CONSTITUTIONAL LAW OUTLINE



CONSTITUTIONAL LAW OUTLINE

PROF. WOODS

FALL 2002

I. BACKGROUND

A. Constitutional law is the study of political law allocated to the government, all three branches and the states.

B. The constitution is not a statute or a code and is constantly changing. It cannot be amended easily as a statute or a code can. It has a broad general structure.

C. Themes of Constitutional Law

1. Constitutionalism was influenced by John Locke who wrote two treaties. His theory was by entering civil society, people entered into a social contract. Individuals give up some sovereignty for protection, but do not give up certain inalienable rts.

2. Constitutionalism is a method of limiting government; it specifies and limits the power of government, establishes overall structure of government, and it does not solve specific problems but creates a framework . It protects against the tyranny of the majority.

3. The Constitution is an intentional counter-majoritarianism.

▪ Ex: difficulty amending, two senators elected from each state (thus each state is represented not the people), electoral college (President is not decided by popular vote), the judiciary is appointed not elected, the Bill of Rts. protects inalienable rts. from majority rule

4. Theories of Interpretation

a. Originalism—the original intent of the framers should govern interpretation

▪ Ex: the amendments, Art. V

b. Non-originalism—interpretation must take into account changes in society

▪ Ex: abortion

5. Structure of the Constitution

▪ The separation of powers protects against governmental tyranny

❖ Three distinct branches w/ distinct powers

❖ Where the provision is placed is key to interpretation

❖ Art. I—Congress, Art. II—Executive, and Art. III—Judiciary

❖ In order for the government to act two branches of government must be involved

--Ex: to pass a law the President must approve a bill of Congress

❖ Checks and balances creates conflicts b/w the branches

--Ex: who has power and when can the ct. overrule them?

D. History of the Constitution

➢ After the Revolutionary War the country is guarded under the Articles of Confederation. The Articles of Confederation were very weak and created a central weak gov. w/ emphasis on strong state sovereignty.

➢ A constitutional convention was called to amend the Articles of Confederation.

➢ The Federalist Papers were written in order to get New York to adopt the Constitution

➢ The Bill of Rts. was added two yrs. later to include individual rts. for ratification

II. CONSTITUTIONAL INTERPRETATION: JUDICIAL REVIEW

A. Factors which make Interpretation Complicated

1. Absence of language—it’s vague and ambiguous w/ unanswered questions

2. Vagueness of language

3. Line drawing (political policies)

B. Who should Interpret the Constitution?

1. no authoritative interpreter—each branch would interpret and be supreme on that issue

2. each branch is authoritative in its own area (ex: Article I—Congress, Article II—President, and Article III—Judiciary)

3. the judiciary is the authoritative interpreter (that’s essentially where we are today due to Marbury v. Madison)

C. Article III

1. Establishes the Supreme Ct. and gives Congress the power to establish lower cts.

a. gives appellate jur. to the Supreme Ct. in law and equity

(i) arising under the Constitution

(ii) laws of the United States

(iii) treaties

(iv) cases under maritime jur.

(v) where United States is a party

(vi) citizens of different states

(vii) b/w foreign states

b. Supreme Ct. has original jur. over the following cases:

(i) effecting ambassadors and other public ministers

(ii) a state is a part

2. States that judges will serve life terms during good behavior and their pay cannot be decreased.

3. Defines treason, the only crime mentioned in the Constitution.

4. Establishes trial by jury.

5. Does not expressly grant to the cts. the power to declare acts of Congress unconstitutional.

D. Marbury v. Madision

Facts: President Adams was a lame duck when a democratic Congress was being replaced by a republican Congress. Two acts of Congress created new judgeships. Adams had the Secretary of State, Marshall, sign the new judges commissions, but the commissions were not delivered before Jefferson took office. One judge, Marbury, sued on the writ of mandamus to force President to deliver the commission. Marshall did not recuse himself despite his involvement.

Issues: (1) Does Marbury have the rt. to his commission? Yes, b/c the commission had a lawful order by the President. (2) Did the Supreme Ct. have jur. to enforce the writ? No.

Reasons: The 1789 Judiciary Act gave the Supreme Ct. the authority to hear the writ; however, the Supreme Ct. held this act as unconstitutional b/c it expands the power of the judiciary beyond Article III. Marshall is expanding the role of the judiciary by declaring that the Ct. has the power to declare a congressional statute void.

← Marshall’s reasoning: (1) the judge’s oath of office to uphold the Constitution, (2) the Constitution is the supreme law of the land (Supremacy Clause Article VI), (3) the Constitution cannot be amended by legislation, and (4) he is trying to establish that he has power to declare a statute void by getting textual support for judicial review.

← Holding: The Ct. held it did not have jur. based on the Judiciary Act of 1789, which expanded the jur. given to the Supreme Ct. in Article III by giving them power to issue writs of mandamus; but does not say whether this is original or appellate jur.

E. Federalist Papers No. 78

1. Hamilton’s rationale of having judicial review

a. he believes the judiciary is the weakest branch of gov.

b. President cannot enforce a law that the Supreme Ct. has declared unconstitutional

c. the President can veto an act passed by Congress that he believes is unconstitutional

F. Cooper v. Aaron

Governor in Arkansas did not want to desegregate following Brown v. Board of Education. The ct. ruled that state ct. officials are bound by its constitutional decisions.

G. Martin v. Hunter’s Lessee

Facts: Martin claimed title to land in Virginia on inheritance from a British citizen. The United States and England had entered treaties protecting the rts. of British citizens who owned land. Hunter claimed that Virginia had taken the land before the enactment of the treaties, so Martin had no claim to the property. Virginia Ct. of Appeals ruled in favor of Hunter and for the state’s authority to take the land. The Supreme Ct. reversed.

Issue: Did the Supreme Ct. have the authority to review Virginia’s decision?

Holding: Yes, the Ct. expands the power of judicial review to the states.

Reasons: Creates uniformity among state laws. Congress has the power under Article III to create lower federal cts.; if it had created none, Supreme Ct. would have no appellate jur. Thus, the framers wanted the Supreme Ct. to have appellate jur. Therefore, the Supreme Ct. has the power to review state ct. decisions although it is not specifically provided for in Article III.

H. Cohens v. Virginia

The state ct. is prosecuting the state of Virginia for selling lottery tickets. Their defense was that a federal statute allows the sale. This went from state ct. to federal ct. and the lottery sellers argue that the federal law trumps the state law. The ct. held that the federal law does not effect anything outside of Washington D.C.

• If you have a constitutional defense to a state criminal claim, then you can bring it in federal ct.

I. Political Question

1. Variance of concept of justiciability.

2. A self-imposed limit on the power of the cts.

a. Judiciary has decided that it will not override an act of another organ of gov.

b. A voluntary doctrine, though grounded in the Constitution and the idea of separation of powers.

c. No textual basis for the doctrine.

3. The cts. are not a political institution b/c they are not elected.

4. Functions of nonjusticiability

a. helps define judicial role

b. helps conserve judicial resources—don’t hear as many cases

c. improves decision making—if decision will not help the status of the parties (live controversy)there is no point in hearing it.

d. promotes fairness—litigants must have standing—no third party complaints

e. adversarial process

5. Nixon v. United States (1993)

Facts: Judge Walter Nixon, a MS federal judge, was convicted by a jury for making false statements to a grand jury and was sentenced to prison. Nixon refused to resign and collected his salary while he was in prison. The House charged Nixon with three articles of impeachment for high crimes and misdemeanors. Presented the articles to the Senate, who gave them to a committee to review, pursuant to Senate Rule 11. Committee presented the full Senate w/ its findings and the Senate impeached Nixon by the required 2/3 majority.

Issue: Did Senate Rule 11 violate the Constitution by precluding the entire Senate from taking part in the hearings?

Holding: The ct. did not reach the merits b/c it does not have the power to hear this case.

Reasons: a.) “try” is a broad word—Does not give a judicially manageable standard of review. Also, three limitations are already imposed by Article I which are the oath, the 2/3 vote, and that the Chief Justice must preside in impeachment cases against the President. These limitations are precise, and the framers did not want to add more, such as the full Senate requirement.

b.) “sole” power of the Senate—Senate could not function independently if the cts. are involved. Also, “sole” does not mean entire b/c of the previous limitation discussion.

c.) Constitution provides for judicial review of some things, but not this (bill of attainder, ex post facto)

d.) Two separate forums are provided—trial by Senate and criminal. Judiciary is already involved in one. Would create a bias to be involved in both.

e.) Cts. also don’t have the resources of the legislature to find facts thru hearings.

f.) This is the only check on the judiciary.

g.) Protections already exist in bringing the proceedings in House, yet trying in the Senate. Also, protection in the 2/3 majority vote.

Rule: Judicial impeachment is a non-justicialbe issue.

White’s concur: This case could be tried on the merits and Rule 11 would be constitutional.

6. Is Nixon consistent w/ Marbury?

➢ In Marbury, the ct. refers to the idea of political question.

--what does the ct. mean by discretion? The Senate has the authority to decide how to conduct the trial.

7. Pacific States Tel. & T. Co. v. Oregon

← The Guaranty Clause Article VI, guarantees a republican form of gov. to every state

← Pacific argued that the initiative process was democratic, not republican

← The initiative process is laws enacted by popular vote, not legislature

← In Oregon a tax was passed thru the initiative process

← The ct. believes the power rests w/ Congress to decide what gov. is to be established in each state; if the ct. were to decide this then every law would be invalid

← This a question for political branches, not the ct.

← The framers were concerned about mass uprisings and the fear of the monarchy so republicanism is a balance

III. NATIONAL LEGISLATIVE POWER

A. The Sources and Nature of National Legislative Power

➢ The enumerated powers limit federal power. The Constitution is a written limit on power.

➢ Federalism—who has the power the states or federal gov.?

--a limit on federal power preserves state sovereignty

➢ The main source of legislative given to Congress is Article I

--legislative power is the power to enact laws regulating activity of individuals and corporations, policy making

1. Article I

a. Section 1 contains the grant of legislative power

b. Section 2, 3, and 4 discuss House and Senate and the electoral process; Section 4 pertains to legislative power in pursuit of the process of electing Senators and Representatives

c. Section 7 contains the Presentment Clause, which requires every law to be presented to the President

d. Section 8 is the primary source of the federal legislative authority

--to lay and collect taxes, pay debts, regulate commerce and immigration, establish lower federal cts.

--lower federal cts. give Congress the authority to make laws

--Article II Sec. 2 contains treaty power so Congress may pass laws that do not fall w/in the enumerated powers

--Article IV Sec. 3 gives Congress the power to regulate federal lands

e. Section 10 contains limitations on states’ powers, lays out the relationship b/w federal and state gov.

2. McCulloch v. Maryland

Facts: Maryland taxed the national bank operating in its borders.

Issue: Did Congress have the power to create a bank? Did Maryland have to power to tax it?

Holding: Yes, under the Necessary and Proper Clause; and no, under the Supremacy Clause.

Reasons: a.) Necessary and Proper Clause—Maryland argued there was no enumerated power to create a bank; however the Necessary and Proper Clause gives Congress the power to pass laws necessary for carrying powers that it does have. The gov. argued that it is an expansion of power b/c of where it is located in the Constitution (Article I Sec. 8); and therefore, the bank is a means to effectuate powers.

← Necessary and Proper Clause (Article I Sec. 8 cl. 18)—to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the gov. of the U.S., or in any department or office thereof

b.) Supremacy Clause—The power to tax is the power to destroy, weaken, or limit. A state may not tax a federal entity b/c taxing is an exercise of sovereignty and a state may not exercise sovereignty over the federal gov.

c.) The Rational Basis Test (a means ends analysis)—Let the end be legitimate and the means have to be appropriate and reasonably related to the end; then the law is constitutional (basic law of judicial review). Congress has to have the power in the first place from a constitutional source. (Ex: Congress has the power to lay and collect taxes so the necessary and proper powers give Congress a way to do this thru the bank)

3. U.S. Term Limits, Inc. v. Thornton

← States refusing to allow representatives to run for office is amending the Constitution.

← The states argued that they had a rt. to do this b/c the Constitution was silent regarding the issue so it is reserved to the states under the Tenth Amendment.

← The ct. said silence in the Constitution does not mean power is reserved to the states. Powers reserved to the states are powers that existed before the union.

← Dissent: Sovereignty comes from the people of each individual state, not the undifferentiated people or national group.

B. The National Commerce Power

1. Development of Basic Concepts

➢ Articles of Confederation did not give Congress the power to regulate Commerce. Article I Sec. 8 gives Congress the power to regulate Commerce w/ foreign nations and among the several states and w/ the Indian tribes.

➢ The Commerce Clause doctrine has evolved in three periods:

(i). Pre-1937—characterized by dual sovereignty and laisse faire economics

--restrictive interpretation of the Commerce Clause

--did not want to take power from the states

(ii). Post 1937—federal supremacy over commerce and a broad definition of power granted to the federal gov. This was the New Deal Period.

--economic crises

--one justice switched sides and the ct. began a broad interpretation of Congress’ power

(iii). Post 1995—return to pre-1937, re-emergence of states’ rts. and attempts to limit the scope of national legislative power

a. Gibbons v. Ogden

Facts: NY statute granted def. exclusive rt. to navigate steamboats in state waters. Pl. navigated in this area two steamboats pursuant to a license by act of Congress. The SC debated the meaning of commerce and among.

Issue: Navigation w/in the confines of one state considered commerce w/in the reach of Congress under the commerce clause.

Holding: Yes.

Reasons: What is commerce? Ogden argues that commerce is limited to buying and selling of goods and does not include navigation. Gibbons argues that commerce is commercial intercourse b/w nations and parts of nations.

What is among the states? Commerce that affects more than one state. NY statute is trying to regulate waterways that are boundaries w/in the state.

Does the reach of Congress’ power to regulate commerce go into the states? Yes, b/c it includes intrastate that are used in interstate commerce (channels of interstate commerce).

Commerce clause gives Congress the power to make the rules which now govern. Rules such as safety standards, weights and measures, fixing rates, regulating what may be transported, anti-trust, discrimination, and wages.

What can’t be regulated? Anything purely intrastate, such as manufacturing. (Kidd v. Pearson).

➢ Examples of channels of interstate commerce: roads, railroad tracks, air space, and cyberspace

➢ Examples of instrumentalities of interstate commerce: trucks, trains, and boats

b. The Daniel Ball

← A ship navigating exclusively in Michigan transporting goods that were moving in interstate commerce. This was interstate commerce under the congressional power b/c the ship was an instrumentality of commerce.

c. Foundations for extending the reach of congressional power

(i) Lottery Case

Holding: Ct. upheld the federal lottery act which prohibited interstate carriage of lottery tickets.

Reasons: Lottery tickets are articles of commerce. Congress prohibited interstate traffic (criminalizing certain activities to prohibit certain actions). Congress doesn’t have police power. Power to regulate health, safety, and morals or general welfare of the people is given to the states. Police power is plenary to the states, but are limited to enumerated powers. Ct. decided that Congress can regulate the tickets b/c they’re moving from state to state. Congress is protecting the other states that do not have lotteries, b/c each state can only make a law that applies to that state (the jurisdictional nexis moving from state to state and the need for federal gov. to regulate activity).

(ii) The Shreveport Case

Facts: Congress fixed a railroad rate from Shreveport to Texas and raised intrastate rates.

Holding: Congress does not have the power to regulate rates charged by states of trains involved in interstate commerce.

Reasons: Congress has the rt. to control operations in matters having a substantial relationship to interstate commerce. States cannot use intrastate commerce as a way to control interstate commerce. This is the kind of measure that commerce clause was put into protect in the first place.

(iii) From these cases, the three established areas of commerce clause jurisdiction are: (1) channels, (2) instrumentalities, and (3) local activities having substantial effect on interstate commerce.

2. Regulation of National Economic Problems

a. Limitations on commerce power thru 1936

(i) Hammer v. Dagenhart

Facts: Congress prohibited the transfer of products from factories that used child labor. The statute was meant to limit or prohibit child labor.

Holding: Congress has no authority to regulate production (similar to Kidd v. Pearson). Production is a purely local activity, therefore Congress cannot regulate it.

Reasons: Distinguish from Lottery Case b/c the goods themselves were harmful and regulation of their transport was regulation of evil. Here, the goods are harmless. Congress argued that it was trying to prevent unfair competition. Ct. said that this is not a justifiable use of regulation. Ct. is ultimately saying that child labor is not immoral.

(ii) Constitutional struggle: The New Deal v. The Great Depression

(a) Schechter Poultry Corp. v. U.S. and Carter v. Carter Coal Co.

▪ Invalidated regulation of wages and hours of work

b. Expansion of commerce power after 1936

(i) NLRB v. Jones and Laughlin Steel Corp. (1937)

Facts: National Labor Relations Act was to protect workers. Pl. found that def. violated the act by firing employees for union activity.

Issue: Is the NLRA a wrongful attempt to regulate industry, thus invading the reserved powers of the states?

Holding: No.

Reasons: The ct. focuses on the steel industry as a whole and on the Depression and the need for action. The steel industry is significant to our Nation and a strike would have serious effects on interstate commerce. Extend commerce to the power to protect anything related to interstate commerce. Activities that take place intrastate that affect interstate commerce.

(ii) police power—power to regulate the health, safety, morals, and general welfare of people; Congress does not have the police power, the Commerce Clause is the closest thing

--based on Kidd v. Pearson the ct. ruled that Congress was attempting to regulate manufacturing in The Child Labor Case; the goods were not harmful in themselves unlike The Lottery Case

(iii) U.S. v. Darby

Facts: The purpose of the Fair Labor Standards Act was to exclude from interstate commerce goods produced under substandard labor conditions (the same motive as Dagenhart)

Issue: Does Congress have the power to prohibit the interstate shipment of goods produced under these conditions?

Holding: The shipment of these goods is interstate commerce. Congress has the power to regulate as long as it does not infringe upon some other constitutional prohibition.

Reasons: Overruled Dagenhart. Ct. must decide whether the employment is so related to commerce as to be w/in Congress’ reach. The ct. could not question Congress’ motive b/c there was a jur. element in this statute.

← The rational relationship test: as long as the ends are legitimate and the means are appropriate which facilitate the ends

--determining whether intrastate activity has a substantial effect on interstate commerce

(iv) Wickard v. Filburn

Facts: Agricultural Adjustment Act imposed a penalty on def. for bushels of wheat produced on his farm in excess of the national atollment. The wheat had been grown specifically for def.’s family’s consumption, and was not sold.

Issue: Is the Act constitutional when it extended federal regulation to production not intended for commerce?

Holding: Yes.

Reasons: There is no formula to determine the power of Congress. Must consider the actual effect on interstate commerce (don’t look at direct v. indirect effects). Def.’s consumption of wheat may be trivial, but when considered in the aggregate, w/ all others doing this, it is a substantial problem. This will affect supply and demand. Even if an activity is local, and not considered commerce, it is w/in the power of Congress if it exerts a substantial economic effect on interstate commerce. One small interstate activity would not substantially affect commerce, but in the aggregate it would ultimately affect commerce.

3. Protection of Other Interests Thru the Commerce Clause

a. Heart of Atlanta Motel, Inc. v. U.S.

Facts: Pl. owns and operates a motel, and solicits patrons from outside of the state of GA. 75% of its guests are from out of state. Refused to rent rooms to blacks, in violation of the Civil Rights Act of 1964.

Issue: Does this local activity effect interstate commerce?

Holding: Yes.

Reasons: Purpose of the act is to provide equal access to public establishments. Discrimination by race burdens interstate commerce b/c it makes travel for blacks less enjoyable, and discourages them from traveling (this is the jur. link b/w discrimination and interstate commerce). Does not matter that this is local b/c the power of Congress to promote interstate commerce also includes the power to regulate local incidents thereof. Similar analysis as in Jones and Laughlin where the ct. looked at the industry as a whole. Congress can regulate racial discrimination b/c it substantially effects commerce.

b. Katzenbach v. McClung (1964)

Issue: Whether the Title VII, as applied to a restaurant receiving about $70,000 worth of food which has moved in commerce (out of $150,000 worth of total food) was a valid exercise of the power of Congress.

Holding: Yes.

Reasons: Ct. again applied the rational basis test – it is up to Congress to make the jur. link b/w discrimination and interstate commerce. Fact that this effect on interstate commerce is inconsequential b/c Congress determined that it did have a direct effect. Blacks are shown to spend less at restaurants where discrimination is practiced. Closely connected to interstate commerce b/c the less food the restaurant sells, the less it bus in interstate commerce. Also discourages new businesses from forming. Also, consider the aggregation doctrine.

← All the ct. had to find was reasonable relationship b/w the means used, and the goal of protecting interstate commerce

← Judicial review must be exercised w/ great deference

4. New Limitations at the End of the Twentieth Century

a. U.S. v. Lopez (1995)

Facts: Def. carried a gun to a TX school in violation of a federal Gun Free Schools Act.

Issue: Was the act constitutional under the commerce power?

Holding: No, it neither regulates a commercial act, or contains a requirement that the possession of the gun be connected to interstate commerce (jur. nexis).

Reasons: Need to find whether this has a substantial relationship to interstate commerce, b/c it is not a channel or an instrumentality. Not substantially related b/c:

(i) This is a criminal statute having nothing to do w/ commerce. Congress could have added the jur. element by stating that the guns had to be from other states, etc.

(a) Policy considerations are that, if they could regulate this, Congress could regulate any crime at all.

(b) Protects local control.

(ii) It is not an essential part of a larger regulation that can be undercut

(iii) Congress made no findings of why and how it affects interstate commerce w/ which the ct. could use to find why the law was passed

(a) However, this was an emergency situation and these things take yrs. to do hearings.

(b) Public concern over this problem was high.

b. U.S. v. Morrison (2000)

Facts: Bronzkala sued Morrison, a fellow college student, for rape under the federal Violence Against Women Act – a federal civil remedy. Congress, this time, made numerous findings that states had been ineffective in dealing w/ the problem, and that the link to interstate commerce had a rational basis.

Holding: The Act was declared unconstitutional.

Reasons: Although the ct. made a number of findings, the ct. still has discretion in finding a rational basis. Ct. ignores the findings of Congress and holds that violent crime is w/in the police powers of the states. This is a non-economic statute and, thus, has only an attenuated effect on interstate commerce. Congress must first show a commercial or economic activity, and then show a substantial relationship to interstate commerce. Ct. identified missing elements: (1) non-economic activity, (2) lacked jur. nexis (no language in the statute that connects the act w/ interstate commerce), and (3) is there a rational basis for Congress to determine that there was a substantial effect on interstate commerce.

Souter Dissent: Considering the amount of data Congress collected, it is obvious that there is a rational basis for the finding. The commercial v. noncommercial distinction leads to tragic results. This is political question so the ct. should not decide the issue.

Breyer Dissent: Consider Heart of Atlanta where a non-economic act was w/in the power of Congress to regulate. Virtually all acts affect interstate commerce, and it is Congress who must make the determination, not the judiciary. Suggest that Congress should consider the federalism questions.

← Wickard is distinguishable from Morrison and Lopez: Wickard was clearly economic and they used the aggregation doctrine. Aggregation doctrine is not to be applied to non-economic situations.

Thomas Concur: Congress’ power seems to be unlimited thru the commerce clause and substantial effect test.

C. The National Taxing and Spending Powers

1. Regulation Thru Taxing

a. Bailey v. Drexel Furniture Co. (Child Labor Tax Case) (1922)

Facts: Nine months after Dagenhart, Congress passed another child labor statute under the taxing power. Child Labor Tax imposed a 10% excise tax on the yearly profits of employers of child labor who knowingly violated age and hours standards.

Holding: The law is not a valid tax, it is a regulation rather than a revenue generating.

Reasons: Three things why this is a penalty and not a tax:

(i) the amount of the tax is not proportionate to the extent of the conduct

--tax for one child for one day or many children of the entire yr. would be a proportionate tax

(ii) the scienter requirement—you have to have knowledge which is usually associated w/ crimes and penalties not taxes

(iii) subject to inspection by treasury and labor departments which resembles a penalty

The ct. said that Congress cannot use a taxing power to do this b/c it encroaches on state’s power to regulate child labor. The primary motive of a tax should be to raise money. The ct. did not feel that regulating labor was w/in the power of Congress; however, today the ct. believes that Congress does have the power to regulate labor (has never been overruled).

2. Regulation Thru Spending

a. U.S. v. Butler (1936)

← Ct. struck down the Agricultural Adjustment Act of 1933 b/c it invaded the rts. of states (purpose of the Act was to get the country out of the Depression)

← The taxing and spending power is a separate power not linked to Article I §8

b. Stewart Machine Co. v. Davis (1937)

Facts: The Social Security Act had a provision under which the proceeds of a federal payroll tax on employers went into a general treasury, not a specific fund. Tax payers got a 90% credit on federal tax payments to a state unemployment fund if the state law met federal requirements. What you normally be paying to the federal government you’d be paying to the state.

Holding: This did not violate the Tenth Amendment by coercing the states.

Reasons: The federal gov. can legitimately tax payroll, but here the states must pass laws that meet federal requirements. The purpose of the Act was to safeguard the treasury. Creates a level playing field b/c people will be drawn to the states that have the fund so uniformity is required. It is not coercion: every tax conditioned on conduct is temptation, not coercion.

This is distinguished from Butler, as long as the condition imposed on states is not unconstitutional it will be upheld.

c. South Dakota v. Dole (1987)

Facts: A federal law required that 5% of allocable highway funds be w/held from any state where persons under 21 legally purchase or possess alcohol.

Holding: The law was valid as it applied to the age limit on beer. Congress can act under this spending power to encourage uniformity in age.

Reasons: The condition is directly related to one of the main purposes of highway funds, which is safe interstate travel. The conditions were related to the purpose of spending, they were unambiguous for the general welfare, and not unconstitutional.

There is an argument that the drinking age is linked to safe highways and drinking and driving.

D. Foreign Affairs Power

1. Treaties as a Source of Legislative Power

a. Missouri v. Holland (1920)

Facts: The United States made a treaty w/ Canada to protect migratory birds.

Issue: Is there authority for legislation?

Holding: The treaty was upheld b/c the Constitution gives treaty power in Article II §2 to the Executive, but gives power to the Senate by requiring its advice and consent. A 2/3 vote from the Senate is required to ratify the treaty.

Reasons: The purpose of the treaty is protect birds so states argue that Congress does not have jur., but the ct. upheld the treaty b/c the birds are migratory so there not physically located in one jur. The law is related to the treaty, then the Tenth Amendment cannot override it. Therefore, the Tenth Amendment does not limit the scope of treaty power.

E. Applying National Powers to State Governments: Intergovernmental Immunities

1. Origins of Immunities

➢ Two areas in which a sovereign can exercise power are taxing and regulating.

➢ McCulloch v. Maryland

← The state could not tax the federal bank based on the Supremacy Clause.

➢ before 1937 dual sovereignty

➢ after 1937 quasi sovereignty

2. State Immunity from Federal Regulation

a. New York v. U.S. (1992)

Facts: A federal law created a statutory duty for states to provide for the safe disposal of radioactive waste generated w/in their borders. Also, made states liable for any problems from the waste thru the Take Title Provision.

Issue: Was the Take Title Provision unconstitutional?

Holding: Yes.

Reasons: Congress’ power is to regulate individuals not the states. Under Article I, the federal gov. may not compel the states to enact or administer a federal regulatory program.

b. Printz v. U.S. (1997)

Facts: The Brady Act purports to direct state law enforcement officers to participate temporarily in the administration of federally enacted regulatory scheme. Dealers must forward to CLEOs paperwork to determine if the purchasers can buy guns. The CLEOs are empowered to grant waivers.

Issue: Whether Congress can require an official of the state to participate in a federal program?

Holding: (i) no provision of the Constitution addresses this issue so it looks at (ii)

(ii) historical practice—no history of Congress doing this

(iii) intent of the framers—by looking at the structure of Constitution the power of Congress to regulate individuals not states; and the President is the executive who is suppose to enforce the law, but here it is bypassing the President and going to state executives

(iv) policy—putting state officials on the front lines of implementing an unpopular law

The ct. held that it was unconstitutional for Congress to commandeer a state executive branch.

IV. DISTRIBUTION OF FEDERAL POWERS: SEPARATION OF POWERS

A. Presidential Action Affecting “Congressional Powers”

1. Youngstown Sheet & Tube Co. v. Sawyer (1952)

← leading case addressing scope of inherent presidential power (the ability of the President to act w/o express constitutional or statutory authority)

Facts: In early 1952 the United Steel Workers Union announced a planned nation wide strike as a result a labor management dispute. Before the strike occurred President Truman issued an executive order directing the Secretary of Commerce to take possession of the steel mills and to keep them running. Truman believed a steel strike could endanger the national defense and the war effort in Korea b/c steel was needed for weapons. The President reported his actions to Congress. Congress took no action in response to the seizure. The President relied on the following powers to allow an emergency power: (1) Commander-in-Chief, (2) the Take Care Clause, and (3) the Executive Power Clause.

Holding: The ct. declared the seizure of the steel mills unconstitutional.

Reasons: The majority says there are only two ways the President can get the power to do this: (1) thru Congress passing legislation and delegating authority to the President and (2) directly thru the Constitution, which is what the President is arguing here. Majority characterizes the presidential executive order as a law. The President has the power to veto legislation and to recommend laws, but not to make laws.

← The Commander-in-Chief clause does not give the President the power to seize private property.

← The Take Care Clause—executing is different from regulating—the one who makes the laws cannot execute the laws.

← The Executive Power Clause—President argues that he has inherent power under Article II §1, but the ct. rejects this.

← The President further argues that this has been done before, but the Ct. says past actions do not justify this violation.

Frankfuerter Concur: Do not reject traditions, but this not one of the situations which requires executive assertions of power of seizure. Congress would be delegating power under the Commerce Clause, but it did not do this here.

Douglas Concur: Until Congress includes a provision for compensation, it cannot be constitutional even if delegated power to the President. Congress is the only one who can take private property and pay compensation.

Jackson Concur: Three prong test: (1) Congress grants authority, (2) Congress and the President have concurrent authority, and (3) goes against express or implied will. The President violated (3) b/c Congress did not express or imply will.

Dissent: There is some inherent presidential power to act in a case of emergency. Looks at the aggregates of the powers and there is historical practice where this has been done.

2. Dames & Moore v. Reagan (1981)

← Iran Hostage Crisis, which was negotiated for the return of the hostages

← Statute authorized presidential power to declare national emergency

← Anyone w/ a claim against property seized must go before an arbitration committee

← Put a burden a pl. to show why the Act was unconstitutional

← Congress has let the President do this before. Congress acquiesced and used Frankfuerter’s concurrence in Youngstown b/c it was done in the past.

B. Congressional Action Affecting “Presidential Powers”

1. Delegation of Rule Making Power

a. Yakus v. U.S. (1944)

Facts: The 1942 War Time Emergency Price Control Act authorized the President appointed price administrator to issue regulations establishing maximum prices and rents to carry out the act’s declared purposes to stabilize prices and to prevent speculative unwarranted and abnormal increases in prices and rents and protect persons w/ relatively fixed and limited incomes from undue impairment of their standard of living.

Reasons: Congress can delegate certain powers but it cannot delegate policy making authority rather rule making authority. The executive branch can delegate rules to apply to the policy. Delegation is okay if the legislation has identified an intelligible principle.

(i) the objective must be stated in the law (ex: price stability)

(ii) the method of the objective must be stated (ex: price control)

(iii) the standards as to when and how to exercise power

The ct. allowed Congress to expand its power under the Commerce Clause by delegating power to the executive branch.

b. Post 1937—New Deal

(i) deferential judicial review

(ii) regulating apparatus – growth of administrative agencies

(iii) broad delegation

2. Legislative and Line Item Veto

a. INS v. Chadha (1983)

Facts: Involved a legislative veto of a adjudicatory proceeding. Congress by resolution of the House of Representatives overturned an immigration judge’s decision to allow Chadha to remain in the country. Federal law gave either house of Congress the authority to overturn an INS decision to suspend deportation. Congress is making a policy decision on when people can be deported and when a deportation can be waived.

Holding: Declared the legislative veto unconstitutional.

Reasons: The only way Congress make the law is by passing it in both houses, which is the Bicameral, and presenting it to the President, Presentment Clause. The ct. characterized the act as law making.

b. Clinton v. New York (1998)

← Line Item Veto is unconstitutional b/c striking specific allocations from the budget is repealing a law (Article I §7)

C. Foreign Affairs and War Powers

1. U.S. v. Curtiss-Wright Export Corp. (1936)

Facts: A joint resolution of Congress authorized the President to prohibit sale of arms to fighting countries.

Issue: Was the joint resolution an unconstitutional delegation of legislative powers?

Holding: The SC upheld the embargo.

Reasons: The ct. states the President is the sole organ in the nation’s external relations. The President has the power to make treaties and Congress accepts or rejects them.

2. Campbell v. Clinton (2000)

Facts: Clinton involved U.S. forces in NATO actions in Yugoslavia. Congressmen filed suit against the President for violating the War Powers Resolution.

Holding: The Congressmen lacked standing.

Silverman Concur: This is not a justiciable issue b/c the ct. cannot define war for the purpose of invoking the Constitution.

Tatel Concur: The ct. has in the past defined war. Three grounds to determine whether or not it is a political question: (1) lack of standards, (2) requires political not justiciable jdmt., and (3) lack of uniformity.

V. STATE POWER TO REGULATE

A. State Regulation When Congress’ Power is Dormant: History and Fundamental Issues

1. Early Views of the Implications of Federal Authority for State Power

➢ Dormant Commerce Clause

▪ Congress has the power to regulate channels, instrumentalities, and local or intrastate activities that substantially effect interstate commerce

▪ There is an implied limit on state’s power to regulate

▪ Congress has the authority but has not exercised it

➢ State laws are preempted by federal statutes. If there is no federal regulation, then the question concerns the dormant power of commerce by Congress.

➢ There is no textual dormant power w/in the Constitution, but rather it is an implied limitation based on: (1) historical justifications, the intent of the framers for Congress to be the sole regulators of interstate commerce, (2) the economic argument is against protectionism b/c it hurts the economy, and (3) policy of democracy, states should not branch out laws to other states.

➢ Counter Arguments against the Dormant Clause

▪ Justiciability so it should not be decided by cts. but by Congress

▪ Purely textual, not in the Constitution

B. Cases and Doctrine

1. Regulations that Burden Out of State Suppliers Seeking In State Markets: Basic Themes and Distinctions

a. Two issues pertaining to the Dormant Commerce Clause:

(i) Is the state law discriminating against out of state commerce by treating it differently then in state commerce?

(ii) Whether the state law burdens out of state interests?

b. Dormant Commerce Clause Analysis

(i) discrimination—does the statute regulate in state and out of state even handedly?

(ii) burden—how does the statute effect interstate commerce?

(iii) benefit—what are the asserted local benefits of the legislation? What are the actual local benefits?

(iv) could the local benefits have been achieved w/ a lesser burden on interstate commerce?

(v) does the statute appear to be motivated by protectionism?

▪ In general, not saying the statute as a whole in unconstitutional but it is as it applies to me

▪ If a statute is discriminatory on its face, it is presumed to be unconstitutional and the burden is on the state to prove that it is valid. If a statute is not discriminatory on its face, then the pl. using a balancing test must show that the burdens outweigh the benefits to invalidate the law.

c. Dean Milk v. Madison (1951)

Facts: A Wisconsin ordinance prohibited the sale of milk not processed at approved pasteurization plants w/in five miles of Madison’s central square. Pl. based in IL bought milk from Wis. and IL farms which it pasteurized at its two IL plants, 65 and 85 miles from Madison. Chicago public health authorities licensed and inspected these plants under the Chicago ordinance, which was patterned after national standards. Madison contended that its standards were more rigorous than Chicago’s.

Holding: The ordinance imposes undue burden on interstate commerce.

Reasons: There is discrimination, which is that the in state interest is treated differently than the out of state interest. The burden is that farms cannot sell milk in Madison unless w/in five miles of the city, which is a ban on sales. The asserted local benefit is higher standards for health reasons. The ct. rejected this argument b/c the Chicago standards were good enough. Here, there were good alternatives available, such as charging inspection fees for plants outside of Madison.

Dissent: They should not have to prove that it was the least burdensome alternative. The ct. is putting commerce above people’s health.

d. Baldwin v. G.A.F. Seelig (1935)

Facts: NY law regulated minimum milk prices and prohibited the sale in NY of milk bought outside state at lower prices.

Holding: The state could not do this.

Reasons: This is discrimination on the face of the statute. NY’s justification was that it was trying to protect its farmers from competition from out of state and to issue a steady supply of milk. The ct. rejected this b/c the statute appears to be motivated by protectionism. The asserted local benefit was to have wholesome milk. The actual local benefit is that farmers are protected against out of state competition, which is not allowed.

e. Breard v. Alexandria (1951)

← Upheld an ordinance forbidding door to door soliciting.

← The ordinance does not discriminate b/w in state and out of state solicitors.

← The pls. argue that in state solicitors have stores there and the ordinance restricts out of state solicitors ability to sell so they lose money.

← The asserted local benefit is protecting privacy, which is also the actual benefit.

← Ct. said there is not a lesser burdensome way to preserve privacy.

← This was no protectionism b/c it was a total ban on sales.

← The commerce clause is concerned w/ protecting economic interests, not social interests as in this case.

f. Hunt v. Washington State Apple Advertising (1977)

Facts: NC barred from the state closed apple containers bearing any grade except USDA or the “not graded” mark. Wash. Wants to use its own grading system b/c it has higher standards than the rest of the industry.

Holding: The regulation violated the commerce clause.

Reasons: The regulation does not discriminate on its face b/c it treats everyone equally. The burden is that it inhibits Wash. sales. The asserted local benefits are quality regulation and protecting the local health of consumers. This is not the actual benefit b/c having a “not graded” mark does not tell the consumer anything. The state has a protectionist motivation b/c it protects NC growers from competition w/ out of state growers. An available alternative is to use a state grade w/ the USDA grade.

g. Subsidies and linkages

(i) New Energy Co. of Indiana v. Limbach (1988)

← Statute discriminates against out of state producers by placing a tax credit to users of a gasoline substitute.

← There’s discrimination on its face against non-Ohio producers based on where the product originates, which is not allowed.

(ii) West Lynn Creamery v. Healy (1994)

Facts: MA taxed all sales of milk by wholesalers and a subsidy was given to in state producers. The money from the tax goes to a fund to repay in state producers.

Holding: The ct. invalidated the statute.

Reasons: The subsidy favors in state producers. An alternative would have been to put the money in a general fund. The ct. is protecting the political process which in turn will allow a fair open market.

2. Regulation of Out Going Trade and Other Commerce: Burdens on Out of State Interest Seeding In State Resources

a. HP Hood & Sons v. Du Mond (1949)

Facts: P was a Boston milk distributor who obtained his supply of milk from producers in NY. He had established three milk receiving and processing depots in NY under licenses from that state. When he applied for a license to open a fourth depot, he was denied. The basis for the denial was that the issuance would tend to create destructive competition in an area already adequately served. In his denial, the milk commissioner stated that the fourth depot would draw milk supplies away from other existing processing plants and would tend to deprive the local market of an adequate milk supply.

Issue: May a state constitutionally enact restrictions with the purpose and effect of curtailing the volume of interstate commerce for the benefit of local economic interest?

Holding: No, restrictions, imposed for the avowed purpose, and with the practical effect of curtailing the volume of interstate commerce to aid local economic interests will not be sustained.

Reasons: The principle that permits a state to require a license is the state’s police power to protect health, safety, and welfare. License here, though, was a problem b/c it was unconstitutional as applied. (Not saying that a statute requiring licenses is invalid). The commissioner’s application of the statute was protectionist. Said that giving the Pl. another depot would wrongfully compete w/ depots already there. The commissioner also felt that a milk shortage would come about b/c more milk would be going out of state. The founders felt that “our system, fostered by the commerce clause, is that every farmer and every craftsperson shall be encouraged to produce by the certainty of free access to every market in the nation, that no home embargos will withhold exports, and no state will, by customs, duties, or regulations, exclude them.” The statute cannot stand.

Dissent: The court should have applied a balancing test instead of declaring it discriminatory.

b. Pike v. Bruce Church (1970)

Facts: Arizona required that all AZ cantaloupes grown in AZ be

packed in AZ. The regulation is applied to prevent a CA company from shipping uncrated cantaloupes from its AZ ranch to its CA packing plant. The purpose of the requirement is to increase the demand for AZ cantaloupes which are of high quality.

Holding The AZ statute was invalid under the dormant commerce clause.

Reasons: The state’s interest in enhancing the reputation of AZ cantaloupes is legitimate. However, this interest is clearly outweighed by the national interest in enencumbered commerce. The court has viewed w/ particular suspicion state statutes requiring business operations to be performed in the home state that could be more efficiently performed elsewhere. Even where the state is pursuing a clearly legitimate interest, this particular burden on commerce has been declared illegal per se.

Rule: A state statute violates the dormant commerce clause, if it places a clearly excessive burden on interstate commerce, balanced against the local benefits.

Should we put in the sources of the pike test?

3. Regulation to Protect the Environment and Preserve Natural Resources for Interstate Use

a. Philadelphia v. New Jersey (1978)

Facts: State regulated out of state garbage in a NJ landfill. Prohibited the

importing of most solid or liquid waste into the state. The law was enacted in response to the use of NJ landfills for disposal of waste from cities in PA and NY. Several NJ operators and out of state users landfill sites (including Philadelphia) sued to have the statute invalidated on the ground that discriminated against interstate commerce.

Holding: Garbage is an article of commerce. This is not w/in the power of state b/c NJ treated out of state waste differently than in state waste. Garbage disposal is a national problem. There is no basis for treating states differently b/c the environment will be affected the same regardless. This would have been permissible if the out of state waste was distinguishable or on a health and safety basis so that police power could have been used.

b. Maine v. Taylor (1986)

Facts: State prohibited selling baitfish that will be introduced in Maine waters.

Holding: This is discriminatory on its face because fish cannot be imported from outside of the state. There has to be an extraordinary justification which the ct finds there is here.

Reasons: Maine’s justification is the difference b/w the in state and out of state bait fish (the quality of fish and the parasites could cause harm to the baitfish). Distinguished from Philadelphia v. New Jersey b/c the trash was not different and it was purely geographical barrier in place.

c. Minnesota v. Clover Leaf Creamery Co. (1981)

Facts: A state law was enacted that banned non-returnable milk containers made of plastic, but permitted other non-returnable milk containers; largely cartons made of pulp wood. Though the plastic originated out of state and the pulp wood originated in state.

Holding: The ct. upheld the statute.

Reasons: The burden is that the market is closed to manufacturers of plastic milk containers. The benefit is an improved solid waste management. The ct. upheld the statute b/c it was a valid solid waste problem. There is no burden on interstate versus intrastate commerce. There is no approach less burdensome. The burdens were not so severe as to outweigh the benefits b/c no excessive burden of interstate commerce, rather on plastic distributors which are in state and out of state.

d. C&A Carbone v. Clarkstown (1994)

Facts: Town of Clarkstown enacted a flow control ordinance. The practical effect of the ordinance was to require that any trash generated in the town be taken to a particular trash transfer station, which charged a tonnage fee for all trash it processed. The town had been required by the state to set up the waste transfer station. Instead of building the station itself, the town induced a local entrepreneur to build it and promised him a certain volume of trash processed. The town required residents to take their trash there to meet the guaranteed volume.

Holding: The ordinance violates the commerce clause

Reasons: It is discrimination b/c it says only in state producers processors can get the business.

Concur: It has less to do w/ discrimination rather than the burden it places on interstate commerce that everyone is kept out is not discriminatory so it weighs the burdens and benefits. If the local citizens wants the facility, then they have to pay for it; but cannot finance it by discriminating against interstate commerce.

Dissent: The commerce clause should not apply to this ordinance b/c trash collection a traditional gov. function.

4. Regulation of Transportation

a. Southern Pacific Co. v. Arizona (1945)

Facts: Arizona had a statute that limited the length of trains to 70 freight cars. Southern Pacific argues that its trains are longer and would have to break up the trains to travel thru Arizona, which would cost them extra money. (Trains are instrumentalities of interstate commerce.)

Holding: The statute was not upheld.

Reasons: The statute was not discriminatory on its face. The burden is efficiency and excess cost. The asserted benefits are safety measures (which generally is w/in the prerogative of states). The ct. found there would be more trains moving thru Arizona b/c they will have to break up; therefore, it does not uphold the safety rationale. Therefore, the excessive burden placed on the pl. outweighs the benefits of the statute.

b. Kassel v. Consolidated Freightways Corp. (1981)

Facts: An Iowa statute prohibited the use of certain large trucks w/in the state. The statute’s asserted purpose was to protect highway safety by limiting the size of trucks which are more likely to jack knife. The def. is a large common carrier under a certificate of public convenience issued by the ICC. The def. uses doubles extensively, which are expressly prohibited by the statute.

Holding: The ct. upheld the lower ct.’s finding that the state law impermissibly burdened interstate commerce.

Reasons: The burden is in the increase cost of doing business, trucking company would have to use smaller trucks so more trucks would be going thru the state. The asserted benefit is highway safety; this is not actually a benefit b/c there are more trucks on the road and the shorter trucks are not safer than the longer trucks. The semis are more stable, back up more easily, and are likely to rear end. The doubles are more maneuverable, less sensitive to wind, but are more likely to jack knife. Border cities exemption—cities on the borders of other states use these trucks. The actual benefit is that the state does not want these trucks on its highways, which is protectionist.

Concur: Forget about balancing b/c the law is clearly to protect the state highways from truck traffic.

Dissent: Other states have limits, why is Iowa different? There has been a presumption of constitutionality that state safety measures. The ct. is making policy for states as to safety, which it should not do.

C. The State as a Market Participant

1. Reeves, Inc. v. Stake (1980)

Facts: B/c of a 1919 cement shortage South Dakota built a cement plant which sold to in and out of state buyers. When there was a shortage the pl. challenged the preferential treatment the state plant gave to in state buyers.

Issue: Was the preferential treatment given to South Dakota buyers an impermissible burden on interstate commerce?

Holding: The ct. upheld under the market participant doctrine. South Dakota was a market participant, not a market regulator.

Reasons: The state can discriminate against interstate commerce when it is acting as a state.

Dissent: The state cannot operate as a private business b/c it will always have political and economic questions. It can be influenced by issues that would not influence a private business.

2. South Central Timber Development, Inc. v. Wunnicke (1984)

Facts: Alaska was a market participant in the timber selling market. The state had a requirement that timber be sawed into cants no less than nine inches before exporting. Alaska claimed that it was processing timber but it was actually selling timber.

Holding: The market participant concept did not free Alaska from commerce clause invalidation of the state’s contractual requirement.

Reasons: Timber is a natural resource which distinguishes it from other cases. They were regulating the private business thru private contracts, not thru legislation. Alaska was using its leverage in the market to exert a regulatory effect in the processing market. Must ask if the state is acting as a business participant or a regulator. There was an in state processing requirement, but the state was not in the market so no exception. The benefits of an in state processing plant, such as taxes, money, and jobs is protectionism which the dormant commerce clause prevents.

D. Interstate Privileges and Immunities Clause

▪ This clause was intended to create one national economy and culture. It prohibits discrimination against individuals based on state residency.

▪ The commerce clause grants power to Congress to regulate individual businesses. The dormant commerce clause is a positive grant of power to Congress and states don’t have the power to discriminate against or burden interstate commerce. The market participant doctrine is an exception to the dormant commerce clause.

▪ Fundamental rts. for privileges and immunities and different from fundamental rts. for due process. (ex: moving to another state cannot be prohibited, voting can have requirements, access to the cts. cannot be prohibited)

1. Balwin v. Fish & Gaming Commission of Montana (1978)

Facts: Montana required a substantially higher licensing fee for elk hunting for out of state citizens.

Holding: This did not violate the privileges and immunities clause.

Reasons: The people were hunting elk as a sport which is characterized as a nonessential activity, not a fundamental rt. protected by the privileges and immunities clause.

Dissent: Look at the justification for the discrimination, not whether discrimination is a fundamental rt.

2. United Building & Construction Trades Council v. Mayor of Camden (1984)

Facts: A Camden ordinance required 40% of employees on city construction projects to be Camden residents.

Holding: The ordinance was unconstitutional.

Reasons: The privileges and immunities clause applies b/c employment is a fundamental rt. Cities are subject to the same rules as the states.

3. Privileges and Immunities Analysis

a. Is it a fundamental rt. covered by the clause?

b. Is there a substantial justification for the discrimination?

c. Is there a substantial relationship b/w the reason for discrimination and the discrimination itself?

4. Differences B/w the Privileges and Immunities Clause and the Dormant Commerce Clause

a. Privileges and immunities applies only to discrimination against out of state residents. The dormant commerce clause applies to discrimination and the burden on interstate commerce.

b. Two exception to the dormant commerce clause: (1) Congress authorizes the discrimination and (2) market participant. These exception do not apply to privileges and immunities.

c. Aliens and corporations cannot sue under privileges and immunities, but can under the dormant commerce clause.

VI. SUBSTANTIVE PROTECTION OF ECONOMIC INTERESTS

A. Origins of Substantive Due Process

▪ The Fifth Amendment applies to the federal gov. and the Fourteenth Amendment applies to states

▪ No person should be deprived of life, liberty, or property w/o due process

▪ Economic due process—gov. was limited on how it could regulate an individual’s ability to enter into a contract

▪ Personal due process—states may not regulate privacy rts., such as reproduction

▪ Primary argument is that due process is limited to procedure and there is no real foundation in the Constitution

▪ Pre 1937, federal regulations were found to violate the commerce clause and the Fifth Amendment

1. Fourteenth Amendment

▪ Required that southern states ratify the Constitution to get back into the Union

▪ Enacted to overrule “Black Codes,” which were laws discriminating against blacks

▪ Three components: (1) privileges and immunities clause, (2) equal protection clause, and (3) due process clause

▪ It was written broadly

a. Slaughterhouse Cases (1873)

Facts: LA passed a law giving a monopoly to New Orleans slaughterhouses to a particular company. Butchers not included, claimed the statute deprived them of the opportunity to practice their trade violating due process and privileges and immunities.

Holding: The ct. upheld the law.

Reasons: Privileges and immunities clause applies to citizens of the U.S., not citizens of the states so La. can enact this law. No different from Privileges and Immunities in Article IV, which protects against discrimination against out of staters. The ct. interprets the Thirteenth Amendment as only applying to slavery and the Fourteenth as not applying to in staters.

B. The Lochner Era

1. The Road to Lochner

a. Allgeyer v. Louisiana (1897)

Facts: La. statute prohibited anyone from obtaining insurance on La. property from any company not licensed in La.

Holding: This violated freedom of contract and the rt. to earn a livelihood under substantive due process of the Fourteenth Amendment.

Reasons: Today it could be discussed under the dormant commerce clause, but then insurance wasn’t considered commerce. It is not privileges and immunities b/c it’s an in state resident. Freedom of contract is protected by the due process clause.

b. Lochner v. New York (1905)

Facts: A New York statute forbade employment in a bakery for more than 60 hours a week or 10 hours a day.

Issue: Is this a police power of the state?

Holding: No, this interferes w/ the rt. to contract.

Reasons: There is no public issue, baking is not an unhealthy industry, this is a private matter and the gov. should not interfere. To justify this statute the state must show a reasonable basis and that health is really an issue. The state does not have the power to regulate private relationships under the due process clause.

Dissent: Must look to see whether there is a rational basis.

C. The Abandonment of Lochner

1. Nebbia v. New York (1934)

← In order to pass muster under due process, the law must not be arbitrary or unreasonable and there must be a rational relationship b/w what the law accomplishes and the means used

2. Muller v. Oregon (1908)

← The ct. allowed the state to regulate the working hours of women

← The ct. distinguished b/w women and men, b/c women presented a special problem the cts. needed to take care of

3. West Coast Hotel v. Parrish (1937)

← Ct. overruled Atkins, the Constitution doesn’t guarantee the freedom of contract

← The gov. can regulate economic matters provided the laws are reasonable and not arbitrary and there is a reasonable connection b/w means and ends

4. Duke Power Co. v. Carolina Environmental Study Group (1978)

← Modern statement of the rule of economic due process. If you have a statute that governs economic or social issues, the presumption is constitutionality

← The burden of proof is now on the challenger to prove that the law is arbitrary and irrational

5. United States v. Carolene Products Co. (1938)

← Footnote 4—when rational basis is not to be applied to legislation

← Three effects of laws in which there should be a higher standard: (1) on its face expresses prohibition of a fundamental rts. issue; economic ability is not a fundamental rt., (2) when the law affects the political process specifically voting; whether a fair political process was used comes into question, and (3) when the law affects racial or religious minority

D. Other Limits on Economic Legislation: The Prohibition Against “Taking” “Private Property” Without Just Compensation

▪ Area in which there is still some protection of economic interest

▪ Under the Fifth Amendment no takings for public purpose w/o just compensation

▪ The gov. has the power of imminent domain as part of police power. Imminent domain is the power to assert sovereignty over land w/in its jur. to take private property for gov. use.

▪ The Fifth Amendment limits imminent domain power.

▪ Under the takings clause, the gov. is limited to take property for public purpose. Cannot take private property for a private purpose, but can use private property for gov. purpose

▪ Public nuisance—the gov. can regulate property being used in a way that harms the public w/o compensation to its owners

1. Kinds of takings:

a. confiscation—condemnation (ex: out rt. purchase, gov. permanently occupies property [damn was built and floods your property])

b. regulatory—no physical confiscation, but the effect is to deprive owner of all viable economic use of the property. Simply reducing the value of property is not taking, there has to be no equally viable value to the property for it to be taking.

2. Analysis for “Is there a Taking?”

a. Is there a taking? Physical confiscation or regulatory.

b. Is it for public use?

c. Is just compensation paid? Just compensation is the market value of the property at the time of the taking.

3. Purpose of Taking

a. Berman v. Parker (1954)

Facts: District of Columbia Redevelopment Act authorized an agency to acquire and assemble by imminent domain or otherwise real property to redevelop poor neighborhoods. The agency took by imminent domain a department store, which was well maintained but in a bad area.

Holding: This was a constitutional taking.

Reasons: The store owners claim there store wasn’t blighted and the gov. wasn’t taking it for public use b/c the land is being sold to private land owners. The ct. rejected this b/c police power to protect the area and the general welfare of the citizens.

Rational Basis Test—deferential to legislature to determine public use. As long as it is not an irrational suggestion it will be determined that it is for public use. The purpose here is the aesthetics of the community (the beauty of the neighborhood).

b. Hawaii Housing Authority v. Midkiff (1984)

Facts: Hawaii was concerned that too much of its land was owned by relatively few people. It used imminent domain to take property w/ just compensation and sell it to a larger number of people.

Issue: Can the gov. constitutionally take land from private citizens to sell to other private citizens?

Holding: This was a constitutional taking for public use.

Reasons: The public purpose was to get the land into fair market and to spread ownership to different individuals. The ct. used the rationally related to a conceivable public purpose test.

4. When is Regulation of Property Tantamount to a Taking

a. Pennsylvania Coal Co. v. Mahon (1922)

← A regulation prohibiting mining of coal was a taking b/c it overruled a private contract that was entered into

← This was the height of the Lochner era when the ct. used economic process to strike down regulations on the economy

b. Keystone Bituminous Coal Association v. Debenedictis (1987)

← Holding: The ct. upheld Pennsylvania law that limited coal mining to forbid mining that causes damage to structures.

← Reasons: Similar facts to Pennsylvania Coal, however no private contract was involved. This was not a complete confiscation like Pennsylvania Coal b/c it did not restrict all coal mining. Keystone’s regulation was for the public welfare.

c. Penn Central Transportation Co. v. New York City(1978)

Facts: Pursuant to a New York landmark law a commission designated pl.’s terminal as a historical landmark and denied pl.’s request to construct a 55 ft. story office building on the terminal. Pl. argues that the law as applied to its terminal is an unconstitutional taking w/o compensation. Pl. argued that it restricted its air rts.

Holding: This is not a taking b/c the building restrictions are substantially related to the promotion of the general welfare.

Reasons: The ct. said the pl. still have Grand Central Station and as to the air rts. it wasn’t a taking b/c the ct. looks at the property as a whole and not at it’s separate parts. Penn Central had two options: (1) it could build somewhere else, and (2) it could build something else. This was not a taking b/c it did not take away all economically viable use of the property, nor was it physical occupation of the property. It did not interfere w/ present use of the terminal to which they had a rt. due to investment backed expectations.

d. Lucas v. South Carolina Coastal Council (1992)

Facts: Pl. had purchased lots on a beach, but before he could build an Act prohibited building of houses in that area. Pl. wants compensation for his denial.

Holding: This was an uncompensated taking, and was therefore unconstitutional.

Reasons: Regulatory actions that are compensable are: (1) physical invasion of the property and (2) take away all economically viable use of the property. This case involves real property. The state can regulate the use of real property if it is a nuisance which limits the economic use for common uses (traditions). This rule limits what the state can do to protect public interest (ex: erosion of the beach), if it isn’t protected by traditional uses law. Do not have to balance public interest here b/c it is a taking so there must be compensation. The state’s common law is what counts here.

VII. PROTECTION OF INDIVIDUAL RIGHTS: DUE PROCESS, THE BILL OF RIGHTS, AND NON-TEXTUAL CONSTITUTIONAL RIGHTS

A. Nature and Scope of the Fourteenth Amendment Due Process: Applicability of the Bill of Rights to the States

▪ The cts. decided that the due process clause of the Fourteenth Amendment incorporated the Bill of Rights so it applies to the states

B. The Right of Privacy

▪ Strict scrutiny is used to analyze statutes

▪ The Ninth Amendment says that there are other rts. not listed in the Bill of Rights

1. Skinner v. Oklahoma (1942)

← This is the first case in a line of privacy cases.

← A law of sterilization of certain convicted criminals violates the equal protection clause.

← The ct. said that procreation is a fundamental rt.

← Stone Concur: The state cannot do this to anyone b/c it takes away a fundamental liberty.

2. Griswold v. Connecticut (1965)

Facts: Two people from Planned Parenthood were arrested for giving advice to married persons regarding contraception. The statute prohibited the use of contraceptives and the distribution of contraceptives.

Issue: The gov. is intruding on the privacy of married persons.

Holding: The statute violates due process.

Reasons: The rt. of privacy is a fundamental rt. that is not actually in the Constitution. The zone of privacy is created by the First, Third, Fourth, and Fifth Amendments. Griswold is asserting the rts. of married persons to use contraception. The Ninth Amendment provides for other rts. not enumerated in the Constitution. The ct. uses Skinner, Pierce, and Meyers to determine the state cannot interfere in private family decisions. This case broadens Skinner to the rt. not to procreate.

Harlan Concur: Question of due process protected from state interference.

3. Eisenstadt v. Baird (1972)

Facts: A statute made it a felony to distribute contraceptives to unmarried persons.

Holding: This statute is unconstitutional.

Reasons: Have to extend the protection of married people in Griswold to unmarried persons. The key factor is not marriage, but individual private rts. based on autonomy. Equal protection comes into play b/c there is a fundamental rt. involved.

4. Roe v. Wade (1973)

Facts: Roe an unmarried pregnant woman challenged the TX abortion laws, which made abortion illegal except for the purpose of saving the mother’s life.

Holding: The statute unconstitutionally interferes w/ the rt. of privacy.

Reasons: Ct. decides that there is no constitutional protection for the fetus so the analysis is the rt. of the mother vis-à-vis the state. The ct. identifies state interest in regulating abortion: (1) protecting potential life, (2) protecting maternal health, and (3) medical standards. The woman’s interest in not regulating abortion is the freedom to decide whether or not to terminate her pregnancy based on the rt. to bear or beget a child. The ct. said there is a fundamental rt. involved so uses strict scrutiny to determine at what point during the pregnancy the state interest becomes compelling enough to allow regulation. The state has a legitimate interest to protect maternal health. The state’s interest is compelling when the fetus is viable, and that is the point when the baby is able to live outside the mother’s body. After viability the state can ban abortion w/ the exception for a pregnancy that threatens the life or health of the mother.

Dissent: The ct. created a new constitutional rt. There is a liberty interest, but a rational basis test should be applied. B/c of the term break down it looks like a statute not a case.

5. The Court Reaffirms the Central Holding of Roe

a. Planned Parenthood of Southeastern Pennsylvania v. Casey (1992)

Facts: Pennsylvania Abortion Control Act required the following for a woman to get an abortion: (1) informed consent provision—the woman had to receive info. about the procedure and had to wait 24 hours, (2) minors had to get parental consent, but it contained a judicial by pass provision, and (3) married women had to inform husband’s of their intent.

Holding: The statute was constitutional except for the spousal consent provision.

Reasons: The state cannot place an undue burden on abortion. The state can make a woman wait 24 hours b/c it has an interest in childbirth so it can promote the value of childbirth over abortion. The state can require a minor to get parental consent. The state cannot require a woman to get consent from her husband b/c it may cause an undue burden (ex: spousal abuse).

6. The Right to Die

a. Cruzan v. Director, Missouri Dept. of Health (1990)

Facts: Pl. had been in a persistent vegetative condition for seven yrs., due to a car accident. Had motor reflexes, but no cognitive function. Could be kept alive thru life support for thirty more yrs. Her parents sought to discontinue the tubal feeding when it became obvious that she had no chance of regaining cognitive facilities. Pl. had told friends that she would not want to live as a vegetable or in a limited capacity. A MO statute required, in the absence of a living will, that the patient’s statements of intent be clear and convincing evidence.

Issue: Was the clear and convincing standard in the absence of a living will an unconstitutional infringement of the rt. to die?

Holding: The evidentiary standard was not an unconstitutional infringement on the patient’s fundamental rts.

Reasons: A competent person would have this rt. to refuse treatment. Must balance pl.’s liberty interest against the relevant state interest. There is a high state interest in the preservation of human life. MO can legitimately seek to enforce this w/ a heightened scrutiny requirement. This is the safest route b/c:

(1) not all incompetents have someone to make this decision for them

(2) family members will often make the wrong decisions

(3) state can have a judiciary hearing to make the determination

(4) state does not have to make value jdmts. about the quality of life—better to err on the side of keeping people alive, considering the factors such as medical advances and changes in the law.

O’Connor Concur: Narrow holding. Incursions into the body are repugnant under due process. Forcing medical treatment on someone is repugnant to liberty. Also, letting someone else make the decision is permissible under the Constitution.

Scalia Concur: A legislative determination. Common law would not have allowed this and there is no constitutional basis.

Brennan Dissent: This is a fundamental rt. The state’s interest is very general and the pl.’s particular and intense. MO should only impose procedural requirements to make an adequate determination of the person’s intent b/c living wills are seldom done, and family and friends may have a better idea of the intent. This is a compelling interest test. The state’s only interest is finding the patient’s true intent.

7. Is there a Constitutional Right to Physician-Assisted Suicide?

a. Washington v. Glucksberg (1997)

Facts: Respondents seek a declaration that Wash.’s statute is, on its face, unconstitutional; they asserted a liberty interest protected by the Fourteenth Amendment which extends to a personal choice by a mentally competent terminally ill adult to engage in physician-assisted suicide. The physicians claim that the liberty interest they assert is consistent w/ the ct.’s substantive due process progeny (Cruzen and Casey), if not w/ the nation’s practice. They assert that the line of cases establishes a liberty of “basic and intimate exercises of personal autonomy”

Issue: Whether Wash.’s prohibition against causing or aiding a suicide offends the Fourteenth Amendment to the U.S. Constitution. Whether the protections of the Due Process Clause includes a rt. to commit suicide w/ another’s assistance?

Holding: It does not. The asserted rt. to assistance in committing suicide is not a fundamental liberty interest protected by the Due Process Clause. The challenged statute does not violate the Fourteenth Amendment, either on its face or as applied to competent terminally ill adults who wish to hasten their deaths by obtaining medication prescribed by their doctors.

Reasons: The laws of the U.S. have consistently condemned, and continue to prohibit, assisting suicide. Due Process guarantees more than fair process, and the liberty it protects more than the absence of physical restraint.

Wash.’s state interest: (1) Wash. has an unqualified interest in the preservation of human life. Cruzan. (2) Wash. has an interest in treating suicide, a serious public health problem, especially among persons in otherwise vulnerable groups. (3) Wash. has an interest in protecting the integrity and ethics of the medical profession. Physician-assisted suicide could undermine the trust that is essential to the doctor-patient relationship (4) Wash. has an interest in protecting vulnerable groups, which extends beyond protecting them from coercion to protecting them from prejudices, negative and inaccurate stereotypes, and societal indifference. (5) Wash. has an interest in preventing erosion of societal mores. The state may fear that permitting assisted suicide will start it down the path to voluntary and perhaps even involuntary euthanasia.

Rational basis: The state’s interests are unquestionably imp. and legitimate, and Wash.’s ban on assisted suicide is at least reasonably related to their promotion and protection.

O’Connor Concur: She sees a class of patients where the statute may be unconstitutional. She narrows this class to competent terminally ill patients who are suffering and the statute must create a barrier to obtain the medication. She characterizes the issue, not as the rt. to suicide, but as the rt. to be free from suffering that can be alleviated thru medication. The democratic process can be trusted b/c this issue affects everyone. There is no special interest group that could weight the democratic process. There is no reason to put this issue in the hands of the ct.

b. Vacco v. Quill (1997)

Facts: An equal protection claim was brought. The state allowed w/drawal of life support but not physician-assisted suicide. The argument was that the classification treats similarly situated people differently. The Ct. rejected this.

Reasons: An equal protection case must (1) define the class—ct. holds that dying people are not a suspect class; this will involve the entire population at some point and (2) determine whether it is a fundamental rt. being burdened—the rt. to die is not a fundamental rt. so the statute does not have to undergo strict scrutiny, just rational basis.

Ends/means analysis: The ends are the state interest. The means are the classification itself. Is the classification reasonably related to the state’s interest. (Strict scrutiny requires asking whether the classification is necessarily related.) Ct. discussed two aspects or legal issues that justified the decision: (1) intent—if you w/draw life support, you are not necessarily intending the death as is the case w/ assisted suicide and (2) causation—if you w/draw life support, it is not the w/drawal that causes the patient to die, it is the underlying disease; if you give someone a lethal dose of drugs in an assisted suicide, it is this that is killing the patient.

C. Procedural Due Process in Non-Criminal Cases

1. Deprivation of “Liberty” and “Property” Interests

▪ Issues being raised by Due Process:

(1) Is there a deprivation of life, liberty, or property?

a. What constitutes liberty/property?

b. Is there an entitlement?

(2) Is there an adequate procedure to protect from deprivation?

--notice and opportunity to be heard

--when do you need to have a hearing?

▪ In order to have due process, there must be a deprivation of life, liberty, or property by the state

▪ State law determines whether there is a property interest. There is an expectation by the individual that he will continue to have this rt.

▪ Are these property interests?

(1) drivers license—this is a property rt. b/c it is an expectation

(2) welfare benefits—these are property rts. w/ a pretermination hearing requirement b/c this is their sole source of income

(3) reputation—alone is not protected as a property rt.

(4) being transferred to a state medical hospital—this is a property rt. b/c it is involuntary

2. What Kind of Hearing and When?

a. Goldberg v. Kelly (1970)

← Hearing must be prior to termination of welfare benefits and must be a full evidentiary hearing

b. Matthews v. Eldridge (1976)

← Social Security benefits are a property interest, but termination does not require a hearing.

← The ct. distinguished Goldberg, b/c welfare benefits were their total income; unlike here where these benefits are based on disability, not need

← Ct. believes there is a property interest, but what kind of hearing do you get and when?

← The ct. looked at:

(1) interests of an individual

(2) cost benefit analysis

--does not need an evidentiary hearing b/c it can be heard in a less formal setting for Social Security benefits due to the type of evidence

(3) gov.’s burden, i.e. costs to provide a full evidentiary hearing

c. Ingraham v. Wright (1977)

← This case applies the Matthews test to corporal punishment in schools.

← Interests of the individual—there’s a liberty interest, which is not violated here b/c there is no rt. for a child not to be spanked; and there are other remedies such as a tort claim (if beating is severe)

← At common law adults have the rt. to spank children.

← The cost benefit analysis—the risk of an erroneous decision

← Corporal punishment does not require a pre-deprivation hearing

← Dissent: the legal remedy is inadequate to protect against erroneous infliction of punishment

VIII. EQUAL PROTECTION

▪ In old Const, 3 provisions that allowed slavery. Could not render it unconstitutional:

▪ 13th designed to strike out those provisions.

▪ In response to 13th and emancipation, southern states did Black Codes—put in special status. Diff criminal laws, laws that prohibited former slaves from entering into K.

▪ The Black Codes were aimed at former slaves and reduced them to the status of non-citizens. Congress then enacted the 14th Amendment to (1) overrule the Dred Scott case and (2) to overturn the Black Codes.

▪ The Slaughter House cases read the 14th to apply only to former slaves and the Privileges and Immunities clause was basically eliminated. Result was that no one could challenge discriminatory laws unless based on race. B/c PI clause eliminated, started using DP to address substantive as well as procedures.

▪ The real use of the Equal Protection clause wasn’t until 1954 in Brown v. Board of Education. After Brown it was expanded to other areas like race and religion.

▪ Equal Protection only applies to states. However, the 5th Amendment contains an equal protection clause which was interpreted to treat people equally. Bolling v Sharpe—5th DP contains an EP component. Wash DC under Congress so 14th not apply. In order to rule that Congress’ policy of racial segregation violated Const, SC said DP includes EP.

▪ Laws discriminate in some way. Laws are about drawing lines. The question for equal protection is when is that discrimination unlawful? This depends on whether discrimination is supported by a sufficient government interest which depends on the type of discrimination.

▪ Three levels of scrutiny:

• Rational Basis Test—lowest level of scrutiny

o Pl. has the burden of proof

o Rational relationship b/w means (what the statute does) and the ends (what it is trying to achieve)

o Reasonably related to a legitimate state interest

o Challenger has the burden of proof to show the law was irrational or arbitrary

o Assumption of constitutionality

o Any rational basis

• Strict scrutiny

o Suspect class—when the classification is based on race or alienage that warrants higher scrutiny.

o Government has the burden of proof to show that discrimination is necessary to achieve a compelling state interest

o When the law affects a fundamental right such as free speech and privacy.

o Rationale:

▪ Something offender can’t change—race, etc.

▪ Idea (Carolene Prod) that a group may not be able to protect itself in the pol process (minority, discrimination in past so no pol pwr). Court must look more closely at legislation.

• Intermediate scrutiny

o Classification based on gender

o Government has the burden of proof

o Requires a substantial relationship to an important state interest

▪ What is distinction b/w necessary AND substantial OR compelling AND important?

▪ We are looking at “rational basis” area where no fundamental right—Slaughter-House case. Not suspect classification.

▪ SH—14th only intended to apply on discrimination based on race. Have leg cause of action based on other kinds of discrimination.

A. The Traditional Approach

▪ There is not a suspect classification involved in these cases

▪ A statute comes w/ a presumption of constitutionality

▪ Equal Protection Analysis:

1. What is the classification? How is the statute differentiating b/w groups?

2. What level of scrutiny is applied?

3. Does the statute satisfy the test?

--What is the purpose of the statute? (state interest)

(i) Compelling/necessary—suspect class or fundamental rt

(ii) Important/substantial—gender

(iii) Legitimate/reasonable—social and economic

--Means/ ends test

1. Railway Express Agency v. New York (1949)

Facts—Traffic regulations of NY city says “No person shall operate on any street an advertising vehicle. Exception for business notices upon business delivery vehicles, so long as such vehicles are engaged in the usual business of the owner and not used merely or mainly for advertising. Appellant operates about 1900 trucks in NY city and sells the space on the exterior sides of these trucks for advertising for the most part unconnected w/ its own business. It was convicted.

Issue—Does a regulation which prohibits general advertisements on vehicles while allowing advertisement of products sold by vehicle owners, violate EP?

Holding—No

Reasoning— Regulation challenged b/c it is said that the appellant’s truck advertisement would not cause any greater a distraction to pedestrians and other vehicles that if the advertisement was for his own personal business. But the regulation allows the latter to do what the former can’t do.

▪ Classification—Those who advertise on their own vehicles and people who sell space on vehicles to advertise. Those who sell space are no longer allowed to.

▪ Rational basis scrutiny applied.

▪ Purpose is to promote traffic safety

▪ Reasonable relationship b/w traffic safety and the statute

o Limits/reduces the ads on trucks

o One statute doesn’t have to solve the whole problem

o Burden—ad company would have to show that more trucks do not cause more dangerous conditions (they are not the source of the problem)

▪ If all ads were banned it would be a DP concern and would still use the rational basis test.

▪ Could be commerce clause concern if you couldn’t drive through a state w/ an advertisement on your vehicle.

▪ City’s reasons included the distraction, safety of the public in use of the streets.

▪ SC said they will not trespass on such a local and specialized municipal problem.

o SC says that the local authorities may well have concluded that those who advertised their own product on their trucks do not present the same traffic problem in view of the nature or extent of the advertising which they use.

▪ TEST—The classification must have relation to the purpose AND cannot contain the kind of discrimination a/g which the EP Clause affords protection.

o Look at the EP clause practically. Experience.

▪ NY city’s purpose is to eliminate this distraction from traffic, but does not regulate huge ads (Times Square)—immaterial. It is no requirement of EP that all evils of the same genus (ad) be eliminated or none at all.

2. New Orleans v. Dukes (1978)

Facts: A NO ordinance banned all pushcart food vendors in the French Quarter, except those who had continuously operated there for 8 or more years. 2 vendors had done so for 20 or more and qualified under the “grandfather clause”. A/ee, who had operated for only 2 yrs challenged the ordinance.

Issue: Does this violate equal protection?

Holding: No this is not a violation.

Reasons: Pl would have to show there is a rational reason that the legislature was arbitrary.

▪ Classification—Vendors who are new and those who have been working for at least 8 years.

▪ Rational basis test (a very deferential test)

▪ Purpose is to preserve the appearance in the French Quarter

▪ How does it further this purpose? The older vendors had substantial reliance interest and the older vendors were part of the charm of the French Quarter.

3. New York City Transit Authority v. Beazer (1979)

Facts: City excluded all methodone users from any Transit Authority employment. Fed DC said that total exclusion will inevitably discriminate b/w e/ees or applicants equally to achieve full recovery. Also TA purpose is supported by the legitimate inference that as long as a treatment program (or other drug use continues), a degree of uncertainty exists. Felt TA rule was broader than necessary to exclude those users who are not actually qualified to work for TA.

Dissent--This was an overinclusive law—there may be some people in the classification to whom this does not apply. It doesn’t matter where they draw the line as long as there is a rational basis for it.

▪ Classification: Those in a methadone-maintenance program (former heroine addicts)

▪ Rational basis test

▪ Purpose is safety and efficiency

▪ Related b/c they could take drugs again

4. US Department of Agriculture v. Moreno (1973)

Facts: SC applied “traditional EP” and held that a provision of the Food Stamp Act, excluding any household containing an individual who is unrelated to any other member of the household—was w/o any rational basis.

Reasons:

▪ Classification—excluded households in which members were not related

▪ Rational basis test

▪ Purpose is to raise levels of nutrition among low-income households (not the real purpose)

▪ The classification does not eliminate the fraud of food stamps. The statute did not want hippie communes form coming together to get food stamps (real purpose). This is not a legitimate government interest.

▪ Under the commerce clause “any conceivable purpose” isn’t good enough while here it is good enough for the rational basis test.

B. Race and Ethnic Ancestry

1. Historical Background

← Dates back to reconstruction

← Addresses Dred Scott decision and black codes

← Art. I § 2 (3/5 clause), §9 and Art. IV §2 and Art. V

a. Dred Scott v. Sanford (1857)

Facts: Scott (a slave) had traveled from VA to IL and WS which were free states. When he returned to VA he was sold to Sanford. He sued invoking diversity of citizenship b/c he went to IL.

Holding: Declared the Missouri Compromise unconstitutional as interfering with property rts under the 5th amendment. Ct found that he could not invoke diversity of citizenship b/c slaves are not recognized as citizens.

Reasons: Ct looked at the framers’ intent to show they didn’t intend slaves to be citizens, but rather property b/c of the language of the Constitution (Art. I §9 which protects slave trade). The Declaration of Independence states that all men are created equal, but they did not intend blacks to be included b/c the framers were slave holders.

▪ The ct could have construed the Compromise narrowly by stating new states had the choice to be slave states

▪ This was the first substantive due process case.

2. Discrimination against Racial and Ethnic Minorities

a. Strauder v. West Virginia (1880)

Facts: State murder conviction of an African American was

challenged b/c a statute forbade blacks from serving on juries.

Holding: Ct invalidated the conviction b/c of the discriminatory law. Reasons: Is this consistent with Slaughterhouse concerning the scope of the Equal Protection Clause? Yes both say that Equal Protection applies to blacks. The state can draw lines for jury selection but it cannot do so based on race. Here equal protection doesn’t apply to gender, age, etc. It applies to race but it doesn’t matter what race.

b. Plessy v. Ferguson (1896)

Facts: Plessy was 7/8 white and 1/8 black. He was arrested for refusing to comply w/ the law requiring separate but equal coaches on trains.

Holding: This law does not conflict w/ the 13th or 14th amendment. Reasons:

▪ Classification: Blacks and whites

▪ Rational basis standard

➢ Government interest in preservation of order, traditions and social customs

➢ The 14th amendment is intended to enforce equality

▪ The ends are social harmony and peace and the law is not arbitrary or irrational b/c blacks it is reasonable in relation to the prevailing standards and there is not inequality b/c the whites can’t go in the black cars and the blacks can’t go in the white cars.

c. Korematsu v. United States (1944)

Facts: K is an American-born citizen of Japanese ancestry. K was convicted for remaining in an area restricted to all persons of Japanese ancestry. An Executive Order gave military officials the legal authority to exclude any or all persons from designated areas on the West Coast in order to insure against sabotage.

▪ Did the President have the authority to sign this order? What is the constitutional source of authority?

➢ Congress ratified this order

➢ Authority could be argues as a commander-in-chief power.

▪ Directed at a particular racial group which violates Equal Protection in the Due Process clause b/c there is no equal protection clause by itself, it is inferred from the DP clause. The 14th amendment doesn’t apply to the federal government, only to the states.

▪ Classification: Citizens of Japanese ancestry and everyone else

▪ Scrutiny: the first case that racial classification is analyzed under strict scrutiny (compelling state interest w/ necessary state interest). The state interest is protection from sabotage and espionage which is a strong state interest.

d. Brown v. Board of Education (1954)

Facts: Blacks sought admission to schools on a non-segregated basis. The pls in this case stipulate that the facilities are equal but they were really not equal however, the pls want to force the ct to rule on the issue.

Issue: Is the separate but equal doctrine unconstitutional by depriving pls of equal protection?

Holding: Yes.

Reasons: Because the schools are equal in facilities the ct looked at the effect of segregation itself on public education. They don’t look to the history but to the present conditions. To separate the black children gives them feelings of inferiority which are irreversible. In education separate but equal has no place. Separate schools are inherently unequal.

▪ Ct. was very reluctant to decide this case

▪ Did Congress intend the 14th amendment to declare segregation unconstitutional? Ct. looked at this issue, and concluded that the legislative history is inconclusive.

▪ Federal gov. decided to enter the case and entered an amicus brief asserting that segregation was hurting the gov.

▪ Whether segregated education violates equal protection? Ct. looks at importance of education in American society. However, states are not required to provide public education; but where the states have provided it they may not segregate it.

▪ Brown II—states could take time in remedying this issue

e. Loving v. Virginia (1967)

Facts: Pls, a black woman and a white man were married in DC, moved back to VA, and were arrested under the state statute prohibiting interracial marriage.

Issue: Is the VA scheme preventing marriage b/w people solely on the basis of race In violation of the 14th amendment?

Holding: Yes. It violated the Equal Protection clause.

Reasons: The alleged state interest was to preserve racial integrity. It is not enough under the 14th amendment that all races are punished equally. The clear purpose of the 14th amendment is to eliminate all official state sources of racial discrimination. The ct applied strict scrutiny. It must be shown to be necessary to the accomplishment of some permissible state objective. There is none here.

▪ Law did not discriminate on its face in terms of penalties as in Plessy meaning if you violated the law you were penalized so ct. looked at equal protection in terms of the definition of the offense.

▪ Assumption is that blacks are disparage by these provisions as in Brown

▪ Trying to maintain purity of the white race so inferring a motive from the statute that the ct. finds impermissible.

➢ this is different from using the rational basis test b/c looking at motive here since making level of scrutiny higher

C. Discriminations Based on Gender

1. Defining the level of scrutiny

← Prior to 1973 rational basis test was used for discrimination of gender

← Reasoning that God wanted women in the home prevailed for many years

a. Reed v. Reed (1971)

▪ First case to determine that a statute discriminated against women still using rational basis test. State used the rationale of administrative convenience

b. Frontiero v. Richardson (1973)

Facts: Presumption that wives of service men were dependent, but service women had to affirmatively prove that their husbands were dependent.

Holding: The statute was invalid under the equal protection clause.

Reasons:

▪ Sex discrimination should be analyzed under strict scrutiny, but majority of the ct. do not believe this.

▪ Ct. analogized gender to race and stated that women were subject to the same immutable characteristics. Gender is unrelated to ability, this makes it an immutable characteristics. Shouldn’t be held accountable for something you can’t change unless there is a relationship b/w that and an ability you’re trying to assess.

▪ There’s a history of discrimination. In order for the 14th amendment to apply for equal protection ct. had to extend it to women.

▪ Relationship b/w gender and the statute—easier and cheaper is not enough to survive heightened scrutiny (might be enough if applying rational basis test)

c. Craig v. Boren (1976)

Facts: OK statute prohibited sale of non-intoxicating beer to males under 21 and to women under 18.

Holding: This gender based differential did not constitute a denial of equal protection to males.

Reasons: There’s a 2% difference b/w males and females concerning drinking and driving.

▪ Classification—gender

▪ Level of scrutiny—intermediate so has to be an important objective substantially related—2% differential is not substantially related to traffic safety and public health (applying rational basis—2% is not arbitrary so would work)

▪ Ends--traffic safety and means is age at which to buy alcohol--Statute did not talk about males and females consuming alcohol, only buying it

▪ Intermediate scrutiny is a compromise, not to keep it at rational basis and not to go all the way to strict scrutiny

Dissent: Believed that this statute is discriminating against men. Shouldn’t use a heightened scrutiny when statute discriminates against men

d. United State v. Virginia (1996)

Facts: Pl. challenged the male only admissions policy of VMI. This was a military school for men w/ rigorous courses. VA attempted to create a women’s school parallel to VMI, but it was not b/c admission scores were lower and the courses were not as rigorous.

Holding: VA violated equal protection by not letting women into the men’s military academy.

Reasons: VA did not meet the exceedingly persuasive justification that a state involved in defending gender discrimination must show. VA argued an issue of administrative convenience concerning the history of VMI that women could not handle this rigorous training, and basing this on previous cases this is not a justification. VMI is a state funded school so the ct. did not want the state discriminating against women. The education in the women’s school was not equal to VMI.

▪ Do not want to have stereotypes to enforce a law; but when those stereotypes are based on inherent differences and are used to compensate women, then classification can be justified.

▪ Task in gender discrimination cases if to figure out when there is a real basis to draw a distinction b/w men and women when there are inherent differences (ex: is it discriminatory to make women wear tops on their bathing suits when men don’t have to)

▪ VA argues single sex education is a valid approach, but ct. said that is not a true argument b/c this is not the history of VA schools. If want to create array of schools, must create same array for both women and men and history does not show this.

▪ Not saying that single sex schools are unconstitutional, but if state is funding it, then there must be an equal school for men and women.

▪ Private schools discrimination against gender or race, if completely privately funded then it is okay; but if have some state funding then must look at how much state funding.

2. Differences-Real and Imagined

a. Michael M. v. Superior Court (1981)

Facts: CA statutory rape law punished men, but not women for having sex w/ underage people.

Holding: The statute survived the 14th amendment equal protection claim.

Reasons: There was an important state concern to prevent teenage pregnancy.

▪ Equal protection clause states that people who are similarly situated must be treated the same, but here they are not similarly situated b/c females get pregnant and males don’t so this justifies the state in treating them differently.

▪ The means in equal protection of this case is to penalize men who have sex w/ teenage females; and the ends is to prevent teenage pregnancy.

3. “Benign” – “Compensatory” – “Remedial” Discrimination

a. Mississippi University for Women v. Hogan (1980)

D. Special Scrutiny for Other Classifications: Doctrine and Debates

1. Alienage

a. Ambach v. Norwick (1979)

2. Illegitimacy and Related Classifications

a. Matthews v. Lucas (1976)

3. Mental Retardation

a. Cleburne v. Cleburne Living Center, Inc. (1985)

4. Sexual Orientation

a. Romer v. Evans (1996)

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