Constitutional Law Outline

Constitutional Law Outline – Abrams – Fall 2004

I. History and Text – The Power of Judicial Review A. Constitution – is a general charter and a limitation on Federal Power, 13-15th are limits on state power as well. B. 3 Parts to this Course: Judicial Review, Individual Rights, and Structure of Government C. Constitutional Framework/Outline: 1. Article I – Congress [10 Sections within this Article] a. Section 8 – [1]“The Congress shall have power to lay and collect taxes, duties, imposts, and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States.”
b. [3] “To regulate commerce with foreign nations, and among the several States, and with the Indian Tribes” – INTERSTATE COMMERCE CLAUSE 2. Article II – Executive [4 Sections] – Question – is power inherent or limited by provisions of this Article? Doesn’t say “herein granted” like Article I does. 3. Article III – Judiciary [3 Sections] a. Section 2 discusses federal question jurisdiction – “arising under”. b. Also discusses Justiciability – “Cases and Controversies” is what limited to. 4. Article IV – Full Faith and Credit a. Section 2 – “the Citizens of each State shall be entitled to all privileges and immunities of Citizens in the several states. b. This is known as PRIVILEGES and IMMUNITIES CLAUSE. 5. Article V – Constitutional Amendments from Congress – 2/3rds of both houses to be proposed and 3/4ths of States to ratify. 6. Article VI Section 2 – SUPREMACY CLAUSE – Constitution and federal laws are supreme law of the land 7. Amendments to the Constitution a. 1st - Freedom of Speech & Press and Religion: FREE EXERCISE and ESTABLISHMENT CLAUSES included b. 2nd – Right to Bear Arms c. 3rd – Quartering of Soldiers d. 4th – Search and Seizures e. 5th – Due Process: “nor be deprived life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation – applies to the federal government f. 6th – Speedy and Public Trials g. 7th – Jury Trials h. 8th – Cruel and Unusual Punishment i. 9th – ENUMERATED – “The enumeration in the Constitution , of certain rights, shall not be construed to deny or disparage others retained by the people. j. 10th – STATES RIGHTS – “The powers not delegated to the US by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. k. 11th – Can’t sue a state or the United States in Federal Court l. 12th – Elections of Prez and VP m. 13th – No Slavery – 1st of 3 Civil War Amendments; Enforcement clause included n. 14th – Due Process – applies to the States – “No state shall make or enforce an y law which shall abridge the privileges and immunities of citizens of the US; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws (EP Clause). Enforcement clause included o. 15th – Voting for Blacks/minorities – 3rd of 3 Civil War Amendments. Enforcement clause included. p. 16th – Taxes q. 17th – Senate elections r. 18th – Prohibition s. 19th - Voting for Women t. 20th – Terms and Dates for Officials – instead of March, its Jan like for change of office – wasn’t in Marbury v. Madison – Adams in office till March. u. 21st – 18th is repealed v. 22nd – Prez can’t be elected more than twice w. 23rd – DC voting x. 24th – No poll taxes y.
25th – VP is 2nd in Line z. 26th – 18 to vote aa. 27th – Can’t vary $ compensation for Congressman until election 4 reps have intervened – was to be 1st Amendment but couldn’t get 3/4ths of states until 1992 – should the previous OK states still be bound by that OK from 200 years ago? D. Difference between Constitution and Statute 1. Constitution = general charter, oldest living Constitution in the world – UK doesn’t have one and France is on 5th or 6th. Written in 1787 and took effect in 1789. 1791 is when Bill of Rights took effect. 1781 – 1789 Articles of Confederation. 1) Durability (enduring) 2) Amendments (difficult to amend – only 27 since 1789 and 17 since 1791 and 3 were forced on states so really only 14). 3) Constitution is anti-majoritarian unlike statutes – “We the People” – wants to tie the hands of MAJ to keep structures of gov’t from being changed: ex: Even if say something 99 people hate, they can’t arrest you – MIN wins out from Bill of Rights. 4) Breadth – Much broader language, goes back to durability – often very vague language to stand the test of time. This leads to debate over terms – Original Intent (look to intent to decide on meaning of terms) v. Living Constitution (look to contemporary norms 2 decide
terms) 2. Statutes – easy to change (simple majority needed to change) and not as general or enduring – not meant to last the ages. Statutes are more specific. 3. Four Ways to Amend the Constitution: Art. 5 – Constitutional Convention called by 2/3rds of states – never done. Second way, Congress by 2/3rds of both houses and 3/4ths of state legislatures by MAJ vote ratifying can change. Of 11,000 proposals, 33 cleared Congress and 17 (14) ratified. E. How Does Constitution Limit? 1. (1) Separation of Powers (horizontally) – 3 different branches. Legislative – pass by MAJ. Executive – sign or veto and Judiciary – power to declare unconstitutional but legislature can just modify or amend the statute though. 2. (2) Federalism (vertical) – division of power between national and state governments 3. Con Law is mostly about limitation of power – originally wanted strong government to counter the previous weak gov’t under A of C. But also didn’t want to trample on personal liberties (Bill of Rights). 4. Bill of Rights and Civil War Amendments helped a lot with states rights and personal liberties – limited government a lot. F. Judicial Review 1. Not in the Constitution – was it intended? If so, it was implied then – that’s kind of circular. 2. Jeffersonians in 1790’s in favor of judicial review 3. Federalists – strong federal government 4. Anti-Federalists (Jeffersonians) – against strong fed govt 5. In 1800 after Washington and Adams (Feds), then Jefferson beat Adams (and Burr thanks to House) and tide switching to Anti – Adams wanted to keep Feds so did “Midnight Appointments” – very last minute commissions. Congress also went to Antis in 1800. Marbury’s commission got delivered on next day (Marshall’s fault as Sec of State – so should have recused himself since he was involved, plus he was acting in both roles for awhile, another no-no. Recuse for: judging own actions, personal bias, personal knowledge of disputed facts – but NOT b/c previously served as lawyer b/f appeal – that’s ok) – Jefferson had Madison hold it – Marbury suing Madison then. Judge in this case was Marshall – also got appointment by Adams. Got to the SC by mandamus – ordering govt official to do his job. Marshall ruled for Madison in the end – wanted to legitimize the judiciary plus wanted to avoid impeachment which could have happened if decided other way – Pickering impeached and Chase almost was 6. (Marbury v. Madison)(1803) – 3 questions: 1. 1) Right to Commission – If yes, proceed 2. 2) Does law give remedy? – if yes, proceed 3. 3) Mandamus in Supreme Court 4. Now, for 1) – Court says yes – its right to commission when signed and seal affixed, not when delivered. Although this is probably wrong says Abrams b/c these aren’t Art. III judges and Jefferson repealed the Act which gave them power. 5. For 2) – Court says “Where’s there’s a right, there’s a remedy” – again, good for Feds – no one is above the law. 6. Finally, 3) – here is where Court says Judiciary Act of 1789 was unconstitutional so no writ of mandamus power. Can’t create a right of mandamus in this Act – no orig. jurisdiction under Art. III, Sect. 2 [2] – Appellate jurisdiction, so can’t go straight to SC like it did. Marshall actually misquotes this and leaves out the rest of Art III (pg. 29 of CB). 7. Marshall discusses Art. VI – Supremacy Claus and says judiciary has oath to uphold. So Marbury gets nothing – and by this point in 1803, nobody cares. First time someone wrote 1 opinion for the court – lots of power 2 Marshall as well from that. Next time SC struck down a case – Dred Scott 53 years later. 8. Says Fed judiciary is supreme in the exposition of the law of the Constitution. Constitution calls for judicial review of legislative acts – if unconstitutional then law is void. G. Congressional Control of Judicial Review by the Federal Courts 1. Two ways Congress can control Article III 1. Can grant only some (aka less) of Fed. Question Jurisdiction that Constitution provides for in Art. III [Anti-Feds wanted state authority and potential appeal to SC while Feds wanted lower fed cts too – 1st Congress did create lower fed cts] 2. Congress can withdraw particular areas (this is controversial – see c below) – under Sect. 2 of Art III – Congress can cut back on this some argue, some say no and not clear. Can Congress create statutes that cut back on jurisdiction of courts over certain laws or subject matter? McCardle is an example for proponents of this stripping. Opponents say its fact specific 2 McCardle – he could have still gotten it if lawyers weren’t idiots. 3. Jurisdiction-Stripping Bills – don’t work that much (ex: Defense of Marriage Acts (keep fed cts from hearing appeals on this) didn’t pass – why? – can flip on you, winds of passion die down, and SC may find unconstitutional anyway). Other ways include: Constitutional Amendment – very hard – Only 4x’s has judicial decision been overturned. Also, impeachment process – not used that much since Chase attempt. Finally, Congress sets size of SC – can court-pack like FDR tried to do. 4. Policy Args 4 Juris-Strip Bills: (1) Check on Judicial Power and (2) Elected body v. life judges 5. Policy Args Against Juris-Strip Bills: (1) Protecting the minority hurt – ends up being majoritarian. 2. Ex Parte McCardle – says Supreme Court is appellate jurisdiction + exceptions – the particular exception in this case was removed by Congress so SC can’t review (habeas corpus exception in this case) – if appeal from US Ct of App, then OK but this was from circuit court. In this case, McCardle was Southern sympathizer and he is seeking habeas corpus in fed courts. 1789 Judiciary Act – HC for fed custody and 1867 Judiciary Act – HC for fed and state. McCardle’s laywers plead under only 1867 Act so Congress repeals this but left the 1789 one. All for this one guy…but, nonetheless, he is in state custody and so now SC doesn’t have jurisdiction. Can’t sua sponte hear case under 1789 b/c in civil cases, litigant “rises or falls with lawyer”. Plus, the SC doesn’t want to touch this case. Like in Insurance Co of Ireland case from CivPro – every fed court has jurisdiction to determine its own jurisdiction. 3. US v. Klein – deals with property after Rev. War and giving it back to people – a previous case had said didn’t have to be loyal to get it back if were pardoned. Congress so pissed that passed a statute that said if pardoned, that is even more proof that were not loyal and certainly did not mean had to give it back. SC says this statute is unconstitutional – 1) in telling a court how should decide an issue of fact and 2) denying effect to a Prez pardon. So, Ct didn’t have to dismiss Klein’s case to recover his property under the Constitution. Congress can’t control ev. that a court hears in a particular case. Opponents of jurisdiction stripping use this case while proponents say just don’t step on Exec power is all this case says. H. Jurisdiction of Federal Courts 1. Still today, State court decisions on state law can’t be reviewed by SC 2. Also, if state court rules against a party on 2 grounds – 1 federal and 1 state, then SC lacks jurisdiction to inquire into the correctness of the federal law ruling. This doctrine is called adequate and independent state ground. With substantive – only question is, is the state substantive ground independent? More deference to state court decisions with this. As for procedural, if state court refuses or fails to decide on fed law – SC can review if procedural decision not adequate – question is, what’s adequate? Judicially Created phrase. If so, fed courts don’t review it - if would come out very same way regardless of how would decide the fed issue. See Sheet with review questions from pg. 48!! REVIEW 3. As for Constitutional Litigation initiated in the fed cts – only SC was authorized to review on direct appeal the decisions of state court – post Civil War, fed cts began handling private rights cases instead of states b/c of increase in them. 4. Ct in Martin v. Hunter’s Lessee – app. Review allows for uniformity of decisions upon subjects within the purview of the constitution. Much higher con law case load in state courts so don’t want 50 diff interps. 1. This case gave authority of Fed Cts to review state court decisions – its well established now but not at beginning. 2. Constitution mostly applied to fed govt – originally didn’t limit states 2 much – not till 20th Century that B of R applied to states. 3. Justice Story in his Commentaries said the KEY QUESTION is not where case originated but what case is doing in Fed Ct now? Can have concurrent jurisdiction and just b/c happened to start in state court doesn’t mean can’t be in fed court. 5. Ways to get to SC – can come up on appeal – appellant has absolute right to be heard – final adverse judgment right – BUT, today no right of appeal from state courts – must come up through cert. With states with 3 tiers – trial court and automatic right to appeal to intermediate court – from there, it is usually discretionary right of review to get to highest court of the state. This is also how states are. On appeal, also narrow grounds for fed cts also – mostly cert (7000 requests/yr and 75 granted). General RULE – when SC reviews state court decision – only the federal issues/laws not the state laws. 6. Original Jurisdiction – can hear the case as trial court; for the 1st time 7. Appellate Jurisdiction – only hear once there has been a judgment or order from Ct below 8. Exclusive Jurisdiction – only Ct that may hear the case; trial – no other trial may hear – no other app. ct may her on appeal 9. Concurrent Jurisdiction – multiple courts have. 10. Concurrent Original – can hear at trial but not only 1 11. Concurrent Appellate – can hear on appeal but not only 1 – don’t have this ONE. II. Justiciability A. Not mentioned in Constitution or statutes but “Cases and Controversies” is where comes from and that is from Art III, Section 2 B. Advisory Opinions – oldest example of justiciability issues. In order to not be advisory opinion – (1) need actual injury (2) reasonable prospect enforcement will have some effect C.
Flast v. Cohen – Washington asked for legality of things they wanted to do – SC refused, can’t answer abstract questions posed to it. If questions are outside of scope of issue, can’t answer. Case or controversy needs to be in a role consistent with a system of separated powers and which are traditionally thought to be capable of resolution through judicial process. D. Advisory Opinions bad b/c (1) Adversarial position is missing – ct will come up with better opinions and answers when 2 parties raise arguments on both sides. Hard to predict future consequences w/o adversarial and party’s briefs. (2) Cts are enforcers or implementers, that’s a check – separation of powers works best when Cts not pressed into service by other branches. The theory is premised that there is judicial review by unelected judges who are not going around looking 4 cases. Why Good? (1) may get answer quicker and w/o litigation (2) could still permit but deny in some situations. E. ERIE diversity – what if state hasn’t spoken on issue for Fed to apply state law? Generally, ban on advisory opinions in all 50 states but 45 have exceptions for states to request advisory opinion – gives state SC an oppty to speak on it b/f fed or other
states. F. Collusion suits – are considered advisory opinions also – when both parties argued for same thing once got in court and also ex: D asked P to sue G. Hayburn’s case (1792)– if appears court decision will have little or no effect – part of case said don’t have to listen to Cts opinion/decision then – its advisory. H. Dictum? – not advisory b/c obviously happens all the time – its not b/c doesn’t affect jurisdiction of Ct – its in there so ok if add discussion of other issues – its already a case & controversy. I. Ways to Raise Constitutional Issues 1. Make statutory basis of claim or defense 2. If Govt brings civil suit based on statute – bring Constit. as a defense 3. If Govt brings crim proceeding based on statute – bring Consit as a defense 4. If damaged by govt. action claimed 2 B unconstitutional – raise issues in suit 4 damages 5. Writ of Habeas Corpus if held in official custody – can challenge constitutionality 6. Often this one – Suit seeking injunction or declaratory as 2 Constit. of a statute – this is usually where justiciability issues arise

1 Standing – 2 parts: constitutional standing and statutory standing. Constitutional – depends on whether P is a proper person 2 bring an Art. III case or controversy – both from Art. III and prudential reasons. Statutory – easier to determine – are you 1 of Ps under Plaintiff class in statute?

7. “Conventional Standing” – whether litigant is entitled to have the Ct decide the merits of the dispute or of particular issue. Standing imports justiciability – specifically whether the P has alleged such a personal stake in the outcome of the controversy and justify exercise of Ct’s remedial powers on his behalf. 8. 3 Requirements of standing (from Warth) (Constitutional ones): 1. Injury in Fact or threatened injury 2. Causation 3. Remedy/Redressability 9. Ct can bring up standing objection at any time – just like in Mottley – can have SMJ challenge brought at any time. Party can waive 2 Prudential objection but party can’t waive an Article III objection! 10. Prudential considerations also: 1. Needs to be something more than “generalized grievance” or injury suffered by lots of people. Seems odd that if more people affected, then suddenly can’t sue but this is there to prevent taxpayer suits or citizen suits. 2. Third party – P must be injured directly – can’t be injured thru 3rd parties’ rights violated. Person hurt best 2 bring up cuz maybe they don’t care and that’s why they aren’t bringing it. 11. Exceptions to Prudential doctrine: 1. Associational standing – may sue on behalf of associations 2. 1st Amendment Overbreadth – if person whose speech is protected wants 2 protect others 3. If clear that 3rd parties not in any position 2 sue 4. Close relationship b/w 3rd party and P – gradation (Boren) 12. Warth v. Seldin (5-4) – (1975) – Penfield, NY trying to keep poor people out of the city – orgs and individuals suing. DC dismissed and 2nd Circuit said no standing – is this P a proper P to bring this case? SC affirmed. Ct said P needs to allege “specific, concrete facts demonstrating that the challenged practices harm him and that he would personally benefit in a tangible way from the court’s intervention. Also, Ct says P must assert his own legal rights – can’t bring on behalf of others or legal rights of others – otherwise becomes advisory opinions. Dissent says to require them to allege such facts is to require them to prove their case on paper in order to get them into court at all...b/c MAJ had said need to show that even wanted to live there, that could afford to live there b/c thinks its economics of housing market, not illegal practices. Dissents also think let go to trial and then decide if standing once facts R out. Also says, merits of the exclusion is not the heart of complaint – its that respondents will not approve any project which will provide residences for low and moderate income people. This was a test case and so brought lots of Ps b/c expected challenge – had taxpayers (Ct said may have been injured but its 3rd party right violated – trying to allege rights of 3rd parties), associations (no right to a diverse community, which is what they were arguing – again, claiming 3rd party rights), and low, moderate income folks (but none had actually applied – Ct wanted them to actually try and build and to show substantial probability). Overall, this is a catch 22 – says need permit but no builder or others will go after a permit until a Ct says it can. 13. Village of Arlington Heights v. Metro Housing Dev. Corp. – Metro submitted K to buy 15 acres and Village refused to rezone and Metro + 3 individuals sued said racial denial. SC said Ps had standing – Ct ordinarily denies the standing 2 assert rights of 3rd person from Warth but here individual Ps who are fellow Ps – qualified, is not a generalized grievance but a particular project. Ps must show injury + nexus b/w that injury and constitutional violation claimed. 14. Craig v. Boren (1976) – statute in OK – 3.2 beers for females at 18, males at 21 – Ct said licensed vendor doesn’t have standing and sustained constitutionality – US SC reversed and said there was standing. Jus Tertii – rights of 3rd parties. Will reappear if dismiss, so stupid to dismiss – Licensed vendor has economic injury and meets statutory requirements. But kid’s claim was moot cuz he’s over 21 now and he didn’t ask for money damages – should have – would have made it not moot. 15. Federal taxpayers lack standing to challenge federal expenditures (Frothingham), except establishment clause violations (Flast v. Cohen – upheld standing b/c specific constit. limit, not generalized grievance). 16. Lujan v. Defenders of Wildlife (1992) – do Ps have standing? Statute allows for citizen-suit – as long as procedural injury – 8th Cir affirmed DC and ordered Sec. to publish a revised reg – US SC (Scalia) reversed – says statute not valid – so Ps don’t have standing. Its a generalized grievance – not concrete injury. Ct says province of the Ct is solely to decide on the rights of individuals – vindicating the public interest is the function of Congress and Prez. No standing here b/c not adversely affected. Congress doesn’t have ability to confer jurisdiction unless suffered injury – considered generalized grievance as Art III/Constit. issue. 17. With most of these cases – its a matter of broad or narrow? Hard to rectify some of the court’s inconsistent decisions. Sierra Club – no standing b/c no injury. US v. SCRAP – US SC found standing 4 the law students b/c injury in fact from breathing the air. Linda S. v. Richard D. – no standing b/c of redress ability – statute said child support from former spouses, not unwed couples. That was in 1973 and 6 years later, Orr v. Orr – only divorced women not men could get alimony – Ct struck down the statute b/c of gender discrim. What about redress ability like in 1973 case? B/f Lujan, citizen/taxpayer suits not normally upheld. (besides Flast type suits). Warth said generalized grievances were prudential while Lujan said generalized grievance arg. was Art III/Consti. 18. Akins in 1998 said Lujan was not end-all, and says P have standing under FEC Act. Congress to get around Art III needs to word carefully, right to have info not just can sue... 19. Raines v. Byrd – line item veto act – in response to pork barreling – said any member of congress may bring an action. This case stands for no standing just b/c lost a vote...older cases mentioned in Byrd were cases were votes were nullified – here that didn’t happen, just lost – said court so no standing. In 1998, ended up having the line item veto strike down in Clinton v. City of NY.

2 Mootness – must be controversy at stage of app. or cert. review, not just at date action is initiated. Single standard (doesn’t matter if originally fed or state case like it matters with standing.)

20. Standing is a threshold – determine it at pleadings – either do or don’t at that time. Mootness is where the situation is no longer an Art III Case or Controversy – if Congress changes the law for example – you have “standing” after the passage of time but nothing left to do. 21. If things change – damages are for the past – not moot – so still injured, change doesn’t fix or moot the prior injury but with injunctions – those are future – those are now moot. 22. DeFunis v. Odegaard – 1974 – during oral args at US SC, mootness arg came up and the Ct kicked this case out (probably shouldn’t have even granted cert instead of claiming mootness) – Ct just didn’t want to touch affirmative action yet....remember – Mottley – SMJ can be brought up at any time – so even if just raised in oral args, that’s ok. By the time the courts had said he shouldn’t win on race discrim. under 14th, he was already a 3L and so school wasn’t going to kick him out – he had sued after got rejected and had won at trial and got in.

23. EXCEPTIONS to MOOTNESS 1. Collateral issues – technically moot but other people collaterally affected – criminal serves sentence but still not moot b/c felony convictions can keep you from voting, etc 2. Voluntarily cessation – might create mootness but may not unless clear D won’t go back and do same activity. Ex: guy owned nudy bar – said lift conviction b/c old and will refine. Ct said not moot b/c 72 not old! 3. Certified Class Actions 4. BIG ONE – “capable of repetition yet evading review” – ex: Roe v. Wade – takes a long time for appellate review so often possibly moot – so this exception comes up alot. Could argue DeFunis but some say must be capable of repetition by THAT individual.

3 Ripeness – flip side of mootness – “time not yet arrived” – often associated with standing. Very discretionary/balancing/matter of degree – weigh hardship to parties 4 waiting v. fitness 4 review, is the record sufficient? Usually a question with injunctions and declaratory b/c they are future events and not past.

24. United Public Workers v. Mitchell – Ct said this was ripe 4 those who had been fired but not ripe for others. It was Hatch Act that said can’t be involved in political campaigns – purpose was to keep employees safe from shakedowns – declaratory judgment act sought. 25. Adler v. BOE – Ct said standing here – teachers and subversive groups. May have said in Alder guaranteed to be fired while not so sure in Mitchell or maybe cuz Alder was state ct decision and Mitchell was a fed ct decision. Q is whether U can bring suit b/f U get fired in both this and Mitchell – no question that if had been fired – standing/ripeness. Should people have to violate a statute to test a statute and risk their neck OR do b/f and use declaratory judgment act? May chill speech b/c don’t want to mess with it if have to violate first...

4 Political Questions

26. Some decisions by Legislature and Executive are discretionary and not available 4 Ct to review 27. Ex: when war ends or begins, when 2 recognize foreign govt, Constitutional amendment properly ratified – none of these are for the Cts. 28. This is a judicially created doctrine – usually not textual b/c nothing in Constitution like in Art. III like standing, mootness, or ripeness. 29. Baker v. Carr – case about re-districting – “legislative reapportionment” – the court heard this case, said not “political questions” any longer. Ct said any state tries to do what US Senate does – will violate equal protection amendment. Ct said whether falls under political question category – appropriateness under our system of govt of attributing finality to the action of political departments and also the lack of satisfactory criteria 4 a judicial determination R dominant considerations. 30. Powell v. McCormack – 1969 – controversial congressman but popular – House refused to sit him on next re-election – used Art I Sect. 5 – Powell said can’t do that/can’t keep out a duly elected official – 1st issue was political question – court said not political question and held for Powell. Ct is ultimate interpreter. 31. Nixon v. US – 1993 – a judge impeached – Nixon said whole Senate must hear, not just a committee – Ct held all impeachments are non-justiciable (unless Prez and the CJ presides over Senate) – political question doctrine applied. Quotes Baker v. Carr (see highlighted parts above). Said impeachment is only check on judicial branch. 32. Should we even have Political Question? Pros: best left 2 that political branch and their expertise – separation of powers, also takes issues out of Ct that if Ct did decide on would lower their authority b/c couldn’t enforce it through and would be ignored. Cons: Judicial review and limits on other braches not to violate Constitution from Marbury must mean something. III. Selective Incorporation: whether Amendments were intended to absorb or incorporate the Bill of Rights to States. Total – 14th (or some of its clauses for ex) absorbs all of B of Rs – some support but never accepted. Selective – some provisions apply

5 Individual Rights and Liberties – Overview

1. Constitution – limit 2 govt power 1. Structural 2. Personal Liberties (Contract Clause, Art I, Sect. 10 – used a lot by courts b/f Civil War Amendments; Bill of Attainer – a legislative act that would commit someone of a crime, same; and Ex Post Facto laws – statute makes a crime what someone did in the past or act today that is a crime but later on higher sentence, same; Privileges and Immunities Clause – state to state, Art IV, Sect. 2) 2. Bill of Rights – 1st 10 Amendments 3. Civil War Amendments – 13-15th Amendments 1. Abolish Slavery – 13th 2. Due Process, EP, Priv. and Immunities (pretty much doesn’t apply anymore after Slaughter House) – all in Section 1 of this amendment – all applied to the states – 14th 3. Right to vote regardless of race – 15th 4. Baron v. Baltimore – 1833 – Ct held 5th Amendment was fed govt action only – Bill of Rights don’t apply to states – it’s a new govt and already had state constitutions was the argument – not framer’s intent to include states. Guy sued b/c construction diverted flow of streams and then couldn’t get out to his wharf b/c lowered water. 5. Civil War Amendments called 2nd Constitutional revolution – Constitution changed a lot w/ these 3 amendments – Constit: heavy in formalism, structure and Civil War Amendments dealt with personal liberties.

6 Initial Interpretations of the Civil War Amendments

6. Slaughter House Cases – 1872 – state has exclusive right to operate livestock slaughtering in New Orleans – all competitors must close. Butchers sued under 13th and 14th Amendments – LA SC upheld statute and US SC affirms/upholds – key point is that thinks there is a difference b/w US citizen and citizen of a state and that 14th speaks only of P&I of US citizens, not state citizens. Says LA can pass law unless some restraint n the exercise of that power B found in the Constitution of that state or in amendments 2 Constitution of US. Ps bring up 13th Amend/invol. Servitude arg (Court rejects this) and the 3 sub-parts of 14th Amend. This case wrote out P&I clause of 14th – did this by misquoting P&I clause – it put them side by side (14th P&I and Art IV P&I and said the distinction b/w US citizen and state citizen and that 14th P&I is US citizens rights – which are pretty much nothing.) Slaughter House ended oppty to incorporate B of Rs b/c linguistically, P&I sounded like B of Rs – so people began to look to other areas to selectively incorporate B of Rs and now tend to view “life, lib” section of due process clause as that incorporation. 7. P&I clause (Art. IV) – citizens of each state entitled to all Priv. of citizens of several states – doesn’t create any rights – only citizens – not corporations or aliens though. 8. Ct in Slaughter House also rejected EP and DP – both later rejected arguments. So what good about this case? 1. Pragmatic – in 1873, not going to do total incorporation – so its holding postponed deciding incorp. of B of R in 14th Amend. 2. SC not so revered at that time – so didn’t want to incorporate too much 3. Greatest legacy is moved from P&I to DP and EP (selectively incorporated and that may have increased rights b/c P&I didn’t affect aliens or corps (any non-citizens). 4. That aspect is still law today 9. 1895 – state govt can’t take property without just compensation

7 Application of Bill of Rights to the States (pg. 475)

10. Gritlow v. NY (1925) – said 14th Amendment, life/lib of DP, covered freedom of speech 1st Amendment protection 2 states 11. Powell v. Alabama (1933) – 6th Amendment incorporated in to 14th in this case – right to counsel 12. Palko v. CT (1937) – IMPORTANT CASE OF INCORPORATION – Palka (yes, Palka not Palko – spelled his name wrong) killed 2 cops – got 2D murder but State appealed b/c said serious error – wanted 1D murder – nowadays no – double jeopardy but at this time, 5th Amend. Jeopardy law as fed law. P argued to overrule Slaughter House b/c P&I was meant to include the 5th – Ct said no. P also argued Total Incorporation under DP clause or at least 5th amendment into 14th. Ct said no – both sides can appeal so that’s fair (not the law today – overruled later). Incorporation Standard/Test Defined: 1. If 5th is incorporated into 14th: (1) implicit in the concept of ordered liberty – must be a principle so rooted in our people as fundamental – pg. 478 2. (2) Will justice not be done if not incorporated/fairness arg? 13. Adamson v. CA – This opinion was a debate b/w judges – Black in dissent said total incorporation and Frankfurter in concurrence said selective incorp – later overruled by Crawford v. CA. Adamson was about self incrimination – the Ct affirms the conviction – says Slaughter House says self incrim. Not protected by 14th. Incorporation – 14th incorporated B of Rights: Pro: Banon v. Baltimore – framer’s aversion 2 this case Con: lack of debate – no intent; natural law is discussed. 14. Duncan v. LA (1968) – Ct says trial by jury in criminal cases is fundamental – so meets the Q of whether the right is fundamental principle so as to extend down to 14th. Distinguishes itself from Palko and rejects prior dicta re jury trials in crim. cases. 15. See page 496-498 for Incorporation of which B of R Amendments

Substantive Due Process (Ch. 9)

16. Distinction b/w procedural and substantive DP 1. Procedural – does not usually create controversies – usually involves liberty. Ex: notice govt must give you, what right you have to be heard. Govt must provide a minimum amt of procedural protection – liberty, property – asks the question HOW 2. Substantive – whether Q reached is right or wrong, this is a source of controversy – goes to the final decision 3. In Slaughter House – MAJ said no substantive DP – Dissent said there should be 4. 1870s – regulations on bizs started – labor interests, farmers 5. 1880s – Social Darwinism – fittest should survive in biz. 17. Lochner Era – 1905 through 1937 1. Munn v. IL – dictum suggesting DP in 14th had substantive component; Mugler (upheld a statute against alcohol but did say there were limits to legis. power), Munn and Lochner – all situations where legislature passes law and Ct reviews to see if OK if police power. 2. Police power = state’s authority to regulate health, safety, and morals of public – if under this, then OK to regulate. 3. Liberty of K – ct looked at what state had 2 say – did it fall under police power or was it a violation of liberty of K? 4. Lochner v. NY – bakeries – max. amts of work hours in a week as a health & safety issue. Looking to police power of the state v. liberty of K. Ct used substantive DP and said result was wrong – conviction and the statute were wrong. Says right to buy or sell labor is covered by 14th. But there are police powers which allow governing power of state to exercise them. Ct on pg. 503 asks did Legislature act reasonably? Ct says no – made wrong decision despites its hearings and committees – legislature interfering with liberty of K b/c there is no health concerns/issues. Dissent says Const. is not intended to embody a particular econ. Theory. Ct shouldn’t decide whether this is wise legislation. 5. Lochner era – not just economic regulation (best known but not only) – also attention to civil liberties began during this time: 6. Ex: Meyer v. NE (1923) – couldn’t teach German – Ct held 14th liberty right that parents can do that - like 1st saying you decide how to raise your kids. Right to learn German in the zone of consti. protected liberty 7. Ex2: Pierce v. Society of Sisters – Public schools only – struck down OR law – parents had DP liberty interest 2 raise kids w/o govt. interference. This is main case that allows for home schooling too. 8. Freedom of K was general rule – got 2 B a big deal when striking down popular New Deal laws that people supported – in Roaring 20s that had been no – no regs but in Depression of 30’s – yes. 9. Muller v. OR – allowed cap on women in factories (1908 – actually during Lochner) 10. Adkins v. Children’s Hospital (1923) – said min wages 4 kids and women – invalid – right to K is general rule and restraint the exception 18. Post Lochner Era Developments 1. West Coast Hotel v. Parrish (1937) overruled Adkins (which had lauded Lochner case) 2. Said no freedom of K in Constitution – its in public interest to protect health of women 3. Legislature entitled to its judgment. 4. Lochner [“Judges will review and usually right to K will trump sate police power”] is one of most 3 reviled cases – Plessy and Dred Scott are other two. 5. In ‘20s – mostly struck down 4 economic liberties – Muller was an exception (one of a few). 6. Nebbia v. NY (1934) – seemed to signal end of Lochner – Price fixing by milk control board – P sued – dp violation – Ct said, “a state is free to adopt whatever econ. Policy may reasonably be deemed to promote public welfare, and to enforce that policy by legislation adapted to its purpose – the courts are without authority either to declare such policy or when declared by legislature – to override it.” This case is leading towards rational basis – unconstitutional only if arbitrary, discrim. and hence an unnecessary and unwarranted interference with individual liberty. 7. In ‘40s – SC rejected all challenges to legislation based on assertions of a constit. preference for a free economic market place. Liberty of K cases have long since been over-ruled. 8. US v. Carolene Products Co (1938) – most celebrated FN (FN 4) in US SC history. In this case, Congress passed Milk Act – economic regulation – CT upheld the law – said rational basis test: almost always results in upholding the statute – very deferential – end of Lochner Era in economic regulatory cases – legislative judgment is presumed unless no rational basis (pg. 513). 9. Lochner not all econ. reg though – opinion only spoke to econ reg and didn’t touch on civil liberties –that is where FN steps in – said higher scrutiny for certain types of cases (diff. than econ. reg) 10. Strict Scrutiny IF: (1) specific constitutional prohibition – if in 1st 10 amendments – assuming selective incorp. into 14th (2) ability of political processes 2 repeal (2) discrete and insular minorities (racial classification - yes, gender - not insular but yes, gays??) 11. This FN is beginning of 2 Tiered System: Rational basis is general standard (normally govt action will be upheld under this – even if not their actual basis, if there is a rational basis for their action – its ok) and Strict Scrutiny. 12. Strict Scrutiny – reserved 4 cases that deal with fundamental rights (typically B of Rights) and suspect classifications. Needs compelling state interest – normally statute will fall under strict scrutiny. Also intermediate scrutiny – gender discrim and out-of-wedlock kid discrim. are examples 19. Protection of Personal Liberties 1. Meyer (would be today - freedom of speech) and Pierce (would be today - freedom of association) were front-runners of Griswold. No 1st Amendment tradition so under DP at this time. 2. Skinner v. OK – 1942 – Ct held invalid a law that allowed for sterilization of 2xs of crime of moral turpitude – fundamental right of marriage and procreation – so strict scrutiny 3. Buck v. Bell – 1927 – Ct upheld a sterilization 4 “defectives” – not sure how except different time period – worst Holmes decision says Abrams. 4. Griswold v. CT – 1965 – advice on contraceptives – CT had law said can’t do that – Ct says there are peripheral rights – zones of privacy (penumbras) created by emanations from the Bill of Rights guarantees (1, 3, 4, 5, 9). Collectively creates right of privacy. Ct says not a Lochner decision – not a substantive DP case. Marriage and right to privacy lies w/n the zone of privacy created by several fundamental constitutional guarantees. Marriage is older than B of Rights. Concurs say historically grounded (fundamental right) and also 9th Amendment provides for it – retained by people in 9th…Dissents were literalists and said 9th doesn’t mention privacy and can’t be subjective. Critics say it should have been an EP case not a DP while supporters, like Posner, say when “glaring gaps” – need 2 B able to B plugged up by Ct. Penumbra idea sets stage for Roe v. Wade. 5. Eisenstadt v. Baird – 1972 - not just rights of privacy 4 married – its of the individual, married or single. Said this in dictum though. 6. Roe v. Wade – 1973 – very controversial – Ct says this right of privacy (includes a woman’s decision to terminate her pregnancy) is founded in the 14th Amendment’s concept of personal liberty. Two cases combined – TX and GA statutes. There is a fundamental right so strict scrutiny of state police power. State’s interest: protecting woman’s health & protecting potentiality of human life – so balancing act. Came away with trimester schedule: 1st – no compelling interest (let docs decide); 2nd – state may regulate related to health of mother; 3rd – viable so state can be regulate OR prohibit. Dissents say this is a Lochner substantive DP case and leave it to the people to change. 7. Pros: Posner’s arg – doesn’t have to be explicit, right to privacy; result was good but should have been EP not substantive DP; Cons: no explicit right to abortions, ignored value of human right, illegitimate use of substantive DP (Carolene Products FN). 8. Planned Parenthood v. Casey – 1992 – Didn’t overrule Wade but efforts by states to restrict abortions – with changes in the Ct, thought they could overrule it…Ct is split on different items – plurality in some, 5-4 on others (like upholding the essence of Roe). MAJ says reasoned judgment to interpret Constitution – draw line at viability – Ct doesn’t like trimester approach (plurality + 4 dissenters). New standard (only got plurality) is UNDUE BURDEN. Informed consent and 24 hr wait – not undue burden but husband notification – that’s undue burden. Ct aid upheld through stare decisis unless proven unworkable – Dissent thinks it is – divided America. Ct also says if overrule Roe would lower Cts legitimacy and make them look like caving in 2 political pressure. Dissent says doesn’t hurt integrity b/c Roe wrongly decided – if wrong, like Plessy and Lochner, then overrule. Finally, Ct reaffirms substantive DP of 14th and 9th – doesn’t have to be expressly grounded in history 2 B outer limits of DP - says use reasoned judgment to analyze what is under DP. 9. If fundamental – strict scrutiny. If not fundamental – rational basis. Ct hasn’t been consistent on whats 14/dp and whats 14/Ep – but doesn’t really matter – if fundamental. Look at precedent/cases to see which type of analysis: a. DP – govt. action done 4 improper reason b. EP – client being dealt with differently than someone else 10. Michael H. v. Gerald D (1989) – Presumed that child is child of husband even if not in CA – biological father sues – DP arg – denied relationship with kid – he loses in SC – Scalia uses historical discussion – in Casey, reasoned judgment > history but not here – history decides whether right is grounded in DP. 11. All comes down to how you phrase the ‘right’ a. Decide if history is sole criteria – if no, then Casey b. If so, how do you phrase the question – how you write it/phrase it may change how Framers felt about it. 12. WA v. Glucksberg – 1997 – assisted suicide case – Ps allege DP issue – Ct says no fundamental right to assisted suicide. No historical aspect/tradition with assisted suicide. Ct says always use historical tradition. B/c not a fundamental right – use rational basis test – any conceivable basis. Historical analysis approach narrows fundamental rights – so less strict scrutiny and more up to legislatures. 13. Challenges to Statutes: a. Facial – no possible constitutional application or basis 4 enforcement – just by its face its unconstitutional. b. As Applied – may be ways reading of statute that is Constitutional but just doesn’t apply to P. 14. Lawrence v. Texas (Supp. Pg 74) – 2003 – 14th substantive DP issue – 6-3 – struck down anti-same sex sodomy law – same-sex marriage is the 600 lb gorilla hiding in the corner in this case. This may have been a test case – set up by the Ps. 1st issue – stare decisis – said Bowers not correct (’86 decision that was 5-4 that upheld GA statute – applied to gay and hetero though). O’Conner argues EP not DP – she concurs b/c goes beyond. Dissent says will lead to bestiality, incest, bigamy – public morality issue. MAJ says this (public morality) is not a legitimate state interest. Again, different view changes ? U ask: substantive DP – did govt. act 4 a proper reason? EP – did govt. classify people 4 a proper reason? Although dictum (pg. 81) – 6 judges say Constit. is a living document and therefore can change, so historical analysis is not an exact science. IV. Equal Protection (Economic Regulation and Suspect Classes)

9 1st, SC took narrow view [Slaughter House] but then by 1885, expanded its view and aid EP for econ. regulations also. Originally, SC said 5th Amendment didn’t contain EP but said if arbitrary enough may violate DP clause – but now, say there is an “equal protection component of the 5th Amendment DP clause.”

10 Not literal EP – b/c all laws and statutes discriminate in some way – must be 16 to get DL

11 Most under rational basis – so most upheld.

12 Key question under EP: When govt may classify or distinguish people? Most under rational basis test – easy to meet.

13 EP first got brought forth with Civil War Amendments – B of Rights didn’t speak of EP.

14 Railway Express Agency v. NY – rational basis case – rational reason for govt purpose/action – legitimate state purpose and reasonable relation 2 state action. Strong deference to economic regulation 4 EP similar to econ regs for DP [Carolene Products case]. This was advertising on a vehicle case – ok to do if adv. dealt with biz of vehicle owner but otherwise, no. Ct upholds – deference 2 city council. The DA of this type of deference is invites special interests.

15 Legitimate state purpose is if within state’s police powers, which are morals, safety and health.

16 Williamson v. Lee Optical – 1955 – another example of special interest probably – OK law said couldn’t fit eyeglasses unless an eye doctor or prescribed by an eye doctor – Ct said legitimate state purpose – rational basis.

17 Suspect Classifications – Cts have found it suspicious 2 base on these things over time.

1. How do we ID & judge? a. What is the distinction? – facial or neutral but discim. impact b. Appropriate level of scrutiny – which is outcome determinative: strict, intermediate, rational basis c. Satisfaction. 2. Strict Scrutiny a. Race, national origin or alienage: these are the Suspect classifications – Carolene Products FN – doesn’t have to be facially discriminatory – Yick Wo case – said statute may B fair but if applied w/ unequal hand – then unconstitutional. b. Fundamental rights – right 2 vote, right 2 procreate, right 2 interstate travel c. State has burden of proof 2 show compelling state interest and narrowly tailored (no less strict means available). Almost always leads to invalidating of statute 3. Intermediate Scrutiny a. Bastard kids and gender discrimination (also call it heightened scrutiny) b. Govt must show an important state purpose and must show means used were substantially related to that important purpose. c. If Ct perceives based on gender stereotypes – likely to fall under intermediate scrutiny (can be laws that discriminate against men too). 4. Rational Basis Review – most deferential – applies in most EP cases unless suspect class or fundamental right or an intermediate scrutiny. Strong presumption that legislatures enact constitutional statutes. P must show no rational reason for regulation – no reasonable relationship b/w legit. state purpose and state action. 5. See Sheet for PRACTICE – HYPOS – from 10/11 6. Satisfaction – Does govt action meet EP? Look at govt purpose and action – was it underinclusive (doesn’t include others who shold be regulated – DL 16 yr old rule) or overinclusive (not only those who need 2 B regulated but also others (DL 16 yr old rule)? – most is some of both and it’s a matter of how much will Ct tolerate? Much more tolerance in rational basis cases. 7. Koretmatsu v. US – 1944 – upheld confinement of Jap-Americans – ever since then, strict scrutiny test. 8. Loving v. WA – 1967 – no white-black marriages – struck down –race based classifications. 9. Nyugen v. INS – b/c INS case, more deference given – near plenary congressional authority over immigration with INS proceedings. 10. Grutter – 2003 - MAJ: MI law school did not guarantee anyone admission. Racial diversity was a compelling state interest – not determinative but a (+). Each individual got individual evaluation/consideration. So didn’t strike down. Race as a factor is lawful if narrowly tailored (Powell’s take from Bakke). Time bound – not forever – 25 years. Thomas Dissent is pretty good. 11. This is what makes EP analysis hard –not mechanical – once U decide 2 apply 1 of 3 types of scrutiny – still lots of play – so difficult b/c inconsistent. 12. Gratz – MI undergraduate admissions policy – point system – gave 20 points if you were a minority. This one they struck down – the undergrad policy – b/c of points and thought it was a quota system. 13. Regents v. Bakke – 1978 – denied admission to UC Davis med school twice – sued – Ct: no majority – 4 – violation of Civil Rights Act, 4 – no violation, 1 – violation of Civil Rights Act, some affirmation action is ok. J. Powell was deciding vote 14. Sum up impacts of these cases – 25 years b/w Bakke and these – SC didn’t take a lot of challenges in b/w – lower Cts did and so lots of ?s open still w/ Bakke. Now, can come away with this: narrow tailor a compelling state interest – it’s a fact ? – each must get individualized consideration – what about this 25 year time frame – unique to have a sunset clause in place… 15. Cleburne case – 1985 – group home 4 retards – special permit required – Ct said used rational basis but that ordinance is invalid anyway– Ct said 5th Cir. erred when it used intermediate scrutiny – b/c – state has legit interest, legisl is taking care of problem, mentally disabled have political clout and can vote. So rational basis for physical or mental disability. But the Ct here invalidated the statute though – so Stevens says this is Lochner type judgment – Ct should have said doing intermediate scrutiny b/c no implying rational basis although saying it was. DC had used rational basis to affirm, 5th Circ. Used intermediate scrutiny 2 reverse and SC used rational basis but still held invalid.

18 Wealth Protections, Age and Alienage

16. San Antonio v. Rodriguez – 1973 – wealth not a suspect classification. Ct said no fundamental right to education. The Ps had said that funding public ed by local property taxes – wasn’t fair 4 wealthier districts 2 get more money. Some criticisms of this case but if wealth or poverty a suspect classification – most could challenge and win on poverty/welfare issues. 17. Age Discrimination – not a suspect classification – no fundamental right – rational basis – most args fall. Now can argue under ADEA – statutory – but not constitutional. 18. Alienage – strict scrutiny – since Yong Wo and Carolene Products FN. As long as in US, citizens and non-citizens protected alike. Two exceptions: a. Statutes on democratic process – ex: citizen to run for office – this is under rational basis test b. Congressional statute or Exec. Order justification – immigration laws (Nguyen) – rational basis. V. Equal Protection (Fundamental Rights); Priv. or Immunities of 14th Amendment

19 Zablocki v. Randall – 1978 – in WI – they add a new category to marriages can’t have: besides same sex, incestuous, bigamous – if owe child support. In fed Ct b/c of EP issue [normally, marriage is a state regulation] – the govt interest was to encourage payment of child support. Classification (for EP): any competent person v. people who owe child support. So, there is a (1) compelling state interest but is it (2) narrowly tailored? – No. Plus, Ct says grossly underinclusive (doesn’t cover all the dead beat dads who aren’t getting married) and substantially over-inclusive (people who if get married may help his $ position). Fundamental right to marry – that is why strict scrutiny and the (1) and (2) questions to go through.

20 Most marriage cases brought under EP

21 Right to Vote – see pg. 921 for history – all the amendments: 15th, 17th, 19th, 24th, and 26th

1. Miller v. Johnson – gerrymandering case – defined: people in power draw boundaries to keep them in power. Ct applied strict scrutiny b/c state basically conceded it – that doing what DOJ told it to do – that’s not good enough to establish compelling state interests. Final word is with Cts not DOJ. Ct could have cited Marbury v. Madison – DOJ expanded its authority too far – Judiciary has independent obligation to decide what’s right under 14th – not DOJ. Ct looked to Shaw – which said if so bizarre on its face that is unexplainable on grounds other than race – demands same close scrutiny given to other laws that classify citizens by race – but Ct says doesn’t have to be bizarre on its face b/f a violation. – see pg. 959. 2. Political gerrymandering: perpetuate their own control 3. Racial gerrymandering – drawn with racial considerations in mind 4. Circumstantial ev: look to shape of district, demographics of district. 5. Dunn v. Blumenstein – registered a year b/f you can vote – that requirement deterred people from moving/traveling by depriving them right to vote – NO. Can have some qualifications but generally, the purpose of restriction and over-riding interest must meet close constit. scrutiny – must be compelling state interest and must be narrowly tailored. 6. Marston v. Lewis – 1973 - Ok to say 50 days b/f must register b/c of paper work – dissent said 30 only. 7. Felons – 46 states deny the right to vote while in prison and 14 states say convicted felons lose right to vote 8. States have often regulated electoral process other than voter qualifications: a. access of political parties and indeps 2 the ballot b. political party nominating procedures c. Elig. Requirements 4 candidates (Bullock v. Carter – 1972 – said can’t have high filing fees – unconstitutional – closely scrutinized) d. campaign regulations 9. Right to travel – Interstate travel – strict scrutiny while International travel – may be restricted. 10. Residency Requirements a. Saenz v. Roe – dusted off Slaughter House – citizen of US can become citizen of any US state with same rights. If you move to CA – only get public benefits for 1st year as equivalent of state you moved from for that first year. Ct uses P&I clause of 14th to say the statute is discriminatory & fiscal justification doesn’t cut it. Ct doesn’t use right to travel cuz not violated. Dissent says no diff. than bona fide residency requirements 4 tuition, etc also says P&I only to be used for fundamental rights – not every public benefit. b. Memorial Hospital v. Maricopa County – 1974 – right to travel is fundamental so must show compelling state interest. Med care is basic necessity of life so statue saying no non-emergency care to people not residents for 1 year is unconstitutional – not all unconstitutional – not per se – just not good enough state interests I guess. c. Shapiro v. Thompson – 1969 – law says can’t have welfare until resident 4 at least 1 year b/f applying – Ct says unconstitutional – right to travel so looks at law with strict scrutiny and requires compelling state interest. Could go about their objectives through less drastic means says Ct. d. Ct says can have bona fide residency requirements – ok to say must be a resident at the time of applying VI. Procedural Due Process – not controversial, admin. context is often where this occurs, no one argues that DP doesn’t cover procedure.

22 Procedures the govt must follow with regard to notice and oppty to be heard – what type of hearing is required? Questions to ask: Has there been a deprivation? Of life, liberty and property? Without due process of law?

23 Board of Regents v. Roth – 1 year appointment to teach – told not coming back – no reason given and no process. Companion case – Sinderman. Sued b/c of 1st amendment right to give speeches and also sued under DP – notice – he lost in both. Said no property interest. See the WORKSHEET to practice on hypos with property and liberty interests.

1. Two prong definition of property – legitimate claim of entitlement to it: a. Importance to Ps b. Rules and Understandings (expectations) 2. Also liberty interest in good name and reputation – what qualifies: freedom of physical restraint (prison rights, civil commitments), parental rights (Myers), Deportation proceedings, reputation 3. Roth is still good law – legitimate expectations still come from four corners of K – in this case, no K – so Ct said no expectations – no property interest. 4. Rules of Roth – (1) Govt employment can create property interest if K terms create one [de facto and de jury tenure or by stating in K – right to be heard] (2) primary place U look 4 property interest is K or statute or rule

24 Arnett v. Kelly – this time said property right in his employment but “bitter with the sweet” – get job but state decides the rules – if govt grants it, can set parameters – expectations come from terms.

25 Loudermill – rejects bitter with the sweet theory – K defines whether property interest and legitimate expectations but K doesn’t define what’s DP – Constitution and courts do that. Ct said though that if full hearing and judicial review are available after termination, don’t need full evidentiary hearing b/f discharge.

26 Sandin v. Conner – 1995 – prisoner has liberty interest of DP if imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life. This is HA case where fought vs. strip search – hearing b/f but didn’t get to call witnesses – Ct doesn’t want to squander judicial resources – so puts high bar/high test

27 Wolff – good time credits – statute created a liberty interest in them.

28 Meachum – transfer 2 another prison – no DP violation b/c no liberty interest created by state law

29 After Meachum b/c of its dicta – Ct started looking to whether language was mandatory (then interest in other side: “shall” means w/o conditions so if conditions – no guilt) or discretionary (no interest) – Sandlin says this isn’t right though.

30 What constitutes a deprivation? - (1) Negligence by govt? (2) What if state remedy available? (3) State failed 2 protect U from someone else?

5. Daniels v. Williams – injured by negligence – left pillow out – Cts said deprivation of life, lib, or property must be intentional – not negligence. Davidson – beaten by another inmate after guard negligently lost report – again Ct said same thing. 6. What if can get state remedy? – Ct said no DP claim b/c could sue under tort state law – this was case where ordered kit and guards lost his money. Cts now say state remedy ok as long as state action was private act and not a part of state policy – Cts don’t say its completely ok b/c would write out 14th amendment b/c most states have torts that would cover. 7. Failure to protect – kid killed by abusive father – mom said govt knew and didn’t do anything – SC said no liberty deprivation – no DP to protect private v. private.

31 What is the purpose of a hearing? – make decision understandable to loser – may not agree or think fair but at least understand. May also cause the agency to change its mind if sees that it is unfair – harder to tell someone to their face. Gives person chance to be heard/vent. Insures regularity and lowers arbitrariness.

8. Timing of a hearing – if going to make a decision, minimal procedure BEFORE it makes decision and claimant can then ask 4 full hearing AFTER 9. Should you have full hearing BEFORE – Goldberg v. Kelly – said YES b/c it dealt with welfare – subsistence of life – most agencies don’t apply this. 10. Why might want full hearing BEFORE? – much more difficult to undo agency decision plus most people just give up – so less will use it and saves $ 11. Need pre-deprivation hearing when deprivation results from established state procedure rather than state’s employee’s random and unauthorized act – Logan v. Zimmerman 12. Besides timing, also need to know min. process that is due – classic formulation (balancing test b/w state and P) from Matthews v. Eldridge: a. Private interest affected by action b. Risk of an erroneous deprivation through procedures used and probability of any substitute safeguards c. Government’s interest

32 Connick v. Myers – 1983 – fired for insubordination – she was an at will employee – so like Roth case – could she have used any other Constiti. provision to save her job? – 1st amendment – this case stands for the fact that 1st Amendment is very often independent ground 4 relief – even if DP not violated. B/f get protected 4 speech though – must 1st be characterized as speech on a matter of public concern – if only personal interest, fed. cts. not the right forum – Ct didn’t think this was matter of public concern. OWH: “Policemen may have a constitutional right 2 talk politics, but he has no constitutional right 2 B a policeman”

VII. State Action – U can’t harmonize these cases – very inconsistent case law – also Const. almost entirely only applies 2 govt – but this does apply to fed, state, and local.

33 Federal legislation can reach private conduct when conduct contains sufficient indicia of state action 2 B prohibited by Section 1 of the 14th Amendment

34 14th and 15th – “no state” – so doesn’t apply to corps or private individuals (exception is 13th) – Constitution is a restraint on govt action not private

35 Congress in passing CRA of ’64 and ’68 – relied on commerce power – that’s how got away with regulating private individuals.

36 Exceptions to State Action

1. Public Function – private conduct must comport with constitution if traditionally done by govt – Rehnquist would cut back and say only if “traditionally exclusively done by govt” 2. Entanglement – if govt affirmatively encourages, facilitates, authorizes or subsidizes private conduct – question is the degree of it. Case: Burton v. Wilmington Parking Authority – 1961 – coffee shop doesn’t sell to blacks – its leasing from govt and govt got portions of revenue – b/c of this and parking, etc – said it was a state actor and so violates 14th Amendment. Other examples: govt licensing and regulation cases. Very broad language used so although not over-ruled, its not followed. 3. Rendell-Baker v. Kohn – 1982 – Ct said private school didn’t act under color of state law in dismissing the Ps (teachers suing under 1983) – said not unlike a private corporation whose biz comes from govt Ks – acts don’t become acts of the govt by reason of their significance or total engagement in performing public Ks. 4. Led to Moose Lodge v. Irvis – 1972 – private org – restricted membership to whites – P sues – violates EP – but is Moose Lodge a state actor? - Ct says no – Brennan dissents b/c of state liquor licensing structure – says creates state action.

37 Older cases quite liberal in finding state action b/c often dealt with racial discrim and they knew the Southern states weren’t going to change so put it under 14th

38 This makes it hard to harmonize b/c less racial discim cases so restricting state action but tries to distinguish w/o over-ruling older cases

39 WWII – 1968 – Cts usually found state action; 1970 – present – Cts usually didn’t find state action.

40 Flagg Brothers Inc v. Brooks – 1978 – Ct tightens up public function exemption – exclusively done by govt – debtors and creditors not exclusively done so didn’t create state action. Doesn’t discuss privatization – wants to keep MAJ but mentions “overt official involvement” – so is funding overt? 2 Ways to Privatize – farm out (probably not state action) and joint venture.

41 SF Arts & Athletics v. US Olympics – no state action (allowed committee to prohibit the use of the word Olympic – ruled committee not a govt actor) but then Lebron v. Amtrack – state action – hard to reconcile these two b/c in both cases these are congressional created corporations. Only difference is maybe that Amtrack is heavily subsidized.

42 Another case – Brentwood Academy – 2001 – athletic association (private corp) – school mailed out brochures about team – said that violated rules – association made them forfeit – is this state action? Ct held association was state actors – not ipso facto but fact-based and in this case, yes b/c of the pervasive entwinement of state school officials in the structure of the association. In summary – most cases, no issues – exec, legis, etc (Univ.) – its a state action but some gray area – b/c Ct changed its opinion over time – varying the exemptions and how interpreted.

43 Southern Democrat primaries – trying to say can discriminate b/c private orgs – but Cts say no – Public Function exemption

44 Dodson – public defender not state actor in a case claiming inadequate representation but McCollum – unconstitutional 4 a public defender 2 use race based peremptory challenges

45 This led to Company Towns and Shopping Center Cases

5. Marsh v. Alabama – Jehovah Witness on this private property – company town – Ct held its a govt function 2 create neighborhoods – very broad use of state action & public function exemption – maybe broadest 6. Logan Valley Plaza – court held state action – claim was shopping malls were state action – “company towns of ‘40s” – although private property, they are town squares of America. Later cases over-ruled Logan and said no constitutional right to access in a private mall. VIII. Freedom of Speech

46 1st Amendment

1. Speech, religion, association 2. Not interpreted in absolute terms 3. “Preferred place” in Constitutional freedoms 4. But did not come up before the 1920s 5. Gitlow v. NY – 1st case incorporating the 1st Amendment 6. Particularly strict scrutiny 7. Historically, original intent was 2 reverse English Law – prior restraint & seditious libel 8. Seditious libel – truth is not a defense. 9. Questions: What is Speech? a. Words only? – no b. Commercial speech – PROTECTED c. Does it apply to states? What about private persons? 10. Brandenburg v. OH - 1969 – case is favorable to speech - clear and present danger test – moves the boundary line of acceptable conduct out from earlier cases – KKK leader convicted of OH statute for incitement – SC says this is unconstitutional and reverses. RULES: Ct says difference b/w preparing a group 4 violent action and mere abstract teaching – mere advocacy should not B in w/ incitement (overrules Whitney in this regard). Says free speech does not permit a state to forbid advocacy of the use of force except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action. 1 criticism of C&P test – permits stifling of radical political speech on problematic assessments of public danger while it over-protects dangerous speech n a non-political context. 11. Four Tests for incitement: a. Clear & Present Danger – Schenck – 1919 b. Reasonable – 20s and 30s c. Risk test – risk to be prevented and likelihood it would happen – 50s d. Brandenburg 12. Abrams v. US – 1919 – Relied on Schenck to uphold – marketplace of ideas 13. Dennis v. US – prosecuted leaders of communist party – weigh risk v. imminence 14. Can regulate conduct but not speech (Black concurs and says C&P test shouldn’t be used 2 interpret 1st Amendment while Douglas concurs and says speech and ideas R different than overt acts.) 15. Broadrick v. OK – 1973 – OK statute says can’t engage in partisan political activity if a state civil servant. Ps argued overbroad – Ct said no, must be real and substantially overbroad 2 violate when conduct & not speech is involved. Go case by case. 16. Four areas that not protected by 1st Amendment or at least that govt. interests will justify punishing the speaker b/c of speech content a. defamation & privacy b. obscenity – must be the worst of the worst otherwise porn is protected [Jenkins v. GA – Carnal Knowledge is not obscene – doesn’t meet Miller test] c. Child porn d. fighting words & offensive speech e. commercial speech – less protection

47 Prior Restraint & Injunctions

17. Prior Restraint – effort by the govt to prevent publication or speech – prevent b/f done/published –rarely allowed 4 media/papers. 18. Near v. MN – 5-4 – 1931 – 1st SC case to talk about prior restraint w/ media – almost never can get one of those. 19. Pentagon Papers – govt argued national security reasons – still ruled as prior restraint to withhold. 20. So when can you get prior restraint? [dictum in Near] a. Troop Movements b. Times of War c. Recruiting Service d. Obscenity e. Incitements to acts of violence and overthrow by force f. Licensing & Permits – Cts say there is a purpose 21. Requiring official permission in advance 4 parades & demonstrations have been upheld – but unconstitutional if statute gives admin. official standard-less discretion 2 deny permission. But can be denied for 3 reasons: a. Important reason – often public safety, purpose b. Strict criterion – little or no discretion c. Procedural safeguards – decide quickly either way so have time 4 review

48 Vagueness & Overbreadth

22. Vagueness – goes to the standard: Tests: a. Must be written clearly enough so people of ordinary intelligence must be able to understand b. Must be written clearly enough so avoids risk of arbitrary/unfair enforcement c. Its vague if gives too much discretion – these tests are a matter of degree. d. Potent argument for 1st Amendment – not as strong 4 non-1st amendment b/c often saying, yes what I did was bad but its vague/overbroad – only really works for 1st 23. Exception to the 3rd party standing – generally can’t argue the rights of 3rd parties – is when arguing regarding 1st Amendment – free speech and assembly issues a. Person whose speech could be punished can argue overbroad or vagueness b/c could snare others who aren’t present b. Also b/c speech has preferred position and better 2 knock out now statutes that will “chill” 24. Overbreadth a. Forbids actions beyond those which R intended 2 B restricted b. Vagueness goes to the standard whereas this goes to how many people’s protected rights may B snared in statute when shouldn’t be? (see Broadrick) c. Issue is hard b/c most statutes are broad b/c if you make them too specific – people will get around them – how many people snared b/f rule unconstitutional though? – must not only be real but substantial as well.

49 Obscenity

25. Before Miller, Memoirs case said obscene if “utterly w/o redeeming social value” – Ct didn’t like this, requires affirmatively proving this… 26. State has legit. interest in protecting (1) unwilling recipients and (2) kids 27. Miller v. CA – 1974 - 3 part test for obscenity a. Appeal to prurient interest – which community? b. Patently offensive [ultimate sex acts or masturbation or genitalia c. Lacks serious literary artistic political or scientific value (SLAPS) 28. Virtual Porn case (Ashcroft) – Ct held 5-4 that virtual kiddie porn is protected by 1st Amendment as long as doesn’t involve real kids – if non-existent kids then its protected and if takes real pics and morphs – then Ferber applies a. Congress had passed the Decency Act b/c (1) whets appetite of pedophiles they said b. (2) hard to tell which is real and which is fake 29. NY v. Ferber – 1982 – child porn – not an obscenity case – Non-obscene material with kids is outside the realm of 1st Amendment protection as well [child nudity never ruled on] 30. US v. Playboy - 2000 – 5-4 – Ct says house by house opting for signal block is better than the legislative act that said time block for cable operators – trying to protect v. signal bleed but says while govt has legit. reasons – this isn’t obscene so deserves 1st amendment protection – strict scrutiny and needs narrow tailoring 31. American Booksellers Assn v. Hudnut – 1985 – Indianapolis passes ordinance – higher protection 4 women – porn is hurtful to them – obscenity boundary is not enough. Ct says this is content-based discrimination – unconstitutional – marketplace of ideas – OWH – don’t silence the comment/speech – just let someone say the contrary. Criticism of this idea – not everyone is on equal level – not fair or easy to actually counteract (although again, the criticism creates prospect of a “heckler’s veto”) a. Content based: look at what being said and who it is and govt decides if like it – publish b. Content neutral – don’t look at what they say – all treated alike – “everyone must get a permit if parade > 50 people”

50 Fighting Words

32. Chaplinsky v. New Hampshire – 1942 – Jehovah’s Witness got in argument and called city marshall names – Ct said words which inflict injury or incite breach of peace – not protected by Constitution. Statute convicted under said “if annoying” – probably overbroad today – but ct said fighting words so outside the realm of 1st Amendment. 33. 3 Ways Court has limited Fighting Words exception (so that now it is hard 2 win on this arg for the State – b/c can’t be too broad or vague but if too specific – its content-based): a. Must be directed at specific person – if not, not fighting words b. Vagueness and overbreadth – nowadays if “annoying” was the standard c. Content-based: RAV 34. RAV v. City of St. Paul, MN – 1992 – this case stretches the marketplace of ideas concept – cross burning in black’s yard – convicted of Bias Motivated Crime Ordinance – MAJ said this was content-based b/c language mentions “race, color, creed, religion, or gender”. All 9 wanted to strike down the law but differed in perspective. Some viewed as symbolic speech. 35. VA v. Black (pg. 253 SUPP) – 2003 – two consolidated cases on cross burning – True Threat/intent to intimidate case one was KKK usually on private property and other was kids putting cross on neighbor’s yard – big diff b/w this case and RAV was content-based in RAV and content neutral in Black. Ct struck down these laws though b/c strict liability criminal statutes – said unconstitutionally overbroad b/c statute says if burn a cross that is intent to intimidate - Ct says this is overbroad, b/c not always an intent to intimidate. Otherwise since 6 thought it was content neutral – probably would have been upheld – Ct didn’t have a problem with having a law v. cross burning w/ intent to intimidate.

51 Commercial Speech

36. VA Board of Pharmacy v. VA Citizens Consumer Council – 1976 – 1st Amendment protects purely economic commercial speech. Info on prices is of general public interest. Free enterprise econ deserves well informed decisions. Can still regulate the speech and achieve interests through other means – can’t ban it all together. 37. Commercial Speech IF: a. Advertisement b. Specific Product c. Economic Motivation 38. Why does it matter if labeled as Commercial Speech or not? a. B/c not given full protection under 1st Amendment – intermediate scrutiny b. Didn’t use to get any protection – 1st SC case to speak of commercial speech that was protected – Bigalow v. VA – struck down a prohibition on abortion-doing – not clear though whether struck down b/c of 1st Amendment or not 39. Greater New Orleans Broadcasting Assn v. US – 1999 – effort by Congress to regulate casino advertising. Edge had said 1 state can’t advertise in another where its illegal – Congress keeps narrowing the scope of the statute with lots of exceptions though. Ct said #3 and 4 of this test not met (statute riddled with exceptions) – so covered by 1st Amendment. Central Hudson test – 4 part test to see if commercial speech can be subject to govt. control: a. false, deceptive or illegal [if so, not protected b. substantial govt interest (intermediate scrutiny so compelling not needed) c. does speech restriction directly & materially advance govt interest d. narrowly tailored 40. Does 1st Amendment protect non-commercial speech if false? a. Yes – marketplace of ideas theory – can say what you want but will get corrected b. But false commercial speech – doesn’t contribute 2 marketplace of ideas c. Does 1st Amendment protect speech that talks about illegal stuff? – Under Brandenburg & Black – as long as not imminent – advocacy of illegality is protected. 41. Remember, if Ps tried to argue EP – economic regs are hard to argue that with – very deferential to the state – rational basis almost always passes (from post-Lochner era)

52 Time, Place and Manner Restrictions

42. Private Property – no right to have demonstrations, etc on them – see Logan Valley, Moose Lodge, etc 43. Public Property – Threshold Q is: is govt. property a forum at all? If so, 3 Types of Forums a. Public Forum – govt owned property constitutionally required to make open to Speech. Ex: streets and parks – only restrictions for time, place, manner are allowed. b. Limited or Designated Public Forum – public property that govt could have closed 2 speech but has voluntarily chosen to open (museum or library in a park) c. Non-Public Forum – may close to all speech-related activities or may restrict as long as content-neutral (ex: prisons) 44. 4 Requirements in order for Govt 2 B able to restrict speech a. Must be content-neutral: both viewpoint neutral (prolife > prochoice) and SM neutral (topic) b. Must be reasonable time, place, or manner restrictions c. Must be narrowly tailored 45. So Public Forum is not absolute license 4 speech – but pretty high burden v. prohibiting it – state can put restrictions but must be reasonable – so, can you get arresting for bothering in a public forum? - Yes, reasonable “manner” restrictions 46. Schneider v. NJ, Town of Irvington – 1939 – City has duty to keep streets open and free 2 move – it can’t abridge constitutional liberties – can punish if actually do litter but the fear of it doesn’t justify prohibition of a person handing out handbills. 47. Frisby v. Schultz – 1988 – ordinance v. picketing in residential “before or about the residence…” – DC and Ct of App had said injunction v. the ordinance – SC said it was ok. WHY? a. Does it restrict speech as applied? – Yes b. Is it a prior restraint (permits are classic prior restraints) – YES c. Is it content-neutral though? – YES d. So was is the standard of scrutiny for this time place manner restriction to decide if REASONABLE? e. Well, (1) If content based – strict scrutiny so compelling state interest if (2) content neutral – significant state interest and then ?s are: (1) alternative places to demonstrate - Yes (2) Narrowly tailored – Yes f. So, Ct said b/c there is a significant state interest – privacy in your home – can’t walk away – so Ct allows it (b/c of the bolded reasons) - fails this facial challenge. 48. From ’66 (Adderley) until 1992 – Cts usually refused to classify anything as traditional public forum other than parks and streets. 49. Designated Public Forums – SC has said can’t prohibit religious groups if open up 2 some, have to open up to all on content neutral basis 50. Non Public Forum case – prisons are these – as long as viewpoint neutral – can restrict. Airport terminals, post offices, utility poles – all non-public forums.

53 Unconstitutional Conditions Doctrine

51. Rust v. Sullivan – 1991 – HHS limits Title X funding recipients if engage in abortion related service – not mandatory to stop but must do it to get $ - Unconstitutional Conditions doctrine says can’t condition a benefit on a position that is unconstitutional – Ct says a funding decision under tax and spend power and not violate this doctrine. Govt can selectively fund a program 2 encourage certain activities it believes 2 B in the public interest – SC says its heavy burden to seek facial unconstitutionality. 52. How do you balance that with Rosenberger v. Univ. of VA – 1995 – Christian mag published by students and Univ. doesn’t fund it – Ct thinks not funding religious mag is being not neutral by the state – sees that as discrim b/c religious orgs not permitted to do it – freedom of speech. Funding was available for all. 53. NEA v. Finley – 1998 – allowed to not buy or fund all works of art – b/c its aesthetic and hard 2 do content neutral structure – also $ not available to all (Rosenberger comparison misplaced says Ct) – must make decisions/evaluate – B/c of Maplethorpe – Congress revises procedures for evaluating by Chairperson, must keep in mind decency and diverse values - P’s sued b/c of viewpoint discrimination, b/c criterion in statute are subjective- when their works disapproved – Ct says some enterprises – libraries, artist funding – decisions must be made. DC said 954(d) discriminates on its face and void 4 vagueness – SC reversed – facially valid and not vague. Could argue as-applied if had an example, but heavy burden on facial challenge. 54. US v. ALA – 2003 – this case is first time govt won 4 protecting kids from viewing porn b/c adults seeing it is protected by 1st Amendment – this is library filters case. New issue in that tech. 2 protect kids but infringes on freedoms. Video games and movies – Ct has said violence in those is protected by 1st Amendment even though kids could see it – normally 1st Amendment is potent block to efforts to regulate things 4 kids – what’s makes this case unique. Can’t receive fed funds if don’t install filters – DC found facially invalid and SC reversed. Court says Congress has wide latitude 2 attach conditions 2 the receipt of fed assistance in order to further its policy objectives – FUNDED MANDATE (like in Finley and Forbes) – just can’t induce the recipient 2 engage in activities that would themselves be unconstitutional – said no fear of suppression of speech b/c filters are easy to disable for adults if having problems. Ct also talks about forums – Ct appears to limit forums – this concept is very fact driven – may depend on parts of library – but here said computers are not public or designated forums.

54 Symbolic Speech

1. Speech can be non-verbal 2. Expressive Activity 3. Penumbras – peripheral rights from Griswold v. CT extend to constit. protection of expression, belief, and association – not just “utter” or “print” 4. 2 Questions to ask: a. When conduct communication 2 b analyzed under 1st /When is conduct expressive? b. When can Cts regulate this communication? 5. Symbolic speech is both conduct and expression 6. Lots of what we do is expressive but not necessarily falls under 1st Amendment (1st Question answered) a. Spence v. WA – test for expressive that falls under 1st: b. (1) Intent to Convey (more important than 2nd) and (2) Understood by viewers 7. (2nd Question answered) When can Courts regulate symbolic speech? a. US v. O’Brien – burning draft card and prosecuted case – did this qualify as protected symbolic speech under Spence? It was understood by crowd and there was intent to convey a message...Ct looked to 4 part test, Ct can regulate IF: (1) within govt’s Constit. power (2) furthers important substantial govt interest (3) unrelated 2 suppression of speech (4) narrowly tailored – Ct says in the end, even if can’t punish the expression, can punish the conduct Ct says conduct doesn’t equal speech just b/c intends to express and idea. b. City of Erie v. Pab’s A.M. – Erie, PA bans public nudity – uses O’Brien to ok the statute – Ct goes along and says important substantial govt interest. Concur - Scalia and Thomas don’t think this is expressive at all – just conduct. Ct says ordinance is content-neutral and satisfies the 4 part test of O’Brien so says its ok. Says will combat “secondary effects” – Dissent says never used this theory b/f and it won’t anyway. 8. Does symbolic speech get as much protection as regular speech? a. Protected: O’Brien says draft is wrong or dancer doesn’t dance but speaks b. Not Protected: burning draft card or dancing naked 9. Regulating conduct but not speech – may infringe on some speech though test is different too a. Pure Speech: strict scrutiny b. Symbolic Speech: intermediate scrutiny (important substantial govt interest – easier 4 govt 2 defend) IX. Freedom of Association

55 NAACP v. Claiborne – 1982 – white merchants sued NAACP b/c of their boycott – caused biz losses – if engage in violence – individuals can be held liable for that damage – but otherwise, 1st amendment protects freedom of association, peaceable assembly, and freedom of speech. Org can be held liable for the violence unless proven they encouraged or promoted it. Overall, while there is a strong govt interest in certain forms of econ regulation, such regulation may have an incidental effect on rights of speech & association but while has broad power to regulate economic activity, Ct doesn’t find a comparable right to prohibit peaceful political activity such as that found in the boycott in this case.

56 Freedom of association often clashes w/ anti-discrim. statutes

57 Both Jaycees and Rotary Club wanted to exclude women but local anti-discrim statutes said couldn’t

1. Courts said 2 types of association that could discrim: a. intimate association – needs 2 be a small group – if gets too large – can’t claim this right – look at size, purpose, and selectivity b. expressive association – covers orgs whose expressive message goes 2 who its members are – membership is central to its message – clubs take positions on public ?s as a matter of policy 2. KKK and Nazi party are expressive associations – just like NAACP – why should have right to discrim? – b/c MAJ v. them and would just take over their org and vote them out otherwis 3. I believe that Jaycees and Rotary Club were viewed as neither of these

58 Boy Scouts v. Dale – 2000 – 5-4 – why did BSA have the right to discrim? – freedom of association – they were considered an expressive association – their message goes to who its members are - which is debatable – certainly not intimate association though. BSA said gay conduct is inconsistent with values it seeks to instill. Ct said doesn’t have to associate 4 the purpose of disseminating a certain message – must just engage in expressive activity that could B impaired in order 2 get protection. Dissent says BSA is silent on homosexuality – there is no policy or position about that and since don’t talk about sex stuff anyway, shouldn’t matter.

X. Freedom of Religion

59 2 Clauses

1. “Make no law respecting an establishment of religion” 2. “prohibiting the free exercise of” – 2 Parts: a. Freedom 2 Believe – absolute protection b. Freedom 2 Act – not absolute

60 Often there is a tension b/w them

3. Govt can’t create a church but can’t not protect any church from say police protection – there’s a line b/w them 4. Also, student religious groups using campus facilities – loggerheads with 1st amendment – speech and establishment clause

61 3 distinct schools of thought that influenced Framers

5. Roger Williams – when entangled, religion and govt – religion is tainted and corrupted 6. Thomas Jefferson – wall b/w Church and State and if entangled, corrupts govt 7. James Madison – religious groups were factions like any other and needed 2 B controlled like any other

62 3 Viewpoints stemming from these older schools of thought:

8. Strict Separation – This is like Jefferson’s view – secular government – Problem is – would be odd not to provide sanitation or police protection – but the view is that separation needed 4 religious freedom – coercive effect if natl. prayer for ex. 9. Neutrality – as long as govt is neutral, assistance 2 religion is OK 10. Accommodation/Equality – govt should recognize religion has a place in society and history – only bad if coercive or established a state church or discriminate v. 1 religion over another .

63 Hialeah – 1993 – animal sacrifices – law against that – religion called Santeria – since the law is not neutral or generally applicable – it is unconstitutional in that it violates free exercise

64 Free Exercise

11. Govt can prohibit some actions – Reynolds v. US – no polygamy; can require some conduct – US v. Lee – Amish must have SSNs and pay taxes; and can impose regs that makes free exercise more burdensome – Sherbert v. Verner – 1st case where said strict scrutiny 12. B/f 1960 – no real standard 4 free exercise cases 13. In Verner – strict scrutiny but most of challenges upheld – so probably not really the standard 14. Employment Div. v. Smith – 1990 – state said couldn’t use peyote – Native Americans said part of their religion – Ct said as long as neutral and general applicability – free exercise clause can’t be used as an arg and rational basis 4 those types of cases – which it probably had been since Verner anyway. Smith doctrine has wide ramifications if applied neutrally and generally. Smith influenced Hialeah. 15. After Smith – Congress passed Religious Freedom Restoration Act to go v. Smith – advocated going back to Verner – strict scrutiny. Thought “neutral laws” can burden religious exercise just as much. SC declared this unconstitutional and voided this statute in 1997 using Sect. 5 of 14th Amendment.

65 Mitchell v. Helms – 2000 – line drawing b/w govt subsidies to religious schools v. assistance to these schools. Ct said this was ok aid 2 the schools. Ps had said violated Establishment clause. Ct said direct/indirect argument doesn’t apply.

16. Traditionally, 3 criteria b/f Ct upholds govt assistance 2 non-public schools a. Had to be available 2 all schools b. Aid provided directly to students c. Aid was not actually used 4 religious purposes 17. In Helms, they said the 2nd and 3rd were not a factor – it was just loaning out equipment – non-ideological material 18. No MAJ opinion – the Plurality of 4 had a Neutrality viewpoint – a. Neutrality b. Private Choice by people c. Doesn’t create financial incentives 4 religion d. No indoctrination 19. Concur – said 2 broad a scope 20. Dissent – Strict Separation viewpoint (Souter)

66 Zelman v. Simmons-Harris – 2002 – Cleveland school vouchers program – like Helms, 5-4 decision – there seems 2 B a shift 2 Ct approving aid going either 2 students or schools – Ct views this as a matter of individual choice – Dissent says Strict Separation viewpoint.

XI. Congressional Power

67 Government Structure & Power

1. Limitations on Govt was a major focus of drafters – federalism – separation of powers – structure of govt was focus not individual and civil rights 2. Congress may act only if express or implied authority in Constitution – states may do whatever they like as long as Constitution doesn’t prohibit it. a. Art I. Sect I – legislature powers vested in Congress b. But 10th Amendment – not delegated to US or prohibited – reserved 4 States – Police Power [Congress doesn’t have police power b/c must find authority] 3. So Questions you ask when Legislature does something: a. Is what Congress has done – is it w/in any expressed or implied power? Authority? b. Does it violate any other Constitutional provision? 4. My seem like Congress has its hands tied BUT Art I Sect. 8 gives it lots of power

68 McCulloch v. MD – 1819 – unanimous opinion – J. Marshall again – trying to increase natl power – MD passed law that essentially was to tax the US bank – US bank refused to pay so sued chief cashier, McCulloch – Q = did state have authority to tax the US bank – (1) did Congress have authority to create the bank – Ps don’t raise this but must answer it to get to (2) so Marshall does in dictum – says yes, they do – Constitution is the supreme law of the land - this is meat of the opinion. (2) = Is the tax constitutional?

5. MD argues Constit. comes from the various states but Marshall says Constit is not a compact of states but comes from people 6. Historical arg – historical acceptance of Bank created authority 7. Constit. impliedly grants authority – authority if necessary and proper – Marshall distinguishes b/w Constit. and statute – Constit. is an outline, made 2 endure – not just enumerated powers 8. (2) – states taxing leads down slippery slope - no, no taxes in this case. 9. Important doctrines from this case: a. Fed Govt is supreme over states b. Expansively defined Congressional power – enumerated + necessary & proper (means to carry out even if implied) c. States limited in ability 2 interfere w/ national govt.

69 Commerce Power – there are 18 enumerated powers in response to A of C (under A of C – each state was sovereign in regards 2 commerce) from Art. I Sect. 8. – [3] “To regulate commerce with foreign nations; and among the several states; and w/n the Indian Tribes.”

3 stages of commerce clause decisions after Gibbons v. Ogden – 1824:

10. 1824 – 1887 – Ct focused more on state power 2 regulate - Gibbons case was about steamboats in NY waters – Gibbons (supported by Feds) and Ogden (supported by NY – NY passed law saying only certain kinds of boats and he worked for that company) – What was supreme – Ct held Fed law prevailed – Gibbons won. – Marshall says commerce is all phases of business as long as significant impact on IC – manufacturing, production, distribution, and sales – all included 11. 1887 – 1936 – ct adopted approaches 2 limit perceived excesses of commerce power [industrial revolution] – Ct tended to ignore Gibbons – time of substantive power – Ct wanted to cut back on fed. power – striking down things left and right - Ct dominated by laissez-faire judges – US govt regulation – Lochner period. a. Ct defined commerce : (1) distinguished b/w movement and manuf/production – not commerce until movement b. (2) substantial affect & direct – other interps that limited commerce’s coverage c. (3) “zone of activity” for the states – even if commerce, if statute invaded that zone - unconstitutional 12. 1937 – 1995 (Lopez) – ct abandons attempts 2 restrain congressional power 2 regulate the economy – doesn’t strike down anything – very broad interpretation [Court Packing attempt by FDR and then him being able to appoint 7 justices over this time – stopped striking down New Deal stuff and sustaining broad application of Acts. Reaction 2 what Ct doing – judges during previous time were allowing some moral-type laws to go through - depression also.

13. NLRB v. Jones – 1937 – upheld the NLRA – substantial impact on IC – involved manufacturing/production even. 14. US v. Darby and Wickard v. Filburn – both in early ‘40s – they are twin pillars of modern commerce clause doctrine – deferential approach 2 Congress’s exercise of this power – Wickard also said even if intrastate economic activity – is w/n IC if substantial effect interstate commerce. 15. US v. Lopez – mid 1990s – Ct struck down exercise of Congressional authority under Commerce Clause – firearms near school w/n certain distance – felony – states can do this and are doing this – just b/c say “under commerce clause” doesn’t make it ok – poorly drafted statute – no findings and doesn’t even talk about commerce really. 16. US v. Morrison – 2000 – lady sued after being raped, Ct here said state must provide remedy, not US – shows that Lopez wasn’t an anomaly or that just b/c it had been poorly drafted – lady argues #3 below (c) only and Ct says that’s too attenuated, no explicit connection and no congressional findings regarding the effects upon IC and no real economic endeavor [4 bold args were args made from Lopez made regarding #3 below] – since NLRB case in ’37, Congress has wide latitude but Lopez said there are bounds – 3 categories that Congress may regulate: a. Congress may regulate the use of the channels of IC b. Congress may regulate the instrumentalities of IC c. Activities having a substantial effect or relation to IC 17. Jury is still out on current state b/c there is disagreement and 60 yrs of precedent not being used in these recent cases. Dissent in Morrison said there was plenty of findings – Congress did there homework this time as opposed to Lopez but Ct ignoring it – Dissent also referred to past cases passed under commerce clause regarding civil rights but those involved hotels and restaurants and so easier 2 see the commerce aspect there. 18. Reno v. Condon – 2000 – DMV selling info case – Rebecca Shaffer – Ct says it falls under ICC – its an article of commerce

71 Taxing Power

19. Art I Sect 8 – power to collect and lay taxes 20. Ct often would distinguish b/w revenue (ok) and regulations (no) and direct (ok) and indirect (no) – that doesn’t matter anymore 21. Sonzinsky v. US – 1937 – Ct says test is if productive of some revenue – Ct is basically saying no tax measure will fail this so Congress has ability 2 impose taxes – the Act in question was a tax against organized crime essentially – Ct says every tax is in some way regulatory – doesn’t make it any less a tax if has a regulatory effect or is burdensome. 22. US v. Ptasynski – 1983 – Alaskan Oil Exemption in Crude Oil Windfall Profits Act – Ct says its ok – Ps argued using the Uniformity Clause (?) – fed taxes shall be uniform throughout the US – Ct says its ok – Alaska is taxed a lot too thru this tax – not benefiting Alaska.

72 Spending Power

23. US v. Butler – 1936 – Can Congress spend 4 anything rationally called “general welfare” or do have to specifically say Art I Sect 8? – Ct said as long as general welfare – general statement by Congress, even if act doesn’t invoke a particular Art I Sec 8 power Historically Madison said general welfare meant confined to enumerated powers while Hamilton said includes separate powers from those enumerated – Ct says Hamilton’s is correct but power 2 spend is subject 2 limitation – 10th Amendment implies all others R reserved 4 the states – ruled the tax for farmers was unconstitutional. 24. Steward Machine Co v. Davis – 1937 – coercion – attaching $ 2 do something – 5-4 SC said statute OK - Ct used Sonzinsky here (every tax is regulatory in some way) – still goes on today too – DL or drinking age or filters – put conditions 4 getting money that states need. – attaches strings to fed funds under Spending Power. As long as mandate rationally related b/w activity & funding reciprocity – SC says ok. Says it is a national problem. Ps argue Butler but Ct says that doesn’t apply here. 25. Helvering v. Davis – 1937 – old age benefits provisions of SSA – it’s a national problem – would flock to the best state otherwise – if $ spent 2 promote the general welfare – Congress shapes not the states. 26. Buckley v. Valeo – 1976 – general welfare is a grant of power not a limit – McCulloch as support – Congress legislating 4 general welfare – campaign finance reform.

73 Property Power

27. Kleppe v. NM – 1976 – Wild Free Roaming Horses and Burros Act – NM state agency seized some and sold them – US said get those burros back – state ct said no – US SC said not unconstitutional – get them back – Congress has authority to control its land. Ps were arguing 4 a narrow reading of the Art IV Sect. 3 power – Ct says precedent is for an expansive reading of Art IV.

74 Fiscal Power

28. Congress has power to borrow money on credit of US Art I Sect 8 [2] 29. Congress has power to coin money [5] 30. Norman v. B & OH Railroad – 1935 – said not DP violation to take off gold standard b/c process was due 4 US to change that – has the power.

75 Naturalization

31. [4] – Naturalization process can be decided by Congress – exclusive power to Congress. 32. They have the ability to decide who comes into US as well 33. Kleindienst v. Mandel – 1972 – Ct upheld AG refusal to waive statutory provision excluding aliens who advocate communism – Ps argued 1st Amendment (not of the aliens but of those who wanted to hear the visitors speak) – But Ct says power 2 exclude is inherent in sovereignty as long as respect procedural DP safeguards 4 aliens who enter.

76 Admiralty – plenary power over the seas – Art III Sect. 2 – Congress has extensive authority over US waters under Commerce Clause but under Art III – national control of admiralty and maritime jurisdiction is with fed judiciary.

77 10th Amendment – limitation on fed govt – zone protected by the states

34. Dispute over what the boundaries are 35. In 1800s (19th Century) – 10th wasn’t independent grant of state authority but more – how far fed can go – Gibbons v. Ogden – rarely has Congress been seen as going too far 36. In 20th Century up until 1937 - # of cases saying Congress went too far – same as Commerce Clause 37. 1937-1990s – hardly any bar on fed power 38. 1990s – revived as a brake on fed authority 39. NY v. US – 1992 – radioactive waste disposal – 3 incentives in the Act: a. monetary incentives b. surcharge or access incentives c. “take title” – SC said this is coercion of the state – other parts to this fed statute were ok but this rule – giving title and liability to the states for the waste if don’t go along with fed scheme by 1996 was too much – 10th Amendment can be a bar on fed - often works against Commerce Clause. d. It violated 10th b/c while Congress can create a program with commerce clause and can administer itself it can’t force states to do it 4 them. Constitution doesn’t confer upon Congress the ability 2 require the states to govern according 2 Congress’s instructions. e. 2 methods under Spending Power: (1) Congress can attach conditions on the receipt of fed. funds (SD v. Dole) – needs to bear some relationship 2 purpose of fed funding and (2) where Congress has authority 2 regulate private activity under Commerce Clause – Ct’s have recognized Congress’s power 2 offer States the choice of regulating that activity according 2 fed standards or being pre-empted by federal regulation – but can’t do what did in this case. f. Prudential reasons – (1) If Congress creates program but forces states to do it – state will be puppet and not fair (2) state taxpayers would have to pay but may not want to - need accountability (3) If fed program and fed taxpayers support – not all the people in that state to receive the benefit 40. Printz v. US – 1997 – 5-4 - Brady Handgun Act – MAJ said this was unconstitutional – sep. of powers and 10th Amendment – Congress intruding on Exec power b/c fed program administered through officers – Congress says if Congress can do this – can bypass the Prez anytime 41. Printz & NY – there are 10th Amendment limits 2 Congressional authority – if Congress administers them directly – 10th not a bar – but can be if going 2 create a program that doesn’t directly or through SD v. Dole route (strings attached) – must B related 2 it then. 42. 3 requirements that challenges by states 2 fed. legislation must meet in order 2 succeed: a. Regulates states as states b. Must address matters that are indisputably attributes of state sovereignty c. Apparent that the states compliance w/ the fed law would directly impair their ability 2 structure integral operations in areas of traditional govt. functions

78 11th Amendment

43. Affirms (or reaffirms) state sovereignty 44. Sovereign immunity –state govt can’t be sued in its own ct w/o its permission – most states have waived this but w/o waiver, this applies 45. 11th: state citizen can’t sue state, nor can citizens of other states or citizens of other countries in fed cts – unless state waives the right 46. 11th Amendment adopted in response to Chisholm v. GA (1793) 47. Art III – allows states to be sued by citizens of other states, their own states and foreign nations – can be state as P or D – doesn’t seem to confer sovereign immunity – so in Chisholm, P sued state of GA in SC – GA didn’t show up – default judgment – started a fire storm in GA - states were worried about rev. war debt lawsuits and lost land suits by Tories, etc – 11th Amend passed quickly – 3 weeks after Chisholm – 2/3rds of both houses and 3/4ths of states ratified 48. Alden v. Maine (1999) – this also applies in state courts 49. Policy considerations that come into play b/c a literal reading of the 11th says States could violate Constitutional protections w/o redress. 50. EXCEPTION to the 11th – Ex Parte Young (VERY IMPORTANT CASE) – 1908 – Can sue state officials – not for damages but 4 prospective relief – injunctions, etc. 51. Seminole Tribe of FL v. FL – 1996 – this act says can do gaming once get a pact w/ state – state must negotiate in good faith – Seminoles said state didn’t negotiate in good faith – This case opened the door to lawsuits in 1 case and shut them in another – May Congress abrogate/waive immunity and provide direct damage relief – YES – if clear legislative statement – if under 14th Amendment Sect. 5 – SC’s exception to Ex Parte Young – If have specific remedial & regulatory scheme in pace by Congress then Ct says judiciary can’t create one like in Ex Parte Young. So basically said Ex Parte Young doesn’t apply here and doesn’t permit a suit v. a State’s Governor b/c had a specific remedial scheme already set up and so judiciary can’t set up another. 52. States can abrogate their 11th Amendment protection under the 14th but not under ICC – Seminole overrules Union Gas, which had said as long as Congress exercises any valid power (in that case – Art I Sect 8), can abrogate – Seminole overrules this. Union Gas had gone further than Fitspatrick which had said if Congress validly enacts statute under Sect. 5 of 14th – So Seminole says Congress can abrogate immunity 4 states – must state it explicitly – clear legislative statement = (1) Legislature unequivocally express its intent through clear legislative statement and if so – (2) did it act under a valid exercise of power – 2 ?s to ask. 53. ICC in 1789 then 11th in 1798 and then 14th in 1868 – Ct said can exercise a power that postdates 11th but not predates – postdating amendment is seen as modifying prior laws. 54. 13-15th Amendments clearly designed to strengthen the hand of the fed govt at expense of the states 55. Dissent in Seminole says Chisholm wasn’t under fed statute anyway – it was a Contract dispute so 11th not meant to abrogate if under fed statute law like in this case.

79 Civil War Amendments & Enforcement clauses

56. All 3 of these amendments have enforcement clauses – “shall have the power to enforce this article by appropriate legislation” a. May it regulate private conduct? b. Interpreting only OR remedy & deter? 57. 13th Amendment – Civil Rights Act of 1883 said applies to govt & private but also said limited 2 slavery – no “badges and instances” of slavery – in 1968 Congress over-ruled that and said Congress could regulate “badges and instances” 58. 14th Amendment – US v. Morrison – besides CC, also said regulating under Sec. 5 of 14th – Ct said couldn’t regulate private conduct and only state action not fed action. 59. 15th also says can’t regulate v. private conduct; state action only 60. City of Boerne v. Flores – 1997 – city ordinance had said can’t destroy city landmarks so Church couldn’t renovate itself – Ps were trying to use RFRA to strike down the ordinance – this case strikes down RFRA – says exceeded Sect. 5 of 14th Amendment authority (which had been designed to over-rule Smith) – Ct says Congress can’t reverse SC decisions – SC interprets the Constitution not Congress – 14th Amendment has DP, applies 1st Amendment to the States. Constitutional is floor 4 rights – Congress can increase but can’t lower. This case stands for preserving role of determining substantive meaning and interpreting Constitution from Marbury – eliminates risk Congress will use enforcement power 2 restrict 14th Amendment rights – keeping Congress in role of effectuating Ct’s interpretations. If Congress could alter the meaning of the 14th – Constitution = statute and not be paramount/supreme. Congress has power beyond remedial or preventative but it only extends to “enforcing” and that means must B a congruence & proportionality b/w the injury 2 B prevented or remedied and the means adopted 2 that end. 61. Nevada Dept. of HR v. Hibbs – 2003 – FMLA case – man wants more time – fired b/c didn’t come back – said gender discrim/equal protection under 14th Amendment. Is State immune from lawsuit? - no, lawsuit ok says SC. Dissent says treating all states as one b/c a few had history of gender discrim – thinks must show State had been acting in violation b/f – also other dissenter though this was an entitlement program not a remedy. In order to abrogate 11th Immunity remember: a. (1) Congress must be explicit in saying it intended to abrogate 11th Amend. Immunity of states – YES b. (2) Congress must act validly under Sect 5 of 14th – this is Key Q – remember the CC clause won’t work here c. Validly abrogated – can B prophylactic d. Congress in applying Sect. 5 of 14th – must be a congruence and proportionality (from Boerne) in order to answer the 2nd question (b above) – that’s how far Congress can go 2 enforce the 14th Amendment. 62. Tennessee v. Lane – 2004 – Title II of ADA – does Title II exceed Congress’s power under Sect. 5 of 14th? – Ps were suing about courtroom access – same 2 part test as in Hibbs! – to get the 5 votes, the MAJ kept it narrow – only about judicial access. Ct held that when answering the 2 Questions – there is a balance: can’t be a substantive change in the governing law (Boerne) but can enact prophylactic legislation (Hibbs). Key is that must exhibit congruence & proportionality b/w injury 2 B prevented or remedied and the means adopted 2 that end. Dissent thinks Cong. & prop test is flabby – replace it with enforcement test and therefore prophylactic legislation is reinforcement not enforcement. XII. State Regulation of Commerce – Dormant Commerce Clause

80 State and local legislation is unconstitutional if places an undue burden on IC

81 2 types of situations:

1. Express 2. Implied

82 What if Congress never legislated – Congress silent – dormant clause – can state and local still B unconstitutional under CC?

3. The answer is YES – policy Q’s– UNDUE BURDEN (abstract not a bright line) 4. Today – balancing test: if legislation alleged led 2 violate IC – grounds on what legislation passed – how important 2 state interest in regulating? v. how much interference with fed rights 2 regulate IC? 5. Reasons in favor: Constit. designed 2 overcome weakness of fed govt. in A of C and Congress tends 2 work for locals – bias so protectionalist legislation encouraged. 6. Reasons against: framer’s could have put in Constitution if wanted – ought 2 come from Congress 7. Historically: a. Gibbons v. Ogden – Dormant CC depended on distinction b/w police power (Congress could) and commerce (Congress couldn’t). b. Then Cooley – natl v. local scope regulation – If local matter, OK but not OK if national matter. c. Neither of these tests lasted too long but even today’s is not that precise or clear.

83 When tax – tax under IC – balancing taken.

84 Western Livestock v. Bureau of Revenue – 1938 – Multiple Burdens doctrine – less formalistic

85 Complete Auto Transit v. Brady – 1977 – Ct finally rejected the formalistic approaches – Ct upheld a tax in MI on bizs who do biz in the state – risk is not enough – look 2 practical effect – instead of formalism, look 2 practical effect - FUNCTIONAL and will sustain taxes v. CC challenges when tax is: (1) fairly apportioned, (2) applied 2 an activity w/ a substantial nexus w/ the taxing state, (3) doesn’t discriminate v. interstate commerce and is (4) fairly related 2 the services provided by the state.

86 New Energy Co of IN v. Limbach – 1988 – state statute discriminating v. interstate commerce will normally be found unconstitutional – tax credit if ethanol produced in OH – does this discriminate v. commerce in violation of CC – SC says yes – D’s argue justifications are health and commerce but Ct says no – just speculation – Ct says only way discriminatory statute isn’t struck down is if demonstrably justified – high bar though. Direct subsidization of domestic industry doesn’t ordinarily run afoul of that prohibition, discrim tax of out-of-state manufacturers does. Ct says this is overtly protectionalist legislation – no health or safety concerns. Uses the Brady test.

87 State Quarantine and Inspection Laws

8. CC doesn’t prevent states enacting these types of laws 9. Interstate commerce is a given in these cases - ? is if an undue burden? 10. It may not interfere with transportation into or through the state, beyond what is absolutely necessary 4 its self-protection. 11. Baldwin v. GAF Sealing – 1935 – NY enacted min milk selling price – guy from VT sued and SC agreed with him – sets a barrier 2 traffic – opens doors 2 rivalries meant 2 B averted by subjecting commerce b/w states 2 power of the nation. 12. MN v. Cloverleaf Creamery Co – 1981 – MN statute banned retail sale of plastic containers – Ps said that violates EP and CC – SC reversed the lower Cts which had said it helped one econ. interest over another and didn’t solve its stated goals – SC said rationally related 2 state’s objectives under EP – rational basis test: a. (1) Is it a legitimate state purpose? – Yes – keep out of landfills b. (2) Is the legislative classification b/w plastic and non-plastic rationally related 2 achievement of the statutory purpose? Ct says Yes Look to whether incidental burden > local benefit – Ct says not clearly excessive, doesn’t think is unreasonable burden on IC – Ps alternatives are either more burdensome or less effective. Ct says also this doesn’t discriminate b/w interstate and intrastate commerce b/c affects both in and out of state producers alike. Not an UNDUE BURDEN.

88 Requiring Business Operations 2 B performed in the Home State

13. MN v. Barber – 1890 – meat had to be inspected in MN w/n 24 hours after slaughter – Ct said statute invalid by Ct b/c beyond scope of police power – similar statutes in all states would destruct commerce among the several states 14. Pike v. Bruce Church Inc – 1970 – this cantaloupe company goes through CA for packing instead of AZ – Ps say will cost 200K to change its shipping to meet AZ’s desires – CT says the burden > local benefit – When a law regulates evenhandedly 2 effectuate a legitimate local interest and its effects on interstate commerce R only incidental, it will B upheld unless the burden imposed is clearly excessive in relation 2 the local benefit.

89 Preserving Resources 4 In-State Consumption

15. PA v. WV – 1923 - statute saying its WV gas goes to WV citizens 1st and then 2 out of staters – CT said that was invalid – natural gas is an article of commerce – the transportation of it is IC – interference with that is prohibited unless special considerations – Ct can’t find any. 16. HP Hood & Sons v. DuMond – 1949 – Commissioner of Ag and Markets denied a permit 2 HP Hood to open a 4th receiving depot in NY for milk to Boston – SC says statute violates CC so must fail – free access and free trade is best 4 the states – Ct has consistently rebuffed attempts of states 2 advance their own commercial interest by curtailing the movement of articles of commerce, while generally supporting their right 2 impose even burdensome regs in the interest of local health & safety.

90 Preserving State Owned Resources 4 In-State Use

17. Reeves Inc. v. State – 1980 – May SD confine sales of cement it produces solely 2 its residents consistent w/ the CC? – Reeves is a WY customer – lowered cement sales hurt his construction company – he sued – DC enjoined SD, Ct of Apps reverses and SC affirms – used Alexandria Scrap as a model – market participant v. market regulator – nothing, in absence of Congressional action, prohibits a state from participating in the market and exercising the right 2 favor own citizens over others. Ps argue there are exceptions to Alexandria Scrap – they are this is protectionalism and leads to hoarding – Ct says maybe so but so is lower tuition 4 in-staters and police and fire protection – SD’s goal is 2 serve its citizens and as for hoarding – Ct said this isn’t a natural resource so doesn’t apply – no unique access 2 materials needed 2 make cement. 18. Market Participation Exception: may discriminate in favor of in-staters if a participant not a regulator. This is another argument raised besides dormant CC and P& I clause. 19. CTS v. Dynamics Corp – 1987 – laws regarding tender offers & “control shares” by out-of-state companies – does this violate the Dormant CC or get pre-empted by Fed Law? DC and Ct of Apps say yes – SC reverses and says no. 1st – SC dismisses the Pre-emption arg. Then for DCC – (1) is this discriminatory and (2) does it expose companies to inconsistent regulations? Ct says no to both – it is even handedly applied 2 all tender offers. XIII. Pre-Emption – Supremacy Clause

91 Where a collision b/w an Act of Congress passed pursuant 2 Constitution and a state statute, state law must yield 2 law of Congress” – Gibbons v. Ogden

92 Pre-Emption comes from Art. IV Supremacy Clause – Q is when is something pre-empted?

93 Ct has gone broad – if just touches a field that Congress should be taking but lately has been narrower – “need clear and manifest purpose”. Higher fed pre-emption lowers state authority and vice versa

94 Gade v. NSWMA – 1992 – does an IL statute regarding disposal of hazardous waste get pre-empted by OSHA? Ps sue saying pre-emption – DC said no and Ct of App affirm in part and then SC says states can actually preempt fed if follow part 18(b) of OHSA – must get approval. IL statute is not precisely what OSHA says but there is some overlap and inconsistency.

1. Express Pre-Emption – statute expressly says Congress pre-empts – not always express as it sounds – even if clear when it does, not always clear what all is pre-empted. 2. Implied Pre-Emption – statute doesn’t say anything a. Field – scheme is so pervasive and encompassing – difficult b/c if so pervasive, why didn’t Congress put it in? (ex: immigration, foreign relations) b. Conflict – compliance with both laws is a physical impossibility – compliance with 1 violates another – differences must B great – so can be tricky sometimes. c. Impeding achievement – if impedes achievement of fed statute’s purpose then preempted – less than a conflict preemption – less showing needed. 3. Implied is tough 2 determine b/c has got 2 B clear and manifest but yet the statute doesn’t even speak to it (otherwise it might be express) - SC says this is Implied Pre-Emption b/c not approved by 18(b) – so by negative implication. SC says fed law is supreme and it does pre-empt this IL statute. Ct doesn’t agree that if state legislature articulates a purpose other than workplace health and safety then OSHA loses pre-emptive force – if so, States could just say anything in leg. history. Gade is a good example of how difficult these questions are – Plurality decision: 4 say through negative implication that since not approved under 18(b) then preempted 1 says this is not implied but Express and 4 say no preemption at all.

95 US v. Locke – 2000 – assumption of non-preemption articulated in Rice that historic police powers of the states were not 2 B superceded by the Fed Act unless clear and manifest purpose of Congress – is not triggered when the State regulates in an area where there has been a history of significant fed presence.

96 Crosby v. NFTC – the fact that some companies may B able 2 comply w/ both sets of sanctions doesn’t mean that the State Act is not at odds w/ achievement of the fed. decision about the right degree of pressure 2 employ.

97 3 Qs that come up in these cases

4. Should there be a strong presumption v. preemption? Gade says yes [but still does] 5. How much of a showing required 2 overcome presumption? 6. Should Cts find preemption if fed purpose will B impeded by application of state statute? XIV. Separation of Powers/Presidential Powers

98 Does President have inherent power or limited by provisions of Art II?

1. There is debate b/c framers were not explicit 2. Art I says “herein granted” but Art II doesn’t – so is it inherent? 3. By not repeating “herein granted” – giving it inherent exec. power 2 do whatever needs 2 B done unless expressly granted 2 another branch or prohibited by Constitution [Hamilton/Federalist view] v. no inherent power – just meant 2 say singular power (1 Prez) – [Madison view]

99 Woods v. Cloyd W. Miller Co – 1948 – the war led to deficit so Congress has power even after cessation of hostilities 2 act 2 control the forces that a short supply of the needed article created – if not the case, Nec. and Proper clause limited 2 the several war powers.

100 Youngstown Sheet and Tube v. Sawyer – 1952 – celebrated case - Steel Union going on a natl strike – Truman orders Sec of Commerce (Sawyer) to occupy steel mills and keep them running b/c it’s a national emergency (Korean War) – Sawyer did it and then lawsuit – 6-3 but lots of concurring opinions so hard 2 say MAJ is controlling. Ct said Truman doesn’t have that authority 2 do this – but lots of dispute in the Ct – 4 approaches conveyed. In ’47 Congress had done Taft Hartley Act which was fairly pro-management and there was provision 2 give Prez this power and that provision was defeated so this was arg used – that Congress had thought of this already and said no. SC said Prez order amounts 2 lawmaking and doesn’t fall w/n his powers as Nation’s Commander in Chief. Prez’s power must come from an Act of Congress or from Constit. itself – nothing express or implied 4 what he did here. The order doesn’t direct that a Congressional policy B executed in a manner prescribed by Congress – it directs that a Prez policy B executed in a manner prescribed by the Prez.

101 Four Approaches (conveyed by the Ct in Steel Seizure case):

4. No inherent prez power – Black – a literalist – must stem from statute or Constitution 5. Interstitial Prez power – Douglas concurrence – Congress and Prez have powers under Constitution – both can act as long as not usurping other branch – so as long as needs 2 B done and Constitutional – then can do. 6. Legislative accountability – Jackson concurrence – Prez can do it as long as Congress doesn’t say no. Jackson also goes on to provide general thoughts – different than an actual approach - zones: a. (1) If Congress says ‘may’ or ‘must’ do this – Prez has both his and Congress’s – lots of power [Truman didn’t have this] b. If Congress silent – Prez just has Prez’s powe 2 rely on – some power c. If Prez incompatible w/ Congress – his power (minus) Congress’s power – lowest [Truman’s here] 7. Broad inherent authority – Vinson – Dissent – as long as not unconstitutional (either b/c expressing prohibited or expressly given 2 Congress) – broad inherent authority – “laws faithfully executed” 8. REMEMBER THOUGH – THERE IS CON LAW AND THERE IS REALITY – PREZ STILL HAS LOTS OF PRACTICAL POWER THAT MAY NOT BE 1 OF THESE APPROACHES BUT CT DOESN’T ADDRESS OR NEVER BROUGHT UP. F. International Agreements 1. Havenstein v. Lynham – 1880 – all treaties made shall B supreme law of the land 2. MO v. Holland – 1920 – Art. 6 – supreme law of the land includes treaties – but must B valid – not valid if infringes on Constit. – only supreme law when made in pursuance of Constitution. Here there was a rule from Ct saying can’t pass statutes on migratory birds – MO sued when this treaty w/ Britain on this subject went down but Ct said this is different – although not proper under CC – its proper under treaty power. 3. Treaty must not violate Constitution – same goes for Exec. Agreement – otherwise can do any agreement w/n treaty power – ex of when this happened – see Reid v. Covert – this rule is the exception that most anything is proper under the treaty power. 4. US v. Belmont & US v. Pink – Upholds Prez authority under Exec Agreements – SC says power over intl affairs is in natl govt and can’t B subject 2 any curtailment or interference by states. 5. Reid v. Covert – 1957 – convictions by court marshal reversed by SC – no agreement w/ a foreign nation can confer power on Congress, which is free from the restraints of the Constitution. 6. US v. Certiss Wright Export Corp – 1936 – Ct says fundamental diffs b/w the powers of the fed. govt. in respect 2 foreign affairs and those in respect 2 domestic affairs – enumeration concept – that those not enumerated go 2 states – only apply 2 things states had – domestic affairs – since states never possessed intl. powers – such powers never have been carved from state powers 2 begin w/. During this time – 1930’s – SC was curbing inherent power of Prez and Govt as a whole w/ domestic affairs but int’l affairs is a different story – historically more power for Prez/Exec. Panama and Schechter – 2 cases that said non-delegation – soon became shown 2 B impractical though. 7. Treaties – Art. 2 Sect 2 – can make treaties provided 2/3rds of Senators present concur – lots of treaties that US has signed but Senate doesn’t approve (either doesn’t vote or did and against it) – not part of US loaw or recognized by US law until approved by Senate. 8. 2 Major Issues of Treaty Power a. When may Executive Agreements not signed and become part of US Law? b. What powers does Prez have to rescind treaty after ratification? 9. #1 – May Prez circumvent treaty clause by signing Exec. Agreements? – YES – agreement signed by both Executives is what this is – Constitution doesn’t speak 2 it but has been recognized over time – so if not think will go thru Senate – do this instead of treaty – works w/ 2 countries but not w/ UN acts where other countries already signed – like US v. Belmont & US v. Pink – thru Exec. Agreements. 10. Supremacy Clause talks about sub-constitutional authority – includes treaties and fed. statutes – fed statute > State Constitution or statute and/or treaty > State Constitution or statute 11. What if treaty and fed statute conflict? – Later in time prevail – if can’t harmonize – Ct tries to do it 1st but if can’t – later prevails. 12. #2 – Can Prez rescind treaty unilaterally? Carter did w/ Taiwan and Sen. Goldwater sued – said need Senate ratification like U do for ratification – CT said no – 4 Justices said political ? while a 5th said not ripe – so, its still the law that Prez can rescind unilaterally – not brought up too often. 13. War Powers a. Prize Cases – 1863 – Lincoln issued blockade of southern ports – MAJ says yes – Prez doesn’t wait 4 Congress – depends on degree of force the crisis demands. Challenges to Pre’z authority 2 commit troops – Ct will probably always say political ? – this happened a lot during Vietnam War. b. Only Congress can declare WAR but Prez is commander and chief and can commit troops so there is tension. Congress also handles appropriations. c. Bottom line though is Prez can do what he wants and so can Congress. d. Mora v. McNamara – Ct denies cert – which is a non-statement on the merits of the case – this is a Vietnam War case…what’s interesting is that often will put dissents and concurrences on denial of cert – like in this case – why if non-statement? 14. Line Item Veto a. Clinton v. NY – 1998 – most governors have this power – Constitution doesn’t speak to this but that’s probably b/c each bill only dealt with one subject back then – not like now when so much pork included – currently can only veto or approve – Prez’s have been frustrated by this – Congress passed Line Item Veto Act and Clinton used it on 2 occasions and those affected sued – SC said this was prohibited and unconstitutional act b/c of Presentment Clause – Art I. Sect 7 – sign or veto – only options – deal w/ it as a whole. b. If Congress really wanted to change this – could do a Constitutional Amendment or separate out their bills.

15. Legislative Veto a. Discussion begins with Administrative agencies b. Proliferation of them after New Deal Era c. The 535 legislators can’t operate the fed. Govt alone – need the agencies – they are not in the Constitution – they have been created – come from legislative acts – enabling statutes - but act under the executive branch d. 2 major types of authority i. Rulemaking – statutes [legislative] ii. Adjudicative – determine disputes – both private v. private and private v. agency [judicial] e. How do U control agencies? – used 2 B through non-delegation doctrine i. Schechter and Panama – 1935 - struck down congressional delegation 2 Exec of congressional authority ii. Never struck down since and probably never will iii. Demise of non-delegation doctrine – as long as Congress provides intelligible principles 2 govern agency its ok – but often even when there aren’t those principles, Ct upholds anyway – it’s a way for Congress 2 punt or pass the buck – have the agency do their work or make the decisions – they R not accountable. f. Congress could pass legislation that over-rides every agency action but that would be cumbersome – so legislative vetoes – each branch can veto – statutes create the legislative vetoes. g. INS v. Chadha – 1983 – Was it valid 4 House to leg. veto/over-rule Immig. Law Judge – Ct says no – resolutions are ok – those are nothing, but otherwise – need both houses 2 act in a legislative fashion. h. Art I Sect. 7 [3] – Presentment Clause – legislative act must go through process – need MAJ vote of both houses and presentment 2 Prez. i. So can either over-rule by both houses MAJ vote or can narrow its enabling statute – removal authority of ALJ. 16. Removal a. Constitution is silent on whether Prez can unilaterally fire admin officer – Cabinet or Exec Agency Head b. Case Law says Prez can remove Executive officers unless removal power limited by Congress and Congress can limit through statute IF: i. Independent from Prez ii. Only if “for good cause” c. History i. First – Johnson fires Stanton in violation of Tenure of Office Act – Johnson is impeached so never find out if that was OK to do or not ii. Next, Myers v. US – 1926 - Taft is judge – Rule: No constitutional limits on Prez’s power 2 remove – power 2 appointment means power 2 remove – Congress can’t say goes 2 Senate 2 confirm. iii. But then Humphrey’s Executor v. US – 1935 – THIS IS MODERN RULE – FTC Act said Prez could remove head only 4 cause – Ct says under Art I – Congress can create admin. agencies and can limit removal – in order 4 there 2 B independent – this is inconsistent w/ Myers – it distinguished it by saying only applied 2 pure executive officers iv. So TODAY – under Myers, Cabinet officers can B fired – purely executive [so vindicates Johnson] v. But SEC, FTC...Congress can limit Prez ability 2 remove (Greenspan w/ Fed Reserve 4 example] vi. 1958 – Wiener v. US – Can Prez fire member of War Claims Commission? – Ct says if statute is silent about removal power and if office is 1 that should B inherently independent – then removal 4 cause only. vii. 1986 – Bowsher. Synar – Congress can’t arrogate 2 itself power 2 remove agency officers. viii. 1988 – Morrison v. Olsen – Watergate – Congress then enacted Independent Counsel Act if wrong-doing by Exec Officers – right away caused sep. of powers problem – How will he B appointed – by Prez? – how will that person B independent? Act said panel of 3 judges would appoint ix. Well, that brings up Art II Sect 2 Appointments Clause issues – do fed judges have authority to do that? – normally that’s Prez job UNLESS its an inferior officer – Congress can vest that power – Ct here said Indep. Counsel was inferior b/c 1. Can be removed by AG 2. Only limited duties 3. Limited jurisdiction 4. Limited tenure x. As for the Separation of Powers issue – Ct said didn’t violate either although tenuous. 17. Presidential Immunities – Executive Privilege a. Prez’s ability 2 keep secret communications Prez has w/ others – Constit. doesn’t speak 2 it. b. Used throughout history b/c – need to get candid advice and necessary for natl. security c. Watergate – Nixon resigned after he finally produced the tapes after the Ct said must produce tapes – he said “edited versions only” – tried to get Special Prosecutor fired but his Cabinet wouldn’t do it and resigned until finally the 3rd down in command did . d. Clinton v. Jones – Ct says $ damage suits for actions BEFORE in office – no immunity or stay. 8 years 2 long for potential P to have to wait. e. Immune from $ damages 4 official acts (same for Congress) – doesn’t apply 2 unofficial acts.