Sullivan and Gunther - Bar Exam Mind

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Possible analytical framework for exam: 1. ... -e.g., review of protectionism under Commerce Clause ... Hand: no constitutional authority to review decisions of the.
Outline ConLaw

Possible analytical framework for exam: 1. Is the issue justiciable? a. can the issue be reviewed? (e.g., political question) -textual commitment: a textual commitment of the issue to a coordinate political branch -prudential issues -lack of judicially discoverable and manageable standards for resolving it (prudential/functional) 1. NB: this may strengthen the conclusion that there is a textually demonstrable commitment to a coordinate branch of govt (Nixon v. US) -impossibility of deciding without making a policy decision of a kind clearly for nonjudicial discretion -need for unquestioning adherence to a political decision already made (prudential) -potential for embarrassment on issue because various departments will make multifarious pronouncements (prudential?) 1. e.g., foreign affairs issues normally require need to speak with one voice

b. who can bring the issue? (e.g. standing) check standing for EACH NAMED PARTY!!!!!!! -injury-in-fact: concrete and particularized -causation: injury traceable to challenged action/alleged violation -redressibility: a favorable decision likely to give relief c. when can the issue be brought (e.g., ripe or moot) -mootness: an actual controversy must exist during all stages of review, except for those injuries capable of repetition yet evading review (e.g., abortion cases) -ripeness: case cannot rest on P's fear of future injury [though facial challenges possible if P alleges substantial hardship if he must wait until an alleged wrong occurs]

2. Constitutionality analysis -textual prohibition -structural -separation of powers [formalism vs. functionalism] -federalism [state vs. federal power] -original intent -history and tradition [fundamental rights and natural law]

3. Standards of Judicial Review (i.e., how deferential is the Court willing to be to legislative bodies) -(high) – strict scrutiny – the law is necessary to promote a compelling state interest; something is necessary when it is "narrowly drawn so that no alternative, less burdensome means is available to accomplish the state interest -e.g., review of protectionism under Commerce Clause -review of "fundamental liberty interests" (e.g., claims under substantive due process) -undue burden [Casey] - "does statute place in purpose or effect a substantial obstacle in the path of a woman seeking to abort a non-viable fetus?"[1] -(intermediate) – there must be a "substantial" governmental interest in the existence of the law -e.g., review of interstate P&I clause -rough proportionality [regulatory takings] -(low) – "rational basis" for passing a law: rationally related to a legitimate state interest

3a. create a table for each of the topics and the standard of review used

4. Chart out each of the Amendments and Sections in the Constitution that we have spoken about. Be sure to chart out each clause and any cases that relate to them.

Due process analysis

1. must begin with analysis of Nation's history, legal traditions, and practices (Glucksberg)

Possible exam topics: 1. Commerce clause analysis: formalism vs. affectation; internal limits (i.e., can Court find something in the enumerated power itself that sets some type of limit?)

NB: Hamilton is for strong central government (federalism); Jefferson prefers stronger states (states' rights – aka anti-federalism). A key argument in some judicial analysis.

I. Judicial Review: The nature and sources of the Supreme Court's Authority A. Supreme Court 1. Established by Art III, Section 1: judicial power "shall be vested in one Supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." 2. Art III, Sec 2: US Supreme Court has appellate jurisdiction of various listed "cases and controversies" (review these before exam) i. Congress cannot abridge or enlarge the Court's original jurisdiction [Marbury]. 3. Art III, Sec 2: gives US Supreme Court original jurisdiction over only one group of cases: "affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be a party B. Judicial Review: Marbury v. Madison 1. Judicial (appellate) review permitted of acts by other members of government, depending on the nature of the act. i. strictly political acts permitted by Constitution may not be reviewed; i.e., discretionary acts (e.g., Art II, sec 2.2-2.3) a. "political questions" are not reviewable ii. where a duty is assigned by law and individual rights depend on performance of that duty, it is reviewable 2. the Court decides the rights of individuals and may not inquire how the executive or executive officers perform duties in which they have discretion 3. Congress gave US Supreme Court power to issue writs of mandamus to any courts or persons holding office under authority of US (Judiciary Act, 1789) if the Court has appellate jurisdiction over the issue i. this act ruled unconstitutional by Marbury; the Constitution must always trump a void law ii. had Marbury brought the case in a lower federal court and then appealed to Court, the Court, by Marshall's logic, could have issued mandamus. 4. How does Marshall legitimize declaring a law unconstitutional? i. Constitution is superior to legislation and cannot be changed by ordinary legislative acts ii. does it follow that the Court is the sole interpreter of laws?

C. The Legitimacy of Judicial Review 1. As judicial review is not explicit in the Constitution, there is debate as to whether it should exist i. historical precedent seems lacking for the most part (13ff) ii. idea of popular sovereignty replacing legislative sovereignty in late 18th c, may have something to do with it iii. development of written constitutions also contributes 2. The Constitutional Convention i. arguments for and against judicial review were made 3. Federalist Papers, #78 by Alexander Hamilton i. supports the notion of judicial review because: a. courts are an intermediary body between the people and the legislature to keep the legislature within the limits of its assigned authority 4. Judicial Review and the Judicial Role: Hand vs. Wechsler i. Hand: no constitutional authority to review decisions of the Congress; such review was inconsistent with separation of powers a. the use of judicial review was merely a pragmatic step to help a fledgling govt survive ii. Wechsler: Supremacy Clause (Art VI) and Art III clearly legitimates the power of judicial review a. therefore, courts must review all constitutional questions, not just some of them, so as to maintain "neutrality"; should use a system to decide which cases to review 5. Judicial Review and Democracy i. does an unelected court have the right to review decisions made by those elected by the people? ii. counter-majoritarian, but our system is structurally leery of direct democracy D. The Authoritativeness of Supreme Court Decisions 1. Are judicial interpretations binding on executive branch? i. in some cases, the executive can pardon those he feels were convicted by an unfair law ii. perhaps each decision should only redound to the instant case, and not be considered broadly unconstitutional 2. Scope of Interpretive Autonomy of the Govt Branches i. where is the boundary between legitimate disagreement and improper defiance? 3. Cooper v. Aaron, 358 US 1 (1958): a broad view of judicial authority i. held that court interpretations are "supreme in the exposition of the law of the Constitution" ii. argued that Marbury declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution. a. seems to expand the Marbury holding? (p. 9: Marshall seems to argue that judicial review was limited to specific cases) iii. Cooper held that the federal Court and Constitution could be binding upon a state governor; a federalism issue iv. if the Court's decisions are indeed binding, then how come it is permitted to change its mind? 4. Dickerson v. United States, 384 US 436 (2000) i. held that while Congress may overrule the Court using an Art V amendment, it may not do so with a mere statute ii. Dissent: if the statute contradicts merely the Court opinion but not the Constitution itself, then this expands the judicial review power and is antidemocratic. 5. Overruling US Supreme Court with Art V Amendment i. Cooper and Dickerson appear to say that neither Congress nor the states can overrule the Court on constitutional law (except through use of Amendment) ii. Amendment power rarely used because: a. supermajority difficult to get b. politicians are no longer in the mood to do it c. US Supreme Court has been willing to make "new readings" of the Constitution, typically in response to changes in public opinion

II. Constitutional and Prudential Limits on Constitutional Adjudication: (i.e., who may take a case to court to have the issue decided?) A. The Nonjusticiability of Political Questions 1. Marbury : 2 strands of thought emerge i. constitutional: expressly disavowed the Court's ability to question Constitutionally established discretionary powers of executive branch (cf. classical view infra) ii. prudential: also suggested that some matters within the purview of the court should nevertheless be avoided to prevent judicial embarrassment 2. Constitutional strand/"textual commitment" (classical view) i. is the prohibition in the text of Constitution? a. see Baker v. Carr ii. is there a lack of judicially discoverable and manageable standards for resolving the issue? (partially prudential) 3. Prudential strand i. avoid issues that are too controversial or could produce enforcement problems or other institutional difficulties 4. Baker v. Carr[2] i. Political question doctrine a. held that the issue only arises on relationship of the federal judiciary to the branches of the federal government, not to the States (i.e., Guaranty Clause not applic here). b. State govts not "coequal" to the Court 1. Dissent argues: a settled line of cases holds that Art IV, § 4 (the Guaranty Clause) guaranteeing to the States "a Republican form of Government," is not enforceable through the courts[3] A. therefore, the Court should not decided this case on a prudential argument that elections are the give-and-take and compromise among policies often in conflict c. the nonjusticiability of political questions is primarily a function of the separation of powers ii. political questions appear to have one of these: a. Classical view: a textually demonstrable constitutional commitment of the issue to a coordinate political department b. lack of judicially discoverable and manageable standards for resolving it (prudential/functional) 1. NB: this may strengthen the conclusion that there is a textually demonstrable commitment to a coordinate branch of govt (Nixon v. US) c. impossibility of deciding without making a policy decision of a kind clearly for nonjudicial discretion d. need for unquestioning adherence to a political decision already made (prudential) e. potential for embarrassment on issue because various departments will make multifarious pronouncements (prudential?) 1. e.g., foreign affairs issues normally require need to speak with one voice iii. beyond these criteria, US Supreme Court decides each matter on a case-by-case basis iv. Wise: the key to political question issue whether one takes the classical view or the prudential view is: a) the reasoning is premised on separation of powers; and b) issue must be decided on a case-by-case basis 5. Political question doctrine since Baker v. Carr i. Nixon v. US a. Court holds that issue raised for the interpretation of the Impeachment Trial Clause (Art. I, §3, cl. 6) presents a nonjusticiable issue b. judicial review of this issue would be inconsistent with the separation of powers because impeachment is the only way to remove a federal judge ii. Political questions and the Amendment process iii. Political questions and the Presidential election process

B. Case or Controversy Requirements (Art III, §2, cl. 1): clause limits the scope of the federal judiciary 1. Definition of "cases" and "controversies" a. concrete and non-hypothetical i. no issuance of advisory opinions b. involve parties claiming an injury personal and concrete to them i. law of standing c. must arise neither too soon nor too late i. mootness and ripeness 2. The Rule against Advisory Opinions a. against checks and balances concept b. also imprudent c. policy: the need for judicial restraint i. a Constitutional issue should not be adjudicated except under "strict necessity" (i.e., the ruling is unavoidable)[4] ii. that is, opinion will not be determined: a. in nonadversary proceedings b. in broader terms beyond what is necessary for the instant case c. if party fails to show injury from the statute d. if a construction of the statute is possible by which the question may be avoided 3. Standing: whether litigant is entitled to have the court decide the merits of the dispute or of particular issues a. standing is a jurisdictional issue i. that is, if there is no standing, then the court lacks subject matter jurisdiction ii. moreover, like subject matter jurisdiction, standing can be challenged at any time in the process and can be raised sua sponte iii. standing issues normally only arise when the gov't is being sued b. Art III requires that a party seeking a decision from Court must: i. injury-in-fact: show that he personally has suffered some actual or threatened injury[5] as a result of the putatively illegal conduct of the defendant or a statutorily-created injury (injury should be concrete and particularized); and ii. causation: the injury fairly can be traced to the challenged action/alleged violation; and iii. redressibility: is likely to be redressed by a favorable decision c. some prudential[6] principles i. P must assert his own legal rights, not those of a 3rd party ii. court won't adjudicate general grievances which are better redressed by legislature iii. complaint must fall under statute or constitutional guarantee in question iv. judicial economy (prevent too many suits) d. Wise: some considerations on "standing" i. thus, b and c show that decisions made on standing are normally based on a mix of constitutional and prudential principles ii. standing and the merits of a case are often conflated (that is, even when there is standing, court seems to sometimes exclude lawsuit based on merits, though never admits this) 1. this is possible because injury-in-fact and causation are "highly manipulable" concepts with no set definition 2. Wise: "is causation just a disguise for what the court sees as the merits of the case??" e. Warth v. Seldin i. petitioners did not show personal injury, only claim that they are members of a group that have, allegedly, been excluded by a zoning policy ii. did not allege facts tracing injury to the challenged zoing policy iii. did not show the injury could be redressed by court iv. NB: standing can expire if redress not sought within an appropriate time v. Dissent a. argues that the allegations are sufficient of possible injury and a possible pattern of discrimination. therefore, the case should at least be permitted to proceed to discovery (after which summary judgment could be issued if needed) f. Lujan v. Defenders of Wildlife i. Held that Defenders of Wildlife had no standing to challenge a rule promulgated by Sec of Interior in interpreting the Endangered Species Act a. injury-in-fact req not met because the injury had neither occurred nor was it "imminent" (56) 1. Wise: this req normally said to "sharpen the advocacy" for the litigation b. Congress cannot create an abstract procedural right to sue simply by stating that one can sue if any part of an act is violated[7] (57). The violation must create an injury to the party wishing to sue.[8] 1. standing has a separation of powers issue because court cannot redress general grievances (i.e., abstract disagreement with political policy) since they are the province of the Congress and Executive A. one of the only exceptions is that Court permits indiv to sue over the Establishment Clause when alleging govt spending $ on religion 2. However, in a concurring opinion, Kennedy and Souter suggest that Congress actually does have the power to create a legal right of action that has no traditional CL analog (58). g. Standing: general considerations i. injury-in-fact: an organization may assert injury so long as any of its members might have done so and the claim is germane to the org's purpose ii. causation: but-for needed. iii. 3rd-party standing: may be allowed when there is a close relationship between the parties and a substantial identity of interest with the rightholder. iv. zones of interest: prudential v. law of standing roughly restricts courts to their traditional undemocratic role of protecting individuals and minorities against impositions of the majority, while excluding the courts from the even more undemocratic role of telling the other two branches of govt what to do (64). 4. Mootness and Non-Ripeness: limits on timing of adjudication; WHEN? a. Mootness ("the doctrine of standing placed in a time frame") i. viewed as part of Art III req ii. "if dispute is resolved, the issue is moot"; requirement that an actual controversy must be extant during all stages of review, not merely at the time the complaint is filed iii. exceptions to mootness review a. cases that are "capable of repetition yet evading review" (67) – e.g., abortion cases b. a D's voluntary cessation of a challenged action does not preclude judicial review of that action (or else D could just start up again once case in thrown out) c. if secondary/collateral injuries, then court may go ahead and hear the case d. improperly named class rep in a class action can have his claim mooted, but everyone else's claim remains iv. judicial remedy for mootness a. vacate trial decision and remand for dismissal v. getting around mootness a. if seeking an injunction and case moots, then you're out b. however, if there was also a claim for monetary damages, then that claim continues (therefore, issue is not moot and goes to court)[9] b. Ripeness i. both Art III and prudential ("issues not sharp enough") considerations ii. e.g., a case cannot rest on a P's fear of future[10] injury due to practices authorized/carried out by some law iii. can one seek pre-enforcement review of a statute? a. yes, if substantial hardship to party if they have to wait until a "wrong" occurs

III. Supreme Court Authority to Review State Court Judgments A. Martin v. Hunter's Lessee 1. Defended legitimacy of US Supreme Court review of state court judgments resting on interpretations of federal law and rejected VA court's challenge to constitutionality of §25 of the Judiciary Act of 1789 a. uniformity needed between states and federal judiciary; this is the KEY argument of the case 2. Virginia argues that this is a federalism issue a. federal gov got its power from the states, so therefore, the states can take some of that power back if they wish (cf. McCollough v. Maryland) 3. This review is supported by Art III and VI B. Cohens v. Virginia: US Supreme Court review of state criminal cases 1. "the judicial power of US extends to all cases arising under the constitution or a law of the US, whoever may be the parties [including a State, as in criminal proceedings]"

IV. Political Restraints on US Supreme Court: can Congress strip the Court of its Jurisdiction? A. Some tools 1. Amendments by Art V 2. Congress can enlarge and then pack the court 3. justice selection process (no "textual" guidance on this) a. president nominates; Congress confirms (Art. II, §2, cl. 2) b. since Bork (1987), ideology has played a part 4. Art III "exceptions" to the Court's appellate jurisdiction 5. Impeachment, conviction, and removal 6. Congress can regulate the time the court meets B. Ex Parte McCardle: Art III exception power 1. Court upholds the power of Congress to make express exceptions to Court's appellate power 2. Congress may not, however, positively assert that the Court has jurisdiction over any particular area, for Constitution grants the Court jurisdiction over all areas until excepted by Congress C. US v. Klein 1. unlike McCardle, court did not permit withdraw of jurisdiction while the case was in process 2. however, Court also held that the law attempting to prevent jurisdiction in Klein was actually a subterfuge to deny pardon power to the President D. Plaut v. Spendthrift Farm 1. Congress cannot pass legislation that would reopen cases that had already been dismissed by the Court based on statute of limitations grounds E. Constitional limits on Congressional Power over Appellate Jurisdiction 1. Restraints inherent in Art III a. exceptions power cannot interfere with the essential or core functions of the Court as granted in Art III i. note use of word "all" in jurisdictional categories listed in the Article b. some scholars argue that Congress can do whatever it wants 2. Restraints external to Art III a. Bill of Rights prohibits restrictions based on race or political view i. therefore, does it, by analogy, prohibit exclusion of a class of issues? 3. Practical limits on Congress' power a. if US Supreme Court power were barred, then decisions would be left to lower courts which would lead to inconsistent results


Constitution specifies federal division of powers (Art I, §8 and Tenth Amend). Part II of book focuses on structural limits on power as opposed from individual rights guarantees (in part III of book).

V. National Power and Local Activities: Origins and Recurrent Themes A. Introduction 1. Historical justifications for federalism in Federalist papers a. liberty i. vertical separation of power between states and nation and horizontal separation between branches of federal gov, gave people a double security to protect their rights b. public good 2. Constitutional presecriptions for state v. federal powers a. Art I and II enumerates federal powers b. Amend X reserves undelegated powers to states or people c. Art I, § 10 expressly forbids states from a few acts 3. Who should decide disputes arising between states and federal gov? 4. McCulloch v. Maryland (necessary & proper clause) a. Maryland attempts to impose a state tax on federal bank operating within its borders b. sovereignty lies with the people, not with the state govts c. Marshall: federal govt is of limited and enumerated powers, but still quite expansive: see next d. the Constitution grants many express powers; it also permits congress to make "all laws which shall be necessary and proper"[11] to carry out those powers (Art I, § 8, cl. 18) i. therefore, the key is to make a reasonable connectiong between a new law and an express power ii. structural arg: note location of this clause is among the enumerated powers, implying that it is not a limiting clause but an expansion clause (92) e. some famous language from the opinion: i. "Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consistent with the letter and the spirit of the constitution, are constitutional" (92). A. note all the possible areas to be able to launch a court challenge f. Holdings: Congress had the power to charter a national bank AND states may not tax the US Bank. This is based on the great constitutional principle: i. "the constitution and the laws made in pursuance thereof are supreme; that they control the constitution and laws of the respective States, and cannot be controlled by them" ii. logic behind this principle is supremacy: a. a power to create implies a power to preserve b. a power to destroy, if wielded by a different hand, is hostile to and incompatible with these powers to create and preserve c. where this repugnancy exists, the authority which is supreme must control, not yield to that over which it is supreme iii. still, limits on Congressional power exist:[12] a. court permitted to scrutinize whether the means chosen by Congress were adequately related to legitimate ends; and b. court may decide whether congressional assertions of necessity were a "pretext" B. The Scope of National Power: Historical Context 1. Stuff about the US Bank C. Scope of National Power: Text, Structure, and Judicial Role 1. some information re: justifying judicial intervention in McCullogh and the holding permitting Congress to charter a national bank (set out above) D. Federal Limits on the Scope of State Power 1. Information on McCullogh holding prohibiting state taxation of a national instrumentality a. the authors call this "judicial inference" because there was no textual support for the conclusion b. Marshall's argument was mainly structural 2. modern representation-reinforcement argument a. view that "a central role of the courts is to make up for flaws in the operation of representative government or breakdowns in the political process 3. US Term Limits, Inc. v. Thornton[13] a. Holding: Qualifications clause prohibits states from putting term limits on Congressmen[14] b. Textual reasoning i. language of qualifications clause ii. Tenth Amend only reserves pre-existing powers to the states; therefore, since states never had set qualifications for Congress, they can't start now c. structural reasoning i. dual sovereignty: "framers split the atom of sovereignty A. each citizen has power in his state and in the national government through his votes B. therefore, state may not invade the federal sovereignty sphere (and vice-versa) d. historical reasoning i. states never set qualifications before e. judicial groupings i. concur: Kennedy ii. dissent: Thomas, Rehnquist, O'Conner, Scalia f. DISSENT i. Jeffersonian/popular sovereignty argument[15]: people have a right to exercise their power through the states, and therefore they should be permitted to impose whatever qualifications they want ii. textual: the Constitution is silent on the issue and therefore raises no bar to state action A. codified by Tenth Amend iii. textual: Qualifications clause is merely the minimum req to serve in Congress and states can add to them if they wish

THE COMMERCE POWER Analysis Concepts: 1. commerce-prohibiting technique 2. stream of commerce 3. affecting commerce a. formalism: what is the nature (e.g., manufacture vs. production) of the effect? b. affectation: what is the degree of the effect on the overall economy?

VI. Interpretation of the Commerce Power from 1824 to 1936 (court rules both ways) A. Regulating commerce – Art I, § 8, cl. 3 1. major motivation for the framers to move from the Articles of Confederation to the Constitution 2. policy: keep states that held animosity towards each other from having trade wars 3. two main issues: which cases defer to Congressional power and which protect states'/local rights B. Marhsall's broad interpretation of commerce clause in Gibbon v. Ogden (1824) 1. State law granting a maritime monopoly vs. a federal law directly opposed to it 2. Definition commerce: "it describes all commercial intercourse between nations, parts of nations, in all its branches and is regulated by prescribing rules[16] for carrying on that intercourse." a. Constitution applies this power to "among the several states", meaning between i. this is an internal or textual limitation[17] b. however, any commerce contained entirely within a state's boundaries is not liable to federal power [geographic interpretation of the Commerce power] C. Use of Commerce Power rare before 1887 1. 1887-Interstate Commerce Act 2. 1890-Sherman Anti-Trust Act 3. US v. Knight Co. (1895) a. dealt with Anti-Trust Act vis-à-vis sugar producers b. Held: under Commerce clause, Congress' power could not reach a monopoly in manufacture i. manufacture is the transformation of things; while commerce is buying and selling and transportation[18] ii. moreover, manufacture was conducted entirely within the borders of a single state c. policy: fear that this would give Congress carte blanche to regulate everything [note, of course, that they eventually do] 4. "Affecting commerce" – Shreveport Rate Case (1914) [beginnings of "substantial economic effects" test – aka direct/indirect effect test] a. re: Interstate Commerce Act b. Held: Congress' authority could reach intrastate rail rates because they affected and discriminated against interstate rail rates i. logic: if regulation of interstate commerce is closely bound to intrastate commerce (as in the case of a railroad), then Congress can regulate both ii. that is, Congress may prescribe the dominant rule c. the implication of this holding is that anything that had an effect on interstate commerce could be regulated by the commerce clause 5. Stream of Commerce theory a. some local activities are controllable because they could be viewed as "in" commerce or as an integral part of the "current of commerce" (e.g., stockyards and national beef trade) 6. "Commerce-prohibiting" technique – National police/moral regulation a. i.e., using the Commerce power to regulation national morality i. this was done not by imposing national laws on local jurisdictions, but by prohibiting certain interstate movements b. Champion v. Ames i. Congress may prohibit interstate transmission of lottery tickets in order to destroy the pestilence of lottery tickets (i.e., a regulation based on a moral policy) c. Hipolite Egg v. US i. seizure of eggs while inside a state boundaries is permissible if seizure is the legitimate means to the end of barring them from interstate commerce (cf. McCullogh supra) d. Hammer v. Dagenhart (Child labor case) i. holding appears to remove the commerce-prohibiting power (until overruled in Darby) ii. the evil to be prevented was not what was in interstate commerce, as in the Lottery Case, and so could not be regulated by the Commerce power a. i.e., formalism: the distinction between manufacture and commerce iii. DISSENT: it is not proper to rule an act unconstitutional because of its collateral results when the main part (regulating commerce of goods) is perfectly legitimate A. further, if Congress has exercised its legitimate power for a policy reason, the Court should not be permitted to question policy made by Congress[19] 7. Judicial threats to the New Deal a. Knight and Shreveport conflict with how court will rule on Congressional attempts at intrastate regulations needed for the New Deal b. RR Retirement v. Alton RR i. invalidated a law establishing a retirement and pension plan for all RRs under the Interstate Commerce Act ii. Held: act not related to efficiency of commerce c. Schechter Poultry v. US [direct/indirect test] i. imposing codes of fair competion for trade and industry deemed unconstitutional A. also violation of non-delegation of powers (see Chadha below][20] ii. effect of codes on interstate commerce was too indirect d. Carter v. Carter Coal Co [direct/indirect test] i. act establishing minimum wages and max hours for coal miners held unconstitutional ii. again, held that the effect of act on interstate commerce was too indirect; rather, the effects of the act were on production, an entirely local activity A. formalism: "the extent of the effect bears no logical relation to its character" (133) 1. Overruled in NLRB 8. FDR's court-packing plan a. get new blood into the Court b. plan failed in Congress, but put Court on notice.

VII. 1937 to 1995 (Court struck down NO law as exceeding the reach of Commerce Power during this period) A. Affectation doctrine 1. during these years, it became the Court's position that Congress had the power to regulate any activity so long as it had any appreciable effect whatsoever on interstate commerce 2. Court abandons the geographical and direct vs. indirect theories B. NLRB v. Jones & Laughlin Steel (1937) 1. Congress may pass acts which address issues that may burden or obstruct interstate or foreign commerce 2. if an intrastate activity has such a close and substantial relation to interstate commerce that its control is essential or appropriate to protect commerce from burdens and obstructions, then Congress may regulate it. 3. policy: in light of our "dual system of govt" (i.e., states vs federal) the relationship of an intrastate activity to interstate commerce must be meaningful a. i.e., the key issue to examine before ruling is the degree of the interrelationship (opposite of Carter Coal) C. US v. Darby (1941) – overruled Hammer v. Dagenhart (commerce- prohibiting power reaffirmed; beginning of aggregation theory) 1. Congress has plenary power from Art I, §8, cl. 3 to regulate any form of interstate commerce for any policy reason (not just that the item itself is noxious or evil), whether or not a state has acted to regulate it already [Lottery case, Ames] 2. When intrastate activities (e.g., wage and hour restrictions) have a substantial economic effect on interstate commerce, then Congress can regulate them [Shreveport] a. if Congress can prohibit the shipment of goods interstate, then it follows by the necessary and proper clause (I, 8, 18) that it can prohibit the production of those items in sublabor conditions[21] 3. Conclusions not affected by the X Amend which merely states that all is retained which has not been surrendered. D. Judicial Deference toward Exercise of the Commerce Power 1. Aggregation of local activities – Wickard v. Filburn (1942) a. Growing wheat for home consumption in excess of quota is not trivial when combined with others who might do the same[22] i. therefore, Congress can prohibit even the self- sufficient!! b. indicated that federalism concerns might affect the construction of statutes drafted under the commerce power: "that an activity is of local character may help in a doubtful case to determine whether Congress meant to reach it." 2. "Affecting commerce" cases continue to req broad economic effects a. Maryland v. Wirtz i. employees whose activities in any way enable "an enterprise" to participate in interstate commerce may be regulated ii. unlike Darby, where only those actually engaged in the production of the questioned goods may be regulated b. Hodel v. Virginia Surface Mining i. determined that once Congress determines that an activity affects interstate commerce, the Court need only examine whether that determination is support by a rational basis[23] A. this is completely changed in Lopez and Morrison (infra) ii. Congress may regulate environmental consequences of commerce when those consequences may affect other states 3. Commerce Power and Social Ends a. Racial discrimination – i. Heart of Atlanta Motel v. US – if activity concerns more than one state and has a real and substantial relation to the national interest, then Congress may regulate for whatever policy reason ii. Katzenbach v. McClung – restaurants may be regulated because it imposed hardships on blacks who wanted to travel because it made it difficult for them to find a meal at a reputable restaurant A. maintains rational basis standard of review iii. NB – several justices said that these cases could/should have been determined using 14th Amend and thus would have focused on human dignity rather than mere economics b. Crime prevention i. criminal activities, even when wholly intrastate, may be regulated if the revenues from those activities affects interstate commerce (i.e., revenue for an organized crime outfit) ii. Perez v. US – such regulation may apply to a "class of activities" even when the instant activity does not have any effect on interstate commerce A. DISSENT: how is loansharking different from other crime? The power to regulate crime is reserved to the states in the 9th and 10th Amends

VIII. New Limits on the Commerce Power Since 1995 A. US v. Lopez (1995) – Gun-Free School Zones Act – doing away with rational basis standard of review [REREAD this CASE while STUDYING][24] [NB: this case contains a great summary of the history of commerce clause decisions, 150-151] Majority: Rehnquist, Scalia, Thomas, O'Connor, Kennedy 1. Commerce Power does not permit Congress to prohibit possession of firearms within a school zone. The statute in question is a criminal statute that has nothing to do with commerce. 2. Categories permitted in Congress's enumerated commerce power (but there is a limit, says court): a. may regulate the use of channels of interstate commerce i. Darby and Heart of Atlanta Motel b. may regulate instrumentalities of interstate commerce and persons or things in interstate commerce i. Shreveport Rate c. may regulate activities that substantially affect interstate commerce [includes rational basis and aggregation] i. Jones & Laughlin and Wickard 3. If this Act were permitted, it would not place any limit on the federal govt's power because the chain of inferences linking gun possession in a school zone to substantial economic effects is so tenuous as to be ludicrous AND could permit a federal police power (a policy fear). 4. KENNEDY and O'CONNER (concur) a. need for clarity: content-based boundaries (i.e., formalism) is imprecise to define limits of Commerce Clause b. representation reenforcement: federalism (the dual governing structures) enhances freedom and therefore should be supported by the Court 5. THOMAS (concur) a. "commerce" was used by the Founders in contradistiction to productive activities such as manufacturing and agriculture b. textual argument for a much narrower reading of the Commerce Clause ("an interpretation of cl. 3 that makes the rest of §8 superfluous simply cannot be correct") c. substantial effects test: it is wrong for two reasons: i. a 20th-c innovation (i.e., let's overrule 1937- 1995 cases) ii. appears to grant Congress a national police power iii. "aggregation principle" is stupid 6. DISSENT – Breyer, Stevens, Souter, Ginsburg a. Cumulative effect of lots of kids carrying guns to schools could disrupt the quality of education and thus of interstate commerce (this is the "costs of crime" reasoning used by Govt to try and uphold the statute). b. majority tries to return to the direct/indirect formalism of the past c. using the "rational basis" connection theory, Court has a lot of leeway in interpreting constitutionality; therefore, this Act should be sustained d. the majority's decision creates three legal problems: i. counters US Supreme Court precedent that have upheld Acts with less connections ii. goes against precedent in Wickard that court can regulate non-commercial items so long as they have a substantial effect on interstate commerce [McClung and Perez as well (160)] iii. threatens legal certainty in a settled area of law e. SOUTER (dissent) i. "the practice of deferring to rationally based legislative judgments 'is a paradigm of judicial restraint'." (i.e., separation of powers) B. Commerce Clause Review After Lopez 1. Lopez states that the Act as overruled did not contain a jurisdictional element which would ensure that the firearm possessed traveled through interstate commerce (cf. 152) a. Congress amended the Act and placed such a provision in it, requiring that a prosecutor prove this on a case-by- case basis 2. Policy question: When deciding if exercise of Commerce Power is justified, we should ask, "is there some reason the federal govt must be able to do this, some reason why we cannot leave the matter to the states?" a. e.g., if a problem varies greatly by geography, perhaps it should be left to the states b. argument for centralized action emerges when there is reason to suppose that local variation will be undesirable or ineffective i. examples: negative externalities (pollution), defense from foreign enemies, redistribute wealth to help disaster recovery, prevent races to the bottom, overcome tyranny of local majorities 3. Statutory interp and clear statement of congressional intent a. The US Supreme Court will refuse to adopt a broad reading of legislation in "the absence of a clearer direction from Congress" b. in other words, the modern Court is much more inclined to narrow statutory construction vis-à-vis the Commerce Power 4. Theory of enumeration: limits to congressional power under the Copyright Clause (Art I, § 8, cl. 8) a. if Lopez can place limits on an enumerated power, then why shouldn't all of the enumerated power have limits that courts may impose?

5. Economic vs. non-economic activity: US v. Morrison (Violence Against Women Act): further erosion of "rational basis" review a. To show an activity is linked to interstate commerce, Congress must: (Court here limits the "aggregation principle" – key to majority's opinion is that Congress cannot regulate a noneconomic activity that can only be made to affect interstate commerce if we permit effects of individual items of that noneconomic item to be aggregated) i. show it involves economic activity ii. provide a clear statement that the activity affects interstate commerce iii. provide factual findings of the burden this activity places on interstate commerce (clearly not a key element because we do have tons of findings here) iv. the link between the activity and interstate commerce must have a rational basis b. DISSENT i. it doesn't matter if the activity is economic or non-economic, what matters is that the activity in aggregate has substantial effects on interstate commerce. (The majority would call this "an attenuated but-for chain of causation.") This is what allows Congress to exercise the Commerce Power of the activity. A. cf. Heart of Atlanta and Katzenbach v. McClung for examples of just such reasoning in Court opinion ii. argues that the majority has "supplanted rational basis scrutiny with a new criterion of review" iii. formalistic economic/non-economic distinction used by majority is too difficult and inconsistent to apply A. our nation is so closely-knit by technology that almost any activity affects interstate commerce when viewed in aggregate. Therefore, it is impossible to develop subject-matter categories to exclude activities from regulation under the Commerce Power iv. the political process itself will police the limits of enumerated power; the structure of voting for state representatives provides this protections (170)

IX. External[25] Limits on Commerce Power: State Autonomy, Federalism and the Tenth and Eleventh Amendments [i.e., is there something clearly within commerce that Congress nevertheless cannot regulate because it involves a State?]

Flow chart: 1) Court recognizes State autonomy in National League of Cities 2) Court renews supremacy of Federal govt in Garcia; but then begins to specify limits to that supremacy, though not a complete return to National 3) Court says Congress may not commandeer a state legislature in New York 4) Court says Congres may not commadeer a state executive in Printz

A. Recognition of State Autonomy 1. Prior to 1976, US Supreme Court agreed that the federal govt could not regulate states-owned property or state taxation, but could regulate just about anything else 2. National League of Cities v. Usery (1976) a. Held: Congress had violated federalism by using Commerce Power to impose wage and hour restrictions on a state employees i. court pointed to the role of local governments in the administration of public law and furnishing public services as things that were traditional state powers and that the state could best decide how to do b. Blackmun is the key justice in his concurrence who sides with the majority but argues that they were using a balancing test rather than agreeing the Congress had acted beyond its mandate c. DISSENT i. The state and federal political process (i.e., the structure of federalism) is enough o protect the states 3. The Hodel test: National League of Cities requires a 3-part test: a.. show statute regulates States as States b. must address matters that are indisputably attributes of state sovereignty c. state compliance with the federal law would impair its ability to structure integral operations in areas of traditional governmental functions (i.e., formalism) 4. Garcia v. San Antonio Trans Auth (1985): overrules National League a. the effort to articulate boundaries of "traditional state functions" had proved unworkable b. such a distinction invites an unelected judiciary to make decisions about which policies it likes and which it doesn't i. in other words, the political process itself [voting; representation reenforcement??] insures that no unduly burdensome laws will be promulgated c. Blackmun, now writing for the majority, gets to use the balancing test: "Any substantive restraint on the exercise of Commerce Clause powers must be tailored to compensate for possible failings in the national political process rather than to dictate a 'sacred province of state autonomy'." d. DISSENT i. How can a legislature be the sole judges of the limits of its own power via the Commerce Clause? ii. most congressional laws are drafted by unelected bureaucrats who know nothing about the States and localities affected by those laws. We must guarantee that legitimate local interests are protected 5. New York v. US (1992) a. No matter how great the federal interest, the Constitution does not give Congress authority to require the states to regulate in a manner prescribed by Congress i. Congress may, however, provide incentives to promote states' regulating in a certain way (181) A. withholding federal funds (i.e., conditional spending) B. regulating private activity within the state under one of its powers C. preemption: if state doesn't adopt the rule, the feds will use supremacy clause to preempt state law and enforce the federal reg b. Federalism questions can be asked in two ways: i. is an Act of Congress within the Art I delegated powers? ii. does an Act of Congress invade the province of state sovereignty reserved by the X amend? c. Why can't federal govt impose a specific law on a specific state? i. original intent: Framers debated the issue and decided that Congress should be permitted to regulate individuals directly but not regulate legislatures ii. it would undermine indiv freedom because if a State's people don't want to follow a law, they should be permitted to elect local reps who will vote to resist the law iii. electorate would be confused and unable to decide whom to blame. d. DISSENT i.

6. Printz v. US (1997) Scalia, Rehnquist, Thomas, O'Conner, Kennedy a. Issue: can Congress force local law enforcement to participate in the administration of a federally enacted regulatory scheme (i.e., the Brady Bill for gun regulation)? b. historical policy and practice argument i. no evidence that Courts may impress a State's executive branch into its service (unless the State consented to it) c. structural argument i. federal gov't is one of enumerated powers and the powers remaining to the States are inviolable ii. must be mindful of dual sovereignty distinction; the Framers rejected a central govt that would act upon and through the States (original intent) iii. requiring states to enforce a law would weaken the power of the federal executive and not give the president control over those enforcing laws (i.e., Art II, §3) d. US Supreme Court precedent i. Hodel and New York show that the Court has never permitted the Congress to require states to administer a federal regulatory program A. also, permitting this would allow Congress to take credit for a program without having to pay for its costs ii. a balancing test would not work here because the law is a direct imposition of state power, not something that tangentially touches upon it e. DISSENT (Stevens, Souter, Ginsburg, Breyer) i. the necessary and proper clause surely permits the temporary enlistment of local police officers in the process of identifying people who should not have guns A. original intent: Hamilton had said that the feds would use state officers to collect federal taxes, so there was a precedent ii. uses the dual sovereignty argument to say: Senators from each state are not likely to infringe the sovereignty of their state in a bad way iii. by not permitting the Congress to impose minor functions on local states, the majority perversely gives the federal govt incentive to create a vast nationl bureaucracy and thereby aggrandize itself iv. SOUTER A. v. BREYER and STEVENS A. 7. Reno v. Condon a. unanimous court upheld act limiting the commercial vending of personal data by the states B. State Sovereign Immunity Limits on Congressional Power: Does the Court have a role as protector of the states against an overly regulatory central govt? |Rehnquist, O'Conner, Kennedy, |Souter, Stevens, Ginsburg, Breyer | |Scalia, Thomas | | |YES. The 11th Amend creates a |NO. The 11th Amend prohibits | |constitutional immunity for states|diversity actions, but not federal| |against all federal subject |question suits. | |matter, inc federal question | | |[i.e., these justices add to the |The political process itself and | |11th Amend, extending it beyond |the nature of dual sovereignty can| |its clear textual language, |protect the states. | |continuing the tradition of Hans v| | |Louisiana, 197] | |

1. 11th Amend[26] and state sovereign immunity a. says that no state may be sued by another state, foreign nation, or citizen of another US state 2. Seminole Tribe of Florida v. Florida a. overruled Union Gas, which had held that Congress could permit suits for monetary damages against states in federal court under an environmental statute b. the majority thus rejected the claim that Congress acting under its commerce power could abrogate a state's 11th Amend immunity c. Art I, the Legislative power, cannot be used to circumvent the constitutional limitations placed on Art III by 11th Amend. d. DISSENT (Souter, Stevens, Ginsburg, Breyer) i. prevents Congress from providing a federal forum for a broad range of actions, inc. copyright, enviro law, bankruptcy, etc ii. if Congress puts a "plain statement" in legislation permitting a federal cause of action against a state, then the Court should respect that 3. Federalism structure: how far does state sovereign immunity principle in Seminole extend? a. Alden v. Maine i. Congress may not abrogate state sovereign immunity by authorizing private actions for money damages against nonconsenting states in their own state courts, even on a federal claim. ii. holding justified, not by text, but by structure and history, for even before the Constitution, states were considered sovereign, and the 10th Amend codified this and 11th Amend restored the original constitutional design (200) iii. Nevertheless, this does not give the state the right to disregard any federal laws [?] A. if such a violation, it falls to the federal govt to sue the state iv. DISSENT (Souter, Stevens, Ginsburg, Breyer) A. sovereign immunity may only be invoked by the sovereign who issued the law; thus, a state may not claim immunity to a suit based on a national law b. Kimmel v. Florida Regents i. Court in this and other cases invalidated statutes that had attempted to abrogate state sovereign immunity ii. DISSENT stated that 11th Amend only places a textual limit on diversity suits in federal courts, not on a federal court's power to hear suits against states by one of the state's own citizens 4. Extending state sovereign immunity to federal agency proceedings a. Federal Maritime Comm v. S Carolina Ports Authority i. extended the reach of state sovereign immunity from judicial proceedings to adjudications within federal administrative agencies ii. Majority uses structural principles A. dual sovereignty means that the states "did not consent to become mere appendages of the federal govt" iii. DISSENT A. administrative agencies are, in effect, part of the executive branch. therefore, the court should not interfere with the enforcement of the law that it deems constitutional 5. Congress may, however, abrogate state immunity in civil rights suits

|Ways around the majority opinions | |1. Sue a state officer as an individual for injunctive (that is | |future, not past) relief or even monetary damages [see Ex parte | |Young, 197] | |2. A state can waive its sovereign immunity explicitly [often occurs| |if Congress says, "We will give you this money for x, if you waive | |your immunity from suit about x." | |3. Congress is permitted to abrogate state sovereign immunity, but | |not under the Commerce Power, rather using § 5 of the 14th Amend. | |[see Fitzpatrick v. Bitzer, 197] |

The Narrowing Commerce Clause Power Trilogy: Lopez, US v. NY, and Printz. In NY, O'Conner suggests conditional spending, rather than legislative commandeering of state legislature, would have worked.

Wise's organizing principles for Commerce Power vs. States' rights section: |Defective Process |Anti-Commandering |Anti-Liability | |Theory |Theory (X Amend) |Principle (XI Amend) | |Garcia: majority holds|NY v. US and Printz v.|Seminole Tribe, Alden | |that the political |US: there are |v. Maine, & Kimel v. | |process inherent in |structural, historical|Florida Regents: | |federal govt will |and federalism | | |protect states from |concerns that prohibit| | |unduly burdensome |the Congress from | | |federal laws. |commandeering a state | | |-But court reserves |executive or | | |right to step in in |legislature to adopt a| | |the case of a "failing|federal regulatory | | |in the national |scheme (though there | | |political process" (no|are ways to get around| | |such case held this |this with | | |applicable) |incentives/threats) | |

X. Federalism-Based Restraints on Other National Powers in the 1787 Constitution

NB: Court oversight of Taxing and Spending power parallels the timeline for oversight of Commerce Power ( i.e., the deferential shift in 1937 (but a shift back in late 1980s?). As the scope of Commerce Power expanded post-1937, so did the scope of the taxing power.

A. The Taxing Power as a Regulatory Tool 1. Congress often can use the taxing power where the commerce power seems to be ineffective a. There are three kinds of taxing power: Indirect, Direct, Export i. Indirect: Art I, § 8 – "Congress shall have power to lay and collect taxes, duties, imposts, and excises . . . [and that] all duties, imposts, and excises shall be uniform throughout the US." A. i.e., licensing tax, sales tax, etc. ii. Direct: Art I, § 9 – "no capitation or other direct tax shall be laid unless in proportion to the census" and Art I, § 2 provides that "direct taxes shall be apportioned among the several states." A. i.e., property tax or personal tax iii. Export: Art I, § 9, cl. 5 – "No tax or duty shall be laid on articles exported from any state." b. Tax validity i. a tax that is primarily regulatory (e.g., to penalize or coerce) is invalid ii. a tax that is primarily fiscal (i.e., it is a revenue-raising measure) is valid 2. Child Labor Tax Case (1922: taxing child labor users; never officially overrulled) a. Held: Congress may not use its taxing power (as a "pretext"[27]) to accomplish objectives that it cannot reach under any of its other powers. (Furthermore, there is a 10th Amend issue that labor standards should be regulated by states; 10th Amend concern gone after 1937). i. but if Congress could have reached it under another power, then the Court could not have overturned it ii. in this case, Congress attempted to tax factories that used child labor in order to drive up costs of business; Court said this was clearly regulatory, not fiscal 3. US v. Kahriger (1953: taxing gambling) a. Held: a federal tax is valid even if it discourages a specific activity and produces little revenue b. DISSENT: clearly regulatory in nature and an attempt by Congress to reach something that it could not reach with other powers

NB for EXAM: the Child Labor test says that Congress can't use its taxing power to reach anything not reachable under other powers VS the Kahriger test that says a tax is valid even if it discourages a specific activity and raises little revenue.

Tests for tax validity: -cannot tax specific conduct; should be generally defined -does revenue go into general funds rather than to specific goals

4. Commerce and Taxation Power relationship a. The more expansive the conception of permissible federal regulation (post-1937), the more attenuated the area of impermissible regulatory intrusion through taxation b. Quaere: how solid is the Court's broad deference to Congressional spending power in light of the Commerce Power decision in Lopez? i. EXAM: will we see a renewed era of judicial activism? B. The Spending Power as a Regulatory Tool 1. Art I, § 8 gives Congress power to spend money in order to: a. pay debts b. provide for common defense c. provide for the general welfare 2. Scope of the spending power a. general welfare is required; spending must therefore be fore a national cause, and not a local one b. still, Court gives great deference to what Congress determines is for the common benefit 3. Local vs. general welfare: US v. Butler (1936) a. Held: Congress may not use its taxing and spending powers to operate a self-contained program regulating agricultural production i. regulation of agriculture is not explicitly granted to Congress; therefore, it is left to the states [a federalism problem] b. definition of "general welfare" i. court holds that the phrase in Art I, §8 is independent from the other enumerated powers and is limited only by the req that the tax/spend power is limited to exercise for the general welfare of the US[28] c. DISSENT i. Court should only be concerned with constitutionality of laws, not with their wisdom [the removal of unwise laws should come from our electoral/political process, not the Court's whim] ii. clearly the depressed state of national agriculture is a concern for the "general welfare" iii. Congress should be authorized to put "conditions of use" on any payments that it makes [e.g., give money to rural schools on condition certain standards are maintained] 4. Steward Machine Co v. Davis (1937) a. Held: Congress may reduce private employers' federal tax obligations by crediting payments made only to federally approved state unemployment plans i. Although it appears to coerce states, what it really does it provide fairness by not permitting states with unemployment plans to have their businesses taxed twice. 5. Helvering v. Davis (1937) a. Held: Congress may tax employers and employees in order to provide payment for federal old age benefits for Congress has discretion in determining that this is need for the general welfare 6. South Dakota v. Dole (1987): Federal influence over state regulation through the spending power Rehnquist writes for majority "expanding" spending power a. Held: Congress may withhold federal highway funds to states that do not adopt federal age standards for the sale of alcohol.[29] i. i.e., Congress may attain an objective not in Art I powers by the use of the spending power and the conditional grant of federal funds ii. since this was an indirect attack, there is no concern with a violation of the 21st Amend b. Spending power is limited in four ways: i. it must be used in the pursuit of general welfare ii. clear statement of conditions: any conditions imposed must be unambiguous, so the states may make knowing choices [this could be an escape clause for the Court] iii. germaneness between condition and purposeconditions must be related to the federal interest in particular national programs iv. the conditions must not be directly barred by other independent constitutional provisions [or be overly coercive, see Steward Machine] c. Butler [coercion language] established that Constitutional limitations on Congressional spending power are less exacting than those on its authority to regulate directly d. DISSENT – O'Conner i. Relationship between the expenditure of federal funds for highway purposes and minimum drinking age is only tangentially related to highway safety [i.e., germaneness is her concern] ii. slippery slope: if Congress can impose a condition that is so minimally related to its spending objectives, then it can interfere in virtually all aspects of state government, merely by citing some effect on interstate travel iii. the appropriate inquiry is whether the spending req or prohibition is a condition on a grant or whether it is regulation. [balancing test?] 7. Unlike with states' rights and the commerce power, the US Supreme Court has not yet narrowed its interpretation of the spending power C. War Powers 1. Constitutional Provisions a. Art I, § 8: power to declare war, raise and support armies, maintain navy, make rules for the regulation of the land and naval forces, and to provide for organizing, arming, disciplining, and calling forth the militia b. Art II, § 2: President shall be the commander in chief of the Army, Navy, state militias when called into US service c. Necessary and Proper Clause gives president and Congress wide war and war-recovery powers 2. Woods v. Cloyd W. Miller Co. – (post-war economic controls) a. Held: Congress may continue to regulate the economy under its war powers following the cessation of hostilities i. scope of war powers is very broad: war powers include the power to remedy the evils that arise from war and does not necessarily end with the cessation of hostilities ii. it is possible for Congress to abuse this power by saying some effect is war-caused, but there is judicial review to prevent that D. Treaties, Foreign Affairs, and Federalism 1. Constitutional Provisions a. Art II, §2: president can make treaties with foreign nations, provided 2/3 of the Senators present concur b. Art VI: all treaties made are declared the supreme law of the land c. in external affairs, there is no power sharing between states and the federal govt; federal govt power may be exercised without regard to state law or policies 2. Missouri v. Holland (1920) – Migratory Bird Treaty Act a. Held: Congress may implement a US treaty provision that would be unconstitutional were it an independent Act of Congress i. 10th Amend is irrelevant since the power to make treaties is expressly delegated (i.e., an enumerated power) ii. treaty protects a national interest that can only be guaranteed by concerted action with another nation iii. Necessary and Proper clause gives Congress power to pass laws for enforcement of treaty iv. Dicta: "the treaty in question does not contravene any prohibitory words to be found in the Constitution" A. i.e., US cannot use the treaty power to get around Constitutional provisions 3. Scope and Limits of Treaty powers a. Reid v. Covert (1957): dicta: it would be inconsistent with tradition to "construe Art VI as permitting the US to exercise power under an international agreement without observing Constitutional prohibitions" i. confirms Missouri that treaty powers can't be used to get around provisions in the Constitution. b. Treaty Power and the Anti-Federalist Revival i. modern Court has yet to narrow its interpretation of the treaty powers

|Question [possible EXAM topic] | |How could federal government regulate ponds on private land very | |distant from navigable waters as wetlands? Could they reach it | |under the Commerce power? Could they reach it under a Missouri v. | |Holland-type law about migratory birds? | |A: Court is skeptical that this can be reached under commerce. | |Treaty power: federalism may prevent this if we can argue that the | |pond is local and is a subject traditionally for state regulation; | |moreover, if Congress can't violate Constitutional provisions with | |the treaty power, then it can't reach the ponds. But here, the govt| |is not regulating the states directly (as in NY v. US) but private | |landowners. | |What about the spending power to reach the ponds? |

|Key relationship: Although the Court broadened the Commerce Power | |along with the taxing and spending powers and kept the war and | |treaty powers already broad in 1937, the Court has only narrowed the| |Commerce Power since 1985. Still, could this narrowing have an | |effect on taxing an spending powers? War and especially treaty | |powers seem unassailable. |

XI. Federal Limits on State Power to Regulate the National Economy A. This section switches focus from federal powers limited by Constitution and states' rights to state powers and how they are limited by national concerns 1. Commerce barrier to state action arises in two situations: a. Dormant commerce clause: Congress is silent: it has taken no action, express or implied, indicating its policy on a given subject matter i. authority rests entirely on the negative implications of the commerce clause (Art. I, §8) b. Commerce clause: Congress has exercised its Art I, § 8 powers and the preemptive effect of the federal legislation under the supremacy clause of Art. VI 2. Court has recently began to emphasize Art IV, §2: the privileges and immunities clause a. which guarantees to the "Citizens of each State [all] Privileges and Immunities of Citizens of the Several States" i. this clause can be read as directed against state legislation that discriminates against out-of-state economic interests 3. 14th Amend equal protection can be used as a tool against economic protectionism

Historical background: two Court interpretations: 1. "Origin of Powers" – formalistic/ontological – the state could regulate things that affected interstate commerce so long as state was only exercising its police power and not its commerce power 2. "Selective Exclusiveness: - look at subject-matter of the regulation. If it is a subject of national importance, then states can't regulate. if it is merely a local issue, then states can regulate it.

B. State Regulation and the Dormant Commerce Clause 1. The Constitution nowhere explicitly limits state power to regulate interstate commerce, nor imposes an explicit barrier to state protectionism or discrimination against trade. a. the Court has created the Dormant Commerce clause by using the federalism structure to draw out the negative implications of the grant of the commerce power in Art I, §8 2. Constitutional History a. Framers put in Art I, § 8 because they were disturbed by the trade wars between the states under Articles of Confederation b. policy: national unity and prosperity depends on univocality when it comes to issues of national economic importance c. policy: every individual will be encouraged to produce goods with the certainty that they will find a free national common market C. The Modern Court's Approach 1. Where Congress has not acted, states may regulate any phase of local business, even though it has some effect on interstate commerce, as long as they neither discriminate against, nor impose any unreasonable burden upon, interstate commerce a. reasons allowing a state to prohibit importation of out- of-state products i. invalid: mere economic protectionism ii. valid: protection of health and safety (e.g., quarantine and inspection laws) iii. valid: protection of publicly-owned natural resources b. states rarely permitted to require in-state processing of a product before it goes to another state c. Three categories of state law discrimination: i. state laws that facially discriminate against out- of-state commerce (nearly always "per se invalid")[30]; ii. protectionist, but not facially discriminatory: i.e., state laws that favor local economic interests at the expense of out-of-state competitors; and A. measured with purpose and effect iii. facially neutral state laws that unduly burden interstate commerce (aka Pike "balancing of interests" cases)[31] A. Scalia and Thomas would abandon Pike balancing and leave such judgments to Congress D. Laws that facially discriminates against out of state commerce 1. Environmental Protection: Philadelphia v. New Jersey (1978) a. HELD: a state may not prohibit the importation of environmentally destructive substances solely because of their source of origin b. Test: is law protectionist or is it directed at local concerns with only incidental effects on interstate commerce? c. "the evil of protectionism can reside in legislative means as well as legislative ends [claim of health/safety]" (Wise mentions) i. i.e., whatever the legislative intent, it may not be accomplished by discriminating against articles of commerce coming from outside the State unless there is a reason, apart from their origin, to treat them differently d. this law is invalid because it imposes on out-of-state commercial interests the burden of conserving New Jersey's remaining landfill space e. this is not a quarantine law because the waste is barred due to its origin, not its intrinsic quality (i.e., NJ permits its own waste to be put in these landfills) f. DISSENT: Rehnquist i. quarantine laws prohibit importation and are not aimed at disposal of in-state items ii. NJ's law prohibits importation of items noxious to the public's health and should be upheld 2. Policy behind the "principle of nondiscrimination" a. protectionist purpose is illegitimate b. social welfare: will bring about national prosperity i. Court should invalidate laws whose net effect is to export costs to other states ii. Founders intended that the States would "sink or swim" together (Cardozo's words) c. representation reinforcement[32] i. i.e., out-of-state interests are, by definition, formally unrepresented in a state's political process 3. Facially discriminatory taxes and fees a. invalidation of a law imposing hazardous waste disposal fee on wastes generated out-of-state b. only Rehnquist thinks that these can be valid if the fee imposed is equivalent of what an in-state waste generator paid in taxes that are used to create new disposal sites c. invalidation of law that taxed in and out of staters equally, but then refunded the money to in-staters [cf. Butler, 211, where court invalidates similar circular reasoning] i. SCALIA: only way to protect local industry validly is to subsidize it from a state's general fund (254) ii. Rehnquist, Thomas, Scalia: this law should be upheld; the Court has arrogated too much power under an interpretation (the "dormant" commerce clause) and should leave these concerns to Congress[33] A. counter-arg: can Congress possibly micromanage the states in this way? Also, wouldn't this actually be more restrictive on state authority? d. invalidated (5-4) law that gave a tax break to charities within Maine that served Maine residents i. Dissent: this is merely a tax exemption designed to compensate those who provide services that the state itself would otherwise have to provide [were this law directed at for-profit concerns, it would be invalid] 4. Facial Discrimination by Localities – Dean Milk Co. v. Madison a. HELD: a local (i.e., municipal) statue that has a valid purpose – i.e., health and safety – but discriminates against interstate commerce cannot be upheld if there are "reasonable nondiscriminatory alternatives."[34] i. local law does not counter a federal law ii. however, regulation has discriminatory effect on interstate commerce A. not permitted when reasonable nondiscriminatory alternatives are available to protect these local interests B. Two alternatives exist: 1. US Public Health Service Inspections 2. out-of-town ratings systems iii. policy: permitting the enforcement of this locally discriminatory regulation would invite multiplication of preferential trade areas contrary to the Commerce Clause b. Factors court looks at in making its decision: i. can ordinance be justified in view of the character of the local interests; and ii. the available methods of protecting them A. i.e., are there "reasonable and adequate alternatives" available B. does availability of these alternatives show that the intent of the legislation was actually discriminatory and so it prejudices the court to holding thus? [EXAM] c. DISSENT i. this holding elevates the right to traffic in commerce for profit above the power of the people to guard the purity of their daily diet of milk ii. no showing that Dean Milk could not have processed its milk in the 5-mile boundary required by the regulation

5. C&A Carbone, Inc. v. Clarkstown a. HELD: a municipal government is not permitted to require that all solid waste within its boundaries be processed by a specific local processor. i. though ordinance was entirely local, it affected interstate commerce because required waste disposer to send waste to local processor when it was cheaper to ship elsewhere ii. this is a "local processing" ordinance that has been shown to be invalid in Dean Milk iii. discrimination against interstate commerce in favor of local business or investment is per se invalid unless the municipality has no other means to advance a legitimate local interest b. DISSENT i. law does not discriminate by origin of waste, but says that any waste must be processed in local processing facility [NB: had plant been city-owned and therefore a public sector monopoly, the law would likely have been upheld] E. Laws that favor local interests (i.e., protectionism) 1. How to determine if a law is discriminatory? a. purpose/effects: this can be difficult, but Court says that proof of a forbidden purpose may be inferred from the effects of a state rule [though, what about laws that had no such purpose, but end up with such effects? or laws with the purpose to discriminate, but no obvious proof effects?]; or b. Pike balancing: balancing legitimate local justifications such as health against the burdens on commerce – i.e., local benefits vs. interstate burdens 2. State Barriers to Out-of-State Sellers: Baldwin v. Seelig a. HELD: A state may not protect intrastate producers against low-cost out-of-state competition to assure an adequate and safe supply of an essential commodity. In other words, a state may not use its admitted powers to protect the health and safety of its people as a basis for suppressing competition. i. purpose of statute was to suppress competition between states in milk distribution ii. state may impose regulations to ensure citizen health, but not citizen wealth

3. Henneford: motives alone will seldom, if ever, invalidate a tax that apart from its motives would be recognized as lawful. Moreover, the purpose of the tax here was equality not preference. 4. de facto discrimination: Hunt v. Washington State Apple Advertisers a. when ordinance is held to be discriminatory, burden is on the state imposing the law to justify both i. the local benefits flowing from the ordinance; and ii. unavailability of nondiscriminatory alternatives b. Wise says that this case could be re-written to be about protectionism [review for EXAM]

5. State Barriers to Out-of-State Buyers a. if effects on out-of-state buyers of a state ordinance are merely incidental, then court will uphold the law (269) b. HP Hood & Sons v. Du Mond i. HELD: states may not suppress interstate competition with the motive of protecting the health and safety of their people c. Cities Service Gas v. Peerless Oil and Gas i. state law imposing minimum prices on the sale of local natural resources (gas) upheld as a proper conservation[35] measure, even though most of gas shipped in interstate commerce d. Highes v. Oklahoma (1979) i. overruled Greer (1896) which held that states could prohibit export of wild animals because they were deemed state property; HELD: Commerce clause precludes a state from mandating that its residents be given a preferred right of access, over out of state consumers, to natural resources located within its borders or to the products derived therefrom A. this property theory is false B. law prohibiting export of minnows is facially discriminatory against interstate commerce ii. Rehnquist, as always in these case, dissents A. law was part of state's legit interests to regulate its natural resources for the benefit of its citizens e. New England Power v. new Hampshire i. unanimous court strongly condemned state restrictions on the export of its own natural resources F. Facially Neutral Laws and Pike Balancing 1. Test: "Does the burden on interstate commerce outweigh the benefit to the regulating state?" [Wise, see p. 278 case for good example of balancing before Pike] 2. Pike v. Bruce Church a. when effects on interstate commerce are only incidental, the law will be upheld b. in this case, effects were unduly burdensome to cantaloupe farmer who would have had to make a $200k outlay to comply with statute – another "local processing ordinance" [so, with this language, is the Court actually looking to discriminatory effect?][36] 3. State Burdens on Trade a. Exxon v. Governor of Maryland[37]: permissible barriers to incoming trade i. upheld a law prohibiting producers of petroleum products from operating retail service stations in Maryland A. law does not discriminate against interstate goods 1. doesn't prohibit flow of goods 2. permits non-refiner interstate companies to own gas stations B. law does not favor local producers and refiners 1. no petroleum produced in Maryland ii. "The commerce clause protects the interstate markets, not particular interstate firms, from prohibitive or burdensome regulations." b. Minnesota v. Clover Leaf Creamery: environmental protection favoring local industry i. upheld law that banned sale of milk in plastic containers but permitted it in other types of nonreturnable containers (mainly from pulpwood, a major state product) A. Court agreed with states conservation argument that plastic containers "present a solid waste problem, promotes energy waste, and depletes natural resources." 1. i.e., this is Pike balancing because these concerns outweigh any protectionism ii. law is fair because requirement is on all milk producers, not just those out of state A. law does not require containers to be made from Minnesota pulp-wood [iii. NB – hypo arg against court holding: by banning plastic, this discriminates against out-of-state producers of plastic while promoting in-state producers of wood pulp, so this measure is actually protectionist.] 4. State Burdens on Business Entry a. a law that distinguishes between out-of-state and local business is economic favoritism and constitutes and impermissible burden on interstate commerce i. e.g., prohibiting out-of-state banks from owning local banks b. CTS Corp v. Dynamics Corp[38]: neutral corporate anti- takeover statue i. HELD: a state may adopt anti-takeover statute that has the effect of making it more difficult for out-of-state entities to take control of the state's corporations. A. because statue applied to in-state entities as well, the statute did not discriminate against interstate commerce B. corporations are creatures of state statutes, and so states should be given deference in their regulation of in-state corporations 1. because a change in management will affect shareholders greatly, the state that chartered the corporation has an interest in regulating the method of these mergers ii. SCALIA says that Pike balancing should be done rarely if at all. He says that since the law affects all corporations (in and out of state) equally, that should be enough to uphold it, regardless of local benefits or costs. A. (299) – balancing State needs against needs of interstate commerce should be left to Congress [separation of powers] B. SCALIA and THOMAS: Court should only strike down laws that are facially discriminatory i. although SCALIA doesn't like dormant commerce clause cases, he will pay deference to stare decisis to help add stability to commerce ii. THOMAS: perhaps court can regulate all of this under import-export clause

First exception to Dormant Commerce Clause: if Congress later authorizes something that has been struck down by Court, then Court will permit it

G. The "Market Participant" Exception to the Dormant Commerce Clause: if a state is acting as a market participant rather than a market regulator, the dormant Commerce Clause places no limitation on its activities 1. South Central Timber v. Wunnicke a. HELD: a state may not impose post-sale ("downstream") obligations on a purchaser of the state's natural resources [NB: in effect, this is a local processing ordinance] i. no indication that Congress meant to give Alaska this power; if such an intent exists, Congressional consent "must be unmistakably clear." A. existence of a federal program similar to the state's is insufficient evidence to support inference that state's action was authorized by Congress ii. Commerce Clause scrutiny must be strict in light of three factors present in the state law: A. foreign commerce is restrained B. state is selling a natural resource C. state imposes restrictions on the sale iii. market-participant doctrine is limited to allowing states to place burdens on commerce within the market in which the state participates A. the Alaska law imposed a substantial regulatory effect outside of the market b. Hypo: how could Alaska have achieved the same effect and not been overruled? i. pay subsidy to in state processors from general fund ii. own and operate its own processing plant iii. only sell to pre-existing processing plants c. DISSENT i. plurality uses anti-trust law more than Commerce Clause ii.

XII. The Privileges and Immunities Clause of Article IV A. Art IV, §2: "The Citizens of each State shall be entitled to all Privileges and Immunites of Citizens in the Several States."\ 1. Historical context: a. Framer's meant to foreclose any one State from denying citizens of other States the same "privileges and immunities" accorded its own citizens. That is, no discrimination based on state citizenship. 2. to justify an exception under this clause, the state must show two things: a. nonresidents are a peculiar source of the evil sought to be avoided; and b. the discrimination bears a substantial relation to the problem 3. Court: there is a mutually reinforcing relationship between Privileges and Immunities Clause and the Commerce Clause a. therefore, P&I clause protects citizens from discrimination based on state residency i. protects "essential activities," such as activities pursuant to livelihood, transfer of property, access to the state's courts, etc A. e.g., "hunting" not considered essential so states can discriminate vs out-of-state hunters 4. some difference between P&I and commerce clause a. corporations enjoy no protection under P&I b. P&I is a right, so Congress can't waive it for certain state programs like it can waive commerce clause restrictions c. stricter judicial review d. P&I does not extend to all commercial activity, but only fundamental rights e. there is no "market-participant" exception to P&I B. United Building v. City of Camden 1. HELD: the interstate P&I clause (aka, "comity" clause) applies to municipalities that require contractors to hire the municipality's own residents to work on the municipality's construction projects. a. municipalities derive power from state, since state cannot discriminate this way, neither can the municipality b. since it discriminates against out-of-state workers, court justifies intervention as representation reinforcement c. TEST for P&I applicability i. is there discrimination against an out-of-stater? ii. is the privilege or immunity "fundamental" for purposes of the clause? A. e.g., the opportunity for citizens of any state to seek employment is "sufficiently basic to the livelihood of the Nation" B. property ownership iii. court's test (intermediate level of scrutiny): 1. is there a "substantial reason" for the discrimination that will permit it? That is, is the local evil deleterious enough to permit the ordinance as the appropriate remedy? 2. does discrimination bear a substantial relationship to the State's objective? 2. DISSENT a. court should not have extended the P&I to municipalities; there is no justification for this extension

|Dormant Commerce Clause |Privileges and Immunities Clause | |1. covers more economic activity |1. covers less economic activity | | |(i.e., only fundamental areas) | |2. covers more potential |2. covers fewer economic actors | |plaintiffs or economic actors |(e.g., corporations have no | | |protection under this clause) | |3. no need for discrimination |3. must involve discrimination | |against an out-of-stater; merely |against an out-of-state resident | |need a "substantial burden" on | | |interstate commerce | | |4. market participant exception |4. NO market participant exception| |5. Congress may legislatively |5. Congress cannot excuse | |permit violations of commerce |violations of the interstate P&I | |clause (see 324) |clause | |6. dormant commerce clause is |6. Interstate P&I clause is an | |merely an inference from absent |explicit, textual right | |language | | |7. applicable to anyone engaged in|7. does not protect aliens, only | |interstate commerce |citizens | |Acts as an implied restraint upon |Imposes a direct restraint on | |state regulatory powers. Such |state action in the interests of | |powers must give way before the |interstate harmony [so, analysis | |superior authority of Congress to |is more subjective?] (p. 309) | |legislate on (or leave | | |unregulated) matters involving | | |interstate commerce. (p. 309) | |

XIII. Congressional Ordering of Federal-State Relationships by Preemption and Consent A. Preemption of State Authority – Supremacy Clause, Art VI 1. Congress may preempt state law by: a. express statement b. field preemption[39]: implied occupation of a regulatory field [Rice] i. Court requires clear showing that Congress intended to occupy the field A. scheme is so pervasive that reasonable inference that Congress left no room for state supplementation; or B. field in which federal int is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject c. conflict preemption: implied preclusion of conflicting state regulations [Hines; Florida Lime] i. under facts of a case, does a state law stand as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress? ii. compliance with both federal and state law is a physical impossibility [d. NB – the current court in its favoritism to states' rights will presume that Congress didn't intend to regulate unless there is a strong evidentiary showing] 2. Problems arise when federal statute does not clearly disclose (i.e., no explicit preemption) its intended impact on state laws. a. is federal interest dominant so that it must override states? b. scheme is so pervasive as to make reasonable reference that Congress left no room to supplement it c. even where Congress has not entirely displaced state regulation in a specific area, state law is preempted where it conflicts with "purposes and objectives" of federal law [a policy test] 3. Pacific Gas and Electric v. State Energy Resources Comm'n a. HELD: in view of avowedly economic purpose behind the disposal means requirement, the requirement was not preempted by federal law since federal law primarily dealt with nuclear safety issues i. States have traditionally regulated utilities for reliability and economic matters, so Congress needs EXPRESS preemption to override a traditional area b. TEST for preemption (when federal govt completely occupies a given field or identifiable portion of it) is: i. whether the matter on which the state asserts the right to act is in any way regulated by the federal govt 4. Preemption and the foreign affairs powers – Crosby v. National Foreign Trade Council [extreme judicial deference to feds in this area] a. HELD: State law barring state entities from buying goods and services from companies doing business with Burma was preempted by previous, though lesser, federal sanctions on Burma i. State's more stringent provisions were an obstacle to the accomplishment of Congress' objectives ii. Congress manifestly intended to limit economic pressure against Burma to a specific range iii. state law interferes with President's authority to speak for the US and undermines his diplomatic ability B. Consent to State Laws 1. Issue: can Congress validate state laws that would otherwise be invalid under the dormant commerce clause? a. YES, according to Prudential Ins v. Benjamin (1945).[40] i. so long as Congress explicitly permits states to violate the commerce clause, as they had in this case, the Court will not hold it invalid 2. Equal protection as a limit on state protectionism a. Metropolitan Life v. Ward (1985) istate authority to exclude foreign corporations from doing business within its borders does not justify imposition of more onerous taxes or other burdens on foreign corporations than those imposed on domestic corporations, unless the discrimination between the types of corporations bears a rational relation to a legitimate purpose.

XIV. SEPARATION OF POWERS (i.e., horizontal limits between federal branches) A. Framers' notions of separation 1. prevent tyranny and promote efficiency a. efficiency often sacrificed in name of preventing arbitrary governement 2. separation not intended to be airtight, as president participates in legislative process and Congress must ratify treaties negotiated by pres B. Executive Encroachments on Legislative Powers[41] 1. Youngstown Sheet & Tube Co. v. Sawyer ["The Steel Seizure Case"] a. HELD: The president, citing an aggregation of his constitutional powers, may not exercise a lawmaking power independent of Congress in order to protect serious national interests. [main opinion is formalistic] i. no act of Congress permits it ii. no express Constitutional provision permits it A. the president should see that "the Laws are faithfully executed," by implication not permitting him to make them 1. President may only recommend laws or veto laws B. President is commander and chief, but settling labor disputes is for lawmakers, not the military [iii. the formalistic argument: since Art I expressly details legislative power, shouldn't we just assume that Art II powers can only be those not listed in Art I?] b. had Congress passed a law identical to the executive order, it would be Constitutional c. FRANKFURTER [more functional/flexible] 1. "it is a constitution we are expounding" (McCullogh), meaning that court should not try to define all powers, just see if the power challenged fits or not i. historical gloss: this means that when something has been practiced repeatedly by President, and never questioned by Congress, we might see this as part of the powers vested in the president 2. Congress has spoken on the issue of seizure and said President may not do it [Taft-Hartly Act 1947] d. JACKSON [more functional/flexible] "The Constitution contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity" (336). The three categories below flow from this notion: 1. Maximum Pres Power: when president acts pursuant to Congressional authority because it combines Congress' and Pres' constitutional powers 2. Questionable Pres Power: presidential action in the context of Congressional silence which Congress could at any time change 3. Minimum Pres Power: president acts in a manner incompatible with Congress, courts may sustain power only if they can say such a power is beyond control of Congress (the highest level of scrutiny) e. DISSENT 1. use of presidential powers should be decided in part by the context in which they were employed 2. President has a duty to execute legislative programs to support the troops in Korea. A. his seizure of steel mills was an effective means of performing this duty B. his actions were clearly temporary and subject to congressional direction

Wise's categorizations: |FORMALISM |FUNCTIONALISM | |a stricter standard |easier for court to uphold actions| | |of a govt branch | |court applies this standard when a|court applies this test when a | |branch is attempting to expand |branch is trying to reach | |power at cost of another branch |accommodation to deal with new | | |problems not envisioned by the | | |Founders |

2. Executive Authority to Make National Domestic Policy a. Most scholarly opinion is that the more flexible and functional approach is best when deciding separation of powers issues i. since society is increasingly complex, there is a need for a national government that can – without partisanship – impose and enforce detailed and expert regulation over complex industries 3. Executive Authority over Foreign and Military Affairs a. should/does the president have more autonomous authority to act in foreign affairs? are there more explicit constitutional grants of such authority? b. Executive agreements i. these are unilateral agreements that are not treaties ii. yet, do they also override state law as treaties do? A. court said yes, they override (1937) c. Dames & Moore v. Regan (1981) REHNQUIST write for court i. HELD: the President may, in response to a national emergency and to comply with an executive agreement with Iran, issue an executive order that nullifies attachments and liens on Iranian assets, direct those assets be transferred to Iran and suspend claims against Iran that may be presented to an Intl Claims Tribunal. A. specific statute authorized the actions of the President in a declared national emergency re: nullification and transfer of assets B. suspending legal claims not specifically authorized 1. no direct statutory authorization, but several similar statutes 2. therefore, it seems Congress has given President great latitude of action under circumstances similar to those of this case 3. "history of Congressional acquiescence" to similar conduct ii. past practice does not create power, but a long- continued practice, known to and acquiesced in by Congress, raises a presumption that the action is taken with Congressional consent d. President, Congress, and War Powers i. only Congress can declare war (Art I, §8, cl. 11) ii. only Congress can raise and support armies and navies (Art I, §8, cl. 12 & 13) iii. but President is Commander and Chief (Art II, §2) iv. President has defensive powers if country is attacked, but does he have offensive power? A. Congress has the war power so the decision to go to war can't be made lightly or quickly v. is the question of whether or not military force was used constitutionally even a justiciable question? vi. War Powers Resolution of 1973 A. President may only commit US troops pursuant to: 1. a declaration of war; 2. specific statutory authorization; or 3. a national emergency created by attack

upon the US, its territories or possessions, or its armed forces B. Within 48 hours of committing troops, President must report to Congress C. After 60 days, the President must withdraw the troops unless: 1. Congress has enacted specific authorization for deployment; 2. has extended by law the 60-day period; or 3. Congress is unable to meet as a result of attack on the US D. Quaere: is the Resolution unconstitutional or just a definition of the word "war" from Art I? e. Padilla v. Rumsfeld i. HELD: because Padilla's detention was not authorized by Congress, the Pres does not have Art II powers to detain as an "enemy combatant" an American citizen seized on American soil outside a zone of combat. A. statutory language actually forbids this B. therefore, Pres must, by Youngstown, show such power is inherent in his Constitutionally granted Art II powers

C. Congressional Encroachments on Executive Power Congress has two options: i) retain control over executive officers' actions ii) retain control over executive officers' jobs 1. Controlling Executive officers' actions a. Congress can be very specific and limiting in the delegation of power to agencies so that their rulemaking power will in turn be limited i. cabinet agencies are directly part of executive branch ii. independent agencies were not envisioned by the Constitution: SEC, FTC, FCC, FAA [creatures of Congress and Executive to help regulate the country] b. when Congress delegates power to agencies, they often must make rules for the execution of that power (i.e., they perform a legislative function!) i. rarely has the Court held that Congress has violated the nondelegation doctrine (p. 351) ii. Court will uphold so long as legislative act creates "an intelligible principle to which the person or body authorized to act is directed to conform" (351). A. if there were a strict interpretation of the nondelegation doctrine, then Congress would have to do everything itself and there would be no modern administrative state iii. but is the delegation of such broad powers dangerous to democracy?

bringing a court challenge may be difficult because getting standing will be tough when there is not affect on an individual, but just a challenge of power between Congress and the Executive – nonjusticiable

c. Can Congress use a one-house veto in an adjudicatory situation? i. INS v. Chadha (1983) A. HELD: a single house of Congress may not invalidate a decision by an officer of the executive branch to suspend deportation of an alien because it violates the separation of powers and is a legislative act outside of the required bicameral structure for legislation. -This is an attempt at Congressional aggrandizement i. formalistic and original intent reasoning: explicit Constitutional provisions define the role of executive and legislative branches and cannot be violated A. Court says the one-house veto was like a law because "it had the purpose and effect of altering the legal rights, duties and relations of persons" (355) ii. Art I, §1 requires all bills to be passed by both House and Senate and presented to the President for approval [bicameral clause] a. policy: legislation must be carefully considered by many before it is enacted iii. Art I, §§1, 7, cl. 2: every order shall be presented and approved by the president or overridden by 2/3 of both houses [presentment clauses] B. concur: when House determines that an alien doesn't meet certain criteria, the House has assumed a judicial power in violation of the separation of powers C. DISSENT – very functionalist i. legislative veto is an important if not indispensable political invention that acts as a check on bad rulemaking by administrative agencies ii. without legislative veto, Congress must either: A. make numerous and very specific laws for all things; or B. abdicate lawmaking function to executive branch[42] iii. the majority's Art I decision unfortunately seems to invalidate all legislative vetoes

|Formalism |Functionalism | |things can be categorized into one|governmental powers overlap and | |of three branches of government |cannot be categorically | |and then analyzed by text of |distinguished | |Constitution | | |Court should be active in insuring|problem is also aggrandizement, | |that the political branches |but should be analyzed with an | |resolve these issues and do not |evolutionary/balancing approach | |aggrandize their powers at the |rather than direct textual | |expense of the other branch |reference; allowing the branches | | |to come up with new approaches to | | |work with govt in the modern era | |no branch can both make the law |is this more protective of | |and execute it |individual liberty because it | | |retains more congressional | | |oversight than a strict textual | | |separation would[43] | |if a function of an officer is |politics: since we have two-party| |executive, then officer cannot be |system, legislation may take into | |removed by Congress except by |account the need to balance party | |impeachment (Bowsher) |control over certain | | |administrative appointments | |textual: reference to words of |if an act is trying to encroach on| |Constitution |another branch or aggransize | |structural: reference to |itself, it should be struck down –| |structure created by the text |if not, then upheld | |formalism running rampant can | | |cause political experiments to be | | |killed in infancy (see Bowsher) | |

d. Bicameralism and Presentment 1. after Chadha, court struck down bicameral veto provisions in regulatory statutes 2. policy: is it possible that since the modern administrative state gives so much power to the executive that congressional vetoes actually restore the balance of power rather than work against it? e. Can the President use a line-item veto? 1. Clinton v. NY (1998) – formalist argument[44] A. HELD: Line-item veto violates Art I, §7, cl. 2 of Constitution that requires President to veto a bill before it becomes a law and return the entire bill to Congress i. original intent also supports this interpretation ii. policy: when Pres rejects a portion of law, he is rejecting the policy judgment made by Congress and substituting his own judgment A. in other words, it would enable the President to create a new law B. DISSENT – Scalia (functional) i. Says the issue is this: does line item veto delegate to President a nondelegable power? a. historically, Congress has appropriated lump sums and left spending or not spending to Pres discretion. This is analogous to line-item veto C. DISSENT – Breyer (functional) i. by Jackson's concurrence in Youngstown,[45] the line-item veto is consistent in light of the need for a workable government ii. President is not repealing or amending anything, merely exercising powers given to him by Congress. iii. act doesn't violate text of Constitution iv. act doesn't violate principles of separation of powers 2. Congressional Control over who holds executive office a. Appointment of Executive Officers i. Art II, §2, cl. 2 – "Appointments clause" A. President gets to appoint, with advice and consent of Senate, cabinet ministers, judges to US Supreme Court, and Ambassadores. B. Congess can vest power to appoint inferior officers in either the President, heads of departments, or Courts of Law 1. Congress is plainly excluded by the text from appointing executive officers ii. Buckley v. Valeo: formalistic (clear textual precident) A. if Congress is in sole charge of appointments to a group, then the group can only legislate – it can NOT execute laws b. Removal of Executive Officers i. Constitution is silent with respect to removal except for the impeachment clause ii. Bowsher v. Synar (delegation of spending power) HELD (formalist): Congress may not assign to Comptroller General the function of determining which accounts of the federal budget must be cut to meet deficit targets because it violates the separation of powers in the method of removal of CG. A. Congress may not reserve for itself the power to remove executive officers except by impeachment (this statute would have permitted it by Joint Resolution) 1. in effect, this would make the office answerable to Congress, a clear violation of separation doctrine[46] B. DISSENT – functionalist [EXAM – good example of functionalist arg says Wise] 1. this is a novel and far-reaching response to national deficit crisis and should not be struck down for a formalistic reason 2. By Youngstown, political branches of govt should be able to integrate their powers on their own terms 3. Moreover, since Comptroller can only be removed by a joint resolution[47], this act actually satisfies the bicameral and presentment criteria in Chadha (!) and so should be upheld.

iv. limiting Presidential power of removal A. court permits some restraint on this if the officer in question is not "purely executive" (375) 1. Humphrey's Executor: officers in independent agencies created by Congress where the statute specifics the term and causes for removal may be removed by the President only for those causes 2. NB – all this assumes that independent agencies are constitutional [would not a strictly formalistic approach not wipe away these independent bodies?] v. Morrison v. Olson – creation of independent counsel HELD: Congress may establish and appoint independent

counsel that is removable for reasons listed in the statute. (Rehnquist delivers the opinion) mix of functionalism and formalism A. the provision does not: 1. violate the Appointments Clause; 2. violate the limitations in Art III for

limiting judicial power to cases and controversies because the Appointments Clause is a source of authority independent[48] of Art III; or 3. impermissibly interfere with the President's authority under Art II (i.e., it does not violate separation of powers) B. characterize the position itself: because ind. counsel an "inferior" officer who could be removed for good cause and had temporary tenure, no violation of Appointment Clause 1. inferior officers can be appointed, by statute, by cabinet head, or by court itself a. such statutorily-based appointments must not be "incongruous" with the body given appointment power[49] 2. superior officers can only be appointed by the President C. Separation of Powers [the functionalist approach] 1. Unlike Bowsher, the removal power is vested in executive branch in the person of the Attorney General [analogous to Humphrey's Executor] 2. "good cause" termination means executive retains ample authority to ensure ind counsel does his job correctly 3. doesn't impede President's ability to perform his constitutional duty [i.e., there is no aggrandizement to Congress] D. DISSENT – SCALIA (formalist) 1. enforcing laws is a purely executive power, therefore Congress cannot have control over even the smallest percentage of executive power 2. ind counsel not "inferior" because not subordinate to another officer 3. Scalia would overturn Humphrey's Executor D. Executive Privileges and Immunities 1. US v. Nixon [functionalist?] a. HELD: President does not have immunity from criminal prosecution under all circumstances i. because Special Prosecutor has been given powers to bring the case to trial, it renders the case justiciable and not a political question ii. separation of powers[50] does not prevent judicial review of Pres's claim of privilege because it is the duty of courts to review such issues iii. unless a national security issue, in camera review of presidential documents can outweigh a blanket presidential privilege A. i.e., the court performs a balancing test B. privilege treated as a rebuttable presumption, so burden on Special Prosecutor to show the need for the evidence iv. policy: privilege must yield to substantial need for evidence at trial A. i.e., the need to develop all relevant facts in the adversary system is both fundamental and comprehensive 2. There is an absolute Presidential immunity from civil liability in some cases (Nixon v. Fitzgerald) a. President cannot be held liable for money damages stemming from his acts while in office, unless Congress takes explicit affirmative action otherwise b. policy: this will prevent the Pres from being unduly cautious in the execution of his Constitutionally vested duties c. DISSENT: placing absolute immunity on office of the Pres rather than specific activities of the Pres places the President above the law 3. Clinton v. Jones [functional] a. HELD: claims of private citizens relating to actions prior to President's term in office may be adjudicated while the President is in office i. policy: although some official conduct of public servants is immune from money damages in order to permit them to carry out their duties effectively (e.g., prosecutors), this immunity does not apply to unofficial acts ii. President not above the laws: A. impeachment in public life B. all laws in private life iii. just because the trial may burden the President's time, does not mean that it is unconstitutional by separation of powers doctrine (395) iv. delay of trial could lead to prejudice against Jones' claim by loss of witnesses, etc v. policy: if greater protection of President becomes necessary, Congress can pass legislation 4. Criminal Prosecution a. an impeached officer may be charged while in office b. an unimpeached officer may be charged upon leaving office

INDIVIDUAL RIGHTS What are the limits of governmental power over individual rights? It is difficult to interpret protections under the explicit rights – e.g., freedom of speech and religion, etc – but even more difficult are the vague assurances of due process and equal protection. What sorts of claims can be made against governmental action?

XV. Bill of Rights and the Post-Civil War Amendments: "Fundamental" Rights and the "Incorporation" Dispute A. 14th Amendment 1. Passes after Civil War 2. "Incorporation Dispute": did the 14th Amend force the states to apply all guarantees in the federal Constitution to state actions (criminal proceedings, freedom of speech, etc)? a. in other words, were all Bill of Rights guarantees "incorporated" into the 14th Amend and therefore applied to the states? b. or, was 14th Amend an independent limitation on states that was merely informed by the Bill of Rights ["implicit in the concept of ordered liberty"] – aka selective incorporation[51] B. The Pre-Civil War Situation 1. Constitution itself mainly concerned with governmental structure; almost no mention of individual rights a. Art I, § 9: a few limits on Congress b. Art I, § 10: a few limits on States 2. Bill of Rights added to guarantee the federal government would not override individual rights a. Especially the 10th Amend, reserving non-enumerated powers to the States and the people b. Barron v. Baltimore (CJ Marshall; 1833) HELD: Bill of Rights restricted to the national government and did not limit state authority i. since states each have their own constitutions, they are bound by those documents and not the federal Constitution which only binds the federal govt. ii. nor is there any expression within the Bill of Rights indicating that it should be applied to the states C. The Purpose and Impact of the Post-Civil War Amendments [13, 14, 15th[52]] (See p. 415 for brief history of the enactment of these Amendments) 1. Slaughter-House Cases [narrow interp of the 14th Amend, saying that it was enacted for the policy purpose of promoting the freedom of ex-slaves, and not designed to change the basic interp found in Barron v. Baltimore] a. Court believed that neither Congress nor the ratifying states intended the new amendments to apply beyond correcting prejudice against ex-slaves or preventing slavery from being reinstated i. Ps in this case have made no denial of equal justice claim; therefore, not protected under 14th Amend [NB: however, text of Amendment seems to apply to all persons, not just blacks.] b. Court should only determine "privileges and immunities" on a case-by-case basis, and not make some sweeping generalization c. 14th Amend clearly distinguished between citizenship of the states and citizenship of the United States in its opening sentence i. it only protects the P&I of US citizens; states can do what they will to their own citizens ii. Court says Congress did not intend to shift protection of all rights from States to federal govt (p. 419; Wise says this is nonsense). iii. 14th Amend enacted in shadow of Civil War which was the ultimate assertion of federal power over the states! d. DISSENT i. 14th Amend does not create any new "privileges and immunities," but merely says that those that exist cannot be taken away by State legislation ii. as under Art IV, §2 secures P&I between citizens of different states, so the 14th Amend makes all citizens of US equal iii. since Louisiana law upheld, it violates freedom of labor [law controlled butchers] which is a "fundamental" right that should be protected under 14th Amend iv. that is, the 14th Amend recognizes rights inherent to citizens of all free governments [mechanism for protecting non-textually expressed rights – matches CL tradition of consensus recognition of fundamental rights (421)]

Lecture notes: majority turned the 14th Amend into something that wasn't very useful. Dissent says that this is a terrible interpretation. Rather than reject Slaughter House, court left it behind and began to deal with the Due Process clause.

2. Aftermath of the Slaughter-House Cases a. one of the main architects of 14th Amend, however, had said that a central purpose of 14th Amend was to overrule Barron v. Baltimore. So, was the interpretation in Slaughter-House manifestly wrong? b. other scholars think the Slaughter-House ruling was correct in light on contemporaneous events c. Privileges and Immunities[53] of national citizenship i. the interpretation in Slaughter-House has prevailed to date, so that it protects a few rights of national citizenship, but not state citizenship A. e.g., right to travel, vote for national officers, petition Congress, enter public lands B. other rights have come to be protected by Due Process and Equal Protection Clauses[54] d. Durational residency reqs cases [pp. 426-428] i. if classification affects a fundamental interest, then we apply a higher level of scrutiny to the state legislatively created classification [and, in these cases, strike down the legislation] ii. fundamental interests: money to buy food; medical care (but higher education is not and may be subject to durational residency) iii. is benefit readily portable or not (infra). 3. Right of Interstate Migration and Saenz v. Roe: a revival of the P&I Clause? [NB – no explicit textual right to interstate migration – so Court has never limited itself to textual contents.] a. any sort of durational residency law [e.g., to collect welfare or be able to vote] is subject to strict scrutiny because they burden the right to interstate travel b. Saenz v. Roe[55] HELD: A state may not limit a new citizen to the welfare benefits he would have received in his previous state, only raising his benefits to those received by long-time residents after he lives in the new state for at least one year. [This held in spite of 1996 Congress Act that seemed to permit exactly this sort of law!] i. The "right to travel" has three components: A. right of a citizen of one State to enter and to leave another State; B. right to be treated as a welcome visitor when temporarily in the territory of the other State [Art IV, §2 – Interstate P&I Clause]; and C. right to become a permanent resident of a new State and be treated like all other residents [Court says, this is protection is premised on the 14th Amend P&I Clause]. 1. 14th Amend's Citizenship Clause does not permit "degrees of citizenship" 2. some scholars see this equal citizenship idea as the key implication of this case ii. as long as the benefit received by a new resident is not "readily portable" [e.g., college education, divorce] then state should not be able to restrict access by length of residency iii. DISSENT – REHNQUIST A. right to travel is not the same as the right to become a citizen of another state; such a conflation has led to various court decisions [Shapiro, Dunn, Maricopa see pp. 426-428] B. policy: Court should pay deference to states' needs to require someone establish a bona fide residence before receiving benefits of that state 1. if states are permitted to limited tuition decreases until a duration of residency is fulfilled, then why not welfare? iv. DISSENT – THOMAS A. 14th Amend should only address fundamental rights, rather than public benefits established by positive law B. Still, Thomas says that he would be open to a reevaluation of 14th Amend P&I Clause and its implications based on Framer intent [1865-8]

EXAM: gay marriage and how 14th Amendment can be used to argue for substantive due process right for gay marriage; but Thomas would say that in the past, gays were discriminated against and so there is no substantive right. -penumbra or due process protection: where does the protection end? if we are going to allow gay marriage, how can we forbid polygamy? if marriage is merely a contract between consenting adults and not somehow tied to male/female reproduction? -what else on the "parade of horribles" may be permitted: bestiality, incest? after all, we have permitted adultery and fornication and homosexual conduct to be struck down as possible criminal acts

4. Implications of Saenz a.

XVI. Substantive Due Process: Rise, Decline, Revival A. Introduction 1. substantive due process is a very controversial area 2. Slaughter-House Cases had rejected any notion of substantive due process a. however, dissent view wanting to protect fundamental values prevailed by the end of 19th century 3. Substantive due process is a protection of economic and property rights, as symbolized in Lochner a. today, using substantive due process to assure special protection of economic and property rights is discredited 4. However, substantive due process has been used to protect non- economic fundamental values such as: a. protecting autonomy and privacy b. preventing restrictions on abortion c. preventing restrictions on contraception 5. Questions: a. are the fundamental values grounded in constitutional text, history, and structure, or are they extraconstitutional judicial infusions? b. are there basic values that reflect a national consensus? c. should the court impose fundamental values? B. Substantive Economic Due Process and Economic Regulation: Rise and Decline of Judicial Intervention Wise – "the basic idea here was that courts could impose limits on political branches to redistribute wealth"; later abandoned by court

1. Antecedents a. fundamental rights exist: natural law ideal said that a Constitution was not the source of rights, but a reaffirmation of preexisting rights b. Calder v. Bull positivist vs naturalist i. willingness to entertain natural law arguments A. in contrast to positive law (i.e., that law is only what is explicitly stated, either in Constitution or statutes) ii. willingness to invalidate laws without explicit reference to the text of the Constitution (social compact, Magna Carta, etc) iii. [NB: this is an important distinction for the role of judicial review – in our system, the positivist view has won out.] c. The early Marshall Court i. quickly decided to require Constitutional justification for any legal invalidations d. Due Process before the Civil War i. hints of due process, but no decisions holding that way e. Substantive Due process appears in opinions i. rate regulation and the Munn case A. suggestion that there existed a "public good" that may be a basis for judicial intervention in the regulation of private property ii. Mugler v. Kansas A. iii. Allgeyer Case A. first invalidation of a law on substantive due process grounds B. held that persons must be free, not just in their persons, but in the enjoyment of all their faculties i. i.e., freedom to contract based on the contracts clause (Art I, § 10, cl. 1)[56] ii. Court began to stretch the contracts clause to say that it created a vested right[57] 2. The Lochner Era: Judicial Intervention and Economic Regulation Lochner v. NY (1905) a. HELD: a state may not generally prohibit private agreements to work for more than a specified number of hours [bakery contract] i. general right to contract part of individual liberty protected by the 14th Amend A. this right is, however, subject to reasonable conditions imposed pursuant to govt police powers ii. policy: court is not substituting its judgment for a legislature, just determining if regulation is within state's police powers iii. directly regulating employment is not a legitimate end [parallel in temporal development/change to judicial analysis of commerce power] b. DISSENT i. the conditions imposed by the state were reasonable because they related to health concerns ii. HOLMES: a Constitution is made for people of fundamentally differing views, and just because we find a view shocking, does not mean we should declare it repugnant to the Constitution; policy decisions should be left to legislature A. dominant opinions should prevail, even under 14th Amend unless they infringe on fundamental and traditional principles 3. Problems with Lochner a. became synonymous with inappropriate judicial intervention in the legislative process b. broad reading of "liberty" to include things other than freedom from physical restraint c. are the limits placed on the legitimate exercise of police power by a state vis-à-vis freedom of contract simply to narrow? [i.e., is the state restrained too greatly?] d. did lochner court err by using strict scrutiny rather than a mere rational basis test when analyzing a law re: contract? 4. Court's definition of substantive due process: a. ends or purposes: is the object or legislation legitimate, appropriate, necessary? does it promote health, safety, welfare, morals as part of police power? [illegitimate ends includes interference with individual right to K] This is a question of law answered by statutory interpretation. – in effect, Court is setting itself up the second-guess legislature b. means: are the means to accomplish the legislation's ends reasonable and appropriate? is there a real and substantial relationship between the means used and the legitimate end? c. effect: what is the effect of the law on the liberty of the parties involved, on their property, on their lives? if effect is too drastic, law might violate due process. 5. Judicial Scrutiny of Economic Regs during Lochner Era a. court upholds some laws limiting hours when justified by protecting women's health; later permitted limits for both men and women b. court struck down law prohibiting employees from joining unions as a violation of due process C. Modern Era: The Decline of Judicial Scrutiny of Economic Regulation 1. Nebbia v. New York a. HELD: a state may strictly control retail prices [i.e., set min and max prices] even if such controls inhibit the use of private property and the making of contracts i. a law does not offend due process as long as it has a reasonable relationship to a proper legislative purpose/end, is not arbitrary or discriminatory, and the means chosen are reasonably related to the ends sought ii. no area is outside regulatory ability of the police power b. DISSENT i. businessmen prohibited to conduct business freely and consumers are deprived of their liberty to buy a necessity of life 2. West Coast Hotel v. Parrish a. HELD: state imposition of a minimum wage for women workers in order to protect them from abuse is not arbitrary and has a reasonable relationship to its end i. policy: protect the weak [i.e., women are naturally in a weaker position to bargain; it is legit for states to want to protect them] 3. Post-New Deal: Minimal Judicial Scrutiny or Judicial Abdication? a. US v. Carolene Products i. HELD: federal prohibition on interstate transportation of filled milk permitted as having a reasonable relationship to the end of protecting public health A. where a policy is enacted in response to certain facts, the legitimacy of that policy can be challenged by showing that those facts no longer exist [i.e., use of a "Brandeis Brief" filled with facts that counter legislative policy] B. still, court says challenges to a legislature's "rational basis" would be very difficult ii. FOOTNOTE 4: judicial intervention is more appropriate the less political processes may be trusted to even out factional winners and losers over time." A. representation reenforcement B. if claim brought on an express right in Constitution, then higher review C. if law affects a minority group, then apply a higher level of review NB: [again, protect the weak] – read and think about (p. 474) 4. Williamson v. Lee Optical a. HELD: the 14th Amend does not prohibit all state business regulation that is not essential and directly related to the harm it intends to cure i. court will not strike down laws regulating business or industry conditions merely because they are unwise A. the people as voters must be the guardians of legislative abuse

b. NB: Court has not invalidated an economic regulation on substantive due process grounds since 1937 i. Court begins to see Due Process clause as too "vague" to use to nullify legislative judgment (477) ii. only in reducing excessive punitive damages has substantive due process been suggested for use with its limits on deprivation of property A. However, Ginsburg, Scalia, Thomas, and Rehnquist dissented to this idea iii. 1998 decision used substantive Due Process in part to prevent a law imposing retroactive economic burdens on a coal company A. Breyer, Stevens, Souter, and Ginsburg dissent

XVII. Constitutional Safeguards of Economic Rights A. The Takings Clause What limits does the takings clause impose on the ability of a state [since 5th Amend originally applied only to feds (Barron v. Baltimore), but become applicable to states via 14th Amend] to take property and give it to another? 5th Amendment: "nor shall private property be taken for public use, without just compensation"

1. 5th Amend absorbed into the 14th Amendment "due process" clause before any other rights (1897) 2. Public Use requirement/limit a. court gives great deference to legislative determinations of what is a "public use"/"public purpose" i. need only be "rationally related to a conceivable public purpose" b. some permitted public uses: i. taking land the selling to private developer to further urban redevelopment project 3. Regulatory takings: somehow affects a portion of the property interest. The key is: how much effect is enough to make a taking? -instead of a condemnation and taking, what if government regulates the property in some way that substantially diminishes its values? Should govt give compensation for this diminution?

a. Pennsylvania Coal and foundations of regulatory takings law Holmes' rule: "While property may be regulated to a certain extent, if regulation goes too far, it will be recognized as a taking." i. HELD: a state may not use its police power to destroy previously existing property and contract rights without compensation ii. factors to consider to determine boundary between regulation and taking: -extent of diminution in property value -extent of the public interest -nature of the regulation [e.g., preventing profit- making; altering property rights] iii. DISSENT A. a restriction imposed to protect public health, safety, or morals from dangers threatened is not a taking b. Other factors for regulation/takings boundary: -relative value of property taken to property preserved and the public interest in that preservation[58] c. Keystone Bitumous Coal STEVENS public purpose – state may regulate property without compensation when it is abating a use that would be a public nuisance [i.e., protect health, safety, welfare] degree of impairment of property rights and the reasonable investment-backed expectation – since coal company only lost a small % of its coal, this was not a taking the way Pennsylvania Coal was (a balancing approach) REHNQUIST, SCALIA, O'CONNER -"public purpose" is a useless distinction as it is merely the prerequisite for taking -if, from property owner's perspective, the right to any of his property is destroyed, then it is as if the govt took the coal for its own use

d. what does "property" mean under the Takings Clause? -real property -personal property -intangible interests; intellectual property -regulatory imposition of a new financial liability [i.e., if govt requires you to use your wealth in an unanticipated way, this may be a taking]

zoning: upheld as legitimate since it normally applies to everyone; landmark regulation or spot-zoning: may be discriminatory when it applies to only a few

e. Penn Central balancing test: zoning and environmental laws i. court says that all challenges to takings must be determined on an ad hoc factual determination basis, using the various criteria developed in previous cases -health, safety, morals, general welfare -however, even when a legitimate public purpose, if profitable use of property too greatly infringed, may still be a taking; i.e., court must examine the "investment-backed expectations" [penn coal] -regulation cannot arbitrarily single out a particular parcel for treatment different from its neighbors [i.e., no one gains while others lose] ii. DISSENT – REHNQUIST, STEVENS -this is not prohibiting a noxious use -benefits gained [preserving a landmark at cost of multi-million dollar loss] not offset by benefits flowing from preservation of merely 500 other landmarks; i.e., the law does not secure an "average reciprocity of advantage" to all so regulated f. A per se rule for "permanent physical occupations" i. when govt authorizes any permanent physical occupation, even a minor one, these is a taking per se for which compensation must be paid A. e.g., law requiring landlord to permit cable company to install cable in all the houses was a taking B. Dissent argued that the issue should be evaluated under a multifactor test, not an overly formalistic rule g. A per se rule for regulations denying "all economically beneficial use" – Lucas v South Carolina Coastal Council, SCALIA[59] i. confiscatory regulations – i.e., those that prohibit all economically beneficial use of land – are takings per se A. must prevent private land from being passed without compensation into a form of public service under the guise of protecting health welfare of the public B. compensation can only be avoided if the proscribed right was not part of the owner's land title to begin with (i.e., from a background of state CL nuisance and property law) ii. KENNEDY: in unique, sensitive situations, state may be permitted to confiscate by regulation iii. DISSENT: STEVENS A. this per se rule effectively freezes state common law and denies legislature much of its power to determine and change laws re: property rights and uses B. Seems like a return to Lochner: not allowing the political process to determine the status quo h. regulatory takings and the timing of government action i. property holder may receive damages for period during which a regulation took from him, even if that regulation later repealed ii. property buyer may challenge a regulation imposed on his property before he purchased it! i. conditions on development permits as "takings" conditional exactments

|Nollan |Dolan | |gives us the "essential nexus" |gives us the "rough | |requirement |proportionality" requirement and | |[NB: Wise says this is very |requires the city to make an | |similar to the "germaneness" |"individualized determination" | |requirement in South Dakota v. |when making regulations. | |Dole] |-in other words, it shifts the | | |burden of proving something is or | | |is not a taking to the government | | |-also means that more things | | |likely to be deemed takings than | | |before |

NB: both of these decisions involve non-state legislatures; would this standard be applicable to a policy/legislative determination of such a body? NB: perhaps these tests only apply to regulatory takings, not direct governmental expropriation where permanent physical occupation of land occurs

i. Nollan v. Cal:[60] if there is no adequate nexus between the condition and the purpose of the building restriction, then court applies heightened scrutiny of the means-ends relationship between the development condition and the state's regulatory purpose [i.e., can't put a public path across property as a condition for granting a permit unless pay for it; but could impose height/placement of building restrictions without compensation] ii. Dolan v. City of Tigard A. clarified the two-part test: 1. whether the "essential nexus" exists between the "legitimate state interests" and the permit condition exacted by the city? 2. whether the degree of the exactions demanded by the city's permit conditions bear the required relationship to the projected impact of the proposed development? a. use a rough proportionality standard b. higher than rational basis B. DISSENT: STEVENS, GINSBURG 1. This is a return to Lochner: that is, this inappropriate heightened judicial intervention on review of state police powers a. to which REHNQUIST might say: "hey, we are just doing what we do when we protect all fundamental rights in Bill of Rights, like free speech; subjecting things to a higher level of scrutiny"

XVIII. Revival of Substantive Due Process for Noneconomic Liberties: Reproduction, Family, Sex, Death

Summary of the Important cases: Pierce, Meyer: child rearing and education are fundamental Skinner: procreation is fundamental Loving: marriage is fundamental Griswold, Eisenstadt: contraception is fundamental Roe: woman's right to pre-viability abortion is fundamental

"Lochnerizing" – def – stepping in where the court doesn't belong and acting as a super-legislature? Lochner really shows the eternal judicial battle for the justification of the court's interpretations [there is no Constitutional provision telling the court how to make its decisions]: - did the court use person value judgments [called illegitimate second- guessing of legislature in Lochner]; or - was the court finding societal values implicit in the Constitution?

WISE's Summary of Important Substantive Due Process Issues: 1. Pierce, Meyer hint at it 2. concept was used in economic cases, but 3. concept was then abandoned after Lochner era 4. court tries to find another way to protect these sorts of individual liberties, and does so with the penumbra concept in Griswold 5. But substantive due process also mentioned in Griswold concurrence and then in Skinner: which raise issues of – - implicit in ordered liberty - deeply rooted in history & tradition

Substantive Due Process now protects personal rights

A. Antecedents 1. Meyer v. Nebraska (1920s, written in hey-day of economic substantive due process) a. created a broad definition of liberty that basically encompassed everything that did not harm others b. only in emergency situations (e.g., war) could it legitimately be curtailed by the government 2. Pierce v. Society of Sisters a. Pierce Compromise: state can't remove private schools, but it can regulate them to make sue that they teach about democracy and other things in the state's interest 3. Skinner v. Oklahoma (1942) a. economic due process has been discredited b. yet, a sterilization law struck down. DOUGLAS looks for a way to do this without "due process" i. protecting minority groups (i.e., Carolene Products fn. 4) ii. use of equal protection clause to apply strict scrutiny iii. thereby protects a "right" (procreation) not directly in the Constitution

Wise: we must ask ourselves here, if we reject Lochner, how can Griswold, Roe, etc be correct?

B. Contraception – Griswold v. Connecticut - DOUGLAS 1. HELD: rights created by implication in the Bill of Rights may be transferred to the states by the 14th Amend due process clause which create a zone of privacy preventing a law regulating use of contraception within that zone a. specific/express guarantees in the Bill of Rights have penumbras, and these peripheral rights must remain secure so that the specific, enumerated rights also remain secure b. several specific rights create a zone of privacy; contraception between married people should fall within that zone c. Douglas continues to try to find a way to strike down laws without reference to substantive due process 2. Concurrence a. the 9th Amend catch-all permits the right of privacy to exist and apply to all people, rather than 14th Amend b. 9th Amend lends strong support that the "liberty" protected in 5th and 14th Amends is not restricted to rights specifically mentioned in the first 8 amends 3. Concurrence – HARLAN – very important a. no need for the above ratiocinations, just use the 14th Amend on its own to reach the holding that the Connecticut laws are unconstitutional b. rights are "implicit in the concept of ordered liberty" c. liberty is "a rational continuum" that includes "a freedom from all substantial arbitrary impositions and purposeless restraints" 4. Concurrence – White a. laws must meet strict scrutiny under 14th Amend due process clause, though are not automatically invalid if reasonably necessary to the effectuation of a legitimate and substantial state interest and not arbitrary or capricious in application 5. DISSENT a. since text of Constitution does not mention the vague concept of "privacy," but rather the specific right to avoid illegal searches and seizures, the Court cannot create this right out of thin air b. this is a Lochner decision c. change in the Constitution should not be made by judicial fiat and improper interpretation, but by the Amendment process provided in the text of the Constitution 6. Wise – Limitations on the Opinion a. based mainly on "marital" relationship b. stresses physical location (the home) of privacy c. doesn't question the ability of the state to regulate the list of horribles (homosexuality, fornication, adultery)

|DOUGLAS |GOLDBERG |HARLAN |DISSENT | |-tries to tie |-the 9th |-let's just use liberty|-this is | |everything to the |Amendment is|concept and the due |clearly a | |text of the |sufficient |process clause of 14th |Lochner | |Constitution by |for |Amend |decision | |use of penumbras |protecting |-says that Douglas' |where | |-this is his way |the right of|approach is actually |justices are | |of avoiding |marriage |too narrow because it |making a | |Lochner | |can only protect things|legislative | | | |directly related to |policy | |Criticisms: | |what is in the Bill of |decision | |1. doesn't really | |Rights |-nothing in | |distinguish from | | |the | |econ due process | |-responds to accusation|Constitution | |because we could | |that he is |permits | |reach the same | |Lochnerizing: |invalidating | |decision (property| |judges can use their |this law, | |is a penumbra | |personal opinions to |even though | |right) that we did| |resolve cases, so long |we agree that| |with 14th Amend | |as those opinions are |it is stupid | |2. if Constitution| |informed by 1) history;| | |is specific about | |2) basic societal | | |which parts of | |values; 3) knowledge | | |privacy it wanted | |that tradition is | | |to protect, what | |important, but one of | | |logic permits the | |our traditions is | | |creation of a | |breaking from tradition| | |penumbra? | |when it is warranted. | |

C. Penumbras, Liberty, Privacy Doesn't take long for the Griswold decision to be expanded to other related areas, including the "horribles" [guess what, US Supreme Court decisions have penumbras, even if rights do not] 1. Eisenstadt v. Baird a. clarified that the right to privacy found in Griswold was not exclusive to a married couple, but to each individual within that couple. Thus, the court was protecting individual rights. b. right of privacy = "the right of the individual to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child" 2. Carey v. Population Services Intl a. said a state could not prohibit minors from purchasing contraception

D. Abortion[61] 1. Roe v. Wade – we are doing substantive due process here HELD: the right to privacy is broad enough to encompass a woman's decision whether or not to terminate her pregnancy. Therefore, a state criminal abortion statute written without regard to pregnancy state and recognition of other interests[62] involved violates due process. a. only personal rights can be held to be "fundamental" or "implicit in the concept of ordered liberty" b. as a practical matter, an unwanted child is a burden on mother, family, and the unwanted child itself c. the right to privacy is not absolute and unqualified, but must be considered against important state interests in regulation. i. Wade argues fetus is a "person" within the meaning of the 14th Amend A. court says that "person" is clearly used postnatally in 19th century B. even experts don't agree when LIFE begins, so the court shouldn't speculate C. CL tradition has never recognized the unborn as persons in the whole sense ii. because a woman does carry a potential life inside her, at some point the state may intervene in her right to privacy and regulate her decisions d. court cannot decide when life begins because there is no consensus i. therefore, can't we argue that they should have allowed state legislatures to make abortion decisions e. state regulations and compelling interest: i. before 3 months: no compelling interest; no regulation permitted; decision left to woman and doctor A. mortality rate is higher with a full-term pregnancy than with an 1st trimester abortion ii. 3 mo – viability: state may regulate abortion procedures, but not preclude them, due to compelling interest to protect woman from unskilled abortionists iii. viability – birth: compelling state interest in protecting a life capable of surviving outside of womb; may prohibit except when life or health of mother endangered

NB: as medical science advances, full-term pregnancy becomes safer for mother and viability becomes earlier. Eventually, the two overlap and then the decisional framework breaks down.

e. the state's "compelling interest" must stand up to strict scrutiny f. DISSENT – REHNQUIST i. agrees that 14th Amend protects rights beyond the Bill of Rights, but only from deprivation without due process of law, not from absolute deprivation ii. strict scrutiny does not apply; the "rational relation to a valid state object" test in Lee Optical is applicable iii. breaking pregnancy into three stages and outline permissible regulations sounds like legislation; i.e., this is Lochnerizing

2. Doe v. Bolton a. court strikes down a portion of Georgia law that required a woman to, in effect, consult with six physicians before getting an abortion

3. Roe v. Wade and Constitutional Values a. no more penumbras for privacy; 14th Amend directly used b. is Roe distinguishable from Lochner? i. is what Roe really did was allocate decision- making on certain issues on reproduction to the private-sphere and limit public-sphere decisions about it to narrow instances? ii. so, decisions over labor relations are something properly allocated to public sector c. does Stone's fn 4 in Carolene Products apply? i. are women minorities who need to be protected? ii. since they can vote and are a majority, maybe they don't need court protection 4. Abortion Regulation from Roe to Casey a. almost no political restrictions on early-term abortions have been permitted by the Court, except: i. parental consent requirements for minors so long as the req does not "unduly burden the right to seek an abortion" and if there was a judicial bypass procedure so that a parent couldn't impose an arbitrary, absolute veto ii. limitations on public abortion funding a. Maher v. Roe: HELD: Medicaid may be withheld from paying for non-therapeutic, medically unnecessary abortions even though Medicaid pays for childbirth 1. this was upheld under rational-basis review which gives govt wide discretion in choosing among competing demands for limited public funds b. Harris v. McRae: HELD: federal govt may refuse to pay for abortions except in cases of rape, incest, or where mother's life is in danger 1. a woman's freedom of choice does not entitle her to financial resources to avail herself of the full range of her choices 2. STEVENS (dissenting): this law should be struck down because the denial of funding, unlike Maher, reaches medically necessary abortions. c. Rust v. Sullivan: HELD: upheld law prohibiting any project from receiving federal family planning funds from counseling women on their option to have an abortion 1. Due process clauses confer no affirmative right to governmental aid b. Judicial questioning of Roe i. Akron v. Akron Ctr for Repro Health a. still strong Roe support in majority b. OCONNER suggests that the strict scrutiny- trimester framework of Roe should be replaced with "an abortion regulation is not unconstitutional unless it unduly burdens right to seek an abortion" i. first judicial agitation for a new standard of review ii. therefore, must not be saying abortion is a fundamental right, for fundamental rights demand strict scrutiny ii. Thornburgh v. Am Coll OBGYN a. iii. Webster v. Reproductive Health Services a. SCALIA: overrule Roe b. OCONNER: 5. Planned Parenthood v. Casey -statute challenged on its face before it could be enacted [this is technique for prohibiting a law without actual harm] Main points in joint opinion: [OCONNER, KENNEDY, SOUTER] -The essential holding of Roe should be retained because of stare decisis[63] and a woman's liberty interest. This essential holding has three parts: 1. right of woman [derived via substantive due process from the word "liberty" of Due Process Clause] to obtain abortion before viability and obtain it without undue burden from the State because State's interests before viability not strong enough; [i.e., the State cannot place, in purpose or effect, a substantial obstacle in path of woman seeking to abort a nonviable fetus] 2. State may restrict abortions after fetal viability; and 3. State has legitimate interests from the outset of pregnancy in protecting the health of the woman and the life [Roe had basically ducked the issue of "life" and when it starts] of the fetus that may become a child HELD: the undue burden standard is the appropriate means of reconciling the State's interest with the woman's constitutionally protected liberty Therefore, the constitutionality test for a law regulating abortion is "does it place in purpose or effect a substantial obstacle in the path of a woman seeking to abort a non-viable fetus?" [although only 3 justices support this new standard, it is the de facto standard of review for abortion questions as O'Conner and Kennedy probably wouldn't uphold laws using strict scrutiny]

-overrules trimester scheme (because viability and woman's safety have become overlapping since 1973) in Roe and replaces it with a line drawn at viability. Therefore, state may further its interest in protecting potential life, while not restricting right to an abortion before that point -after viability, state may tightly regulate or even proscribe abortion, except where it is necessary to preserve the life or health of the mother -Informed consent and 24-hour waiting period not undue burden because gives woman time to be sure her decision is the right one [how is purpose to encourage child birth not a purpose/effect to place a substantial obstacle?] -therefore, after Casey, state has greater ability to impose a view that abortion is bad (though not prevent it with an unviable fetus) -Spousal notification requirement is an undue burden and cannot be sustained -in a well-functioning marriage, such a requirement is unnecessary; in a poorly-functioning, abusive marriage, the woman would be a slave to her stupid husband's wishes -parental notification permitted, provided there is a judicial bypass procedure -reporting of statistics re: abortions is permitted

STEVENS (Ginsburg/Breyer here) – favors maintaining Roe -informed consent should not be permitted to include the State giving woman brochures that try to encourage her to have the child rather than abort; this is impermissible interference with a woman's decisional autonomy -24-hour waiting period unnecessary and is an undue burden, except perhaps in the case of minors

BLACKMUN -state restrictions on abortion violate a woman's right to privacy in two ways: 1) compelled continuation of a pregnancy infringes on a woman's right to bodily integrity by subjecting her to physical intrusions and risks; 2) deprives woman of right to make her own decision about reproduction and family planning [held as a right in Griswold and Eisenstadt. -implicates gender equality by conscripting women's bodies for its use of increasing population -such restrictions must survive strict scrutiny: i.e., the restriction is both necessary and narrowly tailored to serve a compelling governmental interest -he would maintain the trimester scheme and not use the vague/unclear "undue burden" scheme

REHNQUIST -we should overrule Roe and adopt the rational relationship test as the only criterion of constitutionality; "undue burden" test is a judicial invention -i.e., we should adopt the Webster test: "a woman's interest in having an abortion is a form of liberty protected by due process, but States may regulate abortion procedures in ways rationally related to a legitimate state interest. [cf. Lee Optical] -historical traditions do not support Roe (when 14th Amend adopted, most states had statutes outlawing abortion; in 1973, most states only permitted abortion to preserve life or health of the mother); abortion is not the same as marriage, contraception, procreation because it involves the "purposeful termination of a potential life"

SCALIA (with Rehn, Thomas [and White]): -states may permit abortion-on-demand if they choose; but the Constitution does not require that they do so -it is not a liberty protected by the Constitution because it is nowhere mentioned in the Constitution and traditionally US states were opposed to it. -under rational basis standard, the Penn statute should be upheld -Roe's creation of strict scrutiny is based on a political value judgment, not the Constitution.

6. Implications of Casey -is the Court's take on the spousal notification requirement somehow an acknowledgement of abortion regulation as part of a gender hierarchy? Should the decision be made on equal protection grounds instead of substantive due process?

Mazurek: forbidding certain professionals from performing abortions okay as long as doctor's still permitted to do it. Dissent (Ginsburg, Breyer, Stevens say there seems to have been a clear purpose to make abortions more difficult to obtain, which would violate Casey)

Stenberg: Majority (Breyer, Stevens, O'Conner, Souter, Ginsburg) say a law prohibiting D&X abortions without an exception for health of the mother is unconstitutional under Casey's req that if medical opinion deems a procedure necessary, under some circumstances, to protect a woman's health. Dissent (Kennedy, Rehnquist, Scalia, Thomas): Casey permits a state to take sides in abortion debate after viability and come down on the side of protecting the unborn over the mother's interests. Slippery slope: so long as a doctor can say someone in his profession supports any type of abortion, he can then say it is necessary for woman's health and give that woman an abortion she desires. NB: if Kennedy, who was on the majority in Casey, is not on same side, what does this say for long-term prospects for viability of the Casey decision?

D. Family Relationships 1. ISSUES: does substantive Due Process include a right to marry, divorce, retain relationships with one's children, or decide the composition of the household in which one lives? a. there are three conflicting interests to balance: -the parents -the children -the state 2. Loving v. Virginia (1967) -strikes down the state's ban on interracial marriage mainly on equal protection, but added a substantive due process logic: -marriage is a fundamental human right, essential to the orderly pursuit of happiness by free men and "fundamental to our very existence and survival" [skinner] [-we might, trying to support gay marriage quibble with the fact that it is sex between a man and woman that is essential to survival, not sex within marriage] -this right cannot, therefore, be denied on the basis of racial classifications 3. Zablocki v. Redhail (1978) -under substantive due process notion of liberty, the right to marry is "fundamental" [therefore any law touching it is subject to strict scrutiny; i.e., state must show that its interests do not directly and substantially interfere with that right] -Loving and Griswold established that marriage is fundamental to the right of privacy -this law prohibiting marriage for failure to pay child- support while promoting a legitimate state interest was simply too oppressive of the right of marriage to be upheld STEVENS -Constitution permits direct and substantial regulation of right to marry, but not when an identifiable group is discriminated against with the legislation [in this case, the poor] REHNQUIST – dissent -this should merely be rational basis review, and we should maintain the "traditional presumption of validity" as expressed in cases like Lee Optical 4. Turner v. Safley OCONNER – since marriage is a fundamental right, it remains in place even in prison and any regulation upon it is subject to strict scrutiny. Therefore, law requiring warden to give permission for marriage of inmate is forbidden -further, marriage is often the prerequisite to receiving certain govt benefits and so should not be restricted from those who want its benefits

Extended Family Relationships

1. Moore v. East Cleveland (1977) -government cannot define what is a family 2. Trocel v. Granville (2000) Oconner, Rehnquist, Breyer, Ginsburg -state court decision granting grandparents visitation rights over the objections of a "fit, custodial mother" violated her due process rights -parental rights are fundamental under substantive due process; court should be deferential to parent's decision so long as that parent adequately cares for the child Thomas – concur -stare decisis and substantive due process precedent control this case, and therefore, the plurality holds correctly; even though he thinks substantive due process is nonsense DISSENT STEVENS/KENNEDY – seems clear that Due process leaves room for state to decide what is the impact on a child of a possibly arbitrary parental decision SCALIA – if a right is unenumerated, then laws can infringe upon it because the court should not decide either way

Tradition and Family Relationships – Michael H. v. Gerald D. SCALIA, REHNQUIST – when we resort to tradition, it must be the most specific-level of tradition available (cf. originalism) OCONNER, KENNEDY – should the court choose, it may use a more general tradition, even when a more specific-level of tradition is available

caveat: dear mr. scalia, isn't tradition just as malleable as the concept of liberty and due process that you say is bullshit, signed, Brennan, J. (cf. Harlan in Poe v. Ullman: tradition is to be both valued and rejected)

E. Sexuality 1. Do the rights of married people recognized in the Griswold – Roe line of cases extend to others? If yes, which others?

2. Bowers v. Hardwick (1986) [until Lawrence v. Texas, the only consideration of general sex and fornication issues] REHNQUIST, OCONNER, SCALIA HELD: a person does not have a fundamental constitutional right to engage in consensual homosexuality (NB: how the majority narrows the putative right that is being analyzed). -reversed decision of appellate court that had cited Griswold, Eisenstadt, Roe to support the assertion that the anti-sodomy law violated a right to privacy -no connection between family, marriage, procreation and the acts of homosexuals to engage in sodomy; thus the majority narrows/limits the holdings of the Pierce/Meyer – Griswold – Roe line of cases

-to prevent judicial fiat in establishing unennumerated rights, the court has looked to two ways of grounding such declarations: 1. rights implicit in the concept of ordered liberty 2. rights deeply rooted in this nation's history and tradition -homosexuality meets neither of these criteria -but leaves out Harlan's language that "sometimes we should break from tradition"

-after concluding that homosexual sodomy is not a fundamental right, court must still find a rational basis for upholding the law: legislating morality is that rational basis

DISEENT – STEVENS, et. al. -this case is not about the right to engage in sodomy, but the highly valued right among civilized people, "the right to be left alone" -rights are protected under due process not because they contribute to the general welfare of society, but because they form so central a part of an individual's life [i.e., they are personal rights] -dissent broadens[64] the Pierce – Griswold –Roe line of cases to say that the true right being adjudicated here is the right to conduct intimate relationships in one's home in a way of that person's choosing is fundamental to Constitution's protection of privacy -there is a nexus of intimate conduct and right to privacy

p.572 makes the "protect gay activities" argument for EXAM

NB: the Griswold dicta says that we are not questioning laws against fornication, sodomy, the "evils" presaged what the decision actually would open [the camel's nose is not troubling, but eventually the camel is inside your tent, and that is annoying]

Implications of Hardwick Homosexuality, due process, equal protection -

RECALL that Kennedy, Souter, O'Conner were the joint opinion in Casey 3. Lawrence v. Texas (2003) KENNEDY, STEVENS, SOUTER, GINSBURG, BREYER HELD: Texas statute prohibiting sodomy between two people of the same sex was unconstitutional when the persons engaged in consensual conduct in the privacy of their own homes because it impinged on their exercise of liberty interests under Due Process of 14th Amend. Bowers v. Hardwick is overruled. -"liberty protects from unwarranted govt intrusions into a dwelling or other private places"; liberty presumes an autonomy of self -"in our tradition, the State is not omnipresent in the home" -The statutes at issue here and in Bowers did not merely prohibit a particular sex act, but rather sought to control a personal relationship that is within the liberty of persons to choose [cf. Casey] without being punished as criminals (i.e., dissent is Bowers was correct) -No American historical tradition of making laws aimed specifically at homosexual conduct. To rely on history would require upholding all laws aimed at any form of non-procreative sexual activity -laws against same sex conduct did not emerge until 1970s, and only 9 states have such laws -citing Judeo-christian tradition is using law to enforce one's morality on others; this is unconstitutional. -intimate decisions, choices central to personal dignity and autonomy are central to the liberty protected by the 14th Amend -the concepts of freedom and liberty guaranteed by the Constitution may, can, and do change with the generations; the court must recognize this

OCONNER – concur -she does not overrule Bowers, but would invalidate the Texas statute at issue here on Equal Protection grounds because it targets sodomy only with a same-sex partner [Problem: if you invalidate a law on Equal Protection, that means that the majority can just redraft the law to apply to everyone is society]

DISSENT (SCALIA, REHNQUIST, THOMAS) -while the outcome of Bowers was overruled, the majority did not create a fundamental right to engage in homosexual sodomy [??] -stare decisis: in Casey, 3-judge joint opinion said that criticism of Roe was a reason to reaffirm it, while in this case, they said dispute is reason to overrule -strict scrutiny under substantive due process should only apply to "fundamental liberty interests" that are ALSO "traditionally protected by our society" -any other liberties may be abridged or abrogated by a validly enacted state law if that law is rationally related to a legitimate state interest [i.e., the battle is over a definition of fundamental, traditional liberties; whichever side you choose, the outcome of the case is obvious] -the Texas statute easily meets rational basis as it reflects belief that Texans want to criminalize certain forms of sexual behavior (cf, fornication, bestiality, incest, etc) -says majority's conclusion that homosexual sodomy was permitted by states since it was rarely singled out for criminal statute is nonsense; the Bowers conclusion in this regard should stand -an "emerging awareness" of an alleged liberty does not make it into a fundamental right

Themes for Privacy: 1) bodily autonomy 2) protected liberty interest Levels of Battle on Court in Substantive Due Process Issues: 1) is it a fundamental right or a liberty interest? 2) should the right/interest be broadly or narrowly defined?

NB: in Lawrence v. Texas, court able to protect a right, but without raising it to the level of a fundamental right

Right to Die: not inherent in substantive due process; this is not a topic that warrants heightened scrutiny

Cruzan v. Missouri Dept of Health (1990) REHNQUIST (writing for majority); OCONNER (concur): -a competent person has a liberty interest that includes the right to refuse life-saving treatment -however, when the person is not competent, that right must be exercised by a surrogate -each state can set its own rules of decision for permitting a surrogate to make this decision; therefore, Court permits Missouri to require clear and convincing evidence of the incompetent's wished SCALIA (concur) -courts have no business in this issue; it is for state political process to decide DISSENT (STEVENS) [cf. OCONNER in Glucksberg] -if this liberty interest exists and a person has no interest in continued treatment and the cessation of treatment would not adversely affect third parties, then there can be no possible basis for the State to insist on continued treatment [freedom to be left alone]

Washington v. Glucksberg (1997) – facial challenge REHNQUIST (writing), GINSBURG, SCALIA, THOMAS -state law against "causing" or "aiding" a suicide does not offend the 14th Amend -state also refuses to classify "withdrawal of treatment" as a suicide -narrowly defines the "liberty interest" to be protected as "the right to commit suicide with another's assistance" -note that this is a bodily integrity type claim, which is much weaker than a personal autonomy type claim (as Breyer and Souter below would attempt)

-history/tradition: it has always been a crime to assist suicide; at time of adopting 14th Amend it was a crime in most states; still is a crime in most states today -the technique of looking at what is deeply rooted and implicit in the ordered concept of liberty combined with detailed description of right based on that research, limits crazy judicial creation of nonsense fundamental rights (p. 580) -"personal autonomy" from Casey is not so sweeping as to protect all intimate personal decisions

{WISE mentioned these interests} -state's have an unqualified interest in the preservation of human life (Cruzan); interest in preventing suicide; interest in protecting integrity and ethics of the medical profession;

interest in protecting vulnerable groups from abuse, neglect; state fear that this will be a slippery slope to voluntary or involuntary euthanasia

-since there exists no fundamental "right to die" the law easily meet rational basis review

OCONNER (concur) -since this is a facial challenge, no need to reach a decision on right existing [could such a right exist under the right test case?] Suggests that in an as-applied challenge under the right conditions, law may not be applicable to an individual. For example, with BREYER she might hold that if pain too extreme, to not permit it to be alleviated, even with very high, possibly leathal dose of drugs, it would be improper

STEVENS (concur) -facially, the statute is unconstitutional, but in certain actual impositions on individuals, it may be invalid -argues that individuals have a liberty interest in preserving the diginity of their deaths and the memories that survive them (cf. Cruzan)

SOUTER (concur, but for different reason) -we simply need to see if laws create "arbitray impositions" or "purposeless restraints"; i.e., due process protects the freedom to be left alone (cf, Harlan in Poe v. Ullman) – a sort of balancing approach -ways to make the argument that it is a right (following Poe) 1. suicide has been decriminalized (one of society's breaks from tradition) 2. this act by the state of decriminalization gives freedom of choice much like that in instances of bodily autonomy (e.g., abortion)

3. there exists a traditional right to medical care and counsel to allow the patient to make the final decision (e.g., abortion – it is a woman's choice, though she will likely consult a doctor) -however, this current law is not arbitrary and purposeless due to state's asserted right to prevent involuntary euthanasia

BREYER (concur) -would use a much broader formulation of the right to be tested as "the right to die with dignity" (i.e., look to the personal control/autonomy issue)

NB: five justices hint that in an as-applied challenge, they may be willing to strike down a similar law (GINSBURG, SOUTER, STEVENS, OCONNER, BREYER) -While SOUTER & STEVENS seem to suggest that there may be a liberty interest in active assistance in suicide or death with dignity

Vacco v. Quill (1997) only four justices in majority There is a distinction between assisted suicide and withdrawing life sustaining treatment: -Assisted Suicide -patient dies from medication -doctor and patient have intent to end life -Withdrawing treatment -patient dies from underlying disease -not necessarily intent to end life [STEVENS not convinced that in majority of cases the intent of parties will be much different] -court says that the right to refuse treatment is grounded in bodily integrity and freedom from unwanted touching, not a "right to hasten death"

Right to Die and Supreme Court Opinion |suicide when one|withdrawal of |physician |active | |is healthy or |life support |assisted suicide|euthanasia by a | |temporarily ill |when on is |when one is |physician when | | |terminally ill |terminally ill |one is | | | | |terminally ill | |generally no |competent adult | | | |right to commit |may refuse or | | | |suicide; state |surrogate make | | | |interest in |the decision, in| | | |preventing it so|conformance to | | | |that depressed |any state laws | | | |people can get |(Cruzan | | | |treatment |following CL | | | | |rule that forced| | | | |medical | | | | |treatment was | | | | |battery, | | | | |therefore, | | | | |comporting with | | | | |history and | | | | |tradition) | | |


The claim that due process requires some form of individualized hearing. Typically, claimant asserts some relationship to government (employee, licensee, welfare recipient) and claims that it cannot be terminated without a hearing. -there is no right to due process, only a right not to have life, liberty, property deprived without it

To answer the question, court must decide what "liberty" and "property" in the 14th Amend mean. From 1970s, the court has increasingly found that the interest sought to be protected is not included in the constitutional notion of liberty and property. Furthermore, the court normally draws on state law of federal legislation as the limiting principle.

policy: increased fear that if hearing required for everything, states may stop providing benefits (e.g., welfare) that they were not required to provide in the first place

EXAM: know Roth, Loudermill, Eldridge

|Case Name |Holding |Liberty |Property definition | | | |definition | | |Goldberg v. |evidentiary | | | |Kelly (1970) |hearing required | | | | |before welfare | | | | |benefits | | | | |terminated | | | |Board of |no right to |procedural due | | |Regents v. |hearing before |process applies | | |Roth (1972) |terminated from |only to the | | | |job |deprivation of | | | | |interests | | | | |encompassed by | | | | |the 14th Amend's| | | | |protection of | | | | |liberty and | | | | |property; | | | | |to determine | | | | |those interests,| | | | |we must look to | | | | |the nature of | | | | |the interest | | | | |protected, not | | | | |its weight | | |Perry v. | | |since a de facto | |Sindermann | | |tenure system | |(1972) | | |existed, S entitled | | | | |to hearing on | | | | |whether he had this | | | | |property right | |Arnett v. |rejected federal | |the law had | |Kennedy |civil service | |established removal | |(1974) |employee's claim | |procedures, which | | |to hearing prior | |did not include a | | |to dismissal | |hearing; where grant| | | | |of a right is bound | | | | |up with procedures | | | | |to determine that | | | | |right, a litigant | | | | |must take the bitter| | | | |with the sweet | |Bishop v. | | |"at will" employees | |Wood (1976) | | |have no property | | | | |interest, unless | | | | |state or local law | | | | |creates on for them | |Cleveland Bd |due process | |while a state law | |Ed v. |requires that | |can create a | |Loudermill |life, liberty and| |property interest, | |(1985) |property cannot |only REHNQUIST |if the law's | | |be deprived |dissented |procedures are not | | |except by | |valid for removing | | |constitutionally | |that interest, it | | |adequate | |will be a violation | | |procedures [the | |of due process | | |bitter with the | |in other words, the | | |sweet is wrong] | |question "what | | | | |process is due?" can| | | | |only be answered by | | | | |the Constitution | |Paul v. Davis|injury to |for reputation | | |(1976 – |reputation by |to be protected | | |problematic |police public |as a liberty | | | |shaming of |interest, it | | | |shoplifter not a |must be coupled | | | |deprivation of |with a more | | | |liberty |tangible | | | | |interest (such | | | | |as employment); | | | |narrow definition|liberty is | | | |of liberty |merely what the | | | | |Framer's said: | | | | |"freedom from | | | | |restraint" | | |Vitek v. |involuntary |liberty interest| | |Jones (1980) |transfer of a |may emanate from| | | |prisoner to a |powerful federal| | | |mental hospital |interests apart | | | |implicates a |from state-law | | | |liberty interest;|rules | | | |a hearing is | | | | |required | | |

PROPERTY The Roth Approach: "the nature of the interest" -although it is the Court that ultimately will characterize the nature of the interest, the interest itself must have been created by state law

-existence of an interest: state law -significance of an interest: federal law


Paul v. Davis Approach -confined "liberty" to the Framer's definition of "freedom from restraint" -seemed to permit reprehensible conduct, such as torts

Once an interest is found, how does court determine what process is due? Mathews v. Eldridge (1976): balancing test looking at the interest involved, the risk of erroneous deprivation will determine if there is a need for a brief hearing or a trial-like procedure, and the Government interest ----------------------- [1] this is definitely higher than intermediate, as it qualifies "substantial" govt interest used in the intermediate scrutiny test [2] Group of voters sued Tennessee in federal court to have federal govt force the state to reapportion voting districts. Court majority holds there is no political question and Guranty Clause is not implicated in the case. [3] In class hypo: What happens if you bring a challenge based on the Guaranty Clause (Art IV, § 4) in state court rather than federal court? Would the state court have to throw it out the way the federal court would? If the issue is truly that of separation of powers, then it seems the State court could handle the issue. [I add: but is this true, since there could never be any review of the state court's decision by the federal judiciary.] [4] The "strict necessity" formulation comes from a 1947 decision. Wise says: under the Warren court, US Supreme Court began to reach out and adjudicate a broader range of cases. [5] aka, "a cognizable legal interest." Also, harm may be indirect, but this makes it difficult to prove standing (p. 51) [6] note this class always seems to look to Constitutional reasons as well as prudential reasons for things [7] In other words, the US Supreme Court held that such legislation by Congress violated the case/controversy req of Art III. [8] As said in Marbury: "the province of the court is solely to guarantee the rights of individuals." The vindication of the public interest (i.e., making and enforcing laws) is for the Congress and Executive. [9] e.g., student seeks injuction against school; he graduates before final appeal; therefore, the case is mooted. However, if he also sought $50k in damages, the entire dispute remains alive [10] note that this overlaps with standing [11] Marshall interprets this broadly in the case; Maryland wanted it interpreted narrowly. In other words, although no express power to charter national bank, it can be permitted by this language and reasoning [might be good on an exam!!] [12] Seems like it would be good to know these for final [13] Decision represents "one variant on judicially implied state disabilities to act in the federal sphere." Others are: dormant commerce clause and interstate right-to-migrate. Also, federal govt is judicially limited from interfering in state sphere. Compare Kennedy's position in US Term Limits and US v. Lopez. [14] Is this an example of representation-reinforcement? I.E., do term limits place negative externalities on citizens of other states (cf, tax on national bank in McCullogh) by reducing the experience and quality of representatives from another state? [15] "Our system of government rests on one overriding principle: all power stems from the consent of the people." [16] The power to regulate commerce is the power "to prescribe the rule by which commerce is governed" (says Marshall later in this case). [17] p. 120: as time goes on, we see more external sources of interpretation of the commerce clause, such as in notions of federalism and in the 10th and 11th Amendments [18] p. 123: this holding suggests that "the nexus between the local and the interstate was a formal, qualitative one of logical relationships, rather than an empirical, practical one of economic impacts." [19] "Congress may carry out its views of public policy whatever indirect effect they may have upon the activities of the states" (129). [20] one of only two cases in which the court has struck down law on nondelegation grounds [21] NB: Wise purposefully made this argument in class; know for final. Prof mentions that necessary and proper power is not independent; it must always be related back to another power granted by the Constitution. [22] in other words, the Court in all of these cases looks to what the policy behind Congress' legislative decision was and then applies it to the facts. In this case, the rationale was to prohibit an overabundance of wheat, therefore, growing to much for yourself would fall within that policy and therefore the act applies. note this process for exam writing [23] Def rational basis review: Congress makes a finding of fact and then passes a statute to deal with the issue; the Court need only decide if Commerce Power thus had a rational basis relation to the fact [often determined through affectation and aggregation] [24] Emphasized in class: 1) does the statute contain a jurisdictional trigger purporting to link it to interstate commerce? [no, 152]; 2) importance of legislative fact-finding; 3) federalism: local vs. federal issue being regulated [25] I.e., are there things outside the Commerce Clause (I, 8, 3) itself that impose limits? [26] 11th Amend was enacted as a direct reponse to Chisholm v. Georgia (1793) where a citizen of S. Carolina was permitted to sue Georgia, pursuant to the language in Art III. [27] this language comes from Justice Marshall in McCulloch v. Maryland (1819): "should Congress, under the pretext of executing its powers, pass laws for the accomplishment of objects not entrusted to the government," the Court would have to rule those laws unconstitutional. [28] This is Hamilton's argument. Madison had suggested that the spending power cannot stand alone and can only be exercised as an extension of the powers enumerated in Art I, §8. [29] EXAM: Would the court have enforced this had it been 50% or 100% of highway funds, or would that have been considered to coercive?? cf Butler and coercion language [30] 251n2: example of when a facially discriminatory law is permitted with baitfish in Maine [31] Pike balancing decisions often also point to protectionism. [32] def representation reinforcement: judicial review is needed to protect interests that will be systematically disadvantaged in the political process [cf. Baker v. Carr] [33] i.e., dormant commerce clause is in great tension with the new federalism of the modern court [34] cite Dean Milk for this proposition – NB FOR ALL IMPORTANT CASES, SUM THEM UP IN A PHRASE (like in CivPro) [35] i.e., this is a valid motive [compose list of valid and invalid motives] [36] Wise: always look to this double motive in cases; "the three different approaches under Dormant Commerce Clause overlap each other a bit – good for EXAM" [37] good case to distinguish from Dean Milk and Hunt [see footnote in book, 293, that does this] [38] compare to MITE corp, p. 295 [39] both field preemption and conflict preemption are applied under factually specific conditions; that is, in an ad hoc manner to each case – there is no set formula [40] Possible EXAM thing: McCarran Act of 1945 exempted state regulation of insurance industry from commerce clause restrictions, but not from Equal Protection clause protections (327). [41] NB – not all disputes between executive and legislative branches become judicialized: political question, not ripe, all the other reasons. compare this case to Ex parte McCardle [42] DISSENT (358) - modern govt delegates so much power to administrative agencies that it is clear that what they are doing is law making. So, why should Art I be read to prevent the Congress from having a check on this lawmaking power that only Congress was able to delegate in the first place? [43] congress continues to pass and president to sign laws that contain these vetoes. therefore, the other two branches are thumbing their noses at the judiciary?? [44] clearly, if it is possible to make a formalistic argument, that is best because it is based in text [45] MUST know the three parts of Jacson concurrence in Youngstown. When adopting a functionalist approach to separation of powers, Court always uses the tripartite heuristic. [46] Chadha makes clear that congressional control over the execution of laws is constitutionally impermissible (371). [47] must be passed by both Houses of congress and signed by the President [48] does this mean that if you can justify a Congressional power textually, then it trumps an inference you can make from another part of the Constitution? [49] p. 377 – emphasized by Wise [50] separation of powers is always a structural argument [borderline between formalism and functionalism because the idea is created by the text, but applied in a more wishy-washy way] [51] court adopted this approach, but as of today, nearly all of the rights have been incorporated anyway! [52] These amendments specifically state in their text that Congress may enforce them through legislation. [53] Wise – "this clause may have been a better candidate to protect the rights of people because it has a substantive ring to it; whereas Due Process and Equal Protect sound very procedural." [54] Wise focuses on these other clauses as the key area the Courts uses to protect/extend rights to citizens [55] Wise: what makes this decision so interesting is that it holds out the possibility for a reinvigoration of the P&I Clause of the 14th Amendment. [56] couldn't use Due Process clause to apply to states in 1st half of 19th century because it didn't exist; the federal government, however, had a due process clause in Amend V that applied to it. [57] soon became clear that court was trying to make too many things into contracts in order to regulate them [58] Miller v. Schoene: legislature decreed all red cedars within 2 miles of apple orchards be destroyed in order to prevent infection of apples. Legislature made a judgment to protect one type of property (apple orchards) that it deemed more valuable to the public and destroy another type. The state paid only for the cost of removal of the trees, not any loss of value to property missing trees. Court says that this is fine. [59] Note: this is unusual for SCALIA because he does not look to original intent because regulatory takings do not appear to have any place in original intent. Takings both in the late 18th century and implicitly in the text of the Amendment seem to be direct, obvious expropriations. SCALIA appears to be following Holmes in Penn Coal: i.e., it's a question a degree, people. [60] Wise says to compare with South Dakota v. Dole [61] this case raises all of the questions about what is the appropriate role of the court; what are justifications for judicial intervention; etc. Raise these issues on EXAM [62] in the end, then, due process decisions are balancing tests? [63] dissenters laugh at this and say: shit, stare decisis either means you keep the opinion or you overrule it. don't just pick and choose. [64] good EXAM/argument technique: when a precedent is bad for you, you narrow its implications; when a precedent is good for you, you broaden the area to which it applies

----------------------- examine impairment relative to entire property interest


any impairment in property interest

Wise: Takings requirements: - eminent domain power is implied in the text of takings clause because it says government may take land so long as it pays for it -taken for public purpose -government must pay just compensation (these final two the source of litigation)

NB: the opinion squarely went to a woman's rights, rather than making it a medical issue as Blackmun had in his Roe opinion