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.


” Abuse of power. justices are lifers and unreviewable. Pros and Cons Cons Anti-democratic. but they do not decide it. Doctrine of Avoidance: Sometimes. Judicial expertise. judicial overreaching. Every time the Supreme Court strikes down a statute as unconstitutional. 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. Courts should avoid interpreting a statute to involve a constitutional issue. 4 . the Supreme Court may be required to address a constitutional issue. recognize rights of minority. 1. Thus. All federal judges have life tenure and are subject to removal only by impeachment. Prevents Tyranny of the Majority. it is acting anti-Democratic. the relatively apolitical judiciary will interpret the Constitution to reach these ends. “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.Judicial Review Pros Need to act as a check on the other branches to prevent the tyranny of the majority. Counter majoritian: People elect. when the Court strikes down an act of Congress.

The Madisonian Dilemma – Reconciling Minority Rights 5 .Categories of Cases where Robust Judicial Review is Favored – United States v. Congress passed a law repealing the portion of the 1867 Act. Board of Education case is the supreme law of the land… C. After the circuit court rejected his claim. Co. he appealed under a 1867 congressional statute.The Court’s Political Environment: Separation of Powers. Independent Duties of Co-ordinate Branches. cl 2: IN ALL THE OTHER CASES BEFORE MENTIONED. vi. Supreme Law of the Land a. Congress can restrict APPELLATE jurisdiction of the Supreme Court . charging the Acts under which he was convicted as unconstitutional. He brought a habeas corpus action in federal circuit court. Under Article IV of the Constitution. Review of statutes directed at “discrete and insular minorities. national. b. and (2) on the jurisdiction of the lower federal courts. WITH SUCH EXCEPTIONS. 1. in particular. Supremacy Clause: Federal law trumps State law. CONGRESSIONAL CONTROL OF FEDERAL COURT JURISDICTION i. THE SUPREME COURT SHALL HAVE APPELLATE JURISDICTION. Ex: Cooper v. AND UNDER SUCH REGULATIONS AS THE CONGRESS SHALL MAKE. BOTH AS TO LAW AND FACT. The Supreme Court’s interpretation of the Constitution is binding on state legislatures and executive and judicial officers. Aaron: Arkansas state officials claimed that they were not bound by a federal court desegregation order. majorities generally are entitled to rule simply because they are majorities. 2. Carolene Products. Ex Parte McCardle: McCardle was imprisoned by a military government imposed by Congress. not the State courts. authorizing the grant of habeas corpus by federal circuit courts and also authorizing appeal to the Supreme Court in such cases. Political branches cannot resolve the issue. Article III itself suggests that Congress may place certain limits both on: (1) the Supreme Court’s appellate jurisdiction. Still minorities must have some protection. because doing so would create tyranny by one or the other. b. c. § 2. and it is up to the federal courts to determine constitutionality. religious. but before handing down its decision.Art. and the Problem of Defiance 1. 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. But neither can draw the dividing line. III. or racial minorities. 1. (Solution – See Below) v. Clear textual violation. Judicial review particularly justified when: a.with Majority Rule: Under our Democracy. which allowed iv. a. After the Supreme Court listened to oral argument. It is the federal judiciary duty to interpret and determine what is valid under the constitution.

If a Congressional attempt to limit appellate jurisdiction unduly interferes with executive or judicial power. 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. 2. RULE: Congress is further limited if taking away appellate jurisdiction would violate some other provision of the Constitution (i. Congress would be limited in this respect. Equal Protection Clause. HELD: The Court upheld Congress’ restriction of the Court’s jurisdiction.Supreme Court’s Original Jurisdiction: Congress cannot alter original jurisdiction of the Supreme Court. and (2) infringed on the judicial power because it basically forced the judiciary to abandon a rule of evidence enunciated in a previous case. NOTE Habeas Corpus: Common Law writ that says you were withheld unlawfully.Application to lower federal courts: Congress has the power to create them and abolish them. ii.” This was such an exception. b. § 2. Ex: United States v. 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. can no longer here cases on abortion or school prayer. a. See Const. 1. 1 6 . 2 iii. cl. Bitty: In establishing “exceptions” Congress must have “due regard to all the provisions of the Constitution. § 1. Klein: Invalidated a congressional “exception” to appellate jurisdiction over a class of cases arising in the then-new federal Court of Claims. Thus. III. including Supreme Court. RULE: Any jurisdictional limitation must be neutral. i.e. cl. Due Process Clause of the 5th Amendment. Art. Under the consitution. See Const. Indiviual rights in constitution). HYPO: Suppose Congress passed a law that federal courts. 1st Amendment. III. i. the appellate jurisdiction of the Supreme Court is “conferred with such exceptions and under such regulations as Congress shall make. Art. 1. Ex: United States v. 1. Congress purported to deprive the Supreme Court of its right to decide the case or any similar case. i.appeals to the Supreme Court.

Article II Section. ii. Ex: Martin v. RULES FOR REVIEWING STATE COURT DECISIONS i. Supreme Court reversed and issued mandate directing Virginia court to enter judgment for Martin.1: Since Article II grants the Court appellate jurisdiction over all cases arising under the Constitution. the Supreme Court exercises its appellate. 1 (Cases and Controversies): THE JUDICIAL POWER SHALL EXTEND TO ALL CASES. ARISING UNDER THIS CONSTITUTION. 2.Rationales for Review of State Court Decisions 1. cl. Federal courts can review state court decisions. but it may not review state court decisions that merely adjudicate questions of state law. Article III. the grant must include those that arise from state courts. AND TREATIES MADE . and Treaties made. Federal Question: Here. Hunter’s Lessee: During the Revolutionary War. IN LAW AND EQUITY. III. b. § 2. under their Authority…” b. Virginia confiscated Martin’s land and granted a portion to Hunter. rather than original jurisdiction. GENERAL i. 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. boldface parts): Equal Protection Clause. 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. THE LAWS OF THE UNITED STATES. in Law and Equity. Art. or which shall be made. 17th.III. Policy Arguments a. . 1. 10th. but only to the extent there is a federal question involved. Avoid State Favoritism iii. Article VI Supremacy Clause: No state sovereignty over Constitutional interpretation. 7 . Full Faith and Credit Clause.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. 2.Digest of the Constitution (esp. Textual a. This supports compatibility of appellate jurisdiction over State tribunals. i. 12th. 15th. B. 19th Amendments. Hunter sued Martin to eject from property in Virginia state court. arising under this Constitution. HELD: The Court held that the Court could review the constitutionality of a decision by a state’s high court. Const. cl. ii. the Laws of the United States. Uniformity: It is necessary to have uniformity in decisions throughout the nation interpreting the Constitution. “The judicial Power shall extend to all Cases. FEDERAL COURT REVIEW OF STATE COURT DECISIONS A. Virginia COA held for Hunter.

The Court has declined to review state judgments that rest upon independent and adequate state law grounds. NO ADVISORY OPINIONS 8 . the Court would presume that there were no such grounds and that it has jurisdiction. the federal court can have “pendent” jurisdiction over the state issue. a.This section discusses preconditions that must be satisified before a federal court will adjudicate a lawsuit or constitutional challenge. iv. cl. State courts can avoid this result by including the requisite plain statement. The preconditions come from: (1) Article III. Const. B. § 2. Long – Justice O’Connor): Constitution does not expressly define jurisdiction over state judgments. III.Pendent Jurisdiction: If state law question is related to a federal question. ii.” and (2) NonConstitutional Prudential (discretionary) considerations. LIMITS ON JUDICIAL POWER: JUSTICIABILITY A.Direct Appeals from state courts to Supreme Court: Some appellate review. GENERAL i. only if it is a Federal Issue. Art. §2’s limitation of federal jurisdiction to “cases and controversies. federal court should decline to take the case due to presence of an “adequate and independent state ground. Only if the case satisfies all of these preconditions will the case be deemed justiciable.iii. IV.” b. The Refusal to Review Judgments Resting Upon “Independent and Adequate” State Grounds (Michigan v. 1. If state courts’ resolution of state law issue resolves the case anyway. regardless of what the federal court would say regarding the federal issue. same rules apply when state law is involved. 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. 1 (Cases and Controversies): See Above.

whereas the other preconditions of justiciability focus on the nature of the issue being litigated. i. 1. 2. It has to wait before a proper case comes before it. A litigant must have “standing to assert his claim. The C. b.particular legislative or executive action. then and only then.” which means that he must have a significant stake in the controversy to merit his being the one to litigate it. Avoid Unchecked judicial power. Collusive Litigation iii. OTHER PRECONDITIONS OF ADJUDICATION: STANDING i. 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. Fearing that the Act may be unconstitutional. a.S. Structural Argument: Judiciary is a passive branch. 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.O. Waste of limited judicial resources in deciding a question that may never arise.Policy Rationales for No Advisory Opinions 1. Nonzealous advocacy/failure to develop the facts. 3. Congress distributed to certain individual Cherokkee Indians lands owned by the Cherokee Tribe. c. §2 limits federal jurisdiction to “cases” and “controversies. and 4. upheld the distribution and Muskrat appealed to the Supreme Court. a.” The federal courts are thus prevented from issuing opinions on abstract or hypothetical opinions. RULE: Article III. can it rule.” and the judicial power is the right to determine actual controversies arising between adverse litigants.State Provisions for Advisory Opinions 1. An Adivsory Opinion is an opinion that gives advice about 9 . NOTE: A “case” is a suit instituted according to the regular course of judicial procedure. United States: In 1902. thus leading the Court to make an unwise decision. HELD: By the express terms of the Constitution. Ex: Muskrat v. Congress provided in the Act that four named individuals could file suit against the U. the exercise of judicial power is limited to “cases” and “controversies.C.The Current Tests for Standing: Article III and Prudential Requirements 1.S. when no party is before the court who has suffered or imminently faces specific injury. Court of Claims on behalf of all claimants under the 1902 Act. and (2) prudential or discretionary requirements (non-constitutional judgments about what constitutes wise policy on administering the judiciary). with a right of appeal to the Supreme Court. ii. in the U. ii. Thus. duly instituted in courts in proper jurisdiction. standing ficuses mostly on the party asserting the claim.

if the threatened harm is too far in the future. b. Article III Requirements: Valley Forge Minimum Test (Valley Forge Christian College v. an environmental group could allege that federal de-forestation laws injured “aesthetic and environmental well-being. Consequence: This distinction provides that Congress 10 . Concrete and Particularized: The Court usually refrains from adjudicating questions of wide public importance that amount to “generalized grievances” common to all citizens.” b.Constitutional Jus Tertii Exception: “On the part of the third party. Prudential/Discretionary Factors (Association of Data Processing Organizations v. Therefore. Each factor comes armed with exceptions. Injury: Some actual or threatened injury. Personal Legal Rights: The plaintiff must normally assert personal legal rights. the plaintiff must show that his interest in the controversy is somehow more direct and a. i. Can Mulroy sue for the damage? No.Can be non-economic: For instance. and c. ii. 3. economic or otherwise. Ex: Court has allowed doctors to sue abortion regulations on belhalf of their not free to override the Supreme Court as to an element of standing found within the “case or controversy” requirement. 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. but it is free to override the prudential concerns. Americans United for Separation of Church and State): The Plaintiff must show: a. The factors include: a. 2. i. 1. Camp): Supplementing these Article III minima are various prudential or discretionary requirements. Must be “actual or imminent”: If threatened. Redressability: The injury must be redressable by a decision favorable to the plaintiff or a possibility that the plaintiff will get relief. ii. this element will not be satisfied and standing will not be found. not those of third parties. the invocation of which often depends upon the Court’s desire to engage in constitutional lawmaking in a particular case. the injury must be imminent and not conjectural. Thus. 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). HYPO: Brashier breaks Kiel’s window. or too speculative.” This Exception is prudential and is merely discretionary.

Possibly a parent of a child in that group. I cannot show actual threat or injury. 4. 2. No. and the only relief sought is prospective. probably have standing because it is pretty imminent. but not my group because we’re a Jewish group. Zone of Interest: A plaintiff claiming economic injury. A member of the group that was caused an injury by not being able to use the school. due to governmental action favoring the plaintiff’s competitors. 3. Standing/Mootness Hypo: A school allows some groups to use facilities after hours. c. the Court’s practice has been to dismiss the case as moot. 11 . Could threaten to burn a flag. As a practical matter. OTHER PRECONDITIONS FOR ADJUDICATION: MOOTNESS i. b. Who has standing? a. not his individual capacity. d. then. A: Non-justiciable because it is not ripe. thus preventing the Article III requirements to remain alive during the entire litigation.individualized than that of the citizenry at large. but then transferred to another school? i.” A case is moot if it raised a justiciable controversy at the time the complaint was filed. A: No. What if the student stays in the school. Ex: A challenged statute expires or is repealed or is significantly amended pending review. 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. What about a parent of a child who was in the group. Ripeness Variation: What if you think you might one day burn a flag in 10 years? a. must normally fall within “the zone of interests” protected or regulated by the statutory provision in question. 1. but graduates before the case goes to court? i. Williamsport Area School District: Students successfully brought suit against members of a school board. you can substitute another harmed student for another harmed student to avoid the mootness issue. c.” iii. Ex: Bender v. Congress passes a law preventing flag burning if the purpose is to be unpatriotic. There must be a high probability that the injury is likely to take place soon or are suffering it now.Standing Hypo’s 1. Can I sue to enjoin enforcement of the statute? a. A case is not justiciable if it is “moot. but events occurring after the filing have deprived the litigant of an ongoing stake in the controversy. Must be an actual injury that is existing or is imminent and it cannot be speculative and conjectural. but not a parent of a child that was not in the student group. this issue would be moot! 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. ii. By the time her case reaches the Supreme Court. While the case was pending appeal. 3. this will normally not be enough to make the case moot. with a fluid group always having rights at issue. The case is moot. a plaintiff’s cessation will not make a case moot. even if P does not become pregnant again. a. HYPO: P sues D. a state University. the city repealed the ordinance and replaced it with another. 2. P attends the school while the case is being litigated. HELD: The Court rejected the city’s argument that the case was moot by holding that the new law. might still disadvantage contractors. Exception – Capable of Repetition.Mootness Hypo’s 1. A: This is a moot point because there is no longer any injury. obviously other woman will. Pregnancy will almost always end before appeallate review. b. while less racially based. Yet Avoiding Review: In some circumstances. iv. City of Jacksonville: A Jacksonville ordinance set aside 10% of the City’s contracts for minority businesses. While challenged on e. 2. 1. then the case a. grounds.Associated General Contractors v. By the time it reaches the Supreme Court. Ex: Arizonans For Official English v. This often happens with school issues (Graduating Students) or pregnancy. 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. NOTE – Ex: Northeastern Florida Chapter of the 12 . and other situations where the cessation is not voluntary or is beyond the P’s control. iii. Moreover.Voluntary Cessation by Defendant: If the defendant voluntarily ceases the conduct about which the plaintiff is complaining.Voluntary Cessation by the Plaintiff: This will moot the case. P is in his last year and the school permits him to graduate.p. P is no longer pregnant. Arizona: AZ passed a state constitutional provision that the state’s official language would only be English. attacks the constitutionality of a state’s anti-abortion laws. claiming that its admission process is discriminatory. The reasoning is that it would not discourage the defendant from going back to the challenged practice once the case is mooted. If there is a damages claim. a pregnant woman. The case should not be dismissed as moot. What if a parent of student files suit and transfers to another school prior to trial a. so court action is no longer necessary to redress. HYPO: P. A state employee challenged the provision. the employee voluntarily left government employment.

Voluntary cessation by P will moot the case. Amendment 14. A: This is a tricky issue. 3. the Supreme Court refused to decide issues involving a “political question. §1 (Equal Protection): … NOR SHALL ANY STATE DEPRIVE ANY PERSON OF LIFE. Whether delayed review would cause hardship to plaintiffs. iii. e. the school group sues. THE POLITICAL QUESTION DOCTRINE: AN EXCEPTION/LIMITATION TO JUDICIAL REVIEW i. Const. The doctrine reflects: 1. the school then dithers. 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. Whether the court would benefit from further factual development of the issues presented. f. A: Under the doctrine of “Capable Repition. Whether judicial intervention would improperly interfere with further administrative action.” It is not for a lack of jurisdiction. 2. A: MOOT.” even though a particular P may not be suffering injury. HYPO: What if a religious group applies for permission. What if the student stays in school but graduates before the case can be resolved? a. The issue of Ripeness and Standing somewhat overlap. 2. What if the school pulled their policy the day before trial? a. A: The case is not ripe because the group has not been injured. but rather it would be prudential for the Court not to intervene in these political matters. other students still at the school) 3. What if student drops his membership in reliegious group? a. 1.Factors in Ripeness Analysis (Sierra Club Case) 1. 2. a.Political Question Doctrine: Historically. and while they are deciding.e. It encompasses what might be called “prudential” concerns. because they involve non-judicial discretion or lack of judicially determinable standards. we know there are other people that will have the same injury (i. then the case will not be considered ripe. such as the avoidance of embarrassment to other branches or of interference with pronouncements where consistency/uniformity especially is important. not 100% consistency. NOR DENY TO ANY PERSON WITHIN ITS JURISDICTION THE EQUAL PROTECTION OF ITS LAWS. Respect for the separation of powers in avoiding decisions expressly given by the Constitution to the executive or legislative branches. Some decisions are inappropriate for the judicial function. ii. ii.Political Question Factors from Baker: At least one of these factors must be present in order to make an issue a non-justiciable 13 . OTHER PRECONDITIONS OF ADJUDICATION: RIPENESS i. For example. yet evading review. OR PROPERTY WITHOUT DUE PROCESS OF LAW.would not be moot even if he transfers because there is no prospective injunctive relief. 4. or judicial deference as a matter of policy. LIBERTY. if an injury isn’t imminent yet. 3.

” Thus. Borden: The case grew out of a rebellion by some dissatisfied Rhode Island citizens. 4.political question. Apprtionment/Reapportionment: Until Baker.. The Aftermath of Baker v. Lack of judicially manageable standards for resolving the issue. Sims: The Court interpreted the equal protection clause as requiring apportionment according to population – a principle that since has become known as “one person. and that judical equal protection standards are manageable. Political decision already made: An unusual need for respect or deference to a political decision already made by another branch. HELD: The Supreme Court says that the plaintiffs are being denied equal protection of the law. 14 . 3. 3. But the Supreme Court declined to make this determination. Each of these factors relates in some way to the separation of powers: 1.Classic Instances of Political Questions 1. to Congress or to the President). 2. The Court noted that the constitution did not confer this question on another branch. Ex: Baker v. IV.e. Carr: Judicially Manageable Standard for Apportionment – Reynolds v. one vote. The claim was based on the guaranty clause of Art. the Court consistently refused to adjudicate claims concerning legislative apportionment on the grounds that it presented a political question. there was a “judicially discoverable and manageable standard” to resolving apportionment questions. Textually demonstrable constitutional commitment of the issue to a coordinate political branch (i. What constitutes a “Republican form” of government a. and ultimately required the federal courts to decide which of the two competing governments was the lawful government of the state. thus enabling the federal courts to intervene in and decide said questions. Ex: Vietnam War 2. In this instance. a. The reapportionment question does present a justiciable question. b. which guaranteed a republican form of government. 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. The votes in the larger districts were thus being diluted. Need for uniformity among branches iv. no embarrassment would arise. §4. a smaller number of the people were voting for a large number of the representatives. Ex: Luther v. Carr: Challenge to the constitutionality of reapportionment of districts under the equal protection clause of the Fourteenth Amendment. Foreign affairs a. but the Court does not immediately grant relief.

GENERAL A. to pay the debts and provide for the common defense and general welfare of the United 15 . one vote” principle does not say anything about how district lines should be drawn. 1. a state legislature could gerrymander the shape of the districts to dilute the voter’s strength. b. rejects the rule. i. Cl. Political – This type of gerrymandering involves redistricting schemes that attempt to keep on party in office.Justice Kennedy. Johnson Below. duties. Art. b. RULE: Political gerrymandering claims are “per se” non-justiciable questions because no judicially discernible and manageable standards for adjudicating such claims exist. 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. CONSTITUTIONAL PROVISIONS i. however. HELD: The Court held that there were indeed judicially discernible and manageable standards by which political gerrymander cases may be decided. This Court goes through a number of rules and rejects each approach as unworkable and unmanageable. Ex: Davis v. 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: The Congress shall have power to lay and collect taxes. ii. 1. See 15th Amendment. Const. Does not explicitly overrule Bandemer but states that its standard is unworkable. imposts and excises. refused to foreclose all possibility of judicial relief if some limited and precise rationale could be found to review these cases. and thus.Political & Racial Gerrymandering: The “one man. However. Ex: Vieth v. § 8 (Enumerated Powers Vested in Congress) 1. PART II – CONGRESSIONAL POWER I. while diluting another parties vote. I. Jubelirer (Rejects Bandemer): PA adopted a congressional redistricting plan. 1. this particular case is not justiciable because of the parties involved. a. HELD: The claim is a non-justiciable question. a. See Miller v.v. Racial Gerrymandering cases are considered justiciable.

the federal government (especially Congress) may validly exercise power that is ancillary to one of the powers explicitly listed in the Constitution. In response to the following arguments against the federal government’s power to do things not explicitly enumerated in the constitution. per Chief Justice Marshall.States. Necessary and Proper Clause: Marshall relied upon this clause as a justification for Congress’ right to create a bank 16 . to contain an accurate detail of all the subdivisions of which its great powers will admit. and of all the means by which they may be carried into execution. and coud scarcely be embraced by the human mind…We must never forget that it is a constituion we are expounding. and among the several 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. Cl. The Bank was designed to regulate the currency and help solve the national economic problems. a number of states enacted antiBank measures. Marshall rebutted as follows: 1. “A constituion. and with the Indian tribes.Tenth Amendment: The powers not delegated to the United States by the Constitution. ii. Besides acting under the Constitution’s enumerated powers. but all duties. it soon encountered substantial political opposition mostly as the result of the Panic of 1818 and corruption within the various branches of the Bank. As a result. Structual Argument: Marshall turned to the issue of whether an explicit constituional grant of power (to charter a bank or corporation) was required. Enumerated Powers/Implied or Incidental Powers a. ii. nor prohibited by it to the States. 3 (Power to Regulate Commerce): To regulate commerce with foreign nations. i. imposts and excises shall be uniform throughout the United States. Maryland imposed a tax upon all banks operating in the state that were not charted by the state. are reserved to the States respectively. 3. Maryland’s anti-Bank statute was at issue. I. held the tax unconstitutionally invalid. or to the people. or other parts of the Const. 1. Cl. 2. This notion is explicitly stated in the “Necessary and Proper” clause (Art.Ex: McCulloch v. The measure was intended to discriminate against the national Bank. HELD: The Supreme Court.” 2. would partake of a proxlixity of a legal code. The state then brought suit against the Bank and its cashier (McCulloch) to collect the tax. B. so long as this ancillary power does not conflict with specific Constitutional prohibitions. DOCTRINE OF IMPLIED OR INCIDENTAL POWERS i. 2: To borrow money on the credit of the United States. However. Maryland: Congress chartered the second Bank of the United States in 1816. and its Maryland branch. § 8. 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 Power to Tax is the Power to Destroy a. it violated the Supremecy Clause. Thus.Policy for Strong Commerce Power 1. to regulate commerce. to borrow money.or corporation even though such power was not specifically granted in the Constitution. HOLDING: The act of chartering a bank was valid. because it bore a reasonable relationship to various constitutionally enumerated powers of the government (i. The State tax interfered with the exercise of a valid federal activity. which are plainly adapted to that end. to declare and conduct. cl. I. He rejected the State’s contention that “necessary” meant “absolutely necessary” or “indispensible. or to the people. power to establish post-offices) 3. (Later became Rational Basis) Absence some specific reason for applying hightened scrutiny. we will apply this test: Is what the government is trying to do legitimate? If so. Avoid discrimination among states that would burden interstate commerce. and with the Indian Tribes.” Instead. b. § 8. iii. to raise navy and army. let it be within the scope of the constitution.10th Amendment (Reserved Powers to States): The powers not delegated to the United States by the Constitution. I. Art. ii. Const. .e Lay and collect taxes. and all means which are appropriate. 17 . a. nor prohibited by it to the States. he stated that “let the end be legitimate. which are not prohibited. POWER TO REGULATE COMMERCE A. but consistent with the letter and spirit of the constitution. are constitutional. are reserved to the States respectively. . RULE: State Governments cannot tax federal entities. is the way they are going about related to the generqla purpose. 3: The Congress shall have Power To regulate Commerce with foreign Nations. GENERAL i. and among the several States.

on the ground that it was based upon a monopoly that conflicted with a valid federal statute. and thus violated the Supremacy Clause. Blurring of Power among Federal and State Entities: May lose political accountability. we need some sort check on Congress’ power. Gibbons began operating steamboats between New York and New Jersey. stops in State B. Ex: A boat leaves state A. and acknowledges no limitations. “This power. which.” 3. iv. like all others vested in Congress. That is. 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. National Economic Uniformity. a. Protect Indiviudal Liberties: Under Federalism. 10th Amendment 3. b. Ogdon: Ogdon acquired. 2. 2.Reasons for Limiting Commerce Power 1. The Clause permits Congress to legislate with respect to all “commerce which concerns more States than one. by grant from the New York legislature. C. in violation of Ogden’s monopoly. and ports in State C. THE COMMERCE POWER DURING THE “DUAL FEDERALISM” ERA: FROM THE LATE 1800S TO THE 1930S i. a broad baseline of commerce is covered. under the Tenth Amendment. a. monopoly rights to operate steamboats between New York and New Jersey. other than those prescribed in the constitution. and finishes in State A. HELD: Marshall found the injunction against Gibbons invalid. Ogden obtained an injunction in a New York court ordering Gibbons to stop operating his boats in NY waters. THE BEGINNING OF CONGRESS’ COMMERCE POWER i. so long as the activity has some commercial connection with another state. Gibbons’ boats were licensed.2. is complete in itself. the Court felt that there were areas of economic life. loops into State B. were to be left to state regulation. under a federal statute. and other 18 . Ex: A boat leaves in state A. It is still within Congress’ power to regulate.” Furthermore. b. 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. but all “commercial intercourse. Ex: Gibbons v. Commerce includes not only buying and selling. Marshall’s Broad Interpretation of the Commerce Clause: Under the clause. however. may be exercised to its utmost extent. Laboratories of Democracy Argument (O’Conner’s Dissent in Morrison): Allow states to experiment with regulating commerce.” 1. Congress’ Plenary Power (“Utmost Extent”): No area of interstate commerce is reserved for state control. It is within Congress’ power to regulate the entire voyage.

The Commission’s theory was that Shreveport competed with certain TX cities for shipments from other parts of TX.A. Chickens not in flow of commerce. Not Affecting Commerce: What was required was a direct. but not for both. the codes regulated such items as minimum wages and prices. These two areas were viewed as being essentially non-overlapping (either an area was proper for state regulation. and that the lower TX intrastate rates were unfairly discriminating against the TX-to-Shreveport interstate traffic. since the ultimate object is the protection of interstate commerce and the avoidance of a chilling effect on commerce resulting from intrastate discrimination. The Act contained provisions for minimum wages. after setting rates for transport of goods between Shreveport. effect on commerce. The railroads countered that it was beyond Congress’ power to control intrastate rates of an interstate carrier. HELD: The Court held the NIRA unconstitutional as applied to Schecter. 1. AND THE DIRECT-INDIRECT EFFECTS DOCTRINE i. collective bargaining. HELD: The Court upheld the ICC’s right to regulate intrastate charges. 1. collective bargaining. ii. or for congressional regulation. LA and vaious points in TX. i. not indirect. the Court had to grapple with the extent of the Commerce Power.Current of Commerce Theory: An activity could be regulated under the commerce power not because it had an effect on commerce. United States: At issue in the case was the validity of the (NIRA). sought to prevent railroads from setting rates for hauls totally within Texas which were less per mile than the Texas-to-Shrevport rates. which authorized the President to adopt “codes of fair competition” for various trades or industries. 2. i.L. 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. and industrial codes. In the cases that follow. Congress enacted the National Industrial Recovery Act of 1933. Schecter itself bought within NY city. The fact that the activity being regulated is intrastate does not place it beyond Congress’ control. United States): The Interstate Commerce Commission. East & West Texas RY. Although the vast majority of poultry sold in NY came from other states. maximum hours.Schecter Poultry Corp. Ex: A. Schecter was convicted on charges of violating the the wage and hour provisions of the NY Metropolitan Code. Following the Great Depression. V. and resold its stock exclusively to dealers. GREAT DEPRESSION. THE NEW DEAL. etc. v. because the activity itself could be viewed as being “in” commerce or as being part of the “current” of commerce.A. 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. consumer protection. THE areas of activity which were properly preserved for the federal government. Although Schecter’s wage and price policies might have forced interstate competitors 19 . but rather. maximum hours. Ex: The Shreveport Rate Case (Houston.

or collaterally – to produce the lower their own prices. The Court relied on the distinction espoused in Knight between “production” and “commerce. Direct/Indirect Doctrine: The word direct implies that the activity or condition invoked or blamed shall operate proximately – not mediately. or even after the interstate commerce. Thus. Rejects “Cureent of Commerce” theory: If the activity has a substantial effect on interstate commerce. 1.Ex: Carter v. these higher standard will never get enacted. such transactions remain within the domain of state power. 3. 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 .” 2. 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. Commerce: Production of coal was being regulated here and it is a purely local activity. even though the materials produced would ultimately be sold in interstate commerce. you need to look to see if there is a direct or an indirect effect on interstate commerce. the issue is not the extent of the effect produced on interstate commerce. Race to the Bottom Crticism: If you leave certain regulations up to the states. 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. it added that to determine whether there is a close and substantial relationship. Jones & Laughlin Steel Corp. Substantial Economic Effect Test: So long as the regulated activity has a substantial economic effect upon interstate commerce. but the existence or non-existence of a direct logical relation/nexus between the production and the interstate commerce. 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. ii. 2. a. this impact was much too indirect to allow for congressional control.Ex: NLRB v.Thus. Beginning with NLRB. that activity may occur before the interstate movement. then each state will compete to have the lowest amount of regulation to attract more commerce. ii. Relevance: The Case did not overrule Schecter. Instead. Production v.: This case tested the constitutionality of the National Labor Relations Act of 1935 (NLRA). B. a. a. Where the effect of intrastate transactions is merely indirect.” 1. that activity falls under Congress’ Commerce Power. HELD: The Act is unconstitutional. remotely.

21 . a. labor relations at the PA plants could be regulated by Congress. 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. EXTENSION OF COMMERCE POWER TO NON-ECONOMIC ACTIVITY & RATIONAL BASIS REVIEW FOR CONGRESS’ COMMERCE POWER i. and there was no evidence that an appreciable part of its business was in serving out of state travels. ii. CUMULATIVE EFFECT THEORY i. the Court concluded that a labor stoppage of the PA intrastate manufacturing operation would have a substantial effect on interstate commerce. Filburn: Involved the Agricultural Adjustment Act of 1938. Therefore. 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. 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. THE PROVISIONS OF THIS ARTICLE. HELD: The Court upheld the Act. Because of Jones & Laughlin’s multi-state network (while it only produced steel in PA. NOTE: 14th Amendment – THE CONGRESS SHALL HAVE POWER TO ENFORCE. Ex: Katzenback v. 1. The Act not only controlled the quotas on wheat that would be sold interstate or intrastate. as applied to Jones & Laughlin. 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. the Act will be upheld. which permotted the Secretary of Agriculture to set quotas on the raising of wheat on every farm in the country. d. c. The Court found that the unavailability of accommodations dissuaded blacks from traveling in interstate commerce. but also which could be consumed on the very farm where it was raised.for union activity. i.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). 1. sent 75% of its product out of PA). AL restaurant called Ollie’s Barbecue. it is arguable that it would not apply because there is no state action. but also an entire class of acts. The Court applied Rational Basis review to defer to Congress purpose for passing the Act. It also covers any establishment which serves interstate travelers. However. However. Ex: Wickard v. The restaurant was relatively far from any interstate highway or train or bus station. HELD: The NLRA. it owned mines in two other states. 1. BY APPROPRIATE LEGISLATION. McClung: Involved a Birmingham. Civil Rights Legislation: The Civil Rights Act of 1964 bans discrimination in places of public accommodation. where a substantial portion of its goods or food is purchased out of state or has moved in commerce. lay witing the commerce power. operated steamboats in another state.

2. The Court also held that this regulation is reasonably related to protecting commerce. who grew wheat for home consumption.Preface to Lopez: This case showed that limits still exist on Congress’ Commerce powers. Thus. In Lopez. is a school zone.Activity regulated is not “commercial” ii. Use of Channels of Interstate Commerce (roads. THE Wheat raised in excess of the quota was penalized. in which Congress made it a federal crime “for any individual knowingly to possess a firearm at a place that the individual knows. and 3. Lopez: Involved the Gun-Free School Zones Act of 1990. 1. b. not just an effect. or has reasonable cause to believe. transportation of any thing or person across state lines. the Court will not invalidate a statute even ehen it finds no substantial effect. Ex: United States v. whether or not done commercially). a. Three Categories that Congress May Regulated Under it Commerce Power: 1. etc. the Court for the first time in 60 years invalidated a federal statute on the grounds that it was beyond Congress’ Commerce Power. 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. etc. Instrumentalities of interstate commerce (airplanes.e. 22 . iii.. the less wheat that is brought in commerce (from other farmers). Filburn. No congressional findings that there is a logical nexus to of the activity to interstate commerce. if Congress found such an effect and was not irrational in doing so. rivers.E. phones. If there are formal findings that activity has a substantial affect on interstate commerce. on Interstate Commerce.). Prong (3) of Lopez Test At Its Weakest When: i. Consumption has market effect: The more wheat that is consumed on the farm where it is grown. Substantial Effect: Activity must have a substantially effect. a.) or persons or things IN interstate commerce (i. whether interstate or not. Activities which “substantially affect” interstate commerce.” HELD: The Court struck down the statute. ii. a. MODERN “SUBSTANTIAL EFFECT” AND RATIONAL BASIS REVIEW i. 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. 1. HELD: The Court upheld the statute. even though the threat may come only from intrastate activities.Rational Basis: It is not whether the Court finds a substantial effect. then this will stregthen case.

family law (divorce. things like a federal mandated curriculum and child rearing could be said to have a substantial effect on interstate. 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. the Court has trouble sustaining proported legislative judgment that such activity substantially affects interstate commerce. No Jurisdictional Nexus: The statute does not ensure. i. Normally not required to make formal findings as to the substantial burdens that an activity has on interstate commerce. Not Commercial: The Court thought that the activity being regulated was not itself commercial activity. who thus become less economically productive.” iv. d.Ex: U. that the firearm possession in question affects interstate commerce. on a case-by-case inquiry. interstate commerce. 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. v. they thought that under this rationale. i.statute by its terms has no connection and nothing to do with interstate commerce. (b) was rejected because it meant that Congress could regulate any activity it found related to economic productivity (i. Little Connection to Commerce: The criminal 23 . No Legislative Findings: The Statute did not include explicit findings by Congress that the activity being regulated (possession of guns in schools) affected commerce. 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. The Court rejected these. (b) violent crime in schools reduces the schools’ ability to educate their students. or even affected. Morrison: Involved was the Violence Against Women Act of 1994 which gave a victime of gender motivated crime a civil b. 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. child custody)) Also. i.S.e. e. c. but without them. Instead. f. it banned even possession of a gun that had never traveled in. Furthermore. Specifically.

1. distribute. v. i. a. Even if in it completely intrastate. Thus. these cases also struck down states trying to regulate 24 . the high demand in the interstate market would draw that home-grown marijuana into interstate market. when Congress is engaged in a broad regulation of a commercial activity. it may regulate purely non-commericial and intrastate instances of that activity. then government should put in a jurisdictional nexus. Additionally. In a majority of these cases. frustrating Congress’ purpose of banning interstate commerce in marijuana. 2. Reliance on Wickard: Congress can regulate purely intrasate activity that is not itself “commercial. when federal regulation of economy was involved. in the aggragate. where the transaction being reglated is itself clearly an economic or commercial one. THE action claim. if it concludes that failure to regulate that class of activity would undercut the regulation of the interstate market in that commodity.Regulation of non-commercial activity as part of broad regulation of commercial activity: Conversely. Economic Activity: The Court relied principally on the fact that the activity being regulated was essentially noneconomic. substantially affects interstate commerce. LOCHNER ERA i. Ex: Gonzales v. Raich: Congress. Congress. 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. rationally believed that if cultivation of home-grown marijuana were permitted for medicinal consumption. as long as it’s part of a class that. The Court held that the regulation was beyond Congress’ commerce power. 1. California approved a proposition which established an exemption from criminal prosecution for the use of marijuana for medicinal purposes. or possess marijuana. the substantial effect prong of the Lopez test did not apply and the regulation could not be saved. 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.f. NOTE: If not commercial. 3. in passing the CSA. HELD: The Act was beyond Congress’ Commerce Power. made it a crime to manufacture. HELD: Congress’ Commerce power includes the right to regulate even the purely intrastate and noncommercial cultivation of marijuana. The two P’s claimed that Congress did not have the power under the Commerce Clause to do this. through the Controlled Substances Act. the Court will probably allow Congress to regulate it.” in that it is not produced for sale. Congress can regulate. Commercial Transaction: Thus. if it reasonably believes that failure to regulate these instances would jeopardize the success of the overall regulatory scheme. a. Thus.

and then spent for the common defense and general welfare. ii. Achievement of Otherwise disallowed objectives: Congress has no power to regulate for the purpose of providing for the genral welfare. These decsions became incresingly unpopoular during the New Deal. 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.e. 1. AND ALL OTHER POWERS VESTED BY THIS CONSTITUTION IN THE GOVERNMENT OF THE UNITED STATES . Ex: Nebbia v.” noting that the constitution does not endorse any economic theory and that it is a matter for political branches to decide. Art. 2. Ex: Lochner v. Thus.Decline of the Era 1. the Court limited the use of the Commerce Clause and the 10th Amendment. OR FROM. CLEAR. The Era came to an end in in the late 1930’s with a. substantive due procee was unused. Art.Const. President Roosevelt proposed to add additional justices to the Supreme Court. Art. The Court essentially rejected “Lochnerism. . The power to spend is thus linked to the power to tax – money may be raised by taxation.Until the 60’s. Thus. Court Packing Plan (“Switch in Time that Saved Nine”): To enforce governmental regulation.21st Amendment: Repeal of Prohibition B. but the defeat was partly due to the changes of position of some justices. Const. . cl.Const. BE OBLIGED TO ENTER. I. ii. a. because it is outside of its Commerce Power or other enumerated powers). 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. TO PAY THE DEBTS AND PROVIDE FOR THE COMMON DEFENSE AND GENERAL WELFARE OF THE UNITED STATES… 1. §8: THE CONGRESS SHALL HAVE THE POWER TO LAY AND COLLECT TAXES . Congress may use its conditional spending power to achieve the same result 25 . New York: The Court sustained a New York regulatory scheme for fixing milk prices. This era is now discredited. iii. This was ultimately defeated by Congress. OR PAY DUTIES IN ANOTHER.I. who shifted the majority of the Court. II. the court used a substantive due process analysis to write a laissez fair version of economics into constitution. 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. CONGRESS’ SPENDING POWER A. 18: TO MAKE ALL LAWS WHICH SHALL BE NECESSARY AND PROPER FOR CARRYING INTO EXECUTION THE FOREGOING POWERS.the economy. . GENERAL i. LIMITS ON CONGRESSIONAL USE OF SPENDING POWER i. §8. I. cl. In essence. §9. . if Congress cannot obtain a certain objective by direct regulation (i. iv. ONE STATE.

indirectly (i. 26 . cognizant of the consequences of their participation. 3.The Condition must: 1. The condition must bear a ligitamate relationship to the purpose for which the funds are extended. Must be unambiguous enabling the States to exercise their choice knowingly. 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. While the majority in Dole fashioned a broad conception of this nexus. Another constitutional provision might provide an independent bar to the conditional grant of federal funds (See S. a. a. 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.e. South Dakota attacks the statute on the grounds that this condition interferes with its own exclusive powers under both the 10th and 21st Amendments. Be used to “promote the general welfare”. withholds federal highway funds from states that permit individuals younger than 21 to purchase or possess in public any alcoholic beverage. Dole) 5. Deference to Congress’ determination. v. Dole: Congress. Ex: A grant of federal funds conditioned on invidiously discriminatory state action or the infliction of cruel and unusual punishment.D. HELD: The statute is valid. Also. a. 2. Be used via an explicit condition. Not contravene an independent constitutional requirement. in order to prevent drivers under the age of 21 from drinking. note that “pressure” cannot become “compulsion” iii. a. 4.Ex: South Dakota v. 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. 1. Be “related to the federal interest in the particular national project or program” (this prong is not enforced very strictly). ii. a.

GENERAL i. . the Supremacy Clause dictates that national power overcomes inconsistent exercises of state power. CONSTITUTIONAL PROVISIONS i. VI.10th Amendment: THE POWERS NOT DELEGATED TO THE U. §1.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 main rational is that we don’t want either one of them to become too powerful. OR TO THE PEOPLE. there may be a negative implication that Congress intended the matter to remain unregulated. AND THE LAWS OF THE UNITED STATES WHICH SHALL BE MADE IN PURSANCE THEREOF. NOR PROHIBITED BY IT TO THE STATES. ii. GENERAL i. 27 . Because the constitution provides for the freedom of speech and the press. FEDERAL PREEMPTION OF STATE POWER A. . BY THE CONSTITUTION. TWO CATEGORIES OF IMPLIED PREEMPTION II. state law must yield to federal law. cl. iii. Const. . . and since the Constitution and federal laws are the Supreme Laws of the Land. iii. Federal law “covers the field” B. Actual conflict between federal & state law. Preemption of State Power by Congress: As a part of federalism. SHALL BE THE SUPREME LAW OF THE LAND . ARE RESERVED TO THE STATES RESPECTIVELY. PREEMPTION & THE SUPREMACY CLAUSE i. if Congress passes an act.PART III – FEDERALISM I. just figuring out “What Congress wants.” ii.Privileges and Immunities: The Constitution requires the states to afford privileges and immunities to citizens and noncitizens alike. Issue of Congressional Intent: A preemption problem is not always controlled by any clear statement of Congress. and thus preemption is inferred as a matter of Congressional intent to displace possibly inconsistent state regulation. (Supremacy Clause): THIS CONSTITUTION. Ex: A state passes an act providing that Newspapers are no longer permitted.S. Federal law is said to have “preempted” state law. IMPLIED PREEMPTION A. 2. . ii. 2. 1. the states cannot countermand it.Express Preemption: Federal law explicitly says Congress intends to supplant state law. Thus. the stat law in question therefore is of no effect.Implied Preemption: 1. B. 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. C. Art. The Supremacy Clause of Article IV provides that in case of a conflict.

Joint Compliance Impossible whereby it may be physically impossible to obey the state and federal regulations simultaneously. immigration. a. Nelson (“Impliedly Preempted Penn. (2) Congress has a an all-embracing program for resistance to the various forms of totalitarian aggression. 2. Field Traditionally left to states: Courts are less likely to find these as subjects of federal preemption.Ex: Pennsylvania v. 1.Cover The Field: Where Congress has enacted broad. 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. bankruptcy. Actual Conflict: In cases in which there is an actual clear-cut 28 . Conflicting Tactics employed by the two may be sufficiently conflicting that a court will conclude the state regulation is preempted. National Security. 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. (3) Enforcement of state sedition acts presents a serious danger of conflict with the administration of i. the Court is much more likely to find federal preemption than where the federal scheme is less comprehensive. ii. patent and trademark. admiralty. This means that if the subject area is usually viewed as “local” rather than “national. 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?. the State statute is invalid. Absent explicit preemptive language. 1. 3. 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. sweeping statutes in a particular area to cover the entire field. Ex: Gonzales v. 3. Would enforcement of the State law present a serious danger of conflict with the administration of the federal program? ii. and others will normally be found to be federally preempted.” preemption is unlikely to be found. 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. THREE PART “COVER THE FIELD” TEST i. C. 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. Ex: Health and Safety regulations.conflict between congressional and state regulation. 2. a. National Matters/Fields of Federal Dominance: Foreign relations. Raich: State and Federal marijuana statutes conflicted.

even in express preemption cases.). or if state law frustrates Congress’ purpose in passing the main law in the first place) 1. TEST FOR EXPRESS PREEMPTION i.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. Presumption Against Preemption. the Court often has preferred not to find preemption.. the Court of Appeals reversed. the courts should honor controlling expressions of intent to preempt. Compare McClendon and Cippone: These cases demonstrate that. Paul) III. Presumption Against Preemption a. Inc. using plain language. also ask if there is an actual conflict. Explicit Statutory Preemption Provision ii. iii. (Askew v. and with the construction and operation of nuclear power plants. After the district court held the CA statue preempted by the federal Atomic Energy Act. the CA statute did not come within the area preempted by Congress.Ex: Pacific Gas & Elec. Even if there is a congressional intent to cover the field. Thus. v. iv. the Congressional choice of terms must be interpreted by courts in a manner 29 . i. the courts should honor state laws. legislative history. 2. American Waterways Operators. If legislative intent is unclear. such as the inference of an attempt to occupy the field by a less than comprehensive regulatory scheme. Intent to occupy the field is inferable only when “unmistakable” i.Other General Preemption Rules 1. When a Court is forced to infer Congressional intent from conflicting or ambiguous indications.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. If Congress expressly states that it does not intend to preempt state regulation. or if the legislative history contains controlling statements to that effect. etc.e. The federal system of licensing and inspecting nuclear plants was set up solely to deal with nuclear (radiological) safety regulation. Similarly. not safety problems. when the nature of the regulated subject matter permits no other conclusion (Florida Lime & Avocado Growers v. EXPRESS PREEMPTION a. the Court must determine the exact area their intention covered. 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. then default setting is no preemption. 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. HELD: The Supreme Court Affirmed.

or the effect is only indirect. ERISA preemption clause was designed to establish pension plan regulation as an exclusive federal concern. 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. Alternative Preemption Analysis: Even if there was no express preemption. even if the law is not specifically designed to affect such plans. which was later amended in 1969. and thereby be preempted. 2. 3. then the implied preemption argument will not work. The TX judicially created case of action makes specific reference to. and values. The Court’s reasoning was predicated on the preemption language: 1. the existence of a pension plan. v. A state law may “relate to” a benefit plan. the entire extent of preemption is governed by the express preemption language. each state could create different substantive standards applicable to the same employer conduct. iv. then you could argue implied preemption. Congressional Intent: Congress wanted to have a uniform body of law for these pension plans. The State Court ruling is preempted by the express preemption language of ERISA. 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. vi. brought action under TX state law covering tort and contract theories. Ct. Warning”: The Federal law at issue was the Federal Cigarette Labeling and Advertising Act (1965). 5. the goal was to minimize the administrative and financial burden of complying with conflicting directives among States or between States and the Federal Government. The P. Liggett Group (“Expressly Preempted Cig. but because the express preemption language is there.Elimination of Implied Preemption by an Express Preemption: Express preemption “crowds out” implied preemption.Ex: Ingersoll-Rand Co. and is premised on. If there is express preemption.consistent with applicable constitutional history. McClendon (“Expressly Preempted TX Pension Law”): The Employee Retirement Income Security Act (“ERISA”) enacted a uniform regulatory scheme for private employee benefit plans. Because of that. The TX Sup.If there was not express preemption language. created a public policy exception.Ex: Cippolone v. McClendon. The amendment broadened the preemption language: “No 30 . the issue was whether the state court ruling is preempted by the federal statute. ISSUE: Because there was a conflict between a federal statute and a state court ruling. iii. v. it is important to read the exemption language broadly. structure. Preemption is not precluded simply because a state law is consistent with ERISA’s substantive requirements. The Act also contained a broad express preemption of “any and all State laws” that relate to any employee benefit plan. namely. HELD: Reversed. 4.

1969 Act: Because the language was much broader. FEDERALISM – THE NEGATIVE COMMERCE CLAUSE “DORMANT” COMMERCE CLAUSE: RESTRICTIONS ON STATE POWER TO AFFECT INTERSTATE COMMERCE A. § 8. 31 . a. rather deals with a fraud claim. it has the effect of restraining state power to regulate interstate commerce (“dormant commerce clause”). rather deals with a fraud claim. while others were not. the Court is not going to leave any room for additional implied preemption. Congress’ enactment of a provision defining the pre-emptive reach of a statute implies that matters beyond that reach are not preemptive. b. 10th Amendment. Could the cigarette company have argued the other non-preempted issues were in fact preempted by Implied Preemption? No. not based on smoking or health warnings. On the other hand. Art. 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. 2. I.The Commerce Clause really contains two clauses: On the one hand. but if it declines to regulate a particular aspect of that commerce. it is an affirmative grant to Congress of power to regulate commerce. 1. IV. and this implied preemption excluded. P’s claims that the post 1969 advertisings or promotions should have included more warnings clearly conflicts with the federal act. Breach of Express Warranty: Not preempted by the Act because the “requirements” imposed by an express warranty claim are not “imposed under state law. where Congress has expressly spelled out what is preempted. d. the pre-emptive scope of the express language governs. 1. not based on smoking or health warnings. c. GENERAL i.” The Defendants contended that federal preemption protected them from any liability from the P’s (a woman who died from smoking) common law claims. 1965 Act: Under the maxim Expressio Unius est Exclusio Alterius. ii.requirement or prohibition based on smoking and health shall be imposed under state law with respect to the advertising or promotion of any cigarettes.” but rather imposed by the warrantor. Conspiracy to Misrepresent or Conceal: Not Preempted. Congressional Silence Theory: Congress has the power to regulate interstate commerce. the Congressional silence is tantamount to a Congressional expression of intent to leave the area unregulated. Fraudulent Misrepresentation: Not Preempted. HELD: Certain of the P’s common law claims were preempted. Failure to Warn: Preempted. and hence to protect it from state regulation. Const.

abrogations of contracts in favor of residents.Concept of “Police Power”: The notion that the power to provide for the local health. Overview 1. and welfare (“Police Power Rationale”): The Court will most likely hold these objectives as legitamate state ends. a. Originalism: There is a strong originalist argument. the states had strong motivations to favor local interests. protecting outsiders to the political process. the existence of federal power meant the absence of state power. and Substantive Due Process) MODERN STANDARD UNDER THE NEGATIVE COMMERCE CLAUSE i. and (2) Furthers a Legitimate State Interest (typically by rationale means to the end). (Bruce Church) 2. Legitamate State Interests and Rational Means to that End: The court has distinguished between measures that are designed for the promotion of health. IV). b. Thus. This power was historically used to justify the kind of state regulation that seemed necessary but that arguably affected interstate commerce. safety and welfare objective on the one hand. apply “least restrictive means” test (Dean Milk). on the other. and vice versa. welfare.Justifications for Heightened Review 1. Economic Advantage: The Court is much more skeptical of a state regulatory scheme where the 32 . ask if the burden on interstate commerce is “clearly excessive” in light of the purported local benefits. however. v. National Political Unity (P & I Clause of Art. iv. because the founders wanted to avoid the problems created by the Articles of Confederation by having a uniform national economy. and supporting individual economic liberty. or b. vi.Modalities 1. and taxes on interstate commerce were particular concerns. Health. 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.The Early Dual Federalism Approach to the Commerce Power – Mutual of “Selective” Exclusivity: No overlapping between state and federal power. If facially discriminatory. the rationales for the doctrine focus on protecting national economic unity. 3. Today. If not facially discriminatory.B. 2. and morals is the essential province of the states. If the state law (1) Burdens Interstate Commerce. and those that are designed for furtherance of economic benefits. Under the Articles of Confederation. reliance on unstable paper money. THE 2. Individual Economic Activty (P & I Clause of the 14th Amen. As federal power expanded. 2. Discriminatory regulations and duties. Political Process Rationale (Similar to Equal Protection). this approach would have wiped out state power. safety. iii. then: a.

it can pursue these ends discriminatorily. however. Several out-of-state users challenged the validity of the statute on the ground that it discriminated against interstate commerce. If not facially discriminatory. a.g. a. the law will be valid if its means are the least restrictive to further the law’s end. Ex: City of Philadelphia v. 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. slow the flow of all waste into the state’s landfills. but still allowed in-state waste to be disposed of it NJ landfills. v. even 33 .Facially Discrimnatory: The Least Onerous Alternative/Restrictive Means Test (“No Homecookin’”) 1. New Jersey: A NJ statute prohibited the importation of most waste into the state. (Bruce Church) 2. which was a condition to importation and sale. HELD: The Court struck down the statute. 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. These objectives are generally not considered to be a legitimate state end. HELD: The ordinance is unconstitutional because it discriminated against interstate commerce and could not be justified by the absence of any less onerous alternative. ask if the burden on I. While the State has an interest in protecting its environment or reducing costs to its residents. sending of inspectors to outof-state pasteurization plants to make quality checks. apply “least restrictive means” test (Dean Milk). The state may. b. Per Se Rule of Invalidity”: A facially discriminatory statute is virtually invalid. at the out-of state producers’ expense). ii. On the other hand. 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. If the law is facially discriminatory. Ex: Dean Milk Co. The ordinance also limited the city’s responsibility for inspection. the Courts will sometimes consider not only the objectives which the state is pursuing. where pursuit of it materially affects interstate commerce.state’s obective is to promote the economic interests of its own residents. to a 25 mile radius. the safety objective could have been achieved by less burdensome means (e. is “clearly excessive” in light of the purported local benefits. Even though the state’s objective (protection of residents against adulterated milk – health and safety rationale) was permissible. and the regulatory scheme (prohibiting importation so that only regularly-inspected local plants could sell milk) was rationally related to that objective.C.

The regulation was applied to a California Company. i. which were of high quality. but imposed an additional $72.000 (1960) to build an AZ packaging facility. i.00 for each ton “generated outside to AL. Although it applied even to waste transfers within the State as long as they went from one county to another.50 per ton of waster. even it was enacted in furtherance of environmental or other noneconomic motives. 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. The purpose of the requirement was to enhance the reputation and demand for AZ’s cantaloupes. The clearest example of such legislation is a law that overtly blocks the flow of interstate commerce at a State’s borders. the nondiscriminatory AZ regulation would require Bruch Church to spend over $200. it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits. Only if no lessdiscriminatory alternatives are available will the Court uphold such a statute. Taxation of Out-Of-State Waste: The Court is extremely vigilant to ensure that any such taxing scheme is not discriminatory. While the interest is a legitamate one cannot justify the $200. If the state really taxes out-of-state and in-state waste equally. Ex: Pike v. Bruce Church. c.000 to be paid by Bruce Church.” HELD: The Court struck down the statute. which required them to process and package the cantaloupes in AZ rather than at their existing facility in CA. b. Environmental Protectionism: The Court will closely scrutinze any discriminatory or protectionist state action. Thus. the state interest is clearly outweighed by the national interest in 34 . iii.: An AZ statute required that all cantaloupes grown in Arizona must be packaged in AZ. Bruce Church Inc. then there is probably no violation of the Commerce Clause. Inc. 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. 1.Not Facially Discriminatory: The “Clearly Excessive Standard” Undue Burden Test: Where a statute regulates evenhandedly to effectuate a legitamate local public interest. the Court still struck down the statute. v. and its effects on interstate commerce are only incidental.though interstate commerce may be incidentally affected. Inc. In effect. Ex: Chemical Waste Case: An AL law imposed a fee of $26. Ex: Fort Gartiot Sanitary Landfill.. HELD: The statute was invalid under the Dormant Commerce Clause.

The interstate P & I Clause (Distinguish from the P & I Clause of § of the 14th Amen. the state may favor local citizens over out-of-state interests. because such analysis does not consist of a facially discriminatory law. Thus. the State’s plenary power to regulate alcohol under the 21st Amendment was effectively trumped by the dormant commerce clause. a. 2.unencumbered commerce because the burden imposed on this commerce is clearly excessive in relation to the local benefits. Only “fundamental rights” covered: Only rights that are “fundamental to national unity” are covered.” (Toomer v. GENERAL i. Aliens. v.” 1. IV. Ex: TN provides In-State tuition for TN residents. RULE: State power over the regulation of alcohol (21st Amendment) is limited by the nondiscrimination principle of the Commerce Clause. But the general idea is that it is the state’s money and they can use it how they choo se. sovereign States. Art. allowing them to bypass wholesalers and retailers. TEST FOR P & I VIOLATION i. Discriminatory Purpose & Discriminatory Effect fall under this test. Ex: Granholm Case: MI and NY gave preferential treatment to in-state wineries. B. § 1. Regulating in Favor of In-Staters 1. a. Trying to Regulate will give rise to a dormant commerce clause power. It is only with respect to those privileges and immunities bearing on the vitality of the 35 . 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. iv. cl. V. Witsell). and In-stater’s are not protected and do not have standing. ii. ARTICLE IV INTERSTATE PRIVILEGES AND IMMUNITIES CLAUSE A.Dormant Commerce Clause Trumps State Plenary Powers 1. Where the state acts as a market particpant where it buys and sells from and to in-staters. 1: THE CITIZENS OF EACH STATE SHALL BE ENTITLED TO ALL PRIVILEGES AND IMMUNITIES OF CITIZENS IN THE SEVERAL STATES. 2.) prevents states from discriminating against out-of-state 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. The purpose is to “help fuse into one Nation a collection of independent.State as a Subsidizer vs. Const. NOTE: Corporations.

right to practice one’s profession.” and thus are not protected by the P & I Clause. the rule must be the least restrictive means necessary to further the substantial interest. and that 2. and therefore protected whereby discrimination is not allowed. discrimination is permitted. Ex: Alaska requires that Alaskan residents be given an absolute preference over non-residents for all jobs on the Alaskan oil pipeline. a. ii. PIPER – APPLICATION OF THE P & I TEST i. HELD: This scheme does not violate the P & I Clause. non-economic rights are generally not “fundamental to national unity.H. the preference failed because the preference was not closely tailored to the substantial reason (an unemployment problem). 1.Two-Part Test (Limits on P & I Clause): Once the Court concludes that a “fundamental right” is at stake. SUPREME COURT OF NEW HAMPSHIRE V. The State Law issue in this case was a N. Thus. because the right to recreation is not a right that is fundamental to national unity. The clause does not preclude discrimination against non-residents where and if the State can show that: 1. There is a substantial reason for the difference in treatment and the rule burdening out-of-staters. HELD: The N. Supreme Court rule that limited admission to the state bar to residents of the state. (Baldwin v. The discrimination practiced against nonresidents bears a substantial relationship to the States objective. 36 . c. 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. Access to employment is a right fundamental to national unity. bar but was not admitted and brought suit. a. a. Fish and Game Comm’n) i.” a lawyer is not a political officer of the State in any political sense. and the right to engage in business are all fundamental. rule violated the P & I Clause. After applying the two part test below. 1. while non-residents are charged $225.Nation as a single entity that a State must accord residents and nonresidents equal treatment. the Court applies this two-part test to determine whether the discrimination is acceptable. The P passed the N.H. charging higher fees for a commercial fishing license may be prohibited because it is a means of livelihood. HELD: The preference violates the P & I clause.H. Therefore. (Hicklin v. 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. Orbeck) 2. Ex: Montana allows Montana residents to purchase a license for hunting elk and other animals for $30. Recreational Use: Conversely. A Means of Livelihood: Right to be employed. However.

” 2. If carried too far.Be available for court proceedings. IV protectes only those interests considered fundamental rights. Massachusetts Council of Construction Emplyers: The Court uphel a Boston ordinance requiring public work contractors to fill at leas 50% of 37 .Voters? – A: Yes. state parks? – A: Yes.To behave ethically. Dissent: Justice Rehnquist found that the Court’s “lessrestrictive means” test was ill-advised and unmanageable.C. iii. D. these are public officials that exercise state political power. The Court has held that a corporation does not have standing under Art. a. Art. iv. ii. while Article IV only protectes out-ofstate residents. 1. Market Participant: There is no “marketplace” exception to the P & I Clause and thus could proceed on this theory. IV because a Corporation is not considered a “citizen. & The P & I Clause 1.H. HYPO: Could New Hampshire require that its REVIEW i. 1. Two-Part Test a. It is appropriate for state to have state residents only as officials. Alternate Legal Theory – Dormant Commerce Clause: The P could have used a domrnat commerce clause argument because the statute was facially discriminatory. Ex: White v. A: Yes. 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. Distinguishing The D. 4. 4.C. 3. Least Restrictive Mean: They could still be required to do so by the State. they could because this is recreation. 3. he feared an overreaching by judicial review would occur. 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. These first two were thrown out immediately.judges and legislature be only limited to residents of the state? 1. i. iii. 1. Be familiar with local rules and procedures. ii. The Dormant Commerce Clause challenege does not have to be an out-of-stater.N. 2. There is no fundamental right threshold in dormant Commerce Clause doctrine.To do Pro bono work in the State. The state offered these justifications for the law stating that non-resident members would be less likely to: i.

it was a market participant and was not in violation of the dormant Commerce Clause. 1: NEW STATES MAY BE ADMITTED BY THE CONGRESS INTO THIS UNION. iii. cl. 38 . 1. both are warranted.Rules of Thumb 1. STATE SOVEREIGNTY A. A Federal Statute is More Likely To Be Upheld if Congress: a. It gets to decide its own boundaries. Once a State is recognized as a State. iv. IV. Some times. AND JUDICIAL PROCEEDINGS OF EVERY OTHER STATE.all construction jobs with city residents. RECORDS. GENERAL i.When to use the Dormant Commerce Clause and the P & I Clause of Art. Art.Const.Const. Uses Spending Power. BUT NO NEW STATE SHALL BE FORMED OR ERECTED WITHIN THE JURISDICTION OF ANY OTHER STATE. IV 1. WITHOUT THE CONSENT OF THE LEGISLATURES OF THE STATES CONCERNED AS WELL AS OF THE CONGRESS. AND THE EFFECT THEREOF. RECORDS. This provision basically protects the territorial integrity of the States. IV. What result under a P & I analysis? ii. AND PROCEEDINGS SHALL BE PROVED. When Congress attempts to regulate a State as a state entity. AND THE CONGRESS MAY BY GENERAL LAWS PRESCRIBE THE MANNER IN WHICH SUCH ACTS. Limitation on indivudal lberty? – Typically P & I 3. The State itself gets to decide what the boundaries of its own State are. ii. OR PARTS OF STATES. states envoke the doctrine of State Sovereignty. it is theoretically a sovereign entity. NOR ANY STATE BE FORMED BY THE JUNCTION OF TWO OR MORE STATES. 2. Broad based economic regulation – DC VI. Art. §3. §1 (Full Faith and Credit Clause): FULL FAITH AND CREDIT SHALL BE GIVEN IN EACH STATE TO THE PUBLIC ACTS. The Court concluded that since the City’s funds were at issue.

Rationale for Abandoning N. SAN ANTONIO METROPOLITAN TRANSIT AUTHORITY i. Line-Drawing Problem: It is diffcult. Plaintiff argued the ownership and operation of the mass transit system is a traditional governmental function and is exempt/immune from FLSA obligations. Regulates private as well as States.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. 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.L. USERY TEST i. The issue was not whether congress had the power regulate the wage and hour regulation for private entities.C . acting pursuant to its Commerce Power. c. Ex: Federal government forcing state troops need to do affirmative acts to implement some federal regulation. HELD: The Court explicitly overruled National League of Cities and its test and held that SAMTA was not immune from Congressional regulation under FLSA.O. The Federal statute at issue must regulate the “States as states. State compliance with the federal obligation must ‘directly impair the States’ ability ‘to structure integral operations in areas of traditional governmental functions. Commandeers’ State Employees i. RULE: Once Congress.L.O.L. regulates the states. ii. THE c. Test proved as a unworkable line-drawing test because: a. but to state governmental employees.O. A Federal Statute is Less Likely To Be Upheld if b.GARCIA V.C. if not impossible. OVERRULING N.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.C. to identify an organizing principle that would distinguish between those functions that are 39 .’” 3. Exercises Express Preemption Power Congress: a. Test: The 3rd Prong of the N. Regulates Just States. b. Regulates State Employees.” 2.” rather than regulating commercial activities or private persons. 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. 2. The statute must “address matters that are indisputably attributes of state sovereignty.’” 4. NATIONAL LEAGUE OF CITIES V. The relation of state and federal interests must not be such that “the nature of the federal interest…justifies state submission. it is also valid as to the state. c.b. 1. ii.

D. There is no protection against these encroachments on state activities. Too Subjective: Any rule of state immunity that looks to the “traditional. i. United States: Congress enacted the LowLevel Radioactive Waste Policy Amendments Act of 1985. The following cases stand for the propositions that Congress may not (1) force a state to legislate or regulate in a certain way.Use of State’s Lawmaking mechanisms 1.” “integral. Bicameral legislature – Equal Senate Representation: The representatives are from the states and these are cognizant of the state/federal balance. O’Connor’s Dissent: Virtually every state activity arguably affects interstate commerce. The separate sphere of State sovereignty is to act as a counterbalance to the federal government. the State would have been immune to provisions of the FLSA. not by judicially created limitations on federal power.” 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. 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. Ex: New York v. Separation of Powers: There is an overreaching of the judiciary. b. Acting contrary to this. There is a risk that Congress will erase the separation of power between the federal and State governments. NOTE: Under National League of Cities. c. ii. 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. 5. Congress could not intervene in this area of State sovereignty. 2. The Act attempted to force each state to make its own arrangements for disposing (either in-state or our-of-state) 40 . ii.“traditional governmental functions” and those that are not. as the majority did. leave it to Congress to decide if there is overreaching. 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. CUTTIN’ BACK LOPEZ i. However. Powell’Dissent: The majority has made meaningless the Tenth Amendment when Congress acts pursuant to the Commerce Clause. 3. rejects the basic precepts of the federal system. Procedural Safguards a. 4.

it is the federal government. c. the Court did not overrule Garcia. i.of the low-level radioaction waste generated in that state through a series of incentives. Thus. in turn. but laws that require that individual state offices to enforce and impement out federal program. Not just reghulation. No dormant commerce clause/discrimination issue because it is not the states that are enforcing it. Take Title Incentives (INVALID): Vested title to the waste in the state if they did not comply with the regulations.Y. Ex: Printz v. Access Incentive (VALID): Authorized sited states gradually to increase the cost of access for waste generated states that do not meet federal guidelines. They adopted the reasoning of the dissent of Garcia.Upholding Congress’ Laws that only Promote a Minimal Federal Interest 41 . iv. Monetary Incentive (VALID): Provided that states with disposal sites may impose a surcharge on waste from other states. N. iii. and then to deny access altogether. states receive funding. i.Anticommandeering Principle as a Limit on Congressional Power 1. Congress may not force the states to enact federal regulations directly nor may it direct state officials to carry out a federal regulatory program. (Distinguished from Philadelphia case) b. and instead followed the reasoning from the Dissent’s in Garcia. This is true even if the functions are fairly ministerial and esy-to-perform. HELD: The Court held that the 10th Amendment was violated. the state would be liable for damages in connection with the waste. a. i. RULE: While Congress may preempt state law and may enact incentives for states to adopt federally approved standards. Out of fear for being called activists. a. HELD: The Act’s provisions were unconstitutional because it improperly commandeered state executive branch resources to implement the [federal] program. Violates 10th Amendment: The court specifically rejects the “poltical process will work itself out” rationale enunciated in Garcia. 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. and even if the compulsion is only temporary. 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. The state executive resources protected by principles of state sovereignty. Congress’ use of Spending Power.

Describes length of term. § 1 cl. or forces state officials to perform particular governmental functions. i. .accepted federal interest. ii. Ex: Coyle v. succession. Smith: No significant federal interest in deciding where a State’s capital should be. OF POWERS SOURCES OF PRESIDENTIAL (EXECUTIVE) POWER – ARTICLE II a. 1.§ 2 cl. which.g. e. compensation. AND. HE SHALL HOLD HIS OFFICE DURING THE TERM OF FOUR YEARS. and oath of office. 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. 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. II.1 i. But where the federal government tries to force a state or local government to enact legislation or regulation. and thus violates the 10th Amendment. Reconciling Garcia 1. BE ELECTED . AND OF THE MILITIA OF THE 42 . although it intruded into state sovereignty. moving the State capital Regulates private as well as States Regulates State Employees Exercises express preemption of state power. did not reach the deepest core of that concept. qualifications. IV. merely because it is a state that is being regulated along with other private entities. §3. 1 & 2 (War Powers): (1) THE PRESIDENT SHALL BE COMMANDER IN CHIEF OF THE ARMY AND NAVY OF THE UNITED STATES. 1 (Vesting Power) THE EXECUTIVE POWER SHALL BE VESTED IN A PRESIDENT OF THE UNITED STATES OF AMERICA. Violates the anticommandeering principles of Printz PART IV – PRESIDENTIAL POWER & SEPARATION I. Art. this legislation is in the perview of State Soverignty. . a. Garcia seems to apply mainly to generally applicable federal lawmaking (laws that apply to both states and individuals etc. Thus. Art. Const.). State has plenary power to decide where to position its capital. CHOSEN FOR THE SAME TERM. 1. Here the 10th Amendment does not entitle a state’s own operations to an exemption. cl. INHERENT POWERS IN THE CONSTITUTION i. TOGETHER WITH THE VICE PRESIDENT. the election process.

The government contented that this power should be implied from the president’s enumerated powers. OTHER PUBLIC MINISTERS AND CONSULS. and fill vacancies. The steel mill argued that the seizure was not authorized by an act of Congress or a Constitutional Provision. AND BY AND WITH THE ADVICE AND CONSENT OF THE SENATE. v. An Act of Congress ii. The order could not be justified under this provision. PROVIDED TWO THIRDS OF THE SENATORS PRESENT CONCUR. AND HE SHALL NOMINATE.STATES. Sawyer (“The Steel Seizure Case”) – Justice Black’s Formulistic Approach: During the Korean War. Thus. TO MAKE TREATIES. iii. He therefore issued an executive order directing his Secretary of Commerce to seize the mills and operate them under federal direction. Thus. Ex: Youngstreet Sheet & Tube Co. unless the power exercised is constitutionally questionable enough to cause intervention of the legislature or judiciary. Much of the President’s power has been derived implicitly from the explicit constitutional powers above.§ 3 (“Take Care Clause”): …HE SHALL TAKE CARE THAT THE LAWS BE FAITHFULLY EXECUTED… B. Presidential authority comes from either: 1. The steel companies ought an injunction to prevent the seizure. BY AND WITH THE ADVICE AND CONSENT OF THE SENATE. LIMITS ON THE INHERENT POWERS OF THE EXECUTIVE i. or 2. 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.Implied Powers 1. 1. the President is generally free to define the scope of his own authority. Congressional approval of the seizure order was not requested. Describes role as Commander and Chief and the powers to grant pardons. 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. JUDGES OF THE SUPREME COURT. that action will not be rendered unconstitutional merely by the fact that it does not fall within the president’s enumerate powers. AND ALL OTHER OFFICERS OF THE UNITED STATES…. appoint officials. Commander-in-Chief Power: Justice Black rejected this argument. 1. iii. (2) HE SHALL HAVE POWER.No Right to Make Laws: The President may not make laws. make treaties. 2. A direct provision of the Constitution (express or implied). a. EXCEPT IN CASES OF IMPEACHMENT. 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 . he may only carry them out. President Truman sought to avert a strike in the nation’s steel mills. if the Supreme Court conclude that a presidential action is properly regarded as being part of the “executive” sphere. SHALL APPOINT AMBASSADORS.

c. d. the distinction comes in when he tries to do this within the united states. Here.” i. in which case “there is a zone of twilight in which he and Congress may have concurrent authority. 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 . Here.” Valid only if President has an independent source of power and Congress lacks power in this area. or in which its distribution is uncertain. i. in this case. depending on their disjunction or conjunction with those 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. in which case his authority is at its maximum and is valid as long as Federal Government generally has the power. fell into this category because Congress had already covered the field here that provided for different types of seizers. Congressional Silence (Middle Power): Where the President acts in the absence of either a congressional grant or denial of authority.” Silence could be acquiescence. b. Congressional Disapproval (Lowest Power): Where the President acts in contradiction to the express or implied will of Congress. i. 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. interpret on case-by-case basis taking into account the “imperatives of events and contemporary imponderables. his power is “at its lowest ebb. Congressional Approval (Highest Power): Where the President acts pursuant to express or implied authorization of Congress. While the President has broad power to do this in a theater of war. not make them (which is reserved to the legislature in Article I) 2. there was no congressional authority for the seizure. So we are inferring that Congress disapproved of this particular set policy. Congress did not leave the seizure of private property an open field but had three statutory policies inconsistent with the seizure. b. Jacksons felt that the Steel Seizure Case. i. and the executive seizure of the steel industry in particular. Jackson’s Functional Approach (Jackson’s Concurrence): Stated that the President’s powers “are not fixed but fluctuate.” He conceived three categories: a.

” 1.VETO/IMPOUNDMENT POWER a. I. HE SHALL SIGN IT. past presidential actions. because the legislature has this power. TOGETHER WITH THE OBJECTIONS. SHALL… BE PRESENTED TO THE PRESIDENT … IF HE APPROVES. a. executive practice. Historical experience. 1. 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. Takings Clause (Douglas Concurrence): The seizure of the mill is “taking” in the constitutional sense and compensation is required. “Deeply embedded traditional ways of conducting government cannot supplant the Constitution or legislation. a systematic. Separation of power case. Here. long pursued to the knowledge of the Congress and never before questions. The most significant and direct constitutional acknowledgment of the Executive’s legislative function is the President’s veto power. 2. Const Art. BUT IF NOT HE SHALL RETURN IT…. may be treated as a gloss on “executive Power” vested in the President by § 1 of Art. b. 45 . the historical record is barren of instances comparable to the one presented. In short. engaged in by presidents who have also sworn to uphold the constitution. VETO POWER GENERALLY i. 5th amendment Due Process Clause (Jackson’s Concurrence): The “Take Care Clause” must be matched with the 5th Amendment. what has congress done in the past? These types of experience can inform our constitutional interpretation. 3. 2 (Presentment Clause – Approval or Veto of Bills): EVERY BILL WHICH SHALL HAVE PASSED THE HOUSE OF REPRESENTATIVES AND THE SENATE.I. IT SHALL BE SENT.This case could be analyzed as a: 1. THE PRESIDENT’S EXERCISE OF QUASI-LEGISLATIVE POWERS . making as it were such exercise of power part of the structure of our government. TO THE OTHER HOUSE. IF AFTER SUCH RECONSIDERATION TWO THIRDS OF THAT HOUSE SHALL AGREE TO PASS THE BILL. This view is contrasted with Black’s view of where the President gets his power. Thus. but they give meaning to the words of a text or supply them. Thus. The President has no power to raise revenue. Cl. also known as an “Executive Plenary Power. it is the only one that can authorize the seizure. the other gives a private right that authority shall go no farther. unbroken. One gives a governmental authority that reaches so far as there is law. §7. Gloss on the Constitution (Frankfurter’s Concurrence) a. for speaking out against Korean war effort and president jailed people? (#1) iv. II. this is not a recognized executive power. Individual case on constitutional basis.” i.

THE SAME SHALL BE A LAW. HELD: The Line Item Veto Act is unconstitutional because it violated the Presentment Clause. At that point. 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. IF ANY BILL SHALL NOT BE RETURNED PRESIDENT WITHIN TEN DAYS (SUNDAYS EXCEPTED) AFTER IT SHALL HAVE BEEN PRESENTED TO HIM. The process laid down in the Presentment Clause is the only way authorized in the Constitution to enact or repeal a bill. In this situation. 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.BY WHICH IT SHALL LIKEWISE BE RECONSIDERED. the bill becomes law. The City of New York challenged the “spending cancellation” and the Snake River Farmers cooperative challenged the cancellation of a “tax break” provision. The provision gives the President the power to veto any bill passed by Congress. the veto can be overridden (and the measure enacted into law) only by a 2/3 vote in each house. UNLESS THE CONGRESS BY THEIR ADJOURNMENT PREVENT ITS RETURN. 1. ii. that section also provides that if Congress by its adjournment has prevented return of the vetoed legislation. whereas the Presentment clause requires veto of the entire bill.” which the President could veto again.e.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). including an “item of new direct spending” and any “limited tax benefit. The Act: Gave the President the power to “cancel” any of several types of provision contained in statues. rather than before. LIMITS ON PRESIDENTIAL VETO – LINE-ITEM VETO/STATUTORY LINE ITEM VETO i. and then to “cancel” any individual spending or limited tax benefit item he wished. IN LIKE MANNER AS IF HE HAD SIGNED IT. 2. to amend. If the measure is vetoed. However. Ex: Clinton c. If it were valid. 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. 3. or to appeal statutes. the only way Congress could restore the vetoed item was reenact it as a separate “disapproval bill. City of New York: In an effort to control federal spending. provided that he did so within five days after enactment as well as considered other relevant information and followed other procedures. a. the statute cannot go into effect unless the President sigs it. the President is given an absolute veto power (i. IN WHICH CASE IT SHALL NOT BE A LAW. Congress passed the Line Item Veto Act. Violates Presentment Clause: To begin. b. there is not a Constitutional provision that authorizes the President to enact.” The Act allowed the President to sign an entire bill into law. one which cannot be overridden). IT SHALL BECOME A LAW…. it would authorize the President to create a different law – one whose text was not OF THAT BY THE 46 . and (2) The cancellation could apply to only part of the bill. AND IF APPROVED BY TWO THIRDS HOUSE.

The Act allows the President the sole ability to hurt one group that is a visible target and to award another. b. if they occur he can refuse to spend. something it had done many times in the past. Ex: Field v. Separation of Powers Issue (Kennedy Concurrence): 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. Congress merely gave the President the discretion to spend or not to spend an appropriate item. if Congress grants the President authority to spend. NOTE: If the President is to play a different role in the process of enacting legislation. Executive Authority to decline to spend Appropriate Funds v. voted on by either House of Congress or presented to the president for signature. 7. 6. C. 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. IMPOUNDMENT i. Courts are less willing to be flexible to the demands of the modern administrative state. This highly controversial power is exercised when the President delays or refuses to spend Congressionally authorized funding. The law is the functional equivalent of a line item veto and enhances the President’s powers beyond what the Framers would have endorsed. the President can selectively spend or withhold funds on different provisions of a bill.” Instead. 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. 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. b.4. The President can also directly affect legislation through the impoundment of appropriated funds. Unlike the veto or pocket-veto. The Act: a. 5. Historical Argument: Detailed procedure in presentment clause was the result of much debate of the framers. and it only left the determination of whether such events occur up to the president. Thus. but lists factors that. the change should come by a Constitutional Amendment through Article V. Clark: Congress made the decision to suspend or repeal provisions at issue upon the occurrence of particular events subsequent to enactment. this kind of statute is okay. a. 47 . Any change to this is presumptively unconstitutional.

An argument could be made that it falls in the 2nd category. but Court has never ruled on it. OR BEING DISAPPROVED BY HIM. RESOLUTION. This corner or constitutional law has taken a very formalistic approach and has not looked at the underlying practicalities. Court Rulings a. §7 (Presentment Clause) iii. the President must faithfully execute the law. ONE-HOUSE LEGISLATIVE VETO i. reasoning through a narrow view of statutory interpretation and holding that congressional appropriations were mandatory rather than discretionary. The Supreme Court has never passed on it as the statute is a “gloss” on the constitution. The Supreme Court has never ruled on the constitutionality of impoundment. not the President that is regarded as having the “power of the purse” and to enact legislation. in Train v. SHALL BE APPROVED BY HIM. Presidents claim that impoundment power is an inherent II. 3: EVERY ORDER. GENERAL i. 48 . LEGISLATIVE VETO A. However. and over Presidential Veto. I. B. §7. Further. b. §1 (Vesting power in Congress): ALL LEGISLATIVE POWERS HEREIN GRANTED SHALL BE VESTED IN A CONGRESS OF THE UNITED STATES. iii.Const. 1. It recognizes only two forms of impoundment: (1) Deferral of budget authority. I. It is Congress. WHICH SHALL CONSIST OF A SENATE AND HOUSE OF REPRESENTATIVES. Impoundment Control Act of 1974: During Nixon’s broad assertion of this power. the act seemingly defuses the Separation of Powers issue as a compromise between the two branches. Art. AND BEFORE THE SAME SHALL TAKE EFFECT. the court rejected Nixon’s attempt to withhold funds as a matter of statutory construction of the Federal Water Pollution Control Act. Art. cl. and (2) Rescission of budgetary authority. City of New York. 1.Const. ii.power vested in the Executive to control finances and policy. ii. I. 2. Lower federal courts have refused attempts to impound funds. 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. ACCORDING TO THE RULES AND LIMITATIONS PRESCRIBED IN THE CASE OF A BILL. Const. 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. Art.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).

i.This veto is a device that enables Congress to monitor the executive branch and administrative agencies. 1. treatment as a legislative act. ii. and 49 . §§ 1 and 7. in a single body. 3 Reasons for Presentment 1. and Congress disagrees. the veto provision in the original bill allows one or both houses to cancel the action by means of a resolution. would be passed. If. by resolution. i. Prevent the passing of bad laws. without vote. Pursuant to the Immigration and Nationality Act that allowed the Attorney General to suspend deportation. and 3. The deportation proceedings were reopened and the judge implemented the order on Chada. Diffusion of legislative power: Accumulating. an alien.N. 2. or presentment to the President.S. v. Enable the President to defend himself. Such a veto provision is included as part of a statute delegating powers to federal agencies. The Act included a provision allowing this determination to be invalidated by one house of Congress. it violated the bicameral requirement of Art.S. b. overstayed his welcome in the U. because it violated both: (1) The President’s veto power. the fact that the veto mechanism may be a more “efficient” means of controlling administrative action is irrelevant. Chada): Chada.Thus. Veto Rule Unconstitutional (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). Violation of Presentment Clause: Every bill must be presented to the President for signature. 2. the immigration judge held that Chada met its requirements and thus Chada should not be deported. by which both house must pass a bill before it can become law. Violation the Bicameralism: Since this type of veto could be exercised by a single house. Reasons for Bicameralism 1. The lawmaking power is shared by both Congress and the President. and the framers explicitly assured that these requirements not be circumvented for fear that a “resolution” or “vote. HELD: The Supreme Court held that a typical one-house legislative veto was unconstitutional. Assuring that the national perspective is grafted on the legislative process. and (2) The Bicameral structure of Congress. a. all the most important prerogatives of sovereignty could cause special interests to be favored at the expense of public needs. after an agency takes a certain action (issuance of a regulation). which is not presented to the President for an opportunity to veto it. The House considered the decision and reversed. I.” rather than a bill. so that he may have the opportunity to veto it.

I §2. Chada: Here.3. the requirements are triggered because this is legislative action.Art. ii. 2: The Senate alone was given unreviewable power to ratify treaties negotiated by the President. Independent Regulatory Agencies: These things are created by an act of Congress but they are not located within the executive branch. instead. 2. iv. administrative decision by passing a law. Formalistic Approach: Even when bicameralism is satisfied and presentment is arguably c. If a decision is made by them. An action is subject to these requirements when: i. they are supposed to be independent. 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. iii. Bush is still in office and it is unlikely he will sign it. 6: The Senate alone was given the power to conduct trials following impeachment. Presentment is true when there is a requirement of bicameralism. or ii.Art. Art. cl. I. i. Can they pass this? No. 2: The Senate alone was given final unreviewable power to approve or to disapprove Presidential appointments. §3.The purpose of the challenged provision can only be achieved by legislation. cl. since both types of clauses deprive the President of his veto power. cl. However. §2. overruling the Attorney General’s decision on deportation constituted legislative action outside the legislative branch. e. alone was given the power to initiate impeachment. Legislative Action: Not every action taken by either house is subject to bicameralism and presentment. It alters someone’s legal status. 1. Consequence: Thus. 5: The House of Rep. cl. a. there is still no room for a legislative veto. in the constitutionally formalistic procedure (passage by both houses and presentment to the President. i. Opportunity for debate and study in separate settings. §2. HYPO: What if the House passed a resolution that condemned Bush’s action in Katrina. 2. While this is not a violation of the separation of powers. Uni-Cameral Powers (Textual Argument): The Constitution prescribes 4 instances where either House can act alone outside its bicameral legislative role. it will not be presented to the President nor can the President remove the independent Agency. II.Art. Congress can only reverse an 50 . d.

I. §1 requires that these powers be vested in Congress. b. Presidential Veto 1.S. This doctrine involves the interaction between the legislative function and the administrative state. ii. Violates Bicameralism and Presentment b. during the Time for which he was elected. the dissent noted that because the agency was truly independent. Ex: Clinton v. the Court still says this it is a legislative act and must comport with constitutional Procedure. which shall consist of a Senate and House of Representatives ii.Line Item Veto invalid 1. or the Emoluments whereof shall have been encreased during such time. the legislative veto would not interfere with the President’s control over the agencies. 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. New York iii. Must be presentment and bicameralism. § 1 (Vesting Power of Congress): All legislative Powers herein granted shall be vested in a Congress of the United States. and no Person holding any Office under the United States.N. CONGRESSIONAL DELEGATION OF QUASI-LEGISLATIVE POWER TO “INDEPENDENT REGULATORY AGENCIES” OR OFFICERS A. shall be a Member of either House during his Continuance in Office. be appointed to any civil Office under the Authority of the United States. Consumers Energy Council (FTC and Federal Energy Regulatory Commission): However. Must be a legislative act c. cl. While the Constitution is silent on the issue of Congressional delegation to the Executive.Const Art.Post Chada Cases 1. the regulations based by them have the force of law without the President’s concurrence or veto power. Art. Ex: Process Gas Consumers Group v. GENERAL i. Independent Agencies III. Art. it must meet bicameralism and presentment. If an act is a legislative act.uninvolved. I. ii. THE NONDELEGATION DOCTRINE i. 1. 3. Thus. Two-House Legislative Veto 2. Ex: I. explain the reasons for these requirements. v. Chada a. § 6. Const. 1. which shall have been created.Legislative Veto invalid 1. REVIEW i. C. iv. 2: No Senator or Representative shall.Restrictive View 51 .

and employee wage and hour limits. Ex: Panama Refining Co. v. v. 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.” and “public interest” standards. 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.” 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. 1. Ryan: The Court invalidated a 52 . unfair competition. would we be justified in overriding its choice of means for effecting its declared purpose preventing inflation. (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. which allowed an agency to fix maximum process of commodities and rents to prevent wartime inflation. etc. v. iv. §1. clear rules. It mandated that the prices set be “fair and equitable. United States): This modern approach to delegation of authority to agencies of the Executive Branch involved a challenge to the Emergency Price Control Act.” v. Justice Renhquist. United States to Yakus): “Only if we could say that there is an absence of standards for the guidance of the Administrator’s action. The Court has upheld statutes authorizing the Executive to promulgate regulations on vague “fair. Modern Formulation of the Intelligible Principle Standard (From J. HYPO: Could Congress start a new session on first day. so that it would be impossible in a proper proceeding to ascertain whether the will of Congress has been obeyed.W. 2. 1. C.Modern Non-Delegation Doctrine (Yakus v. Hampton.” HELD: The Court upheld the statute stating that there were proper penal guidelines. 1. (4) Need for Predictability. Ex: Schecter Poultry Corp. 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.The Death of the Nondelegation Doctrine: The two cases above are the only ones where the Court has invalidated statutes under the Doctrine. SEPARATION OF POWERS ISSUE – APPOINTMENT AND REMOVAL OF EXECUTIVE PERSONNEL 1.” “reasonable. (3) Congressional Accountability. in Industrial Union Department v. Art.Reviving the Non-Delegation Doctrine: Schecter has never been followed. Jr & Co. American Petroleum Institute. This may be an instance where the Court could revive the doctrine by looking at: (1) Const. but has also not been overruled. iii.

she could only be removed by the Attorney. Congress reserved to itself the right to remove the officer for specified reasons. the Act is invalid. 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. Similar separation of powers issues can be presented by action that takes place at the boundary line between Congress and the Judicial Branch. so long as the removal restrictions are not of such a nature that they impeded the President’s ability to perform his constitutional duty. RULE: Congress may not reserve to itself the power to remove an executive officer. an executive power. The Attorney General could only terminate the independent counsel for “good cause”. While the nondelegation doctrine has been ignored. and conversely.General Rule: The Judicial Branch’s role cannot be abridged by action of one of the other branches. This. By Separate older legislation.of powers issues underlying the legislative delegation of power remain significant. i. 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. In determining whether there is a violation of separation of powers. namely the Comptroller General. ii. a. INTERFERENCE WITH. HELD: The Court struck down statute because it gave the budget cutting power. to a legislative entity. THE JUDICIAL BRANCH i. look at the underlying motive of the legislation. 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. Once the special prosecutor was appointed. ii. the separation 53 .Removal by Congress 1. or the boundary between the Executive and Judicial Branches. A three-judge panel appointed the special prosecutor. separation of powers issues arise when Congress delegates law-making power to the President or interferes with the President’s powers. functions that are the appropriate job of the other two branches cannot be given instead to the Judicial Branch.Congress Restricting Executive Power of Removal 1. was a legislative entity because he could be removed by Congress and could not constitutionally exercise the powers given to him by the Act. Ex: Morrison v. iii. d. RULE: Congress may limit the President’s right to remove a purely executive officer. As shown above.G. and thus the President retained the power to make sure she was acting competently. The C. Ex: Bowsher v. The Act gave a key role to an “independent” government officer in carrying out the automatic cut provisions: The Comptroller General. OR UNDUE DELEGATION TO. a.

Delegation of Legislative Powers 1. and (2) As long as moonlighting does not undermine the integrity or impartiality of the judicial branch. a. (2) “Twilight Area” of nonadjudicatory activities of the Judical Branch – While the judicial power is limited to “cases” and “controversies. Composition of the Commission: The Act does not impermissibly interfere with judiciary because: (1) Text of 54 . Thus. HELD: The Court upheld the Commission. the Commission is located in the Judicial Branch. Non-Delegation Doctrine: P’s argued that Congress granted the Commission excessive legislative discretion. Here. 2. 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). RULE: Congress has flexibility in assigning the Judicial Branch tasks that might be considered law-making ones. i. and thus did not violate the intelligible principal standard from Yakus. 2. at least where the subject matter (1) Relates to the role of the courts. United States: The United States Sentencing Commission. Plaintiffs argued that Congress was assigning to the judges on the Commission not the job of interpreting the law (a proper judicial role). was supposed to develop mandatory guidelines that federal judges would have to apply in setting sentences for federal crimes. set up by Congress. Sentencing is a particular judicial function that is shared by the Branches and falls in this category (i. Ex: Mistretta v.Separation of Powers: There is no danger of encroachment or aggrandizement or erosion of the integrity of the judicial branch because: 1. at least 3 must be federal judges. The Court found no violation because the guidelines were definite and specified. ii.e.” there exists a constitutional area in which separate Branches merge. 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. Analogy to Federal Rules of Civil Procedure). but the law-making job of making sentencing guidelines (a legislative function).iii.

1. but the President. iii. Undemocratic – There is no remedy if we do not like these guidelines.Scalia Dissent: (1) The rules are binding as law and the judge who disregards them will be reversed. d. Art. GENERAL – THE WAR POWER i. III decisions). cl. Judges are not elected and have life tenor 4. 3. § 2. Examples of additional powers of judges: a. i. 2) Congress has the initial power to declare war and maintain armed forces.e. cl. As seen below. (3) Not mandatory. § 8. Contrast the Court’s Functional Approach in Mistretta to its “Formalistic Approach” in Chada. (2) The courts should not have any legislative power. 3. or in any way diminish the status of the Article III judges as judges. Power to discipline attorneys. 11-16 & Const.Criminal Contempt: Fines IV. Civil Contempt: Jail until you comply ii.Constitutions does not have an Incompatibility Clause applicable to the judiciary like there is for the legislature (Art. 1 & cl. b. (2) Historical Argument (i. John Marshall being Secretary of State and Chief Justice). (Const. but voluntary acceptance on part of Judges. §6. 5. cls. Are there dangers in giving judges powers beyond article III? a. by use of his 55 . II. Art. (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. Push for unreasonably harsh or lenient guidelines. THE WAR AND MILITARY POWERS AND THE COMMANDER-IN-CHIEF A. Presidential Control: The Act does not authorize the President to remove. Power to appoint an independent prosecutor. No Advisory Opinions. 1. Power to appoint contempt attorneys to prosecute contemptees. 2). c. b.

Overview 1. a. 12 – Raise & Support armies c. WHEN CALLED INTO THE ACTUAL SERVICE OF THE UNITED STATES …. 2. Cl. Art. ii. Const. defensive situations the President should be able to act unilaterally for the nation. b. Congress doesn’t like this and passes a statute cutting military funding. Cl. 1: THE PRESIDENT SHALL BE COMMANDER IN CHIEF OF THE ARMY AND NAVY OF THE UNITED STATES.The War Power . a. CONSTITUTIONAL PROVISIONS i. Presidents have not really followed this resolution since it was enacted.Commander-in-Chief power over the Army and Navy. They claim it is an unconstitutional encroachment on executive authority. Cl. 15 – Calling Forth Militia f.§2 Purpose and Policy 1. (a) Congressional declaration: Insures that the collective judgments of both the Congress and the President will apply to the introduction of U. Sudden Attack: It is settled that the President may commit our armed forces to repel a sudden attack on the U. ii. limitations: The President’s power to introduce forces can only be exercised pursuant to: (1) a declaration 56 . B. 13 – Provide & maintain a Navy d. (c) Presidential executive power as Commander-inChief. §8: a. The conflict arises between the gray area between repulsion of sudden attack and a full-scale war. Cl. Opponents of the Resolution argue that in temporary.S. 11 – Declare War b. Cl. Attacks on allies: Unclear b. ii.S. 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. Art. 16 – Organizing Militia C. a. 14 – Make Rules Re: Land & Naval Forces e. Cl. A: The Court may not even get involved because it is a Political Question. Preemptive strike: Unclear 2. and (2) the President’s right to detain and try enemy combatants who have been captured.Congress 1. §2. Cl.Separation of Powers issues arises to ways: (1) The President’s right to commit our armed forces abroad without congressional approval. Const. 3. I. Judicial Solution?: Although the President has committed American armed forces to military action without declaration of war. the courts have rarely passed on the constitutionality of such action because Congress has acquiesced in such action. II. forces into hostilities. itself. THE WAR POWERS RESOLUTION – THE PRESIDENT’S RIGHT TO COMMIT OUR ARMED FORCES ABROAD WITHOUT CONGRESSIONAL APPROVAL i. or into situations where imminent involvement of hostilities is clearly indicated by the circumstances . AND OF THE MILITIA OF THE SEVERAL STATES. carries out any war that is so declared.

It was undisputed that defendants were involved in attempted sabotage. U. However. 11. III federal courts. 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..S. and must regularly consult Congress thereafter until they are withdrawn. organizations.Authorization for Use of Military Force Act (“AUMF”): “[T]he President is authorized to use all necessary and appropriate force against those nations. initial and regular consultations: In every instance possible. the president must terminate and withdraw the troops unless: (1) Congress has declared war or has enacted specific legislation. .S.S. or aided the terrorist attacks that occurred on Sept. HELD: The Court stated that the initial capture was authorized by Congress in AUMF. Armed Forces: Notwithstanding (b). 1. (b): If Congress does not affirmatively authorize within 60 days. (2) specific statutory authorization. citizen was captured in Afghanistan and detained incommunicado in a military brig in the U.§5 Congressional action . PRESIDENT’S RIGHT TO DETAIN AND TRY ENEMY COMBATANTS WHO HAVE BEEN CAPTURED i.S. (c): Concurrent resolution for removal by President of the U.S.S. 2. the President must consult Congress before introducing armed forces. NOTE on Older Detainee Cases: (1) Ex Parte Milligan (Civil War Case): People who were agitating around war effort were detained. iii. (2) Ex: Quirin Case (Nazi Saboteur case): Gov’t has power to detain U. iv. Ex: Hamdi. 1. citizens in non-rebelling states have right to be tried in civilian courts. 57 . The Defendant was accused of being a spy (not an actual belligerent) but denied charge. v. such forces shall be removed by the President if the Congress so directs by concurrent resolution. its territories or possessions. by such nations. D. organizations. without Congress’ consent. .” iii. or persons he determines planned.S. Rumsfeld (Procedural Due Process): A U. not military commissions. citizens in military jurisdiction if they have violated “laws of war” (defined under internat’l law).§3 Consultation. ii. or its armed forces.§4 Reporting requirement: Whenever the President introduces forces with Congress’ declaration. 2001…in order to prevent any future acts of international terrorism against the U. authorized.of war. and then once every 6 months thereafter. at anytime Armed Forces are engaged in hostilities outside the US. or (3) Is physically unable to meet as a result of an attack on the U.S. or persons.“Combatant Detainees” Decisions: In these decisions. committed. Such persons get habeas corpus review in Art. the Supreme Court considered the due process and separation of powers issues arising out of the war in Afghanistan. As long as civilian courts are open. v. he must submit a written report within 48 hours to Congress. (2) has extended by law the 60 day period. or (3) a national emergency created by attack upon the U.

prevents communication with others in the terrorist network 2. Policy for Having Detainees Held Incommunicado: Prevents them from talking or discussing plans with the outside world. etc.e. HELD: Invalid. This decision only struck down that portion of the act that stripped federal judges from reviewing due process concerns. b. a. Const. The rights of the defendants would be much narrower in these tribunals (i. Uniform Code of Military Justice which. and (3) The Commissions violated Geneva Convention. 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. This act stripped the federal courts of jurisdiction to hear habeas corpus claims by “enemy combatants. I. the Act basically overruled Hamdan. Ex: Boumediene v.” In essence. Rumsfeld (2004) (Military Commissions): Following the cases above. NOTE: Here. including process. a. the Bush Administration sought to “try” certain “detainees” (Hamdan) in “military commission tribunals” rather than Article III court or courtmartial. The Court employed a functional analysis derived from its prior precedents examining several factors. cl. Congress gave the Executive the authority to have military commissions where the procedural standards were lower than regular trials. RULE: Enemy combatants are entitled to. III judges the jurisdiction to review due process objections.“a fair opportunity to rebut” before a “neutral decisionmaker” b. Ex: Hamdan v. 2: THE PRIVILEGE OF THE WRIT OF HABEAS CORPUS SHALL NOT BE SUSPENDED.minimum: i. UNLESS WHEN IN CASES OF REBELLION OR INVASION THE PUBLIC SAFETY MAY REQUIRE IT. Art. or any other congressional act. evidence is considered secret? 3. a.. accused and counsel could be excluded from the proceeding. § 9. The Act gave the President authority for these commissions and stripped from Art. The Court found that detainees have habeas rights and that the Military Commission procedures are not adequate for habeas review. which is binding authority. b. at a 58 . could be barred from learning was evidence was presented. Left undecided who was going to be a neutral decision-maker and what kind of counsel and presumptions would be available to detainee. by its Uniform Procedures rule appeared to bar such tribunals unless they followed the same procedures used in court martial “insofar as practicable”(“UCMJ”). Bush (2008) (Suspension of Habeas Corpus Rights): In 2006. Presumptive of guilt. “notice of the factual basis for the classification” and ii. Congress responded to the Hamdan decision and passed the Military Commission Act (“MCA”).

B. 1. a. EXECUTIVE PRIVILEGE. The Court will balance the two interests (i. and (2) the independence of the Executive Branch insulates these situations from the judicial sphere. How 4. Rationale: (1) The President cannot be too preoccupied with stepping on toes and not performing his duties. a number of people were illegally investigated and harassed as enemies of Nixon. III. diplomatic. A grand jury had named Nixon an unindicted coconspirator and the lower court issued a subpoena requiring the attorney to turn over certain tapes. Criminal Prosecution: There is no executive immunity. Instead. Ex: Nixon v. if criminal crimes are committed while in office. Separation of Powers Inapplicable: See Marbury v. discovery process. etc. (2) The president would be distracted by the onslaught of litigation. He sued Nixon for a violation of his 1st Amendment rights. EXECUTIVE PRIVILEGE FOR CONFIDENTIAL INFORMATION i. IMMUNITIES a. Balancing Test – Requirement Of In Camera Hearings: Compulsory process must be available for the production of evidence. 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. Ex: United States v. the 59 . a. and this need for justice typically outweighs an assertion of confidentiality. there is no absolute privilege. RULE: Absent a claim of need to protect military.g. subpoenas). II powers. 2. only a presumptive privilege or “qualified immunity” that will more than likely be outweighed by the role of the courts under Art. (Separation of Powers).e. HELD: No.e. Fitzgerald: The P contended that he had been fired from his Defense Department job in retaliation for his testimony against the military. would it jeopordize national security. Nixon: The Watergate tapes revelaed that acting with the knowledge of Nixon. there is no general doctrine making the President or other members of the Executive Branch immune from the judicial process (e. 3. Madison. 2. 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. or sensitive national security secrets. 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. PRESIDENTIAL CIVIL IMMUNITY/LIABILITY i.V. 1. 3. the presumption of privilege and the need for the evidence). ISSUE: Whether the president had unqualified immunity from the judicial proceess. Privilege Exists: There is indeed a privilege for confidentiality of Presidential communications in the exercise of Art.

See Harlow v. Court denies the Executive's motion for a stay pending appeal. a. he could be sued for the crime after he is out of office.S. She filed a claim of executive privilege.” 2. House of Representatives (“Committee”) to provide testimony. iii. ii.President will more than likely be impeached. is not absolutely immune from compliance with congressional subpoenas and must therefore appear before the Committee on the Judiciary of the U. Rationale: (1) The pincipal rationale for affording certain public servants immunity from suits is inapplicable to unofficial conduct. Fitzgerald b. 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. Stay pending Appeal. Ex: United States v. (2) If the allegedly tortious act took place prior to the time when President took office. In a given instance. then absolute civil immunity in Nixon does not apply. RULE: Executive Branch officials are immune from civil liability for official acts. Fitzgerald 2. i. 1. (2) There is no separation of powers issue because allowing the claim was not encroaching on the Executive Functionl. 1. Miers was required to respond to the subpoena. Miers was White House Counsel and Congress wanted Miers to testify regarding the firings. Concern in Granting Executive Privilege: Want the President to have candor and unfettered 60 . Ex: Clinton v. Ex: Harlow v. unless these acts are shown to violate “clearly established law. Congressional Subpoenas: Presidential Advisors still have only qualified immunity.S. but there is a qualified immunity.” of which. Can claim executive privilege on a question-byquestion basis. a reasonable person should have been aware. a. c. Miers: White House fired U. Jones: Involved a private damages suit by Paula Jones against Clinton while he was in office.Civil Immunity of Presidential Advisors – Qualified Immunity: There is no absolute immunity. (3) there is no privilege to “temporary immunity” and the President can be sued while in office.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. Order provided that Harriet Miers. Attorneys. 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). Also. 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. Thus. 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-


2. 3.



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


the post-election state-court actions must not frustrate the legislative desire to attain the “safe-harbor” provision. The Dissent in Bush also poined out that the provisions of Art. Irreparable harm [if the recount was finished]. If a state finalizes its Electoral College vote 6 days before meeting of the Electoral College. b. Balance of harms to the various parties i. Likelihood of success on the merits. so it could take advantage of the safe harbor provision. §5 – Safe Harbor Provision a. 7. Congress cannot challenge its vote. Stay/preliminary injunction: Remember the factors for granting a stay/preliminary injunction in Miers. and. 6.C.of weight on the fact that it was a Presidential Election. In Bush. Florida Election Code required certification by this deadline. II powers are to be respected. therefore. Supreme Court interrupted an ongoing recount – must show these things for stay: a. Gore. Weighed in favor of stopping the recount and deciding whether the recount could continue in the second Bush v. c. II Timing Problems: 3 U. the State court jeopardized the “legislative wish” to take advantage of the safe-harbor provision by extending the deadline. 1.S. RULE: If the legislature’s Art. Public interest. Art. 64 . d. II and the 12th Amendment demonstrate that there is a “textual commitment” of Electoral College disputes to Congress. i. the federal courts should avoid this. b. There was no time to remedy the equal protection violation and still be within the Safe Harbor Deadline.

NLRB where the Court held that a Shopping center owner excluding individuals from distributing handbills was engaged in a private action. LIBERTY. not state action. Self-Incrimination. these provisions do not apply to private actions that are not tied to the state or its agents.” ii. it became state action because its management of the entire town was a governmental function. 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. the Court must decide whether the action is really attributable to the state. Due Process of Law. 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. Grand Jury Indictment for Capital Crimes. Just Compensation for Property B. Public Function Doctrine: The private actor may be conducting a government function. white primaries. 1. Double Jeopardy. POLICY: In their private dealings. . . Amen. 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. THE ACCUSED SHALL ENJOY THE RIGHT TO A SPEEDY AND PUBLIC TRIAL. Three theories by which ostensibly private conduct can be treated as state action are: a. 65 . 2. 1. i. replicating similar characteristic of a city.PART V – PROCEDURAL DUE PROCESS I. While the land was private. or acting as a surrogate for the state (e. §1 of the 14th Amendment applies only to action by the state. “company town”). Ex: Terry v. 1. Thus. Const. NOR SHALL ANY STATE DEPRIVE ANY PERSON OF LIFE. PROCEDURAL DUE PROCESS A. ii. V. OR PROPERTY. State Action Requirement: By its terms.): IN ALL CRIMINAL PROSECUTIONS. Amen.g.Ex: Marsh v. WITHOUT DUE PROCESS OF LAW. BY AN IMPARTIAL JURY OF THE STATE AND DISTRICT WHEREIN THE CRIME SHALL HAVE BEEN COMMITTED . 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. When private conduct is intertwined with government action. THE BASIC PROCEDURAL STRUCTURE OF DUE PROCESS AS A PROTECTION AGAINST STATE ACTION i.Const. Contrast with Hudgens v. GENERAL i. (Applies to the Federal Gov. and thus did not fall under due process.

b.” This provision enables Congress to protect civil rights against private conduct that would not otherwise be reached by the constitution. States have a considerable interest in the right to experiment and alter certain procedures. The state may be involved deeply enough or “inextricably intertwined” in the private action so that it should be characterized as governmental action (e.Congressional Enforcement Due Process: §5 of the 14th Amendment gives Congress power to “enforce” the 14th Amen. i.Incorporation Doctrine (See Below) C. and this discrimination was state action with Moose Lodge No.Total Incorporation: The theory that the Due Process Clause simply applied the entire Bill of Rights to the states. but the shop was located in a space leased from the city. And Jackson v. While nearly all 2. Compare Burton v. as being so important that if a state denies these rights. 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. c.g. Consolidated Edison 66 . Wilmington Parking Authority: A private business discriminated against blacks. by “appropriate legislation. Ex: Shelly v. While this is simple and consistent. i. iii. 1.p.. ii. when it cut off electrical service to a customer. liberty or property without due process.c.HYPO: Private parking company leased federal parking garage and was discriminatory. state leases the property & has business ties). it was only limited to the federal government.C. 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. restrictive covenants. ii.” Nearly all the guarantees of the Bill of rights have been interpreted by the S.where the Court held that a private corporation did not perform a government function by conducting a utility business. Kraemer: Court holds racially discriminatory restrictive covenants for private housing is a state action when they were enforced by the State. and it was not bound by the d.” ii. The state may have encouraged or validated the private action to such an extent that it becomes state action (e. The amendment requires that the states not deprive anyone of “life.g.. 107 v. it has in effect taken away an aspect of “liberty. THEORIES OF INCORPORATION i. the Supreme Court has consistently declined to adopt it.

it is the 14th Amendment Due Process Clause that provides the limit against state interference with these “fundamental” rights.Selective Incorporation/Fundamental Rights: Under this approach. c. to confrontation of opposing witness. to a speedy and public trial. 2nd Amendment. b. If incorporated. then state/federal distinction immaterial. 14th Amend. and religion covered by the 1st Amend. d. 5th Amendment: Right not to be subject to a criminal trial without a grand jury indictment. and the 6th Amendment rights to counsel. ii. that right is “selectively incorporated” into the meaning of due process. 67 . Right to Compensation for property taken by state. i. press. and thus binding on the states.rights have been incorporated into the meaning of due process. but not a criminal case. 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. Rights Currently Covered: i.Right guaranteed by the 5th Amendment to be free of compelled self-incrimination. P & I Clause: NO STATE SHALL MAKE OR ENFORCE ANY LAW WHICH SHALL ABRIDGE THE PRIVILEGES OR IMMUNITIES OF CITIZENS OF THE UNITED STATES. Connecticut) 2.4th Amend. each right in the Bill of Rights is examined to see whether it is of “fundamental importance. iii. Louisiana: Louisiana stated that the Constitution imposes on the state no duty to give a jury trial in a criminal case. Instead. rights to be free from unreasonable search and seizure and to have excluded from criminal trials any evidence illegally seized. the following have not: a. d. Ex: Duncan v. and to compulsory process fro obtaining witnesses. iv.. b. 3rd Amendment. 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. Pre-Duncan Test: A right is fundamental if it is “implicit in the concept of ordered liberty.” (Palko v. It is not the amendments that limit the state.” If so. 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. Failure of the Privileges and Immunities Clause of the 14th Amendment i.Rights of speech. 1. iii.

” 68 .” such that they may not be impaired without procedural due process. a. which could therefore not be taken without procedural due process. Only when “life. we are concerned with just what types of interests are deemed to be ones in “liberty” or “property. or taxpayer’s denied a tax exemption.). Ex: Goldberg v. which are federal in nature (rights through being citizens of the U. Thus. arrest. TWO BASIC QUESTIONS i. The Court distinguished cases of discharged governmental employees. access to federal waterways. he must have a “legitimate claim of entitlement” to it. This was the area of benefits flowing from the public sector.” not a “right”.Growth in the 70’s entitlements: During the 70s. elimination of the welfare benefits at issue would deprive the claimant “of the very means to live. are protected.S. or even a “unilateral expectation” of it. The Court traditionally took the view that such items were a “privilege. The clause merely forbids state infringement of the rights of national citizenship. parental rights. the protection afforded by this provision is a very narrow grant and only rights. Ex: Leave or reentry to country. “liberty” or “property” are being taken is the government required to act with procedural correctness. including governmental employment and monetary benefits (welfare). not rights of state citizenship. Here. The Due Process Clause does not bar the government from procedural irregularities per se. iv. v. PROPERTY AND LIBERTY INTERESTS A. Physical punishments (by government). rather. II. GENERAL i.ii. B. 1.The Supreme Court has narrowed the meaning (Slaughter House cases) to relative obscurity. Is there a cognizable Liberty or Property interest being deprived? 1. ii. (prisoner does not have liberty interest while in jail only unusual hardship). 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. transfer of prisoner from jail to mental institution. iii.Property: Such an interest does not exist merely because the individual has a “need” for a benefit.Liberty: Physical liberty. Thus. 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. mental institution. all of whom had no constitutional right to a prior hearing. and that they could therefore be withdrawn without procedural irregularity. Property Interest in government benefits to which you are ENTITLED. Kelly (Welfare Benefits): The Court held that when public assistance is terminated.Before 1970: There was one notable area in which the Court was reluctant to find that a “liberty” or “property” interest existed.

not state law. The importance of the interest was determined as a matter federal law. 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. Ex: Bishop v. which would give him tenure. 1. i. 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. the statute should be interpreted as an at-will termination. 1. Dicta: If there was public disclosure of discharge and a broader tarnishing of i. The state court held that. not those required by due process. 1. Property Interest in continued government employment if it is not “at will” employment.essential to a person’s livelihood or simply an important interest was a form of liberty or property to which due process was attached. prisoners. The Court rejected this argument and held that while it may make him somewhat less attractive to other employers.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. or if he is negligent. gave him a sufficient expectance of continued employment to constitute a protected property interest. under state law. ii. Applies to claims made by governmental employees. Petitioner argued that the statute should read as a “for cause” termination rather than an at-will. The court further contended that the 14th Amen. 2. This is irrelevant in the courts eyes. licensees. and debtors. RULE: Any governmental benefit that was 69 . the Court held that they were not going to examine the state-law issue because the state court’s interpretation was tenable. 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. Here. it would stretch the concept of “liberty” too far because the Petitioner had the opportunity to seek another job. inefficient. a. students. 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. or unfit to perform his duties. does not necessarily cover ill-advised management decisions. and that in so doing.

Ex: If a person were detained or put in jail.If so. ii. 3.g.. then there may be a restriction on your liberty interest. Liberty Interest in any tangible restriction on your liberty (e. detention). this would be a deprivation of a liberty interest. what process is due? (See Below) 70 .reputation. a.

Balancing Test (Mathews v. if any. Private Interests: Unlike the welfare payments at issue in Goldberg. The private interest that will be affected by the official action (so that the bigger the individual’s stake in the outcome. except death cases. Appeal – Generally no right to one. based upon a determination of recovery. though not same person involved in decision. The Court reasoned as follows: a. Notice – “Reasonably calculated …to apprise affected persons” 2. the more safeguards would be required). 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.C. can’t have financial stake in outcome. Impartial decision-maker – Might be official of same agency. 1. once granted. Freedom from arbitrary decisions 7. iii. for termination of parental rights & involuntary civil commitment: clear and convincing. the issue becomes: What process is due? ii. Eldridge: The Supreme Court held that termination of disability benefits under the Social Security Act.” consider: a. in which the costs of requiring a particular set of procedures will be weighed against the benefits from the use of those procedures. 6. Proof/Evidence – For criminal: reasonable doubt. Counsel – Usually can bring attorney at own expense. normally should involve notice. of additional or substitute procedural safeguards (The risk of error that the outcome will be wrong if the extra procedural safeguard(s) not added). Ex: Mathews v. does not require a pretermination evidentiary hearing. decisionmaker states reasons for decision. 3. government will pay in criminal cases with jail time. b. The government interest. involuntary civil commitment. opportunity to confront witnesses. Once the court concludes that a constitutionally-protected “liberty” or “property” interest has been impaired. present evidence. must follow reasonable due process. extreme and complex civil cases like termination of parental rights. THE PROCESS THAT IS DUE i. So. and the probable value. 2. 4. To determine “what process is due. The risk of an erroneous deprivation of such interest through the procedures used. and c. 5. including the function involved and the fiscal and administrative burden that the additional or substitute procedural requirement would entail.Components Observed in this Section 1. the disability payments were less likely to be the individual’s sole source of income and caused only limited deprivation. Eldridge): The Court’s present view may be summarized as calling for use of a balancing test. Hearing – If required. so his stake was lower than in 71 .

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. under all the circumstances.Notice 1. Moreover. The Court held that he had a liberty or property interest in his employment. and an opportunity to present his side of the story. the right to an evidentiary hearing. the Act proscribed an effective process for asserting claims prior to administrative action.): Notice reasonably calculated. i. 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. However. Here. 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. the risk of error was low. DISSENT: There is no distinction between the way in which you find financial need and medical diagnosis. Ex: Cleveland Bd. Central Hanover Bank & Trust Co. c. 3. the employer would continue to receive the benefits of the employee’s labor. Thus. i. 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. the burden would be substantial. the plaintiff would have a chance to appeal. DISSENT: There was real financial need. conserving scarce fiscal and administrative resources is a factor to be weighed. V. which assessment could probably be evaluated through written documents rather than oral testimony.Goldberg. and subsequent judicial review. Loudermill: A public-sector employee was fired for allegedly dishonestly answering that he was an exfelon. i. b. an explanation of evidence. General Standard (Mullane v. to apprise interested parties of the pendency of 72 . Here. Of Ed. The court did not require a full evidentiary hearing. instead he was entitled to notice. Substantial weight must be given to the good faith judgments of Congress in the procedures they have provided. The court also noted the erroneous deprivation factor and said the until the matter is settled. iv. 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. The ultimate balance involves fairness in administrative action.

v. Thus. including service. Flowers: Notice of tax sale on property sent by certified mail to taxpayer insufficient when certified mail was returned as “unclaimed. Lindsey: The Court disallowed service by posting on the tenant’s door in eviction proceedings. Ex: Goldberg v. i. the Supreme Court allows the use of ex parte seizure without notice if: a.the action and afford them an opportunity to present their objections. and c. Kelly: After determining that due process required a pre-termination evidentiary. Connecticut): The Court held unconstitutional a system that required an average fee of $60. 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 Alaska Supreme Court held that reasonable calculation required that a form of summons adequately inform the affected person of their rights and obligation. or exigent circumstances 4. garnishment. Montgomery Ward Co. The appraisal must be in terms understandable to a lay person of their rights. Prejudgment Seizure: When Can It Be Done Without Notice (Connecticut v. Thus.): In interpreting its constitution. Ex: A terrorist would have the right to have notice of what the facts he is being charged of. a. as applied to an indigent. Unduly Expensive Notice Requirement (Boddie v. Doehr): Seizure by attachment. An effective opportunity to defend by (1) Confronting any adverse witnesses. to bring a divorce action. NOTE Ratification of Private Action (Shelly v. What Should be contained in the Notice (Aguchak v. since notices were “not infrequently” removed by children. b. Posting should be accompanied by mailed service. 73 . 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. b. Compelling. it must: a. Ex: Jones v. b. Be at a meaningful time and in a meaningful manner. Give the recipient timely and adequate notice detailing the reasons for a proposed termination. Ex: Greene v. Neutral Decision-making. and c.Hearing 1. 2. Kramer): Private action here is considered state action because the state courts would enforce the eviction judgment. Instead.” c. 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). Sworn supporting testimony. 3. and (2) by presenting arguments and evidence orally.

HELD: Reversed. vii. DISSENT: Pointed out that the state is extinguishing the parent-child relationship and i. although it need not amount to a full opinion or even formal findings of fact and conclusions of law. Ex: Santosky v. Governmental Interests: (1) a parens patriae interest in preserving and promoting the welfare of children. f.e. the D had her parental rights terminated for “willfully leaving her child in foster care. Evidence Development.” Lassiter. a.capacities of those who are to be heard (i. (2) Risk of erroneous deprivation may be high to an uncounselled parent in a complex proceeding. Ex: Lassiter v.Proof Standard (Proof by the Opponent. Decision maker should state reasons for determination and indicate the evidence relied on. NY law required only a “fair preponderance of the evidence” standard. (3) Government’s interest in correct decision and a weak pecuniary interest. Counsel doesn’t have to be provided. Impartial Decision-maker i. and indigent. and (2) fiscal and administrative interests in reducing the cost and burden of such proceedings. vi.” (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. claimed a due process denial in that the state was not required to provide counsel for her in the termination proceeding. a higher standard is consistent with both interests. stated that the correct standard was “clear and convincing evidence. Kramer: The Santoskys were convicted of permanently neglecting their children and their parental rights were terminated. Minimal involvement will not bar participation as decision-maker. c. 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. b. Department of Social Services: After being convicted of brutal murder. Here. The Court applied the Mathews test: (1) parent’s interests in child rights and danger of criminal liability. e. Thus. the interest is substantial. The Supreme Court. and Discovery) 1. 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. after applying the Mathews factors. but recipient must be allowed to retain an attorney. Written submissions unrealistic for those who lack education or professional assistance) d. Private Interests: Parental rights are a fundamental right. The opportunity must be tailored to the 74 . and here. the state seeks to end them.Counsel 1.

not technically going to jail) iii.Counsel could have made a determinative difference b. Ohio Principle: If a decision maker has a direct.Expert witness testified. substantial pecuniary interest in reaching a conclusion against a criminal defendant. If it is a civil case (Losing parental rights where it is complex). There are other exceptions – Complex case involving involuntary civil commitment (crazy bin) (You are losing your liberty. the Due Process Clause of the 14th Amendment is violated because the defendant is deprived of due process of law. a. clear and true between the state and the accused.thus the private interest was extremely high. Village of Monroeville: Petitioner was convicted of a traffic offense in the Mayor’s Court. In all situations. v. ii.e. risk of jail time – the Supreme Court holds that you are entitled to have an attorney paid for at the expense of the state). In other words. holding that the Mayor could not act in a disinterested judicial capacity. The Government is required to provide counsel: i. HELD: The Supreme Court reversed the Ohio Supreme Court. personal. 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. iv. who presided over the court. a decision maker can personally line his pockets with proceeds if there is a guilty verdict. c. Therefore. you are entitled to bring a lawyer if you can afford one. a major part of whose income was derived from the fines imposed by him on his Mayor’s Court. then due process is violated. General Rule: Need not be someone outside agency entirely.Neutral/Impartial Decision-Maker 1. Ex: Ward v. If the termination proceeding involved complex issue(s). 1. 75 .If there are allegations upon which criminal charges could be based (i. viii. then generally no attorney provided. the state’s interest does not outweigh. or which might lead him not to hold the balance nice. b. the government would not provide one. also was the chief executive of the village. a. He claimed a violation of due process because the Mayor. Tumey v.Particular troublesome points of law. but not someone initially involved in making the administrative determination. There is also a tiny separation of powers issue (even though it is a state – The Executive branch is making judicial decisions). d. In Goldberg.

i. Ex: Goldberg v. the Court held that the punitive damages award violated BMW’s procedural due process. if the state creates a right to appeal. it may be a violation of due process. a. RULE: There is no specific right to appeal in either criminal or civil proceedings. 3. and c. the court noted that the fact that it was a large corporation did not diminish its entitlement to fair notice. a. ix. A prime example is that in some circumstances. Three Guideposts: (1) Reprehensible conduct not present. Gore: Gore learned that his BMW had actually been repainted after being exposed to acid rain. (Abney v.The Contours of Appeal Rights 1. (2) The punitive damages were 500 times larger than actual damages. Grossly Excessive Standard: In addition to these factors.Freedom from Arbitrary Application of Law 1. BMW’s policy allowed for the reselling of the car and not disclosing the repairs to the purchaser. if a decision is arbitrary. the higher the amount of punitive damages that may be awarded without violating due process. 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.000 in actual damages and $4 million in punitive damages (1. The lower court awarded Gore $4. DISSENT: The 14th Amendment only provides an opportunity to contest the reasonableness of the award in state court. (3) This remedy is substantially greater than other statutory fines in the state. The disparity between the actual harm and the punitive damages award. various due process rights attach.acted as a judge but not an individual official who was involved in the pre-determination of terminating the benefits. b. BMW infliction on Gore was purely economic in nature. However.000 (cars with same repairs) x $4. Ex: BMW v. x. the award of punitive damages may grossly excessive that it violates a defendant’s due process rights. EXCEPTION: Death penalty – Due Process Clause and the 8th Amendment (Cruel and unusual i. Three Guideposts guide the Court in determining if a punitive damages award will be grossly excessive and be in violation of due process: a. United States) a. 2. The award was later reduced to $2 million (500 times more) HELD: Following the guideposts. There is no federal guarantee that they actually be reasonable. The more reprehensible the conduct. Also.000 (diminished value)). Kelly: A welfare official could have 76 . The Degree of Reprehensibility of the nondisclosure. The difference between the current remedy and the civil penalties authorized or imposed in comparable cases for comparable misconduct.

i. 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. See Hamdan Case – No secret evidence or presumption of guilt. 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. (2) Is there a presumption of guilt against you?. noting that it was an “important procedural safeguard against arbitrariness and caprice. i. the court upheld capital punishment in GA. 14th Amendment Incorporation Doctrine: Incorporates selected provisions of the Bill of Rights. 2.” However.Unanswered Procedural Due Process Questions: (1) Can they use secret evidence against you?. (3) Being held incommunicado? 1. RULE: Once granted. Georgia. Dugger.punishment): In Gregg v. the court did not condition an appeal as due process. Gore) xi. 77 .” If so. Ex: Could a state decide that appeals in civil cases would be decided by coin toss? See also Presidential Elections (Bush v.Review 1. how is it that the constitution prevents them from doing it? a. What makes it different in this situation? Is it because we are in war? xii. the court actually vacated a death penalty sentence because the state’s appellate review was inadequate. 2. ask yourself if it is “implicit in scheme of American scheme of justice. Presumption of guilt: Nowhere in American jurisprudence do we impose a presumption of guilt. TEST: Whether a right is considered to be fundamental. When a state in involved in abridging free speech or religion or unreasonable search and seizure. the state must follow reasonable due process whereby appellate review is not administered in an arbitrary or irrational manner. In Parker v. which had an automatic right of appeal.

that are so fundamental that one or more of the opentextured provision of the Constitution may be interpreted to protect them. Ex: Right to vote in state elections. 2.): This era has been critzicized as unwarranted judicial action.Non-Textual “Fundamental” Rights (Unenumerated Rights): 1. Ex: Pierce v. liberty of parent to direct the upbringing and education of their children. OVERVIEW i. invalided a state law requiring children to go to public school recognizing a basic.See The Lochner Era (Laissez fair etc. While some fundamental rights are explicitly protected by the constitution. OR PROPERTY. iv. 14. GENERAL A. The Court found that “liberty” as used in the 14th amendment included many non-econoimc rights. 3. there are some rights. a. The Court held that the law had no “reasonable relation” to any end within the competency of the state. although non-textual. Courts require: a. WITHOUT DUE PROCESS OF LAW…” ii. 78 . When a particular right or interest is protected by the Constitution and is deemed fundamental (as opposed to an economic right).Constitutional Test – Strict Scrutiny Test 1. (Narrow Tailoring) iii. right to marry. Nebraska: The Court invalidated a state law that prohibited the teaching of foreign languages to children.C. LIBERTY. § 1: “… NOR SHALL ANY STATE DEPRIVE ANY PERSON OF LIFE. 2. NOTE: From these early cases.History leading to the Modern Fundamental Rights View 1. we see the court recognizing unenumerated fundamental rights and also applying different tests (Rational Basis Test in Meyer) v. Amen. Const. and b. the Court applies a stricter scrutiny of statutes impinging upon these fundamental rights. but nonetheless rights (right to teach and acquire knowledge). although not explicit in the text. Demonstrate that the government’s means are necessary to the achievement of the compelling interest. States to demonstrate a “compelling” state interest to support such a statute. Society of Sisters: S. The same “fundamental rights test (strict scrutiny)” applies as with the enumerated rights.PART VI – SUBSTANTIVE DUE PROCESS I. Ex: Meyer v.

The Court focused on the equal protection clause of the 14th Amendment instead of the Due Process Clause. Connecticut: The statute at issue in Griswold was a state law which forbade the use of contraceptives (and made this use a criminal offense).” (This would probably be struck down today) b. the Court found that the right of married persons to use contraceptives fell within this penumbra. formed by emanations from those guarantees that help give them life and substance. RIGHT TO PRIVACY: BRITH CONTROL AND THE BASIC STRUCTURE OF MODERN SUBSTANTIVE DUE PROCESS – A FUNDAMENTAL UNENUMERATED RIGHT i.” defined as a person three times convicted of a felony involving moral terpidutude. In Griswold. The very idea [of intruding into the bedroom] is repulsive to the notions of privacy surrounding the marriage relationship. the Act provided that certain offenses. a. 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. HELD: The Court invalided the forced sterilization for recidivists. 2. Ex: Skinner v. The first major modern-era case which used a substantive-due-process approach to protect a fundamental right was Griswold v. would not be considered. i. Penumbras & Emanations: The specific guarantees in the Bill of Rights have penumbras. Bell): The Court actually upheld a law allowing involuntary sterilization of retards stating that “three generations of imbeciles are enough. REPORDUCTION. (The Famous Contraceptives Case) 1. However. New York). married or single. HELD: The Court struck down the state statute. FUNDAMENTAL RIGHT TO REPRODUCE i. Collectively. They were convicted of counseling married persons in the use of contraceptives.II. No users. Ex: Griswold v. While not making explicit use of the substantive due process doctrine (Refusing to follow Lochner v. were charged in the case. the statute also forbade the aiding or counseling of others in their use. The defendants were the director of the local Planned Parenthood Association and its medical director. the following Amendments establish a zone in which “privacy is protected from governmental intrusion”: 79 . ABORTION. The various guarantees create zones of privacy. 3. which authorized the sexual sterilization of a “habitual criminal. AND SEXUAL CONDUCT A. such as embezzlements. However. 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. 1. OK: The Court invalidated OK’s Habitual Criminal Sterilization Act. Conn. NOTE on Sterilization of mental Defectives: (Ex: Buck v.

and Mapp. only those rights explicitly protected by a specific bill of rights or other constitutional provion were protected by the 14th amendment. There is no constitutional right of privacy. 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. NOTE: The Majority noted cases like Pierce. The concept of liberty protects these personal rights that are fundamental. and didn’t fit the test. penumbra of the right of association. c. Generally how you decied if there is an unenumerated right: i. Tradition. Meyer.4. First Amendement: The emanation of free speech has a 80 . is a freedom. 5. e. though. 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.Specific guarantees in text of the Constitution. Hpwever. 7. a. 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. b. if reasonably necessary for the effectuation of a legitamate and substantial state interest. 6. He concluded that certain rights that were implicit in the concept of ordered liberty should receive heightened scrutiny. iii. papers. are not invalid. this law was drawn to broadly. 8. and is not confined to the specific terms of the Bill of Rights. d. 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. ii. 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. to find that unenumerated fundamental rights had been found to be protected in the constitution. Ninth Amendment: Provides the enumeration in the Constitution. a. Goldberg’s Concurrence (Ninth Amendment): Connecticut’s birth control law unconstitutionally intrudes upon the right of marital privacy. The “right of privacy” didn’t fall into this category.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. Privacy – Possible Sources. and not arbitrary or capricious. Thus. Fourth Amendment: The ban on unreasonable searches has a penumbra which protects a privacy interest is being secure in your houses. of certain rights shall not be construed to deny or disparage others retained by the people. White’s Concurrence: State laws. Boyd. etc.

1—Prior US debts valid. cl. Stewarts’ Dissent: Accepted the idea that the statute was 81 . the doctor’s office or a hotel room).Post-Griswold 1. Sec 9. VI. 2. the rights must be the same for the unmarried and the married alike.e. Search and Seizure Reasoning Lacks Persuasive Force: No search was involved in this case. iii. it is the right of the individual. 4. Sec 1. cl. Sec 9. but is there really a basis for the distinction? a. How do you avoid the Lochner Era if you extend the right of judges to find prenumbras in other areas? 5. Art. Persuasiveness of the Penumbra Hypothesis: Use of emanations to discern a penumbra that does not partake of the expression of any provision is questionable. . but the result might be equally legitimate yet absurd in consequences. for anyone other than a physician to distribute them. Ex: Carey v. Baird (Expansion to all Individuals): Whatever the rights of the individual to access contraceptives may be.Criticizing Griswold and the Penumbra Theory 1. What about the other economic Const. Lack of a Principled Basis for Distinguishing Economic Rights: The majority distinguished substantive due process cases in the economic sphere. to be free from unwarranted government instrusion into matters so fundamentally affecting a person as the decision to reproduce. cl.” c. 4—No tax unless proportionate to census. If the right of privacy means anything. For example. 2. 3. Ex: Eisentadt b.Art. Population Services International: A NY statute made it a crime to distrubte contraceptives to minors under 16.Art I. cl. and prohibited their advertisement. proisions? i. § 10. Result Oriented Reasoning: Result reached independently of logic. 6. I. 5—No tax exports from State. Art. married or single.” b. The P was a corporation engaged in the mail order retail sale of nonmedical contraceptives.“unwise” and even “asinine. HELD: The right of reproductive autonomy exists even in non-private situations (i. ii. I. Amend. iii.” He argued that there was no basis for judicial action and would have left it to the political process. ii. Why Not Infer Other Penumbras?: Other penumbras could be inferred using the same reasoning. 9. can one infer a penumbra of free enterprise. making businesses immune from regulation? a. nor shall private property be taken for public use. . Lack of Principled Bases for Distinguishing Fundamental Rights: Griswold criticized for the dependence upon idiosyncratic preferences of judges. without just compensation. 1 (Contracts Clause): “No State shall… pass any …law impairing the obligation of contracts. 5 (Takings Clause): “.

4. the privacy rationale may be more strongly based than it otherwise appears. and they fall more heavily upon the poor than upon the wealthy. which recognized that the right limits the legislature’s freedom to regulate abortion. Contradictory implications seem likely (i. Penumbra Rationale: This doctrine is not wholly lacking in legitimacy. extending the reasoning to adultery. 5. Casey. However. Lack of Limits and Inconsistency in Implications: No 82 .e. Natural Law: Social compact underlying the Constitution created certain natural rights. the consequences of pregnancy fall far more heavily upon women than upon men. Planned Parenthood v. 3.e. ii. 8. iv. homosexuality. i. cut back the effect of Wade. Right to travel between states and Right to travel on federal waterways. this clause was not readily available to individuals who challenged statutes like Griswolds. It would take compelling circumstances to order the exam. Co. 7. Carhart.discernible limits. Avoiding State Imposition of Religious Values. doesn’t the doctrine of separation of powers emanate from the structure of the constitution? What about Congress’ implied powers? 2. and Gonzales v. NOTE Ex: Union Pacific R. the Supreme Court interpreted the P & I clause in a very narrow meaning in the Slaughter House Cases. However. Difficulty of Avoiding Unacceptable Results if Not Protected: If we did not recognize some protection of unenumerated fundamental rights. Wade. The right of privacy found in Griswold has been extended to the abortion context in Roe v. C. The P & I Clause: Privileges of Immunities clause of the 14th amendment could be argued as a substantive due process clause. Thus. Equal Treatment of Men and Women or Rich and Poor: Without birth control. etc. There is some historical eveidence that the framers intended for life liberty and pursuit of happiness through the privilege and immunities clause. etc. 1. Constitutional right to be free from a court ordered surgical exam for P as part of discovery. They put great import on “of citizens of United states” and held it only applies to those right inherit to national citizenship (i.Ex: Roe v. the statute at issue in Skinner would be constitutional. ABORTION AND SUBSTANTIVE DUE PROCESS i. There is an argment that these cases could have been decided under the clause instead of creating substantive due process. Botsford (1891): The Supreme Court recognized the right of personal privacy (bodily integrity) does exist under constitution. Fourth Amendment Right to Be Secure in One’s Person: If one emphasizes personal security protected by the amendment.) a. Wade: The statute at issue made it a crime to “procure an abortion” or to attempt one.Defending the Griswold Reasoning 1. except with respect to saving the 7. where the court drew the line).e. 6. v. Importance of Marital and Sexual Privacy.

Thus. that these rights are implicit in the concept of ordered liberty.mother’s life. Rationale: The motality rate for mothers having abortions in the 1st term is lower than the rate for full-term pregancies. Court’s Reliance on Precedent: Premised upon the right of privacy. 1. or in the 9th Amendment’s reservation of rights to the people. At some point in pregnancy. i. i.” the physician and the patient are free to determine. 2nd Trimester – Safeguarding maternal health. a flat ban on abortion during the second trimester. the Court pointed to Griswold. A state may not ban. State’s interest in protecting prenatal life. Unenumerated Fundamental Right: The Consitution does not mention any right of privacy.Rationale: The motality rate for mothers is higher that normal birth. Maintaining medical standards a. Only when the mother’s life is at stake should the interest be weighed in favor of the mother. iii. there is no valid interest in protecting the mother. Prior to this “compelling point. State’s Historical Justifications for Statute: a. and may not completely proscribe. When most abortion laws were enacted. that the patient’s pregnancy should be terminated. the Court struck down the statute because of its nearly complete ban on abortions. Discourage illicit sexual conduct. Therefore. 2. 1st Trimester – Protection of Right of Privacy a. Ex: A requirement that the operation take place in a hospital rather than a clinic. Pierce.No protection of the fetus: But the state may not protect the fetus’ life during this period (i. The state may protect its interest in the mother’s health. Modern techniques have altered the situation. licensing. by regulating procedure in ways that are “reasonably related” to the preservation and protection of maternal health. three respective state interests become sufficiently compelling to sustain regulation of the factors that govern the abortion decision: 1. or even closely regulate. the procedure was hazardous for a woman. c. but whether it be found in the 14th Amendment’s concept of personal liberty and restrictions on state action. HELD: The Court held that a woman’s right to privacy is a fundamental right under the 14th Amendment. ii.e. etc.The “Compelling Point” Trimester Test: The Court found that the woman’s right is not absolute. abortions. Loving. Based on the argument that human life is present from the moment of conception.) 83 . without regulation by the State. iii. 3. b. 2. Therefore the legislature has only a limited right to regulate. and Meyer. abortions. these encompass a woman’s decision whether to terminate her pregnancy.

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)


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.


Normally. 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. b. Informed Consent (VALID): Penn. 1. b. although the Court does not expressly state whether abortion remains a fundamental right. Post-Viability (Viability is still the standard): Once the fetus is viable. all of Pennsylvania’s restrictions – except the spousal notification requirement – did not impose an undue burden and. this is the only time the state can place a substantial obstacle.Applying the Standard in Casey: 1. 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 . it now changes the standard of this unenumerated right. a. (E. This test indicated that a Court must consider the “effect” of a regulation when deciding whether the regulation was an undue burden. 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. Reporting Requirement for Clinics (VALID) 2. with the application of this undue burden test. including prohibition (except life/health of the mother). Spousal notification—INVALID because undue burden a. 24 Hour Waiting period (VALID) c. is less strict – does not have the narrowly tailored. 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. Now. v. Parental Consent w/ judicial bypass (VALID) d. by its terms. This standard. would be upheld. 2. Under the undue burden analysis. The spousal notification requirement was found to constitute an undue burden. when a right is determined unenumerated (not in the text of the Constitution).No More Strict Scrutiny? 1. it would have to pass the strict scrutiny test.iii.g What is the effect of the spousal notification requirement? This provided a basis for striking down the provision). iv. in order for the Court to find it a fundamental right. statue required info on the risks of abortion versus the risks of childbirth and the age of the fetus. least restrictive means test that is present in strict scrutiny. therefore. a.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. c.

Right of the Husband?? vi. Further. 2. There has been reliance on the availability of abortion in the event that contraception should fail. Old rule proven unworkable? a. While the effect of reliance on Roe cannot be exactly measured. Congressional opponents succeeded in securing a federal law banning the intact D&E procedure. Court held that the absence of a health exception did not mean the Act was unconstitutional. but they have no bearing on the validity of Roe’s central holding. undermining its legal reasoning by subsequent doctrine? a. 3. these facts do not support overturning Roe. abortion. neither can the certain cost of overruling Roe for people who have ordered their thinking and living around that case be dismissed. b. Dissent: Rebuts with Plessy v. undermining factual assumptions. but pre-viable.Stare Decisis Test 1. including the regular D&E. The Roe Court stated that although the facts have changed. 88 . Time has overtaken some of Roe’s factual assumptions. Roe rule had not proven unworkable. Material change in facts?: Whether facts have so changed as to have robbed the old rule of significant application or justification. Supreme Court upheld the act. After Bush took office. Related principles of law developed to make old rule “remnant of an abandoned doctrine”?: Has the law developed past the precedent. while allowing other abortion procedures. The Court said that one change was that viability is now earlier and lateterm abortions are safer. a. 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. Carhart (2007) “Carhart II”: The Supreme Court struck down a statute prohibiting doctors from using an abortion procedure known as intact dilation and evacuation. Dissent also says that if they overrule.and thus the spousal notification requirement was held invalid as an undue burden. i. 4. vii. the Court held that the Act did not impose a substantial obstacle on a woman seeking a late-term. a. they had not changed enough. The Roe Court finds no evolution of the legal principles since Roe.NOTE: Partial-Birth Abortion 1. separate but equal case. Ex: Gonzales v. women can immediately start relying on the new rule. However. Ferguson.

It does not involve whether the government must give formal recognition to any relationship that homosexuals seeks to enter. which was prevalent on the face of the amendment is not a legitimate state interest. 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. (Gay Marriage) 3. c. Liberty of Intimate Association: Ability to choose to engage in certain intimate conduct and relationships. the Court did not find that this right was fundamental. Limit on Liberty: The Court limited its holding and described the various types of statutes that were not covered by the Lawrence decision: a. 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. d. Therefore. 89 . The Court analyzed the issue as whether the Federal Constitution confers a fundamental right upon homsexuals to engage in sodomy. expression. Minors. and certain intimate conduct. HELD: The Supreme Court struck down the statute under the 14th Amendment Due Process Clause through the substantive due procees doctrine. Ex: Bowers v. TEXAS i. Freedom extends beyond patial bounds. and thus did not apply strict scruity. 1. Persons who might be injured or coerced or who are situated in a relationship where consent might not be easily refused. 2. B. the statute did not violate the Due Process Clause. is within the liberty of persons to choose without being punished at criminals. b. SEXUAL INTIMACY A. Liberty presumes an autonomy of self that includes freedom of thought. belief. Evans: Colorado amended its constitution by a state-wide referendum that said local government entities could not enact gay rights ordinances. whether or not entitled to formal recognition in the law. PRE-LAWRENCE DECISIONS i. 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. ii. When they arrived.Ex: Romer v. a. Rational Basis Review: The Court never explicitly said that this liberty was a fundamental right. they discovered the two men having sex. The statutes do seek to control a personal relationship that. Public Conduct or Prostitution. Hardwick: A GA law prohibited sodomy amongst all people.I. LAWRENCE V. HELD: The Supreme Court invalidated the amendment under an equal protection analysis. However. Houston police responded to a disturbance at the apartment of the D’s. The Court noted that anomisty towards homosexual. Thus. the inquiry stops here because the law failed the rational basis test.

Since Bowers.Adultery. Therefore. the home. Nowhere does the Court declare that homosexual sodomy is a fundamental right. iv. v. 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. he feelt that this decision is the end to all moral legislation such as laws against: i. a. and it is not correct today. Scalia is unwilling to recognize this as a fundamental right. Thus. Old rule proven unworkable? 1. the Court has reaffirmed rights of privacy (Casey) and affirmed in Romer the targeting of homsexuals. iii. sexual behavior.Adult incest. Thus.Beastiality. 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. it was not correct when it was decided. the State has a legitimate interest that would survive rational basis review.Material Change in Facts 1.legitimate state interest which can justify its intrusion into the personal and private life of the individual. This same interest is seen in other types of legislation that have been upheld in the past. ii. touching upon the most private human conduct. Stare Decisis Test from Casey: i. a. and a. i. Fornication. Counter Argument: Because there is not even a legitimate state interest. Overrules Bowers: The Bowers Court was incorrect in its evaluation of the right at stake.Reliance hardship 1. there is no need to go to strict scrutiny. 2.Related principles of law developed to make old rule “remnant of an abandoned doctrine”? iv.Bigamy. Laws like the one in Bowers have far reaching consequences. 2. 1. Thus. Bowers has been seriously eroded by case law. Also looked at the European Court of Human Rights. 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. and in the most private places. iii. 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. ii. The Court stated that the Texas statute furthers no 90 . but now would not survive rational basis review.

or marriage. none of the abovementioned can survive the rational basis standard of review. City’s need to control traffic. 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. or to raise their children in a certain way and that desire being interfered with by the state’s desire to regulate zoning. The Court has extended substantive due process rights to situations involving an individual’s desire to live together. she reached the same result as the majority. 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. East Cleveland: A zoning b. Rational Basis: Also applies a rational basis review under the Equal Protection Clause. it should be by the people and not imposed by a governing caste that knows best (i. either it will stand because everyone’s ok with it. or it will be overruled because everyone will be mad. limited cohabitation to the spouse. parents. HELD: The Court upheld the statute. unmarried children. moral disapproval is not a sufficient rationale under the Equal Protection Clause to justify a law that discriminates among groups of persons. not to sodomy between opposite-sex partners. Without any other asserted state interest. or not more than two unrelated persons. and overcrowding. 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. 3.Obscenity.e. The rational basis standard for equal protection is the same as rational basis for substantive due process. therefore. Thus. The definition of “family. 2. ii.” i. to marry. A. Ex: Village of Belle Terre v. the Court inappropriately allowed gays to achieve judicially what they had been unable to achieve politically in Texas. Boraas: The village adopted a land use restriction that limited land use to single-family dwellings. O’Connor’s Concurrence (Equal Protection): The Texas statute here applied only to sodomy between same-sex partners. Ex: Moore v. adoption. living and cooking together as a single house-keeping unit. a. Shortcutting of Democratic Process/Gay Agenda: Texas is well within its range of traditional democratic action.Zoning & the “Non-Nuclear Family” 1. If the promotion of majoritarian sexual morality is not a legitimate state interest. If the statute was spread across the entire population equally. similar to Belle Terre. The statute defined family to mean one or more persons related by blood. FAMILY INTEGRITY i. the Supreme Court). aesthetic standards.” as used in 91 . If the law should be repealed. a.

prevented the plaintiff from living with her two grandsons. Moore distinguished from Belle Terre: The Court in Belle Terre upheld a zoning restriction that excluded most groups of unrelated people. her new hubby. c. HELD: The Court struck down the ordinance under the substantive due process doctrine of the Due Process Clause of the 14th Amendment.the ordinance. It is this distinction is what makes it unconstitutional. The State advanced the following interests: 1. but the extended family is what was in trouble. Fundamental Right of Family Composition: The right of members of a family. unrelated persons had no “fundamental” right to live together. i. not the rights of individuals to choose with whom they live. to live together was a liberty interest. At any rate. the closeness of fit of assertive ends and the means employed by which to achieve these ends are of an insufficient type. in-law Grandpa George H. even a non-nuclear one.W. plus daughter Barbara and newborn Rudy. Strict Scrutiny Review/Intermediate Scrutiny: The Court did not explicitly say that this was a fundamental right. and it has been argued that either standard was applied.” the ordinance served them marginally at best. Avoiding an undue financial burden on school system. 4. the Court found that while the State interests were “important or ligitamate. a. Prevent Overcrowding. 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. Extended Family Protected b. RIGHT TO MARRY 92 . who were first cousins (it would have been okay if they were brothers). 3. Thus. 2. Reconciliation: In Moore. that has fundamental status. In other words. The student should observed whether the law is underinclusive or overinclusive. 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.. & newborn Newt. However. 3. i. HYPO: Laura Bush lives with husband George W. it is family relations. daughter Jenna.NOTE: This is an example of a regulation that is not “narrowly tailored” to governmental ends. Question: Can they all live together in Belle Terre? In East Cleveland? B. Minimize traffic. Bush. Thus. i. Parking congestion. ii. the nuclear family was okay. a.

e. or racial minorities. the right to marry is a fundamental right.” but that the state’s method of furthering these interests unnecessarily interfered with the fundamental right to marry. Ex: Edwards v. This rights has been analyzed under: (1) The Dormant Commerce Clause. a. in particular. morals. there is still a limit to a state’s legislative activity. 1. Equal Protection: This case is important because it signifies that. RIGHT TO INTERSTATE TRAVEL i. (3) The P & I Clause of the 14th Amendment. b. were not be able to exert political pressure on the Cali legislature to change the policy. Dormant Commerce Clause Analysis (Majority): Congress’ Plenary Power over commerce includes transportation of persons. Strict Scrutiny: Applying strict scrutiny.” Edwards was convicted for bringin his poor brother-in-law into Cali. religious. Redhail: The P attacked a Wisconsin law which required 93 . national. 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. influx of migrants resulting in problems of health. the indigent nonresidents. a public charge (i. 2. 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 statute fails under any known test of the validity of State interference with interstate commerce. a. HELD: The Court stuck down the statute under the the Due Process Clause of the 14th Amendment. the Court concluded that the state’s interests were “legitimate and substantial.e. and was not likely to become. Here. this prohibition is not within the state’s police power. (2) The Substantive Due Process Doctrine. knowing him to be an indigent person. and finance). one that is incident to national citizenship protected by the P & I Clause. 1. supported by welfare).” In Edwards. While the state may justify a statute of this type as a proper exercise of its police power (i. Ex: Zablocki v. i. 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. and (2) a demonstration that the child was not currently. who are the real victims of the statute. NOTE – Structural Argument: The Carolene Products case listed as a favorable category for judicial review “Review of statutes directed at “discrete and insular minorities. c. Thus. even without an equal protection analysis. the State is attempting to isolate itself from the difficulties to all states by restraining access to its borders. is guilty of a misdemeanor.C. 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. and (5) the 5th Amendment.

b. ii. Missouri Dept. but the hospital refused to do so without a court order. States can ban assisted suicide without substantive due process problems. (Cruzan) 3. Ex: Aptheker v. Terminally-ill patients do not have a general liberty interest/right in physician assisted suicide. Thus. 3. Ex: Haig v.g. i. Foreign/International Travel a. Nancy Cruzan had spent years in a persistent vegetative state resulting from a car accident. 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. for legitimate national security interests. 2. General Principles 1. D. 5th Amendment: The Right to Travel abroad is an 94 . 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. (Glucksberg) a. ii. HELD: The State’s continuation of life-sustaining procedures did not violate Nancy’s 14th Amendment rights. RULE: Government has some authority to regulate travel. A competent adult has a 14th Amendment “liberty” interest in not being forced to undergo unwanted medical procedures. including artificial life-sustaining measures.important aspect of the “liberty” guaranteed by the Due Process Clause of the fifth Amendment.The democrative political process is well suited for this debate to continue. (Cruzan) 2. The Missouri Supreme Court held that the parents did not meet this burden and sustained the hospital's refusal. 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. Based this on the ground that his travel was likely to cause serious damage to national security. Thus.States can also allow assisted suicide.“Pullin’ the Plug” – Ex: Cruzan v. iii. the 5th and 14th Amendment prohibits the state or the federal government from unduely infringing this right. and taking the measures necessary to drive them out of the countries where they are operating. Secretary of State: The Court struck down a provision of the Subversive Activities Control Act prohibiting members of Communist organizations from applying for passports. Limit on Right to Travel a. Her parents asked the hospital to remove artificial nutrition and hydration tubes. e. The Parent’s claimed that Nancy had a 14th Amendment right not to be kept alive by life-sustaining treatment. The state has an important countervailing interest in preserving life. free from federal government interference. based on federalism concerns. State’s Concern/Political Process i. of Health: The Court addressed the issue of when family members of an unresponsive person could decide to with draw life-sustaining medical measures.

Dicta: The Court stated that for purposes of this case. Probably includes life-sustaining treatment: It is not clear if this is a “fundamental” right or what standard of review applies.Physician Assisted Suicide – Ex: Washinton v.” The statement was insuffient to pass the standard. a. Clear and Convincing Standard Constitutional: When an individual is incompetent and on life sustaining medical treatment. 1. and need not remain neutral—can tilt scales toward keeping patient alive. 3. the parent’s evidence was Nancy Cruzan's past statement that she would not want to live as a "vegetable. which requires the democratic majority to accept for themselves and their loved ones what they impose on you and me. 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. i. 5. Brennan Dissent: The only legitimate state interest here is ensuring that the patient's wishes are followed. maybe a preponderance of evidence. the State cannot stand in the way. But what is to prevent the legislatures from going to far? The Equal Protection law saves us. 4.” a nonprofit organization in Washington that provides counseling to terminally ill adults who are contemplating 1. 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. 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. 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. a substantial state interest. b. a. This is reaffirmed by Glucksberg. so this is probably the case. In Cruzan. iii. it would abrogate the clear and convincing evidentiary burden. they would assume that the United States Constitution would grant a competent person a constitutionally protected right to refuse lifesaving hydration and nutrition. 2. Scalia Concurrence: We ought to leave this issue to the legislatures. Glucksberg: “Compassion in Dying. Once her wishes are ascertained. It can’t erect high evidentiary burdens to the parents. ii. State can erect barriers to surrogate making this decision. If the dissent had its way. it seems like a rational basis standard that they are using. Right Exists: A competent person has a constitutionally 95 . Although. to refuse treatment. In Cruzan. The State is required to be an absolutely neutral arbiter. that is.protected liberty interest in refusing unwanted medical treatment under the Substantive Due Process Doctrine.

By the time of the Fourteenth Amendment. 1. coercion. Thus. (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. neglect. Distinguished from right in Cruzan: The right established in Cruzan was not deduced merely from abstract concepts of personal autonomy. along with physicians and terminally ill patients. a. Oregon: Involved the Oregon Death with Dignity Act. Anglo-American common-law tradition has punished or disapproved of suicide and assisting suicide. and disabled from abuse. (New Prong) 3.suicide.Requires a careful description of the asserted fundamental liberty interest. the right was entirely consistent with this Nation’s history and constitutional traditions. most all states criminalized assisted suicide. The Due Process Clause specially protects those fundamental rights and liberties which are. No Fundamental Right: The right to assistance in committing suicide is not a fundamental liberty interest protected by the Due Process Clause. 4. it was derived from common law concepts and torts. The Bush Administration and Attorney General John Ashcroft issued an interpretive ruling declaring the ODWDA to 96 . poor. NOTE: New 2-Part Unenumerated Fundamental Rights Test: Rehnquist states that the established method of substantive-due-process analysis has two primary features: i. (3) Protecting Integrity of Medical Profession. “Deeply rooted in Nation’s history and tradition. 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. Ex: Gonzales v. (2) Preventing Suicide as a Public Health problem and Protecting vulnerable groups (i. objectively. the Court examined the State’s ban of assisted suicide under this standard. finding that the statute rationally related to legitimate government interests. 2. No Historical Right: For over 700 years.” AND ii. elderly. which recognized the right to assisted suicide for Oregonians. and (2) violated the Equal Protection Clause of the Fourteenth Amendment because people already had a right to pull the plug. 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. HELD: The Supreme Court held that the ban on assisted suicide in Washington did not violate the Due Process Clause. iv. and undue influence.Federalism Concerns – Physician Assisted Suicide 1. Rational Basis Test: Because there was no fundamental right.e. Legitimate Government Interests: (1) Preservation of Human Life. brought a suit to challenge the constitutionality of a Washington statute prohibiting assisted suicide.” and “implicit in the concept of ordered liberty. Rather. a.

State and local Governments: The 14th Amendment itself applies only to these entities. ii. a. 14. 2. and that physician’s use of CSA covered drugs to assist suicide is not a legitimate medical practice. DENY TO ANY PERSON WITHIN ITS JURISDICTION THE EQUAL PROTECTION OF THE LAWS. . classification here is not used in its broad sense. a. Cont. 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. However. §1 (Equal Protection Clause): [N]O STATE SHALL MAKE OR ENFORCE ANT LAW WHICH SHALL . to have effect. The ruling sought to criminalize the practice notwithstanding the invalid. THE THREE-TIERED SYSTEM OF EQUAL PROTECTION ANALYSIS i. would violate the 14th Amendment. NOTE (Scalia Dissent): Said the federal government should be able to trump state law on this matter. 2. if it were by a state. Ex: Bolling v. C. Facial Discrimination. The clause and its analysis are triggered whenever the government engages in a classification in a law. Discriminatory Purpose. The Equal Protection clause means that similar people must be treated similarly. GENERAL a. PART VII – EQUAL PROTECTION I. the Court treats it as a violation of the 5th Amendment Due Process Clause. The three tiers are: 97 .State and Federal Actions: The guarantee of equal protection applies to actions by both the state and federal government. Whenever there is not a heightened review or a middle tier review. Federal government: Nothing in the Constitution requires that federal government provide equal protection of the laws. As a matter of federalism. It possible to have a mixture of these. 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. OPERATION OF THE CLAUSE i. does classify people in some manner. The type of analysis applied depends on what persons are classified and what rights or interests are burdened. Discriminatory Application 4. 3. Amen. go to the default of Rational Basis.Classifications 1. Every law. HELD: The Supreme Court analyzed the case as if it were a matter of administrative law. it means laws that break up the population into various subgroups. However. B. Challengers disputed the Attorney General’s power to override the constitutional authority of the State of Oregon’s decision to permit certain assisted suicide. Instead. . Sharpe: The Court held that the federal government could not operate racially segregated schools in the District of Columbia. 1. iii.

Wherever a law affects: (1) Suspect Classes. a. Rational Basis (Reasonable Classification) Test: This is the 98 . If there were a constitutional challenge for this. Ex: A person who is black cannot change that immutable characteristic. Most laws affecting economic rights. Typically. and Nationality. taxes. The Court has invoked this level in cases involving (G-AC): (1) Gender. it does not have to be the “least restrictive means. red haired people aren’t a suspect class and thus. employment. Here. HYPO: A state college dormitory has one wing for blacks and one wing for white students. (2) illegitimacy. a. housing. b. However. and a host of others are governed by this standard. or has an impact on (2) Fundamental rights. 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. 2. it will be subject to this review. Alienage. strict scrutiny doesn’t apply here because it must be based on a “suspect class” that the Supreme Court has recognized as needing protection. “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. Suspect Classifications (R-A-N): If a law discriminates against a suspect class (a politically powerless or unpopular minority). ii.Deciding if a Particular Group is a Suspect Class for Strict Scrutiny Review 1. b. 2. rational basis would be used. but not so strong as to be compelling) state interest.lowest standard of review where the question is simply whether the law is rationally related to a legitimate state interest. the law will be subject to strict scrutiny. Immutability. and (4) arguably other classes. (3) children of illegal aliens. living arrangements. if a law discriminated against the class of people who wear trousers below their waists cant 1. Thus. the state must show that the law is “substantially” (not merely rationally) related to the achievement of an “important” (not merely legitimate. What standard of review should be used? A: Rational Basis – The fact that there is a classification means that equal protection analysis applies. it is on the basis of Race. History of Discrimination.” a. what standard would apply? A: Strict Scrutiny because it is a classification based on race. a. Here. HYPO: A state run apartment complex bars rental by redhaired people. i. However.

but some people who have the Trait might not contribute to the Harm. In Plessy. curricula.Overruling the Doctrine 1. students. 5. Here. Underinclusive Classifications: All persons who have the Trait contribute to the Harm. 4. but persons without the Trait also contribute to the Harm.The Separate But Equal Doctrine (Plessy v.come in. Strict Scrutiny has traditionally been reserved for those classifications which operate to the disadvantage of a racial or ethnic minority. b. Ferguson): Initially.” a. the court upheld a LA law calling for separate-but-equal accommodations for white and black railroad passangers. SEGREGATION: SEPARATE BUT EQUAL TREATMENT i. NOTE: You do not have to meet everyone of these factors to get a heightened review. Board of Education (“Brown 1”): Plaintiffs.General Principles of the Standards of Review: The way classifications work is that they identify some trait in people. Ex: Brown v. it was not necessary to overrule Plessy. Thus. the Supreme Court treated the doctrine as not in violation of the equal protection clause. 2. with respect to the buildings. ii. the Court could not just 99 . iii. there were findings that the two schools were equalized. 4. or were being equalized. and presume a certain connection between that trait and the legislative goal. 3. 1. and other “tangible” factors. They calimed that their equal protection rights were violated alleging that the segregated public schools were not “equal” and could not be made “equal. Over and Under-inclusiveness: The classification is overinclusive as to some groups of people but under-inclusive as to others. re: School Desegregation Cases. Ability to utilize the political process. The “Fit” of the Statute: In looking at the classification. 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. see if there is a “perfect fit” between the Trait and the harm. II. EXPRESS CLASSIFICATIONS a. but does not explicitly disadvantage either one race or another. were denied admission to schools attended by white children under laws permitting segregation based on race. Facilities are in fact “equal”: The Court noted that unlike the pre-1954 cases. Discrete and insular minority. qualifications. Overinclusive Classifications: When all persons who have the Trait contribute to the Harm. Thus. iii. 3. this is no immutable because they can pull them up. a classification utilizes race. Claims that these statutes provide equal protection have failed.

thus it is no help in determining Congress’ intention with respect to school segregation. A sense of inferiority affects the motivation of a child to learn. a. necessarily prevented children who were restricted to all-black schools from receiving equal educational opportunities. Historical Approach: The Court noted that the legislative history of the 14th Amendment was inconclusive. Ex: Loving v. It is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. 2. 3.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.“Segregation was not unconstitutional because it might have caused psychological feelings of inferiority…. the Court held that separate educational facilities are inherently unequal and therefore deprive blacks of equal protection under the 14th Amendment. Thus. they had to turn to the effect of segregation itself on public education. Policy Analysis – Importance of Education: Today. iv. c. Virginia: A Virginia statute made interracial marriages between white persons and other races a crime.Explicit Racial Classifications & Marriage 1. At the time of its passage. b.” the Court held that these factors. They challenged Virginia’s law. i. HOLDING: Noting that the Sweatt and McLaurin cases reviewed certain “intangible factors. 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. education is perhaps the most important function of state and local governments. HELD: The Supreme Court reversed the conviction finding that the statute violated the Equal Protection Clause. Virginia defended on the theory that the antimiscenagation law burdened whites and blacks equally. NOTE – Justice Thomas’ Concurrence in Missouri v. Application to other Contexts besides Education/Strict Scrutiny: The Court held that. is a right. 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. a. 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. even in 10 0 . blacks were not educated at all. Such an opportunity. A white man and his black wife were convicted for cohabiting as husband and wife. which must be made available to all on equal terms.turn to these factors. regardless of the equality of tangible factors. where the state has undertaken to provide it.

Francis College to discrimination against Jews. 2. 2. If a statute is not facially discriminatory (does not involve an express classification). As evidence from St. Indeed. GENERAL i. Citizen born in Iraq. The only interest it saw being served was furthering discrimination. HELD: The Supreme Court disagreed with the district court and held that § 1981 reached discrimination based on national origin. preservinf racial integrity of citizens (whites) and white supremacy.S. PURPOSE V. analysis would still prevail (i. Hispanic man wants to marry a black woman). on the ground that the child should be spared “the social stigmatization that is sure to come. let alone a compelling one. but held that they could not supply the compelling interest that was required.S.NOTE – NO Race Considerations in Deciding Custody of Children: 1. The state court transferred custody to the child’s father. but it would be narrower because he would apply it only to criminal laws.a setting other than education. 2. What if the State had banned all interracial marriage? E. Francis. It is still a racial classification that is unconstitutional and Strict Scrutiny would still be applied. vi. Jews and Arabs were among the peoples then considered to be distinct races and hence within the protection of the statute. b. the Court held that the state could not give effect to private prejudices. which prohibits certain racial discrimination even by private persons. the state’s use of racial classifications would be tested by the strict scrutiny standard. III. Ex: St. there is no need to go to strict scrutiny.P. He alleged that the college was liable to him for denying him tenure based on his race. Al-Khazraji: Plaintiff was a U. Ex: Palmore v. 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. because these aren’t even ligitimate. the Court held that the concerns of the state court were probably real.NOTE – The Limits of “Racial” Discrimination – Ethnic. Religious.” HELD: Applying strict scrutiny.Stewart Concurrence: Argued that state criminal laws where race was an essential element of the crime were per se invalid. Thus. even though it isnt’t racial. This cannot be justified.e. Francis College v.C. Ex: Shaare Tefila Congregation v. Under EP. v. Cobb: Extended the holding of St. EFFECT A. RULE: Even if the compelling governmental interest is a benevolent one. Sidoti: A divorced white mother with custody of her white child married a Black man. state cannot bootstrap its own discrimiation by relying on third party discrimination. This was much simpler than the invocation of strict scrutiny. §1981. He sued under 42 U. or Regional Groups as Suspect Classes 1. 10 1 . NOTE . The Court further held that Virginia failed strict scrutiny because it did not have even a legitimate government interest.

the individual will have to prove that a discriminatory purpose was behind the statutes enactment. If a statute is shown to discriminate on its face. but to none of the nearly 200 Chinese applicants. Hopkins: A San Francisco ordinance bars the operation of hand laundries in wooden buildings. if the law is facially neutral and is applied according to its terms. 1. if an individual can show that administrators of the law apply in a disadvantageous way. if it is applied and administered by public authority with an evil eye and an unequal hand. Furthermore.) a. welfare. 1. DISCRIMINATORY PURPOSE i. The Court was concerned that absence of an intent requirement might invalidate a whole range of tax. (Declined to accept the Disparate Impact theory advanced in Griggs v. only exists where it is a product of a discriminatory purpose. public service. HELD: Racial discrimination violative of the E. 3. no showing of discriminatory purpose will be necessary. HELD: Although the ordinance is neutral on its face. yet. there was discrimination in its administration. Davis: Involved a suit brought by unsuccessful black applicants for positions in D. RULE: Though a law itself may be fair on its face. it can never by itself be sufficient to prove discriminatory intent. DISCRIMINATION IN ADMINISTRATION i. C. They had failed a written test of verbal ability and reading comprehension (blacks failed 4 times more than whites). regulatory and licesnsing statutes that may be burdensome on one race and not the other. except with the consent of the Board of Supervisors. Disprate Impact: While a showing of disproportionate racial impact is a factor in ascertaining intent. However. and impartial in appearance. Duke Power Co. including the fact.C. if it is true.’s police department. Police Department’s affirmative efforts to recruit more black policemen.P.B. and this discrimination violates the Equal Protection Clause. b. there is a denial of equal protection of the laws. The P’s also provided evidence suggesting that performance on the test did not necessarily correlate with job performance. that the law bears more heavily on one race than another. Standing alone.C.C. Application to Davis: The D. no additional showing of purpose is required. Ex: Yick Wo v. The Board gives permits to all but on of the non-Chinese applicants. 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. NOTE: An invidious discriminatory purpose may often be inferred from the totality of the relevant facts. negated any finding of a discriminatory purpose in the use of the test. 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. General Requirement of Purposeful/Invidious Discrimination: The Equal Protection Clause is violated only by purposeful or invidious discrimination. 10 2 . 2. Ex: Washington v.

the preference did not violate the E. iii. 3. a woman. a non-profit developer wanted to built racially integrated low income housing. such a purpose need not be the sole purpose of the statute. at the time the suit was brought. Ex: Personnel Administrator of Mass. and only one of these was discriminatory against the suspect class. a. were men. will not immunize the statute from strict scrutiny. only if the legislature chose its course “because of. It is enough that the purpose was a “motivating factor” in the legislature’s decision to enact the statute. emerges from the effect of state action). unexplainable on grounds other than race. The Relationship between the Rule or Law & 10 3 . Thus. Feeney: P. a. non-discriminatory motive.P.e. Although a discriminatory purpose is required for invocation of strict scrutiny.The Motivating Factor Test & Discriminatory Intent 1.” its adverse effects upon a minority. Metropolitan Housing Development Corp. v. Since. anything more than a foreseeable but undesired inevitable by-product of the basic decision to favor veterans. Ex: Village of Arlington Heights v. A significant number of men were also non-veterans. Alternative Remedy: The Plaintiff’s could have proceeding on a Disparate Impact claim under Title VII of Civil Rights Act. look to the following factors: a. Again. ii. over 98% of the veterans in Mass.” and not merely “in spite of. 2. Two Motivations: If there are two purposes that motivated the legislature to enact a statute.C. civil service statute which gave an absolute hiring preference to any veteran who obtained a passing score on a competitive exam.Must be “Because of” not “In spite of” 1. HELD: The statute was not intentionally gender-based. clear pattern. in the legislature’s mind. Impact: Look to circumstantial and direct evidence of intent (i. 4. the presence of the second. whether the law bears more heavily on one race than another. RULE: Awareness of the consequences of disparate impact is not sufficient to prove discriminatory purpose. The “Motivating Factor” Test: In deciding if discriminatory purpose was a motivating factor. but what is key is whether there is discriminatory intent.: The P. the preference operated overwhelmingly to the benefit of males and the the detriment of females. even if it is the case that it is not related to employment etc. this may be a factor. The Court found no evidence that the disparate effect upon women was. challenged a Mass. 5. could there be said to be intentional discrimination. It needed village committee approval to do so by granting a zoning change from single family to multi-family.Constitutionality: The question does not turn on whether the Court agrees with the business judgment of the particular regulation. The Committee denied the permit and the Non-Profit sued under equal protection.

Historical Background: Particularly if it reveals a series of official actions taken for invidious purposes. If the law had a motivating factor when passed. See Grutter (2006) below. but the motivation is now gone. Legislative History: Especially where there are contemporary statements by members. i. A race-based classification will receive the same strict scrutiny whether the classification is “benign” or “invidious. Substantive Departures: Particularly if the factors usually considered important by decision makers strongly favor a decision contrary to the one reached. HELD: Supreme Court struck down the provision. the burden then shifts to prosecutor to show race-neutral explanation (need not be enough for “for cause” strike) 2. ii. See Hunter v.” a. IV. a.b. if the property had always been zoned multi-family. iv. Criminal defendant needs to show: i. 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.Standard of Review: Strict Scrutiny 1. a. but was suddenly changed to singlefamily when town learned of MHDC’s plans to erect integrated housing. RACE-CONCIOUS REMEDIES & AFFIRMATIVE ACTION A. Ex: Hunter v. GENERAL i. civil juries.NOTE: Passage of Time 1. d. f. v. it might be valid or it might get struck down because of the original motivation when it was enacted.” Prosecutors may not use such challenges based solely on the race of the juror. and ii. Underwood. It could always be re-enacted after it is struck down in the future because the discriminatory motivation no longer exists today. These challenges enable either side to exuse a certain number of potential jurors “without cause. Benign Discrimination: This type of discrimination uses race as a factor to remedy or rectify past discrimination by the State. decision i. In Arlington. The evidence demonstrated that the provision was enacted with the intent of disenfranchising blacks. Once he showed that. gender. Sequence of Events leading up to challenged 10 4 . Kentucky) 1. Membership in class.Use of peremptories against that class (statistical evidence) b.NOTE: Peremptory Challenges – The Batson challenge (Ex: Batson v. NOTE: Later extended to use by defense. c. Procedural Departures from the norm e.

including courts. long term. c.The Paradise Court was not sure what standard to apply. until the Dept. i. the Court tends to approve rarely.discrimination by society in general is NOT a compelling governmental interest sufficient to satisfy the strict scrutiny standard 1. ii. of Public Safety systematically excluded blacks from employment. Guidance for determining whether Race-Conscious Remedies are Narrowly Tailored: a. NOTE: The mere fact that there has been general “societal” discrimination is not enough to justify race-conscious measures. 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. despite a district court order to remedy it.Remedying Societal Discrimination Insufficient: Remedying past 10 5 . however. RULE: Government bodies. 1. The flexibility and duration of the relief (Including availability of waiver provisions). so that is what was probably applied. iii. Standard of Review. Paradise: Alabama Dept. a. the court upheld a 1-to-1 remedy similar to a quota. i. Efficacy of alternative remedies. In cases involving general societal discrimination. HELD: The Supreme Court upheld the order finding it narrowly tailored to further a compelling governmental interest. and open discrimination. of Justice argued that this was unconstitutional. may constitutionally employ racial classifications essential to remedy unlawful treatment of racial or ethnic groups subject to discrimination. iii. the Dept. Ensure compliance with decrees by inducing the Dept. b. 2.Requirement may be waived if no qualified black candidates are available. Necessity of Relief. Remedying General Societal Discrimination v. implemented an acceptable promotion procedure. but the Court stated that the remedy survivied even strict scrutiny. the promotion order was necessary to eliminate pervasive. 3. to implement a promotion procedure that would not have an adverse impact on blacks. still did not have promotion procedures that did not disadvantage blacks. REDRESSING OF CLEAR PAST DISCRIMINATION: EQUIATABLE REMEDIES AGAINST SPECIFIC EMPLOYERS FOR PAST DISCRIMINATION i. In Paradise. and only when the “remedy” is not a quota. the Dept. The Dept. See Grutter 2. Ex: United States v. Flexible in application to all ranks. After eleven years. not required to make these promotions in compliance with the court’s order. Actor-Specific Past Discrimination: In Paradise. b.If budget cuts necessitate a promotion freeze.

Looking at % in applicant pool. 3. The one-for-one requirement did not impose an unacceptable burden on innocent parties. Title VI. Grutter resolved this. d. Relationship of the numerical goals to the relevant labor market. (Look for racebased government set-asides programs or affirmative action schemes passed by Congress) 3. everyone assumed that diversity might be a compelling governmental interest. Michigan Law School developed a policy that looked at not only GPA and LSAT but also several “soft variables” (such as race). comes up with an acceptable procedure that does not have a discriminatory impact on blacks. with the hope of admitting a more diverse student body. These “soft variable” could trump hard predictive indicators such as the LSAT to ensure an applicant's admission. ii. This interaction helps prepare them for the increasingly diverse workplace. For decades after. e.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. but there was never a holding that stated so. Apply strict scrutiny when race/ethnicity used in affirmative action. i. THE iv. qualified pool. Diversity of Views. a.C. It also admitted that it sought a "critical mass" of each minority to ensure that such students would feel free to speak in class. c. Decision in Bakke 1. Impact of the relief on the rights on third parties i. ii. ii. 1. general pop. Standard of Review: Strict Scrutiny 2. b.Ex: Grutter v. 10 6 . Powell writes a concurrence and resolves it in favor of the affirmative action program. A woman challenged this as a violation of the Equal Protection Clause. PURSUIT OF DIVERSITY IN A STUDENT BODY i.Does not require layoff. Compelling State Interest – Student body diversity in Higher Education: is a compelling state interest that can justify the use of race in university admissions. Same standards apply when it’s done by federal government or by the state government. and § 1981. without also feeling an obligation to speak as a minority representative. Bollinger: In their admissions process.Endures only until the Dept.not given equal weight when considering applicants. 2.Post-Paradise: The Adarand Case 1. Cannot distinguish between benign and invidious discrimination. at least when the means are narrowly tailored to achieve that goal. ii. 2. This also promotes cross-racial understanding.

The Supreme Court limited the holding of Grutter to post-secondary education. of Education: School districts used race as the determinant factor under certain circumstances in admissions and student transfers for public schools. The policy "is flexible enough to consider all pertinent elements of diversity in light of the particular qualifications of each applicant. Seattle School District No. Jefferson Bd. iv. or which cannot be exceeded. 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.Grutter’s Companion Case: Gratz (Undergraduate Admissions Process) 10 7 . 1 & Meredith v. holistic review of each applicant's file. narrow tailoring does not require exhaustion of every conceivable race-neutral alternative. the Law School engages in a highly individualized. good faith consideration of workable race-neutral alternatives that will achieve diversity. The Supreme Court applied strict scrutiny and held that the districts failed to satisfy the narrow tailoring prong.Limitation to Higher Education 1.In Grutter. Rather. 3. Quotas impose a fixed number or percentage which must be attained. iii. a. need for diversity in these places. c. However. 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. there is no rigid quota. 25 Year Sunset: The Grutter Court noted that these policies should no longer be needed in 25 years. No Quotas: A program in which certain fixed number or proportion of opportunities are reserved exclusively for certain minority groups. only those alternatives that would serve the governmental interest about as well. and to place them on the same footing for consideration. Amicus briefs from the armed forces and businessmen. Ex: Parents Involved in Community Schools v. i. RULE: A program that merely contains aspiration goals does not thereby become a quota. b. (No Separate Tracks) ii. Race-Neutral Alternatives: Narrow tailoring requires serious. giving serious consideration to all the ways an applicant might contribute to a diverse educational environment.d. 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.

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.

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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,

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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

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race is used to ensure minority voters who were previously discriminated against to have an equal say in our democratic government.Distinguished Federal Congress and State 1. 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. Inequality in Senate (set number per State – 2): Based on: i. RACIAL GERRYMANDERING & “REVERSE DISCRIMINATION” i. States had drawn districts based on acreage and not population. Strict Scrutiny Review: There is a classification that burdens fundamental rights. This is presumptively unconstitutional. a. Discriminatory Effect under the Voting Rights Act. whether through circumstantial evidence of a district's shape and 4.Federal scheme arises from unique historical circumstances (Compromise between small and large states) C. Thus. race-considerations are used in drawing legislative districts. a. 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. 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. or b. b. 1.malapportioned because the legislature had not redistricted since 1901 despite a constitutional requirement that it do so each ten years. c. 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. NOTE: When old fashioned gerrymandering that targets minority groups to dilute votes. Congressional and state sovereignty (Political subdivisions of States were never considered as sovereign entities). Sims: Alabama legislative districts were 11 1 . the proper claim is to show a: a. ii. Evidenced by history and language of the Fourteenth Amendment as well as practices in the states. but not to dilute black vote.The Predominant Factor Test/Strict Scrutiny Review (Ex: Miller v. Affrimative Action Gerrymandering: Here. 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. iii. Discriminatory Purpose under equal protection analysis. The Federal Congress does not serve as a pattern or model for apportioning the seats in state legislatures. ii.P’s Burden: The plaintiff must show that the legislature. Ex: Reynolds v. Instead. iv.

Non-Justiciable Polictical Question 1. 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. it combines a black metropolitan neighborhood with the black populace of a coastal neighborhood 260 miles away. Since race was the predominant. Not only does the bizarre shape support this conclusion but also other evidence showing that the state legislature was motivated by a predominant. D. HELD: The Court held that there were indeed judicially discernible and manageable standards by which political gerrymander cases may be decided. overriding desire to create a third majority-black district. ii. HELD: The claim is a non-justiciable question. strict scrutiny still must be applied. Jubelirer (Rejects Bandemer): PA adopted a congressional redistricting plan. The plan contained three black districts. Strict Scrutiny: If the Plaintiff shows that race was the predominate motive. Valid Compelling Governmental Interest: Remedying past discrimination in voting. Ex: Davis v. overriding factor behind the Eleventh District's drawing. 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. that the legislature: 1. 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. v. Contiguity (Districts Touch or Don’t Touch). HELD: Race was the predominant factor motivating the districts’ drawing. Compactness (Regularity of Shape). Instead. However. including but not limited to: a. 2.demographics or more direct evidence of legislative purpose. the mere fact that a bizarre shapped district was drawn is is iself a violation and is expressive harm.Ex: Miller v. 11 2 . POLITICAL GERRYMANDERING i. and in one. this particular case is not justiciable because of the parties involved. Ex: Vieth v. evidence of vote dilution doesn’t matter. b. Johnson: Georgia redistricting legislation alleged to be an unconstitutional violation of the Equal Protection clause. Subordinated traditional race-neutral districting principles to race considerations.Vote Dilution Principle Inapplicable: In a Miller claim. The distrincting flunked strict scrutiny because the compelling governmental interest was not to remedy past discrimination. a. while diluting another parties vote. Respect for political subdivisions or communities defined by actual shared interests (Like Minded People Placed Together) 2. iv. 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. This type of gerrymandering involves redistricting schemes that attempt to keep on party in office.

The court notes that the Miller standard is not sufficient b/c in Miller they weren’t applying it to a statewide plan.2% beer to males under age 21 and females under age 18.Ex: Frontiero v. ii. 1. Factors applied to determined whether a particular class deserves a heightened review: a. No relation to merit. since. The Court ostensibly applies a single standard to all gender-based classifications. and aligns it with the recognized criteria. 2. HELD: Supreme Court invalidates the distinction. is that the sex characteristic frequently bears no relation to ability to perform or contribute to society. What differentiates sec from such non-suspect statuses as intelligence or physical disability. RULE: Political gerrymandering claims are “per se” non- justiciable questions because no judicially discernible and manageable standards for adjudicating such claims exist. like those based on race. 1. GENDER DISCRIMINATION A. b. refused to foreclose all possibility of judicial relief if some limited and precise rationale could be found to review these cases. Any gener based classification must be: (1) MEANS: Substantially related to an (2) ENDS: Important Governmental Objective. Does not explicitly overrule Bandemer but states that its standard is unworkable. alienage. and national origin. Ex: Craig v. Discrete and insular minority. it is an immutable characteristic determined solely by the accident of birth. INTERMEDIATE LEVEL OF SCRUTINY THROUGHOUT i. Justice Kennedy. 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. statistically 18 -20 year old males were arrested for drunken driving much more 11 3 . i. Whether there has been a historically discrimination. i. This Court goes through a number of rules and rejects each approach as unworkable and unmanageable. b. The proper test for classifications based on sex is strict scrutiny because. and inherently suspect and subjected to close judicial scrutiny. Ex: Reed v. Immutability of the characteristic. The consitutional claim was that the statute denied equal protection to males between the ages of 18-20. rejects the rule. d. Reed: Applied a “mere rationality” standard to a state statute that preferred men over women as administrators of estates. I.a. however. b. whether these are found to be truly compensatory or merely paternalistic and stereotypical. OK defended the statute on the grounds that it promoted traffic safety. Boron: Oklahoma statutes prohibited the sale 3. HISTORY OF DECIDING THE STANDARD OF SCRUTINY i. Plurality Holding: Classifications based on sex. c.

holding that Virginia has failed to satisfy the applicable standard for gender-based governmental action. Stereotypical Thinking Rejected a. and the Supreme Court reverses. Virginia established an equivalent women’s private military institution. Thus. i. b. After litigation. U.frequently than females of the same age group. 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. In evaluating the women’s alternative. Adequate Alternatives for Women a. Ex: United States v. HELD: The Court struck down this statute noting the statistically based defense insufficient. and economic inferiority of women. the Court applies the test of substantial equivalency to see if the State has supplied an adequate alternative remedy. the beer being regulated was non-intoxicating. c. a.S. Create or perpetuate the legal social. the alternative for women fails as a comparable single-gender women’s institution because the course offerings. the e women’s school did not provide equal opportunity. Virginia violated the Equal Protection Clause. ii. 3. Mary Baldwin College. Virginia: VMI was the sole male only school among Virginia’s state universities. Maleness could not serve as a proxy for drinking and driving because of the small number of instances even with them.RULE: Avoid “archaic and overbroad generalizations” unrelated to real differences between the sexes. and facilities are not equal. 11 4 . tradition. a. In VMI. Such classifications may not be used to: i. Even supposing there was some correlation. 1. parties who seek to defend genderbased government action must demonstrate an “exceedingly persuasive justification” for that action.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. sued Virginia alleging the VMI’s exclusively male admissions policy violated the Fourteenth Amendment’s Equal Protection Clause. The two lower federal courts found this satisfied the equal protection requirement. ii. b. Poor overall fit: The overall fit between the means of the regulation (ban on sale of 3. HOLDING: Virginia has shown no exceedingly persuasive justification for excluding women from the citizen-soldier training afforded by VMI. 2.Exceedingly Persuausive Justification: In addition to applying the 2-prongs of Intermediate Scrutiny.

HELD: Applying I. Nguyan was born in Vietnam to a Vietnamese mother and an American citizen father.The Application of the VMI Standard: Intermediate Scrutiny Satisfied – Ex: Nguyen v. PART VIII – FREE SPEECH 1. HYPO: The state decided to remedy past discrimination against women to set up a special college only to allow women to attend. b. Compensate women for particular economic disabilities they have suffered or promote equal opportunities. 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. either ligitimize the child. Application of gender discrimination standard of Intermediate Scrutiny as established in VMI. c. In VMI. INS 1. 1. or secure a court order of paternity. The father claimed this discriminated against men. but are denied acess. Would this situation stand const.RULE: OK to discriminate to “recognize inherent differences” between the sexes. for the boy to establish citizenship.A State’s defense that including women would materially change a program.S. etc. under 5th amendment analysis. Sex classifications may be used to: i. the American father must. make a declaration of paternity. 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. iii. NOTE – Suitable for Some Women Rationale: 11 5 . Under federal law.To advance full development of talent and capacities iii. ii. review? A: It would more than likely be upheld because we can do things to help women by recognizing inherent differences. a. NOTE: This is a prime example of something being both over inclusive and underinclusive. 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. before the child’s 18th birthday. These requirements are not imposed on the mother..

which may also inquire whether the regulation adopts the least restrictive means available. FREE 1. Const. 1. AND TO PETITION THE GOVERNMENT FOR A B. Pennsulvania)”: Because they are preservative of other freedoms protected by the Constitution. false advertising. i. Generally recognized U. laws that burden people’s access to the court systems will be struck down. SPEECH i.Prior Restraints as Virtually Per See Invalid: While the speech cannot be stopped beforehand.: Libel. Protected Speech: This is another way to limit the protection of the First Amendment. 2. ii. but still a distinct right. is unconstitutional. GENERAL a. OR ABRIDGING THE FREEDOM OF SPEECH. face-to-face fighting words that have little communicative content and a high potential for causing breach of the peace. OR PROHIBITING THE FREE EXERCISE THEREOF. Ex: An injunction against a newspaper. obscenity. iii. Ex: Publication of military secrets during wartime. iii. 3. Free Association a. Petition the Government for a redress of grievances a. The rights of the people peaceably to assemble.Strict Scrutiny: Often. This also includes a private organinzations right to include or exclude who they want. Amen. Rare Exceptions a. Balancing View: The Amendment is not absolute but must be weighed against other constitutional principles or governmental purposes. State Governments are bound through the due process clause of 14th Amendment (Incorporation). a. Speech. i. 2.I. immediate incitement to crime.First Amendment Freedoms as “Preferred” Rights (Murdock v. Right to file suit through the court systems. 4. OR THE RIGHT OF THE PEOPLE PEACEABLY TO ASSEMBLE. 5. ii. OR OF THE PRESS. 2. Being a member of group without assembling. Thus. 1. regulations impinging on First Amendment Freedoms are subject to Strict Scrutiny. There is no heightened protection of the press per se. iv. First Amendemnt rights are said to be in a “preferred” position and are thus afforded extensive immunity.U.Unprotected “Utterances” vs. preventing publication in advance. Ex: State is not allowed to see membership lists of certain organizations. 1: CONGRESS REDRESS OF GRIEVANCES. Discrete by related rights recognized by the 1st Amendment: 11 6 . SHALL MAKE NO LAW RESPECTING AN ESTABLISHMENT OF RELIGION. you do have remedies available after the fact. Press. Absolute View: The text of the Constitutions supports the view that “no law” shall be passed and that freedom of speech is absolutely protected. Views on Limits of First Amendment 1.Binding on the entire Federal Government.

Why Protect Speech? 1. vii. ii. rather. There is value in the contest between truth and falsity. Individual Self-Exression/Self-Fulfillment (See Cohen) TRACK SYSTEM i. “Marketplace of Ideas”: It is not the Government’s place to suppress ideas because they are wrong.The Supreme Court categorizes these regulations in one of “two” tracks and the rules that govern depend on which track the regulation falls into. thus the government may take steps to protect a captive audience from being forced to listen to obnoxious expression and indecent speech. However. there is nonetheless value in the contest because it helps to illustrate what truth is.” v. but the government’s regulation has the incidental by-product of interfering with particular communications. HYPO: Congress passes law forbidding criticism of Iraq War Effort.C. we need the marketplace of ideas to filter out the false.Right Not to Speak – Freedom of Belief: As a general rule.S. Although some statements are entirely false (maybe even harmful). or Manner Restrictions a. It does not matter if you are rallying for pro-choice or pro-life. Track One (Content Based Regulation): Strict Scrutiny Standard a. 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. Ex: Defamation of public officials non-actionable unless accompanied by “actual malice.S. the government is seeing what is in the speech and regulating it. 3.” and truth will become accepted through “the competition of the market.“Captive Auditor” (The Right Not to Listen) vs.) 2. U.” the Court gives speech “breathing space. that does not always outweigh the interest in expression (See Cohen) vi. 2. 1. TWO “preferred. Place. 1. Thus. (From Holmes Dissent in Abrams v. HYPO: The State passes law that says that you have to finish what you are doing at a park by midnight. government cannot force citizens to confess their allegiance to any particular idea. and (2) The Government seeks to avoid some evil unconnected with the speech’s content. Time. Here. there is to be a “free trade in ideas.” Even some kinds of utterances that are apparently valueless in themselves must be afforded some measure of protection to prevent self-censorship. Track Two (Content Neutral Regulation): Generally receive Intermediate Scrutiny and more likely to be upheld.The “Breathing Space” Doctrine: Because protected speech is 11 7 . Interest in Expression: Implicit in the 1st Amendment is the right not to listen. you still have to leave. iv. Mill on Liberty) a. Utilitarianism (J.” Only where the circumstances are such that there is no time to expose evil ideas through more speech may the government bar expression.

This is certainly different from the papers in Schenck because: (1) Here is a statement understood as fact. 1. it never explicitly urged people to violate the law. United States: Under a statute. Ex: Schenck v. Ohio): Speech advocating the use of force or illegal acts can only be proscribed if: 1. which forbade the advocacy of crime or violence as a means of accomplishing industrial 11 8 .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. a. With a crowd. Ohio: D was a leader of an Ohio KKK group who made threatening statements about Jews and Blacks. Congress could pass a law that barred the million-man march. CONTENT-BASED REGULATION a. ii. While political speech is on the top of the pyramid of protected speech. The advocacy is directed to inciting or producing imminent lawless action (not mere advocacy of abstract doctine). a. Today.Ex: Bandenburg v. not opinion. b. the Court upheld the criminal convictions. 3. The advocacy is likely to incite or produce such action (Imminence). there is immediacy of the danger and less chance for a reasonable person to stand up and say that there is no fire. DISTNIGUISHING ADVOCACY FROM INCITEMENT – THE MODERN TEST FOR CIMINALIZING SPEECH URGING ILLEGAL ACTION. the Supreme Court gives greater protection to free speech.The Modern Standard (Brandenburg v. Imminence: viewed in terms of whether there is sufficient opportunity for counter speech. at least in the political area. 4. and 2. According to the 4 corners of the pamphlet issued by D. and (2) There is arguably more time for counterspeech with the conscription papers. The fact that the circumstances were that of war time were certainly relevant. Ex – Theater Example: Falsly shouting fire in a crowded theater and causing panic. ii. iii. ADVOCACY OF ILLEGAL ACTS (PROTECTED) & LIMITS ON POLITICAL SPEECH – INCITMENT (UNPROTECTED) i. i. but instead advocated for peacefull measures. Inadequacy of the Test: Speech could be punished as an attempt to commit an illegal act 2. and the D’s speech may have been protected in a time of peace. HELD: Nonetheless. He was charged with violating Ohio’s Criminal Syndicalism 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).II. Ex: Congress controls the national mall to prevent overcrowding in traffic. Under this Test. a person could be convicted for willfully obstructing the draft.

Hypotheticals i. ii. Can the movie company be held criminally or civilly liable or can they be barred from showing the movie? 1. they have a close relationship in that a statute that is vague is likely to also be overbroad and vice versa. 1.“As applied” Challenges and “Limiting Constructions” iii.Violent movie romanticizing the lives of gangster gang members enticing people to do copycat crimes of real criminals. This is distinguished from other copy cat cases. A: As for 1st Amendment protection and no liability. iii. Man outside Frankenstein’s house with people all with torches. 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. GENERAL i.A publishing company produces and sells an instruction manual for hitmen. Teens watching the movie go and kill people. A: Not protected. A: No immenence.Crazy man is on the corner yelling.The Limits of the Doctines.” c. 1. thus protected by 1st Amendment. While not confined to the 11 9 . no immence. A person buys the book and kills someone after reading it. Void for Vagueness: Refers to the notion that an unduly vague statute cannot support a criminal conviction. it is intended to incite lawless action. 2. and everyone should kill them. They are likely considered to produce imminent lawless action. B. there is no likelihood that the lawless action will take place. 2.” Does he have a First Amendment protection? 1. Kill him and burn his house.or political reform. However. VAGUENESS DOCTRINE i. HELD: The Court struck down the statute. just depicting it. Although the doctrines are distinct. They were not directed to incite imminent lawless action. opportunity for counterspeech. A: Preventing further screenings would be a prior restraint on publication. He yells. “Mary Kate and Ashley are demon spawn. OVERBREDTH & VAGUENESS A. III. the speech must be directed to lawless action – they are not even advocating it. they are standing there with torches – no chance for counterspeech. 1. “He stole millions from everyone. iv. A: Plenty of room for counterspeech. v.Congress bans memebership in Communist party by passing the Smith Act because its doctrine explicitly calls for violent overthrow of federal government. They also might be considered fighting words. Here. ii. the modern Supreme Court has upheld statutes in spite of some degree of overbreadth or vagueness.” There is a 1st Amendment defense at his prosecution. Thus. so less likely you could bar further screenings. 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.

Fair Notice C. iii. However. This overreaching must not only be real. 12 0 . 1. if it is only a smaller infringement on protected speech. and the Court may find it to be unconstitutional. The Hatch Act says federal employees can’t: (1) solicit political contributions. it is overly broad. If the statute bans not only unprotected speech (which is constitutional to do so). in addition to proscribing activities which may constitutionally forbidden. then we aren’t sure about how much the statute must infringe protected speech before it will be considered substantially overbroad. General Construction Co. “Substantial”: Because we don’t know what substantial means. This doctrine limits the degree to which a prohibition of utterances can include expression protected under the 1st Amendment. (2) be a member or officer of a political party cmte. so he declines to exercise his rights. it will not be considered a substantial overbreadth and might likely be upheld under this test. if the outer circle that infringes on protected speech while also proscribing unprotected speech is so great and large. or candidate. 1. Chilling Effect Rationale: A person does not know whether or not his conduct or speech will ultimately be held to be constitutionally protected. Oklahoma: OK Merit System of Personnel Administration Act proscribed a broad range of political activities and conduct to state employees.1st Amendment area.Substantial Overbreadthness Test: A statute is overbroad if. then the plainly legitimate sweep of the statute is overly broad. but also more protected speech. 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. (3) “take part in management of affairs” of a political party or campaign. the doctrine that the freedom of speech is fundamental or preferred has given rise to stricter vagueness standards. However. 2. HELD: Supreme Court said that this was not vague because the proscribed conduct fell within the un-vague parts of the statute. it will likely be considered substantially overbroad. ii. P’s challenged to two parts of the statute as vague and overbroad. but be substantial when judged in relation to the statute’s plainly legitimate sweep. OVERBREDTH DOCTRINE i.Ex: Broaderick v. RULE (Connally v. b.): A statue is unconstitutionally vague if “persons of common intelligence must necessarily guess its meaning” a. 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. it also sweeps within its coverage speech or conduct which is protected by the guarantees of free speech. 3.

a.Relaxed Standing Requirements 1. Vagueness: YES. Ex: Brockett v. a person claiming a violation of his 1st Amendment rights must show that his own speech or conduct was protected. A criminal statuts bars “speaking in a manner inconsistent with the Constitution” a. When a statute is overbroad on its face. 3. vi. What if a person were to reveal classified troop movements in Iraq and was prosecuted under this statute. the appellants can get to the merits of the overbroad claim. it applies only to speech not protected by the Constitution. the overbreadth doctrin permits a challenger to prevail if he can show that the statute. a litigant attempting to have a statute held unconstitutional must show that it is unconstitutional as applied to him. Spokane Arcades: A statute prohibited not only obscene materials. The Court limited the statute’s construction to salavage the obscene part but struck the portion that proscribed protected speech (lust). applied to the wearing of political buttons or the use of bumper stickers. NOTE: The Court conceded that the statute by its terms could 12 1 . but also those that incited lust. and that these might be constitutionally protected expressions. Overbroad: NO. applied according to its terms. v. b. Chilling Effect Rationale: An overbroad statute will have a chilling effect on people who might be intimidated into not exercising their free speech rights. would violate the 1st Amendment rights of persons not now before the court. For instance. so there was no “substantial overbreadth. Can he raise an overbreadth defense? 1. Typically.” iv. the statute should only be subjected to a limiting construction that salvages all but the part that covers protected speech.Hypotheticals 1. Exception to the Usual Requirements of Standing – Overbreadth Claims: When a facial attack is made on a statute. the Court has a preference for invalidating particular applications of a statute when they appear. Overbroad: The statute potentionally infringes on protected speech 2. By its definintion. With relaxed standing. But such unsconstitutional applications of the statute were not numerous enough compared with the body of permissible applications. a. Vagueness: No definition of obnoxious b. Thus. rather than invalidating the entire statute.The Preference for Limiting Constructions & The Normal Rule that Partial Rather than Facial Invalidation in the Required Course 1. A criminal statute bars “publishing anything obnoxious regarding the president” a.

Common arenas include: (1) The Home. Fighting Words 3. A: Yes. then he is not protected. i. Adovocacy of immenent lawless behavior. Defamation & Libel. SPEECH (OR SPEECH “THAT IS NOT PROTECTED SPEECH”) a. b. there is a strong presumption that the regulation is unconstitutional. The Court has defined certain established categories of speech. NOTE: Here. ii.The “Captive Audience” Doctrine: Heightened ability to restrict speech to protect a captive auditor from obnoxious expression. THE CHAPLINSKY STANDARD (CHAPLINSKY V. The Court will take into account the harmfulness of the types of messages conveyed. These types of speech only receive rational basis scrutiny. Fraudulent misrepresentation. Unprotected speech only receives rational basis. 1. and (2)Offensive advertising on buses.Symbolic Speech – The Spence Standard iv. strict scrutiny will be applied. True Threat Doctrine (Verbal Equivalent of Assault) c. GENERAL i. the Government is still utilizing content-based regulation (Track-One).Traditional Categories of Unprotect Speech (Chaplinksy List): 1. 5. 2. What is a Court likely to do? i. 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. Thus. and the ability or inability of counterspeech to cure the harm. 1. A criminal statute bars publishing anything which threatens physical or financial harm to the President a. if he in fact reveals troop movements. UNPROTECTED A. Obscenity. which are deemed not protected by the first amendment.IV. NEW HAMPSHIRE) i. However. 4. Distinguishing between “unprotected speech” and “speech that is ultimately not protected”: Speech that is ultimately unprotected is present when the government satisfies strict scrutiny. Overbroad: Yes. under the relaxed standing requirement. Vagueness: No. 2. 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. 4. the statute covers both protected and unprotected speech (Financial harm being protected). Certain types of speech are considered exceptions to the norm of heightened judicial protection. if the regulation is imposed in a situation that does not fall within one of the pre-existing unprotected categories. iii. 12 2 . Certain categories of speech will be unprotected if such utterances are no essential part of an expression of ideas. Therefore. b.

Variation: What if the clerk waiting until Crow left to make the remark? a. No immediate breach of the peace. and if one of the exceptions exist. iii. c. Variation: What if the clerk mailed him a letter with the remark? a. a.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. viewpoint discrimination. This is true even if all of the speech/conduct falls within an unprotected category (such as fighting words). 2. 1. so the clerk could be punished. The First Amendment does not allow a statute to impose special prohibitions on those speakers who express views on disfavored topics. ii. 2. Self-Realization Rationale whereby profanity is used to express self-emotion. Underclusivity: A statute will be considered underinclusive when it cuts out a subset of unprotected speech. This is precisely what a viewpoint discriminatory statute does by only regulating a subset of unprotected speech. California: Cohen wore a jacket with the words “Fuck the Draft” inside a courthouse.O. HELD: A State may not make a simple public display of profane words a crime. we must check for underinclusiveness. If the government singles out bias-motivated speech. the government is acting in a forbidden content-based rather than neutralcontent way. Strict Scrutiny Review: Such regulation will be subjected to strict scrutiny thereby requiring a determination of available neutral alternatives. Can 12 3 . Not face-to-face. criminalizing it while not criminalizing other types of unprotected speech. States can regulate unprotected speech. there is no opportunity for counter-speech. but not all of it. However.” b. one side could use fighting words while the other could not.Profanity as Protected Speech 1. Thus.B.HYPO: A hotel clerk tells Russel Crow that he is a no good S. Here. The manner of confrontation cannot consist of selective limitations upon speech. religion or gender) is impermissible content based. This will be true for a general ban on the speech even if all of the type of speech falls within an unprotected category. a. Ex: Cohen v. color. A: Under the fighting words doctrine is limited to face-to-face confrontation. The state has no right to cleanse public debate because “one man’s vulgarity is another’s lyric. ii.the hotel clerk be punished under the first amendment? 1. Viewpoint Discrimination: Where two opposing sides have a confrontation concerning a matter of race or religion. CONTENT-BASED REGULATION OF UNPROTECTED CATEGORIES: FIGHTING WORDS & HATE SPEECH i. 3. ISSUE: Whether the profane/offensive phrase should be considered unprotected speech.

Ex: Can’t hold up a sign that says all anti-catholics are bastards. even though the state doesn’t punish other types of intimidating or threatening acts. ii.V. iii. v. D argued that the statute was (1) Substantially Overbroad. creed. 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. “True Threats” as Unprotected Speech: A state may select a particular type of expressive act (e. i. Ex: Wisconsin v. HELD: The statute is impermissibly content based and thus unconstitutional. The prohibition on true threats protects individuals from the fear of violence. Fighting Words Distinguished from Hate Speech & Penalty-Enhancement Statutes: A state may identify particular generally-appicable criminal proscriptions. Ex: R. 3. etc. The speaker need not actually intend to carry out the threat.A. Ex: Thus. The Court distinguished R. a. City of St. 12 4 .V. etc. D was prosecuted under a “Bias-Motivated Crime Ordinance” which provided that “whoever places on public or private property a symbol. religion.A. a.A. and (2) it was impermissibly content-based. cross burning). color.i. etc. but holding up a sign saying all catholics are bastadards is ok. and punish all instances where that act is done with a purpose of intimidating or threatening someone. 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. 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. Ex: Fightng words on the basis of homo or union members are not listed when race color.Exceptions to the General Rule of R. in addition to protecting people from the possibility that the threatened violence will occur. or resentment on the basis of race. swastika. Paul. 3. object. gender etc are. 2. on the ground that the statute was aimed at conduct unprotected by the 1st Amendment. religion or gender. 1. Minnesota: D and several other teenagers allegedly burned a cross in the yard of a black family.” the very most obscene obscene images. buring of a cross. the state may choose to criminalize just the very most dangerous “fighting words. shall by guilty of a misdemeanor. 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. alarm.g.V. which one knows or has reasonable grounds to know arouses anger.

Black: Three defendants convicted of felony 12 5 . even if the state did not criminalize other intimidating messages. except it that the statute only proscribes attacks on democratic cadidates and officials. i. Therefore. b. b. Intent to intimidate.A.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. the state may criminalize the very worst illustrations of the very reason why an entire category is unprotected by the 1st Amendment. a. The statute prohibited cross-burning with an intent to intimidate. and not fighting words. true threats. HELD: The Supreme Court struck down the statute due to the prima facie provision and analogized cross burning to another category of unprotected speech. and convict a person based solely on the fact of cross burning itself. A state passes a law which imposes civil penalties on advertising whch contains false material statements of fact to induce wrongful reliance on reader. prosecute. Government may single out Cross-Burning (Symbolic Speech): A state may ban any crossburning done with intent to intimidate another. included a prima facie provision that allowed the fact-finder to infer an intent to intimidate from the very act of cross burning. Two Purposes of Cross-Burning a. 1. Variation: Suppose the same. Thus. the prima facie clause chills constitutionally protected political speech because a state could possibly convict someone who only engages in lawful political speech. 4.’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. 1. the other two burning in a black neighbor’s yard).V. 2. Political expression: Therefore. Speech swept up in a statute mostly banning conduct: 5. A: False advertising is not protected speech. ii.cross-burning (one burning a cross at a KKK rally in a private field. the State may choose to prohibt only those forms of intimidation that are most likely to inspire fear or bodily harm. It permits the Commonwealth to arrest.Hypotheticals 1. Secondary effects: iv. R. Ex: Virgina v. thus the state can regulate.

The Court has rejected the argument that the standards should have to be at least statewide. 4. 2.A. for identifying what the State may ban as Obscene. Variation: Suppose the same. Thus. 1. Miller Test for Obscenity (Miller v.A. appeals to the prurient (unwholesome sexual) interest. or national origin a.. 3. b. However. A: Still underinclusive under R. Whether the work depicts or describes. color. Thus.V. except the statute proscribes speech that harms the aged or those with limited education and causing more than $1. ii. ask: a. Gays. California): Miller laid down a three part test. 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. Whether the average person. and to then punish the distribution or sale of the material so defined. What counts are the standards of the local community where the prosecution takes place and the triers of fact. the statute is underinclusive. sexual conduct specifically defined by applicable state law. taken as a whole. 1. Variation: Same as above. obscenity can be judged by the standards of a small rural town. 1. distribution. they are not completely free to define obscenity however the wish.000 dollars in wrongful reliance a. A: Under R. and 12 6 .V. Labor Unions. Community Standards: What appeals to the prurient interest or is patently offensive is not to be determined by reference to a national standard.a. D. NOTE: Miller limited scope of obsenity to sexual conduct not violence. i. in a patently offensive way. He was convicted of knowingly distributing obscene material. OBSCENITY i. 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.Facts of Miller: D conducted an unsolicited mass mailing campaign to advertise the sale of illustrated books of adult material. and selling of it. Unprotected Speech: Recall that this type of speech is listed in the Chaplinsky List and therefore the State may proscribe it. However. when there are depictions of sexual conduct specifically defined by state law. they can still ban the production. applying contemporary community standards would find that the work. A: “The Worst of the Worst” The statute is targeting those who are most likely to fall into the harm proscribable by that speech. and Religious organizations are not protected by the statute. with all parts required to be met.

Whether the work. and in order to prevent a chilling effect. political or scientific value (lacks serious socially redeeming value). Ex: Patenly offensive representations or descriptions of masturbation. 3. 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. Medical books etc. a. i. taken as a whole. actual or simulated. This was done in violation of Georgia law regulating the allegedly obscene material. b. 1. 2. Ex: Paris Adult Theatre I v. (2) the tone of i.” There were warning signs of it being an adult theater and an age requirement as well as notification of nude persons on the screen. c. The Court rejected the theory that obscene. RULE: Nothing precludes a State from the regulation of this sort. Since the states must be specific about what conduct is being banned (in order to satisfy the 1st Amendment need for fair notice. the Court provided the following examples of materials which could be banned a. iii. provided that the applicable state law meets the 1st Amendment standards set forth in Miller. Limited to “Hard Core” Sex: Miller also establishes that the states may ban as obscene only depictions or descriptions of “hard core” sexual conduct. excretory functions. Slanton: D’s commercially displayed two films characterized as “hard-core porn. Ex: Patently offensive representations or descriptions of ultimate sex acts. normal or perverted. Appeallate courts will review these findings of fact and will reverse if the findings could not have been made by a reasonable jury.out sexual acts that would be banned if they were depicted. Appeallate courts tend to disagree with juries on third prong and are less deferential than on prong 1 & 2. artistic. permitted.NOTE – Adult Movie Theaters 1.” leaving “little to the imagination. Appeallate Courts tend to disagree with juries on third prong and are less deferential than on prong 1 & 2. 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. NOTE – Vagueness: The State must specifically set 12 7 . pornographic films receive constitutional immunity from state regulation simply because they are exhibited for consenting adults only. i. lacks serious literary. b. Ligitimate State Interests: Even assuming it is feasible to enforce effective safeguards against exposure to juveniles and to passerby. and lewd exhibition of the genitals. HELD: The Court upheld the regulation. the jury does not have unbridled discretion.

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. Miller. 1. The faces of death 9 shows graphic depictions and nude corposes. a.Hypotheticals 1. Supopse the distributor of obscene materials in the Miller case had been sent out only by request. Harmful to minors was defined as appealing to the prurient interests of minors. and (3) Public safety itself (Crime linked to obscene materials) 2. A: Paris case holds there is no exception for consentingadults. However. Roth. If work not obscene but “indecent. b. it has no 1st Am protection. Can this be punished as obsence? a. A: Vagueness issue 3. Suppose the law simply recites the three prongs? a. the state is allowed to ban obsenity even as applied to willing adults because of the legitimate interests at stake. (Ginsberg) 2. Ex: Ney York v. NY statute prohibited distribution to minors of materials containing female butts or boobs uncovered below the nipple if the materials were harmful to minors. A: Miller limited scope of obsenity to sexual conduct not violence 2.” can regulate broadcast media so as to limit exposure to minors. CHILD PRONOGRAPHY i. Thus. a. Materials that wouldn’t be considered obscene for adults and are thus protected are not necessarily so protected for distribution to minors. E. (Pacifica v. which depicts such 12 8 .commerce in the great city centers. The materials that wouldn’t be considered obscene for adults and are thus protected are not necessarily so protected for distribution to minors. Brennan Dissenting: Outright suppression of obscenity by the State cannot be reconciled with the Constitution. was patently offensive. (Ferber) 3. iv. iii. Can have stricter obscenity standard for work being viewed/read by minors – adapt each prong of Miller to minors.Ex: Ginsberg v. FCC) ii. 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. certin regulation of obscenity to prevent exposure to juveniles and unconsenting adults should be permitted. HELD: The Supreme Court upheld the conviction. New York: Ginsberg was convicted of selling two girlie magazines to a 16 year old boy. See also Brennan’s Dissent. General Rules 1. Memoirs). Ferber: NY criminal statute prohibiting persons from knowingly promoting sexual performances by children under 16 by distributing material. If work shows minors engaging in sex acts. and was utterly without redeeming social importance for minors (a combination of all standards.Children as Pornographic Subjects 1.

piss. iv. INDECENT SPEECH: REGULATION OF INDENCY IN MEDIA i. Preventing Sexual abuse and exploitation of children in the production process. Justifictations i. Until now. a. c*nt.Creates a distribution network 2. Pacifica Foundation: Pacifica broadcast 12 minute monologue entitled “Filthy Words. and tits. Analagous argument to Ferber 3.” which referred to “the words you couldn’t’ say on the public. ii. It did not impose sanctions but stated that it could be the basis for sanction on subsequent complaints. b. profane. um the ones you definitely wouldn’t say ever. even though the material is not legally obscene because it has no 1st Amendment protection. which issued an order holding that Pacifica could have been subject to sanctions. grow hair on your hands and (laughter) maybe even bring us peace without honor (laughter). Georgia to permit 1st Amendment protection to have child porn in the privacy of one’s own home. FCC did not intend to prohibit this absolute but wanted to 12 9 . but the NY court attempts to expand the set of unprotected categories to include child porn as unprotected speech. but that it was indecent and prohibited by a section of the Communications Act. because it may just be overbroad. cocksucker. NOTE: The Court has not extended the reasoning in Stanley v. f. or obscene language by radio stations. Definition of Indecent: Refers to non-conformance with accepted standards of morality. This case arose when a bookstore owner sold two child porn films to an undercover police officer. HELD: Supreme Court held that States are entitled greater leeway in the regulation of child porn. FCC reasoned that the language was not obscene.” Some people complained to the FCC.Creates a market for child porn and incentives for more abuse. Application to Media: The Supreme Court holds that the government has substantial latitude in regulating indecent expression on the public airwaves (Over T. mother effer. ah. 1. airways.” Among these words were “shiz. Unclear from Ferver whether we have to make an exception for literary work of minors.Ex: FCC v. The state may ban the distribution of materials showing children engaged in sexual conduct. child porn was not an unprotected category under Chaplinksy. iii. Thus. it would be evaluated on a case by case basis.Permanent record of child abuse that will scar the child and remain with him for life. NOTE: A statute banning all depictions of children in a sexual light would not be substantially overbroad. f. RULE: It is Permissible to consider child porn without the protection of the First Amendment. Those are the ones that will curve your spine.V and Radio) ii.performances. which prohibited indecent.

The Court applied intermediate scrutiny because the regulation was content neutral.Protecting the quality of the city’s neighborhoods b. 3.Maintaing property values. the exercise of its regulatory power does not depend on proof that the pig is obscene. place. 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. FCC) a. Must be narrowly tailored. Playtime Theater: The Court upheld a municpal ordinance that prohibited adult movie theaters from locating in about 94% of the city’s land. it is broadcasting radio that has received the most limited First Amendment protection because: a. Captive Audience Rationale: Thus. 1. When the Commission finds that a pig has entered the parlor.Protecting the city’s retail trade. Prevention of crime. Of all forums of communication. 1. HELD: The Supreme Court upheld the FCC orders. Rather. ii. Ex: City of LA v. or declining property values) the regulation will be found to be content-neutral and will be given only Track Two review. 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. iii. iv. PLACE. RULE: If work not obscene but “indecent. but indecent speech language for all airwaves at all times. (Pacifica v. g. and manner restrictions. a. Therefore.” can regulate broadcast media so as to limit exposure to minors. making context all important. it contended that principles analogous to those of nuisance could be applied.restrict is to times of day when children wouldn’t be exposed to it. They are not banning. It is uniquely accessible to children. AND MANNER ANALYSIS: ZONING i. Alameda Books: Very similar case as above where the Court applied the secondary effects doctrine. the FCC believed that it could keep this kind of language off the airwaves in the early afternoon. Ex: City of Renton v. just regulating. b. Of its uniquely pervasive presence that enters the privacy of the home i. Context/Forum Important: Some uses in certain contexts are unquestionably protected but in others not. FCC Nuisance Rationale: The FCC did not assert that it could ban non-obscene. 13 0 . 2. a. TIME.” b. when children were the likely audience. Words that are commonplace in one setting are shocking in another. prior warning of the indecent speech are insufficient to nullify this assault on privacy. The ordinance was content neutral because the State’s interests included: i. RULE: It is permissible for a state to engage in time.

If people had to worry about speaking out against the government. confidence or esteem in which he is held. knowledge. Opinions Not Actionable (Lorainne Journal v. If they cause tortious damage to reputation. a. The alleged defamatory statement must relate to his official conduct. a. wide-open. Must show actual malice in order for a public official to recover for defamation. or recklessness will suffice for this standard.Defamation in the Public Arena: Public Officals 1. 3. Actual Malice: Knowledge of falsity. or would have investigated before published. statements that do not amount to an assertion of facts and are merely name-calling or statements of opinion are not actionable. Thus. or to excite adverse or unpleasant feelings about him” 1. 2. Rationale: Public debate should be robust. Intent. goodwill. Thompson) a.” a. Rationale: Minimal redeeming or social value in false statements of fact. To Recover Under This Standard a. DEFAMATION i. or reckless disregard for whether it was true or not. that is. and b. Common Law Defamation: defined as “a communication that tends to damage the plaintiff’s reputation. there is no constitutional violation in recognizing defamation. ii. i. there will be no cause of action because part of the tort of defamation is falsity. 4. To do 13 1 . Negligence Insufficent: It is not enough for the official to show that a “reasonably prudent man” would not have published the statement. Ex: A TV station correctly says that the mayor has taken a bribe. Amant v. 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 diminish the respect. NOTE: Subjective Standard of Actual Malice (Ex: St. this would chill speech. We want maximum breathing space and minimum chilling effect. Categories of Defamation a. 3. Defense of Truth: When a true statement of fact is made that may seem like it is defamatory. Milkovich): Assertions of facts are actionable if false and defamatory.H. These cases are clear that reckless conduct is not measured by whether a reasonable prudent man would have published. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication. Libel: Written or printed defamation b. it is an absolute defense. more or less in the popular sense. Slander: Spoken defamation 2. and uninhibited.

Ex: New York Times v. 2. b. The NY Times Standard does not apply to suits by private figures. he felt the ad was of and concerning him. 2. Ex: AP v. The reporter’s actual presence at the scene. d. Walker & Curtiss Publishing v. there is no constitutional requirement that he prove that the defendant knew his statement to be false or recklessly disregarded the truth. A public figure (not officials) may also recover damages for defamatory falsehood whose substance makes substantial danger to reputation apparent. The ad did not explicitly mention the Plaintiff. NOTE – Intentional Inflication of Emotional Distress 13 2 . why there is a fault standard to protect speech. a. The events described were inaccurate depictions. The Trustworthiness and competence of the reporter. That is. The NY Times Standard has been extended to include pulic figures. but by his position. iii. The Standard Is akin to gross negiligence which is not quite actual malice. The need for immediate dissemenation of the breaking news story. 5. Sullivan: Defendant New York Times published an ad to civil rights group that defamed plaintiff. 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. He must only show publication and falsity. f. The consistency of the previous reported conduct of the same public figure. Robert Welch. g. Held no libel because the ad pertained to a public official. Butts established certain factors to take into account as to whether the standard is breached: a. The lack of motive to distort. we must have a margin of error for defamation liability when the subject is a public official.. where the plaintiff is neither a public official nor a public figure. The Internal consistency of the dispatches with one minor discrepancy.Defamation in the Public Arena: Public Figures 1. and the plaintiff failed to prove actual malice. Ex: Gertz v. a. iv. but that may not impose strict liability (liability without fault).Defamation in the Private Arena: Private Figures and Speech of Public Concern 1. Negligence Standard Permitted at a Minimum: The 1st Amendment does not forbid that use of ordinary civil negligence as the standard. The states are free to decide which standard to apply. Inc. c. Whether the news is “hot news” and requires that there be a thorough investigation into serious charges and whether that procedure was ignored. who was a public official. i.

Stewart. and irreparable damage (similar to clear and present danger test) to our Nation or its people. Minnesota a. United States – The Pentagon Papers Case (Per Curiam Opinion): This case establishes that the press has almost absolute immunity from pre-publication restraints 1. the Court found that while danger would probably result from the publication. FREEDOM OF THE PRESS A. Brennan. HYPO: A publuisher wants to publish a history which would identify who in the past were CIA agents. v. The burden will always be on the Government to overcome this heavy presumption. Extraordinary Circumstances for Prior Restraint must be proven Concurrence a.S.1. Any governmental action which prevents expression from occurring (as distinguished from punishing it once it has occurred) is presumed to be unconstitutional. That is. Exceptional Cases in which a Prior Restraint may be permissible: Actual obstruction of recruitment for the armed forces. 3. a.E. Is a prior restraint valid? a. or both. ii. 1. and publication of the location of troop movements during times of war. 4. it was not substantially certain. Stewart’s Concurrence Standard: The government must show that publication will surely result in direct. The Court denied the injunction sought by President Nixon very heavy burden/presumption against prior restraint on publication.Ex: New York Times Co. Ex: Hustler Magazine v. In NY Times. Facts: The NY Times and the Washington Post began publishing a secret Defense Deartment Study of U. 2. b. The question was whether the United States government could enjoing the Publications.I. White. The Court should do an in camera review to see if any of the information really is a threat to national security. Falwell I. 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. policy in Vietnam. immediate. Ex: Near v. or congressional authorization. This is all the more true when the prior restraint is directed against the press. The danger cannot be merely speculative. and (3) is it of sufficent 13 3 .D. 2. and Marshall all would recognize the extraordinary circumstances in which a prior restraint could upheld. A: Ask whether it would (1) endager those individuals. (2) endager an ongoing investigation. PRIOR RESTRAINTS AS PRESUMPTIVELY UNCONSTITUTIONAL i. The NY Times Standard also applies to actions for I. but each believes that either proof. are missing in this case.

e. it also has an expanded interest in regulating it for the public interest. g.detail that it would reveal sources and methods of covert opps that effect those now going on. The court must satisfy two steps: i. Alternatives for Gag Orders a.Gag Orders treated as Prior Restraints (Ex: Nebraska Press Association v. d. Court said if the government has the ability to regulate via licensing the public broadcast frequencies based on scarce resources in public broadcasting. iii. A similar “equal time or equal space” rule as applied to newspapers would be unconstitutional because the “naturally scarce” rationale doesn’t apply. b. Essentially a Strict Scrutiny Standard: There are times where the court can limit press coverage on certain aspects of the trial.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. which required broadcasters to provide coverage of each side whenever they covered a controversial issue.Less restrictive alternatives that would achieve the same outcome must be considered: 1. a. 1. Searching questioning during voir dire. integrity or like personal qualities of an identified person or group” was aired. Ex: Red Lion Broadcasting v. Stuart) 1. The Risk of harm coming from press coverage must be certain. Sequestration. Instructions against publicity to jurors. Postponement. 13 4 . DIFFERENT TREATMENT OF ACCESS IN BROADCAST AND IN PRINT MEDIA i. character. and ii. NOTE: This doctrine is limited to the unique nature of Broadcast Media. to outweigh 1st Amendment Protection. especially before a trial begins and the need to ensure there is an unbiased jury. FCC: FCC promulgated the fairness doctrine. c. 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. a. Two Rules at Issue i.The Fairness Doctrine 1. Change of venue. A pre-trial order prohibiting the press from publishing certain types of information because of the dangers of publicity. Personal Attack Rule: Required the broadcaster to furnish a tape or transcript and free response time when an attack upon the “honesty. Gag orders binding counsel and state employees. HELD: The Supreme Court upholds the two rules. Courtroom Closure B. and not merely speculative. ii. f.

NOTE: There is no fairness doctrine today because it was rescinded by administrative action and has never been reinstated. and manner restrictions ii. Ample alternative channels 4. mode. GENERAL i. or distribute materials or to solicit contributions to do so only from assigned booths. or Manner Restrictions 1. & MANNER RESTRICTIONS A. (Overinclusive) B. Ex: Heffron v. TIME. ISKCON wanted to solicit 13 5 . the Government is not regulating the content of the speech. Activities protected by the First Amendment are subject to reasonable time. Place. OR MANNER DOCTRINE i. The State is substantially freer when it acts in a content-neutral manner. Clearly content-neutral? 2. When it engages in this type of regulation. place. I. 1. Substantial governmental interest. it will be review under a Track Two Analysis.Time. International Society for Krishna Consciousness: The State promulgated a Rule applicable to State Fair requiring persons desiring to sell. but is instead regulating the manner. 3. Ex: City bans all solicitations within city limits. PLACE. PLACE. THE MODERN TIME. Narrow Tailoring a. exhibit. and location of speech.1. Here.

b. and manner analysis. 2. Protecting the safety and convenience of fairgoers. Lee: ISKCON wanted to distribute literature and solicit money in New York airport terminals in connection with their religion.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. the Port Authority permits solicitation and distribution on the sidewalks outside the terminal buildings. i. 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. In Heffron. The regulation governs only the terminals. place. and they wanted to do so at the State Fair. Maintaining the orderly movement of the crowd in a relatively small area. Criterion for Valid Time.donations in connection with their religion. and manner restriction must serve a significant governmental interest. Place. the Rule does not prevent ISKCON from practicing its religion outside the fairgrounds. The Port Authority has adopted a regulation forbidding within the terminals the repetitive solicitation of money or distribution of literature. it must also be sufficiently clear that alternative forums for the expression of respondents’ protected speech exist despite the effects of the Rule. It does not exclude ISKCON from the fairgrounds. Content Neutrality: The restriction may not be based upon either the content or subject matter of the speech.Forum Based Approach for Assessing Restrictions 1. Alternative Forums Exist: For a rule to be valid as a place and manner restriction. ii. 1. Significant Governmental Interest: A valid time. Supreme Court concludes that terminals are nonpublic fora. the significant governmental interest included: 1. with the public moving to and among the booths or other attractions. Ex: International Society for Krishna Consciousness v. This is accomplished by confining individual exhibitors to fixed locations. nor does it deny that organization the right to conduct any desired activity at some point within the forum. a. In Heffron. Question as to whether airport terminals are public fora or nonpublic fora. and Manner Restriction a. using streets and open spaces provided for that purpose. c. and that the regulation reasonably limits 13 6 . But it is also well settled that the government need not permit all forms of speech on property that it owns and controls – time. space. ii. i.

a. less likely to be one b. 2. All other government property are non-forums. 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). unless the restriction is a narrow one which is necessary to serve a significant governmental interest. Immemorially been held in trust for public 2. i. If it is remote. the state must merely avoid choosing means that are substantially braoder than necessary to achieve the significant government interest.Characteristics of a Public Forum 1. nor is a public forum created whenever members of the public are permitted freely to visit a place owned or operated by the Government. Purpose: Property that has a principal purpose…the free exchange of ideas 3. Thus. A forum is a designated forum only if the government intended it to be open. unless the regulation was viewpoint based. 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. 4. Rational Basis Review: Must satisfy rational basis. The decision to create a 13 7 . subject to greater restriction. more likely it is a public forum 4. Designated Public Forum: Property that the state has opened for expressive activity by part or all of the public. the state must avoid inclusivness. iii. Rock Against Racism: This narrow-tailoring requirement does not mean that the state must choose the least-restrictive means to achieve the objective. The government can block these. government deliberately creates a space for this expression. 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. Remaining Public Property: Challenged regulation need only be reasonable. If a well traveled area. Narrow Tailoring: Speech in a public forum may not be restricted. Traditional Public Forum (E. 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. a. 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. NOTE Ex: Ward v. and some one starts talking about Deep Space 9.g. a. Ex: Government sets up chat room to ask questions about medical benefits. Instead. Intent of Government: Government does not create a public forum by inaction. a.solicitation. even in a content neutral way. we have no doubt that under this reasonable standard the prohibition on solicitation passes muster.

CONDUCT A. If the governmental interest is unrelated to the suppression of free expression. Flag Burning (Ex: U. If it furthers an important or substantial governmental interest. 1. SPEECH V. c. Least Restrictive Means B. b. a sufficiently important governmental interest in regulating the non-speech element can justify incidental limitations on First Amendment freedoms. Neither by tradition nor purpose can the terminals be described as satisfying the standards we have previously set out for identifying a public forum.public forum must instead be made by intentionally opening a nontraditional forum for public disclosure. CONDUCT II 13 8 . SPEECH V. a. and ample alternative opportunities for communication and expression II. It is within the constitutional power of the Government. the Court struck down the ban on distribution Public Forum Non-Public Forum must: The regulation must be: eutral. but speaker’s status may be considered). (i) Reasonable (i. v. HELD: The Supreme Court upholds conviction for these individuals for destroying/mutilating registration certificate. If the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest. In Heffron.S. Intermediate Level of Scrutiny: When speech and nonspeech elements are combined in the same course of conduct. the terminal does not have a principal purpose of promoting the free exchange of ideas. SPEECH V. and d. thus it is not a traditional public forum. They have not previously intentionally opened by operators to such activity. 2. b.. viewpoint neutral. Symbolic Speech: The Court holds that even if some type of symbolic speech may be protected by the 1st Amendment. conduct combining speech and non-speech elements could be regulated if: a. i. and tailored (ii) Not meant to suppress expression merely because official oppose it or it is a me ificant government interest. CONDUCT I i.e. Obrien): O’Brien and three others burned their Selective Service registration certificates publicly on courthouse steps in opposition to the draft and Vietnam War. However. Determined that the statute specifically protects this substantial governmental interest of preventing harm to the smooth and efficient functioning of the draft.

i. Is it truly expressive conduct? a. the interest was not implicated. Johnson): Johnson burned an American flag while chanting. Desecretion was defined to mean deface. 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. The court rejected this argument finding that there was no nexus between it and the statute. but he was convicted under a statute which made it a crime “to intentionally and knowingly desecrate a state or national flag. 3. so this was directly related to expression. ii. i. NOTE: If there a multiple interest. we spit on you. damage. then we must ask whether this interest justifies Johnson’s conviction under a more demanding standard than O’Brien. 2nd Interest: Preserving the flag as a symbol of nationhood and national unity. is the asserted governmental regulation related to the suppression of free expression? a. a. or otherwise physically mistreat in a way that the actor knows will seriously offend one or more persons likely to observe the action. strict scrutiny standard of review.This expressive conduct does not fall within a category under Chaplinksy. 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. Flag Desecration (Ex: Texas v. rational basis standard of review b. Would eviscerate the holding in Brandenburg. i. Need: (1) Intended to convey a message? (2) Likely that it would be understood by others as conveying a message? 2. is the asserted governmental inetrest even implicated? a. then the less stringent O’Brien Test for regulations of non-communicative conduct controls. HOLDING: Johnson’s burning of the flag was conduct sufficiently imbued with elements of communication to implicate the First Amendment. ii. If it is related to expression. 4. merely by allowing the criminalization of something like flag burning that has the potential to cause a breach of the peace. white and blue. Subject the State’s asserted interest in preserving the special symbolic character of the flag to strict scrutiny. the red. If so. b. “America. Since the 13 9 . Thus. 1st interest: Preventing breaches of the peace.” outside Texas City Hall during the Republican National Convention of 1984. you must analyize both here. The State’s interests asserted were related to the suppression of free expression.Analysis for Regulating Expressive Conduct and Not Speech 1. If not related to expression. flag burning constituted protected speech. If the conduct is expressive. HELD: The Supreme Court invalidates the conviction. No physical violence resulted or was threatened.

State did not have a compelling governmental interest. 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. ii. the conviction was overturned.