Law.scu.edu



1. FEDERAL POWER

a. JUDICIAL POWER

i. Creation of Judicial Review (A1-A15, 1-27)

1. Article III §2 sets out judicial power

2. Marbury v. Madison: (Marbury had the right to his commission but the court did not have the power to force Madison to deliver the commission):

a. creates judicial review (not explicitly stated in con), power to review legislative actions for constitutionality

b. Where Marshall finds this power?

i. Supremacy clause Article IV clause 2

1. This CN, and the laws of the US which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land

ii. Inherent in concept of separation of powers

iii. Historical argument: Fed Papers 78 intention of JR

iv. Judges have to take oath to uphold the constitution

1. Counterargument: Article I/II other branches take same oath

c. Why is the SC the best situated to assess the constitutionality?

i. Pros

1. Weakness - no power over sword or purse, can only declare CN or U/CN; not to enact laws

2. Subject to appointment (no external or electoral pressures)

3. Free from political pressure or motivation (get lifetime appointments/impartiality)

4. Their work can only be done when cases come before them (have limit on what they can hear)

5. Maybe because they are in the middle (not one like the exec. Branch and not hundreds in the legis branch)

6. Can check other branches of government

ii. Cons

1. Because they are appointed and not elected - may not be representing the people

2. Are appointed by a president that is politically affiliated

3. Easier for CT to change CN through their opinions than for the legislature to respond

4. No compelled expertise (does not require J.D.)

5. No real check on their power (amendment can be seen as a check)

ii. Judicial Review of State and Local Actions

1. Martin v. Hunter’s Lessee (what law control inheritance of land): SCOTUS has power to review state court decisions

a. Judicial Power cannot extend by original jx because state courts already had original jx, must then use appellate jx

i. Reasons for appellate review

1. State interests might obstruct regular admin of justice

2. Uniformity of decisions because Constitution interpreted diff in every state and would effect economy and trade

ii. Reasons against appellate review

1. Materially impair sov of states

2. State judges take oath to support US constitution

2. Cooper v. Aaron: (Desegregation of AK schools, state officials did not comply) Reaffirms Constitution is supreme law of the land, SCOTUS has power to review actions of state officials, and SCOTUS decision bind everyone not just parties in the case

3. Cohens v. Virginia (Violation of Virginia law, selling DC lottery tix): SCOTUS can review validity of state laws in criminal proceedings

a. Even though the state is a party in the case the power of review is necessary because state judges are subject to external pressures

4. Dickerson v. Unites States (Is Miranda a constitutional decision binding on Congress): Congress can’t overrule SCOTUS interpretation of the constitution by passing a statute

a. If Congress does not like SCOTUS interp can amend constitution

b. Scalia Dissent: Miranda is not constitutional requirement but just procedural prescription

iii. Constitutional/Prudential Limits on Court Power

1. Advisory Opinions (30-32)

a. SCOUTS DOES NOT provide advisory opinions but some state courts do

i. Judicial power does not extend to anything but a case or controversy

1. Facts of cases allow court to see how/who/what are being affected

2. Don’t want constitutional issues affecting legislation to be determined (Rescue Army v. Municipal Court of Los Angeles)

a. In friendly non adversarial proceedings

b. In advance of necessity

c. In broader terms than are required by the facts

d. In absence of a injured party

e. Where the statute could be interpreted to avoid injury

f. Gov must function constitutionally

2. Standing (SG 32- 47)

a. Such a personal stake in outcome so as to be proper party (plaintiff proper party to represent issue)

b. Requirements for Standing

i. Constitutional Requirements:

1. Lujan v. Defenders of Wildlife (wildlife groups trying to make public interest of wildlife preservation into personal right):

a. Injury in Fact

i. Litigant must demonstrate that it has suffered a concrete and particularized injury that is either actual or imminent,

b. Causal connection between injury and conduct, injury is fairly traceable to the defendant

c. Redressability: that it is likely that a favorable decision will redress that injury

ii. Prudential Requirements

1. No third parties except for

a. Identity of interest parties (those suffering economic harm)

b. Plaintiffs unlikely/unable to sue such as kids and large associations

2. No generalized grievances

a. No abstract questions of wide public significance

b. United States v. Richardson

3. No suits outside zone of interest

a. Bennett v. Spear: Allows people outside zone of interest to sue if statute allows

c. Massachusetts v. EPA (states, local govs, private orgs allege that EPA has failed to regulate emissions under Clean Air Act): Reqm’t that injury must be concrete and particular can be met by a small injury that the party has real interest in

d. Allen v. Wright (Black parents sue cause segregated priv schools get gov money): Causation requirement not met in situations where causation is too speculative

e. Is there standing?

i. Standing Granted

1. Ranchers sue under ESA (Bennett)

2. State sues for EPA non-regulation of carbon emissions (MA)

3. Corp sues for denied tax exception (Clinton)

4. White student sues for admission denial (Bakke)

5. Taxpayers sue for t'fer of money to religious schools (Flast)

ii. Standing Denied

1. Environmentalists sue under ESA (Lujan)

2. Black parents sue b/c of tax exemption to disc. Schools (Allen)

3. Black man sues for police chocking (Lyons)

4. Tax Payers sues for transfer of property to religious schools (Valley Forge)

5. Poor residents sue to overturn zoning law (Warth)

6. Taxpayers sues for transparency in CIA money (Richardson)

7. Antiwar activists sue to have Congress give up office (Reservists)

8. Athiest sue for "God" in p/o/Alliegiance (Newdow)

iv. Mootness / Ripeness (SG 47-48)

1. Mootness:

a. Case can’t stay in court if court can no longer alter the relationship between the parties

i. Death of a party/law changes/facts change

ii. Exceptions:

1. Abortion regulation

2. Election Law

3. Voluntary Cessation: defendant can stop the offending action, wait for case to moot, then continue offending action

4. Consistently evades review because of the nature of harm

iii. Seeks to reconcile Article III requirements with the practical and equitable problem of preventing parties from manipulating the court

2. Ripeness: cannot bring case too early

a. Case not sufficiently defined so court can have too broad ruling if all facts not yet known

b. Prevents premature adjudication

c. Rests on Article III case and controversy grounds but are sometimes based on discretionary, remedial, or prudential grounds

v. Political Question Doctrine (SG 49-59)

1. Some issues are better dealt with by legislative branch

a. Issues dealing with foreign policy or defense

b. Issues dealing with executive or legislative branch powers/proceedings

2. Requirements (factors)

a. Barker v. Carr (Voters in Tennessee allege that although the state constitution allocated representation on a population, assembly had not been reapportioned since 1901): Mere fact that lawsuit seeks protection of a political right does not always equal political question

i. Textually demonstrable commitment to another branch

ii. Lack of judicially discoverable and manageable standards for resolving it

iii. Impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion

iv. Impossibility of a court's undertaking independent resolution w/out showing lack of respect due coordinate branches of govt

v. An unusual need for unquestioning adherence to a political decision already made

vi. Potential for embarrassment from differing views by various departments on one question

3. Justifications for PQD-Arguing for non-reviewability

a. To avoid controversial issues

b. Limit court’s anti majoritarian effect

c. Institutional competence

d. Preserve separation of powers

e. Allocates decisions to the branches that have expertise in those areas

4. Arguments against PQD-Arguing for reviewability

a. If controversial decision is important

b. Courts are insulated from political pressure so decisions should be decided there

c. Credibility of the court is robust

5. Distinguishing Legal from Political Questions

a. Congressional Qualifications:

i. Powell v. McCormick (Congressman met Article I §5 requirements, Congress does not want to seat because bad character) Court states must seat person who meets constitutional requirements, not Congress’ job to judge qualifications

b. Treaty Abrogation

i. Goldwater v. Carter (whether prez has authority to terminate treaty unilaterally): YES Political question/court cannot rule because dispute between two equal branches of government that have resources to protect interests

c. Impeachment Proceedings

i. Nixon v. United States (whether impeachment proceedings can be tried by a group of senators instead of WHOLE senate): YES political question, not up to the court to decide how Senate conducts proceedings

d. Constitutional Amendment Process

i. Coleman v. Miller (what is a reasonable time for ratification by the states of a constitutional amendment proposed by congress under Article V): YES political question, Court should not superintend the only constitutional procedure that allows overruling of its decisions

e. The Presidential Election Process

i. Bush v. Gore (Whether Florida recounts were constitutional because not under uniform standards) YES political question, time sensitive nature and importance of decision required intervention

b. LEGISLATIVE POWER

i. Introduction – “Necessary & Proper” Clause (SG 60-81)

1. Affirmative Source of Congressional Power

a. Art. I

i. “All legislative power herein granted shall be vested in a Congress of the U.S. which shall consist of a Senate and House of Representatives.”

1. Fed govt limited; can only exercise powers granted it by the Const

ii. 10th Amd. declares that “powers not delegated to the U.S. by the Constitution, nor prohibited by it, are reserved to the states”

iii. Necessary and Proper Clause, (Art I, § 8, cl. 18)

1. Gives Congress power “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 United States, or in any department or officer thereof.”

2. Federal Limits on What States Can Do

a. 10th Amd.- regulates NPC

i. 2 views:

1. Federalist view: merely restates that only Constitutionally enumerated powers are given to fed govt, everything else left to states

2. State autonomy view: reserves a substantive zone of activities where only state govt has control and fed govt does not

a. “reserved” powers to states inc. local police powers (e.g. police, education, health care, etc.)

ii. NPC not a separate power of Congress

1. Need constitutional basis AND then NPC is a way to enact that power

b. McCulloch v. Maryland (whether Congress has power to establish national bank and whether Maryland can tax that bank) Congress had power to est. bank but MD did not have power to tax it

i. Broad reading of NPC

ii. Ct not entitled to inquire if laws of Congress are necessary, only if they have Power, Power to tax = power to destroy, which would lead to states being able to tax all independent fed agencies (such as post offices, etc.)

iii. Representation-reinforcement theory

1. When one state reaps benefits from taxing national entity, then other states/voters are excluded from these benefits

a. Negative externalities/burdens on other states while benefitting just one state

2. No political check on states

iv. Constitution implicitly authorizes Congress to take the means necessary directly giving effect to the powers expressly granted in Const

c. U.S. Term Limits v. Thorton (whether states have power to amend Congressional term limits) Allowing states to change Congressional term limits would be inconsistent w/ Framers’ intention and is not a power given to the States

i. Adopts state autonomy view where states have certain powers reserved fr them by 10th Amd.

3. Why State Power is Important

a. Enhances democracy

b. Lessen risk of tyranny/looks less monarchal

c. State are laboratories for experimentation

i. 50 labs, states can learn from others

ii. Experimentation can also be bad

1. Ex: during Reconstruction: labs for bigotry

ii. Commerce Power

1. Art. I, §8, cl. 3: “Congress shall have power To Regulate Commerce with foreign Nations, and among the Several States, and with the Indian Tribes.”

a. Used to enact broad array of fed laws (e.g. labor, crim, security laws)

b. Movement by itself across state lines is not enough-MUST be in context of commerce

c. Purpose

i. National regulatory power

ii. Would help state hostilities, promote nat’l mkt

2. Congressional Authority – Doctrinal Shifts

|1791-1890 |1890-1937 |1937-1995 |1995-2008 |

|Gibbons |EC Knight |NLRB |Lopez |

| |Ames |Darby |Morrison |

| |Shreveport |Wickard |Raich |

| |Dagenhart |Heart of Atlanta | |

| |Carter Coal |Katzenbach | |

| |Schechter |Perez | |

a. Pre- 1937 cases ARE NOT VALID!!!! DO NOT BRING UP ON EXAM OR YOU WILL DIE!!!

b. 1937-1995 Understanding (SG 82-83; 91-106)

i. some are valid, some are not

ii. Post New Deal:

1. FDR’s court-packing plan ( REJECTED in 1937

a. When judge of US ct over age of 70 has held commission for 10+ years and has not retired or resigned, President shall nominate/appoint one additional judge to ct which former is commissioned

2. In FDR’s 2nd term, he had more political power in general

a. Appointed 7 new justices bc 7 retired

iii. NLRB v. Jones Laughlin (whether Nat’l Labor Relations Act had fed power to enforce its regulations on discriminatory employment practices) Congress had power, under the CC, to regulate labor relations

1. Relied on close and substantial effects of local econ activity on ISC as basis for Congressional authority

2. Broader view of CC

iv. U.S. v. Darby (whether Congress could regulate employment of workers who did not meet min wage/max hrs and produced goods for interstate commerce) Labor Relations Act held constitutional – can regulate local activities if they’re involved in shipping interstate goods

v. 2 rationales for Congress to regulate under CC:

1. in commerce

2. substantially affecting commerce

vi. Wickard v. Filburn (whether wheat production quota was w/in CC power for home consumption of wheat) Cumulative effect of such production, when aggregated could have substantial effect on commerce, thus justifying fed regulation.

1. Broadest understanding of CC

2. Aggregation theory

vii. Civil Rights Enforcement Power: Heart of Atlanta v. U.S. (whether Civil Rights Act prohibited motel from refusing to rent to African Americans) Congress may prohibit racial discrimination by motels serving travelers, however “local” their operations may seem

1. Commerce bc discrimination impedes interstate travel

2. Power to regulate ISC = power to regulate local activities that might have harmful effect on that commerce

c. From 1996 to Present (SG 106-126)

i. Regulated activity must be economic AND must also have a "substantial" relation to or effect on ISC

ii. US v. Lopez (whether Gun Free School Zone Act is under Congress’ commerce power) Ct held Act was unconstitutional bc relation to ISC too attenuated ( 1st time since New Deal fed law struck down in violation of CC

1. Reasons Act unconstitutional

a. Gun possession not like wheat production bc it’s non-econ activity

i. So cannot aggregate

b. Act itself did not discuss requirement that guns had to be involved in ISC

c. No Congressional findings

d. No substantial ISC effect

e. Slippery slope of extent of fed govt power

2. Sets up 3 categories of CC regulation

a. Channels of ISC (hwys, airways, waterways, etc.)

b. Instrumentalities of ISC (railroads, airlines, and trucking companies - since they are activities through which I/C occurs)

c. Activities w substantial effect on ISC (production of goods)

iii. U.S. v. Morrison (whether Violence Against Women Act was constitutional) Court held that the CC did not authorize Congress to adopt VAWA

1. Reasons VAWA unconstitutional

a. Gender-motivated violent crimes are not econ-activity

b. Cannot aggregate effects

c. No jurisdictional element

d. Were Congressional findings of serious impact on victims/families ( too attenuated

iv. Gonzales v. Raich (whether commerce power includes power to prohibit homegrown medical use of marijuana) Congress has power to regulate

1. Congress can regulate purely local activities’ that are party of econ “class of activities” that have substantial effect on ISC

2. Like Wickard, cultivating for home consumption fungible commodity for which there is established interstate market (though illegal in this case)

iii. Limits of Commerce Power & State Autonomy (SG 126-134, 134 -43)

1. Congress uses the commerce power but then the state asserts state sovereignty through the 10th Amd.

2. Traditional State Autonomy Cases

a. US v. California (state owned railroad was penalized under federal act): Act Valid under CC, State own railroads are not immune from federal acts

i. New York v. US 1946 (Federal tax on bottled water, using state owned springs)

1. State commodities are NOT immune to federal regs/tax

3. Court Rejects view that 10th Amd. is independent limit of leg power

a. National League of Cities v. Usery (Fair Labor Standards Act-Min wage reqs): Unconstitutional to force payment of min wage, Congress violates the 10th Amd. when it interferes with traditional state and local government functions

b. Garcia v. San Antonio Metro (Fair Labor Standards Act-min wage/over time reg for transit authority): Constitutional, transit authority has to comply, OVERRULES National League of Cities

i. Reasoning:

1. Distinguishing what state functions are immune is unworkable because courts are divided on what functions are integral to state sovereignty (police/fire v. transportation/sewage)

2. States had their say in the act we need not step in if they already had their say

a. Political process will work and the political structure is sufficient-Framers’ Intent

ii. NLC Majority compared to Garcia Majority

1. NLC: Rehnquist “Our examination of the [FLSA provisions] satisfies us that [they] will impermissibly interfere with the integral gov’t functions of these bodies, significantly altering or displacing the States’ abilities to structure employer/employee relationships.”

2. G: Blackmun “States’ sovereign interests are more properly protected by procedural safeguards inherent in the structure of the fed system than by judicially created limitations on fed power….The political process insures that laws that unduly burden the States will not be promulgated.”

iii. Dagenhart : Darby = NLC : Garcia

1. Dag/NLC: non-waivable court duty, distrust Congress

2. Darby/G: States protect interests through reps, trust Congress

c. Policy Reasons for State Sov.

i. State/local gov’ts can deal w problems that vary geographically by tailoring policies to fit locally varying circumstances

ii. Accommodate diverse preferences and ideologies – citizens can vote w/ their feet by choosing locale where they will be governed in manner they prefer

iii. State experimentation in social policy – states as labs

iv. Smaller scale of local govts lets govt be closer to citizenry

v. Gives citizens greater opportunity to participate and influence public policy

d. Arguments for centralized power

i. Nat’l reg can deal w problem of neg externalities (air pollution) that flow across state boundaries

ii. Govt can provide certain public goods (defense agst foreign enemies)

iii. State govt will have free riders

iv. Nat’l govt has larger scale, more resources – better social insurance agst catastrophes that vary geographically in incidence

v. Can redistribute resources amng pop of diff states w unequal wealth/incme

vi. Prevent destructive competition/races to the bottom

vii. Help protect basic rights agst tyranny of local majorities

4. No Commandeering View Created: Can’t Use Commerce Power to Violate Federalism

a. New York v. US 1992 (Challenge of Federal Low-Level Radioactive Waste Policy Amendments Act of 1985): Congress has substantial power under the Constitution to encourage the states to provide for the disposal of the radioactive waste generated within their borders the Constitution does not confer upon Congress the ability to simply compel the states to do so

i. Reasoning:

1. Constitution has never been understood to confer upon the Congress the ability to require the states to govern according Congress’ instructions

2. If Congress can just force states to regulate in a certain way it is state officials that bear the burden and the federal officials that implemented the regulations are isolated (Accountability)

3. Standing alone instruction to regulate is unconstitutional

4. Division of power is to protect individuals

b. Printz v. US (Brady Gun Act required that local sheriffs, employees of the states, make reasonable effort to perform background checks): federal government can’t command state officials to do something, if federal government would like to do on their own volition with their own officers then they can

i. Dagenhart: Darby: Lopez=NLC: Garcia: New York

c. Reno v. Condon (Drivers Privacy Protection Act: DMV cannot disclose personal info w/o consent) Constitutional, not forcing leg to do anything

i. Reconciling Reno w/ Printz

1. State executives are not asked to do anything specifically, some difference between telling a state to do something from stopping them from doing something (NOT affirmative mandate)

a. Difference between telling Traci to do background checks and telling her she can’t sell the info she has, affirmative duties v. negative prohibition

iv. Spending Power (SG 155-166)

1. Article I § 8: The Congress shall have Power to lay and collect Taxes, Duties, Imposts, and Excises, to pay Debts and provide for the common Defense and general Welfare of the United States; but all Duties, Imposts, and Excises shall be uniform throughout the United States

a. Two Views: Prior to 1936

i. Madisonian View (extremely limited): Congress may only tax and spend to accomplish enumerated powers in Article I §8

ii. Hamiltonian View (liberal): Congress may tax and spend for ANY purpose related to the common defense of the general welfare of the nation

1. Butler, Steward, and Helvering all support

2. US v. Butler (Challenging the Agriculture Adjustment Act of 1933 which sought to stabilize produce prices by making contracts with farmers to reduce acreage in exchange for $): Act Unconstitutional, Congress is not limited to spending only to achieve the specific powers granted by Article I but rather to spend in any way that it believes would serve the general welfare so long as it does not violate another constitutional provision (in this case the 10th Amd.) (Hamiltonian View)

a. Opinion has NEVER been followed

3. Defining General Welfare

a. Steward Machine v. Davis (Challenge to Social Security Act-unemployment compensation) Constitutional, for general welfare

i. Reasoning:

1. All states want an unemployment scheme but don’t want to act and put self in an economic disadvantage

2. State unable to give req relief

3. A way for all public agencies to work together for a common goal

b. Helvering v. Davis (Challenge to Social Security Act-old age pension program) Constitutional, for general welfare) General Welfare distinction is up to the discretion of Congress, unless the choice is clearly wrong and a display of arbitrary power

c. South Dakota v. Dole (Federal law to create 21yr old drinking age to receive fed highway funds) Constitutional, condition imposed was directly related to main purpose behind fed money (creating safe interstate travel) and did not cross line from encouragement to so coercive as to create compulsion

i. Why didn’t government use Commerce Clause?

1. Had to get around the 21st Amd. only the laws of the state can restrict liquors, could not do under commerce because would have violated amendment and been unconstitutional so had to use coercive power of spending clause

2. *PAY ATTENTION TO % OF MONEY*, argue encouraging v. coercive

ii. 4 Criteria for Conditional Grant ($) to States (Dole)

1. Spending must be for general welfare

2. Clear and unambiguous statement of the condition attached to the spending

3. Must be a relationship between the condition and the general welfare purpose (Germaneness)

4. No other independent constitutional bar to the condition

v. Treaty Making & Foreign Affairs Power (SG – 167-173)

1. Article VI: Treaties are on par with federal law they take precedent over conflicting state law

2. Woods v. Cloyd (Challenge of Housing and Rent Act 1947-regulation of rent after war) Constitutional, war power includes power to remedy evils which have arisen from war and continues for duration of that emergency, does not end with end of hostilities

a. Why use war power?

i. Many different ideas, political manner war power may be the path of least resistance

b. Argument against:

i. If war power can be used forever in days of peace then swallows up powers of Congress, 9th, and 10th Amds.

3. Missouri v. Holland (Challenge of Migratory Bird Act between US and Canada limiting how many birds you could kill in certain areas) Constitutional, No 10th Amd. limit on treaty power and Article II expressly authorizes treaties and that Article VI makes them the supreme law of the land

a. Why not use commerce clause?

i. Not economic, don’t effect commerce in any way, political reasons

b. Treaty Power after Holland-2 views

i. Treaty Power not limited by Article I Enumerated Powers

1. T/P functions like other enumerated powers

2. Provides substantive basis for congress action

3. May enact all law “N&P” for effectuating treaty

4. 10th Amd. no bar to federal legislature (Holland)

ii. Treaty Power Limited by Article I Enumerated Power

1. T/P does not include a law making power

2. Congress must find other enumerated basis for action

3. Constrained by other constitutional limits on Fed power

4. 10th Amd. no bar to Fed legislation (Holland)

4. Treaties cannot violate the constitution

a. Reid v. Covert (American civilian dependants of military personnel in foreign country have right to trial in accord with constitution) No agreement with a foreign nation can confer power on the Congress or on any other branch of gov, which is free from the restraints of the Constitution

i. Congress does not explicitly have power over foreign affairs

1. Article I §10 states cannot enter into treaties, so may be left to federal power

2. Article I §8 Clause 10: congress shall have the power to define and punish the piracies

vi. Civil Rights Enforcement Power (Middle paragraph of 707, 727-729)

1. Power given to Congress after ratification of Constitution (Amendments 13-15)

a. 13th: abolished slavery in the entire United States.

b. 14th (DP/EP): ensured that all citizens of all states enjoyed not only rights on the federal level, but on the state level, too. It removed the three-fifths counting of slaves in the census. It ensured that the United States would not pay the debts of rebellious states. It also had several measures designed to ensure the loyalty of legislators who participated on the Confederate side of the Civil War.

c. 15th: ensures that race cannot be used as criteria for voting.

2. What/Who can Congress regulate under Civil Rights Amendment?

a. 13th Amd. §2

i. Government and Private Conduct (Expanded to Private Conduct after 1883 Civil Rights Cases)

b. 14th Amd., §5

i. Government Conduct (stayed the same since before Civil Rights cases of 1883)

3. Scope of Civil Rights Enforcement Power?

a. Substantive View: If Congress thinks necessary for EP, can use power to expand the scope of rights by enacting a law

b. Remedial View: Can only provide remedies for what SCOTUS has determined to be a violation

i. Congress SOLELY provides enforcement mechanism

4. Katzenbach v. Morgan (Challenge to Voting Rights Act 1965 (created under the umbrella of the EPC) which made literacy tests illegal) Constitutional, 14th Amd. § 5, proper exercise of powers granted to Congress similar to Necessary and Proper Clause

a. Reasoning:

i. Constitutional because it was a remedy for discrimination

ii. Congress has authority to define meaning of 14th Amd. (independently interpret) not just to provide remedies for practices that the court had deemed unconstitutional

1. Congress can add to 14th Amd. rights but not detract

c. FEDERAL LIMITS ON STATE POWERS

|Rational Basis |Intermediate Scrutiny |Strict Scrutiny |

|Law must be rationally related to legitimate |Law must be substantially related to important |Law must be necessary to compelling government |

|government purpose |gov purpose |interest |

d. The “Dormant” Commerce Clause (SG 174-222)

1. Negative implication of Commerce Clause

a. Principle that State/Local laws are unconstitutional if the place an undue burden on interstate commerce inferred by SCOTUS in Article I § 8 that Congress has the power to regulate commerce

b. CC expressly grants Congress power to regulate ISC; Ct infers a DCC calling unconstitutional states' legislation that places an undue burden on this ISC

2. Defining the Dormant Commerce Clause

a. Gibbons v. Ogden (Challenge of New York law that granted exclusive monopoly to NY steamboats) Unconstitutional, Commerce is all stages of business among the states that affect more than one state (not purely internal), DCC independent limit on state power even if Congress has not acted

3. Distinguishing national subject matter from state subject matter

a. Cooley v. Board of Wardens (Challenge to Pennsylvania law that required all ships entering/leaving port of Philly to use a local pilot or pay fine) Constitutional, local matter, Courts asks if the subject is one that requires uniform national regulation or diverse local regulation

4. Overview:

a. Facially Discriminatory State /Local laws

i. Protectionism

ii. Virtual Per SE Invalidity (VPSI)

iii. State laws v. Local Laws

iv. Market Participant Exception (MPE)

b. Facially Neutral but Discriminatory State/ Local Laws

i. F/N w/ Discriminatory Purpose

ii. F/N w/ Discriminatory Effect

iii. Treated like F/D

c. Facially Neutral Non-Discriminatory State/Local Laws w/ ISC Burden

i. Pike Balancing

ii. How differentiate btw F/N Discriminatory laws from N/D laws?

5. Justifications for DCC

a. Historical argument: framers intended to prevent state laws that interfered with interstate commerce

b. Economic: protectionist laws will stifle productivity and the nation’s economy

c. Political: states citizens should not be harmed by laws of other states where they are not represented

d. Unification

e. States should not discriminate

f. Prevent Race to the bottom

6. Arguments Against DCC

a. Textual: could have provided provisions prohibiting states from interfering with interstate commerce but they did not

b. Should not be the job of the judiciary (non elected officials) Congress can invalidate state laws

c. No way Congress could do this too many laws for them to review

d. Separation of Powers

e. Gives states the ability to experiment with laws that Congress has not taken

f. No legit basis for judicial intervention when congress has not acted

7. Reasons NOT TO INVALIDATE State Laws based on CC implications

a. Constitution does not prohibit state law regulation

b. Too much judicial involvement

c. CC only affirmative basis for Congress’ action

i. Preemption-fed state law in conflict then fed law trump

8. Reasons NOT to wait for Congressional action

a. Representation reinforcement problem

i. States will seek to hurt other states who are not represented in interstate political process (McCulloch)

b. Congress can’t practically monitor every state reg

9. Factors to Help Distinguish/Understand Cases…

a. How is law discriminatory?

b. Who is harmed by the law? Who is helped?

c. Are there in state interests who are hurt by the law?

d. Does the Court find a protectionist purpose?

i. How does the court find that purpose?

e. What is the object of the regulation (milk, waste, trucks)?

i. Does it matter?

f. What sorts of interests are deemed valid subjects of state law making even if it affects ISC?

g. Are there other imaginable ways the state could have achieved those interests?

h. How much does the court’s opinion depend on the courts own fact-finding (as opposed to the state/local legislature)?

10. Facial Discrimination Against Out-of-State Commerce

a. Facially Discriminatory (F/D) State/Local Laws

i. Protectionism – expressly places O/S at disadvantage to I/S

1. Discrimination against out-of-staters

a. Philadelphia v. New Jersey (Challenged New Jersey Trash Law-Is it protectionist or directly related to legit local concerns/incidental to interstate commerce) Unconstitutional, discriminates against out of staters

i. Doesn’t matter what the state’s ultimate purpose is, cannot be accomplished by discriminating against out of state commerce unless legit reason

2. Discriminating against out-of-staters AND in staters

a. Dean’s Milk Co v. Madison (Challenge to city ordinance that required that all milk sold in the city be pasteurized w/in 5 miles of the city) Unconstitutional, undue burden on interstate commerce, fact that discriminated against own state as well does not matter

3. Facially Neutral but discrimination based on disparate impact

a. C&A Carbone v. Town of Clarkstown (Challenged city ordinance that required all nonhazardous solid waste in the town to be deposited in a transfer station or pay a fee) Unconstitutional, although facially neutral economic effects are interstate in reach

ii. Rule of Virtual Per Se Invalidity for Facial Discriminatory

1. Laws found valid must survive “heightened” “strict” or “exacting” judicial scrutiny

a. United Haulers v. Oneida (Challenging local "flow control" ordinance requiring locally-produced garbage to be delivered to local publicly-owned facilities) Constitutional, benefit a clearly public facility and treat private companies the same

i. Reasoning: Court balanced its burden on commerce against its financial, health, and environmental benefits. The Court found that it imposed only an "incidental burden." The majority declined to "rigorously scrutinize" the economic effects of the ordinance, preferring to leave the policy analysis to local government

iii. Discrimination v. O/S interests must be “necessary” or the “least restrictive means” (Dean Milk, Carbone, United Haulers)

1. Available alternative

2. If traditional government function

iv. State Laws v. Local Laws

1. Should they be treated differently: NO

a. In order to protect other cities that would not be represented and state may not have power to control or want to control could use as a way around federal check if many cities in state make a regulation and the state does not oppose

b. 2 exceptions to DCC regulation

i. Congress Approves of State Discrimination

1. Congress has plenary Power over ISC

2. C/C not dormant anymore

ii. Market Participant Exception

1. If the state is literally a participant in the market, such as with a state-owned business, and is NOT a regulator, the DCC does not apply

a. Here, state may favor its own citizens in receiving benefits from govt programs or in dealing w/govt-owned businesses

b. Key for MPE is how broadly or narrowly the market is defined --- ct defines narrowly as possible

2. MPE Justifications

a. Economic reasons ( rules of free enterprise

b. Less threatening for state to participate then to regulate

c. Textual: state buying/selling does not equal “regulation”

d. Encourage states to take action that will funnel $ back into state

e. Small ISC commerce effect ( state rarely is major player in business

f. Federalism

3. Arguments Against MPE

a. State businesses/sellers may favor in-state purchasers, but may not attach conditions to sale that discriminate agst ISC (can’t regulate “downstream”)

i. South-Central Timber v. Wunnicke (Alaska req that buyers of state-owned timber must have it processed in in-state facility) NOT OKAY - Alaska was NOT acting as MP, but as regulator since after the sale of timber, state attached further conditions

b. Protectionism should not be allowed

c. Hard to distinguish btw participating and regulating

11. Facially Neutral Laws (State/Local) but Still Discriminatory Agst O/S Interests

a. 2 types - treat I/S and O/S alike, but purpose and/or effect of law is to discriminate [both treated as facially discriminatory laws once purpose/effect found]

i. Facially Neutral w/ Discriminatory Purpose

1. Purpose must also be protectionist – purpose is to discrim agst O/S

a. Bacchus v. Dias (local brandy exempt from Hawaii liquor tax) Unconstitutional, certain brandy from local plant, so discrim effect on out-of-staters

i. Discriminatory purpose AND effect bc purpose = promote local pineapple-wine industry, effect = exemption applies only to locally-produced beverages

2. Burden falls on state to explain local benefit + non-discrim alternatives

ii. Facially Neutral w/ Discriminatory Effect

1. Facially neutral but practical effect places greater burdens on O/S economic interest than local competitors

a. Hunt v. Washington State Apple (restrictions on labeling apples) Labeling restrictions do not FD against any states bc ALL apples must be marked, but discriminatory effect bc WA apples had to be labeled with lower fed standards

b. Minnesota v. Cloverleaf (milk must be sold in pulpwood containers instead of plastic) Constitutional, though MN has lively pulpwood industry, plastic will continue to be used to produce other products

i. Burden not excessive bc substantial state interest in ????

12. Facially Neutral Non-Discriminatory State/Local Laws w/ ISC Burden

a. Pike Balancing Test

i. Law upheld UNLESS burdens on ISC clearly outweighs local benefits

1. (Changes from virtual per se rule of invalidity to default position of validity

2. if legit local purpose found, then question becomes one of degree

3. extent of burden depends on nature of local interest

ii. Pike v. Bruce Church (AZ req that AZ-grown cantaloupes must be identified w/ state of origin) Unconstitutional, law did not promote safety/protect consumers; purpose was simply to enhance reputation of AZ growers

iii. Kassel v. Consolidated Freightways (Iowa bans 65 ft.+ trucks) Unconstitutional, burdens ISC bc 65 ft. trucks not proven to be safer than 55 ft. trucks

1. Iowa burdens interstate flow of goods by truck

a. state cannot promote its own interests by requiring safe trucks to go around it

iv. Criticisms

1. Arbitrary and unpredictable application of test

2. Weighing govt interests of state v. needs of ISC difficult (Scalia)

3. Interstate Privileges & Immunities (SG 222-229)

4. Federalism

5. Slippery slope

b. How are facially neutral discriminatory laws different from non-discriminatory state/local laws?

c. DUNO WHAT TO PUT HERE!

e. Interstate Privileges & Immunities (SG 222-229)

i. Article VI, §2: The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States

ii. Prevents a state from discriminating against citizens of other states in favor of its own

1. Discrimination against citizens of another state is prerequisite

a. Can be used to prevent discrimination against fundamental rights constitutional rights or the ability to earn a livelihood (important economic activities)

iii. Comparing the DCC to the PI/C

| |DCC |PI/C |

|Burden |Any ISC burden |Only fundamental rights/important econ activity |

|Who can sue? |Corporations, states, indivs can sue |Only citizens and residents can sue: |

| | |Citizen defined as individuals (not corps) that are |

| | |US citizens, and residency is synonymous with |

| | |citizenship of that state (United Building v. |

| | |Camden) |

|Scope |Can be used against non-discrim laws that burden ISC |Can only use if law discriminatory against O/S |

|Exceptions |Exceptions: Congressional Approval and “market participant” exception | No Exceptions: arguably non-waivable |

|Power |Grant of authority to Congress (CC) |Grant of authority to individuals |

|Level of Scrutiny |Strict scrutiny (virtual per se invalidity – VPSI) or balancing test |Medium test (Intermediate) scrutiny |

i. United Building v. Mayor and Council of Camden (challenge to NJ ordinance requiring that at least 40% of contractors/subcontractors working on city construction projects bc Camden residents): Remanded – May work under DCC with the MPE but under PI/C no such exception --- thus restricts ability to work,

ii. PI/C Methodology

1. Is State/Local Law Discriminatory v. O/S Citizens?

1. Does Activity Involve a Fundamental Right?

i. Can Discrimination Nevertheless be justified?

i. Is there a substantial reason for the discrimination and is the law closely related to curing the problem?

ii. Are O/S persons a peculiar evil that law meant to address?

iii.

1. EXECUTIVE POWER

a. Separation of Powers & “Inherent” Presidential Powers SG 245-254

1. Enumerated Executive Power/Article II

a. Commander in Chief

b. Request/ Receive from Exec dept. officials

c. Pardon

d. Make Treaties (w/ senate advice and consent)

e. Nominate/ Appoint ambassadors and judges (w/ senate advice and consent)

f. Recommend Laws

g. Receive Ambassadors

h. Take care that laws are faithfully executed

i. Veto Power

j. Power to set national agenda

2. Does the Preident have inherent powers?

a. Yes: Language of Article II (exec powers) different start than Article I (legislative powers) showing inherent powers

b. No: language difference is to make clear that there is just one executive and to give him/her a title

3. Congress legislates, but Pres participates thro veto power

4. Diplomatic/military affairs – Pres is Commander in Chief, makes treaties, appoints ambassadors, but such require Senate consent

5. Congress has power to raise/support army/navy, declare war, make rules concerning prisoners of war

i. Youngstown Sheet & Tube Co. Sawyer (Challenging Executive’s power (executive order) to seize steel mills) Unconstitutional, president has no inherent powers

1. Approaches for determining presidential power:

a. No inherent powers:

i. J. Black: strict division between prez power and congressional power

b. Interstitial Executive Power:

i. J. Douglas: Interstitial Executive Power: prez has inherent authority unless he interferes with functioning of another branch or usurping their powers

1. Unconstitutional forcing expenditure of federal funds to compensate mill owners for taking of their property which is congress’ spending power

c. Legislative Accountability: Prez may exercise powers not listed in constitution but can’t violate congressional statutes

i. J. Frankfurter: Congress created legislation in dealing with industrial conflicts so congress has explicitly rejected giving the prez that power

ii. J. Jackson tripartite scheme

|Maximum Power (Category 1) |“Zone of Twilight” (Category |Minimum Power (Category 3) |

| |2) | |

|Pres acts w Constitution AND |No grant or denial by Cong; |Pres acts inconsistent w |

|express/implied authority by |Pres’ power from Const alone |express/implied will of Cong |

|Cong. |Past practice as guide |(Jackson, Frankfurter) |

|PRES WINS UNLESS Constitution | |Pres LOSES UNLESS |

|EXPRESSLY reserves matter to | |Constitution expressly |

|Congress (Congress CANNOT waive | |reserves matter to Pres |

|structural provision) | | |

d. Broad Inherent Authority: prez has inherent authority that allows him to act unless such conduct violates the constitution

i. J. Vinson: Congress did not act after prez notified, showing seizure was not against Congress’ will

2. 4 models of presidential power

|Model 1 |Model 2 |Model 3 |Model 4 |

|NO inherent Pres power; strict |Pres action valid UNLESS Pres |Validity of Pres’ action depends on|Pres action valid UNLESS Pres |

|division btw Pres and Congre |usurps Congress |Const/stat/history (tripartite) |violates Const provision |

| | |(Jackson, Frankfurter) |(Emergency power?) |

|(Black) |(Douglas) | | |

b. Executive Discretion in Foreign Affairs, Wartime, Enemy Combatants (SG 254-291)

i. War Powers Resolution 1973: Passed after Vietnam, created to fulfill Framers’ intent to ensure that collective judgment of Congress and Prez will apply to introduction of armed forces into hostilities

1. President may introduce troops into hostilities only pursuant to:

a. Declaration of War

b. Specific Statutory authorization

c. Emergency created by attack

2. President must always: (When possible Prez should consult w/ Congress before introducing troops)

a. w/in 48 hrs of introduction of troops into hostilities submit reasons to Congress

b. Terminate use of forces w/in 60 days unless C declares war or extends 60 day period (authorizes by statute) or is physically unable to meet cause they might get blown up

ii. Emergency Constitutionalism

1. U.S. Const has no “state of emergency” exception, Unlike some foreign nations

2. Only Art I, §9, cl. 2 … “unless when in Cases of Rebellion or Invasion the public Safety may require it.”

3. Two view of emergency situations and the Constitution

a. Constitution still strictly applies

b. Executive has more latitude and unilateral discretion

i. Court likely not going to listen to these issues

ii. Political question doctrine can block cases

iii. War Time Detention & Trial

1. Overview:

a. US citizens v. foreign national (alien)

b. Lawful Combatant (wear uniform of other country) v. Unlawful/Enemy Combatant (prisoner captured in Afg now in Gitmo)

c. US territory v. Foreign soil (Rasul case: GITMO US territory)

d. Detention v. Process (Hamdi)

e. Federal Court v. Military Tribunal

2. War Time Detention/Trial Cases pre-9/11

a. Milligan-No unilateral Prez authority to suspend w/HC and detain

i. Here C provided authority but US citizen non-combatant on US soil deserves CT trial not MT

b. Quirin –Aliens +1 citizen on US soil who are admitted enemy combatants con be tried by MT

i. Congress provided for MT in Art. Of War

ii. Didn’t receive 5th/6th/7th Amendment protections

c. Eisentrager-Foreign nationals captured outside US soil can be tried in MT in foreign land, US fed Ct has no jx

3. War Time Detention/Trial Cases post-9/11

a. Rasul v. Bush: Do federal courts have JX to hear HC petitions from GB detainees arguing that they are being held unlawfully?

i. Holding: Yes detainee have right to submit Writ HC, federal courts have JX to hear HC petitions from GB detainees (GB is US territory)

1. Does not specify:

a. Scope of claims detainees could bring

b. Nature and extent of process due for these individuals

b. Hamdi v. Rumsfeld

i. Relevant Statutes:

1. Non-Detention Act (18 USC 4001(a)):

a. No citizen shall be imprisoned or otherwise detained by the U.S. except pursuant to an Act of Congress.

2. Authorization Use of Military Force (AUMF):

a. “Pres may use all necessary and appropriate force against those nations, orgs, or persons he determines where involved in terrorist attacks of 9/11… in order to prevent any future acts of international terrorism against the US by such nations, orgs, or persons.”

3. Writ of Habeas Corpus (28 USC 2241)

4. Suspension Clause (Article I Section 9 Clause 2)

a. “The Privilege of the W/HC shall not b suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”

ii. Multi-Part Analysis

1. Can Prez detain US citizens alleged by Prez to be enemy combatants?

a. If NO, then do not need to address 2nd question

b. Look at NDA and AUMF

i. Yes (4 justices plurality + 2 justices partial concur) argues that AUMF provides all necessary authority for Prez to act

ii. falls into strongest Youngstown category

2. Even assuming Prez has power to detain US citizens who are enemy combatants, what does due process require?

a. DP Clause and Past Practice

b. Neutral decision maker, but lower standards (O’Conner) admitting hearsay evidence

c. Criminal process (Scalia/Stevens Dissent)

3. Did Congress suspend W/HC?

a. No they did not can’t just make up due process as you go

c. Hamdi Opinions

|Thomas |O’Connor, WR, AK, SB |Souter, Ginsburg |Scalia, Stevens |

|Const allows Pres’ |Cong auth’d detention by |Detention NOT auth’d |Detention NOT auth’d |

|actions, Pres has first |AUMF |(AUMF NOT enough) |(AUMF not enough) |

|degree responsibility in | | | |

|war | |No opinion on what DP due|W/HC NOT suspended |

| | | | |

|Cong auth’s detention |DP req’s hearing; MT and | |Art. III CT unless |

| |lower evidentiary | |Congress Acts |

|Pres authority to make |standard OK | | |

|factual findings | | | |

d. Martial Law:

i. in time of war, commander of armed forces (if in his opinion exigencies of country demand it, and of which he is to judge) has the power, w/in lines of his military district, to suspend all civil rights and their remedies, and subject citizens and soldiers to rule of his will; cannot be restrained except by his superior officer or President of US

1. Destroys every guarantee of Const → military independent of and superior to civil power

2. Martial law can never exist when courts are open

e. Is presidents MT established to try aliens enemy combatants at GB constitutional

i. Rasul/Hamdi

1. Enemy combatants have right to access fed courts b/c Congress not legislated otherwise

ii. President/DoD

1. Establish Military Tribunals (MT) to try GB detainees

iii. Congress passes DTA (2005)

1. Strips F/courts from jx over W/HC from alien GB detainees

iv. Congress previously passed Uniform Code of Military Justice (UCMJ) Article 36 and ratified Geneva Conventions (Art. 3)

1. UCMJ 36

a. Rules for MT =rules for court martial

b. Requires MT comport w/ law of war including GC

2. Geneva Conventions Article III

a. People like Hamdan need to be afforded regularly constituted court

b. Afford judicial g’ees recognized as indispensible by civilized people

v. Hamdan v. Rumsfeld (Hamdan tried by MT): MT does not comport w/ C’s requirement in UCMJ and GC, no emergency-Prez should have gotten C’s consent

1. When MT can be used (only out of necessity):

a. Where martial law has been declared

b. Used in enemy territory or territory regained from enemy where civilian government cannot/does not function

c. Need to prosecute enemies who have attempted to thwart military effort/violated law of war

vi. Boumediene: Const does not confer right on aliens w/o property or presence w/in the US

1. Gitmo detainees still have ability to challenge their detention in fed court

a. some detainees have prevailed and have been released

c. Congressional Encroachment on Executive Power (SG 291-320)

i. Admin agencies (FAA, FDA, SEC) get power from Congress under the Prez control

1. Cuts across all three branches of gov

a. Rule making power

b. Adjudication power

c. Rule enforcing power

2. Critique

a. Political accountability problem

i. Congress can “act” but avoid heat of the decision

3. Separation of Powers Problem

a. Not Ok for any branch to have all three powers why can admin agency?

ii. Congressional Control over the Actions of the Executive Branch

1. Can enact a law that overturns an agency rule (FAA, FDA, SEC)

a. Difficult to do, takes time and effort-not an efficient check

2. Can retain legislative veto over admin agency acts

a. Any agency action can be vetoed by the majority of one house

3. Retain control over admin agency jobs

a. Congress tries to keep influence over appointment/removal process over agencies

i. Appointment clause Article II§2.2 Congress can vest the appointment authority in the prez over inferior officer

4. INS v. Chadha (Challenging House’s ability to create legislative veto) Unconstitutional

a. Reasoning:

i. Congress may legislate only if there is bicameralism, passage by both house and Senate, and presentment giving the bill to the president to sign or veto

b. Majority (Formalist)

i. Powers categorically distinct between congress and executive

ii. Harm to avoid is mixing of powers

iii. Kept discrete by literal & originalst interpretation

iv. Active judicial safeguards req

c. Dissent (Functionalist)

i. Powers Overlap chameleon like

ii. Harm to avoid is aggrandizement

iii. Flexibility and evolution in interpretation

iv. CT should defer to political branches

5. Clinton v. New York (Challenging cancelations pursuant to the Line Item Veto Act) Unconstitutional, Cancelations under LIVA are the functional equivalent of partial repeals of acts of congress that fail to satisfy Article 1 Section 7

a. Changing the law, no longer law passed by congress, constitution does not allow that power, Prez now using own judgment instead of Congress’ judgment

b. Procedures of constitution must be adhered to

iv. Congressional control over Executive Officers

1. Buckley v. Valeo (1976) (FEC officers C can NOT give itself appointment power

2. Bowsher v. Synar (Whether the assignment by congress to the Controller General of the US of certain functions under the Balanced Budget and Emergency Deficit Control Act of 1985 violates the separation of powers?) Unconstitutional, impermissible delegation to a legislative

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

3. Myers v. US (1926) (Postmaster) C can NOT fetter P’s removal power over purely E officer

4. Humphrey’s Executor v. US (1935) (FTC officers) C CAN limit P’s removal power over Inferior Officers’s IF IO’s job requires independence from P (conflict of interest)

5. Morrison v. Olsen (Whether the provision of the Ind. Counsel Act restricting the attorney generals power to remove the independent counsel to only these instances in which he can show good cause interferes with prez’s appointment power? Whether the act violates the separation of powers by reducing pez ability to control the prosecutorial power wielded by the independent counsel?) Constitutional

a. Reasoning:

i. Independent counsel who investigates wrongdoing in the executive branch Should be independent of the president

ii. Does not prohibit all removal, allows those for good cause

6. Mistretta v. US (1989) (Challenging F/Law creating US sentencing Commission Set up as Commission under judicial branch, 7 members appointed by P w/ AC of Senate, 3 members had to =F/Judges, Removal by P for G/C) Constitutional (Functional)

a. Reasoning:

i. Valid because although Congress cannot generally delegate its legislative power to another Branch, the nondelegation doctrine does not prevent Congress from obtaining assistance from coordinate Branches

2. BILL OF RIGHTS & INDIVIDUAL LIBERTIES

|Rational Basis |Intermediate Scrutiny |Strict Scrutiny |

|Law must be rationally related to legitimate |Law must be substantially related to important |Law must be necessary to compelling government |

|government purpose |gov purpose |interest |

a. BILL OF RIGHTS & THE STATES (INCORPORATION)

i. Introduction / Privileges & Immunities Clause of the 14th Amd. (SG 339, 342-351)

1. Bill of Rights originally guaranteed indiv liberties only against Fed gov

2. Reconstruction amendments put express restraint upon the states

3. Incorporation =14th Amendment DPC extended Bill of Rights to the states

ii. Why should/shouldn’t the Bill of Rights apply to the States

1. Textual:

a. Should not: The 1st Amendment says “Congress shall make no law” does not say state or cities so only restricts federal gov

b. Should: 5th Amendment “No person shall”

2. Structural:

a. Should not: Constitution created to limit federal gov

b. Should: Article I limits states (cannot print money, create treaties…)

iii. 14th Amendment Due Process and Equal Protection Clauses

1. 14th Amendment, § 1

2. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

a. Textual Shift to state use of power

b. Appeal to history and time period (14th created to abolish slavery, to ensure ind. Slave’s rights would not be infringed upon by states)

3. Case Formulations of Standard for Incorporation

a. “Of the essence of a scheme of ordered liberty”

b. “so rooted in the traditions and conscience of our people as to be ranked as fundamental”

c. “fundamental principles of liberty and justice which lie at the base of all our civil and political institutions”

d. “implicit in the concept o ordered liberty”

e. “offend those cannons of decency and fairness which express the notions of justice of English speaking peoples”

f. “basic in our system of jurisprudence“

4. PI/C of Art. IV v. PI/C of 14th Amendment

|PI/C of Art. IV (1787) |PI/C of 14th Amendment (1865) |

|“The Citizens of each State shall be entitled to the |“No State shall make or enforce any law which shall |

|Privileges and Immunities of Citizens in the several |abridge the Privileges and Immunities of citizens of the |

|States.” |United States.” |

5.

6. Slaughter house cases (Louisiana legislature mandated monopoly of slaughterhouse in order to regulate waste, etc) Constitutional, 13th and 14th Amendments (include PIC, DPC, EPC)do not incorporate the Bill of Rights protections, P/I clause not meant to protect individuals from state government actions and not meant to be the basis for federal courts to invalidate state laws.

a. Majority: Fundamental Rights protected by PIC

i. Assert Claims v. Gov

ii. Transact Business w/ gov

iii. Procure Gov protection

iv. Access Ports

v. Access Courts

vi. Protection of life liberty property on high seas or foreign land

vii. Peaceably assemble

viii. W/HC

ix. Use Waterways

x. Slavery

xi. Voting

7. Saenz v. Roe (Challenge of CA law that limited welfare benefits to new residents to the level of their old state) Unconstitutional, uses the 14th Amendment PIC to invalidate a state law because state’s interest in saving money does not outweigh right to travel (fundamental right) and the right to be treated equally in the new state

a. Not DCC because although affects out of staters, the law affects them while in CA (Case is contradictor-DEEP SAYS BAD CASE POOPIE FACE)

b. treats any classification that treats new state citizens differently from longtime residents as presumptively unconst – not under Equal Protection Clause but under PI/C -- regardless if importance or magnitude of benefits

c. “Travel” Cases

i. Edwards v. CA (1941)

1. Struck down law prohibiting bringing poor ppl into state (14 A’s PI/C (Concurrence))

ii. Shapiro v. Thompson (1969)

1. Struck down durational residency requirement for welfare (EP)

iii. Dunn v. Blumstein (1972)

1. Struck down durational resident requirement for voting (EP)

iv. Memorial Hospital v. Maricopa County (1974)

1. Struck down durational residency requirement for emergency care

v. Vladis v. Kline (1973)

1. Upholds durational residency requirement for in-state tuition preference

vi. Sosna v. IA (1975)

1. Upheld durational residency requirement for divorce proceedings

8. Duncan v. Louisiana: (Challenging LA refusal of jury trial for criminal misdemeanor) Unconstitutional, right to jury trial is fundamental

a. Protections of Bill of Rights is most precious priv of American Citizenship

b. Laid out framework to decide if provision of the Bill of Rights is incorporated

i. Whether a right is among those fundamental principles of liberty and justice, which lie at the base of all our civil and political institutions?

ii. Whether it is basic in our system of jurisprudence?

iii. Whether it is fundamental right essential to a fair trial?

9. Following Provisions of the Bill of Rights are incorporated

a. First Amendment

i. Establishment clause (Everson v. Board of Ed)

ii. Free Exercise Clause (Cantell v. Connecticut)

iii. Protections of

1. Speech (Gitlow v. NY)

2. Press (Near v. Minnesota)

3. Assembly (DeJonge v. Oregon)

4. Petition (Hague v. CIO)

b. Fourth Amendment

i. Unreasonable search and seizures/warrant based on probable cause (Wolf v. Colorado)

ii. Exclusionary rule prevents use of evidence that was obtained in violation of 4th amendment (Mapp v. Ohio)

c. Fifth Amendment

i. Prohibition of double jeopardy (Benton v. Maryland)

ii. Protection against self incrimination (Malloy v. Hogan)

iii. Gov pay just compensation when takes private property for public use (Chicago, Burlington & Quincy RR v City of Chicago)

d. Sixth Amendment

i. Speedy and Public trial by an impartial jury (Klopfer v. N. Carolina/In Re Oliver/Irvin v. Dowd)

ii. Notice of Charges (in re Oliver)

iii. Chance to confront adverse witnesses and have compulsory process to obtain favorable witnesses (Pointer v. Texas/Washington v. Texas)

iv. Have assistance of counsel if the sentence involves possible imprisonment (Gideon v. Wainwright)

e. Eighth Amendment

i. Prohibition against excessive bail (Schilb v. Kuebel)

ii. Prohibition of cruel and unusual punishment (Robinson v. California)

b. ECONOMIC LIBERTY SG 362, 366-373 (thru n. 3), 373 (n. 4) -381 (thru n. 2)

i. Substantive Due Process/Constitutional right concerning the ability to enter into and enforce contracts, to pursue a trade or profession, and to acquire, possess, and convey property.

1. Due process clause is a substantive limitation on what states can do

a. What does liberty mean under the Due Process clause?

i. Economic Liberty

ii. Lochner v. New York (Challenging NY law that sets max hours bakers could work) Unconstitutional, Violates 14th amendment due process interfered with freedom to contract because did not serve valid police purpose

1. Three major principles articulated by the court

a. Allgeyer: Right to enter into all contracts which may be proper, necessary, and essential to carrying out a trade or profession

i. General right to make a contract in relation to his business is part of the liberty protected by the 14th amendment, Right to purchase or sell labor is part of the liberty protected by this amendment

b. Can interfere with freedom of contract only to serve a valid police purpose such as, public safety, public health, or public morals

c. Court’s judicial role to carefully scrutinize legislation interfering with freedom of contract to make sure that it served a police purpose

2. Dissent:

a. Harlan: need for judicial deference to legislative choices

b. Holmes: rejected that constitution should be used to limit gov regulation and protect laissez-faire economy

i. General propositions do not solve complicated cases

c. Possible Dissenting Interpretations of DP Clause “Liberty”

i. Only freedom from bodily restraint

ii. Broader, but DP only requires fair practices

iii. More than fair procedures but F/K not w/in meaning

iv. Even if F/K included State can overrule w/ MH laws

1. Because connxn to health good enough

2. Because solves C/A problem

3. Because redistributes paternalism OK

v. Even if State’s health/econ/general welfare theories doubtful, CT should not 2nd guess

1. Economic interests can fight it out in the political arena

2. Judicial intervention too subjective not competent

3. Critiques of Lochner Maj

a. Definition of Police Power too narrow

i. Setting terms for K, Paternalism, Redistribution, Solving C/A problem beyond state’s power

b. Means-End Inquiry too rigid for Economic Regulations

i. Peckham v. Harlan debate

ii. Strict Scrutiny v. Rational Basis Scrutiny

c. Assumed distributions of wealth were pre-political/natural?

i. Ct saw distribution as beyond the reach of gov regulation

ii. Thought redistribution messed with natural order

4. Causes of Lochner’s Demise

a. Political Pressure

i. FDR Court Packing

ii. Federal legislation struck down (Schecter, Dagenhart, Carter)

b. Economic Pressure

i. 16million unemployed

ii. Employees could not exercise freedom of contract to bargain for higher wages, lower hours

c. Intellectual pressure

i. Legal realism view of the law-questioning baseline of entitlement

ii. Even if regulation=subsidy to workers, non-regulation=subsidy to employers

iii. Too much subjective infusion of judges viewpoints

iv. Too much usurpation of legislative function

iii. Nebbia v. New York (Challenge to NY law that set the price of milk) Constitutional, failure of producers to receive reasonable return threatens vigilance against contamination

1. Reasoning:

a. If law passed has reasonable relation to proper legislative purpose and is not arbitrary or discriminatory then DP satisfied

iv. West Coast Hotel v. Parrish (Challenge to state min wage law for women) Constitutional, expressly overruled Adkins and abandoning principles of Lochner (*Switch in time that saved the nine*)

1. Reasoning:

a. Rather than viewing regulation as taking of property and windfall to employees, Not regulating would be a subsidy to unconscionable employers

v. US v. Carolene Products: (Whether banning filled milk violates freedom to K) Constitutional, does not violate F to K, New judicial deference to gov economic regulations.

1. Footnote 4 double standard of review

a. Defer to the gov and uphold laws so long as they were reasonable but deference would not extend to laws interfering with fundamental rights or discriminating against discrete and insular minorities

b. Introduced min rational basis review standard (Sweet ass chart)

i. Under this very deferential standard of review, the "legitimate" interest doesn’t have to be the government's actual interest in the matter; rather, if the court can merely hypothesize a legitimate state interest served by the challenged action, it will pass constitutional muster

vi. Williamson v. Lee Optical (Challenging OK statute made unlawful to fit lenses/replace lense w/o prescriptive authority) Constitutional, the law need not be in every respect logically consistent w its aims to be constitutional, it is enough that there is an evil at hand for correction, and that it might be thought that the particular legislative measure was rational way to correct evil

1. Stands for end of Lochner Era

vii. Lochner to Lee: Evolution of Economic Rights Under “Liberty” of DPC

1. Scope of State police power

a. Lochner: Paternalism, Redistribution, Solving C/A problem

i. INVALID state goals

b. Lee: unconcerned with state goals that redistribute or compensate for individual incapacities

2. Rigidity of SC Mean-End Inquiry

a. Lochner: CT scrutinizes asserted purpose (health), and if means (max hours) actually effectively achieve purpose

b. Lee: CT asks if purpose conceivable (healt), and if means (regulating opticians) could rationally achieve purpose

3. Assumptions re: Pre Political/Natural Distribution

a. Lochner: Wealth distribution beyond Gov’t reach/regulation

b. Lee: Economic Interests created by law, therefore altered by law, Economic groups (opticians) may win or lose

viii. Post-Lochner: F/K as part of DP “liberty”

|CONSTITUTIONAL |UNCONSTITUTIONAL |

|Muller (1908) – MH for women |Lochner (1905) – MW/MH for bakers |

| |Coppage (1915) – ban on non-unionization |

| |Adkins (1923) – MW for women |

| |Weaver (1926) – ban on bedding material |

|Nebbia (1934) - stabilizing milk price | |

|WCH (1937) – MW for women | |

|Carolene Products (1938) – ban on filled milk | |

|Lee Optical (1955) – ban on opticians fitting lenses | |

c. PERSONAL LIBERTY (PRIVACY RIGHTS)

a. Introduction SG 413-414

i. Privacy as part of “Liberty” of DP/C

1. Key question

a. Can these decisions be distinguished from Lochner? OR

b. Are they just reformulations of subjective discretion into law under the guise of due process?

2. Freedom to Contract v. Freedom to Contraception: How to get from Lochner to Griswold?

a. Contraception

i. Not an inherently legal principle

ii. Closer to personhood

iii. Danger to political process failure

iv. Limited Universe

b. Contract

i. Is creation of law and should be changed by laws

ii. Affects many

ii. Meyer v. Nebraska: (Challenge to state law prohibiting teaching foreign language to children) Unconstitutional, Liberty is more than just freedom from bodily restraint

1. Liberty in DP/C of 14th Amendment protects:

a. Right to acquire knowledge

b. Right to marry

c. Right to establish a home

d. Right to bring up children

e. Right to worship god according to dictates

f. Right to contract

g. Right to engage in occupations

iii. Pierce v. Society of Sisters: right to have children not attend public schools

iv. Skinner v. Oklahoma (Challenge to OK law that required sterilization of those convicted of two or more crimes involving “moral turpitude”): Unconstitutional, violated equal protection and the right to procreate is a fundamental right and any attempt by gov to impose involuntary sterilization has been meet with strict scrutiny

1. Did not directly overrule Buck v. Bell (case allowing sterilization law of the mentally disabled upheld by SCOTUS) but seems clear buck could not survive the strong words used in Skinner

b. Contraception SG 415-423

i. Griswold v. Connecticut (Challenged to state law that prohibited use/distribution of contraceptives): Unconstitutional, found fundamental right to privacy but not in 14th Amendment DPC “liberty” instead privacy was implicit in several provisions of the Bill of Rights including, 1st, 3rd, 4th, 5th, “penumbra” of Bill of Rights creating a zone of privacy (don’t want to use Lochner era principles)

1. Reasoning:

a. Douglas focused on the privacy of the bedroom, how was he defining “penumbra”

b. Freedom of intrusion into home and bedroom

c. Freedom to control information

d. Freedom of reproductive autonomy?

2. Opinions

a. Concurring Goldberg, Warren, and Brennan

i. Emphasizing 9th Amendment incorporated by the 14th amendment as authority of court to protect nontextual rights

b. Harlan concurred

i. Right to privacy should be protected under substantive meaning of liberty in the due process clause

1. Defining SDP Rights

a. Teachings of History

b. Basic Values of society

c. Vindicating S/o/P and federalism

d. Traditions of the people

c. White concurring

i. Argued that the law did not meat the rational basis test, ban on contraceptives for married people does not reinforce the state’s ban on illicit sexual relationships

d. Black and Stewart dissent

i. Law was constitutional because there is no right to privacy mentioned in the constitution

ii. Privacy Post Griswold

1. Spatial- Right to avoid intrusion in your home

2. Informational-Right to avoid disclosure of personal info

3. Marital-Freely engage protect intimacies of marital relationship

4. Autonomy- Free from government regulation in area of personal activity that does not harm to others

iii. Eisenstadt v. Baird (Challenge to law banning distribution of contraceptives) Unconstitutional, recognized a right to purchase and use contraceptives based on a right of individual to make decisions creating procreation under EPC

1. Preventing the distribution of contraceptives served no legitimate gov purpose

2. Expands Griswold in recognizing a right to control reproduction as a fundamental right and recognizes rights of married and unmarried

iv. Carey v. Population Services International (Challenged to NY prohibition of sales/distribution of contraceptives to minors under 16) Unconstitutional, strict scrutiny must be met for the gov to justify a law restricting access to contraceptives

1. Reasoning:

a. must be “compelling state interest” not met in this case because law does not substantially serve states deterrent purpose

b. Interferes with parental right to raise children

c. Abortion SG 424-434 (thru n. 4), SG 434-450

i. Roe v. Wade (Challenging TX law criminalizing abortion except to save mother’s life) Unconstitutional, liberty protected in DPC, Should be using strict scrutiny on government regulations on abortion

1. Protected a woman’s right to terminate her pregnancy prior to viability (when fetus could survive on its own outside the womb)

a. Not absolute and should be weighed against other interests such as the state’s interest in protecting prenatal life

2. No consensus as to when personhood begins

3. Court broke into 3 trimesters

a. 1st regulate abortions only how regulated other medical procedures (performed by licensed doc)

b. 2nd can not outlaw abortions but can regulate abortion procedure in ways that reasonably relate to maternal health

c. 3rd can prohibit abortions except if necessary to preserve the life or health of the mother

4. Opinions

a. Rehnquist and White dissent

i. Question that should be left to the legislative process

ii. Planned Parenthood v. Casey: (Challenging PA abortion law) Parts unconstitutional, reaffirmed Roe v. Wade but ruled the government MAY regulate abortions prior to viability so long as it does not place an undue burden on access to abortions

1. No longer trimester distinction or strict scrutiny

2. Undue burden test

a. Statute with purpose/effect of placing substantial obstacle in path of women seeking abortion of non-viable fetus is INVALID

|UPHELD REQS |STRUCK DOWN REQS |

|Informed consent |Spousal notice |

|24 Hr Waiting Pd | |

|Record-keeping | |

|Parental notice w Judicial Bypass | |

3. Result in Casey

iii. Abortion Rulings

|Upheld Regs |Struck Down |

|Doctor must perform abortions |Spousal consent (Danforth) |

|Funding restrictions (gov funds/facilities) (Maher, Harris, |Hospital Requirement (Akron) |

|Webster, Rust) |Second Medical opinion requirement (Doe) |

|Parental Notice with judicial bypass (Bellotti, Akron) |Informed Consent (Akron, Thornburgh) |

|Fetal viability test (Webster) |Waiting period (Akron) |

| |Record-Keeping (Thornburgh) |

| |Risky procedures to save a fetus (Thornbugh) |

ix. Steinberg v. Carhart: (Challenging NB law prohibiting late term dilation and extraction abortion w/o exception to preserve mothers health) Unconstitutional, no mother health exception

x. Gonzalez v. Carhart: (Challenging Partial Birth Abortion Ban Act) Constitutional, Dealing with previability-can stop a certain type of abortion, not a substantial obstacle or undue burden

1. Opinions:

a. Ginsburg Dissent:

i. Rejects congressional findings that DX abortion procedures are never medically necessary

ii. Act does not follow Casey or Steinberg

xi. Abortion Privacy in due process “liberty” Possible Approaches

1. Life begins and Conception

a. DP R/Life of Fetus Prevails

2. Leave to State Legislatures/Political Process

a. RB regardless of stage of pregnancy

b. Unless maternal health/life is at issue

3. Discrimination based on Gender

a. Public funding for indigent women

4. Pre-viability v. Post Viability

5. Decisional Autonomy

6. Life begins at conception

a. Justifications

i. Definitive point in time, predictable/recognizable

ii. Judicial Economy

b. Critique

i. Arbitrary as any other chosen time

ii. Incompetence of CT to determine

iii. Majority of public does not agree that life begins at conception

iv. Scientist/Med professionals have not been able to conclude this

c. Implications

i. Fetus=”person” protected by 14th amendment of constitution

ii. Creating a new class of murders

1. Any termination of life would be a homicide

iii. Smoking/drinking=child abuse

iv. Tax Laws, Carpool Lanes

v. Abortion=Homicide

c. Family SG 450-456

i. Marriage

1. Loving v. Virginia-(Challenging VA preventing marriage between whites and minorities) Unconstitutional, violates EP and DP, right to marry vital to pursuit of happiness, and so is ability to choose who one wants to marry

2. Zablocki v. Redhail (Challenge to WI law prohibiting marriage to those who have not paid child support for minors not in their custody) Unconstitutional, marriage is so fundamental should be protected by constitution

a. Reasoning:

i. State has other means of accomplishing interest in child support

ii. Deliberate discrimination against the poor

iii. Why would you recognize other matters of family life (procreation, child rearing) if not recognizing marriage, which is the foundation of family life

b. Dissent:

i. Wants to review Lee Optical (Economic Regulation)

ii. No basis for applying heightened standard of review

3. Turner v. Safley: prisoner right to marry is maintained even in prison context

ii. Family Relationships

1. Moore v. East Cleveland (Challenge to city zoning ordinance limiting occupancy of dwelling to members of single “family”) Unconstitutional, family includes extended relatives, does not have to be nuclear family, strict scrutiny should be applied because deals with definition of family

2. Belle Terre v. Boraas (Challenge to zoning ordinance excluding unrelated groups from living together) Constitutional, no privacy rights involved, unrelated people aren’t family

3. Troxel v. Granville (Challenge to state court decision giving G-mas visiting rights to gkids over objections of mom) Unconstitutional, violated mother’s substantive DP rights

a. Reasoning:

i. DPC does not allow state to infringe on parents fundamental rights to make child rearing decisions, just because judge thinks he knows better

b. Dissent:

i. J. Stevens: Need to think of best interest of the child

ii. J. Kennedy: Family courts are better able to determine competing interests in child

4. Michael H v. Gerald D. (Challenging CA law that child born to wife is presumed to be legit child of the marriage) Constitutional, no constitutional rights are violated, look to tradition according to Scalia

a. Reasoning:

i. Promotes stability

ii. Wants to keep nucleic family together

iii. Economic Reasons: many single parent families depend on welfare

iv. Health and Safety reasons

b. Dissent

i. Tradition is too flexible a standard in terms of definition and too archaic in this application, should be able to respect differences

1. Blood test will indicate who is baby daddy

d. Sex/Sexual Orientation SG 456-466 (thru n. 2), SG 466 (n. 3) – 469

i. Bowers v. Hardwick (Challenging GA law that criminalizes general sodomy) Upheld the statute as it applied to homosexual sodomy, did not address heterosexual sodomy

1. Reasoning:

a. Court should protect rights as fundamental only if:

i. Supported by text of the Constitution- homosexual activity is not fundamental right linked to marriage, family, children

ii. Framers intent-not inclined to discover new fundamental rights in DPC

iii. Tradition- sodomy has been outlawed in the past

2. Dissent:

a. J. Blackmun: Man has “right” to be let alone, sexual intimacy is a key part of human existence, many “right” ways to have a relationship

b. J. Stevens: The law prohibits sodomy across all citizens but is being used to target only a subset of the population

ii. Lawrence v. Texas (Challenging TX statute criminalizing homosexual sodomy) Unconstitutional, OVERRULES Bowers, sexuality is a fundamental aspect of personhood

1. Reasoning:

a. Right of consenting adults to engage in intimate activity of their choosing in private

b. Relied on other international Jx for comparison/examples-stare decisis is not an inexorable command/ is flexible

c. Reject tradition argument, because laws targeting homosexual couples did not develop till the last third of the 20th century

i. Previous courts failed to appreciate extent of liberty at stake

d. If statute allowed would create criminal stigma-no EP or DP

e. Morality reasoning is not sufficient

2. Dissent:

a. J. Scalia: If you ban laws against homosexual sodomy based on morals then all other “immoral” prohibition will lose standing

i. Slippery slope

1. Drug Use

2. Adultery

3. Incest

4. Sex Crimes

5. Bigamy

6. Bestiality

7. Prostitution

8. Masturbation

9. Gay Marriage

ii. Emerging awareness of homosexual sodomy not a right deeply rooted in nation’s history/tradition

iii. Stare Decisis

1. Bower: Lawrence = Roe: Casey?

e. Death SG 469-480

i. Right to refuse treatment

1. Generally held as a constitutional right, but with limitations

a. Jacobson v. Massachusetts-Upheld a law requiring vaccinations

b. Washington v. Harper-Prisoners have the right to be free from involuntary administration of antipsychotic drugs

i. Under DPC of 14th Amend

ii. Right to refuse treatment leading to death

1. Cruzan v. Director, Missouri Dept. of Health-State intervened to prevent family from pulling the plug on incompetent woman in vegetative state

a. Adults have a right to refuse medical care under liberty in DPC (Scalia dissents)

b. State may require clear and convincing evidence that a person wanted treatment terminated before it is cut off

c. State may prevent family members from terminating treatment for another

d. No level of scrutiny given

e. States interests?

i. Preserving life

ii. Preventing suicide

iii. Preventing abuse/ protecting poor, elderly, sickly

iv. Protecting role/ reputation of doctors

iii. Right to Die

1. Not specified or enumerated specifically in Constitution

2. Is this party of the liberty clause of the Constitution?

3. Decision autonomy re one’s life decisions?

a. Or do we want to make it narrower to decisions involved?

4. Is this a fundamental right?

iv. III. Physician-Assisted Suicide

1. Washington v. Glucksberg (Challenged law that criminalized assisted suicide ) Constitutional, ban on assisted suicide allowed, right to privacy under DPC does not create fundamental right to physician-assisted suicide, not strict scrutiny

a. Debate between Rehnquist and Souter's view in how to determine if right to die is fundamental

b. Assume the law will be upheld if it is rationally related to government interest

2. Vacco v. Quill (Challenge to state laws prohibiting aiding a suicide) Constitutional, rational basis review should be used for EPC challenge

a. Difference between right to refuse medical treatment and physician-assisted suicide

i. Assisted suicide: patient’s intent is to end life

ii. Refusing/Discontinuing treatment: patient may not intend to end life

3. Ninth Circuit held that terminally ill patients have liberty interest to physician-assisted suicide

4. Active vs. passive

a. Withholding treatment is passive

b. Physician assisted suicide is active

5. Oregon now allows for physician assisted suicides

v. Acceleration of Death Situations

1. Non-terminally ill person ends life (suicide)

a. Personal interest

i. Privacy interests, right to be free from physical restraint

b. Govt interest

i. Interest in value of human life in general, working, paying taxes, stimulating economy

2. Physician assisted suicide of non-terminally ill

a. Personal interest

i. Free self of pain/suffering

b. Govt interest

i. Doctors will abuse discretion in assistance

ii. Irreversible // doctors change course of person’s life

3. Terminally-ill person ends life – diff btw non-terminally ill and terminally-ill person end life?

a. Personal interest

i. Should be able to die with dignity

1. Person going to die anyway

b. Govt interest

i. Costs $ to keep patient in hospital if person uninsured

ii. Value of human life

4. Withdrawing life support when terminally ill

a. Competent v. incompetent?

i. Competent = able to communicate their wishes in real time

ii. Incompetent

1. Cruzan – state’s high evidentiary standard for decision upheld

2. Can put Schiavo/South Park situation

a. Cruzan – only 1 private interest (nobody contesting what that person would’ve wanted)

b. Schiavo/SP – 2 private parties competing against what person would have wanted (representing different interests)

iii. Cruzan/Glucksberg – liberty interest to refuse treatment (assumption)

1. Cruzan: rule: Const grants competent person right to refuse sustenance, but state has unqualified interest in human life

a. State may apply clear and convincing evidence standard in proceedings where guardian seeks to discontinue nutrition and hydration of person diagnosed to be in persistent vegetative state

b. Bc Cruzan didn’t say it was fundamental, then not strict scrutiny

c. Could be strict bc state has significant state interest in preserving human life

5. Physician-assisted suicide when you are terminally ill

a. Competent

i. if patient is not competent, how are they going to manifest their decision that they want the MD to assist them in the suicide?

ii. Glucksburg –state’s ban on PAS facially upheld

1. Personal interest

a. Die with dignity, free from pain, physical restraint

2. Govt interest

a. Doctor’s intent is to kill, whereas if no physician-assistance, then person will die a natural death

b. Doctors abuse power

6. Euthanasia by doctor when terminally ill (when a physician supplies information and/or the means of committing suicide so that patient can easily ternate own life)

a. Patients should not continue living against their wish, until their body eventually collapses

b. Competent v. incompetent

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