Constitutional History The Constitutions Functions

Creates a National Government Separates Power Between Three Branches Divides Power Between the Federal and State Governments Limit Govt Power/Protects Individual Liberties

Constitutional History ARTICLE I: ARTICLE II: ARTICLE III: ARTICLE IV: ARTICLE V: ARTICLE VI: ARTICLE VII: AMDS: Legislative Power Executive Power Judicial Power Full Faith/Credit, Privileges & Immunities, Admission of New States Amendment of the Const. Prior Debts, Supremacy Clause, Oath of Office Ratification 1-27

Constitutional History Bill Of Rights

1st AMD: Est. Clause, Free Exercise; Freedom of speech/of press/of assembly 2nd AMD: Militia (United States), Sovereign state, Right to keep and bear arms. 3rd AMD: Protection from quartering of troops. 4th AMD: Protection from unreasonable search and seizure. 5th AMD: due process, double jeopardy, self-incrimination, takings 6th AMD: Trial by jury; Confront Clause, speedy/public trial, right to counsel 7th AMD: Civil trial by jury. 8th AMD: Prohibition of excessive bail and cruel and unusual punishment.

Federal Judicial Power Authority: Article III Section 1: 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. Section 2: The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, Subject matter Jx: the Laws of the United States, Treaties made, or which shall be made, under their Authority; Controversies to which the United States shall be a Party Diversity Jx: between a State, or the Citizens thereof, and foreign States, Citizens or Subjects. Original Jx: Cases affecting Ambassadors/Ministers/Consuls Where State is a Party Appellate Jx: In all the other Cases

Federal Judicial Power The Authority: Marbury v. Madison Judicial review: the power granted to the Supreme Court: to determine/assess/interpret whether actions of the government are consistent with a higher authority (the Constitution) Govt = Executive, Legislative, Federal, State Actions = Statutes or Actions Marbury v. Madison: Supreme Court has the authority to review Executive & Legislative acts Not expressly written in Const. Chief Justice Marshall said: The Const. is the supreme law and it is the province and duty of the judiciary to declare what the law is.

Federal Judicial Power Judicial Review: State Acts

Federal review of State Acts: Supreme Court has the authority to review acts of State Govts executive, legislative, judicial State Supreme Court: the ultimate authority on State Law, BUT the Supreme Court may review actions for conformity with Const. Supremacy Clause: the Const., Laws, Treaties of US take precedence over State Laws & Judges of State Courts must follow Federal Law & the Const. State Courts can't be trusted to uphold federal law with any kind of consistency/uniformity bc States have their own biases Federal court: protector of federal rights

Federal Judicial Power Limits on the Judicial Branch: Interpretive Limits Originalism Text based meaning of Const., fixed at time of ratification o Purpose: to avoid Judicial Preference unelected judges, democracy Sources: o The Const. specific text, the words in the Const. o The writers (the framers) intent o Historical documents

Pros: appearance of stability, lack of capriciousness (erradic, unpredictable) Cons: There is no single framer - there were many framers with divergent views, no unambiguous framers intent, Historical materials are incomplete

Limits on the Judicial Branch: Interpretive Limits Non-Originalism It is desirable to have the Constitution evolve by interpretation and not only by amendment Amendment process cumbersome Evolving morals of society The framers intended a nonoriginalist method of interpretation Framers probably did not intend that their intent govern Const. interpretation

Pros: doesnt leave you with an immoral or unjust document Cons: more difficult to know what the results will be, looks more like common law, judges have more power

Limits on the Judicial Branch: Congressional Exceptions The Exceptions and Regulations Clause

Text: Article III: The "Supreme Court shall have appellate Jx, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make." -> Meaning is unsettled Limitation on Judiciary: Congress has broad powers to remove matters from the Supreme Court's purview, to restrict Courts Jx Congressional control = check on judiciary's power Congress can create an exception to Supreme Court's Jx for review of matters of fact, but CANNOT remove court's Jx for issues of law Plenary Congressional authority

Limits on the Judicial Branch: Congressional Exceptions The Exceptions and Regulations Clause Limitation on Congress Limitation on Judiciary However Congress Cannot: 1) Eliminate all forms of Judicial review Some judicial forum must be available 2) Cannot violate other express enumerated powers Cannot remove Const. authority Cannot expand or contract Const. granted authority 3) Cannot determine the outcome in individual cases Separation of powers: cannot interfere with final judgments Cannot force a rule of decision in a pending case + when Congress limits the Court's Jx, it must be very clear Court will interpret the law to avoid stripping power/Jx The court often broadens its own Jx through statutory interpretation

Limits on the Judicial Branch: Justiciability Limits

Article III: SCOTUS interprets "cases & controversies" language of txt to limit the authority of the court to hear certain cases Justiciability Doctrines: all must be met for any federal court at any level to hear the case: Prohibition of Advisory Opinions Standing o Constitutional: Injury + Causation + Redressibility o Prudential: No 3rd Party Standing + No Generalized Grievances Ripeness Mootness Political Question Doctrine Principles of Avoidance

Limits on the Judicial Branch: Justiciability Limits Prohibition of Advisory Opinions Requirements: o Must be an actual dispute between adverse litigants (not moot, actual injury) Must be substantial likelihood that a federal court decision in favor will bring about change or have an effect (redressibility)

Ex: if the court issues a decision that just says yes, the plaintiff is correct but it has no effect, then it is just advisory

Limits on the Judicial Branch: Justiciability Limits

Standing: the most important

Define: Whether the plaintiff is the proper party to bring the matter to the court for adjudication

Limits on the Judicial Branch: Justiciability Limits Constitutional Standing Requirements (Injury/Causation/Redressability): Injury: P must prove that he has been injured or imminently will be injured Direct OR Imminent harm from Defendant -> Plaintiff Direct: Only personally suffered injuries Sierra Club v. Morton: Disney: ski resort in mineral king valley o Failed to allege that any members used park o Remand: amended complaint to say that members had used park Imminent: P seeking injunctive/declaratory relief: Must show likelihood of future harm City of Los Angeles v. Lyons: Officer administered choke hold on P, P sued to prevent officers from using choke hold unless absolutely necessary o Could not show that it was likely that he would be choked in the future

Limits on the Judicial Branch: Justiciability Limits Constitutional Standing Requirements Causation: P must prove that D caused the injury Defendant caused Plaintiffs harm P's Injury traceable to D's conduct Cannot be too attenuated a link

Limits on the Judicial Branch: Justiciability Limits Constitutional Standing Requirements Redressability: P must prove that a favorable court decision is likely to remedy the injury The relief granted should sufficiently address injury Relief has to make situation better Must find remedy NOT that they are likely to win, BUT if they win, P will get relief

Limits on the Judicial Branch: Justiciability Limits Prudential Standing (can be changed by congress): 1) Prohibition of 3rd party standing: P cannot present claims of a third party not before the court (can only speak for self) Exceptions: i. If a close relationship between P & injured 3rd party Ex: Dr./Patient relationship - Dr.'s asserting rights of patients in abortion cases- injury on Dr. not strong enough (loss of business) - so can assert same rights of patient ii. If injured 3rd party unlikely to be able to assert his/her own rights obstacles preventing injured party from going to court and asserting rights

Limits on the Judicial Branch: Justiciability Limits Prudential Standing (can be changed by congress): 2) Prohibition of Generalized Grievances: (NOT COVERED) Individuals are prevented from suing if their only injury is as a citizen or taxpayer concerned with having the gov't follow the law. Exceptions: If a large % of the population ALSO suffers the same injury -> NOT generalized because person suing was actually injured. Taxpayers can sue when claiming that Gov't expenditures violate the establishment clause

Limits on the Judicial Branch: Justiciability Limits Ripeness o o Define: Is the timing right to hear the case? Ask: May the federal court grant pre-enforcement review of a statute or regulation? o Usually: violate law, then be prosecuted & argue it's unconst. o Here: pre-enforcement review o Declaratory judgment - not finding P innocent of breaking law, but finding law unconst. - must find case to be ripe first.

Limits on the Judicial Branch: Justiciability Limits Ripeness o Requirements for pre-enforcement review o Hardship that P will suffer: the greater the hardship, the more likely a court will hear a case Criminal penalties $ o Fitness of the issues in the record for judicial review: does the federal court have all that it needs to decide an issue? Question of law or fact? (questions of law are perfect to decide before hand) Is there something to be gained by waiting for P to violate law?

Limits on the Judicial Branch: Justiciability Limits Mootness Define: If events after filling a lawsuit end P's injury, case dismissed as moot P must present a "live case or controveresy" at all stages of litigation Exceptions Wrongs capable of repetition but evading review Voluntary cessation Class action suits

Limits on the Judicial Branch: Justiciability Limits Mootness: Exceptions Wrongs capable of repetition but evading review Injury will be over before proceedings completed Ex: abortion cases -> Repetition: she could become pregnant in the future. Evade review: Will always evade review, only 9 mo. Voluntary cessation If D voluntarily halts practice but is free to resume at any time, the case is not moot. Ex: pollution cases - Not moot: company under no legal obligation to stop polluting Ex: racially discrim test & employer voluntarily agrees to not use diff test - Not moot: employer under no legal obligation to use diff test Class action suits If named P's claim becomes moot, class action not dismissed as long as one member of the class has an ongoing injury

Limits on the Judicial Branch: Justiciability Limits Political Question Doctrine Define: allegations of Const. violations that the court will not adjudicate because matters are better left to other branches Ask: Does this case implicate separation of powers? Conflict between 2 branches If yes, is resolution already committed to a political branch? Resolution: next election 4 types: Guarantee clause/Republican Form of Gov't Clause: Article IV, section IV > U.S. shall guarantee to each state a republican form of gov't Challenges to President's conduct of Foreign Policy Challenges to impeachment and removal process Challenges to Partisan Gerrymandering redistricting

Limits on the Judicial Branch: Justiciability Limits + Principles of Avoidance (Judicial Restraint) No friendly suits/must be adversaries Can't "FAKE" a dispute to get the court to settle a question Only decide constitutional question if necessary to the case Formulate constitutional rules narrowly ONLY the rule as broad as necessary to decide case in front of us Dispose of case on non-constitutional ground if possible Construe statute so as to avoid conflict with Const. THEORY: presume that congress knew Const. exists and were trying to follow Const., assume law meant to be in conformity with Const. Settling something with Const. is messier than statutes etc. If court is wrong, will have to ammend Const. or change court If Court misinterprets a statute, congress can always re-write law, easier to fix Dialogue between Court & congress

Legislative Branch Power Introduction to Federalism o Authority for Legislative Power: Article I "All legislative powers herein granted shall be vested in a Congress of the United States which shall consist of a Senate and House of Representatives." o Congress: can only act if there is express or implied authority in the Constitution o Authority for State Power: States can act unless the Const. prohibits action o 10th AMD: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." o Existing Power: Power always existed, from England, Power given to the States by the People the State governs (consent of the governed) o Police Power: to regulate Health, Welfare, Safety, Morals o Limit: States gave up certain power to the Federal Govt w/ratifying Const. If Congress is validly exercising one of its powers, states cant impede

Legislative Branch Power Introduction to Federalism In evaluating Constitutionality of a congressional act: 1. Does Congress have the authority under the Const. to legislate? 2. Does the law violate another constitutional provision? Infringing separation of powers? 0. MANY disputes regarding the division of power between Congress and the States Interfering with individual liberties?

Legislative Branch Power Authority: Plenary If Congress has the power to do it, the power is plenary. If the state has the power then Congress doesnt Article I (mostly in section 8) Judicial Interpretation of Enumerated Powers Necessary & Proper Clause Enumerated Powers include (section 8): tax & spend, commerce, bankruptcy, naturalization, post office & post roads, patent & copyrights, lower courts,

piracies & felonies on the high seas, declare war, raise & support armies, provide & maintain navy, govt regulation of land, militia, necessary & proper

Legislative Branch Power Necessary and Proper Clause Text: The Congress shall have PowerTo make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof. Congress powers are enumerated; however, Constitution doesnt contemplate every power of Congress. Some can be rationally inferred Such powers must be rationally related to its constitutional grant of authority (e.g., authority to regulate postage prices is rationally related to Congress authority to create a post office) Congress doesnt have to use the least-restrictive means, or any particular means, to achieve its goal Burden rests with challenger to show that Congress chosen mechanism for exercising one of its valid powers is unconstitutional

Legislative Branch Power: Necessary and Proper Clause 5 Factor McCulloch Test to determine if a Congressional action is N&P: 1) Breadth of the N&P clause Congress has power to enact laws not expressly enumerated Ex: Congress regulates prisons bc needs to punish criminals in order to regulate post offices. So, congress can write laws for prisons 2) History of federal involvement in this area More history = more likely to be N&P 3) Sound federal policy? Is nexus to enumerated power reasonable? Is other logic reasonable? 4) Federal accommodation of state interests 5) Narrow scope of statute NOT too attenuated, NOT sweeping in scope The N&P clause isnt an end unto itself: something that would otherwise be outside of Congress authority is necessary and proper if it attaches to something that is within Congress power

Legislative Branch Power Congress Commerce Clause Authority:

o

Txt: To regulate commerce with foreign nations, and among the several States, and with the Indian tribes. Supreme Court Jurisprudence (interpretation): 4 eras: for each era ask: a) What is Congress' Authority to regulate "Commerce Among the States" o Did the court interpret power broadly or narrowly b) Does the 10th AMD Limit Congress' Authority? o Asked whenever analyzing Congressional Authority, but appears most frequently under Commerce Clause Analysis (bc Commerce Clause is most used power!)

Legislative Branch Power First Three Eras: 1) Early American history until 1890's: Commerce power broadly defined but minimally used 2) 1890's-1937: Commerce power defined narrowly & used 10th AMD to limit o Same time period as Economic Liberties DPC Lochner Era, pro industry 3) 1937-1990's: Commerce power defined broadly and refused to apply 10th AMD as a limit Modern Era: 1990's - the Present Commerce power defined narrowly and 10th AMD revived as a limit Healthcare Case Decision unknown effect on Commerce Clause Authority For each Era we ask: a) What is Congress' Authority to regulate "Commerce Among the States" b) Does the 10th AMD Limit Congress' Authority?

Legislative Branch Power: First three Eras of Commerce Clause Authority 1) Early American history until 1890's: Commerce power broadly defined but minimally used a. What is Congress' Authority to regulate "Commerce Among the States" Case: Gibbons v. Ogden: expansive definition of commerce o Commerce = intercourse generally buying, selling, R&D, MFR, transfer o Among the states =stream of commerce, any step along the way b. Does the 10th AMD Limit Congress' Authority? o Not used in this era

Legislative Branch Power: First three Eras of Commerce Clause Authority 2) 1890's-1937: Commerce power narrowly defined & used 10th AMD to limit o Conservative court: economically conservitive, backed by industry, believed in Lazze-fair economics (During Lochner Era) o Moral regulations: more leway a. What is Congress' Authority to regulate "Commerce Among the States" o Commerce = Goods being transported across state lines (not mfr or prod) o Hammer v. Dart - Court found Unconst. law that regulated age limit of child labor bc real intent was to limit child labor, not commerce o among the states = Intrastate activities that directly affect interstate commerce ONLY, Once at final destination, no longer interstate commerce o Schechter Poultry Corp. v. U.S: Chickens were for local NY market, once in NY can only be regulated by state of NY

Legislative Branch Power: First three Eras of Commerce Clause Authority 2) 1890's-1937: Commerce power narrowly defined & used 10th AMD to limit b. Does the 10th AMD Limit Congress' Authority? o 10th AMD protects state sovereignty from federal intrusion o Zone of Activity reserved for the states: health, welfare, safety & morals o Case: Hammer v. Dagenhart court found unconst. labor law that prevented minors from working in fathers cotton mill

Legislative Branch Power: First three Eras of Commerce Clause Authority 3) 1937-1990's: Commerce power defined broadly and refused to apply 10th AMD as a limit o Policy: reject previous courts legislating from bench pro-industry approach bc of great depression, new deal, o In 60 yrs no law over turned

Legislative Branch Power: First three Eras of Commerce Clause Authority 3) 1937-1990's: Commerce power defined broadly and refused to apply 10th AMD as a limit a. What is Congress' Authority to regulate "Commerce Among the States" o Commerce = all aspects of chain of production o NLRB v. Jones Steel corp: Congress has plenary to protect interstate commerce o Among States = Can aggregate potential effects on interstate commerce o Wickard: Act: limited him to 11.1 acres of wheat for private use Court says: even if an activity is local, if activity is aggregated with activity of others & if that substantially affects interstate commerce, then congress has power to regulate o Heart of Atlanta: civil rights act of 1964, Motel discriminated against P Commerce among States bc if all African Americans are discouraged from going to Motels, that would affect interstate commerce

Legislative Branch Power: First three Eras of Commerce Clause Authority 3) 1937-1990's: Commerce power defined broadly and refused to apply 10th AMD as a limit b. Does the 10th AMD Limit Congress' Authority? o 10th AMD used infrequently to invalidate laws o 10th AMD not treated as a separate Const. claim: 10th AMD states but a truism, its just a reminder o Limit: Congress cant regulate states or local govts in their integral govt functions o National League of Cities v. Usery law that extended wage and hour requirements for state employees found unconst.

Legislative Branch Power: Modern Commerce Clause Jurisprudence: 1990s-Present 1990's - ???: Narrowing of the Commerce Power and Revival of the 10th AMD as a Constraint on Congress a. What is Congress' Authority to regulate "Commerce Among the States" U.S. v. Lopez: Facts: gun possession school zone Analysis: no connection interstate commerce Lopez Triad 1. The Use of the Channels of Commerce (Roads etc) 2. The instrumentalities of interstate commerce, including persons, things in interstate commerce, even though the threat may come from intrastate activities (Things being transported, the vehicle used to transport) 3. Those activities having a substantial relation to interstate commerce ("substantially affects" interstate commerce) "where economic activity substantially affects interstate commerce, legislation regulating that activity will be sustained"

Legislative Branch Power: Modern Commerce Clause Jurisprudence: 1990s-Present a. What is Congress' Authority to regulate "Commerce Among the States" U.S. v. Lopez:

JX hook/element: statute does not contain, may have been valid had it contained JX hook linking gun possession to interstate commerce Hooks it to an enumerated power Ex Language: items that have passed in interstate commerce Here: gun that has passed through interstate commerce Jx Hook: must be proven as an element Ex: kidnapping is a federal crimebc kid transported over state lines The Feds can only write a law if it falls within one of the three categories Doesn't matter if all states agree, it is a power given to states

Legislative Branch Power: Modern Commerce Clause Jurisprudence: 1990s-Present a. What is Congress' Authority to regulate "Commerce Among the States" U.S. v. Morrison Facts: college Women raped & states did not effectively prosecute attacker Court rejects "aggregate affect" argument: cannot aggregate many minor effects on interstate commerce to come to the conclusion that the regulated activity is commercial Congressional findings of commercial impact alone not enough Must have a direct effect on interstate commerce THEN Aggregate effects/Congressional findings can only bolster argument Gonzalez v. Raich Facts: Pot case Take away: If a class of activities may be constitutionally regulated by congress, then the Courts do not have the authority to limit Congress' ability to regulate individual cases.

Legislative Branch Power: Modern Commerce Clause Jurisprudence: 1990s-Present b. Does the 10th AMD Limit Congress' Authority? Rule: Congress CANT Commandeer/Coerce/Require States to affirmatively act Even if they agree, even if its to their benefit o Reasoning: appears as if State is acting when Congress is acting. o Congress cant slap the people while wearing the glove of the State o Congress CANT commandeer state govt by forcing them to implement particular regulation o NY v. US found Unconst. law that required states to provide for radioactive waste disposal or take title to waste o Congress CANT require state and local officials to administer federal regulations o Printz v. US found Unconst. law that required local enforcement to administer background check program o BUT States must comply with Const. valid laws even if imposes extra costs. o Reno v. Condon Congress can prohibit States from disseminating private information, DMV

Legislative Branch Power: Modern Commerce Clause & The Healthcare Case *Majority Opinion Holdings* Anti-Injunction Act: cannot sue prior to tax collection o Justiciability issue: Ripeness o Not a tax for purposes of anti-injunction act -> penalty Individual Mandate: mandate that everyone buy health insurance or pay penalty/tax Authority: Commerce Clause - You can't regulate inactivity o Not purchasing health insurance = inactivity (many disagree) o Power to regulate = must be something to regulate NOT power to create something to regulate o Distinguish Wickard case: already producing Wheat

Legislative Branch Power: Tax & Spending + N&P & The Healthcare Case Individual Mandate: Authority: Necessary & Proper Clause o N&P to carry out an enumerated power o Here: No enumerated power to carry out w/o a power Authority: Tax & Spending "Shared Responsibility Payment": Penalty paid to IRS In name for purposes of Anti-Injunction Act = penalty Anti-Injunction Act: small procedural issue But HERE: tax Looks like a tax: paid into treasury, paid with tax returns, same exceptions as with IRS, determined by same factors as regular taxes, collected in same way, produces revenue for gov't Gov't can call it whatever they want, but that doesn't determine constitutionality, Court determines constitutionality

Legislative Branch Power: Tax & Spending & The Healthcare Case Medicaid Expansion: states can get additional funds if they expand coverage to all adults that are 133% of Federal Poverty Level, but if dont expand coverage, existing funds taken away Authority: Tax & Spending Rule: can place conditions on funds you give states, but cannot coerce or commandeer states to act Here: YES, can put conditions on NEW funds, but not ALL funds Taking away all funds = coercion

Legislative Branch Power: Legislative Power & The Healthcare Case What does Decision mean for Legislative Power? o Penalty v. Tax: now muddled together Penalty: for anti-injunction act, justiciability issue Tax: for purpose of upholding Congress power to tax o Taxing Power: Broadened? o Spending Power: narrows spending power Clarifies coercion o Commerce Clause Authority: Limits o cannot regulate inactivity o but this has not been done before really under the commerce clause, so is it a limit at all?

Legislative Branch Power: Modern Commerce Clause Analysis (SHORT) Preliminary Questions

Is it State Action (Here: Federal)? Can the Court hear the case? Justiciability? Can we avoid answering Const. Question?

Core Analysis Q1: Power/Authority? (Here: Commerce Clause) Lopez Triad 1) Use of Channels OR 2) Instrumentalities or Persons or Things moving in interstate commerce OR 3) Substantially affects or has a substantial relationship to Interstate Commerce? Q2: Limit? (Here: 10th AMD may limit) If survives THEN -> Another Const. provision that prohibits federal action? If fails THEN -> Legitimate under another Const. provision?

Legislative Branch Power: Modern Commerce Clause Analysis (LONG) Preliminary Questions Is it State Action? Can the Court hear the case? Justiciability question: Standing, mootness, Ripeness, Political Question Jurisdiction: if we were in Civ Pro BEFORE you talk about merits Ex: in Healthcare case, Anti-Injunction act Can we avoid answering Const. Question? Principles of Avoidance Judicial modesty (prudence) Court should not answer Const. question if it does not have to NOT striking down law if it could be construed constitutionally

Legislative Branch Power: Modern Commerce Clause Analysis (LONG) Core Analysis Q1: Power/Authority (Commerce Clause) Lopez Triad 1) Use of Channels OR o "the path" or "the how" o Path = Ex: roads o How = Ex: speed 2) Instrumentalities or Persons or Things moving in interstate commerce OR o "the Stuff" or "the what" o Ex: trucks, goods 3) Substantially effects or has a substantial relationship to Interstate Commerce? (MOST falls here)

Legislative Branch Power: Modern Commerce Clause Analysis (LONG)

3) Substantially effects

Is the statute at issue Economic in Nature? o Define: is it a regulation that speaks to commerce directly, the chain of commerce, how long is that chain, production, mfr, distribution, buying and selling o If Economic: Must find interstate commerce o CAN aggregate/cumulitive interstate effects o Ex: Wickard/Raich o If Non-Economic: Must find a direct and substantial interference with interstate commerce. o CANNOT aggregate interstate effects o Ex: Lopez, Morrison

Legislative Branch Power: Modern Commerce Clause Analysis (LONG) 3) Substantially effects

Is it a Traditional State Concern? o (Police powers are properly governed by the states) Did legislature have congressional findings? o Shows congressional intent, but alone note enough Is the legislation comprehensive? o Court more likely to uphold piece of the legislation that only affects intrastate commerce if its within a bigger economic bill Evidence of legislative intent? o may show intent to regulate interstate commerce or may show that intent was really something else (ex: to regulate guns, not sale of guns across borders) Jurisdictional "Hook" o Hooks it to an enumerated power, proven as an element o Ex Language: items that have passed in interstate commerce o Ex: kidnapping is a federal crimebc kid transported over state lines

Legislative Branch Power: Modern Commerce Clause Analysis (LONG) Q2: Limit (10th AMD) Purpose of 10th AMD: we left everything else to states/people when we gave enumerated powers to Fed Coercion Commandeering Legislature: are feds forcing states to pass a law State officials: are executive officials being bought and sold? Ex: Brady Bill case Is it a General Prohibition against doing something? Is it an affirmative obligation on states? NY case & Printz case: can't require states to affirmatively act

Legislative Branch Power: Modern Commerce Clause Analysis (LONG)

If Govt Action survives Commerce Clause Analysis THEN -> Is there some other provision of the constitution that prohibits federal action

If Govt Action fails Commerce Clause Analysis THEN -> May be legitimate under another constitutional doctrine/clause

Legislative Branch Power: Tax & Spending Power

Text: The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States The Tax and Spend power is its own power that is broader than Article I. A tax doesnt have to be levied only for the purposes of Article I (it could be levied for the general welfare)

Legislative Branch Power: Tax & Spending Power

South Dakota v. Dole (1987): Congress cant use the Tax and Spend power to strip away state power by making them an offer they cant refuse Requirements for conditions on federal funds: Spending must relate to the general welfare (Limit in the txt of Const.) The conditions for receiving federal funds must be unambiguous So states make informed decisions Conditions must be related to the federal interest in the regulation

Legislative Branch Power: Tax & Spending Power 10th AMD warning: the financial inducement to the States cannot be so coercive to the point where "pressure turns into compulsion" (Coercion/Commandeering)

Ex: Medicaid Expansion Coercive Ex: Dole 5% of budget, not coericive

Factors to determine whether or not coercion: o How much $ withheld, raw number o % of federal money withheld o % of states overall budget

Legislative Branch Power: Post-Civil War Amendments Each AMD includes an enforcement clause

13th AMD: prohibits slavery and involuntary servitude except as a punishment for a crime 14th AMD: all persons born or naturalized in the U.S. are citizens and that no state can abridge the privileges and immunities of such citizens DPC: Nor may states deprive any person of life, liberty, or property without due process of law or Deny any person of equal protection of the laws 15th AMD: the right of citizens of the U.S. to vote shall not be denied or abridged by the U.S. or by any State on account of race, color, or previous condition of servitude

Legislative Branch Power: Enforcement Clause of the Post Civil War Amendments Power: o Enforcement Clauses Congress shall have the power to enforce, by appropriate legislation, the provisions of this amendment. These clauses are a remedial measure (proportional and congruence), and it can only be a remedy to specific violations of rights specifically defined by SCOTUS.

Legislative Branch Power: Enforcement Clause of the Post Civil War Amendments Limits: Who may Congress regulate? 13th AMD: Modernly, 13th AMD can reach private actions, b/c badges of slavery very prevalent in society, not just in government. 14th AMD: Prohibits only state actions, not private actions Scope of Congressional power? What does enforce by appr legislation mean? o Theory 1: Expansive Congressional Power (COURT: no longer agrees) Katzenbach - Congress has the authority to interpret the 14th AMD to expand the scope of rights or to create new rights o Theory 2: Narrow Congressional Power (Modern View) City of Boerne Congress only has authority to prevent or provide remedies for violations of rights recognized by the Court

Executive Power Text: Article II, Section I Vesting Clause: The executive Power shall be vested in a President of the United States of America Compare Legislative Power: Article I, Section I: All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate & House of Representatives. Compare Judicial Power: Article III, Section I: 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. Compare State Power: 10th AMD: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Executive Power Express Powers - Article II, Section II-III Define: Powers given to the President expressly in the Const.

Commander in Chief Army/Navy/Militia(army reserves) Pardon Power Sign treaties/Foreign Relations Power o Receive ambassadors/ministers Appointment power: ambassadors, ministers o Fill vacancies : has become an independent power in modern times State of the Union Address Recommendations to Congress Veto (Article I, Section 7)

Executive Power Implied Power Definition: President has been given an express power that is so closely related, that must also have this implied power Powers closely tied to express powers (implied) Removal (so closely related to appointment) Air Force (so closely related to army/navy) Recognizing foreign gov't Head of State

Executive Power Inherent Power Definition: those powers that inhere into what it means to be an executive; other expansive powers w/o Const. reference (Ex: extra-const. acts during threat to US) NOT Express/Implied/Statute-Admin Agency powers Commander in Chief: Unwritten Powers o Model: other executives of other nations o Theoretically: powers the U.S. Pres has inherited from King of England. o Ex: can't outline everything a CEO needs to do, what previous exec did o Power has expanded: just like legislature, Country has gotten bigger Limits: o May not violate the Constitution or a statute o May not usurp or intrude into the power of another branch

Executive Power Inherent Power Unitary executive theory: As President, I am the sole executive

The President controls the entire executive branch

Prosecutors are part of Executive branch, so President must agree to prosecute himself Theory widely rejected by the courts Problematic: If the President does it, it's not illegal

Bush: Expanded theory: President has all federal legal power other than what Judicial & Legislative o Not a valid legal claim If Obama believes this theory, he would not go right out and say it

Executive Power Executive Privilege

The President has the ability to communicate confidentially with his advisors, so that his advisors feel free to give the best advice Executive privilege exists as an inherent power, but it must yield to other important interests U.S. v. Nixon (1973): o Need "something more" than a general assertion of privilege o Important interest here: the fairness of a criminal proceeding Congress may not expand executive power beyond what is permitted by the Constitution

Executive Power Executive Orders:

Definition: directive to tell people in executive branch what to do Common way things happen NOT an executive agreement Carry the Full force of the Law

Executive Power Determining Legality of Presidential Act: Youngstown

1) MOST Power: When Pres acts w/express authorization of Congress (Likely OK) o Unconst. if Congress lacked authority to grant this power Ex: Line Item Veto - no authority to do that 2) GREY Area: Congress is silent on issue (No express authorization): o Zone of Twilight: both the President and Congress might have authority o Legality depends on imperatives and events; i.e., emergencies o Balance: (1) Exec Interest, (2) Const. Text, (3) History/Tradition,

(4) Is President violating separation of powers?

3) LEAST Power: When president acts against express will of Congress o President has his own Article II powers minus any powers of Congress o

Most of the time Unconst., as theyll stray too far into Congress powers

Legislative Power & Relation to Executive Power The Rise of the "Administrative State"

Policy: Congress delegates their power to Executive Administrative Agency o They are Experts (specialized) & Congress not capable of making so many rules o Gov't has expanded as the population has expanded Conflict with Constitutional Principles bc Agencies possess: o Legislative Power: Rule-making, regulations o Judicial Power: hearings, adjudicating violations of regulations o Executive Power: to enforce regulations

Legislative Power & Relation to Executive Power Development: Non-Delegation Doctrine

Principle: Congress may not delegate its legislative power to administrative agencies o Forces Congress to be accountable for decisions, not unelected officials History: 1890s-1937 Commerce Clause Era, Lochner Era, Pro industry Panama Refining Co. v. Ryan: Nat'l Industrial Recovery Act provision that authorized president to prohibit the shipment in interstate commerce of oil produced in excess of state imposed production quotas o Reasoning: congressional power given to executive + no limit to presidential discretion Schechter Poultry Corp. v. U.S: Nat'l Industrial Recovery Act authorized Executive to impose codes of unfair competition o Unconst.: asking President to take on Legislative role

Legislative Power & Relation to Executive Power Demise: Non-Delegation Doctrine

Never been explicitly overruled, but not followed anymore

Whitman v. American Trucking Assn, Inc. Challenge: Clean Air Act as impermissible delegation of legislative power to EPA (executive branch agency) Scalia says: o Const. permits no delegation of legislative powers, o But the Court has only invalidated delegations twice o OK because congress has given agency limits to discretion: not allowed to consider costs of implementation

Legislative Power & Relation to Executive Power Legislative Veto: Unconstitutional Case: INS v. Chadha Define: Language in a statute that authorizes Congress to overturn an agency's decision by a resolution of one house of Congress. Unconstitutional: deviates from process required by Const. to pass a law Congress has the power to write new legislation -> can overturn agency action that way ONE house of congress can veto -> not process used originally to pass law Delegation of Executive Power: Congress cannot delegate Executive Power to Congress or it's officials Executive: given power to administer/enforce laws -> Congress cannot appoint/remove Reason: Once law passed, congress involvement ends CAN: write new legislation

Executive Power Appointment Power The Rule: Principal Officers: High ranking officers are appointed by President with advice/consent of Senate and include: Cabinet Members, Second-in-Command of the Departments, Ambassadors, Public Ministers, Consuls, Judges If mentioned in Const.: probably a Principal Officer Inferior Officers: Congress has the power to vest the appointment of inferior officers in either: President, Courts of Law, or Heads of Departments **Congress itself does not appoint inferior officers, just decides who appoints** Employees: appointed/hired by HR Departments etc.

Executive Power Removal Power Removal By President: Default: if congress says nothing, president can remove Principal Officers: President CAN remove high level officers without cause LIMIT: Congress can require the President to show good cause for removal if Need for Officer to be substantially independent, from President Not a Principal Officer Good Cause: Must be performance based Removal By Congress: Principal Officer: Congress cannot remove Principal Officers without a formal impeachment because violates the separation of powers

Executive Power Appointment/Removal Power Factors for determining whether officer is inferior: Is the officers role or scope of power restricted (inferior)? Or is officer a policy maker (principal)? Is the officer subject to removal by a higher executive branch official? Is the officer appointed for a term? Is officers tenure limited? Does the legislation creating the officers position provide for the officers appointment by a department head? **Can be appointed by President, Congress, the Court* Note: Commission created by congress never going to be a principle officer BUT Congress CAN create a principle officer (undersecretary of Dept of defense?)

Executive Power Foreign Policy Powers: Express

o

Congress: Article I, 8: Foreign commerce, Marque & Reprisal, Piracies, Captures, Offenses against Int'l Law, Declare War, Raise & support armies (Fund armies), Power of the Purse Executive: Art. II, 2: Commander In Chief, Treaties, Appoint Ambassadors, Appoint Department of State

Division of power causes problems. Ex: Congress declares war, Pres controls army Result: The Court will use the Principle of Avoidance to avoid ruling on a dispute Dispute between branches Separation of powers Political solution: Voters should solve this problem Reason: to protect judiciary

Executive Power: Foreign Policy Powers The president has Express & Inherent executive foreign relations power Express: Negotiate Treaties, Appoint ambassador, Commander in Chief of Army/Navy/Air Force , Appoint Dept. of State Inherent: Meet with heads of other nations, Executive Agreements, Act like a President, Treaties - Power to negotiate, but must be ratified by 2/3 of Senate Self-Executing Treaties: once ratified by 2/3 Senate, become law automatically Executory Treaty: 2/3 Senate + 2/3 House -> ratified by President (starts in Congress) Multi-Lateral Treaties: Intl agreement that becomes law once enough countries sign on, only enforceable against U.S. if ratified by U.S. Executive agreements - agreements between executives of different countries Const. - Presidents foreign relations power despite looking like Treaty No ratification by Senate

Executive Power: Foreign Policy Powers Presidential v. Domestic Power: US. Curtiss-Wright Executive has very broad and expansive foreign policy powers. States never had any foreign policy powers, so foreign policy powers rested exclusively with the federal government. But the country needs one organ to conduct foreign policies and relations, and the President is best situated to do that. Treaties (Dames & Moore) War (War Powers Resolution) Limit on Foreign Policy Power: Congress CAN: reduce/eliminate funding for war, torture etc. Congress CANT: infringe on Pres substantive, express right negotiate treaty ability to use military force

Executive Power: Foreign Policy Powers War powers/War on Terror President has some inherent war powers, but they are limited by the Const. Boumediene v. Bush Executive can detain individuals incident to war Executive cannot detain indefinitely without some procedure that looks like habeas corpus (adequate alternative process) Opportunity to retain counsel that advocates on their behalf Opportunity to present evidence/rebut evidence against them Reasonable time frame (6 years too long) Hamdi v. Rumsfeld Executive cannot label someone as an enemy combatant without: a factual basis for the classification and a fair opportunity to dispute the governments classification before a neutral decision-maker

Limits on State Power: Sovereignty & Congressional Action/Federalism Source of a State's Power: Police Power + 10th AMD Police Power: to regulate Health, Welfare, Safety, Morals 10th AMD Truism as to what already existed States had this power before given to fed States gave up certain power to fed gov't If not a power given to the Feds, States must have it States always had power (history in England) Sovereignty: states are independent Congress TOOK power from the states More for fed = less for states More for States = less for fed

Limits on State Power: Preemption Preemption of State and Local Laws: A State law is preempted if it conflicts with a valid federal law Supremacy Clause: The Const., Laws & Treaties are supreme law of the land If there is a conflict between federal & state law, federal law wins 2 Types Express Implied

Conflicts Preemption Impediment Preemption Field Preemption

Limits on State Power: Preemption Express Preemption

Federal Law contains explicit language preempting state law When the language is ambiguous as to what is preempted, look to the purpose of the law to decide whether the state is doing something that Congress wanted only the federal government to do Congress intent to invade a traditional area of state authority must be clear and manifest

Limits on State Power: Preemption Implied Preemption Conflicts Pre-emption: State law preempted when it conflicts with valid Federal Law (Challenge: finding the conflict) o Federal/State Laws are mutually exclusive o Physically impossible for a person to comply with both Impediment Pre-emption: State Law Impedes the Achievement of a valid Federal Objective o Even if the federal and state laws are not mutually exclusive, preemption will occur if local law interferes with attaining a federal legislative goal Field Pre-emption: Pre-emption Because Valid Federal Law Occupies the Field o Federal law wholly occupies a field o Ex: Immigration law -> federal law is exclusive in regulating immigration States have never been put in charge of securing borders historically

Limits on State Power Dormant Commerce Clause

Define: principle that state and local laws are unconst. if they place an undue burden on interstate commerce. Authority: Inferred from commerce clause authority given to congress Article I, Section 8 w/Federal Legislation: whether federal law pre-empts state/local law w/o Federal Legislation: State/Local laws can still be challenged o Commerce clause lays dormant -> even where no legislative action, commerce clause is waiting for states to act o If state law burdens interstate commerce -> federal law trumps state

Limits on State Power: Dormant Commerce Clause 3 step process: (1) Does state law discriminate against ISC? (2) (A) Analysis when Non-Discriminatory (2) (B) Analysis when Discriminatory: a form of Strict Scrutiny (3) Exceptions to DCC

Limits on State Power: Dormant Commerce Clause (1) Does state law discriminate against ISC?

Non- Discriminatory -> Facially Neutral BUT Discriminatory Purpose/Eaffect o Can show legislative intent of discriminatory purpose OR once the law is implemented, it has a discriminatory impact Discriminatory -> Facially Discriminatory o Terms of law draw distinction between in-staters and out-of-staters

Limits on State Power: Dormant Commerce Clause (2) (A) Analysis when Non-Discriminatory On its Face: a form of Rational Basis

Facially Neutral (BUT with Discriminatory Purpose/Effect): Presumption in favor of upholding law The Pike Balancing Test: Benefits v. Burdens o Invalidated only if shown that law's burdens on interstate commerce outweigh benefits OR (Same thing another way)Upheld unless the burden imposed on such commerce is clearly excessive in relation to putative local benefits o Consideration: includes whether the regulation in question serves a traditional state function o Invalidated only if shown that law serves no legitimate governmental purpose

Limits on State Power: Dormant Commerce Clause (2) (B) Analysis when Discriminatory: a form of Strict Scrutiny

Facially Discriminatory: Strong Presumption against the law: o normally, if deemed discriminatory, law is per se invalid o Almost always unconst. The Test o No Balancing Test o Upheld ONLY if to further an important Gov't purpose o Must demonstrate, under strict scrutiny, that there are no other less restrictive means to advance legitimate gov't interest (not true SS)

Limits on State Power: Dormant Commerce Clause (3) Exceptions to DCC Congressional Approval: If congress approves the state law: reason - congress has plenary power to regulate commerce among the states Western & Southern Life Insurance: Market-participant exception: Dormant Commerce Clause does not apply to a state, if the state is literally participating in the market acting like a state-owned business. However, that state-owned business cannot have regulatory powers. state may favor its own citizens in receiving benefits from gov't programs or dealing with gov't owned businesses??? Govt NOT acting like a regulator, acting like a business

Limits on State Power: Privileges & Immunities Clause of Article IV, Section 2 Text, Article IV, Section 2: The Citizens of each state shall be entitled to all the privileges and immunities of citizens of the several states o Uniformity among the states o Purpose: to remove incentive for governor/state to discriminate against citizens of other states Easy to interfere with free movement of people w/o this clause Result (w/clause): you don't lose your state citizenship when you move from one state to another o NOT 14th AMD ("P or I Clause"): No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States

Limits on State Power: Privileges & Immunities Clause of Article IV, Section 2 Rule: Privileges and Immunities Clause of Article IV - States and municipalities cant discriminate against out-of-staters as to: o Const. rights o Important economic activities New Hampshire v. Kathryn A. Piper

Rule: discrimination against out of staters ok when there is a substantial state interest for the difference in treatment and the discrimination against non-residents bears a substantial relationship to the States objective.

The State Action Doctrine & Incorporation: Incorporation

14th AMD EPC + DPC (St.) o The 14th AMD Equal Protection & Due Process Clause apply to the State Gov't 5th AMD ---- + DPC (Fed.) o The 5th AMD Due Process Clause applies to the Federal Gov't BOR ---- Language of txt says it applies to the Federal Gov't only BOR ---- "INCORP" (14th AMD) --> St. o The Bill of Rights is incorporated to apply to the States through the 14th AMD 14th AMD ----"REVERSE INCORP" (EPC --> 5th AMD DPC --> Fed.) o The Equal Protection Clause of the 14th AMD is reverse incorporated to apply to the Federal Gov't through the 5th AMD Due Process Clause Bork --> last supreme court nominee to say anything about his views

The State Action Doctrine & Incorporation: Incorporation The Slaughter-House Cases (1872): States can abridge the privileges and immunities of their citizens under the Fourteenth Amendment; the Bill of Rights doesnt apply to the states (NOT expressly overruled, but not followed anymore) Twining v. New Jersey (1908) Certain constitutional rights are incorporated into the Due Process Clause of the Fourteenth Amendment and can be applied against the states Incorporation applies to rights where neither liberty nor justice would exist if they were sacrificed Substantive Due Process: th A State Govt infringes on an enumerated right by way of the DPC of the 14 AMD th The Federal Govt infringes on an enumerated right by way of the DPC of the 5 AMD.

The State Action Doctrine & Incorporation: Incorporation All rights in the Bill of Rights have been incorporated to the states except: 3rd AMD (no forced quartering of soldiers in private homes during peacetime) 5th AMDs requirement of a grand jury indictment 7th AMD right to a civil jury trial 8th AMD prohibition on excessive fines **BC not applicable today

The State Action Doctrine & Incorporation: State Action Doctrine The Civil Rights Cases (1883) Rule: The 14th AMD applies only to government action, not private conduct EXCEPTION: 13th Amendment, no slavery even among private citizens Public function exception: When a private actor steps in to perform all the functions of government, then the private actor is performing a public function and is subject to the same constitutional limitations as the state Extensive regulations and a government-granted monopoly are not a sufficiently close nexus between the state and a private actor to constitute a public function (Public Utilities) Examples: Elections, Operating a company owned town

The State Action Doctrine & Incorporation: State Action Doctrine Entanglement/Entwinement exception: When a private actor becomes so entangled with the government that we may fairly ascribe the private action to the government, then the State Action Doctrine applies to the private actor Examples: Yes: Judicial enforcement of private discrimination (e.g., racially-restrictive real covenants) Yes: Initiatives encouraging violations of rights: where private individuals step into the shoes of the legislature to write a law, then the law is subject to the state action doctrine (Ex: CA Propositions) Yes: Govt Parking Lot & private restaurant that discriminate = entanglement Government regulations and subsidies by themselves are not enough to entangle government and private actors Liquor licensing, public utility monopolies, e.g., do not create the nexus required

Analysis: Fundamental Rights Q1: Power? Did the entity have the power to do what it did under const? Q2: Limits? State Action Doctrine: did the state act? Is there an exception? o Private citizens allowed to discriminate o Is it an actual state actor? OR o Can we reasonably attribute it to one of the exceptions of state action? Which part of the const. limits this action? o Is there an enumerated right? Incorporation: if action limited under BOR, BOR applies to states under 14th AMD Bill Of Rights includes: 5th AMD: due process, double jeopardy, self-incrimination, eminent domain (takings).

Analysis: Fundamental Rights Q2: Limits? Which part of the Const. limits this action?
o

Economic Substantive Due Process Rights? o Ability to enter into and enforce contracts (Contracts Clause) o Pursue a trade or profession o Acquire, possess, convey property (Takings Clause)

Analysis: Fundamental Rights Q2: Limits? Which part of the Const. limits this action? o Substantive Due Process/Un-enumerated Rights? o Family Autonomy Right to Marry Right to Custody of One's Children Right to Keep the Family Together Right of Parents to Control the Upbringing of their Children o Reproductive Autonomy Right to Procreate Right to Purchase and Use Contraceptives Right to Abortion o Medical Care Decisions Right to Refuse Treatment Right to Patient-Assisted Suicide (Not Recognized) o Sexual Orientation and Sexual Activity

Analysis: Substantive Due Process/Un-enumerated Rights

1st ISSUE: IS THERE A FUNDAMENTAL RIGHT? Define the Right -> Levels of abstraction Is it "Fundamental" 2nd ISSUE: IS THE CONSTITUTIONAL RIGHT INFRINGED? Const. right prohibited? -> Yes, infringed Const. right burdened? -> Assess directness & substantiality 3rd ISSUE: IS THERE A SUFFICIENT JUSTIFICATION FOR THE GOV'TS INFRINGEMENT OF A RIGHT? Fundamental: SS -> is Govt interest Compelling Non-Fundamental: RB -> is Govt interest Legitimate 4TH ISSUE: IS THE MEANS SUFFICIENTLY RELATED TO THE PURPOSE? SS: necessary/narrowly tailored, Means: no other less restrictive way to achieve goal RB: rationally related, Means: reasonable way to achieve goal

Economic Liberties Economic liberties include: Ability to enter into and enforce contracts (Freedom of Contract) Pursue a trade or profession (Freedom to pursue a livelihood/to practice a trade or profession) Acquire, possess, convey property Pertinent Clauses/Provisions: Contracts clause: Article I, 10 "No state shall pass any law impairing the obligation of contracts" Takings Clause: 5th AMD "Nor shall private property be taken for public use without just compensation" Due Process Clauses: 5th AMD & 14th AMD "Neither federal nor state gov't can take a person's property or life or liberty w/o due process"

Economic Liberties Fifth and Fourteenth Amendments Due Process Clause: neither the Federal nor the State gov't shall deprive a person of life, liberty or property without due process of law o Procedural Due Process Procedures that gov'ts follow when it takes away life, liberty or property. How government must proceed. Notice Type of hearing Neutral Arbitrator o Substantive Due Process Whether the gov't has an adequate reason for taking away a person's life, liberty, property. Why government is proceeding. Focus: sufficiency of justification for gov't action Standard: Necessary to achieve a compelling gov't purpose Used in 2 areas: Protecting economic Liberties Safeguarding privacy

Economic Liberties: Fifth and Fourteenth Amendments Due Process Clause:

Ex: "liberty" protects right of parent to custody of children Procedural: notice & hearing before taking away child Substantive: compelling reason for taking away child

Early History Substantive Rights: Court only found Procedural Due Process Lochner Era/Before 1937: During Industrial Revolution: Regulations interfere with natural right of people to own/use property, have freedom of Contract Court struck down many laws regulating issues like minimum wage, maximum hours, working conditions, unions, etc, th The Court used substantive due process of the 14 amendment to invalid those laws.

Economic Liberties: Fifth and Fourteenth Amendments Due Process Clause: Lochner: Court struck down a State law aimed at protecting bakers from harmful flour dust. Reasoning: Statute interferes with right of contract between employer/employee Police powers: safety, health, morals, general welfare of public not a valid exercise of state police power because not protecting health of the public Fatigued bakers do not put public welfare in danger Pro: Protect individual Liberties (to contract, work for low wages). Neither Feds/State should intrude on certain rights Con: Substitution of economic theory and personal beliefs OVER Const. Other Cases: Unconst.: to protect unionizing, protect minimum wage laws, maximum hour laws, consumer protection (dirty rags in bedding)

Economic Liberties: Fifth and Fourteenth Amendments Due Process Clause: *End to Lochner era: Court packing plan, recovery from depression* Williamson v. Lee Optical (1955): Standard of review for Economic Substantive Due Process (ESDP) claims: Rational basis: law must be rationally related to a legitimate state interest Deference to the legislature as to whether the law is necessary ESDP claims: evaluate the law based on the legislatures stated purpose AND any conceivable purpose the legislature could have had U.S. v. Carolene Products (1938), footnote 4: the most famous footnote in the world When a law infringes on an enumerated right, a court will not be so deferential Rational basis should not be used when a law restricts the political process or prejudices discrete and insular minorities Footnote 4 establishes that there are different levels of review depending on who is making the claim and/or what the claim is

Economic Liberties: The Contracts Clause (STATES) Text: Article I Section 10: no State shall pass any law impairing the obligation of contracts 1) Ask: Is the Contract Valid? Is it an existing Contract? Only applies if state/ local law interferes w/existing contracts State or Fed Action? Only applies to STATE/LOCAL Laws 2) Private Contracts: Const. prevents only substantial impairment of Contract 3 part test (RB + substantial impairment) Substantial impairment of contractual relationship? If so, does it serve a significant and legitimate public purpose? If so, is it reasonably related to achieving the goal?

Economic Liberties: The Contracts Clause (STATES) 3) Public Contracts: State/local gov't may interfere w/existing gov't contracts ONLY when strict scrutiny met Suspicious when gov't tries to get out of a contract Gov't contracts: Rule: State/Local law that alters a pre-existing contract Unconst. Concern that gov't will write a law that impacts existing gov't contracts Concern that gov't will write off their own debt Helps encourage credit creditors will get paid U.S. v. NJ: write law that ensures they will get their $ back on their bonds

Economic Liberties: The Contracts Clause (STATES)

History: Lochner era: 1897 - 1937 Contracts clause made superfluous bc DPC used to protect contracts Limited ability to interfere with FUTURE contracts and EXISTING contracts 1937 Present can only prevent impairment of Existing contracts Stopped using DPC to protect contracts Now use contracts clause

Analysis: Substantive Due Process/Un-enumerated Rights

1st ISSUE: IS THERE A FUNDAMENTAL RIGHT? Define the Right -> Levels of abstraction Broad/ Liberty -> Always protected (J. Brennan) o (Everything is fundamental!) o Liberty is in the Const. -> Tradition of protecting Liberty Narrow/ Specific right -> Not protected (J. Scalia) o (Strict originalist approach) o Not in Const. -> No History/Tradition BUT Most commonly used approach (J. Kennedy) o reasonable but careful definition Ex: Michael H. o Not protected: Right of Adulterous father to have access to child, DUAL fatherhood o Protected: Right of biological father who raised child

Analysis: Substantive Due Process/Un-enumerated Rights 1st ISSUE: IS THERE A FUNDAMENTAL RIGHT?

Is it "Fundamental"?
What is the Source/Authority for determining right exists? History & Tradition: rights deeply rooted in the Nations history & tradition Originalists: right must be expressly enumerated or clearly intended by the framers, Source: Text of Const. Non-Originalists: Modern morals: courts should recognize unenumerated rights supported by deeply embedded moral consensus that exists in society Right to Privacy: not enumerated in the Const., but derived from other rights 3rd, 4th, 5th + 9th AMD (states not everything is in const.), creates a sphere in which individuals have the right to make private decisions. This is also known as autonomy.

Analysis: Substantive Due Process/Un-enumerated Rights

2nd ISSUE: IS THE CONSTITUTIONAL RIGHT INFRINGED? Const. right prohibited? -> Yes, infringed o Ex: outlawing all use of contraceptives (if using contraceptives is fundamental right) Const. right burdened? -> Assess directness & substantiality of interference o Unclear -> Ex: Abortion What is an undue burden? Denying public funding? Waiting Period? Spousal Notification?

Analysis: Substantive Due Process/Un-enumerated Rights

3rd ISSUE: IS THERE A SUFFICIENT JUSTIFICATION FOR THE GOV'TS INFRINGEMENT OF A RIGHT? Fundamental: SS -> is Govt interest Compelling o Govt must present a compelling interest to justify violating a fundamental right Non-Fundamental: RB -> is Govt interest Legitimate o Govt only need present a legitimate interest to justify violating the non-fundamental right What is compelling? o A truly vital interest is served by the law in question Ex: war Ex: adequate healthcare for children

Analysis: Substantive Due Process/Un-enumerated Rights

4TH ISSUE: IS THE MEANS SUFFICIENTLY RELATED TO THE PURPOSE? Strict scrutiny: compelling purpose (#3) + necessary to achieve the objective o SS) necessary/narrowly tailored o Means: could not attain goal through less restrictive means compare: rational basis o Means: reasonable way to achieve the goal (doesnt have to be the least restrictive way) o RB) Rationally related

Fundamental Rights Strict scrutiny Narrowly tailored to serve a compelling government interest This means that there cant be any less-restrictive means available to accomplish the same goal; if there are, then the law fails strict scrutiny Used for fundamental rights Government bears the burden of proving that the law is narrowly tailored and that the interest is compelling Compelling depends on facts; argue interest is compelling/not Rational basis Rationally related to serve a legitimate government interest Used for non-fundamental rights Challenger bears the burden of proving that the law is not rationally related and the the interest is not legitimate A legitimate state interest is basically anything the state has the power to do

Fundamental Rights: Family autonomy Loving v. Virginia (1967): there is a fundamental right to marry. Marriage is one of the basic civil rights of man and necessary for the pursuit of happiness Zablocki v. Redhall (1978): reaffirms right to marry; law is struck down because its not narrowly tailored Michael H. v. Gerald D. (1989): determining the level of abstraction for finding a right Scalia: use the most specific level at which the traditional relevant to the asserted right can be identified Brennan: getting too specific leads to identifying traditions that dont exist anymore or dont make sense in the 20th century Moore v. East Cleveland (1977): fundamental right to choose the composition of the family, Grandson can live with Grandma even without his Father

Fundamental Rights: Reproductive autonomy Griswold v. Connecticut (1965): right to marital privacy Penumbras! Putting individual rights together creates a penumbra; the shadow cast by the rights together creates a protected area where the government cannot go Roe v. Wade (1973): fundamental right to abortion as part of the right to marital privacy Sliding scale of scrutiny for abortions: depends on age of the fetus; there comes a time when government interest in fetal life overcomes the abortion right of the mother 1st trimester: no restrictions on abortions permitted 2nd trimester: restrictions permitted that are reasonably related to maternal health 3rd trimester: outright prohibition of abortion permitted with exceptions for the life or health of the mother

Fundamental Rights: Reproductive autonomy Planned Parenthood v. Casey (1992): This is the modern abortion case! Eliminates Roes trimester framework, which OConnor called unworkable The standard is now viability Before viability, states may regulate abortion so long as those regulations dont place an undue burden on a womans choice A burden is undue if its purpose or effect is to place a substantial obstacle to obtaining an abortion After viability, a state may regulate with abandon, including prohibiting abortion, except as required to preserve the health or life of the mother Gonazles v. Carhart (2007): Removes one of the Casey requirements; now, a law that prohibits abortion after viability without an exception for the mothers health is constitutional -> But we dont know if this is going to everything or not

Fundamental Rights: Reproductive autonomy Other abortion issues Unconstitutional (If Pre-Viability): Spousal consent/notice laws: interest of strengthening marriage not achieved Long waiting period: No legit govt interest, not safer, not more informed Constitutional: Parental consent and notification laws: State may require parental notice ONLY if it creates alternative procedure where a minor can obtain an abortion by going before a judge who can approve the abortion by finding that it would be in minors best interest or that minor is mature enough to decide for herself Waiting periods permitted so long as theyre reasonable Laws allowing the state to articulate its own position on abortion (e.g., mandatory pre-abortion lectures) are permitted Law that denied gov't funding for "non-therapeutic abortions" not required to fund

Fundamental Rights: Medical decision-making Maher v. Roe (1977) No constitutional right to government-sponsored medical care But if government funds medical services, the Equal Protection Clause prevents them from being arbitrarily denied Cruzan v. Director, Mo. Dept of Public Health (1990) There is a right to refuse treatment But a state can require clear and convincing evidence that a person has decided to refuse treatment states interest in protecting life the states interest in making decisions of this type: better to err on the side of sustaining life; once youre dead, you cant go back Washington v. Glucksberg (1997) No right to physician-assisted suicide

Fundamental Rights: Sexual orientation and sexual activity Lawrence v. Texas (2003): explicitly overrules Bowers v. Hardwick (1996) There is a liberty interest in private sexual decision making o choosing sexual partners o choosing sexual activities o lifestyle & relationships o to private decision making Consensual Adults Non-incestuous Uncertainty as to what level of scrutiny applies; Kennedy uses rational basis and finds that the law was motivated by animus toward a particular group, which is not a permissible state interest under Romer v. Evans o Says "we are not declaring fundamental right" Evolving international standards are used to determine whether a right is fundamental

Fundamental Rights: Right to education San Antonio Sch. Dist. v. Rodriguez (1973): No fundamental right to education. The government has no affirmative duty to provide certain services.

Fundamental Rights 9th AMD:

o

Text: "the enumeration in the Const. of certain rights, shall not be construed to disparage others retained by the people." Not the source of rights No 9th AMD rights Gives court permission to protect non-enumerated rights Not frequently invoked by the court: o Const. provides no guidance on how to apply