This action might not be possible to undo. Are you sure you want to continue?
Textual: Argument that considers the words and language of the text. (ex: First Amendment establishing “preferred” rights – “Congress shall make no law”) ii.Historical: Argument that relies upon the intention of the drafters, the events that produced the provision, or similar kinds of appeals to history. iii.Structural: Argument that infers relationships among the entities set up or recognized by the Constitution and interprets its provisions accordingly. iv.Doctrinal: Argument that refers to tradition of received wisdom, usually to the precedential implications of the Supreme Court’s decisions; fancy word for “precedent.” v.Prudential: Argument that depends upon the practical consequences of differing interpretations, or in other words, a “policy” argument. vi.Ethical: Argument that relies on moral or ethical grounds. Differs from prudential in that prudential emphasizes the consequences of an interpretation in the practical sense, and ethical argument emphasizes the rightness-or-wrongness or moral content of the interpretation. JUDICIAL REVIEW A. OVERVIEW i. Const. Art. III, § 1, cl. 1 (Judicial Vesting Power): THE JUDICIAL POWER OF THE UNITED STATES, SHALL BE VESTED IN ONE SUPREME COURT, AND IN SUCH INFERIOR COURTS AS THE CONGRESS MAY FROM TIME TO TIME ORDAIN AND ESTABLISH. THE JUDGES, BOTH OF THE SUPREME AND INFERIOR COURTS, SHALL HOLD THEIR OFFICES DURING GOOD BEHAVIOUR, AND SHALL, AT STATED TIMES, RECEIVE FOR THEIR SERVICES, A COMPENSATION, WHICH SHALL NOT BE DIMINISHED DURING THEIR CONTINUANCE IN OFFICE. ii.Const. Art. III, § 2, cl. 1 (Cases and Controversies): THE JUDICIAL POWER SHALL EXTEND TO ALL CASES, IN LAW AND EQUITY, ARISING UNDER THIS CONSTITUTION, THE LAWS OF THE UNITED STATES, AND TREATIES MADE . . . iii.Const. Art. III, § 2, cl. 2 (Limiting Power of Congress): IN ALL CASES AFFECTING AMBASSADORS, OTHER PUBLIC MINISTERS AND CONSULS, AND THOSE IN WHICH A STATE SHALL BE A PARTY, THE SUPREME COURT SHALL HAVE ORIGINAL JURISDICTION. IN ALL THE OTHER CASES BEFORE MENTIONED, THE SUPREME COURT SHALL HAVE APPELLATE JURISDICTION, BOTH AS TO LAW AND FACT, WITH SUCH EXCEPTIONS, AND UNDER SUCH REGULATIONS AS THE CONGRESS SHALL MAKE.
REVIEWING AND OVERRULING ACTS OF CONGRESS i. RULE: Federal Courts have authority under constitution to declare acts of congress and acts of executive as unconstitutional, and can strike them down and invalidate them. Thus, the Supreme Court has the power to review Acts of Congress and determine their validity against the Constitution. 1. Ex: Marbury v. Madison: The background of the case was a political struggle between John Admas and the Federalists,
and his successor Thomas Jefferson and the Republicans. Just before leaving office, Adams appointed a number of new judges, including several justices of the peace for the District of Columbia. Commissions for these justices of the peace had been signed by Adams, but not yet delivered by the time he left office. The Jefferson Administration then refused to honor the appointments for which commissions had not actually been delivered prior to the end of Adams’ term. Several of the would be justices, including Marbury, brought suit directly in the Supreme Court. They sought a writ of mandamus compelling the delivery of the commissions. The writ of mandamus action was brought under the Judiciary Act of 1789, Section 13. a. Right to Commission: Marshall found that Marbury had a right to receive his commission. b. Remedy: The Judiciary Act allowed a mandamus action; the appropriate cause of action and the appropriate remedy. 2. Mandamus NOT Allowed: Judiciary Act of 1789 – Section 13 At Odds with the Constitution: The Act provided that the Supreme Court has original jurisdiction over writs of mandamus. The grant of original jurisdiction was in conflict with Article III, §2 of the Constitution: a. Const. Art. III, §2, cl. 1 (Cases and Controversies): THE JUDICIAL POWER SHALL EXTEND TO ALL CASES, IN LAW AND EQUITY, ARISING UNDER THIS CONSTITUTION, THE LAWS OF THE UNITED STATES, AND TREATIES MADE… b. Const. Art. III, § 2, cl. 2: IN ALL CASES AFFECTING AMBASSADORS, OTHER PUBLIC MINISTERS AND CONSULS, AND THOSE IN WHICH A STATE SHALL BE PARTY, THE SUPREME COURT SHALL HAVE ORIGINAL JURISDICTION. 3. HOLDING: Marshall, however, refuses to grant the mandamus. Allowing the Supreme Court to have original jurisdiction over this writ of mandamus action violates the Constitution. a. Const. Art. III, 2, cl. 2 provides an exhaustive list of options under which the Supreme Court may exercise original jurisdiction. In all other cases, the Supreme Court shall have appellate jurisdiction. Thus, Marshall relies on the “inclusion of one is the exclusion of another” argument. b. Therefore, the Judiciary Act of 1789, Section 13, providing for original jurisdiction over writs of mandamus for the Supreme Court is unconstitutional; not within the scope of the Supreme Court’s power as provided by the Constitution. ii.Supremacy of Constitution 1. If the Supreme Court identifies a conflict between a constitutional provision and a congressional statute, the Court has the authority (and a duty) to declare the statute unconstitutional and to refuse to enforce it. (Textual Argument) a. Supremacy Clause: Article VI, Section 2: “This Constitution, and the Laws of the United States which
shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” i. The framers of the constitution contemplated that instrument (the Constitution) as a rule for the government of courts, as well as of the legislature. b. Interpretation of Supreme Court’s jurisdiction under Article III, Section 2. “The Judicial Power of the United States is extended to all cases arising under the Constitution.” 2. Who Interprets? Structural Argument: “It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.” 3. Historical Argument: Framers intended for checks and balances among the branches of governments. iii.Could Marshall have avoided the Constitutional issue?: Yes, could’ve declared lack of jurisdiction, which is generally what most courts do if there is an implication of an unconstitutional statute.
the relatively apolitical judiciary will interpret the Constitution to reach these ends. Pros and Cons Cons Anti-democratic. Prevents Tyranny of the Majority.” Abuse of power. Every time the Supreme Court strikes down a statute as unconstitutional. Counter majoritian: People elect. 4 . Judicial expertise. All federal judges have life tenure and are subject to removal only by impeachment. Doctrine of Avoidance: Sometimes. but they do not decide it. 1. Thus. when the Court strikes down an act of Congress. Courts should avoid interpreting a statute to involve a constitutional issue. the Supreme Court may be required to address a constitutional issue. because of the cardinal principle that the Court will first ascertain whether a construction of the statute is fairly possible by which the constitutional question may be avoided. judicial overreaching. recognize rights of minority. “we are confronted by the fact that the one nonelective and non-removable element in the government rejects the conclusion of the two elective and removable branches. it is acting anti-Democratic. justices are lifers and unreviewable.Judicial Review Pros Need to act as a check on the other branches to prevent the tyranny of the majority.
Co. The Supreme Court’s interpretation of the Constitution is binding on state legislatures and executive and judicial officers. not the State courts. AND UNDER SUCH REGULATIONS AS THE CONGRESS SHALL MAKE. 1. b. in particular. religious. c. (Solution – See Below) v. Still minorities must have some protection. Congress passed a law repealing the portion of the 1867 Act. he appealed under a 1867 congressional statute. WITH SUCH EXCEPTIONS.Categories of Cases where Robust Judicial Review is Favored – United States v. and it is up to the federal courts to determine constitutionality. Clear textual violation. Political branches cannot resolve the issue. BOTH AS TO LAW AND FACT.with Majority Rule: Under our Democracy. b.The Court’s Political Environment: Separation of Powers. Independent Duties of Co-ordinate Branches.Art. national. vi. Ex Parte McCardle: McCardle was imprisoned by a military government imposed by Congress. He brought a habeas corpus action in federal circuit court. Review of statutes directed at “discrete and insular minorities. Supremacy Clause: Federal law trumps State law. § 2. But neither can draw the dividing line. the Constitution is the law of the land…It follows that the interpretation of the Fourteenth Amendment enunciated by this Court in the Brown v. 2. Judicial review particularly justified when: a. because doing so would create tyranny by one or the other. Aaron: Arkansas state officials claimed that they were not bound by a federal court desegregation order. Board of Education case is the supreme law of the land… C. Carolene Products. CONGRESSIONAL CONTROL OF FEDERAL COURT JURISDICTION i. Article III itself suggests that Congress may place certain limits both on: (1) the Supreme Court’s appellate jurisdiction. After the circuit court rejected his claim. THE SUPREME COURT SHALL HAVE APPELLATE JURISDICTION. It is the federal judiciary duty to interpret and determine what is valid under the constitution. cl 2: IN ALL THE OTHER CASES BEFORE MENTIONED. Ex: Cooper v. but before handing down its decision. Congress can restrict APPELLATE jurisdiction of the Supreme Court . III. a. and (2) on the jurisdiction of the lower federal courts. Supreme Law of the Land a. charging the Acts under which he was convicted as unconstitutional. Under Article IV of the Constitution. After the Supreme Court listened to oral argument. authorizing the grant of habeas corpus by federal circuit courts and also authorizing appeal to the Supreme Court in such cases.The Madisonian Dilemma – Reconciling Minority Rights 5 . 1. which allowed iv. and the Problem of Defiance 1. majorities generally are entitled to rule simply because they are majorities. or racial minorities.
2 iii. 1 6 . a. Bitty: In establishing “exceptions” Congress must have “due regard to all the provisions of the Constitution. HELD: The Court upheld Congress’ restriction of the Court’s jurisdiction. Due Process Clause of the 5th Amendment. cl. Thus. Ex: United States v. III. 1. NOTE Habeas Corpus: Common Law writ that says you were withheld unlawfully.e. Indiviual rights in constitution). Under the consitution. and (2) infringed on the judicial power because it basically forced the judiciary to abandon a rule of evidence enunciated in a previous case.Supreme Court’s Original Jurisdiction: Congress cannot alter original jurisdiction of the Supreme Court. Ex: United States v. i.” This was such an exception. Art. can no longer here cases on abortion or school prayer. i. cl. HYPO: Suppose Congress passed a law that federal courts. i. 1. Congress would be limited in this respect. Limitations on Congressional Power to Create Exceptions: Congress does not have unlimited power to tamper with the Supreme Court’s appellate jurisdiction over lower federal court decisions. Klein: Invalidated a congressional “exception” to appellate jurisdiction over a class of cases arising in the then-new federal Court of Claims. Equal Protection Clause. the appellate jurisdiction of the Supreme Court is “conferred with such exceptions and under such regulations as Congress shall make. See Const.appeals to the Supreme Court. RULE: Any jurisdictional limitation must be neutral. b.Application to lower federal courts: Congress has the power to create them and abolish them. § 2. 1. If a Congressional attempt to limit appellate jurisdiction unduly interferes with executive or judicial power. See Const. § 1. III. ii. 2. including Supreme Court. RULE: Congress is further limited if taking away appellate jurisdiction would violate some other provision of the Constitution (i. Congress purported to deprive the Supreme Court of its right to decide the case or any similar case. Art. The Court held that the statutory exception violated separation of powers because it was directed at two impermissible ends: (1) it impaired the Executive’s pardoning power. 1st Amendment.
RULES FOR REVIEWING STATE COURT DECISIONS i. 15th. the Constitution abrogates state sovereignty in a number of important ways and the Supremacy Clause clearly indicates that state judges are bound by the Constitution. arising under this Constitution. 10th. 19th Amendments. Const.1: Since Article II grants the Court appellate jurisdiction over all cases arising under the Constitution. THE LAWS OF THE UNITED STATES. ii. i. III. in Law and Equity. b. the Supreme Court exercises its appellate. and Treaties made. Textual a. Avoid State Favoritism iii. Virginia COA held for Hunter.No Review of State Law Issued: The Supreme Court may determine whether a state court has reached a decision that is not in conformity with the Constitution. Policy Arguments a. AND TREATIES MADE . Virginia refused to obey Supreme Court’s mandate arguing that the appellate power of the Supreme Court did not extend to the Virginia Court under the Constitution. 2. Uniformity: It is necessary to have uniformity in decisions throughout the nation interpreting the Constitution. Virginia confiscated Martin’s land and granted a portion to Hunter. ii. Hunter’s Lessee: During the Revolutionary War. Federal courts can review state court decisions. 1. but it may not review state court decisions that merely adjudicate questions of state law. “The judicial Power shall extend to all Cases. the grant must include those that arise from state courts. Hunter sued Martin to eject from property in Virginia state court. FEDERAL COURT REVIEW OF STATE COURT DECISIONS A. This supports compatibility of appellate jurisdiction over State tribunals. GENERAL i. but only to the extent there is a federal question involved. Ex: Martin v. ARISING UNDER THIS CONSTITUTION. cl. rather than original jurisdiction. Art.Digest of the Constitution (esp. Federal Question: Here. IN LAW AND EQUITY.Rationales for Review of State Court Decisions 1. . B. Full Faith and Credit Clause. 12th. § 2. boldface parts): Equal Protection Clause. 1 (Cases and Controversies): THE JUDICIAL POWER SHALL EXTEND TO ALL CASES. Article II Section. Article III. under their Authority…” b. or which shall be made. 2. 17th. cl. the Laws of the United States. HELD: The Court held that the Court could review the constitutionality of a decision by a state’s high court. Supreme Court reversed and issued mandate directing Virginia court to enter judgment for Martin.III. Article VI Supremacy Clause: No state sovereignty over Constitutional interpretation. 7 .
only if it is a Federal Issue. the federal court can have “pendent” jurisdiction over the state issue.This section discusses preconditions that must be satisified before a federal court will adjudicate a lawsuit or constitutional challenge. §2’s limitation of federal jurisdiction to “cases and controversies. a. Only if the case satisfies all of these preconditions will the case be deemed justiciable. 1 (Cases and Controversies): See Above. Const.Pendent Jurisdiction: If state law question is related to a federal question. cl. The Refusal to Review Judgments Resting Upon “Independent and Adequate” State Grounds (Michigan v.” and (2) NonConstitutional Prudential (discretionary) considerations. LIMITS ON JUDICIAL POWER: JUSTICIABILITY A. State courts can avoid this result by including the requisite plain statement. Art. regardless of what the federal court would say regarding the federal issue.iii.” b. B. If state courts’ resolution of state law issue resolves the case anyway. GENERAL i. The preconditions come from: (1) Article III. 1.Direct Appeals from state courts to Supreme Court: Some appellate review. NO ADVISORY OPINIONS 8 . same rules apply when state law is involved. § 2. federal court should decline to take the case due to presence of an “adequate and independent state ground. Long – Justice O’Connor): Constitution does not expressly define jurisdiction over state judgments. If the four corners of the state court opinion did not reflect a plain statement of an independent and adequate state ground for the holding. The Court has declined to review state judgments that rest upon independent and adequate state law grounds. III. the Court would presume that there were no such grounds and that it has jurisdiction. iv. ii. IV.
An Adivsory Opinion is an opinion that gives advice about 9 . §2 limits federal jurisdiction to “cases” and “controversies. Thus.” which means that he must have a significant stake in the controversy to merit his being the one to litigate it. United States: In 1902. 3.O.The Current Tests for Standing: Article III and Prudential Requirements 1. thus leading the Court to make an unwise decision. Congress distributed to certain individual Cherokkee Indians lands owned by the Cherokee Tribe. Structural Argument: Judiciary is a passive branch. whereas the other preconditions of justiciability focus on the nature of the issue being litigated. with a right of appeal to the Supreme Court. then and only then. and 4. in the U. Waste of limited judicial resources in deciding a question that may never arise. HELD: By the express terms of the Constitution. 2. The C. The Supreme Court’s rules on standing are a blend of: (1) requirements deemed to be imposed by the Article III “case or controversy” requirement. Court of Claims on behalf of all claimants under the 1902 Act. It has to wait before a proper case comes before it.particular legislative or executive action. a. duly instituted in courts in proper jurisdiction. A litigant must have “standing to assert his claim.S. b. RULE: Article III.” The federal courts are thus prevented from issuing opinions on abstract or hypothetical opinions. c. Fearing that the Act may be unconstitutional. Nonzealous advocacy/failure to develop the facts. ii. the exercise of judicial power is limited to “cases” and “controversies. when no party is before the court who has suffered or imminently faces specific injury.S. can it rule. and (2) prudential or discretionary requirements (non-constitutional judgments about what constitutes wise policy on administering the judiciary). 1. NOTE: A “case” is a suit instituted according to the regular course of judicial procedure. Avoid Unchecked judicial power. OTHER PRECONDITIONS OF ADJUDICATION: STANDING i. a. Collusive Litigation iii. standing ficuses mostly on the party asserting the claim.State Provisions for Advisory Opinions 1. Ex: Muskrat v. To avoid a “Catch-22” (Passing law without declaration of constitutionality and unable to obtain a declaration unless it first passes the law) some states empower the judicial branch to render advisory opinions on proposed legislation. ii. Congress provided in the Act that four named individuals could file suit against the U. i.Policy Rationales for No Advisory Opinions 1. upheld the distribution and Muskrat appealed to the Supreme Court.C.” and the judicial power is the right to determine actual controversies arising between adverse litigants.
” b. and c.is not free to override the Supreme Court as to an element of standing found within the “case or controversy” requirement. this element will not be satisfied and standing will not be found. Americans United for Separation of Church and State): The Plaintiff must show: a. if the threatened harm is too far in the future. Consequence: This distinction provides that Congress 10 .Can be non-economic: For instance. The factors include: a. Camp): Supplementing these Article III minima are various prudential or discretionary requirements. the invocation of which often depends upon the Court’s desire to engage in constitutional lawmaking in a particular case. b.” This Exception is prudential and is merely discretionary. Thus. the plaintiff must show that his interest in the controversy is somehow more direct and a. an environmental group could allege that federal de-forestation laws injured “aesthetic and environmental well-being. 3. i. The Court has never been willing to hold that the generalized interest of a citizen in having his government behave constitutionally is sufficient to permit the litigation. Injury: Some actual or threatened injury. HYPO: Brashier breaks Kiel’s window. Must be “actual or imminent”: If threatened. economic or otherwise.Constitutional Jus Tertii Exception: “On the part of the third party. Each factor comes armed with exceptions. Personal Legal Rights: The plaintiff must normally assert personal legal rights. not those of third parties. Can Mulroy sue for the damage? No. Redressability: The injury must be redressable by a decision favorable to the plaintiff or a possibility that the plaintiff will get relief. Article III Requirements: Valley Forge Minimum Test (Valley Forge Christian College v. the injury must be imminent and not conjectural. 2. 1. i. Concrete and Particularized: The Court usually refrains from adjudicating questions of wide public importance that amount to “generalized grievances” common to all citizens. Prudential/Discretionary Factors (Association of Data Processing Organizations v. or too speculative. Therefore. ii. Casual Nexus: The injury must be fairly traceable to the actions of the governmental defendant (typically a violation of the Constitution or of a federal statute). but it is free to override the prudential concerns. ii. Ex: Court has allowed doctors to sue abortion regulations on belhalf of their patients.
Could threaten to burn a flag. As a practical matter. Possibly a parent of a child in that group. Zone of Interest: A plaintiff claiming economic injury. and the only relief sought is prospective. must normally fall within “the zone of interests” protected or regulated by the statutory provision in question. What if the student stays in the school. but then transferred to another school? i. you can substitute another harmed student for another harmed student to avoid the mootness issue. There must be a high probability that the injury is likely to take place soon or are suffering it now. this issue would be moot! d. c. Congress passes a law preventing flag burning if the purpose is to be unpatriotic. Standing/Mootness Hypo: A school allows some groups to use facilities after hours. Must be an actual injury that is existing or is imminent and it cannot be speculative and conjectural. 4. b. A: Non-justiciable because it is not ripe. Who has standing? a. then. not his individual capacity. but events occurring after the filing have deprived the litigant of an ongoing stake in the controversy. Can I sue to enjoin enforcement of the statute? a. c. I cannot show actual threat or injury. probably have standing because it is pretty imminent. OTHER PRECONDITIONS FOR ADJUDICATION: MOOTNESS i. the Court’s practice has been to dismiss the case as moot. Ex: Bender v. Ex: A challenged statute expires or is repealed or is significantly amended pending review. A: No.Standing Hypo’s 1.individualized than that of the citizenry at large. Ripeness Variation: What if you think you might one day burn a flag in 10 years? a. but graduates before the case goes to court? i.” iii. A member of the group that was caused an injury by not being able to use the school. Williamsport Area School District: Students successfully brought suit against members of a school board. due to governmental action favoring the plaintiff’s competitors. but not my group because we’re a Jewish group. 1. 2. d. What about a parent of a child who was in the group. thus preventing the Article III requirements to remain alive during the entire litigation.” A case is moot if it raised a justiciable controversy at the time the complaint was filed. 11 . The Court found that one of the members did not have standing to appeal the judgment because the judgment against him was in his official capacity. No. 3. A case is not justiciable if it is “moot. but not a parent of a child that was not in the student group.
2. this will normally not be enough to make the case moot. while less racially based. iv.Associated General Contractors v. While challenged on e. A: This is a moot point because there is no longer any injury. and other situations where the cessation is not voluntary or is beyond the P’s control. Exception – Capable of Repetition. The case is moot. even if P does not become pregnant again. b. attacks the constitutionality of a state’s anti-abortion laws. P attends the school while the case is being litigated. then the case a. City of Jacksonville: A Jacksonville ordinance set aside 10% of the City’s contracts for minority businesses. a state University. NOTE – Ex: Northeastern Florida Chapter of the 12 . Ex: Arizonans For Official English v. The case should not be dismissed as moot. the employee voluntarily left government employment. grounds. What if a parent of student files suit and transfers to another school prior to trial a. claiming that its admission process is discriminatory. By the time her case reaches the Supreme Court. a pregnant woman. iii.p. so court action is no longer necessary to redress. 2. If there is a damages claim. Yet Avoiding Review: In some circumstances. HYPO: P sues D. Class Actions: One mechanism that has been used to address this problem is for P’s to file their suit as a class action. By the time it reaches the Supreme Court.Mootness Hypo’s 1.Voluntary Cessation by the Plaintiff: This will moot the case. HYPO: P. with a fluid group always having rights at issue. HELD: The Court rejected the city’s argument that the case was moot by holding that the new law.Voluntary Cessation by Defendant: If the defendant voluntarily ceases the conduct about which the plaintiff is complaining. obviously other woman will. Arizona: AZ passed a state constitutional provision that the state’s official language would only be English. NOTE: Adding a claim for monetary damages (retrospective relief) to claims for prospective relief will be a means to avoid mootness even if the challenger’s circumstances would change during the course of litigation. 3. This often happens with school issues (Graduating Students) or pregnancy. A state employee challenged the provision. Pregnancy will almost always end before appeallate review. P is in his last year and the school permits him to graduate. might still disadvantage contractors. ii. the city repealed the ordinance and replaced it with another. While the case was pending appeal. P is no longer pregnant. Moreover. a plaintiff’s cessation will not make a case moot. a. 1. The reasoning is that it would not discourage the defendant from going back to the challenged practice once the case is mooted.
What if student drops his membership in reliegious group? a. f. What if the student stays in school but graduates before the case can be resolved? a. Voluntary cessation by P will moot the case. a. Whether the court would benefit from further factual development of the issues presented.Political Question Doctrine: Historically. ii. Whether judicial intervention would improperly interfere with further administrative action. but rather it would be prudential for the Court not to intervene in these political matters. A: This is a tricky issue.Factors in Ripeness Analysis (Sierra Club Case) 1. yet evading review. THE POLITICAL QUESTION DOCTRINE: AN EXCEPTION/LIMITATION TO JUDICIAL REVIEW i. 2. and while they are deciding. Some decisions are inappropriate for the judicial function. OR PROPERTY WITHOUT DUE PROCESS OF LAW. OTHER PRECONDITIONS OF ADJUDICATION: RIPENESS i. A: Under the doctrine of “Capable Repition. NOR DENY TO ANY PERSON WITHIN ITS JURISDICTION THE EQUAL PROTECTION OF ITS LAWS. such as the avoidance of embarrassment to other branches or of interference with pronouncements where consistency/uniformity especially is important. A: The case is not ripe because the group has not been injured.Political Question Factors from Baker: At least one of these factors must be present in order to make an issue a non-justiciable 13 . the Supreme Court refused to decide issues involving a “political question. or judicial deference as a matter of policy. e. 4. 3. 1. Amendment 14. iii. The doctrine reflects: 1.would not be moot even if he transfers because there is no prospective injunctive relief. Const. 2.” It is not for a lack of jurisdiction. the school then dithers. ii. then the case will not be considered ripe. not 100% consistency.e. Whether delayed review would cause hardship to plaintiffs. For example. §1 (Equal Protection): … NOR SHALL ANY STATE DEPRIVE ANY PERSON OF LIFE. Respect for the separation of powers in avoiding decisions expressly given by the Constitution to the executive or legislative branches. What if the school pulled their policy the day before trial? a. The Ripeness Requirement refers to the notion that the claim has not matured because all conditions or events that must concur to create the required injury have not yet come into existence. the school group sues. 3. if an injury isn’t imminent yet. LIBERTY. HYPO: What if a religious group applies for permission.” even though a particular P may not be suffering injury. It encompasses what might be called “prudential” concerns. we know there are other people that will have the same injury (i. because they involve non-judicial discretion or lack of judicially determinable standards. other students still at the school) 3. 2. The issue of Ripeness and Standing somewhat overlap. A: MOOT.
The reapportionment question does present a justiciable question.. Borden: The case grew out of a rebellion by some dissatisfied Rhode Island citizens. Each of these factors relates in some way to the separation of powers: 1. HELD: The Supreme Court says that the plaintiffs are being denied equal protection of the law. The Aftermath of Baker v. Ex: Baker v. concluding that the case posed a political question because of a lack of criteria by which a court could determine which form of government was republican. In this instance.political question. and that judical equal protection standards are manageable. which guaranteed a republican form of government. Ex: Luther v.e. What constitutes a “Republican form” of government a. the Court consistently refused to adjudicate claims concerning legislative apportionment on the grounds that it presented a political question. Sims: The Court interpreted the equal protection clause as requiring apportionment according to population – a principle that since has become known as “one person. The Court noted that the constitution did not confer this question on another branch. 3. The claim was based on the guaranty clause of Art.Classic Instances of Political Questions 1. Textually demonstrable constitutional commitment of the issue to a coordinate political branch (i. a. Lack of judicially manageable standards for resolving the issue. 3. 2. b. Political decision already made: An unusual need for respect or deference to a political decision already made by another branch.” Thus. and ultimately required the federal courts to decide which of the two competing governments was the lawful government of the state. Need for uniformity among branches iv. But the Supreme Court declined to make this determination. 14 . no embarrassment would arise. 4. Ex: Vietnam War 2. thus enabling the federal courts to intervene in and decide said questions. Carr: Challenge to the constitutionality of reapportionment of districts under the equal protection clause of the Fourteenth Amendment. Foreign affairs a. there was a “judicially discoverable and manageable standard” to resolving apportionment questions. to Congress or to the President). IV. one vote. but the Court does not immediately grant relief. a smaller number of the people were voting for a large number of the representatives. §4. Apprtionment/Reapportionment: Until Baker. The votes in the larger districts were thus being diluted. Carr: Judicially Manageable Standard for Apportionment – Reynolds v.
Racial Gerrymandering cases are considered justiciable. Const. Cl. See Miller v. The court notes that the Miller standard is not sufficient b/c in Miller they weren’t applying it to a statewide plan. and plaintiffs sued to enjoin enforcement alleging that it was a political gerrymandering in violation of Article I and 14th Amendment Equal Protection Clause. and thus. Jubelirer (Rejects Bandemer): PA adopted a congressional redistricting plan. however. Ex: Davis v. imposts and excises.v.1: The Congress shall have power to lay and collect taxes. CONSTITUTIONAL PROVISIONS i. a state legislature could gerrymander the shape of the districts to dilute the voter’s strength. b. b. 1. Art. a. rejects the rule. GENERAL A. HELD: The Court held that there were indeed judicially discernible and manageable standards by which political gerrymander cases may be decided. HELD: The claim is a non-justiciable question. this particular case is not justiciable because of the parties involved. 1.Political & Racial Gerrymandering: The “one man. refused to foreclose all possibility of judicial relief if some limited and precise rationale could be found to review these cases. RULE: Political gerrymandering claims are “per se” non-justiciable questions because no judicially discernible and manageable standards for adjudicating such claims exist. Johnson Below. to pay the debts and provide for the common defense and general welfare of the United 15 . Bandemer: Democrats alleged that a Republican majority in the state legislature had reapportioned the voting districts by a political gerrymander that violated their right to equal protection of the laws. 1. ii. duties. PART II – CONGRESSIONAL POWER I. § 8 (Enumerated Powers Vested in Congress) 1. This Court goes through a number of rules and rejects each approach as unworkable and unmanageable. a. while diluting another parties vote.Justice Kennedy. Does not explicitly overrule Bandemer but states that its standard is unworkable. See 15th Amendment. Ex: Vieth v. I. However. one vote” principle does not say anything about how district lines should be drawn. i. Political – This type of gerrymandering involves redistricting schemes that attempt to keep on party in office.
ii. Maryland’s anti-Bank statute was at issue. Maryland: Congress chartered the second Bank of the United States in 1816. imposts and excises shall be uniform throughout the United States. Enumerated Powers/Implied or Incidental Powers a.” 2.Ex: McCulloch v. However. and among the several states. HELD: The Supreme Court. 3. Besides acting under the Constitution’s enumerated powers. the federal government (especially Congress) may validly exercise power that is ancillary to one of the powers explicitly listed in the Constitution. As a result. and with the Indian tribes. Marshall concluded that powers could be implied from the explicit grant of other powers from a constitution that does not exhaustively list all powers. The state then brought suit against the Bank and its cashier (McCulloch) to collect the tax. or to the people. to contain an accurate detail of all the subdivisions of which its great powers will admit. a number of states enacted antiBank measures. it soon encountered substantial political opposition mostly as the result of the Panic of 1818 and corruption within the various branches of the Bank. In response to the following arguments against the federal government’s power to do things not explicitly enumerated in the constitution. DOCTRINE OF IMPLIED OR INCIDENTAL POWERS i. per Chief Justice Marshall. 2. are reserved to the States respectively. 1. ii. and of all the means by which they may be carried into execution. but all duties. so long as this ancillary power does not conflict with specific Constitutional prohibitions. § 8. Maryland imposed a tax upon all banks operating in the state that were not charted by the state. Cl. Marshall rebutted as follows: 1. Cl. B. The measure was intended to discriminate against the national Bank. Structual Argument: Marshall turned to the issue of whether an explicit constituional grant of power (to charter a bank or corporation) was required. 3 (Power to Regulate Commerce): To regulate commerce with foreign nations. “A constituion.Tenth Amendment: The powers not delegated to the United States by the Constitution. and its Maryland branch. 2: To borrow money on the credit of the United States. or other parts of the Const. held the tax unconstitutionally invalid. i. nor prohibited by it to the States. which states that Congress may “make all Laws which shall be necessary and proper for carrying into Execution” the specific legislative granted by this section. and coud scarcely be embraced by the human mind…We must never forget that it is a constituion we are expounding. This notion is explicitly stated in the “Necessary and Proper” clause (Art. I.States. would partake of a proxlixity of a legal code. The Bank was designed to regulate the currency and help solve the national economic problems. Necessary and Proper Clause: Marshall relied upon this clause as a justification for Congress’ right to create a bank 16 .
we will apply this test: Is what the government is trying to do legitimate? If so.” Instead. 3: The Congress shall have Power To regulate Commerce with foreign Nations. The Power to Tax is the Power to Destroy a. Const. are reserved to the States respectively. and all means which are appropriate. POWER TO REGULATE COMMERCE A. let it be within the scope of the constitution. is the way they are going about related to the generqla purpose. Art. which are not prohibited. because it bore a reasonable relationship to various constitutionally enumerated powers of the government (i. I. . I. Avoid discrimination among states that would burden interstate commerce. to declare and conduct. The State tax interfered with the exercise of a valid federal activity. and with the Indian Tribes. a. (Later became Rational Basis) Absence some specific reason for applying hightened scrutiny. HOLDING: The act of chartering a bank was valid. to borrow money. which are plainly adapted to that end.10th Amendment (Reserved Powers to States): The powers not delegated to the United States by the Constitution.e Lay and collect taxes.Policy for Strong Commerce Power 1. to raise navy and army. are constitutional. Thus.or corporation even though such power was not specifically granted in the Constitution. GENERAL i. . cl. or to the people. nor prohibited by it to the States. power to establish post-offices) 3. and among the several States. 17 . ii. but consistent with the letter and spirit of the constitution. RULE: State Governments cannot tax federal entities. § 8. iii. b. it violated the Supremecy Clause. He rejected the State’s contention that “necessary” meant “absolutely necessary” or “indispensible. to regulate commerce. he stated that “let the end be legitimate.
Gibbons’ boats were licensed. Commerce includes not only buying and selling. and other 18 . b. Ogden obtained an injunction in a New York court ordering Gibbons to stop operating his boats in NY waters. 10th Amendment 3. Marshall’s Broad Interpretation of the Commerce Clause: Under the clause. Ex: Gibbons v. the Court felt that there were areas of economic life. Protect Indiviudal Liberties: Under Federalism. loops into State B. iv.” Furthermore. which. Ogdon: Ogdon acquired. That is. were to be left to state regulation. Gibbons began operating steamboats between New York and New Jersey.2. other than those prescribed in the constitution. on the ground that it was based upon a monopoly that conflicted with a valid federal statute. but all “commercial intercourse. and finishes in State A. in violation of Ogden’s monopoly. HELD: Marshall found the injunction against Gibbons invalid. It is still within Congress’ power to regulate. THE COMMERCE POWER DURING THE “DUAL FEDERALISM” ERA: FROM THE LATE 1800S TO THE 1930S i. THE BEGINNING OF CONGRESS’ COMMERCE POWER i. a broad baseline of commerce is covered. may be exercised to its utmost extent. and acknowledges no limitations. under a federal statute. Commerce “Among” the Several States as “That Commerce that Concerns More States than One” (May affect intrasate matters): This congressional power to regulate interstate commerce includes the ability to affect matters occurring within a state.Reasons for Limiting Commerce Power 1. National Economic Uniformity. we need some sort check on Congress’ power. and thus violated the Supremacy Clause.” 3. Blurring of Power among Federal and State Entities: May lose political accountability. The Clause permits Congress to legislate with respect to all “commerce which concerns more States than one. It is within Congress’ power to regulate the entire voyage. Laboratories of Democracy Argument (O’Conner’s Dissent in Morrison): Allow states to experiment with regulating commerce. Ex: A boat leaves state A. Economic Regulation: The Supreme Court’s view of economic regulatory laws from about 1880 to 1937 was characterized by what has been called “dual federalism” approach. is complete in itself. 2. a. C. stops in State B. a. monopoly rights to operate steamboats between New York and New Jersey. and ports in State C. like all others vested in Congress. Ex: A boat leaves in state A. “This power. b. so long as the activity has some commercial connection with another state. by grant from the New York legislature. Congress’ Plenary Power (“Utmost Extent”): No area of interstate commerce is reserved for state control. 2. however.” 1. under the Tenth Amendment.
2.A. HELD: The Court upheld the ICC’s right to regulate intrastate charges. and industrial codes. collective bargaining. but rather.Current of Commerce Theory: An activity could be regulated under the commerce power not because it had an effect on commerce. because the activity itself could be viewed as being “in” commerce or as being part of the “current” of commerce. not indirect. Close & Substantial Relation: Congress’ power to regulate commerce includes the right to regulate all matters having such a close and substantial relation to interstate commerce. United States): The Interstate Commerce Commission. The railroads countered that it was beyond Congress’ power to control intrastate rates of an interstate carrier. Although Schecter’s wage and price policies might have forced interstate competitors 19 . Not Affecting Commerce: What was required was a direct. V. Congress enacted the National Industrial Recovery Act of 1933. v. Schecter itself bought within NY city. after setting rates for transport of goods between Shreveport. etc. Chickens not in flow of commerce. effect on commerce. and resold its stock exclusively to dealers. THE areas of activity which were properly preserved for the federal government. 1. Although the vast majority of poultry sold in NY came from other states.Schecter Poultry Corp. United States: At issue in the case was the validity of the (NIRA). These two areas were viewed as being essentially non-overlapping (either an area was proper for state regulation. Schecter was convicted on charges of violating the the wage and hour provisions of the NY Metropolitan Code. The Commission’s theory was that Shreveport competed with certain TX cities for shipments from other parts of TX. i. or for congressional regulation. 1. LA and vaious points in TX. The fact that the activity being regulated is intrastate does not place it beyond Congress’ control. GREAT DEPRESSION. the Court had to grapple with the extent of the Commerce Power. collective bargaining. maximum hours. ii. maximum hours. The Act contained provisions for minimum wages. sought to prevent railroads from setting rates for hauls totally within Texas which were less per mile than the Texas-to-Shrevport rates. AND THE DIRECT-INDIRECT EFFECTS DOCTRINE i. In the cases that follow. since the ultimate object is the protection of interstate commerce and the avoidance of a chilling effect on commerce resulting from intrastate discrimination. which authorized the President to adopt “codes of fair competition” for various trades or industries. THE NEW DEAL. consumer protection.L. East & West Texas RY. i. Ex: A. Not in “Current/Flow of Commerce”: Schecter’s activities were not within the current or stream of commerce because the interstate transactions ended when the shipments reached its slaughter-houses invalidaded the statute. Ex: The Shreveport Rate Case (Houston. Following the Great Depression. the codes regulated such items as minimum wages and prices. but not for both. and that the lower TX intrastate rates were unfairly discriminating against the TX-to-Shreveport interstate traffic. HELD: The Court held the NIRA unconstitutional as applied to Schecter.A.
a. The Court relied on the distinction espoused in Knight between “production” and “commerce. Congress Plenary Power: “The power to regulate commerce is the power to enact all appropriate legislation for its protection and advancement…and may be exerted to protect interstate commerce no matter what the source of the dangers which threaten it. it added that to determine whether there is a close and substantial relationship. HELD: The Act is unconstitutional.Ex: NLRB v. or collaterally – to produce the effect. Relevance: The Case did not overrule Schecter. Rejects “Cureent of Commerce” theory: If the activity has a substantial effect on interstate commerce. remotely. Coal: The Court used similar direct-indirect reasoning to strike down wage and hour regulations promulgated pursuant to the Bituminous Coal Conservation Act of 1935. Instead.Thus. even though the materials produced would ultimately be sold in interstate commerce. such transactions remain within the domain of state power.Ex: Carter v. the Court began to reject the narrow view of Schecter by relaxing what Congress could regulate based on its plenary power. EXPANSION AND BREAKTHROUGH: NATIONAL ECONOMIC PROBLEMS AS OBJECTS OF THE COMMERCE POWER i.” 1. ii.” 2. 3. Jones & Laughlin Steel Corp.: This case tested the constitutionality of the National Labor Relations Act of 1935 (NLRA). The case involved the NLRB’s attempt to prevent Jones & Laughlin (a large integrated steel producer) from engaging in “unfair labor practices” by the discriminatory firing of employees 20 . these higher standard will never get enacted. or even after the interstate commerce. Thus. Beginning with NLRB. Where the effect of intrastate transactions is merely indirect. 2. B. then each state will compete to have the lowest amount of regulation to attract more commerce. you need to look to see if there is a direct or an indirect effect on interstate commerce. Substantial Economic Effect Test: So long as the regulated activity has a substantial economic effect upon interstate commerce. Race to the Bottom Crticism: If you leave certain regulations up to the states. the issue is not the extent of the effect produced on interstate commerce. that activity may occur before the interstate movement.to lower their own prices. but the existence or non-existence of a direct logical relation/nexus between the production and the interstate commerce. this impact was much too indirect to allow for congressional control. Production v. ii. a. Direct/Indirect Doctrine: The word direct implies that the activity or condition invoked or blamed shall operate proximately – not mediately. Commerce: Production of coal was being regulated here and it is a purely local activity. that activity falls under Congress’ Commerce Power. a. 1.
McClung: Involved a Birmingham. 21 . ii. as applied to Jones & Laughlin. and there was no evidence that an appreciable part of its business was in serving out of state travels. sent 75% of its product out of PA). c. However. The Court applied Rational Basis review to defer to Congress purpose for passing the Act.for union activity. but also an entire class of acts. the Court concluded that a labor stoppage of the PA intrastate manufacturing operation would have a substantial effect on interstate commerce. 1. 1. AL restaurant called Ollie’s Barbecue. lay witing the commerce power. The restaurant was relatively far from any interstate highway or train or bus station. Because of Jones & Laughlin’s multi-state network (while it only produced steel in PA. BY APPROPRIATE LEGISLATION. Civil Rights Legislation: The Civil Rights Act of 1964 bans discrimination in places of public accommodation. i. This other major extension of the Commerce Power provides that Congress may regulate not only acts which taken alone would have a substantial effect on interstate commerce. operated steamboats in another state. 46% of the food purchased by the restaurant during the previous year had been bought from a supplier who had brought it from out of state. The Court found that the unavailability of accommodations dissuaded blacks from traveling in interstate commerce. EXTENSION OF COMMERCE POWER TO NON-ECONOMIC ACTIVITY & RATIONAL BASIS REVIEW FOR CONGRESS’ COMMERCE POWER i. The Act not only controlled the quotas on wheat that would be sold interstate or intrastate. HELD: The Court upheld the Act. where a substantial portion of its goods or food is purchased out of state or has moved in commerce. Ex: Wickard v. but also which could be consumed on the very farm where it was raised. The Concurrence in McClung stated that this was a better basis for the Court’s finding because it could prevent litigation on a case by case basis of whether or not an establishment comes within the meaning of the Act.Rational Basis Review: When the Court finds that Congress has a rational basis for finding a chosen regulatory scheme necessary to the protection of commerce (to regulate areas which have a substantial effect on interstate commerce). Filburn: Involved the Agricultural Adjustment Act of 1938. it owned mines in two other states. which permotted the Secretary of Agriculture to set quotas on the raising of wheat on every farm in the country. d. it is arguable that it would not apply because there is no state action. Therefore. THE PROVISIONS OF THIS ARTICLE. CUMULATIVE EFFECT THEORY i. NOTE: 14th Amendment – THE CONGRESS SHALL HAVE POWER TO ENFORCE. 1. a. Ex: Katzenback v. It also covers any establishment which serves interstate travelers. However. the Act will be upheld. labor relations at the PA plants could be regulated by Congress. if the class has a substantial economic effect (even though one act within it may have no effect at all or a trivial effect) on interstate commerce. HELD: The NLRA.
In Lopez. Activities which “substantially affect” interstate commerce. Lopez: Involved the Gun-Free School Zones Act of 1990. on Interstate Commerce. ii. phones.). Prong (3) of Lopez Test At Its Weakest When: i.Rational Basis: It is not whether the Court finds a substantial effect. not just an effect. a. Ex: United States v. etc. if Congress found such an effect and was not irrational in doing so.Preface to Lopez: This case showed that limits still exist on Congress’ Commerce powers. b. Consumption has market effect: The more wheat that is consumed on the farm where it is grown. iii.) or persons or things IN interstate commerce (i. Cumulative Effect: This type of decision taken together with that of many others similarly situated is far from trivial because the home grown wheat competes with the open market. MODERN “SUBSTANTIAL EFFECT” AND RATIONAL BASIS REVIEW i. whether or not done commercially). even though the threat may come only from intrastate activities. rivers. the Court for the first time in 60 years invalidated a federal statute on the grounds that it was beyond Congress’ Commerce Power. challenged that the Act was unconstitutional because this was purely local activity beyond the scope of federal control. it is whether Congress could have had a “rational basis” for concluding that there was such an effect. transportation of any thing or person across state lines. THE Wheat raised in excess of the quota was penalized. 22 . Instrumentalities of interstate commerce (airplanes.” HELD: The Court struck down the statute. The Court also held that this regulation is reasonably related to protecting commerce. a. etc.Activity regulated is not “commercial” ii. who grew wheat for home consumption. is a school zone. Filburn. whether interstate or not. and 3. then this will stregthen case. 2. 1. Three Categories that Congress May Regulated Under it Commerce Power: 1. a.e. the Court will not invalidate a statute even ehen it finds no substantial effect. in which Congress made it a federal crime “for any individual knowingly to possess a firearm at a place that the individual knows. HELD: The Court upheld the statute. the less wheat that is brought in commerce (from other farmers).. Substantial Effect: Activity must have a substantially effect. No congressional findings that there is a logical nexus to of the activity to interstate commerce.E. or has reasonable cause to believe. Thus. If there are formal findings that activity has a substantial affect on interstate commerce. 1. Use of Channels of Interstate Commerce (roads.
e. Not Commercial: The Court thought that the activity being regulated was not itself commercial activity. it banned even possession of a gun that had never traveled in. i. f. Furthermore. No Legislative Findings: The Statute did not include explicit findings by Congress that the activity being regulated (possession of guns in schools) affected commerce. who thus become less economically productive. the Court has trouble sustaining proported legislative judgment that such activity substantially affects interstate commerce. interstate commerce. i.Ex: U. they thought that under this rationale. things like a federal mandated curriculum and child rearing could be said to have a substantial effect on interstate. child custody)) Also. c. Normally not required to make formal findings as to the substantial burdens that an activity has on interstate commerce. but without them. Cumulative Effect: The Court distinguishes Lopez from Wickard saying that the activity in Wickard involved economic activity in a way that the possession of a gun in a school zone does not. that the firearm possession in question affects interstate commerce. e. d. The Court was not willing to “place inference upon inference in a manner that would bid fair to convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States. or even affected. on a case-by-case inquiry. (b) was rejected because it meant that Congress could regulate any activity it found related to economic productivity (i. Building Inference upon Inference: The Government asserted that gun possession in schools does have a substantial effect on commerce because guns in school creates crime which in turn (1) affects the national economy by (a) crime reduces individuals willingness to travel across state lines to unsafe locations.S. (b) violent crime in schools reduces the schools’ ability to educate their students. Little Connection to Commerce: The criminal 23 .statute by its terms has no connection and nothing to do with interstate commerce. family law (divorce.” iv. Specifically. the regulation here was not apart of a larger economic activity in which the regulatory scheme could be undercut unless the intrastate activity were regulated. No Jurisdictional Nexus: The statute does not ensure. v. Instead. Morrison: Involved was the Violence Against Women Act of 1994 which gave a victime of gender motivated crime a civil b. The Court rejected these. i.
Congress can regulate. California approved a proposition which established an exemption from criminal prosecution for the use of marijuana for medicinal purposes. where the transaction being reglated is itself clearly an economic or commercial one. the Court will probably allow Congress to regulate it. 2. a. NOTE: If not commercial. Economic Activity: The Court relied principally on the fact that the activity being regulated was essentially noneconomic. Reliance on Wickard: Congress can regulate purely intrasate activity that is not itself “commercial. when Congress is engaged in a broad regulation of a commercial activity. or possess marijuana. these cases also struck down states trying to regulate 24 . Congress. in the aggragate. the substantial effect prong of the Lopez test did not apply and the regulation could not be saved. rationally believed that if cultivation of home-grown marijuana were permitted for medicinal consumption. Represents a line of Supreme Court cases from 1900 to 1939 in which a very conservative Court struck down attempts of the government intervening with commerce. 1. Even if in it completely intrastate. through the Controlled Substances Act. In a majority of these cases.f.” in that it is not produced for sale. LOCHNER ERA i. as long as it’s part of a class that. when federal regulation of economy was involved.Regulation of non-commercial activity as part of broad regulation of commercial activity: Conversely. HELD: Congress’ Commerce power includes the right to regulate even the purely intrastate and noncommercial cultivation of marijuana. Commercial Transaction: Thus. if it reasonably believes that failure to regulate these instances would jeopardize the success of the overall regulatory scheme. The two P’s claimed that Congress did not have the power under the Commerce Clause to do this. v. 1. in passing the CSA. then government should put in a jurisdictional nexus. substantially affects interstate commerce. a. i. frustrating Congress’ purpose of banning interstate commerce in marijuana. THE action claim. 3. Ex: Gonzales v. made it a crime to manufacture. it may regulate purely non-commericial and intrastate instances of that activity. Additionally. Thus. the high demand in the interstate market would draw that home-grown marijuana into interstate market. distribute. Thus. HELD: The Act was beyond Congress’ Commerce Power. Non-Commercial: The Court will not regard the impact of the activity on interstate commerce as being suffient and thus less likely to permit Commerce to regulate. Raich: Congress. The Court held that the regulation was beyond Congress’ commerce power. if it concludes that failure to regulate that class of activity would undercut the regulation of the interstate market in that commodity.
and then spent for the common defense and general welfare. the court used a substantive due process analysis to write a laissez fair version of economics into constitution. 1. ii.Until the 60’s.e. 7: NO MONEY SHALL BE GIVEN BY ANY REGULATION OF COMMERCE OR REVENUE TO THE PORTS OF ONE STATE OVER THOSE OF ANOTHER: NOR SHALL VESSELS BOUND TO. . These decsions became incresingly unpopoular during the New Deal. Art. This era is now discredited. II. Substantive Due Process: The Court examined the due process clause of 14th amendement and said that due process means everyone must be able to enter into contracts without interference. OR PAY DUTIES IN ANOTHER. GENERAL i. §9.Const. Art. iv. I. TO PAY THE DEBTS AND PROVIDE FOR THE COMMON DEFENSE AND GENERAL WELFARE OF THE UNITED STATES… 1. Thus. who shifted the majority of the Court. OR FROM. but the defeat was partly due to the changes of position of some justices. Ex: Nebbia v. LIMITS ON CONGRESSIONAL USE OF SPENDING POWER i. . President Roosevelt proposed to add additional justices to the Supreme Court. Court Packing Plan (“Switch in Time that Saved Nine”): To enforce governmental regulation. I.the economy. cl.21st Amendment: Repeal of Prohibition B. Thus. The Court essentially rejected “Lochnerism. Const. The power to spend is thus linked to the power to tax – money may be raised by taxation. ii. the Court limited the use of the Commerce Clause and the 10th Amendment. cl. Congress may use its conditional spending power to achieve the same result 25 . 2.I. CLEAR.Decline of the Era 1. substantive due procee was unused. This was ultimately defeated by Congress. ONE STATE. 18: TO MAKE ALL LAWS WHICH SHALL BE NECESSARY AND PROPER FOR CARRYING INTO EXECUTION THE FOREGOING POWERS. §8. Ex: Lochner v. §8: THE CONGRESS SHALL HAVE THE POWER TO LAY AND COLLECT TAXES . AND ALL OTHER POWERS VESTED BY THIS CONSTITUTION IN THE GOVERNMENT OF THE UNITED STATES . iii. a. New York: The Court struck down a New York law which limited the hours which a bakery employee could work to 10 per day and 60 per week. . BE OBLIGED TO ENTER. In essence. Art. . Achievement of Otherwise disallowed objectives: Congress has no power to regulate for the purpose of providing for the genral welfare.” noting that the constitution does not endorse any economic theory and that it is a matter for political branches to decide. The Era came to an end in in the late 1930’s with a. if Congress cannot obtain a certain objective by direct regulation (i. CONGRESS’ SPENDING POWER A. because it is outside of its Commerce Power or other enumerated powers). New York: The Court sustained a New York regulatory scheme for fixing milk prices.Const.
Ex: A grant of federal funds conditioned on invidiously discriminatory state action or the infliction of cruel and unusual punishment. Independent Constitional Bar: This concept stands for the proposition that the power may not be used to induce states to engage in activities that would themselves be unconstitutional. While the majority in Dole fashioned a broad conception of this nexus. depriving the states money if they do not achieve the regulatory result) as long as the action by the state do not violate other constitutional provisions. Be “related to the federal interest in the particular national project or program” (this prong is not enforced very strictly).e. in order to prevent drivers under the age of 21 from drinking. ii.The Condition must: 1. 4. Be used via an explicit condition. a. 3.D. Must be unambiguous enabling the States to exercise their choice knowingly. O’Connor’s dissent would apply a narrow conception in that the federal highway funds should only be withheld when the federal interest involved safe highway construction.indirectly (i. South Dakota attacks the statute on the grounds that this condition interferes with its own exclusive powers under both the 10th and 21st Amendments. Dole: Congress. Not contravene an independent constitutional requirement. The condition must bear a ligitamate relationship to the purpose for which the funds are extended. 1. HELD: The statute is valid. a. 26 .Ex: South Dakota v. Another constitutional provision might provide an independent bar to the conditional grant of federal funds (See S. withholds federal highway funds from states that permit individuals younger than 21 to purchase or possess in public any alcoholic beverage. Deference to Congress’ determination. a. Be used to “promote the general welfare”. note that “pressure” cannot become “compulsion” iii. cognizant of the consequences of their participation. a. 2. a. Also. Dole) 5. v.
. 27 . 1. Because the constitution provides for the freedom of speech and the press. BY THE CONSTITUTION.Implied Preemption: 1. OR TO THE PEOPLE. §1. Thus. state law must yield to federal law. there may be a negative implication that Congress intended the matter to remain unregulated. VI. just figuring out “What Congress wants. CONSTITUTIONAL PROVISIONS i. GENERAL i.PART III – FEDERALISM I.Preemption by Negative Implication: The Commerce Clause as a Restraint on State Power (“Dormant Commerce Clause”): If a legislative matter particularly affects interstate commerce and Congress has not acted. the stat law in question therefore is of no effect. Preemption deals with State and Federal law and asks the question “Will the federal law trump the state law?” There is no big constitutional issues here. Ex: A state passes an act providing that Newspapers are no longer permitted. Art. . . the Supremacy Clause dictates that national power overcomes inconsistent exercises of state power. iii. and since the Constitution and federal laws are the Supreme Laws of the Land. . ARE RESERVED TO THE STATES RESPECTIVELY. ii. GENERAL i. (Supremacy Clause): THIS CONSTITUTION. and thus preemption is inferred as a matter of Congressional intent to displace possibly inconsistent state regulation. Issue of Congressional Intent: A preemption problem is not always controlled by any clear statement of Congress.S.10th Amendment: THE POWERS NOT DELEGATED TO THE U. Preemption of State Power by Congress: As a part of federalism. NOR PROHIBITED BY IT TO THE STATES. if Congress passes an act. The main rational is that we don’t want either one of them to become too powerful. SHALL BE THE SUPREME LAW OF THE LAND . Federal law “covers the field” B. IMPLIED PREEMPTION A. 2.Privileges and Immunities: The Constitution requires the states to afford privileges and immunities to citizens and noncitizens alike. . AND THE LAWS OF THE UNITED STATES WHICH SHALL BE MADE IN PURSANCE THEREOF.” ii. Const. Actual conflict between federal & state law. FEDERAL PREEMPTION OF STATE POWER A. cl. 2. PREEMPTION & THE SUPREMACY CLAUSE i.Express Preemption: Federal law explicitly says Congress intends to supplant state law. TWO CATEGORIES OF IMPLIED PREEMPTION II. The Supremacy Clause of Article IV provides that in case of a conflict. ii. C. the states cannot countermand it. iii. Federal law is said to have “preempted” state law. B.
whereby the court applied the three part test: (1) The federal Smith Act and other acts evince a Congressional plan which makes it reasonable to determine that no room has been left for the states to supplement it.Cover The Field: Where Congress has enacted broad. a. Actual Conflict: In cases in which there is an actual clear-cut 28 . Is the scheme of federal regulation so pervasive as to make reasonable the inference that Congress left no room for the states to supplement it? 2. ii. C. a. Field Traditionally left to states: Courts are less likely to find these as subjects of federal preemption. This means that if the subject area is usually viewed as “local” rather than “national.Ex: Pennsylvania v. 1. patent and trademark. the State statute is invalid. 1. and others will normally be found to be federally preempted. Ex: Health and Safety regulations. 2. Absent explicit preemptive language. immigration. Raich: State and Federal marijuana statutes conflicted. 2. National Matters/Fields of Federal Dominance: Foreign relations. admiralty.conflict between congressional and state regulation. 3. THREE PART “COVER THE FIELD” TEST i. (2) Congress has a an all-embracing program for resistance to the various forms of totalitarian aggression. Congress’ intent to supersede state law altogether may be found depending on the answers to these questions: 1. The case was analyzed as a cover the field implied preemption case. sweeping statutes in a particular area to cover the entire field. Sedition Act”): Defendant’s conviction of Pennsylvania Sedition (rebellion) Act for being a known member of the Communist Party reversal affirmed by Supreme Court because federal Smith Act preempted the state sedition acts. Joint Compliance Impossible whereby it may be physically impossible to obey the state and federal regulations simultaneously. Does the federal statute touch a field in which the federal interest is so dominant that the federal system must be assumed to preclude enforcement of the state laws on the same subject?. 3. National Security.” preemption is unlikely to be found. (3) Enforcement of state sedition acts presents a serious danger of conflict with the administration of i. Would enforcement of the State law present a serious danger of conflict with the administration of the federal program? ii. Ex: Gonzales v. Conflicting Tactics employed by the two may be sufficiently conflicting that a court will conclude the state regulation is preempted. Nelson (“Impliedly Preempted Penn. the Court is much more likely to find federal preemption than where the federal scheme is less comprehensive. bankruptcy. Conflicting Objectives behind the Federal and State regulations whereby the state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.
Other General Preemption Rules 1. Intent to occupy the field is inferable only when “unmistakable” i. HELD: The Supreme Court Affirmed. such as the inference of an attempt to occupy the field by a less than comprehensive regulatory scheme. not safety problems. also ask if there is an actual conflict. (Askew v. the Congressional choice of terms must be interpreted by courts in a manner 29 . or if state law frustrates Congress’ purpose in passing the main law in the first place) 1.federal programs because there is a history of the federal government wanted to avoid a hampering of uniform enforcement of its program by sporadic local prosecutions.Determining the indented Scope of Congressional Action: Does the state law regulate within the scope of the preemption language in the federal statute? (Check congressional intent. or if the legislative history contains controlling statements to that effect. If Congress expressly states that it does not intend to preempt state regulation. Explicit Statutory Preemption Provision ii. even in express preemption cases. etc. the courts should honor state laws. State Energy Resources Conservation (“NOT Impliedly Preempted”): CA passed a law which conditioned the building of any nuclear power plant upon the state energy commission’s finding that there would be “adequate” capacity” for temporary storage of the plant’s spent fuel. Inc.e.Ex: Pacific Gas & Elec. i. using plain language. Even if there is a congressional intent to cover the field.. The Court’s deciding factor turned on CA’s intention behind the regulation which was aimed at the economic problems of storing and disposing of waste. the Court must determine the exact area their intention covered. Similarly. and with the construction and operation of nuclear power plants. when the nature of the regulated subject matter permits no other conclusion (Florida Lime & Avocado Growers v. v. Compare McClendon and Cippone: These cases demonstrate that. When a Court is forced to infer Congressional intent from conflicting or ambiguous indications.). the courts should honor controlling expressions of intent to preempt. American Waterways Operators. iv. Thus. 2. the Court of Appeals reversed. iii. the CA statute did not come within the area preempted by Congress. then default setting is no preemption. Presumption Against Preemption a. TEST FOR EXPRESS PREEMPTION i. Paul) III. legislative history. After the district court held the CA statue preempted by the federal Atomic Energy Act. The federal system of licensing and inspecting nuclear plants was set up solely to deal with nuclear (radiological) safety regulation. the Court often has preferred not to find preemption. If legislative intent is unclear. Presumption Against Preemption. EXPRESS PREEMPTION a.
consistent with applicable constitutional history. 5. The State Court ruling is preempted by the express preemption language of ERISA. and values. structure. Congressional Intent: Congress wanted to have a uniform body of law for these pension plans. then the implied preemption argument will not work. If there is express preemption. and thereby be preempted. the Court states this would still be struck down under the Actual Conflict Implied Preemption Doctrine because it conflicts directly with the ERISA’s creation of an exclusive remedy for interference with protected pension rights. The TX Sup. each state could create different substantive standards applicable to the same employer conduct. v. 2. it is important to read the exemption language broadly. iii. McClendon. v. but because the express preemption language is there. iv. and is premised on. Because of that. even if the law is not specifically designed to affect such plans. created a public policy exception. Ct. the issue was whether the state court ruling is preempted by the federal statute. The TX judicially created case of action makes specific reference to. The Court’s reasoning was predicated on the preemption language: 1. McClendon (“Expressly Preempted TX Pension Law”): The Employee Retirement Income Security Act (“ERISA”) enacted a uniform regulatory scheme for private employee benefit plans. The amendment broadened the preemption language: “No 30 . the entire extent of preemption is governed by the express preemption language. Warning”: The Federal law at issue was the Federal Cigarette Labeling and Advertising Act (1965).Ex: Cippolone v. Preemption is not precluded simply because a state law is consistent with ERISA’s substantive requirements. Alternative Preemption Analysis: Even if there was no express preemption. HELD: Reversed. the existence of a pension plan. then you could argue implied preemption. A state law may “relate to” a benefit plan. The P. which was later amended in 1969. ERISA preemption clause was designed to establish pension plan regulation as an exclusive federal concern. the goal was to minimize the administrative and financial burden of complying with conflicting directives among States or between States and the Federal Government. vi. Liggett Group (“Expressly Preempted Cig. brought action under TX state law covering tort and contract theories. that allowed the suit because McClendon’s termination was motivated principally by an employer’s desire to avoid pension contribution and ruled in favor of P.If there was not express preemption language. 3. 4.Ex: Ingersoll-Rand Co. namely.Elimination of Implied Preemption by an Express Preemption: Express preemption “crowds out” implied preemption. ISSUE: Because there was a conflict between a federal statute and a state court ruling. The Act also contained a broad express preemption of “any and all State laws” that relate to any employee benefit plan. or the effect is only indirect.
HELD: Certain of the P’s common law claims were preempted. the court: (1) considered the strong presumption against preemption by narrowly construing the precise language and (2) looked to each of the P’s common law claims to determine whether it is in fact preempted: a. 1. GENERAL i. and this implied preemption excluded. c. but if it declines to regulate a particular aspect of that commerce. a. FEDERALISM – THE NEGATIVE COMMERCE CLAUSE “DORMANT” COMMERCE CLAUSE: RESTRICTIONS ON STATE POWER TO AFFECT INTERSTATE COMMERCE A. 10th Amendment.” The Defendants contended that federal preemption protected them from any liability from the P’s (a woman who died from smoking) common law claims. it has the effect of restraining state power to regulate interstate commerce (“dormant commerce clause”). where Congress has expressly spelled out what is preempted. Const. 31 . b. ii. it is an affirmative grant to Congress of power to regulate commerce. the Congressional silence is tantamount to a Congressional expression of intent to leave the area unregulated. On the other hand. Could the cigarette company have argued the other non-preempted issues were in fact preempted by Implied Preemption? No. 1.” but rather imposed by the warrantor.requirement or prohibition based on smoking and health shall be imposed under state law with respect to the advertising or promotion of any cigarettes. § 8.The Commerce Clause really contains two clauses: On the one hand. Fraudulent Misrepresentation: Not Preempted. Failure to Warn: Preempted. P’s claims that the post 1969 advertisings or promotions should have included more warnings clearly conflicts with the federal act. IV. Art. 1965 Act: Under the maxim Expressio Unius est Exclusio Alterius. while others were not. not based on smoking or health warnings. rather deals with a fraud claim. and hence to protect it from state regulation. Congress’ enactment of a provision defining the pre-emptive reach of a statute implies that matters beyond that reach are not preemptive. the pre-emptive scope of the express language governs. the Court is not going to leave any room for additional implied preemption. rather deals with a fraud claim. 2. d. I. 1969 Act: Because the language was much broader. Breach of Express Warranty: Not preempted by the Act because the “requirements” imposed by an express warranty claim are not “imposed under state law. not based on smoking or health warnings. Congressional Silence Theory: Congress has the power to regulate interstate commerce. Conspiracy to Misrepresent or Conceal: Not Preempted.
Health. National Political Unity (P & I Clause of Art. the rationales for the doctrine focus on protecting national economic unity. As federal power expanded. and those that are designed for furtherance of economic benefits. iii. IV). because the founders wanted to avoid the problems created by the Articles of Confederation by having a uniform national economy. If the state law (1) Burdens Interstate Commerce. however. Overview 1. safety.B. safety and welfare objective on the one hand. Discriminatory regulations and duties. and welfare (“Police Power Rationale”): The Court will most likely hold these objectives as legitamate state ends. (Bruce Church) 2.Justifications for Heightened Review 1. This power was historically used to justify the kind of state regulation that seemed necessary but that arguably affected interstate commerce. on the other. abrogations of contracts in favor of residents. apply “least restrictive means” test (Dean Milk). then: a. or b. 3. Individual Economic Activty (P & I Clause of the 14th Amen. a. Legitamate State Interests and Rational Means to that End: The court has distinguished between measures that are designed for the promotion of health. the existence of federal power meant the absence of state power. the states had strong motivations to favor local interests. this approach would have wiped out state power. Economic Advantage: The Court is much more skeptical of a state regulatory scheme where the 32 . and morals is the essential province of the states. and vice versa. If not facially discriminatory.Modalities 1. Textualism: There is not a very strong textualist argument because there is no express language in the commerce clause for this restriction on state power and it seems that the 10th amendment delegates this power to the states. Political Process Rationale (Similar to Equal Protection). reliance on unstable paper money. b. iv. 2. If facially discriminatory. and taxes on interstate commerce were particular concerns. 2. and Substantive Due Process) MODERN STANDARD UNDER THE NEGATIVE COMMERCE CLAUSE i. vi. ask if the burden on interstate commerce is “clearly excessive” in light of the purported local benefits. Today. Originalism: There is a strong originalist argument.Concept of “Police Power”: The notion that the power to provide for the local health. Thus. THE 2. Under the Articles of Confederation.The Early Dual Federalism Approach to the Commerce Power – Mutual of “Selective” Exclusivity: No overlapping between state and federal power. welfare. and (2) Furthers a Legitimate State Interest (typically by rationale means to the end). v. protecting outsiders to the political process. and supporting individual economic liberty.
sending of inspectors to outof-state pasteurization plants to make quality checks. If the law is facially discriminatory. The state may. is “clearly excessive” in light of the purported local benefits. a. Several out-of-state users challenged the validity of the statute on the ground that it discriminated against interstate commerce. the law will be valid if its means are the least restrictive to further the law’s end. ii. v. a.C. (Bruce Church) 2. These objectives are generally not considered to be a legitimate state end. the Courts will sometimes consider not only the objectives which the state is pursuing. the safety objective could have been achieved by less burdensome means (e. Ex: City of Philadelphia v. where pursuit of it materially affects interstate commerce.state’s obective is to promote the economic interests of its own residents. While the State has an interest in protecting its environment or reducing costs to its residents.Facially Discrimnatory: The Least Onerous Alternative/Restrictive Means Test (“No Homecookin’”) 1. Ex: Dean Milk Co. On the other hand. and the regulatory scheme (prohibiting importation so that only regularly-inspected local plants could sell milk) was rationally related to that objective. it can pursue these ends discriminatorily. at the out-of state producers’ expense). ask if the burden on I. which was a condition to importation and sale. HELD: The ordinance is unconstitutional because it discriminated against interstate commerce and could not be justified by the absence of any less onerous alternative. but still allowed in-state waste to be disposed of it NJ landfills. New Jersey: A NJ statute prohibited the importation of most waste into the state. If not facially discriminatory. apply “least restrictive means” test (Dean Milk). HELD: The Court struck down the statute. The ordinance also limited the city’s responsibility for inspection. slow the flow of all waste into the state’s landfills. b. Even though the state’s objective (protection of residents against adulterated milk – health and safety rationale) was permissible. to a 25 mile radius. Per Se Rule of Invalidity”: A facially discriminatory statute is virtually invalid. however. City of Madison: Local regulations prevented the importation and sale of pasteurized milk unless processed within a five-mile radius of the city’s center. the Court is more likely to find that the national interest in free commerce outweighs the state’s interest. In considering the legitimate state end. but also the necessity of the means which the state has used to achieve this objective: If the objective could have been achieved by means less burdensome (or less discriminatory) to interstate commerce. even 33 .g.
Inc.though interstate commerce may be incidentally affected. Bruce Church. The regulation was applied to a California Company. Ex: Chemical Waste Case: An AL law imposed a fee of $26. Bruce Church Inc. Ex: Fort Gartiot Sanitary Landfill. which were of high quality. and its effects on interstate commerce are only incidental. c.000 to be paid by Bruce Church. If the state really taxes out-of-state and in-state waste equally. While the interest is a legitamate one cannot justify the $200.: An AZ statute required that all cantaloupes grown in Arizona must be packaged in AZ. The purpose of the requirement was to enhance the reputation and demand for AZ’s cantaloupes. it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits. the state interest is clearly outweighed by the national interest in 34 . but imposed an additional $72. even it was enacted in furtherance of environmental or other noneconomic motives. Thus.Not Facially Discriminatory: The “Clearly Excessive Standard” Undue Burden Test: Where a statute regulates evenhandedly to effectuate a legitamate local public interest. 1. i. then there is probably no violation of the Commerce Clause.000 (1960) to build an AZ packaging facility. HELD: The statute was invalid under the Dormant Commerce Clause. Environmental Protectionism: The Court will closely scrutinze any discriminatory or protectionist state action. The clearest example of such legislation is a law that overtly blocks the flow of interstate commerce at a State’s borders.00 for each ton “generated outside to AL.50 per ton of waster. iii. Taxation of Out-Of-State Waste: The Court is extremely vigilant to ensure that any such taxing scheme is not discriminatory. Although it applied even to waste transfers within the State as long as they went from one county to another. Ex: Pike v. which required them to process and package the cantaloupes in AZ rather than at their existing facility in CA.” HELD: The Court struck down the statute. The Court rejected the state’s argument that the extra fee compensated for environmental risks created by transportation on AL’s highways over long distances. Only if no lessdiscriminatory alternatives are available will the Court uphold such a statute. Michigan Deparatment of Natural Resources: A MI law prohibited waste from being imported into a given county unless it was done pursuant to a comprehensive waste management plan adopted by the county. b. Inc. i. the nondiscriminatory AZ regulation would require Bruch Church to spend over $200. v.. In effect. the Court still struck down the statute.
Dormant Commerce Clause Trumps State Plenary Powers 1.State as a Subsidizer vs. The purpose is to “help fuse into one Nation a collection of independent.) prevents states from discriminating against out-of-state residents. a. B. Thus. the state may favor local citizens over out-of-state interests. because such analysis does not consist of a facially discriminatory law.The interstate P & I Clause (Distinguish from the P & I Clause of § of the 14th Amen. Const. the State’s plenary power to regulate alcohol under the 21st Amendment was effectively trumped by the dormant commerce clause. sovereign States. allowing them to bypass wholesalers and retailers. 1: THE CITIZENS OF EACH STATE SHALL BE ENTITLED TO ALL PRIVILEGES AND IMMUNITIES OF CITIZENS IN THE SEVERAL STATES. Only “fundamental rights” covered: Only rights that are “fundamental to national unity” are covered. IV. Where the state acts as a market particpant where it buys and sells from and to in-staters. v. a. Trying to Regulate will give rise to a dormant commerce clause power. Regulating in Favor of In-Staters 1. But the general idea is that it is the state’s money and they can use it how they choo se. iv. RULE: State power over the regulation of alcohol (21st Amendment) is limited by the nondiscrimination principle of the Commerce Clause. V. Ex: Granholm Case: MI and NY gave preferential treatment to in-state wineries. GENERAL i. 2. TEST FOR P & I VIOLATION i. NOTE: Corporations.” 1. cl. HELD: The Court ruled that states must permit in-state and out-of state wineries to be subject to the same legal rules when it comes to shipping their products directly to consumers. Ex: TN provides In-State tuition for TN residents. The Clause “was designed to insure to a citizen of State A who ventures into State B the same privileges which the citizens of State B enjoy. ARTICLE IV INTERSTATE PRIVILEGES AND IMMUNITIES CLAUSE A. It is only with respect to those privileges and immunities bearing on the vitality of the 35 . ii. § 1.unencumbered commerce because the burden imposed on this commerce is clearly excessive in relation to the local benefits. Art. and In-stater’s are not protected and do not have standing. Aliens. Discriminatory Purpose & Discriminatory Effect fall under this test. Witsell). 2.” (Toomer v.
H. and therefore protected whereby discrimination is not allowed. The discrimination practiced against nonresidents bears a substantial relationship to the States objective. There is a substantial reason for the difference in treatment and the rule burdening out-of-staters. Fish and Game Comm’n) i. SUPREME COURT OF NEW HAMPSHIRE V. HELD: The preference violates the P & I clause. a. After applying the two part test below. the Court applies this two-part test to determine whether the discrimination is acceptable. the rule must be the least restrictive means necessary to further the substantial interest.Nation as a single entity that a State must accord residents and nonresidents equal treatment. and that 2. ii. 1. The P passed the N. The clause does not preclude discrimination against non-residents where and if the State can show that: 1. Access to employment is a right fundamental to national unity. c. However. discrimination is permitted. rule violated the P & I Clause.H. non-economic rights are generally not “fundamental to national unity. PIPER – APPLICATION OF THE P & I TEST i.” and thus are not protected by the P & I Clause. A Means of Livelihood: Right to be employed. while non-residents are charged $225. charging higher fees for a commercial fishing license may be prohibited because it is a means of livelihood. bar but was not admitted and brought suit.H. because the right to recreation is not a right that is fundamental to national unity.Two-Part Test (Limits on P & I Clause): Once the Court concludes that a “fundamental right” is at stake. Recreational Use: Conversely. Exception to the P & I Clause – Political Function Doctrine: The Court noted that “Although recognizing that the State might have legitimate reasons for limiting the right to vote or to hold elective office to its own citizens. Ex: Montana allows Montana residents to purchase a license for hunting elk and other animals for $30. Therefore. and the right to engage in business are all fundamental. right to practice one’s profession. Ex: Alaska requires that Alaskan residents be given an absolute preference over non-residents for all jobs on the Alaskan oil pipeline. (Hicklin v. 1. (Baldwin v. the preference failed because the preference was not closely tailored to the substantial reason (an unemployment problem). The State Law issue in this case was a N. Thus. a. a.” a lawyer is not a political officer of the State in any political sense. 36 . HELD: The N. Supreme Court rule that limited admission to the state bar to residents of the state. Orbeck) 2. HELD: This scheme does not violate the P & I Clause. Fundamental Right: The court noted that the right to practice law and membership is the bar is a privilege or immunity protected by the clause.
which would ultimately lead to striking down almost any statute on the ground that the Court could think o another “less restrictive” way to write it. Art. while Article IV only protectes out-ofstate residents. Market Participant: There is no “marketplace” exception to the P & I Clause and thus could proceed on this theory. These first two were thrown out immediately. he feared an overreaching by judicial review would occur. 1. The state offered these justifications for the law stating that non-resident members would be less likely to: i. Least Restrictive Mean: The trial court may require any lawyer who resides at a great distance to retain a local attorney to be available for meetings.C.judges and legislature be only limited to residents of the state? 1. they could because this is recreation. ii. & The P & I Clause 1. The Court has held that a corporation does not have standing under Art. ii. It is appropriate for state to have state residents only as officials. 3.H. i. The Dormant Commerce Clause challenege does not have to be an out-of-stater. Massachusetts Council of Construction Emplyers: The Court uphel a Boston ordinance requiring public work contractors to fill at leas 50% of 37 . Two-Part Test a.Be available for court proceedings. 1. Distinguishing The D.N. D. Ex: White v. iii. If carried too far. IV because a Corporation is not considered a “citizen.To do Pro bono work in the State. state parks? – A: Yes. HYPO: Could New Hampshire require that its REVIEW i. Be familiar with local rules and procedures. 4.” 2. iv. Least Restrictive Mean: They could still be required to do so by the State. Alternate Legal Theory – Dormant Commerce Clause: The P could have used a domrnat commerce clause argument because the statute was facially discriminatory. 4. 1. IV protectes only those interests considered fundamental rights. There is no fundamental right threshold in dormant Commerce Clause doctrine. 3. these are public officials that exercise state political power. A: Yes.C. Dissent: Justice Rehnquist found that the Court’s “lessrestrictive means” test was ill-advised and unmanageable. iii. a. 2.To behave ethically.Voters? – A: Yes.
Some times. IV. Uses Spending Power. 38 . 1: NEW STATES MAY BE ADMITTED BY THE CONGRESS INTO THIS UNION. OR PARTS OF STATES. Art. The State itself gets to decide what the boundaries of its own State are. it was a market participant and was not in violation of the dormant Commerce Clause. iv. 2. WITHOUT THE CONSENT OF THE LEGISLATURES OF THE STATES CONCERNED AS WELL AS OF THE CONGRESS. RECORDS. states envoke the doctrine of State Sovereignty. GENERAL i. both are warranted. §3. §1 (Full Faith and Credit Clause): FULL FAITH AND CREDIT SHALL BE GIVEN IN EACH STATE TO THE PUBLIC ACTS. cl. 1.Rules of Thumb 1.When to use the Dormant Commerce Clause and the P & I Clause of Art. Limitation on indivudal lberty? – Typically P & I 3.Const. Once a State is recognized as a State. ii. Art. RECORDS. AND PROCEEDINGS SHALL BE PROVED. STATE SOVEREIGNTY A. it is theoretically a sovereign entity. A Federal Statute is More Likely To Be Upheld if Congress: a. When Congress attempts to regulate a State as a state entity. The Court concluded that since the City’s funds were at issue.Const. BUT NO NEW STATE SHALL BE FORMED OR ERECTED WITHIN THE JURISDICTION OF ANY OTHER STATE.all construction jobs with city residents. Broad based economic regulation – DC VI. AND THE CONGRESS MAY BY GENERAL LAWS PRESCRIBE THE MANNER IN WHICH SUCH ACTS. IV 1. NOR ANY STATE BE FORMED BY THE JUNCTION OF TWO OR MORE STATES. IV. What result under a P & I analysis? ii. It gets to decide its own boundaries. AND JUDICIAL PROCEEDINGS OF EVERY OTHER STATE. This provision basically protects the territorial integrity of the States. iii. AND THE EFFECT THEREOF.
L. Line-Drawing Problem: It is diffcult. but to state governmental employees. Regulates State Employees.’” 4.” rather than regulating commercial activities or private persons.Soverignty Test: Four conditions must be satisfied before a state activity may be deemed immune from a particular federal regulation under the Commerce Clause: 1. c. the fact that it is a state being regulated has virtually no practical significance – if the regulation would be valid if applied to a private party.C. SAN ANTONIO METROPOLITAN TRANSIT AUTHORITY i.b. NATIONAL LEAGUE OF CITIES V. acting pursuant to its Commerce Power.GARCIA V.O. if not impossible. USERY TEST i.’” 3. A Federal Statute is Less Likely To Be Upheld if b.O.SAMTA state-owned entity operating mass transit sued for declaratory judgment that it was entitled to immunity from minimum wage and overtime pay provisions of the Fair Labor Standards Act. 1. State compliance with the federal obligation must ‘directly impair the States’ ability ‘to structure integral operations in areas of traditional governmental functions. Exercises Express Preemption Power Congress: a. ii.O. Regulates private as well as States.” 2. Commandeers’ State Employees i.C. to identify an organizing principle that would distinguish between those functions that are 39 . Ex: Federal government forcing state troops need to do affirmative acts to implement some federal regulation. c. THE c.C . Regulates Just States.L.L. ii. The relation of state and federal interests must not be such that “the nature of the federal interest…justifies state submission. The Court held that the 10th Amendment barred Congress from making federal minimum-wage and overtime rules applicable to state and municipal employees under the the Fair Labor Standards Act. The statute must “address matters that are indisputably attributes of state sovereignty. The Federal statute at issue must regulate the “States as states. Test proved as a unworkable line-drawing test because: a. The issue was not whether congress had the power regulate the wage and hour regulation for private entities. it is also valid as to the state. regulates the states. Plaintiff argued the ownership and operation of the mass transit system is a traditional governmental function and is exempt/immune from FLSA obligations. HELD: The Court explicitly overruled National League of Cities and its test and held that SAMTA was not immune from Congressional regulation under FLSA. RULE: Once Congress. b. OVERRULING N. Test: The 3rd Prong of the N. Rationale for Abandoning N. 2.
“traditional governmental functions” and those that are not. Too Subjective: Any rule of state immunity that looks to the “traditional. state sovereign interests are protected by procedural safeguards inherent in the structure of the federal system.Modern Federal Regulation: State’s have been able to utlilize federal funding while at the same time exempting themselves from a wide variety of obligations imposed by Congress under the Commerce Clause. ii. ii. Separation of Powers: There is an overreaching of the judiciary. United States: Congress enacted the LowLevel Radioactive Waste Policy Amendments Act of 1985. Procedural Safguards a. 3. as the majority did. 5. 2. rejects the basic precepts of the federal system.Use of State’s Lawmaking mechanisms 1. c. 4. However. The rejection of National League of Cities does not mean that there are no limitations upon the federal government’s right to use its delegated powers to impair state sovereignty. NOTE: Under National League of Cities. Congress can now regulate a significant sphere of activities that were envisioned for regulation by the States. or (2) require state executive-branch personnel to perform even ministerial functions. Acting contrary to this.” “integral. b. The separate sphere of State sovereignty is to act as a counterbalance to the federal government. The following cases stand for the propositions that Congress may not (1) force a state to legislate or regulate in a certain way. Ex: New York v. the State would have been immune to provisions of the FLSA. leave it to Congress to decide if there is overreaching. There is a risk that Congress will erase the separation of power between the federal and State governments. Congress could not intervene in this area of State sovereignty. Powell’Dissent: The majority has made meaningless the Tenth Amendment when Congress acts pursuant to the Commerce Clause. D. not by judicially created limitations on federal power. i. O’Connor’s Dissent: Virtually every state activity arguably affects interstate commerce. The Act attempted to force each state to make its own arrangements for disposing (either in-state or our-of-state) 40 . CUTTIN’ BACK LOPEZ i.” or “necessary” nature of governmental functions inevitably invites an unelected federal judiciary to make decisions about which state policies it favors and which one it dislikes. There is no protection against these encroachments on state activities. Bicameral legislature – Equal Senate Representation: The representatives are from the states and these are cognizant of the state/federal balance.
iii. and then to deny access altogether. Take Title Incentives (INVALID): Vested title to the waste in the state if they did not comply with the regulations. a. (Distinguished from Philadelphia case) b. and instead followed the reasoning from the Dissent’s in Garcia.Anticommandeering Principle as a Limit on Congressional Power 1. Access Incentive (VALID): Authorized sited states gradually to increase the cost of access for waste generated states that do not meet federal guidelines. but laws that require that individual state offices to enforce and impement out federal program. it is the federal government. The state executive resources protected by principles of state sovereignty. and even if the compulsion is only temporary. RULE: While Congress may preempt state law and may enact incentives for states to adopt federally approved standards. HELD: The Court held that the 10th Amendment was violated. in turn. states receive funding. Monetary Incentive (VALID): Provided that states with disposal sites may impose a surcharge on waste from other states. HELD: The Act’s provisions were unconstitutional because it improperly commandeered state executive branch resources to implement the [federal] program. They adopted the reasoning of the dissent of Garcia. c. N. i.Y. Violates 10th Amendment: The court specifically rejects the “poltical process will work itself out” rationale enunciated in Garcia. the Court did not overrule Garcia. Congress’ use of Spending Power. Out of fear for being called activists. the state would be liable for damages in connection with the waste. This is true even if the functions are fairly ministerial and esy-to-perform. iv.of the low-level radioaction waste generated in that state through a series of incentives. Thus.Upholding Congress’ Laws that only Promote a Minimal Federal Interest 41 . sued the federal government stating that the “take-title” provision violated the 10th Amendment because it effectively forced the state to regulate in a particular area. United States: The [Federal] Brandy Hand Gun Violence Prevention Act’s provisions required state and local enforcement officers to conduct background checks on prospective handgun buyers. Ex: Printz v. i. Not just reghulation. No dormant commerce clause/discrimination issue because it is not the states that are enforcing it. Congress may not force the states to enact federal regulations directly nor may it direct state officials to carry out a federal regulatory program. i. a.
or forces state officials to perform particular governmental functions. . AND. and oath of office. although it intruded into state sovereignty. 1. INHERENT POWERS IN THE CONSTITUTION i. qualifications. cl. merely because it is a state that is being regulated along with other private entities. and thus violates the 10th Amendment. moving the State capital Regulates private as well as States Regulates State Employees Exercises express preemption of state power. the election process.1 i. AND OF THE MILITIA OF THE 42 . a.). Art. Const. Describes length of term. compensation. succession. BE ELECTED . .§ 2 cl. II. State has plenary power to decide where to position its capital. OF POWERS SOURCES OF PRESIDENTIAL (EXECUTIVE) POWER – ARTICLE II a. Ex: Coyle v. Art. §3. ii.g. which. TOGETHER WITH THE VICE PRESIDENT. HE SHALL HOLD HIS OFFICE DURING THE TERM OF FOUR YEARS. IV. But where the federal government tries to force a state or local government to enact legislation or regulation. Here the 10th Amendment does not entitle a state’s own operations to an exemption. i.accepted federal interest. CHOSEN FOR THE SAME TERM. e. Violates the anticommandeering principles of Printz PART IV – PRESIDENTIAL POWER & SEPARATION I. Garcia conernced a federal statute based upon a generally State Sovereignty Rules of Thumb from Cases Federal Statute More Federal Statute Less Federal Statute Likely to Be Upheld if Likely to be Upheld if Definitely Invalid Congress… Congress… Uses spending power Regulates just states Explicit text of the Constitution reserves the power to the States The regulation encroaches upon state territorial integrity. Reconciling Garcia 1. 1 (Vesting Power) THE EXECUTIVE POWER SHALL BE VESTED IN A PRESIDENT OF THE UNITED STATES OF AMERICA. this legislation is in the perview of State Soverignty. § 1 cl. did not reach the deepest core of that concept. 1. Thus. Garcia seems to apply mainly to generally applicable federal lawmaking (laws that apply to both states and individuals etc. Smith: No significant federal interest in deciding where a State’s capital should be. 1 & 2 (War Powers): (1) THE PRESIDENT SHALL BE COMMANDER IN CHIEF OF THE ARMY AND NAVY OF THE UNITED STATES. open-ended questions remain as whether an Act of Congress will be upheld if it only promotes a minimal federal interest in a core of state sovereignty.
EXCEPT IN CASES OF IMPEACHMENT. Describes role as Commander and Chief and the powers to grant pardons. PROVIDED TWO THIRDS OF THE SENATORS PRESENT CONCUR. and fill vacancies. a. make treaties. LIMITS ON THE INHERENT POWERS OF THE EXECUTIVE i. the taking of private property in order to keep labor disputes from stopping production of war material was too far removed from the actual “theater of war” in which the President had the right SEVERAL 43 . 2. v. the President is generally free to define the scope of his own authority. HELD: The court rejected the government’s contentions and held that it was an unconstitutional exercise of the lawmaking authority reserved to the states because there was no statute nor a constitutional provision authorizing it. Ex: Youngstreet Sheet & Tube Co. Thus. A direct provision of the Constitution (express or implied). TO MAKE TREATIES.No Right to Make Laws: The President may not make laws. unless the power exercised is constitutionally questionable enough to cause intervention of the legislature or judiciary.Implied Powers 1. JUDGES OF THE SUPREME COURT. BY AND WITH THE ADVICE AND CONSENT OF THE SENATE. AND BY AND WITH THE ADVICE AND CONSENT OF THE SENATE. Presidential authority comes from either: 1. 1. appoint officials. if the Supreme Court conclude that a presidential action is properly regarded as being part of the “executive” sphere.STATES. The order could not be justified under this provision. WHEN CALLED INTO THE ACTUAL SERVICE OF THE UNITED STATES…AND HE SHALL HAVE POWER TO GRANT REPRIEVES AND PARDONS FOR OFFENSES AGAINST THE UNITED STATES. Commander-in-Chief Power: Justice Black rejected this argument.§ 3 (“Take Care Clause”): …HE SHALL TAKE CARE THAT THE LAWS BE FAITHFULLY EXECUTED… B. President Truman sought to avert a strike in the nation’s steel mills. Sawyer (“The Steel Seizure Case”) – Justice Black’s Formulistic Approach: During the Korean War. He therefore issued an executive order directing his Secretary of Commerce to seize the mills and operate them under federal direction. AND HE SHALL NOMINATE. or 2. iii. Thus. he may only carry them out. An Act of Congress ii. that action will not be rendered unconstitutional merely by the fact that it does not fall within the president’s enumerate powers. The steel companies ought an injunction to prevent the seizure. 1. Much of the President’s power has been derived implicitly from the explicit constitutional powers above. SHALL APPOINT AMBASSADORS. OTHER PUBLIC MINISTERS AND CONSULS. (2) HE SHALL HAVE POWER. AND ALL OTHER OFFICERS OF THE UNITED STATES…. The government contented that this power should be implied from the president’s enumerated powers. The steel mill argued that the seizure was not authorized by an act of Congress or a Constitutional Provision. iii. Congressional approval of the seizure order was not requested.
to set policy. in which case “there is a zone of twilight in which he and Congress may have concurrent authority. Congressional Silence (Middle Power): Where the President acts in the absence of either a congressional grant or denial of authority. i. not make them (which is reserved to the legislature in Article I) 2. Congress did not leave the seizure of private property an open field but had three statutory policies inconsistent with the seizure. interpret on case-by-case basis taking into account the “imperatives of events and contemporary imponderables. Here. in this case. and the executive seizure of the steel industry in particular. So we are inferring that Congress disapproved of this particular seizure. Here. Jacksons felt that the Steel Seizure Case. While the President has broad power to do this in a theater of war. i.” i. b.” Valid only if President has an independent source of power and Congress lacks power in this area. there was no congressional authority for the seizure. d. i. HYPO’s under Jackson Analysis: What if Congress passed a law saying that the President could not pardon rapists before convicted? Suppose Congress passed a law that said that president could jail people 44 . c. Jackson’s Functional Approach (Jackson’s Concurrence): Stated that the President’s powers “are not fixed but fluctuate. Congressional Disapproval (Lowest Power): Where the President acts in contradiction to the express or implied will of Congress. What if the president seized private property to repel an invasion? This would be proper according to majority it would be a theater of war. or in which its distribution is uncertain. Congressional Approval (Highest Power): Where the President acts pursuant to express or implied authorization of Congress. depending on their disjunction or conjunction with those of Congress. his power is “at its lowest ebb. b.” He conceived three categories: a.” Silence could be acquiescence. in which case his authority is at its maximum and is valid as long as Federal Government generally has the power. Vesting Power/Take Care Clause: Nor could the seizure be justified under the President’s power to see that the laws are faithfully executed – the very language of the clause shows that the President must merely carry out the laws. fell into this category because Congress had already covered the field here that provided for different types of seizers. the distinction comes in when he tries to do this within the united states.
unbroken. past presidential actions.This case could be analyzed as a: 1. I. HE SHALL SIGN IT. IT SHALL BE SENT. 2 (Presentment Clause – Approval or Veto of Bills): EVERY BILL WHICH SHALL HAVE PASSED THE HOUSE OF REPRESENTATIVES AND THE SENATE. “Deeply embedded traditional ways of conducting government cannot supplant the Constitution or legislation. b.VETO/IMPOUNDMENT POWER a. engaged in by presidents who have also sworn to uphold the constitution. Gloss on the Constitution (Frankfurter’s Concurrence) a. It is an inadmissibly narrow conception of American constitutional law to confine it to the words of the Constitution and to disregard the gloss which life has written upon them. making as it were such exercise of power part of the structure of our government. §7. Separation of power case. The President has no power to raise revenue. Takings Clause (Douglas Concurrence): The seizure of the mill is “taking” in the constitutional sense and compensation is required. 45 . 1. II. VETO POWER GENERALLY i.” i. TO THE OTHER HOUSE. THE PRESIDENT’S EXERCISE OF QUASI-LEGISLATIVE POWERS . Thus. 3. Individual case on constitutional basis. but they give meaning to the words of a text or supply them. IF AFTER SUCH RECONSIDERATION TWO THIRDS OF THAT HOUSE SHALL AGREE TO PASS THE BILL. what has congress done in the past? These types of experience can inform our constitutional interpretation. One gives a governmental authority that reaches so far as there is law. The most significant and direct constitutional acknowledgment of the Executive’s legislative function is the President’s veto power. Here. Cl. BUT IF NOT HE SHALL RETURN IT…. This view is contrasted with Black’s view of where the President gets his power. because the legislature has this power. In short. 2. the historical record is barren of instances comparable to the one presented. SHALL… BE PRESENTED TO THE PRESIDENT … IF HE APPROVES. Thus. for speaking out against Korean war effort and president jailed people? (#1) iv. this is not a recognized executive power. long pursued to the knowledge of the Congress and never before questions. Historical experience. may be treated as a gloss on “executive Power” vested in the President by § 1 of Art. the other gives a private right that authority shall go no farther. Const Art.I. executive practice.” 1. TOGETHER WITH THE OBJECTIONS. a. 5th amendment Due Process Clause (Jackson’s Concurrence): The “Take Care Clause” must be matched with the 5th Amendment. it is the only one that can authorize the seizure. a systematic. also known as an “Executive Plenary Power.
2. If the measure is vetoed. THE SAME SHALL BE A LAW. IT SHALL BECOME A LAW…. provided that he did so within five days after enactment as well as considered other relevant information and followed other procedures. HELD: The Line Item Veto Act is unconstitutional because it violated the Presentment Clause. UNLESS THE CONGRESS BY THEIR ADJOURNMENT PREVENT ITS RETURN. the statute cannot go into effect unless the President sigs it.BY WHICH IT SHALL LIKEWISE BE RECONSIDERED. to amend. At that point. The process laid down in the Presentment Clause is the only way authorized in the Constitution to enact or repeal a bill. a. one which cannot be overridden). Violates Presentment Clause: To begin. 1.e. the only way Congress could restore the vetoed item was reenact it as a separate “disapproval bill. it would authorize the President to create a different law – one whose text was not OF THAT BY THE 46 . The provision gives the President the power to veto any bill passed by Congress. IN LIKE MANNER AS IF HE HAD SIGNED IT. If it were valid. b. and then to “cancel” any individual spending or limited tax benefit item he wished. The Act: Gave the President the power to “cancel” any of several types of provision contained in statues. City of New York: In an effort to control federal spending.Pocket Veto: The provision provides that if the President fails within 10 days either to sign a bill or to veto it and return it to the house in which it originated (so that an override can be made). Ex: Clinton c. In this situation. AND IF APPROVED BY TWO THIRDS HOUSE.” which the President could veto again. The City of New York challenged the “spending cancellation” and the Snake River Farmers cooperative challenged the cancellation of a “tax break” provision. IN WHICH CASE IT SHALL NOT BE A LAW. whereas the Presentment clause requires veto of the entire bill. Net Effect is to Let President Write new Bill: The Act gave the President the unilateral power to change the text of duly enacted statutes. the veto can be overridden (and the measure enacted into law) only by a 2/3 vote in each house. the President is given an absolute veto power (i. ii. However. IF ANY BILL SHALL NOT BE RETURNED PRESIDENT WITHIN TEN DAYS (SUNDAYS EXCEPTED) AFTER IT SHALL HAVE BEEN PRESENTED TO HIM. that section also provides that if Congress by its adjournment has prevented return of the vetoed legislation. Congress passed the Line Item Veto Act. rather than before. including an “item of new direct spending” and any “limited tax benefit. The Act failed to follow this procedure in at least two ways: (1) The President’s “return” of the bill (his veto of it) occurred after the bill had been signed into law. and (2) The cancellation could apply to only part of the bill. the bill becomes law. LIMITS ON PRESIDENTIAL VETO – LINE-ITEM VETO/STATUTORY LINE ITEM VETO i. or to appeal statutes.” The Act allowed the President to sign an entire bill into law. 3. there is not a Constitutional provision that authorizes the President to enact. The net effect of the Act was to let the President plus 1/3 of Congress (the % necessary to uphold the president’s veto of the disapproval bill) veto any individual item of spending or limited tax benefit.
47 . We can gather from this that a formalistic approach is taken when it comes to separation of powers generally and legislative and executive powers specifically. this kind of statute is okay. the President can selectively spend or withhold funds on different provisions of a bill. Dissent: The Act did not give the President power to repeal or amend the statute because the statute itself remains fully in force following the “cancellation action. but lists factors that. Executive Authority to decline to spend Appropriate Funds v. Any change to this is presumptively unconstitutional. b. Separation of Powers Issue (Kennedy Concurrence): a. b. something it had done many times in the past. Clark: Congress made the decision to suspend or repeal provisions at issue upon the occurrence of particular events subsequent to enactment. The Act: This type of statute proscribes a legislative function not within the scope of Executive Power and is in opposition to the Presentment Clause. C. The President can also directly affect legislation through the impoundment of appropriated funds.4. The Act allows the President the sole ability to hurt one group that is a visible target and to award another. 7. Historical Argument: Detailed procedure in presentment clause was the result of much debate of the framers. Unlike the veto or pocket-veto. This highly controversial power is exercised when the President delays or refuses to spend Congressionally authorized funding. voted on by either House of Congress or presented to the president for signature. the change should come by a Constitutional Amendment through Article V. The Act: a. He rejected the idea the political branches may freely allocate their own authority by holding as flawed the premise that liberty is not at stake when one or more branches seek to transgress the separation of powers whereby concentration of power is in the hands of a single branch. The law is the functional equivalent of a line item veto and enhances the President’s powers beyond what the Framers would have endorsed. Congress merely gave the President the discretion to spend or not to spend an appropriate item. Ex: Field v. and it only left the determination of whether such events occur up to the president. if they occur he can refuse to spend. Thus. Courts are less willing to be flexible to the demands of the modern administrative state. a. IMPOUNDMENT i.” Instead. NOTE: If the President is to play a different role in the process of enacting legislation. 6. 5. if Congress grants the President authority to spend.
1. However. §7. City of New York. and over Presidential Veto. An argument could be made that it falls in the 2nd category. but Court has never ruled on it. Impoundment Control Act of 1974: During Nixon’s broad assertion of this power. not the President that is regarded as having the “power of the purse” and to enact legislation. reasoning through a narrow view of statutory interpretation and holding that congressional appropriations were mandatory rather than discretionary.Const. RESOLUTION. ONE-HOUSE LEGISLATIVE VETO i. Art. 3: EVERY ORDER. It is Congress. Further. Art. Lower federal courts have refused attempts to impound funds. Const. WHICH SHALL CONSIST OF A SENATE AND HOUSE OF REPRESENTATIVES. This corner or constitutional law has taken a very formalistic approach and has not looked at the underlying practicalities. It recognizes only two forms of impoundment: (1) Deferral of budget authority. 48 . LEGISLATIVE VETO A. B. I. OR VOTE TO WHICH THE CONCURRENCE OF THE SENATE AND HOUSE OF REPRESENTATIVES MAY BE NECESSARY (EXCEPT ON A QUESTION OF ADJOURNMENT) SHALL BE PRESENTED TO THE PRESIDENT OF THE UNITED STATES. the court rejected Nixon’s attempt to withhold funds as a matter of statutory construction of the Federal Water Pollution Control Act. SHALL BE REPASSED BY TWO THIRDS OF THE SENATE AND HOUSE OF REPRESENTATIVES.Separation of Powers issue: It has been argued that impoundment in effect repeals a law when the President withholds appropriated funds.Const. SHALL BE APPROVED BY HIM. The Supreme Court has never ruled on the constitutionality of impoundment. AND BEFORE THE SAME SHALL TAKE EFFECT.power vested in the Executive to control finances and policy. Art. I. §7 (Presentment Clause) iii. the President must faithfully execute the law. 2. ACCORDING TO THE RULES AND LIMITATIONS PRESCRIBED IN THE CASE OF A BILL. in Train v. I. ii. cl. Presidents claim that impoundment power is an inherent II. and (2) Rescission of budgetary authority. §1 (Vesting power in Congress): ALL LEGISLATIVE POWERS HEREIN GRANTED SHALL BE VESTED IN A CONGRESS OF THE UNITED STATES. The Supreme Court has never passed on it as the statute is a “gloss” on the constitution. 1. b. GENERAL i. OR BEING DISAPPROVED BY HIM. iii. the act seemingly defuses the Separation of Powers issue as a compromise between the two branches. ii.Steel Seizure Analysis: The power is most typically seen when it comes to presidential spending on defense and military (Commander and chief authority) but it conflicts with Congress’ power to spend funds (third Category). Court Rulings a.
by which both house must pass a bill before it can become law.N. Violation the Bicameralism: Since this type of veto could be exercised by a single house. it violated the bicameral requirement of Art. If. The deportation proceedings were reopened and the judge implemented the order on Chada. i. I. Protection of small states: The framers allayed the fears of both large and small states by having a House (representing the people) and the Senate (States).This veto is a device that enables Congress to monitor the executive branch and administrative agencies. Enable the President to defend himself. because it violated both: (1) The President’s veto power. Reasons for Bicameralism 1. and Congress disagrees. overstayed his welcome in the U.S. b. v. after an agency takes a certain action (issuance of a regulation). and the framers explicitly assured that these requirements not be circumvented for fear that a “resolution” or “vote. without vote. would be passed. i. by resolution. Pursuant to the Immigration and Nationality Act that allowed the Attorney General to suspend deportation. an alien. 3 Reasons for Presentment 1. the fact that the veto mechanism may be a more “efficient” means of controlling administrative action is irrelevant. 1. and 3. all the most important prerogatives of sovereignty could cause special interests to be favored at the expense of public needs. the immigration judge held that Chada met its requirements and thus Chada should not be deported. the veto provision in the original bill allows one or both houses to cancel the action by means of a resolution. in a single body. and (2) The Bicameral structure of Congress. §§ 1 and 7. and 49 . Assuring that the national perspective is grafted on the legislative process. which is not presented to the President for an opportunity to veto it.” rather than a bill. The Act included a provision allowing this determination to be invalidated by one house of Congress.Thus. Violation of Presentment Clause: Every bill must be presented to the President for signature. 2. so that he may have the opportunity to veto it. Veto Rule Unconstitutional (I. Chada): Chada. a. Such a veto provision is included as part of a statute delegating powers to federal agencies. Diffusion of legislative power: Accumulating. 2.S. Prevent the passing of bad laws. ii. The House considered the decision and reversed. or presentment to the President. treatment as a legislative act. HELD: The Supreme Court held that a typical one-house legislative veto was unconstitutional. The lawmaking power is shared by both Congress and the President.
d. 2: The Senate alone was given unreviewable power to ratify treaties negotiated by the President. cl. cl. Can they pass this? No. Consequence: Thus. Legislative Action: Not every action taken by either house is subject to bicameralism and presentment. Two-House Veto Provisions: Legislative veto clauses allowing a veto only where both houses act concurrently are just as unconstitutional as a single-house veto provision. II. Formalistic Approach: Even when bicameralism is satisfied and presentment is arguably c. they are supposed to be independent. §2.3. there is still no room for a legislative veto. I §2. Presentment is true when there is a requirement of bicameralism. Congress can only reverse an 50 . 1. overruling the Attorney General’s decision on deportation constituted legislative action outside the legislative branch. 6: The Senate alone was given the power to conduct trials following impeachment.Art. §2. Independent Regulatory Agencies: These things are created by an act of Congress but they are not located within the executive branch.Art. since both types of clauses deprive the President of his veto power.The purpose of the challenged provision can only be achieved by legislation. Opportunity for debate and study in separate settings. e. instead.Art. Uni-Cameral Powers (Textual Argument): The Constitution prescribes 4 instances where either House can act alone outside its bicameral legislative role. administrative decision by passing a law. However. 2. iv. While this is not a violation of the separation of powers. Chada: Here. i. cl. the requirements are triggered because this is legislative action. ii. a. If a decision is made by them. Bush is still in office and it is unlikely he will sign it. i. I. alone was given the power to initiate impeachment. It alters someone’s legal status. 5: The House of Rep. Art. in the constitutionally formalistic procedure (passage by both houses and presentment to the President. or ii. An action is subject to these requirements when: i. it will not be presented to the President nor can the President remove the independent Agency. HYPO: What if the House passed a resolution that condemned Bush’s action in Katrina. 2. 2: The Senate alone was given final unreviewable power to approve or to disapprove Presidential appointments. cl. §3. II. iii.
it must meet bicameralism and presentment.Post Chada Cases 1.N.Restrictive View 51 . the dissent noted that because the agency was truly independent. explain the reasons for these requirements. iv. Chada a. or the Emoluments whereof shall have been encreased during such time. Must be a legislative act c. the regulations based by them have the force of law without the President’s concurrence or veto power. REVIEW i. THE NONDELEGATION DOCTRINE i. 3. which shall have been created.uninvolved. I. This doctrine involves the interaction between the legislative function and the administrative state. 2: No Senator or Representative shall. Must be presentment and bicameralism. Ex: Process Gas Consumers Group v. I. C. Anti – Aggrandizement: An argument could be made on a separation of powers basis that the veto was adjudicatory and therefore impermissible because Congress sought to aggrandize itself. v. shall be a Member of either House during his Continuance in Office. GENERAL i. which shall consist of a Senate and House of Representatives ii. Consumers Energy Council (FTC and Federal Energy Regulatory Commission): However. If an act is a legislative act. Presidential Veto 1. Ex: I.Legislative Veto invalid 1. Two-House Legislative Veto 2. the Court still says this it is a legislative act and must comport with constitutional Procedure. While the Constitution is silent on the issue of Congressional delegation to the Executive.S. the legislative veto would not interfere with the President’s control over the agencies. Violates Bicameralism and Presentment b. Ex: Clinton v. Independent Agencies III. Thus. ii. 1. cl.Const Art. be appointed to any civil Office under the Authority of the United States. § 6. during the Time for which he was elected. Art. Const. ii.Line Item Veto invalid 1. New York iii. § 1 (Vesting Power of Congress): All legislative Powers herein granted shall be vested in a Congress of the United States. Art. and no Person holding any Office under the United States. 1. §1 requires that these powers be vested in Congress. CONGRESSIONAL DELEGATION OF QUASI-LEGISLATIVE POWER TO “INDEPENDENT REGULATORY AGENCIES” OR OFFICERS A. b.
The Court focused on the vagueness and broadness of the term “Fair Competition” as used in the Act and stated that it gave the Executive insufficient guidance. and employee wage and hour limits.Reviving the Non-Delegation Doctrine: Schecter has never been followed. (3) Congressional Accountability.The Death of the Nondelegation Doctrine: The two cases above are the only ones where the Court has invalidated statutes under the Doctrine. iv. Justice Renhquist. v.” v.W. This may be an instance where the Court could revive the doctrine by looking at: (1) Const. SEPARATION OF POWERS ISSUE – APPOINTMENT AND REMOVAL OF EXECUTIVE PERSONNEL 1. but has also not been overruled. Jr & Co. clear rules. unfair competition. (4) Need for Predictability. §1. would we be justified in overriding its choice of means for effecting its declared purpose preventing inflation. iii. 1. C. United States: The Supreme Court rejected a statute authorizing the Executive to promulgate a “live poultry code” which established regulations governing the sale and quality of chicks. United States): This modern approach to delegation of authority to agencies of the Executive Branch involved a challenge to the Emergency Price Control Act. Hampton. etc. (2) Political Justifications.provision of the National Industrial Recovery Act of 1933 which delegated to the Executive the authority to prohibit the interstate transportation of oil violating state mandated production quotas “to rehabilitate industry and to conserve natural resourses. United States to Yakus): “Only if we could say that there is an absence of standards for the guidance of the Administrator’s action. American Petroleum Institute. which allowed an agency to fix maximum process of commodities and rents to prevent wartime inflation. It mandated that the prices set be “fair and equitable. Ex: Panama Refining Co. Art. v. Ex: Schecter Poultry Corp. 1. so that it would be impossible in a proper proceeding to ascertain whether the will of Congress has been obeyed. 2.” and “public interest” standards. Ryan: The Court invalidated a 52 .” HELD: The statute did not sufficiently direct the Executive’s actions and therefore impermissibly delegated legislative discretion to the President. and give president plenary power to have full discretion for the next two years and then adjourn for the subsequent two years? A: Probably not because Congress is delegating such broad authority to Executive. The Court has upheld statutes authorizing the Executive to promulgate regulations on vague “fair. advocated for its resuscitation stating that the Court should not be worried about reinvigorating a discredited doctrine when its goal is to ensure that Congress itself make critical policy decisions.Modern Non-Delegation Doctrine (Yakus v. v.” HELD: The Court upheld the statute stating that there were proper penal guidelines. Modern Formulation of the Intelligible Principle Standard (From J. HYPO: Could Congress start a new session on first day. in Industrial Union Department v.” “reasonable. 1.
i. so long as the removal restrictions are not of such a nature that they impeded the President’s ability to perform his constitutional duty. look at the underlying motive of the legislation. d. The Attorney General could only terminate the independent counsel for “good cause”. A three-judge panel appointed the special prosecutor. Synar (The “Gramm-Rudman-Hollins Case”): Congress passed the Gramm-Rudman Act to reduce federal budget deficits by requiring automatic across the board cuts to federal spending.of powers issues underlying the legislative delegation of power remain significant. HELD: The Court struck down statute because it gave the budget cutting power. Ex: Morrison v. The C. separation of powers issues arise when Congress delegates law-making power to the President or interferes with the President’s powers. Congress reserved to itself the right to remove the officer for specified reasons. or the boundary between the Executive and Judicial Branches. THE JUDICIAL BRANCH i. As shown above. ii. INTERFERENCE WITH. and thus the President retained the power to make sure she was acting competently. In determining whether there is a violation of separation of powers. a. Once the special prosecutor was appointed. an executive power. was a legislative entity because he could be removed by Congress and could not constitutionally exercise the powers given to him by the Act. Olsen: The statute here required the Attorney General to investigate allegations of wrongdoing by executive officers and apply for the appointment of a special prosecutor if further investigation was warranted. Similar separation of powers issues can be presented by action that takes place at the boundary line between Congress and the Judicial Branch. HELD: The Court upheld the statutes and stated that the removal provisions did not restrict the President’s powers as to violate separation of powers. a. namely the Comptroller General. This. ii.General Rule: The Judicial Branch’s role cannot be abridged by action of one of the other branches. RULE: Congress may limit the President’s right to remove a purely executive officer. Ex: Bowsher v. The Act gave a key role to an “independent” government officer in carrying out the automatic cut provisions: The Comptroller General.Congress Restricting Executive Power of Removal 1. the Act is invalid. While the nondelegation doctrine has been ignored. functions that are the appropriate job of the other two branches cannot be given instead to the Judicial Branch. and conversely.Removal by Congress 1. OR UNDUE DELEGATION TO. to a legislative entity. iii. she could only be removed by the Attorney.G. By Separate older legislation. RULE: Congress may not reserve to itself the power to remove an executive officer. the separation 53 .
RULE: Congress has flexibility in assigning the Judicial Branch tasks that might be considered law-making ones. and thus did not violate the intelligible principal standard from Yakus. the Commission is located in the Judicial Branch. a. HELD: The Court upheld the Commission.” there exists a constitutional area in which separate Branches merge. 2. The Court found no violation because the guidelines were definite and specified. i. at least 3 must be federal judges. Analogy to Federal Rules of Civil Procedure). Composition of the Commission: The Act does not impermissibly interfere with judiciary because: (1) Text of 54 . Congress provided that of the seven voting members (all to be appointed by the President with the advice and consent of the Senate and removal by the President for good cause). and (2) As long as moonlighting does not undermine the integrity or impartiality of the judicial branch. Here.Separation of Powers: There is no danger of encroachment or aggrandizement or erosion of the integrity of the judicial branch because: 1. at least where the subject matter (1) Relates to the role of the courts. set up by Congress. United States: The United States Sentencing Commission. 2. Location of Commission: (1) Congress’ decision to create an independent rulemaking body to promulgate sentencing guidelines and to locate that body within the Judicial Branch is not unconstitutional unless Congress has vested in the Commission powers that are more appropriately performed by the other Branches or that undermine the integrity of the Judicial Branch. Thus. Plaintiffs argued that Congress was assigning to the judges on the Commission not the job of interpreting the law (a proper judicial role).e. but the law-making job of making sentencing guidelines (a legislative function). (2) “Twilight Area” of nonadjudicatory activities of the Judical Branch – While the judicial power is limited to “cases” and “controversies. was supposed to develop mandatory guidelines that federal judges would have to apply in setting sentences for federal crimes. Sentencing is a particular judicial function that is shared by the Branches and falls in this category (i. Non-Delegation Doctrine: P’s argued that Congress granted the Commission excessive legislative discretion.iii. Ex: Mistretta v.Delegation of Legislative Powers 1. ii.
Art. by use of his 55 . (2) The courts should not have any legislative power. Presidential Control: The Act does not authorize the President to remove. 5. cl. Contrast the Court’s Functional Approach in Mistretta to its “Formalistic Approach” in Chada. THE WAR AND MILITARY POWERS AND THE COMMANDER-IN-CHIEF A. i.Criminal Contempt: Fines IV. or in any way diminish the status of the Article III judges as judges. §6. No Advisory Opinions.Scalia Dissent: (1) The rules are binding as law and the judge who disregards them will be reversed. c. (Const. § 8. (3) Not mandatory. GENERAL – THE WAR POWER i. but voluntary acceptance on part of Judges. Are there dangers in giving judges powers beyond article III? a. § 2. 1 & cl. Art. John Marshall being Secretary of State and Chief Justice). Examples of additional powers of judges: a. Judges are not elected and have life tenor 4. Undemocratic – There is no remedy if we do not like these guidelines. Power to discipline attorneys.e. 3. Power to appoint contempt attorneys to prosecute contemptees. b. cl. 11-16 & Const. 2) Congress has the initial power to declare war and maintain armed forces. 3. d.Constitutions does not have an Incompatibility Clause applicable to the judiciary like there is for the legislature (Art. Civil Contempt: Jail until you comply ii. (4) Will not affect judge’s impartiality (Judicial independence from President—implausible to believe opportunity to serve on USSG Commission would cause judges to change their Art. but the President. As seen below. 2). Power to appoint an independent prosecutor. II. III decisions). cls. b. 1.1. Push for unreasonably harsh or lenient guidelines. iii. (2) Historical Argument (i.
defensive situations the President should be able to act unilaterally for the nation. limitations: The President’s power to introduce forces can only be exercised pursuant to: (1) a declaration 56 . or into situations where imminent involvement of hostilities is clearly indicated by the circumstances . THE WAR POWERS RESOLUTION – THE PRESIDENT’S RIGHT TO COMMIT OUR ARMED FORCES ABROAD WITHOUT CONGRESSIONAL APPROVAL i. The conflict arises between the gray area between repulsion of sudden attack and a full-scale war. HYPO: What should the Supreme Court do if an issue on the constitution of the War Powers Resolution came about? Ex: Obama sends troops to Sudan. Preemptive strike: Unclear 2. §2.Commander-in-Chief power over the Army and Navy. Cl. and (2) the President’s right to detain and try enemy combatants who have been captured. 1: THE PRESIDENT SHALL BE COMMANDER IN CHIEF OF THE ARMY AND NAVY OF THE UNITED STATES. itself. Congress doesn’t like this and passes a statute cutting military funding. 16 – Organizing Militia C. B. Opponents of the Resolution argue that in temporary. Cl.S. 14 – Make Rules Re: Land & Naval Forces e. Judicial Solution?: Although the President has committed American armed forces to military action without declaration of war. (a) Congressional declaration: Insures that the collective judgments of both the Congress and the President will apply to the introduction of U. Cl. Sudden Attack: It is settled that the President may commit our armed forces to repel a sudden attack on the U. §8: a. Cl. II.S. 13 – Provide & maintain a Navy d. Cl. the courts have rarely passed on the constitutionality of such action because Congress has acquiesced in such action. Const. Presidents have not really followed this resolution since it was enacted. Const. carries out any war that is so declared. 15 – Calling Forth Militia f. a. a.The War Power . 3. Art.Congress 1. Attacks on allies: Unclear b. Art.Separation of Powers issues arises to ways: (1) The President’s right to commit our armed forces abroad without congressional approval. I. b. 11 – Declare War b. They claim it is an unconstitutional encroachment on executive authority. 2. forces into hostilities. AND OF THE MILITIA OF THE SEVERAL STATES. WHEN CALLED INTO THE ACTUAL SERVICE OF THE UNITED STATES …. Overview 1. 12 – Raise & Support armies c. (c) Presidential executive power as Commander-inChief. a. ii. A: The Court may not even get involved because it is a Political Question. ii. Cl. CONSTITUTIONAL PROVISIONS i.§2 Purpose and Policy 1. Cl. ii.
v. citizen was captured in Afghanistan and detained incommunicado in a military brig in the U.S. 57 .S. or (3) Is physically unable to meet as a result of an attack on the U. . initial and regular consultations: In every instance possible.S. Armed Forces: Notwithstanding (b).§5 Congressional action . 11. HELD: The Court stated that the initial capture was authorized by Congress in AUMF. D. he must submit a written report within 48 hours to Congress. without Congress’ consent. by such nations. Such persons get habeas corpus review in Art. committed. ii. or (3) a national emergency created by attack upon the U. or persons. 2. or aided the terrorist attacks that occurred on Sept. (2) specific statutory authorization. (2) has extended by law the 60 day period.of war. 2001…in order to prevent any future acts of international terrorism against the U. v. III federal courts. .” iii. (c): Concurrent resolution for removal by President of the U. iii. at anytime Armed Forces are engaged in hostilities outside the US. iv.Authorization for Use of Military Force Act (“AUMF”): “[T]he President is authorized to use all necessary and appropriate force against those nations. It was undisputed that defendants were involved in attempted sabotage.“Combatant Detainees” Decisions: In these decisions. the president must terminate and withdraw the troops unless: (1) Congress has declared war or has enacted specific legislation.S. However. citizens in non-rebelling states have right to be tried in civilian courts.§4 Reporting requirement: Whenever the President introduces forces with Congress’ declaration. such forces shall be removed by the President if the Congress so directs by concurrent resolution. the Supreme Court considered the due process and separation of powers issues arising out of the war in Afghanistan.§3 Consultation. NOTE on Older Detainee Cases: (1) Ex Parte Milligan (Civil War Case): People who were agitating around war effort were detained. organizations. U. (b): If Congress does not affirmatively authorize within 60 days. authorized.S. the Court rejected the Executive’s argument that it had the power to indefinitely detain persons it had determined to be “enemy combatants” and to do so without a hearing. The Defendant was accused of being a spy (not an actual belligerent) but denied charge. Rumsfeld (Procedural Due Process): A U. 1. As long as civilian courts are open.S.S. or its armed forces. not military commissions. its territories or possessions. or persons he determines planned. 1. PRESIDENT’S RIGHT TO DETAIN AND TRY ENEMY COMBATANTS WHO HAVE BEEN CAPTURED i.S.. and then once every 6 months thereafter. (2) Ex: Quirin Case (Nazi Saboteur case): Gov’t has power to detain U. citizens in military jurisdiction if they have violated “laws of war” (defined under internat’l law). and must regularly consult Congress thereafter until they are withdrawn. Ex: Hamdi. the President must consult Congress before introducing armed forces. organizations.
Uniform Code of Military Justice which. The Court employed a functional analysis derived from its prior precedents examining several factors. Bush (2008) (Suspension of Habeas Corpus Rights): In 2006.minimum: i. § 9. 2: THE PRIVILEGE OF THE WRIT OF HABEAS CORPUS SHALL NOT BE SUSPENDED. Const. at a 58 . etc. by its Uniform Procedures rule appeared to bar such tribunals unless they followed the same procedures used in court martial “insofar as practicable”(“UCMJ”). I. The Court found that detainees have habeas rights and that the Military Commission procedures are not adequate for habeas review. a. Rumsfeld (2004) (Military Commissions): Following the cases above. This act stripped the federal courts of jurisdiction to hear habeas corpus claims by “enemy combatants. cl.. HELD: Invalid. b. Ex: Boumediene v. accused and counsel could be excluded from the proceeding. b. and (3) The Commissions violated Geneva Convention.e. or any other congressional act. the Bush Administration sought to “try” certain “detainees” (Hamdan) in “military commission tribunals” rather than Article III court or courtmartial. Congress responded to the Hamdan decision and passed the Military Commission Act (“MCA”). HELD: The Court held that the President lack the authority to impose the military tribunal because: (1) Any Presidential authority to use military commissions must be authorized by Congress or by international law: (2) The Commissions were not authorized by AUMF. prevents communication with others in the terrorist network 2. which is binding authority. Presumptive of guilt. a. This decision only struck down that portion of the act that stripped federal judges from reviewing due process concerns. could be barred from learning was evidence was presented. RULE: Enemy combatants are entitled to. Policy for Having Detainees Held Incommunicado: Prevents them from talking or discussing plans with the outside world. Ex: Hamdan v. evidence is considered secret? 3. a. The Act gave the President authority for these commissions and stripped from Art.“a fair opportunity to rebut” before a “neutral decisionmaker” b. NOTE: Here. Congress gave the Executive the authority to have military commissions where the procedural standards were lower than regular trials. UNLESS WHEN IN CASES OF REBELLION OR INVASION THE PUBLIC SAFETY MAY REQUIRE IT.” In essence. including process. the Act basically overruled Hamdan. Left undecided who was going to be a neutral decision-maker and what kind of counsel and presumptions would be available to detainee. “notice of the factual basis for the classification” and ii. The rights of the defendants would be much narrower in these tribunals (i. III judges the jurisdiction to review due process objections. Art.
3. discovery process. there is no absolute privilege. Ex: United States v. Ex: Nixon v. the 59 . How 4. A grand jury had named Nixon an unindicted coconspirator and the lower court issued a subpoena requiring the attorney to turn over certain tapes. B. Instead. 1. HELD: No. only a presumptive privilege or “qualified immunity” that will more than likely be outweighed by the role of the courts under Art. Fitzgerald: The P contended that he had been fired from his Defense Department job in retaliation for his testimony against the military. He sued Nixon for a violation of his 1st Amendment rights. (Separation of Powers). (2) The president would be distracted by the onslaught of litigation. EXECUTIVE PRIVILEGE FOR CONFIDENTIAL INFORMATION i. Privilege Exists: There is indeed a privilege for confidentiality of Presidential communications in the exercise of Art. and (2) the independence of the Executive Branch insulates these situations from the judicial sphere.e. Duty of Trial Court: An In Camera evidentiary review will filter things that are relevant to a criminal investigation and things that need to stay confidential (i. 2. a. Civil Liability of President for Official Acts: The President has absolute immunity from civil liability for all acts within the outer perimeter/scope of his authority. Criminal Prosecution: There is no executive immunity. Balancing Test – Requirement Of In Camera Hearings: Compulsory process must be available for the production of evidence. 1. ISSUE: Whether the president had unqualified immunity from the judicial proceess. EXECUTIVE PRIVILEGE. PRESIDENTIAL CIVIL IMMUNITY/LIABILITY i. The Executive Branch will most likely argue that they have absolute immunity because of: (1) The need for protection of communications between high government officials and those who advise and assist them. 3. IMMUNITIES a. Madison. Rationale: (1) The President cannot be too preoccupied with stepping on toes and not performing his duties. The Court will balance the two interests (i. subpoenas).g. there is no general doctrine making the President or other members of the Executive Branch immune from the judicial process (e. 2. RULE: Absent a claim of need to protect military. II powers. the presumption of privilege and the need for the evidence). or sensitive national security secrets. would it jeopordize national security. a. III. Separation of Powers Inapplicable: See Marbury v. a number of people were illegally investigated and harassed as enemies of Nixon. diplomatic. Nixon: The Watergate tapes revelaed that acting with the knowledge of Nixon.e. etc. if criminal crimes are committed while in office.V. and this need for justice typically outweighs an assertion of confidentiality.
he could be sued for the crime after he is out of office. a reasonable person should have been aware. a. (3) there is no privilege to “temporary immunity” and the President can be sued while in office. Ex: Clinton v. (2) There is no separation of powers issue because allowing the claim was not encroaching on the Executive Functionl. HELD: The Court found that there is no absolute immunity to acts taken by the president taken before he takes office nor any requirement for “temporary immunity. (2) If the allegedly tortious act took place prior to the time when President took office.” of which. See Harlow v. Fitzgerald 2. i. RULE: Executive Branch officials are immune from civil liability for official acts. Can claim executive privilege on a question-byquestion basis. iii. ii. 1.” 2. c. Rationale: (1) The pincipal rationale for affording certain public servants immunity from suits is inapplicable to unofficial conduct. Miers: White House fired U. a. Attorneys. is not absolutely immune from compliance with congressional subpoenas and must therefore appear before the Committee on the Judiciary of the U.President will more than likely be impeached. Stay pending Appeal. then absolute civil immunity in Nixon does not apply. Jones: Involved a private damages suit by Paula Jones against Clinton while he was in office.S. House of Representatives (“Committee”) to provide testimony. She filed a claim of executive privilege.No Presidential Immunity for Non-Official Acts: (1) There is no immunity – not even qualified immunity – for acts that the President takes that are completely unrelated to the carrying out of his job. Concern in Granting Executive Privilege: Want the President to have candor and unfettered 60 . Congressional Subpoenas: Presidential Advisors still have only qualified immunity. Also. Order provided that Harriet Miers.Civil Immunity of Presidential Advisors – Qualified Immunity: There is no absolute immunity. Miers was required to respond to the subpoena. Ex: United States v. Miers was White House Counsel and Congress wanted Miers to testify regarding the firings. but there is a qualified immunity. required Miers to produce all non-privileged documents responsive to the Committee's subpoenas and provide a more specific description of any documents withheld on the basis of executive privilege than has to date been provided.S. 1. In a given instance. unless these acts are shown to violate “clearly established law. Ex: Harlow v. Court denies the Executive's motion for a stay pending appeal. Thus. balance the need for the information (if it is relevant and if it would threaten national security or generalized interests in allowing for candor among the advisors). Fitzgerald b. former White House Counsel.
conversations with high-level Presidential advisors; do not want them to worry about having to testify in front of Congress. 3. HOLDING: The Executive's interests will retain protection even absent a stay; Mier’s can invoke executive privilege on a question-by-question basis; qualified immunity. No serious harm to either Ms. Miers or the Executive's institutional interests will occur due to that event [testimony at Committee]. Mier’s must respond to Congressional subpoena. 4. Standard of Review for Stay Pending Appeal: The standard for granting a motion for stay pending appeal is well-established in this Circuit. To prevail on such a motion, a party must show: a. (1) That it has a substantial likelihood of success on the merits; b. (2) That it will suffer irreparable injury if the stay is denied; c. (3) That issuance of the stay will not cause substantial harm to other parties; and d. (4) That the public interest will be served by issuance of the stay. e. *These are the same factors for a preliminary appeal. f. Considered in Light Most Favorable to the Congressional Committee.
PRESIDENTIAL ELECTIONS A. GENERAL i. Constitutional Provisions 1. Const., Art. II, §1, cl. 2 (Presidential Electors): Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in Congress; but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector. 2. Const. Art. II, §1, cl. 3 (Election Day): The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States. 3. 12th Amendment: Commits to Congress the authority and responsibility to count electoral votes. ii.How to Elect the President 1. State Legislature [not Congress] chooses manner of selecting Electoral College delegates. (Art. II, Sec 1, Cl. 2); Electoral College meets to count votes about 6 weeks after election 3 U.S.C. 1 et seq (“Electoral Count Act”); Electoral College sends results to Congress, (Amen. 12), which convenes and certifies results on Jan. 6. (Electoral Count Act) 2. If no majority, House chooses from among top 3 votegetters. (Amen 12) 3. If there’s a dispute regarding a state’s vote, Congress decides. (Electoral Count Act) 4. President takes office Jan. 20. (Amen. 12) b. 2000 PRESIDENTIAL ELECTION DRAMA i. Ex: Bush v. Gore: The election came down to the vote in Florida. The vote margin was very close; at stake were Florida’s 25 Electoral College votes. Gore sought manual recounts in four counties. Bush objected to the recounts on the following grounds: (1) Violation of equal protection rights; and (2) Procedures ordered by the Florida Supreme Court violated Article II standards. The Florida Supreme Court agreed with Gore and ordered the manual recount of all “undervotes.” Appeal to Supreme Court, reversed the Florida Supreme Court and signaled that the Article II argument was colorable; granted a stay on the recount. On remand, the Florida Supreme Court essentially agreed again with the Gore position. Bush appealed again. The Bush II opinion involves three basic opinions: (1) Per curiam opinion pursues an equal protection analysis; (2) Concurring opinion focuses on Article II considerations; (3) Opinions by the dissenting justices. 1. HELD: The Court issued a stay blocking the continuation of this recount, then decided that no constitutionally-
acceptable recount could be completed within the time available. The Florida Supreme Court’s method for recounting ballots was a violation of the Equal Protection Clause; the manual recount of the Presidential election ordered by the Florida Supreme Court (to discern the “intent of the voter”) violated Bush’s rights under the equal protection doctrine because the state court had not provided specific, state-wide standards to avoid arbitrary treatment of voters. The Supreme Court said that this decision is “limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.” Undervotes: Ballots on which, according to the machine tabulation, no candidate was selected. Florida Election Law: Gore sought relief pursuant to Florida statute, providing that a receipt of a number of illegal votes or a rejection of a number of legal votes sufficient to cast doubt on the result of the election shall be grounds for a contest. Florida courts have the power to overturn certified election results. In Florida, a “legal vote” is one where you can discern “the clear intent of the voter;” this is not clear. a. Supreme Court ordered a state-wide recount. The state-wide recount was never finished. There was a strict deadline, but the Florida Supreme Court extended the deadline. Equal Protection Argument: There was no statewide standard that each county board could use to determine whether a given ballot was a legal vote. If you are going to do a recount, you must be consistent and uniform in the application of standards, or otherwise violate the Equal Protection Clause. a. Overvotes were excluded: Overvote is voting for two candidates, and an undervote is counted as no vote. Need a manual examination to reveal the clear intent of the voter. b. Standards varied between the counties, varied within a county, and within a particular team examining the votes. c. There was no uniformity regarding who got to be on the recount team. d. RULE: Manual re-counts are per se constitutional. e. RULE: The right to vote in state elections [after a legislature provides this as the method for electing candidates] is considered a fundamental right for purposes of equal protection doctrine; need to ensure uniformity to in standards for recount in order to protect this fundamental right. Political Question? (1): textual commitment of power to another branch; (2) lack of judicially manageable standards; (3) unusual need for deference to another branch; (4) need for uniformity among the branches. a. In Bush, an argument coutld be made that while this is a federal branch doctrine, the Court could have deferred to the state? The Court seemed to but a lot
therefore. the State court jeopardized the “legislative wish” to take advantage of the safe-harbor provision by extending the deadline. b. 6. b. Balance of harms to the various parties i. d. RULE: If the legislature’s Art. II Timing Problems: 3 U. Irreparable harm [if the recount was finished]. II and the 12th Amendment demonstrate that there is a “textual commitment” of Electoral College disputes to Congress. Weighed in favor of stopping the recount and deciding whether the recount could continue in the second Bush v. §5 – Safe Harbor Provision a. Congress cannot challenge its vote. Florida Election Code required certification by this deadline. Stay/preliminary injunction: Remember the factors for granting a stay/preliminary injunction in Miers. Public interest. the post-election state-court actions must not frustrate the legislative desire to attain the “safe-harbor” provision. so it could take advantage of the safe harbor provision. c.C. II powers are to be respected. There was no time to remedy the equal protection violation and still be within the Safe Harbor Deadline.of weight on the fact that it was a Presidential Election. If a state finalizes its Electoral College vote 6 days before meeting of the Electoral College. 7. and. Gore. The Dissent in Bush also poined out that the provisions of Art. In Bush. Likelihood of success on the merits. Art. Supreme Court interrupted an ongoing recount – must show these things for stay: a. the federal courts should avoid this. i. 1. 64 .S.
“company town”). State Action Requirement: By its terms. Three theories by which ostensibly private conduct can be treated as state action are: a.Const. LIBERTY. Due Process of Law. (Applies to the Federal Gov. ii. Double Jeopardy. THE ACCUSED SHALL ENJOY THE RIGHT TO A SPEEDY AND PUBLIC TRIAL.” ii. WITHOUT DUE PROCESS OF LAW. people need a degree of freedom to act in ways that would be illegal if done by the state – EX: to prefer to associate with their friends rather than “afford due process” to strangers. 1. §1 of the 14th Amendment applies only to action by the state. NLRB where the Court held that a Shopping center owner excluding individuals from distributing handbills was engaged in a private action. Ex: Terry v.Ex: Marsh v. these provisions do not apply to private actions that are not tied to the state or its agents. it became state action because its management of the entire town was a governmental function. Alabama (Company-Owned Town): Court held it was unconstitutional for a private company that owned an entire town to prohibit religious minorities to engage is speech related activities on the property. . NOR SHALL ANY STATE DEPRIVE ANY PERSON OF LIFE. Amen. THE BASIC PROCEDURAL STRUCTURE OF DUE PROCESS AS A PROTECTION AGAINST STATE ACTION i. replicating similar characteristic of a city. 1. OR PROPERTY. 1. Const. . Contrast with Hudgens v. XIV §1 (Due Process Clause Applicable to States): “…NO STATE SHALL MAKE OR ENFORCE ANY LAW WHICH SHALL ABRIDGE THE PRIVILEGES OR IMMUNITIES OF CITIZENS OF THE UNITED STATES. 2. While the land was private.): IN ALL CRIMINAL PROSECUTIONS. Self-Incrimination. not state action. Amen. V. Grand Jury Indictment for Capital Crimes.g. When private conduct is intertwined with government action. 65 . white primaries. PROCEDURAL DUE PROCESS A. or acting as a surrogate for the state (e.PART V – PROCEDURAL DUE PROCESS I. GENERAL i. Adams (Jaybird Primaries): Private activity of political parties setting up “private” primary elections for state offices excluding African Americans is unconstitutional because conducting an election is a governmental function. BY AN IMPARTIAL JURY OF THE STATE AND DISTRICT WHEREIN THE CRIME SHALL HAVE BEEN COMMITTED . Public Function Doctrine: The private actor may be conducting a government function. Thus. i. and thus did not fall under due process. the Court must decide whether the action is really attributable to the state. POLICY: In their private dealings. Just Compensation for Property B.
when it cut off electrical service to a customer. as being so important that if a state denies these rights..” ii. Compare Burton v.g. The Bill of Rights and the States: One of the major functions of the 14th Amendment’s Due Process Clause is to make the Bill of Rights applicable to the states because as it was originally drafted. b.where the Court held that a private corporation did not perform a government function by conducting a utility business.C. but the shop was located in a space leased from the city. Irvis: The Court held that private club on private land that was discriminatory did not become a state actor simply because it was subject to extensive liquor regulations. 1. And Jackson v.” This provision enables Congress to protect civil rights against private conduct that would not otherwise be reached by the constitution. While this is simple and consistent. the Supreme Court has consistently declined to adopt it.Congressional Enforcement Due Process: §5 of the 14th Amendment gives Congress power to “enforce” the 14th Amen. ii. state leases the property & has business ties). and it was not bound by the d. The state may be involved deeply enough or “inextricably intertwined” in the private action so that it should be characterized as governmental action (e. c. THEORIES OF INCORPORATION i. iii. Wilmington Parking Authority: A private business discriminated against blacks.HYPO: Private parking company leased federal parking garage and was discriminatory.g. Ex: Shelly v.” Nearly all the guarantees of the Bill of rights have been interpreted by the S. ii. States have a considerable interest in the right to experiment and alter certain procedures.Total Incorporation: The theory that the Due Process Clause simply applied the entire Bill of Rights to the states.. i.c. i. The state may have encouraged or validated the private action to such an extent that it becomes state action (e. Consolidated Edison 66 . Kraemer: Court holds racially discriminatory restrictive covenants for private housing is a state action when they were enforced by the State. While nearly all 2. by “appropriate legislation. 107 v.Incorporation Doctrine (See Below) C. restrictive covenants.p. it has in effect taken away an aspect of “liberty. and this discrimination was state action with Moose Lodge No. The amendment requires that the states not deprive anyone of “life. it was only limited to the federal government. liberty or property without due process.
ii.4th Amend. b. iv.. rights to be free from unreasonable search and seizure and to have excluded from criminal trials any evidence illegally seized. and to compulsory process fro obtaining witnesses. Instead. and thus binding on the states. to confrontation of opposing witness. MODERN TEST: The Court today incorporates into the 14th Amendment any guarantee which is “fundamental to the American scheme of justice” – is it a fundamental right? a. iii. d. iii. and the 6th Amendment rights to counsel. Ex: Duncan v. If incorporated. 7th Amendment: Right to a jury trial in all civil cases (although right to jury in criminal case is incorporated) The state can decide whether they want a jury trial for a civil case. It is not the amendments that limit the state. 3rd Amendment. 14th Amend. The Supreme Court HELD that the 14th Amendment’s Due Process Clause incorporated the right to a jury trial as protected by the Sixth Amendment in criminal cases because trial by jury is fundamental to the American Scheme of Justice.Right guaranteed by the 5th Amendment to be free of compelled self-incrimination. press. Connecticut) 2. that right is “selectively incorporated” into the meaning of due process.Selective Incorporation/Fundamental Rights: Under this approach.Rights of speech. 1. the following have not: a. it is the 14th Amendment Due Process Clause that provides the limit against state interference with these “fundamental” rights. i. P & I Clause: NO STATE SHALL MAKE OR ENFORCE ANY LAW WHICH SHALL ABRIDGE THE PRIVILEGES OR IMMUNITIES OF CITIZENS OF THE UNITED STATES. Right to Compensation for property taken by state. Louisiana: Louisiana stated that the Constitution imposes on the state no duty to give a jury trial in a criminal case.rights have been incorporated into the meaning of due process.” (Palko v. 67 . d. but not a criminal case. c. then state/federal distinction immaterial. and religion covered by the 1st Amend. Failure of the Privileges and Immunities Clause of the 14th Amendment i. Pre-Duncan Test: A right is fundamental if it is “implicit in the concept of ordered liberty. to a speedy and public trial.” If so. each right in the Bill of Rights is examined to see whether it is of “fundamental importance. Rights Currently Covered: i. 5th Amendment: Right not to be subject to a criminal trial without a grand jury indictment. 2nd Amendment. b.
transfer of prisoner from jail to mental institution. B. are protected. TWO BASIC QUESTIONS i. The Due Process Clause does not bar the government from procedural irregularities per se.Before 1970: There was one notable area in which the Court was reluctant to find that a “liberty” or “property” interest existed. rather. mental institution. (prisoner does not have liberty interest while in jail only unusual hardship). iii.). Ex: Leave or reentry to country. 1. The Court traditionally took the view that such items were a “privilege. not rights of state citizenship.Property: Such an interest does not exist merely because the individual has a “need” for a benefit. PROPERTY AND LIBERTY INTERESTS A. Physical punishments (by government). GENERAL i. Only when “life. which could therefore not be taken without procedural due process.Growth in the 70’s entitlements: During the 70s. “liberty” or “property” are being taken is the government required to act with procedural correctness. elimination of the welfare benefits at issue would deprive the claimant “of the very means to live. all of whom had no constitutional right to a prior hearing. The clause merely forbids state infringement of the rights of national citizenship. Property Interest in government benefits to which you are ENTITLED. and that they could therefore be withdrawn without procedural irregularity. arrest. or taxpayer’s denied a tax exemption. the welfare recipient must be afforded a pre-termination evidentiary hearing before the termination of welfare benefits because there was a cognizable property interest in welfare benefits.Liberty: Physical liberty. a. Kelly (Welfare Benefits): The Court held that when public assistance is terminated. Is there a cognizable Liberty or Property interest being deprived? 1. we are concerned with just what types of interests are deemed to be ones in “liberty” or “property. Thus. he must have a “legitimate claim of entitlement” to it. or even a “unilateral expectation” of it.” such that they may not be impaired without procedural due process. which are federal in nature (rights through being citizens of the U. Thus. This was the area of benefits flowing from the public sector. II. Here.The Supreme Court has narrowed the meaning (Slaughter House cases) to relative obscurity. The Court distinguished cases of discharged governmental employees.” not a “right”.” 68 . the Supreme Court held that many types of government benefits previously thought to be mere “privileges” rather than “rights” were in fact interests in liberty or property. access to federal waterways. the protection afforded by this provision is a very narrow grant and only rights.S. Ex: Goldberg v. ii. parental rights. including governmental employment and monetary benefits (welfare).ii. v. iv.
Property Interest in continued government employment if it is not “at will” employment. 2. not state law. a. inefficient. Here. Scope defined by State Law: Whether or not such a “legitimate claim of entitlement (property interest)” to a benefit exists is to be determined by reference to state law. gave him a sufficient expectance of continued employment to constitute a protected property interest. the Court held that they were not going to examine the state-law issue because the state court’s interpretation was tenable. it would stretch the concept of “liberty” too far because the Petitioner had the opportunity to seek another job. under state law. or unfit to perform his duties. Property Claim: The Supreme Court reasoned that he would only have a cognizable property interest if he had some property interest as a for-cause employment. 1. not those required by due process. or if he is negligent. which would give him tenure. the statute should be interpreted as an at-will termination. The court further contended that the 14th Amen. ii. Petitioner argued that the statute should read as a “for cause” termination rather than an at-will. HELD: The state law foreclosed the finding of a liberty or property interest and that the discharged officer was entitled only to the procedures provided by state law. RULE: Any governmental benefit that was 69 . and that in so doing. does not necessarily cover ill-advised management decisions. i. 1. Applies to claims made by governmental employees. The state court held that. prisoners. Wood: A city ordinance provided that a permanent employee may be discharged if he fails to perform work up to the standard of his classification. Dicta: If there was public disclosure of discharge and a broader tarnishing of i.Liberty Claim: Petitioner argued that termination for cause will cause harm to his reputation and would affect his chances to get re-hired by someone else. students. Ex: Bishop v. licensees. and debtors. This is irrelevant in the courts eyes.essential to a person’s livelihood or simply an important interest was a form of liberty or property to which due process was attached. The Court rejected this argument and held that while it may make him somewhat less attractive to other employers. The importance of the interest was determined as a matter federal law. 1.
ii. what process is due? (See Below) 70 . 3.reputation. detention).If so. then there may be a restriction on your liberty interest. Liberty Interest in any tangible restriction on your liberty (e. a. Ex: If a person were detained or put in jail.g. this would be a deprivation of a liberty interest..
Eldridge): The Court’s present view may be summarized as calling for use of a balancing test. b.Balancing Test (Mathews v. 6. and the probable value. in which the costs of requiring a particular set of procedures will be weighed against the benefits from the use of those procedures.Components Observed in this Section 1. The government interest. extreme and complex civil cases like termination of parental rights. including the function involved and the fiscal and administrative burden that the additional or substitute procedural requirement would entail. involuntary civil commitment. if any. can’t have financial stake in outcome. The private interest that will be affected by the official action (so that the bigger the individual’s stake in the outcome. decisionmaker states reasons for decision. Appeal – Generally no right to one. must follow reasonable due process. the more safeguards would be required). iii. opportunity to confront witnesses. To determine “what process is due. of additional or substitute procedural safeguards (The risk of error that the outcome will be wrong if the extra procedural safeguard(s) not added). government will pay in criminal cases with jail time. 4. 2. present evidence. 5. Impartial decision-maker – Might be official of same agency. and c. the issue becomes: What process is due? ii. for termination of parental rights & involuntary civil commitment: clear and convincing.” consider: a. Proof/Evidence – For criminal: reasonable doubt. normally should involve notice. Notice – “Reasonably calculated …to apprise affected persons” 2. so his stake was lower than in 71 . 3. Hearing – If required. 1. Ex: Mathews v. Once the court concludes that a constitutionally-protected “liberty” or “property” interest has been impaired. Counsel – Usually can bring attorney at own expense. The risk of an erroneous deprivation of such interest through the procedures used. based upon a determination of recovery. Private Interests: Unlike the welfare payments at issue in Goldberg.C. though not same person involved in decision. THE PROCESS THAT IS DUE i. does not require a pretermination evidentiary hearing. Eldridge: The Supreme Court held that termination of disability benefits under the Social Security Act. the disability payments were less likely to be the individual’s sole source of income and caused only limited deprivation. once granted. the additional procedure will be granted if: (Amount at stake for individual) x (likelihood that administrative error will be reduced by using procedural safeguard) > cost to the government of granting procedure. except death cases. The Court reasoned as follows: a. So. Freedom from arbitrary decisions 7.
3. b. conserving scarce fiscal and administrative resources is a factor to be weighed. Substantial weight must be given to the good faith judgments of Congress in the procedures they have provided.Goldberg. Thus. Ex: Cleveland Bd. the employer would continue to receive the benefits of the employee’s labor. Of Ed. and an opportunity to present his side of the story. instead he was entitled to notice. The ultimate balance involves fairness in administrative action. The Court held that he had a liberty or property interest in his employment. Loudermill: A public-sector employee was fired for allegedly dishonestly answering that he was an exfelon. which assessment could probably be evaluated through written documents rather than oral testimony. Here. General Standard (Mullane v. under all the circumstances. The Government interest: Financial cost alone is not controlling weight in determining whether due process requires a particular procedural safeguard prior to some administrative decision. The court did not require a full evidentiary hearing. the burden would be substantial. the Act proscribed an effective process for asserting claims prior to administrative action. Moreover. However. i. the right to an evidentiary hearing. The court also noted the erroneous deprivation factor and said the until the matter is settled. i. Central Hanover Bank & Trust Co. V. to apprise interested parties of the pendency of 72 . the plaintiff would have a chance to appeal. i.Notice 1. Disability system set up to assume that you are so disabled that you can’t work and so there is no showing of financial need.): Notice reasonably calculated. c. and the cost of it “may in the end come out of the pocket of the deserving since resources available for any particular program of social welfare are not unlimited. an explanation of evidence. The Court used the balancing test and stated that the interest in continued employment and the opportunity to present his side of the case before termination were not outweighed by the government’s interest in having a quick way to fire unsatisfactory employees. iv. DISSENT: There is no distinction between the way in which you find financial need and medical diagnosis. DISSENT: There was real financial need. Here. The risk of error if the extra procedural safeguard(s) not added: The value of an evidentiary hearing was less than in Goldberg because the determination that a person remain eligible for disability benefits turned upon an unbiased medical assessment of the worker’s physical or mental condition. and subsequent judicial review. the risk of error was low.
Ex: Greene v. NOTE Ratification of Private Action (Shelly v. the only function it was to serve was to produce an initial determination of the validity of the Welfare Department’s grounds in order to protect a recipient against an erroneous termination of benefits. The appraisal must be in terms understandable to a lay person of their rights. Flowers: Notice of tax sale on property sent by certified mail to taxpayer insufficient when certified mail was returned as “unclaimed. Posting should be accompanied by mailed service. sequestration or similar remedies may cause injury to both the debtor (may be able to avoid erroneous use of the remedy if they have notice) and the creditor (a property interest may be lost if they have to give notice). the Court went on to note that the type of hearing required did not have to be a form of a judicial or a quasi-judicial trial. since notices were “not infrequently” removed by children. including service. Ex: Jones v. Give the recipient timely and adequate notice detailing the reasons for a proposed termination. Unduly Expensive Notice Requirement (Boddie v. Ex: Goldberg v. 3. Be at a meaningful time and in a meaningful manner. Neutral Decision-making. 73 . b.Hearing 1. v. and c. or exigent circumstances 4. Prejudgment Seizure: When Can It Be Done Without Notice (Connecticut v. Kelly: After determining that due process required a pre-termination evidentiary. b. Lindsey: The Court disallowed service by posting on the tenant’s door in eviction proceedings. Compelling. the Supreme Court allows the use of ex parte seizure without notice if: a. Kramer): Private action here is considered state action because the state courts would enforce the eviction judgment. Thus. Thus. Instead. i. Sworn supporting testimony. Connecticut): The Court held unconstitutional a system that required an average fee of $60. and (2) by presenting arguments and evidence orally. Doehr): Seizure by attachment.” c. to bring a divorce action. the Alaska Supreme Court held that reasonable calculation required that a form of summons adequately inform the affected person of their rights and obligation. 2. garnishment.): In interpreting its constitution. Ex: A terrorist would have the right to have notice of what the facts he is being charged of. What Should be contained in the Notice (Aguchak v. as applied to an indigent. An effective opportunity to defend by (1) Confronting any adverse witnesses. a. b. it must: a. Montgomery Ward Co. and c.the action and afford them an opportunity to present their objections.
Evidence Development. and (2) fiscal and administrative interests in reducing the cost and burden of such proceedings. and here. the D had her parental rights terminated for “willfully leaving her child in foster care. Private Interests: Parental rights are a fundamental right. vi. HELD: The Court held that the circumstances in the case do not require the state to provide counsel and that counsel is not required in every termination proceeding. Decision maker should state reasons for determination and indicate the evidence relied on. e. DISSENT: Pointed out that the state is extinguishing the parent-child relationship and i. a.capacities of those who are to be heard (i. Written submissions unrealistic for those who lack education or professional assistance) d. f. Here. a higher standard is consistent with both interests. the state seeks to end them. although it need not amount to a full opinion or even formal findings of fact and conclusions of law. the interest is substantial.” (as opposed to an even higher criminal standard (“beyond a reasonable doubt”) because it would erect an unreasonable barrier to state efforts to free permanently neglected children for adoption. The opportunity must be tailored to the 74 . b.Counsel 1. vii. (2) Risk of erroneous deprivation may be high to an uncounselled parent in a complex proceeding. Minimal involvement will not bar participation as decision-maker.Proof Standard (Proof by the Opponent. Governmental Interests: (1) a parens patriae interest in preserving and promoting the welfare of children. (3) Government’s interest in correct decision and a weak pecuniary interest.” Lassiter.e. Ex: Santosky v. Kramer: The Santoskys were convicted of permanently neglecting their children and their parental rights were terminated. claimed a due process denial in that the state was not required to provide counsel for her in the termination proceeding. Impartial Decision-maker i. c. and indigent. Risk Of Erroneous Deprivation resulting from current standard and alleviation by new standard: A higher standard of proof would alleviate the possible risk that a parent would be deprived based solely on a few isolated instances of misconduct. Ex: Lassiter v. The Supreme Court. The Court applied the Mathews test: (1) parent’s interests in child rights and danger of criminal liability. Thus. but recipient must be allowed to retain an attorney. HELD: Reversed. stated that the correct standard was “clear and convincing evidence. after applying the Mathews factors. Counsel doesn’t have to be provided. Department of Social Services: After being convicted of brutal murder. and Discovery) 1. NY law required only a “fair preponderance of the evidence” standard.
In all situations. a.Expert witness testified. risk of jail time – the Supreme Court holds that you are entitled to have an attorney paid for at the expense of the state). but not someone initially involved in making the administrative determination. a. b. a decision maker can personally line his pockets with proceeds if there is a guilty verdict.Counsel could have made a determinative difference b. 75 . iv. Therefore. the Due Process Clause of the 14th Amendment is violated because the defendant is deprived of due process of law. holding that the Mayor could not act in a disinterested judicial capacity. Village of Monroeville: Petitioner was convicted of a traffic offense in the Mayor’s Court. then due process is violated. If it is a civil case (Losing parental rights where it is complex). In Goldberg. Ex: Ward v. If the termination proceeding involved complex issue(s). also was the chief executive of the village. who presided over the court. clear and true between the state and the accused. a major part of whose income was derived from the fines imposed by him on his Mayor’s Court.e. ii. d.Neutral/Impartial Decision-Maker 1. the government would not provide one. personal. The Government is required to provide counsel: i. v. There is also a tiny separation of powers issue (even though it is a state – The Executive branch is making judicial decisions). substantial pecuniary interest in reaching a conclusion against a criminal defendant.thus the private interest was extremely high.Particular troublesome points of law. The Ward Court extended this principle and deduced a Temptation Test: If the decision makers situation is one which would offer a possible temptation to the average person as a judge to forget the burden of proof required to convict the defendant. General Rule: Need not be someone outside agency entirely. He claimed a violation of due process because the Mayor. In other words. or which might lead him not to hold the balance nice. not technically going to jail) iii. Tumey v. c. HELD: The Supreme Court reversed the Ohio Supreme Court. you are entitled to bring a lawyer if you can afford one. the state’s interest does not outweigh. There are other exceptions – Complex case involving involuntary civil commitment (crazy bin) (You are losing your liberty. Ohio Principle: If a decision maker has a direct. viii. then generally no attorney provided.If there are allegations upon which criminal charges could be based (i. 1.
The Degree of Reprehensibility of the nondisclosure. (3) This remedy is substantially greater than other statutory fines in the state. The award was later reduced to $2 million (500 times more) HELD: Following the guideposts. The disparity between the actual harm and the punitive damages award. Three Guideposts guide the Court in determining if a punitive damages award will be grossly excessive and be in violation of due process: a.000 in actual damages and $4 million in punitive damages (1. EXCEPTION: Death penalty – Due Process Clause and the 8th Amendment (Cruel and unusual i. Three Guideposts: (1) Reprehensible conduct not present. if a decision is arbitrary. (2) The punitive damages were 500 times larger than actual damages. a. There is no federal guarantee that they actually be reasonable.Freedom from Arbitrary Application of Law 1. The more reprehensible the conduct. The lower court awarded Gore $4. Kelly: A welfare official could have 76 . BMW’s policy allowed for the reselling of the car and not disclosing the repairs to the purchaser. and c. x. the higher the amount of punitive damages that may be awarded without violating due process. DISSENT: The 14th Amendment only provides an opportunity to contest the reasonableness of the award in state court. a. the award of punitive damages may grossly excessive that it violates a defendant’s due process rights. the Court held that the punitive damages award violated BMW’s procedural due process. ix. This principle stems from the notion of fairness in providing a person fair notice of the conduct that will subject him to punishment and the severity of the penalty. i. b. BMW infliction on Gore was purely economic in nature. the court noted that the fact that it was a large corporation did not diminish its entitlement to fair notice.000 (cars with same repairs) x $4. it may be a violation of due process. A prime example is that in some circumstances.acted as a judge but not an individual official who was involved in the pre-determination of terminating the benefits.000 (diminished value)). if the state creates a right to appeal. Also. (Abney v. However. Gore: Gore learned that his BMW had actually been repainted after being exposed to acid rain. various due process rights attach. The difference between the current remedy and the civil penalties authorized or imposed in comparable cases for comparable misconduct. RULE: There is no specific right to appeal in either criminal or civil proceedings. 2.The Contours of Appeal Rights 1. Ex: Goldberg v. 3. Ex: BMW v. United States) a. Grossly Excessive Standard: In addition to these factors.
punishment): In Gregg v. the court actually vacated a death penalty sentence because the state’s appellate review was inadequate. See Hamdan Case – No secret evidence or presumption of guilt. 14th Amendment Incorporation Doctrine: Incorporates selected provisions of the Bill of Rights. how is it that the constitution prevents them from doing it? a. Gore) xi. 2. TEST: Whether a right is considered to be fundamental. which had an automatic right of appeal. ask yourself if it is “implicit in scheme of American scheme of justice. (3) Being held incommunicado? 1. RULE: Once granted. the state must follow reasonable due process whereby appellate review is not administered in an arbitrary or irrational manner.” However. noting that it was an “important procedural safeguard against arbitrariness and caprice. i. the court did not condition an appeal as due process. When a state in involved in abridging free speech or religion or unreasonable search and seizure. What if Congress authorized it? Then you would have a question whether the constitution says it is ok and apply the Mathews Test. Ask yourself what liberty or property harm is being suffered separate and apart from the any interest in a procedural safeguards.” If so. then it is an explicitly guaranteed right in one of the first 8 amendments that applies not only to federal government but also the states. Presumption of guilt: Nowhere in American jurisprudence do we impose a presumption of guilt. 77 . (2) Is there a presumption of guilt against you?. Georgia. In Parker v. 2. Dugger. What makes it different in this situation? Is it because we are in war? xii.Unanswered Procedural Due Process Questions: (1) Can they use secret evidence against you?. the court upheld capital punishment in GA. Ex: Could a state decide that appeals in civil cases would be decided by coin toss? See also Presidential Elections (Bush v. i.Review 1.
iv. States to demonstrate a “compelling” state interest to support such a statute. invalided a state law requiring children to go to public school recognizing a basic. When a particular right or interest is protected by the Constitution and is deemed fundamental (as opposed to an economic right). While some fundamental rights are explicitly protected by the constitution. and b. 2. although non-textual. Ex: Right to vote in state elections.See The Lochner Era (Laissez fair etc.Constitutional Test – Strict Scrutiny Test 1. Society of Sisters: S. GENERAL A.): This era has been critzicized as unwarranted judicial action. OVERVIEW i. Ex: Pierce v. NOTE: From these early cases. Amen. 78 . but nonetheless rights (right to teach and acquire knowledge).History leading to the Modern Fundamental Rights View 1. Demonstrate that the government’s means are necessary to the achievement of the compelling interest. OR PROPERTY. right to marry. 14. that are so fundamental that one or more of the opentextured provision of the Constitution may be interpreted to protect them. The Court held that the law had no “reasonable relation” to any end within the competency of the state. Courts require: a. 2. Const.Non-Textual “Fundamental” Rights (Unenumerated Rights): 1.PART VI – SUBSTANTIVE DUE PROCESS I.C. liberty of parent to direct the upbringing and education of their children. the Court applies a stricter scrutiny of statutes impinging upon these fundamental rights. although not explicit in the text. (Narrow Tailoring) iii. there are some rights. Nebraska: The Court invalidated a state law that prohibited the teaching of foreign languages to children. Ex: Meyer v. LIBERTY. § 1: “… NOR SHALL ANY STATE DEPRIVE ANY PERSON OF LIFE. The same “fundamental rights test (strict scrutiny)” applies as with the enumerated rights. 3. we see the court recognizing unenumerated fundamental rights and also applying different tests (Rational Basis Test in Meyer) v. The Court found that “liberty” as used in the 14th amendment included many non-econoimc rights. a. WITHOUT DUE PROCESS OF LAW…” ii.
” defined as a person three times convicted of a felony involving moral terpidutude. Ex: Skinner v. AND SEXUAL CONDUCT A. Connecticut: The statute at issue in Griswold was a state law which forbade the use of contraceptives (and made this use a criminal offense). The very idea [of intruding into the bedroom] is repulsive to the notions of privacy surrounding the marriage relationship. No users. the Court found that the right of married persons to use contraceptives fell within this penumbra. RIGHT TO PRIVACY: BRITH CONTROL AND THE BASIC STRUCTURE OF MODERN SUBSTANTIVE DUE PROCESS – A FUNDAMENTAL UNENUMERATED RIGHT i. which authorized the sexual sterilization of a “habitual criminal. i. The Court focused on the equal protection clause of the 14th Amendment instead of the Due Process Clause. The first major modern-era case which used a substantive-due-process approach to protect a fundamental right was Griswold v. However. the Act provided that certain offenses. the following Amendments establish a zone in which “privacy is protected from governmental intrusion”: 79 . the Court did say there was a fundamental right of marriage and procreation and that it was necessary to the very existence and survivial of the race.II. 3. However. 2. married or single. The various guarantees create zones of privacy. NOTE on Sterilization of mental Defectives: (Ex: Buck v. Ex: Griswold v. the court noted that the law operates directly on an intimate relation of husband and wife and their physician’s role in one aspect of that relation. They were convicted of counseling married persons in the use of contraceptives. In Griswold. HELD: The Court invalided the forced sterilization for recidivists. The defendants were the director of the local Planned Parenthood Association and its medical director. formed by emanations from those guarantees that help give them life and substance. Conn. While not making explicit use of the substantive due process doctrine (Refusing to follow Lochner v. such as embezzlements. Collectively. a. were charged in the case. ABORTION. Bell): The Court actually upheld a law allowing involuntary sterilization of retards stating that “three generations of imbeciles are enough. Penumbras & Emanations: The specific guarantees in the Bill of Rights have penumbras.” (This would probably be struck down today) b. OK: The Court invalidated OK’s Habitual Criminal Sterilization Act. the statute also forbade the aiding or counseling of others in their use. would not be considered. HELD: The Court struck down the state statute. (The Famous Contraceptives Case) 1. REPORDUCTION. FUNDAMENTAL RIGHT TO REPRODUCE i. New York). 1.
Fourth Amendment: The ban on unreasonable searches has a penumbra which protects a privacy interest is being secure in your houses. this law was drawn to broadly. NOTE: The Majority noted cases like Pierce. The “right of privacy” didn’t fall into this category. He concluded that certain rights that were implicit in the concept of ordered liberty should receive heightened scrutiny. Black’s Dissent: There are guarantees in certain specific constitutional provisions which are designed in part to protect privacy at certain times and places with respect to certain activities. 7. etc. 6. and not arbitrary or capricious.Experience of Society Harlan’s Concurrence (Incorporation): The Due process Clause of the 14th Amendment stands on its own bottom and marital privacy is protected. is a freedom. and is not confined to the specific terms of the Bill of Rights. iii. Thus. Fifth Amendment: The Self-Incrimination Clause enables a citizen to create a zone of privacy which government may not force him to surrender to his detriment. The concept of liberty protects these personal rights that are fundamental. c.4. Black also criticized the majority’s interpretation of the Ninth Amendment and the Due Process Clause of the Fourteenth Amendment with the opinion that many judges will make subjective considerations as to personal rights. a. of certain rights shall not be construed to deny or disparage others retained by the people. Privacy – Possible Sources. First Amendement: The emanation of free speech has a 80 . 8. Hpwever. and didn’t fit the test. e. penumbra of the right of association. a. to find that unenumerated fundamental rights had been found to be protected in the constitution. if reasonably necessary for the effectuation of a legitamate and substantial state interest. Tradition.Specific guarantees in text of the Constitution. b. though. Goldberg’s Concurrence (Ninth Amendment): Connecticut’s birth control law unconstitutionally intrudes upon the right of marital privacy. and Mapp. Third Amendment: Prohibition against the quartering of soldiers in any house in times of peace without the consent of the owner is another facet of that privacy. Meyer. papers. are not invalid. 5. Focused on the Ninth Amendment and the belief that fundamental rights exist that are not expressly enumerated in the first eight amendments of the Bill of Rights. though not explicitly mentioned in the constitution. Boyd. only those rights explicitly protected by a specific bill of rights or other constitutional provion were protected by the 14th amendment. Generally how you decied if there is an unenumerated right: i. White’s Concurrence: State laws. ii. d. There is no constitutional right of privacy. Ninth Amendment: Provides the enumeration in the Constitution.
to be free from unwarranted government instrusion into matters so fundamentally affecting a person as the decision to reproduce. it is the right of the individual. Baird (Expansion to all Individuals): Whatever the rights of the individual to access contraceptives may be. How do you avoid the Lochner Era if you extend the right of judges to find prenumbras in other areas? 5. married or single. 2. Sec 1. cl. making businesses immune from regulation? a.” c. the rights must be the same for the unmarried and the married alike. 4. What about the other economic Const. 6. 9. 5 (Takings Clause): “. Sec 9. but the result might be equally legitimate yet absurd in consequences.Criticizing Griswold and the Penumbra Theory 1. ii. ii. Search and Seizure Reasoning Lacks Persuasive Force: No search was involved in this case. I. cl. The P was a corporation engaged in the mail order retail sale of nonmedical contraceptives. for anyone other than a physician to distribute them. 4—No tax unless proportionate to census. but is there really a basis for the distinction? a. Art. HELD: The right of reproductive autonomy exists even in non-private situations (i. iii. . proisions? i. 2. can one infer a penumbra of free enterprise. § 10. . cl. Lack of Principled Bases for Distinguishing Fundamental Rights: Griswold criticized for the dependence upon idiosyncratic preferences of judges. Persuasiveness of the Penumbra Hypothesis: Use of emanations to discern a penumbra that does not partake of the expression of any provision is questionable. Ex: Eisentadt b. 1 (Contracts Clause): “No State shall… pass any …law impairing the obligation of contracts. Result Oriented Reasoning: Result reached independently of logic. Stewarts’ Dissent: Accepted the idea that the statute was 81 .Post-Griswold 1.Art I. Lack of a Principled Basis for Distinguishing Economic Rights: The majority distinguished substantive due process cases in the economic sphere. and prohibited their advertisement. VI. If the right of privacy means anything. I. Population Services International: A NY statute made it a crime to distrubte contraceptives to minors under 16. cl.” He argued that there was no basis for judicial action and would have left it to the political process. 5—No tax exports from State. Amend. nor shall private property be taken for public use. For example. Why Not Infer Other Penumbras?: Other penumbras could be inferred using the same reasoning. Art. Ex: Carey v. the doctor’s office or a hotel room). 1—Prior US debts valid. iii.“unwise” and even “asinine. Sec 9.” b.Art. 3.e. without just compensation.
Constitutional right to be free from a court ordered surgical exam for P as part of discovery. 1. NOTE Ex: Union Pacific R. Equal Treatment of Men and Women or Rich and Poor: Without birth control.Ex: Roe v. Co. doesn’t the doctrine of separation of powers emanate from the structure of the constitution? What about Congress’ implied powers? 2. 3. this clause was not readily available to individuals who challenged statutes like Griswolds. ii. i. Penumbra Rationale: This doctrine is not wholly lacking in legitimacy. The P & I Clause: Privileges of Immunities clause of the 14th amendment could be argued as a substantive due process clause. It would take compelling circumstances to order the exam. Difficulty of Avoiding Unacceptable Results if Not Protected: If we did not recognize some protection of unenumerated fundamental rights. homosexuality. ABORTION AND SUBSTANTIVE DUE PROCESS i. Casey. 4.) a. However. which recognized that the right limits the legislature’s freedom to regulate abortion. The right of privacy found in Griswold has been extended to the abortion context in Roe v. Carhart. the statute at issue in Skinner would be constitutional. They put great import on “of citizens of United states” and held it only applies to those right inherit to national citizenship (i. Wade: The statute at issue made it a crime to “procure an abortion” or to attempt one. Botsford (1891): The Supreme Court recognized the right of personal privacy (bodily integrity) does exist under constitution. extending the reasoning to adultery. etc. 8. iv.discernible limits. except with respect to saving the 7. the consequences of pregnancy fall far more heavily upon women than upon men. There is an argment that these cases could have been decided under the clause instead of creating substantive due process. 7. where the court drew the line). Importance of Marital and Sexual Privacy. Natural Law: Social compact underlying the Constitution created certain natural rights. and they fall more heavily upon the poor than upon the wealthy. etc. Contradictory implications seem likely (i. Fourth Amendment Right to Be Secure in One’s Person: If one emphasizes personal security protected by the amendment.Defending the Griswold Reasoning 1. Avoiding State Imposition of Religious Values.e. However. the privacy rationale may be more strongly based than it otherwise appears. Lack of Limits and Inconsistency in Implications: No 82 . There is some historical eveidence that the framers intended for life liberty and pursuit of happiness through the privilege and immunities clause.e. 5. cut back the effect of Wade. C. v. 6. Wade.e. and Gonzales v. Planned Parenthood v. Right to travel between states and Right to travel on federal waterways. Thus. the Supreme Court interpreted the P & I clause in a very narrow meaning in the Slaughter House Cases.
iii. these encompass a woman’s decision whether to terminate her pregnancy. When most abortion laws were enacted. or even closely regulate. State’s interest in protecting prenatal life. i. Only when the mother’s life is at stake should the interest be weighed in favor of the mother. Court’s Reliance on Precedent: Premised upon the right of privacy.The “Compelling Point” Trimester Test: The Court found that the woman’s right is not absolute. c. that the patient’s pregnancy should be terminated. 1st Trimester – Protection of Right of Privacy a. Modern techniques have altered the situation. and may not completely proscribe. Discourage illicit sexual conduct. licensing. that these rights are implicit in the concept of ordered liberty. Based on the argument that human life is present from the moment of conception. 1.” the physician and the patient are free to determine. Unenumerated Fundamental Right: The Consitution does not mention any right of privacy. Prior to this “compelling point. Therefore the legislature has only a limited right to regulate. the Court pointed to Griswold.e. Thus. iii. Loving. Ex: A requirement that the operation take place in a hospital rather than a clinic.mother’s life. abortions.No protection of the fetus: But the state may not protect the fetus’ life during this period (i. a flat ban on abortion during the second trimester.) 83 .Rationale: The motality rate for mothers is higher that normal birth. 3. without regulation by the State. The state may protect its interest in the mother’s health. etc. A state may not ban. by regulating procedure in ways that are “reasonably related” to the preservation and protection of maternal health. ii. HELD: The Court held that a woman’s right to privacy is a fundamental right under the 14th Amendment. or in the 9th Amendment’s reservation of rights to the people. the Court struck down the statute because of its nearly complete ban on abortions. At some point in pregnancy. Pierce. Therefore. three respective state interests become sufficiently compelling to sustain regulation of the factors that govern the abortion decision: 1. 2nd Trimester – Safeguarding maternal health. Maintaining medical standards a. and Meyer. there is no valid interest in protecting the mother. but whether it be found in the 14th Amendment’s concept of personal liberty and restrictions on state action. b. State’s Historical Justifications for Statute: a. the procedure was hazardous for a woman. Rationale: The motality rate for mothers having abortions in the 1st term is lower than the rate for full-term pregancies. 2. 2. i. abortions.
capability of meaningful life outside the mother’s womb. Therefore, after viability the state has a “compelling” interest in protecting the fetus. It may therefore regulate, or even proscribe, abortion. i. EXCEPTION: The abortion still must be permitted where it is necessary to preserve the life or the health of the mother. b. Consitutional Definition of “Person”: The Court delined to define where life begins. It noted that whenever the word “person” was found in the Constitution, it referred to a born person. However, the Court stated that the State as an interest in protecting potential life and this interest begins at viability. iv.Renquist’s Dissent: Argued that only a “mere rationality” test, not a strict scrutiny one, should be applied. Thus, some regulation could pass this standard. He noted that the traditional test applied in the area of social and economic legislation is whether the law has a rational relation to a valid state objective. 1. State Law Reference: 36 states had laws limiting abortion at time of adoption of 14th amendment. Therefore, it is not a fundamental right. a. Majority Rebuttal (Loving v. Virgina: Anti-desimination laws): At time of the founding of due process, these laws were common. We don’t care about history, we are stiking it down. i. NOTE: What about Scalia’s opinion in Casey? He said that at least for Loving, there was a textual basis (E.P.C). Thus, you can put aside history and go to text. On the right to abortion, however, there is no textual argument. 2. Still has a limit: Exception for Mother’s life 3. Argument against Majority: What governmental organ is best to decide what is based for the states? Judges or Legislature? v.Standard of Review: Strict Scrutiny 1. The decision to have an abortion, like all reproductive decisions, is an unenumerated fundamental right triggering strict scrutiny. Thus, the mother’s right can be outweighed if: a. There is a compelling governmental interest (i.e. protection of mother after 1st trimester; protection of fetus after 2nd trimester); and b. The state law is narrowly tailored to further a compelling government interest. 2. Application of Roe a. Ex: Doe v. Bolton (Companion Case): Using Strict Scrutiny, the Court struck down provisions of GA law stating that it was not narrowly tailored when it required: i. Accredited Hospital; ii.Approval by hospital abortion staff; iii.Three doctors must sign off on procedure
3. 3rd Trimester – Protection of “potential life” a. The “compelling point” is at viability. That is, the
b. Ex: Akron Case: The Court struck down a statute that was
not necesasily inconsistent with trimester approach, but it nonetheless did not pass strict scrutiny: i. Hospital requirement; ii.Informed consent; iii.24-hour waiting period; iv.Restrictions regarding humane and sanitary treatment of the fetus
a. THE PROGENCY OF ROE: ABORTION CONSENT, NOTIFICATION, ETC. i. After establishment of a fundamental right to terminate pregnancy,
consent, notification to others, and funding, became an early battleground. 1. Striking Down Requirements for Husbands’ or Parents’ Consent (Ex: Planned Parenthood v. Danforth): Struck down a Missouri statute requiring a woman’s husband to consent to her obtaining an abortion and also requiring consent of the parents of an unmarried teenager under age 18, unless a physician certified that the abortion was necessary to preserve her life. HELD: The Court invalidated the statute reasoning that the mother’s decisions outweighs a husbands veto because it is a women’s body. 2. Adding a Judicial-Approval Escape Valve Does Not Salavage a Blanket Parental Consent Requirement (Ex: Bellotti v. Baird): Involved a case that added an escape valve to the parental consent requirement; if mother’s parents do not consent, consent could be obtained by order of a judge for good cause shown, after such hearing as he deems necessary. HELD: In order for parental consent requirements to stand, the state must provide an “alternative procedure” in which a minor can obtain the abortion by showing either: a. That she is mature enough and well enough informed to make her abortion decision; or b. That even if she is not able to make the decisions independently, the desired abortion would be in her best interests. 3. Consent Laws Summary a. Spousal Consent – Invalid i. Danforth; someone’s gotta decide. b. Parental Consent – Invalid, unless there is a judicial bypass; judge can decide if: i. Minor is mature enough, or ii.Abortion is in minor’s best interest. ii.Abortion Funding 1. Upholding the Refusal to Fund Even Medically Necessary Abortions (Ex: Harris v. McRae): The Court upheld a statute (Hyde Amendment) that prohibited the use of Medicaid funds for abortions other than those necessary to save the life of the mother. The Court reasoned that while there may be a fundamental right of the freedom to choose to have an abortion, the government need not remove any obstacles not of its own creation hindering that choice. Thus, there is no constitional
right to have abortions funded by the government (nor is there one for the right to contraception of going to private schools). 2. NOTE: Government can do “gag order” – restriction on abortion counseling for doctors receiving federal funds (Rust v. Sullivan)
b. STARE DECISIS
OR FAILURE OF DUTY?: THE “UNDUE BURDEN” STANDARD OF THE CASEY DECISION i. Overview 1. Roe has been partially overruled. This occurred in Planned Parenthood of Southeastern Pennsylvania v. Casey. In Casey, the majority declined to overrule Roe v. Wade explicitly. Casey: a. Upheld Roe’s “core holding” that women have a right to abortion before viability; and b. Replaced strict scrutiny and trimester approach with “undue burden” standard. 2. New Standard (Casey) a. Before viability: Regulation of abortion invalid if it imposes an “undue burden” (i.e., a “substantial obstacle”). b. After viability: Regulation of abortion valid—UNLESS abortion is necessary to protect “life or health” of mother. 3. Statute at Issue – The Penn. Abortion Control Act required: a. Informed consent prior to abortion; b. Information provided 24 hours before the abortion; c. For minors, informed consent of one of her parents, but provides for a judicial bypass option. d. A married woman must sign a statement indicated that she has notified her husband of the intended abortion. e. Exempts compliance with the requirements in the event of a medical emergency. ii.Holding of Planned Parenthood v. Casey (1992) (Plurality Opinion): 1. Right to Choose: Recognized that it is a right of the woman to choose to have an abortion before viability and to obtain it without undue interference from the State. 2. Confirmation of States Interests: The State has a legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child. 3. Confirmation of the State’s power to restrict abortions after fetal viability, if the law contains exceptions for pregnancies that endanger a woman’s life or health. a. Viability: The line is still drawn at viability, so that before that time, the woman has a right to choose to terminate her pregnancy. The States can interfere and ban abortions after the moment of viability, unless abortion is necessary to protect “life or health” of mother. Thus, still the right to have an abortion post-viability if it is necessary to protect the life or health of the mother.
Informed Consent (VALID): Penn. Spousal notification—INVALID because undue burden a.g What is the effect of the spousal notification requirement? This provided a basis for striking down the provision). Parental Consent w/ judicial bypass (VALID) d. 24 Hour Waiting period (VALID) c. iv. This standard. This test indicated that a Court must consider the “effect” of a regulation when deciding whether the regulation was an undue burden. Post-Viability (Viability is still the standard): Once the fetus is viable. Now. is less strict – does not have the narrowly tailored. least restrictive means test that is present in strict scrutiny. 2. it would have to pass the strict scrutiny test. v. b. would be upheld. c. b. Stuctural Mechanism: A state regulation that merely creates a “structural mechanism” to protect the life of the unborn that does not place a substantial obstacle in the woman’s path is valid. in order for the Court to find it a fundamental right. therefore. Maternal Health: A state regulation imposed to further the health or safety of the woman is valid as long as it does not unduly burden the right to abortion. by its terms.iii.Applying the Standard in Casey: 1. including prohibition (except life/health of the mother). (E. although the Court does not expressly state whether abortion remains a fundamental right. 1.The Undue Burden Standard: The court rejected the Trimester Approach from Roe and articulated this standard: Only where state regulation imposes an undue burden on a woman’s ability to make the decision whether to abort does the power of the state reach into the heart of liberty protected by the Due Process Clause.No More Strict Scrutiny? 1. statue required info on the risks of abortion versus the risks of childbirth and the age of the fetus. Under the undue burden analysis. The spousal notification requirement was found to constitute an undue burden. this is the only time the state can place a substantial obstacle. when a right is determined unenumerated (not in the text of the Constitution). Normally. a. Reporting Requirement for Clinics (VALID) 2. all of Pennsylvania’s restrictions – except the spousal notification requirement – did not impose an undue burden and. a. it now changes the standard of this unenumerated right. The Court concluded that the risk to a married woman of spousal abuse or other retaliation as a result of notification to her husband did pose a substantial obstacle 87 . with the application of this undue burden test. RULE: A state regulation will constitute an undue burden if the regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.
Carhart (2007) “Carhart II”: The Supreme Court struck down a statute prohibiting doctors from using an abortion procedure known as intact dilation and evacuation. Old rule proven unworkable? a. a. abortion. Dissent also says that if they overrule. The Roe Court stated that although the facts have changed. while allowing other abortion procedures. b. undermining factual assumptions. Material change in facts?: Whether facts have so changed as to have robbed the old rule of significant application or justification. However. 3. but pre-viable.and thus the spousal notification requirement was held invalid as an undue burden. these facts do not support overturning Roe. a. There has been reliance on the availability of abortion in the event that contraception should fail. Supreme Court upheld the act. they had not changed enough. vii. Ex: Gonzales v. undermining its legal reasoning by subsequent doctrine? a. Court held that the absence of a health exception did not mean the Act was unconstitutional. Congressional opponents succeeded in securing a federal law banning the intact D&E procedure. The Roe Court finds no evolution of the legal principles since Roe. women can immediately start relying on the new rule. Roe rule had not proven unworkable. Ferguson. The Court said that one change was that viability is now earlier and lateterm abortions are safer. including the regular D&E. While the effect of reliance on Roe cannot be exactly measured. Time has overtaken some of Roe’s factual assumptions. Dissent: Rebuts with Plessy v. Related principles of law developed to make old rule “remnant of an abandoned doctrine”?: Has the law developed past the precedent. Right of the Husband?? vi. After Bush took office. neither can the certain cost of overruling Roe for people who have ordered their thinking and living around that case be dismissed. Further. 88 . i.Stare Decisis Test 1. separate but equal case. 4. but they have no bearing on the validity of Roe’s central holding. Reliance hardship?: Whether the rule is subject to a kind of reliance that would lend a special hardship to the consequences of overruling and add inequity to the cost of repudiation. 2. the Court held that the Act did not impose a substantial obstacle on a woman seeking a late-term.NOTE: Partial-Birth Abortion 1.
Public Conduct or Prostitution. Houston police responded to a disturbance at the apartment of the D’s. a. Liberty of Intimate Association: Ability to choose to engage in certain intimate conduct and relationships. Therefore. Limit on Liberty: The Court limited its holding and described the various types of statutes that were not covered by the Lawrence decision: a. ii. However. Persons who might be injured or coerced or who are situated in a relationship where consent might not be easily refused. The statutes do seek to control a personal relationship that. It does not involve whether the government must give formal recognition to any relationship that homosexuals seeks to enter. 1. Liberty presumes an autonomy of self that includes freedom of thought. Based on Right of Privacy: Adults may choose to enter upon these relationships in the confines of their homes and their own private lives and still retain their dignity as free persons. b. 2. (Gay Marriage) 3.I. SEXUAL INTIMACY A. PRE-LAWRENCE DECISIONS i. The Court noted that anomisty towards homosexual. 89 . belief. Thus. Minors. the Court did not find that this right was fundamental. HELD: The Supreme Court struck down the statute under the 14th Amendment Due Process Clause through the substantive due procees doctrine. c. HELD: The Supreme Court invalidated the amendment under an equal protection analysis. The D’s were convicted under a Texas anti-sodomy statute that made it a crime to engage in deviant sexual intercourse with another individual of the same sex. and certain intimate conduct. Evans: Colorado amended its constitution by a state-wide referendum that said local government entities could not enact gay rights ordinances.Ex: Romer v. the inquiry stops here because the law failed the rational basis test. which was prevalent on the face of the amendment is not a legitimate state interest. is within the liberty of persons to choose without being punished at criminals. and thus did not apply strict scruity. Freedom extends beyond patial bounds. LAWRENCE V. the statute did not violate the Due Process Clause. d. Rational Basis Review: The Court never explicitly said that this liberty was a fundamental right. TEXAS i. HELD: The Court upheld the statute stating that it was not a fundamental right because it was not in the concept of ordered liberty or deeply rooted in the Nation’s history. Ex: Bowers v. expression. they discovered the two men having sex. Hardwick: A GA law prohibited sodomy amongst all people. When they arrived. whether or not entitled to formal recognition in the law. The Court analyzed the issue as whether the Federal Constitution confers a fundamental right upon homsexuals to engage in sodomy. B.
Nowhere does the Court declare that homosexual sodomy is a fundamental right. This same interest is seen in other types of legislation that have been upheld in the past. Thus. he feelt that this decision is the end to all moral legislation such as laws against: i. Moral Rights Legislation: Scalia found that the Texas statute seeks to further the belief of its citizens that certain forms of sexual behavior are immoral and unacceptable. The Court stated that the Texas statute furthers no 90 . the Court has reaffirmed rights of privacy (Casey) and affirmed in Romer the targeting of homsexuals. iii. there is no need to go to strict scrutiny. 1. Reliance did not play a significant role in this argument because people were not structuring their lives around the ruling in Bowers as they had been on Roe. iv. ii. Since Bowers. sexual behavior. the State has a legitimate interest that would survive rational basis review. and in the most private places.Related principles of law developed to make old rule “remnant of an abandoned doctrine”? iv. and a. Fornication. nor does it subject the Texas law to the standard of review that would be appropriate (strict scrutiny) if this were a fundamental right. The material change in facts aspect of stare decisis concerns the reduction in state statutes prohibiting this type of conduct. it was not correct when it was decided. 2.Reliance hardship 1.Bigamy. Also looked at the European Court of Human Rights. Scalia is unwilling to recognize this as a fundamental right. Stare Decisis Test from Casey: i.Beastiality. Therefore. Bowers has been seriously eroded by case law.legitimate state interest which can justify its intrusion into the personal and private life of the individual. Laws like the one in Bowers have far reaching consequences.Material Change in Facts 1. 2.Adultery. Overrules Bowers: The Bowers Court was incorrect in its evaluation of the right at stake. Thus. but now would not survive rational basis review. Counter Argument: Because there is not even a legitimate state interest.Adult incest. the home. a. a. iii. ii. i. v. Thus. and it is not correct today. Scalia’s Dissent: The majority describes this conduct as an exercise of liberty and applies an unheard-of rational basis review that has implications beyond this case. touching upon the most private human conduct. Old rule proven unworkable? 1.
O’Connor’s Concurrence (Equal Protection): The Texas statute here applied only to sodomy between same-sex partners. Rational Basis: Also applies a rational basis review under the Equal Protection Clause. or parents-in-law of the nominal head of the household or a spouse and dependent kids of ONLY ONE dependent child of the head of the household. Thus. to marry.” i. she reached the same result as the majority. adoption. City’s need to control traffic. Ex: Village of Belle Terre v. a. If the statute was spread across the entire population equally. FAMILY INTEGRITY i. or marriage. The statute defined family to mean one or more persons related by blood. aesthetic standards. unmarried children.Obscenity. If the promotion of majoritarian sexual morality is not a legitimate state interest. none of the abovementioned can survive the rational basis standard of review. b. or to raise their children in a certain way and that desire being interfered with by the state’s desire to regulate zoning. moral disapproval is not a sufficient rationale under the Equal Protection Clause to justify a law that discriminates among groups of persons. 2. not to sodomy between opposite-sex partners.” as used in 91 . Boraas: The village adopted a land use restriction that limited land use to single-family dwellings. The rational basis standard for equal protection is the same as rational basis for substantive due process. The Court has extended substantive due process rights to situations involving an individual’s desire to live together. Ex: Moore v. either it will stand because everyone’s ok with it. 3. If the law should be repealed. a. and its hand should not be stayed through the invention of a brand new constitutional right by a Court that is impatient of democratic chance. ii. it should be by the people and not imposed by a governing caste that knows best (i. East Cleveland: A zoning ordinance. the Court inappropriately allowed gays to achieve judicially what they had been unable to achieve politically in Texas.vi. A. living and cooking together as a single house-keeping unit. therefore. Without any other asserted state interest. or not more than two unrelated persons. Rational Basis Review: The Court stated that the ordinance fell within the category of economic and sociallegislation not infringing fundamental rights and should be sustained since it bore a “rational relationship to a permissible state objective. Shortcutting of Democratic Process/Gay Agenda: Texas is well within its range of traditional democratic action. similar to Belle Terre. or it will be overruled because everyone will be mad.e. HELD: The Court upheld the statute. limited cohabitation to the spouse.Zoning & the “Non-Nuclear Family” 1. The definition of “family. parents. and overcrowding. the Supreme Court).
At any rate. Strict Scrutiny Review/Intermediate Scrutiny: The Court did not explicitly say that this was a fundamental right. we know the Court did not apply Rational Basis because the Court referred to the Euclid and Bell Terre cases and stated that they did not cover the case. In other words. Reconciliation: In Moore. Parking congestion. HYPO: Laura Bush lives with husband George W. unrelated persons had no “fundamental” right to live together. her new hubby. Prevent Overcrowding. 3. Extended Family Protected b. it is family relations. and that the Court must “examine carefully the governmental interests and the extent to which they are served when regulation intrudes upon family living arrangements. Thus. ii. Bush.NOTE: This is an example of a regulation that is not “narrowly tailored” to governmental ends. the closeness of fit of assertive ends and the means employed by which to achieve these ends are of an insufficient type. 3. Minimize traffic.W. i. but the extended family is what was in trouble. RIGHT TO MARRY 92 . prevented the plaintiff from living with her two grandsons. in-law Grandpa George H. Fundamental Right of Family Composition: The right of members of a family.” the ordinance served them marginally at best. The State advanced the following interests: 1. daughter Jenna. c. Question: Can they all live together in Belle Terre? In East Cleveland? B. 4. Moore distinguished from Belle Terre: The Court in Belle Terre upheld a zoning restriction that excluded most groups of unrelated people. not the rights of individuals to choose with whom they live.. i.the ordinance. the nuclear family was okay. It is this distinction is what makes it unconstitutional. Avoiding an undue financial burden on school system. the Court found that while the State interests were “important or ligitamate. However. i. Thus. HELD: The Court struck down the ordinance under the substantive due process doctrine of the Due Process Clause of the 14th Amendment. even a non-nuclear one. who were first cousins (it would have been okay if they were brothers). & newborn Newt. to live together was a liberty interest. and it has been argued that either standard was applied. that has fundamental status. a. a. The student should observed whether the law is underinclusive or overinclusive. plus daughter Barbara and newborn Rudy. 2.
the State is attempting to isolate itself from the difficulties to all states by restraining access to its borders. influx of migrants resulting in problems of health. is guilty of a misdemeanor. and (5) the 5th Amendment. HELD: The statute fails under any known test of the validity of State interference with interstate commerce. NOTE – Structural Argument: The Carolene Products case listed as a favorable category for judicial review “Review of statutes directed at “discrete and insular minorities. (2) The Substantive Due Process Doctrine. Here. morals. 1. Strict Scrutiny: Applying strict scrutiny. even without an equal protection analysis. the indigent nonresidents. national. the Court concluded that the state’s interests were “legitimate and substantial. c. HELD: The Court stuck down the statute under the the Due Process Clause of the 14th Amendment. While the state may justify a statute of this type as a proper exercise of its police power (i. Redhail: The P attacked a Wisconsin law which required 93 .” In Edwards. b. and finance).C. and (2) a demonstration that the child was not currently. Thus. religious. a. knowing him to be an indigent person. Equal Protection: This case is important because it signifies that. Ex: Zablocki v. (3) The P & I Clause of the 14th Amendment. Fundmental Right to Marry: The right to marry is part of the fundamental “right of privacy” implicit in the fourteenth amendment’s due process clause. this prohibition is not within the state’s police power. were not be able to exert political pressure on the Cali legislature to change the policy. 2. Ex: Edwards v.e. in particular.” but that the state’s method of furthering these interests unnecessarily interfered with the fundamental right to marry. who are the real victims of the statute. or racial minorities.” Edwards was convicted for bringin his poor brother-in-law into Cali. there is still a limit to a state’s legislative activity. a public charge (i. i. supported by welfare). a. THE that any parent who was under court order to support a minor child not in his custody meet two requirements before permitted to remarry: (1) payment of all court-ordered support. RIGHT TO INTERSTATE TRAVEL i. This rights has been analyzed under: (1) The Dormant Commerce Clause. Dormant Commerce Clause Analysis (Majority): Congress’ Plenary Power over commerce includes transportation of persons. the right to marry is a fundamental right.e. 1. and was not likely to become. one that is incident to national citizenship protected by the P & I Clause. California: A California “Anti-Okie” Law stated that “Every person that brings or assists in bringing into the state any indigent person who is not a resident of the state. P & I Clause of the 14th Amendment/Implicit Fundamental Right to Interstate Travel (Douglas’ Concurrence): The right to travel between the States is a fundamental right.
HELD: The State’s continuation of life-sustaining procedures did not violate Nancy’s 14th Amendment rights. D.The democrative political process is well suited for this debate to continue. ii. including artificial life-sustaining measures. (Cruzan) 3. 3. e. Missouri Dept. for legitimate national security interests. b. Ex: Aptheker v. i. RULE: Government has some authority to regulate travel. Secretary of State: The Court struck down a provision of the Subversive Activities Control Act prohibiting members of Communist organizations from applying for passports. Her parents asked the hospital to remove artificial nutrition and hydration tubes. A competent adult has a 14th Amendment “liberty” interest in not being forced to undergo unwanted medical procedures. (Glucksberg) a. State’s Concern/Political Process i. RIGHT TO DIE i. this interest entitles that state to require clear and convincing evidence that the patient would have voluntarily declined life-sustaining measures. Nancy Cruzan had spent years in a persistent vegetative state resulting from a car accident. Foreign/International Travel a.g. based on federalism concerns. ii.“Pullin’ the Plug” – Ex: Cruzan v. Terminally-ill patients do not have a general liberty interest/right in physician assisted suicide. the 5th and 14th Amendment prohibits the state or the federal government from unduely infringing this right. 2. The state has an important countervailing interest in preserving life. but the hospital refused to do so without a court order. Thus. Thus. iii. Missouri law required a patient’s "surrogates" to prove by clear and convincing evidence that the patient would want life-sustaining treatment removed under the circumstances. 5th Amendment: The Right to Travel abroad is an 94 . of Health: The Court addressed the issue of when family members of an unresponsive person could decide to with draw life-sustaining medical measures. and taking the measures necessary to drive them out of the countries where they are operating. (Cruzan) 2. Limit on Right to Travel a. States can ban assisted suicide without substantive due process problems.States can also allow assisted suicide. Agee: Court upheld the revocation of the passport of a citizen who announced his plans to travel abroad for the purpose of exposing CIA officers and agents. free from federal government interference. Based this on the ground that his travel was likely to cause serious damage to national security.important aspect of the “liberty” guaranteed by the Due Process Clause of the fifth Amendment. General Principles 1. The Missouri Supreme Court held that the parents did not meet this burden and sustained the hospital's refusal. Ex: Haig v. The Parent’s claimed that Nancy had a 14th Amendment right not to be kept alive by life-sustaining treatment.
a. the Court stated that whether a person’s constitutional rights have been violated must be determined by balancing his liberty interests against the relevant state interests.” The statement was insuffient to pass the standard. b. 4. 1. But what is to prevent the legislatures from going to far? The Equal Protection law saves us. In Cruzan. 2. a. the State’s interest in safeguarding against potentional abuses may be furthered by imposing a clear and convincing standard for determining if “pulling the plug” is what the patient wants. It can’t erect high evidentiary burdens to the parents.protected liberty interest in refusing unwanted medical treatment under the Substantive Due Process Doctrine. maybe a preponderance of evidence.Physician Assisted Suicide – Ex: Washinton v. the State cannot stand in the way. The State is required to be an absolutely neutral arbiter. Right Exists: A competent person has a constitutionally 95 . to refuse treatment. it seems like a rational basis standard that they are using. which requires the democratic majority to accept for themselves and their loved ones what they impose on you and me. If the dissent had its way. that is. In Cruzan. Scalia Concurrence: We ought to leave this issue to the legislatures. the parent’s evidence was Nancy Cruzan's past statement that she would not want to live as a "vegetable. Once her wishes are ascertained. The Court noted that the logical corollary of the doctrine of informed consent (common law tort) is that the patient generally possesses the right not to consent. O’Connor Concurrence: Would have to honor the patient’s wishes even if it was a surrogate making that decision as long as the evidentiary standard was met. and need not remain neutral—can tilt scales toward keeping patient alive. so this is probably the case. State can erect barriers to surrogate making this decision. 3. Brennan Dissent: The only legitimate state interest here is ensuring that the patient's wishes are followed. 5. it would abrogate the clear and convincing evidentiary burden.” a nonprofit organization in Washington that provides counseling to terminally ill adults who are contemplating 1. This is reaffirmed by Glucksberg. Glucksberg: “Compassion in Dying. Clear and Convincing Standard Constitutional: When an individual is incompetent and on life sustaining medical treatment. Although. Probably includes life-sustaining treatment: It is not clear if this is a “fundamental” right or what standard of review applies. ii. iii. a substantial state interest. they would assume that the United States Constitution would grant a competent person a constitutionally protected right to refuse lifesaving hydration and nutrition. i.Dicta: The Court stated that for purposes of this case.
a. Rational Basis Test: Because there was no fundamental right. and undue influence. brought a suit to challenge the constitutionality of a Washington statute prohibiting assisted suicide. Thus. 2. a. By the time of the Fourteenth Amendment. the Court examined the State’s ban of assisted suicide under this standard. The Bush Administration and Attorney General John Ashcroft issued an interpretive ruling declaring the ODWDA to 96 . Ex: Gonzales v. (New Prong) 3. “Deeply rooted in Nation’s history and tradition. the right was entirely consistent with this Nation’s history and constitutional traditions. (3) Protecting Integrity of Medical Profession. NOTE: New 2-Part Unenumerated Fundamental Rights Test: Rehnquist states that the established method of substantive-due-process analysis has two primary features: i. 4. Oregon: Involved the Oregon Death with Dignity Act. Distinguished from right in Cruzan: The right established in Cruzan was not deduced merely from abstract concepts of personal autonomy. Rather. finding that the statute rationally related to legitimate government interests. coercion. The Due Process Clause specially protects those fundamental rights and liberties which are. it was derived from common law concepts and torts. The P’s claimed that the statute was unconstitutional because (1) it placed an undue burden on a constitutionally protected liberty interest to commit physician assisted suicide without government interference. along with physicians and terminally ill patients. poor. No Historical Right: For over 700 years. (2) Preventing Suicide as a Public Health problem and Protecting vulnerable groups (i. neglect. Anglo-American common-law tradition has punished or disapproved of suicide and assisting suicide. and (2) violated the Equal Protection Clause of the Fourteenth Amendment because people already had a right to pull the plug. which recognized the right to assisted suicide for Oregonians. iv. most all states criminalized assisted suicide. ISSUE: Whether the “liberty” specially protected by the Due Process Clause includes a right to commit suicide which itself includes a right to assistance in doing so. HELD: The Supreme Court held that the ban on assisted suicide in Washington did not violate the Due Process Clause.e.” AND ii.Federalism Concerns – Physician Assisted Suicide 1.” and “implicit in the concept of ordered liberty. and disabled from abuse.Requires a careful description of the asserted fundamental liberty interest.suicide. objectively. Legitimate Government Interests: (1) Preservation of Human Life. 1. elderly. (4) Slippery Slope: The State could rationally fear that legalizing physician assisted suicide would set it down a slippery slope towards voluntary and perhaps involuntary euthanasia. No Fundamental Right: The right to assistance in committing suicide is not a fundamental liberty interest protected by the Due Process Clause.
14. Whenever there is not a heightened review or a middle tier review. OPERATION OF THE CLAUSE i. does classify people in some manner. classification here is not used in its broad sense. 3. Every law.State and Federal Actions: The guarantee of equal protection applies to actions by both the state and federal government. The three tiers are: 97 . THE THREE-TIERED SYSTEM OF EQUAL PROTECTION ANALYSIS i. Cont.Classifications 1. would violate the 14th Amendment. the administration’s position could not stand because there would be a radical shift of authority from the States to the federal government to define general state medical standards. 2. go to the default of Rational Basis. As a matter of federalism. GENERAL a. The type of analysis applied depends on what persons are classified and what rights or interests are burdened. C. 1. It possible to have a mixture of these. . Federal government: Nothing in the Constitution requires that federal government provide equal protection of the laws. 2. iii. . the Court treats it as a violation of the 5th Amendment Due Process Clause. ii. DENY TO ANY PERSON WITHIN ITS JURISDICTION THE EQUAL PROTECTION OF THE LAWS. Challengers disputed the Attorney General’s power to override the constitutional authority of the State of Oregon’s decision to permit certain assisted suicide. Ex: Bolling v. the Fifth Amendment Due Process Clause has been held to have an “equal protection component” that forbids invidious discrimination so that when the federal government engages in a classification which. NOTE (Scalia Dissent): Said the federal government should be able to trump state law on this matter. and that physician’s use of CSA covered drugs to assist suicide is not a legitimate medical practice. Amen. it means laws that break up the population into various subgroups. Sharpe: The Court held that the federal government could not operate racially segregated schools in the District of Columbia. Discriminatory Purpose. However. if it were by a state. However. HELD: The Supreme Court analyzed the case as if it were a matter of administrative law. to have effect. Discriminatory Application 4. §1 (Equal Protection Clause): [N]O STATE SHALL MAKE OR ENFORCE ANT LAW WHICH SHALL . Instead. State and local Governments: The 14th Amendment itself applies only to these entities. The Equal Protection clause means that similar people must be treated similarly. B. PART VII – EQUAL PROTECTION I.be invalid. a. Facial Discrimination. a. The ruling sought to criminalize the practice notwithstanding the ODWDA. The clause and its analysis are triggered whenever the government engages in a classification in a law.
Strict Scrutiny (Similar to least restrictive means): This is the highest standard which requires a showing that a law is “narrowly” tailored to advance a “compelling” (not merely legitimate) state interests. a. i. Wherever a law affects: (1) Suspect Classes. However. it will be subject to this review. and a host of others are governed by this standard. b. Suspect Classifications (R-A-N): If a law discriminates against a suspect class (a politically powerless or unpopular minority). However. (3) children of illegal aliens. what standard would apply? A: Strict Scrutiny because it is a classification based on race. rational basis would be used. Alienage. Most laws affecting economic rights. The Court has invoked this level in cases involving (G-AC): (1) Gender. HYPO: A state college dormitory has one wing for blacks and one wing for white students. Typically. Here. b. but not so strong as to be compelling) state interest. Rational Basis (Reasonable Classification) Test: This is the 98 . ii. HYPO: A state run apartment complex bars rental by redhaired people.” a. What standard of review should be used? A: Rational Basis – The fact that there is a classification means that equal protection analysis applies. 2. and (4) arguably other classes. (2) illegitimacy. Immutability. History of Discrimination. the law will be subject to strict scrutiny. it does not have to be the “least restrictive means. If there were a constitutional challenge for this. it is on the basis of Race. and Nationality.lowest standard of review where the question is simply whether the law is rationally related to a legitimate state interest. 2. if a law discriminated against the class of people who wear trousers below their waists cant 1. or has an impact on (2) Fundamental rights. a. taxes. housing. strict scrutiny doesn’t apply here because it must be based on a “suspect class” that the Supreme Court has recognized as needing protection. the state must show that the law is “substantially” (not merely rationally) related to the achievement of an “important” (not merely legitimate. Thus. employment. “Middle Tier”/Intermediate Level Scrutiny: There are certain classifications that the Court considers sensitive but not so sensitive as to warrant the highest degree of scrutiny. Fundamental Rights: 3.Deciding if a Particular Group is a Suspect Class for Strict Scrutiny Review 1. a. Ex: A person who is black cannot change that immutable characteristic. Here. red haired people aren’t a suspect class and thus. living arrangements.
4. Facilities are in fact “equal”: The Court noted that unlike the pre-1954 cases. 3. there were findings that the two schools were equalized. They calimed that their equal protection rights were violated alleging that the segregated public schools were not “equal” and could not be made “equal. Overinclusive Classifications: When all persons who have the Trait contribute to the Harm. 2. Pre-1954: The Court upheld the doctrine enunciated in Plessy after the Court found in a series of pre-1954 cases involving graduate school education that school facilities available to Blacks were not in fact “equal” to those given to whites. ii. with respect to the buildings. Board of Education (“Brown 1”): Plaintiffs. iii. b. Ability to utilize the political process.General Principles of the Standards of Review: The way classifications work is that they identify some trait in people. Over and Under-inclusiveness: The classification is overinclusive as to some groups of people but under-inclusive as to others. Ferguson): Initially. NOTE: You do not have to meet everyone of these factors to get a heightened review. Underinclusive Classifications: All persons who have the Trait contribute to the Harm. Ex: Brown v. and presume a certain connection between that trait and the legislative goal. were denied admission to schools attended by white children under laws permitting segregation based on race. Discrete and insular minority.The Separate But Equal Doctrine (Plessy v. 1. Here. see if there is a “perfect fit” between the Trait and the harm. students. the Court could not just 99 . Claims that these statutes provide equal protection have failed. iii. or were being equalized. the Supreme Court treated the doctrine as not in violation of the equal protection clause. a classification utilizes race. but persons without the Trait also contribute to the Harm. re: School Desegregation Cases. EXPRESS CLASSIFICATIONS a. curricula. Strict Scrutiny has traditionally been reserved for those classifications which operate to the disadvantage of a racial or ethnic minority. 4.Overruling the Doctrine 1. Thus. 3. it was not necessary to overrule Plessy. In Plessy. the court upheld a LA law calling for separate-but-equal accommodations for white and black railroad passangers. qualifications. The “Fit” of the Statute: In looking at the classification. 5. and other “tangible” factors. II.come in. Thus. this is no immutable because they can pull them up. but some people who have the Trait might not contribute to the Harm. but does not explicitly disadvantage either one race or another. SEGREGATION: SEPARATE BUT EQUAL TREATMENT i.” a.
Historical Approach: The Court noted that the legislative history of the 14th Amendment was inconclusive. A white man and his black wife were convicted for cohabiting as husband and wife. is a right. Application to other Contexts besides Education/Strict Scrutiny: The Court held that.Explicit Racial Classifications & Marriage 1. 3. which must be made available to all on equal terms. Thus. regardless of the equality of tangible factors.” the Court held that these factors. Status of education then and now: We must consider public education in the light of its full development and its present place in American life throughout the Nation. b. where the state has undertaken to provide it. Policy Analysis – Importance of Education: Today. Such an opportunity. a. HOLDING: Noting that the Sweatt and McLaurin cases reviewed certain “intangible factors.turn to these factors. NOTE – Justice Thomas’ Concurrence in Missouri v. blacks were not educated at all. c. At the time of its passage.“Segregation was not unconstitutional because it might have caused psychological feelings of inferiority…. Jenkins: Thomas’ concurrence rejected the view that the Brown decision depending on sociological and psychological date concerning the feelings of inferiority created by de jure segregation. Social Science Approach: Segregation with the sanction of law has a tendency to retard the educational and mental development of Negros and to deprive them of some of the benefits they would receive in a racially integrated school system. i. thus it is no help in determining Congress’ intention with respect to school segregation. Virginia: A Virginia statute made interracial marriages between white persons and other races a crime. even in 10 0 . HELD: The Supreme Court reversed the conviction finding that the statute violated the Equal Protection Clause. They challenged Virginia’s law. It is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. iv. Ex: Loving v. A sense of inferiority affects the motivation of a child to learn. education is perhaps the most important function of state and local governments. necessarily prevented children who were restricted to all-black schools from receiving equal educational opportunities. they had to turn to the effect of segregation itself on public education. the Court held that separate educational facilities are inherently unequal and therefore deprive blacks of equal protection under the 14th Amendment. Virginia defended on the theory that the antimiscenagation law burdened whites and blacks equally. 2. a.Psychological injury or benefit is irrelevant to the question where state actors have engaged in intentional discrimination – the critical inquiry for ascertaining violations of the Equal Protection Clause.
Thus. The only interest it saw being served was furthering discrimination. the Court held that the concerns of the state court were probably real. PURPOSE V. He sued under 42 U. then turn to these concepts to see if a plaintiff has a valid claim for a violation of the Equal Protection Clause of the 14th Amendment. Jews and Arabs were among the peoples then considered to be distinct races and hence within the protection of the statute. v. Indeed. 2. even though it isnt’t racial. The Court further held that Virginia failed strict scrutiny because it did not have even a legitimate government interest. Ex: Palmore v. GENERAL i. Francis College to discrimination against Jews.P. analysis would still prevail (i. 2. Hispanic man wants to marry a black woman). NOTE . What if the State had banned all interracial marriage? E. which prohibits certain racial discrimination even by private persons. Al-Khazraji: Plaintiff was a U. III. because these aren’t even ligitimate.” HELD: Applying strict scrutiny. b. Ex: Shaare Tefila Congregation v. It is still a racial classification that is unconstitutional and Strict Scrutiny would still be applied. 10 1 .NOTE – The Limits of “Racial” Discrimination – Ethnic. preservinf racial integrity of citizens (whites) and white supremacy. 2. the Court held that the state could not give effect to private prejudices. If a statute is not facially discriminatory (does not involve an express classification). on the ground that the child should be spared “the social stigmatization that is sure to come. the state’s use of racial classifications would be tested by the strict scrutiny standard. Under EP. there is no need to go to strict scrutiny. This cannot be justified. Francis. vi.NOTE – NO Race Considerations in Deciding Custody of Children: 1. Ex: St. HELD: The Supreme Court disagreed with the district court and held that § 1981 reached discrimination based on national origin. Sidoti: A divorced white mother with custody of her white child married a Black man.Stewart Concurrence: Argued that state criminal laws where race was an essential element of the crime were per se invalid.e. state cannot bootstrap its own discrimiation by relying on third party discrimination. He alleged that the college was liable to him for denying him tenure based on his race.S. Citizen born in Iraq. EFFECT A. Religious.a setting other than education. but it would be narrower because he would apply it only to criminal laws. but held that they could not supply the compelling interest that was required. RULE: Even if the compelling governmental interest is a benevolent one. let alone a compelling one. §1981. This was much simpler than the invocation of strict scrutiny. Cobb: Extended the holding of St. As evidence from St. or Regional Groups as Suspect Classes 1.C. The state court transferred custody to the child’s father.S. Francis College v.
If a statute is shown to discriminate on its face. HELD: Racial discrimination violative of the E. General Requirement of Purposeful/Invidious Discrimination: The Equal Protection Clause is violated only by purposeful or invidious discrimination. 1. only exists where it is a product of a discriminatory purpose. Ex: Washington v. if the law is facially neutral and is applied according to its terms. The Court was concerned that absence of an intent requirement might invalidate a whole range of tax.) a. no additional showing of purpose is required. 2. 3. Disprate Impact: While a showing of disproportionate racial impact is a factor in ascertaining intent.C. 1. regulatory and licesnsing statutes that may be burdensome on one race and not the other. Standing alone. and this discrimination violates the Equal Protection Clause. except with the consent of the Board of Supervisors. 10 2 . the individual will have to prove that a discriminatory purpose was behind the statutes enactment.B. welfare. that the law bears more heavily on one race than another. Ex: Yick Wo v. Duke Power Co. NOTE: An invidious discriminatory purpose may often be inferred from the totality of the relevant facts. Furthermore. The P’s also provided evidence suggesting that performance on the test did not necessarily correlate with job performance. no showing of discriminatory purpose will be necessary. but to none of the nearly 200 Chinese applicants. HELD: Although the ordinance is neutral on its face. including the fact. Hopkins: A San Francisco ordinance bars the operation of hand laundries in wooden buildings. Application to Davis: The D. there is a denial of equal protection of the laws. Police Department’s affirmative efforts to recruit more black policemen.’s police department. C. DISCRIMINATORY PURPOSE i. (Declined to accept the Disparate Impact theory advanced in Griggs v. if an individual can show that administrators of the law apply in a disadvantageous way. public service. The P’s claimed that this differential impact made the hiring process violative of equal protection even though those who composed or selected the test had no intent to discriminate against blacks.P. yet. DISCRIMINATION IN ADMINISTRATION i. if it is true. it can never by itself be sufficient to prove discriminatory intent. it does not trigger the rule that racial classifications are to be subjected to the strictest scrutiny and are justifiable only by the weightiest considerations. They had failed a written test of verbal ability and reading comprehension (blacks failed 4 times more than whites).C. if it is applied and administered by public authority with an evil eye and an unequal hand. negated any finding of a discriminatory purpose in the use of the test. Davis: Involved a suit brought by unsuccessful black applicants for positions in D. The Board gives permits to all but on of the non-Chinese applicants. However.C. b. there was discrimination in its administration. RULE: Though a law itself may be fair on its face. and impartial in appearance.
were men. RULE: Awareness of the consequences of disparate impact is not sufficient to prove discriminatory purpose. a. It is enough that the purpose was a “motivating factor” in the legislature’s decision to enact the statute.The Motivating Factor Test & Discriminatory Intent 1. over 98% of the veterans in Mass. 4.C. challenged a Mass. and only one of these was discriminatory against the suspect class. emerges from the effect of state action). at the time the suit was brought. HELD: The statute was not intentionally gender-based. a. Two Motivations: If there are two purposes that motivated the legislature to enact a statute. 5. Since. The “Motivating Factor” Test: In deciding if discriminatory purpose was a motivating factor.: The P. this may be a factor. whether the law bears more heavily on one race than another. Feeney: P.e. It needed village committee approval to do so by granting a zoning change from single family to multi-family. anything more than a foreseeable but undesired inevitable by-product of the basic decision to favor veterans. v. Thus. Ex: Village of Arlington Heights v. 3. could there be said to be intentional discrimination. unexplainable on grounds other than race. clear pattern. Ex: Personnel Administrator of Mass. a non-profit developer wanted to built racially integrated low income housing. 2. the preference operated overwhelmingly to the benefit of males and the the detriment of females. Again. such a purpose need not be the sole purpose of the statute. in the legislature’s mind. but what is key is whether there is discriminatory intent. A significant number of men were also non-veterans. The Court found no evidence that the disparate effect upon women was. a woman. only if the legislature chose its course “because of.Must be “Because of” not “In spite of” 1. The Relationship between the Rule or Law & 10 3 . the preference did not violate the E. The Committee denied the permit and the Non-Profit sued under equal protection. iii. will not immunize the statute from strict scrutiny. civil service statute which gave an absolute hiring preference to any veteran who obtained a passing score on a competitive exam. Metropolitan Housing Development Corp.Constitutionality: The question does not turn on whether the Court agrees with the business judgment of the particular regulation. the presence of the second. look to the following factors: a. Although a discriminatory purpose is required for invocation of strict scrutiny.P. Impact: Look to circumstantial and direct evidence of intent (i. ii. Alternative Remedy: The Plaintiff’s could have proceeding on a Disparate Impact claim under Title VII of Civil Rights Act. even if it is the case that it is not related to employment etc. non-discriminatory motive.” its adverse effects upon a minority.” and not merely “in spite of.
ii. If the law had a motivating factor when passed. Legislative History: Especially where there are contemporary statements by members. These challenges enable either side to exuse a certain number of potential jurors “without cause. iv. the burden then shifts to prosecutor to show race-neutral explanation (need not be enough for “for cause” strike) 2. but was suddenly changed to singlefamily when town learned of MHDC’s plans to erect integrated housing. a. It could always be re-enacted after it is struck down in the future because the discriminatory motivation no longer exists today. Substantive Departures: Particularly if the factors usually considered important by decision makers strongly favor a decision contrary to the one reached. and ii. f. See Hunter v. a.Use of peremptories against that class (statistical evidence) b. civil juries. HELD: Supreme Court struck down the provision. Ex: Hunter v. Historical Background: Particularly if it reveals a series of official actions taken for invidious purposes.Standard of Review: Strict Scrutiny 1. See Grutter (2006) below. A race-based classification will receive the same strict scrutiny whether the classification is “benign” or “invidious. The evidence demonstrated that the provision was enacted with the intent of disenfranchising blacks. Criminal defendant needs to show: i. if the property had always been zoned multi-family. Membership in class. In Arlington. i. RACE-CONCIOUS REMEDIES & AFFIRMATIVE ACTION A.NOTE: Peremptory Challenges – The Batson challenge (Ex: Batson v.b. Procedural Departures from the norm e. Benign Discrimination: This type of discrimination uses race as a factor to remedy or rectify past discrimination by the State. NOTE: Later extended to use by defense. Sequence of Events leading up to challenged 10 4 .” a.” Prosecutors may not use such challenges based solely on the race of the juror. decision i. Kentucky) 1. Underwood. Underwood: Blacks and whites who were disenfranchised by an Alabama constitutional provision denying the vote to persons convicted of any crime involving moral turpitude alleged that it denied them equal protection. IV. but the motivation is now gone. it might be valid or it might get struck down because of the original motivation when it was enacted. v. c. GENERAL i.NOTE: Passage of Time 1. gender. Once he showed that. d.
Guidance for determining whether Race-Conscious Remedies are Narrowly Tailored: a. 3. i. 1. and open discrimination. In cases involving general societal discrimination. See Grutter 2. Efficacy of alternative remedies. long term. despite a district court order to remedy it. b. and only when the “remedy” is not a quota. b. but the Court stated that the remedy survivied even strict scrutiny. Standard of Review. Actor-Specific Past Discrimination: In Paradise. implemented an acceptable promotion procedure. the court upheld a 1-to-1 remedy similar to a quota. ii. not required to make these promotions in compliance with the court’s order. the Dept. a. Paradise: Alabama Dept. including courts. Remedying General Societal Discrimination v. Ensure compliance with decrees by inducing the Dept. The District court a ordered one-black-for-one-white promotion requirement (one black trooper for each white trooper elevated in rank) as long as qualified black candidates were available. Flexible in application to all ranks. still did not have promotion procedures that did not disadvantage blacks. iii. NOTE: The mere fact that there has been general “societal” discrimination is not enough to justify race-conscious measures. i. After eleven years. to implement a promotion procedure that would not have an adverse impact on blacks.The Paradise Court was not sure what standard to apply.Requirement may be waived if no qualified black candidates are available. REDRESSING OF CLEAR PAST DISCRIMINATION: EQUIATABLE REMEDIES AGAINST SPECIFIC EMPLOYERS FOR PAST DISCRIMINATION i. The flexibility and duration of the relief (Including availability of waiver provisions). HELD: The Supreme Court upheld the order finding it narrowly tailored to further a compelling governmental interest.discrimination by society in general is NOT a compelling governmental interest sufficient to satisfy the strict scrutiny standard 1. so that is what was probably applied. 2. the Dept.Remedying Societal Discrimination Insufficient: Remedying past 10 5 . The Dept. In Paradise. c. of Justice argued that this was unconstitutional. iii. Ex: United States v. Necessity of Relief. RULE: Government bodies. until the Dept. the promotion order was necessary to eliminate pervasive. the Court tends to approve rarely. however. of Public Safety systematically excluded blacks from employment.If budget cuts necessitate a promotion freeze. may constitutionally employ racial classifications essential to remedy unlawful treatment of racial or ethnic groups subject to discrimination.
ii. Grutter resolved this. Looking at % in applicant pool. and § 1981. comes up with an acceptable procedure that does not have a discriminatory impact on blacks. Compelling State Interest – Student body diversity in Higher Education: is a compelling state interest that can justify the use of race in university admissions. Apply strict scrutiny when race/ethnicity used in affirmative action. The one-for-one requirement did not impose an unacceptable burden on innocent parties. PURSUIT OF DIVERSITY IN A STUDENT BODY i. ii. Title VI. Same standards apply when it’s done by federal government or by the state government. (Look for racebased government set-asides programs or affirmative action schemes passed by Congress) 3. d. with the hope of admitting a more diverse student body. i. Relationship of the numerical goals to the relevant labor market. ii. without also feeling an obligation to speak as a minority representative. a. This also promotes cross-racial understanding. c. Powell writes a concurrence and resolves it in favor of the affirmative action program. qualified pool. Cannot distinguish between benign and invidious discrimination. Decision in Bakke 1. THE iv.Ex: Grutter v. Bollinger: In their admissions process. 2. everyone assumed that diversity might be a compelling governmental interest.not given equal weight when considering applicants.Endures only until the Dept. It also admitted that it sought a "critical mass" of each minority to ensure that such students would feel free to speak in class. general pop. e. b. at least when the means are narrowly tailored to achieve that goal. Standard of Review: Strict Scrutiny 2. This interaction helps prepare them for the increasingly diverse workplace.Does not require layoff.C. Diversity of Views. 10 6 . 2. 3. Impact of the relief on the rights on third parties i. 1. Michigan Law School developed a policy that looked at not only GPA and LSAT but also several “soft variables” (such as race). ii. These “soft variable” could trump hard predictive indicators such as the LSAT to ensure an applicant's admission. A woman challenged this as a violation of the Equal Protection Clause.Post-Paradise: The Adarand Case 1. but there was never a holding that stated so.Numerical relief ordered and percentage of nonwhites in the relevant workforcePromote oneto-one until 25% of the rank in question was black 25% represents the percentage in relevant labor market. For decades after.
d. 3. Nor does a program become a quota merely because membership in a certain group is made a plus factor as long as the plus factor is administered as part of individualized evaluations. a. holistic review of each applicant's file. giving serious consideration to all the ways an applicant might contribute to a diverse educational environment. Narrow Tailoring: The Equal Protection Clause does not prohibit the Law School's narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body. need for diversity in these places. Quotas impose a fixed number or percentage which must be attained. The policy "is flexible enough to consider all pertinent elements of diversity in light of the particular qualifications of each applicant. (No Separate Tracks) ii. Race-Neutral Alternatives: Narrow tailoring requires serious.Limitation to Higher Education 1. of Education: School districts used race as the determinant factor under certain circumstances in admissions and student transfers for public schools. only those alternatives that would serve the governmental interest about as well. good faith consideration of workable race-neutral alternatives that will achieve diversity. Seattle School District No. i. c. 25 Year Sunset: The Grutter Court noted that these policies should no longer be needed in 25 years. the Law School engages in a highly individualized. Jefferson Bd. iv. RULE: Diversity as a compelling interest is limited to only higher education and does not apply to elementary or secondary public schools that seek to further this particular interest in an affirmative action admissions scheme. Rather. a. or which cannot be exceeded. Amicus briefs from the armed forces and businessmen. there is no rigid quota. Ex: Parents Involved in Community Schools v. narrow tailoring does not require exhaustion of every conceivable race-neutral alternative.Grutter’s Companion Case: Gratz (Undergraduate Admissions Process) 10 7 . No Quotas: A program in which certain fixed number or proportion of opportunities are reserved exclusively for certain minority groups. The Supreme Court applied strict scrutiny and held that the districts failed to satisfy the narrow tailoring prong. 1 & Meredith v. b. The Supreme Court limited the holding of Grutter to post-secondary education. iii. RULE: A program that merely contains aspiration goals does not thereby become a quota. However. and to place them on the same footing for consideration.In Grutter.
system. Points were awared for various characteristics, up to a maximum of 150 points. A minimum of 100 points was needed for admissions. An applicant was entitled to an automatic 20 points for membership in an underrepresented racial or ethnic minority group. By contrast, the award given for most other types of non-acedemic traits was much smaller, i.e. 10 points for being a Michigan resident. 6 points for being from an underrepresented Michigan county. 5 points for leadership and service; 5 points for being a High School Student Leader of having artistic talent. HELD: This admission scheme was unconstitutional. a. Point Systems Not Allowed: A point system is unconstitutional because it is not narrowly tailored to achieve a school’s interest in educational diversity. Unlike system’s that utlize race as a plus factor, which is not to be decisive and each applicant is to be evaluated as an individual, a point system does not reach these similar ends and is much more mechanical. 2. Dissent: The message from Gratz and Grutter is to go ahead and do diversity, but do it in a black box. Don’t make it open and honest. Hide in your office, so that the Supreme Court can’t strike down what you are doing. v.HYPO: Suppose law school admitted only 100% white liberal males from Mass. School changes its policy and gives bonus points to people who are outside of Mass. Is there any reason why this isn’t valid? a. A: The b. “The Shape of the River” vi.Socio-economic Based Affirmative Action
1. The University of Michigan undergrad used a bonus points
CLASSIFICATIONS BASED ON ALIENAGE A. DISCRIMINATION AGAINST LEGAL ALIENS i. What to Look For: Statutes that restrict the rights of resident aliens, based solely on being aliens. If so, the Fourteenth Amendment's Equal Protection Clause applies. ii.Ex: Graham v. Richardson: Arizona denied welfare benefits to legal aliens unless they had lived in the U.S. for 15 years or more. Pennsylvania limited benefits to U.S. citizens. Both laws were challenged by legal aliens who otherwise qualified for the benefits. HELD: The Supreme Court invalidated both statutes. The provisions of state welfare laws that placed conditions on welfare benefits due to citizenship and imposed durational residency requirements on aliens violated the E.P.C. 1. Fundamental Rights of Legal Aliens: Legal aliens are “persons” under the 14th Amendement. Thus, they are afforded the same protection, rights, and guarantees of the equal protection of the laws as an American citizen.
like those based on nationality or race, are inherently suspect and subject to close judicial scrutiny. a. Aliens as a Suspect Class: They are a (1) “discrete and insular minority” for whom such heightened judicial solicitude is appropriate, because they are politically powerless; (2) Possible tradition of discrimination against aliens stemming from that against illegal aliens. i. NOTE: The immutability characteristic is not strong here because the alien has the ability to change his status to an American citizen. 3. Failed State Compelling Interest: A State’s concern for “fiscal integrity” is not a compelling governmental interest for purposes of equal protection analysis. a. In Graham, the Court noted that Arizona and Pennsylvania seek to justify their restrictions ….on the basis of a state’s 'special interest' in favoring its own citizens over aliens in the distribution of limited resources such as welfare benefits. iii.Ex: In re Griffiths: States may not prevent resident aliens from practicing law. The state’s interest were not compelling: (1) Maintaining high professional standards; and (2) Having lawyers serve as officers of the court. b. FEDERAL PREEMPTION ISSUE & CONGRESS’ PLENARY POWER OVER IMMIGRATION i. The Constitution vests in the federal government full authority over immigration. As a consequence, when a state classifies in a way that disadvantages aliens, the question becomes is this consistent with what the federal government does in regards to legal and illegal aliens. 1. Ex: Plyler v. Doe: In determining the validity of a State’s ban on illegal aliens being able to have access to free public education, the Court relied in part on their views about whether such a ban comported with Congressional policy. 2. HYPO: State passes a law that states that all citizens of the Bar must be United States citizens as well as citizens of that State. A: Invalid under the Fourteenth Amendment and Graham. Regulation of immigration is a federal law issue. The state has no interest in regulating citizenship status. 3. See Federalism Section Above. 4. See Bollinger Case (5th Amendment Equal Protection Component) ii.Congress’ Plenary Power Over Immigration: The Supreme Court will be much more deferential to Congress when it discriminates against aliens and thus will not use strict scrutiny reveiew. Therefore, rational basis review (even to legal aliens) applies to permit this type of Congressional action, which permits some discrimination against aliens that might not be permitted by the states. 1. Ex: Matthews v. Diaz: The Court held that Congress could impose the double requirement that aliens be both admitted for permanent residence and have resided continuously in the U.S. for five years, in order to receive Medicare. C. ILLEGAL ALIENS
2. Strict Scrutiny Standard: Classifications based on alienage,
states and Congress using alienage as a classification when the classification burdens illegal aliens. 1. Ex: Plyer v. Doe: This case struck down a ban on public education of kids of illegal aliens, using rational basis review. d. POLITICAL FUNCTION EXCEPTION i. In some cases, the State can prevent all aliens from holding state elective executive, legislative and judicial positions and can limit to citizens participation in positions “intimately related to democratic self-government” where there is board policy making authority. 1. See New Hampshire v. Piper. ii.Bernal v. Fainter: The Court held that notaries public do not perform functions that go to the heart of a democratic government. Since the duties of a notary public are essentially clerical and ministerial, aliens may be barred only if the state’s interest survives strict scrutiny. VI. CLASSIFICIATIONS BURDENING FUNDAMENTAL RIGHTS A. GENERAL i. Here, legislation does not involve a suspect class. Instead, equal protection analysis is triggered if the classification burdens a fundamental right. 1. Strict Scrutiny Standard: This standard is used, regardless of the people who are burdened. B. EQUAL PROTECTION IN VOTING i. Fundamental Right to not having vote Diluted: The right to sufferage is a fundamental matter in free and democratic society. Thus, when a legislative apportionment scheme dilutes a person’s vote by use of electoral districts that are not construed strictly on the basis of population, equal protection is violated. ii.States must give “equal weight to equal votes”: This means “one person, one vote” standard for reapportionment and redistricting. iii.General Rules 1. Equal Protection Clause requires that the seats in both houses of a bicameral state legislature must be apportioned on a population basis. 2. An individual’s right to vote for state legislators is unconstitutionally impaired when its weight is in a substantial fashion diluted when compared with votes of citizens living in other parts of the States. 3. The Equal Protection Clause requires that a State make an honest and good faith effort to construct districts, in both houses of its legislature, as nearly of equal population as is practicable under the circumstances. a. State and Local Redistricting: Each district must be within +/- 10% within every other district. i. This is presumptively okay but can still be challenged. b. Federal Redistricting: Each district must be within +/1% within every other district. i. Presumptively valid but can still be challenged.
i. Rational Basis Review: This type of review applies equally to both
Ex: Reynolds v. Strict Scrutiny Review: There is a classification that burdens fundamental rights. iv. This is presumptively unconstitutional. ii. NOTE: When old fashioned gerrymandering that targets minority groups to dilute votes.Federal scheme arises from unique historical circumstances (Compromise between small and large states) C. HELD: The Supreme Court holds this apportionment scheme unconstitutional and similarly invalidated the schemes of several other states because neither houses were apportioned on a population basis. the proper claim is to show a: a. 1.P’s Burden: The plaintiff must show that the legislature. Sims: Alabama legislative districts were 11 1 . Evidenced by history and language of the Fourteenth Amendment as well as practices in the states. Instead. Johnson): A person can bring a valid equal protection claim and thus subject a districting scheme to strict scrutiny by attacking the drawing of electoral districts if the plaintiff can show that the use of race was the “predominant factor” in drawing the district lines. Thus. Not Substantive Due Process: Equal Protection is the correct analysis to apply because the state is classifying people by grouping them into districts and it burdens a person’s fundamental right to vote. whether through circumstantial evidence of a district's shape and 4. Harlan Dissenting: Held that the Equal Protection Clause was never intended to inhibit the states in choosing any democratic method they pleased for the apportionment of their legislatures. or b. c. The Federal Congress does not serve as a pattern or model for apportioning the seats in state legislatures. iii. race is used to ensure minority voters who were previously discriminated against to have an equal say in our democratic government. race-considerations are used in drawing legislative districts. ii. Congressional and state sovereignty (Political subdivisions of States were never considered as sovereign entities). Inequality in Senate (set number per State – 2): Based on: i. 25% of the population could control the majority of the Assembly because rural people made up the majority of the population but only controlled a lower number of districts. Discriminatory Purpose under equal protection analysis.The Predominant Factor Test/Strict Scrutiny Review (Ex: Miller v. a. Affrimative Action Gerrymandering: Here. b. Discriminatory Effect under the Voting Rights Act.malapportioned because the legislature had not redistricted since 1901 despite a constitutional requirement that it do so each ten years.Distinguished Federal Congress and State 1. RACIAL GERRYMANDERING & “REVERSE DISCRIMINATION” i. a. States had drawn districts based on acreage and not population. but not to dilute black vote.
2. The District court found this unconstitutional based on evidence of legislature’s purpose as well as the irregular border and went to show that race was the overriding and predominant force in the districting determination. HELD: The Court held that there were indeed judicially discernible and manageable standards by which political gerrymander cases may be decided. Ex: Davis v. ii. D. strict scrutiny still must be applied.Non-Justiciable Polictical Question 1. Jubelirer (Rejects Bandemer): PA adopted a congressional redistricting plan. Contiguity (Districts Touch or Don’t Touch). while diluting another parties vote. Johnson: Georgia redistricting legislation alleged to be an unconstitutional violation of the Equal Protection clause. and plaintiffs sued to enjoin enforcement alleging that it was a political gerrymandering in violation of Article I and 14th Amendment Equal Protection Clause. c. Valid Compelling Governmental Interest: Remedying past discrimination in voting. HELD: Race was the predominant factor motivating the districts’ drawing. HELD: The claim is a non-justiciable question. a.Ex: Miller v. The distrincting flunked strict scrutiny because the compelling governmental interest was not to remedy past discrimination. POLITICAL GERRYMANDERING i. it combines a black metropolitan neighborhood with the black populace of a coastal neighborhood 260 miles away. Since race was the predominant. This type of gerrymandering involves redistricting schemes that attempt to keep on party in office. evidence of vote dilution doesn’t matter. overriding factor behind the Eleventh District's drawing. The plan contained three black districts. overriding desire to create a third majority-black district. the mere fact that a bizarre shapped district was drawn is is iself a violation and is expressive harm. the State's plan is subject to strict scrutiny and can be sustained only if it is narrowly tailored to achieve a compelling state interest.demographics or more direct evidence of legislative purpose.Vote Dilution Principle Inapplicable: In a Miller claim. Not only does the bizarre shape support this conclusion but also other evidence showing that the state legislature was motivated by a predominant. this particular case is not justiciable because of the parties involved. Bandemer: Democrats alleged that a Republican majority in the state legislature had reapportioned the voting districts by a political gerrymander that violated their right to equal protection of the laws. However. Compactness (Regularity of Shape). and in one. b. Respect for political subdivisions or communities defined by actual shared interests (Like Minded People Placed Together) 2. 11 2 . Instead. Strict Scrutiny: If the Plaintiff shows that race was the predominate motive. Ex: Vieth v. including but not limited to: a. v. Subordinated traditional race-neutral districting principles to race considerations. iv. that the legislature: 1.
alienage. The Court ostensibly applies a single standard to all gender-based classifications. Boron: Oklahoma statutes prohibited the sale 3. i. statistically 18 -20 year old males were arrested for drunken driving much more 11 3 . What differentiates sec from such non-suspect statuses as intelligence or physical disability. ii. OK defended the statute on the grounds that it promoted traffic safety. No relation to merit. rejects the rule. 1. HISTORY OF DECIDING THE STANDARD OF SCRUTINY i. b. and inherently suspect and subjected to close judicial scrutiny.2% beer to males under age 21 and females under age 18. and aligns it with the recognized criteria. i. however. Factors applied to determined whether a particular class deserves a heightened review: a. This Court goes through a number of rules and rejects each approach as unworkable and unmanageable. GENDER DISCRIMINATION A. RULE: Political gerrymandering claims are “per se” non- justiciable questions because no judicially discernible and manageable standards for adjudicating such claims exist. b. Richardson: Federal statute allowed uniformed servicemen to claim his wife as a dependent for the purpose of deductions but required a female member of the uniform services to prove that he was dependent in order to take those deductions. it is an immutable characteristic determined solely by the accident of birth.a. Reed: Applied a “mere rationality” standard to a state statute that preferred men over women as administrators of estates. The proper test for classifications based on sex is strict scrutiny because. d.Ex: Frontiero v. c. and national origin. Immutability of the characteristic. HELD: Supreme Court invalidates the distinction. Plurality Holding: Classifications based on sex. INTERMEDIATE LEVEL OF SCRUTINY THROUGHOUT i. refused to foreclose all possibility of judicial relief if some limited and precise rationale could be found to review these cases. Whether there has been a historically discrimination. Discrete and insular minority. 1. like those based on race. b. since. is that the sex characteristic frequently bears no relation to ability to perform or contribute to society. Ex: Craig v. Justice Kennedy. Any gener based classification must be: (1) MEANS: Substantially related to an (2) ENDS: Important Governmental Objective. Ex: Reed v. Does not explicitly overrule Bandemer but states that its standard is unworkable. The court notes that the Miller standard is not sufficient b/c in Miller they weren’t applying it to a statewide plan. The consitutional claim was that the statute denied equal protection to males between the ages of 18-20. 2. I. whether these are found to be truly compensatory or merely paternalistic and stereotypical.
In evaluating the women’s alternative. and facilities are not equal. Virginia violated the Equal Protection Clause. parties who seek to defend genderbased government action must demonstrate an “exceedingly persuasive justification” for that action.Exceedingly Persuausive Justification: In addition to applying the 2-prongs of Intermediate Scrutiny. tradition. 11 4 . b. HOLDING: Virginia has shown no exceedingly persuasive justification for excluding women from the citizen-soldier training afforded by VMI. Virginia: VMI was the sole male only school among Virginia’s state universities. b. Create or perpetuate the legal social. and the Supreme Court reverses. 1. holding that Virginia has failed to satisfy the applicable standard for gender-based governmental action. Even supposing there was some correlation. the alternative for women fails as a comparable single-gender women’s institution because the course offerings. Virginia established an equivalent women’s private military institution. Thus. i. After litigation. Adequate Alternatives for Women a. the e women’s school did not provide equal opportunity. Ex: United States v.S. ii. Mary Baldwin College. Such classifications may not be used to: i. sued Virginia alleging the VMI’s exclusively male admissions policy violated the Fourteenth Amendment’s Equal Protection Clause. and economic inferiority of women. c.2% beer to 18-20 year olds) and the end sought to be achieved (promotion of traffic safety) was simply to tenuous to constituted the required substantial relation between the means and the end. 3. 2. U. ii. Stereotypical Thinking Rejected a.frequently than females of the same age group. The two lower federal courts found this satisfied the equal protection requirement. the Court applies the test of substantial equivalency to see if the State has supplied an adequate alternative remedy.RULE: Avoid “archaic and overbroad generalizations” unrelated to real differences between the sexes. In VMI. a. The Court is especially likely to strike down a genderbased classification system that seems to be based on faulty generalizations or sterotypes about the differing abilities and interests of the two sexes. a. the beer being regulated was non-intoxicating. Maleness could not serve as a proxy for drinking and driving because of the small number of instances even with them. HELD: The Court struck down this statute noting the statistically based defense insufficient. Poor overall fit: The overall fit between the means of the regulation (ban on sale of 3.
Sex classifications may be used to: i. INS 1. PART VIII – FREE SPEECH 1. Compensate women for particular economic disabilities they have suffered or promote equal opportunities. review? A: It would more than likely be upheld because we can do things to help women by recognizing inherent differences. In VMI. NOTE: This is a prime example of something being both over inclusive and underinclusive. or secure a court order of paternity.The Application of the VMI Standard: Intermediate Scrutiny Satisfied – Ex: Nguyen v. under 5th amendment analysis.S. a. but are denied acess. These requirements are not imposed on the mother. iii. either ligitimize the child. NOTE – Suitable for Some Women Rationale: 11 5 . Nguyan was born in Vietnam to a Vietnamese mother and an American citizen father. c.A State’s defense that including women would materially change a program. make a declaration of paternity. Under federal law. Would this situation stand const.RULE: OK to discriminate to “recognize inherent differences” between the sexes. ii. the Court held that the scheme served two substantial interest and that the means were substantially related to the governmental interests in facilitating a parent-child relationship. The father claimed this discriminated against men..To advance full development of talent and capacities iii. before the child’s 18th birthday. Application of gender discrimination standard of Intermediate Scrutiny as established in VMI. HELD: Applying I. for the boy to establish citizenship. etc. 1. the American father must. It is over inclusive because because there are men who would not be able to survive the rigors of training while it is underinclusive in that there are women that could survive. The State’s justification for excluding women from citizen-soldier training for which some are qualified cannot rank as exceedingly persuasive. will more than likely be rejected by the Court because at least some women will be able to withstand the same treatment that men receive. HYPO: The state decided to remedy past discrimination against women to set up a special college only to allow women to attend. b.
Amen. OR OF THE PRESS.Strict Scrutiny: Often. Speech. i. 3. face-to-face fighting words that have little communicative content and a high potential for causing breach of the peace. 4. Ex: Publication of military secrets during wartime. Petition the Government for a redress of grievances a. 2. GENERAL a. Ex: An injunction against a newspaper. FREE 1. This also includes a private organinzations right to include or exclude who they want. 1: CONGRESS REDRESS OF GRIEVANCES. false advertising. iii.: Libel. AND TO PETITION THE GOVERNMENT FOR A B. Rare Exceptions a. Views on Limits of First Amendment 1. regulations impinging on First Amendment Freedoms are subject to Strict Scrutiny. OR THE RIGHT OF THE PEOPLE PEACEABLY TO ASSEMBLE. First Amendemnt rights are said to be in a “preferred” position and are thus afforded extensive immunity. SHALL MAKE NO LAW RESPECTING AN ESTABLISHMENT OF RELIGION.First Amendment Freedoms as “Preferred” Rights (Murdock v.Binding on the entire Federal Government. 5. 1. laws that burden people’s access to the court systems will be struck down. Absolute View: The text of the Constitutions supports the view that “no law” shall be passed and that freedom of speech is absolutely protected. OR PROHIBITING THE FREE EXERCISE THEREOF. preventing publication in advance. Generally recognized U. ii. SPEECH i. 2.Unprotected “Utterances” vs. Right to file suit through the court systems. iv. The rights of the people peaceably to assemble. obscenity. Being a member of group without assembling.I. Discrete by related rights recognized by the 1st Amendment: 11 6 . is unconstitutional. Free Association a. but still a distinct right. ii. iii. which may also inquire whether the regulation adopts the least restrictive means available. i. OR ABRIDGING THE FREEDOM OF SPEECH. Ex: State is not allowed to see membership lists of certain organizations. a. Const. Pennsulvania)”: Because they are preservative of other freedoms protected by the Constitution.Prior Restraints as Virtually Per See Invalid: While the speech cannot be stopped beforehand. Balancing View: The Amendment is not absolute but must be weighed against other constitutional principles or governmental purposes. you do have remedies available after the fact. 2. State Governments are bound through the due process clause of 14th Amendment (Incorporation). immediate incitement to crime. There is no heightened protection of the press per se. Protected Speech: This is another way to limit the protection of the First Amendment.U. 1. Thus. Press.
The Supreme Court categorizes these regulations in one of “two” tracks and the rules that govern depend on which track the regulation falls into. However. HYPO: The State passes law that says that you have to finish what you are doing at a park by midnight. U. Track Two (Content Neutral Regulation): Generally receive Intermediate Scrutiny and more likely to be upheld. (From Holmes Dissent in Abrams v. HYPO: Congress passes law forbidding criticism of Iraq War Effort. we need the marketplace of ideas to filter out the false.” the Court gives speech “breathing space. rather. There is value in the contest between truth and falsity. It does not matter if you are rallying for pro-choice or pro-life. or Manner Restrictions a. vii.Why Protect Speech? 1. thus the government may take steps to protect a captive audience from being forced to listen to obnoxious expression and indecent speech. 1. Here. Individual Self-Exression/Self-Fulfillment (See Cohen) TRACK SYSTEM i. 1.C.” and truth will become accepted through “the competition of the market. you still have to leave.) 2. TWO “preferred. 2. there is to be a “free trade in ideas. Mill on Liberty) a.Right Not to Speak – Freedom of Belief: As a general rule. Track One (Content Based Regulation): Strict Scrutiny Standard a. Interest in Expression: Implicit in the 1st Amendment is the right not to listen. the government is seeing what is in the speech and regulating it.” Even some kinds of utterances that are apparently valueless in themselves must be afforded some measure of protection to prevent self-censorship. Utilitarianism (J. Thus. that does not always outweigh the interest in expression (See Cohen) vi. Ex: Defamation of public officials non-actionable unless accompanied by “actual malice. iv.“Captive Auditor” (The Right Not to Listen) vs.The “Breathing Space” Doctrine: Because protected speech is 11 7 . there is nonetheless value in the contest because it helps to illustrate what truth is.S. ii. but the government’s regulation has the incidental by-product of interfering with particular communications. The government can “abridge” freedom of speech in two broad categories: (1) Restricting the speech because of its content or the ideas or information contained in it or the general subject matter.” v.” Only where the circumstances are such that there is no time to expose evil ideas through more speech may the government bar expression. Time. Place. government cannot force citizens to confess their allegiance to any particular idea. “Marketplace of Ideas”: It is not the Government’s place to suppress ideas because they are wrong. Although some statements are entirely false (maybe even harmful).S. and (2) The Government seeks to avoid some evil unconnected with the speech’s content. 3.
which forbade the advocacy of crime or violence as a means of accomplishing industrial 11 8 . With a crowd. and the D’s speech may have been protected in a time of peace. b. Ohio: D was a leader of an Ohio KKK group who made threatening statements about Jews and Blacks. ii.Ex: Bandenburg v. The advocacy is likely to incite or produce such action (Imminence). Ex – Theater Example: Falsly shouting fire in a crowded theater and causing panic. there is immediacy of the danger and less chance for a reasonable person to stand up and say that there is no fire. ii.II. ADVOCACY OF ILLEGAL ACTS (PROTECTED) & LIMITS ON POLITICAL SPEECH – INCITMENT (UNPROTECTED) i. the Supreme Court gives greater protection to free speech. Under this Test. Ex: Congress controls the national mall to prevent overcrowding in traffic. According to the 4 corners of the pamphlet issued by D. the Court upheld the criminal convictions. it never explicitly urged people to violate the law. He was charged with violating Ohio’s Criminal Syndicalism Statute. 4. The fact that the circumstances were that of war time were certainly relevant. HELD: Nonetheless. a. DISTNIGUISHING ADVOCACY FROM INCITEMENT – THE MODERN TEST FOR CIMINALIZING SPEECH URGING ILLEGAL ACTION. 3. a person could be convicted for willfully obstructing the draft.Clear and Present Danger Test (Holmes): Speech will be unprotected if the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. Ex: Schenck v. and 2. Congress could pass a law that barred the million-man march.The Modern Standard (Brandenburg v. Today. and (2) There is arguably more time for counterspeech with the conscription papers. Inadequacy of the Test: Speech could be punished as an attempt to commit an illegal act 2. Imminence: viewed in terms of whether there is sufficient opportunity for counter speech. CONTENT-BASED REGULATION a. a. Ohio): Speech advocating the use of force or illegal acts can only be proscribed if: 1. United States: Under a statute. the Court has designed tests to determine whether it can suppress such speech in an attempt to strick a compromise between not stifling legitimate dissents (protected) and exposing citizens to harm from the incitement of illegal acts (unprotected). but instead advocated for peacefull measures. i. at least in the political area. not opinion. iii. This is certainly different from the papers in Schenck because: (1) Here is a statement understood as fact. The advocacy is directed to inciting or producing imminent lawless action (not mere advocacy of abstract doctine). 1. While political speech is on the top of the pyramid of protected speech.
the speech must be directed to lawless action – they are not even advocating it. However. A: No immenence.The Limits of the Doctines. Kill him and burn his house. and everyone should kill them.” Does he have a First Amendment protection? 1. just depicting it. B. This is distinguished from other copy cat cases. they have a close relationship in that a statute that is vague is likely to also be overbroad and vice versa. They also might be considered fighting words.Congress bans memebership in Communist party by passing the Smith Act because its doctrine explicitly calls for violent overthrow of federal government.“As applied” Challenges and “Limiting Constructions” iii. 2. HELD: The Court struck down the statute. 2.Crazy man is on the corner yelling. 1. GENERAL i. “Mary Kate and Ashley are demon spawn. 1. They were not directed to incite imminent lawless action. A: Preventing further screenings would be a prior restraint on publication. no immence. Can the movie company be held criminally or civilly liable or can they be barred from showing the movie? 1. ii.A publishing company produces and sells an instruction manual for hitmen. ii. thus protected by 1st Amendment. v. A person buys the book and kills someone after reading it.” There is a 1st Amendment defense at his prosecution. iv. Thus. it is intended to incite lawless action. “He stole millions from everyone. they are standing there with torches – no chance for counterspeech. A: Not protected. They are likely considered to produce imminent lawless action. He yells. Man outside Frankenstein’s house with people all with torches. Although the doctrines are distinct. Teens watching the movie go and kill people. OVERBREDTH & VAGUENESS A. While not confined to the 11 9 . iii. VAGUENESS DOCTRINE i. The Impercision of Language: The two concepts are flexible because of the impossible task of drafting a statute so that all improper applications are foreclosed. opportunity for counterspeech. the modern Supreme Court has upheld statutes in spite of some degree of overbreadth or vagueness. Void for Vagueness: Refers to the notion that an unduly vague statute cannot support a criminal conviction. III. Here. there is no likelihood that the lawless action will take place. without considering whether the D’s speech could have been properly proscribed because the statute on its face proscribed speech that did not distinguish between “mere advocacy” from “incitement to immenent lawless action. A: As for 1st Amendment protection and no liability. so less likely you could bar further screenings.Violent movie romanticizing the lives of gangster gang members enticing people to do copycat crimes of real criminals.” c. 1. Hypotheticals i. A: Plenty of room for counterspeech.or political reform.
but also more protected speech. and the Court may find it to be unconstitutional. “Substantial”: Because we don’t know what substantial means. Fair Notice C. If the statute bans not only unprotected speech (which is constitutional to do so). 2.1st Amendment area. (2) be a member or officer of a political party cmte. Supreme Court also said that the statute was not overly broad just because some person’s arguably protected conduct may or may not be caught or chilled by the statute. in addition to proscribing activities which may constitutionally forbidden. 12 0 . if the outer circle that infringes on protected speech while also proscribing unprotected speech is so great and large. so he declines to exercise his rights. iii. HELD: Supreme Court said that this was not vague because the proscribed conduct fell within the un-vague parts of the statute. RULE (Connally v. it also sweeps within its coverage speech or conduct which is protected by the guarantees of free speech. or candidate. Appears to say that a tiny incursion upon protected speech is tolerable if it is the byproduct of a statute that targets a much larger range of unprotected conduct. 1. then the plainly legitimate sweep of the statute is overly broad. The Hatch Act says federal employees can’t: (1) solicit political contributions. the doctrine that the freedom of speech is fundamental or preferred has given rise to stricter vagueness standards. General Construction Co. it is overly broad. 1. then we aren’t sure about how much the statute must infringe protected speech before it will be considered substantially overbroad. (3) “take part in management of affairs” of a political party or campaign. This doctrine limits the degree to which a prohibition of utterances can include expression protected under the 1st Amendment. it will likely be considered substantially overbroad. b.Substantial Overbreadthness Test: A statute is overbroad if. ii. 3. P’s challenged to two parts of the statute as vague and overbroad. However. Chilling Effect Rationale: A person does not know whether or not his conduct or speech will ultimately be held to be constitutionally protected. OVERBREDTH DOCTRINE i. but be substantial when judged in relation to the statute’s plainly legitimate sweep.): A statue is unconstitutionally vague if “persons of common intelligence must necessarily guess its meaning” a.Ex: Broaderick v. if it is only a smaller infringement on protected speech. However. Oklahoma: OK Merit System of Personnel Administration Act proscribed a broad range of political activities and conduct to state employees. it will not be considered a substantial overbreadth and might likely be upheld under this test. This overreaching must not only be real.
would violate the 1st Amendment rights of persons not now before the court. Exception to the Usual Requirements of Standing – Overbreadth Claims: When a facial attack is made on a statute. a. a litigant attempting to have a statute held unconstitutional must show that it is unconstitutional as applied to him. the Court has a preference for invalidating particular applications of a statute when they appear.The Preference for Limiting Constructions & The Normal Rule that Partial Rather than Facial Invalidation in the Required Course 1. the appellants can get to the merits of the overbroad claim. Vagueness: YES. By its definintion. Vagueness: No definition of obnoxious b. NOTE: The Court conceded that the statute by its terms could 12 1 . rather than invalidating the entire statute. The Court limited the statute’s construction to salavage the obscene part but struck the portion that proscribed protected speech (lust). But such unsconstitutional applications of the statute were not numerous enough compared with the body of permissible applications. vi. the overbreadth doctrin permits a challenger to prevail if he can show that the statute.be applied to the wearing of political buttons or the use of bumper stickers. and that these might be constitutionally protected expressions. Spokane Arcades: A statute prohibited not only obscene materials. Thus. Typically. the statute should only be subjected to a limiting construction that salvages all but the part that covers protected speech. Ex: Brockett v. What if a person were to reveal classified troop movements in Iraq and was prosecuted under this statute. but also those that incited lust. Can he raise an overbreadth defense? 1. A criminal statuts bars “speaking in a manner inconsistent with the Constitution” a. it applies only to speech not protected by the Constitution. 2. a person claiming a violation of his 1st Amendment rights must show that his own speech or conduct was protected. Overbroad: The statute potentionally infringes on protected speech 2. Overbroad: NO. a. 3. With relaxed standing. Chilling Effect Rationale: An overbroad statute will have a chilling effect on people who might be intimidated into not exercising their free speech rights.Relaxed Standing Requirements 1. When a statute is overbroad on its face. v. For instance.” iv. A criminal statute bars “publishing anything obnoxious regarding the president” a. so there was no “substantial overbreadth. b. applied according to its terms.Hypotheticals 1.
b.IV. 5. there is a strong presumption that the regulation is unconstitutional. and the ability or inability of counterspeech to cure the harm. the Government is still utilizing content-based regulation (Track-One). UNPROTECTED A. Fighting Words 3. NEW HAMPSHIRE) i. Fraudulent misrepresentation. Therefore. Relaxed standard for standing (chilling effect) and strick out the protected aspect of the statute (financial) while salvaging the remaining part (physical harm) as a True Threat. The Court will take into account the harmfulness of the types of messages conveyed. if he in fact reveals troop movements. under the relaxed standing requirement. SPEECH (OR SPEECH “THAT IS NOT PROTECTED SPEECH”) a. which are deemed not protected by the first amendment. However. 4. 4. then he is not protected. Adovocacy of immenent lawless behavior.Traditional Categories of Unprotect Speech (Chaplinksy List): 1. the statute covers both protected and unprotected speech (Financial harm being protected). GENERAL i. 12 2 .Symbolic Speech – The Spence Standard iv. True Threat Doctrine (Verbal Equivalent of Assault) c. Certain categories of speech will be unprotected if such utterances are no essential part of an expression of ideas. These types of speech only receive rational basis scrutiny. b. and are of such slight societal value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. Certain types of speech are considered exceptions to the norm of heightened judicial protection. and (2)Offensive advertising on buses. 1. iii. 1. Defamation & Libel. The Court has defined certain established categories of speech. Distinguishing between “unprotected speech” and “speech that is ultimately not protected”: Speech that is ultimately unprotected is present when the government satisfies strict scrutiny. THE CHAPLINSKY STANDARD (CHAPLINSKY V.The “Captive Audience” Doctrine: Heightened ability to restrict speech to protect a captive auditor from obnoxious expression. A criminal statute bars publishing anything which threatens physical or financial harm to the President a. Obscenity. Common arenas include: (1) The Home. 2. ii. A: Yes. What is a Court likely to do? i. Overbroad: Yes. 2. i. Unprotected speech only receives rational basis. Vagueness: No. if the regulation is imposed in a situation that does not fall within one of the pre-existing unprotected categories. strict scrutiny will be applied. NOTE: Here. Thus.
3. ii.” b. Thus. This is true even if all of the speech/conduct falls within an unprotected category (such as fighting words). 1. Can 12 3 . ii. one side could use fighting words while the other could not. California: Cohen wore a jacket with the words “Fuck the Draft” inside a courthouse. the government is acting in a forbidden content-based rather than neutralcontent way. This is precisely what a viewpoint discriminatory statute does by only regulating a subset of unprotected speech. The state has no right to cleanse public debate because “one man’s vulgarity is another’s lyric. c. If the government singles out bias-motivated speech.Profanity as Protected Speech 1. 2. A: Under the fighting words doctrine is limited to face-to-face confrontation.HYPO: A hotel clerk tells Russel Crow that he is a no good S. so the clerk could be punished. CONTENT-BASED REGULATION OF UNPROTECTED CATEGORIES: FIGHTING WORDS & HATE SPEECH i. a. The manner of confrontation cannot consist of selective limitations upon speech. a.the hotel clerk be punished under the first amendment? 1. The First Amendment does not allow a statute to impose special prohibitions on those speakers who express views on disfavored topics. No immediate breach of the peace. However. criminalizing it while not criminalizing other types of unprotected speech. there is no opportunity for counter-speech. but not all of it. Underclusivity: A statute will be considered underinclusive when it cuts out a subset of unprotected speech. Variation: What if the clerk waiting until Crow left to make the remark? a. viewpoint discrimination. color. iii. religion or gender) is impermissible content based.B. Not face-to-face. Self-Realization Rationale whereby profanity is used to express self-emotion.RULE: A ban on speech or conduct intended or likely to incite anger or violence based solely on particular listed topics or motives (such as race. and if one of the exceptions exist. This will be true for a general ban on the speech even if all of the type of speech falls within an unprotected category. HELD: A State may not make a simple public display of profane words a crime. States can regulate unprotected speech.O. Strict Scrutiny Review: Such regulation will be subjected to strict scrutiny thereby requiring a determination of available neutral alternatives. Viewpoint Discrimination: Where two opposing sides have a confrontation concerning a matter of race or religion. we must check for underinclusiveness. ISSUE: Whether the profane/offensive phrase should be considered unprotected speech. Variation: What if the clerk mailed him a letter with the remark? a. Here. 2. Ex: Cohen v.
The prohibition on true threats protects individuals from the fear of violence. 3.V. the state may choose to criminalize just the very most dangerous “fighting words. 2. on the ground that the statute was aimed at conduct unprotected by the 1st Amendment. D argued that the statute was (1) Substantially Overbroad.A. City of St. HELD: The statute is impermissibly content based and thus unconstitutional.V. even though the state doesn’t punish other types of intimidating or threatening acts. Ex: Fightng words on the basis of homo or union members are not listed when race color. ii. etc. gender etc are. Worst of the Worst: The State may impose a content-based ban on particular instances of unprotected speech if the ban forbids only the very worst examples illustrating the very reason the particular class of speech is unprotected. Mitchell: The Court upheld the State’s statute that permitted the enhancement of the length of a criminal sentence if the convict intentionally selected the crime victim because of race. and (2) it was impermissibly content-based. “True Threats” as Unprotected Speech: A state may select a particular type of expressive act (e. a. Ex: Wisconsin v. cross burning).Exceptions to the General Rule of R.A. a. Ex: R. creed. and may then choose to punish more severely those criminal acts that happen to be motivated by hate than those not motivated by hate without violating the 1st Amendment. color. or resentment on the basis of race. i. shall by guilty of a misdemeanor.V. True Threat Defined: Encompasses those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals. etc.g. religion. iii.Ex: Can’t hold up a sign that says all anti-catholics are bastards. etc. swastika. 3. buring of a cross. and punish all instances where that act is done with a purpose of intimidating or threatening someone. in addition to protecting people from the possibility that the threatened violence will occur.A. object. alarm.i. religion or gender.” the very most obscene obscene images. Paul. Fighting Words Distinguished from Hate Speech & Penalty-Enhancement Statutes: A state may identify particular generally-appicable criminal proscriptions. but holding up a sign saying all catholics are bastadards is ok. 1. 12 4 . which one knows or has reasonable grounds to know arouses anger. D was prosecuted under a “Bias-Motivated Crime Ordinance” which provided that “whoever places on public or private property a symbol. Ex: Thus. v. Minnesota: D and several other teenagers allegedly burned a cross in the yard of a black family. The speaker need not actually intend to carry out the threat. The Court distinguished R.
Therefore. true threats. Government may single out Cross-Burning (Symbolic Speech): A state may ban any crossburning done with intent to intimidate another. Secondary effects: iv. Political expression: Therefore. Intent to intimidate. It permits the Commonwealth to arrest. even if the state did not criminalize other intimidating messages. thus the state can regulate. b.Prima Facie Clause Unconstitutional: The prima facie evidence provision permits a jury to convict in every cross-burning case in which defendants exercise their constitutional right not to put on a defense. 1.Hypotheticals 1. 1. included a prima facie provision that allowed the fact-finder to infer an intent to intimidate from the very act of cross burning. a.A. prosecute. and not fighting words.V. Thus. and convict a person based solely on the fact of cross burning itself. Ex: Virgina v. except it that the statute only proscribes attacks on democratic cadidates and officials. Two Purposes of Cross-Burning a. i. b. A state passes a law which imposes civil penalties on advertising whch contains false material statements of fact to induce wrongful reliance on reader. The statute prohibited cross-burning with an intent to intimidate. Speech swept up in a statute mostly banning conduct: 5. the state may criminalize the very worst illustrations of the very reason why an entire category is unprotected by the 1st Amendment.’s Worst of the Worst: Cross burning is a particularly virulent form of intimidation in light of the cross burning’s long history as a signal of impending violence. the State may choose to prohibt only those forms of intimidation that are most likely to inspire fear or bodily harm. R. HELD: The Supreme Court struck down the statute due to the prima facie provision and analogized cross burning to another category of unprotected speech. 2. A: False advertising is not protected speech. the other two burning in a black neighbor’s yard). the prima facie clause chills constitutionally protected political speech because a state could possibly convict someone who only engages in lawful political speech. Variation: Suppose the same. 4. ii. Black: Three defendants convicted of felony 12 5 .cross-burning (one burning a cross at a KKK rally in a private field.
A. they are not completely free to define obscenity however the wish. b. What counts are the standards of the local community where the prosecution takes place and the triers of fact..a. Thus. A: “The Worst of the Worst” The statute is targeting those who are most likely to fall into the harm proscribable by that speech. i.A. applying contemporary community standards would find that the work. The Court has rejected the argument that the standards should have to be at least statewide. 1. obscenity can be judged by the standards of a small rural town. color. D. they can still ban the production. in a patently offensive way. when there are depictions of sexual conduct specifically defined by state law. NOTE: Ex: Stanley v GA: The Government does not have authority to ban mere possession of obscene materials of consenting adults in the privacy of their own homes. Gays. sexual conduct specifically defined by applicable state law. except the statute reads “which do so in a manner that unfairly maligns any candidate of any party or causes unfair emabarassment to reputation on grounds of race. Variation: Suppose the same. for identifying what the State may ban as Obscene. appeals to the prurient (unwholesome sexual) interest. Community Standards: What appeals to the prurient interest or is patently offensive is not to be determined by reference to a national standard. 2. He was convicted of knowingly distributing obscene material. and selling of it. Whether the average person. and to then punish the distribution or sale of the material so defined. ii. OBSCENITY i. Whether the work depicts or describes. However. ask: a. 1. Miller Test for Obscenity (Miller v.Facts of Miller: D conducted an unsolicited mass mailing campaign to advertise the sale of illustrated books of adult material. except the statute proscribes speech that harms the aged or those with limited education and causing more than $1. A: Under R. Variation: Same as above.000 dollars in wrongful reliance a. A: Still underinclusive under R. distribution. taken as a whole. and 12 6 . or national origin a. Labor Unions. the statute is underinclusive. 4.V. with all parts required to be met. However. Thus. California): Miller laid down a three part test. 1. 3.V. Unprotected Speech: Recall that this type of speech is listed in the Chaplinsky List and therefore the State may proscribe it. NOTE: Miller limited scope of obsenity to sexual conduct not violence. and Religious organizations are not protected by the statute.
(2) the tone of i. 1.out sexual acts that would be banned if they were depicted. excretory functions. and lewd exhibition of the genitals. The Court rejected the theory that obscene. actual or simulated. c.” leaving “little to the imagination. Limited to “Hard Core” Sex: Miller also establishes that the states may ban as obscene only depictions or descriptions of “hard core” sexual conduct. lacks serious literary. a. and in order to prevent a chilling effect. 2. taken as a whole. Slanton: D’s commercially displayed two films characterized as “hard-core porn. Appeallate Courts tend to disagree with juries on third prong and are less deferential than on prong 1 & 2.NOTE – Adult Movie Theaters 1. i. RULE: Nothing precludes a State from the regulation of this sort. Appeallate courts tend to disagree with juries on third prong and are less deferential than on prong 1 & 2. Medical books etc. Whether the work. HELD: The Court upheld the regulation. Ex: Paris Adult Theatre I v. 3. Ex: Patenly offensive representations or descriptions of masturbation. provided that the applicable state law meets the 1st Amendment standards set forth in Miller. pornographic films receive constitutional immunity from state regulation simply because they are exhibited for consenting adults only. i. Ligitimate State Interests: Even assuming it is feasible to enforce effective safeguards against exposure to juveniles and to passerby. HYPO: A state law that banned all nude pictures of women that appealed to the prurient interest would fail this prong and be unconstitutional. Role of Jury Limited: While these factual issue are for the jury. the Court provided the following examples of materials which could be banned a. artistic. b. permitted. political or scientific value (lacks serious socially redeeming value). iii.” There were warning signs of it being an adult theater and an age requirement as well as notification of nude persons on the screen. This was done in violation of Georgia law regulating the allegedly obscene material. the state has ligitimate interests stemming from the tide of commercialized obscenity: (1) Interest of the public in the quality of life and the total community environment. b. NOTE – Vagueness: The State must specifically set 12 7 . Since the states must be specific about what conduct is being banned (in order to satisfy the 1st Amendment need for fair notice. the jury does not have unbridled discretion. normal or perverted. Ex: Patently offensive representations or descriptions of ultimate sex acts. Appeallate courts will review these findings of fact and will reverse if the findings could not have been made by a reasonable jury.
New York: Ginsberg was convicted of selling two girlie magazines to a 16 year old boy. Supopse the distributor of obscene materials in the Miller case had been sent out only by request. A: Paris case holds there is no exception for consentingadults.commerce in the great city centers. certin regulation of obscenity to prevent exposure to juveniles and unconsenting adults should be permitted. Can have stricter obscenity standard for work being viewed/read by minors – adapt each prong of Miller to minors. was patently offensive. General Rules 1. The materials that wouldn’t be considered obscene for adults and are thus protected are not necessarily so protected for distribution to minors.Children as Pornographic Subjects 1. Memoirs).Hypotheticals 1. If work not obscene but “indecent. (Ginsberg) 2. Miller. the state is allowed to ban obsenity even as applied to willing adults because of the legitimate interests at stake. and (3) Public safety itself (Crime linked to obscene materials) 2. Ferber: NY criminal statute prohibiting persons from knowingly promoting sexual performances by children under 16 by distributing material. However. which depicts such 12 8 . The faces of death 9 shows graphic depictions and nude corposes. Can this be punished as obsence? a. Materials that wouldn’t be considered obscene for adults and are thus protected are not necessarily so protected for distribution to minors. Harmful to minors was defined as appealing to the prurient interests of minors. (Pacifica v. Suppose the law simply recites the three prongs? a. State’s Interest: The well being of children and to see that they are safeguarded from abuses which might prevent their growth into free and independent well-developed citizens is within a state’s constitutional power to regulate. 1. a.” can regulate broadcast media so as to limit exposure to minors. A: Vagueness issue 3. RULE: Can have stricter and broader obscenity standard for work being viewed/read by minors because of the important State interest – adapt each prong of Miller to minors. If work shows minors engaging in sex acts. iv.Ex: Ginsberg v. CHILD PRONOGRAPHY i. Thus. (Ferber) 3. iii. A: Miller limited scope of obsenity to sexual conduct not violence 2. and was utterly without redeeming social importance for minors (a combination of all standards. FCC) ii. E. Ex: Ney York v. HELD: The Supreme Court upheld the conviction. Roth. b. a. NY statute prohibited distribution to minors of materials containing female butts or boobs uncovered below the nipple if the materials were harmful to minors. Brennan Dissenting: Outright suppression of obscenity by the State cannot be reconciled with the Constitution. See also Brennan’s Dissent. it has no 1st Am protection.
cocksucker. which issued an order holding that Pacifica could have been subject to sanctions. child porn was not an unprotected category under Chaplinksy. This case arose when a bookstore owner sold two child porn films to an undercover police officer. The state may ban the distribution of materials showing children engaged in sexual conduct. FCC did not intend to prohibit this absolute but wanted to 12 9 . NOTE: The Court has not extended the reasoning in Stanley v. profane. iii. Thus. but the NY court attempts to expand the set of unprotected categories to include child porn as unprotected speech. Justifictations i.” Among these words were “shiz. It did not impose sanctions but stated that it could be the basis for sanction on subsequent complaints. f. a.Creates a distribution network 2. even though the material is not legally obscene because it has no 1st Amendment protection. but that it was indecent and prohibited by a section of the Communications Act.Permanent record of child abuse that will scar the child and remain with him for life. ah. Definition of Indecent: Refers to non-conformance with accepted standards of morality. Application to Media: The Supreme Court holds that the government has substantial latitude in regulating indecent expression on the public airwaves (Over T. iv. 1. piss. RULE: It is Permissible to consider child porn without the protection of the First Amendment. um the ones you definitely wouldn’t say ever. Preventing Sexual abuse and exploitation of children in the production process. Those are the ones that will curve your spine. grow hair on your hands and (laughter) maybe even bring us peace without honor (laughter). FCC reasoned that the language was not obscene.Ex: FCC v. it would be evaluated on a case by case basis. Analagous argument to Ferber 3. HELD: Supreme Court held that States are entitled greater leeway in the regulation of child porn.” which referred to “the words you couldn’t’ say on the public. and tits. which prohibited indecent. Unclear from Ferver whether we have to make an exception for literary work of minors. Until now. airways. INDECENT SPEECH: REGULATION OF INDENCY IN MEDIA i.performances. NOTE: A statute banning all depictions of children in a sexual light would not be substantially overbroad.” Some people complained to the FCC.V and Radio) ii.Creates a market for child porn and incentives for more abuse. because it may just be overbroad. c*nt. b. ii. or obscene language by radio stations. Georgia to permit 1st Amendment protection to have child porn in the privacy of one’s own home. f. mother effer. Pacifica Foundation: Pacifica broadcast 12 minute monologue entitled “Filthy Words.
2. FCC) a. and manner restrictions. just regulating. (Pacifica v. prior warning of the indecent speech are insufficient to nullify this assault on privacy. g. It is uniquely accessible to children. Words that are commonplace in one setting are shocking in another. FCC Nuisance Rationale: The FCC did not assert that it could ban non-obscene. RULE: If work not obscene but “indecent.Maintaing property values.Protecting the city’s retail trade.” b. Prevention of crime. AND MANNER ANALYSIS: ZONING i. Ex: City of Renton v. Pig In a Parlor: “A nuisance may be merely a right thing in the wrong place – like a pig in the parlor instead of the barnyard. Context/Forum Important: Some uses in certain contexts are unquestionably protected but in others not. The Secondary Effects Doctrine: If the court is satisfied that the government was merely trying to eliminate the undesirable noncontent related consequences of an expressive activity (things like increased crime. when children were the likely audience. ii. 1. it contended that principles analogous to those of nuisance could be applied. 13 0 . or declining property values) the regulation will be found to be content-neutral and will be given only Track Two review. Of its uniquely pervasive presence that enters the privacy of the home i. the FCC believed that it could keep this kind of language off the airwaves in the early afternoon.” can regulate broadcast media so as to limit exposure to minors. making context all important. Must be narrowly tailored. They are not banning. place. The Court applied intermediate scrutiny because the regulation was content neutral. PLACE. Therefore. 1. iii. a. HELD: The Supreme Court upheld the FCC orders. 3. it is broadcasting radio that has received the most limited First Amendment protection because: a.restrict is to times of day when children wouldn’t be exposed to it. Playtime Theater: The Court upheld a municpal ordinance that prohibited adult movie theaters from locating in about 94% of the city’s land.Protecting the quality of the city’s neighborhoods b. but indecent speech language for all airwaves at all times. Of all forums of communication. TIME. a. When the Commission finds that a pig has entered the parlor. b. The ordinance was content neutral because the State’s interests included: i. Captive Audience Rationale: Thus. Alameda Books: Very similar case as above where the Court applied the secondary effects doctrine. iv. RULE: It is permissible for a state to engage in time. Ex: City of LA v. Rather. the exercise of its regulatory power does not depend on proof that the pig is obscene.
Ex: A TV station correctly says that the mayor has taken a bribe. more or less in the popular sense. Intent. Milkovich): Assertions of facts are actionable if false and defamatory. Thus. Rationale: Minimal redeeming or social value in false statements of fact. there is no constitutional violation in recognizing defamation. Common Law Defamation: defined as “a communication that tends to damage the plaintiff’s reputation. or to excite adverse or unpleasant feelings about him” 1. 4. Defense of Truth: When a true statement of fact is made that may seem like it is defamatory. 3. knowledge. Libel: Written or printed defamation b. and uninhibited. a. statements that do not amount to an assertion of facts and are merely name-calling or statements of opinion are not actionable. NOTE: Subjective Standard of Actual Malice (Ex: St. or would have investigated before published. and b.H. If they cause tortious damage to reputation. We want maximum breathing space and minimum chilling effect. it is an absolute defense. a. Actual Malice Standard: Constitutional guarantees require a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with “actual malice. To Recover Under This Standard a. wide-open. goodwill. Must show actual malice in order for a public official to recover for defamation. 3. this would chill speech. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication. or reckless disregard for whether it was true or not. If people had to worry about speaking out against the government. ii. Categories of Defamation a. The alleged defamatory statement must relate to his official conduct. to diminish the respect. confidence or esteem in which he is held.” a. These cases are clear that reckless conduct is not measured by whether a reasonable prudent man would have published.Defamation in the Public Arena: Public Officals 1. Opinions Not Actionable (Lorainne Journal v. Thompson) a. To do 13 1 . there will be no cause of action because part of the tort of defamation is falsity. Actual Malice: Knowledge of falsity. or recklessness will suffice for this standard. that is. Slander: Spoken defamation 2. Rationale: Public debate should be robust. Amant v. Negligence Insufficent: It is not enough for the official to show that a “reasonably prudent man” would not have published the statement. DEFAMATION i. i. 2.
Walker & Curtiss Publishing v.Defamation in the Private Arena: Private Figures and Speech of Public Concern 1. why there is a fault standard to protect speech. i. g.so. A public figure (not officials) may also recover damages for defamatory falsehood whose substance makes substantial danger to reputation apparent. The NY Times Standard does not apply to suits by private figures. The consistency of the previous reported conduct of the same public figure. iii. a. b. on a showing of highly unreasonable conduct which is an extreme departure from the standards of investigation and reporting ordinarily adhered to by responsible publishers. Ex: AP v. but that may not impose strict liability (liability without fault). Whether the news is “hot news” and requires that there be a thorough investigation into serious charges and whether that procedure was ignored. Negligence Standard Permitted at a Minimum: The 1st Amendment does not forbid that use of ordinary civil negligence as the standard. Ex: Gertz v. iv. where the plaintiff is neither a public official nor a public figure. Butts established certain factors to take into account as to whether the standard is breached: a. he felt the ad was of and concerning him. The events described were inaccurate depictions. Ex: New York Times v. NOTE – Intentional Inflication of Emotional Distress 13 2 . Robert Welch. The Trustworthiness and competence of the reporter. c. 2. The ad did not explicitly mention the Plaintiff. The lack of motive to distort. He must only show publication and falsity. a. who was a public official. e. The reporter’s actual presence at the scene. Held no libel because the ad pertained to a public official. and the plaintiff failed to prove actual malice. The need for immediate dissemenation of the breaking news story. That is. but by his position. 2. 5. The Standard Is akin to gross negiligence which is not quite actual malice. f. we must have a margin of error for defamation liability when the subject is a public official. d. Inc. Sullivan: Defendant New York Times published an ad to civil rights group that defamed plaintiff.. The NY Times Standard has been extended to include pulic figures. there is no constitutional requirement that he prove that the defendant knew his statement to be false or recklessly disregarded the truth. The states are free to decide which standard to apply. The Internal consistency of the dispatches with one minor discrepancy.Defamation in the Public Arena: Public Figures 1.
In NY Times. Stewart.Ex: New York Times Co. and (3) is it of sufficent 13 3 . Ex: Near v. and irreparable damage (similar to clear and present danger test) to our Nation or its people. the Court found that while danger would probably result from the publication. United States – The Pentagon Papers Case (Per Curiam Opinion): This case establishes that the press has almost absolute immunity from pre-publication restraints 1. 3. 4. Brennan. and Marshall all would recognize the extraordinary circumstances in which a prior restraint could upheld. Ex: Hustler Magazine v. That is. it was not substantially certain.E. b.D. Facts: The NY Times and the Washington Post began publishing a secret Defense Deartment Study of U. The danger cannot be merely speculative. but each believes that either proof. Stewart’s Concurrence Standard: The government must show that publication will surely result in direct. and publication of the location of troop movements during times of war.I. HYPO: A publuisher wants to publish a history which would identify who in the past were CIA agents. The burden will always be on the Government to overcome this heavy presumption. Minnesota a. The Court denied the injunction sought by President Nixon very heavy burden/presumption against prior restraint on publication. FREEDOM OF THE PRESS A. PRIOR RESTRAINTS AS PRESUMPTIVELY UNCONSTITUTIONAL i. Is a prior restraint valid? a. The NY Times Standard also applies to actions for I. 1. a public figure or official may recover against the publisher who causes such distress only if he can show that the publication contained a false statement of fact published either with knowledge that the statement was false or a consiouse disregard as to whether it was true or not. White. or congressional authorization.S. a. 2. The question was whether the United States government could enjoing the Publications. Falwell I. Exceptional Cases in which a Prior Restraint may be permissible: Actual obstruction of recruitment for the armed forces. A: Ask whether it would (1) endager those individuals. policy in Vietnam. (2) endager an ongoing investigation. 2. The Court should do an in camera review to see if any of the information really is a threat to national security. ii. immediate. Extraordinary Circumstances for Prior Restraint must be proven Concurrence a. This is all the more true when the prior restraint is directed against the press. or both. Any governmental action which prevents expression from occurring (as distinguished from punishing it once it has occurred) is presumed to be unconstitutional. v.1. are missing in this case.
HELD: The Supreme Court upholds the two rules. Stuart) 1. Alternatives for Gag Orders a. Two Rules at Issue i. a.The Fairness Doctrine 1. b. c. Personal Attack Rule: Required the broadcaster to furnish a tape or transcript and free response time when an attack upon the “honesty. ii. Ex: Red Lion Broadcasting v. d. to outweigh 1st Amendment Protection.Political Editorial Rule: Required a broadcaster that endorsed or opposed a candidate for office to furnish a tape or transcript and a reasonable opportunity for response. f. 13 4 . A similar “equal time or equal space” rule as applied to newspapers would be unconstitutional because the “naturally scarce” rationale doesn’t apply. The Risk of harm coming from press coverage must be certain. Instructions against publicity to jurors. g. Gag orders binding counsel and state employees. Essentially a Strict Scrutiny Standard: There are times where the court can limit press coverage on certain aspects of the trial. Sequestration. and ii.detail that it would reveal sources and methods of covert opps that effect those now going on. especially before a trial begins and the need to ensure there is an unbiased jury. The court must satisfy two steps: i. a. Postponement. Court said if the government has the ability to regulate via licensing the public broadcast frequencies based on scarce resources in public broadcasting.Less restrictive alternatives that would achieve the same outcome must be considered: 1. A pre-trial order prohibiting the press from publishing certain types of information because of the dangers of publicity.Gag Orders treated as Prior Restraints (Ex: Nebraska Press Association v. Change of venue. iii. and not merely speculative. it also has an expanded interest in regulating it for the public interest. which required broadcasters to provide coverage of each side whenever they covered a controversial issue. character. e. NOTE: This doctrine is limited to the unique nature of Broadcast Media. Courtroom Closure B. integrity or like personal qualities of an identified person or group” was aired. Searching questioning during voir dire. Scarce Airwaves Rationale: Broadcast media may be subject to closer regulation than newspapers and other non-broadcasters because broadcast frequencies are a naturally scarce commodity (whereas in theory there can be an unlimited number of newspapers) ii. DIFFERENT TREATMENT OF ACCESS IN BROADCAST AND IN PRINT MEDIA i. FCC: FCC promulgated the fairness doctrine. 1.
Activities protected by the First Amendment are subject to reasonable time. Place. Ex: Heffron v. or Manner Restrictions 1. but is instead regulating the manner. PLACE. PLACE. exhibit. Clearly content-neutral? 2. International Society for Krishna Consciousness: The State promulgated a Rule applicable to State Fair requiring persons desiring to sell. or distribute materials or to solicit contributions to do so only from assigned booths. 1. the Government is not regulating the content of the speech. THE MODERN TIME. Narrow Tailoring a. place. ISKCON wanted to solicit 13 5 .Time. The State is substantially freer when it acts in a content-neutral manner. and manner restrictions ii. TIME. OR MANNER DOCTRINE i. Substantial governmental interest. NOTE: There is no fairness doctrine today because it was rescinded by administrative action and has never been reinstated. GENERAL i. I. 3. (Overinclusive) B. Here.1. mode. Ample alternative channels 4. it will be review under a Track Two Analysis. & MANNER RESTRICTIONS A. and location of speech. When it engages in this type of regulation. Ex: City bans all solicitations within city limits.
NOTE: Consideration of a forum’s special attributes is relevant to the constitutionality of a regulation since the significance of the governmental interest must be assessed in light of the characteristic nature and function of the particular forum involved. nor does it deny that organization the right to conduct any desired activity at some point within the forum. In Heffron. place. and manner restriction must serve a significant governmental interest. it must also be sufficiently clear that alternative forums for the expression of respondents’ protected speech exist despite the effects of the Rule. Question as to whether airport terminals are public fora or nonpublic fora. This is accomplished by confining individual exhibitors to fixed locations. The regulation governs only the terminals. c. the Port Authority permits solicitation and distribution on the sidewalks outside the terminal buildings. The Port Authority has adopted a regulation forbidding within the terminals the repetitive solicitation of money or distribution of literature. and that the regulation reasonably limits 13 6 . and Manner Restriction a. ii. and manner analysis. the significant governmental interest included: 1. Significant Governmental Interest: A valid time. i. using streets and open spaces provided for that purpose. Protecting the safety and convenience of fairgoers. It does not exclude ISKCON from the fairgrounds.donations in connection with their religion.Forum Based Approach for Assessing Restrictions 1. Ex: International Society for Krishna Consciousness v. Criterion for Valid Time. and they wanted to do so at the State Fair. b. In Heffron. Supreme Court concludes that terminals are nonpublic fora. ii. with the public moving to and among the booths or other attractions. Place. Content Neutrality: The restriction may not be based upon either the content or subject matter of the speech. a. But it is also well settled that the government need not permit all forms of speech on property that it owns and controls – time. i. 2. the Rule does not prevent ISKCON from practicing its religion outside the fairgrounds. Alternative Forums Exist: For a rule to be valid as a place and manner restriction. 1. space. Lee: ISKCON wanted to distribute literature and solicit money in New York airport terminals in connection with their religion. Maintaining the orderly movement of the crowd in a relatively small area. HELD: The Supreme Court upholds the rule. It is uncontested that the solicitation at issue in this case is a form of speech protected under the First Amendment.
less likely to be one b. the state must merely avoid choosing means that are substantially braoder than necessary to achieve the significant government interest. parks and streets and some types of sidewalks): Regulation of speech on government property that has traditionally been available for public expression is subject to strict scrutiny. government deliberately creates a space for this expression. The government can block these. i. Instead. If it is remote. All other government property are non-forums. even in a content neutral way. Intent of Government: Government does not create a public forum by inaction. NOTE Ex: Ward v. 4. 3. as long as the regulation is not an effort to suppress the speaker’s activity due to disagreement with the speaker’s view (can’t be viewpoint discrimination). and some one starts talking about Deep Space 9. Designated Public Forum: Property that the state has opened for expressive activity by part or all of the public. we have no doubt that under this reasonable standard the prohibition on solicitation passes muster. a. A forum is a designated forum only if the government intended it to be open. subject to greater restriction. Rational Basis Review: Must satisfy rational basis. Narrow Tailoring: Speech in a public forum may not be restricted. a. Purpose: Property that has a principal purpose…the free exchange of ideas 3. If the person is talking on topic and then they try to say they cant then the regulation will be subject to strict scrutiny.Characteristics of a Public Forum 1. Thus. Location (Not a special enclave remote from where people gather): The location of the property because separation from acknowledged public areas may serve to indicate that the separated property is a special enclave. The decision to create a 13 7 . Ex: Government sets up chat room to ask questions about medical benefits. If a well traveled area.g. Remaining Public Property: Challenged regulation need only be reasonable. more likely it is a public forum 4. Immemorially been held in trust for public 2. unless the regulation was viewpoint based. Regulation of such property is subject to the same limitations as that governing a traditional public forum but you take into account the designation of the forum. a. a. 2. unless the restriction is a narrow one which is necessary to serve a significant governmental interest.solicitation. Traditional Public Forum (E. iii. the state must avoid inclusivness. Rock Against Racism: This narrow-tailoring requirement does not mean that the state must choose the least-restrictive means to achieve the objective. nor is a public forum created whenever members of the public are permitted freely to visit a place owned or operated by the Government.
If the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest. viewpoint neutral. b. a. i. and d. It is within the constitutional power of the Government. Determined that the statute specifically protects this substantial governmental interest of preventing harm to the smooth and efficient functioning of the draft. If the governmental interest is unrelated to the suppression of free expression. v. conduct combining speech and non-speech elements could be regulated if: a. If it furthers an important or substantial governmental interest. (i) Reasonable (i. Symbolic Speech: The Court holds that even if some type of symbolic speech may be protected by the 1st Amendment. SPEECH V. Flag Burning (Ex: U.S. Intermediate Level of Scrutiny: When speech and nonspeech elements are combined in the same course of conduct. c. CONDUCT I i. CONDUCT A. Obrien): O’Brien and three others burned their Selective Service registration certificates publicly on courthouse steps in opposition to the draft and Vietnam War. SPEECH V. thus it is not a traditional public forum. HELD: The Supreme Court upholds conviction for these individuals for destroying/mutilating registration certificate. CONDUCT II 13 8 . and tailored (ii) Not meant to suppress expression merely because official oppose it or it is a me ificant government interest. Least Restrictive Means B. a sufficiently important governmental interest in regulating the non-speech element can justify incidental limitations on First Amendment freedoms. and ample alternative opportunities for communication and expression II. the terminal does not have a principal purpose of promoting the free exchange of ideas. 1. b. They have not previously intentionally opened by operators to such activity. but speaker’s status may be considered). the Court struck down the ban on distribution Public Forum Non-Public Forum must: The regulation must be: eutral..public forum must instead be made by intentionally opening a nontraditional forum for public disclosure. However. Neither by tradition nor purpose can the terminals be described as satisfying the standards we have previously set out for identifying a public forum. SPEECH V. 2.e. In Heffron.
“America. If not related to expression. ii. you must analyize both here. The State’s interests asserted were related to the suppression of free expression. HOLDING: Johnson’s burning of the flag was conduct sufficiently imbued with elements of communication to implicate the First Amendment. HELD: The Supreme Court invalidates the conviction. If it is related to expression. Since the 13 9 . The court rejected this argument finding that there was no nexus between it and the statute. ii. Johnson): Johnson burned an American flag while chanting.i. the red. so this was directly related to expression. flag burning constituted protected speech. NOTE: If there a multiple interest. strict scrutiny standard of review. is the asserted governmental inetrest even implicated? a. Thus. Is it truly expressive conduct? a. i. rational basis standard of review b. a. A prohibition on burning the American flag is invalid where the conduct was intended as expressive and there was no actual or imminent breach of the peace. merely by allowing the criminalization of something like flag burning that has the potential to cause a breach of the peace. 4. 3. 1st interest: Preventing breaches of the peace. b. If so.Analysis for Regulating Expressive Conduct and Not Speech 1. Need: (1) Intended to convey a message? (2) Likely that it would be understood by others as conveying a message? 2. the interest was not implicated. we spit on you. 2nd Interest: Preserving the flag as a symbol of nationhood and national unity. or otherwise physically mistreat in a way that the actor knows will seriously offend one or more persons likely to observe the action. If the conduct is expressive.This expressive conduct does not fall within a category under Chaplinksy. white and blue. Subject the State’s asserted interest in preserving the special symbolic character of the flag to strict scrutiny. Would eviscerate the holding in Brandenburg.” outside Texas City Hall during the Republican National Convention of 1984. The Court found that the need to protect the falg would only be implicated if the defendant’s conduct had a contrary message associated with it. then the less stringent O’Brien Test for regulations of non-communicative conduct controls. then we must ask whether this interest justifies Johnson’s conviction under a more demanding standard than O’Brien. Desecretion was defined to mean deface. damage. i. No physical violence resulted or was threatened. is the asserted governmental regulation related to the suppression of free expression? a. Flag Desecration (Ex: Texas v. but he was convicted under a statute which made it a crime “to intentionally and knowingly desecrate a state or national flag.
the conviction was overturned. 14 0 .Bedrock Principal of 1st Amendment: The Government may not prohibit the expression of an idea simply because society finds the idea itself offensive.State did not have a compelling governmental interest. ii.
This action might not be possible to undo. Are you sure you want to continue?
We've moved you to where you read on your other device.
Get the full title to continue reading from where you left off, or restart the preview.