I



STRUCTURE OF THE CONSTITUTION

Article 1 – Legislative powers

1 Creates Congress

1 Outlines qualifications to serve in Congress

2 Provides instruction on how to exercise laws

3 Bicameral structure was a compromise between the more populated non-slave states who wanted representation by population and the less populated slave states who wanted equal representation.

2 Section 2- House of Reps

1 Clause 1 gives states authority to qualify an election to the House of Reps

2 clause 3= “3/5ths clause”- describes how representation in the House of Reps will be calculated. Counts free people only, excludes Indians and all counts 3/5ths of all “other persons”.

3 Section 3 - Senate

1 clause 1 limits the # of Senators to only two from each state AND prohibits amendment of this section.

4 Section 8 - power of the purse

1 Clause 3= commerce clause: “to regulate commerce with foreign nations, and among the several states and with the Indian tribes.

2 Last clause=“Necessary and proper clause”- gives Congress the power to make laws necessary to executing the powers vested in them by the Constitution.

5 Section 9- “migration or Importation clause”

1 protects states’ ability to import slaves and limits the taxes that the gov’t can impose on that importation.

Article 2 – executive powers

1 Section 1 outlines executive power and election of the President

1 Creates the electoral college

2 Small states are disproportionately represented b/c Const. tells us to combine the # of state reps in the House and the # of state reps in the Senate to determine how many electoral votes a state will get.

Article 3 – judicial powers

1 Creates the Sup Ct.

1 Gives judges life tenure

2 safeguards judges salaries

2 Gives Congress authority to create lower courts from time to time

3 Outlines 9 categories of original Jx (pA7)

1 “ cases and controversies” only

2 all cases affecting Ambassadors, other public minister and consuls

3 admiralty and maritime jx

4 controversies to which the US shall be a party

5 controversies between two or more States

6 controversies between a State and citizens of another States

7 controversies between citizens of different states

8 controversies between citizens of the same state claiming lands under grants of different states

9 controversies between a State or citizens thereof and foreign states/citizens/subjects.

Article 4- relationship of the states

1 Section 2 clause 3 = fugitive slave clause

1 requires states to return escaped slaves to the state from which they escaped

Article 5- Amendment procedure

Article 6- supremacy clause

1 aka Doctrine of Pre-emption

Article 7

1 (last article) Ratification of 9 states would be sufficient for establishing the Constitution

Bill of Rights

5th amendment

1 Takings clause:

1 Key case Kelo v. City of New London. (See Individual Rights, Takings Clause as a source of protection of individual rights. )

10th amendment

1 leaves “all other” power not described in the document to the states

13th amendment (reconstruction amendment)

1 Banned slavery, effects private actors.

14th amendment (reconstruction amendment)

1 Banned discrimination by State actors.

2 §5 gives Congress ability to enforce it.

3 Due Process clause applies many individual rights to the states.

1 Not done thru the P&I clause b/c of the Slaughter House Cases.

15th amendment (reconstruction amendment)

1 banned gov’t from denying the right to vote based on race

19th amendment

1 banned gov’t from denying the right to vote based on sex

Theories/doctrines surrounding the Constitution

Analyze the constitutional issue using:

doctrine + history + theory

1 Doctrine- what legal theories are acceptable/unacceptable? What politics are in play?

2 History- frames the context of why doctrines emerged the way they have. Helps us see the role social values played over periods of time and how those were reflected in judicial interpretation.

3 Theories- many decisions are inferred from the document but are not expressly stated in the document. Who has the authority to interpret the document? How should they interpret it? When?

1 Originalism or textualism looks only to the document for meaning

2 Functionalism relies more on interpretation within context of modern society for meaning

James Madison

1 Constitution sets “ambition against ambition” (3 sources of power would work against each other)

Federalist papers

1 written by Madison, Hamilton, John Jay and others as editorial pieces to convince the people to NY to ratify the Constitution

2 cited by Sup Ct as evidence of the “original intent” of the framers.

Federalism

1 TODAY: it’s about State power; States have more power than just what is enumerated in the Constitution.

2 the ideas that two governments should govern the same geographic area (i.e., national and state gov’ts)

3 favors a vertical division of power between the federal and state governments

4 idea has gained strength in the last 10 yrs

5 typically identified with ppl who side with commerce and business interests. Today, this would be Scalia and Rhenquist.

6 Led by John Adams and Alex Hamilton.

7 Court usually identifies 3 benefits/values of protecting state governments within federalism:

1 Decreases the likelihood of federal tyranny

2 Enhances democratic rule by providing gov’t that is closer to the people and thus more responsive

3 Allowing states to be laboratories for new ideas.

Anti-federalists

1 opposed the Const because it failed to effectively delineate individual rights

2 Led by Jefferson

3 aka the Democratic Republicans

Dead hand

1 Reflects the modern theory that the framers were white men and the Const reflects their views to the exclusion of others

2 Abhors the idea that the Const and the Sup Ct is counter-majoritarian.

JUDICIAL POWERS

Judiciary Act of 1789

1 Created appellate Jx, or Sup Ct. authority to review state court decisions.

1 Martin vs. Hunter’s Lesee

1 Supreme Court held for Martin in two conflicting claims to land; State of VA said Martin owned it because the state purchased the land before U.S. entered treaty with Great Britain and the state sold the land to Martin; Sup Ct overruled State of VA and held the U.S. treaty controlled the land.

2 Sup Ct has authority to review the constitutionality of state laws and state officials.

1 Cooper v. Aaron

1 Positioned the Sup Ct as the “supreme” arbiter

1 the governor of Arkansas said he did not have to comply with Brown v. Board of Ed decision b/c he was not a party to it. Unanimous decision the governor did have to comply with that decision b/c school segregation was unconstitutional.

2 Court applied a broad reading of Marbury

3 Sup Ct. has authority to review the constitutionality of state conduct in criminal law matters.

1 Cohens v. Virginia

Judicial Review

1 Today- There is no final, clear, unargued answer as to who is the “final” arbiter of Constitutional conflicts

2 Sup Ct has authority to review constitutionality of laws (Congress) and executive (Presidential) acts.

1 Marbury v. Madison

1 Set up the idea of “legal questions” vs. “political questions.”

2 Legal questions

1 those that are mandatory functions/duties. Typically these functions effect individuals and their rights on a personal basis. I.e., specific duties owed to specific people. Sup Ct. has duty to review these.

3 Political questions

1 those that are discretionary functions that effect everyone in the entire nation equally, like foreign affairs. The Sup Ct. does not have power to review these.

2 Broad reading of Marbury

1 Sup Ct. is the “supreme” interpreter and final arbiter of matters pertaining to Constitution.

2 Sup Ct. has a special role as the exclusive guardian of Constitutional power

3 The court is insulated from politics so it’s in the best position to be neutral.

4 Judges are there for life so the court is more stable than leg which changes w/ every election

3 Narrow reading of Marbury

1 Sup Ct. has the job of interpreting the Const.

2 Sup Ct.has the competency to do this job

3 Sup Ct. will only act in areas of Constitutional controversies

4 The Court is not elected so they have no accountability so they should have the least power

5 5 ppl should not be able to change the law

6 The Court is not really insulated from politics because they are appointed thru the other two branches

3 Hand-Weschler debate

1 Hand felt judicial review was discretionary and should be employed only when the instance demanded an answer

2 Weschler said judicial review was mandatory. If no other branch has the power to review the issue then Sup Ct must have the power and must address the issue. The issue of whether something is a political question is only in play when the Const gives power to one of the other branches.

4 Restraints on judicial authority

1 Amendment process

2 Impeachment under “Treason, Bribery, or other High Crimes and Misdemeanors” although no judge has ever been impeached for this before.

3 Congressional authority over size of the Court.

4 Congressional authority over when the Court meets.

5 Selection process and the Judiciary Committee’s probe into a nominee’s constitutional views, the need for Congress to “advise and consent” to the President’s nomination.

6 Congressional authority via Article III to make “Exceptions” to the Sup Ct. appellate Jx.

Justiciability Doctrines govern which cases the Sup Ct. can and can not hear.

1 Sources of the doctrine

1 Constitution

1 Art III §2 (9 categories of “cases and controversies”)

2 Limits found here can not be overruled by Congress.

2 Prudential policy

1 judicially created by inferences from Const.

2 Congress can override these inferences.

2 Function and purpose

1 Key Question: Should this issue be left to Congress or to the President, and left alone by the Sup Ct.?

2 Defines the judicial role to help maintain separation of powers, when judiciary should defer to other branches.

3 conserves judicial resources to focus on the most “deserving” issues

4 fosters foundation for best judicial resolution because parties will work harder to meet these requirements and in turn work harder to present relevant info the court (court doesn’t have the resources to investigate)

5 promotes fairness, keeps the court from impacting parties not before the court who can’t defend or explain themselves; Court acknowledges that when it does make a decision it impacts many people so it will only do so when absolutely necessary

3 Mootness doctrine prevents the Court from hearing cases that have already been closed.

1 Where a lower court has finalized the action.

2 Where the law has changed.

3 Where parties settled, parties died, or injury no longer exists.

4 TWO EXCEPTIONS:

1 Matters capable of repetition yet evading review.

1 Like Roe v. Wade, some woman somewhere will get pregnant again and that pregnancy will only last 9 months.

2 voluntary cessation: where D stops on his own accord but he could start up again at any time and begin re-injuring P.

4 Ripeness doctrine prevents the Court from adjudicating matters too soon or while they are still immature because the injury is still speculative and many never occur.

1 A case is ripe if significant hardship will result in denying judicial review.

1 Ex, if someone is going to be faced with severe sanctions if they do the act

2 A case is ripe where the enforcement is certain and the only impediment to ripeness is time delay caused by procedural mechanisms

5 Standing

1 Focus is on the parties in the lawsuit and whether they have a stake in the outcome.

2 Parties must have a real legal grievance not some abstract problem with general policies

3 Grounded in both constitutional and prudential authority (i.e., the most convoluted, indefinite and most oft cited issue)

4 Can be raised sua sponte and can be re-evaluated throughout trial

2 Function or purpose

1 Promotes separation of powers by limiting the availability of judicial review

2 Keeps the floodgates closed from parties who have an ideological stake in the outcome

3 Ensures advocates are before the Court to give the best possible info which in turn improves judicial decision making

4 Prevents intermeddlers from trying to protect others who do not want to be protected.

3 3 Requirements:

1 Injury

1 P has suffered or will imminently suffer a real injury.

1 Ideological injury not enough.

2 Plaintiff seeking injunctive/dec relief must show a likelihood of future harm.

2 Injury must be concrete and particularized..

1 Provides factual/evidentiary basis the Court needs to determine the outcome.

2 Helps ensure parties will vigorously pursue the claims before the Court

3 Lujan v. Defenders of Wildlife (1992) p56- Ct ruled no injury occurred to Ps who claimed they would miss out on the enjoyment of observing animals in the wild at some unknown point in the future.

4 Raines v. Byrd (1997) p67- Legislators challenging the line item veto act had no standing b/c it effected all Legislators the same. They were not singled out in any way so they were not losing a private right. They suffered no injury.

2 Redressability

1 Court’s decision could remedy the injury.

1 Lujan – even if the Court did rule in favor of P, there was no reason to think that withdrawing US financial support of the projects overseas would necessarily result in ending the projects (that were hurting the animals.)

3 Causation

1 Ps injury was proximately caused by Ds action/conduct

1 Allen v. Wright (1984) p63- Parents of black school children sued the IRS for giving a tax break to parents who paid tuition at private schools, in turn making it easier for white parents to send their kids to private school to avoid integrating with the black kids which in turn injured the black kids. Court ruled it was too speculative to assume that the tax deduction was what kept the white parents from sending their kids to public school. The tax break was an independent intervening event that may not have been causally linked to the white parents’ decisions. Actors other than the D (i.e., white parents) played a significant factor in the outcome.

4 3 prudential requirements/bans

1 No 3rd party claims, except

1 Where 3rd party is unable to assert their rights or unlikely to be able to sue

2 Where there is a close relationship between the advocate and the 3rd party

3 Overbreadth- the law as applied to this P was constitutional but the law still violates the First Amendment when applied to someone else.

4 An association may sue on behalf of its members where the members could have brought their own grievance, where the injury is germane to the association’s purpose and where the remedy sought does not require individual participation in trial.

2 No generalized grievances (i.e., no taxpayers suing the gov’t for spending money in a certain way)

1 A citizen concerned with having the government follow the law is insufficient

3 Issue must be within the zone of interests that are protected by the statute in question

6 The political question (p32)

1 Key question: is the subject matter appropriate for the Sup Ct to hear?

1 Applicable to a very, very small set of cases (1 in 1,000) even though it seems like it could apply to many more.

2 A term of art

3 Even if the allegation is that the Constitution has been violated, courts may refuse to rule on it.

4 The Guaranty Clause of the

2 3 strands of logic apply in determining a “political question”

1 When the Constitution makes a “textually demonstrable commitment” that some other branch has the power to govern the issue in question.

1 Ex: Nixon v. US (see challenges to impeachment proceedings below)

2 Ex: Luther v. Borden (1849) p35- Sup Ct. decided it would not hear the case because the Constitution conferred power on Congress to decide who was in power in Rhode Island.

2 “Lack of judicially manageable standards”

1 Does the Const provide a framework for answering the question at hand? Does the Const provide a remedy for the question at hand?

3 “Prudential strand”: Does it just make sense for the Sup Ct to stay out of the issue?

1 Enforceability questions may prevent the Sup Ct from taking on an issue.

2 Will judging this issue result in disrespect for the Sup Ct?

3 Four categories of cases are normally deemed a “political question”

1 Reapportionment cases

1 Baker v. Carr allowed reapportionment case b/c voters brought suit under Equal Protection Clause instead of Guaranty clause. KEY CASE.

2 Guarantee Clause is immune from judicial review because it would be too hard for the Court to determine when the gov’t did or did not offer the people a Republican form of gov’t. What standards would they use?

3 USE THIS TEST: Brennan outlined 6 elements in his test for political question:

1 Textually demonstrable commitment (same as above_

a) Lack of judicially managed standards (same as above)

b) (the next factors expand on the prudential strand above) Impossible to determine without a policy determination first

c) Impossible to determine without ruffling feathers of other branches who have power over the issue

d) Need to adhere to precedent/status quo

e) Potential embarrassment from various departments/authorities on same issue

2 Foreign relations

1 Deciding when war begins/ends

2 Recognition of foreign gov’t

3 Power of entering/terminating treaties

1 (although the court did hear Missouri v. Holland (p238) despite the fact it raised a political question)

2 Goldwater v. Carter (p40) court declined to decide if Pres had unilateral power to terminate a treaty/

4 President’s use of war power

5 NOTE: don’t automatically count out foreign relations issues. To analyze whether a case falls within this, consider how the political branches have handled the issue historically, its susceptibility to judicial activism based on the nature and posture of the question, and the possible consequences of judicial action.

3 Process of ratifying Constitutional amendments

1 Coleman v. Miller (p34), Congress has sole and complete control over the amending process via Art V. so it is not subject to no judicial review.

4 Challenges to impeachment proceedings

1 Art I, §3 confers this power on Congress so the Court should not hear cases on this topic.

2 Nixon v. United States (1993) p41—Judge Nixon impeached via Senate committee; he complained his due process was violated b/c he didn’t get a trial. Court deferred to Cong. b/c Const. expressly grants this power to Cong.

4 Arguments in favor of refusing to hear a case based on the fact that it’s a political question

1 Limits the Court’s role

2 Other branches are elected so they should have the power to decide these issues

3 Court should stay out of issues where the Court can not enforce their rulings

5 Arguments against

1 Judges have the expertise to interpret the Const.

2 Using the “political question” excuse too much could result in the Court abdicating it’s judicial role

3 This lets the Court off too easy. They should not be afraid to get into political issues because they have life tenure.

7 Prohibition on advisory opinions- “cases or controversies” only

1 Found in Art III

2 Two requirements:

1 There must be an actual dispute between adverse litigants

2 There must be a likelihood that the Court’s decision will bring about some change or have some effect.

3 Problem with allowing advisory opinions:

1 is that it could interfere w/ separation of powers- Sup Ct. could wind up advising Congress/Pres on legislation.

2 Too taxing on the system to address all these concerns that might not even become a reality. It’s more important to address real cases.

4 State courts may be authorized via state statutes to issue advisory opinions.

Political restraints on judicial power

1 Congress can exercise some control over the judiciary.

1 Appellate Jx can be enlarged or contracted by an act of Congress according to Art III §2.

1 “Cases or controversies” is the ceiling of orig Jx.

2 Exceptions clause allows Congress to expand or contract appellate Jx.

1 Ex Parte McCardle: Congress w/drew JX from Court to prevent it from hearing a case that was pending. This case suggested Congress’ power to change the Sup Ct appellate Jx is unlimited.

2 Justices are nominated by Pres and approved by Senate.

3 Congress decides how many justices sit on the bench and when they meet.

4 Justices can be impeached

2 But Congress is subject to some Internal limits (found in Art III of the Const.) in exercising that control.

1 the Exceptions clause can not be used to interfere with the court’s essential or core functions.

2 The Sup Ct must hear “ALL” cases involving federal questions, admiralty or public ambassadors. (It “may” need to hear the other six areas)

3 Congress is also subject to some External limits (found outside Art III of the Const.) in exercising that control. (p83)

1 Congress can not change the Sup Ct’s Jx to infringe on individual rights.

2 Doctrinal rules of separation of powers prevent Congress from making decisions for the judiciary.

3 Barring access to the highest court in the land would mean we have to rely on the lower courts, who are not bound by each other’s decisions and we would have many different interpretations of the law with uncertainty as to which was right.

Legislative powers

Art I §8 c18 “Necessary and Proper” clause: gives broad power to Congress to carry out the powers vested to any branch of the federal gov’t.

1 Can only act if there is express or implied authority to act in the Constitution

1 Key case: McCulloch v. Maryland 1819 (p90)

2 Gives Congress the power to make laws necessary to executing the powers vested in them by the Constitution.

3 Congress can use all appropriate means plainly adapted towards achieving legitimate ends, as long as the means are not constitutionally prohibited.

1 Burden is on the plaintiff to prove the means are prohibited.

4 Constitution will be unworkable if we require it to list out all the possible detailed power of each branch.

2 Two step analysis to determine constitutionality

1 Does the Constitution confer the power on Congress to act in the manner in question?

2 Does the law violate the Constitutions (substantive evaluation on the merits)

Commerce clause as source of broad power (p88-99, 107-110)

1 Art I §8 c3: “The congress shall have the power to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.

1 Allows Congress to adopt

1 Regulatory laws

1 All interstate commerce

2 Intrastate commerce that effects interstate commerce

3 Once an item has been in interstate commerce and then becomes state commerce, govt’ can still regulate it

2 Criminal laws

1 RICO

2 Loan sharking (Perez v. United States)

2 Pre 1937

1 Court was invalidating federal leg b/c it did not fall w/in commerce clause.

2 Pres Roosevelt took office and threatened to increase the number of justices to pack the Court with people who would vote to uphold his New Deal economic regulations.

3 Justice Owen Roberts starting changing his votes to uphold federal legislation. His change in position was the “switch in time that saved nine.” His votes upheld a state minimum wage law for women (West Coast Hotel v. Parish) and a federal law regulating labor relations (NLRB v. Jones and Laughlin Steel Group).

3 1937- 1995= era of deferential review

1 Not one federal law was overturned from 1937-1995 on the grounds that it exceeded Congress’s commerce power.

2 Commerce clause read broadly to confer power on Congress and defer to Congress’ decision.

1 In a series of broadening decisions was Wickard v. Filburn 1942 (p147) where court upheld Congress’ power to regulate wheat grown by a farmer for his own use b/c of “the cumulative effect of local activities could have a substantial economic impact on interstate commerce.”. Still good law but it has been tweaked to only allow aggregation of “economic” activities (Lopez).

3 Civil Rights Act of 1964 passed under commerce power

1 Heart of Atlanta Motel v. United States 1964 (p150) where Title 2 of the Act was upheld b/c regulating places of public accommodation related to tourism and interstate travel which effected interstate commerce. Reinforced the Wickard rule.

2 Congress had to use commerce power b/c in 1883, Sup Ct ruled Congress could not regulate private behavior via 14th amendment.

4 Test during this era:

1 Does Congress have a rational basis for finding the regulated activity affects commerce?

2 Is so, are the means selected reasonable and appropriate?

1 This test was introduced in Katzenbach v. McClung 1964 (p151) which expanded the application of commerce power even further. Interstate commerce was sufficiently effected where the only interaction was the restaurant’s purchase of out of state meat.

2

4 Since 1995 (p153-171)

1 This test emerged in Lopez v., United States, 1995 (p153) where law against having guns near schools was overruled because it was not substantially related to interstate commerce. Court ended deferential review.

2 Current TEST for commerce power: Congress can use commerce clause to:

1 “regulate the use of channels in interstate commerce”

1 Channels move people from state to state

2 Hotels, restaurants

2 “regulate and protect the instrumentalities of interstate commerce”

1 Instrumentalities move things from state to state

2 trucks, trains

3 regulate local economic activities that in the aggregate have a substantial relation to interstate commerce.

4 BUT, Congress may not aggregate non-economic activities to find a substantial effect

1 United States v. Morrison 2000 (p970-973) narrowed the Lopez test; Congress can not regulate noneconomic activity based on a cumulative substantial effect on interstate commerce.

2 Gonzales v. Raich 2004 (handout) Court views intrastate marijuana production and consumption as essentially “economic activities” and thus the substantial effect on interstate commerce can be based on cumulative impact. Court takes a broad view of economic activities.

3 If the activity does not relate to any of these, it might still be ok IF it has either of two saving characteristics: (p156)

1 The statue contains a jurisdictional nexus or an element limiting its reach to those activities which specifically touch and interfere with interstate commerce (Ex: in the Lopez case, Congress needed to limit scope to guns purchased out of state.)

2 The legislative record shows Congress had some “rational basis” under legislative findings for believing the activity affected interstate commerce

Spending power allows Congress to spend for the general welfare as long as they do not violate any other Constitutional provisions. (221,222, 235-40)

1 Art I §8 c1: “The congress shall have the power to lay and collect taxes … provide for the common Defence and general welfare of the United Sates…”

(p A3)

2 Congress may not legislate or regulate many areas but they can spend their hearts out.

1 Permits spending on welfare, TANF, MediCare, education, crime control, etc.

3 Allows Congress to induce states to act in areas where it can not legislate.

1 Congress is allowed to put conditions on grants as long as:

1 The spending is in pursuit of general welfare

2 the consequences are unambiguous

3 there is a relationship between the condition and the purpose of the spending (highly deferential- as long as the condition is “reasonably calculated to address the issue” it’s ok.

4 the spending is not barred by an independent Constitutional provision

5 the states are not coerced into acting

1 Key case: South Dakota v. Dole (p230)

Treaty power (238-242)

1 Note: when a treaty and federal statute conflict, the most recently enacted rule wins.

2 Note: Pres has ability to enter into treaties but the Senate must ratify them. Executive agreements do not require Senate ratification.

2 The necessary and proper clause gives Senate the power to enact treaties with 2/3 vote.

1 No vote from House of Reps is necessary.

3 Treaty power augments enumerated powers.

1 Treaties may not violate the Constitution.

4 Treaties are supreme over state law.

1 Key case: Missouri v. Holland treaty protecting endangered birds trumped State’s right to hunt the bird.

5 Treaties allow Congress to enact legislation that it might not otherwise be allowed to enact.

1 Treaty power has not yet been subjected to the same constraints/restrictions as the commerce power and spending power.

2 EX: President enters into a global treaty prohibiting capital punishment. As a result, Congress must pass legislation to enact the treaty so it passes a law banning capital punishment in the US. This would be ok. But the same law would not be ok without the treaty.

Other Foreign policy powers

1 Art I grants Congress some powers dealing with foreign policy:

1 to ratify treaties

2 to regulate foreign commerce

3 to define and punish crimes committed on the high seas and offenses against the law of nations (c 10)

4 to declare war (c 11)

5 to grant letters of marquee and reprisal

6 to raise, support and regulate an army and navy (c 14)

7 to regulate immigration.

2 Art I, §8 c4 Congress has the power to “establish an uniform Rule of Naturalization.”

1 Has authority to set conditions for citizenship

3 Art I, §8, c11 Congress has the power to declare war

1 At odds with Art II granting of power to Pres as commander in chief of the armed forces.

2 The issue of Pres sending troops to war without Congress’ approval is usually not justiciable b/c they constitute a political question.

3 In response to Viet Nam, Congress passed the 1973 War Powers Resolution.

1 A Pres may only send troops into hostilities where hostilities appear imminent when:

1 Congress declares war

2 Congress authorizes it via statute

3 National emergency created by attack upon the US, and if he does this he must meet with Congress within 48 hours.

2 If he send them pursuant to an attack on US, Pres must withdraw troops within 60 days unless Congress has declared war.

4 Many President’s claim the Resolution is unconstitutional b/c it violates Pres power as Commander in Chief.

1 But it’s nonjusticiable so we’ll never really know.

2 It’s up to Congress to cut off funding.

14th Amendment, §5 gives Congress power to prevent discrimination.

1 This power can not be used to regulate private activity.

1 Key case: United States v. Morrision

Limits on Congressional Power

10th Amendment limits Congress’ power to regulate State activity.

1 Main Idea: We need to protect State’s rights to

1 decrease likelihood of federal tyranny

2 enhance democratic rule by keeping the gov’t close to the people

3 allow states to serve as laboratories for new ideas.

2 Should judiciary be the body to enforce the State’s rights?

1 No, the political process should handle it.

2 Yes, because voters elect candidates based on local interests and nobody is watching the hen house.

3 Pre1900s thru 1900

1 Approach #1: Court viewed the 10th A as a “reminder” that we need to find authority for Congress to act Art I. If Congress exceeds it’s authority , it is violating Art I or some other constitutional provision. No law was held to violate this amendment.

4 1900-1937

1 Approach #2: This amendment protects states from federal intrusion. It reserves a zone of activity to the states for their exclusive control. Federal laws that encroach on this zone are unconstitutional. This amendment is a limit on Congressional power. Laws are invalidated because they violate the 10th A.

5 1937-1990s

1 Back to approach #1.

1 National League of Cities v. Usery 1976 (p180), state autonomy prevailed. A federal law passed under valid authority of the commerce power but was invalid b/c it exceeded 10th A. Federal law aimed to extend minimum wage to all employees of state and local governments. Held: unconstitutional. Congress violates the 10th A when it interferes with “traditional state and local government functions.”

1 Hodel v. Virginia Surface Mining 1982 (p182), Congress did have the power to force States to reclaim strip mined land. Court said a federal law violates 10th A when it 1) regulates States as States, 2) addresses matters that are indisputable attributes of state sovereignty or 3) impairs States ability to structure integral operations in areas of traditional gov’t functions.

2 United Transportaion Union v. Long Island RR 1982 (p182), federal gov’t did have the power to force a state owned RR to follow the federal laws that private RRs were forced to follow. Because RR were typically a private industry, the federal law was not interfering with an activity that was traditionally a state function.

2 Garcia v. San Antonio Metropolitan Transit Authority 1985 (p182-3). Overruled League of Cities. Cong passed the Fair Labor Standards Act that required employers, including States, to pay their employees federally mandated minimum wage was upheld. Court rejected the test of whether the federal law applies to a “traditional” or “integral” gov’t function. Court upheld the law because it applied to all employer entities, rather than a regulation of a State performing a state duty. If states have a problem with federal laws they should take it up with the federal gov’t thru the political process like all the other affected entities. If Congress thinks it has the power, it does.

6 1990s thru today

1 Back to approach #2 to use 10th A as a limit on Congressional power.

7 MODERN TEST: The anti-commandeering principle: Congress may incentivize States in other ways (such as spending or pre-emption) but it can not commandeer State’s resources.

1 Source-= The 10th A

2 Congress may not affirmatively mandate State’s to do something, or impose affirmative duties on States.

3 Congress may, however, prohibit State’s from engaging in harmful conduct.

1 New York v. United States 1992 (p187) re: radioactive waste disposal: Congress cannot commandeer the State’s legislative function by forcing them to pass leg and take title of radioactive waste. 10th amendment and inherent limits on Congress’s power in Art 1 means the federal gov’t can not compel the States to enact or administer a federal program, even if there is a compelling need for the program.

2 Printz v. United States 1997 (p193) re: Brady bill; congress passed a law requiring local and state law enforcement officers to conduct background checks on handgun purchasers. Unconstitutional b/c Congress cannot commandeer State’s executive braches (law enforcement personnel) to implement a federal program.

3 Reno v. Condon (2000), federal law prohibiting state DMVs from giving out personal information was upheld. It did not violate the 10th amendment because it was a prohibition of conduct rather than an affirmative mandate. It did not require the States to enact laws, use their officials to enforce the law. Congress may not impose affirmative duties on States. First time a federal law stood up to the 10th Amendment challenge.

Federal Limits on States

Generally

1 A State can act, unless the act is prohibited by the Constitution.

2 One step analysis to determine constitutionality

1 Is the state statute constitutional?

Dormant Commerce Clause

1 This applies ONLY when Congress is silent on the topic.

2 Purpose: to prevent States from hurting each other like they were during the days of Articles of the Confederation.

1 Framers said the Union would sink or swim together.

2 Helps promote a strong national market

3 To reserve power for Congress without requiring the Constitution or legislation to list out every single detail where States may not act.

3 By giving Congress the power to regulate interstate commerce, the Constitution implies the corollary limit on states to effect interstate commerce.

1 If Congress has legislated on the issue, then the question is preemption.

2 If congress is silent, States may not unduly burden interstate commerce.

3 States may not contradict Congress’s intents.

4 Facially discriminatory regulations are invalid per se …unless there is NO other alternative method for the state to effectuate a legitimate interest.

1 Protectionist legislation is not allowed because protectionist is not a legitimate State interest.

2 States may not violate the commerce clause even in the name of health and safety if there is some other way the state can effectuate the interest.

1 Ex: Philidelphia v. New Jersey (p257) Rather than banning importation of out of state garbage, NJ could have taxed it or put a cap on the quantity.

3 Laws that discriminate against out of state businesses are per se invalid.

4 Municipalities within a state may not discriminate against out of state commerce.

1 Ex: Dean Milk v. City of Madison (p270)

5 Facially discriminatory laws are ok IF they are necessary to achieve important, legitimate local interests.

1 The burden falls on the state to justify the law in terms of local benefits and the unavailability of alternative methods.

1 EX: Maine v. Taylor (p262) Maine convinced the court banning out of state baitfish was the only way to protect it’s native species. Court upheld the law.

5 Facially neutral laws that discriminate in effect against interstate commerce are UN constitutional (…unless there is NO other alternative method for the state to effectuate a legitimate interest.)

1 Ex: Baldwin v. Seelig (p275), NY passed a law that was neutral on its face but effectively prohibited milk sellers from reselling milk bought from out of state producers (b/c it was purchased at a price lower than the NY law minimum)

2 Ex: Hunt v. WA State (p278) NC tried to keep WA apples out without any good reason.

6 Facially neutral laws that have a discriminatory purpose are UN constitutional (…unless there is NO other alternative method for the state to effectuate a legitimate interest. )

1 Ex: Bacchus v. Dias (p278) HA exempted liquor made from an indigenous shrub from the state liquor tax. Discriminatory purpose was giving an exemption to in-state liquor producers.

7 Facially neutral regulations may still be invalidated if it places an undue burden on interstate commerce.

1 Courts determine undue burden by balancing the State’s interests with the burden:

1 “The burden on interstate commerce must be clearly excessive in relation to putative (commonly understood) local benefits.”

1 A.k.a. the Pike balancing test.

2 Gives courts a lot of discretion.

3 Courts usually do not apply a rigorous scrutiny

2 State interests around health and safety or protecting consumers from unfit goods are strong interests that can impose burdens but they must be legitimate.

1 Ex: Kassel v. Consolidataed Freightways 1981 (p295), where Iowa tried to exclude double wide semi trucks based on safety. Trucking company showed there was no safety concern AND that the law imposed a heavy burden on them/interstate commerce.. Iowa had to allow the trucks.

3 Enhancing reputation or marketability are not strong interests.

1 Ex: Pike v. Bruch Church (p286) where AZ imposed costs on cantaloupe farmer to reap marketing benefits for the state.

4 Taxes can sometimes be discriminatory.

1 Baldwin v. Seelig, the tax on out of state milk was unconstitutional.

2 Henneford v. Silas Mason (p277), WA’s use tax brought out of state sellers onto equal footing with in state sellers. It was not penalizing out of state sellers more than in state sellers.

8 EXCEPTION: When the state is a market participant, rather than a market regulator, the Commerce clause does not apply. (Or, the state may discriminate against out of staters and/or favor its own citizens.)

1 When the State acts as a direct buyer or seller, it can decide who it will buy from and who it will sell to.

2 But, the State may NOT tell it’s buyers/sellers who they can resale/buy from, i.e., the State can not regulate down stream by way of its market participation

1 Ex: South-Central Timber Dev v. Wunnicke (p311) where Alaska was selling raw timber to wholesalers, it could choose which wholesalers to sell to but it could not tell the wholesalers who they could resale to

2 Ex: United Building and Construction v. Council of Camden (p317) City of Camden allowed to require 40% of employees on city works jobs be residents because the City was a market participant; it was essentially hiring the workers. (note: not allowed tho under P&I clause)

3 The exception is narrowly applied on to the direct or specific market it is in.

Preemption- Article VI Supremacy clause provides that the Constitution, and any laws and treaties made pursuant to it, are the supreme law of the land.

1 Any state law that conflicts with or interferes with federal law must yield to federal law.

1 State law is preempted if it stands as an obstacle to the accomplishment of the full purposes and objectives of Congress.

2 The goal of the supremacy clause is to clearly and efficiently allocate government authority between the federal and state governments.

2 Express preemption= Congress may preempt state laws by expressly stating as much

1 When the language is express, the Court need only determine if the state regulation falls within the area preempted.

1 Congress rarely uses express preemption language so the key question courts must answer is: what was Congress’s intent?

2 Absent specific language indicating Congressional intent to pre-empt state laws, a Court must find it was the “clear and manifest intent of Congress” to supersede state laws.

3 Field preemption= Congress may impliedly preempt state laws by occupying a regulatory field

1 Where Congress enacts new legislation in a field “traditionally occupied” by the States, the Court starts with the presumption that Congress did not intend to preempt the states.

1 The current Court has been committed to federalism and state’s rights, it is surprising to see it holding federal preemption in so many cases as it has.

2 The Court may find implied field preemption where the “scheme of regulation is so pervasive as to make reasonable the inference that Congress has left no room to supplement it.”

1 Ex: PG&E v. State Energy Resources (p324) Fed gov’t regulated safety of nuclear facilities; did not regulate construction/operation so it did not preempt CA state law moratorium on construction.

3 Or, if Congress occupies a field where federal interest is extremely dominant, the federal system will be assumed to preempt state laws.

4 Laws are preempted in this category even if they are consistent with federal law. This category means federal law is exclusive.

5 Courts usually find federal law preempts state law in the area of foreign policy and immigration.

4 Conflict preemption= Congress may impliedly preempt state laws by precluding conflicting state regulations.

1 Conflict pre-emption occurs when compliance with both the federal law and the state law is an impossibility.

1 It can be hard to determine when the gov’t has set a minimum standard and when it has set THE standard.

1 Ex: Florida Lime Growers v. Paul (p330) The fed gov’t adopted regulations to measure maturity of avocados. CA law passed a more stringent standard. Court ruled the fed gov’t standard was a minimum and CA was free to pass stricter standards. No conflict preemption.

2 Notice, it would be impossible to comply with fed laws where the fed gov’t has completely regulated the entire field.

2 Where the state law serves as an obstacle to federal law, the state law must be preempted.

1 Ex: Grade v. Nat’l Solid Waste (p330) IL laws preempted by federal OSHA laws.

3 Any time the state law conflicts, is contrary to, different, repugnant, inconsistent with, irreconcilable with, in violation of federal law, the federal law must prevail.

1 Where federal laws set minimums, state laws can still set higher minimums. But state laws can not set lower standards than federal law.

2 Preemption is implied where state law impedes the achievement of federal objectives.

1 Where MA state law imposed a more harsh barrier to trade on items with Burma than federal law, the federal law prevailed.

3 States may not tax or regulate federal government activities.

Privileges and immunities clause of Art IV

1 Art IV §2 Prohibits states from discriminating against out of state residents with regard to fundamental rights or important economic activities…

1 …unless the discrimination against nonresidents bears a substantial relationship to achieving a substantial state interest.

2 If no fundamental right is implicated, the P&I clause is not triggered.

3 The State can not discriminate against someone based on the fact that he/she is not a citizen of that state.

2 Two step analysis:

1 Has the state discriminated against out of staters with respect to privileges and immunities it affords its own citizens?

2 If so, is there sufficient justification for the discrimination?

1 So far, no law has met this test.

2 A presumption against state and local laws that discriminate against out of staters w/ regard to fundamental rights or important economic activities.

2 Discrimination is allowed if there is a substantial reason for the difference in treatment AND

3 The discrimination against nonresidents bears a substantial relationship to the State’s objective.

1 Are there less restrictive means to achieve the objective?

3 Constitutional definition of what is covered by “privileges and immunities”

1 Protection by the gov’t

2 Enjoyment of life and liberty

3 The right to acquire property of every kind

4 To pursue and obtain happiness and safety

5 “those privileges and immunities bearing upon the vitality of the nation as a single entity.”

2 Historically, practical application of the clause has been in two contexts:

1 When a state discriminates against out-of-staters with regard to fundamental rights protected by the constitution

1 Seldom brought under this category because if there was an obvious vilation, like prohibiting certain religions, it would be litigated under other more powerful amendments.

2 Ex: Baldwin v. Fish and Game of Montana, Montana is allowed to charge out of staters a higher hunting license fee because hunting elk is not a constitutional right.

3 Ex: Doe v. Bolton (1973), the court ruled that states could not prohibit out of staters from getting abortions in the state. General application is that a state can not deny medical care based on out of state residence.

2 When a state keeps individual from exercising important economic rights, usually with regard to the individual’s ability to earn a living

1 The vast majority fall under this type.

2 Ex: United Building & Construction v. Mayor and Council of Camden, (p317)

3 Ex: Supreme Court of New Hamp v. Piper, Court invalidated law banning out of staters from practicing a trade or profession

4 Ex: Ward v. Maryland, Charging discriminatory fees

5 Mandating preference be given to in-staters for employment.

4 Plays a mutually enforceable role with the dormant commerce clause but is different from the commerce clause because:

1 No protection for corporations or aliens; only for “individuals” who are U.S. citizens.

2 There must be discrimination against out of staters, rather than just a burden on interstate commerce that happens to effect only in-staters.

3 Non-waivable b/c it is a right rather than a grant of authority to Congress like commerce clause.

4 Standard of review is stricter than the balancing test for dormant commerce clause but not as strict as the test for facially discriminatory regulations in commerce clause.

5 Extends ONLY to “fundamental rights”, not to all commercial activity.

6 NO exception for states when they are market participants like there is in the commerce clause

Privileges and Immunities clause of the 14th amendment prohibits states from denying their own citizens their Constitutional rights.

1 (See Individual Rights below)

2 Slaughter House cases

1 prevented this clause from being used to apply the Bill of Rights to the States.

3 Saenz v. Roe

1 first case to use the 14th A since Slaughter House cases.

2 Cynical view of the decision: this case prohibited CA from denying it’s citizens the fundamental right to the travel; this right was always protected so it really wasn’t opening the door to a new interpretation of the P&I clause.

Executive powers

Generally

1 Art II: “The executive power shall be vested in a President of the United States of America.”

1 Created a debate over “inherent power”

1 Does this mean the President possesses the powers enumerated in Art II?

1 James Madison would say yes. Unenumerated powers would be inconsistent with a Constitution that creates a gov’t of limited authority

2 The Pres can act only if there is express constitutional or statutory authority..

2 Or, does this mean the President has more broad inherent powers not expressly enumerated in Art II?

1 Alexander Hamilton would say yes. Art I begins with “all powers herein granted…” whereas Art II does not contain that limitation.

2 Pres’s inherent power allows him to act so long as he does not violate a statute or the Constitution.

3 Congress may not restrict the Pres’s inherent powers.

Justice Robert Jackson’s tripartite framework

1 Key case: Youngstown Sheet & Tube Co v. Sawyer 1952 (p344). Steel seizure case. Pres’ power was at it’s lowest.

2 A president’s powers are in flux depending on the circumstances.

3 A president’s power is at its highest when he acts “pursuant to express or implied authorization of Congress”

1 His acts are presumptively constitutional.

4 A president’s power is in the twilight zone when Congress is silent on the issue.

1 If Congress is silent, the Pres is relying solely on his own powers.

2 Pres and Congress may have concurrent authority but the Pres has acted first.

5 A president’s power is at its lowest when he acts in contravention to Congress’ express or implied will.

1 Pres will only win if he is acting under Art II powers.

2 Court will scrutinize Pres’ action.

3 Pres’ action is almost always unconstitutional in this zone.

Executive powers over foreign and military affairs

1 As long as the Pres is not violating a Constitutional provision or a federal statute, executive agreements in these areas are probably going to be upheld.

1 Key case: Dames & Moore v. Regan (p355)

Executive discretion in times of war and terror (p360)

1 Generally

1 Constitution is ambiguous about who really has the power.

1 Art II §1 c1: makes Pres commander in chief. He can send troops into areas to defend and repel attacks against the U.S.

1 This power probably gave Pres authority to go into Afghanistan w/out declaration from Congress.

2 But…what about Iraq?

2 Art I §8 c 11/12/13: Congress has power to declare war, power to raise and support armies, and navy.

1 In 2002, Congress passed a resolution to send troops to Iraq

2 As a result, most of these issues fall within Jackson’s twilight zone

2 War Powers Resolution Act of 1973

1 Allows Pres to sent troops abroad when

1 Congress declares war

2 Congress gives him statutory authorization

3 There is a national emergency, he can send them for sixty days and he must confer with Congress w/in 48 hrs of sending them.

3 4 relevant rules of Geneva Conventions of 1949 apply to

1 armed forces on land

2 armed forces on sea

3 POWs- members of armed forces

4 Treatment of civilians

4 Executive Detention of Enemy Combatants

1 Does Pres have ability to create military tribunals, or is that power reserved to Congress in the power to create lower courts?

1 Writ of habeus corpus

1 Art I, §9 c2

2 Gives individuals detained by the gov’t the right to come to court to show they’re being wrongfully detained.

3 Court determines if the detention process is proper.

4 Rasul v. Bush- detainees in Guantanmo Bay have a right to have a habeus corpus petition heard in federal court b/c they are on American soil.

2 Even when this right is suspended, as if during a rebellion, citizens may still be entitled to jury trial. This individual right cannot be suspended unless there is a rebellion

1 Ex Parte Milligan 1866 (p365); Pres Lincoln legally suspended the writ but that did not give him permission to try a citizen/non-soldier in a military tribunal.

2 Ex Parte Quirin may have set the stage for today’s military tribunals,.

1 Ex Parte Quirin 1942 (p367) German saboteurs not entitled to jury trial; Pres’ use of military tribunals was ok.

3 Today, the Executive branch can detain a U.S. citizen as an enemy combatant but it must give him due process and a meaningful factual hearing.

1 As long as the process meets the Mathews test, it’s ok if the trial takes place in a military tribunal rather than a civil trial.

1 Hamdi v. Rumsfeld 2004 (p373)

2 Hamdan v. Rumsfeld (handout)

Domestic powers

1 President to appoint ambassadors, federal judges and officers of the US with consent of the Senate.

1 Congress may vest the authority to appoint inferior officers in the President,

2 President may fire any officer in the executive branch at will, unless the Constitution prohibits it.

SEPERATION OF POWERS

Rise of the administrative state

1 Congress needs to create administrative agencies to deal with the nitty gritty details of the policies it creates.

1 It allows “experts” to make the detailed every day decisions rather than mucking up Congress’ already full plate.

2 Theoretically, agencies can adapt more quickly to rapidly changing areas than Congress can. (such as communications and internet)

3 It’s an easy way to distance themselves from the political backlash that might come with necessary but evil policies.

2 Administrative agencies have legislative powers to make rules, executive powers to enforce them and judicial power to adjudicate them.

Non-delegation doctrine is the principle that Congress may not delegate its lawmaking power to administrative agencies.

1 No statute has been overturned under this doctrine in the last 60 years because the Court believes delegations are necessary in the complex 20th century and they are ill equipped to draw meaningful lines.

2 Congress is usually able to satiate the Court by giving guidelines and “intelligible principles” to the administrative agencies to use in exercising their functions.

1 Mistretta v. United States, 1989 (p416), Court upheld Congress’ creating of the US Sentencing Commission to promulgate sentencing guidelines for federal crimes because Congress’ direction was “sufficiently specific and detailed.”

Congress can not delegate its lawmaking power to the President; it cannot increase the President’s power.

1 Clinton .v New York 1998 (p396) Line Item Veto act unconstitutional b/c it allowed Pres to change a law adopted by Congress.

Congressional Self help is designed to keep administrative agencies in check and to make sure Congress doesn’t abdicate its lawmaking responsibilities.

1 Congress creates quasi-constitutional statutes to retain power to override administrative agency action.

1 Administrative agencies are appointed by the executive branch.

2 One obvious “check” on administrative agencies is the Legislative Veto, but it is unconstitutional because, under a formalist view, it fails to meet the requirements of bicameralism and presentment.

1 INS v. Chadha (p387), Where AG used his authority to suspend Chadha’s deportation and the House unilaterally overruled the suspension—this use of a legislative veto is unconstitutional.

2 After Chadha, Congress passed a bunch of legislation authorizing joint resolution veto and there are still hundreds of laws on the books allowing legislative veto (some made after Chadha).

1 Because not many ppl have standing to bring it up.

2 The President seems to be ok with it.

Bicameralism and Presentment

1 Illustrates Framers intent that laws would be passed only after full study and debate.

2 Allowed both branches to protect the people from improvident laws.

3 Not every action Congress takes is subject to bicameralism and presentment.

1 Only applies to exercises of legislative power.

2 if the action “contains matter which is properly to be regarded as legislative in its character and effect” then it must comport with bicameralism and presentment.

2 4 express exceptions in the Constitution:

1 House’s initiation of impeachments

2 Senate’s power to conduct trials for impeachment

3 Senate’s power over Presidential appointments

4 Senate’s power to ratify treaties.

Appointment power

1 Art II §2: The president shall nominate, and by and with the advice and consent of the Senate, shall appoint Ambassadors, other public ministers and counsels, judges of the Sup Ct and all other officers of the US whose appointments are not herein otherwise provided for

2 …but Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, to the Courts of Law, of in the Heads of Departments.”

1 Who are “inferior officers”?

1 Congress decides.

2 Morrison v. Olson 1988 (p410) independent Counsel is an inferior officer b/c he can be removed by the Attny Gen who is a dept head, and has less power than the Attny Gen.

2 Who can Congress vest appointment power in?

1 Congress can vest power to appoint inferior officers in a panel of federal court judges

1 Morrison v. Olson 1988 (p410)

Removal power

1 Analysis:

2 No Constitutional provision addresses removal power.

1 The Myers Rule= The President has unrestricted authority to remove purely executive officers. (p409)

1 Myers v. United States (p409); Pres removed a postmaster when the law limited removal only with the advice and consent of the Senate. Congress may not limit the Pres’ authority to remove purely executive officers; or officers falling within his cabinet.

3 Congress can limit the President’s ability to remove executive officers in some cases.

1 Congress can pass laws that the President’s authority to remove quasi legislative or quasi judicial officers to removal for just cause only, where independence from the president would be desirable.

1 Quasi legislative officers might be heads of regulatory bodies like the FCC or SEC.

1 Humphrey’s Executor v. United States; p409 unanimously upheld the ability of Congress to limit the removal of a commission of the Federal Ttrade Commission.

2 Morrision v. Olson, p410, Sup Ct upheld Congress’ limit on the AG to remove independent counsel only for “good cause.” Cong had no direct role in removal. The law limited removal, it did not completely prohibit removal.

2 Quasi judicial officers might be the War Crimes Tribunal

1 Weiner v. United States (p409), Court went further than they did in Humphrey’s Executor; even without a statutory limitation, Pres can not remove executive officials where independence from the Pres is desirable.

2 Key question: is the limitation imposed by Congress interfering with the President’s ability to exercise his executive power. (Morrison v. Olson)

4 Congress can not give executive removal power to itself

1 Bowsher v. Synar 1986 (p.404), Congress intruded into the executive power when it retained the power to remove a legislative officer who was exercising executive duties.

5 Congress can not completely prohibit all removal.

1 Morrsion v. Olson

Individual Rights

Selective incorporation

1 The Bill of Rights has not been completely applied to States yet. It has been applied to the States one at a time thru the 14th A due process clause.

1 Barron v. Baltimore, 1833 (p446) Wharf owner sued the state under 5th A takings clause for making the water level at his whart too low to use. Court said the 5th A did not apply to the States.

2 So far, we have incorporated:

1 All of the 1st A

2 All of the 4th A

3 The 5th A right against self incrimination, double jeopardy, just compensation for taking private property

4 All of the 6th A

5 The 8th A prohibition on excessive bail and cruel and unusual punishment

3 We have not yet incorporated:

1 2nd A right to bear arms

2 3rd A prohibition against quartering soldiers in private homes

3 5th A right to grand jury indictment

4 7th A right to jury trials in civil cases

5 8th A prohibition on excessive fines

2 The P&I clause of the 14th A does not apply the Bill of Rights to the States.

1 Slaughter House cases (p449) said the 13th and 14th amendments were only passed to protect former slaves.

2 In 1999, for the first time, the Sup Ct used it to invalidate a CA law that infringed on the fundamental right to travel.

1 Saenz v. Roe (p462)

3 Instead use the 14th A Due Process clause to protect citizens from state/fed discrimination.

Substantive Economic Due Process

Lochner era 1905-1937

1 Court struck down federal laws on the basis they interfered with individual economic rights

1 Era is criticized for judicial activism

2 “Lochnerizing” is a verb used to describe judges going too far

3 But, it created a lot of jurisprudence on substantive due process that we are using today to help us understand the right to privacy.

2 Lochner v. New York 1905 (p492) NY infringed on the fundamental right to K, so the law was subject to strict scrutiny and it failed b/c the means was too attenuated from an illegitimate ends.

1 The gov’t can only interfere with the right to contract for police purposes.

3 The Court signaled a move away from Lochner in Nebbia. It began the decline of judicial scrutiny of economic regulations.

1 By the mid 1930s, the depression created public perception that gov’t needed to impose economic regulations.

1 Nebbia v. New York 1934 (p503) Court upheld a NY law putting a minimum price on milk sales b/c States are free to pass laws that are reasonably related to achieving legitimate ends. (public health and safety is legit)

4 The era ended with West Coast Hotel that represented a sea change away from Lochner; an abandonment of Lochner.

1 Justice Owen Roberts is the switch in time that saved nine.

1 West Coast Hotel v. Parrish 1937 (p505) the court upheld a state minimum wage law for women; it announced it would use deferential review. It accepted the premise that gov’ts could regulate areas for reasons other than public health and safety.

Modern approach to substantive due process w/ respect to economic regulations

1 Today’s TEST= economic regulations will be upheld when challenged under due process clause so long as they are rationally related to serve a legitimate gov’t purpose.

1 Derived from United States v. Carolene Products 1938 (p507) where famous footnote #4 said the court would not use deferential review and intervene when 1) laws interfered with rights in the Bill of Rights, 2) the political process or 3) where ppl were left out of the political process.

2 The gov’ts goal can be anything not prohibited by the Constitution.

3 ANY conceivable purpose is sufficient, even if that purpose is not the legislature’s asserted goal.

4 The law need only “reasonably” achieve the purpose, it does not have to be narrowly tailored to achieving the goal.

5 VERY deferential review, virtually any law can pass the test.

1 No law has been found to infringe on the liberty of contract since 1937.

2 Ex: Williamson v. Lee Optical 1955 (p509), where court upheld a state law prohibiting opticians from doing certain work; court looked for any basis even if it was illogical.

Takings clause is a modern source of protection for individual economic rights. (p514)

1 14th A due process clause extends to 5th A: Private property shall not be taken for public use without just compensation.

2 What is a taking?

1 Physical takings are easy to determine.

1 Even a temporary taking is a taking that requires compensation.

2 Regulatory takings occur when the gov’t passes regulations that significantly effects the property.

1 When it deprives the owner of all economically beneficial use of the property= taking per se

2 When it inhibits economic use because of it’s reduced value to the owner, it interferes with the investment expectations of the owner, or the character of the gov’t action inherently reduces the value.

3 What is public use?

1 RULE: a taking is for “public use” so long as the government acts out of a reasonable belief that the taking will benefit the public. (Rational basis review).

1 As long as there is a rational basis to any conceivable public purpose, the gov’t taking is ok.

2 The contemporary Court gives the same deference to takings for “public use” as it gives economic due process

2 Any public “purpose” is sufficient.

1 RULE: use the term broadly, not narrowly.

1 Kelo v. City of New London; economic development is not a per se invalid reason for a taking, the court hints it is more likely to accept takings, when they are part of a broad plan. The Court is not going to evaluate the effectiveness or the wisdom of the plan.

2 Kennedy’s concurrence: wanted to see more meaningful review considering these factors. (See Case List)

2 Look at the plan as a whole, not piece meal.

3 A taking to confer benefit on a purely private entity is not allowed.

1 A one-to-one/private-to-private transfer outside any broader plan is not ok.

4 States may invoke stricter frameworks for takings.

Contracts clause is a modern source of protection for individual economic rights.

1 Art I §10: “no State shall pass any law impairing the obligation of contracts.”

1 this clause does not apply to the federal gov’t

2 It only prohibits States from passing laws effecting existing contracts.

2 Court uses deferential review except when the State limits it’s own ability to perform an existing K.

1 State must substantially impair a K before court will overturn a law.

1 Ex: Home Building and Loan v. Blaidsdell 1934 (p536) during Depression MN passed a state law extending the time period banks had to wait before they could foreclose. It was ok b/c the state had a reasonable means to achieving a legit interest. It did not substantially impair the K by delaying foreclosure; it did not prohibit foreclosure all together.

2 When the State is a party to a K, the impairment must be necessary to protect an important interest.

Substantive Due Process

Test

1 Does the law violate a fundamental right?

1 If yes, the law is subject to strict scrutiny: is the State’s interest behind the law “compelling”? (not just rational)

1 If yes, then is the law narrowly tailored to achieve that compelling State interest? Does the means fit the ends?

1 The law must be necessary to achieve the compelling state interest.

2 Burden is on the gov’t and the gov’t usually loses here.

2 If no, the law is subject to rational basis review: the law must be rationally related to a legitimate government purpose.

1 Burden is on the challenger to prove either the law does not serve any conceivable legit purpose or it is an unreasonable way to attain the purpose. Challenger usually loses.

Generally

1 Some liberties are so important they are fundamental and should be protected from govt interference, even if they are not specifically enumerated in the Constitution.

2 For originalists, fundamental rights are limited to the liberties explicity described in the Constitution or those intended by the Framers.

3 For nonoriginalists, liberties are broader.

4 History and tradition can be used to define our liberties; those that have been “deeply rooted in this Nation’s history and tradition.”

1 broadly, with a more general look at history.

2 narrowly, with a specific look at history.

The right to privacy is a fundamental right

1 Source of the right to privacy is “liberty” of the 14th amendment due process.

1 Right to privacy includes right to choose an abortion.

1 Key case: Roe v. Wade

2 Precursor: Griswold v. CT 1965 (p546), where Court invalidated a law prohibiting married couples from using contraception. Court found the right to privacy in the penumbras of the 1st, 3rd, 4th, 5th, 9th and 14th amendments.

2 Critics complain the right to privacy is not mentioned in the text nor intended by the framers.

2 The Equal Protection clause requires all people are afforded the right to privacy.

1 Key case: Eisenstadt v. Baird 1972 (p556), where the Court invalidated a law prohibiting doctors from distributing contraception to unmarried people. The classification scheme is irrational and prohibited by the Equal Protection Clause. Court expanded Griswold.

3 States may not place undue burdens in the way of this right.

1 Key case: Planned Parenthood v. Casey, 1992 (p574) Court upheld Roe but tossed out the trimester framework and adopted the undue burden test. States may not pass laws that have the purpose or effect of placing substantial obstacles in the path of women seeking abortions.

[NOTE: Court set forth rules on when it should overrule precedent:

1 If the old rule proves unworkable.

2 Whether people have relied on the law to shape their lives.

3 Changes in legal principles make the old rule a remnant of abandoned doctrine

4 Whether circumstances or knowledge have changed the factual underpinning of the logic.]

2 Increased cost or delay is not an undue burden.

3 Ex: Stenberg v. Carhart, 2000, p589,

2 Series of cases after Roe struck down restrictions on abortions.

1 Planned Parenthood v. Danforth, p568, where Court invalidated a requirement for spousal consent. (affirmed in Casey); women do not lose their constitutional right when they marry.

2 Akron v. Akron Center for Reproductive Health, p569, where court invalidated a mandatory waiting period and an informed consent rule b/c the State was really trying to dissuade the woman from having an abortion rather than informing her. (overruled by Casey)

3 Some restrictions are allowed

1 Belloti v. Baird, p568 Court allowed States to require parental consent for abortions for minors as long as a judicial bypass was available. (affirmed in Casey)

4 Due process does not confer an affirmative right to governmental aid.

1 i.e.,gov’t is not required to fund abortions, even when it funds child birth.

1 Maher v. Roe p569, the fundamental right to be free from gov’t intrusion is not the same as an entitlement to get that right. It is not the gov’t fault some people are poor.

2 Harris v. McRae p570, Court upheld the Hyde amendment which prohibited MediCaid funds from being used for abortions. The gov’t didn’t create the pregnancy so it’s not the gov’t job to deal with it.

3 Rust v. Sullivan p571, Court upheld a law prohibiting programs that received federal funding from counseling women about getting abortions. The Court held the woman was no worse off after the counseling.

The right to marry is a fundamental right.

1 It is protected by “liberty” of the due process clause.

1 Key case: Loving v. Virginia, 1967 (p591) where Court invalidated VA law prohibiting interracial marriage.

2 Ex: Zablocki .v Redhail, 1978 (p591), where Court invalidated a WI law prohibiting deadbeat dads from marrying.

3 Ex: Turner v. Safley, 1987 (p593), where Court extended right to marry to prisoners.

The right to refuse medical treatment is a fundamental right.

1 Refusing hydration and nutrition is protected by the “liberty” of the due process clause. (p615)

1 Cruzan v. Missouri Dept of Health 1990 (p614) Court upheld a Missouri law requiring clear and convincing evidence that the patient would want to refuse food/hydration before allowing someone else to do it for the patient.

2 The right is not absolute and can be regulated by the gov’t.

1 But the Court did not tell us what level of scrutiny to use in determining if a State’s regulation of this decision is constitutional.

2 The State can require clear and convincing evidence that the patient wanted to refuse treatment before it is cut off.

1 But the Court does not provide a description of what evidence is sufficiently clear and convincing.

1 Cruzan v. Missouri Dept of Health 1990 (p614)

3 The State may prevent family members from terminating treatment for one another.

1 But the Court did not tell us if the State would have to defer to a surrogate or guardian when pre-appointed by a competent adult.

3 The right to die is not a fundamental right. Voters in the States may decide this issue.

1 Washington v. Glucksberg (p618), WA law against physician assisted suicide did not violate a fundamental right and it passed the rational basis review, or the lowest level of review.

4 The right to be let alone and to let yourself die is a fundamental right.

1 Vacco v. Quill, (p627), laws against physician assisted suicide do not violate equal protection clause. Everyone has the right to refuse medical treatment and everyone is prohibited from suicide. Letting someone die is ok, making someone die is not ok.

5 Many unanswered questions:

1 is a living will sufficient?

2 whose “tradition” do we look at to decide if it has historically been protected?

3 how broadly/narrowly do we define the protections?

4 should the court consider majority will of the people?

Does tradition play a role in determining what rights are fundamental?

1 Michael H v.Gerald D (p597) where the court denied visitation rights to a biological father because the mother was married to another man.

2 Defining the question narrowly and specifically means we are less likely to find a right has “traditionally” been protected.

1 Ex: Bowers v. Hardwick, 1986 (p600), where GA law prohibiting gay sodomy was upheld. Court defined the issue narrowly to determine if the “Constitution confers a fundamental right upon homosexuals to engage in sodomy.” It was not a fundamental right so it was subject to rational basis review, State’s legit interest= public morals.

3 Defining the question broadly means we are more likely to find the right has been “traditionally” protected.

1 Ex: Lawrence v. Texas 2003 (p602) where Court defined the right in question as the right from unwarranted gov’t intrusions into a dwelling or private place. Freedom of thought, belief, expression and certain intimate conduct. Court said Bowers defined the right too narrowly.

Some non-economic fundamental rights were protected under the due process clause during Lochner era.

1 Ex: Myers v. Nebraska 1923 p545, where Sup Ct invalidated a law prohibiting teachers from teaching German language.

2 Ex: Pierce v. Society of Sisters, 1925 p545, where Sup Ct. invalidated a law requiring kids to go to public school, no private schools allowed. Court applied rigorous scrutiny b/c it effected a fundamental right of parents to rear their children.

3 Ex: Skinner v. Oklahoma, 1942, p545, where court invalidated a compulsory sterilization law for three time felons.

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