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I. THE CONSTITUTION

a. HISTORY

i. Articles of Confederation (1777): first Constitution of the U.S.

1. Did not regulate the people directly; rather was like a group contract among colonies

2. Only legislative branch of govt. (no one at exec. level to execute law, and no courts)

3. States often undermined union when they felt it was in their best interest to not follow

ii. U.S. Constitution (1787)

1. Instead of amending the structure of the Constitution at the Constitutional Convention, the Delegates completely changed it (including the amendment process)

2. People regulated directly, and had three branches of government

3. Institution of slavery protected by

a. Art. 1, sec. 2, cl. 3: bargain that un-free people count as only 3/5 a person

b. Art. IV, sec. 2, cl. 3: escaped slaves need to be returned to their owners

iii. Bill of Rights (1789) was added b/c many states opposed the Constitution for its failure to enumerate individual rights

1. Since 1791, 17 more amendments have been added to the Constitution

2. Amendments fit into three categories:

a. Overruling the Court’s interpretation of the Constitution (e.g. 26th, providing anyone 18 & over can vote)

b. Correcting problems in the original Constitution (e.g. 12th, changed the rule that the runner-up in a presidential election would be VP)

c. Reflecting changes in social attitudes (e.g. 13th, adopted in 1865 after the Civil War, prohibits slavery)

i. Most common type of amendment

b. FUNCTIONS OF THE CONSTITUTION

i. Creates national government and separates powers

1. Three branches:

a. Art. I: vests legislative power w/ Congress

b. Art. II: executive power in the President

c. Art. III: judicial power with the Supreme Court & inferior courts

2. Creates system of checks & balances to lessen possibility of tyrannical rule

ii. Divides power between the Federal & State governments

1. Federalism: vertical division of authority b/w federal & state govt.

2. Federal & state governments are co-equal sovereigns; but when there is conflict of laws, the federal law trumps

3. Congress can act only if there is clear authority, w/ all other governance left to states

a. This is not explicit in text (which is why 10th amendment was added)

iii. Protects individual liberties

1. Few parts of the Constitution (apart from Bill of Rights) that pertain to individual rights

2. Madison ( if individual rights were enumerated, anything that did not fall into those rights would be fair game for the govt. to have authority over (which he did not want)

II. SCOTUS POWER & ROLE

a. ARTICLE III: creates the federal judiciary and defines its powers

i. “the judicial power of the United States shall be vested” ( creates a federal judicial system

ii. Judicial power vested in one Supreme Court & in such inferior courts as Congress establishes

iii. Independence of federal judiciary by giving federal judges life tenure, & consistent salaries

iv. SCOTUS has original jurisdiction over cases affecting ambassadors, other public ministers & consuls, & those where a state shall be a party; & has appellate jurisdiction in all other cases

1. Original jurisdiction: power to hear a case as first initiated by Plaintiff

2. Appellate jurisdiction: power to hear case after lower court heard it

v. Trial of all crimes (except for impeachment) shall be by jury, in state where crime occurred

vi. Treason= levying war against U.S. or giving aid/ comfort to the enemy (only)

b. JUDICIAL REVIEW

i. Judicial review: power to review the constitutionality of federal or state laws and executive actions

1. Not expressly authorized in the text of the Constitution, but firmly established in govt.

ii. Marbury v. Madison (1803): stands for the authority for the judiciary to review the constitutionality of executive & legislative acts

1. Historical context:

a. Jefferson (Republican) wins election of 1800, but before Republicans take office, Federalists entrench their power b/c they were voted out of every office

b. Adams (lame duck) appoints “midnight judges” night before Jefferson take office, via the Federalist Congress’ Judiciary Act of 1801

c. Jefferson did not deliver the appointments b/c they were not delivered on time, & Republican Congress sought to void the Judiciary Act of 1801

2. Did Marbury have a right to judicial commission?

a. YES, when the President appoints someone, the commission is complete when the U.S. seal is affixed by the Secretary of State

3. Did Marbury have a remedy for the denial of his right?

a. YES, for every violation of a legal right, there is a legal remedy

b. If Marbury’s action was an executive action, it is not a legal right; if it was a purely ministerial function, then it is a legal right

i. Where a specific duty is assigned by law, & individual rights depend upon the performance of that duty, the injured individual can seek a remedy at law

c. Here, a refusal to deliver the commission is a plain violation of Marbury’s individual right to that commission, so the laws afford him a remedy

4. Could the Supreme Court grant Marbury the remedy he sought?

a. The Judiciary Act of 1789 gave Court original jurisdiction over writs of mandamus (declaratory remedy), but Constitution only gives Court original jurisdiction in cases involving foreign officers

b. Acts of Congress are not law, so when the Constitution and Congressional act are in conflict, the Court is bound to follow the Constitution

c. Case was dismissed for want of jurisdiction: Constitution does not confer SCOTUS jurisdiction, and sec. 13 of the Judiciary Act of 1789 was found unconstitutional

5. Genius of Marbury ( affirmed judicial review as the Court determined what law applies when two laws conflict

iii. Court’s authority to review state court decisions

1. Judiciary Act of 1789 (sec. 25) allowed SCOTUS to review state court decisions by a writ of error to the state’s highest court in many situations (even though Constitution does not explicitly say SCOTUS may review state decisions)

2. Martin v. Hunter’s Lessee (1816): VA state court ruled in favor of Hunter, and SCOTUS, issuing a writ of error, reversed the VA decision.

a. Unless SCOTUS could review state court rulings, SCOTUS would be powerless to hear any cases, except for the few fitting w/in its original jurisdiction

b. State interests might sometimes obstruct/ control the regular administration of justice (highest court in the land should not be beholden to state politics)

c. SCOTUS review is essential to ensure uniformity in the interpretation of federal law

3. Cohens v. Virginia (1821): reaffirmed the authority of SCOTUS to review state court judgments

a. State courts could not be trusted to adequately protect federal rights b/c in many states the judges are dependent for office & salary on the will of the legislature

b. So, Cohens could seek SCOTUS review when they claimed that their conviction (for selling lottery tickets in DC) violated the Constitution

iv. The scope of federal jurisdiction

1. U.S. Const., Art. III, sec. 2, cl.2: sets out maximum federal subject matter jurisdiction

2. SCOTUS has appellate review only for cases that are questions of federal law

a. If a matter is founded on adequate & independent state grounds, then it is limited to state jurisdiction

3. Cooper v. Anderson (1958): federal courts also have the authority to review the constitutionality of state laws & actions of state officials

a. “Marbury declared the basic principle that that the federal judiciary is supreme in the exposition of the law of the Constitution”

c. Interpretative limits on Judicial authority

i. Theories of constitutional interpretation

1. SCOTUS must justify that its decisions are constitutional

a. Different theories of interpretation define acts as constitutional or not

2. Three factors that make constitutional interpretation complicated:

a. Problems arise that the Constitution does not expressly consider

b. Much of the Constitution is written in open-textured language

c. What, if any, government justifications are sufficient to permit the government to interfere w/ a fundamental right, or to discriminate

3. Originalism: judges deciding constitutional issues should confine themselves to enforcing norms that are stated or clearly implicit in the written Constitution

a. If Constitution is “silent,” it is for the legislature to decide the law

4. Nonoriginalism: courts should go beyond that set of references & enforce norms that cannot be discovered w/in the four corners of the document

a. Permissible for Court to interpret Constitution to protect rights not expressly stated

b. Sees Constitution as a “living document” that should reflect current social values

5. Other theories:

a. Textualism ( no intent; only looks to the words of the document

b. Minimalism ( best decision is the one that leaves the most undecided b/c judicial review is so “undemocratic”

c. Pragmatism ( candid admission that policy considerations are taken into account; what is best for society (Posner’s a proponent)

ii. Limits on judicial power

1. Congress can impose limits

2. Constitutional limits

iii. An example: Baze v. Rees: challenge to lethal injection “cocktail” as cruel & unusual punishment, violating the 8th amendment

d. CONGRESSIONAL INFLUENCE ON FEDERAL COURTS

i. The Exceptions Clause: Ex parte McCradle

1. Exceptions Clause: Art. III, sec. 2, cl. 2 ( gives Congress the power to make “exceptions” to SCOTUS’s appellate jurisdiction (does not apply to lower fed courts)

a. In McCardle, Congress used Exceptions Clause to strip SCOTUS of power/ jurisdiction over specific subject matters

b. McCardle filed petition of writ of habeas corpus pursuant to an 1867 statute, that allowed federal court relief to both state and federal prisoners

2. The Repeal Act (1868) ( Congress repealed the part of the 1867 statute that authorized SCOTUS appellate review of writs of habeas corpus

a. Court was then not able to decide McCardle’s case b/c of Congress’s authority to create exceptions & regulations to the Court’s appellate jurisdiction

3. The breadth of the Exceptions Act

a. “Exception” must plausibly be a regulation of the Court’s appellate jurisdiction

b. Congress cannot impermissibly try to dictate power

i. e.g. Separation of powers will not allow for a congressional act that stipulates “SCOTUS shall find against McCardle,” b/c that is usurping judicial power

ii. Jurisdiction of the lower federal courts

1. Congress has greater/ broader power to regulate jurisdiction of lower federal court

a. There does not need to be lower federal courts

i. Art. III, sec. 1: Congress has power to decide whether to create lower courts in the first place

b. Lower courts have less authority

i. State courts are of general jurisdiction, but most constitutional challenges aren’t brought to state court

iii. Other means of congressional influence

1. Judicial selection ( President nominates, & Senate confirms all Art. III judges

2. Impeachment of judges ( isn’t used often, but power exists (both Congress & Senate must approve)

3. Control the size of the court ( President can add Justices to SCOTUS

a. e.g. FDR tried to pack the court to 15 to assure a majority of pro-New Deal Justices

4. Constitutional amendment ( by either

a. Congress, by 2/3 vote, may propose amendments for ratification by 3/4 of states

b. 2/3 of states may apply to Congress to call a constitutional convention “for proposing Amendments” (has never been tried)

5. Brow-beating: bullying through appropriations

e. “CASE OR CONTROVERSY” REQUIREMENTS

i. Prohibition against advisory opinions

1. In relationship to the justiciability doctrines

a. A case or controversy must be concrete and non-hypothetical

i. Prohibition against advisory opinions ensures that cases will be presented in terms of specific disputes

b. Separation of powers ( judicial role limited to deciding actual disputes; does not include giving advice to Congress or the president

2. What are they?

a. Advisory opinion: opinion on the legality of executive or legislative action that did not involve an actual “case”

b. Criteria to avoid being an advisory opinion:

i. Must be an actual dispute b/w adverse litigants

ii. Must be a substantial likelihood that a federal court decision in favor of a claimant will bring about some change or have some effect

3. Some state courts still allowed to give advisory opinions

a. On 1) constitutionality of pending legislation or 2) constitutional questions referred to them by other branches of government

b. e.g. Massachusetts

4. Ashwander v. TWA (1936): jurisdiction of federal courts is limited to actual cases & controversies

a. “If it is not necessary to make a constitutional interpretation, it is necessary to not make a decision.”

b. Limits court’s ability to make constitutional decisions as to:

i. Avoid confrontation- Court does not want to look powerless (strategic)

ii. Limits the counter-majority force of judicial review

1. Ultimate check, but in democracy Court should not be check on everything

2. Court should stay out of the way on political matters

ii. Standing

1. Basic framework

a. Standing: determination of whether a specific person is the proper party to bring a matter to the court for adjudication

i. Requires that P allege a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues

b. Prudential standing principles (subject to revision by Congress):

i. Party generally may only assert his own rights, & cannot raise the claims of 3rd parties before the court

ii. P may not sue as a taxpayer who shares a grievance in common w/ all other taxpayers (also a constitutional requirement –Lujan)

iii. Party must raise a claim w/in the zone of interest protected by the statute in question

c. Elements of standing (constitutional minima):

i. Injury in fact ( invasion of a legally-protected interest which is

1. Concrete & particularized

2. Actual or imminent

ii. Causation ( Causal connection b/w the injury & the alleged conduct

1. Injury is fairly traceable to the challenged action of D

iii. Redressability ( Must be likely (not merely speculative) that the injury will be redressed by a favorable decision

d. Jurisdictional nature ( courts not allowed to say anything about standing unless they first have jurisdiction

i. Issue of standing must not be raised by parties?

ii. Must exist at all points

iii. Must be resolved before reaching the merits

e. Relief-specific

i. City of L.A. v. Lyons: Lyons was put in a chokehold by LAPD, & seeks injunction to prevent further choking. An injunction lacks redressibility b/c preventing future choking will not do anything for his injury caused by the past chokehold.

1. P seeking declaratory/ injunctive relief must show likelihood of future harm

2. Injury in fact

a. Lujan v. Nat’l Wildlife Federation (1992): Ps were not entitled to standing b/c they couldn’t demonstrate that they used specific federal land that was being mined under the new federal regulations

i. Alleged injury ( prevented observation or works w/ endangered species anywhere in the world (pure speculation)

1. Not imminent- Ps did not say when they’d be harmed

2. Did not show sufficient likelihood that they would be injured in the future- a desire to return to those areas in the future is insufficient for standing

ii. RULE: P must show that he has sustained, or is immediately in danger of sustaining, some direct injury as the result of the challenged official conduct, AND the injury or threat of injury must be both real & immediate, not conjectural or hypothetical

b. Affirmative action injury ( inability to compete equally w/ other applicants (not denial of harm); whether P would have “won” is irrelevant b/c he has already been denied the opportunity to compete equally

i. Injunction would usually redress the injury of not being able to compete equally

c. Procedural injuries ( injury that is tied, in some way, to the govt’s allegedly unlawful failure to follow a certain, legally required process

i. Imminence & redressability requirements are relaxed for procedural injuries

1. P does not need to show that had govt. followed the lawful process, the result would have been different

2. Injury in fact if: P shows he would more likely obtain the ultimate benefit (or avoid the ultimate harm) if the lawful procedure was followed

ii. Alleged procedural injury must be connected to an underlying injury in fact that is both a) concrete & particularized and, b) actual or imminent

d. Widely shared injuries (generalized grievances)

i. Widely shared injuries can confer standing

1. The more concrete an injury, the less of a problem that it is widely shared by the people

2. However, the fact that it is widely shared is a strike against a party in a case

e. Massahusetts v. EPA (2007): Group of states, local govts, private orgs brought suit under Clean Air Act for EPA’s failure to regulate greenhouse gases

i. Injury ( rising sea levels have begun to swallow Mass’s coastal land

1. Only one of the Ps need to have standing to permit the court to consider the petition for review

ii. Procedural injury ( EPA’s refusal to regulate man-made greenhouse emissions

1. Procedural injury must be connected to the underlying actual injury

iii. The fact that a state is a party only helps to find standing

f. Separation of powers

i. Excessively broad conferrals of standing violate Art. II too

1. Unconstitutionally transfers from the Exec. to the courts the responsibility to take care that the laws be faithfully executed

ii. Law of standing restricts courts to their undemocratic role of protecting individuals against impositions from the majority

1. Courts would become the perpetual monitors of making sure exec power is serving the people

2. Courts are supposed to make sure other branches are serving the majority

3. Causation + redressability

a. Causation & redressability become a problem when there are intervening acts by 3rd parties that bring about injury & unlawful act

i. Allen v. Wright: unlawful act was IRS’s failure to deny tax exemption to all-white private academies. But, redressability not met b/c it would require 3rd parties to act in certain ways to make the desired result happen

1. This is b/c IRS did not cause the segregation

iii. Timing issues

1. Ripeness ( litigation is too soon

a. Situations where dispute is insufficiently developed & is too remote/ speculative to warrant judicial action

b. Seeks to prevent premature adjudication

2. Mootness ( something in litigation happened to make injury disappear

a. Moot when: changing circumstances developing after the initiation of the lawsuit have ended the controversy, so that the court no longer confronts a live dispute

b. Exception ( capable of repetition, but evading review

i. e.g. pregnancy usually comes to term before the appellate process is complete, thus pregnancy produces a justification for non-mootness

c. Seeks to prevent parties from manipulating courts

iv. Political Questions Doctrine

1. Political question: question that cannot be answered by the judiciary b/c constitution has vested decision in another branch

2. Baker v. Carr (1962): whether the malapportionment of the TN General Assembly violates the Equal Protection Clause is NOT a political question, & thus justiciable

a. Baker criteria (essentially useless):

i. Textually demonstrable constitutional commitment of the issue to a coordinate political dept. (another branch of govt.)

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

iii. Impossibility of deciding w/o an initial policy determination of a kind clearly for nonjudicial discretion

iv. Impossibility of a court’s undertaking independent resolution w/o expressing lack of the respect due coordinate branches of govt.

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

vi. Potentiality of embarrassment from multifarious pronouncements by various depts. on one question

3. Political questions can be found in the specific areas where SCOTUS invoked it:

a. Republican form of govt. clause & the electoral process

b. Foreign affairs

c. Congress’s ability to regulate its internal processes

d. Process for ratifying constitutional amendments

e. Instances where the federal court cannot shape effective equitable relief

f. Impeachment process

4. Practical significance:

a. Safety valve ( means of staying out of controversy where the judiciary’s involvement is apt to cause it some long-term institutional damage

i. Judiciary’s involvement might make it look especially political (or results-oriented), thus damaging reputation

ii. Court realizes its decision might not be obeyed, exposing it as powerless

b. Political question doctrine operates as an avoidance principle

i. Entails the judiciary’s complete withdrawal from the field, leaving resolution to the question entirely to the other branches

ii. Invoked by the courts largely for this reason

f. ACTUAL BREADTH OF JUDICIAL POWER

i. The judiciary is a check on the other branches that the people endorsed, but there is always a fight as to which institution has power to do that

III. NATION & STATES IN THE FEDERAL SYSTEM

a. POWERS OF CONGRESS

i. Basic principles

1. Congress must have express or implied authority to act in the Constitution

a. Enumerated powers ( “All legislative powers herein granted shall be vested in Congress…” (Art. I, sec. 1)

b. But, states can presumptively act unless the Constitution prohibits the actions

i. Federal-state power relationship is analogous to their courts ( Federal courts have limited jurisdiction, but state courts have general jurisdiction

2. Key difference b/w federal & state govts. is that only state has police power

a. Police power: allows state & local govts. to adopt any law that is not prohibited by the Constitution

3. Art. I, sec. 8 outlines Congress’s powers

a. Necessary & proper clause (Art. I, sec. 8, cl. 18): “To make all laws which shall be necessary & proper for carrying into execution the foregoing powers, and all other powers vested by this constitution in the government of the U.S., or in any department or officer thereof.”

i. N&P clause is not a “power,” but gives Congress wide latitude in selecting appropriate means once it is resolved that the objective is w/in Congress’s enumerated powers

b. NECESSARY & PROPER CLAUSE ( McCulloch v. Maryland (1819)

i. Background

1. MD taxed the Bank of the U.S. by passing law requiring any bank not chartered by the state pay either an annual tax of $15k or 2% of all its notes

2. When Bank refused to pay, the state sued

ii. Who is sovereign?

1. MD argues that states are ultimately sovereign b/c they created the U.S. by ceding some of their power & by ratifying the Constitution

2. SCOTUS rejects this argument- states are NOT sovereign

a. States are not sovereign- people are b/c it’s the people that ratified the Constitution

b. States are bound to the Constitution, just as the federal govt.

iii. “A constitution we are expounding”

1. The enumerated grants of power in the Const. does not say anything about the means

2. It is implied that Congress also has functional powers

a. i.e. creating a bank is a means to carry out many of Congress’s other powers

3. Congress is not limited only to those acts specified in the Constitution

iv. The meaning of “necessary”

1. Necessary: some rational connection b/w the means & the ends (useful or desirable)

2. Congress may choose any means, not prohibited by the Constitution, to carry out its lawful authority

a. If the end is legitimate & w/in the scope of the constitution, then the means (if not prohibited) are constitutional

v. The role of the “sweeping clause”

1. Dramatic expansion in scope of congressional authority( it has an infinite range of options that can be enacted into law

2. But, if Congress’s powers had been narrowly restricted to those enumerated powers, likely that the problems of future centuries would not have been dealt w/ an 18th century Constitution (at least w/o amendments)

vi. Current significance ( McCulloch now informs us of how to construe all other powers of Congress (how that power would be)

c. MARYLAND’S TAX ON THE BANK (McCulloch cont.)

i. State authority to impose taxes

1. Congress’s power to create a bank includes a power to preserve its existence

a. Power to tax ( power to destroy ( defeats & renders useless the power to create

2. MD may not tax the Bank b/c such exactions could greatly impede its operation & potentially tax it out of existence

ii. “Confidence”

1. To tax excessively would banish the confidence which is essential to all govt.

a. Political acceptance by people stops govt. from imposing very high taxes

2. MD’s tax undermines confidence

iii. Federal supremacy

1. By taxing (and effectively destroying) the Bank, MD is trying to constitutional measures of Congress

a. This is “repugnant” b/c the federal govt. is declared to be supreme over the state

IV. COMMERCE POWER

a. The Commerce Power before the New Deal

i. Commerce clause (Art. I, sec. 8, cl. 3): Congress has the power to regulate commerce with

1. foreign nations

2. among the states, and

3. with the Indian tribes

ii. Pre-New Deal history:

1. 1787-90: almost all commerce occurred w/in the boundaries of one state (all commerce was intrastate commerce)

2. After civil war, & emergence of national corporations, interstate commerce (national trade) is substantial

3. 19th century- 1937: much narrower construction of the commerce power & invalidated many federal laws as exceeding the scope of this authority

a. 1887: Interstate commerce act, and 1890: Sherman antitrust act

4. SCOTUS tries to establish what Congress can and cannot regulate:

a. Congress can regulate commerce, but not manufacturing/ production/ agriculture

b. Congress can only regulate activities that have a direct effect on commerce

5. But, as Congress regulates more & more, it does not defer to the court mandates

iii. New Deal: Congress enacted a dramatic set of remedial measures under FDR’s New Deal, and sought to justify these measures under the Commerce Clause as based on the “substantially affecting commerce” rationale & the “in commerce” rationale

1. Court rejected these efforts at justification under the Commerce Clause

iv. FDR’s Court-packing plan: after Court rejected laws under Commerce Clause, strong measures were needed to save New Deal from judicial invalidation

1. FDR tries to appoint 6 new Justices, but Congress does not pass proposal

b. The Commerce Power after the New Deal

i. 1937- 1995: not one federal law was declared unconstitutional as exceeding the scope of Congress’s commerce power ( deferential review

ii. Expansion of commerce power— Congress could exercise control over all phases of business

1. NRLB v. Jones & Laughlin Steel Corp (1937): constitutional challenge to the National Labor Relations Act (NLRA) permitting employees to bargain collectively

a. Part of commerce: steel business has an effect upon commerce

b. Direct effect: industrial labor relations constitute a dominant factor in manufacturing operations

2. U.S. v. Darby (1941): challenge to the constitutionality of Fair Labor Standards Act

a. Congress may control production by regulating shipments in interstate commerce (while manf is not of itself IC, shipment of manf goods interstate is such commerce)

b. Law is constitutional so long as it is w/in the scope of Congress’s power

iii. Wickard v. Filburn (1942): Filburn challenges wheat production quotas, as set by the Agricultural Adjustment Act, b/c his wheat was primarily for home consumption (thus, not interstate commerce)

1. Cumulative effect of home grown wheat on national market: even though Filburn’s wheat had a negligible impact on interstate commerce (IC), Congress could regulate his production b/c cumulatively home grown wheat had substantial effect on IC

2. Principle of aggregation: Congress can regulate activity that, taken in isolation, does not substantially affect IC, on the ground that multiple iterations of the same activity would substantially affect IC

iv. The Civil Rights Act of 1964: prohibited discrimination in places of public accommodation, if its operations affect IC

1. Heart of Atlanta Motel v. U.S. (1964): discrimination by hotels/ motels impedes interstate travel in impairing Negro’s pleasure & convenience, & discourages travel

2. Disruptive effect (burden) that racial discrimination has on commercial intercourse is why Congress was able to pass the Civil Rights Act of 1964

c. Rehnquist Court’s revival of internal limits on the Commerce Power

i. U.S. v. Lopez (1995): Gun-Free School Zone Act of 1990 was found unconstitutional b/c the relationship to interstate commerce was too tangential & uncertain to uphold the law as a valid exercise of Congress’s commerce power

1. 3 types of activities that Congress can regulate/ protect under commerce power:

a. The use of channels of interstate commerce (e.g. Heart of Atlanta Motel)

b. Instrumentalities of IC- includes power to regulate persons & things of IC (e.g. railroads, cars, airplaines)

c. Activities having a substantial relation to IC (economic or commercial in nature)

2. Support for activities w/ substantial affect on commerce:

a. Jurisdictional elements: additional language that ensures that on a case by case basis, that the statute has some effect on commerce

b. Congressional findings: shows that Congress has thought about the question AND Congress is in a better position than Court to research & make empirical judgments

3. Govt. argues: presence of guns threatens learning environment, resulting in less productive citizenry, affecting nation’s economic well-being

a. True, BUT upholding law on this argument alone gives no limitations on fed power

4. States have historically been sovereign in areas of:

a. Criminal law enforcement

b. Education

5. Court tries to create a rule to limit what Congress can regulate:

a. Does the activity substantially affect commerce?

b. Are there jurisdictional elements to the statute?

c. Are there any congressional findings backing up the statute?

d. Government’s argument convincing?

e. Is this traditionally part of state sovereignty?

ii. U.S. v. Morrison (2000): civil damages provision of VAWA declared unconstitutional, & held that Congress cannot regulate a noneconomic activity by finding that, looked at cumulatively, it has a substantial effect on IC

1. Govt. argued violence against women has substantial effect on national economy

a. Congressional findings: gender-motivated violence costs American economy billions, & is a substantial constraint on women’s freedom of travel interstate

i. Findings not sufficient; Congress still regulating noneconomic activity that has traditionally been dealt with by state laws (criminal law enforcement)

b. Gender-motivated violence is not economic activity

2. Congress cannot regulate noneconomic, violent criminal conduct solely on that conduct’s aggregated effect on interstate commerce (same for any activity traditionally regulated by states)

iii. Gonzales v. Raich (2005):Controlled Substances Act (CSA), prohibiting local cultivation & use of marijuana, w/in commerce power, & in compliance w/ CA law

1. CSA controls all possession, sale, distribution (general practice) of marijuana

a. Making an exemption (for CA) for an activity that is purely intrastate would undermine the fungibility of the activity

2. Commercial or economic in nature?

a. NO, it is intrastate activity that is not commercial in nature

i. But activities regulated by CSA as a whole are “quintessentially economic” (where as they were still noneconomic in Lopez and Morrison), allowing for application of aggregation principle

3. Broader regulatory schemes? (& exemptions)

a. Regulation of intrastate activity is valid b/c it is part of a larger regulation of economic activity

i. Regulatory scheme could be undercut unless intrastate activity also regulated

b. Rational basis for belief that failure to regulate intrastate activity would undermine the CSA, which is enough

4. Impact on CA law: can be convicted under federal law for the activity, but not under state law (CA law still intact)

iv. Most conservative Justices in the majority of the post-1995 cases, seeking to limit the scope of congressional powers & protecting the prerogatives of state governments

v. Citizens Bank v. Alafabco (2003): just b/c the statute has the phrase “involving commerce,” does not mean that it activity that can be regulated under commerce power

V. OTHER NATIONAL POWERS

a. TAXING POWER AS A REGULATORY DEVICE

i. Basic principles

1. Art. 1, sec. 8, cl. 1: “Congress shall have the power to lay & collect taxes, duties, imposts & excises, to pay debts & provide for the common defense & general welfare of the U.S.; but all duties, imposts & excises shall be uniform throughout the U.S.”

2. Direct taxes must be apportioned among the states, according to their populations

a. Every state must pay the same amount per capita

ii. Taxation v. regulation

1. Taxation: purpose is to raise revenue

2. Regulation: purpose is to alter behavior/ conduct

a. Although any tax is going to alter behavior (even if just marginally)

iii. Bailey v. Drexel Furniture (1922): Child labor tax case

1. Holding: a federal tax on companies that shipped interstate commerce goods made by child labor is unconstitutional

2. Although taxes could have an “incidental” regulatory effect, a tax is unconstitutional when in the extension of the penalizing features of the so-called tax, it loses its character as a tax & becomes a mere penalty w/ the characteristics of regulation & punishment

3. Court earlier held unconstitutional a federal law prohibiting the shipment in interstate commerce of goods made by child labor

a. This case invalidated a tax trying to accomplish the same thing

iv. Current law ( no distinction b/w revenue-raising and regulatory taxes

1. Every tax is in some measure regulatory, but it is not any less a tax b/c it has a regulatory effect

2. Inquiry into the hidden motives which may move Congress to exercise a power constitutionally conferred upon it is beyond the competency of the courts

b. SPENDING POWER AS A REGULATORY DEVICE

i. Hamilton & Madison

1. Hamilton ( broad view that that spending & taxing powers encompass everything, so long as it does not violate other parts of the Constitution

2. Madison ( narrower view that spending & taxing powers should be limited to accomplish the powers specifically enumerated

ii. U.S. v. Butler (1936): Congress has broad authority to tax & spend for the general welfare

1. Agricultural Adjustment Act sought offered subsidies to farmers to limit their crops

a. By restricting supply of agricultural products, Congress sought to ensure a fair price & thus to encourage agricultural production

b. Despite broad view, Act was found unconstitutional b/c regulation of production is left to the states

2. Broad (Hamiltonian) scope of the taxing & spending powers remains good law

iii. Steward Machine v. Davis (1937): upheld the constitutionality of the federal unemployment compensation system created by the Social Security Act

1. Compensation system serves the general welfare, & doesn’t violate another constitutional provision

iv. Spending generally

1. Congress may spend in any way it believes would serve the general welfare (so long as it does not violate another constitutional provision)

a. So most spending programs are not a constitutional question

2. Spending power gives Congress a meaningful ability to accomplish certain things that it would otherwise not be able to do (b/c it cannot regulate states in certain ways)

v. Conditional spending & the states

1. Congress may place conditions on grants to state & local govts., so long as the conditions are expressly states & have some relationship to the purpose of the spending program

2. Four limitations on spending power:

a. Condition must promote the “general welfare”

b. The condition must be unambiguous, clear statement

c. The condition should relate “to the federal interest in particular natl. projects or programs” and

d. Other constitutional provisions may provide an independent bar to the conditional grant of federal funds

vi. South Dakota v. Dole (1987)

1. Background ( federal law creating a 21-yr-old drinking age by withholding a portion of federal highway funds from any state govt. that failed to impose such a drinking age

2. The “general welfare” ( not a meaningful limitation b/c it’s not a judicially enforceable standard (more of a political question)

a. Deferential on the question of general welfare, accepting whatever Congress believes serves the general welfare

3. Unambiguousness ( conditions must be clearly stated so that states will know the consequences of their choosing to take federal funds

a. If ambiguous, then only the specific ambiguous terms would be unenforceable

4. Germaneness ( conditions must be related to the purpose of the federal spending program

a. Most important question—if condition has nothing to do w/ the purpose for which the money is spent, it must at least make the spending more effective

b. Here, conditions were germane b/c people under 21 could drive to SD for alcohol, then drive back drunk to their home state

c. Directly related to purpose behind fed highway $—creating safe interstate travel

5. Other constitutional prohibitions ( Congress cannot set program, which if followed by the states, would mean that the states are acting unconstitutionally

6. Coercion ( at some point the financial inducement offered by Congress might be so coercive as to pass the point at which pressure turns into compulsion

a. Here, withholding 5% of state’s highway funds is mild encouragement, not coercion

c. WAR & TREATY POWERS

i. War power

1. Several clauses in Art. I, sec. 8 ( grants Congress the power to declare war & the authority to raise & support the army & navy

2. Not too many judicial decisions on constitutionality of war powers, b/c the judiciary is likely to deem challenges to war powers to be a nonjusticiable political question

3. Woods v. Cloyd W. Miller Co. (1948): Congress passed Housing & Rent act to set a nationwide rent control after WWII b/c there were people coming back from war & needed a place to live

a. SCOTUS said the Act was under the war power, & that power does not necessarily end w/ the cessation of hostilities

ii. Treaty power

1. Constitutional basis

a. Necessary & proper clause ( Constitution only mentions that Pres has power to negotiate & agree to treaties, while Senate has power to ratify

b. Art. II, sec. 2, cl. 2: gives Pres the authority, “by & w/ the advice & consent of the senate, to make treaties provided 2/3 of the senators present concur.”

c. Treaties are the law of the land, & prevail over all conflicting state laws

2. Missouri v. Holland (1920): upheld the constitutionality of a treaty b/w U.S. & Great Britain protecting migratory birds. MO argued that it violated 10th amendment.

a. Const. expressly grants fed govt. the power to make treaties, & thus states could not claim that the treaty violates the 10th amendment

b. Here, treaty was passed for a national interest, & subject matter only transitorily w/in the state

3. Other applications

a. Senate does not need to approve rescission of a treaty

i. President can rescind treaties w/o worrying about judicial invalidation b/c the Court held that such challenges are not justiciable

iii. Section 5 of the 14th amendment

1. § 5 of the 14th amendment: grants Congress power to enact “appropriate legislation” to enforce prohibitions of §1 of the 14th amendment

a. § 1 protects fundamental rights

b. States must be violating §1 & legislation must be directed at the states

2. The Civil Rights Cases

a. Civil Rights Act of 1875 ( broadly prohibited private racial discrimination by hotels, restaurants, transportation, & other public accommodations

i. Act was found unconstitutional & Court adopted a restrictive view as to the power of Congress to use these provisions to regulate private behavior

b. 14th amendment only applies to govt. action & therefore it cannot be used by Congress to regulate private behavior

c. Implicitly established that §1 of the 14th amendment apply only to govt. action, not to private conduct

3. United States v. Morrison (2000): Congress may not regulate private conduct under its §5 powers (reaffirming Civil Rights Cases)

a. Court holds that civil damages provision of VAWA is unconstitutional as an exercise of Congress’s §5 power b/c that power only gives Congress authority to regulate state & local govts

i. The provision is aimed at individuals who have committed gender-motivated crimes (not at any state or state actor)

b. Consistent w/ long-standing principle that 14th amendment applies only to govt. conduct

4. “Congruence” & “proportionality” ( current test to determine whether legislation is w/in congressional power

a. Whether the preventive legislation is congruent & proportional to the constitutional violations that Congress has targeted

b. e.g. VAWA was aimed at preventing gender-motivated crimes by individuals; not at states (which the 14th amendment would protect)

VI. FEDERALISM-BASED LIMITS

a. TENTH AMENDMENT

i. 10th amendment: “The powers not delegated to the U.S. by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”

1. 10th amendment protects state sovereignty from federal intrusion

ii. Functions of the federal system:

1. Protects citizen against governmental oppression—the “tyranny” that the framers were so concerned about

2. States are closer to the people & thus more likely to be responsive to public needs & concerns

3. States can serve as laboratories of experimentation

iii. National League of Cities v. Usery (1976): application of the Fair Labor Standards Act (FLSA), which required minimum wage payment to state & local employers, violated the 10th

1. Forcing state & local govts. to pay minimum wage would require that the govts. either raise taxes or cut other services to pay for those costs

a. Thus displacing decisions/ functions traditionally left for the states

iv. Garcia v. San Antonio Metropolitan Transit Authority (1985): overruled Usery, holding that application of the FLSA to state & local govts. does not violate the 10th amendment

1. Two reasons for overturning Usery: 1) the approach had proved unworkable (cannot define traditional/ integral govt. functions) & 2) protection of state prerogatives should be through the political process & not from the judiciary (i.e. it’s a political question)

b. ANTI-COMMANDEERING PRINCIPLE

i. New York v. U.S. (1992): invalidated the Low-level Radioactive Waste Policy Amendments Act as violating the 10th amendment

1. The regulated activity ( law provided that states would “take title” to any wastes w/in their borders that were not properly disposed of, & then would be liable for all damages directly or indirectly incurred

a. Unconstitutional b/c it gave state govts. the choice b/w either accepting ownership of waste or regulating according to instructions of Congress

2. “Commandeering” ( directly compelling states to enact & enforce a federal regulatory program or conscript state agencies into the national bureaucratic army

a. Forcing states to accept ownership of radioactive wastes impermissibly commandeers state govts.

b. And the other choice of regulating according to Congress’s instructions violates the 10th amendment

3. Distinguishing Garcia

a. Here, Congress is attempting to regulate the state’s ability to regulate

b. In Garcia, govt. was trying to make FLSA applicable to everyone (state & local govts. and other employers alike)

4. Congress’s alternatives:

a. Commerce power ( Congress may pass federal legislation directly regulating the private producers (expensive, but constitutional)

b. Conditional spending ( Congress may condition the payment of relevant federal funds on a state’s agreement to follow rule

c. Conditional preemption ( Congress may threaten to pass federal legislation under the Commerce Clause unless states choose to regulate according to fed standards

5. Waiver?

ii. Printz v. U.S. (1997): Brady Handgun Violence Prevention Act, requiring state & local law enforcement officers conduct background checks on prospective purchasers is unconstitutional

1. Congress was impermissibly commandeering state executive officials to implement a federal mandate; violates the 10th when it conscripts state govts.

2. Also violates separation of powers ( Congress impermissibly had given the executive authority to implement the law to state & local law enforcement personnel

a. Power of Pres would be subject to reduction if Congress could act as effectively w/o the Pres as w/ him, by simply requiring state officers to execute its laws

VII. SEPARATION OF POWERS

a. SEPARATION OF NATIONAL POWERS

i. Separated powers

1. Separation of 3 branches created to:

a. Safeguard against tyranny by combating excessive concentration of power

b. Promote efficiency

ii. Checks & balances

iii. General principles

b. EXECUTIVE VIOLATION OF THE SEPARATION OF POWERS

i. Art. II: “The executive power shall be vested in a President of the U.S.A.”

1. Hamilton ( president has inherent powers not specifically delineated in Art. II

2. Madison ( president has no powers that are not enumerated in Art. II

3. Analysis of presidential power starts w/ Jackson’s 3-part test

ii. Youngstown v. Sawyer (1952)

1. Executive order: statement of direction from President for someone in executive branch to take a certain course of direction

a. Use of president’s own authority directing members of the exec to act a certain way

2. Justice Jackson’s 3 zones:

a. Apex ( President acts pursuant to an express/ implied authorization of Congress, his authority is at maximum (own rights + affirmative authority from Congress)

i. President’s acts are presumptively valid

b. Twilight zone ( when President acts in absence of either a congressional grant or denial of authority, he can only rely on his own independent powers

i. Concerns inherent powers b/c President is acting w/o constitutional or statutory authority

ii. Congress hasn’t said anything, so constitutionality depends on historical practice + shared understandings

iii. Cases almost never fall in this zone

c. Lowest ebb ( when President takes measures incompatible w/ the expressed/ implied will of Congress

i. Such presidential actions will be allowed only if the law enacted by Congress is unconstitutional, b/c president is disobeying a federal law

3. Categorizing exec. order 10340

a. Truman’s seizure of steel mills is at its lowest ebb b/c Congress covered seizure of private property in 2 statutory acts, but intentionally omitted this power

i. Truman’s seizure is inconsistent w/ statutory policies

4. Relevant presidential powers

a. Executive powers include power to approve laws passed by Congress & recommend laws to Congress

i. Executive branch has power to enforce, administer & execute

b. Take care clause (Art. II, sec. 3, cl. 2) ( to make sure that federal law is faithfully executed

c. EXECUTIVE DETENTION & “ENEMY COMBANTANTS” AFTER 9/11

i. The “war on terrorism”

1. President claimed broad authority to detain “enemy combatants” (people that pres believes is involved in/ supporting terrorism against U.S.) to protect national security

a. Supporters ( constitution envisioned expansive presidential power to deal w/ external threats

b. Critics ( constitution rejects unchecked executive power

ii. Hamdi v. Rumsfeld (2004): an American citizen apprehended in a foreign country & held as an enemy combatant must be accorded due process & a meaningful factual hearing

1. Background ( Hamdi apprehended in Afghanistan, brought to Guantanamo, moved to military prison in SC. Held as an enemy combatant, but never charged w/ anything.

2. Hamdi’s claim ( his detention violated the Non-Detention Act which states that “no citizen shall be imprisoned or otherwise detained by the U.S. except pursuant to an Act of Congress.”

3. Categorizing the President’s actions

a. Category 1 (Apex) ( Congress authorized President’s actions through the Authorization for Use of Military Force (AUMF)

i. Unless it’s found that the Act is unconstitutional, President is okay

4. The process due

a. Looking at the Eldridge factors, the process required is:

i. Notice of factual basis

ii. Fair opportunity to rebut

iii. Neutral decision-maker

b. This process still short of full Bill of Rights due process (civilian court)

i. e.g. hearsay allowed, burden of proof placed on Hamdi (“innocent until proven guilty” not applied)

5. Scalia & Stevens ( there is no authority to hold an American citizen in the U.S. as an enemy combatant w/o charges or trial, unless Congress expressly suspends the writ of habeas corpus

a. Give him all or nothing- a civilian criminal trial, or let him go

6. Thomas ( president has inherent authority, pursuant to Art. II to hold Hamdi as an enemy combatant w/o any form of due process

iii. Hamdan v. Rumsfeld (2006)

1. Background

a. Military tribunals: courts created by President to try non-American citizens accused of participating in or assisting terrorism

2. Categorizing the President’s actions

a. Category 3 (lowest ebb) ( Uniform Code of Military Justice (UCMJ) states that military proceedings must comply w/ the UCMJ as well as the Geneva Accords (the law of war)

i. Geneva Accords states that D be tried by a regularly constituted court

3. Still constitutional?

a. After Hamdan, President goes to Congress to ask Congress to write a law to approve trying alien unlawful enemy combatants by military commissions

iv. Postscript

1. Boumediene: Congress removed the right of habeas corpus for people being held in Guantanamo. Court found that congress cannot take away rights to habeas corpus

2. Al-Marri: same issue as Hamdi- lawful alien residing in U.S. was detained & sent to Guantanamo. But SCOTUS had to dismiss the case as moot when Al-Marri was moved to a civilian brig.

d. CONGRESSIONAL VIOLATION OF SEPARATION OF POWERS

i. Rise of the administrative state

1. Federal agencies possess:

a. Legislative power to make rules

b. Executive power to enforce them

c. Judicial power to adjudicate them

2. Reasons Congress delegates power to administrative agencies:

a. Need for complex regulation seems better handled in a specialized agency

b. Sheer quantity of regulations exceeds the capacity of Congress

c. Political dimension ( expansive delegation of legislative power to administrative agencies allows Congress to act, but avoid political heat that specific regulations might engender

ii. The non-delegation doctrine

1. Principle that Congress may not delegate its legislative power to administrative agencies

2. Legislative delegations

a. Problems that may arise from delegating power:

i. Congress tries to give away power it doesn’t actually have (e.g. Lopez)

ii. Congress tries to give away too much power

b. Not a single federal law has been declared an impermissible delegation of legislative power since 1935

i. This reflects fact that broad delegations are necessary & judiciary is unable to draw meaningful lines

c. PROBLEM b/c political decisions are made by unelected administrative officials & it undermines basic philosophy of separation of powers

3. Whitman v. ATA (2000)

a. Reasons for delegations

i. Expertise ( EPA is in a better position to decide what air quality regulations should be

ii. Buck-passing ( EPA takes blame for substance of standards, & Congress takes stand for “clean air”

iii. Flexibility ( when Congress passes Clean Air Act, there is not yet enough scientific knowledge about what standards are necessary yet

b. The proper remedy

i. Delegation & constitutionality of the EPA’s air quality regulations were upheld

c. The relevant standard ( “intelligible principles”

i. Congress must give “intelligible principles” to guide the agency in its exercise of discretion

ii. “requisite” delegation of power— not lower or higher than necessary to protect the public health w/ an adequate margin of safety—fits w/in discretion

4. The role of the judiciary

a. Despite expansive delegation of power standards, SCOTUS might find a statute so devoid of “intelligible principles” as to be unconstitutional

5. The TARP

iii. The legislative veto

1. Background

a. Legislative veto: Congress reserves to itself (or one of its houses or committees) a power to overturn an agency’s action by doing something short of passing new law

i. Typical form of legislative veto provision: resolution of 1 house of Congress

ii. Impermissible b/c the only permissible means for Congress to reverse Exec branch’s decision of how to enforce a federal law is to pass a new law

b. 1930s ( explosion of granting power to agencies & explosion of legislative vetoes

2. INS v. Chadha (1983) ( legislative vetoes unconstitutional

a. Background: INS judge (administrative judge) ruled in favor of D. House passed resolution ordering his deportation. INS reopened proceedings & order deportation.

b. The law-making process

i. If resolution is legislative in nature, it must go through the constitutional law-making process of Art. I, § 7

1. Art. I, § 7: bicameralism (passage by both House & Senate) + presentment (giving the bill to the president to sign/ veto)

2. Legislative effect: altering the legal rights, duties & relations of persons

c. Nature of the resolution

i. This resolution was legislative in effect b/c it altered the legal rights/ duties of D

1. Also, b/c Congress used to use private bills to accomplish same goals, it indicated that legislative vetoes was just a more convenient way to pass legislation

ii. Examples of non-legislative resolutions: resolutions declaring someone great or not great

d. Expressio unis exclusio alterus: express for one, but exclude the rest

i. If you express one, it can be inferred that you are excluding the rest

ii. Constitution explicitly expresses when each House can act alone, so it can be inferred that any other act must be bicameral

3. Formalism & functionalism

a. Formalism: emphasizes the formal structure prescribed in the Constitution for adopting laws

i. b/c the legislative veto does not go through the constitutional law-making process, it is unconstitutional

b. Functionalism: legislative veto was essential to check administrative power

i. w/o legislative veto, Congress has to either refrain from delegating at all, or abdicate law-making function to the executive branch & its agencies

4. Post-Chadha alternatives (which are less convenient than legislative vetoes):

a. Pass new laws ( Congress can overturn agency decisions so long as there is bicameralism & presentment (politics will be harder though)

b. Informal political checks:

i. Congress controls spending (appropriations) of agencies

ii. President appoints agency members, subject to Senate approval

c. More specific legislation

iv. The line-item veto

1. The relevant political dynamic

a. Line Item Veto Act of 1996: federal statute which created authority for president to cancel particular parts of appropriation bills while allowing the rest to go into effect

i. Empowered Pres to cancel particular parts of appropriation bills while allowing the rest to go into effect

ii. Political expediency ( gives Pres power, & also gets Congress out of having to answer about such decisions

2. Preliminary issues

a. Ripeness ( we don’t know if Pres is actually going to exercise authority

b. Injury ( here, change in market conditions is sufficient injury to meet the standing requirements

i. In Raines v. Byrd Court found that veto does not affect Senator directly (argument that Senator’s influence in the legislative process is diminished if Pres can veto certain provisions was too far-fetched)

c. Law-making process ( prohibition against line-item vetoes only apply to law (not executive actions)

i. Law first is subject to bicameralism before it’s sent to Pres for presentment

3. Court’s analysis in Clinton v. New York (1998)

a. Line-item veto unconstitutionally increases presidential power

i. Law that Pres ultimately approves is not what Congress passed

ii. In legal & practical effect, Pres amends 2 Acts of Congress by repealing a portion of each

b. Formalistic approach ( repeal of a statute (even a portion) must conform w/ Art. I

4. Similar mechanisms

a. Vetoing separate bills in their entirety, & approving separate bills in their entirety

i. Multiple spending appropriations on a single bill ( forces votes for a bill if members agree w/ some appropriations & not others

5. Presidential signing statements: Pres signs a bill into law, but expresses that he will not enforce certain provisions

a. Entire bill still written into law, but provisions he refuses to enforce are effectively vetoed

b. The unenforceable provisions require Attorney General’s approval before acting

c. Can only hold provisions unenforceable if he believes they are unconstitutional; if he disagrees w/ them on policy grounds, then he has to veto (the whole bill)

e. APPOINTMENT & REMOVAL POWERS

i. Appointments & removal issues

1. Power to appoint & remove officers ( power to control (to a large degree) what the officers do

2. Congress’s incentives to insulate officers from President:

a. Assure that executive officers adhere to Congress’s intent (rather than President’s)

b. Political insulation ( it does not want certain officers to be affected by the election cycle (to be outside political tensions)

3. No constitutional provision addresses removal power

a. Constitution only specifies that can remove officers through impeachment

ii. Appointments clause (Art. II, § 2, cl. 2)

1. Officers of the U.S.

a. Pres appoints officers of the U.S., but Congress can vest the appointment of inferior officers in the president, federal courts, or the heads of departments

i. Officers are generally appointed (so, Senators aren’t officers b/c they’re elected)

b. Officers of the U.S.: someone who is exercising a significant degree of discretion or judgment for the application/ enforcement/ execution of federal law

i. Significant degree= more than de minimus or trivial

2. Principal & inferior officers

a. Inferior officers report to & are removable by higher Exec. branch official

b. Duties are limited ( no policy-making

c. Tenure is temporary

d. Limited jurisdiction ( limited scope of subject areas that officer works in

3. The role of Congress

a. Congress gives the appointment power to:

i. President, heads of departments, or federal courts

ii. NOT to itself or to its officers

b. President retains control if the position is purely executive, but for other positions Congress does not intrude on President’s role

4. “Courts” and “departments”

a. Freytag v. Commissioner of IRS (1991): Tax court is an Art. I court (not an Art. III court), making judges in tax court inferior officers

i. Thus, Congress can delegate powers

b. Departments are something bigger; they are cabinet-level

iii. Removal power

1. ANALYSIS:

a. Are Congress’s limits on removal constitutional?

i. Cannot completely prohibit presidential removal (but can limit to “good cause”)

ii. Cannot give itself sole power to remove an executive official

2. General rule: President has power to remove exec officials, but Congress may limit the removal power if it is an office where independence from the president would be desirable

3. Limitations on President’s power to remove

a. “Good Cause” limitation: Pres cannot remove officer unless something really bad has happened

i. Restricts president from a) removing officers from previous administration and b) moving administration in direction he wants to go

b. Constitutional standard: 2 factors:

i. Nature of limitation ( strength of the restriction

ii. Nature of the office ( more important than the office, the more significant the intrusion on the President’s power

c. Morrison v. Olson (1988): law creating independent counsel provided that she be removed by AG only for cause. This does not prohibit removal; it allows the AG to fie independent counsel for “good cause,” so limit is constitutional

i. Test: whether the removal restrictions are of such a nature that they impede the President’s ability to perform his constitutional duty

d. Humphrey’s executor v. U.S. (1935): Congress may not limit removal of cabinet officials, but can for officers in independent regulatory agencies (e.g. FTC, SEC, FCC)

i. Cabinet is there to carry out the president’s policies

4. The role of Congress

a. Congress cannot prohibit all removal, & it cannot give the removal power to itself (other than by exercising impeachment power)

b. Bowsher v. Synar (1986): head of a congressional agency could be removed only by Congress—but it is impermissible for the exec power to be exercised by a person who was totally insulated from presidential removal

i. Congress cannot reserve for itself the power of removal of an officer charged w/ the execution of the laws except by impeachment

ii. Congress cannot be involved directly (legislative veto) or indirectly (through removal power) in the execution of laws

5. Congressional silence

a. If Congress chooses not to include removal clause, then removal power lies w/ Pres by default

i. Constitution doesn’t say anything about removal, so if Congress is also silent, then President can remove officers at will

6. Other applications

a. Limitation could be of such a nature that it trammels the President’s power to enforce federal law

VIII. FEDERAL LIMITS ON STATE REGULATION OF INTERSTATE COMMERCE

a. Structural limitations on the states

i. Principal reason Constitution was made ( to make sure states do what they want, in the interest of the nation as a whole

ii. But state have an electoral incentive to represent their states alone (even at the expense of surrounding states & country as a whole)

1. 3 doctrines that address this by limiting state authority: preemption, dormant commerce clause, privileges & immunities clause

iii. Underlying question: what is the appropriate & desirable allocation of power b/w the federal govt. & the states as well as among the state govts?

1. What is the proper role of the judiciary in reviewing state & local regulations?

b. PREEMPTION

i. Supremacy clause (Art. IV, § 2):

1. If there is conflict b/w federal & state law, federal law controls & state law is invalidated

ii. The central question: what was Congress’s intent, in respect to the displacement of state law?

iii. Varieties of preemption

1. Express: by explicit preemptive statutory language

2. Implied: by structure and purpose

a. Field preemption: where the scheme of federal regulation is so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it

i. Relatively uncommon b/c legislation would have to be very comprehensive

b. Conflict preemption: where there is a conflict b/w how the state is regulating & what the federal statute says

i. Impossibility: impossible to comply w/ federal & state law at the same time

ii. Frustration of purpose: where state law stands as an obstacle to the accomplishment & execution of the federal statutory scheme

iv. Field preemption= obstacle preemption

1. If Congress’s intent is to “occupy the field,” then 1 of its objectives in enacting law is to displace all state law addressing that same subject

v. The presumption against preemption

1. Start w/ the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear & manifest purpose of Congress

a. Especially if it is an area that states historically regulate

vi. Sprietsma v. Mercury Marine (2002)

1. The plaintiff’s claim ( common law tort action based on an unreasonably dangerous product b/c it lacked a propeller guard

2. Express preemption

a. Statutory analysis to determine if federal law preempts a specific state law

b. Here, the language of the clause is most likely read as not encompassing common law claims

3. Implied preemption from the failure to regulate

a. Not present b/c Coast Guard does regulate (would be present if Coast Guard did not take up the question; if it was not intended to be regulated)

i. Could be categorized as implied preemption of frustration of purpose b/c state’s regulation is an obstacle to federal govt’s decision not to regulate

4. Implied field preemption

a. Not field preemption b/c Coast Guard didn’t regulate the entire field

c. DORMANT COMMERCE CLAUSE

i. Dormant commerce clause (DCC): principle that state & local laws are unconstitutional if they place an undue burden on interstate commerce

1. SCOTUS has inferred prohibition against states burdening interstate commerce from grant of power to regulate commerce to Congress (commerce clause ( Art. I, § 8, cl. 3)

2. Three categories of laws that challenge DCC:

a. Facial discrimination against out-of-state commerce (generally invalidated)

b. Apparently facially neutral laws that in fact favor local economic interests at the expense of out-of-state competitors (invalidated if protectionist in effect)

c. Facially neutral laws that have a disproportionate adverse effect on interstate commerce (sometimes invalidated)

3. If Congress can regulate action under its commerce power, then dormant commerce clause will apply (scope is the same)

4. Purpose of dormant commerce clause (DCC):

a. Stopping protectionist state legislation where a state would discriminate against out-of-staters to benefit its citizens at the expense of out-of-staters

b. Bring about national prosperity or aggregate social welfare through free trade across state boundaries

c. Representation reinforcement: courts needed to protect interests that will be systematically disadvantaged in the political process (e.g. out-of-state interests are by definition unrepresented in a state’s political process)

5. ANALYSIS:

a. Is the activity w/in the scope of the commerce clause?

i. If YES, move on

b. Is it discriminatory?

i. Balance a) any legitimate state interests & b) non-discriminatory alternatives

ii. Look for protectionist purpose/ effect

iii. Apply HEIGHTENED scrutiny

c. If nondiscriminatory, does it have a disproportionate adverse effect on commerce?

i. Pike balancing test: burdens on IC v. the law’s benefits

ii. Facial discrimination against out-of-state commerce

1. Facially discriminatory: obviously discriminatory b/c the statute terms expressly draws a distinction b/w in-staters & out-of-staters

a. Court will invalidate such laws as “virtually” invalid

b. HEIGHTENED scrutiny: legitimate interest & necessary fit b/w means & ends (i.e. no alternatives)

2. Philadelphia v. NJ (1978): NJ law effectively kept landfills in the state exclusively for NJ’s use by preventing importation of any wastes from out of state (facially discriminatory)

a. SCOPE: collection of waste falls under commerce clause- use of channels as IC (1) and has a substantial effect on IC (3)

b. NJ had a legitimate interest (reducing waste), but there were also alternatives (e.g. limit the amount of trash that residents deposit in each landfill)

i. b/c there were non-discriminatory alternatives to reach the same legitimate goals, law is unconstitutional

3. Applicable analysis:

a. Does state have a legitimate interest?

b. Does state have any non-discriminatory alternatives?

4. Maine v. Taylor (1986): permissible facial discrimination

a. State law banning importation of out-of-state fish was upheld b/c 1) had a legitimate environmental purpose and 2) that purpose could not be served as well by available nondiscriminatory means

5. Hughes v. OK (1979): impermissible state hoarding of natural resources

a. OK law forbidding any person to transport minnows (fish) out of state was invalid

b. OK failed to resort to nondiscriminatory alternatives (e.g. limiting # of minnows that can be taken)

iii. Facially neutral laws w/ protectionist purpose or effect

1. Terms treat in-staters and out-of-staters alike, but the purpose and/ or effect of the law is to discriminate

a. These laws are treated as “protectionist,” and thus as “virtually per se invalid”

b. Proof of a forbidden purpose may be inferred from the effects of a state rule

c. Important discriminatory factors:

i. Effect is to exclude all out-of-staters

ii. Imposes costs on out-of-staters that in-staters would not have to bear

iii. Law is motivated by a protectionist purpose, helping in-staters at the expense of out-of-staters

2. Baldwin v. G.A.F. Seelig (1935): NY law that restricted prices of milk produced out of state & prevented it from being sold at a price lower than in-state milk

a. Practical effect: favored NY producers if out-of-state prices were lower, eliminating the competitive advantage ( invalid

3. H.P. Hood & Sons v. Du Mond (1949): NY law prevented P (Mass.) from constructing an additional depot for receiving milk

a. Effect: kept more milk for in-staters at the expense of those in Mass. & effectively excluded foreign milk handlers from coming into NY to purchase

4. Hunt v. Washington State Apple Advertising (1977): NC law requiring all containers of apples sold/ shipped have a USDA grade stamp, whether produced in or out-of-state

a. Practical effect: burdening interstate sales of WA apples, & eliminating (or substantially reducing) competition based on quality

5. Any effort to confer a benefit upon a local industry not granted to out-of-state industry is presumptively invalid as discrimination

a. e.g. Bacchus Imports v. Dias: Hawaii exempted liquor tax on only local producers

6. Exxon v. Governor of Maryland (1978): MD law prohibiting petroleum product refiners from operating retail service stations in MD. No gasoline was refined in MD; all gas was imported from out-of-state refineries.

a. Non-protectionist purpose to prevent interstate refiners from hoarding profits; rather than for MD to produce more profits

iv. Undue burdens on interstate commerce

1. The Pike Balancing Test: the law’s burdens on interstate commerce v. its benefits

a. Extent of the burden that will be tolerated depends on:

i. The nature of the local interest involved, AND

ii. Whether it could be promoted as well w/ a lesser impact in interstate activities

2. Kassel v. Consolidated Freightways (1981)

a. Iowa’s law & it’s purpose: banned double trailers to cross state b/c of asserted purpose of safety & reduction of road wear

b. Balancing benefits & burdens:

i. “safety” benefit non-existent b/c doubles are just as dangerous as singles

ii. Burden: degree of interference w/ interstate commerce is greater

c. Protectionism ( exceptions for trucks to enter Iowa’s bordering cities (as to reap benefit of double trailers driving across country), but didn’t allow them across state

3. The purpose of Pike Balancing

a. If law is found non-discriminatory, then Pike test is used to determine if it is unconstitutional

v. Exceptions to the DCC

1. Congressional approval

a. If Congress approves, it has acted; so question is really whether fed law is a constitutional exercise of its Commerce clause (not DCC)

i. Congress has absolute power to regulate commerce among the states & may authorize laws that otherwise would violate the DCC

b. Prudential Insurance v. Benjamin (1946): SC imposed a tax on insurance companies, but exempted in-state companies; but federal McCarran Act permitted states to regulate insurers however they wished

i. Although SC law was facially discriminatory, Congress acted so constitutional under Commerce power

2. Market participation

a. A state (or local govt.) may favor its own citizens in dealing w/ govt-owned business & in receiving benefits from govt. programs

i. If the state is literally a participant in the market (e.g. state-owned business), & not a regulator, DCC does not apply

b. Reeves v. Stake: cement company owned by SD charged less to in-state purchasers & more to out-of-state purchasers ( SD was a market participant

i. Constitution doesn’t limit states’ ability to operate freely in fee market

c. South-Central Timber Development v. Wunnicke (1984): AK law requiring purchasers of state-owned timber have the timber processed in AK before shipped out of state was still unconstitutional

i. AK’s conditions affected more than just the raw timber market—also the processing market (which it is not a participant of)

ii. MP exception only allows state to impose burdens on commerce w/in the market it is a participant

d. PRIVILEGES AND IMMUNITIES CLAUSE

i. Central purpose

1. Art. IV, §2: “The citizens of each state shall be entitled to privileges and immunities of citizens in the several states.”

a. Limits the ability of the state to discriminate against out-of-staters w/ regard to fundamental rights or important economic activities

ii. ANALYSIS:

1. Has the state discriminated against out-of-staters?

2. Is such discrimination w/ regard to privileges & immunities that it accords its own citizens?

3. If there is such discrimination, is there sufficient justification for the discrimination?

a. Intermediate level of scrutiny ( substantial interests + substantial relation b/w means & ends

iii. Citizens (the term “citizen” is limited to individuals who are U.S. citizens

a. Corporations and aliens CANNOT sue under the privileges & immunities clause

iv. The “privileges and Immunities” of citizenship ( rights that are fundamental to the union

1. Constitutional rights

2. Most common rights protected: right to pursue a calling or earn a livelihood

3. Supreme Court of New Hampshire v. Piper (1985): admission to bar is a privilege b/c the practice of law is important to the national economy

v. INTERMEDIATE level of scrutiny ( P&I permits discrimination against nonresidents where:

1. There is substantial reason for the difference in treatment, and

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

a. Are out-of-staters a peculiar source of harm?

b. Are there less restrictive means?

vi. Relationship to the Dormant Commerce Clause

1. Similarities:

a. Both are used to challenge state & local laws that discriminate against out-of-staters

2. Differences:

a. P&I can be used only if there is discrimination against out-of-staters, while DCC can be used to challenge state/ local laws that burden IC, regardless of whether they discriminate against out-of-staters (but discriminatory laws more likely to be invalid)

b. Corporations & aliens can sue under DCC, but not under P&I clause b/c P&I is expressly limited to “citizens”

c. DCC has 2 exceptions, that do not apply to the P&I clause (congressional approval, and market participant exceptions)

vii. United Building v. Camden (NJ, 1984): P&I clause applied to a city’s ordinance requiring that at least 40% of the employees of contractors/ subcontractors working on city construction projects be residents of the city

1. DCC revisited

a. DCC would not apply here b/c market participant applies: City is hiring contractors, thus participating in the market

b. Reasoning that the City is spending its own money is free to freely market does not translate to P&I

2. Discrimination against out-of-staters is allowed only if it is substantially related to achieving a substantial state interest

IX. STRUCTURE OF CONSTITUTION’S PROTECTION OF CIVIL RIGHTS/ LIBERTIES

a. CONSTITUTION’S PROTECTION OF INDIVIDUAL RIGHTS

i. The original Constitution

1. Contained very few protections of individual rights

a. There was only the Privileges & Immunities clause of Art. IV, & some rights in sec. 9 and 10 of Art. I

2. Anti-federalists raised the issue of there being virtually no individual protections in the Constitution

a. Madison proposes 16 amendments to the Constitution; 12 are passed by 2/3 of the House & Senate

b. Ultimately 10 are ratified ( a.k.a. Bill of Rights

ii. The state action doctrine

1. The Constitution only applies to the states

a. EXCEPTION: 13th amendment (prohibiting slavery) applies to everyone

2. Constitution is only a restraint on the federal government

iii. The antebellum period: Barron v. Mayor & City Council of Baltimore (1833)

1. Takings clause of the 5th amendment did not apply to the city

2. The Bill of Rights (BoR) is only a restriction of federal actions, not state & local conduct

a. If framers intended BoR to apply to the states, they would have declared this purpose in plain & intelligible language

3. Each state established a constitution for itself, which provided such limitations & restrictions on the power of its govt.

b. CIVIL WAR, RECONSTRUCTION, & THE SLAUGHTER-HOUSE CASES

i. “A new birth of freedom”

1. 14th amendment: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”

a. Debate over whether this clause meant to apply the BoR to the states

ii. The Slaughter-house Cases (1873): LA law gave a monopoly in the livestock landing & the slaughterhouse business for the City of New Orleans. Butchers challenged the monopoly under the 13th, 14th, & 15th amendments.

1. “One pervading purpose” of the 13th, 14t h & 15th amendments is:

a. the freedom of the slave race,

b. the security & firm establishment of that freedom, &

c. the protection of the newly made freeman & citizen from the oppression of those who had formerly exercised unlimited dominion over him

i. (very narrow interpretation of these amendments)

2. Different forms of citizenship ( state & national citizenship

a. Privileges or immunities clause of the 14th amendment specifically refers to national citizenship

i. The preceding sentence of this clause specifies both national & state citizenship (citizen of the U.S. & the state wherein they reside)

3. Absurd consequences

a. There are many rights that are conferred by the 14th amendment; thus, it would be “absurd” to have states provide these rights

b. So, makes sense that the 14th only applies to national citizenship

4. The privileges of national citizenship

a. Privileges of national citizenship existed before P or I clause existed:

i. To come to the seat of the govt. to assert any claim he may have upon that govt.

ii. To transact any business he may have w/ it

iii. To seek its protections

iv. To share its offices

v. To engage in administering its functions

vi. Right of free access to its seaports & courts of justice in the several States

vii. To demand the care & protection of the fed govt. when on the high seas or w/in jurisdiction of a foreign govt.

b. So, the P or I provision was interpreted as to rob it of all meaning (doesn’t contribute anything new to the constitution)

5. Lasting significance

a. The P or I clause has been rendered practically null

b. Today, all issues b/w the BoR and the state & local govts. are brought through the interpretation of the due process clause of the 14th amendment

c. THE PRIVILEGES OR IMMUNITIES CLAUSE OF 14TH AMENDMENT

i. Saenz v. Roe (1999)

1. CA law that limited welfare benefits for new residents in the state to the level of the state that they moved from for their 1st year of residence, was rather invalid by the privileges or immunities clause of the 14th amendment

a. First use of the P or I clause to invalidate a state law

2. Right to interstate migration ( fundamental right

a. Right of new residents to be treated the same as longer term residents of a state

b. This aspect of the right to travel is protected by the P or I clause of the 14th

3. Rejected argument: CA doesn’t want to become a magnet for those seeking to collect higher benefits

a. Number of people doing so is not large enough to indicate a burden

b. CA indicated that the legislation was not enacted for this reason

c. Even if it were, such a purpose is impermissible

4. Discrimination among CA residents, based on how long they’ve been residents

a. As opposed to discrimination on the basis of state residence (Art. IV, sec. 2)

b. States can, however, inquire into whether a person is truly a resident of the state

5. Impermissible purpose subject to STRICT scrutiny

a. State may draw no distinction b/w classes of citizens based on length of residence w/o compelling justification & narrowly tailored law to achieve the goal

d. “INCORPORATION” OF THE BILL OF RIGHTS THROUGH THE DUE PROCESS CLAUSE

i. An alternative route ( due process clause of the 14th amendment

1. Slaughter-house Cases made application of BoR to the states through the P or I clause impermissible

2. BUT, at least some of the BoR provisions are part of the liberty protected from state interference by the due process clause of the 14th amendment

3. Twining v. NJ (1908): personal rights safeguarded by the first 8 amendments against national action may also be safeguarded against state action b/c a denial of them would be a denial of due process of law

a. These rights are of such a nature that they are included in the conception of due process of law

ii. The standard for incorporation ( if the right is synonymous w/ liberty

1. Right is really important AND

2. Rooted in tradition & pedigree

3. Palko v. Connecticut (1937): right to trial by jury & the immunity from the prosecution except as a result of an indictment may have value & importance; BUT, they are not of the very essence of a scheme of ordered liberty

4. Duncan v. LA (1968): laws that are incorporated are those that are “fundamental principles of liberty & justice which lie at the base of all our civil & political institutions”

a. “basic in our system of jurisprudence” & “fundamental right, essential to a fair trial”

iii. Selective ( due process clause does not, in bulk, take the BoR & apply them to the states

1. Court goes through each case, one by one, identifying which cases incorporated the rights to the states

2. Amendments not incorporated: 2nd, 3rd, 7th, 8th (excessive fines provision), grand jury indictment

iv. Rights are (mostly) incorporated “jot for jot”

1. Because it is the due process clause that is imposing these rights on the states, they do not have the same restraints as they do on the fed govt.

2. e.g. you can invoke the 6th amendment directly when the fed govt. is prosecuting; but does not apply directly to the states

a. In state court, criminal juries do not have to have 12 jurors, & do not need to be unanimous

3. Chemerinsky: BoR provisions that have been incorporated as practically applying to the states exactly as they apply to the fed govt. (except for the 12-person jury & unanimous verdict requirements)

v. Some implications

1. Substantive rights have been incorporated, giving rise to substantive due process

2. If the test is “the right so important to be extended to states,” then it is not limited to the Bill of Rights

a. Due process clause has incorporated unenumerated (not appearing in the Constitution) rights, including:

i. Lochnerism rights

ii. Privacy rights

X. DUE PROCESS

a. SUBSTANTIVE DUE PROCESS & ECONOMIC LIBERTIES

i. Generally

1. Three historical periods:

a. Incorporation

b. Lochner

c. Modern due process: non-economic rights

2. Due process has to do w/ things dealing w/ the process before the govt. acts

a. Munn v. IL (1877): regulation of business will be found to evaluate due process in mere private contracts, relating to matters in which the public has no interest

b. Mugler v. KA (1887): state laws would be invalidated as violating due process unless they truly were an exercise of the state’s police power

i. Statute must have a real or substantial relation to public health, public morals, or public safety

c. Allgeyer v. LA (1897): law interfering w/ freedom of contract violated the due process clause of the 14th amendment

i. “Liberty,” as mentioned in the 14th, is deemed to embrace the right of citizens to be free in the enjoyment & use of all his faculties

3. Textual problem ( text of Constitution talks about process, but does not say anything about the substance of the laws

4. Methodological problem ( how to discern which rights should be protected? What is a fundamental right

5. Institutional legitimacy problem

a. Judges/ Justices are making their own decisions about which rights are really important

b. Acute institutional legitimacy concern ( to what degree should the Courts be interfering w/ the elected branches?

ii. The Lochner era

1. Lochnerism & the questions it poses

a. Period when economic rights were protected under due process clause

b. Consensus among constitutional lawyers (except libertarians) that Lochner was wrong

2. Lochner v. NY (1905)

a. The substantive right ( freedom of contract

i. Right to contract is inferred from “liberty” in the due process clause

ii. Here, bakery owners & bakers freedom to contract for as many hours of work as they wished

b. Legitimate state interests

i. Govt. could interfere w/ freedom of contract only to serve a valid police purpose: to protect the public safety/ health/ morals

ii. Here, govt. claims its interest is in the public health/ welfare of bakery workers; but the relationship b/w workers’ hours & public health is not a substantial relationship

1. Clean/ wholesome bread doesn’t depend on the hours baker works

iii. No reason why bakers as a class need more protection than any other worker

c. STRICT level of scrutiny

i. Substantial state interests AND substantial means-end relationship

1. Substantial relationship b/w the means employed by the state & the end sought to be accomplished by its legislation

ii. Here, NY law purported to exercise police power for public health, but in reality was redistributing wealth

d. Lochner is an example of classic substantive due process:

i. The due process clause was used not to ensure that the govt. followed proper procedures, but to ensure that laws served an adequate purpose

ii. Court scrutinized the ends served by the legislation (to ensure that there really was a valid police purpose) AND the means (to ensure that the law sufficiently achieved its purported goal)

3. Lochner era cases

a. Adair v. U.S. (1908) & Coppage v. KA (1915): govt. laws prohibiting employers from insisting on a condition that employees agree not to join a union were unconstitutional as impermissibly infringing freedom on contract

b. Nebbia v. NY (1934): upheld NY law that set prices for milk; Court began to question the basic principles of the Lochner era

iii. Demise of the Lochner era

1. The New Deal crisis

a. Criticism

i. Court’s commitment to laissez-faire economics was misguided & ultimately favored employers/ corporations over employees/ consumers

ii. Inconsistent application of the Lochner doctrine

iii. Too much judicial activism: unelected judges were substituting their values for those of popularly elected legislatures to protect rights not expressly stated in the Constitution

b. FDR’s Court-packing plan ( “switch in time that saved the nine”

i. Justice Roberts switched sides to cast the 5th vote in West Coast Hotel to uphold the law

2. West Coast Hotel v. Parrish (1937): upheld state law that required minimum wage for women employees

a. Did not recognize freedom of contract

b. Govt. could regulate to serve any legitimate purpose (does not need to be for public safety/ health/ morals)

c. RATIONAL BASIS review: regulation which is rational in relation to its subject & is adopted in legitimate interests of the community is due process

i. Judiciary would defer to the legislature’s choices so long as they’re reasonable

3. Williamson v. Lee Optical (1955): upheld OK law that prohibited optician to fit/ duplicate lenses w/o a prescription from an optometrist/ ophthalmologist

a. The strength of the state’s interests

i. It is enough that the state thought that optometrists/ ophthalmologists are more “expert”

ii. As long as the Court can conceive some legitimate purpose for the state passing law, it is a legitimate state interest

1. Court hypothesized several possible legitimate purposes for the law

b. The means-end fit ( conceivably rational relationship to any legitimate end

4. Punitive damages

a. HEIGHTENED due process review (legitimate interests & necessary means-end fit) in area of economic liberty involving limitations on punitive damages in civil cases

b. 3 “guideposts”

i. Degree of reprehensibility (e.g. pattern of conduct)

ii. Disparity b/w the harm or potential harm suffered, & punitive damages award (ratio of actual harm to punitive damages)

iii. Difference b/w this remedy & the civil penalties authorized/ imposed in comparable cases (compare state/ agency penalties for same conduct)

c. State Farm v. Campbell (2003): punitive damages award of $145M against insurance company was excessive, in violation of the Due Process Clause

i. If award is grossly excessive, it furthers no legitimate purpose & constitutes an arbitrary deprivation of property

5. Carolene Products Footnote 4: double standard of review

a. Courts generally presume that laws were constitutional (rational basis review)

b. BUT, this deference would be replaced by “more searching judicial inquiry” when:

i. It is a law that interferes w/ individual rights

ii. Law that restricts the ability of the political process to repeal undesirable legislation

iii. Law that discriminates against a discrete & secular minority

iv. Enumerated economic rights

1. The Takings clause ( “… nor shall private property be taken for public use, w/o just compensation.” (5th amendment)

a. Animating purposes

i. If govt. is going to use its power of eminent domain for public use, it is unfair to make the individual (who owned the land before) to finance the public use

ii. Govt. cannot use power of eminent domain to target political enemies

b. Doctrinal framework

i. Physical occupations ( if govt. is in some way physically occupying property, it is a taking per se & requires just compensation

ii. Regulatory takings ( circumstances where the govt. is imposing some constrictions on the use of the property, diminishing its value

1. Regulations that deprive owner of all economically beneficial use

2. Penn Central factors that determine whether regulation= taking:

a. Economic effect (in gross terms)

b. Reasonable, investment-backed expectations that regulations would not diminish certain value

c. Character of the regulation

c. “Public use”

i. Kelo v. New London: govt’s economic development project is a public use, justifying seizing P’s home for commercial development

1. Public benefit ( economic development will bring in tax revenue, jobs, & attract tourists & business

2. Since Kelo, many counties changed their policy to make eminent domain power more restrictive

ii. Public use= public purpose

2. The Contracts clause ( “… no state shall… pass any law… impairing the obligation of the contracts.” (Art. I, § 10)

a. Scope

i. Only applies to states

ii. Only applies to existing contracts

iii. Only applies to substantial impairments

b. Private contracts

i. Level of scrutiny: somewhere b/w deference & strict scrutiny (similar to intermediate scrutiny)

c. Public contracts

i. Level of scrutiny: strict scrutiny (compelling govt. interest, & a necessary means w/ no alternatives)

ii. Govt. is a party of public contracts, so we should look more closely to changes in law that impair the obligation of public contracts

b. SUBSTANTIVE DUE PROCESS & PRIVACY

i. Privacy rights that have been protected:

1. Liberty of calling of language teachers, opportunities of pupils to acquire knowledge, power of parents to control education of their own (Myers v. NE)

2. Liberty of parents/ guardians to direct the upbringing & education of children under their control (Pierce v. Society of Sisters)

3. Basic liberty of marriage & procreation (Skinner v. OK)

ii. Griswold v. Connecticut (1965)

1. The source of the right

a. Right ( right to privacy in a marital relationship

b. Sources of the right in the Constitution include:

i. 1st amendment: right of association w/o govt. intrusion

ii. 3rd: right not to have govt. demand you house military officers in your house

iii. 4th: right against unreasonable search & seizure

iv. 5th: compelled testimony

c. None of the amendments explicitly give right to privacy, but they give rise to an unenumerated right

i. Right to privacy is a legitimate penumbra (right held to be guaranteed by implication in a civil constitution)

d. Majority said that, although it looks like substantive due process, the right does not come from the 14th’s due process clause

e. Protecting privacy of married couples is rooted in tradition & history

2. Used STRICT scrutiny (compelling interest + narrow relationship b/w means-end)

3. Alternative rationales

a. Judges’ decisions reflect meaning of the Constitution today

4. Black’s dissent

a. 9th amendment (saying that enumeration of rights in Const. should not be construed to deny others) was added b/c framers worried about fed govt’s power; so should only be interpreted to limit federal power, not state power

b. “Right to privacy” does not emanate from any constitutional provision

iii. From Griswold to abortion

1. Griswold was the start to the expansion of noneconomic rights

2. Eisenstadt v. Baird (1972) declared Mass. Law prohibiting distribution of contraceptives to unmarried persons unconstitutional

a. Right to privacy for all individual (married or single) to be free from govt. intrusion

iv. Roe v. Wade (1973)

1. A fundamental right?

a. Right to abortion is a fundamental right, requiring STRICT scrutiny

i. If not found to be a fundamental right, it would be a detriment to women

b. Right to privacy (including abortion) is part of the liberty protected under the due process clause

2. The relevant governmental interests

a. Health of woman ( govt. interest only becomes compelling at beginning of 2nd trimester

b. Protecting (potential) life of fetus ( compelling interest only at viability (conclusion of 2nd trimester)

3. The trimester framework

a. 1st trimester: govt. could not prohibit abortions & could regulate abortions only as it regulated other medical procedures

b. 2nd: still cannot outlaw abortions, but govt. may regulate procedure in ways that are relevant to maternal health

c. 3rd: viability; govt. may prohibit abortions except if necessary to preserve the life/ health of the mother

4. The life & health exception: even if govt’s interest in fetus is compelling, woman is able to get an abortion to save her own life

v. Abortion politics & the Court, 1973-1992

1. Reagan comes into office after Roe & wants to overturn

a. Webster v. Reproductive Health Services (1989): upheld MO law prohibiting govt. funds for performing/ counseling abortions, but it did not overturn Roe

b. 1990 & 1991: conservative Justices Thomas & Souter entered Court

c. 1991: Court granted cert for Casey, right before the 1992 presidential election

vi. Planned Parenthood v. Casey (1992)

1. Reaffirmed the “essential holding of Roe”

a. Right to terminate pregnancy until viability

b. State can proscribe abortion after viability (subject to life & health exception)

c. State has legitimate interest in a) health of woman, & b) (potential) life of fetus from the moment of conception

2. Basis of the right:

a. Fundamental right b/c:

i. Right to bodily integrity

ii. Gender equality

b. Protection of reproductive autonomy is not rooted in tradition, but still recognized in Const. b/c intrudes in forcing a woman to remain pregnant against her will

3. Stare decisis

a. Court is warranted in overruling precedent if:

i. Prior case proved unworkable,

ii. Created reliance interest,

iii. Doctrine changed, or

iv. Facts changed in a meaningful way

b. None of these factors lead to a decision to overrule Roe

4. The revised doctrinal framework

a. Pre-viability: states can regulate abortion procedure so long as they do not impose an “undue burden” on access to abortion

i. Cannot have purpose/ effect of being an obstacle to abortion

b. Post viability: state can prohibit abortion (subject to life & health exception)

i. State determines when fetus is viable, & decides whether it wants to regulate abortion then; Roe mandated that viability= after 2nd trimester

c. Level of scrutiny: whether state regulation of abortion places an undue burden on access to abortion

i. “undue burden” standard as opposed to strict scrutiny b/c state has profound interest in potential life, & measures designed to advance this interest will not be invalidated as long as their purpose is to persuade the woman to choose childbirth over abortion

5. The regulations at issue

a. 24-hr waiting period & information ( not an undue burden b/c state’s interest in women making informed, mature decisions > obstacle for women traveling/ making excuses for absence

b. Spousal consent ( not permissible b/c forcing women to get consent could effectively make it impossible for some women to get abortions

c. Parental consent ( constitutional, so long as there is a judicial bypass where a woman who doesn’t get consent can still go to a judge who will decide

d. Facility recordkeeping ( although it is a burden in running facilities, & reduces availability of facilities, it is not an undue burden & it has a reasonable rationale

vii. Government funding & abortion

1. Negative v. positive liberty

a. Negative liberty: freedom from government control

i. In Constitution, this is the “liberty” that is meant by individual liberty

b. Positive liberty: affirmative liberty to do something

i. No positive liberty in the Constitution

2. Health insurance

a. Govt. not constitutionally required to subsidize abortions even if it is paying for chidbirth

i. Maher v. Roe: upheld state law denying Medicaid funds to non-therapeutic abortions, but provided funding for medically necessary abortions

ii. Harris v. McRae: upheld prohibiting use of federal funds for any abortions unless life of the mother is endangered, but fully paying to carry child to term

b. Reasoning:

i. No govt. duty to subsidize the exercise of a constitutional right

ii. Denial of public funding places woman in no diff. position than she would be if there was no Medicaid or no public hospital

iii. Govt. constitutionally can make choice to encourage childbirth over abortion

c. Criticism: denial of public funding has purpose & effect of preventing abortions

3. Physician counseling

a. Rust v. Sullivan: govt. does not violate 1st amendment if it denies funding to clinics that perform abortion counseling or make abortion referrals

4. Government facilities

a. Webster v. RHS: upheld law prohibiting use of public facilities for abortions

i. Govt. does not have affirmative constitutional duty to provide benefits or facilitate the exercise of rights

viii. Lawrence v. Texas (2003)

1. Background

a. Bowers v. Hardwick ruled that the right to privacy does not protect a right to engage in private consensual homosexual activity

b. Lawrence expressly overruled Bowers

2. Liberty protected ( private consensual activity b/w all consenting adults, that do not apparently harm third parties

a. State laws prohibiting private homosexual activity discriminate against gays & lesbians, & are unconstitutional

b. Affirmation of right to privacy in Constitution even though not enumerated; privacy safeguarded in decisions involving family autonomy, contraception, & abortion

c. Sexual activity is a fundamental aspect of personhood, & that it is entitled to constitutional protection

3. A fundamental right? ( deliberately ambiguous, not explicitly defining it as a fundamental right

a. Did not articulate the level of scrutiny to be used, but relied on privacy cases where strict scrutiny has been used

b. Implied heightened review when it rejected TX’s justification of law as advancing its moral judgment, which is traditionally enough to meet rational basis review

4. An “end of morals legislation”?

a. Simple moral judgment that the act is “wrong” is an insufficient govt. interest to justify intrusion on liberty

b. Scalia disagrees, saying that the decision puts in jeopardy laws prohibiting adultery, masturbation, & other activities

5. Gay marriage

a. Recognizes rights of gays & lesbians to equal dignity & equal treatment under the Constitution

b. Decision explicitly does not mean that there is a constitutional right to same-sex marriage, but states have invoked Lawrence to support same-sex marriage

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