Final Outline
Federal Judicial Power
Authority for Judicial Review
❖ Article III is the ceiling of federal court jurisdiction and Congress cannot enlarge upon that power, nor can they gain jurisdiction through consent. Congress can restrict their appellate jurisdiction through statutes.
❖ Marbury v. Madison
➢ The federal judiciary (in addition to the Supreme Court) has authority and duty to declare a congressional statute unconstitutional if the statute violates the Constitution.
➢ The Supreme Court can Review the acts of the other two branches of government to ensure that they acted within their constitutional power.
➢ Does the Justice have the right to review Presidential decision?
▪ No to political decisions/discretions
▪ Yes to ministerial (there was no more discretion to be used; procedural issues or a specific duty owed to a particular person)
➢ Judiciary Act of 1789: Confers original jurisdiction contrary to Art. III
▪ It’s not clear, but Marshall says there is a conflict, therefore Constitution should overrule b/c it is superior (supremacy clause)
➢ Congress can’t enlarge the power of the court (Cannot exceed Art. III)
➢ Arguments provided by Marshall
▪ Fed. Court has jurisdiction to all cases arising under Constitution
▪ Supremacy Clause
▪ Why have constitution, if there is power by congress to override it
▪ ***Those who interpret the law, is the law giver (most important line in opinion)
❖ Martin v. Hunter’s Lessee
➢ The Supreme Court may review state court opinions, but only the extent the decision was based on federal law or in criminal proceedings with due process questions.
➢ Constitution creates Supreme Court and gives Congress discretion whether to create lower federal courts. If Congress chose not to establish these courts, Supreme Court would not have power.
➢ Supreme Court Review is essential to ensure uniformity in the interpretation of federal law
❖ Cohens v. Virginia
➢ Reaffirmed authority of Supreme Court, emphasizing that state courts could not be trusted to adequately protect federal rights
❖ Cooper v. Aaron
➢ State officials are bound by what the Supreme Court says that the law is.
Limits on the Federal Judicial Power
❖ Interpretive limits (how constitution should be interpreted)
❖ Congressional limits (can restrict the court’s jurisdiction; just can’t enlarge; they can overturn court rulings by making a statute; If you don’t like what the court is doing, make an amendment; justices can also be impeached)
❖ Justiciable (limits the types and matter that federal courts can decide)
❖ Interpretive limits
➢ Originalism: merely textual; if not in the text, then its not protected; however b/c the language is vague, its not helpful; don’t like it, amend it
➢ Non-originalism:
▪ Constitution is not static; as society changes, so should the Constitutional interpretations so as to meet the needs of society
▪ No need for amendments b/c constitution can be interpreted w/o amending
➢ Tools to interpret
▪ intent of the framers (only what the framers intended)
• argument against them could be that the intent of the framers was to use broad language so that the constitution could be applicable to future generations
▪ Historical context: what was happening when it was adopted (look at the country as a whole, whereas intent of the framers is narrow and only to framers themselves)
▪ Tradition: what has been going on for the previous ‘x’ amount of years
▪ Precedent
➢ U.S. v. Emerson
▪ 2nd Amendment was not absolute and upheld the constitutionality of a federal law prohibiting convicted criminals from possessing firearms.
➢ Silveira v. Lockyer
▪ 2nd Amendment does not protect an individual right to have firearms, but only limits Congress from regulating guns in a way that would keep states from protecting themselves.
Protection of Civil Rights & Civil Liberties
Introduction
❖ State Action doctrine: rights only apply to the government; private entities and individuals are not required to comply with the Constitution
Application of the Bill of Rights to States
❖ Rejection of Application before the Civil War
➢ Barron v. Mayor and City Council of Baltimore
▪ Bill of Rights only applied to the federal government to reign in federal power (still true today technically b/c never overruled; in order to apply Bill of Rights to States, you must state in the claim the 14th Amendment and the Bill of Right provision your client is arguing)
▪ If there was a state problem, go to state constitutions, not federal
▪ The constitution was ordained and established by the people of the United States for themselves, and not for the government of the individual states. Justice Marshall recognized that each state had established their own constitution, and thereby had provided such limitations and restrictions on the power of its government over the people. At the time this decision made sense because of the faith people had in individual state constitutions.
❖ False Start in Applying the Bill of Rights to the States: The Privileges or Immunities Clause and the Slaughterhouse Cases
➢ 14th Amendment: 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 life, liberty, or property, without due process of law…
➢ The Slauhterhouse Cases specifically refused to use the Privileges and Immunities clause of the Fourteenth Amendment to apply the Bill of Rights to the States.
▪ Butchers are bringing the suit against the City saying it was unconstitutional to allow the monopoly because it violated the following three things in the 14th Amendment:
• Privileges and immunities clause
□ Said that they did not have to define these privileges and immunities of citizens of the U.S. which no State can abridge.
□ The Court said that this was a meaningless clause.
• Due Process – Cannot deprive one of life, liberty, or property without Due Process of Law.
• Equal Protection
▪ Very narrowly defined Privileges and Immunities Clause to rights inherent in being a citizen of the United States: such as right to petition Congress for the redress of grievances, right to enter public lands, right to interstate travel to transact any business he may have with Congress, seek Congress’ protection, share Congress’ offices, engage in administering its functions, right of free access to ports, courts of justice in several states, demand care and protection of the Federal government when on the high seas or within jurisdiction of foreign governments
▪ Not applicable to profession/trades
▪ Does the P & I now mean the first 8 amendments? No b/c these are rights of national citizenship, not the right of state citizenship.
▪ The only rights the P & I protect are those you already have b/c they were protected by the constitution. Thus the court, in essence, found the P & I meant nothing.
▪ Federalism: maintaining the proper balance b/t federal & state governments. If we see that the P & I is relevant, then the court would have the power to oversee all state decisions, which would make the S/C extremely powerful, which was not intended.
▪ Court ruled that the purpose of the 13th and 14th Amendments was solely to protect former slaves; except for the P & I clause, all of the other restrictive interpretations of the 14th Amendment were overruled
➢ Saenz v. Roe
▪ modern and only case to use the Privileges and Immunities Clause to find that people had the right to travel and therefore were entitled to welfare benefits if they were considered residents of the State of California
▪ The clause protects the right to travel and the citizen’s right to be treated equally in her new State of residence. In a broader sense, this case made it possible for courts to challenge and nullify state laws based on the privileges and immunities clause in the 14th Amendment. This happened in 1935 with Colgate, but the ruling was overruled 5 years later in Madden.
❖ Incorporation of the Bill of Rights into the Due Process Clause of the 14th Amendment
➢ Because Slaughterhouse Cases, the Bill of Rights could not be applied through P & I.
➢ Practically the entire Bill of Rights has been incorporated under the Due Process Clause of the 14th Amendment
▪ Due Process Clause: No State shall deprive any person of life, liberty, or property, without due process of law
▪ Exceptions
• Right to bear arms 2nd Amend
• Quartering of Soldiers 3rd Amend
• Grand Jury in Criminal Cases 5th Amend
• Right to jury trial in civil cases 7th Amend
• Prohibition of excessive fines 8th Amend
▪ The number of people required to be on a jury (6 but must have unanimous verdict) and that there must be a unanimous jury verdict are applied differently to the States and the federal government.
➢ Strict Incorporation: apply all amendments
➢ Selective Incorporation: Bill of Rights should be selected as to which rights should be applied to states. Look to the rights rooted in history & tradition, essential & fundamental (this method was used)
➢ The Bills of Rights must be followed exactly the same way at the State level as they are at the Federal, with the exception of unanimous jury votes and a 12 man jury.
➢ Twining v. New Jersey
▪ expressly recognized the possibility that the Due Process Clause of the Fourteenth Amendment incorporates provisions of the Bill of Rights and thereby applies to State and Local government
▪ Does the 14th Amendment’s due process clause constitutionally allow the Bill of Rights to apply to state and local governments?
• Yes. The Court clearly recognized the possibility that the due process clause of the Fourteenth Amendment incorporates provisions of the Bill of Rights, and thereby applies them to state and local governments.
• But in this case the court ruled that the state court did not violate his constitutional right for them not to instruct the jury in the manner they did because that right was not incorporated into the conception of due process of law. (it was not a fundamental right)
➢ Palko v. Connecticut
▪ The right to a jury trial was not protected through the 14th Amendment; mainly this meant that the states could alter jury trials.
➢ Adamson v. California
▪ Is a defendant protected by the 14th Amendment from state law that violates the Δ’s 5th Amendment rights?
• No. A clause of the 5th Amendment is not made effective by the 14th Amendment as a protection against state action. The Due Process Clause of the 14th Amendment does not draw all the rights of the federal Bill of Rights under its protection.
➢ Duncan v. Louisiana
▪ Provisions of the Bill of Rights would be applied to the States if it is a right that is among those fundamental principals of liberty and justice which lie at the base of all our civil and political institutions, whether it is basic in our system of jurisprudence and whether it is a fundamental right, essential to a fair trial.
• Justice Cardozo- “principals of justice so rooted in the tradition and conscience of our people as to be ranked fundamental and that were therefore implicit in the concept of ordered liberty”
Application of the Bill of Rights and Constitution to Private Conduct
❖ Requirement for State Action
➢ The constitutions protections of individual liberties and its requirement for equal protection apply only to the government; private conduct doesn’t generally have to comply with the constitution unless there is State Action
▪ Can find State Action through (1) Public Functions; or (2) Entanglement
➢ Policy arguments:
▪ Preserves a zone of private autonomy
▪ It enhances Federalism by preserving a zone of state sovereignty
➢ When is it the government?
▪ Olympic Committee was not a part even though chartered by Congress, regulated by Federal law, and partially federally funded.
▪ Amtrak was state action b/c it was created by federal law, a board appointed by president and substantial federal funding, government owned stocks, appointed directors, and ultimately managed the company.
▪ ***It is all a matter of degree.
➢ When is an individual acting as government?
▪ Government officer, state actor, doctors & psychiatrists working in prisons, public defender is not b/c public defenders loyalties are not to the government, or is the person acting & complying with a state official? Owner of mobile home park was acting w/sheriff to seize individual’s property.
➢ Civil Rights Cases: United States v. Stanley
▪ Does the 14th Amendment apply to private actions as well as state and local government actions?
• No. The 14th Amendment applies just to state and local actions, not to private conduct. “The 14th Amendment is prohibitory upon the States…Individual invasion of individual rights is not the subject matter of the amendment.” The Amendment does not invest congress with power to legislate upon subjects which are within the domain of state legislation…It does not authorize congress to create code of municipal law for the regulation of private rights.
• The Act of Congress in the Civil Rights Act was unconstitutional because individual invasion of individual rights is not the subject matter of the Amendment, the subject matter is government action.
□ What is the concept? Federalism.
• Court concluded that Congress under § 5 of the 14th Amendment could not regulate private conduct but, rather, only could legislate against wrongs by state governments
▪ The federal constitutional rights do not govern individual behavior and, furthermore, that Congress lack the authority to apply them to private conduct.
• Exceptions to this rule however:
□ 13th Amendment forbids people from being or owning slaves.
□ Government can enact laws that require that private conduct meet the same standards that the Constitution requires of the government; Actions brought directly under such statutes and are governed by the terms of the law, not the Constitution.
❖ Exceptions to the State Action Doctrine (private conduct must comply with the Constitution)
➢ Public Functions Exception
▪ Public Functions: A private entity must comply with the Constitution if it is performing a task that has been traditionally and exclusively done by the government
▪ Two important purposes:
• 1. Government should not be able to avoid the Constitution by delegating its tasks to a private actor.
• 2. There are some acts that seem inherently governmental in nature and a private entity performing such acts should be limited by the Constitution.
▪ Three major areas where public functions arise: management of private property, control of the electoral process, and running or regulating schools.
▪ Marsh v. Alabama(company-owned town; management of private property)
• the management of a city is a traditional and exclusive government function
• the more an owner makes property usable be the public, the more his rights become circumscribed by the statutory and constitutional rights of those who use it
□ this language is broad, yet the court has kept it narrow refusing to find a public function in the management of amusement parks or golf courses
• the circumstance that the property rights to the premises where the deprivation of liberty, here involved, took place, were held by others than the public, is not sufficient to justify the State’s permitting a corporation to govern a community of citizens so as to restrict their fundamental liberties and the enforcement of such restraint by the application of a State statute.
• May the government criminally punish a criminal Δ who distributed religious literature on the premises of the company-owned town contrary to the wishes of the town’s management?
□ No. Running a city is a public function, and therefore it must be done in compliance with the Constitution (1st and 14th Amendments), whether by the government or a private entity. The private property rights of the company did not “justify the States permitting a corporation to govern a community of citizens so as to restrict their fundamental liberties. Ownership does not always mean absolute dominion.
• Employs a balancing test focusing on whether the private property is used for a public purpose.
• Case never overruled
▪ Jackson v. Metropolitan Edison Co.
• utility that was given a monopoly by the state was not sufficient to create state action
• mere fact that a business is subject to state regulation does not by itself convert its action into that of the State for purposes of the Fourteenth Amendment
• Focused on whether it is an activity that has been traditionally, exclusively done by the government
• Limited both government function & entanglement exceptions: traditional & exclusive functions, and close nexus to conduct
• Court rejects the argument that all businesses “affected with the public interest” are state actors in all their actions.
• B/c there are also private utility companies, the court would not deem this utility company a state actor
▪ Elections
• Cannot discriminate with anything to do with elections. Not primaries or even primaries conducted by a private group that have a large margin of success.
• Elections are primarily a traditional and exclusive State Function
• Terry v. Adams
□ Is it constitutional for a private political organization to exclude members on the basis of race?
➢ No. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude. The Jaybird party holds the kind of election the 15th Amendment seeks to prevent. The party has become an integral part of the elective process that determines who shall rule and govern in the county.
➢ In this case the government was permitting a private party to affect a traditional government action.
➢ Running an election is a task that has been traditionally, exclusively done by the government.
▪ Private Property Used for Public Purposes
• Evans v. Newton
□ the management of a park, that was primarily run by the state, was given to a private entity to avoid complying with the Constitution.
➢ This was a public function- can’t delegate away a Constitutional Duty
➢ Running a park is a public function and had to comply w/Constitution even if managed by a private entity
□ If the municipality remains entwined in the management or control of the park, it remains subject to the restraints of the Fourteenth Amendment. (Entwinement)
□ just b/c it is owned by private trustees does not make it excluded from the Constitution, the park is maintained by the city & is therefore entwined in State Action
• Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza (overruled by Hudgens)
□ Held a privately owned shopping center could not exclude striking laborers from picketing a store within it. (Reasoned that the shopping center was open to the public and functionally was the same as the commercial center of a town
• Lloyd Corp. v. Tanner
□ Held that a privately owned shopping center could exclude anti-Vietnam War protestors. Distinguished from Logan b/c Logan involved a labor protest related to the functioning of a store in the shopping center, whereas Lloyd was unrelated to the business conduct.
□ Under Lloyd, speech in shopping centers is constitutionally protected and cannot be the basis for trespassing only if its content concerns the functioning shopping centers.
□ Does a privately owned shopping center have the right to prohibit the distribution of handbills on its property when the handbilling is unrelated to the shopping center’s operations?
➢ Yes. There has been no dedication of Lloyd’s privately owned and operated center to public use as to entitle respondents to exercise their 1st Amendment rights therein. This case was distinguished from Logan Valley in several respects: the facts – no municipally owned sidewalks or streets in the Mall; the handbills were not directly related to the dealings of the shopping center as in Logan Valley; in this case, the audience for the handbills could have been reached outside the Mall.
➢ “It would be an unwarranted infringement of property rights to require them to yield to the exercise of 1st Amendment rights under circumstances where adequate avenues of communication exist.”
➢ Finally, property does not lose its private character merely because the public is generally invited to use it for designated purposes.
• Hudgens v. National Labor Relation Board(overruling Logan) (THIS IS THE CURRENT LAW)
□ Court specifically held that the First Amendment does not apply to privately owned shopping centers regardless of the content of the speech. Shopping Centers are not a traditionally exclusive government function
□ A State could pass a law allowing access to shopping centers, it is just not Constitutionally mandatory.
□ Does a privately owned shopping center have the right to prohibit the picketing inside the Mall, even when the subject of the picket is related to one of the stores on the property?
➢ Yes. The constitutional guarantee of free expression has no part to play in a case such as this. The ultimate holding in Lloyd was a total rejection of the holding in Logan Valley. If a large self-contained shopping center is the functional equivalent of a municipality, as Logan Valley held, then the 1st and 4th Amendments would not permit control of speech within such a center to depend on the speech’s content.
➢ Entanglement Exception
▪ Entanglement Exception: The constitution applies if the government affirmatively authorizes, encourages, or facilitates the unconstitutional conduct.
▪ Arise under 4 primary categories: judicial and law enforcement actions, government licensing and regulation, government subsidies, and voter initiatives permitting discrimination
▪ Entanglement:
• Gov’t officials involved in deprivation (joint participation)
□ Two part test from Lugar:
➢ Private party invokes state law; and
➢ Acts with state officials
□ Judicial enforcement ------------- mere inaction ≠ state action
• Symbiotic Relationship between the private party and the government mutually conferred benefits
• Gov’t regulation/subsidies alone is not state action
▪ Judicial and Law Enforcement Actions
• There are two other areas where the court has found the involvement of courts as a basis for State action: the use of courts in prejudgment attachments and the use of preemptory challenges (protects the constitutional right of the jurors)
• Shelley v. Kraemer
□ it is State action if courts enforce racially restrictive covenants. The court would have enforced the agreement and therefore State action. Court decided that courts may not enforce racially restrictive covenants, but if they could it would have been state action
□ Very broad language so everything would be state action
• Prejudgment Attachment
□ Lugar v. Edmondson Oil Co.
➢ Court found that there was state action when a creditor obtained a writ of prejudgment attachment from a court, concluding that the involvement of the court in issuing the writ and the sheriff enforcing it was sufficient for state action.
➢ Lugar two part test for state action: (1) Deprivation must be caused by the exercise of some right of privilege created by the state (2) Party charged with the deprivation must be a person who may fairly said to be a state actor with or has obtained significant aid from the state.
▪ court involvement might be enough, but this is extremely broad & the court shies away from using only the court as a government official
➢ Contrasted Flagg Brothers b/c there a lady was evicted and the sheriff arranged for her possessions to be stored at a warehouse, but b/c the warehouse was privately owned, no state action.
• Peremptory Challenges
□ Batson v. Kentucky
➢ Court held that equal protection prohibited prosecutors from using peremptory challenges in a discriminatory fashion in criminal cases.
□ Edmondson v. Leesville Concrete Co.
➢ Applied Batson to private civil litigation; applied Lugar test and found that there is state action when private parties exercise peremptory challenges in a civil case in a racially discriminatory manner. (State/federal laws allow peremptory challenges, and the use of juries/voir dire process was a government function)
➢ Laws create peremptory challenges and jury selection is a government function accomplished through the power of the state and overseen by a judge.
▪ Government Regulation
• The only case where the court has found this was sufficient was Burton v. Willington Parking Authority because there was a symbiotic Relationship sufficient to create state action.
• Burton v. Wilmington Parking Authority (Never overruled)
□ We hold today is that when a State leases public property in the manner and for the purpose shown to have been the case here, the proscriptions of the 14th Amendment must be complied with by the lessee as certainly as though they were binding covenants written in the agreement itself.
□ Court found an actual symbiotic relationship
➢ Found this b/c it was a publicly owned building done w/public funds and the parking facility was used by restaurant’s customers, while the government benefited from profits
➢ ‘mutually conferred benefits’—state profited from discrimination b/c the restaurant could do better business & therefore the government would get better profits
➢ Inaction is not enough,
• Moose Lodge No. 107 v. Irvis
□ though government gave permit for liquor, no state action when private lodge racially discriminates.
□ Lodge was on private property, privately owned and not managed by any public authority
□ Dissent: licenses are not open to everyone and are limited in number, therefore there is sufficient state action
□ Ways to find State Action:
➢ Symbiotic Relationship- mutually conferred benefits
➢ Close Nexus between government and challenged conduct
▪ Whether such a close nexus exists depends on whether the State has exercised coercive power or has provided such significant encouragement, either overt or covert, that the choice must be deemed to be that of the State. Action taken by private entities with the mere approval or acquiescence of the State is not state action.
➢ Public function that has traditionally and exclusively been performed by the state.
• Courts will most likely find state action on the basis of Burton if it can be shown, and apply the entanglement exception if:
□ the gov’t’s actions are likely to be perceived as approving the private conduct; or
□ there is some way in which the gov’t has encouraged the wrongful behavior;
□ the private behavior simply could not have occurred w/o the gov’t’s assistance.
▪ Government Subsidies
• The court found this in only two cases, Norwood v. Harrison and Gilmore v. City of Montgomery where state action was used to undermine the protection of constitutional rights, racial desegregation
• Norwood v. Harrison
□ There was state action when the government gave free textbooks to private schools that engaged in racial discrimination, which meant that either the schools had to stop discriminating if they wanted the books or if they kept their policy of discrimination, the state had to halt giving them books.
• Rendell-Baker v. Kohn
□ no state action when a private school that received almost all of its funding from the government fired a teacher because of her speech.
□ Schools are not a traditional, exclusive government function
□ The question is not whether the school performs a “public function,” but rather whether the function performed has been traditionally the exclusive prerogative of the State.
➢ the nexus must be to the challenged conduct (there was no government requirements to hiring/firing teachers)
□ Government funding, by itself, is not a basis for finding state action
□ Because the school’s actions were not “compelled or even influenced by any state regulation,” the Constitution did not apply. That a private entity performs a function which serves the public does not make its acts state action.
• Blum v. Yaretsky
□ The court refused to find state action in Blum v. Yaretsky and Rendell Baker, where other rights were questioned even though the state supported these institutions financially more than the first two.
□ State policy required that private facilities receiving Medicaid funding create “utilization review committees” to determine the level of care needed. No state action b/c the decision to transfer was made by the private nursing home.
➢ “a state normally can be held responsible for a private decision only when it has exercised such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the State.”
• The Court is most likely to find that government subsidies are state action when the government’s purpose is to undermine the protection of constitutional rights. Absent such motivation, it is very difficult to find that government funding is sufficient for a finding of state action.
▪ Initiatives Encouraging Violations of Rights
• In cases that involve laws giving people rights to turn down housing for any reason, it is encouraging discrimination in housing. In laws that state pupils cannot be shipped to schools geographically not so close, it is encouraging violating desegregation.
□ Yet these laws can avoid this if they put in an “will obey with federal laws” clause.
• Reitman v. Mulkey
□ Court found unconstitutional a voter initiative that repealed open housing laws preventing the enactment of such future antidiscrimination laws.
□ The Supreme Court found unconstitutional a voter initiative that repealed open housing laws and prevented the enactment of such future antidiscrimination laws.
➢ Does Proposition 14 invalidly involve the State in racial discriminations in the housing market?
▪ Yes. The provision would involve the State in private racial discriminations to an unconstitutional degree. If it had been upheld, the State court reasoned that “those practicing racial discriminations need no longer rely solely on their personal choice. They could now invoke express constitutional authority, free from censure or interference of any kind from official sources.” The court further said that the initiative’s purpose and effect was to encourage private discrimination.
▪ Dissent: By refusing to accept the decision of the people of California, and by contriving a new and ill-defined constitutional concept to allow federal judicial interference, I think the Court has taken to itself powers and responsibilities left elsewhere by the Constitution.
□ If the gov’t can enact laws to protect a specific group against private discrimination, it can also repeal the same law to take it back to a “base line of inaction” on the State’s part.
□ “Base line of inaction” vs. creating a constitutional right that stops or prohibits any future antidiscrimination laws until the constitution is amended. This is against the Constitution because it can be viewed as sufficient encouragement.
□ The state has the right to repeal and pass any laws that they want, but going beyond might offend the constitution
□ Mere Repeal of law (not Equal Protection violation) v. constitutional right (banned future anti-discrimination laws)
➢ If the constitution says that there is a right to discrimination, then states cannot pass laws to prohibit discrimination
▪ Entwinement
• Brentwood Academy v. Tennessee Secondary School Athletic Assn.
□ only case to find state action with schools, it is also the only case to use entwinement. The Athletic Association was made up of predominately public schools, ran by public schools, used government property.
□ State action may be found only where there is such a close nexus between the State and the challenged action that seemingly private behavior may be fairly treated as that of the State itself.
□ May a statewide association incorporated to regulate interscholastic athletic competition among public and private secondary schools be regarded as engaging in state action when it enforces a rule against a member school?
➢ Yes. The association’s regulatory activity may and should be treated as state action owing to the pervasive entwinement of state school officials in the structure of the association, there being no offsetting reason to see the association’s act in any other way. There would be no recognizable association, legal or tangible, without the public school officials, who not only control but overwhelmingly perform all but the purely ministerial act by which the Association exists and functions.
➢ Dissent: enforcement of the recruiting rule as state action not only extends the state-action doctrine beyond its permissible limits but also encroaches upon the realm of individual freedom the doctrine was meant to protect. The majority does not define entwinement.
• Tarkanian v. National Athletic Association
□ nearly same as Brentwood, yet the NCAA was national while the Brentwood Association was all in one state, therefore state rather than interstate action.
□ Although regulating collegiate activities is critical, it is not a traditional, let alone exclusive, state function.
Economic Liberties
Introduction
❖ Generally refer to constitutional rights concerning the ability to enter into and enforce contracts; to pursue a trade or profession; and to acquire, possess, and convey property
❖ Contracts Clause: Art. 1 § 10: No state shall impair contracts (Future contracts don’t matter, it just can impair existing contracts)
❖ 14th Amend: No state shall deprive you of life, liberty, or property w/o due process of law
➢ Procedural Due Process-safeguards before deprivation (types of trial, notice, etc.)
➢ Substantive Due Process-insufficient justification for doing it
➢ Due process clause under liberty ensure the substantive rights of people.
➢ Court determines that liberty protects freedom of contract
❖ K rights are found in the Due Process Clause of the 14th Amendment: it gives rights to:
➢ 1. Procedural Protection
➢ 2. Substantive Protection
▪ Justifications for the holding (justifications insufficient)
▪ No state shall deprive anybody of life, liberty, or property without substantive due process. (i.e. - Must have good enough justification to deprive citizens of these inherent rights)
➢ It was through the “liberty” clause of due process to incorporate the Bill of Rights.
▪ There is a right to K, and pursue trade. The Court said in the following cases that regulation of these issues is okay if it is substantively justified by the police power of the government.
Economic Substantive Due Process
❖ Introduction
➢ Two main areas of use: protect economic liberties & safeguard privacy
➢ D.P. clause protects against laws that deprive individuals of liberty
▪ Liberty includes many of the first 8 amendments, but does it include anything else? (incorporation). It also includes non-textual rights that are not included in the first 8 amendments.
➢ Liberty includes freedom of contract
➢ Courts should closely scrutinize the state’s justification to ensure laws are reasonable
❖ Substantive Due Process of the Lochner Era
➢ Classic substantive due process: Due Process Clause was used not to ensure that the government followed proper procedures, but to ensure that laws served an adequate purpose.
➢ Allgeyer v. Louisiana
▪ Supreme Court declared unconstitutional a state law that prohibited payments on marine insurance policies issued by out-of-state companies that were no licensed of approved to do business in the state.
• Can a State constitutionally limit its citizens from engaging in business with foreign businesses?
□ No. The statute is in violation of the 14th Amendment, in that it deprives the Δs of their liberty without due process of law. The Louisiana law interfered with freedom of contract and thus violated the due process clause of the 14th Amendment. They interpreted “liberty” in the Amendment “to embrace the right of citizen[s] to be free in the enjoyment of all his faculties, to be free to use them in all lawful ways . . . for that purpose to enter into all contracts which may be proper, necessary, and essential to his carrying out to a successful completion the purposes above mentioned.”
➢ Lochner v. New York
▪ though there probably was a valid police purpose in protecting baker’s health, the court found that the number of hours a person worked was in his right to contract
▪ The Supreme Court declared unconstitutional a New York law that set the maximum hours that bakers could work (no more than 60/week or more than 10/day). Court emphasized that limiting hours of work for bakers had no relationship to public health
• Can a State enact a law that prohibits the amount of hours an individual works?
□ No. Doing so violates the due process clause of the 14th Amendment because it interfered with freedom of contract and because it did not serve a valid police purpose. The right to purchase or sell labor is part of the liberty protected by the 14th Amendment. The Courts articulated 3 principles that were followed until 1937.
➢ 1. Freedom of contract is a basic legal right protected as liberty and property rights under the due process clause of the 14th Amendment.
➢ 2. The government can interfere with freedom of contract only to serve a valid police purpose: that is to protect the public safety, public health, or public morals.
➢ 3. It is the judicial role to carefully scrutinize legislation interfering with freedom of contract to make sure that is served a police purpose.
□ Court applied these three principles to declare the law unconstitutional. The court declared “[a] law like the one before us involves neither the safety, the morals nor the welfare of the public, and that the interest of the public is not in the slightest degree affected by such an act.” There is a creeping socialism in the government, as to regulating the wealth and affairs of distributing the wealth.
□ Dissent: Holmes is arguing for judicial passivism.
➢ Law Protecting Unionizing
▪ Adair v. United States- right to enter into a union is protected under economic substantive due process
▪ Coppage v. Kansas
• Workers attempted to unionize, and many states and the federal government adopted laws to facilitate unionization by prohibiting employers from insisting, as a condition of employment, that employees agree not to join a union.
□ An individual has no inherent right to join a union and still remain in the employ of one who is unwilling to employ a union man. It is not a legitimate exercise of the police power for the government to attempt to equalize bargaining power between employer and employee. The laws were unconstitutional as infringing on freedom of contract. (Favored Employers)
□ “the right of a person to sell his labor upon such terms as he deems proper is, in its essence, the same as the right of the purchaser of labor to prescribe the conditions upon which he will accept such labor from the person offering to sell it.” (Freedom of K)
➢ Maximum Hours Laws
▪ Muller v. Oregon
• Upheld a maximum hours law for women
• Can the State constitutionally enact laws that regulate the amount of hours women can work?
□ Yes. Based on widespread belief of women’s physical structure, and the functions she performs and maternal functions, justify special legislation restricting or qualifying the conditions under which she should be permitted to toil.
• In this case it was the public welfare that was being protected, because the survival of the race was dependent on the reproductive capacity of women; it was for the good of all if women didn’t work.
• Historically women have been dependent upon men, so it makes sense, plus she is not an equal competitor with her brother (unequal bargaining power)
▪ Bunting v. Oregon
• Court upheld maximum laws for men and women in manufacturing jobs b/c needed to protect the health of the employees.
➢ Minimum Wage Laws
▪ Adkins v. Children’s Hospital
• Declared unconstitutional minimum wage laws for women.
□ The minimum wage law impermissibly interfered with freedom of contract because it did not serve a valid state police purpose.
➢ “Generally speaking, the parties have an equal right to obtain from each other the best terms they can as the result of private bargaining”
□ Law declared unconstitutional.
• Court rejected the argument that w/o a minimum wage women would be forced to earn money in an immoral manner; court stressed that women were growing in equality to men, particularly after the adoption of the 19th Amendment
➢ Consumer Protection Legislation
▪ Weaver v. Palmer Bros. Co.
• Court closely scrutinizes this law and invalidates it in order to protect the business
• Dissent: says that we can’t analyze everything, so we should just disregard all shoddy and prohibit its use
• Court declared unconstitutional a state law prohibiting the use of shoddy (rags and other debris) in making bedding.
• Does a provision forbidding the use of shoddy in bedding violate the Due Process Clause of the 14th Amendment?
□ Yes. The court declared that the law interfered with freedom of contract for those who wished to buy and sell such products. The Court said that the public interest in health could be served by regulation, such as mandating sterilization of the material
□ Law declared unconstitutional.
▪ Nebbia v. New York
• New York legislature established a law that fixed the minimum and maximum retail prices to be charged by stores to consumers.
□ Does the Constitution prohibit a state from fixing the selling price of milk?
➢ No. If the laws passed are seem to have a reasonable relation to a proper legislative purpose, and are neither arbitrary nor discriminatory, the requirements of due process are satisfied. A state is free to adopt whatever economic policy may reasonably be deemed to promote public welfare and to enforce that policy by legislation adapted to its purpose.
➢ Furthermore b/c of the nature of milk and the importance of it in our diet, the court was going to favor the law (public policy)
➢ Law upheld. The court is starting to recognize a broader state police power
▪ In each of these cases, we are balancing the individuals interests against the communities interests
▪ It is necessary for the community as a whole and would help farmers at the same time
❖ Economic Substantive Due Process Since 1937
➢ Pressures for Change
▪ Deep hits from Depression
▪ Depression created perception that government economic regulations were essential
▪ The Court signaled the end of the laissez-faire jurisprudence that had dominated constitutional law for several decades and had favored employers and corporations over employees and consumers.
▪ FDR’s court packing power: appoint justices. For every justice over 70 he could appoint another justice that would have increased the Supreme Court to 15.
• In consequence, the Supreme Court began to think twice before invalidating state laws, and to abandon the full laissez-faire principle
➢ The end of Lochnerism
▪ West Coast Hotel Co. v. Parrish (overruled Adkins v. Children’s Hospital & Morehead v. Tipaldo)
• Established minimum wage for women
• Court upheld law setting minimum wage for women and court expressly stated it could regulate not only to promote the police powers of the state, but also to equalize worker’s bargaining power
• If you don’t pay the women what they need, then they go onto welfare and become a burden upon society
• Says that liberty does not include freedom of K.
• The Constitution does not recognize an absolute and uncontrollable liberty
• Liberty under the Constitution is necessarily subject to the restraints of due process
• Even if the wisdom of the policy be regarded as debatable and its effects uncertain, still the Legislature is entitled to its judgment.
• What can be closer to the public interest than the health of women and protecting them from overreaching employers?
▪ Court unequivocally declared that it no longer would protect freedom of contract as a fundamental right, that government could regulate to serve any legitimate purpose, and that the judiciary would defer to the legislature’s choices so long as they were reasonable.
▪ U.S. v. Carolene Products Co.
• court upheld consumer protection law banning “filled milk”. Famous footnote 4 is found in this case expounding a rational basis test.
• Move to the economic laws are presumed to be VALID. (economic regulations should be upheld so long as they are supported by a conceivable rational basis, even if it cannot be proved that it was the legislature’s actual intent.)
□ It is now enough that the law has some rational basis (rational basis test) only UNLESS (Greater scrutinizing by the courts will be justified)
▪ This is a dual standard of review, not all laws and issues have the same standard.
➢ 1. Discrimination against “discrete and insular minority”
➢ 2. Laws that adversely affect the political process (voting rights)
➢ 3. If there are specific textual rights in the Constitutional have been violated (will not use a rational basis analysis)
• What should the role of the courts be? How much should the courts scrutinize laws?
□ Footnote 4 is the most heralded footnote in Con. Law.
➢ Courts generally presume that laws are constitutional, but deference would be replaced by a more searching judicial inquiry when:
▪ It is a law that interferes with individual rights,
▪ It is a law that restricts the ability of the political process to repeal undesirable legislation; or
▪ It is a law that discriminates against a “discrete and insular minority”
• Court abandoned substantive due principles of Lochner, and overruled the limits that it had placed on Congress’s power during that era.
➢ Economic Substantive Due Process Since 1937
▪ The court has never used economic due process of the Fifth or Fourteenth Amendments to declare any law unconstitutional during this time, the court has used the contracts clause and the takings clause
• The court uses a rational basis test, to uphold in most cases, all economic regulations passed by the government
• The court upheld retroactive legislation that changed contract rights if there was no criminal penalty, just money damages, if the State’s law served a legitimate government purpose
▪ Court has made clear that economic regulations will be upheld when challenged under the Due Process Clause so long as they are rationally related to serve a legitimate governmental purpose.
• The purpose can be any goal not prohibited by the Constitution – the law only need seem a reasonable way of attaining the end.
• Several cases illustrate how unlikely that any economic regulation will be found to violate due process.
▪ Williamson v. Lee Optical of Oklahoma, Inc.
• The Supreme Court upheld an Oklahoma statute that prohibited an optician to fit or duplicate lenses without a prescription from an optometrist or an ophthalmologist.
□ Is it unconstitutional for a state legislature to enact statutes prohibiting a fitting or duplication of glass lenses without a prescription?
➢ No. It is for the legislatures, not the courts, to balance the advantages and disadvantages of the new requirement, even though the Oklahoma law may be a needless, wasteful requirement in many cases. The law may be illogical but the “day is gone when the Court uses the Due Process Clause to strike down laws regulatory of business and industrial conditions, because they may be unwise, improvident, or out of harmony with a particular school of thought. For protection against abuses by legislatures the people must resort to polls, not to the courts.
• Since that time, so long as the Court can conceive of some legitimate purpose and so long as the law is reasonable, a law will be upheld.
• Court truly has gone the opposite direction, compared to during the Lochner Era
▪ Court said that states could legislate against ‘injurious practices in their internal commercial and business affairs, so long as their laws do not run afoul of some specific federal constitutional prohibition, or of some valid federal law.’
➢ Following cases involve the Supreme Court invalidating large punitive damage awards as violating due process.
▪ BMW of North America, Inc, v. Gore
• The judicial branch, and juries, are being challenged/implicated
• A doctor paid $40,000 for a new BMW only to discover later that part of the car had been repainted because of acid rain damage and that he had not been informed of this when purchasing the car. Finding grossly excessive a punitive damages award of $2 million for the undisclosed repainting of automobiles to customers where the punitive damages award included conduct in states where the Δ’s conduct was lawful and where the compensatory damages award was $4,000.
□ Is an award of excessive punitive damages a violation of due process?
➢ Yes. Grossly excessive punitive damages deny due process. The Court limited the ability of a jury to award punitive damages for a Δ’s conduct in other states. In deciding the reasonableness of punitive damages, the Court iterated three-prongs (indicia) to consider:
▪ 1. The degree of reprehensibility of the Δ’s conduct. The exemplary damages should reflect the “enormity of [the] offense.”
▪ 2. The ratio of the punitive damages to the actual harm inflicted (compensatory) on the Π. The exemplary damages must bear a “reasonable relationship” to compensatory damages.” It must not “raise a suspicious judicial eyebrow.”
▪ 3. Compare the punitive damages award and the civil or criminal penalties that could be imposed for comparable misconduct.
➢ The grossly excessive award imposed in this case transcends the constitutional limit.
• Injury in terms of compensatory damages was $4,000; and the jury awards punitive damages of $2 million
□ Consider the following 3-prongs:
➢ 1. Reprehensibility (most important)
➢ 2. Ratio between compensatory and punitive damages
➢ 3. Comparison to other civil sanctions
□ How may due process be violated?
➢ An entity must have fair notice
➢ Also, giving extra-territorial damages from suits out of state
▪ Should not be able to impose damages for actions that occurred out of state. Issue now before the Supreme Court: Can you impose damages for people that are not before the Court? Does this violate Due Process, under no “fair notice.”
▪ Is this Lochnerizing, or is there a viable substantive Due Process issue?
▪ State Farm Mutual Automobile Insurance Co. v. Campbell
• Claim against a national automobile insurance company for bad faith and fraud in refusing to settle a claim. The jury awarded $1 million in compensatory damages and $145 million in punitive damages. The Supreme Court found that the award of punitive damages was grossly excessive.
□ Is an award of excessive punitive damages a violation of due process?
➢ Yes. Grossly excessive punitive damage awards violate due process. The damages awarded was neither reasonable nor proportionate to the wrong committed, and it was an irrational and arbitrary deprivation of the property of the Δ. The Court applied the 3-prong test of BMW v. Gore.
▪ 1. Degree of reprehensibility. State Farm’s fraud was low on this scale. They also said that punitive damages are now limited to punishing a Δ for that type of conduct in that state. Consider the harm caused was physical as opposed to economic.
▪ 2. Ratio between harm and punitive damages. “Our jurisprudence and the principles that has now established demonstrate, that in practice, few awards exceeding a single-digit ratio between punitive and compensatory damages, to a significant degree, will satisfy due process.
▪ 3. Compare to other punishments in the jurisdiction for the conduct. “The remote possibility of criminal sanction does not automatically sustain a punitive damage award.” The Δ’s fraudulent conduct to the Πs in this case, in the state of Utah, has a civil sanction of about $10,000 – dwarfed by the $145 million punitive damages award.
▪ Philip Morris U.S.A. v. Williams (tobacco case)
• Issue: whether and to what extent juries may consider harms to third persons in awarding punitive damages.
□ Due process clause forbids a state to use a punitive damages award to punish a defendant for injury that it inflicts upon nonparties or those whom they directly represent, i.e., injury that it inflicts upon nonparties or those who are, essentially, strangers to the litigation.
□ You can may consider the possible harm to others to determine the degree of reprehensibility, but when calculating damages, you may not take into consideration the harm caused to others.
➢ Too much deference?
▪ Since 1937, protection of economic rights has come under two specific constitutional provisions: The Contracts Clause of Article I, § 10, and the Takings Clause of the 5th Amendment.
Contracts Clause
❖ Introduction
➢ This clause only applies to existing contracts, and only applies to State or local interference with contract rights; does not apply to federal government
▪ Any challenge that the federal government is interfering with contract rights must be challenged under the Due Process Clause where deferential rational basis will be used.
➢ Questions to determine if there is a violation of the Contracts Clause
▪ (1) Is there a significant, substantial impairment of a Contact right
• Does the breach interfere with reasonable expectations and see if there were previous regulations
▪ (2) Is there a significant and legitimate public purpose
• Does it affect a broad class or just a small specific group which is bad
▪ (3) Is it reasonable and necessary to the goals?
• Legislative deference (no deference when dealing with government impairment of their own contracts)
➢ Primarily, government may interfere with contracts when they are promoting their police power, which is to protect the lives, health, morals, comfort and general welfare (broad)
❖ The Modern Use of the Contracts Clause
➢ Home Building & Loan Assn. v. Blaisdell
▪ Supreme Court upheld a Minnesota law, enacted in response to the Depression, that prevented mortgage holders from foreclosing on mortgages for a 2-year period. Even though this was exactly the land of debtor relief legislation that the contracts clause was meant to forbid, the Court upheld it and emphasized the emergency nature of the legislation. Also it is a temporary solution, so it should be allowed.
• Emergency does not create power, nor increase granted power, but it may furnish the occasion for the exercise of power. The power is there through the valid exercise of police power.
• Factors to consider: relation of the emergency to constitutional power, historical setting of the contract clause, development of the jurisprudence of this Court in the construction of the clause, and the principles of construction which we may consider to be established.
• Article I § 10:
□ What does the Supreme Court say about originalism?
➢ They take a non-originalist view, by citing to Justice Marshall: “a constitution intended to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs.”
▪ Reasons for upholding:
• An emergency existed which furnished proper occasion for the exercise of the reserved power of the state to protect that vital interests of the community.
• Legislation was for the protection of a basic interest in society
• It was appropriate and reasonable for the condition
• Conditions upon which the period were extended did not appear unreasonable
• Legislation was a temporary measure.
▪ Reaffirms that the government can interfere with existing contracts if it has a valid police purpose, and it describes the police power broadly enough to include debtor relief, protecting people from foreclosure of their mortgages, as a valid governmental objective.
➢ Government Interference with Private Contracts (only one case where a state law has been found to violate the contracts clause: Allied)
▪ Three part test (government usually wins)
• (1) Is there a substantial impairment of a contractional relationship? If yes, continue
• (2) Does it serve a legitimate and significant public purpose? If yes, continue
• (3) Is it reasonably related to achieving the goal?
• ***Unconstitutional if there is a substantial impairment, but there is not a legitimate or significant purpose
• ***Second and third prongs are upheld as long as they meet a rational basis test; virtually all laws have been found to meet this deferential standard.
▪ Energy Reserves Group, Inc. v. Kansas Power & Light Co.
• Case establishes three prong test (see above)
• Kansas set regulation on the price of natural gas
▪ Allied Structural Steel Co. v. Spannaus
• An Illinois company operated an office in Minnesota and provided a pension plan for its employees. The terms of the plan provided that the company could, at any time, amend the plan or terminate the plan and distribute the assets to the employees. Employees were entitled to collect under the plan if they worked for the company until they reached age 65 and if the plan was in effect at that time. Minnesota adopted an Act that required employers to pay a “pension funding charge” if they terminated a pension plan or closed a Minnesota office. The charge was reasoned that it ensured pension would be available for individuals when they reached retirement age. Allied Steel closed in Minnesota and was assessed a $185,000 fee.
• Court ruled that this was a sudden, unexpected law, and had never been subject to regulation
• Though there was a public purpose, it didn’t necessarily benefit the entire public, but instead only benefited a select few (only the employees of the company would benefit)
□ Does a law enacted following the formation of a contact, that requires a company to pay a fee violate the contracts clause of the Constitution?
➢ Yes. “The Contracts clause remains part of the Constitution. It is not a dead letter.” The statute was found to be a substantial impairment of the obligation of contracts. It was not a law that was enacted to protect a broad society interest rather than a narrow class. The court’s decision was scrutinized on 2 levels:
▪ Was there a substantial impairment of a contract?
• In dissent, Brennan argued that the “Act does not relieve either the employer or his employees of any existing contract obligations.
• This is a clear impairment of contract rights.
▪ Was the Court using more than the rational basis test? The Act seemed to be to ensure a legitimate government purpose, but the Court seemed to be using a heightened level of scrutiny that is not usually used in evaluating government regulation of private contracts.
➢ This case has not been following in the last two decades, so it is hard to know whether it is an anomaly, although the court has distinguished it from other cases along the way, without finding a violation of the Contracts Clause.
• 1) Is there substantial impairment of K rights? If yes, go to 2
□ In this case there is an interference with reliance interests v. heavily regulated industry
□ The court is focusing on interference with reliance interest in Blaisdell and in the energy reserve case the oil company was a heavily regulated industry and they should anticipate future regulations.
• 2) Does the impairment serve a significant, legitimate public purpose and are the means reasonably related to the goal?
□ If it deals with private Contracts, then the court will defer to the legislature
□ If it deals with government contracts, then it must be reasonable and necessary
➢ Government Interference with Government Contracts
▪ The level of scrutiny was never stated, yet it is a higher level than rational basis
▪ The legislative record matters little because the state can always find a reason to protect itself
▪ The court use the language “necessary to achieve the plan” almost like strict scrutiny
▪ U.S. Trust Co. v. New Jersey
• Government interference with government contracts will be subjected to heightened scrutiny
• An impairment may be constitutional if it is reasonable and necessary to serve an important public purpose
• In 1962, NY and NJ enacted laws prohibiting the use of toll revenues from the Port Authority of New Jersey and New York to subsidize railroad passenger service. The law was meant to assure those holding Port Authority bonds that the toll funds would remain available to pay the debt. A decade later, during the energy crisis of the 1970s, the states adopted laws to repeal the earlier prohibition and to permit the use of toll funds to improve rail transit.
□ Did the States violate the Contracts Clause by the repeal of a covenant to give revenues to bondholders?
➢ Yes. The Supreme Court had declared that the states had violated the contracts clause, and emphasized its distrust of the gov’t when it is promoting its own contracts. “Complete deference to a legislative assessment of reasonableness and necessity is not appropriate when the State’s self-interest is at stake. A government entity can always find use for extra money, especially when taxes do not have to be raised.” The Court recognized that conserving energy, and protecting the environment are important public purposes, but infringing the contract rights was “neither necessary to achievement of the plan nor reasonable in light of the circumstances.” The gov’t could have achieved the goal through other means.
□ Increased scrutiny should be used because the government was involved
• We are talking about the economic rights and interests vs. the police power.
Takings Clause
❖ Introduction
➢ Federal gov’t and the states have power of eminent domain with just compensation
➢ Analysis under the Takings Clause divided into four questions
▪ Is there a “taking”? Two ways to find a taking:
• Possessory taking: Occurs when the government confiscates or physically occupies property
• Regulatory taking: When government regulation leaves no reasonable economically viable use of property; government regulation is not a taking simply b/c it decreases the value of a person’s property, so long as it leaves reasonable economically viable uses
▪ Is it “property”?
• 5th Amendment only applies if it is property
▪ Is the taking for “public use”?
• Public use has a broad definition so that almost anything will meet the requirement – as long as it is “rationally related to a conceivably public purpose” – rational basis test
▪ Is “just compensation” paid?
• Measured in terms of loss to the owner; gain to the taker is irrelevant
➢ underlying principle is that if the government takes the property then society should pay
➢ There is no bright-line test employed, it is ad hoc, therefore it is based upon the circumstances
❖ Is there a taking?
➢ Possessory Takings
▪ Interest cases are possessory because government confiscates property
▪ If government builds a dam and it floods property, possessory taking
▪ Yet, in the free speech cases where individuals were allowed to protest in malls, the courts found there was no possessory taking
▪ Sometimes if there is an emergency situation it will not be classified as a taking
• Wartime, many losses must be attributed solely to the fortunes of war, and not to the sovereign.
▪ Loretto v. Teleprompter Manhattan CATV Corp.
• A city ordinance required apartment building owners to make about 1 cubic foot available for cable television facilities.
□ Is it taking under the 5th Amendment when the government requires owners of property to make space available for cable television services, even if it is 1 cubic foot of space?
➢ Yes. A permanent physical occupation of property is a taking even if they occupy only relatively insubstantial amounts of space and do not interfere with the landowner’s use of the rest of the land.
➢ Regulatory Takings
▪ Regulatory takings are found by using the Penn Central balancing test: (1) the economic impact on the landowner; (2) interference with distinct investment backed expectations; and (3) character of government action: if government passed a regulation for the general welfare v. one that singles out one group
▪ Regulations are almost never takings
▪ There are five major areas where the court has determined if regulations are takings
• Zoning Ordinances- Usually do not eliminate all economically viable use of land and therefore usually not a taking
• Government Conditions on development- discussed below
• Temporarily denying an owner development of property- usually not a taking if the government’s actions are reasonable (rational basis); Lake Tahoe
• Rent Controls- Not a taking because there is still economic use
• Imposition of government liability- not a taking though could change
▪ Pennsylvania Coal Co. Mahon
• Pennsylvania statute prohibited the mining of coal in any manner that would cause subsidence of property. The effect of the law was to prevent companies from exercising certain mining rights; they were required to leave columns of coal underground to support the surface. In sum, the gov’t regulated the use of the property.
• How much deference should we give to government?
□ If impairing private, a lot of deference is given
□ If impairing governmental, not much deference is given
• Does the government’s regulation of certain property practices constitute a taking?
□ Yes. A taking can be found if gov’t regulation of the use of property goes “too far.” When regulation reaches a certain magnitude, in most if not in all cases there must be an exercise of eminent domain and compensation to support the act. Making it commercially impracticable to mine certain coal has nearly the same effect for constitutional purposes as appropriating or destroying it.
□ Example of a regulatory taking
▪ Miller v. Schoene
• The state ordered a property owner to cut down his red cedar trees to stop them from infecting apple orchards with a plant disease that would destroy the apples. The value change of the property, compared to the value throughout the state of the destroyed apples orchards is small.
• not a takings b/c when one person’s property becomes a nuisance to another’s property, the government can order the destruction of the property w/o just compensation
• The state does not exceed its constitutional powers by deciding upon the destruction of one class of property in order to save another which, in the judgment of the legislature, is of greater value to the public.
□ Does the government’s regulation and mandate to cut down the red cedar trees, constitute a taking?
➢ No. Government regulation is a taking if it leaves no reasonable economically viable use of property; government regulation is not a taking simply because it decreases the value of a person’s property, so long as it leaves reasonable economically viable uses. – Important principle that has emerged from cases in defining a “taking”
▪ The next two cases illustrate this principle
• When you take property, you know that it is always open to police power if it violates some public regulation or is hazardous
□ Three factors that have particular significance in determining when a regulation becomes a taking to consider (known as Penn Central Balance) – if there is a 99% diminution in the value of property the Court will look to this balance in deciding whether there is a “takings”:
➢ 1. the economic impact of the regulation on the claimant;
➢ 2. the extent to which the regulation has interfered with investment-backed expectations; and
➢ 3. the character of the governmental action.
▪ Is it a general welfare measure (is it forcing a few to bear the burden of many)
▪ Penn Central Transportation Co. v. New York City
• Supreme Court held that there was not a taking when the government designated a building as a historical landmark and prevented the owner from constructing a substantial expansion on top of the building.
□ Does declaring a building a historical landmark, thereby limiting the owner’s use of the building, and decreasing the value constitute a taking that requires just compensation?
➢ No. The regulation did not deny the owners all profitable use of the building and had not even precluded all development of the air rights above the building.
➢ Interference with investment-backed expectations
□ Even a significant diminution in the value of property does not make the action impermissible
▪ Lucas v. South Carolina Coastal Council
• After a person purchased beachfront property for almost $1 million, the state adopted a coastal protection plan that prevented the construction of any permanent habitable structures on the property. Scalia remands b/c the state must prove background principles of nuisance, normal delays, and property law that prohibits the uses he now intends in the circumstances
□ Does an Act that dramatically affects the economic value of property create a taking of private property under the 5th and 14th Amendments, thereby requiring the payment of “just compensation”?
➢ Yes. Trial court ruled that the prohibition ruled the property “valueless.” Justice Scalia said that there is a taking “where regulation denies all economically beneficial or productive use of the land . . . There are good reasons for our frequently expressed belief that when the owner of real property has been called upon to sacrifice all economically beneficial uses in the name of the common good, that is, to leave his property economically idle, he has suffered a taking.”
➢ Case was remanded to be considered in light of whether the land’s use was prohibited by background common law property principles.
• Court said that South Carolina could avoid its regulation begin deemed a taking if it could ‘identify background principles of nuisance and property law that prohibit the uses”
▪ Lingle v. Chevron (2005)
• Do we add a third principle to those below to land use regulation can affect a taking if it does not substantially advance legitimate state interests?
□ The court said no, because it falls out of a takings clause and violates due process. She said if anything we look to economic substantive, we would use the rational basis test. In this case, it has nothing to do with a “takings”.
➢ 1. Physical taking
➢ 2. Lucas-type “total regulatory taking”
➢ 3. land-use exaction violating the standards set forth in Nollan and Dolan.
➢ Zoning Ordinances:
▪ Zoning ordinances is an area where the Supreme Court has frequently considered regulatory takings
• Generally, the Court has refused to find a taking, concluding that the regulation does not eliminate all reasonable economically viable uses of the property.
▪ Two things the Court may consider in zoning; land use regulation can effect a taking if it:
• 1. does not substantially advance legitimate state interests . . . or
• 2. denies an owner economically viable use of land
▪ The Court is willing to find a taking if the law prevents virtually all economically viable uses of the property, as in Lucas.
➢ Government conditions on Development
▪ A condition on development of property is a taking if the burden imposed by the condition is not roughly proportionate to the government’s justification for regulating.
▪ Rules:
• Is there a nexus between the legitimate State interest and the permit condition created by the city: must be rationally related
• Is the exaction on development roughly proportionate to the government’s justification for regulating? (not a rational basis test because we are not dealing with conceivable public benefits)
▪ Nollan v. California Coastal Community
• The gov’t had conditioned a permit for the development of beachfront property on the owners’ granting the public an easement to cross the property for beach access.
□ The Court said that the police power allows the gov’t to place a condition on development if it is rationally related (nexus) to preventing harms caused by the new construction.
• Very limited rule – conditions that involve conveyance of real property: there must be a nexus
• Unless the permit condition serves the same governmental purpose as the development ban, the building restriction is not a valid regulation of land use but an out-and-out plan of extortion.
▪ Dolan v. City of Tigard
• The government gave the owner of a store a permit to expand the building on the condition that land be set aside for a public greenway along a creek to minimize flooding and a bicycle path to relieve traffic congestion.
□ Does imposing conditions, to minimize flooding, on granting a building permit constitute a taking?
➢ No. If the regulation is both rationally related to the goal and imposes burdens that are proportionate to the reasons for regulating, then there has been no taking. The court used a two-part test in the decision:
▪ It must be shown that the condition is rationally related to the government’s purpose for regulating.
▪ It must be shown that the burden created by the condition is roughly proportionate to the government’s justification for regulating. (Rough Proportionality Test)
• No mathematical calculation is required, it would be an individualized determination.
➢ The case was remanded for the application of the two-part test above.
➢ Core Principles:
▪ Permanent, physical occupation = taking
▪ Total destruction of all economic use is a takings unless proscribed use interests were not part of his title to begin with (prohibited by background common law property principles – state can’t prove one of these principles) – government has the burden of proof
▪ When government imposes conditions (giving up real property) there must be a nexus or relation which is roughly proportional to the government’s justification for regulating (ROUGH PROPORTIONALITY TEST)
• If it does not meet any of these, then we consider the Penn Central Balance:
□ the economic impact of the regulation on the claimant;
□ the extent to which the regulation has interfered with investment-backed expectations; and
□ the character of the governmental action.
▪ Palazzolo v. Rhode Island
• Court held that a property owner could bring a takings claim as to regulations and laws that were in place at the time the property was acquired.
• Not allowed b/c state would in essence be able to put an expiration date on the takings clause.
• The Π formed a company to purchase and develop coastal property in Rhode Island. After several proposals were rejected by the state, the corporation stopped functioning and was dissolved under state law. Further proposals were rejected and the Π sued claiming taking because the gov’t was preventing all development of his property. The RI Supreme Court rejected this argument, in part, because the rules were already in place when he acquired the property.
□ Can a property owner bring a takings challenge to regulations that already were in place when the property was acquired?
➢ Yes. The Supreme Court rejected and reversed RI S. Ct’s decision. The Court reasoned that if accepted, a State would be allowed to put an expiration date on the Takings Clause, and that future generations should have the right to challenge unreasonable limitations on the use and value of land. The court held that takings claims may be brought by owners to challenge regulations that were in place at the time that the property was acquired.
➢ And said that the owner was not deprived of all economic use of his property because the value of upland portions was substantial. This is not a 99% diminution and requires the Penn Central Balance.
➢ Temporarily Denying an owner development of property
▪ Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency
• Lake Tahoe, a beautiful area, with pristine waters became an area of concern to the local government because developments were causing significant changes. Consequently they imposed a moratorium on further development pending studies being conducted. In response, the owners argued that the moratorium was a taking and that they should be compensated.
□ Does a government imposed moratorium on development constitute a taking requiring just compensation?
➢ No. The Court held that temporarily denying an owner the ability to develop property is not a taking so long as the government’s action is reasonable. The Court applied the balancing test from Penn Central, and under this approach found there had not been a taking. The court reasoned that the 32-month delay for purposes of an environmental study was reasonable given the strong environmental interest in preserving the beauty of the Lake Tahoe area. A fee simple estate cannot be rendered valueless by a temporary prohibition on economic use, because the property will recover value as soon as the prohibition is lifted. A rule that required compensation for every delay in the use of property would render routine government processes prohibitively expensive or encourage hasty decision-making. Such a change should be made by legislation, not adjudication.
□ If Lucas was used then the government could take the property as a taking unless the use was prohibited by background common law property principles (in this case public nuisance). If the use of your property would create a nuisance, then it is not a taking. Should Lucas be used? No. The value of the property was not “wholly eliminated.”
□ Permanent physical occupation? No.
□ If none of these we go to the Penn Central Balance:
➢ 1. Look at the economic impact, especially interference against investment backed expectations of the owner.
➢ 2. Look at the character of the government action.
• How is this case distinguished from Lucas. Lucas had a ban on building, and this had a moratorium which would allow building at a future time. So the Court said that there should be a balance instead of a per se rule like in Lucas.
➢ Is it for public use?
▪ The Fifth Amendment authorizes the government only to take private property for “public use.”
▪ The Supreme Court has expansively defined “public use” so that virtually any taking will meet requirement.
• The Court has indicated that a taking is for public use as long as it is an exercise of the state’s police power
□ as long as the rational basis test is met; it is for public use so long as the government acts out of a reasonable belief that the taking will benefit the public
▪ a taking is for public use so long as the government is taking property to achieve a legitimate government purpose and so long as the taking is a reasonable way to achieve the goal
▪ Hawaii Housing Authority v. Midkiff
• The State of Hawaii was concerned that so much land was owned by a relatively few people, result of Hawaii’s precolonial property system which restricted ownership to the islands’ chiefs and nobility. The state used its eminent domain power to take the property, with just compensation, and with the plan of selling ownership to a much larger number of people. The owners argued that the government was impermissibly taking from some private owners to give to others.
□ Does the Public Use Clause of the 5th Amendment, made applicable to the States through the 14th Amendment, prohibit the State of Hawaii from taking, without just compensation, title in real property from lessors and transferring it to lessees in order to reduce the concentration of fees simple in the State?
➢ No. A taking is for public use so long as the government is taking property to achieve a legitimate government purpose and so long as the taking is a reasonable way to achieve the goal. The Supreme Court unanimously found that this was a taking for public use. The Court stated that a taking is for public use so long as the government meets the rational basis test.
➢ The Court ruled that Hawaii’s action was for public use because it acted out of a reasonable belief that distributing ownership among a larger number of people would benefit the public.
□ What is the public use here? Public use will be satisfied as long as it is reasonable related to a conceivable public purpose.
➢ We defer to the legislative judgment as to what should be done in the name of the public.
▪ Kelo v. City of New London
• An economically depressed city sought, through a private economic development corporation, to take private property for purposes of a new economic development project. The owners, who did not want to sell their property, objected that it was not for “public use.”
• ***Court rules that public purpose includes economic development
□ The Court ruled that a taking is for public use so long as the government acts out of a reasonable belief that the taking will benefit the public. The Court followed Berman and Midkiff. The Court said that the city’s action was for public use because it reasonably believed that its action would create over 1,000 new jobs and increase economic growth.
• What does it mean to mandate a “public use”? Does this change the law concerning what is “public use”?
□ I don’t think so, in both cases the government ruled in an effort to benefit the public. In this case though, the dissent is arguing that if the only thing the government is trying to do is induce economic development then it does not equal public use. The majority says that if this is the case, then there should be legislative deference.
➢ What are the limits for the use of this ruling?
▪ Distressed Community - a separate agency finding that this was an economically depressed municipality
▪ This was a comprehensive plan – procedural requirements were followed
• Is this really an insane decision that is not rooted in precedent, was it a change in precedent?
□ No, because it was shown to serve a reasonably viable public purpose.
• If there is a suspicion that the taking is being done to benefit a private entity rather than the public, then it violates the 5th Amendment and the taking should not be allowed.
➢ What is the requirement for ‘just compensation’?
• Constitution envisions that the government will take private property for public use, but it requires that the government repay with “just compensation.”
□ Just compensation is to be measured in terms of the loss to the owner. In the words of Justice Oliver Wendell Holmes, “what has the owner lost, not what has the taker gained.”
□ Loss should be valued in terms of the market value to the owner
• The following case is an important case concerning how “just compensation” is determined.
▪ Brown v. Legal Foundation of Washington
• The Court upheld Interest on Lawyer Trust Account (IOLTA) programs that provide almost $200 million for legal services for the poor. Every state has an IOLTA program which applies to client trust accounts that are too small or too temporary to generate measurable interest greater than the cost of administering the account.
□ The Court ruled that such programs are constitutional and not an impermissible taking of private property without just compensation. The Court explained that under the takings clause, just compensation is measured in terms of the loss to the owner, as determined by the reasonable market value of the property. IOLTA programs apply only as to client accounts that would not otherwise generate interest and thus impose no loss to the owner requiring just compensation.
• Court held that IOLTA programs are constitutional and no just compensation is required b/c owners do not lose anything of value from their operation
Equal Protection
Introduction
❖ Constitutional Provisions Concerning Equal Protection
➢ Constitution originally had no provisions assuring equal protection of the laws.
▪ After the Civil War, widespread discrimination against former slaves led to the passage of the 14th Amendment in 1868 (Equal Protection Clause)
▪ Today, requirements of equal protection are the same whether the challenge is to the federal government under the 5th Amendment or to state and local actions under the 14th Amendment
▪ Court held that equal protection applied to federal government through the due process clause of the 5th Amendment
❖ A Framework for Equal Protection Analysis
➢ The issue in many cases is whether the government can identify a sufficiently important objective for the discrimination.
▪ This depends on the type of discrimination
• Court is highly suspicious of race discrimination and therefore the government may only use them if it proves that they are necessary to achieve a compelling government purpose
➢ Three Questions:
▪ Question 1: What is the Classification?
• Who is the object of discrimination, what type of discrimination are we talking about?
• How is the government drawing a distinction among people?
□ Two ways of establishing a classification:
➢ 1. the classification exists on the face of the law
▪ the law in its very terms draws a distinction among people based on a particular characteristic
➢ 2. Sometimes laws are facially neutral, but there is a discriminatory impact to the law, or discriminatory effects from its administration
▪ Example: see example of height on top of page 619.
▪ There must be intentional or purposeful discrimination behind the law; discriminatory impact is not enough
▪ Question 2: What is the appropriate level of scrutiny?
• Differing levels of scrutiny will be applied depending on the type of discrimination
□ Strict Scrutiny – for discrimination based on race or national origin or aliens (sometimes)
➢ Law will be upheld if it is proven necessary to achieve a compelling government purpose
➢ Gov’t must show that it cannot achieve its objective through any (no) less discriminatory alternative
➢ Government has b/p
□ Intermediate Scrutiny – for discrimination based on gender and for discrimination against non-marital children (illegitimate children)
➢ Law will be upheld if it is substantially related to an important gov’t purpose
➢ Gov’t must characterize the objective as important
➢ Means used need not be necessary, but must have a “substantial relationship” to the end being sought
➢ Gov’t has b/p
□ Rational Basis Test – the minimum level of scrutiny that all laws challenged under equal protection must meet (“the catch all”)
➢ Law will be upheld if it is rationally related to a legitimate gov’t purpose
➢ Means chosen need only be a rational way to accomplish the end
➢ Challenger has b/p
➢ This test is enormously deferential towards the government and only rarely have laws declared unconstitutional.
• Determining the level of scrutiny:
□ Heightened scrutiny – race, origin, gender, and the marital status of one’s parents
➢ Unfair to penalize a person for characteristics that the person did not choose and that the individual cannot change (Immutable trait)
□ Courts consider the ability of the group to protect itself through the political process (Lack Political Power)
➢ Women (underrepresentation in office), aliens (no ability to vote)
□ The history of the discrimination against the group (History of past discrimination)
□ Some critics argue that the court sometimes uses a rational basis test w/ ‘bite’
➢ This test does not give as much deference towards the government
▪ Question 3: Does the government action meet the level of scrutiny?
• In evaluating the constitutionality of a law, the Court evaluates both the law’s ends and its means.
□ Strict scrutiny = end must be deemed compelling
□ Intermediate scrutiny = end has to be regarded as important
□ Rational Basis Test = has to be a legitimate purpose
• Overinclusiveness v. Underinclusiveness
□ Overinclusive – law that applies to those who need not be included in order for the government to achieve its purpose
□ Underinclusive – a law that does not apply to individuals who are similar to those to whom the law applies
➢ The protection of fundamental rights under equal protection
▪ Sometimes equal protection is used if the government discriminates among people as to the exercise of a fundamental right
• Exercise of a fundamental, nontextual right
• Example: Skinner v. Oklahoma (1942)
□ Court found that the right to procreate was a fundamental right and essentially used strict scrutiny under the Equal Protection Clause to analyze the government’s discrimination.
• Also used to protect voting, access to judicial process, interstate travel
• If it is not fundamental, only rational basis test is used
□ Washington v. Glucksberg
➢ Right to privacy under due process clause does not create fundamental right to physician-assisted suicide
□ Vacco v. Quill
➢ Rational basis for evaluating physician-assisted suicide laws
▪ So for strict scrutiny that there are two guidelines:
• 1. Is the group a part of a suspect class
• 2. Is the discrimination against a fundamental, non-textual right
The Rational Basis Test
❖ Introduction
➢ minimum level of scrutiny that all gov’t actions challenged under equal protection must meet
▪ Unless the government action is a type of discrimination that warrants the application of intermediate or strict scrutiny, rational basis review is used
➢ Law meets rational basis review if it is rationally related to a legitimate government purpose
➢ In examining laws under the rational basis test, you need to ask 2 questions:
▪ Does the law have a legitimate purpose?
▪ Is the law rationally related to achieving it?
➢ Additional issues:
▪ There is great deference given to the legislature under this test
▪ Court will defer to government economic and social regulations unless they infringe on a fundamental right or discriminate against a groupd that warrants special judicial protection
▪ Has the court been consistent in applying the same deference to the cases or are some being applied w/more bite?
• Cleburne v. Cleburne Living Center: court invalidated a zoning ordinance that prevent the operation of a home for the mentally disabled
• Metropolitan Life Insurance Co. v. Ward: state law that attempted to encourage growth of an in-state insurance industry by taxing in-state companies at a much lower rate that out-of-state company was unconstitutional
• United States Dept. of Agriculture v. Moreno: federal law preventing a household from receiving food stamps if it included individuals who were not related to one another was unconstitutional
• Romer v. Evans: voter initiative in Colorado that repealed laws prohibiting discrimination based on sexual orientation and that precluded the adoption of new protections failed the rational basis test
➢ The Rational Basis Test Analysis:
▪ 1. Government has to have a legitimate interest
▪ 2. The law has to be rationally related to that interest
• You can take one step at a time
• Will be viewed as rationally related even if it is under- or overinclusive
▪ Sometimes the Court uses a Rational Basis with bite test:
• Romer, Moreno, Cleburne below
▪ Burden of Proof on the challenger any “conceivable” justification suffices
❖ Does the law have a legitimate purpose?
➢ Two questions to determine:
▪ What constitutes a legitimate purpose?
• the government has a legitimate purpose if it advances a traditional “police” purpose:
□ protecting safety, public health, or public morals
• Any goal that is not forbidden by the Constitution will be deemed sufficient to meet the rational basis test
• Only rarely has the Court found that a government purpose was not legitimate under the rational basis test, as in the following case:
• Romer v. Evans
□ Supreme Court declared unconstitutional Colorado Amendment 2, a voter-approved initiative that repealed all laws protecting gays, lesbians, and “bisexuals from discrimination and that prohibited all future government action to protect these individuals from discrimination.”
➢ Is a law that prohibits future government action to protect a minority group from discrimination unconstitutional?
▪ Yes. There is no legitimate purpose in singling out a particular group and precluding it from using the political process. “The laws of the kind now before use raise the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected.” The Amendment was not to further a proper legislative end but to make them unequal to everyone else.
• Justice Kennedy did not find that homosexuals were a part of a suspect class nor were they denied a fundamental, non-textual right so strict scrutiny could not be used. The Rational Basis Test was employed instead.
▪ 1st reason: Disqualifies a group from seeking protection from the law
▪ 2nd reason: If the law is born out of sheer animosity towards a politically unpopular group it cannot constitute legitimate government interest
▪ Dissent. The Amendment was a permissible moral judgment by the voters of Colorado “to preserve traditional sexual mores against efforts of a politically powerful minority to revise those mores through use of the laws.” The people of Colorado have adopted an entirely reasonable provision which does not even disfavor homosexuals in any substantive sense, but merely denies them preferential treatment. Amendment 2 is designed to prevent piecemeal deterioration of the sexual morality favored by a majority of Coloradans, and is not only an appropriate means to that legitimate end, but a means that Americans have employed before.
□ Importance of this case is that Kennedy takes homosexuality out of felonious behavior.
▪ Must it be actual purpose or is a conceivable purpose enough?
• A law will be upheld so long as the government’s lawyer can identify some conceivable legitimate purpose, regardless of whether that was the government’s actual motivation.
• Actual purpose behind a law is irrelevant and the law must be upheld ‘if any state of facts reasonably may be conceived to justify’ its discrimination
• Key Issue: whether any conceivable legitimate purpose should be sufficient, or whether the courts should insist on a legitimate actual purpose.
• United States Railroad Retirement Board v. Fritz
□ Supreme Court upheld a federal law designed to prevent retired railroad workers from receiving benefits under both the Social Security system and the railroad retirement system. The law allowed did not apply retroactively, but only prospectively. The result was that a person who has worked 10 years for the railroads and was already retired could get dual benefits, but a person who had worked 24 years and was still working could not collect dual benefits.
➢ The Court said “Where, as here, there are plausible reasons for Congress’s action, our inquiry is at an end. It is, of course, constitutionally irrelevant whether this reasoning in fact underlies the legislative decision because this Court never has insisted that a legislative body articulate its reasons for enacting a statute.”
➢ The ‘task of classifying persons for…benefits…inevitably requires that some persons who have an almost equally strong claim to favored treatment be placed on different sides of the line’…and the fact the line might have been drawn differently at some points is a matter for legislative, rather than judicial, consideration. (Defer to Congress)
➢ Dissent: “a challenged classification may be sustained only if it is rationally related to the achievement of an actual legitimate governmental purpose.” The dissenters argued that the law should be invalidated because it did not serve any purpose that Congress actually intended.
□ Was there any legitimate government interest for drawing this distinction at the time they are drawing the year requirement?
➢ Burden of Proof on challenger, any “conceivable” justification suffices
• This issue—whether any conceivable legitimate purpose is sufficient or whether must be the actual purpose—is crucial in determining the impact of rational basis review. If any conceivable purpose is sufficient, very few laws will fail the rational basis test.
❖ The requirement for a ‘reasonable relationship’
➢ The Court must also decide “whether the classifications drawn in a statute are reasonable in light of its purpose.”
▪ Under Rational Basis laws will be upheld unless the government’s action is “clearly wrong, a display of arbitrary power, not an exercise of judgment.”
➢ Tolerance for underinclusiveness under rational basis review
▪ Laws are underinclusive when they do not regulate all who are similarly situated
▪ Underinclusive laws raise the concern that the government has enacted a law that targets a particular politically powerless group or that exempts those with more political clout.
• Supreme Court has said that when the rational basis review is used, even substantial underinclusiveness is allowed, because the government “may take one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind.”
▪ Following case is an example of the Court’s willingness to tolerate underinclusiveness under the rational basis review.
▪ Railway Express Agency, Inc. v. New York
• Court upheld an ordinance that banned all advertising on the sides of trucks unless the ad was for the business of the truck’s owner. It was argued that this distinction was irrational as a way to achieve the government’s purpose of decreasing distractions for drivers and promoting traffic safety. It was contended that the classification which the regulation makes has no relation to the traffic problem since a violation turns not on what kind of advertisements are carried but on whose trucks they are carried by. Court gave great deference to the legislature here.
□ The Court concluded that the government might have perceived some difference among the ads and that it was immaterial whether the government failed to deal with even greater distractions to motorists. It is no requirement of equal protection that all evils of the same genus be eradicated or none at all.
• Dissent: there is no more effective practical guaranty against arbitrary and unreasonable government that to require that the principles of law which officials would impose upon a minority must be imposed generally.
➢ Tolerance for overinclusiveness under rational basis review
▪ Even substantial overinclusiveness is tolerated under rational basis review.
• Law is overinclusive if it regulates individuals who are not similarly situated. If it covers more people than it needs to in order to accomplish its purpose.
□ This is unfair to those that are unnecessarily regulated
▪ New York City Transit Authority v. Beazer
• Supreme Court upheld a city’s regulation that prevented those in methadone maintenance programs from holding positions with Transit Authority. The Transit Authority had refused to employ persons who use methadone.
□ Does the regulation impose an impermissible bias against a special class, methadone maintenance programees?
➢ No. The Court upheld that law under the rational basis test saying that any alternative rule is likely to be less precise “and will assuredly be more costly” than the total ban on those using drugs. The evidence indicates that methadone is an effective cure for the physical aspects of heroin addiction and that the strong majority of patients who have been on methadone maintenance for at least a year are free from illicit drug use. Thus it was argued that the exclusion of all methadone addicts was substantially overinclusive relative to the goal of safety. The special classification created by TA’s rule serves the general objectives of safety and efficiency. Because it does not circumscribe a class of persons characterized by some unpopular trait or affiliation, it does not create or reflect any special likelihood of bias on the part of the ruling majority. The Constitution does not authorize a federal court to interfere in this type of policy decision no matter how unwise it may be.
□ Dissent: The petitioners presented nothing to negative the employability of successfully maintained methadone users as distinguished from those who were unsuccessful. They instead focus on the methadone failures. Such an arbitrary assignment of burdens among classes that are similarly situated with respect to the proffered objectives is the type of invidious choice forbidden by the Equal Protection Clause.
➢ Cases where laws are deemed arbitrary and unreasonable, therefore failing rational basis review
▪ U.S. Dept. of Agriculture v. Moreno
• In 1971, Congress redefined the term “household” in the Food Stamp Act to include only those groups of related individuals. Appellees in this case consist of several groups of individuals who are unrelated and are being denied federal food assistance because they are unrelated and do not meet the standard of the term household.
□ Can an individual be denied federal food assistance simply because they do not meet the classification of a group outlined by Congress?
➢ No. Under traditional equal protection analysis, a legislative classification must be sustained, if the classification itself is rationally related to a legitimate governmental interest. The statutory classification in this case is clearly irrelevant to the stated purposes of the Act. The challenged classification must rationally further some legitimate governmental interest other than those specifically stated in the congressional “declaration of policy.” A bare congressional desire to harm a politically unpopular group (hippies) cannot constitute a legitimate governmental interest. In this case, the government contended that the Act would prevent fraud, but the Court said that there were already penalties and deterrents written into the Act to help avoid fraud so it did not operate so as to rationally further the prevention of fraud.
➢ Dissent: this question should be left to Congress to decide, not to the Court. It seems that they followed the other analyses of the two previous cases.
• It is said that rational basis ‘with bite’ was applied here
▪ City of Cleburne, Texas v. Cleburne Living Center, Inc.
• Determining level of scrutiny for mentally disabled, consider:
□ History of past discrimination
□ Immutable Trait?
□ Group of lack of political power
• The Court declared unconstitutional a city ordinance that required a special permit for the operation of a group home for the mentally disabled.
□ The Court held that the rational basis review was the appropriate standard for evaluating government actions discriminating against the mentally disabled. The city offered many justifications for the law and the Court held that they were either not legitimate purposes or that the ordinance was not a reasonable way of accomplishing the goals. All of the justifications were employed to prohibit this facility, but were not employed to prohibit other facilities that wanted to build on the plot of land. The Court said that such private biases were not a legitimate government purpose. It seems that the Court may have been adding a little “bite” to the rational basis analysis. The prohibition was based on nothing but a rational fear and racism.
Classifications Based on Race and National Origin
❖ Of all the infinite array of distinctions drawn by American Governments in the past 230 years, none has been more important than race discrimination.
❖ Two ways of proving discrimination based on a race or national origin classification:
➢ 1. Classification exists on the face of the law
▪ The law in its very own terms draws a distinction among people based on race or national origin
➢ 2. If a law is facially neutral
▪ May be proven by demonstrating that a law has a discriminatory purpose and a discriminatory impact
❖ No area of discrimination has produced more litigation than that of school segregation
❖ Race discrimination and slavery before the 13th and 14th amendments
➢ Prior to the adoption of the 14th Amendment in 1868, there was no constitutional assurance of equal protection and thus no limit on race discrimination
➢ The Constitution protected slavery prior to the 13th Amendment, due in large measure to many of the framers owning slaves, and that the Southern states would not have adopted the Constitution had it abolished slavery.
▪ Constitution states: apportionment of the House of Representatives based on the ‘whole number of free persons’ and ‘three-fifths of all other persons’; it also prevented congress from banning the importation of slaves until 1808 and Article V prohibited this provision from being altered by constitutional amendment
➢ At no point prior to the Civil War did the Supreme Court significantly limit slavery or even raise serious questions about its constitutionality.
➢ This was the central dispute of the time and affected nearly all other issues
➢ Dred Scott v. Sanford
▪ Background: Congress admitted Missouri as a slave state in the Missouri Compromise. It prohibited slavery in the territories north of the latitude 36°30’. In Dred Scott v. Sandford, the Supreme Court ruled the Missouri Compromise was unconstitutional and broadly held that slaves were property, not citizens.
• Dred Scott, a slave owned in Missouri by John Emerson, was taken to Illinois, a free state. After Emerson died, his estate was administered by Sandford. Scott sued Sandford in federal court, based on diversity, claiming that his residence in Illinois made him a free person.
□ Can a negro become a member of the political community formed and brought into existence by the Constitution of the United States, and as such be entitled to all the rights, and privileges, and immunities, guarantied by that instrument to the citizen?
➢ No. Slaves are not citizens and cannot invoke federal court diversity of citizenship jurisdiction. There was a perpetual and impassable barrier that was intended to be erected between the white race and the one which they had reduced to slavery. The Court also declared the Missouri Compromise Unconstitutional. Congress cannot grant citizenship to slaves or their descendants; this would be a taking of property from slave owners without due process or just compensation.
• The decision helped precipitate the Civil War.
• Section 1 of the 14th Amendment (adopted in 1868) overrules Dred Scott by declaring that all persons “born or naturalized in the United States . . . are citizens of the United States and the State wherein they reside.” As well as the Privileges and Immunities Clause, and the Equal Protections Clause,
❖ Strict scrutiny for discrimination based on race and national origin
➢ The Courts have now established that all racial classifications – whether disadvantaging or helping minorities – must meet strict scrutiny.
▪ Racial Classifications only allowed if the government can meet the heavy burden of showing that the discrimination is necessary to achieve a compelling government purpose and it must demonstrate that the goal cannot be achieved through any less discriminatory alternative. (important reason)
➢ Carolene Products footnote
▪ “prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities” and thus “may call for a correspondingly more searching judicial inquiry.”
▪ Court also emphasized that race is an immutable trait and it is unfair to discriminate against people for a characteristic that is acquired at birth and cannot be challenged.
❖ Proving the existence of a race or national origin classification
➢ Two ways of proving discrimination based on a race or national origin classification:
▪ 1. Classification exists on the face of the law
• The law in its very own terms draws a distinction among people based on race or national origin
▪ 2. If a law is facially neutral
• May be proven by demonstrating that a law has a discriminatory administration and a discriminatory impact; however, there must be a proof of a discriminatory purpose.
➢ Race and national origin classifications on the face of the law
▪ Facial race and national origin classifications exist when a law, in its very terms, draws a distinction among people based on those characteristics. There are three major types of such laws:
• Race-specific classifications that disadvantage racial minorities
□ There has been one situation where the Court expressly upheld under equal protection racial classifications burdening minorities: the rulings affirming the constitutionality of the evacuation of Japanese-Americans during WWII.
□ Korematsu v. United States
➢ All legal restrictions which curtail the civil rights of a single group are immediately suspect. That is not to say that all such restrictions are unconstitutional. It is to say that courts must subject them to the most rigid scrutiny. Pressing public necessity may sometimes justify the existence of such restrictions; racial antagonism never can.
➢ We uphold the exclusion order as of the time it was made and when the petitioner violated it. In doing so, we are not unmindful of the hardships imposed by it upon a large group of American citizens. But hardships are part of war, and war is an aggregation of hardships.
➢ Court gave great deference to Congress and the military leaders; therefore, if they feel that it is necessary, then we should not interfere b/c they are the experts.
➢ Court held that the national security was a compelling government interest and had to defer to the military
➢ This was the only case in S/C history where racial classification was upheld
• Racial classifications burdening both whites and minorities
□ Second type of racial classification that can exist on the face of the law is government action that burdens both whites and minorities.
➢ For example: statues that prohibit interracial cohabitation and marriage.
➢ The Court has recognized that such racial classifications are impermissible under the Equal Protection Clause because they are based on assumptions of the inferiority of blacks to whites.
➢ Laws that use race, expressly or implicitly, in their text will be treated as a racial classification even though they burden both whites and individuals of color.
□ Loving v. Virginia
➢ The Court considered the constitutionality of a state’s miscegenation statute that made it a crime for a white person to marry outside the Caucasian race. The Court declared the statute unconstitutional.
▪ Does a statutory scheme adopted by a State that prevents marriages between persons solely on the basis of racial classifications violate the Equal Protection and Due Process Clauses of the 14th Amendment? (if a law burdens both races equally, should it be subject to strict scrutiny?)
• Yes. The Court repudiated the state’s argument that the law was permissible because it burdened both whites and minorities. They said, “we reject the notion that the mere equal application of a statute concerning racial classifications in enough to remove the classifications from the 14th Amendment’s proscription of all invidious racial discriminations.” “There can be no doubt that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause.” At the very least, the Equal Protection Clause demands that racial classifications be subjected to the most “rigid scrutiny,” and if they are ever to be upheld, they must be shown to be necessary to the accomplishment of some permissible state objective.
□ Palmore v. Sidoti
➢ The court used racial considerations to change a child custody order. Supreme Court declared unconstitutional a state court’s order denying a mother custody of a child because she had married a person of a different race. The state court concluded that the child’s best interests would be served by awarding custody to the father because the child might be taunted and stigmatized for living in a biracial household.
▪ The Constitution cannot control such prejudices but neither can it tolerate them. Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect . . . The effects of racial prejudice, however real, cannot justify a racial classification removing an infant child from the custody of its natural mother found to be an inappropriate person to have such custody.
• Laws requiring separation of the races
□ A third type of racial classification that can exist on the face of the law are statutes requiring separation of the races.
□ In 1883 the Supreme Court declared unconstitutional the Civil Rights Act of 1875 that prohibited discrimination by places of public accommodation such as inns, theaters, and places of public amusement, they held broadly that the 14th Amendment only applies to government action, not to private conduct.
□ As a result many states adopted laws that discriminated against blacks and private violence against blacks increased.
□ Plessy v. Ferguson
➢ The Supreme Court upheld laws that mandated that blacks and whites use “separate, but equal facilities.” A Louisiana law adopted in 1890 required railroad companies to provide separate but equal accommodations for whites and blacks; the law required there to be separate coaches, divided by a partition, for each race. In 1892, Louisiana prosecuted Plessy, for refusing to leave the railroad car assigned to whites.
▪ Is a law that requires separate but equal facilities for different races unconstitutional?
• No. Laws requiring “separate, but equal” facilities are constitutional. The Court reasoned “We cannot say that a law which authorizes or even requires the separation of the two races in public conveyances is unreasonable, or more obnoxious to the 14th Amendment than the acts of Congress requiring separate schools for colored children. In response to the claim that such laws are based on an assumption of inferiority the Court said, “We consider the underlying fallacy of the Π’s argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this is so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.”
• Dissent. The statute’s purpose had its origin to exclude colored people from coaches occupied by or assigned to white persons. In respect of civil rights, all citizens are equal before the law.
➢ “Separate but equal” became the law of the land even though separate was anything but equal.
▪ The initial attack on the ‘separate but equal’
• Brown v. Board of Education
□ In the 1952-1953 Term, the Supreme Court granted review in five cases that challenged the doctrine of separate but equal in the context of elementary and high school education.
➢ The cases were argued on October 13, 1953, and newly appointed Justice Warren persuaded all of the Justices to join a unanimous decision holding that separate but equal was impermissible in the realm of public education.
□ Involved a challenge to the segregation of the Topeka, Kansas, public schools. It was a consolidated opinion of cases from several States, but all involving the same question.
➢ Does segregation of children in public schools solely on the basis of race, even though the physical facilities and other ‘tangible’ factors may be equal, deprive the children of the minority group of equal educational opportunities?
▪ Yes. In the field of public education the doctrine of ‘separate but equal’ has no place. Separate educational facilities are inherently unequal. State-mandated segregation inherently stamps black children as inferior and impairs their educational opportunities. This type of segregation generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever undone. “Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms.”
▪ The Court took a Non-originalists approach in making their decision. They said that they must consider public education in the light of its full development and it present place in American life throughout the Nation.
▪ Court rules that the psychological effects upon the children has a detrimental effect upon colored children and therefore separate but equal is inappropriate.
▪ Brown does not overrule Plessy, so separate but equal can still be used in some contexts****
▪ The invalidation of segregation in other contexts
• It is clearly established that laws requiring separation of the races are racial classifications that will be allowed only if strict scrutiny is met
• Johnson v. California
□ When a male prisoner enters a new institution – whether at the start of a sentence or as a result of a transfer – the inmate is placed in a reception center for up to 60 days. The prisoner is evaluated here and while there is in a double cell with a prisoner of the same race. Prison officials contend that the segregation was necessary to prevent violence and that prisoners were treated equally otherwise.
➢ The Court held that all racial classifications must meet strict scrutiny; that is, they will be upheld only if the government can prove its action is necessary to achieve a compelling purpose. Because the CDC’s policy is an express racial classification, it is immediately suspect. The Court cited Brown v. Board of Education and remanded the case for the application of strict scrutiny.
➢ ‘We therefore apply strict scrutiny to all racial classifications to ‘smoke out’ illegitimate uses of race by assuring that government is pursuing a goal important enough to warrant use of a highly suspect tool’
➢ Facially neutral laws with discriminatory impact or with discriminatory administration
▪ The requirements for proof of a discriminatory purpose
• Some laws that are facially race neutral are administered in a manner that discriminates against minorities or has a disproportionate impact against them. Supreme court has held that there must be proof of a discriminatory purpose for such laws to be treated as racial or national origin classifications.
• Washington v. Davis
□ Applicants for the police force in Washington, D.C., were required to take a test, and statistics revealed that blacks failed the examination more often than whites.
➢ Is proof of a discriminatory impact enough to establish the existence of a racial classification?
▪ No. Proof of a discriminatory impact is insufficient, by itself, to show the existence of a racial classification. The Court has never held that “a law or other official act, without regard to whether it reflects a racially disproportionate impact. Discriminatory impact, “standing alone, . . . does not trigger the rule that racial classifications are to be subjected to the strictest scrutiny and are justifiable only by the weightiest of considerations.”
▪ So, laws that are facially neutral as to race and national origin will receive more than rational basis review only if there is proof of a discriminatory purpose. The Court said that allowing discriminatory impact to suffice in proving a racial classification “would raise serious questions about, and perhaps invalidate, a whole range of tax, welfare, public service, regulatory, and licensing statutes that may be more burdensome to the poor and to the average black than to the more affluent white.”
▪ For Equal Protection, you test it w/rational basis and disparate impact is not enough.
▪ Disproportionate results should not be enough.
• Acting in spite of is not enough…; you must show that they acted because of…
• Unless there is a purpose/intent to discriminate, you never get to heightened scrutiny, you only stay w/rational basis
• McCleskey v. Kemp
□ Supreme Court held that proof of discrimination impact in the administration of the death penalty was insufficient to show an equal protection violation. Statistics powerfully demonstrated racial inequality in the imposition of capital punishment. A study showed that the death penalty was imposed in 22% of the cases involving black defendants and white victims; in 8% of the cases involving white Δs and white victims; in 1% of the cases involving black Δs and black victims; and 3% of the cases involving white Δs and black victims. The study also showed that the death penalty was sought in 70% of the cases involving black Δs and white victims; 15% of the cases involving black Δs and black victims; and 19% of the cases involving white Δs and black victims.
➢ Is a statistical study enough to show an equal protection violation?
▪ No. For the Δ to demonstrate an equal protection violation, he “must prove that the decision-makers in his case acted with discriminatory purpose.” Because the Δ could not prove that the prosecutor or jury acted with bias, no equal protection violation existed. The Court also emphasized that to challenge the law authorizing capital punishment, the Δ “would have to prove that the Georgia Legislature enacted or maintained the death penalty statute because of an anticipated racially discriminatory effect.
□ Disparate impact is not enough, what is enough?
➢ You must have both a disparate impact and a discriminatory purpose. How do you prove this?
▪ Disparate impact
• Stark statistical pattern may be enough
▪ History surrounding government action
▪ Legislative history
• departure from normal procedure
➢ How do you prove intent under equal protection?
▪ Tort definition of intent as acting with knowledge of foreseeable consequences is not enough. We use the Criminal law definition of intent meaning the desire to cause the results.
▪ The Court adopts the criminal law definition saying that the proved intent must be that the act was because of not merely in spite of the consequences.
• City of Mobile v. Bolden
□ Involved a challenge to Mobile, Alabama’s use of an at-large election for its city council. The city was predominantly white, with a sizeable African-American population. There was a long history of racially polarized voting that meant only whites were elected in the at-large system.
➢ The Court held that an election system that had the impact of disadvantaging minorities was not to be subjected to strict scrutiny unless there was proof of a discriminatory purpose/intent. The Court found no equal protection violation because there was not sufficient evidence of a discriminatory purpose. The Court declared, “Only if there is purposeful discrimination can there be a violation of the Equal Protection Clause . . . This principle applies to claims of racial discrimination affecting voting just as it does to other claims of racial discrimination.”
• These cases all establish that under the Constitution, proof of a discriminatory impact is not sufficient by itself to prove an equal protection violation; there also must be proof of a discriminatory purpose.
▪ Is proof of a discriminatory effect also required?
• Distinct question arises: whether proof of discriminatory purpose is sufficient, by itself, to establish an equal protection violation or whether there must be both discriminatory impact and discriminatory purpose. Although not explicitly stating it, it appears both are required
• Palmer v. Thompson
□ City closed down its previously segregated swimming pool rather than allow it to be integrated. The City justified this by explaining it was to prohibit violence between races.
➢ Equal protection is not violated solely because of the motivations of men who voted for it. There is an element of futility in a judicial attempt to invalidate a law because of the bad motives of its supporters. “If the law is struck down for this reason, rather than because of its facial content or effect, it would presumably be valid as soon as the legislature or relevant governing body repassed it for different reasons.”
➢ This suggests that discriminatory purpose, alone, is insufficient to prove that a facially neutral law constitutes a race or national origin classification.
▪ How is a discriminatory purpose proven?
• It implies that the decision maker…selected or reaffirmed a particular course of action at least in part ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable group.
• Supreme Court has made it clear that showing such a purpose requires proof that the government desired to discriminate; it is not enough to prove that the government took an action with knowledge that it would have discriminatory consequences
• Personnel Administrator of Massachusetts v. Feeney
□ Involved a challenge to a Massachusetts law that gave preference in hiring for state jobs to veterans. At the time of the litigation, over 98% of the veterans in the state were male; only 1.8% were female. The result was a substantial discriminatory effect against women in hiring for state jobs.
➢ Supreme Court held that there was not a gender classification because the law creating a preference for veterans was facially gender-neutral and there was not proof that the state’s purpose in adopting the law was to disadvantage women.
▪ By doing this the Court essentially rejected the tort definition of intent as acting with knowledge of foreseeable consequences and instead adopted a criminal law definition of intent meaning the desire to cause the results.
• Village of Arlington Heights v. Metropolitan Housing Development Corp.
□ Supreme Court explained the different ways in which discriminatory purpose can be proved. It involved a challenge to a city’s refusal to rezone a parcel of land to allow construction of low and moderate income housing. The Πs alleged that this had a discriminatory effect in excluding blacks from the city. Court ruled that only disparate impact was present therefore it was not enough.
➢ The Supreme Court identified several ways that a discriminatory purpose can be demonstrated:
▪ 1. The impact of a law may be so clearly discriminatory as to allow no other explanation than that it was adopted for impermissible purposes.
• Court said, “The impact of the official action – whether it ‘bears more heavily on one race than another’ – may provide an important starting point. Sometimes a clear pattern, unexplainable on grounds other than race, emerges from the effect of the state action even when the governing legislation appears neutral on its face.”
• One way of showing discriminatory purpose is to show a statistical pattern that can be explained only by a discriminatory purpose.
▪ 2. Through the history surrounding the government’s action.
• “The historical background of the decision is one evidentiary source, particularly if is reveals a series of official actions taken for invidious purposes . . . The specific sequence of events leading up to the challenged decision also may shed some light on the decisionmaker’s purposes.”
▪ 3. Through the legislative or administrative history of the law.
• The legislative or administrative history may be highly relevant. The Court said that in “extraordinary instances” the legislators might be called to testify, but the Court recognized that privileges accorded to legislators, such as by the speech and debate clause, might preclude questioning.
• Departure from normal procedures.
➢ These are called “The Arlington Heights Factors”
▪ Application: Discriminatory use of peremptory challenges
• The Court has held that race- or gender-based peremptory challenges deny equal protection whether exercised by a prosecutor, a criminal defendant, or a civil litigant.
• They gave a 3-step test for discrimination in jury selection:
□ 1. Criminal Δ must set forth a prima facie case of discrimination by the prosecutor (strong evidence that more likely than not race was used a s a basis for the challenge)
□ 2. When the Δ has presented a prima facie case of discrimination, the burden shifts to the prosecutor to offer a race-neutral explanation for the peremptory challenges.
□ 3. Trial Court must decide whether the race-neutral explanation is persuasive or whether the “Δ has established purposeful discrimination.”
• A legitimate reason is not a reason that makes sense, but a reason that does not deny equal protection. If any ‘legitimate reason’ even one that does not make sense, is sufficient, Batson will be substantially weakened.
• Supreme court extended Batson to apply to gender-based discrimination in the use of peremptory challenges.
➢ Remedies: the problem of school segregation
▪ Introduction: the problem of remedies
• If a court finds an equal protection violation, it must then fashion a remedy.
□ In some cases the remedy is simply invalidating the discriminatory law
• In some cases the Court must go further and fashion an injunction to prohibit the offending conduct
• Fashioning a remedy was most difficult in the area of school desegregation
□ In examining the problem of fashioning remedies in school desegregation cases, four topics are examined:
➢ 1. History of massive resistance
➢ 2. Problem of proving discrimination in the schools’ context
➢ 3. Fashioning remedies, what courts can and cannot do
➢ 4. Examining recent Supreme Court decisions
• Brown v. Board of Education
□ courts will require that the Δs made a prompt and reasonable start toward full compliance with the original holding – to desegregate the schools in a reasonable manner and reasonable amount of time.
➢ They must proceed “with all deliberate speed.”
□ This often provoked ‘white flight,’ from schools, but could not be prevented b/c it was not state action
□ Courts may consider the problems related to administration, arising from the physical condition of the school plant, the school transportation system, personnel, revision of school districts admission to the public schools on a nonracial basis, and revision of local laws and regulations which may be necessary in solving the foregoing problems.
▪ Massive resistance
• State legislatures adopted resolutions of ‘nullification’ and ‘interposition’ that declared the Supreme Court’s decision were without effect
• Cooper v. Aaron
□ Governor calls out Arkansas national guard to keep blacks out.
□ Court invoked Marbury v. Madison and said that the Supreme Court was the superior law of the land and the states must follow it.
• Other schools adopted different programs of integration (one grade a year)
• Court said schools could not close as a result of integration
• Eventually Civil Rights Act of 1964 ended the obstruction b/c Title VI prohibited discrimination by schools receiving federal funds.
• One by one, obstructionist techniques were defeated.
▪ Proving discrimination in the school context
• Keyes held that absent laws requiring school segregation, plaintiffs must prove intentional segregative acts affecting a substantial part of the school system
• De jure segregation:
• De facto segregation:
• Proof of racial separation in schools is not sufficient to establish an equal protection violation or provide a basis for federal court remedies. As is true in other areas of equal protection law, there must be either proof of laws that mandated segregation or evidence of intentional acts to segregate the schools. Proof of intentional discrimination as to a substantial part of the school system will justify a systemwide remedy, unless the school system can demonstrate that the segregation in those areas was not a consequence of its segregative acts.
▪ Judicial power to impose remedies in school desegregation cases
• Swann v. Charlotte-Mecklenburg Board of Education
□ The Supreme Court addressed the issue of the federal courts’ power to issue remedies in school desegregation cases.
➢ The Court held that the district courts have broad authority in formulating remedies in desegregation cases, and to take “affirmative action in the form of remedial altering of attendance zones . . . to achieve truly nondiscriminatory assignments.” The Court stated that mathematical ratios – such as comparisons of the race in particular schools with the overall race of the district – are a “useful starting point in shaping a remedy to correct past constitutional violations.” The Court also said that Courts could use busing as a remedy where needed.
▪ There may be some valid objections though
• An objection to transportation may have validity when the time or distance of travel is so great as to either risk the health of the children or significantly impinge on the educational process.
□ Federal Court remedial power – limited to constitutional violation, only act to remedy constitutional violation:
➢ This would be easier to prove in the South because they had laws mandating segregation
➢ Remedies:
▪ Remedial altering of attendance zones
▪ Using busing as a remedy
□ Can set goals, but does not have to be the be-all and end-all
□ If there are one-race schools, there is close scrutiny and the school board has the burden of proof
□ Busing is a valid tool to use in order to desegregate
• Milliken v. Bradley
□ Supreme Court imposed a substantial limit on the courts’ remedial power in desegregation cases. A district court had imposed a multidistrict remedy for de jure (statutory segregation) segregation in one of the districts.
□ Issue: whether a federal court may impose a multidistrict, areawide remedy to a single-district de jure segregation problem absent any finding that the other included school districts have failed to operate unitary school systems within their districts?
➢ The remedy must be imposed only on those that have violated discrimination; if there is no violation, then there is no need to dismantle
➢ The Supreme Court ruled this impermissible and held that “before the boundaries of separate and autonomous school districts may be set aside by consolidating the separate units for remedial purposes or by imposing a cross-district remedy, it must first be shown that there has been a constitutional violation within one district that produces a significant segregative effect in another district. Without an interdistrict violation and interdistrict effect there is no constitutional wrong calling for an interdistrict remedy. A multidistrict remedy can be formulated for those districts whose own policies fostered discrimination or if a state law caused the interdistrict segregation.
▪ This can be defended based on the traditional principle that a court has authority to impose a remedy only after it is proved that the person or entity violated the law.
▪ To approve a remedy ordered by the court would impose on the outlying districts, not shown to have committed any constitutional violation, a wholly impermissible remedy based on a standard not hinted at in Brown I and II or any holding of this court.
➢ Controlling principle: The scope of the remedy is determined by the nature and extent of the constitutional violation.
➢ Dissent: A state can successfully insulate itself from its duty to provide effective desegregation remedies by vesting sufficient power over its public schools in its local school district and consequences can go unremedied.
▪ When should Federal Desegregation Remedies End?
• Supreme Court noted that residential shifts were inevitable in cities and that they might alter the racial composition of the schools. ‘Having once implemented a racially neutral attendance pattern in order to remedy the perceived constitutional violations on the part of the defendants, the District court had fully performed its function of providing the appropriate remedy for previous racially discriminatory attendance patterns.’
• Board of Education of Oklahoma City Public Schools v. Dowell
□ Oklahoma schools had been segregated by a state law mandating separation of the races. A federal court order was successful in desegregating the Oklahoma City public schools. Evidence proved that ending the desegregation order would result in resegregation.
➢ Should a desegregation order continue when its end would mean a resegregation of the public schools?
▪ The Supreme Court held that once a “unitary” school system had been achieved, a federal court’s desegregation order should end, even if it will mean re-segregation of the schools. If the board has complied in good faith and the vestiges of past discrimination have been eliminated to the extent practicable. In evaluation, the Court said the District Court should look at student organizations and every facet of school operations – faculty, staff, transportation, extra-curricular activities and facilities.
▪ The Court did not define “unitary system” with any specificity though.
□ Later the Court ruled in other cases that:
➢ 1. An order attempting to attract non-minority students from outside the district was impermissible because there was no proof of an inter-district violation.
➢ 2. The district court lacked authority to order an increase in teacher salaries.
➢ 3. The continued disparity in student test scores did not justify continuance of the federal court’s desegregation order.
▪ Once a desegregation order is complied with, the federal court effort should be ended. Disparity in test scores is not a basis for continued federal court involvement. Racial discrimination must be because of, not in spite of, school policy
➢ Racial Classifications Benefitting Minorities
• In considering Affirmative Action, three questions are key:
□ 1. What level of scrutiny should be used for racial classifications benefiting minorities?
➢ Immutable trait?
➢ History of past discrimination?
➢ Lack of political power?
➢ Original intent?
▪ Look at these factors; based on these questions how should we treat voluntary affirmative action?
• In the early cases, the majority looked at strict scrutiny and the dissent argued for intermediate scrutiny
□ 2. What purposes for affirmative action programs are sufficient to meet the level of scrutiny?
□ 3. What techniques of affirmative action are sufficient to meet the level of scrutiny?
▪ Affirmative action:
• Strict scrutiny is the standard
• Need compelling interest
□ Diversity in higher education
□ Remedying past discrimination (identified)
➢ Discrimination by the entity adopting affirmative action
➢ Not societal discrimination; it must be much more specific
➢ This is tough to prove and substantiate the affirmative action policy
• Need narrowly tailored means
□ Only the necessary means (there must be consideration of race-neutral alternatives)
□ It must be flexible: individualized determinations, no strict quotas
➢ Quotas should reflect the correlation to the society; it should be reasonable and flexible
□ Can’t unduly burden the rights of non-minorities (no terminations or layoffs b/c of affirmative action program)
➢ Promotions are not seen as an undue burden
□ It must be temporary (there must be an endpoint)
• Bakke
□ We cannot have strict quotas, it must be more flexible
• Paradise
□ Cannot create undue burdens on non-minorities
• Wygant
□ Cannot lay off white teachers in order to retain black teachers
• For a long time the court could never agree on a level of scrutiny in affirmative action cases, until 1989 in Richmond c. J.A. Croson Co.
▪ The emergence of strict scrutiny as the test
• Richmond v. J.A. Croson Co.
□ The Court invalidated a Richmond, VA, plan to set aside 30% of public works monies for minority owned businesses.
➢ Should strict scrutiny be used as the standard of analysis for cases involving local affirmative action programs?
▪ Yes. Strict scrutiny should be used as the standard of analysis for cases involving local affirmative action programs.
• Court says this could be a compelling interest, and there must be past “identified” discrimination in the specific area that you are trying to enforce affirmative action.
• The Court said that there were other means to remedying the situation, besides a race-based remedy
▪ Dissent: “Today, for the first time, a majority of the Court has adopted strict scrutiny as its standard of Equal Protection Clause review of race-conscious remedial measures.
➢ What does a “plurality” ruling mean in a case?
▪ Whenever a decision, on its narrowest grounds, reflects the majority, then that section is precedent.
□ Strict Scrutiny?
➢ Must be a compelling interest
▪ That there are no less compelling means (that the means are necessary). A close nexus between the discrimination and the means to remedy
□ It cannot be general discrimination
➢ It must be identified (by whoever is adopted policy)
□ The means are unnecessary b/c it is overinclusive
➢ The use of race as a factor must be temporary
□ Compelling interests: education
➢ Remedying past discrimination
□ Necessary means
➢ No strict quotas
➢ Undue burden on non-minorities
➢ Temporary
• Adarand Constructors, Inc. v. Pena
□ Should the standards be the same for Congress and state governments?
□ She argues that it is best to have consistency and therefore the court should apply strict scrutiny
➢ We hold today that all racial classifications, imposed by whatever federal, state, or local governmental actor, must be analyzed by a reviewing court under strict scrutiny. In other words, such classifications are constitutional only if they are narrowly tailored measures that further compelling governmental interests. To the extent that Metro Broadcasting is inconsistent with that holding, it is overruled.
□ She says that strict scrutiny is not fatal in fact, it can be met and remands the case
□ Set-asides must meet strict scrutiny
▪ The use of race to benefit minorities in college and university admissions
• Essentially, the court held that colleges and universities may use race as one factor, among many, in admissions from decisions; but it is not permissible to add a significant number of points to the applications of minority students.
• Numerical set-asides will be allowed, if at all, only if needed to remedy clearly proven past discrimination
• Grutter v. Bolinger
□ Whether the use of race as a factor in student admissions by the University of Michigan Law School is unlawful?
□ Grutter ruled that colleges and universities have a compelling interest in creating a diverse student body and that they may use race as one factor, among many, to benefit minorities and enhance diversity
➢ ‘the benefits of diversity are substantial’ and ‘promotes cross-racial understanding, helps to break down racial stereotypes, and enables students to better understand persons of different races.’
□ As long as the system, as this, was narrowly tailored, it might be constitutional
➢ Diversity is a compelling interest in education and universities may use race as a factor to ensure diversity, but quotas or numerical quantification of benefits is impermissible
□ There was individual assessment & race was not a determinative factor
□ There was a critical mass:
▪ It was not a set percentage, but there had to be a certain amount of minority numbers
□ Are the means neutral?
➢ They could have lowered the standards of the law school in order to open it up to more minorities
➢ Each file was individualized, and was flexible b/c there were no strict quotas
➢ She suggests that in 25 years this will no longer be necessary and therefore is only temporary
• Gratz v. Bollinger
□ Court invalidated an affirmative action program for undergraduate admissions which added 20 points to the applications for minority students
□ Court ruled that the system was not narrowly tailored and therefore was unconstitutional
□ There is a point total used and is acting like a strict quota
□ There are no individualized determinations b/c of the massive volumes of applicants
• Parents Involved in Community Schools v. Seattle School Dist. No. 1
□ Race was a factor, but it could be used as a tie-breaker, so that no school could be oversubscribed
➢ Difference: this school system had no prior segregation plans
□ The other system had a minimum and maximum black enrollment percentage
➢ This one had a desegregation program
□ Simply because the school districts may seek a worthy goal does not mean they are free to discriminate on the basis of race to achieve it, or that their racial classifications should be subject to less exacting
Gender Classifications
❖ Introduction
➢ Why consider?
▪ Long history of past discrimination
▪ Gender is an immutable trait
• First addressed in 1872 and the Supreme Court said that women are not allowed a separate classification because they are not similarly situated as men
• Real biological differences
□ Labor laws were not enacted for men, but it was for women. They are not biologically the same and do not have the same physical capacity as men.
□ Should we use heightened scrutiny? Why? By using heightened scrutiny we can figure out what biological differences really means.
□ invidious motive for race vs. paternalistic motive for gender
➢ Are women a discrete insular group? No, men are married to male, they are together and races are often perceived as being separate
➢ Intent of the 14th Amendment was to decrease race discrimination, not gender discrimination.
▪ Lack Political Power, politically underrepresented in the political process
• What about an Equal Rights amendment?
□ Possibly argue that women could have power if they wanted
□ Or that if there was an amendment it may lead to abortion on demand and gay marriages
➢ 1961: Women are the center of home and life and can be favored and discriminated against, particularly in this case, where women could choose not to be on juries and men could not. Women are inferior and should be protected..
❖ The level of scrutiny
➢ Gender has all the same traits/components as race
➢ Early cases approving gender discrimination
▪ 1871: ‘the paramount destiny and mission of women are to fulfill the noble and benign offices of wife and mother. This is the law of the creator
▪ 1874: Court said that denying women the right to vote is permissible because voting is not a ‘privilege or immunity’ of United States citizenship. 19th Amendment overruled this
▪ 1st 1/3 of century, it was the Lochner era and courts invalidated many laws because it violated the freedom of contract; except women’s maximum working hours laws were enforced
▪ women could not be bartenders, work in restaurants b/t 10 pm and 6 am
▪ could not serve on juries
➢ The emergence of intermediate scrutiny
▪ Reed v. Reed (1971)
• Supreme Court invalidated for the first time a gender classification, but the Court professed to use only rational basis review
• The case was about a hierarchy of persons to be appointed as administrators of an estate when a person died intestate: if there were two competing applicants in the same category, the male was preferred over the female
• Debatable as to whether only rational basis was really used b/c state could have offered up many rational reasons (it has always been that way; men were the heads of the households)
➢ Frontiero v. Richardson
▪ plurality decision – not a clear holding
▪ A servicewoman could not claim her husband as a “dependent” unless he is dependent on her for over ½ of his support, this was not the case for service men
• Unconstitutional discrimination against servicemen is a violation of the Due Process Clause of the 5th Amendment. Unnecessary in this case to characterize sex as a suspect classification.
▪ They do not adopt the strict scrutiny, though they all agreed that the law should be invalidated
➢ Craig v. Boren
▪ Interaction of two sections of an Oklahoma statute, prohibits the sale of “nonintoxicating” 3.2% beer to males under the age of 21 and to females under the age of 18. This is discrimination against males.
• Statutory classifications that distinguish between males and females are “subject to scrutiny under the Equal Protection Clause. Classifications by gender must serve important governmental objectives and must substantially related to achievement of those objectives. Intermediate Scrutiny is now used for all gender classifications, whether women or men.
• Important vs. Compelling gov’t interest
• Substantially Related vs. Necessary means
▪ Although traffic safety is undoubtedly an ‘important’ government interest, the Court concluded that gender discrimination was not substantially related to that objective.
➢ U.S. v. Virginia
▪ Intermediate scrutiny = exceedingly persuasive justification
▪ This decision does not prohibit sex-segregated education. But when a state gives that opportunity to one gender and it denies great opportunities to the opposite gender. Cannot do when the state runs the institution through tax dollars, etc.
▪ Tough question: Argument that the educational value of the institution will be destroyed if women are admitted?
• If there are women that can withstand the training, then why not admit them.
▪ Parties who seek to defend gender-based government action must demonstrate an exceedingly persuasive justification for that action…the burden of justification is demanding and it rests upon the state
❖ Proving the existence of a gender classification
➢ There are two major ways of proving a gender classification – they are identical to the two methods of demonstrating a racial classification.
▪ 1. the gender classification can exist on the face of the law
• The law in its very terms draws a distinction between people based on gender
▪ 2. If a law is facially neutral, then proving a gender classification requires demonstrating that there is both a discriminatory impact to the law and a discriminatory purpose behind it.
➢ When is it discrimination?
➢ Geduldig v. Aiello
▪ California’s disability law provided payments for disabilities lasting more than 8 days and less than 26 weeks, but denied any coverage for disabilities caused by pregnancy.
• The Supreme Court held that it was not a denial of equal protection for a state’s disability insurance system to exclude pregnancy-related disabilities, but include disabilities affecting only men. The Supreme Court held that this was not a gender classification warranting more than rational basis review, saying “There is no risk from which men are protected and women are not. Likewise, there is no risk from which women are protected and men are not.” While the first group is exclusively female, the second includes members of both sexes. Congress later overruled the holding by creating the Pregnancy Discrimination Act.
• Program divided people into two groups, pregnant and non-pregnant persons and since women are included in both, there is no discrimination.
• Also court the state had a legitimate interest in maintaining the fiscal integrity of its program and making choices in allocating its funds
❖ Gender Classifications Benefiting Women
➢ The majority of Supreme Court cases concerning gender discrimination have involved laws that benefit women and disadvantage men.
▪ Three principles have emerged from these cases:
• 1. Gender classifications benefiting women based on role stereotypes generally will not be allowed.
• 2. Gender classifications benefiting women designed to remedy past discrimination and differences in opportunity generally are permitted.
• 3. Gender classifications benefiting women can be based on biological differences between men and women.
➢ Gender classifications based on role stereotypes
▪ The Supreme Court has invalidated laws that benefit women and disadvantage men when the Court perceives the law as being based on stereotypical assumptions about gender roles.
▪ Orr v. Orr
• The Court invalidated an Alabama law that allowed women, but not men, to receive alimony in case of divorce.
□ The Court explained that under the statute, individualized hearings at which the parties’ relative financial circumstances are considered already occur . . . . Needy males could be helped along with needy females with little if any additional burden.
• If there is a gender neutral way to achieve the goal then you can’t have a gender-based criterion.
• Additional important government interest: remedying past discrimination
• For race, it must be past ‘identifiable’ discrimination i.e. by party adopting affirmative action (b/c it must meet strict scrutiny)
• For gender, past societal discrimination is justified b/c it only must meet intermediate scrutiny
▪ Many other laws, such as benefits received upon death, were invalidated and the court has rejected laws that benefited women because they were based on the stereotype of economically dependent women and economically independent men.
▪ Mississippi Univ. for Women v. Hogan
• Court declared unconstitutional a state policy of operating a nursing school that excluded men.
□ Justice O’Connor said that the gender classification was not designed to remedy past discrimination, but based on an occupational stereotype: “Rather than compensate for discriminatory barriers faced by women, MUW’s policy tends to perpetuate the stereotyped view of nursing as an exclusively woman’s job. Their admission policy lends credibility to the old view that women, not men, should be nurses, and makes the assumption that nursing is a field for women a self-fulfilling prophecy.
• Is the court saying that you can’t have separate but equal schools? Like having a male nursing school and a female nursing school. No.
□ Court may be suggesting that remedying past societal discrimination may be enough to satisfy the important government interest.
□ Is the pedagogical rationale and important government interest (single-sex education)?
➢ You can have single-sex education but the educational opportunities must be given to both genders.
• Intermediate Scrutiny (exceedingly persuasive justification for the classification – is this a different standard? No, they say that the classification must serve “important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives.”):
□ Important government interest
□ Means must be substantially related to the interest
□ If there is a gender neutral way, you can’t use gender-based criterion
▪ Michael M. v. Superior Court of Sonoma County
• The Supreme Court upheld California’s statutory rape law that defined statutory rape as “an act of sexual intercourse accomplished with a female not the wife of the perpetrator, where the female is under the age of 18 years.” The case involved a 17-year-old boy who was convicted under the law of having sex with a 16-year-old girl. The girl was not prosecuted because the statute makes men alone criminally liable for the act of sexual intercourse.
□ The Court upheld the law, and Justice Rehnquist speaking for the plurality, said that the state could attack the problem of teenage pregnancy and sexual activity by regulating and punishing men, but not women. The risk of pregnancy acts as a substantial deterrence to young females, but no similar natural sanctions deter males. The Court concluded that a gender-neutral law was less likely to be effective because girls would be less likely to file complaints or be witnesses if they, too, faced potential criminal liability.
• The Court never looked to the actual purposes of the law and never proved an important governmental interest for the statute.
▪ Rostker v. Goldberg
• Court upheld a male-only draft registration. The Military Selective Service Act required every male between the age of 18 and 26 to register for possible conscription (draft).
□ The Court said that women, unlike men, are not eligible for combat and that Congress and the President had evidenced the intent to retain that policy in the future. The Court held that the exclusion of women from combat justifies Congress’s decision to have only men register for possible conscription. The Court recognized that women could serve in non-combatant roles, but that “Congress simply did not consider it worth the added burdens of including women in draft and registration plans…”
□ Court expressed the need for ‘healthy deference to legislative and executive judgments in the area of military affairs.’
□ Congress determined that staffing non-combat positions with women would be positively detrimental to the important goal of military flexibility
□ Dissent: Argued that the law was founded on sex-based stereotypes and that male-only registration is unconstitutional even assuming that it is constitutional to exclude women from serving in combat. They also argued that registering women could be useful if it ever became desirable to draft women for noncombatant positions in the armed forces.
• The Court gives deference to the military, as in Korematsu.
➢ Gender classifications benefiting women as a remedy
▪ The Court has said that gender classifications benefiting women will be allowed when they are designed to remedy past discrimination or differences in opportunity.
▪ Califano v. Webster
• The Supreme Court upheld a provision in the Social Security Act that calculated benefits for women in a more advantageous way than was used for men.
□ The Court said that the differences in the formula were not based on stereotypes, but rather the permissible goal of redressing our society’s longstanding disparate treatment of women. The Court held the formula was constitutional because it operated directly to compensate women for past economic discrimination.
• May not have been as controversial because the program was not in operation (had already ended). It was looking back to see the fairness of the program.
➢ Classifications benefiting women because of biological differences between men and women
▪ Nguyen v. Immigration and Naturalization Service
• Court allowed a third type of gender classification: those benefiting women because of biological differences between men and women. The Court allowed a difference in INS rules favoring mothers over fathers because of the greater certainty as to the identity of the mother as compared to the father and the greater opportunity that mothers have in establishing a relationship with their children.
• The case involved how children can become citizens when they are born outside the United States to unmarried parents and one of their parents is a United States citizen and one is not. The federal statute imposed different and greater requirements for the child’s acquisition of citizenship if the citizen parent is the father as opposed to the mother.
□ Congress’ decision to impose requirements on unmarried fathers that differ from those on unmarried mothers is based on the significant difference between their respective relationships to the potential citizen at the time of birth. First, the Court said that the difference in the rule serves a government interest in being sure that there is a biological relationship between the parent and the child. The court said that there is not doubt as to the relationship between mother and child, but paternity is not so certain. Second, the Court said that another governmental interest furthered in a substantial manner by the law “is the determination to ensure that the child and the citizen parent have some demonstrated opportunity or potential to develop a relationship that consists of the real, everyday ties that provide a connection between child and citizen parent.”
□ The majority says that through birth the mother has already established a relationship and that the father may or may not establish a relationship even if he raises the child from day 1. Is this a governmental stereotype? Did the Court use intermediate scrutiny?
□ Kennedy says that this is not based on stereotypes and it passes intermediate scrutiny.
□ Dissent: Disagreed that mothers should be presumed inherently to have more of a relationship with a child than the father.
• The issues whenever the Court purports to rely on biological differences as a justification for differences in treatment are whether these differences are real or social constructs and whether they should matter.
• “Exceedingly persuasive justification” another way of saying intermediate scrutiny
❖ Alienage Classifications
➢ Discrimination against non-citizens
▪ This should be distinguished from national origin classifications, which discriminate against individuals because of the country that a person came from.
• The issue is when such discrimination is a denial of equal protection of the laws.
➢ Protection Under Equal Protection
▪ Aliens are protected from discrimination because the equal protection clause explicitly says that no person shall be denied equal protection of the laws.
▪ Equal protection is applied to the federal government through the due process clause of the 5th Amendment
▪ Supreme Court has held that it protects aliens from unjustified discrimination
➢ Relationship to Preemption Analysis
▪ Sometimes state and local laws can be challenged based both on equal protection and on preemption analysis.
➢ Overview of Organization
▪ General Rule – strict scrutiny is used to evaluate discrimination against non-citizens.
• There are several exceptions, where less than strict scrutiny is used:
□ Congress has power to regulate immigration and thus has been very deferential to federal statutes and presidential orders that discriminate against aliens. (rational basis)
□ Alienage classifications related to self-government and the democratic process need only meet rational basis review
□ Undocumented aliens are protected by equal protection, and intermediate scrutiny will be used at least in evaluating government actions discriminating against undocumented immigrants with regard to education.
• This is arguably an immutable trait
• Aliens lack political power
• There is a history of past discrimination
➢ Strict scrutiny as the general rule
▪ Graham v. Richardson
• The Supreme Court used strict scrutiny to declare unconstitutional a Pennsylvania law that made non-citizens ineligible to receive public assistance and an Arizona law that limited receipt of benefits to those who are citizens or had resided in the state for at least 15 years.
□ The Court held that “classifications based on alienage, like those based on nationality or race, are inherently suspect and subject to close judicial scrutiny. Aliens as a class are a prime example of ‘a discrete and insular minority for whom heightened judicial solicitude is appropriate.’”
□ The State argued that they have limited resources and cannot afford to pay for the aliens, but the Court said that it did not meet strict scrutiny.
➢ Alienage classifications related to self-government and the democratic process
▪ Everything that is related to self-government dealing with aliens, the standard of review is rational basis, but for all other government positions the standard is strict scrutiny.
• Self-government is those who formulate or execute policy (example – positions: police, probation officers, jurors, prosecutors) if issue deals with this then use rational basis
▪ Foley v. Connelie
• Court used the rational basis test to uphold a state law that required citizenship in order for a person to be a police officer.
□ Police officers are integral to self-government; they enforce the laws that are the product of the democratic process. It would be anomalous to conclude that citizens may be subjected to the broad discretionary powers of non-citizen police officers. The Court held that state may “confine the performance of this important public responsibility to citizens of the United States.”
▪ Ambach v. Norwick
• The Supreme Court upheld a state law that required citizenship for a person to be an elementary or secondary school teacher.
□ Teachers are integral to self-government because they are responsible for inculcating democratic values in youth. A teacher has as opportunity to influence the ideas and views of youth toward government, the political process, and a citizen’s social responsibilities. This influence is crucial to the continued good health of a democracy. The Court therefore applied rational basis review saying that the state had a legitimate interest in excluding aliens from the classrooms.
• The Court in 1984, said that strict scrutiny would need to be used overruling the standard established in Ambach.
• If Congress enacts the law, then rational basis will be used, because the Constitution gives Congress the power when dealing with aliens and naturalization.
□ It must be congress or presidential order in order to be subject to rational basis. Government agency will be held to a higher standard
➢ Congressionally Approved Discrimination
▪ Another exception to strict scrutiny for alienage classifications is where the discrimination is a result of a federal law.
➢ Undocumented aliens and equal protection
▪ California denies illegal aliens jobs, health care and education. Const? You would use rational basis, but why did the Court not strictly apply this in Plyler?
• In Plyler, we have the children of illegal aliens that are being denied education.
□ We don’t have a suspect class and do not have a fundamental right so strict scrutiny is not applied.
▪ Plyler v. Doe
• The Supreme Court declared unconstitutional a Texas law that provided a free public education for children of citizens and of documented aliens, but required that undocumented aliens pay for their schooling.
□ Aliens, even those whose presence is unlawful, are still “people” who are guaranteed due process of law by the 5th and 14th Amendments. The Court did not expressly define a level of scrutiny, but did say that “undocumented aliens cannot be treated as a suspect class because their presence in this country in violation of federal law is not a constitutional irrelevancy. Nor is education a fundamental right.” The Court did use more than rational basis review. Seems that the Court used intermediate scrutiny in evaluation. The Court stressed the blamelessness of children.
□ “It hardly can be argued rationally that anyone benefits from the creation within our borders of a sub-class of illiterate persons many of whom will remain in the State, adding to the problems and costs of both State and National Governments attendant upon unemployment, welfare, and crime.”
□ Dissent: Argued that rational basis review was appropriate and that the legislature should be the one to decide the allocation of funds.
➢ Recap:
▪ Do Not use strict scrutiny for alienage when:
• Jobs are self-governance/democratic
• Congress/Presidential make orders
❖ Discrimination against non-marital children
➢ Intermediate Scrutiny is applied in evaluating laws that discriminate against non-marital children.
▪ Three major principles emerge from the Court’s decisions:
• 1. Laws that provide a benefit to all marital children, but no non-marital children, always are declared unconstitutional.
• 2. Laws that provide a benefit to some non-marital children, while denying the benefit to other non-marital children, are evaluated on a case-by-case basis under intermediate scrutiny.
• 3. laws that create statutes of limitations for the time period for evaluating paternity must provide enough time for those with an interest in the child to present his or her rights and must be substantially related to the state’s interest in preventing false claims.
□ Supreme Court has been consistently hostile to these limitation periods. Two step analysis:
➢ The period for obtaining support must be sufficiently long in duration to present a reasonable opportunity for those with an interest in such children to assert claims on their behalf
➢ Any time limitation placed on that opportunity must be substantially related to the state’s interest in avoiding the litigation of stale or fraudulent claims
▪ It may be intermediate scrutiny, but it does not seem to be as strict as with gender cases.
❖ Other types of discrimination: only rational basis review
➢ Many ways that governments draw distinctions among people.
▪ Like, with laws that determine who can practice law, who can have a driver’s license, who can receive welfare, etc.
• Any of these laws can be challenged as denying equal protection.
• Each is subjected to only rational basis review, unless
□ The discrimination deals with race, national origin, gender, alienage or legitimacy. These require strict or intermediate scrutiny.
• Specifically, the Supreme Court has ruled that rational basis review should be used for discrimination based on:
□ age
□ disability
□ wealth
□ and sex orientation
➢ Age classifications
▪ There is a history of discrimination against the elderly, with judgments based on stereotypes, a person’s age is immutable and visible, but the Court still uses only rational basis review.
▪ Court ultimately determines that rational basis should be used. (not ‘with bite’)
▪ Massachusetts Board of Retirement v. Murgia
• The Court upheld a state law that required police officers to retire at age 50.
□ The Court gave several reasons for choosing rational basis review for age discrimination. The court said that while treatment of the elderly has not been free of discrimination, such persons, unlike, say, those who have been discriminated against on the basis of race or national origin, have not experienced a history of purposeful unequal treatment or been subjected to unique disabilities on the basis of stereotyped characteristics not truly indicative of their abilities. The Court also said that old age does not define a discrete and insular group in need of extraordinary protection from the political process. Instead it marks a stage that each of us will reach if we live our normal span.
□ Since physical ability generally declines with age, mandatory retirement at age 50 serves to remove from police service those whose fitness for the job has usually diminished with age. This is rationally related to the State’s objective.
□ Dissent: Justice Marshall criticizes the majority because he explains that the elderly constitute a suspect class that has subject to repeated and arbitrary discrimination in employment.
➢ Discrimination based on disability
▪ Supreme Court ruled that only rational basis review should be used for discrimination based on disability.
▪ Cleburne and Doe upheld this review.
▪ Although disability classifications receive only rational basis review under the equal protection clause, a federal statute prohibits such discrimination with the Americans with Disabilities Act.
▪ Court reaffirmed that rational basis was the test to use. (not ‘with bite’)
➢ Wealth discrimination
▪ It seemed for a while that the Court would use heightened scrutiny for laws discriminating against the poor.
▪ The court determines that rationally basis is the test (‘not with bite’)
➢ Discrimination based on sexual orientation
▪ Court used rational basis ‘with a bite’ because it was sheer animous towards the group.
▪ Romer:
• Sheer animous towards a particular group
• Denied political power
• Is sheer animous towards a group enough?
□ Probably not b/c many laws are created out of sheer animous
Fundamental Rights Under Due Process and Equal Protection
Introduction
❖ Three ways to trigger strict scrutiny:
➢ Discrete and insular minority
➢ Fundamental Rights – Equal Protection
➢ Due Process – fundamental rights (liberty)
▪ Substantive – sufficient substantive justification for law (gov’t must justify infringement)
▪ Procedural – sufficient procedural steps followed (when gov’t takes away a person’s life, liberty, or property it must provide adequate procedures)
❖ The Concept of Fundamental Rights
➢ Some liberties are so important that they are deemed to be “fundamental rights” and that generally the government cannot infringe them unless strict scrutiny is met: the government’s objective must be necessary to achieve a compelling purpose.
➢ Under either the due process or equal protection clauses, the court must decide whether a claimed liberty is sufficiently important to be regarded as fundamental, even though it is not mentioned in the text of the Constitution.
➢ Major difference between due process and equal protection:
▪ If a right is safeguarded under due process, the constitutional issue is whether the government’s interference is justified by a sufficient purpose. But if the right is protected under equal protection, the issue is whether the government’s discrimination as to who can exercise the right is justified by a sufficient purpose
➢ They are also non-textual rights
❖ The Ninth Amendment
➢ “The enumeration in the Constitution of certain rights, shall not be construed to disparage others retained by the people.” (aka – there are non-textual rights, the Constitution is not an exhaustive list of fundamental rights)
➢ Court has rarely invoked the 9th amendment
❖ Procedural Due Process
➢ Substantive: the government must justify an infringement by showing that its action is sufficiently related to an adequate justification
➢ Procedural: when the government takes away a person’s life, liberty, or property it must provide adequate procedures
Framework for Analyzing Fundamental Rights
❖ First Issue: Is there a fundamental right?
➢ If a right is deemed fundamental, the government usually will be able to prevail only if it meets strict scrutiny; but if the right is not fundamental, generally only the rational basis test is applied.
➢ The judiciary will defer to the legislature unless there is a discrimination against a ‘discrete and insular’ minority or infringement of a fundamental right.
➢ Tools:
▪ Originalists look to the explicit language; non-originalists can look beyond the explicit language
▪ Court also looks to the history and tradition
• Fundamental rights include those that are ‘deeply rooted in this Nation’s history and tradition
❖ Second Issue: Is the Constitutional Right Infringed?
➢ Government’s action must be justified when the exercise of rights is prohibited
➢ Supreme court has said that in evaluating whether there is a violation of a right it considers ‘the directness and substantiality of the interference’
❖ Third Issue: Is there a sufficient Justification for the Government’s Infringement of a right?
➢ If a right is deemed fundamental, the government must present a compelling interest to justify an infringement
➢ If a right is not fundamental, only a legitimate purpose is required for the law to be sustained.
❖ Fourth Issue: Is the Means sufficiently related to the Purpose?
➢ Besides providing a compelling interest, the government must also show that the law is necessary to achieve the objective. This requires that the government prove that it could not attain the goal through any means less restrictive of the right.
➢ Under rational basis, the means only has to be a reasonable way to achieve the goal and the government is not required to use the least restrictive alternative
Constitutional Protection for Family Autonomy
❖ The Right to Marry
➢ Loving v. Virginia
▪ Court declared unconstitutional Virginia’s anti-miscegenation statute that prohibited a white person from marrying anyone other than another white person
▪ Court declared: ‘the freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men. Marriage is one of the ‘basic civil rights of man,’ fundamental to our very existence and survival.’
➢ Zablocki v. Redhail
▪ A Wisconsin law prevented an individual from obtaining a marriage license without court approval if the person had a minor child not in his or her custody for whom there was a court order to pay support. The court could grant permission to marry only if there was proof that all child support payments were up to date.
• It is not surprising that the decision to marry has been placed on the same level of importance as decisions relating to procreation, childbirth, child rearing, and family relationships. If the right to procreate means anything at all, it must imply some right to enter the only relationship in which the State of Wisconsin allows sexual relations legally to take place. The Court said that the state’s claim that is had a substantial state interest in ensuring that child support was paid, but that the law was not sufficiently related to that end and that it therefore violated equal protection. The Court says that the state has alternative, less restrictive of the right to marry, ways of ensuring child support was paid.
• In this case you ask the following questions:
□ Is there a fundamental right (non-textual – rights rooted in the history and tradition of the people)?
□ Assuming that the right is fundamental, has the right been substantially/directly infringed?
➢ In this case the statute directly and substantially interferes with the fundamental right to marry.
• People will argue that the right to marry is a fundamental right. And some would argue that this would fall under the 9th Amendment and that it is deeply rooted in tradition even though it is not specifically enumerated in the Constitution.
➢ Boddie v. Connecticut
▪ Court ruled that a state law requiring the payment of filing fees and court costs to receive a divorce violated indigent individuals’ due process rights. Obviously, preventing individuals from obtaining a divorce precludes them from exercising their right to marry someone else.
❖ The Right to custody of one’s children
➢ Supreme Court has recognized that parents have a fundamental right to custody of their children
➢ Court has made it clear that there must be a very substantial reason before parental custody can be terminated
▪ Government can permanently terminate custody only if it meets the requirements of both procedural and substantive due process: Parents must be given notice and a hearing, and the government must prove that terminating custody is necessary to achieve a compelling goal.
➢ Stanley v. Illinois
▪ Supreme court said that government must provide ‘clear and convincing evidence’ before permanently terminating a parent’s rights.
▪ Father and mother lived with each other intermittently for 18 years, during this time they had 3 children. The mother died and a state statute mandated that the children become wards of the State upon the death of the mother. So he lost his children too.
• The rights to conceive and raise one’s children have been deemed “essential,” “basic civil rights of man,” and “rights far more precious . . . than property rights.”
➢ Lehr v. Robertson (1983)
▪ Must have more than just a biological connection with the father to trigger a fundamental right.
➢ Michael H. v. Gerald D.
▪ A married woman conceived a child as a result of an affair. The biological father was regularly involved in the child’s life and sought a court order granting visitation rights. A California law created a presumption that a married woman’s husband is the father of her child if they were cohabitating and if the husband is not sterile or impotent. The California court relied on this law to deny the biological father of all parental rights, even visitation.
• In a 5/4 decision the Supreme Court held this was constitutional. The Court held that an unmarried father who participated actively in the child’s life is not entitled to due process if the mother was married to someone else. What counts is whether the States in fact award substantive parental rights to the natural father of a child conceived within, a born into, and extant marital union that wishes to embrace the child.
• Justice Stevens upheld the law because the state offered a procedure whereby the biological father could have established paternity and preserved his rights.
• Dissent: Brennan emphasized the Constitution’s protections for parents’ rights to custody of the children, including rights of unmarried fathers.
▪ Scalia concedes that there are fundamental rights rooted in history and tradition, but we must narrowly tailor them, so as to defer to legislature
❖ The right to keep the family together
➢ Supreme Court has recognized a fundamental right to keep the family together that includes an extended family.
➢ Moore v. City of East Cleveland, Ohio
▪ A city’s zoning ordinance limited the number of unrelated people who could live together in one household and defined “unrelated” to keep a grandmother from living with her two grandsons who were first cousins.
• “Liberty” in the due process clause includes protections for family rights. History counsels caution and restraint. But it does not counsel abandonment, nor does it require what the city urges here: cutting off any protection of family rights at the first convenient, if arbitrary boundary – the boundary of the nuclear family. The ordinance was declared unconstitutional for infringing on the rights of the extended family.
➢ Court has limited Moore in two ways:
▪ Individuals must be related to one another to be considered a family
• Court said that due process did not require that there be a hearing every time a child was removed from a foster home
▪ The other important limit has been the court’s refusal to find an infringement of the right to keep the family together unless there is a direct and substantial interference.
• A federal law that incidentally burdens a right—such as by discouraging family members from living together—is not an infringement sufficient to trigger strict scrutiny.
❖ The right of parents to control the upbringing of their children
➢ Meyer v. Nebraska
▪ The Supreme Court declared unconstitutional a state law that prohibited teaching in any language other than English in the public schools.
• The Court invalidated the law, not on First Amendment grounds, but by using substantive due process and finding that the statute violated the right of parents to make decisions for their children.
▪ The idea that the Constitution protects non-textual rights dates back to the Lochner Era, but it has survived the death of Lochner.
▪ Why did the court use a heightened level of scrutiny?
• Because it was protecting the right of a parent to raise their children
➢ Pierce v. Society of the Sisters of the Holy Names of Jesus and Mary
▪ Supreme Court held unconstitutional a state law that required children to attend public schools.
▪ Court explained that ‘the fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the state to standardize its children by forcing them to accept instruction from public teachers only. The child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for his additional obligations.’
▪ We think it entirely plain that the Act of 1922 interferes unreasonably with the liberty of parents and guardians to direct the upbringing and education of children under their control. There was no reasonable relation to the purpose of competency of the state.
➢ Troxel v. Granville
▪ Supreme Court declared unconstitutional Washington’s law, but the absence of a majority opinion and the focus on the specifics of the statute in question left in doubt the permissibility of other versions of grandparents’ rights laws. A father of two young daughters committed suicide. For the first year after his death, the girls continued to regularly visit with their paternal grandparents. The mother then largely ended this visitation.
• The court decided one of the best interests of the child, and whether there is harm to a child if visiting is denied. O’Connor said that you can only use the best interest of the child and if you are going to use this then you have to give significant weight to parent’s interests.
• Dissent of Scalia: disputed the existence of fundamental rights under the due process clause – there is no such thing as substantive due process.
▪ On its face, it was too broad
▪ It also infringed on the parents
▪ You can have a statute, but you must give deference to the parents b/c the parents are often acting in the child’s best interest
▪ You can use the interest of the child, but you must give weight to the Common Law notion
Constitutional Protection for Reproductive Autonomy
❖ Introduction
➢ The Supreme Court has recognized three aspects of reproductive autonomy to be fundamental rights:
▪ Right to procreate
▪ Right to purchase and use contraceptives
▪ Right to abortion
❖ The right to procreate
❖ The Supreme Court has held that the right to procreate is a fundamental right, and therefore government imposed involuntary sterilization must meet strict scrutiny. The Court initially rejected this position:
➢ Buck v. Bell
▪ Superintendent of the State Colony for Epileptics and Feeble Minded, was ordered to perform the operation of salpingectomy upon Carrie Buck for the purpose of making her sterile. The case raises the contention that the statute authorizing the judgment is void under the 14th Amendment as denying to the Π in error due process of law and the equal protection of the laws.
• Experience has shown that heredity plays an important part in the transmission of insanity, imbecility, etc. It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind . . . Three generations of imbeciles are enough.
▪ In 1980, Carrie Buck was still alive and found to be a woman of normal intelligence. She was one of almost 20,000 “forced eugenic sterilizations” that had been performed by 1935.
▪ 15 years later this reasoning was implicitly overturned in Skinner v. Oklahoma by recognizing a fundamental right to procreate.
➢ Skinner v. Oklahoma
▪ Is this a substantive due process decision?
• No, it violated Equal Protection not Substantive Due Process. They justify the decision based on civil rights and fundamental rights.
▪ The Court declared unconstitutional the Oklahoma Habitual Criminal Sterilization Act that allowed courts to order the sterilization of those convicted two or more times for crimes involving “moral turpitude.”
• “This case touches a sensitive and important area of human rights. Oklahoma deprives certain individuals of a right which is basic to perpetuation of a race – the right to have offspring.” The Court found that the law violated equal protection and spoke broadly of the right to procreate as a fundamental right. This is a basic civil right of man. Marriage and procreation are fundamental to the very existence and survival of the race. There is no redemption for the individual whom the law touches . . . [h]e is forever deprived of a basic liberty.
• Strict scrutiny must be met in cases such as this.
❖ The right to purchase and use contraceptives
➢ Griswald v. Connecticut
▪ Supreme Court declared unconstitutional a state law that prohibited the use and distribution of contraceptives. The law in Connecticut made it a crime to assist, abet, or counsel a violation of the law. The case involved a criminal prosecution of Estelle Griswold, the executive director of the Planned Parenthood League of Connecticut, and a physician. The League and Estelle were prosecuted for providing contraceptives to a married woman.
• The Supreme Court held that the right to privacy was a fundamental right. We are met with a wide range of questions that implicate the Due Process Clause of the 14th Amendment. Overtones of some suggest that Lochner v. New York should have been the Court’s guide. But the Court declined to use it. Instead the Court found that privacy was implicit in many of the specific provisions of the Bill of Rights, such as the first, third, fourth, and fifth amendments. The right of privacy which presses for recognition here is a legitimate one. The Court concluded that the law violated the right to privacy.
□ It is important that Douglas did not focus on a right to avoid procreation or to make reproductive choices. Rather he focused on the need to protect the privacy of the bedroom from the intrusion by the police and the ability to control information about contraceptive use. The Court narrows the right to the right of marital privacy.
□ Is this straight forward substantive due process?
➢ Court says that we can use SDP to reign in those rights that are rooted in the traditions and collective consciences of the people.
• Justices Goldberg, Warren, and Brennan in concurring. Emphasized the 9th Amendment as authority for the Court to protect nontextual rights as privacy.
• Justice Harlan in concurrence. Argued that the right to privacy should be protected under the “liberty” of the due process clause. Amend the Constitution.
• Justice White concurred. Argued that the law did not even meet a rational basis test.
• Justice Black and Stewart in dissent. Contended the law was constitutional, arguing that there is no right to privacy mentioned in the Constitution.
▪ This is simply Lochner again, but we are just using different rights.
➢ Eisenstadt v. Baird
▪ The Supreme Court declared unconstitutional a Massachusetts law that prohibited distributing contraceptives to unmarried individuals and that only allowed physicians to distribute them to married persons. An individual was convicted for giving a woman a package of contraceptive foam at the completion of a lecture on birth control at Boston University.
• The Court found that the Massachusetts law denied equal protection because it discriminated against non-married individuals. If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child. The Court further said that the prohibition of contraceptives served no legitimate government purpose.
▪ We have moved from marital privacy to reproductive autonomy.
➢ Carey v. Population Services International (1977)
▪ The Court declared unconstitutional a New York law that made it a crime to sell or distribute contraceptives to minors under age 16.
• Strict scrutiny must be met for the government to justify a law restricting access to contraceptives. The keyword is “compelling.” Where a decision as fundamental as that whether to bear or beget a child is involved, regulations imposing a burden on it may be justified only by compelling state interests, and must be narrowly drawn to express only those interests.
❖ The right to abortion
➢ The debate is, in part, over constitutional methodology
➢ In examining the right to abortion, analysis is divided into five parts:
▪ 1. Reviews the Supreme Court’s conclusion that the Constitution protects the right of women to choose to terminate their pregnancies prior to viability.
▪ 2. Considers what types of state regulations of abortion are permissible and which are unconstitutional.
▪ 3. Presents the decisions concerning laws that prohibit the use of government funds or facilities for performing abortions.
▪ 4. Examines a particular type of government regulation that has been declared unconstitutional: spousal consent and spousal notification requirements for married women’s abortions.
▪ 5. Law concerning the ability of a state to require parental notice and/or consent for an unmarried minor’s abortion.
➢ The recognition and reaffirmation of the right to abortion
▪ Roe v. Wade
• Key case recognizing a constitutional right to abortion. It involved a challenge to a Texas law that prohibited all abortions except those necessary to save the life of the mother.
• Court held that the constitution protects a right for a woman to choose to terminate her pregnancy prior to viability—the time at which the fetus can survive on its own outside the womb
• Court divides into trimester test:
□ During the first trimester, the government could not prohibit abortions and could regulate abortions only as it regulated other medical procedures
□ During second trimester the government also could not outlaw abortions, but the government ‘may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health’
□ Finally, for the stage subsequent to viability, the government may prohibit abortions except if necessary to preserve the life or health of the mother.
• 7 to 2 decision, Justice Blackmun delivered the opinion of the court. Exhaustively reviewed the history of abortion from ancient attitudes through English law through American history and to the present. Blackmun focused on the right to privacy. The right of privacy, whether found in the 14th Amendment or 9th Amendment, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy. The Court did not find privacy in the prenumbra of the Bill of Rights, rather it found it as part of the liberty protected under the Due Process Clause. The Court explained why prohibiting abortion infringes on a woman’s right to privacy. The Court observed that maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. Forcing a woman to continue a pregnancy against her will obviously imposes enormous physical and psychological burdens. The Court also said that the right to abortion is not absolute and must be balanced against other considerations, such as the state’s interest in protecting “prenatal life.” The Court said that a fetus does not mean a “person” as defined in a Constitution until the fetus is viable. The Court said that strict scrutiny was to be used in striking the balance because the right to abortion was a fundamental right. Regulation prohibiting it must be justified by a compelling state interest. The interest was found to be a balancing of the protection of maternal life and the fetus’ life. Why did the Court choose viability? Why not when brain waves are detected? The tri-mester system may be caving in on itself. Viability is getting earlier and earlier and danger to the mother is getting later and later.
□ Dissenters emphasized that the question of abortion is one that should be left to the legislative process. “[I]n my view its judgment is an improvident and extravagant exercise of the power of judicial review.”
• Taken the right to marital privacy, to be the right to reproductive autonomy, and then to the right to terminate pregnancy.
▪ Roe established some basic principles:
• There is a fundamental right to terminate a pregnancy – Substantive Due Process under liberty and incorporation through the 14th Amendment (liberties that are incorporated or those that are non-textual)
• Level of Scrutiny: Strict Scrutiny (what are governmental interests?)
□ Protecting maternal health – beginning of the 2nd trimester
□ Protecting potential life
➢ 3rd trimester viability
• How could you attack this?
□ Attack the trimester and viability concepts.
➢ Why viability?
□ Attack the idea that this is not a fundamental right.
➢ Ask if the right is rooted in history and tradition?
▪ How do we decide, if we recognize non-textual rights at all, what those rights should be? Especially when it is un-elected officials on the bench
▪ Planned Parenthood v. Casey
• The Court did overrule the trimester distinction and the use of strict scrutiny for evaluating government regulation of abortions.
□ Three core holdings/ANALYSIS:
➢ 1. Right to terminate a pregnancy
➢ 2. At viability, the state can interfere
▪ At the point of viability, the state can prohibit abortion except where health/life of the woman is at stake
➢ 3. The state may regulate at Pre-viability – unless it is an undue burden = if both of these elements are not met then there is an Unconstitutional Burden
▪ What is an undue burden?
• If the purpose or effect is to place a substantial obstacle in the path of a woman who wants to terminate a pregnancy – this is very vague language and still leaves the question of what is an “undue burden”?
• Casey remains the major case articulating current protections and constitutional standards for the right to abortion
• The Supreme Court reaffirmed that states cannot prohibit abortion prior to viability.
□ However, the plurality opinion by O’Connor, Kennedy, and Souter overruled the trimester distinctions in Roe and the use of strict scrutiny for evaluating government regulation of abortions. The plurality said that government regulation of abortions prior to viability should be allowed unless there is an “undue burden” on access to abortion.
□ Blackmun and Stevens concurred and would have reaffirmed the trimester distinctions and the use of strict scrutiny in Roe.
• How does Justice O’Connor justify this decision:
□ 1. Reasoned Judgment –
➢ This is a core liberty interest re gender equality
□ 2. Stare Decisis – reliance interests
➢ Why shouldn’t we reject stare decisis here?
▪ built-up reliance interests
▪ when the decision becomes unworkable (i.e. – the trimester approach)
▪ Legal doctrine (Cruzar)
➢ Government regulation of abortions
▪ many different ways in which government can regulate the performance of abortions
▪ After Casey, the government could regulate abortions performed prior to viability so as there is not an undue burden on access to abortions.
▪ In Stenberg the Court considered a government regulation of abortion that concerned a state law banning the procedure of “partial birth abortion.”
▪ Stenberg v. Carhart
• The Court expressly adopted and applied the undue burden test.
□ The Court declared unconstitutional a state law that prohibited the procedure called “partial birth abortion.” This was the first time that a majority of the Court said that the undue burden test is to be used in evaluating laws regulating abortion.
➢ First: the undue burden test combines three distinct questions into one inquiry. A pre-question is: Is there a fundamental right?
▪ Is the right infringed?
▪ Is the infringement justified by a sufficient purpose?
▪ Are the means sufficiently related to the end sought?
➢ Second: the joint opinion’s statement of the undue burden test has an internal tension?
• There was no health exception & just made a complete ban on all partial births
□ State argued that you don’t need a health exception if there is another method; b/c the doctors are split as to what method is best, the court doesn’t agree and says there must be a health exception
• Key question after Casey and Stenberg is what constitutes an undue burden on the right to abortion.
• What is the purpose of this law?
• Kennedy’s concurring opinion: After this case Congress enacted partial birth abortions.
▪ Shift to Casey reflects the Court’s abandoning the position that the state may not regulate abortions in a way to encourage childbirth. Casey does leave unresolved the issue of how far the government can go in this direction in the form of informed consent laws.
• Casey test: The undue burden test
▪ What is an undue burden?
• Anything that puts a substantial obstacle in front of a woman that wants to get an abortion. It is an obstacle if the purpose and effect of the regulation is to keep the woman from having an abortion.
▪ Gonzales v. Carhart
• Court does not overturn Stenberg, but still holds the federal law constitutional
• If there is a medical certainty, we will not strike the law down on its face just b/c there isn’t a health exception
➢ Government restrictions on funds and facilities for abortions
▪ Supreme Court has repeatedly held that the government is not constitutionally required to subsidize abortions even if it is paying for childbirth.
▪ In 1977 the Court upheld the ability of the government to deny funding for abortions that were not performed to protect the life or health of the mother (non-therapeutic abortions).
▪ Criticisms:
• Denial of funding has both the same purpose and effect of preventing abortions and thus should be regarded as a violation of the right.
• Critics argue that the government should not be able to use its resources to encourage childbirth over abortion
• Those who disagree w/court’s abortion funding decisions maintain that it should be left to each woman, on her own, to decide between childbirth and abortion. It violates the right for the government to offer incentives or pressures for one option over the other.
• Abortion is less costly than childbirth
□ Therefore the only possible justification for the government’s paying for childbirth but not abortion is a judgment that abortion is wrong.
▪ Maher v. Roe
• Court does not use s.s. with funding
• ***Government does not have to fund a fundamental right
• The government wasn’t imposing the obstacle, the woman’s own poverty was preventing it. Just because you have a fundamental right does not mean that the government has to provide you with the ability to exercise that fundamental right. (right to travel, but government doesn’t provide aid or free airline tickets)
• The Supreme Court upheld the constitutionality of a state law that denied the use of Medicaid funds for non-therapeutic first trimester abortions, although the law provided funding for medically necessary first trimester abortions.
□ The Court said that denial of public funding places a woman in no different position than she would have been if there was no Medicaid program or no public hospital. The state law denying use of Medicaid funds “places no obstacles – absolute or otherwise – in the pregnant woman’s path to an abortion.
➢ An indigent woman who desires an abortion suffers no disadvantage as a consequence of Connecticut’s decision to fund childbirth . . . The indigency that may make it difficult – and perhaps impossible – for some women to have abortions is neither created nor in any way affected by the Connecticut regulation.
➢ The state mayk have made childbirth a more attractive alternative, thereby influencing the woman’s decision, but it has imposed no restriction on access to abortions that was not already there
□ The Court said that Roe “implies no limitation on the authority of a State to make a value judgment favoring childbirth over abortion, and to implement that judgment by the allocation of public funds.
➢ Roe did not declare an unqualified constitutional right to an abortion; the right protects the woman from unduly burdensome interference with her freedom to decide whether to terminate her pregnanacy
□ There is a difference between state interference with a protected activity and state encouragement of an alternative activity.
➢ The concept is that just because you have a right does not mean that the government has to fund that right.
▪ Two companion cases:
• Court held that federal Medicaid Aid did not require that states fund nontherapeutic first trimester abortions as part of participating in the joint federal-state program
• Court found it was constitutional for a city to refuse to pay for nontherapeutic first trimester abortions in its public hospital
▪ The Supreme Court has gone further and upheld the constitutionality of laws that denied public funding for medically necessary abortions except where necessary to save the life of the mother.
• Harris v. McRae
□ The Court upheld a federal law (the Hyde Amendment) that prohibited the use of federal funds for performing abortions “except where the life of the mother would be endangered if the fetus were carried to term” or except for cases of rape or incest “when such rape or incest has been reported promptly to a law enforcement agency of public health service.”
□ The prohibition of the use of federal funds for abortions “leaves an indigent woman with at least the same range of choices in deciding whether to obtain a medically necessary abortion as she would have had if Congress chose to subsidize no health care costs at all.”
▪ ***Refusal to fund only triggers rational basis test
➢ Spousal consent and notice requirements
▪ The Supreme Court has held that the government cannot require either spousal consent or spousal notification as a prerequisite for a married woman’s obtaining an abortion.
▪ Planned Parenthood v. Danforth
• The Supreme Court declared unconstitutional a Missouri state law that required a husband’s written consent before a married woman could receive an abortion unless a physician certified that the abortion was necessary to protect the woman’s life.
□ The husband recognized the husband’s right and interest, but said that the obvious fact is that when the wife and the husband disagree on this decision, the view of only one of the two marriage partners can prevail. Because it is the woman that bears the child, and is more affected by the pregnancy, the balance weighs in her favor.
□ We cannot hold that the State has the constitutional authority to give the spouse unilaterally the ability to prohibit the wife from terminating her pregnancy, when the State itself lacks that right.
➢ Since the state cannot regulate or proscribe abortion during the first stage, when the physician and his patient make that decision, the State cannot delegate authority to any particular person, even the spouse, to prevent abortion during the same period.
□ State has imposed an absolute obstacle to a woman’s decision that Roe held to be constitutionally protected from such interference.
▪ Planned Parenthood v. Casey
• Court held that the consent/notice requirements were unconstitutional and created an undue burden
• Supreme Court invalidated a state law that required spousal notification before a married woman could receive an abortion.
□ There are millions of women in this country who are the victims of regular physical and psychological abuse at the hands of their husbands. Should these women become pregnant, they may have very good reasons for not wishing to inform their husbands of their decision to obtain an abortion . . . The spousal notification requirement is thus likely to prevent a significant number of women from obtaining an abortion. The child a woman is carrying will have a far greater impact on the mother’s liberty than on the father’s.
• Legislation is measured for consistency with the Constitution by its impact on those whose conduct it affects.
□ The women most affected by this law—those who most reasonably fear the consequences of notifying their husbands that they are pregnant—are in the gravest danger.
➢ Parental notice and consent requirements
▪ The Supreme Court has held that a state may require parental notice and/or consent for an unmarried minor’s abortion, but only if it creates an alternative procedure where a minor can obtain an abortion by going before a judge who can approve the abortion by finding that it would be in the minor’s best interest or by concluding that the minor is mature enough to decide for herself.
▪ Generally parental consent is required for surgeries performed on minors, but women have a right to abortion; therefore court reconciled the two by implementing the two-step approach in Bellotti
▪ Bellotti v. Baird
• Court declared unconstitutional a law that prevented an unmarried woman under 18 from receiving an abortion unless both her parents granted consent or unless a court authorized the abortion for good cause.
□ The Court recognized that parents have a constitutional right to control the upbringing of their children, but also acknowledged that females of all ages have a right to abortion. The Court made the compromise above.
• We therefore conclude that if the state decides to require a pregnant minor to obtain one or both parents’ consent to an abortion, it also must provide an alternative procedure whereby authorization for the abortion can be obtained.
• A pregnant minor is entitled in such a proceeding to show either (1) that she is mature enough and well enough informed to make her abortion decision, in consultation with her physician, independently of her parents’ wishes; or (2) that even if she is not able to make this decision independently, the desired abortion would be in her best interests
▪ Other cases
• Supreme Court upheld a Utah law that required that a physician notify, if possible, the parents or guardian of the woman upon whom the abortion is to be performed, if she is a minor.
□ The fact that the notice requirement might inhibit some minors from seeking abortions is not a valid basis to void the statute.
□ Court emphasized that parents have a constitutional right to raise their children and that therefore the state has an important interest in making sure that parents are notified prior to an abortion on a teenage girl.
• Court also upheld parental notification requirements so long as they have the judicial bypass procedures outlined in Bellotti.
• Court specifically ruled that a two-parent notification requirement without judicial bypass procedure was unconstitutional, but that such a requirement is permissible so long as there is a mechanism for judicial bypass.
▪ An Act prohibited physicians from performing an abortion on a pregnant minor until 48 hours after written notice of the pending abortion is delivered to her parent or guardian.
Constitutional Protection for medical care decisions
❖ The Supreme Court has considered constitutional protection for medical care decisions in three contexts:
➢ 1. Where there is constitutional right to have the government provide care
➢ 2. Whether there is a right to refuse medical care
➢ 3. Whether there is a constitutional right to physician-assisted suicide
❖ How do we know if a right is fundamental under Substantive Due Process?
➢ If it is rooted in the tradition and collective conscious of the people. If yes, then it is fundamental; if no, then we use rational basis test.
▪ If it was a fundamental right, it is rooted in history and tradition; we use strict scrutiny.
▪ If it was a core liberty interest, we use undue burden
▪ If it is a basic right, rational basis
❖ Right to refuse treatment
➢ Generally, there is a constitutional right of individuals to refuse medical treatment, but it is not absolute and can be regulated by the state. (vaccinations can be regulated b/c of government’s compelling interest to stop spread of communicable disease)
➢ Cruzan v. Director, Missouri Dept. of Health
▪ Cruzan was severely injured in an automobile accident and was in a persistent vegetative state. There was not much of a chance that she would regain consciousness. Her parents wanted to take her off life support and end her life. The state intervened to prevent this.
• Three parts to the holding:
• 1. Competent adults have a constitutional right to refuse medical treatment. The Court assumed that the Constitution would grant a competent person a protected right to refuse lifesaving hydration and nutrition.
□ Rhenquist assumed a right to refuse hydration and nutrition. Five of the justices found hydration and nutrition included under an individual’s liberty interest under the Constitution.
• 2. Incompetent - The state may require clear and convincing evidence that a person wanted treatment terminated before it is cut off. This served the state’s interest in protecting life and in ensuring that a person desired the end of treatment before it is suspended. (it does not say that a state must or must not do it, it just says that it is constitutional)
• 3. A state may prevent family members from terminating treatment for another. The right to end treatment belongs to each individual, and a state may prevent someone else from making the decision. The State may choose to defer only to the wishes of the patient, rather than confide the decision to close family members. Family members may be in a conflict of interest situation; they may choose to terminate care to minimize their own emotional or financial burdens.
▪ Unresolved questions left by Cruzan:
• Cruzan did not articulate a level of scrutiny to be used in evaluating government regulation of personal decisions concerning refusal of medical treatment.
• It did not resolve what is sufficient to be considered clear and convincing proof of a person’s desire to terminate treatment.
• Finally, it does not address the situation where a competent person designates a surrogate or guardian to make the decision concerning terminating life-saving treatment.
❖ Right to Physician-Assisted suicide
➢ Glucksberg and Vacco, seem to emphatically reject a constitutional right to physician-assisted suicide. Not a single justice in either case voted to declare unconstitutional either state law. Yet, the cases also left open some doors to future legal protection of a right to physician-assisted suicide
➢ States may enact statutes protecting such a right. In other words, the issue of a right to die is left to the political process; states may prohibit or allow physician-assisted suicide largely unconstrained by the Constitution.
➢ Five justices, in concurring opinions and opinions concurring in the judgment, left open the possibility that laws prohibiting physician-assisted suicide might be declared unconstitutional as applied in specific cases.
▪ In other words, five justices left open the possibility of challenging the application of laws prohibiting physician-assisted suicide in particular cases
▪ The strongest challenge might be brought if a state law prevented the provision of pain-relieving medication that likely would hasten a terminally ill patient’s death.
▪ Similarly, a challenge might succeed if brought by a person whose pain was so severe that it could not be relieved by medication.
➢ ***Ultimately, the question of whether there should be a right to physician-assisted suicide, like all difficult constitutional questions, turns on one’s view of constitutional interpretation and the role of the judiciary.
➢ Washington v. Glucksberg
❖ The Court rejected the claim that the Washington law prohibiting assisted suicide violated a fundamental right protected under the due process clause.
➢ The Court said (Rhenquist) that a right is protected as fundamental under the due process clause only when supported by history or tradition. He further stated “for over 700 years, the Anglo-American common-law tradition has punished or otherwise disapproved of both suicide and attempting suicide.” He also noted that in nearly all states (in western democracy) it is a crime to assist suicide.
▪ The Court said that to hold for the respondents they would have to reverse centuries of legal doctrine and practice, and strike down the considered policy choice of almost every state.
➢ Because the Court determined that the asserted right to assistance in committing suicide is not a fundamental liberty interest protected by the due process clause, the Washington law was to be upheld so long as it met a rational basis analysis. The Court then found that the law reasonably served many legitimate interests.
▪ Interest in the preservation of human life
▪ Protecting vulnerable groups: poor, elderly, disabled persons – from abuse, neglect, and mistakes. If assisted suicide were permitted, many might resort to it to spare their families the substantial financial burden protecting the vulnerable from coercion.
▪ State may fear that permitting assisted suicide will start down the path to voluntary and perhaps even involuntary euthanasia.
❖ 5 Justices recognize a right for a patient to determine the treatment (pain-killing drugs that might hasten death) when faced with imminent death.
❖ There is Right to terminate health and nutrition vs. Right to Dr. assisted suicide (fundamental right? Rooted in tradition? No – so we use rational basis)
- The companion case to Washington, decided the same day was Vacco.
➢ Vacco v. Quill
▪ Involved a challenge by terminally ill patients to the New York law that prohibited aiding or abetting a suicide. The Court held that laws prohibiting physician-assisted suicide do not violate the equal protection clause.
• Rhenquist noted that the prohibition of assisted suicide neither discriminated against a suspect class, nor violated a fundamental right; so under the equal protection analysis this means that the law was to be upheld so long as it met a rational basis test. The Court further noted that the law did treat everyone equally: all had the right to refuse medical care, and all were prohibited from assisting another in committing a suicide.
• The Court further explained that the decision agreed with fundamental legal principles of causation and intent in the following ways:
□ When a patient refuses life-sustaining medical treatment, he dies from an underlying fatal disease or pathology;
□ But if a patient ingests lethal medication prescribed by a physician he is killed by that medication.
➢ The Court said that in some cases, pain killing drugs may speed up a death, but the physician’s intent is not to kill but to ease pain.
➢ Conversely, a doctor who assists a suicide must intent that the patient be made dead.
• The public interests concerned easily satisfy the constitutional requirement that a legislative classification bear a rational relation to some legitimate end.
Constitutional protection for sexual orientation and sexual activity
❖ In Bowers v. Hardwick (1986), the Supreme Court held that the right to privacy does not protect a right to engage in private consensual homosexual activity. The Court said that such a right did not exist because it was not supported by the Constitution’s text, the framers’ intent, or tradition.
❖ In Lawrence v. Texas, the Court expressly overruled Bowers and held that the right to privacy protects right to engage in private consensual homosexual activity.
➢ The question to ask is what level of scrutiny is the majority using and does it matter?
➢ What implications may the decision have on the question of a constitutional right to same-sex marriage?
❖ Lawrence v. Texas
➢ Police in Texas received an anonymous tip of a disturbance in an apartment. They went to investigate and entered the apartment; they found two men engaged in sexual activity. The men were convicted and fined $200 under a Texas law prohibiting “deviate sexual intercourse,” defined as sexual activity between same sex couples.
▪ Justice Kennedy spoke of constitutional protection for all individuals in the most intimate and private aspects of their lives. The prohibitory statutes’ penalties and purposes have more far-reaching consequences, touching upon the most private human conduct, sexual behavior, and in the most private of places, the home. The statutes seek to control a personal relationship that is within the liberty of persons to choose without being punished as criminals. The liberty protected by the Constitution allows homosexual persons the right to make this choice.
▪ Lawrence is important for different reasons:
• 1. This means that the laws in 13 states prohibiting private consensual homosexual activity are unconstitutional.
□ These statutes often are the basis for discrimination against gays and lesbians.
• 2. It is a powerful affirmation of a right to privacy under the Constitution.
• 3. Recognizes that sexual activity is a fundamental aspect of personhood and that it is entitled to constitutional protection.
• 4. Finally, it recognizes the rights of gays and lesbians to equal dignity and equal treatment under the Constitution.
▪ The Court never articulated the level of scrutiny to be used.
• It did not call the right fundamental or mention strict scrutiny
• BUT, the Court did rely on privacy cases where strict scrutiny had been used.
• Texas justified the law as advancing its moral judgment and traditionally this is enough for rational basis review, but the Court rejected this suggesting a heightened scrutiny was used.
□ rooted in tradition may not be the only way to find a liberty interest and fundamental right
▪ In this case we have liberty interest vs. state interest (morality) – the court says in this case morality is not enough
Constitutional Protect for Travel
❖ The Supreme Court has held that there is a fundamental right to travel and to interstate migration within the United States. Therefore, laws that prohibit or burden travel within the U.S. must meet strict scrutiny.
❖ Saenz v. Roe
➢ Involved a 1992 California law that limited welfare benefits for new residents in the state to the level of the state that they moved from for their year of residence.
▪ Do new residents to a state have the right to enjoy the same privileges and immunities enjoyed by other citizens of the same State?
• Yes. The clause protects the right to travel and the citizen’s right to be treated equally in her new State of residence. In a broader sense, this case made it possible for courts to challenge and nullify state laws based on the privileges and immunities clause in the 14th Amendment. This happened in 1935 with Colgate, but the ruling was overruled 5 years later in Madden.
• The clause states in part, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States . . .”
• “whatever benefits they receive will be consumed while they remain in California, there is no danger that recognition of their claim will encourage citizens of other states to establish residency for just long enough to acquire some readily portable benefit.”
▪ Dissent: We should endeavor to understand what the framers of the 14th Amendment thought that it meant. And we should also consider whether the Clause should displace, rather than augment, portions of our equal protection and substantive due process jurisprudence.
➢ The right to travel embraces at least three different components:
▪ 1. right of citizen of one State to enter and to leave another State (Interstate Commerce Clause – 14th Amendment, Privileges and Immunities Clause; protects rights of those with National Citizenship)
• The right is protected not only by the new arrival’s status as a state citizen, but also by her status as a citizen of the United States.
▪ 2. the right to be treated as a welcome visitor (Article IV § 2 – another Privileges & Immunities Clause: Prohibits discrimination against non-residents of a state)
▪ 3. the right to be treated like other citizens of that State, right to migrate (become permanent resident)
• Right to travel/Equal Protection Clause
• Standard of Review: Strict Scrutiny – compelling interest/no less drastic means
• This is a durational residential requirement
□ Bona Fide Residents
□ Portable Benefits
❖ Other court rulings
➢ Court has upheld durational residency requirements for divorces within a State (p. 941)
➢ Court declared unconstitutional a government rule that required a year’s residency in the county as condition to receiving non-emergency hospitalization or medical care at the county’s expense.
➢ Court has articulated and applied the right to travel primarily in evaluating laws that impose durational residency requirements. (Durational requirement: a person must live in the jurisdiction for a specified amount of time in order to receive a benefit.)
▪ Mostly applied in welfare benefits, voting, and divorces
▪ Strict scrutiny
▪ Durational requirements discourage interstate travel, and especially migration, therefore laws must meet strict scrutiny.
• Durational requirements put in effect for budgetary or recordkeeping considerations are insufficient to outweigh the constitutional claims of the individuals.
❖ Restrictions on foreign travel
➢ Supreme Court has held that there is not a fundamental right to international travel and that therefore only a rational basis test will be used in evaluating restrictions on foreign travel.
➢ The Court has said that the right to travel outside the U.S. must be distinguished from the right to travel within the United States.
The Right to vote
❖ The right to vote as a fundamental right
➢ 15th Amendment protects the right of a citizen to vote
➢ 19th Amendment protects the right of women to vote (1920)
➢ 24th Amendment prohibits poll taxes in elections for federal office (1964)
➢ 26th Amendment extends the right to vote to all citizens who are 18 years of age or older
➢ The Supreme Court has declared the right to vote is a fundamental right to protected under equal protection
▪ It is a fundamental right because it is essential in a democratic society
▪ Laws infringing the right to vote must meet strict scrutiny
➢ Two major issues with the right to vote:
▪ 1. laws that deny some citizens the right to vote; and
▪ 2. laws that dilute the voting power of some citizens
➢ Equal Protection – right to vote in state elections
➢ The Court long has said that the right to vote is a ‘fundamental political right’ because it is ‘preservative of all rights’
❖ Restrictions on the ability to vote
➢ Any laws that deny or limit the ability of citizens to vote must meet strict scrutiny
▪ There are some areas where the Court did not use strict scrutiny and upheld restrictions on voting:
• Literacy tests and laws preventing those convicted of felonies from voting
➢ Poll Taxes
▪ Supreme Court held that poll taxes are unconstitutional as a denial of equal protection for all other elections.
▪ Harper v. Virginia State Board of Elections
• Suits by Virginia residents to have declared unconstitutional Virginia’s poll tax.
□ Where fundamental rights and liberties are asserted under the Equal Protection Clause, classifications which might invade or restrain them must be closely scrutinized and carefully confined. The right to vote is too precious, too fundamental to be so burdened or conditioned upon a poll tax. Lines drawn on the basis of wealth or property, like those of race, are traditionally disfavored.
➢ Property ownership requirements
▪ Laws requiring property ownership as a requirement for voting seem to run afoul of Harper’s forceful declaration that wealth cannot be a basis for denying individuals the ability to vote.
▪ Kramer v. Union Free School District
• The Supreme Court declared unconstitutional a state law that restricted voting in school district elections to those who owned taxable real property in the district of who had custody of children enrolled in the local public schools.
□ The Court said that strict scrutiny was appropriate because the law kept some citizens from voting in school elections. The Court found that it was not permissible for the government to measure interest by property ownership or the presence of children in the school system. The gov’t wanted to limit voting to those who had a vested interest in the school system. The court said:
➢ The “requirements . . . are not sufficiently tailored to limiting the franchise to those ‘primarily interested’ in school affairs to justify the denial of the franchise.”
➢ This scheme is both over- and under-inclusive.
• Court said that there was no fundamental right to vote in states for state officials, but if a state decides to adopt an electoral process, it must be open to all.
□ Dissent argues that rational basis should have been used. And the dissent opinion becomes the majority opinion in Ball.
• The Supreme Court has declared that the fundamental right to vote is founded under Equal Protection to vote in state elections. However, the Constitution protects a right to vote in federal elections.
▪ Ball v. James
• Votes were allocated based on property ownership: the best rule was on acre, one vote. The voting decisions had a wide impact. The district was a major supplier of hydroelectric power and about 40% of its water went to urban areas for nonagricultural uses.
□ The Court justified the voting requirements by explaining that only the landowners were subject to the acreage-based taxing power of the water district.
• If you have a special functions district with limited authority, then we will use rational basis and not strict scrutiny.
□ Dissent: The purpose and authority of the Salt River District are of extreme public importance. The District affects the daily lives of thousands of citizens who because of the present voting scheme and the powers vested in the District by the State are unable to participate in a meaningful way in the conduct of the District’s operations.
➢ Literacy Tests
▪ Supreme Court has concluded that literacy tests are constitutionally permissible as a qualification for voting, although they have been outlawed by federal statutes. (Lassiter)
▪ Two assumptions: literacy tests are race neutral in their purpose and effect, and literacy tests meet strict scrutiny b/c we want informed (are able to read) voters
➢ Prisoners’ and Convicted Criminals’ Right to Vote
▪ The government must provide absentee ballots to jail inmates where it is proven that they have no other way of voting. (O’Brien v. Skinner)
▪ However, a state may deny the right to vote to those convicted of felonies, even if they had completed their sentences and paroles. (Richardson)
❖ Dilution of the Right to Vote
➢ Prior to the 1960s, many state legislatures were badly malapportioned. One district for the legislature often would be far more populous than another district for the same body.
▪ Malapportionment in many areas was a result of population shifts to urban areas.
▪ Court said that equal protection requires that all districts be about the same in population size.
➢ The Court’s most famous and most elaborate discussion of the one-person, one-vote rule was in Reynolds v. Sims.
➢ It is irrelevant that voters, by initiative, approve the malapportionment
➢ It does not require mathematical exactness, but only small deviation are permitted
➢ Reynolds v. Sims
▪ Under the law at that time, the Alabama legislature had a 35-member state senate elected from 35 districts that varied in population from 15,417 to 634,864. There also was a 100-member state house of representatives with population varying from 31,175 to 634,864.
• Justice Warren explained that geographical area made no sense in drawing districts; only population was a permissible basis. “Legislators represent people, not trees or acres. Legislators are elected by voters, not farms or cities or economic interests. The right to elect representatives in a free and unimpaired fashion is a bedrock of our political system. Malapportionment inevitably means vote dilution; those voters in the more populous district have proportionally less influence in the political process than those in the small districts. The Court concluded that both houses of a state legislature must be apportioned by population, the Equal Protection Clause requires such. One man, one vote.
• We hold that, as a basic constitutional standard, the Equal Protection Clause requires that the seats in both houses of a bicameral state legislature must be apportioned on a population basis. Simply stated, an individual’s right to vote for state legislators is unconstitutionally impaired when its weight is in a substantial fashion diluted when compared with votes of citizens living on other parts of the State.
➢ Wesberry v. Sanders
▪ The Court declared unconstitutional districts for the House of Representatives where some districts had twice as many people as others.
• The Court discussed the framers’ theory representative democracy and concluded “one person, one vote.” The Court said, “While it may not be possible to draw congressional districts with mathematical precision, that is no excuse for ignoring our Constitution’s plain objective of making equal representation for equal numbers of people the fundamental goal of the House of Representatives. That is the high standard of justice and common sense which the Founders set for us.”
❖ Counting “Uncounted” Votes in a Presidential Election: Bush v. Gore
➢ The Events Leading to Bush v. Gore
▪ Equal Protection – violation because the State Supreme Court stepped in and gave insufficient guidance on manually recounting the votes.
▪ What should the remedy be? The Supreme Court stopped the counting, because the Florida had adopted a “safe harbor” provision to stop voting by December 12.
➢ Bush v. Gore
▪ What was the holding?
• This is a very narrow decision: When a court orders a statewide remedy, there must be at least some assurance that the rudimentary requirements of equal treatment and fundamental fairness are satisfied.
▪ What was the remedy?
• This was a pure partisan decision and both sides flip-flopped in their usual thoughts on protecting rights.
Constitutional Protection for Access to Courts
❖ The Supreme Court has spoken of “the fundamental constitutional right of access to the courts.” The court has long said that the right to be heard in court is an essential aspect of due process (procedural).
➢ The Court has held that discrimination among people as to access to the courts is subjected to strict scrutiny under equal protection. In order to trigger strict scrutiny it must be shown that the discrimination is because of the conduct, not in spite of.
▪ The fact that you have a fundamental right, does government have to fund that right?
• No. Example is abortion – government does not have to fund abortions.
❖ Access to the courts is also protected by specific guarantees in the Bill of Rights, most notably by the Sixth Amendment’s guarantee of the right to counsel in criminal cases.
➢ In Gideon v. Wainwright, the Supreme Court held that this right applies to the state and subsequently the Court clarified that states are constitutionally required to provide indigent Δs an attorney in all criminal cases where there is a punishment of imprisonment.
❖ The Court has held that wealth inequalities, with regard to the appellate process, unconstitutionally violate the right of access to the courts.
➢ But the Court has held that when appeals are made available, the government cannot discriminate or create barriers that limit the ability of indigents to exercise this right.
❖ The Supreme Court did not hold that there is a constitutional right to appeal, but did say that if state law creates such a right, the state may not “deny the poor an adequate appellate review accorded to all who have enough money to pay the costs in advance.”
❖ The Court has reiterated that the government has the constitutional duty to provide counsel to indigent Δs only for their first appeal as of right and not for discretionary appeals or for collateral attacks.
❖ Filing Fees
➢ Boddie v. Connecticut
▪ Connecticut law required the payment of a $60 fee in order to file a petition for divorce. The Boddies were welfare recipients who were denied the ability to file divorce papers because of their inability to afford the filing fee.
• The Court held that “a State may not, consistent with the obligations imposed on it by the Due Process Clause of the Fourteenth Amendment, preempt the right to dissolve this legal relationship without affording all citizens access to the means is has prescribed for doing so. A State must afford to all individuals a meaningful opportunity to be heard if it is to fulfill the promise of Due Process Clause. Filing fees must be waived for indigent persons seeking divorces.” The fundamental right to marry is implicated and the state’s monopoly on granting divorces. This triggered strict scrutiny.
▪ Since you need a divorce to exercise your fundamental right to marry, then a divorce cannot be denied
▪ In subsequent cases not involving constitutional rights, the Court refused to extend Boddie to require a waiver of filing fees in other civil proceedings.
➢ US v. Kras
▪ Kras was unemployed and lived in a 2 ½ room apartment with his wife, his two children, his mother and her child. His young son had an illness (cystic fibrosis) that had substantial medical bills. Kras’s sole assets were $50 worth of clothing and certain household goods. He and his family were on public assistance. He sought to file for bankruptcy for relief from $6,000 in debts. He submitted an affidavit that he could not afford the $60 filing fee or promise to pay the fee in installments.
• The Court held that the Constitution did not require that the government waive its filing fee for bankruptcy. The Court distinguished Boddie on two grounds:
□ First, divorces relate to the constitutional right to marry. The Boddie appellants’ inability to dissolve their marriages seriously impaired their freedom to pursue other protected associational activities. Kras’s alleged interest in the elimination of his debt burden, and in obtaining his desired new start in life, although important and so recognized by the Bankruptcy Act, does not rise to the same constitutional level.
□ Second, the state has a monopoly in granting divorces. A person who wants a divorce has no other way to get one than through the courts. The Court said that there are alternative ways for a person to solve the problem of debts. “[B]ankruptcy is not the only method available to a debtor for the adjustment of his legal relationship with his creditors . . . Resort to the court, therefore, is not Kras’ sole path to relief.”
□ Finally, the Court emphasized that the law allowed a person to pay the filing fee in installments of as little as $1.28 a week.
➢ Dissent disagrees with this b/c $1.28 is a lot of money to an individual that might see a pack of cigarettes as a luxury.
▪ The key factor in determining whether the Constitution requires fee waivers is the presence of a constitutional right. – FUNDAMENTAL RIGHT + State Monopoly in civil litigation
➢ M.L.B. v. S.L.J.
▪ A Mississippi court entered an order permanently terminating a mother’s custody of her child. The mother sought to appeal from the termination decree, but Mississippi required that she pay in advance record preparation fees estimated at $2,352.36. Because she lacked funds to pay the fees, her appeal was dismissed.
• The Court declared unconstitutional this state requirement that parents pay a fee for preparation of the trial record in order to appeal a termination of custody. “Choices about marriage, family life, and the upbringing of children are among the associational rights this Court has ranked as ‘of basic importance in our society,’ rights sheltered by the Fourteenth Amendment against the State’s unwarranted usurpation, disregard, or disrespect.”
• The Court said that proceedings to permanently terminate parental custody fit into the latter category because “termination adjudications involve the awesome authority of the State ‘to destroy permanently all legal recognition of the parental relationship.’”
• Where does Justice Ginsburg place this right to access to the courts? Both under a Due Process violation and an Equal Protection violation.
• Dissent: What is the dissent arguing for? They argue that there is a difference between civil and criminal cases. Says that Griffin and others should be overruled because we now know that discrimination based on poverty does not trigger strict scrutiny. Poverty is not a suspect class.
Constitutional Protection for a Right to Education
❖ The Supreme Court has refused to recognize a fundamental right to education.
❖ San Antonio Independent School District v. Rodriguez
➢ The Supreme Court expressly rejected the claim that education is a fundamental right. Involved a challenge to the Texas system of funding public schools largely through local property taxes. Texas’ financing system meant that poor areas had to tax at a high rate, but had little to spend on education; wealthier areas could tax at low rates, but still had much more to spend on education. For example, one poorer district spent $356 per pupil (96% racial minorities), while a wealthier district spent $594 per student.
▪ Πs challenged the system on two grounds: It violated equal protection as impermissible wealth discrimination, and it denied the fundamental right to education.
• The Court rejected the former argument by holding that poverty is not a suspect classification and that therefore discrimination against the poor only need meet rational basis review.
• The Court rejected the claim that education is a fundamental right. The Court said that “it is not the province of this Court to create substantive constitutional rights in the name of guaranteeing equal protection of the laws. Thus, the key to discovering whether the education is ‘fundamental’ is not to be found in comparisons of the relative social significance of education as opposed to subsistence or housing. Nor is it to be found in weighing whether education is as important as the right to travel. Rather, the answer lies in assessing whether there is a right to education explicitly or implicitly guaranteed by the Constitution.”
• The Court also noted that the government did not completely deny an education to students; the challenge was to inequities in funding.
• The Court concluded that strict scrutiny was inappropriate because there was not discrimination based on a suspect classification, nor infringement of a fundamental right. The Court found that the Texas system for funding schools met the rational basis test.
➢ Why does this not trigger strict scrutiny?
▪ 1. There is no fundamental right to an education
▪ 2. Facially neutral law and there is no discriminatory purpose behind the law
• Based on local property taxes to fund the children
➢ How do we decide whether something is a fundamental right under equal protection?
▪ We know that under substantive due process that something is a fundamental right if it is firmly and deeply rooted in the traditions and collective conscious of the people.
▪ The answer lies in assessing whether there is a right to education explicitly or implicitly guaranteed by the Constitution. Texas is not completely depriving the kids of their education.
➢ What if a school district is not going to educate mentally retarded children is this constitutional? No b/c it would be violated on equal protection grounds.
Procedural Due Process
❖ The Due Process Clause is used with the Equal Protection Clause to protect fundamental rights, but it is also used to impose procedures on government when it takes away a person’s life, liberty, or property.
➢ Classic procedural due process issues concern what kind of notice and what form of hearing the government must provide when it takes a particular action.
➢ It is possible to determine which form of due process is violated based on the remedy sought.
▪ If plaintiff is seeking a government action declared unconstitutional as violating a constitutional right, substantive due process is involved.
▪ When a person is seeking to have a government action declared unconstitutional because of the lack of adequate safeguards, such as notice and hearing, procedural due process is the issue.
❖ Substantive D.P. v. Procedural D.P.
➢ Substantive Due Process asks whether the government has an adequate reason for taking away a person’s life, liberty, or property
▪ Looks to whether there sufficient justification for the government’s action
• The justification depends largely on the level of scrutiny used in evaluation
□ Rational Basis Test – legitimate government purpose
□ Strict Scrutiny – compelling government purpose
❖ Procedural Due Process can be broken into three questions:
➢ 1. Has there been a deprivation?
➢ 2. Is it of “life, liberty, or property”?
➢ 3. It is without “due process of law”?
❖ What is a “Deprivation”?
➢ Is Negligence Sufficient to Constitute a Deprivation?
▪ No; Supreme Court has held that allegations and proof of negligence are insufficient to demonstrate a deprivation of due process (establishing a denial of due process requires demonstrating an intentional deprivation or at least a reckless government action.)
▪ Daniels v. Williams
• A prisoner claimed that his freedom from bodily harm, a protected liberty interest, was denied without due process when he tripped on a pillow that was negligently left on a staircase by a prison guard.
□ The Court said that the “Due Process Clause is simply not implicated by a negligent act of an official causing unintended loss of or injury to life, liberty, or property . . . Not only does the word ‘deprive’ in the Due Process Clause connote more than a negligent act, but we should not open the federal courts to lawsuits where there has been no affirmative abuse of power.”
• A deprivation of due process exists only if there is an allegation of an intentional violation by government or government officers.
□ What is a deprivation by executive branch officials?
➢ 1. What kind of culpability must be shown?
▪ More than negligence (E.P. must show intent/discriminatory purpose)
• Conduct must “shock the conscience”
□ What does shock the conscience of the federal judiciary?
□ In an emergency must show an intentional act & shock the conscience
□ If not an emergency, the officer deliberates before acting – deliberate indifference
▪ Davidson v. Cannon
• Prisoner claimed that he was threatened by another inmate. He reports it, and nothing is done.
□ The Court ruled that the allegation of government negligence was insufficient to state a claim under the Due Process Clause.
▪ County of Sacramento v. Lewis
• Court carved an exception to the rule in Daniels and Davidson.
• The case involved a high-speed police chase that ended tragically. An officer mistakenly heard another officer and chased a boy on a motorcycle. The high-speed chase ended in a crash which killed a passenger, another teenage boy.
□ The Court held that in emergency situations a standard much more protective of the government should be used and that the government can be held liable only if its officers’ conduct shocks the conscience.
➢ This requires showing that the officers acted with the intent of causing harm to the victim.
➢ The definition of emergency is based on whether there was the opportunity for deliberation before the officers acted.
➢ When is the government’s failure to protect a person from privately inflicted harms a deprivation?
▪ DeShaney v. Winnebago County Dept. of Social Services
• The guardians of a 4-year-old child sued the Department of Social Services for its failure to protect the child form beatings his father inflicted that ultimately resulted in irreversible brain damage. The Πs maintained that the department was informed of the abuse over a 26-month period, but did not respond.
□ The Supreme Court held broadly that the government generally has no duty to protect individuals from privately inflicted harms. The Court also held that there was no violation of the constitution because the child was not in the custody of the government and because the abuse occurred in the hands of a private party.
□ The Court reasoned that there was no constitutional violation b/c the child was not in the custody of the government and b/c the abuse occurred in the hands of a private party.
➢ “Nothing in the language of the Due Process Clause itself requires the State to protect the life, liberty, and property of its citizens against invasion by private actors. The Clause is phrased as a limitation on the State’s power to act, not as a guarantee of certain minimum levels of safety and security.”
□ The Court did recognize two narrow situations where the government has a duty to provide protection from privately inflicted harms.
➢ 1. Where the government has limited the ability of a person to protect himself or herself, such as when there is incarceration or institutionalization.
➢ 2. Where there is a special relationship between the government and the injured individual, such as when the government took an affirmative step to place the person in danger – government has literally deprived individual of liberty.
□ Dissent: J. Blackmun argued that at a minimum, once the government began to investigate the case, especially because the child had no other protections, it had the obligation to do so carefully and competently.
▪ Town of Castle Rock v. Gonzales
• Π asserted a property right based on a restraining order to protect the Π and her children. The children were taken by the husband and she reported several times to the police. She was told to wait. Eventually the husband showed up, killed himself and the children.
□ Does an individual who has obtained a state-law restraining order have a constitutionally protected property interest in having the police enforce the restraining order when they have probable cause to believe it has been violated?
➢ The Court said that the decision should be left to the states, but the Court did not find a violation of the Constitutional right to property.
□ The Court said that there is only a property interest if there is an entitlement. The Court said that a ‘benefit is not a protected entitlement if government officials may grant or deny it in their discretion.”
❖ Is it a deprivation of “Life, Liberty, or Property”?
➢ The “Rights-Privileges “ distinction and its demise
▪ The government is required to provide due process only if there has been a deprivation of life, liberty, or property.
▪ The Court repeatedly held that there was liberty or a property interest only if there as “right.” A government-bestowed “privilege” was not a basis for requiring due process.
▪ The Court, in the 1960s changed this view by adopting the view of Professor Charles Reich. Government benefits such as education, welfare, Social Security, licenses, and jobs are relied upon by people and thus hold the same place in a person’s life as property traditionally occupied. To the recipients they are essentials, fully deserved, and in no sense a form of charity.
• How do we decide if something will be a protected property interest? (we are moving into Procedural Due Process)
▪ Goldberg v. Kelly
• The Supreme Court held that individuals receiving welfare have a property interest in continued receipt of benefits and the government must provide due process before it terminates benefits. Justice Brennan quoted Prof. Reich and said: “It may be realistic today to regard welfare entitlements as more like ‘property’ than a ‘gratuity.’ Much of the existing wealth in this country takes the form of rights that do not fall within traditional common-law concepts of property.”
□ Court recognized that welfare benefits, once bestowed, become property requiring due process before termination – there must be notice and a hearing of minimal due process.
➢ What is a deprivation of property?
▪ Government must provide due process before it deprives someone of real or personal property.
• But when are government benefits, such as jobs or payments, to be considered property?
□ Goldberg v. Kelly suggested that the importance of the interest to the individual – welfare, for example, being deemed as essential – determines whether there is a property interest.
➢ In Roth (below), the court used a different approach for determining if there is a property interest.
▪ Board of Regents v. Roth
• Professor was not rehired after contract was ended.
• Court attempted to define property.
□ Court held that “to have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it. It is a purpose of the ancient institution of property to protect those claims upon which people rely in their daily lives; reliance must not be arbitrarily undermined.”
➢ Roth defines property, a Reich did, as an “entitlement.” However, Roth offers two inconsistent approaches in defining an entitlement.
▪ An entitlement is defined by the importance of the interest to the individual.
• If people rely on a gov’t benefit in their daily lives, then it should be a property interest that must not be arbitrarily undermined.
• This approach would find a property interest if there is an important benefit regardless of the content of the state law.
▪ The existence of an entitlement is determined by an independent source such as state law and the rules or understandings that it creates.
• This approach would find a property interest only if the state law creates a reasonable expectation to receipt of a benefit, regardless of the importance of the interest.
➢ The Court has not resolved the tension between the two approaches, but the Court has generally adopted the second approach to defining property – as a reasonable expectation to cont’d receipt of a benefit.
▪ Bishop v. Wood
• City police officer was considered a permanent employee under state law. Court concluded that he did not have a property interest in his job and that he was not entitled to due process with regard to his termination. This means that the government can prevent there from being a property interest simply by making it clear that it retains the right to fire the individual at will.
• In deciding if there is property interest in a gov’t job, the relevant inquiry is the expectations created by the law and customs surrounding the position.
▪ Loudermill
• In deciding if there is a property interest in a government job, the relevant inquiry is the expectations created by the law and customs surrounding the position. – this is the current standing under property
• The issue of what procedures are required is a matter of federal constitutional law.
▪ Summary:
• There is a property interest if here is an entitlement.
□ Two ways to determine entitlement:
➢ Define entitlement based on the importance of the interest to the individual
➢ Defined entitlement as a reasonable expectation to continued receipt of a benefit. (preferred by Supreme Court)
▪ is there a justifiable expectation that the benefit will be received in the future?
□ In cases concerning government employment, Court has defined property based on the expectations created by the relevant law.
➢ Problem: allows the government to undermine the existence of property simply by instructing people not to expect continued receipt of the benefit.
➢ What is a deprivation of liberty?
▪ Constitutional rights are a liberty interest
▪ There are two different ways for the Court to approach this and define liberty:
• 1. The Court could determine what is “liberty” based on the importance of the interest at stake.
• 2. The Court could determine whether there is a liberty interest based on the expectations engendered by state law.
➢ Reputation as a liberty interest
▪ When is harm to reputation a deprivation of liberty?
• In Goss v. Lopez, the Court said that reputation is a liberty interest, and found a property interest in students attending school.
▪ Goss v. Lopez
• Supreme Court found that there was a property interest in continued receipt of an education when the gov’t creates a public school system and requires children to attend. Even though the gov’t has no constitutional duty to provide a public education, the Court held that there was a property interest in continued schooling created by state laws and a liberty interest in not being stigmatized by suspension.
□ The total exclusion from the educational process for more than a trivial period is a deprivation of property and liberty requiring due process.
• This case speaks of a student’s liberty interest in his or her reputation. Paul v. Davis rejects such a liberty interest.
▪ Wisconsin v. Constantineau
• Court found an individual’s liberty was denied when the chief of police posted a notice in all local retail liquor stores forbidding sales of liquor to the person. The individual objected that the posting was done without any notice or a hearing. The Court agreed: “where a person’s good name, reputation, honor, or integrity is at stake b/c of what the government is doing to him, notice and an opportunity to be heard are essential.”
▪ Paul v. Davis
• The Louisville, KY police chief circulated a flyer of those known to have committed shoplifting. The Π, whose picture and name was included, objected saying his reputation, a liberty interest, was denied without due process.
□ The Supreme Court disagreed and held that an “interest in freedom alone . . . is neither liberty nor property guaranteed against state deprivation without due process of law.” The Court also emphasized that liberty interests are created either by the Bill of Rights or by state law. (harm to reputation, by itself, is not a deprivation of liberty).
□ The words “liberty” and “property” as used in the Fourteenth Amendment do not in terms single our reputation as a candidate for special protection over and above other interests that may be protected by state law.
➢ Overall, the Court held that in deciding if there is a liberty interest, the Court is to look at the positive law and not base its decision on a conclusion about the importance of the interest to the individual.
➢ Liberty interest for prisoners
▪ The Court has struggled in defining what “liberty” is in cases involving prisoners.
• Most recently in Sandin v. Conner (1995), the Supreme Court has held that regardless of the content of statutes and regulations, there is a liberty interest only if there is a significant deprivation of freedom that is atypical to the usual conditions of confinement – liberty interests based on the importance of the interest involved.
□ Up until this case, a liberty interest for prisoners could be found, either if prison statutes and regulations were written in mandatory language and created such an interest, or if the interest was so important that the Court would deem it to be a part of liberty regardless of the content of the statutes or regulations.
▪ Vitek v. Jones
• A prisoner is deprived of liberty when transferred from a prison to a mental hospital.
▪ Sandin v. Conner
• Involved a Hawaii prisoner who was placed in disciplinary segregation for vocally objecting to a body cavity search. The 9th Circuit found a liberty interest based on Hawaii prison regulations that provided that an individual only would be placed in disciplinary segregation if there was “substantial evidence” of misconduct.
□ The Supreme Court reversed and strongly criticized the approach of finding liberty interests based on the language of statutes and regulations. The Court held that regardless of the content of statutes and regulations, there is a liberty interest only if there is a significant deprivation of freedom that is atypical to the usual conditions of confinement – liberty interests based on the importance of the interest involved.
▪ Wilkinson v. Austin
• Prisoners placed in ‘super-max’ facility
• Court holds that it is a significant and atypical deprivation
• No violation of due process though, because there were sufficient procedural due process safeguards. There were several stages of review.
❖ What procedures are required?
➢ When the government must provide due process, it must supply certain basic safeguards such as notice of the charges or issue, the opportunity for a meaningful hearing, and an impartial decision maker.
▪ There are many ways that notice and a hearing can be provided.
➢ Mathews v. Eldridge
▪ Was deprived of social security disability benefits without an opportunity to be heard. What is the difference between this and Goldberg then? Goldberg was based on need, and the procedures are a medical assessment in this case
• Black Letter Law: Court gave a balancing test (Mathews Balancing Test), balancing the importance of:
□ the private interest involved,
□ the risk of erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards.
□ the cost to the government (gov’t interest).
➢ Is this a good test?
▪ Poor decision, because it is very subjective. It has been criticized.
➢ Jones v. Flowers
▪ Jones was going to lose his home because he did not pay his taxes. 1950 case requires that before a home can be seized they must give the owner notice and an opportunity to be heard.
• The Court held that the notice must be reasonably calculated to notify the owner. When mailed notice of a tax sale is returned unclaimed, the State must take additional reasonable steps to attempt to provide notice to the property owner before selling his property, if it is practicable to do so.
➢ Government Employment
▪ Court has said that due process is satisfied if the government provides a fired employee both an informal pre-termination proceeding where it is possible to respond to charges and then a later post-termination hearing
▪ The Court has also found that continued employment by the government is a “significant” interest for the individual
• The interest to the individual and the need to avoid errors justifies requiring an informal pre-termination proceeding despite costs.
➢ Family Rights
▪ Supreme Court has been inconsistent in the degree of due process it has required in cases concerning parental rights.
▪ The Court does not have to provide counsel (no automatic right) in hearings for permanent termination of parental rights.
• Court said that sometimes the presence of an attorney would matter little in the outcome of the proceedings.
• Moreover, if somebody is losing their own liberty (criminal proceedings) is it necessary for them to have a right to counsel.
ANALYSIS FOR PROCEDURAL DUE PROCESS CASES:
What are the steps in a procedural due process case?
1. Identify a property or liberty interest
2. Are the procedural safeguards sufficient?
o Balance of Mathews test – Black Letter Law:
▪ Private interest affected
▪ Risk of erroneous deprivation and the value of increased/substitute process
1. degree to which the procedure will make a different and the value of the substitute procedure
▪ The gov’t interest (cost to gov’t)
The Federal Legislative Power
Introduction: Congress and the States
❖ Basic principles of American gov’t:
➢ Congress may act only if there is express or implied authority in the Constitution
➢ States may act unless the Constitution prohibits the action
❖ In evaluating the Constitutionality of any act of Congress, there are always two question:
➢ 1. Does Congress have the authority under the Constitution to legislate?
➢ 2. If so, does the law violate another constitutional provision or doctrine, such as infringing separation of powers or interfering with individual liberties?
❖ Throughout American history, Congress’s powers have been defined relative to the states
➢ Some of the most important political battles have been fought over how power should be allocated between the federal and state governments (slavery, civil rights movement, new deal legislation, etc.)
❖ Where is the grant of federal power found in the Constitution? Article I, §8: powers of federal gov’t are enumerated.
➢ Clause 18 of §8 says that Congress can pass all laws that are necessary and proper to effectuate the enumerated powers in §8.
❖ Where is the grant of state power found in the Constitution? 10th Amendment
➢ Powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
❖ The Framework for Analysis: McCulloch v. Maryland
➢ This case is the most important Supreme Court decision in American history defining the scope of Congress’s powers and delineating the relationship between the federal government and the states
▪ Issue: Is it constitutional for the State of Maryland to tax the Bank of the United States?
▪ The trial court ruled for Maryland, the Court of Appeals affirmed, and the Supreme Court reversed.
➢ McCulloch v. Maryland
▪ In his opinion, Justice Marshall posed two major questions:
• Does Congress have the authority to create the Bank of the United States?
□ Historical practice established the power of Congress to create the bank. Marshall invoked the history of the first Bank of the United States as authority for the constitutionality of the second bank. He noted that the first Congress enacted the bank after great debate and that it was approved by an executive. He also mentioned that even those who opposed the first bank endorsed the creation of the second bank. “It would require no ordinary share of intrepidity, to assert that a measure adopted under these circumstances, was a bold and plain usurpation, to which the constitution gave not countenance. He also says that the power is implied by the power to lay and collect taxes, to borrow money, and to regulate commerce. Marshall said, “. . . we must never forget that it is a constitution we are expounding.”
□ He also talked about the “necessary and proper” clause 18 of Article 1 §8.
• Is the state tax on the bank constitutional?
□ “The powers of the general government, it has been said, are delegated by the states, who alone are truly sovereign; and must be exercised in subordination to the states, who alone possess supreme dominion.” Marshall rejected this “compact federalism” view, contending that it was the people who ratified the Constitution, not the States. Thus the people are sovereign, not the states. He said that the power to tax would be the power to destroy the bank.
➢ He wrote: “The government proceeds directly from the people; is ‘ordained and established’ in the name of the people . . . The assent of the States, in their sovereign capacity, is implied, in calling a convention, and thus submitting that instrument to the people. But the people were at perfect liberty to accept or reject it; and their act was final. It required no the affirmance, and could not be negatived, by the state governments.”
▪ The government of the Union is truly a government of the people!
❖ What role should concern over protecting states have in defining congress’ powers?
➢ Throughout American History, a central issue has been the extent to which concern over protecting the prerogatives and institutions of state governments should matter in defining the scope of Congress’s legislative power.
➢ The Supreme Court has defined the scope of Congress’s powers under three crucial constitutional provisions:
▪ The Commerce Power
▪ The Spending Power
▪ Section 5 of the 14th Amendment
➢ Arguments in favor of federalism, giving the states more power:
▪ Decreasing the likelihood of federal tyranny
▪ Enhancing democratic rule by providing government that is closer to the people
▪ Allowing states to be laboratories for new ideas
The Commerce Power
❖ The Commerce Clause has been the focus of the vast majority of Supreme Court decisions that have considered the scope of Congressional power and federalism
❖ There have been roughly four eras of commerce clause jurisprudence
➢ The Initial Era: Gibbons v. Ogden Defines the Commerce Power
▪ Commerce power was broadly defined but minimally used.
▪ New York legislature granted a monopoly to Fulton and Livingston for operating steamboats in New York waters. These two licensed Ogden to operate a ferry boat between N.Y.C. and N.J. Gibbons operated a competing ferry service and thus violated the exclusive rights given to Fulton and Livingston under the monopoly. Gibbons maintained that he had a right to operate his ferry because it was licensed under federal law.
• The Supreme Court considered the scope of Congress’s powers and then whether the New York grant of a monopoly was constitutional
▪ Gibbons v. Ogden
• Navigation is part of commerce
• The Court reversed the New York courts’ holding, concluding that the 1793 federal law authorized Gibbons to operate a ferry in New York waters; thus, the New York granted monopoly was preempted by federal law. The Court also found that the New York monopoly was an impermissible restriction of interstate commerce.
□ Justice Marshall considered the scope of Congress’s commerce power in evaluating the constitutionality of the federal law which authorized the license issued to Gibbons:
➢ First, the Court considered what commerce means. The Court held: “Commerce undoubtedly is traffic, but it is something more: it is intercourse. It describes the commercial intercourse between nations, and parts of nations, in all its branches, and is regulated by prescribing rules for carrying on that intercourse.”
▪ Commerce includes all phases of business, including navigation, which was the issue in that case.
▪ He calls the power plenary – very broad
➢ Second, the Court considered the meaning of “among the states.” “The word ‘among’ means intermingled with. A thing which is among others, is intermingled with them. Commerce among the States, cannot stop at the external boundary line of each State, but may be introduced into the interior.” The Court said that as “comprehensive as the word ‘among’ is, it may very properly be restricted to that commerce which concerns more States than one . . . The completely internal commerce of a State, then, may be considered as reserved for the State itself.”
▪ The Court made it clear that Congress could regulate intrastate commerce if it had an impact on interstate activities. Marshall wrote: “But, in regulating commerce with foreign nations, the power of Congress does not stop at the jurisdictional lines of the several States . . . The power of Congress, must be exercised within territorial jurisdiction of the several states.”
➢ Third, the Court considered whether state sovereignty and the Tenth Amendment limit Congress’s powers. “This power, like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the constitution . . . the power over commerce with foreign nations, and among the several States, is vested in Congress as absolutely as it would be in a single government.”
▪ In other words, Congress has complete authority to regulate all commerce among the states. When acting under its commerce clause authority, Congress can regulate in the same way as it could if no sate governments existed. The sole check on Congress is the political process, not judicially enforced limits to protect the states.
➢ The 1890’s-1937: A limited federal commerce power
▪ Court narrowly defined the scope of Congress’s commerce power and used the Tenth Amendment as a limit
▪ In the late 19th Century Congress began using the Commerce Clause much more extensively to regulate businesses
▪ Beginning in the 1890s, the Supreme Court took a very different approach to the Commerce Clause than that expressed in Gibbons.
• The Court narrowly interpreted the scope of Congress’s commerce power based on an expressed concern for leaving regulatory matters to the state governments.
• From the late 19th Century until 1937, the Court often declared unconstitutional state laws regulating employment and commercial transactions as violating freedom of contract protected under the Due Process Clause.
▪ Court was deeply committed to a laissez-faire, unregulated economy
▪ What is “Commerce”?
• United States v. E.C. Knight Co.
□ The U.S. gov’t attempted to use the Sherman Antitrust Act to block the American Refining Company from acquiring four competing refineries. The acquisition would have given the company control of over 98% of the sugar refining industry.
➢ The Court held that the Act could not be used to stop a monopoly in the sugar refining industry because the Constitution did not allow Congress to regulate manufacturing. The Court held that federal law could not be applied because the monopoly was in the production of sugar, not in its commerce. They further explained that the effect on commerce was only “indirect” and thus outside the scope of federal power. If the Court were to decide otherwise, they said they would be intruding on state sovereignty.
□ Overall the Court held that commerce was to be narrowly defined as one stage of business, separate and distinct from earlier phases such as mining, manufacturing, and production.
• Carter v. Carter Coal Co.
□ The Court declared unconstitutional the Bituminous Coal Conservation Act of 1935. The law contained detailed findings as to the relationship between coal and the national economy and declared that the production of coal directly affected interstate commerce. The law provided for local coal boards to be established to determine process for coal and toe determine, after collective bargaining by unions and employers, wages and hours for employees.
➢ The Court focused on the unconstitutionality of federal regulation of wages and hours. They emphasized that this narrow definition of commerce was essential to protect the states. “[T]he danger of such a step by the federal government in the direction of taking over the powers of the states is that the end of the journey may find the states so despoiled of their powers, or – what may amount to the same thing – so relieved of responsibilities . . . as to reduce them to little more than geographic subdivisions of the national domain.”
□ RELATION TO LOCHNER ERA: While the Court was invalidating these laws under the commerce clause to protect states’ rights, at the same time they were invalidating state laws under substantive due process prohibiting the amount of hours people could work and minimum wage laws. They took a very lasseiz faire approach to economy and commerce.
▪ What does “Among the States” mean?
• During the 1890s to 1937 era, the Supreme Court did not adopt a consistent approach to defining what constituted commerce “among the states.”
□ In some cases, the Court accorded Congress the ability to regulate intrastate transactions because of their impact on interstate commerce. – The Shreveport Cases
□ In other cases, the Court limited Congress’s power to regulate intrastate transactions by restricting Congress to only those matters with a “direct effect” on interstate commerce. – ALA Shecter Poultry Corp.
• Houston, East & West Texas Railway Co. v. United States
□ The Court upheld the ability of the Interstate Commerce Commission to set intrastate railroad rates because of their direct impact on interstate commerce. Specifically, a railroad was ordered to charge the same rates for shipments to Marshall, Texas, whether from Shreveport, Louisiana, or from Dallas, Texas.
➢ The Court upheld the federal regulation and held that “Congress in the exercise of its paramount power may prevent the common instrumentalities of interstate and intrastate commercial intercourse from being used in their intrastate operations to the injury of interstate commerce.” The Court said that Congress “does possess the power to foster and protect interstate commerce, and to take all measures necessary or appropriate to that end, although intrastate transactions of interstate carriers may thereby be controlled.”
• A.L.A. Schecter Poultry Corp. v. United States
□ “Sick Chickens” Case. The Court declared unconstitutional a federal law based on an insufficient effect on interstate commerce. The National Recovery Act, key piece of New Deal legislation, authorized the President to approve “codes of fair competition.” The President then approved a Live Poultry Code for NYC. In part, the Code was designed to ensure quality poultry by preventing sellers from requiring buyers to purchase the entire coop of chickens, including sick ones. It also regulated employment by requiring collective bargaining, prohibiting child labor, and by establishing a 40 hour workweek and a minimum wage.
➢ The Court declared the Code unconstitutional because there was not a sufficiently “direct” relationship to interstate commerce. The Court said that the code was not regulating the interstate transactions; rather, the code concerned the operation of businesses within NYC. Congress can only regulate when there is a direct effect on interstate commerce. “There is a necessary and well-established distinction between direct and indirect effects.” The federal government has the authority to regulate when there are direct effects on commerce, “but where the effect of interstate transactions upon interstate commerce is merely indirect, such transactions remain within the domain of state power.
▪ This distinction is essential in order to protect state governments and ultimately the American system of government.
• Stream of Commerce
□ In Schechter the Court concluded that the federal regulation of the poultry business could not be justified on the ground that it is part of the stream of commerce.
➢ This is the “stream of commerce” approach to defining “among the states”
▪ Does the Tenth Amendment Limit Congressional Powers?
• The Amendment says, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved o the States respectively, or to the people.”
□ There are two ways of looking at the Amendment:
➢ 1. The 10th Amendment is not a separate constraint on Congress, but rather is simply a reminder that Congress only may legislate if it has authority under the Constitution.
▪ Under this approach, a federal law will never be found unconstitutional under the Amendment, but it could be invalidated as exceeding the scope of Congress’s powers under Article I.
➢ 2. Protects sovereignty from federal intrusion. The 10th Amendment is a key protection of states’ rights and federalism. It reserves a zone of activity to the states for their exclusive control, and federal laws intruding into this zone should be declared unconstitutional by the courts.
• The court concluded that the Tenth Amendment reserved control of activities such as mining, manufacturing, and production to the states.
• Hammer v. Dagenhart
□ A federal law prohibited the shipment in interstate commerce of goods produced in factories that employed children under the age of 14 or employed children between the ages of 14 and 16 for more than eight hours per day or six days per week.
➢ The Court declared it unconstitutional because it controlled production. “The grant of power to Congress over the subject of interstate commerce was to enable it to regulate such commerce, and not to give it authority to control the States in their exercise of the police power over local trade and manufacture.” The Court said that regulating the hours of labor of children was entrusted to state authority. Court distinguishes Ames by reasoning that the harm does not travel with the product as it does with the lottery tickets.
□ This case and the next case (Ames) dealt with federal law that prohibited the shipment of a specified item.
• Champion v. Ames
□ The power to regulate interstate commerce includes the ability to prohibit items from being in interstate commerce.
➢ The Court concluded that it was within Congress’s commerce clause power to stop lottery tickets from being a part of interstate commerce. The Court said that “the possible abuse of power is not an argument against its existence.”
□ But in the two preceding cases the Court did not define the zone of activities reserved to the states.
□ Up until 1936 the Court was drawing a line between plenary power and manufacture & production. Relation to interstate commerce and the difference with indirect effect.
➢ 1937-1990s: Broad Federal Commerce Power
▪ the court expansively defined the scope of the commerce power and refused to apply the Tenth Amendment as a limit
▪ Key decisions changing the commerce clause doctrine
• NLRB v. Jones & Laughlin Steel Corp.
□ Involved a constitutional challenge to the National Labor Relations Act, which created a right of employees to bargain collectively, prohibited unfair practices such as discrimination against union members, and established the National Labor Relations Board to enforce the law.
□ Does Congress have the right to regulate the labor practices of this business?
➢ The Court explained that the Steel Corp. was clearly a part of interstate commerce. It was the fourth largest produce of the steel factories in Pennsylvania and many other states and categories. The Corp. also employed several hundred thousand employees.
➢ In light of these findings the Court explained that the steel business was part of the stream of commerce and that labor relations within it had a direct effect on commerce. The Court’s opinion left no doubt that the decision marked a major shift in the law.
▪ The Court said that “the fact that the employees . . . were engaged in production is not determinative.” The Court then spoke broadly of its power: “The fundamental principle is that the power to regulate commerce is the power to enact ‘all appropriate legislation’ for ‘its protection and advancement,’ ‘to adopt measures’ to ‘promote its growth and insure its safety.’ ‘to foster, protect, control, and restrain.’ That power is plenary and may be exerted to protect interstate commerce no matter what the source of the dangers which threaten it.”
□ Court returns to previous interpretation (before 1890s) of Congress’s powers under the 10th Amendment
➢ Power is plenary and it has a close and substantial relation to interstate commerce
• United States v. Darby
□ Involved a challenge to the constitutionality of the Fair Labor Standards Act of 1938. This Act prohibited the shipment in interstate commerce of goods made by employees who were paid less than the prescribed minimum wage (25 cents/hr). In upholding the Act, the Court departed from all aspects of the pre-1937 commerce doctrines.
➢ The Court rejected the view that production was left to state regulation. Congress may control production by regulating shipments in interstate commerce. “While manufacture is not of itself interstate commerce, the shipment of manufactures goods interstate is such commerce and the production of such shipment by Congress is indubitably a regulation of commerce.
➢ The Court overruled Hammer and rejected the view that the 10th Amendment limits Congress’s power.
▪ A law is constitutional so long as it is within the scope of Congress’s power.
• Wickard v. Filburn
□ Under the Agricultural Adjustment Act, the secretary of agriculture set a quota for wheat production and each farmer was given an allotment. Farmer Filburn grew wheat primarily for home consumption and for his livestock on his dairy farm in Ohio. His allotment was 222 in 1941, but he grew 461 and was fined $117.
➢ The Court upheld the application of the federal law and ruled against farmer Filburn.
▪ “Questions of the power of Congress are not to be decided by reference to any formula which would give controlling force to nomenclature such as ‘production’ and ‘indirect’ and foreclose consideration of the actual effects of the activity in question upon interstate commerce.” “Questions of federal power cannot be decided simply by finding the activity in question to be ‘production,’ nor can consideration of its effects be foreclosed by calling them ‘indirect.’”
▪ Congress reasoned that they could regulate the production in this instance of wheat not to enter the market because cumulatively home grown wheat had a substantial effect on interstate commerce.
• WHERE ARE WE NOW?
□ Commerce now includes all stages of business
□ Congress can regulate any activity, intrastate or interstate, that has a substantial effect on interstate commerce
□ The 10th Amendment is no longer seen as reserving a zone of activities fro exclusive state control, it is just a truism – 2nd approach is a truism
➢ This expansive definition of Congress’s commerce power continued from 1937 to the 1990s. From 1937 to 1992, not one federal law was invalidated as exceeding the scope of Congress’s Commerce Clause authority
□ Doesn’t everything involve interstate commerce? So have we gone too far?
▪ The meaning of the “Commerce Among the States”
• Three areas where the Court had the occasion to consider the meaning of “commerce among the states” after 1937:
□ Civil rights laws, regulatory laws, and criminal laws
• Civil Rights Laws. Congress enacted this legislation under its Commerce Clause power. Did not regulate under 14th Amendment because under the 14th Amendment Congress could only regulate gov’t conduct and could not regulate private behavior – it only could control state action.
• Heart of Atlanta, Inc. v. United States
□ The Court upheld the constitutionality of Title II of the Civil Rights Act, which prohibited discrimination by places of public accommodation.
□ The only questions are (1) whether Congress had a rational basis for finding that racial discrimination by motels affected commerce, and (2) if it had such a basis, whether the means it selected to eliminate that evil are reasonable and appropriate.
□ The Heart of Atlanta Motel was located in downtown Atlanta and had 216 rooms and about 75% of its guests were from out of state. The Court upheld the application of the Act to the motel, which had a policy of refusing service to blacks.
➢ “Voluminous testimony presents overwhelming evidence that discrimination by hotels and motels impedes interstate travel.” The Court said that it did not matter that Congress’s motive was in part moral. The Court also said that if it is interstate commerce that feels the pinch it does not matter how local the operation which applies the squeeze.
➢ The Court used rational basis to evaluate, and in their decision.
• Katzenbach v. McClung, Sr. and McClung, Jr.
□ Ollies bbq was a family owned restaurant in Alabama. The Court’s recitation of the facts emphasized the interstate connections of the restaurant. 46% of the meat that it purchased annually came from out of state.
➢ Court’s decision was not based on the interstate impact of the restaurant. Rather, the Court found that Congress rationally had concluded that discrimination by restaurants cumulatively had an impact on interstate commerce. The court upheld the Civil Rights Act and its application to Ollies BBQ because “the power of Congress under the commerce clause is broad and sweeping.”
▪ Regulatory Laws
• In Hodel v. Indiana (1981), the court upheld a federal law that regulated strip mining and required reclamation of strip-mined land.
□ A court may invalidate legislation enacted under the Commerce Clause only if it is clear that there is no rational basis for a congressional finding that the regulated activity affects interstate commerce, or that there is no reasonable connection between the regulatory means selected and the asserted ends.
➢ Dissent said that they left the word substantial effect, showing that the regulated activity has a substantial effect on that commerce.
• Congress can regulate intrastate activities if necessary to protect its regulation of interstate activities. The court has held that Congress’s regulatory power extends even after an item has been shipped in interstate commerce
▪ Criminal Laws
• Perez v. United States
□ When should Congress be enacting criminal laws under the Commerce Clause?
➢ The Court said that there are three ways Perez affects commerce:
▪ Channels of Interstate Commerce
▪ Instrumentalities or persons/things of interstate commerce
▪ Intrastate activity that substantially affects interstate commerce
• Perez fit in this third category.
• The Court drew the line here until the 1990s.
▪ The Tenth Amendment between 1937 and the 1990s
• The Court declared that the Tenth Amendment is “but a truism,” simply a reminder that for Congress to act it must have authority under the Constitution.
• The only case between 1937 and the 1990s to deviate from this view and find that a law violated the 10th Amendment was National League of Cities v. Usery in 1976. In this case, the Court, in a 5-4 margin, declared unconstitutional the application of the Fair Labor Standards Act, which required the payment of the minimum wage to state and local employees.
• National League of Cities v. Usery
□ There are limits on the power of Congress to override state sovereignty, even when exercising its otherwise plenary powers to tax or to regulate commerce. The Court found that requiring states to pay their employees the minimum wage violated the Tenth Amendment because the law “operate[s] to directly displace the States freedom to structure integral operations in areas of traditional governmental functions.”
➢ Forcing state and local governments to pay their employees the minimum wage would require that they either raise taxes or cut other services to pay these costs.
➢ They held that Congress violates the Tenth Amendment when it interferes with traditional state and local government functions.
➢ The key fifth vote for the majority was found in the concurring opinion of Justice Blackmun, Blackmun said that he saw the majority as adopting “a balancing approach [that] . . . does outlaw federal power in areas such as environmental protection, where the federal interest is demonstrably greater and where state facility compliance with imposed federal standards would be essential.” He concurs only if the Court uses the “balancing approach” in making decisions.
□ One of the key goals of Rhenquist is to redraw the line between the federal and state powers.
□ How does this impair the State’s integrity?
➢ This impairs the State’s ability to give services.
□ This was overturned 8 ½ years later in Garcia.
• Garcia v. San Antonio Metropolitan Transit Authority
□ Supreme Court expressly overruled National League of Cities. Garcia focused on whether the application of the Fair Labor Standards Act to state and local governments violated the Tenth Amendment. (5-4 decision) This is not traditional sovereign (government) function.
➢ Blackmun offered two reasons for overruling Usery.
▪ 1. Usery had proved unworkable. “We reject as unsound in principle and unworkable in practice, a rule of state immunity from federal regulation that turns on a judicial appraisal of whether a particular government function is ‘traditional’ or ‘integral.’” The Court further argued for judicial restraint in enforcing the 10th Amendment in terms usually associated with the more conservation Justices: “Any rule of state immunity that looks to the ‘traditional,’ ‘integral,’ or ‘necessary’ nature of governmental functions inevitably invites an unelected federal judiciary to make decisions about which state policies it favors and which ones it dislikes.”
• So here he mentions stare decisis and strikes the National League case as wrong because it was against federalism.
▪ 2. Argued that the protection of state prerogatives should be through the political process and not from the judiciary. The principal and basic limit on the federal commerce power is that inherent in all congressional “action – the built-in” restraints that our system provides through state participation in federal government action. The political process ensures that the laws that unduly burden the States will not be promulgated. It is protected through State representatives, and so the courts should stay away from participation.
• Is he abdicating any judicial review? Sounds like it, unless the judiciary thinks the political process has broken down. Blackmun says the States know how to protect themselves through the political process, and that they have representation in Congress.
➢ There were three dissenting opinions.
▪ Justice Powell’s dissent focused on the majority’s first major point as to whether it was possible to define “traditional” or “integral” governmental functions. He argued that the Court could define the parameters of the 10th Amendment just as the Court has defined numerous other ambiguous constitutional provisions.
▪ Justice O’Connor’s dissent responded to the majority’s second major point and challenged the view that the political process would adequately protect the interests of state governments.
▪ Justice Rhenquist wrote a short dissent lamenting the majority’s approach, but predicting that, in time, the conservative’s position on the 10th Amendment again would prevail.
➢ 1990s-???: Narrowing of the Commerce Power and Revival of the Tenth Amendment as a Constraint on Congress
▪ Court has again narrowed the scope of the commerce power and revived the Tenth Amendment as an independent, judicially enforceable limit on federal actions.
▪ In the 1990s, the Supreme Court once more changed course with regard to the scope of Congress’s powers under the Commerce Clause and the whether the Tenth Amendment is a limit on federal power. In 1995, in United States v. Lopez, the Court for the first time in almost 60 years found that a federal law exceeded Congress’s Commerce Clause authority.
▪ Two ways to look at these cases:
• Redefine what is commerce?
• Even if something is commerce, that it violates the 10th Amendment?
▪ What is Congress’s Authority to Regulate “Commerce Among the States”?
• United States v. Lopez
□ The Supreme Court declared unconstitutional the Gun-Free School Zones Act of 1990, which made it a federal crime to have a gun within 1,000 feet of a school.
➢ The Court ruled that the relationship to interstate commerce was too tangential and uncertain to uphold the law as a valid exercise of Congress’s commerce power.
➢ The Court began by stating that the Constitution creates a national government of enumerated powers. The Court returned to the notion that Article I limits Congress’s legislative powers to those that are express or implied in the Constitution. The Court identified three types of activities that Congress can regulate under the Commerce Clause:
▪ 1. Congress can regulate the use of channels of interstate commerce.
▪ 2. Congress may legislate to regulate and protect the instrumentalities of interstate commerce, this includes the power to regulate persons and things in interstate commerce.
▪ 3. Congress may regulate those activities having a substantial relation to interstate commerce. The more restrictive interpretation of congressional power is preferable and that the proper test requires an analysis of whether the regulated activity substantially affects interstate commerce.
➢ Court concluded that the presence of a gun near a school did not substantially affect interstate commerce and that therefore the federal law was unconstitutional.
□ Why did the Court rule this way:
➢ It regulates non-economic, non-commercial activity
➢ It is a crime, and is traditionally state (not a conclusive factor) – where is the link to interstate commerce? They said it would affect insurance, ability to travel, and education
➢ No jurisdictional hook/link
▪ The prosecutor would have to prove interstate commerce
➢ No Congressional findings
▪ Did Congress make findings to show a rational basis for the law? No, not at the time Congress enacted the law.
• United States v. Morrison
□ The Federal Violence Against Women Act authorizes victims of gender-motivated violence to sue for money damages. Congress enacted it based on findings of the inadequacy of state laws in protecting women who are victims of domestic violence and sexual assaults. Congress found that gender-motivated violence costs the American economy billions of dollars a year and is a substantial constraint on freedom of travel by women throughout the country. Christy Brzonkala, allegedly was raped by football players. The players were never prosecuted and did not even receive sanctions from the University. She filed suit against the players and the University.
➢ Can the civil damages provision of the Act be upheld, either as an exercise of Congress’s commerce clause authority or as permissible under Congress’s power pursuant to §5 of the 14th Amendment?
▪ No. Congress lacks the authority to adopt the provision under either of these powers. The Court reaffirmed the 3-part test for Congress’s commerce clause authority that was given in Lopez. Congress may regulate:
• the channels of interstate commerce
• the instrumentalities of interstate commerce and persons or things in interstate commerce, and
• activities that have a substantial effect on interstate commerce
□ You can show substantial effect by showing:
□ 1. Aggregate effect
□ 2. These first three ask if Congress had a rational basis for finding activity affects interstate commerce
□ But (from Lopez) if Congress is regulating non-economic activity then there must be and we abandon aggregate affect approach:
□ a jurisdictional element and
□ congressional findings, and
□ also Congress cannot be regulating laws (like educations and crime) that are traditionally handled by the State
▪ Brzonkala defended the law based on the third part of the test, on the ground that violence against women has a substantial effect on the national economy. The legislative history on the Act found that assaults against women, when looked cumulatively across the country, have a substantial effect on interstate commerce.
• The Court rejected this argument. Rhenquist stated that Congress was regulating noneconomic activity that has traditionally been dealt with by state laws. The existence of congressional findings is not sufficient, by itself, to sustain the constitutionality of Commerce Clause legislation. Congress mistakenly relied on a “but-for” causal chain in their analysis. The Court said by upholding this reasoning a slippery slope would ensue and any crime could be upheld if it had an aggregated nationwide impact.
➢ Thomas in concurrence: “The very notion of a ‘substantial effects’ test under the Commerce Clause is inconsistent with the original understanding of Congress’ powers and with this Court’s early Commerce Clause cases.”
▪ He called for replacement of the substantial effects test with a standard more consistent with the original meaning of the Commerce Clause, and until that happens he contended that Congress would continue to appropriate state police powers under the guise of regulating commerce. (based on cumulative impact on the economy)
➢ Souter in dissent: Stressed the need for judicial deference to congressional fact-finding. The fact of a substantial effect is not an issue for the courts in the first instance. Congress’s power to legislate exceeds the Court’s. The business of the Court is to review the congressional assessment, not for soundness but rationality that a jurisdictional basis exists in fact.
□ Morrison goes further than Lopez in limiting the scope of Congress’s commerce power, by limiting it to a finding of substantial effect on interstate commerce.
➢ Also in areas traditionally regulated by the states, Congress cannot regulate noneconomic activity based on a cumulative effect on interstate commerce.
• United States v. Jones (2000)
□ The Supreme Court unanimously held that the federal Arson Act does not apply to arson of a dwelling. Ginsburg said that applying the Act to arson of a private residence would raise serious constitutional issues concerning Congress’s power under the Commerce Clause. To avoid “constitutional doubts” it would interpret the law to not apply to such acts.
• Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers
□ A consortium of suburbs of Chicago sought to buy an abandoned gravel pit to dispose of nonhazardous solid wastes. Water in the pit was used by migratory birds. The Army had promulgated rules concerning when the Water Pollution Control Act applied – one was the “migratory bird rule” – was used to require compliance in the use of the abandoned gravel pit.
➢ In a 5-4 decision the Court interpreted the Act narrowly to avoid “constitutional doubts” and thus held that the presence of the birds is not sufficient to bring intrastate waters within the scope of the Water Pollution Control Act. The gov’t argued the rule was constitutional because protection of the birds is a national interest and that millions of people spend billions of dollars annually on recreational pursuits relating to the migratory birds. The Court said that this argument raised a significant constitutional question, but to avoid the question the Court said it would interpret the statute to not apply. To uphold the act would be a significant impingement of the States’ traditional and primary power over land and water use. The migratory bird rule was an inappropriate interpretation of Water Act.
□ The Supreme Court has never explained how serious the constitutional doubts must be; nor has it indicated how plausible the narrowing construction has to be
□ Two most recent cases refused to extend limits on Congress’s powers and upheld the federal statutes
• Pierce County, Washington v. Guillen
□ Involved two separate accidents at intersections in the State of Washington and the local gov’ts had recently conducted studies of traffic conditions at both locations. The Πs sued the local gov’ts and sought access to the traffic studies. A federal statute provides that if a local gov’t does a traffic study as part of applying for federal funds, the study would not be discoverable. Congress’s concern was that local gov’ts would not conduct the investigations if they could be used as evidence against them in suits arising form accidents.
➢ The Washington S. Ct. declared the federal law unconstitutional. Unanimously, the Supreme Court reversed and upheld the law. Thomas explained that “it is well established that the Commerce Clause gives Congress authority to regulate the use of the channels of interstate commerce . . . The statues can be viewed as legislation aimed at improving safety in the channels of interstate commerce and increasing protection for the instrumentalities of interstate commerce – they fall within Congress’ Commerce Clause power.
• Gonzales v. Raich (2005)
□ The Court (6-3 decision) held that Congress constitutionally may use its power to regulate commerce among the states to prohibit the cultivation and possession of small amounts of marijuana for medicinal purposes.
➢ Stevens explained that for almost 70 years Congress has had the authority to regulate activities that have a substantial effect on interstate commerce. The Court held that marijuana, looked at cumulatively, including that grown for medical purposes, has a substantial effect on interstate commerce. Stevens relied on Wickard v. Filburn (60 year old precedent), where the Court held that Congress may regulate the amount of wheat that farmers grow for their own home consumption
➢ 1. One way to view the case is that Congress, under the Commerce power, can reach intrastate activity to regulate interstate market in commodity
➢ Congress can regulate purely intrastate activity that is not itself “commercial,” in that it is not produced for sale, if it concludes that failure to regulate that class of activity would undercut the regulation of the interstate market in that commodity.
▪ But can regulate intrastate activity if it is a commodity in interstate commerce
□ This stands for the idea that intrastate production of a commodity sold in interstate commerce is economic activity and thus substantial effect can be based on cumulative impact.
□ In concurrence Scalia said that Congress, pursuant to the necessary and proper clause, has the authority to control intrastate production of goods that are of a type that end up in interstate commerce.
□ The dissent is basically saying that this decision suggests that the way to get around Morrison is to read/write the regulation very broadly.
□ Scalia’s concurring opinion: uses the necessary and proper clause in reaching the same conclusion as the majority.
▪ Does the Tenth Amendment Limit Congress’s Authority
• The first indication of the revival of the Tenth Amendment occurred in Gregory v. Ashcroft (1991)
□ State court judges in Missouri challenged a provision of the Missouri Constitution that set a mandatory retirement age as violating the federal Age Discrimination in Employment Act.
➢ Court held that a federal law will be applied to important state government activities only if there is a clear statement from Congress that the law was meant to apply. Court further said that the Act lacked such a clear statement, and that the Court then refused to apply I to preempt the Missouri mandatory retirement age.
▪ They discussed the importance of autonomous state gov’ts as a check on possible federal tyranny and stressed the significance of the Tenth Amendment as a constitutional protector of state sovereignty.
• There have been two decisions since Gregory that used the 10th Amendment to invalidate federal laws: New York and Printz
• New York v. United States
□ For only the second time in 55 years the Court invalidated a federal law as violating the 10th Amendment. This case involved the 1985 Low-Level Radioactive Waste Policy Amendment Act, which created a duty for states to provide for the safe disposal of radioactive wastes generated within their borders. The Act provided monetary incentives for states that comply, and allowed states to impose a surcharge on radioactive waste received from other states. In order to ensure state gov’t action, the law provided that states would “take title” to any wastes in their borders that were not properly disposed of by a certain date, and would also be liable for all damages resultant therefrom.
➢ The Court ruled that Congress, under the Commerce Clause, could regulated the disposal of radioactive waste, BUT that the “take title” provision of the law was unconstitutional because it gave state gov’ts the choice between accepting ownership of waste or regulating according to the instructions of the Congress. It is impermissible for Congress to impose either option on the states. Forcing states to accept ownership of radioactive wastes would impermissibly “commandeer” state gov’ts, and requiring state compliance with federal regulatory statutes would impermissibly impose on states a requirement to implement federal legislation.
▪ Federal government may not compel the States to enact or administer a federal regulatory program. So it appears that if a federal law compels state legislative or regulatory activity, the state is unconstitutional even if there is a compelling need of the for federal action.
• Printz v. United States
□ The issue was whether the Brady Handgun Violence Prevention Act violated the 10th Amendment in requiring that state and local law enforcement officers conduct background checks on prospective handgun purchasers.
➢ The Court found the provision unconstitutional (5-4 decision). Congress was impermissibly commandeering state executive officials to implement a federal mandate. Congress violated the 10th Amendment when it conscripts state gov’ts. The law also violates separation of powers. The Court said that the Executive unity would be shattered, and the power of the President would e subject to reduction, if Congress could act as effectively without the President as with him, by simply requiring state officers to execute its laws.
▪ In dissent: Stevens disagreed saying, “When Congress exercises the powers delegated to it by the Constitution, it may impose affirmative obligations on executive and judicial officers of state and local gov’ts as well as ordinary citizens.
• Reno v. Condon
□ The Court rejected a 10th Amendment challenge and upheld a federal law. Involved a challenge to the Driver’s Privacy Protection Act, a federal law that prohibited states from disclosing personal information gained from DMVs, such as addresses, numbers, SS#s, and medical information. An actress was killed after a stalker got her information from a local DMV.
➢ Court reversed Appellate Court’s decision that the Act violated the 10th Amendment. The Court said that the law was constitutional as an exercise of Congress’s commerce clause power, because many states sold the information. The court also said that it regulated private entities that have the same information. The Court said that the law did not violate the 10th Amendment because it was a prohibition of conduct, not an affirmative mandate as in NY and Printz. “It does not require the South Carolina Legislature to enact and laws or regulations, and it does not require state officials to assist in the enforcement of the federal statutes regulating private individuals.
▪ Congress may prohibit state governments from engaging in harmful conduct, particularly if the law applies to private entities as well; but Congress may not impose affirmative duties on state governments.
Review: Is this a valid exercise of Congress’s power under the commerce clause?
How do you decide of they can regulate?
- Congress may regulate:
o 1. the channels of interstate commerce
o 2. the instrumentalities of interstate commerce and persons or things in interstate commerce, and
o 3. activities that have a substantial effect on interstate commerce
▪ You can show substantial effect by showing:
1. 1. Aggregate effect
2. 2. These first three ask if Congress had a rational basis for finding activity affects interstate commerce
▪ But (from Lopez) if Congress is regulating non-economic activity then there must be and we abandon aggregate affect approach:
1. a jurisdictional element and
2. congressional findings, and
3. also Congress cannot be regulating laws (like educations and crime) that are traditionally handled by the State
4. BUT, Congress can regulate non-economic if Congress can regulate purely intrastate activity that is not itself “commercial,” in that it is not produced for sale, if it concludes that failure to regulate that class of activity would undercut the regulation of the interstate market in that commodity. If it is a commodity in interstate commerce (Raich)
o When will there be a 10th Amendment restriction on what otherwise is a valid exercise of Congress’s commerce power (from Reno)?
▪ When the regulation targets only the states (not the private sector), and is viewed as commandeering the legislative and executive branches of a state to act a certain way
▪ Court said that the law did not violate the 10th Amendment because it was a prohibition of conduct, not an affirmative mandate as in NY and Printz
The Taxing and Spending Power
❖ Article I, § 8 states that “Congress shall Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States.”
❖ For What purposes May Congress Tax and Spend?
➢ United States v. Butler
▪ Concerned the constitutionality of the Agricultural Adjustment Act of 1933, which sought to stabilize production in agriculture by offering subsidies to farmers to limit their crops. By restricting the supply of agricultural products, Congress sought to ensure a fair price and thus to encourage agricultural production.
• Butler declared the Act unconstitutional on the ground that it violated the 10th Amendment because it regulated production; the regulation of production was left to the states. The Court explained that Madison asserted that “The United States government has limited and enumerated powers, the grant of power to tax and spend for the general welfare must be confined to the enumerated legislative fields committed to Congress.”
□ In contrast, Hamilton took the position that Congress could tax and spend for any purpose that it believed served the general welfare, so long as Congress did not violate another constitutional provision. Congress has a substantive power to tax and to appropriate, limited only by the requirement that it shall be exercised to provide for the general welfare of the United States.
➢ Lochner Era, violated the 10th Amendment and in 1936 Congress’s power exceeded state sovereignty under the 10th Amendment
□ The Court endorsed Hamilton and allowed Congress broad power to tax and spend for the general welfare so long as it does not violate other constitutional provisions. For example, a tax that was calculated or administered in a racially discriminatory fashion would be unconstitutional, not as exceeding the scope of Congress’s Article I powers, but as violating the equal protection guarantee under the 5th Amendment.
➢ Chas C. Steward Mach. Co. v. Davis
▪ Court upheld the constitutionality of the federal unemployment compensation system created by the Social Security Act.
▪ Court emphasized the broad scope of Congress’s spending power
➢ Sabri v. United States
▪ The Court unanimously upheld the constitutionality of a federal law which prohibits bribery of state, local, and tribal officials of entities that receive at least $10,000 in federal funds. An individual convicted under this law argued that his activities had nothing to do with the area of local government that received federal funds and that Congress exceeded the scope of its spending power. Claim was that Congress can only prohibit bribery as to those state, local, and tribal activities that actually got federal money.
• Supreme Court rejected the argument explaining, “Money is fungible, bribed officials are untrustworthy stewards of federal funds, and corrupt contractors do not deliver dollar-for-dollar value. The Court rejected the federalism argument to the law saying Congress has the “power to bring federal power to bear directly on individuals who convert public spending into unearned private gain, not a means for bringing federal economic might to bear on a State’s own choices of public policy.”
• Rational reasonable means test. As long as Congress could rationally, reasonably means for bribery to occur they could regulate and don’t have to have a jurisdictional link.
❖ Conditions on Grants to State Governments
➢ The Court has held that Congress may place strings on grants to state and local governments, so long as the conditions are expressly stated and they have some relationship to the purpose of the spending program.
➢ South Dakota v. Dole
▪ A federal law sought to create a 21-year-old drinking age by withholding a portion of federal highway funds from any state government that failed to impose such a drinking age. 5 % of federal highway funds would be denied to any state that did not create a 21 year old drinking age.
• The Court approved the condition on federal money. The Court explained that the condition imposed by Congress was directly related to one of the main purposes behind federal highway money: creating safe interstate travel.
□ The Court recognized that at some point the financial inducement offered by Congress might be too coercive and therefore be unconstitutional; but the Court said that this was a “relatively mild encouragement” and was constitutional “even if Congress might lack the power to impose a national minimum drinking age directly, we conclude that encouragement to state action…is a valid use of the spending power.”
• Limits on conditional grants:
□ 1. must be in pursuit of the general welfare
□ 2. Congress must condition the receipt unambiguously (K law)
□ 3. Conditions must be related to the federal interest in the particular project
□ 4. Can’t coerce the states
➢ Pennhurst State School and Hospital v. Halderman (1981)
▪ Conditions to grants must be stated clearly so that states will know the consequences of their choosing to take federal funds.
Congress’ Power Under the Post-Civil War Amendments
❖ After the Civil War, three amendments were added to the Constitution (13th, 14th, and 15th)
➢ 13th – abolishes slavery/badges and incidents of slavery (§2)
➢ 14th – EP, DP, P & I/ only state action (§5)
➢ 15th – Vote (§2)
▪ All three contained sections that gave Congress the power to appropriate legislation
▪ Civil Rights Act invalidated under these amendments in the 19th Century; it was reintroduced and enacted under the Commerce Clause in the 1960s
❖ These amendments contain provisions that empower Congress to enact civil rights legislation, BUT
❖ Whom may Congress Regulate under the Post-Civil War Amendments?
➢ United States v. Morrison
▪ The Federal Violence Against Women Act authorizes victims of gender-motivated violence to sue for money damages under federal law. Congress enacted it based on findings of the inadequacy of state laws in protecting women who are victims of domestic violence and sexual assaults. Congress found that gender-motivated violence costs the American economy billions of dollars a year and is a substantial constraint on freedom of travel by women throughout the country. Christy Brzonkala, allegedly was raped by football players. The players were never prosecuted and did not even receive sanctions from the University. She filed suit against the players and the University.
• Can the civil damages provision of the Act be upheld, either as an exercise of Congress’s commerce clause authority or as permissible under Congress’s power pursuant to §5 of the 14th Amendment?
□ No. Court held, as to §5, that the law is unconstitutional as an exercise of Congress’s power. Congress under this authority may regulate only state and local governments, not private conduct. The 14th Amendment prohibits only state action. The Court said that the civil damages provision of the Act was not aimed at proscribing discrimination by officials that the 14th Amendment might not itself proscribe; it is directed not at any State or state actor, but at individuals who have committed criminal acts motivated by gender bias.
➢ This is an important limit on Congress’s powers under § 5 of the 14th Amendment.
□ Dissenters wanted a broader reach and interpretation of “appropriate legislation.” Not an intrusion on state rights, it is aimed at a state law that is deficient.
❖ What is the scope of Congress’s Power?
➢ There are two views as to the scope of Congress’s power under the post-Civil War Amendments and specifically under § 5 of the 14th Amendment:
▪ 1. Is narrow and accords Congress only authority to prevent or provide remedies for violations of rights recognized by the Supreme Court
• Under this view, Congress cannot expand the scope of rights or provide additional rights
▪ 2. Alternative approach also accords Congress authority to interpret the 14th Amendment to expand the scope of rights or even to create new rights
• Under this view, Congress may create rights by statute where the Court has not found them in the Constitution, but Congress cannot dilute or diminish constitutional rights
➢ Katzenbach v. Morgan and Morgan
▪ Concerned the constitutionality of §4(e) of the Voting Rights Act of 1965, which provides that no person who has completed sixth grade in a Puerto Rican school, where instruction was in Spanish, shall be denied the right to vote because of failing an English literacy requirement.
• Congress in the Voting Rights Act, sought to partially overturn Lassiter by providing that failing a literacy test could not bar a person from voting if the person was educated through the 6th grade in Puerto Rico. The Court upheld the provision as a proper exercise of the powers granted to Congress by §5 of the 14th Amendment. The Court offered two reasons in support of the conclusion:
□ 1. Congress could have concluded that granting Puerto Ricans the right to vote would empower them and help them eliminate discrimination against them – constitutional as a remedy for discrimination.
□ 2. Congress could find that the literacy test denied equal protection, even though this was contrary to the holding in Lassiter. This would accord Congress the authority to define the meaning of the 14th Amendment.
▪ S. Ct. in Lassiter – literacy test does not violate E.P.
• Congress pass Voting Rights Act that prohibits some state use of literacy test
• S. Ct. says in Katzenbach that the VRA is constitutional, what is the way to undue S.Ct. decision:
□ Make a constitutional amendment
➢ City of Boerne v. Flores
▪ Involved a church in Texas that was prevented from constructing a new facility because its building was classified a historic landmark. The church sued under the Religious Freedom Act, and the city challenged its constitutionality.
• The Court held that the Act was unconstitutional on the grounds that it impermissibly expanded the scope of rights and that it was not proportionate or congruent as a preventative or remedial measure. Congress under the §5 of the 14th Amendment may not create new rights or expand the scope of rights; rather Congress is limited to laws that prevent or remedy violations of rights recognized by the Supreme Court, and these must be narrowly tailored – “proportionate” and “congruent” – to the constitutional violation.
• §5 gives Congress the power to enact laws to enforce the provisions of the 14th Amendment: “legislation which alters the meaning of the Free Exercise Clause cannot be said to be enforcing the Clause. Congress does not enforce a constitutional right by changing what the right is. It has been given the power to enforce, not the power to determine what constitutes a constitutional violation.
• Marbury v. Madison was quoted: “If Congress could define its own powers by altering the Fourteenth Amendment’s meaning, no longer would the Constitution be ‘superior paramount law unchangeable by ordinary means.’”
▪ Dissent: None challenged the narrow view of Congress’s powers under §5 of the 14th Amendment. Rather, all three focused on the need for the Court to reconsider Smith, which had narrowly interpreted the free exercise clause and prompted Congress’s enactment of RFRA.
▪ Does this overturn Katzenback? No.
❖ SUMMARY:
➢ KATZENBACH
▪ S. Court interpretation of 14th Amendment – literacy tests do not violate E.P. Lassiter
▪ Congress’s enforcement of 14th Amendment – Voting Rights Act: some use of literacy test violates the 14th Amendment. Congress in response to Lassiter
▪ S. Court’s review of Act of Congress – Congress can reach conduct that does not violate the Amendment itself and {Court uses rational basis – not used}. Katzenbach
➢ CITY OF BOERNE
▪ If the law is neutral – then the Free Exercise clause does not require Religious exemption (Rational Basis). Strict Scrutiny is only used with Free Exercise Clause if a specific religion is discriminated against
▪ RFRA (Rel. Free. Rest. Act) imposed strict scrutiny even in reviewing neutral laws
• this would subject states to suits every time there is a violation of RFRA
▪ §5 power may be used to remedy or prevent constitutional violations
• Congruent and proportionate vs. creation of new substantive rights
Congress’ Power to Authorize Suits Against State Governments
❖ Background on the Eleventh Amendment and State Sovereign Immunity
➢ Eleventh Amendment: “The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any foreign state.”
➢ Since Hans v. Louisiana, states have been immune to suits both by their own citizens and by citizens of other states.
➢ There are three ways around the Eleventh Amendment to hold state governments accountable in federal court:
▪ 1. State officers may be sued in federal court, even when state governments cannot be sued
• Simply put, state officers may be sued for injunctive relief or for damages to be paid by them, but state officers cannot be sued where it is the state treasury that will be paying damages to compensate past wrongs.
▪ 2. States may waive their 11th Amendment immunity and may consent to be sued in federal court
• This is a stringent test to see if a state has waived its 11th Amendment immunity
▪ 3. Congress, pursuant to § 5 of the 14th Amendment may authorize suits against state governments
❖ Congress’s Power to Authorize Suits Against State Governments
➢ The Basic rule: Congress May Authorize Suits Against States Pursuant Only to § 5 of the Fourteenth Amendment
▪ The Supreme Court considered the ability of Congress to override sovereign immunity and authorize suits against state governments
▪ Fitzpatrcik v. Bitzer
• State governments may be sued for violating Title VII of the 1964 Civil Rights Act, which prevents employment discrimination based on race, gender, and religion
□ Court held that Congress could authorize suits against state governments if it acts pursuant to §5 of the 14th Amendment. J. Rehnquist explained that the 14th Amendment followed the 11th and thus can modify it. This is why in Seminole Tribe the 11th Amendment can be overridden by the 14th Amendment and not Article I.
□ The Court also held that the 14th Amendment was intended to be a limit on state power. “When Congress acts pursuant to §5, not only is it exercising legislative authority that is plenary within the terms of the constitutional grant, it is exercising that authority under one section of a constitutional Amendment whose other sections by their own terms embody limitations on state authority.
▪ Pennsylvania v. Union Gas Co. (1989)
• Supreme Court held (5-4) that Congress may override the 11th Amendment and authorize suits against state governments pursuant to any of its constitutional powers, so long as the law in its text expressly authorizes such suits.
▪ Seminole Tribe of Florida v. Florida
• Supreme Court overturned Pennsylvania v. Union Gas. There was a big change in the composition of the Court between the decisions.
□ Court held that Union Gas was an unprecedented expansion in Congress’s power to authorize suits against state governments.
□ “Even when the Constitution vests in Congress complete law-making authority over a particular area, the 11th Amendment prevents congressional authorization of suits by private parties against unconsenting States. The 11th Amendment restricts the judicial power under Article III, and Article I cannot be used to circumvent the constitutional limitations placed upon federal jurisdiction.”
➢ Congress can only authorize suits against state governments, and override the 11th Amendment, when it acts pursuant to §5 of the 14th Amendment.
❖ Prof. Chem. V. I.U. – copyright violation
➢ 1) Is there clear intent, by Congress, to abrogate the 11th Amendment?
➢ 2) Is it a valid exercise of Congress’s power?
▪ under Article I, Congress cannot abrogate the 11th Amendment
▪ Congress looks to §5 of the 14th Amendment for authority
• Congress may abrogate but can’t redefine the meaning of an Amendment
□ What is the scope of the Amendment?
□ Is there a pattern of state constitutional violations?
➢ any remedy must be congruent and proportionate to the constitutional violation
➢ Cases Denying Congress Authority to Act under § 5 to Authorize Suits against state governments
▪ It is clear after Seminole Tribe that Congress can only authorize suits against state governments when it acts pursuant to §5 of the 14th Amendment, and may not authorize suits when it acts pursuant to Article I
• This means that copyright, patent, and environmental suits cannot be authorized
▪ In three decisions between 1999 and 2001, the Court found that federal statutes could not be used to sue state governments because the laws did not fit within the scope of Congress’s § 5 power.
▪ Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank and the United States
• College Savings Bank, a New Jersey company, devised a system, which it patented, for students to use to save money to later pay for college. Florida Prepaid copied the system for use by Florida residents to save money to attend Florida schools. College Savings Bank sued Florida Prepaid for, among other things, patent infringement.
• In 1992, Congress expressly amended the patent laws to authorize suits against state governments for patent infringement.
□ The Court held that the law was not a valid exercise of power under §5 of the 14th Amendment and thus could not be used to sue the state government. Although patents are property and the 14th Amendment protects property from being denied by state governments without due process, the Court found that the authorization of suits was impermissible because it was not “proportionate” or “congruent” to remedy constitutional violations.
□ “In enacting the Patent Remedy Act, Congress identified no pattern of patent infringement by the States, let alone a pattern of constitutional violations. Unlike the undisputed record of racial discrimination confronting Congress in the voting rights cases, Congress came up with little evidence of infringing conduct on the part of the States.”
➢ Finally, the Court held that the law was not valid under §5 because “[t]he legislative record thus suggests that the Patent Remedy Act does not respond to a history of widespread and persisting deprivation of constitutional rights of the sort Congress has faced in enacting proper prophylactic §5 legislation.”
▪ Central Virginia Community College v. Katz (2006) 5-4 decision
• Court ruled that sovereign immunity does not apply in bankruptcy courts.
□ In bankruptcy, the court’s jurisdiction is premised on the debtor and his estate, and not on the creditors’. As such, its exercise does not, in the usual case, interfere with state sovereignty even when States’ interests are affected.
▪ Kimel v. Florida Board of Regents
• Involved a suit by current and former faculty and librarians at FSU. They alleged that the University’s failure to provide promised pay adjustments discriminated against older workers and violated the ADEA (Age Discrimination in Employment Act). A companion case was brought by an employee of the Florida Dept. of Corrections who claimed that he was denied promotions because of his age. Another case involved faculty members at a state university in Alabama who claimed age discrimination.
□ Court (7-2) held that all these claims against state agencies are barred by the 11th Amendment. The Court concluded that the ADEA is an express authorization of suit against states. The Court ruled 5-4 that the ADEA is not a valid exercise of Congress’s power under §5 and cannot be used to sue state governments.
□ The burdens that the ADEA imposes on state and local governments are disproportionate to any unconstitutional behavior that might exist and that under precedent, only rational basis review is used for age discrimination.
➢ Court said that states may discriminate based on age without offending the 14th Amendment if the age classification is rationally related to a legitimate state interest.
❖ Where does this leave state employees who are victims of age discrimination?
➢ They may seek recourse under state law in state courts.
1) Is there clear intent, by Congress, to abrogate the 11th Amendment?
2) Is it a valid exercise of Congress’s power?
❖ What is the scope of Equal Protection with Age Discrimination?
➢ Only rational basis for age discrimination
➢ If the act reaches significant amount of conduct that is not barred by the 14th Amendment, the court is going to look to see if the problem is congruent and proportionate
❖ Did Congress identify a pattern of unconstitutional Age discrimination?
➢ This will be tough with a rational basis requirement
❖ Is the remedy congruent and proportionate to the violation?
➢ For it to be congruent and proportionate, it should be aimed only at the states causing the violation
▪ Board of Trustees, Univ. of Ala. V. Garrett
• Patricia Garrett was the director of nursing at U. of Alabama, Birmingham hospital. She was diagnosed with breast cancer and took time off work to have surgery, chemo, and radiation. When she returned to work, she learned that her position was no longer available. She sued under Title I of the Americans with Disabilities Act (ADA).
□ The Court rejected the Π’s argument that elaborate legislative history documented gov’t discrimination against the disabled. And that such discrimination was different than other laws that Court had recently considered.
□ Court held that state governments cannot be sued for violating Title I of the ADA. Rehnquist explained that under equal protection, discrimination based on disability only need meet a rational basis test, being rationally related to a legitimate gov’t purpose. The Court concluded that Title I of the ADA is not “proportionate” or “congruent” to preventing and remedying constitutional violations.
□ In order to authorize private individuals to recover money damages against the States, there must be a pattern of discrimination by the States which violates the 14th Amendment, and the remedy imposed by Congress must be congruent and proportional to the targeted violation.
□ Finally, Rehnquist, in a case footnote, added that the Court was not declaring the ADA unconstitutional, but rather just holding that state governments could not be sued by individuals for violations.
➢ He did explain that the federal government could still sue the states to enforce the law and that suits against individual government officers for injunctive relief were also permissible, but damages actions against state governments are barred.
1) Is there clear intent, by Congress, to abrogate the 11th Amendment? Yes.
2) Is it a valid exercise of Congress’s power? Rational Basis
❖ What is the scope of Equal Protection with disability Discrimination?
➢ Only rational basis for age discrimination
➢ If the act reaches significant amount of conduct that is not barred by the 14th Amendment, the court is going to look to see if the problem is congruent and proportionate
❖ A. Did Congress identify a pattern of unconstitutional disability discrimination?
➢ This will be tough with a rational basis requirement
❖ B. Is the remedy congruent and proportionate to the violation?
➢ For it to be congruent and proportionate, it should be aimed only at the states causing the violation
➢ Congress’s Power to Authority to Legislate Concerning Types of Discrimination and Rights that Receive Heightened Scrutiny
▪ Supreme Court uses “heightened scrutiny” for some types of discrimination and for fundamental rights.
▪ Discrimination based on race or infringement of fundamental rights must meet strict scrutiny
• Must be necessary to achieve a compelling government purpose
▪ Some types of discrimination must meet “intermediate scrutiny”
• Must be substantially related to achieving a substantial government purpose
➢ In two recent cases the Court has held that Congress has more authority to act under § 5 when dealing with types of discrimination and rights that trigger heightened scrutiny
▪ Nevada Department of Human Resources v. Hibbs
• Court held that the family leave provision of the Family and Medical Leave Act of 1993 (FMLA) fits within the scope of Congress’s §5 powers and can be used to sue state governments. The FMLA requires that employers, including government employers, provide their employees with unpaid leave time for family and medical care.
□ Court held that the provision is a valid congressional abrogation of state sovereign immunity. The “FMLA aims to protect the right to be free from gender-based discrimination in the workplace.” The Court said that Congress, recognizing social realities, found that the absence of family leave policies disadvantaged women in the workplace. Even though the FLMA is gender neutral insomuch that it requires leaves be granted to both genders, and the plaintiff was male, Congress clearly intended the law to prevent gender discrimination in employment.
□ Kimel and Garrett were distinguished on the grounds that they involved types of discrimination which receive only rational basis review, whereas gender discrimination triggers intermediate scrutiny under equal protection.
1) Is there clear intent, by Congress, to abrogate the 11th Amendment? Yes.
2) Is it a valid exercise of Congress’s power?
❖ What is the scope of Equal Protection with gender Discrimination? Intermediate scrutiny
➢ Heightened scrutiny: intermediate scrutiny. So it will be easier to find a constitutional violation.
➢ If the act reaches significant amount of conduct that is not barred by the 14th Amendment, the court is going to look to see if the problem is congruent and proportionate
❖ A. Did Congress identify a pattern of unconstitutional gender discrimination?
➢ Yes.
❖ B. Is the remedy congruent and proportionate to the violation?
➢ For it to be congruent and proportionate, it should be aimed only at the states causing the violation. How is this decision congruent and proportionate? Because that Act only requires unpaid leave, there are limits on the money damages, exceptions to gov’t officers (they are not protected under the Act). There are enough employment exceptions that there are no real needs to worry.
▪ Tennessee v. Lane
• The case involved a criminal Δ who literally climbed on his hands and knees to get to a 2nd-floor courtroom because it was not accessible to those with disabilities. He sued the state government pursuant to Title II of the Americans with Disabilities Act (ADA), which prohibits state and local governments from discriminating against people with disabilities in government programs, services, and activities.
□ In a 5-4 decision, the Court held that Lane’s suit against the state was not barred by sovereign immunity under the 11th Amendment. There is a well established fundamental right of access to the courts. The Court recognized that Congress has greater latitude to legislate under §5 when dealing with a claim that received heightened judicial scrutiny, whether because it is a fundamental right or a type of discrimination that receives heightened scrutiny.
1) Is there clear intent, by Congress, to abrogate the 11th Amendment? Yes.
2) Is it a valid exercise of Congress’s power?
❖ Yes, as applied to fundamental rights it is a valid §5 enactment.
❖ What is the scope of Equal Protection with disability Discrimination? Strict Scrutiny
➢ Heightened scrutiny: strict scrutiny. So it will be easier to find a constitutional violation.
➢ If the act reaches significant amount of conduct that is not barred by the 14th Amendment, the court is going to look to see if the problem is congruent and proportionate
❖ A. Did Congress identify a pattern of unconstitutional disability discrimination?
➢ Yes.
❖ B. Is the remedy congruent and proportionate to the violation?
For it to be congruent and proportionate, it should be aimed only at the states causing the violation.
▪ United States v. Georgia (2006)
• Whether a state government could be sued for violating Title II of the Americans with Disabilities Act. In Lane, the Court ruled that States could be sued for such violations, when the fundamental right of access to the courts is implicated.
• In this case, the Court held that a prisoner who alleged unconstitutional state behavior could sue the state because Congress under §5 of the 14th Amendment can provide a remedy for unconstitutional state conduct.
□ From this case the following appears to be the state of this issue:
➢ In considering whether a state gov’t can be sued for violating a federal law that authorizes such suits, the initial question is whether the Π alleges a Con. Violation?
▪ If yes, a state can be sued.
▪ If no, the question is whether the statute is dealing with a type of discrimination that receives heightened scrutiny or a fundamental right, in which case the lawsuit against the state likely can go forward?
• But if the Π is not alleging a constitutional violation and the case does not involve a type of discrimination or a right receiving heightened scrutiny, the state can be sued only if Congress finds pervasive unconstitutional state conduct.
❖ In order for there to be a valid exercise of §5 of 14th Amendment:
➢ 1. There has to be Congressional findings (a pattern of constitutional violations by the State)
▪ in the case of Tennessee, the violation involved a fundamental right (access to courts). This made it easier for the Court to find violations with heightened scrutiny.
➢ 2. The remedy must be congruent and proportional
▪ How was the remedy congruent and proportional in Tennessee? Used an AS APPLIED approach – aspects of the Act can be upheld, but others may be found to be an unconstitutional abrogation of Congress. It was applied only to the States that were in violation of access to the Courts. So they did not look to the whole act to give a remedy, the remedy was only applied to violations of access to the Courts.
❖ Congress’ Power to Authorize Suits Against State Governments in State Courts
➢ The 11th Amendment has been interpreted to bar suits against state governments in federal court
▪ Consequence: thought to be that suits barred by the 11th Amendment had to be litigated in state court instead of in a federal forum
• However, in Alden, the Court held that Congress cannot authorize suits against state governments in state court
□ State gov’ts cannot be sued in state court, even on federal claims, without their consent
➢ Alden v. Maine
▪ Probation officers in Maine sued, claiming that they were owed overtime pay under the federal Fair Labor Standards Act (valid commerce clause, no 10th amendment problem, no 11th Amendment problem – not in federal court). The suit was initially filed in federal court, but was dismissed based on the Eleventh Amendment. The probation officers then sued in Maine State Court.
• (5-4 decision). Court ruled that the state had sovereign immunity and could not be sued in state court, even on a federal claim, without its consent. Kennedy wrote and acknowledged that the Constitution and its framers were silent about the ability to sue state governments in state courts and that it was unthinkable that the states would have ratified the Constitution had they thought that it made them subject to suit without their consent.
□ “[P]owers delegated to Congress under Article I of the United States Constitution do not include the power to subject nonconsenting States to private suits for damages in state courts.”
• The probation officers could still get an injunction, but that is all. They could not get other damages (like money damages), such as lost wages, etc.
➢ Federal Maritime Commission v. South Carolina Ports Authority (2002)
▪ Court held that states cannot be named as Δs in federal administrative agency proceedings.
▪ A cruise ship company brought a claim against a state agency in the Federal Maritime Commission, claiming that it had been discriminated against in violation of federal maritime law.
• Court (5-4): action barred by sovereign immunity. The Court relied on Alden v. Maine’s conclusion that sovereign immunity is broader than the protections of the 11th Amendment. The Court said that the “preeminent purpose” of sovereign immunity is to protect the “dignity” of state governments and that such dignity would be impermissibly offended by allowing states to be named as Δs in agency proceedings without their consent.
Limits on State Regulatory And Taxing Power
The Dormant Commerce Clause
❖ The “Dormant Commerce Clause” is the principle that state and local laws are unconstitutional if they place an undue burden on interstate commerce.
➢ There is no constitutional provision that expressly declares that states may not burden interstate commerce.
▪ Rather, the Supreme Court has inferred this from the grant of power to Congress in Article I, § 8, to regulate commerce among the states.
❖ “The doctrine is that the Commerce Clause, by its own force and without national legislation, puts it into the power of the Court to place limits on state authority.”
➢ The Commerce Clause has two functions:
▪ 1. An authorization of Congressional actions
▪ 2. the function of the Commerce Clause is in limiting state local regulation
❖ Federal Commerce Clause is a limit on Congress (Article I)
❖ Dormant Commerce Clause bars state/local laws that unduly burden Interstate Commerce
➢ Dormant – means that Congress has not enacted a law
❖ Why a dormant commerce clause?
➢ Congress always has the authority under its commerce power to preempt state or local regulation of commerce
▪ Congress can invalidate any state or local law that it deems to place an undue burden on interstate commerce
➢ The crucial issue with the dormant Commerce Clause is whether the judiciary, in the absence of congressional action, should invalidate state and local laws because they place an undue burden on interstate commerce.
➢ H.P. Hood & Sons, Inc. v. DuMond, Commissioner of Agriculture and Markets of New York
▪ The Court declared unconstitutional a New York law that prevented a company from constructing an additional depot for receiving milk.
▪ The effect of the New York law was to keep more milk for in-staters at the expense of those in Massachusetts.
• The Court declared the law unconstitutional as violating the dormant commerce clause because there was not a permissible nonprotectionist purpose for it.
• They looked at:
□ Intent of the framers
□ The economy
➢ Natural Resources distribution
□ Political
➢ An entity to pass laws that would affect those not in the State is violative of democracy
▪ Dissent: Thomas on the Dormant Commerce Clause.
• 1. Not in the text
• 2. Standard (“undue burden” – unworkable)
• 3. Judicial usurpation of legislative power
• 4. Congress can take care of it (rectify the problem)
❖ The Dormant Commerce Clause Before 1938
➢ In Gibbons, the Court said that “commerce” refers to all stages of business and that “among the states” includes matters that affect more than one state and are not purely internal
➢ Since Gibbons, the Court has struggled with attempting to articulate criteria for when state laws burdening commerce should be upheld as valid exercises of the police power and when they should be invalidated as violating the Dormant Commerce Clause.
➢ Aaron B. Cooley v. The Board of Wardens of the Port of Philadelphia
▪ Pennsylvania law required all ships entering or leaving the Port of Philadelphia to use a local pilot or to pay a fine that went to support retired pilots.
❖ The Contemporary Test for the Dormant Commerce Clause
➢ The Shift to a Balancing approach
▪ 19th Century’s approaches attempted to draw rigid categories of areas where federal law was exclusive and those where states could regulate – the Court has never overruled these earlier tests
▪ Modern Approach is not based on rigid categories, but on courts balancing the benefits of a law against the burdens that it imposes on interstate commerce
• Benefit to the enacting State vs.
• Burden on interstate commerce
▪ South Carolina State Highway Dept. v. Barnwell Bros., Inc.
• Court upheld a state law which imposed length and width requirements for trucks operating in the state. The Court emphasized the state’s important interest in protecting highway safety and in preserving its roadways.
□ Highways are a matter of local concern & should be granted deference, whereas railroads have a national tone & are governed by federal legislation
□ Here the Court believed that the burdens on interstate commerce were outweighed by the benefits in terms of road safety. There was a lot of discussion with public concerns, and the deference to state legislature to decide such concerns.
□ This court does not balance (this is the older stance)
▪ Southern Pacific Co. v. Arizona ex rel. Sullivan, Attorney General
• Balancing Test introduced: “Hence the matters for ultimate determination here are the nature and extent of the burden which the state regulation of interstate trains (length limit), adopted as a safety measure, imposes on interstate commerce, and whether the relative weights of the state and national interests involved are such [as to make the law impermissible].
□ Here the Court decided that the burdens on interstate transportation were greater than the safety benefit to the state from its law. The Court here was not persuaded by the benefits argument.
□ Here, burdens outweigh benefits
▪ Balancing Approach: benefits vs. burden, cases that are not discriminatory
• In recent years, some Justices have objected to this balancing test in dormant Commerce Clause cases, and have argued in favor of upholding all state laws that are deemed non-discriminatory
□ Question? Then what should replace the balancing test?
➢ Scalia wrote abrogating an abandonment of the balancing test, “leave essentially legislative judgments to the Congress. . . . In my view, a state statute is invalid under the Commerce Clause if, and only if, it accords discriminatory treatment to interstate commerce in a respect not required to achieve a lawful state purpose.”
➢ There is no reason to distrust the political process when it is treating in-staters and out-of-staters alike
➢ Determining whether a law is discriminatory
▪ The balancing test prescribed by the Supreme Court is not the same in all dormant Commerce Clause cases
• Varies depending on whether the state or local law discriminates against out-of-staters or treats in-staters and out-of-staters alike
□ If the Court concludes that a state is discriminating against out-of-staters, then there is a strong presumption against the law and it will be upheld only if it is necessary to achieve an important purpose
□ In contrast, if the Court concludes that the law is non-discriminatory, then the presumption is in favor of upholding the law, and it will be invalidated only if it is shown that the law’s burdens on interstate commerce outweighs its benefits
• So, the big question is whether the state law is discriminatory against out-of-staters
▪ So, if is non-discriminatory then we use the balancing approach, if it is discriminatory then there is a strong presumption against the law and it will be upheld only if it is necessary to achieve an important purpose.
▪ Facially discriminatory laws
• sometimes it is obvious that a state of local law is discriminatory because the statute expressly draws a distinction between in-staters and out-of-staters
• Sometimes states attempt to keep their natural resources and thus limit their accessibility to out-of-staters
• City of Philadelphia v. New Jersey
□ The Court reviewed a New Jersey law that effectively kept landfills in the state exclusively for New Jersey’s use by preventing the importation of any wastes from out of state.
➢ The Court found this to be an impermissible protectionist action and declared the law unconstitutional
▪ Are there any alternative ways, non-discriminatory, to deal with the problem
➢ Protectionism – if they could show that there is waste coming from Philadelphia that is ultra-hazardous then they might have a better case
• C&A Carbone, Inc. v. Town of Clarkstown, New York
□ Court found discrimination based on the disparate impact of a facially neutral law.
□ A city adopted an ordinance that required all nonhazardous solid waste in the town to be deposited at a transfer station. The law allowed recyclers to continue to receive solid waste, but they had to bring their nonrecyclables to the transfer station. So, the companies could not ship nonrecyclable waste itself and they had to pay a fee at the transfer station even if it had already sorted the wasted.
➢ It was facially discriminating b/c it favored local business
➢ The ordinance was facially neutral and applied to both in-state and out-of-state companies. But the Court held the law discriminatory because of its effect on out-of-staters. “While the immediate effect of the ordinance is to direct local transport of solid waste to a designated site [in the city], its economic effects are interstate in reach . . . [T]he flow control ordinance discriminates, for it allows only the favored operator to process waste that is within the limits of the town. The ordinance is no less discriminatory because in-state or in-town processors are also covered by the prohibition.” They had a preferred provider against all other providers – discriminatory, essentially they had created a monopoly.
➢ This establishes that a facially neutral law can be found discriminatory if there is proof of a discriminatory impact.
• United Haulers Ass’n, Inc. v. Oneida-Herkimer Solid Waste Management Authority
□ Same case as Carbone, but now the government owns the landfill
□ There was a health and safety crisis, traditional government control, and state sovereignty thus their law was acceptable.
□ Is there a difference b/t government owned & privately owned?
□ If it is a traditional government function & government owned, there might be a valid law
□ Court finds it non-discriminatory and therefore we use the balance approach:
➢ Public Interest/local interest v. burden on interstate commerce
▪ There is not much impact on out-of-state & interstate commerce, but the local interest is strong.
• Hughes v. Oklahoma
□ The Court considered an Oklahoma law that prevented the transport of minnows obtained in Oklahoma for sale outside the state.
□ Court declared the state law unconstitutional for preventing the shipment of minnows out of state. This essentially reserved profiting from minnow fishing exclusively for in-state residents.
➢ After concluding that the law was facially discriminatory against out-of-staters by attempting to restrict use of the resource to in-staters, the Court stated: “Far from choosing the least discriminatory alternative, Oklahoma has chosen to ‘conserve’ its minnows in the way that most overtly discriminates against interstate commerce. The State places no limits on the numbers of minnows that can be taken by licensed minnow dealers; nor does it limit in any way how these minnows may be disposed of within the State.”
- No reciprocity laws. Ex. I will let you in our state, if you let us in yours – cannot do this.
▪ Facially neutral laws
• the Supreme Court has held facially neutral laws can be found to be discriminatory if they either have the purpose or the effect of discriminating against out-of-staters
□ this is very different from analysis under the Equal Protection Clause, where a facially neutral law is deemed discriminatory only if there is both a discriminatory purpose and a discriminatory effect
• The difficulty for courts is deciding whether a law has a discriminatory purpose or a legitimate non-discriminatory objective and whether a law should be deemed to have a discriminatory impact
• Hunt, Governor o fthe State of North Carolina v. Washington State Apple Advertising Commn.
□ Court found that discriminatory impact is sufficient for a law to be deemed discriminatory and concluded that the state’s statute was impermissibly discriminatory in its effects.
□ A North Carolina law required that all closed containers of apples sold or shipped into the state bear “no grade other than the applicable U.S. grade or standard.” The law was facially neutral in that all apples sold in the state – whether produced in state or out of sate – had to comply with this rule.
➢ Court found that the law should be treated as discriminatory because of its effect on the sale of Washington apples. Washington had a system for grading apples that was different from and more stringent than the federal standard. It therefore had a disparate impact on the out-of-state market. This new law required Washington to remove their more stringent labels and replace with the federal labels.
➢ If there is a disparate impact, then there might be heightened scrutiny
➢ The Court explained: “The challenged statute has the practical effect of not only burdening interstate sales of Washington apples, but also discriminating against them. The discrimination takes various forms:
▪ 1. State’s consequences of raising the costs of doing business in the North Carolina market for Washington apples growers and dealers, while leaving those of North Carolina counterparts unaffected.
▪ 2. the statute has the effect of stripping away from the Washington apple industry the competitive and economic advantages it has earned for itself through its expensive inspection and grading system
▪ 3. by prohibiting growers and dealers from marketing apples under their State’s grades, the statute has a leveling effect which insidiously operates to the advantage of local apples producers.
□ There is a discriminatory effect. So, what is the purpose? Are there alternatives?
• Exxon Corp. v. Governor of Maryland
□ Court found that the law was not discriminatory and upheld its constitutionality, even though it greatly harmed out-of-state oil companies and favored local businesses.
□ The in-state burden will not outweigh the out-of-states.
□ Additionally, if the law appears to be facially neutral, if there is a discriminatory purpose, then it will also be invalid.
□ A Maryland law prohibited a producer or refiner of petroleum products from operating a retail service station within the state. Because nearly all petroleum products sold in Maryland were produced and refined out of state, the law meant that these out-of-state oil companies could not own service stations in Maryland. The obvious beneficiary was local businesses.
➢ The Act creates no barriers whatsoever against interstate independent dealers; it does not prohibit the flow of interstate goods, place added costs upon them, or distinguish between in-state and out-of-state companies companies in the retail market. The absence of any of these factors fully distinguishes this case from those in which a State has been found to have discriminated against interstate commerce.
➢ Reason: 1973 shortage of oil caused the producers to give preference to their stations
□ Facially neutral laws also can be found to be discriminatory if they were enacted for a protectionist purpose: helping in-staters at the expense of out-of-staters
• West Lynn Creamery, Inc. v. Healy, Commissioner of Massachusetts Dept. of Food and Agriculture
□ Court invalidated a state law largely because of its discriminatory purpose.
□ Massachusetts imposed a tax on all milk dealers, but the funds from the tax went into a fund to pay subsidies to in-state dairy farmers.
➢ The law was unconstitutional because its impact was the same as a discriminatory tax law. In essence, the state was taxing both in-staters and out-of-staters, but in effect refunding the taxes paid by instaters through the subsidy system. The net effect was that the tax was borne disproportionately by out-of-staters and was thus unconstitutional.
➢ Court said it was discriminatory because it was taxing for the very purpose of subsidizing in-staters. The gov’t can tax and subsidize, but not in the way they did it here.
➢ States can tax all in a general income tax and support local industry, but you cannot tax an entire market & benefit local governments
• State of Minnesota v. Clover Leaf Creamery Co.
□ Court upheld that law by finding that the law did not have a discriminatory objective
□ A Minnesota law prohibited the sale of milk in plastic disposable containers, but allowed its sale in paper disposable containers. The law had a substantial discriminatory effect in favor of in-state business and against out-of-state businesses because Minnesota had a substantial paper industry but no plastics industry. Thus the law created a demand for paper products.
➢ “Minnesota’s statute does not affect ‘simple protectionism,’ but ‘regulates evenhandedly’ by prohibiting all milk retailers from selling their products in plastic, nonreturnable milk containers, without regard to whether the milk, the containers, or the sellers are from outside the State. This statute is unlike statutes discriminating against interstate commerce, which we have consistently struck down.”
▪ Since it was not discriminatory, the Court used the balancing approach and the burdens were outweighed by the benefits to the State
Dormant Commerce Clause
|Discriminatory Analysis |Non-discriminatory Analysis |
|State carries B/P |Balancing Test |
|Legitimate Purpose/Measure (non-economic protectionists) |Local benefit (safety) vs. burden against interstate commerce (cost) |
|No less discriminatory act’s to accomplish legitimate interest |But the law is presumed valid, and will be upheld unless the local benefits |
|No non-discriminatory alternatives |are really illusory/slight as to the burden on interstate commerce |
|Per se invalid |This is not a straightforward balancing test – it must be a very large |
| |burden |
- reciprocity agreements are prohibited as unconstitutional (we will allow you sales, if you allow us)
➢ Analysis if a law is deemed discriminatory
▪ the cases above demonstrate that the crucial inquiry in dormant Commerce Clause cases is: Whether the law is discriminatory against out-of-staters
▪ In Carbone the Court declared: “Discrimination against interstate commerce in favor of local business or investment is per se invalid, save in a narrow class of cases in which the municipality can demonstrate, under rigorous scrutiny, that is has no other means to advance a legitimate local interest.”
▪ In Hunt v. Washington the Court stated, “When discrimination against commerce of the type we have found is demonstrated, the burden falls on the State to justify it both in terms of the local benefits flowing from the statute and the unavailability of nondiscriminatory alternatives adequate to preserve the local interests at stake.”
• The next case illustrates the rigorous scrutiny used when laws are deemed discriminatory
▪ Dean Milk Co. v. City of Madison, Wisconsin
• Illustrates that a discriminatory law will be upheld only if the “purpose could not be served as well by available nondiscriminatory means.”
• Court declared unconstitutional Madison, Wisconsin’s requirement that milk sold there had to be pasteurized within five miles of the city.
□ Court held that the law discriminated against milk from other states, notably Illinois, and explained that Madison could achieve its goal of ensuring safe milk by less discriminatory alternatives such as by sending its inspectors to importing producers or by relying on inspectors by federal authorities.
▪ Maine v. Taylor and United States
• the Court upheld a discriminatory law because it was necessary to serve an important purpose
• The Court upheld a law that prohibited the importing of live baitfish into the state
□ The Court found that the discriminatory law protected Maine’s “unique and fragile fisheries from “significant threats” from parasites that were prevalent in out-of-state baitfish, but that were inadvertently included with baitfish could pose a threat by “preying on native species, or by disrupting the environment in more subtle ways
➢ REASONING: Law upheld because:
▪ No less discriminatory ways to prevent the threats
▪ the ban on baitfish served a legitimate local purpose that could not adequately be served by available nondiscriminatory alternatives
- In considering how the Court has applied the test to a various of types of laws that discriminate against out-of-staters, several categories of law can be identified:
1. laws that limit the access of out-of-staters to instate resources
2. Laws that limit access to local markets by out of state business
3. laws that require use of local businesses
➢ Analysis if a Law is Deemed non-discriminatory
▪ If the law is non-discriminatory – treats in-staters and out-of-staters alike – then it is subjected to a much less demanding test
• These laws are upheld so long as the benefits to the government outweigh the burdens on interstate commerce
• We use the balancing test, but it is presumed valid unless local benefits are so slight or problematic as not to outweigh burden on interstate commerce.
▪ Loren J. Pike v. Bruce Church, Inc.
• Court stated the balancing test of burdens vs. benefits and then said:
• Court invalidated an Arizona regulation that required cantaloupes grown there to be packed in the state rather than in another state
□ “And the extent of the burden that will be tolerated will of course depend on the nature of the local interest involved, and on whether it could be promoted as well with a lesser impact on interstate activities”
□ The Court “has viewed with particular suspicion state statutes requiring business operations to be performed in the home State that could more efficiently be performed elsewhere.”
-The following two cases are examples of where the Court has used the balancing test (burdens vs. benefits) to find non-discriminatory laws unconstitutional. The third case is an example of the Court using the balancing test to uphold a state law
▪ Bibb, Director, Dept. of Public Safety of Illinois v. Navajo Freight Lines, Inc.
• The Court declared unconstitutional a state law that required that all trucks in the state use curved mudguards to prevent spatter and enhance road safety.
□ The Court found that the law put a substantial burden on interstate commerce because straight mudguards were legal in 45 other states and curved mudguards were illegal in one other state. The trucks would either have to avoid Illinois or change guards at the border.
□ The local safety measures that nondiscriminatory place an unconstitutional burden on interstate commerce
➢ Here any benefit was so slight/illusory when compared to the large burden on interstate commerce
▪ Raymond Kassel v. Consolidated Freightways Corp. of Delaware
• The Court declared unconstitutional an Iowa law banning 65-foot double trailers.
□ The Court weighed the “asserted safety purpose against the degree of interference with interstate commerce.” The Court said that the “State failed to present any persuasive evidence that 65-foot doubles are less safe than 55-foot singles.”
□ The Court found that the Iowa law “substantially burdens interstate commerce” by forcing trucks to avoid Iowa or to detach the trailers and ship them separately.
▪ CTS Corp. v. Dynamics Corp. of America
• An Indiana law limited corporate takeovers by requiring that a purchaser who acquired “control shares” in an Indiana corporation would acquire voting rights only if the transaction was approved by a majority vote of the preexisting disinterested shareholders.
□ “The principal objects of dormant Commerce Clause scrutiny are statutes that discriminate against interstate commerce. The Indiana Act is not such a statute . . . it visits its effects equally upon both interstate and local business.”
➢ The Court upheld the law because its benefits outweighed its burdens on interstate commerce. The burden on interstate commerce was not great.
➢ “[The] State has an interest in promoting stable relationships among parties involved in the corporations it charters . . .”
▪ One particular type of non-discriminatory law is worth noting: The Court has consistently declared unconstitutional state laws that regulate the out-of-state conduct of businesses
• The State cannot control “conduct beyond the boundaries of the state.”
▪ Summary
• State laws that discriminate against out-of-staters are almost always declared unconstitutional
□ These laws will be upheld only if it is proven that the law is
➢ Necessary
➢ The lease restrictive means (no less discriminatory alternatives)
➢ Is to achieve a non-protectionist purpose
• If the law does not discriminate against out-of-staters, the Court:
□ Balances its burdens on interstate commerce against its benefits
➢ The inquiry is fact dependent (statistics, etc.)
➢ Exceptions to the Dormant Commerce Clause
▪ There are two exceptions where laws would violate the dormant Commerce Clause (once commerce acts, it is no longer “dormant”) will be allowed:
• 1. If Congress approves the state law
□ Even a clearly unconstitutional law, discriminatory law will be allowed if approved by Congress, because Congress has plenary power to regulate commerce among the states
• 2. “Market participant exception”
□ A state may favor its own citizens in receiving benefits from government programs or in dealing with government-owned businesses
□ This is different than a market regulator.
▪ Congressional Approval
• the Constitution empowers Congress to regulate commerce among the states and that therefore state laws burdening commerce are permissible, even when they otherwise would violate the dormant Commerce Clause, if they have been approved by Congress
□ this means that Congress may “[confer] . . . upon the States an ability to restrict the flow of interstate commerce that hey would not otherwise enjoy.”
• If Congress has acted the commerce power no longer is dormant.
□ The issues would then be whether the federal law is a constitutional exercise of the commerce power
□ This is one of the few areas where Congress has the clear authority to overrule the Supreme Court in interpreting the Constitution
➢ Although the law will not violate the dormant Commerce Clause, it may still be challenged under other constitutional provisions
• One area that has found congressional approval of state laws that would otherwise violate dormant Commerce Clause is the regulation of the insurance industry
• Western & Southern Life Insurance Co. v. State Board of Equalization of California
□ The Court held that a state law imposing a discriminatory and retaliatory tax on out-of-state insurance companies was permissible because the McCarran-Ferguson Act removed entirely any commerce clause restriction on a state’s power to tax the insurance business
➢ The Act “removed all Commerce Clause limitations on the authority of the States to regulate and tax the business of insurance
➢ Court used rational basis, but the court still found that law and means irrational, and overturned it
▪ The market Participant Exception
• A state may favor its own citizens in dealing with gov’t-owned business and in receiving benefits from gov’t programs
□ In other words, if the state is literally a participant in the market, such as with a state-owned business, and not a regulator, the dormant Commerce Clause does not apply
□ “Nothing in the purposes animating the Commerce Clause prohibits a State, in the absence of congressional action, from participating in the market and exercising the right to favor its own citizens over others”
• Reeves, Inc. v. William Stake
□ The Court upheld a cement company owned by South Dakota charging less to in-state purchasers and more to out-of-state purchasers
➢ The “basic distinction . . . between States as market regulators makes good sense and sound law.” The Court said that South Dakota, as the seller of cement, was clearly a market participant and thus was able to favor in-state purchasers over those from out of the state.
□ the market participant exception is not limited to state-owned businesses
• White v. Massachusetts Council of Construction Employers, Inc.
□ The Court upheld a city’s ordinance that required that all construction projects financed by the city must use a workforce comprised of at least 50 percent residents of the city.
➢ “Alexandria Scrap and Reeves . . . stand for the proposition that when a state or local government enters the market as a participant it is not subject to the restraints of the Commerce Clause.” The big fact was that the city used only their own funds – helps distinguish from Camden.
▪ The city could favor its residents over out-of-staters in employment for government-funded construction projects because “it was a market participant”
□ in the following case, the Court imposed a limit on how far a state or local government can go in discriminating under the market participant exception
• South-Central Timber Development, Inc. v. Commissioner, Dept. of Natural Resources of Alaska
□ The Court declared unconstitutional an Alaska law that required that purchasers of state-owned timber have the timber processed in Alaska before it is shipped out of state.
➢ “The limit of the market-participant doctrine must be that it allows a State to impose burdens on commerce within the market in which it is a participant, but allows it to go no further. The State may not impose conditions, whether by statute, regulation, or contract, that have a substantial regulatory effect outside of that particular market.”
➢ In this case, Alaska was regulating beyond the market in which they are an immediate participant. Can’t regulate beyond what happens after a sell.
□ The Court drew a distinction between the ability of a state to prefer its own citizens in the
➢ “initial disposition of goods when it is a market participant” and a
➢ “State’s attachment of restrictions on dispositions subsequent to the goods coming to rest in private hands.”
▪ The market participant exception can be criticized on several grounds:
• 1. the dormant Commerce Clause is meant to stop protectionist actions by state governments
• 2. there is no clear distinction between situations where the government is acting as a regulator and when it is a market participant
▪ On the other hand, the market participant exception can be defended as allowing citizens in a state to recoup the benefits of the taxes that they pay
The Privileges and Immunities Clause of Article IV § 2
❖ Introduction
➢ Another provision that limits state and local regulation is the Privileges and Immunities (P & I) Clause found in Article IV, §2.
▪ The Supreme Court has interpreted this provision as limiting the ability of a state to discriminate against out-of-staters with regard to fundamental rights (interests essential to nat’l unity) or important economic activities (right to earn a livelihood)
• “The section, in effect, prevents a State from discriminating against citizens of other States in favor if its own.”
• Such discrimination will be allowed only if it is substantially related to achieving a substantial state interest.
➢ The term “citizen” in the P & I is limited to individuals who are citizens of the United States
▪ Thus, corporations cannot sue under the P & I Clause because, by definition, they are not citizens
▪ The dormant Commerce Clause and the P&I Clause overlap:
• Both can be used to challenge state and local laws that discriminate against out-of-staters
▪ BUT there are some key differences:
• 1. The P&I Clause can be used only if there is discrimination against out-of-staters
□ The dormant commerce clause can be used to challenge state and local laws that burden interstate commerce regardless of whether they discriminate against out-of-staters
□ Corporations and aliens can sue under the dormant Commerce Clause, but not the P&I Clause
□ There are two exceptions to the dormant Commerce Clause that do not apply to the P&I Clause
➢ 1. If Congress approves state laws, then they do not violate the dormant Commerce Clause
➢ 2. If Congress has acted, its commerce power no longer is dormant
❖ Analysis under the Privileges and Immunities Clause
➢ When a challenge is brought under the P&I Clause, there are two basic questions:
1. Has the state (or city) discriminated against out-of-staters with regard to P&I that it accords its own citizens?
2. If so, is there a sufficient justification for the discrimination (substantial state interest, with no less discriminatory means)?
➢ The P&I Clause creates a strong presumption against state and local laws that discriminate against out-of-staters with regard to fundamental/constitutional rights or important economic activities
➢ What are the ‘Privileges and Immunities of Citizenship’?
▪ Privileges and Immunities Clause protects interests “which are fundamental; which belong, of right, to the citizens of all free governments
▪ The Clause is meant to limit the ability of states to discriminate against citizens from other states
▪ The vast majority of cases under the P&I Clause involves states discriminating against out-of-staters with regard to their ability to earn their livelihood
▪ Toomer v. Witsell
• The Court declared unconstitutional a South Carolina law that required nonresidents to pay a license fee of $2,500 for each commercial shrimp boat, but residents only had to pay a fee of ~$25.
□ The Court said that commercial shrimping is protected by the P&I Clause. “One of the privileges which the clause guarantees to citizens of State A is that of doing business in State B on terms of substantial equality with citizens of that State. “
□ Discriminating against out-of-staters with regard to their ability to earn their livelihood was deemed to violate the P&I Clause.
▪ United Building and Construction Trades Council of Camden County v. Mayor of Council of the City of Camden
• The Court applied the P&I Clause to a city’s ordinance requiring that at least 40% of the employees of contractors and subcontractors working on city construction projects be residents of the city.
□ The Court explained that “the pursuit of a common calling is one of the most fundamental of those privileges protected by the Clause.”
□ The P&I Clause limits the ability of a state or local government to discriminate against out-of-staters with regard to their ability to earn a livelihood. However, if there is neither such economic discrimination nor discrimination with regard to constitutional rights, then there is not a violation of the P&I Clause.
▪ Lester Baldwin v. Fish and Game Commn. Of Montana
• Montana charged out-of-staters much more for elk hunting licenses than it charged in-staters.
□ The Court rejected a challenge based on the P&I Clause because it felt that elk hunting was neither a constitutional nor an important economic activity. “Elk hunting by nonresidents in Montana is a recreation and a sport . . . It is not a means to the nonresident’s livelihood.”
□ It is not a fundamental right under the P&I Clause.
➢ What justifications are sufficient to permit discrimination?
▪ The Court has said that a state may discriminate against out-of-staters, even with regard to constitutional rights or the ability to earn a livelihood, only if there is a “substantial reason” for the difference in treatment compared with in-staters, and only if the law is closely related to the justification.
▪ The Clause does not preclude discrimination against nonresidents where:
• 1. there is a substantial reason for the difference in treatment; and
• 2. the discrimination against nonresidents bears a substantial relationship to the State’s objective
□ In deciding whether the discrimination bears a close or substantial relationship to the State’s objective, the Court has considered the availability of less restrictive means
➢ Must be substantially related to a substantial government/state interest
➢ The Court has not found any law that meets the rigorous test
▪ Supreme Court of New Hampshire v. Kathryn A. Piper
• The state offered many justifications for limiting admission to the bar to citizens. The state argued that nonresidents were less likely to know local rules and procedures; to act in an ethical manner; to be available for court proceedings; and to do pro bono work in the state.
□ The Court found that it did not meet “the test of substantiality, and that the means chosen do not bear the necessary relationship to the State’s objectives.”
➢ The Court said that there was no reason to believe that in-state residents were more likely to know the law or act ethically. Court found that problems with unavailability of nonresident lawyers could be solved by requiring the designation of local counsel.
➢ Additionally, the Court thought that any absence of pro bono work could be death with by requiring such efforts (less restrictive means)
• Analysis:
□ Is this a right under the P&I? Yes, it involves the right to earn a livelihood.
□ Substantial state interest? Yes, but there are other means to meet (less discriminatory alternatives) to resolve their interests/concerns.
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