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Constitutional Law Outline


I. JUDICIAL POWER A. JUDICIAL REVIEW
1. Marbury v. Madison and limiting the power of the executive. a. Establishes Judicial Review generally and, in this case, over the POTUS. i. C.J. Marshall says that Questions in their nature political, or which are, by the constitution and laws submitted to the executive, can never be made in this court. . . [But where the head of department] is directed by law to do a certain act affecting the absolute rights of individuals, . . . it is not perceived on what ground the courts of the country are further excused from the duty of giving judgment that right be done to an injured individual. ii. C.J.M. reserved the SCOTUSs power to review executive decisions by the POTUS. Where acts of the latter conflict with the Constitution, and where they concern rights, the court can strike them down. b. Where is this power found? i. C.J. Marshalls arguments. According to Seaman, C.J. Marshall just sort of pulls this out of his ass. A) Limits on government would be meaningless unless subject to judicial enforcement. 1) Counterargument: Other nations with written constitutions exist that dont give the judiciary this power for review. (Canada, for example.) B) Judicial role argument. It is emphatically the province and the duty of the judicial department to say what the law is. There is an implied power to strike down conflicting laws, its even in the oath the Justices take. 1) Counterargument: Same as above. There exist countries where the courts dont have to rule on constitutionality. 2) What about the doctrine of avoiding constitutional questions? The SCOTUS usually likes to do this. Furthermore, the SCOTUS could have significant power to decide what the laws were if they were to evaluate them based on the enacted federal statutes, and not the constitutionality of these laws. C) The Supreme Law of the Land argument: Laws are to be made in pursuance of the Constitution. 1) Counterargument: This doesnt give power to the judiciary, it may just mean that Congress should enact laws if they are authorized by the Constitution. ii. C.J. Marshalls political brilliance in avoiding a showdown with the POTUS lead to the court establishing a power that many could argue it did not have. By Dred Scott this power was accepted as part of American government. c. Arguments to keep in mind and running themes. i. Should we be giving this power to unelected officials? ii. Democracy problem. A) Unelected officials who are not readily removable decide what the law is. B) The Constitution is very hard to change, why should simple majority not be allowed to do so through subsequent laws? If the Congress thought it was unconstitutional, would it have passed the law? iii. Judicial restraint and the possible positives. A) The SCOTUS largely restraints itself. Examples of this may be doctrines like Constitutional Avoidance. 1) Should we not be tackling hard questions though? 2) Judicial review is recognized as problematic here. B) Writ of Cert is notoriously rare and the SCOTUS only accepts 4% of cases that ask for Certiorary.

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C) The SCOTUS is a counterbalance to the democratically elected branches. 1) Limiting Judicial Review to instances where democracy is at peril. 2) The SCOTUS has shown before that it can be a way towards change. Think Brown v. Board of Education and the Warren court. Original Jurisdiction and Appellate Jurisdiction. i. In Marbury the Court held that Under 13 of the Judiciary Act of 1789, the court held original jurisdiction regarding requests for mandamus. ii. The Court, however, found that Article III only authorizes original jurisdiction for suits affecting Ambassadors, other public ministers and Consuls, and those in which a State shall be a Party. A) The Court held this to mean that Congress could not add to this list cases seeking a writ of mandamus. B) If it had been intended to leave it in the discretion of the legislature to apportion the judicial power between the supreme and inferior courts according to the will of that body, it would certainly have been useless to have proceeded further than to have denned the judicial power, and the tribunals in which it should be vested. 1) Article III would be meaningless if Congress could add more areas to original jurisdiction. 2) Note: Original Jurisdiction and Appellate Jurisdiction are not necessarily mutually exclusive. C) Federal Courts are therefore established as court of limited jurisdiction. D) Article III is the ceiling of federal jurisdiction. 1) Seaman thinks that Article III as a floor is sort of bullshit anyways. iii. This also hints and points at Judicial Review for the Legislature being available to the Court.

B. JUDICIAL REVIEW OF STATE COURT DECISIONS


1. Martin v. Hunters Lessee a. Treaty between US and Great Britain protected the rights of British subjects to own land in the United States. Virginia sided against the British national because of a Virginia law that sequestered land owned by British nationals after the revolution. Court granted a Writ of Error against the Virginia Ct. of App. and the latter came back saying that the courts of the US had no jurisdiction over state manners, which belong to a different sovereignty. i. Does the SCOTUS have power over state court decisions? b. The SCOTUS has jurisdiction over state court decisions. Judge Story wrote the decision. i. If SCOTUS has no power to rule on state matters, then it follows that Virginia also lacks the power to oversee federal matters. ii. It would be a mess if all of the courts interpreted the Constitution in different ways. A) The SCOTUS review ensures uniformity in the interpretation of the federal law. iii. The Constitution is based on recognition that state jealousies and interests might sometimes obstruct or control the regular administration of justice. A) Story looked at the intent of the framers. They held that the people and not the states were came up with the constitution. 1

C. CONGRESSIONAL LIM ITS ON JUDICIAL POWER


1. How can Congress limit judicial power? Does it have plenary power over the SCOTUS and lower federal courts? a. Relevant Constitutional Text.

Remember Heller and interpretation issues.

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Article III 1 [The Judicial Vesting Clause]: Congress has broad authority over Fed. Ct. and their jurisdiction. Can eliminate lower Fed. Ct. at will. ii. Article III 2, cl. 2 [Exceptions Clause]: 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. A) Does exception imply a limit? Could congress except everything? B) Does exception apply only to Fact and not Law? ii. Article I 9, cl. 2 [The Suspension Clause]: The privilege of the Writ of Habeas Corpus shall not be suspended unless when in cases of rebellion, or invasion, as the public safety may require it. A) Habeas Corpus: The judicial review of the legality of executive detention. b. Exceptions Clause i. The argument for plenary power. A) Text of the clause implies that Congress may have power to abolish all courts and impose any regulations on the courts. B) Can the court remove jurisdiction for any given question of law? Seems like it [Ex Parte McCardle] ii. The argument for limited power. A) Historically, there is no indication that Congress can use this power. Theyve never done so before. Can they conceivably? Maybe. B) Did the founders ever even intend to give Congress plenary power? No indication of it. C) Separation of powers argument. 1) It would follow that if the powers of the branches were to be balanced, Congress would not have the power to abolish the SCOTUS. It could probably greatly limit it, though. D) Textualism argument. 1) Under Article III a few basic functions seem to be guaranteed to the court. Can Congress take away its appellate jurisdiction? Critics of plenary power would say that the Appellate JX is one of the powers that could be limited but not taken away. c. Limitations on Congress i. Congress cannot reverse a final decision of the Fed. Cts. [Plaut, Hayburn] ii. Congress cannot direct the outcome of pending cases or specify a rule of decision. [Klein] A) Decisions pending on appeal are not final. B) Congress cannot say X goes against 8th Amendment, (separation of powers) but it can say In order to go against the 8th Amendment, X must show A, B, C, and D. 1) It is up to the court to decide if X goes against the 8th Amendment, but Congress can point the SCOTUS in the right direction. (As Witte says: This is just the legislature holding its finger on the scale... SHAZAM, Arsony.) iii. Congress can act prospectively, obligating the courts against ongoing injunctions. [Miller v. French] A) Congress can enact a law that changes ongoing injunctions. Ongoing injunctions are not final and can be altered by law. d. Policy Considerations: i. Holding the SCOTUS democratically responsible. Limiting JX would subject the Court to democratic pressures. ii. Opponents point out that democracy isnt the only consideration here. The US is a country of laws, not of men, and therefore the Constitution needs to figure prominently in all facets of decision making. This necessitates the Court. iii. There is also the question about the legislature overturning SCOTUS precedent. Disregard for Constitution or the championing of democracy? Ex Parte McCardle

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Reconstruction Era South, a man detained for writing an article critical of the Reconstruction. In 1867, Congress had enacted law that granted SCOTUS JX to grant habeas corpus relief to anyone held in custody, even by the laws of state governments. Fearing a grant of Habeas Corpus to McCardle, Congress took away JX from the SCOTUS, allowing it only to grant habeas corpus to only federal captives. b. What the case means in the relationship between Congress and SCOTUS i. Article III allows Congress to limit the jurisdiction and scope of SCOTUSs power, but probably not take it away entirely. Here, jurisdiction was granted and then taken away; this is not contrary to Article III. ii. The Court still had jurisdiction on grants of habeas corpus, but only for those in federal custody. iii. Congress had power to enact this bill, according to J. Chase because it did not preclude SCOTUS review. Boumediene v. Bush a. Limitations of Habeas Corpus by Congress i. Suspension Clause. ii. Issue: Whether Congress could supplant habeas corpus to foreign detainees in Guantanamo Bay through the MCA of 2006. b. Courts decision i. Congress can only suspend Habeas Corpus in times of rebellion or invasion. Congress did not claim this and therefore could not substitute the DTA in for Habeas Corpus. A) Habeas Corpus is still there and unsuspended. This means that the DTA cannot be a substitute. ii. Court held that Guantanamo Bay was within de facto US control and thus part of the US, meaning that habeas corpus must be applied there. iii. Congress laws and limitations to the Court must be in keeping with the Constitution, or else they get struck down. c. Dissent i. The Court, who doesnt know anything about national security or enemy combatants decides that it is the ultimate arena to decide these issues. This should not be the case according to Scalia. ii. The Court should give maximum deference to Congress.

II. THE DISTRIBUTION OF NATIONAL POWERS A. SEPARATION OF POWERS, GENERALLY; ANALYTICAL FRAMEWORK
1. Separation of powers/checks and balances v. Strong, Independent Branches a. Purposes: i. Efficiency: allowing strong branches would increase efficiency. ii. Prevention of tyranny is the strongest impetus for the Separation of Powers. Formalism v. Functionalism a. Formalism: i. Strict adherence to the text. ii. The three branches only have the power given them by the Constitution. b. Functionalism: i. What are the purposes and goals of the Constitution? A) Can begin at avoiding tyranny, for example. ii. Pragmatism. A) Is it practical? Think J. Jackson in Youngstown. iii. Constitution is the blueprint. Crossover alright as long as Constitution is satisfied. Implied will of Congress.

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Domestic v. Foreign affairs context. a. Deference to Executive in Foreign affairs, for example. Analyzing an SOP Problem: a. What is the specific provision or action at issue? b. Who is the actor: Congress? POTUS, entity created by Congress? c. Formalist: Branch staying within assigned role? If not, does Const. allow it? d. Functionalist: Does act pose danger to individual liberty through aggrandizement? e. Domestic v. Foreign?

B. EXECUTIVE POWERS, PRIVILEGES, AND IMMUNITIES EXECUTIVE POWERS IN DOMESTIC AFFAIRS


1. Article II and the Steel Seizure Youngstown Sheet & Tube Co. v. Sawyer a. Does the Executive Branch have inherent powers? i. Question asked since the beginning of the presidency. Hamiltons inherent power view v. Madisons ii. President tired to seize a steel plant that threatened to strike during the Korean War. iii. The president has no express statutory or constitutional authority here. A) Legislative silence. They took no action concerning seizure. b. JACKSONS 3 CATEGORIES and the alternatives. i. Jacksons categories are most important. ii. Jacksons functionalist, pragmatic approach. He disallows Trumans actions and identifies 3 categories with regards to executive power. A) Realistic look at what the power is and how that interacts with the purposes of the Constitution. B) The fluctuations of executive power according to three categories: 1) President acts with Congressional authorization. Presidential power at its maximum. - Power of President [Art. II] + Power of Congress [Art. I] 2) President acts without Congressional action. Twilight zone. - Power of the President [Art. II] - Question of concurrent authority. Distribution is uncertain. No general rules here. 3) President acts against the will of Congress. Power at its lowest ebb. - Power of the President [Art. II] Power of Congress [Art. I] - Express or implied will of the Congress. (a) Possible problems with implied will. (b) In this case, Congress hearing Trumans plight and not acting was implied will. C) In this case, Trumans actions fell under the third category. iii. J. Frankfurters concurrence to disallow action. A) Look at history. Is this something that the President has done before? Is it long established? Did Congress allow or protest? B) These are not proof-positive but they held you come up with the answer. iv. J. Blacks concurrence to disallow action. (FORMALIST) A) Highly Textual. Looks at intent of framers, but mainly textual. B) Is this in the Constitution? Statute? If no, then disallowed. No implied powers. The Line-Item Veto and Congressional expansion of executive power. Clinton v. New York. a. Can Congress give the President power that is usually reserved by Art. I of the Constitution? b. J. Stevens decision says that enactment of laws and vetoing procedures must be adhered to strictly. They are expressly stated in the Constitution, we should not go against them just because its practical.

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Accumulation of executive power goes against Founders intent. Formalist approach taken here. Cant find it in the Constitution? Doesnt exist. ii. Vetoing only parts of the bill sent up to the president is the same as amending bill. This means that the bill before the President is no longer the bill for which Congress agreed. A) Constitution only gives POTUS power to veto, enact, or do nothing; amending legislation is a job that Art. I gives to the Congress. Dissenters and their approaches. i. J. Breyer takes Functional approach and says that POTUS didnt amend law, he simply vetoed certain parts of it. Further, the budget of the nation is no longer $4 million, appropriation bills are complicated and usually unified. Stupid to stay in the past. ii. J. Scalia: Youre all stupid as fuh, this is a non-delegation issue, not a Presentment one. i.

EXECUTIVE POWERS IN FOREIGN AFFAIRS


1. U.S. v. Curtiss-Wright and the broad presidential powers in foreign affairs. a. President tries to stop arms dealing with a South American country. Does he have the power? i. Questions of Federalism: Dealing with foreign governments is part of Fed. b. President can essentially do whatever he wants when it comes to foreign affairs. i. J. Southerland says that domestic authority is different from foreign affairs authority. Art. I delineates limitations on domestic affairs. ii. J. Southerlands functionalist approach. He says that realities of foreign policy dictate that the President needs greater inherent power to deal with these affairs. c. Case is still cited but the underlying thinking has been criticized. d. Tensions with Youngstown case? Dames & Moore v. Regan a. Presidents Regan and Carter seize Iranian assets during Iran Hostage Crisis and then, as part of deal, put cases involving Iran to arbitration and unfreeze Iranian assets. Plaintiffs say President doesnt have this power. i. Congressional action didnt speak to this specifically. Was there implied acceptance? b. Here, court says that the Presidential action was justified. J. Jacksons framework of 3 categories upheld. i. The POTUSs action here fell under Category I. But there wasnt any actual congressional approval? ii. Court finds that other statutes, which were approximate, mean that there is an implied Congressional approval of action. iii. Implied Congressional action can work to satisfy Category I. But this could have gone either way. A) Category II could have been used because there was no action on the part of congress explicitly. B) Here, Congress had provided general framework. Courts could imply power from it. c. Formalist approach and tensions with Youngstown. Possible Curtiss-Wright use. i. No explicit power given by statue here. No power granted by Constitution. ii. This could really have gone to Category II, but Congress here had not specifically considered and remained silent on this specific issue. It also had enacted other, approximate laws. iii. Should the POTUS get more deference here since he is dealing with foreign affairs? d. Broad foreign power? i. J. Frankfurters words from Youngstown were quoted. [U]nbroken, executive practice. . . never before questioned, is treated as vested under Art. II 1. ii. Should this case be construed narrowly? There may be room to strike down Exectuive Agreements in the future, but the rule seems to be that, unless the Executive Agreement goes against statute or the Constitution, it will be allowed to stand. Medellin v. Texas and the Implementation of Treaty Obligations.

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In General i. Supremacy Clause: A) Constitution > Federal Law > State Law B) Federal Law v. Treaty: Newest one wins ii. Procedure: A) President makes treaties B) Senate approves them by a 2/3 majority C) Art. II 2 cl.2: 1) He shall have power, by and with the consent of the Senate to make treaties, provided two thirds of the senate concurs. iii. Self-executing; doesnt have to be approved to become law. Vienna Convention and ICJ case Avena said that foreign nationals arrested by American police had the right to call the consulate upon being arrested. Texas law holds that this would be waived if not raised immediately upon arrest. President wanted to enforce decision on Texas court, making it binding. Can he? i. Presidents Memo: A) Not binding. President does not have the authority to unilaterally convert a non-self-executing treaty into a self-executing treaty. B) This is not a self-executing treaty. The memo should be taken into account at the courts discretion, though. ii. ICJs decision in Avena A) Not enforceable. ICJ has no jurisdiction over Texas Cts. B) Respectful consideration of ICJs ruling. C) Texas Court had already held that right to a consultation with Consuls office had been waived. Presidents powers in the context of this case. i. President does not have broad powers here. Although this is a foreign affair, President is asking courts to do something based on a non-self-executing treaty. ii. Court says that the Presidents actions fall under Category III: A) No Congressional consent was given to say that this treaty was accepted by it. No past acquiescence either. [Dames & Moore] B) The President does not have the power to do this all himself. 1) Court found that President did not ratify the treaty with the intent that it be binding domestically by its own force. iii. Dissent says President should put this in the Category II since the Congress was silent, and not disapproving.

EXECUTIVE PRIVILEGES AND IMMUNITIES


1. Immunities in General a. Executive privilege: the ability of the president to keep secret conversations with or memoranda to or from advisors. b. The President enjoys no explicit immunities. No explicit privileges. c. Justiciability of Executive privilege claims. i. Is there an invasion on executive authority? d. Qualified privileges and immunities. i. Never mentioned in Constitution, but presidents have claimed it throughout American history. ii. Why some privileges may be necessary? A) Executive privileges seen as necessary to receive candid advice.

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1) If the advisors were worried that their memoranda and voices would go public, theyd hold back on advice in order to look good in public. B) National Security concerns. 1) Diplomacy would suffer if everything was public. iii. President would also be cautious to his detriment. A) Nixon wanted to claim full privilege. e. Executive immunity to judicial process. i. Balancing test: Criminal v. Civil; Subpoena v. Deposition, etc. ii. Official acts v. Unofficial acts (no immunity) A) (U.S. v. Nixon; Clinton v. Jones) f. Chemerinsky final clarifications; i. Uncertain whether POTUS can be criminally prosecuted while in office or whether only impeacheable. ii. POTUS may not be sued for injunctions or money damages for actions taken while in office. iii. May be sued, while in office, for things that happened before taking office. Watergate and the Executive Privilege a. Unitarian Executive Argument. i. All of Executive is one. b. Who decides constitutionality of executive privilege? i. Courts are unwilling to give this up to President. c. Is there a constitutional executive privilege to withhold executive branch communications? i. Yes, but its qualified. ii. Leaning towards deference to the President, but there is a balancing test: A) The Executives general interest in confidentiality v. Peoples 4th and 5th Amendment rights. United States v. Nixon a. During the breakout of the Watergate Scandal, political pressures led to the appointment of Archibald Cox as special prosecutor. Cox subpoenaed (duces tecum) the White House for recordings. Nixon declined to comply, offering transcripts instead. Cox refused and Nixon went through three AGs to try and fire him in the Saturday Night Massacre. i. Leon Jarowski appointed as new special prosecutor. Subpoena duces tecum issued again, Nixon moved to quash. SCOTUS decided to review granting of subpoenas. b. The Holding (unanimous). i. This is not a non-justiciable inter-branch political question. A) The regulations set up after the Saturday Night Massacre made special prosecutor adversarial. They gave him the power to contest the invocation of executive privilege. B) Inter-branch question set off by adversarial nature of position. ii. Executive Privilege findings: A) It is the role of the Court to decide whether the President has executive privilege and to what extent. 1) Marbury: We say what the law is, not executive. B) Executive Privilege exists. 1) Candor and confidentiality. 2) Functional view: - Privilege flows from nature of enumerated powers. - Supremacy of each branch designates privileges for different constitutional duties. - Goes against J. Blacks Formalist approach in Youngstown. There are inherent powers. C) Executive Privilege is not absolute. 1) Must yield when there are important countervailing interests. 2) Absolute privilege would impede judicial ability to perform its constitutional function. 3) Evidence at a criminal trial, for example, outweighs executive privilege.

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- To hold otherwise would cut deeply into the guarantee of due process. Judicial Review heartily upheld. Cheney v U.S. District Court i. Cheneys energy taskforce said to have violated Federal Advisory Committee Act. The court discussed Executive Privilege. ii. Distinguishes Nixon. A) This is a civil suit; it does not involve constitutional balance of necessity for evidence in criminal proceedings. B) Need for information in civil cases isnt as urgent or significant as that in criminal cases. iii. In cases where secrecy issues could be raised, the executive need not even raise executive privilege. A) Raising executive privilege makes SCOTUS do important things like balance rights against privileges, so its best you dont bust their balls. Clinton v. Jones a. Prior cases (not in class) i. Nixon v. Fitzgerald A) Air Force analyst sued Nixon for unconstitutional firing. B) Frequent suits against the POTUS would detract him from his job. C) Immunity both during presidency and after leaving the White House. D) Impeachment is always available. b. Clinton sued for sexual harassment which took place before he took presidency. Move to dismiss/stay. i. There is no immunity for suits that come from unofficial conduct. A) Unofficial conduct = before taking office; Official conduct = while in office (POTUS duties). ii. Suit should be neither stayed nor dismissed. A) Whole point of immunity is to allow Presidential discretion while in office. B) Suits would not take too much of the POTUSs time. (J. Stevens) 1) Turns out, the suit did take up considerable time and led to impeachment. Counterargument. C) Possible that suits could be stayed by discretion of the D.C., but delaying some suits 8 years would preclude meritorious suits. D.C.s however, should accommodate the POTUS so as to not mess up official functions. iii. Dissent disagrees on time. Other executive officials. a. Absolute immunity: i. Federal and State prosecutors are immune to suits for money damages for prosecutorial actions. b. Qualified immunity: i. Good faith immunity (Harlow v. Fitzgerald). A) Same Fitzgerald, court said, government officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. ii. Test, put simply: A) Did the officer violate a clearly established right that a reasonable person would know? d. e.

C. LEGISLATIVE AUTHORITY
1. Legislative authority and the Separation of Powers. a. Congressional efforts to restrain executive authority. i. Non-Delegation doctrine. A) Practiced prior to the poultry cases. Authority given only to agencies with intelligible principle to outline power. ii. Legislative veto. (Not allowed) [Chadha]

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iii. Congressional power to remove agency officials [Bowsher] iv. Restrictions on executive power to remove agency officials [Myers] v. Giving a special court the power to appoint executive officers. [Morrison v. Olson] b. Functionalism v. Formalism in S.o.P. c. Appointments clause [Art. II 2] i. Principal Officers: Must be confirmed by Senate. ii. Inferior Officers: Can be appointed by Executive without Senate approval. iii. Congress cannot appoint executive officers, inferior or principal. d. Dilemma. i. Delegation is allowed, but the legislative branch cannot delegate to itself because it is bound by bicameralism and presentment. INS v. Chadha- Congress cannot delegate authority to a smaller body (LEGISLATIVE VETO) a. Deportation suspended by AG but overturned by House committee. b. This action violates bicameralism and Presentment Clause. i. J. Burgers syllogism (FORMALISM). A) Congress can legislate only if there is bicameralism. B) Congress can legislate only if there is presentment. C) The legislative veto is legislation without A or B. D) Therefore, legislative veto is Unconstitutional. ii. Legislative veto changes how a law is executed. By changing this and telling executive agencies how to do their jobs, it is also infringing on separation of powers. c. Dissent (J. White) i. Hobsons choice: A) Congress left to either refrain from delegating the necessary authority, leaving itself a hopeless task of writing laws with the requisite specificity to cover endless special circumstances across the entire policy landscape, or in the alternative, to abdicate its lawmaking function to the Executive Branch and independent agencies. ii. In one fell swoop, 200 pieces of legislation were invalidated. A) Congress included many provisions for Legislative Veto in its bills. J. White laments that this harms Congress and its abilities. (FUNCTIONALIST) d. J. Powell: This is judicial action, it is adjudicatory. e. Court extended this decision to cover not only agency decisions but also rules. f. Congress holds purse strings, it has other ways of playing around with agency decisions. It can also do everything by the books. Bowsher v. Synar Congress cannot give executive authority to a legislative agent. a. Congress gives itself power to remove General Comptroller for specific reasons (through Joint-Resolution). Comptroller General has powers over the budget. i. Formalist approach: CGs powers are executive and Congress cannot retain power of accountability and removal over an executive agent. Cannot have an executive legislative agent. ii. Congress cannot reserve for itself the power of removal of an officer charged with the execution of the laws except by impeachment. (Formalist majority) b. Concurrence, Dissent. i. J. Stevens: this is Chadha, there is a lesser legislative agent here trying to legislate, since Congress holds purse strings. Fails Art. I 7 because there is no bicameralism and presentment ii. J. White: no danger of aggrandizement. A) Official is very hard to remove. He is independent. This is a workable scheme, SCOTUS should stay out of it. (Functional) c. In conclusion: Executive power + Legislative official = Unconstitutional Morrison v. Olson

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Congress does not have the power to restrict the removal of a principal officer, only if she is an inferior officer. Here: independent counsel removal available to attorney general for good cause. i. Bowsher distinguished: Congress here had no role in removal, they simply restrict it. Only way to remove is still through impeachment. ii. President has sole discretion over principal officers. Do removal restrictions impede the presidents ability to perform his constitutional duty? iii. Congress is not taking away all removal powers, simply putting restriction (in this case, good cause). b. Functionalist majority (7-1) i. There is no danger here of aggrandizement (legislative would not infringe on executive). ii. There is need for independent counsel here (Court panel appoints him/her). c. Dissent (Scalias ominous warnings about Ken Starr) i. This is going to be used for political means. ii. Separation of powers. How can there be an executive official not under control of executive? A) Majority would argue that discretion is still available. d. Inferior officer? i. Inferior duties, not broad? Under power of AG? If he can be fired by someone other than the prez, then inferior. Free Enterprise v. PCAOB a. Cant have double restrictions and two layers worth of restrictions to bury agents in. b. This case: restrictions put on removal of inferior officers working under SEC officials (independent agency). Cant do it.

III. CONGRESS ART. I POWERS AND LIMITS A. NECESSARY AND PROPER CLAUSE
1. McCulloch v. Maryland a. Second Bank of U.S. gets taxed by Maryland. i. Is bank constitutional? ii. Can Maryland tax bank? b. J. Marshalls opinion: i. Historical argument for bank. A) We had one bank already and even Madison liked the idea of the second. B) Historical practice is not dispositive but it does help. (J. Frankfurter type analysis) ii. Text. A) Constitution is not a penal code, it doesnt need to enumerate all powers. Prolixity of a legal code, the constitution is not. 1) In considering this question, then, we must never forget that it is a constitution we are expounding. 2) Blueprint into the future. B) Congress is not limited to only those acts specified in the Constitution. 1) Congress may choose any means, not prohibited by the constitution, to carry out its lawful authority. 2) Expansion of govt power. C) Textually, the Necessary and Proper Clause was listed in the powers, not the limitations. (Textualism) 1) What does Necessary mean?

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Useful and desirable, this is not the absolutely necessary thats found earlier in the constitution. 2) What does Proper mean? - If prohibited than proper? - Possibly more limited than that. - Should congress, in the execution of its powers, adopt measures which are prohibited by the constitution; or should congress, under the pretext of executing its powers, pass laws for the accomplishment of objects not intrusted in the government; it would become the painful duty of this tribunal . . . to say, that such an act was not the law of the land. (J. Marshall) D) How necessary is necessary? 1) Courts defer to Congress in this question. iii. Structural argument. A) States cannot veto a federal action. The people are sovereign and they, not the states, ratified the constitution. 1) The government proceeds directly from the people, the states simply put the issue to the people when coming up with the constitution and the people decided on a federal government, not the states. 2) This view has been controlling. There has always been an undercurrent, however, that runs from John C. Calhoun to Clarence Thomas advocating for nullification. iv. Can Maryland tax the bank? A) No, power to tax is the power to destroy. B) Maryland can tax its own people but not those of other states (Fed. Gov.). U.S. v. Comstock a. Civil commitment of sexual predators under federal laws. b. C.J. Roberts sides with liberal Justices to say Fed. govt has power. i. McCulloch quoted. J. Breyer said okay under N&P. c. The reasonably adapted test. i. Are means chosen reasonably adapted to the attainment of legitimate end? ii. Congress has power to prescribe the sanctions for crimes that it creates under the N&P Clause. iii. THE FIVE CONSIDERATIONS: A) The breadth of the N&P. B) Long history of federal involvement in the area. C) Sound reasons for enacting law? D) Accommodation of states interests? E) Narrow focus of statute. d. Dissent and Concurrence i. This test is too deferential. ii. Encroaching on states rights. -

B. COMMERCE CLAUSE GENERALLY


1. Central questions? a. What is commerce? i. One stage of business or does it include all aspects of business and even life in the US? b. What does among the several states mean?

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Limited to instances where there is a direct effect on interstate commerce or is any effect on interstate activities sufficient? c. Does the Tenth Amendment limit Congress? i. If Congress is acting within the scope of the commerce power, can a law be declared unconstitutional as violating the 10th Amendment? History: a. Classical (Gibbons) i. 1800s-1890: Expansive interpretation by J. Marshall ii. 1890-1937: Laissez-faire court strikes down regulation. Backed by 10th Amendment, not entirely consistent. b. New-Deal i. 1937: Constitutional crisis. The switch in time that saved nine. ii. 1937-1995: Broad commerce power. No laws struck down. c. Present and possible resurgence of New Federalism? i. 1995: Possible limits found to commerce clause. Revolution or blip? Relevant Const. Text. a. Art. I, 8, cl. 3 i. Congress shall have power to regulate commerce amongst the several states (not verbatim). b. 10th Amendment i. The powers not granted to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States specifically, or to the people. ii. The views on the 10th. A) 10th Amendment is a truism, it has no substantive content, its just a reminder. B) Affirmative limit to the Congress enumerated powers. Reserved zone of authority to the states.

i.

CLASSIC VIEW
1. Classical Framework (Gibbons v. Ogden) a. NY gives Ogden ferry monopoly, Gibbons given license by fed. govt. Gibbons Ogden tries to stop him. Decided by J. Marshall. b. What is commerce? i. Commerce is intercourse. All phrases of business, including navigation. ii. Analogy to foreign commerce clause. Congress can regulate boats that go oversees. c. What is amongst the states? i. Commerce among the states, cannot stop at the external boundary line of each State, but may be introduced into the interior. ii. Here, the court says that amongst may be limited to that commerce which concerns more states than one. A) Internal commerce, here, is probably reserved to the state itself. B) The Court neither chose to define amongst as excluding all intrastate commerce, nor including all intrastate commerce. Case-by-case inquiry into whether or not there is impact on the interstate commerce. This probably is what led to Filburn. iii. Congressional limits? State sovereignty question? A) Congress, according to the Court, has complete authority over commerce clause. Political process left as regulator. B) Gets weird when you consider that theres barely anything thats intrastate anymore (Filburn)

2.

Between Gibbons and the New Deal a. Commerce is distinct from manufacture, production, mining. b. Requirement for direct effect on interstate commerce. c. 10th Amendment as extrinsic limitation.

NEW DEAL VIEW


1. Wickard v. Filburn, AGGREGATION a. Move from formalism to the functionalist approach that allows broad Congressional power. b. The three questions asked in the Filburn context. i. What is commerce? A) Very pragmatic, non-formalistic. Court defined terms to fit times. ii. What is amongst the several states? A) Congresss power is not bound by direct effect, but indirect effects are bound by harder test. If indirect, there needs to be substantial effect. B) Aggregation: Farmer Filburns actions by themselves were not substantial, but when aggregated (if everyone ignores the quotas) they would have deleterious effect iii. Congressional limits? c. Coordination? States could not solve this on their own. Heart of Atlanta a. Segregationist v. Civil Rights Act of 1964. b. Is CRA of 1964 constitutional? i. Civil Rights Act of 1875 was unconstitutional. ii. Cant stop private discrimination with 14th Amendment (no state action), so we try Commerce Clause. c. Constitutional. i. SCOTUS doesnt care whether the reason was moral or economic, deference to Congress. ii. Effects on Interstate Commerce? A) If people dont have a place to stay, they wont travel. B) Aggregate and this problem is huge. iii. SUBSTANTIAL EFFECTS TEST: A) Does the evil here have a substantial effect on interstate commerce? B) If so, were the means used to stop it reasonable and appropriate (rational basis)? C) Deference. Deference. Deference. d. Problem? Aggregate enough and everything is interstate commerce.

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MODERN VIEW
1. U.S. v. Lopez a. First principles i. Enumeration of powers argument by C.J. Rehnquist. ii. Gibbons still good law, but this is intrastate. (C.J. Rehnquist) b. What activities can be regulated? (i.e. What is commerce?) i. Channels A) Railroad tracks, internet, shipways, motels, roads, etc. B) Broadly interpreted. ii. Instrumentalities A) Persons or things in interstate commerce (cars, trucks, boats, etc.)

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B) Broadly interpreted to include even intrastate commerce here. iii. Things that substantially affect Interstate Commerce. A) This is where the action is. LOOK FOR THIS! If its located in the first two categories, its probably fine. B) Does whats local have a substantial effect on Interstate Commerce? c. Found unconstitutional i. Tenuous connection to IC. A) Guns can affect insurance, the economy, etc. But court rejects this. This would allow federal govt into things like family law. ii. Congress gives no evidence, there are no express findings by Congress. Low deference. iii. Concurrences and dissent: A) J. OConnor: There are already state laws for this, federalism should take over. B) J. Thomas: Lets go back to 1887 and laissez-faire capitalism. C) J. Breyer: This is judicial activism, were abandoning 60 years of precedent. This is supposed to be rational basis test, were not doing that here. d. ECONOMIC/NON-ECONOMIC distinction. i. Non-economic activity is not necessarily out of the scope of commerce, but it needs to be substantial. Here, having a gun was not an economic activity. (J. Breyer would say it is) e. NEW FEDERALISM i. Areas of state concern. Where states have Police Power, the federal government shouldnt go. ii. External (federalist) limits on state commerce. A) vs. Filburn? There, we had a larger regulatory scheme, here we dont. B) Slippery slope: if we allow this, what stops federal govt from asserting total power? U.S. v. Morrison a. Civil damage provisions of federal Violence Against Women Act unconstitutional? b. Unconstitutional i. Non-economic activity cannot be aggregated, either it does substantially effect, or it doesnt. A) Too attenuated a connection. ii. Congressional findings are not enough by themselves if they just say that the activity is substantial enough. iii. Jurisdictional element. A) No Jx hook (no element that would limit the scope that it did have a connection) c. Dissent i. This is the same thing as Heart of Atlanta, and you have Legislative findings, what more do you want? Gonzales v. Raich a. Medical marijuana is okay by CA law, should Federal law to the contrary be struck down? b. Federal law is constitutional. i. This is an economic activity, Lopez and Morrison are not. A) Marijuana is still a commodity (even if illegal). B) Deference to Congresss findings? Maybe, unclear here. C) Filburn lives! Aggregate the shit out of those economic activities! ii. J. Scalias concurrence says use Necessary and Proper. c. J. OConnor: something about police power, I wasnt really reading. South Dakota v. Dole- THE SOFT POWER OF SPENDING USED TO ENFORCE CONGRESSS WILL a. Congress grants (spending) pushing South Dakota towards raising drinking age to 21. Cant enforce directly because of the 21st Amendment. i. Out of scope of New Federalism. Congress wants to spend to make states fall in line? Do it. b. Requirements for use of soft power (money) to regulate:

i. Pursuit of general welfare? ii. Unambiguous desires so as to put state on notice? iii. Related to particular federal interests or spending programs? iv. Cannot be used to force states into unconstitutional action. 5. BALANCING TEST (CHECKLIST) a. Commercial/Economic? Y/N; Economic = easier, allows aggregation. b. Jurisdictional Element (Hook)? Y/N; Specifically addressing jurisdiction is better. c. Substantial Legislative Findings? Y/N; substantial helps, but totally ignored in Morrison. d. Traditional Area of State Concern? Y/N; If infringing on police power, 10th Amendment beef. e. National Necessity? Y/N; Civil Rights, etc. f. Coordination Problem? Y/N; is this something the states would have trouble coordinating alone?

C. 10TH AMENDMENT LIMITATIONS


1. Does the 10th have its own teeth? a. Commandeering the States b. Truism or just limitation? New Federalist judges (J. Scalia) letting 10th stand up on its own. Garcia v. San Antonio Safeguards of Federalism. a. Can Congress get mass transit employer to pay minimum wage and overtime? b. Yes. Congressional deference. i. Test for this is: Does state compliance impair the states ability to perform its traditional governmental function? A) Problems: no one, not even Chad Lennon or the Circuit Courts knows what the fuck this means. B) Historical test? How far back into history do we go? ii. Blackmun wants political process to hash this out, SCOTUS should stay out of it. c. Dissent (J. OConnor): grumble grumble states rights... New York v. U.S. Commandeering the states a. Radioactive waste regulation that states asked for. NY doesnt comply. b. Federal government cannot impose regulation on states. i. Giving choice between accepting ownership of radioactive waste and regulating according to the instructions of congress is unconstitutional. ii. Forcing states to accept radioactive waste is not allowed, this would commandeer state governments into having to implement federal legislation. iii. Whats allowed: A) States and Federal Govt People B) But NOT: Federal Govt States People iv. This would take accountability away from Congress and pass the buck onto states. A) Dissent: States asked for this. J. OConnor: states cant circumvent federalism. v. Direct regulation is allowed (Garcia), this indirect regulation goes against federalism. c. Be warned: Federalism idea here might be dead; I dont know what that means, but its in my notes. Printz a. Forcing local PD to enforce Federal Regulation is commandeering. b. Upholding of NY v. U.S. i. US cannot conscript state actors to enact its regulation. ii. Separation of powers: Legislature cannot give executive power to other executive officials who are not the POTUS. Doing so would make POTUS meaningless. c. Dissent: Affirmative obligations on state and judicial actors are okay. State courts have to act this way all the time.

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HEALTHCARE DEBATE a. Arguments pro: Category 3 in Lopez (Substantial effect of inactivity on commerce), insurance is economic and commerce. Everyone is in the healthcare market, a lot of judicial findings, you should give deference. b. Against: Cannot regulate inactivity (only activity), this is the behavior of individuals, not companies. c. Not severable.

D. 11TH AMENDMENT POWERS


1. Text: a. The Judicial power of the United States shall not be construed to extend to any suit in law or equity commenced or persecuted against one of the United States by Citizens of another State or by citizens or subjects of any foreign state. b. Enacted after Chisholm when Georgia got its panties up in a bunch. c. Complete restriction or matter of Subject Matter Jurisdiction that doesnt allow suits by private citizen against state? d. It only restricts federal court jurisdiction in citizen-state diversity cases (citizen against any state, not necessarily citizen of other state), but not federal question cases. (SEE 5 of 14th Amendment section). NOTE: THIS WAS VIEW BEFORE SEMINOLE TRIBE. Exceptions to 11th Amendment: a. State express or implied consent (US v. State, State v. State, and State consents). b. Suits against municipalities/cities (not States under 11th Amendment). c. Suits against state officials in their official capacities. d. Suits for prospective relief or money damages against officials personally. e. Congressional abrogation under 5 of 14th Amendment. Seminole Tribe a. Court cannot abrogate using Art. I, Commerce Clause powers. Can only do so through 5 of 14th Amendment. Its too bad for you. b. Garcia wane? When you have 11th Amendment, employee cant sue for minimum wages? Alden v. Maine a. Congress cannot abrogate immunity of state within its own state courts. (Under Art. I)

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IV. JUDICIAL PROTECTION OF INTERSTATE COMMERCE A. THE DORMANT COMMERCE CLAUSE GENERALLY
1. Preemption of Congress a. Congress has power to regulate interstate commerce. Where Congress has not acted and state law affects interstate commerce, the Court will infer congressional intent. b. Congress can override the Courts Dormant Commerce Clause (DCC) rulings if it wants to give powers to the states to burden/regulate interstate commerce. Congress always has power. General test: a. Discriminatory? Yes Per se presumption against b. No/Incidental? Looser test.

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DCC
1. 2. Wilson v. Blackbird Creek Marsh- Establishing the above. Philadelphia v. New Jersey a. NJ stops waste from coming into state. b. NJ calls this a quarantine, says that this is like bringing in infected rags. Court disagrees, trash from NJ is the same as trash from Philly and both can be used for commerce (haulers, etc.). c. Cost/Benefit analysis. Also Constitutional harm v. State interest. d. Protectionism not allowed, maybe unless its unduly burdensome on state? e. Other tests: i. Purposeful? A) Per se rule of invalidity. Likely struck down except for quarantine. ii. Incidental? A) More likely to go through unless theres a huge effect on interstate commerce. Granholm a. Out of state wineries selling within state not allowed to do so. Facially discriminatory Test 1. Gone. Kassel a. Balancing. Not facially discriminatory but costs outweigh benefits here. b. Trucks have to avoid Iowa because of its laws, incremental safety is not enough. Chemerinsky: State laws that discriminate against out-of-staters are almost always declared unconstitutional. Such a law will be allowed only if it is proved that the law is necessary the least restrictive means to achieve an non-protectionist purpose. State needs important, even compelling reason for the law.

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5.

MARKET PARTICIPANTS AND IMMUNITIES


1. Generally, Ask: Does the Dormant Clause apply? Then, is the state a market participant? Then, is there an exception to the Market Participant doctrine? Privileges and immunities limit to state power?. See End Notei a. If the state is a market participant (not a law-maker or regulator), the state may be exempt from the DCC so long as there b. Cannot hoard local resources. In Wunnicke case, although the state was a market participant, it made buyers of natural resources go into state to get it processed. This goes counter DCC because its constricting a private parties to c. Chemerinsky: A state may favor its own citizens in receiving the benefits from government programs or in dealing with government-owned businesses. (subject to Privileges and Immunities) d. South-Central Timber Development, Inc. v. Wunnicke Limitations of Market Participation a. State businesses may favor in-state purchasers, but they may not attach conditions to a sale that discriminate against interstate commerce. b. If through statute, regulation, or contract a state imposes conditions that have a substantial regulatory effect outside of that particular market, the Court will strike it down. i. Preference for own citizens okay in initial disposition of goods, when a market participant. ii. Attached restrictions on dispositions subsequent to the goods coming to rest in private hands is not ok. c. Is the Market Participant exception good? Should we allow protectionist actions by the state at all? No clear distinctions between state being regulator and market participant as well. Privileges and immunities: Art. IV, 2, cl. 1. Citizens of each state are afforded the rights and immunities of citizens of every state.

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Basic Rule: A state can discriminate against out-of-stater with constitutional right of earning his livelihood only if necessary to achieve a substantial governmental interest. i. Intermediate type scrutiny. This doesnt have to be compelling, just substantial. Camden case: city of Camden required 40% of workers in a project to be Camden residents. i. Two step inquiry: A) Does the ordinance/statute burden one of the privileges or immunities protected by clause? B) If so, is there a substantial reason for the discrimination? Does the degree of discrimination bear a close relation to that reason? v. Dormant Commerce Clause: i. DCC: (1) Congress can reverse decisions; (2) Protects corporations and individuals; (3) Applies to goods and services; (4) Covers discrimination and burdening of IC; (5) Discriminatory regulations are subject to strict scrutiny. ii. Privileges and Immunities Clause: (1) Congress cannot reverse court decisions; (2) Protects only individuals; (3) Applies only to people; (4) Covers discrimination with regards to fundamental immunities (such as right to earn livelihood); (5) Discriminatory regulations subject to intermediate scrutiny. Majority: States control municipalities, people control states, therefore, this is allowed under democracy.

V. RECONSTRUTCTION AND FEDERAL-STATE RELATIONS A. THE DUE PROCESS CLAUSE, SUBSTANTIVE AND PROCEDURAL
1. Substantive v. Procedural Due Process a. Substantive i. Not text based. Implied fundamental rights that the govt cannot infringe, without adequate reason. A) This is where the levels of scrutiny come in. Rational basis: easier to find adequacy, etc. ii. Economic SDP: Implied rights to contract, etc. Lochner era of laissez-faire Court. iii. Controversial: Where does the Court get this? How is it deciding what is good enough to be right? A) Defenders: Court should absolutely be in the business of protecting un-enumerated rights. iv. One would think that Substantive rights would be in the scope of the 14th, but for a multitude of reasons, the Court has decided to tie them onto DP. Examples: Lochner, Roe v. Wade, privacy rights. b. Procedural i. Text-based. What procedures must the govt follow before it deprives a person of life, liberty, or property? ii. The three basic questions: A) (1) Has there been a deprivation (2) of life, liberty or property (3) without the due process of law?

B. ECONOMIC SUBSTATIVE DUE PROCESS


1. The Lochner Era (When Saurons shadow loomed over the Middle Earth) a. Economic substantive rights read into the Due Process clause. Right to contract and other generally laissezfaire tendencies. i. States can only infringe with police power for the purposes of protecting public health, safety, and morals. ii. Narrowly tailored: even if states can use police power, they can only do so when necessary. b. Lochner is usually used negatively but its gaining strength next to the fires of Mount Doom, where Saurons (Lochners) eye waits for the ring of laissez-faire capitalism to return to him in Mordor.

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In 1937, nine heroes of SCOTUS moved away from this but there are some who would rather go back (probably J. Thomas and J. Scalia).

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Lochner a. Law limiting maximum hours of work for bakers struck down because not in keeping with the above principles. Not a valid labor law and not narrowly tailored to public health (focused on bakers, but everyone could fit under the health considerations the law addressed). West Coast Hotel when C.J. Hughes, using a half broken sword took the ring from Lochner. a. FDR threatened to pack court. Intellectual ideas of the time then helped push court to overturn Lochner. b. The Court now looks at substantive economic DP with a lens of deference to the legislature. Rational basis. i. Legislature now decides what it wants to do, not the Court. We cant presume rights that dont exist. ii. Legitimate state interests can be good enough for law to be constitutional. A) Can go beyond health, safety, and morals and can be just a labor law. State Farm a. Possible return to Lochner ideas? The Gollum of case law. b. Punitive damages too high. Cannot punish people for things that they did in other states.

C. SUBSTANTIVE DUE PROCESS IN PERSONAL RIGHTS HISTORY AND ANALYTICAL FRAMEWORK


1. The levels of scrutiny and general questions. a. Footnote 4 in the Carolene case. b. Is this a fundamental right? i. Text? Precedent? Tradition? Possibly all three taken into account? c. Fundamental rights get strict scrutiny i. Compelling government interest? ii. Narrowly tailored to infringement? d. Non-Fundamental rights get rational basis i. Legitimate govt interest? ii. Rationally related to infringement? e. Possibly sliding scale? If government action is given strict scrutiny, its almost always dead and vice-versa. The roots of privacy a. Meyer v. Nebraska (1923): Right of parents to decide how to bring children up. b. Pierce v. Society of Sisters (1925): Right to choose upbringing and school. c. Skinner v. Oklahoma (1942): Right to procreate: possibly struck down Buck v. Bell

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PERSONAL RIGHTS AND PRIVACY (AMNDS. I, III, IV, V, AND IX)


1. Buck v. Bell (1927) The old base of analysis. a. Forced Sterilization of imbeciles alright. Three generations of imbeciles is enough (Holmes). b. Holmes gives legislature rational basis: If state decides, who are we to go against it. Griswold v. Connecticut (1965) Modern move to Non-Economic substantive due process. a. Connecticut statute criminalizes contraception and helping people get it. Planned Parenthood charged. b. J. Douglas doesnt call this substantive due process. Doesnt want to go with Lochner. The penumbra. i. Finding privacy in the penumbra of the Bill of Rights. Tried to circumnavigate around Lochner. A) Criticism of trying to find rights outside of substantive due process. Not used anymore? B) J. Black: I like my privacy but the Constitution dont give a fuh. ii. Right to contraceptives or right to privacy in marriage? Unclear.

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iii. J. Douglas also looked at tradition here to establish right.

ABORTION
1. Roe v. Wade Right to abortion? a. Texas case prohibits all abortions not necessary to protect life of mother (Companion: Doe v Bolton) b. J. Blackmun drops the knowledge: i. Historical analysis of abortion. ii. [R]ight of privacy. . . broad enough to encompass a womans decision whether or not to terminate her pregnancy. A) Not penumbra, necessarily! This is protected under the DP clause. iii. State can restrict or abridge this right, but a court will apply strict scrutiny (compelling interest needed) c. When are the interests of the state compelling? J. Blackmun wants to set up bright line rules. i. First trimester: essentially no compelling interests. Only medical requirements available (licenses, etc.) ii. Second trimester: compelling interests in protecting maternal health. Abortions more dangerous than child birth at this stage. (Regulation, but not ban available if reasonably related to mothers health). iii. Third trimester: compelling interest in the life of the fetus. Fetus is viable, can survive outside of womb. Ban could justify strict scrutiny here, unless necessary to preserve the life of mother. d. Problems with viability: technology always changes things and definitions, should we keep to bright-line? e. Dissent: J. Rehnquist says this is not a fundamental right, the Court is returning the ring to Mordor (Lochner). This is a question of political process, not judicial activism. The debate about Roe a. The detractors centered around 14th Amendment not having explicit right, life, liberty, etc. but not abortion. J. Scalia says that 14th Amendment should only be seen as it applied at the time enacted. b. The defenders praise the fact that J. Blackmun never defined personhood and instead left it up to the cultural sensibilities of the mother and not arbitration by courts or legislation. But does state have compelling interests to save persons like fetuses? Planned Parenthood v. Casey Why we cant have nice things like bright-line rules. Lets screw the 1Ls! a. Pennsylvania law doesnt prohibit abortion but adds regulations: Informed consent, Parental Notification, 24 hour waiting period, Husband notification. b. J. OConnor, J. Souter, and J. Kennedy uphold the central part of Roe. Fundamental right but... i. Trimester framework overturned and only viability taken into account. ii. Abortion is fundamental right but it does not get strict scrutiny, only UNDUE BURDEN i. Does the regulation pose a substantial obstacle in the path of a woman trying to abort a non-viable fetus? Statute will not pass undue burden test if: A) Excessively intrusive in a core liberty interest OR B) Unreasonable, excessive, unnecessary restriction on a liberty interest. ii. State has some sort of interest in the mother and child from the time of conception forward. iii. IMPORTANCE OF STARE DECISIS: okay to overturn precedent if unworkable, if theres an evolution in thought, or if there is a change in the factual predicate of decisions. iii. Opinion of Court: Undue burden reconciles States interests with the womans constitutional liberty. iv. UPHELD: 24 hour waiting period, informed consent, parental notification. Struck: Husband provision. Gonzales v. Carhart Partial birth abortion. a. SCOTUS on individual liberties: (1) Fundamental Right? (2) Right Infringed? (3) Infringement Justified by Sufficient Purpose? (4) Are the means sufficiently related to the end sought? (Chemerisnky) b. Casey reaffirmed. Court holds one of two partial birth abortion procedures to be gruesome so as to be considered essentially infanticide. Bans one procedure, substantial obstacle? i. The fact that this is safer is ignored. J. Ginsburg says this is fails rational basis and is sexist.

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A) J. Ginsburg: proper procedure here would have been to just inform the women. This is paternalistic and offensive. ii. But some women would be adversely affected by substantial obstacles, why is this constitutional? A) Undue burden is now undue if it applies to a large fraction of women. Conclusion: Is abortion still a fundamental right? Seems like it, but it no longer gets strict scrutiny (only fundamental right treated this way.

FAMILY, SEXUALITY, AND MARRIAGE


1. Quick recap: Define liberty interest at stake Is interest fundamental? Does govt action infringe? Fundamental? Strict Scrutiny (compelling interest, narrowly tailored) Not fundamental? Rational basis (legitimate interest, reasonably related). IF ABORTION = Undue Burden test. Moore v. City of East Cleveland Where we look into stupid ordinances! (Family) a. Housing ordinance stops grandmother from living together with grandsons who are cousins. b. Family autonomy is fundamental. Right to decide how your family lives. (Belle Terre: unrelated) i. Tradition: Weve had extended family history in the country (everyone living together). ii. Value placed on tradition and history of families pushes us into heightened scrutiny. c. States interests? Preventing overcrowding; SCOTUS calls the bluff, what if theres a huge family? i. Legitimate interest, but this fails strict scrutiny. Fails ends/means A) Over-inclusive. Person with 10 adult kids would fit into this category. B) Under-inclusive. What about people who have a few, young kids? Troxel v. Granville Where a state judge says hey, I loved my grandparents! and S.Ct. says: shut up. a. Longstanding fundamental interest: parents raise their children the way they think best. Why infringe? b. Strikes down law that says that any person may ask for visitation rights if they serve the best interests of the child. i. The broad statute doesnt define what best interests are, nor why this statute was enacted. Deference to mothers decision? Case is confusing, were moving on. Lawrence v. Texas Moral Disapproval is not a legitimate interest. a. Background: Bowers v. Hardwick found that anti-sodomy statutes were okay and right to homosexual sodomy was not fundamental. b. Law prohibiting consenting adults from having sex violates due process and hinted at right to privacy. i. Level of scrutiny? Not said outright but sounds like rational basis. Court hints at fundamental right. ii. State interests: Morality. SCOTUS says this is not a legitimate interest, hinting at rational basis. c. Arguments for/against fundamental right. i. Scalia: this is like Glucksberg, youre trying to make a non-traditional right appear out of nowhere. ii. Emerging trends: Court says this is emerging tradition (but this didnt work in Glucksberg) iii. Previously, morality was enough to meet rational basis, so what gives? Maybe hinting at R.B. with bite of EP? d. This sounds like EP but it is not. Right of privacy, more like. Adequacy of taking away rights. Schwarzenegger v. Perry (Brown v. Perry) The most recent material a. Court shows what 1Ls should do in the test. Go through everything. b. Fundamental right? Right to marry v. right to homosexual marriage (Wide v. Narrow); History ok with marriage, but not gay marriage (Wittes play with it). Strict scrutiny analysis, then rational basis (probably would fail both!), look at factual findings, are they enough for rational basis? Strict Scrutiny?

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RIGHT TO DIE
1. Cruzan

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The three main holdings: i. There is a right to refuse medical treatment. A) C.J. Rehnquist assumes this, five Js say its a right, J. Scalia says S.Ct. has no business here. ii. States can require clear and convincing evidence that person wanted to terminate treatment. A) State can discourage but not put up obstacle (Casey). States interests v. Persons rights. iii. States can prevent family from making the decision. A) But wait, didnt Troxel and Moore say that parents had best interests of children in mind? Can a state advance morality through law? a. Entirely permissible to advance morality through law. (J. Scalia, J. Thomas, C.J. Rehnquist) b. Not permissible for state to advance purely moral agenda in face of conflict with individuals rights. (J. Brennan, J. Marshall, J. Blackmun) c. Balancing approach of States compelling interests and Individuals rights. (J. OConnor) Washington v. Glucksberg a. Right to die is not an actual right. There is a difference between refusing treatment and actual assistance. b. History and Tradition: Playing with narrow and wide scopes. Generally right to stop living v. right to suicide. i. J. Scalia and majority say: no right to suicide exists. Dissent: yeah, but you can look 200 years back for everything, and this is an emerging tradition. c. Scope issues. Leads to governing framework. d. State has unqualified interest in life; the sick and dying may be under pressure, but cant do anything; rational basis.

CURRENT FRAMEWORK
1. 2. 3. Preliminary step: Look at history and traditions of nation, legal traditions, practices, etc. DP protects deeply objectively rooted rights whose removal would sacrifice liberty and justice. Strict scrutiny Rational Basis binary. a. What about undue burden? Lawrence?

VI. EQUAL PROTECTION CLAUSE A. STATE ACTION AND THE 14TH AMENDMENT; RELATIONSHIP TO DP
1. The 14th Amendment applies to state actions. a. Distinction between Congresss powers in enforcing the 14th Amendment (5) and the substantive part of the Amendment (1). b. The question in this context is: when can private action go into the realm of state action? i. Saying something in Emory v. UGA Civil Rights Cases The Civil Rights Act of 1887 a. Struck down at the time after it was enacted. Court found that the 14th Amendment only prohibited certain state action. i. 5 is said to give the power to enact rules that are a bit outside of the scope of the 14th go to appropriate section below for this discussion. ii. The Congress is not allowed to reach private actors under the 14th. Heart of Atlanta was enacted under Commerce Clause. Why not do this before? Congress got lazy and unmotivated. b. Textualism: No state... c. The two exceptions:

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Government entanglement: if the govt authorizes, facilitates or encourages unconstitutional conduct, then constitution will strike it down. ii. Public function exception: if the private entity is performing a task that was traditionally and exclusively performed by the government, then the constitution may apply. Shelley v. Kraemer a. Real Covenant keeps seller from selling to black people. Constitutional? b. The covenant itself cannot be reached by the 14th Amendment, but the Court holds here that the govt enforcing this covenant (through equitable means) constitutes state action. i. Does this mean everything is either state action or its not? Conceivably everything can be enforced through state actions. Legal realists: goals are unconstitutional, we shouldnt enforce. Edmonson v. Leesville Concrete a. Preemptory challenges (dismissing juror w/o giving reason) are only allowed if not racially motivated. i. Right to serve in jury cannot be infringed based on race. Traditional govt function. ii. Civil cases? b. RELEVANT CONSIDERATIONS: i. Government assistance/benefit? (Did state deprive?) ii. Can private party be described as state actor? iii. Is the injury aggravated by the act of third party? c. J. Scalias dissent: This keeps minority defendants from striking out white jurors. He was right! :O d. Do private actors that entwine themselves with government agencies get considered as state actors? DeShaney v. Winnebago a. Can a states inaction fall under the 14th Amendment? (State didnt act to save kid from abusive father). b. State did nothing, because they did nothing, they cannot be responsible for constitutional violations. i.

B. THE EQUAL PROTECTION CLAUSE GENERALLY (THE TIERS OF SCRUTINY)


1. There are three tiers of scrutiny in the EP inquiry which are based on government classifications: a. Rational Basis (If it aint bat-shit insane, its okay. Generally [except RB w/bite]) i. Is the classification rationally related to a legitimate government interest? b. Intermediate Scrutiny (Usually reserved for gender) i. Is the classification closely related to a legitimate government interest? c. Strict Scrutiny (Strict in theory, fatal in fact. Generally [trend may buck this]) i. Is the classification narrowly tailored to further a compelling government interest? Two cases of rational basis: a. Railway Express Agency: NY can try to enforce traffic by arbitrarily allowing ads on cars. b. NY Transit Authority: Recovering addicts on methadone not hired, RB. Over/under-inclusiveness ok. Discriminatory Laws; a. (1) Discriminatory on its face against race [Strauder, Korematsu]; (2) Refers to race but treats equally [Plessy, Brown, Loving]; (3) Law is facially silent but is applied to discriminate [Yick Wo]; (4) Neutral but with disparate impact on minority [Washington v. Davis]; (5) Law is facially neutral with no disparate effects but was enacted with discriminatory purpose. b. Why race? 14th Amendment was Reconstruction Amendment, enacted for this purpose. Race is immutable.

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RACE SEPARATE AND UNEQUAL


1. Plessy v. Ferguson

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, who was 7/8 white gets arrested for sitting in whites section. Majority: Okay with 14th Amendment. Statute is reasonable, deference to LA. i. Separation is not subordination, blacks are to blame for inferiority. c. J. Harlan: Youre all assholes. Brown v. Board of Education a. Thurgood Marshall giving court what for after J. Vinson dies (was against). b. Segregation is unconstitutional. i. Generates feelings of inferiority. ii. Interferes with educational development (diversity better for this). c. Problems with thought process here: Precedent and stare decisis. Plessy not outright overturned, but this leads to huge changes. i. Problem with the fact that when 14th was enacted, schools in Massachusetts and all around the country were segregated. ii. Federal schools at this point still segregated. But sister-case changed that. d. Rationale: Schools >>>>> RRs e. Questions about effect and against affirmative action: J. Thomas; what if black kids do better in black schools? a. b.

INVIDIOUS RACIAL DISCRIMINATION


1. What to keep in mind: a. Is there a purpose needed here? If so, how do you prove it? Overwhelming evidence (Yick Wo), Statistics? (McKlesky, probably not) b. Chemerinsky: Laws that are facially neutral as to race and national origin will receive more than rational basis review only if there is proof of a discriminatory purpose. Strauder (1879) a. WV enacts law that keeps blacks from serving in juries. Court leaves door open for state to do other things. b. Good character laws may be okay. c. Language here hints at duty of state to help. Yick Wo a. Law does not discriminate on its face. i. Cant have a laundry in a wooden building (presumably so you dont burn it down). Discretion given to supervisors led to disproportionate discrimination against Asians. ii. Overwhelming evidence with no explanation meant that this got struck down. Discretion to racist supervisors killed the law. Korematsu a. WWII relocation of all Japanese-Americans to concentration camps. This is discriminatory on its face. b. Court applies strict scrutiny for the first time but says that this law is okay. i. Compelling government interests during war. No real evidence provided that this was true. Nothing less could be done (probably untrue). [J. Black] c. Dissent [J. Jackson]: We dont want to set a bad precedent; Dissent2: This is just racist, no govt int. d. Anti-precedent (a la Plessy); strict scrutiny usually kills laws. (Immediately suspect... complete scrutiny) Loving v. Virginia a. Purportedly separate-but-equal although Asians could marry Blacks through this statute. b. Racial purity doesnt work as compelling state interest. i. Law has racial classification? Even if facially neutral, this must show compelling interest. ii. Law applies equally but S.Ct. says that it is invidious since its goals are white racial purity. c. Possible place for an EP/DP hybrid case? Possibly, but that has a much smaller range/scope.

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Related: Palmer v. Thompson, state can close swimming pool rather than desegregate. No racial discrimination/bad purpose for EP analysis; If its closed, its closed for everyone. e. Palmer v. Sadati: cant take away child b/c parent married black person. Protecting from societal prejudice is not a compelling state interest. f. Even benign purpose could bring up strict scrutiny if facially discriminatory. Johnson v. California segregation of prisons a. Segregation of prisoners in California prison. State interest: racial gangs cause violence when together. i. Prisons get different level of scrutiny in 1st and 4th Amendment questions, why not here? A) Race is different, court will not give an inch. ii. Any racial classification will get strict scrutiny, no matter what. iii. Neutral facially, but race specific. b. Racial classification breeds hostility. i. J. OConnor: Strict scrutiny is not fatal in fact, send down for further findings of compelling govt int. ii. J. Ginsburg: distinctions and moving away from strict scrutiny in benign classifications? Washington v. Davis PD testing a. Disproportionate amount of Black applicants pass PD test. But there is only disparate effect, no real classification even. b. Mere disparate effect is not enough. We use strict scrutiny to smoke out intent, where there is no intent, there is no strict scrutiny. i. Does this mean that Yick Wo would get overturned? The court is saying that its deciding INTENT before applying strict scrutiny.

AFFIRMATIVE ACTION
1. Theories of Affirmative Action a. Generally, seeking out to right past wrongs? Anti-Balkanization? Should we not single out certain races? Does this have a disparate effect on other races or positive? Resentment and animosity? City of Richmond v. J.A. Croson Co. a. To right past wrongs, VA made quotas for contractors (certain amount had to be minorities). b. Strict scrutiny? i. Pro A) EP is colorblind. There is stigma in affirmative action. Were burdening a race. ii. Against (for Intermediate Scrutiny) A) Whites can protect themselves politically; difference between welcome matt and No Trespass sign; Remedying past wrongs. c. Getting to a place where race does not matter. i. Does strict scrutiny just delay getting there? ii. QUOTAS ARE NEVER OK. d. Why are these not compelling government interests? Is enhancing diversity? Creating minority role models? e. Test applied: i. Compelling government interest? NO A) Remedying societal discrimination? Too broad; Remedying specific discrimination? No evidence. ii. Narrowly tailored? NOPE A) No other alternatives, remedies seem to bee too arbitrary. Grutter a. Are enhancing diversity and educational benefits compelling government interests? Yes. b. Was this classification narrowly tailored?

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Critical mass, not quota. Individual evaluation makes the difference, if youre evaluating individually, youre not just setting up a system of classification. ii. Do we have to examine every alternative? This suggests, no. iii. Bonus points not cool. There is no individual evaluation. c. There is some shifty logic here. Why are the two not the same? You cant award points, but enhancing diversity is a compelling government interest? I guess this was more narrowly tailored. d. Compelling interest? i. Ehancing diversity? Yes. Creating minority role models? Maybe. Increased service to minority communities? No. ii. Whats a critical mass? Mass needed to avoid tokenism: where one student doesnt feel like she is representing entire group. One person v. whole group. Balkanization problems? iii. Race neutral alternatives: Texas Top-10% rule (taking top-10% of every Texas school, which benefits black schools too). Should this get strict scrutiny? Parents Involved a. Can a district with no history of segregation use classifications to help diversify? i. Compelling govt interest? At most, the majority gets a benefit of diversity. ii. Narrowly tailored? No. Necessity seems to be key, there is none here. iii. J. Thomas: A) Saying black kids cant do fine by themselves is offensive. B) No compelling interest in majority getting to hear another point of view. C) To dissent: Y U NO WANT COLORBLIND CONSTITUTION?!?! Ricci v. DiStefano a. Avoiding lawsuits based on disparate impact needs to show disparate impact... I dunno. i.

GENDER
1. Generally a. Why heightened? No text support, immutability of gender (possibly), stigma (possibly), political process (couldnt vote going into 20th century), long history of discrimination. Never really answered. Craig v. Boren a. 3.2% Alcoholic beer okay for women but not men. Men get into more accidents. i. Legitimate govt interest? Yes, traffic safety. ii. Substantially related? Not really. Spurious statistics bother the Court. b. Reinforcement of stereotypes. Cant use gender as proxy for enacting legislation. U.S. v. Virgina a. 7-1 decision. Struck down male-only separate VMI institution. i. Legitimate government interest? Virginia made half-assed attempt to create an equal education. A) Real govt interest here was creation of some sort of citizen military. ii. Substantially related? No. b. SCOTUS said VMI didnt have to do anything other than simply allowing women in but not changing the standards. i. Unless the test was made with the purpose of keeping women out, it is okay. c. Adversative method didnt have to be changed, according to S.Ct. (it ended up changing anyways). Michael M. v. Superior Court a. Cali law makes statutory rape on men legal but with women illegal. b. Legitimate govt interest? Yes. Preventing teenage pregnancy. i. Seaman says this is stupid, if the girl is having sex consensually (otherwise itd be rape) then shes disregarding the risk of getting pregnant.

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ii. Dissent: this is just an excuse to keep girls chaste. c. Substantially related? Yes. d. Differences here are real and biological, thats why classification was substantially related. e. Actual purpose ignored? Nguyen v. INS a. Immigration law: you get citizenship if mother was a citizen, but have to prove biological connection if father was citizen. b. Legitimate govt interest? Yes, ensuring biological connection to determine citizenship. Parent/child relationship? c. Narrowly tailored? Yes. Mother is present when child is born, we know who the mother is and the birth process gives connection. i. Seaman is skeptical. Unsure how much a few hours in the maternity ward counts for. d. Gender stereotypes or real difference? Biological, maybe, but biology doesnt satisfy anything else.

FUNDAMENTAL INTERESTS IN THE EP CLAUSE? WTF?!?!


1. Skinner v. Oklahoma a. Fundamental right? Procreation. b. Fundamental in both EP and DP. c. Essentially fundamental rights are fundamental in both cases anyways. Zablocki a. Fundamental right? Marriage. b. But marriage can be limited/regulated, does all that get strict scrutiny? i. Here, there is a complete ban based on the fact that the man is indigent (cannot pay). ii. Incest is completely banned, why does that not get strict scrutiny? A) That shit nasty, but also, it doesnt completely ban marriage, just marriage with certain people. c. State interest? i. Getting person to pay for their children. d. Narrowly tailored? i. Nope. You cant make someone who cant pay, pay. Its also overinclusive (people married rich can pay support). e. Usually, court wont consolidate. Was this DP or EP? Court goes through both separately. San Antonio v. Rodriguez a. Court addresses two rights that are conjoined: DP and EP respectively. i. Fundamental right? Education is not fundamental right. A) Important right, but not fundamental. Like housing and welfare. No DP right. B) Door is always open for total denial/complete deprivation! ii. Invidious discrimination against the poor? b. Scrutiny applied? Rational basis. Constitutional. No EP protection because there are no suspect classes (Indigence is not suspect) Plyler v. Doe a. Texas law charges tuition to illegal children. b. Are illegal children a suspect classification? Sort of. i. Intermediate scrutiny applied, but court doesnt say it outright. c. Education as a fundamental right? Non-fundamental but totally barred, d. So, non-fundamental right and a quasi-suspect class? Does this law get upheld? i. No. Struck down, Court applies weird heightened scrutiny. ii. Complete deprivation here, however, would totally overburden blameless children.

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iii. Cant come back from illiteracy, so Court strikes it down. If education were not totally barred, would the Court have come out the same? Probably not. But court didnt want underclass of illiterate children. Thanks, SCOTUS! Youre the best!

RATIONAL BASIS AND HYBRID REVIEW


1. 2. Introducing rational basis w/ a bite. a. Are these classifications invidious to discrimination and therefore get heightened scrutiny? Maybe. City of Cleburne a. Mentally retarded group home requires permit. Mentally retarded v. Everyone else. b. Classification problems. i. This is not a suspect class. Cannot have semi-suspect classes! ii. History of discrimination and slippery slope problem is problematic though. c. Rational basis (w/ a bite!) applied. i. Denial of permit is unconstitutional. Vague, undifferentiated fear is not rational basis. A) Need to make an effort to show reasonably relatedness. d. Underinclusiveness here seen as a problem (isnt usually under R.B.) e. WHAT TO LOOK FOR: CASES WHERE THE COURT CANT APPLY SS, BUT REALLY WANTS TO! Romer v. Evans a. Constitutional amendment to Colorado constitution bans favorable discrimination laws for homosexuals. b. Is homosexuality a suspect class? SCOTUS is silent. c. Rational basis (w/ a bite!) used. True purpose of the law sought out, declared unconstitutional. i. Animus against a group of people is enough to satisfy heightened rational basis scrutiny? d. Can we ratchet back rights or are they stuck once we establish them?

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RECAP
1. Suspect classifications: a. Race/Color = Strict Scrutiny b. Gender = intermediate c. Alienage/Nationality = Strict (but not for illegals; Congress can discriminate for purposes of immigration) d. Non-marital children = Intermediate Non-suspect classifications: a. Age, Disability, Poverty In the air? Sexual preference.

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C. CONGRESSS 5 POWERS TO ENFORCE 14TH AMENDMENT


1. Ketzenbach a. Voting rights of 1965 challenged. NY had law that one has to speak English to vote. S.Ct. okayed Eng. Req i. Federal statute says its okay for PR to vote if they have 6th grade education from PR. b. Can 5 enforcement power extend to prohibit action not barred by 1? i. This is the Necessary and Proper Clause, but for the 14th Amendment. ii. Power greater than that granted by 1; allowed by framers because Congress can go just outside 1 in what it enforces. City of Boerne

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Congress tries to overturn a SCOTUS decision that neutral laws that burdened religious practice incidentally would not be subject to strict scrutiny. b. The positive powers of Congress under 5 are to be used in congruence and proportionality with the problem to be remedied. i. Sweeping legislation addressing relatively small problem will get struck down. ii. If circle of problem is smaller than circle of solution by a lot, youve got a problem. c. Congress expressly rejected plenary power granting under 5. University of Alabama a. Can Congress abrogate state immunity through the Americans with Disabilities Act? i. The ADAs abrogation is a sweeping solution to a limited problem. Struck down. ii. Look at record; how big is the problem? Is the solution proposed congruent and proportional? Nevada v. Hibbs a. Here, the circles overlapped. Classifications based on gender get intermediate scrutiny (circle made larger) and the proportional response was okay. Abrogation allowed.

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Market Participant Exception 1. Regulation v. Participation a. State or local or municipal (just not Fed) b. Big question c. Acting as law-maker? Throwing people in jail? -- Regulator 2. Theory a. Internalization of costs b. SD citizens pay for higher cost of cement (from lower demand from no outside demand) c. BOS citizens pay for higher cost of construction (from limited supply of workers) Government-Run Business Exception? 1. United Haulers (2007) a. Background/Carbone (1994) (1) Waste Transfer Station: disposes trash environmentally (and costly) (2) Flow Control Ordinance: if you produce garbage in our city, you MUST use our WTS (a) Garbage cannot be exported from our city (b) Goal: get a WTS to set up, ensure them business, guarantee demand (3) Holding: unconstitutional (a) Same as Dean Milk (b) No import of milk = no import of garbage services to compete with WTS/no export of garbage (c) City/State cant prevent things from coming in or going out (4) Concurrence: its not the same, but we should balance, and same result b. Facts: Flow Control Ordinance (1) BUT, WTS is owned by the city c. Holding: constitutional (1) Not discriminatory (2) Weigh costs and benefits (a) BUT why? Carbone didnt get weighing prong, it got facially discriminatory prong d. vs. Carbone (1) Same situation? Banning importation of garbage services/export of garbage (2) One-station argument: NO, court disregards (Dean Milk, slippery slope) e. Rationale for Constitutionality in light of Carbone and Dean Milk (1) Governmental responsibility to take care of its citizens? (2) Internalization of costs? (Taxpayers paying higher price for garbage disposal) (3) Takeaway: maybe, because its the Govt running the WTS, its not benefiting one business as the expense of others?