of Constitution/statutes

c. Limits on this power

i. Art. III case or controversy requirement

ii. Separation of powers

3. Importance of the characterization of the injury

a. Example of subcontractor

i. Injury as lost K = no standing

ii. Injury as the inability to compete on equal footing = standing

iv. Mootness and Non-Ripeness (focus on timing)

1. Mootness

a. Changed circumstances developing after initiation of lawsuit have ended the controversy (i.e. settlement, death, change in law)

i. Actual controversy must be before the court at all times

2. Ripeness

a. Prevent premature adjudication; dispute too remote or speculative in that not confrontation yet (no injury-in-fact yet)

3. Exceptions

a. Capable of repetition yet evading review (i.e. pregnancy and abortion)

b. Voluntary cessation of alleged behavior by defendant (because defendant is free to resume the behavior)

c. Supreme Court Review of State Court Judgments

i. Martin v. Hunter’s Lessee – established the legitimacy of Supreme Court Review of state court judgments (both civil and criminal)

1. Uniformity and final word/last resort

2. Affirmation of the constitutionality of §25 of Judiciary Act

d. Political Restraints on the Federal Courts

i. Weapons of Legislative and Executive outside Art. III

1. Constitutional amendments

2. Impeachment of Justices

3. Congress to determine size and timing of S. Ct.

4. Selection process of justices

5. Executive enforcement

ii. Article III weapons

1. Congressional discretion because of authority to create inferior courts and define the appellate jx of such courts (Exceptions Clause)

a. Motives of legislature not questioned (Ex Parte McCardle)

iii. Limit on Congress’s Exception Power

1. Congress may not interfere with essential/core functions of the S.Ct. (absolute minimum is articulated, i.e. admiralty)

2. Bill of Rights

3. Cannot allow dismissed cases to be re-opened

4. Cannot restrict jx in attempt to dictate substantial outcomes

5. Cannot violate other constitutional provisions

II. Powers of Congress

a. Basic Framework: McCulloch v. Maryland

i. Art. I §1 “All legislative powers herein granted shall be vested in a Congress” – enumerated powers

1. All residuary powers left to the states

2. Ultimate sovereign as the people as a whole, not the states

a. Authority to charter a national bank as an implied right to choose means/delegate with discretion

i. Expanded the scope of Congressional authority

1. Republican Concern – tenuosness of the “house that jack built”

b. Justified based upon the “Necessary and Proper Clause” which gives Congress power rather than limits it (Art. I §8)

i. Necessary meaning desirable, not essential

1. Example – establishing a post office

ii. Thus lesser role of courts in policing the boundaries of Congress’s judgment

ii. Importance of national supremacy – power to create entails power to preserve

iii. Constitutional interpretations

1. structural (government)

2. textual (constitution)

3. historical understandings

4. originalism (intent of the framers)

5. evolution of understandings (living constitution/broad)

b. Commerce Power (Art. I §8)

i. Pre-1995 Understanding

1. Pre-New Deal

a. Laissez-faire mentality and judicially unmanageable standards (i.e. formalistic distinctions such as manufacturing v. commercial intercourse and indirect v. direct)

i. Change triggered with the switch in time that saved nine

2. Post-New Deal

a. Wickard v. Filburn – aggregation principle regarding regulation of wheat grown for home consumption

i. Look at all similarly situated farmers and determine if a substantial effect of interstate commerce exists

ii. Rational basis for finding a substantial effect (quite deferential)

b. Heart of Atlanta Motel – evaluation of the racial discrimination of private accommodations providers

i. Moral ends are acceptable uses of commerce clause power

ii. Discouragement of interstate travel and dampening effect on movement as a rational basis for concluding that there is a substantial effect

1. Still extremely deferential (essentially treating commerce power as a political question)

ii. Contemporary Understanding

1. United States v. Lopez, 1995 – Gun Free School Zone Act

a. Permissible arenas involving commerce power

i. Use of the channels of interstate commerce

1. RR, planes, telecommunications

ii. Instrumentalities of, or persons of things in interstate commerce

1. RR safety, planes

iii. Activities that substantially affect interstate commerce (actual effect)

1. Economic or Commercial in nature

a. Viewed in the aggregate

b. If not econ/comm., view as individual instance

2. Jurisdictional Element

a. Limiting language regarding a nexus

3. Congressional findings

a. Regarding the effects upon interstate commerce

4. Areas of historical state sovereignty

a. Such as crime and education

5. Congress has a rational basis in exercising what is necessary and proper

a. Per Gonzales v. Raich

b. Essential part of a larger regulation of economic activity in which the regulatory scheme could be undercut unless the intrastate and non-economic activity were regulated

2. Post-Lopez

a. U S v. Morrison – Violence Against Women Act

i. Failed the “substantial effects” test because connection between such violence and interstate travel is too tenuous

ii. Such limitations on Congress as a major shift

b. Gonzales v. Raich – Challenge of CSA application re: Compassionate Use Act (not commerce)

i. Must look at Congress’s comprehensive scheme and determine if rationale basis is had for the exercise of what is necessary and proper to regulate controlled substances

1. necessary and proper to regulate the channel by regulating possession/use

c. Spending Power (Art. I §8)

i. Most significant power – Congressional power to provide for the general welfare of the USA

1. Congress may not coercively regulate for the general welfare (would undermine the whole concept of enumerated and limited powers)

ii. Conditional spending requirements (South Dakota v. Dole)

1. Spending must be in furtherance of the general welfare

a. Textual requirement

2. Clear statement of the obligation and its terms

a. Nature of a contract

3. Must be germane/related to the federal interest

a. Rather loose standard (O’Connor disagrees)

4. Cannot induce unconstitutional action by states

a. Congress may, however, achieve objectives indirectly that it could not achieve directly, as long as the state enters into agreement voluntarily

5. Cannot be coercion (allusion to this factor)

a. Importance of voluntary nature of state’s agreement

b. Factors to evaluate include percentage of funds being withheld and historical factors

i. Dole case - 5% a valid withholding

d. Treaty Power

i. Missouri v. Holland – Congress enacted a law to enforce a US-UK treaty regarding migratory birds

1. Necessary and Proper for Congress to enact law to carry into execution powers vested by the Constitution in the government

a. Here the power is Constitutionally vested in the president to make treaties

b. Treaties as the law of the land and prevail over all conflicting state law (conflict with federal law – last in time controls)

ii. Thus may use such treaty power to make legislation it would otherwise not have the power to enact

1. Such power structurally augments Congress’s other powers

2. Congress still always bound by the constraints of the Constitution

a. Treaties as the law of the land and prevail over conflicting state law

b. If conflicting federal law then last in time controls (first attempt to give effect to both)

e. Power Conferred by Fourteenth Amendment, Section 5

i. Section 5 as the enforcement mechanism for other sections such as Equal Protection of §1 (mini necessary and proper clause)

1. US v. Morrison – federal civil remedy in Violence Against Women Act allowing victim to sue alleged perpetrator – exceeds Congress’s §5 power ↓

2. Required standard of “congruence and proportionality” between the injury to be prevented or remedied and the means adopted to that end not met

a. Congress under 14 Amendment authority may regulate only state and local governments, not private conduct

f. State Sovereignty-based Limits on Congress’s Legislative Authority

i. Tenth Amendment and the structural principles it presumes

1. New York v. US – low level radioactive nuclear waste policy compromise between officials challenged by N.Y.

a. Falls with Commerce Clause power via “substantial effects” test, and is an economic activity thus Congress could directly regulate the issue overall

i. However, Congress cannot regulate the State’s regulation of interstate commerce

1. incentives and encouragement ok (importance of choice)

ii. Officials cannot waive away federalist principles of sovereignty

1. Structural divisions of authority that are fundamental and will in the long run preserve liberty

b. “Commandeering” not allowed

i. Congress cannot directly compel a state to do something/administer a federal regulation

1. Importance of political accountability: if federal government can command a state, then the state bears the political costs without choice

c. Not commandeering if Congress is subjecting states to “generally applicable” laws (both gov’t and private individuals)

2. Printz v. US - Anti-commandeering policy applies also to:

a. Local governments as well as to states, and to

b. Executive authority

i. Cannot conscript officers to enforce/administer a scheme

1. permissible to make a recommendation to state legislature

a. use of concurrent authority

ii. Distinguish prohibitions of conduct from affirmative mandates

ii. State Sovereign Immunity and the Eleventh Amendment

1. Sovereign immunity of the states via the 11A, however such immunity may be abrogated by 14A §5 power

a. i.e. Americans with Disabilities Act lawsuits

III. Structural Limits on State Power

a. Dormant Commerce Clause

i. In the wake of Congressional silence, states cannot regulate in a manner that discriminates against or unduly burdens interstate commerce

1. Core purpose to prevent protectionism

2. Only instance where Congress can overturn the Supreme Court by speaking to the issue (thus no longer silent)

3. Scope of dormant commerce clause same as regular commerce clause (channels, instrumentalities, substantial effect)

Congressional Silence

↓

Does the regulation discriminate against interstate commerce?

↓ ↓

Yes No

↓ ↓

Rigorous means-ends scrutiny Determine if undue burden on inter. comm.

↓ ↓

Yes, unconstitutional No, fine

ii. Facial Discrimination Against Interstate Commerce

1. If so, then rigorous means-ends scrutiny is required to “smoke-out” the discrimination (Philadelphia v. New Jersey re prohibition of waste)

a. Ends must be legitimate

i. May determine via a political cost-benefits analysis

b. Means must be the only available

i. Must be no non-discriminatory alternatives

2. Rigorous scrutiny also applies to discrimination by local governments as against both interstate and intrastate commerce (because intrastate commerce is still being advantaged in relation to interstate commerce) (Dean Milk v. Madison)

iii. Discrimination Against Interstate Commerce in Purpose or Effect

1. Facially Neutral Laws

a. Price floor for milk had the practical effect of protecting in-state dairy farmers and disadvantaging out-of-state farmers (Baldwin v. G.A.F. Seelig)

b. Labeling requirement had the practical effect of incurring extra costs on out-of-state apple producers thus causing their loss of competitive advantage (Hunt v. Washington Apple Comm’n)

iv. “Undue Burdens” on Interstate Commerce

1. Burden on interstate commerce must be clearly excessive in relation to the law’s supposed benefits

a. Presumptive constitutionality, thus more deferential

2. Pike balancing of benefits and burdens (determine if the burden on interstate commerce outweighs the benefit to the regulating state)

a. Easy analysis if the benefit is illusory (Kassel v. Consolidated Freeways)

i. More difficult case involves value judgment which is usually entrusted to legislators

3. Extraterritoriality legislation as an undue burden on interstate commerce

v. Exceptions to Dormant Commerce Clause Review

1. Congressional Authorization

a. Allows states to have total discretion

b. Query whether authorizing act is within Congress’s enumerated powers (i.e. commerce clause)

2. Market Participation

a. Applies when a state or locality is a buyer or seller rather than a regulator

b. Regulating/governing outside of the market in which the state is participating is not permissible – distinguish sale of timber from the processing of timber (South Central Timber)

b. Privileges and Immunities Clause of Article IV, §2

i. Part of a bundle of sections involving comity based on the importance of the unity of one nation/interstate harmony

1. Guarantees no substantive rights; focus on equality

2. prohibits presumptive discrimination based on state citizenship

a. Out-of-State citizens do not have political representation

b. Not an absolute prohibition (okay if substantial reason and close relation had)

c. Overlap with dormant commerce clause and equal protection clause, but

i. No exceptions to p&i (i.e. no market participation doctrine)

ii. Only individual citizens may challenge; not corporations not aliens

ii. Test

1. Discrimination on its face to out-of-state residents

2. Does the regulation/law burden one of the privileges and immunities protected

a. Standard: only with respect to those “privileges & immunities” bearing upon the vitality of the nation as a single entity must the state treat all citizens, resident and non-resident, equally

i. i.e. livelihood/pursing a common calling

ii. License fee for elk hunting not protected

3. Is there a “substantial reason” for the difference in treatment

a. More than a legitimate interest

b. i.e. taxation in state as a subsidy; education as a portable benefit (thus i in ensuring true resident)

4. Does the discrimination bear a “close relation” to the asserted interest

a. Intermediate review

i. Determine if the nonresident constitutes a particular source of the evil at which the statute is aimed (United Building v. Camden)

b. Look to available alternatives/less restrictive means

c. Preemption – When federal law and state law conflicts, state law is preempted (made null/void) to the extent of the conflict (Supremacy Clause); Statutory interpretation based on Congressional intent

i. Presumption against preemption principle when area is one which states have traditionally regulated

ii. Express

1. Preemption by statement or by savings clause (articulating what is Not preempted)

iii. Implied

1. Conflict

a. Impossibility

i. Where it would be impossible to comply with both the federal and state regulations

b. Frustration of Purpose

i. Where Congress has implicitly stated its purpose and law in question would be an obstacle to the accomplishment of Congress’s purpose

1. Sprietsma v. Mercury Marine – Coast Guard’s silence on the matter demonstrated the purpose to be a lack of the need to interfere, not to ensure the absence of regulation at all (thus no preemption)

2. Field

a. Congress has regulated to such an extent that one may infer the intent to leave no room for states to supplement or complement

IV. Executive Authority and the Separation of Powers

a. Separation of powers to avoid the abuse of powers

i. Checks and balances involving branch intermingling and necessary coordination

ii. Executive power to enforce and execute laws vested in the president

1. Inherent authority exists beyond the Art. II enumerations?

a. Absence of qualification on powers

2. Commander-in-Chief, Recommendations, Repreive and Pardon, Make Treaties with Senate Approval, Nominations and Appointments

b. Presidential Encroachment on Legislative Powers

i. Executive Authority to Make National Domestic Policy

1. Youngstown Steel Seizure – unconstitutional presidential executive order to seize steel mills based on national emergency because of the Korean conflict

2. Jackson’s 3 categories of Presidential Inherent Authority (formalistic)

a. Acts with the authorization of Congress

i. Only an issue if the federal government as an undivided whole lacks power

ii. Presidential and Congressional power combined

iii. 99% of all presidential acts fall into this category

1. presumption of validity

b. Zone of Twilight with concurrent authority

i. Murky area of fact and case-specific situations involving Congressional silence

ii. 1%

c. Acts against the express or implied will of Congress

i. Only permissible when Congress does not actually have the power to act upon this subject (i.e. unlawful interference with Constitutional power)

1. Such situations rarely occur

ii. Steel seizure executive order falls into this category

ii. Executive Authority Over Foreign and Military Affairs

1. Generally more deference to executive authority and court is more willing to recognize inherent presidential power

2. Dames & Moore v. Regan – Executive agreement to end the Iran hostage crisis upheld

a. No statute addressing the third provision regarding judicial mediation thus analyzed as within the Zone of Twilight

i. Although Jackson’s categories actually part of a more complex spectrum

ii. Court ultimately infers Congressional authorization for the provision

c. Executive Discretion in Times of War or Terror

i. Allocation of war powers

1. President as Commander-in-Chief

2. Congress to declare war and to appropriate (raise and support, supply and maintain armies)

ii. Pre-Sept. 11th

1. Ex Parte Milligan – Civil War over with civilian courts open and functioning thus use of military tribunal to try US citizen non-soldier as unconstitutional

2. Ex Parte Quirin – Military commission appropriate because of law of war issues pertaining to status as an “enemy belligerent”

3. Johnson v. Eisentrager – No extraterritoriality jurisdiction

iii. Responses to Sept. 11th

1. Congresses joint resolution of express authorization for the use of military force (AUMF)

a. Presidential executive order for military commissions to try non-US citizen terrorists

2. Rasul v. Bush – Habeas Corpus jurisdiction is had over Guantanamo Bay detainees

a. Custodial power sufficient and special circumstances of Cuba

3. Hamdi v. Rumsfeld – US citizen detained in Guantanamo, designated as an “enemy combatant” and transferred to Virginia

a. Authority to detain enemy combatants had via express authorization via AUMF (plurality opinion)

b. Process that is due (so long as writ not suspended by Congress)

i. Notice of charges and fair opportunity to rebut them; and

ii. Quasi-judicial hearing

iii. Battlefield captures are not afforded this process

d. Congressional Encroachment on Executive Powers

i. Non-delegation Doctrine

1. Congress commonly delegates broadly to the executive branch and to executive agencies → at what point does such delegation violate the separation of powers doctrine?

2. Legal standard (Whitman v. American Trucking Ass’n)

a. Law must set out an “intelligible principle” by which the agency can regulate

i. The greater the power delegated, the more specificity required

ii. But very low standard and easy to overcome

ii. Legislative Veto

1. Legislative veto as a Congressional reservation of power to veto executive action

2. INS v. Chada – House of Reps vetoed agency’s finding of hardship and ordered Chadha deported

a. Legislative veto found to be unconstitutional

i. “Finely wrought” process of making laws pursuant to Art. I §7 requiring

1. Presentment to president; and

2. Bicameralism (both houses)

ii. Nature of act involved – legislative in purpose and effect

3. Formalism v. Functionalism

a. Formalist opinion in Chadha

i. Legislative in character, did not conform to Art. I §7, all legislative acts must conform, thus act is unconstitutional

b. Functionalist dissent focusing on purposes

i. Broad purpose is separation of powers and legislative veto as a means of balancing the power and preventing any one branch from getting too much; legislative veto necessary for keeping administrative agencies in check

4. Mechanisms left to Congress

a. Pass a new law

b. Use the appropriations process

c. Oversee via administrative agency reports

iii. Line-item Veto

1. Congress attempting to give power away by giving the president power to “cancel” certain appropriations provisions in statutes and approve the rest of the bill

2. Formalistic absence of bicameralism because what ends up becoming law was not passed in both houses (Clinton v. New York)

a. Also absence of presentment because bill already signed when items are cancelled

b. Thus line-item veto is unconstitutional

3. Functionalistic dissent claiming that the nature and the sheer number of appropriations in a bill make it impossible to pass each one as a separate bill

e. Congressional Control Over Executive Officers

i. Appointment Power

1. President is given the authority to execute the law (via the Take Care Clause) with appointments and removals as part of this duty; Congress cannot interfere with this duty

a. Rationale – cannot have Congress enforcing its own laws; need certain politically insulated offices

b. Art. II. §2 cl. 2 grants the president power to appoint officers of the U.S. with the advice and consent of the Senate; Congress may vest the appointment of inferior officers as they think proper (may vest in president, courts or heads of departments)

i. Congress may not reserve any appointment power for itself

2. Morrison v. Olsen (I) – Courts of law may appoint “inferior officers” including special prosecution/ independent counsel

a. Inferior officer based upon temporary nature of position; subservience to attorney general; limited jx

ii. Removal Power

1. Power of the president based upon duty to execute the laws (though Constitution actually silent)

2. Early cases

a. Meyers – Presidential power to fire post master because (a) removal is incident to presidential Art. II powers; and (b) if officer is executive, the president must have unfettered removal power

b. Humphrey’s Executor – Removal of FTC officers only removable for “good cause” permissible because such officers were quasi-legislative/quasi-judicial in nature rather than purely executive

3. Recent cases

a. Bowsher v. Synar – Officer removable only for “good cause” per a provision of a Congressional joint resolution → unconstitutional because Congress cannot interfere with the removal of an executive officer nor with the execution of a law

b. Morrison v. Olsen (II) – Appropriate question:

i. Whether the removal restrictions are of such a nature that they impede the president’s ability to perform her Constitutional duty

1. Look to:

a. Significance of the office; &

b. Nature of the restriction

ii. Thus removal for “good cause” is permissible because the president still has ample authority to remove independent counsel through the Attorney General

c. Congress always has the alternative of removal via impeachment and conviction

V. Structure of the Constitution’s Protection of Civil Rights and Civil Liberties

a. The Bill of Rights to the States

i. Antebellum Era

1. Barron v. Balitmore – Court found that the Fifth Amendment does not apply to states, only to takings by the federal government

2. Bill of Rights as the First – Tenth Amendments

a. Reconstructionist amendments

i. 13 A codifies Emancipation Proclamation (applies to private and government action)

ii. 15 A prohibits discrimination on the basis of race (applies to state and federal government)

iii. 14 A overrules Dread Scott and holds that states shall not abridge privileges and immunities, due process, not equal protection guarantees to U.S. citizens

ii. Slaughter-House Cases

1. New Orleans slaughter house monopoly challenged on the grounds that it violated the privileges and immunities of the 14 A; plaintiff claiming that the Bill of Rights applied as such a privilege and immunity (thus claiming that the Bill of Rights applies to the states)

a. Supreme Court rejects the concept of total incorporation of the Bill of Rights as applying to the states

i. Decision robs the privileges and immunities clause of any meaning until 1999

iii. Incorporation Controversy – what is due process per 14 A

1. Right protected by die process if it is:

a. A principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental; implicit in a scheme of ordered justice (Palko)

2. Selective incorporation (Duncan v. Louisiana)

a. Not in a “jot for jot” manner; i.e. no requirement regarding number of jury members or unanimity requirement

b. Unincorporated amendments: 2 bear arms, 3 house troops, grand jury indictment requirement, ban on excessive fines (though changing), jury requirement in civil trial

b. Revisiting the Privileges and Immunities Clause of the Fourteenth Amendment

i. Saenz v. Roe – California residency duration requirement for welfare benefits struck down as unconstitutional

1. State interest in saving money was not substantial enough to justify this infringement on the right to travel/become a resident of another state (discrimination based on duration of residency)

2. seeming application of strict scrutiny of the state’s interest

VI. Economic Liberties

a. Substantive Due Process of the Lochner Era

i. Early History and Lochner v. New York

1. Right/liberty to contract as a substantial right of due process

a. Analysis

i. What is the right?

ii. Does the law infringe upon this Constitutional right?

1. What is the weight of the government’s interest?

2. How well does the law advance those interests?

a. Seemingly heightened standard – rigorous review thus presumptively invalid

ii. Lochner’s Demise and the Modern Approach

1. West Coast Hotel

a. Right to contract not found in the Constitution

b. Need legitimate state interests (equalizing bargaining power of women as legitimate)

c. Rational Basis review

i. Thus presumptively valid

2. Carolene Products – exceptional deference to legislative judgment thus rational basis review of filled-milk prohibition

a. Footnote 4 by Justice Stone

i. General deference appropriate, however, judicial intervention permissible when:

1. legislation appears on its face to be prohibited by the Constitution;

2. Circumstances when legislation infringes/blocks the political process;

3. Law affects a discrete or insular minority

3. Lee Optical – Leave balancing for legislature to do; rational basis review

a. Law need not be in every respect logically consistent with its aims to be Constitutional

b. Takings Clause (Fifth Amendment)

i. Framework

1. Physical occupation is per se a taking and requires compensation

2. Regulatory taking – when regulations on a property and its use “go too far”

a. Penn Central factors to determine if “too far”

i. Economic effect of legislation

ii. Reasonable investment-backed expectations of owner

iii. Nature of the governmental action

b. Lucas v. Coastal Commission – taking per se occurs if a regulation deprives the owner of all economically beneficial use of the property

i. If regulation falls short of this, then analyze via the Penn factors

1. Temporary regulations would be analyzed via Penn

c. Subsequent owner may challenge regulations and assert that a taking has occurred (takings claim runs with the property)

ii. “Public Use” and Kelo v. New London

1. Standard – Public purpose or for public benefit

a. Economic development to benefit the public via jobs and tax revenue as a legitimate purpose

2. Rational basis judicial standard of review – deference to legislature

a. Legitimate interest and “not irrational” means

b. Takings evaluation in light of the plan as a whole and defer to legislature to determine which properties are necessary

3. States are permitted to set stricter standards

c. Contracts Clause (Art. I §10)

i. Generally

1. Applies to state and local governments but not the federal government

a. Applies only to existing contracts

ii. Private contracts

1. Rational basis review (Blaisdell; factors per Energy Reserves)

a. Is the impairment of the contractual obligation substantial?

b. Is the interest legitimate?

c. Are the means reasonable?

2. Need to compromise between individual rights and public welfare

a. Greater deference to legislative judgments regarding economic affairs

iii. Public contracts

1. Heightened form of judicial review (intermediate)

a. Interests must be important

b. Means must be reasonable and necessary

2. Fear of self-dealing

VII. Modern Era: Fundamental Rights Under Due Process Clause

a. Noneconomic Liberties – Introduction

i. Constitutionally protected right to control the rearing of one’s children (Lochner Era)

1. Meyer v. Nebraska – Law prohibiting the teaching of foreign languages in school struck down

2. Pierce v. Society of Sisters – law requiring children to attend public schools struck down

b. Contraception

i. Griswold v. Connecticut – Law prohibiting the use of contraceptives struck down

1. Right to privacy within the marital relationship

a. Fundamental principle of liberty and justice if

i. Implicit in a scheme of ordered liberty; or

ii. Deeply-rooted in the traditions and collective conscience of our people

b. Right to privacy as collectively enumerated in the Constitution

i. Zones of privacy found via penumbras formed by emanations

1. First, Third, Fourth, Fifth and Ninth Amendments

2. Importance of the level of generality at which a right is described

a. Court more likely to recognize narrow rather than broad characterizations

3. Fundamental rights analysis

a. Is there a right

b. Is the law Constitutional via appropriate means-ends analysis?

|Fundamental Right |Compelling i |Necessary/ |Strict Scrutiny |

| | |Narrowly Tailored fit | |

|Non-Fundamental Right |Legitimate i |Rational Relationship |Rational Basis |

|Art. IV §2 (Priv. & Imm) |Substantial i |Substantial Relationship |Intermediate |

|Dormant Commerce Clause |Legitimate i |Necessary Means |Hybrid |

ii. Eisenstadt v. Baird – Equal protection prohibits a distinction between married and unmarried individuals

1. Right to privacy is morphing from physical rights in the bedroom to rights involving fundamental personal autonomy

c. Abortion

i. Roe v. Wade – Fundamental right to choose to have an abortion as a matter of personal autonomy

1. State interest must be compelling and means-ends fit must be necessary/narrowly tailored

a. State interest in the protection of human life – only compelling after viability

b. State interest in safeguarding the health of the woman – only compelling after the first trimester

2. Thus trimester framework

a. First trimester – decision left to woman and physician entirely

b. Second trimester – regulations to protect woman’s health are permissible

c. Third trimester – state may proscribe abortion

i. But must have a life or health exception

1. state interest cannot trump a woman’s right to her health/life

ii. Post-Roe Regulations

1. Invalidated regulations

a. Waiting periods, spousal consent, provision of info, hospital requirements, reporting requirements

2. Regulations upheld

a. Minors – must have a judicial bypass regarding parental notification/consent

b. Funding

i. Maher – law denying state funding for non-medically necessary abortions

1. A woman’s right to choose means a right to choose with freedom from governmental interference

ii. Harris – Denied funding even for medically necessary abortions and only paid if woman’s life was at risk or if pregnancy was a result of rape or incest

1. No affirmative obligation of the government to fund constitutionally protected rights; Right means freedom from interference

2. Government does not need to remove an obstacle not of its own making

iii. Rust – Prohibition to counsel abortion as a method of family planning

1. Woman is in the same position as if the government was not funding family planning counseling at all

iii. Planned Parenthood v. Casey

1. Central holding of Roe retained – State’s interest at viability is compelling; and Abortion is a fundamental right (right to obtain an abortion without an undue burden)

a. Fundamental based on realm of personal liberty, autonomy and the equality of women in society

2. Stare Decisis stands

a. Overrule only when factors present:

i. If rule is unworkable/judicially unmanageable

ii. If reliance not had

iii. If there has been an evolution of a legal principle

iv. If there have been significant changes in the facts

b. Legitimacy of the Supreme Court

i. To overrule Roe would appear to be bowing to political pressure rather than applying the law

3. New Framework

a. Pre-viability – determine in the regulation imposes an undue burden on the woman’s choice

i. Undue burden = purpose or effect of imposing a substantial obstacle in the path of the woman seeking an abortion of a non-viable fetus

b. Post-viability

i. State interest compelling thus state can proscribe abortion entirely

1. Super-fundamental right of health/life of woman

4. Regulations

a. Upheld – medical emergency, 24 hour waiting period, parental consent for minors, reporting requirements

b. Invalidated – spousal notification

i. Substantial obstacle

ii. View from perspective of the affected population

d. Family Relationships

i. Marriage

1. Loving – Invalidation of ban on interracial marriage

a. Freedom to marry as a fundamental part of due process pursuit of happiness

2. Zablocki – Invalidation of judicial permission requirement for child support obligors to marry

a. Means not narrowly tailored to state interest

3. Turner – Invalidation of prohibition of prisoner’s right to marry

a. Right to marry as fundamental thus strict scrutiny

4. Concept of marriage as between one man and one woman

ii. Living Arrangements

1. Moore v. East Cleveland – invalidation of zoning ordinance narrowly defining “family” to not include a grandmother and her two grandsons who were cousins

a. Right/ability to define what your family is; matter of autonomy

2. Belle Terre – Upheld law preventing non-related individuals from living together

a. Thus limiting definition of family to relatives

iii. Paternity

1. Michael H. v. Gerald D. – Law upheld presuming that child a product of the marriage; Upheld based on notions of what is deeply-rooted in tradition

a. Importance of the level of generality at which right is described

i. Here the right was described very narrowly, thus no support for it found in tradition

iv. Child Visitation

1. Troxel v. Granville – Court-ordered grandparent visitation violated the mother’s substantive due process rights

a. Fundamental right of parents to make decisions concerning the care, custody and control of their children

e. Sexuality

i. Bowers v. Hardwick

1. No fundamental right for homosexuals to engage in sodomy (narrowly defined issue)

2. Dissent would characterize issue as “the right to be let alone” based on the fundamental interest all individuals have in controlling the nature of their intimate associations

ii. Lawrence v. Texas

1. Freedom to choose personal bonds and intimacies as Constitutionally protected; Right of consenting adults to engage in intimate activity of their choosing in private

a. Unclear as to whether this is a fundamental right or as to what standard of review is appropriate

b. Element of human dignity and equality

c. Kennedy’s use of European Court of Human Rights and United Kingdom decisions

2. Question regarding gay marriage reserved: government need not give formal recognition to gay relationships

3. Stare Decisis factors reworked:

a. Longstanding history (or lack thereof re: anti-sodomy same sex laws)

b. Planned Parenthood v. Casey as protecting intimate personal choices regarding dignity and autonomy

c. Reliance not had

i. Many courts declined to follow Bowers and it was highly criticized

Constitution of the United States of America

I. Article I – All legislative powers herein granted shall be vested in a Congress consisting of a Senate and a House of Representatives

a. Section 1 – composition and electors

b. Section 2

i. Officers and impeachment – House of Representatives with the sole power of impeachment

c. Section 3

i. Trial of impeachments – Senate with the sole power to try all impeachments

ii. Judgment in cases of impeachments

d. Section 7

i. Revenue bills

ii. Passage over veto of bills

1. Bicameralism

2. Presentment to president

iii. Passage over veto of resolutions

1. Bicameralism

2. Presentment to president

e. Section 8

i. Powers of taxation (spending power)

1. provide for the common defense and general welfare

ii. Power to regulate commerce (commerce clause)

1. Regulate commerce with foreign nations and among the several states

iii. Post offices and post roads

iv. Patents and copyrights

v. Inferior tribunals – to constitute tribunals inferior to the supreme court

vi. Offenses – piracies and felonies on the high seas and against the law of nations

vii. Declare war

viii. Raise and support armies

ix. Navy

x. All necessary and proper laws

1. To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this constitution in the government of the US or in any department or officer thereof

f. Section 9

i. Habeas corpus

1. privilege of the writ of h.c. shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it

g. Section 10

i. Powers denied to states

1. State shall not pass any law impairing the obligation of contracts

II. Article II

a. Section 1 – The executive power shall be vested in a president of the USA

b. Section 2

i. President shall be the commander-in-chief of the army and navy

ii. Power to make treaties with advice and consent of senate

1. Nominate with advice of senate

2. Congress may by law vest the appointment of such inferior officers as they think proper in the president alone, in the courts of law, or in the heads of departments

iii. Appointments during recess

1. presidential power

c. Section 3

i. Recommendations to Congress-Convene and adjourn Congress – Receive ambassadors – Execute laws – Commission officers

1. president shall take care that the laws be faithfully executed

d. Section 4

i. Removal from office (impeachment)

III. Article III

a. Section 1

i. Supreme Court and inferior courts

1. Judicial power shall be vested in one supreme court and in such inferior courts as the Congress may from time to time ordain and establish

b. Section 2

i. Subjects and jurisdiction

1. Cases and Controversies

ii. Jurisdiction of Supreme Court

1. original jurisdiction; and appellate jurisdiction with such exceptions and under such regulations as the Congress shall make (Exceptions Clause)

iii. Trial by jury

c. Section 3

i. treason

IV. Article IV

a. Section 1

i. Full faith and credit

b. Section 2

i. Privileges and immunities of citizens

1. the citizens of each state shall be entitled to all privileges and immunities of citizens of the several states

2.

ii. Delivery of fugitives (extradition)

c. Section 4

i. Form of state governments – protection

1. Guarantee clause

V. Article V – amendment of constitution

VI. Article VI

a. Prior debts invalidated

b. Supreme law (includes treaties)

c. Oath of office

VII. Amendments

a. 1 – religious and political freedom

b. 2 – Right to bear arms

c. 3 – Quartering soldiers

d. 4 – Unreasonable searches and seizures

e. 5 – Criminal actions; provisions concerning; Due Process of law; Just Compensation

f. 6 – Rights of the accused

g. 7 – Trial by jury on civil cases

h. 8 – Cruel and unusual punishment

i. 9 – Rights retained by people

j. 10 – Powers reserved to states or people

k. 11 – Suits against states; restriction of judicial power

l. 12 – Election of president and vice president

m. 13 – Slavery prohibited

n. 14 –Citizens of the US

i. No states shall make or enforce any law which shall abridge the privileges or immunities of citizens

ii. Nor deprive any person of life, liberty, or property without due process of law

iii. Nor deny to any persons within its jurisdiction the equal protection of the laws

iv. Section 5 power to enforce amendment – power to enforce by appropriate legislation the provisions of this article

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