I.

Federalism: The Power of Congress to Legislate
A) Congress and the States
1) Introduction
a) Congress may act or create laws only if there is express or implied authority in the constitution. i. Two questions in evaluating the constitutionality of acts of Congress: Does the Constitution grant authority? Does the law violate another provision or doctrine (eg. Separation of powers, individual liberties)? b) States may act, unless the constitution prohibits the action. i. One question for state laws: Does the legislation violate the Constitution?

2) Scope of Congressional Authority: McCulloch v. Maryland
a) Issue: Whether the State of Maryland could collect a tax from the Bank of the United States. b) Facts: i. SoS Jefferson and AG Randolf argued Congress lacked the authority under the Constitution to create such a bank and that doing so would usurp state government prerogatives. ii. Hamilton persuaded Washington to support creating the bank, and the Federalists who controlled congress successfully enacted the Bank. iii. Many people blamed the bank’s monetary policies for aggravating a serious depression after the War of 1812. iv. States were especially angry, because the bank called in loans owed by the states. v. Many states banned the operation of the bank in their states, but Maryland taxed it. vi. The bank refused to pay the MD tax, and the state sued the bank via McCulloch (the cashier at the MD branch). c) Holding: Justice Marshall said that Congress has the power to create the bank. i. Historical practice established the power of Congress to establish the bank (invoking the history of the first bank as a basis for the second bank, even though it was essentially the same bank in the same historical period). ii. States do not retain ultimate sovereignty, because they ratified the Constitution, since in fact it was the people who ratified the constitution, and that “the government of the Union is… a

government of the people.” Therefore, the states do not retain ultimate sovereignty under the Constitution. iii. The Constitution is not a statute that enumerates every congressional power, rather it is a broad guiding document: “In considering this question, then, we must never forget that it is a constitution we are expounding.” Although the Constitution does not mention a power to create a Bank, Congress can create one as a means to carrying out many of its other powers. iv. Congress has the authority “to make all laws which shall be necessary and proper for carrying into Execution the foregoing powers, and all other powers vested by this constitution…” Marshall argued that this provision makes it clear that Congress may choose any means, not prohibited by the Constitution, to carry out its express authority. “Necessary” in this context means “useful” or “desirable,” not “indispensable” or “essential.” d) Rules from McCulloch: i. Federal government is supreme over the states, and that the states have no authority to negate federal actions. ii. Congress’ powers are expansively defined to include all actions which are useful in carrying out their powers. iii. The states cannot interfere with federal activities by doing things like imposing taxes or regulations on the federal government.

B) The Commerce Power
1) Power to Congress
a) Article I, §8: “The Congress shall have the power to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” b) Questions: a. What is commerce? Is it one stage of business or does it include all aspects of business and even life in the United States? b. What does “among the several states” mean? Is it limited to instances where there is a direct effect on interstate commerce or is any effect on interstate activities sufficient? c. Does the 10th Amendment limit Congress? If Congress is acting within the scope of the commerce power, can a law be declared unconstitutional as violating the 10th Amendment? c) Definition of the Commerce Power: Gibbons v. Ogden a. Facts: New York legislature granted a monopoly to Fulton and Livingston for operating steamboats in New York waters, who

in turn licensed Aaron Ogden to operate a ferry between NYC and NJ. Gibbons operated a competing ferry service, thus violating the exclusive rights given to Fulton and Livingston. Gibbons argued that he had the right under federal law. b. Holding: SCOTUS concluded that the New York law was preempted by Federal law, and also that the New York monopoly was an impermissible restriction of interstate commerce. c. Rule: i. Commerce: The court said that commerce “undoubtedly is traffic, but it is something more: it is intercourse.” According to Gibbons, commerce includes all phases of business, including navigation. ii. Among the States: “The word ‘among’ means intermingled with.” In other words, Congress may regulate when the commerce has interstate effects, even if the commerce occurs within a state. iii. Intrastate Commerce: Congress can regulate intrastate commerce if it has an impact on interstate activities. iv. Limits on congressional regulation of commerce among the states?: Congress has complete authority to regulate all commerce among the states. The sole check on Congress is the political process, not judicially enforced limits to protect the states.

C) 1890’s-1937: A Limited Federal Commerce Power
1) The Commerce Clause Prior to the New Deal
a) Dual Federalism: Federal and State Governments were separate sovereigns, that each had separate zones of authority, and that it was the judicial role to protect the states by interpreting and enforcing the Constitution to protect the zone of activities reserved to the states. a. “Commerce” is one stage of business, distinct from earlier phases such as mining, manufacturing, or production, and only commerce itself can be regulated by Congress. b. “Among the States” means that Congress can regulate only where there is a substantial effect on interstate commerce. c. The 10th Amendment reserves a zone of activities to the states, such as regulation of production, and even if federal laws are within the scope of the commerce clause, they are unconstitutional if they invade that zone. b) Restrictive Line of Cases a. Regulating manufacturing: United States v. E.C. Knight

i. Facts: The U.S. Government attempted to use the Sherman Antitrust Act to block the American Sugar Refining Company from acquiring four competing refineries, which would have given them a 98% market share. ii. Holding: Federal law could not be applied because the monopoly was in the production of sugar, not in its commerce. iii. Rule: “Commerce succeeds to manufacture, and is not a part of it.” iv. Policy: Based on a need for preserving a zone of activities to the states. b. Direct v. Indirect: The federal government has the authority to regulate when there are direct effects on commerce, “but where the effect of intrastate transactions upon interstate commerce is merely indirect, such transactions remain within the domain of state power.” c) Broad Line of Cases a. Local activity that affects commerce can be regulated: i. Shreveport Rate Cases 1. Facts: Railroad was ordered to charge the same rates for shipments to Marshall, Texas, whether from Shreveport, Louisiana, or from Dallas, Texas. 2. Holding: The Interstate Commerce Commission has the ability to set intrastate railroad rates because of their direct impact on interstate commerce. b. “Current” of Commerce i. Meatpacking Cases: Swift & Co. v. U.S. 1. Facts: There was an agreement among meat dealers in Chicago to fix the price at which they would purchase meat from stockyards. 2. Holding: Although the stockyard was intrastate, it was only a temporary stop for the cattle, that was in “a current of commerce” c. The power to exclude: The Lottery Case i. The court made it clear that the power to regulate interstate commerce includes the ability to prohibit items from being interstate commerce. ii. It is within Congress’s commerce clause power to stop lottery tickets from being a part of interstate commerce.

2)

The New Deal
a) Mining: Carter v. Carter Coal Co. a. Facts: Federal Bituminous Coal Conservation act of 1935 declared that the production of coal directly affected interstate commerce, and provided for local coal boards to be established to determine prices for coal and to determine, after collective bargaining, wages and hours for employees. b. Holding: Justice Sutherland declared the law unconstitutional, saying that “Commerce is the equivalent of the phrase ‘intercourse for the purposes of trade.’ Plainly, the incidents leading up to and culminating in the mining of coal do not constitute such intercourse.” Therefore, the court held, the fixing of wages and hours constitutes regulation of production, not of commerce. b) Court packing plan (Roosevelt): Scheme to appoint judges that would favor his Keynesian economic policies. a. Court had severy elderly judges, “they’re behind in their work.” b. For every judge over 70, he would appoint a new judge (there were 6 over 70). c. There was a strong negative reaction that this was an attack on the independence of the judiciary. d. Then the court dynamic shifted anyway, and the 1937 Steel case found that government could regulate the steel industry.

D) 1937-1990’s: Broad Federal Commerce Power
1) New Definition of Commerce: Jones & Laughlin Steel
a) Facts: National Labor Relations Act created a right of employees to bargain collectively, and prohibited unfair labor practices such as discrimination against union members. The Act applied when there was an effect on commerce and it defined “affecting commerce” as meaning “in commerce. b) Holding: The steel business is part of the stream of commerce and labor relations within it has a direct effect on commerce, therefore, the law is constitutional. c) Rule: “The power to regulate commerce is the power to enact ‘all appropriate legislation’ for ‘its protection and advancement,’ ‘to adopt measures’ to ‘promote its growth and insure its safety,’ ‘to foster, protect, control and restrain.’ That power is plenary and may be exerted to protect interstate commerce no matter what the source of the dangers which threaten it.” d) The court rejected the view that the 10th Amendment limits Congress’ powers.

b) Holding: Since Congress has the power to regulate commerce. Filburn a) Facts: Agricultural Adjustment Act set a quota for wheat production and each farmer was given an allotment. b) Holding: The Court upheld the application of the Act to home grown wheat for personal use because of the “cumulative effect” of that wheat on the national market. whatever its nature. and this is irrespective of whether such effect is what might at some earlier time have been defined as 'direct' or 'indirect. 3) Rational Basis Test: Heartland of Atlanta Motel a) Facts: Title II of the Civil Rights Act prohibited discrimination by places of public accommodation. and had a policy of refusing accommodations to blacks.'" d) New Policies after Wickard and Steel cases: a. Even though Filburn’s wheat had a negligible impact. and production. Farmer Filburn owned a small dairy farm in Ohio and grew wheat mostly for personal use. whether the means it selected to eliminate that evil are reasonable and appropriate. because the wheat that he grew for home consumption was not part of interstate commerce. and a motel could conceivably be a part of commerce/travel. b. The 10th Amendment was no longer seen as a limit on Congressional power. “it may still. be reached by Congress if it exerts a substantial economic effect on interstate commerce. Congress could regulate it because of the cumulatively home grown wheat had a substantial effect on interstate commerce. c.2) Substantial Economic Effect: Wickard v. His allotment was for 222 bushels. c) Rule: When evaluating the law and its application. it is under the umbrella of the commerce clause and subsequently any Act (Title II) passed by Congress. manufacturing. but he grew 461 and was fined. The court no longer distinguished between direct and indirect effects on interstate commerce: Congress could regulate any activity that taken cumulatively had an effect on interstate commerce. “the only questions are: (1) whether Congress had a rational basis for finding that racial discrimination in motels affected commerce. The Heart of Atlanta Motel was located in downtown Atlanta. c) Rule: Even if an activity is local and not regarded as commerce.” d) “Rational Basis” test: Reasonable relation between the means (statute) . The Court no longer distinguished between commerce and other stages of production such as mining. and interstate travel is a part of commerce. and 75% of its guests were from out of state. He claimed that the law could not Constitutionally be applied to him. and (2) if it had such a basis.

First case since the New Deal to strike down an act of Congress for exceeding its commerce power. Dissent (Breyer. f. et. d) Discussion a. d. Lopez (1995) a) Facts: Gun Free School Zone Act made it a federal crime to have a gun within 1. Lopez brought a gun to school. al) criticized the majority for engaging in undue judicial activism.000 feet of a school. and abandoning 60 years of precedent. The instrumentalities of commerce. Alabama. but the Texas charges were dropped so that he could be charged under the federal law. Congress has the power to regulate: a. was arrested and charge under Texas law. McClung a) Facts: Ollie’s Barbecue. Broad view: Less deference paid to congress than in past cases. 4) Direct or Indirect Burden on Interstate Commerce: Katzenbach v. b) Holding: The relationship between interstate commerce and the Act is too tangential. would not serve blacks. Thomas’ concurring opinion argued that the Court should return to the limits on the commerce authority before 1937. c. Therefore Title II would be upheld as applying to restaurants. c) Rule: The activity to be regulated must be economic activity or a commercial transaction. e.and the ends (halting race discrimination and encouraging commerce). Narrow view: Does not explicitly overrule any previous cases including Wickard. b. even if the threat comes from interstate activities c. or persons or things in interstate commerce. Congress does not have the power to impose gun control on states under the guise of the commerce clause. .????: Narrowing the Commerce Power and Revival of the Tenth Amendment as a Constraint on Congress 1) Must Be Economic Activity: United States v. 46% of its meat came from out of state. Kennedy and O’Conner stressed the importance of federalism and the relationship between limiting Congress’s authority and protecting state prerogatives. b) Holding: Congress rationally had concluded that discrimination by restaurants cumulatively had an impact on interstate commerce. a family-owned restaurant in Birmingham. Action that “substantially affects” interstate commerce. E) 1995 . The Act is not “substantially related” to interstate commerce. The channels of commerce b.

DEA disallowed patients from using it. By allowing such a test. economic activity. Rhenquist Argument: If it’s not economic activity or a commercial transaction.” b. Raich a) Facts: California voters passed the Compassionate Use Act of 1996. and that guns are inherently a part of interstate commerce. to stain the constitutionality of Commerce Clause legislation… Simply because Congress may conclude that a particular activity substantially affects interstate commerce does not necessarily make it so. Thomas argued that the “substantial effects” test should not even exist as a way of justifying congressional action under the commerce power. 2) Substantially Related: United States v. Congress found that gender motivated violence costs the American economy billions of dollars a year. looked at cumulatively.” c) Rule: Congress has the power to regulate economic activities that are substantially related to interstate commerce. . “Gender motivated violence are not. he said. it encourages Congress to view the commerce clause as virtually limitless. Virginia Tech freshman was raped by two football players. She sued under the Act.” “Gender motivated crimes of violence are not. by itself. 3) Substantial Effect: Gonzales v. b) Holding: Holding: Statutes allowing the use of medical marijuana within California effect interstate commerce of an illegal substance. Souter wrote a dissenting opinion arguing for a deference to congressional fact-finding. economic activity. and defended the law based on the third part of the Lopez test (“substantially affects”). d) Discussion: a. b) Holding: Congress cannot regulate a noneconomic activity by finding that. Morrison (2000) a) Facts: Violence Against Women Act created a federal cause of action for victims of gender-motivated violence. you cannot use the Wickard “aggregating principle. Marijuana was classified as a Schedule One drug. and having them near schools has an economic impact. it has a substantial effect on interstate commerce.Breyer argued that a federal law is a valid exercise of the commerce clause so long as there is a “rational basis” for finding that an activity affects interstate commerce. in any sense of the phrase. in order to allow “seriously ill” residents access to marijuana for medical use. in any sense of the phrase. c.” “The existence of congressional findings is not sufficient.

be it wheat or marijuana. However. The Act provided monetary incentives for states to comply with the law and allowed states to impose a surcharge on radioactive wastes receive from other states.” in that it is not produced for sale. the law provided that states would “take title” to any wastes within their borders that were not properly disposed. Congress enacted the Gun Control Act to regulate the distribution of firearms. In 1993. to ensure effective state government action. United States a) Facts: In 1963. Most importantly. or to the people. and also Congress cannot force states to implement federal legislation.” 2) Commandeering of the Federal Government: New York v. nor prohibited by it to the States. c) Rule: Congress can regulate purely intrastate activity that is not itself “commercial. United States (1992) a) Facts: 1985 Low-Level Radioactive Waste Policy federal Act created a statutory duty for states to provide for safe disposal of radioactive wastes generated within their borders.” Forcing states to accept ownership of radioactive wastes would impermissibly “commandeer” state governments. under its commerce clause power can regulate the disposal of radioactive wastes. the “take title” provision was unconstitutional because it gave state governments the choice between “either accepting ownership of waste or regulating according to the instructions of Congress. c) Rule: It is unconstitutional for Congress to compel state legislatures to adopt laws or state agencies to adopt regulations. d) Analysis: “The regulation is squarely within Congress’ commerce power because production of the commodity meant for home consumption. if it concludes that failure to regulate that class of activity would undercut the regulation of the interstate market in that commodity. Congress amended the act with the . and would “be liable for all damages directly or indirectly incurred.” b) Holding: Congress.” F) Does the Tenth Amendment Limit Congress’ Authority? 1) 10th Amendment a) “The powers not delegated to the United States by the Constitution. 3) Federal Government Cannot Force States to Enforce Federal Regulations: Printz v.therefore Congress has the authority to regulate under the commerce clause. has a substantial effect on supply and demand in the national market for that commodity. are reserved to the States respectively.

and it does not require state officials to assist in the enforcement of federal statutes regulating private individuals. In the interim 5 years. c) Rule: It is constitutional for the federal government to regulate all members involved with interstate commerce. if it was promised that the information would not be used for telephone solicitation. The chief law enforcement officers in Montana and Arizona filed suit on the grounds that the interim mandates put an undue burden on the states to enforce federal regulations.” It did not violate the 10th Amendment. in the interest of privacy.” II. even if one of those members is a State government. since their state law allowed for the release of personal information held by the DMV. one federal and one state. Congress mandated that state and local law enforcement personnel must do background checks. South Carolina filed suit. d) Rhenquist: The legislation “does not require the South Carolina Legislature to enact any laws or regulations. Condon a) Facts: The Driver’s Privacy Protection Act of 1994 regulates the disclosure of personal information contained in the records of state motor vehicle departments saying that such information cannot be released or sold without the expressed consent of the individual. because it was a prohibition of conduct rather than an affirmative mandate like in Printz and New York. both regulating the same thing.Brady Handgun Violence Prevention Act. making state officials the unwilling implementers of federal policy. South Carolina sued on the grounds that the act was unconstitutional since it “thrusts upon the States all of the day-to-day responsibility for administering its complex provisions. and the state law is inconsistent with the federal law. b) Holding: Mandating that states use their own resources to enforce federal regulations is in violation of the 10th amendment. which required the Attorney General to implement an instant background check system by 1998 to keep felons from buying guns. and . 4) Regulation of States involved with Interstate Commerce: Reno v. Federalism: Limits on State Regulatory Power A) Preemption of State and Local Laws 1) Issue a) If there are two laws.” b) Holding: The law was constitutional as an exercise of Congress’s commerce clause power because “Congress found that many States… sell this personal information to individuals and businesses and these sales generate significant revenues for the States.

under federal law. the state law is preempted. Ex. they made it clear that they wanted one set of regulations. State law impedes the achievement of a federal objective. b. someone who goes into bankruptcy would have that settlement wiped out.: Navigable waterways. Ex. The federal interest is dominant. c) Implied: Preemption is implied by a clear congressional intent to preempt state or local law. The federal and state laws serve the same purposes.: The content of hot dogs ii. and shipping. Ex. which is in conflict with the states having their own occupational safety regulations. Conflict Preemption b. 2) 3) Express a) Occurs where there is explicit preemptive language Implied a) Conflict Preemption a. and there were state and federal rules doing the same thing which the court ruled was preempted.the federal law is constitutional. iii. This was a conflict between federal and state law. When farmers harvest tobacco. Occurs when its clear that the state law is flatly inconsistent with the federal law.: Tobacco. Field Preemption c. Rules: i. b. Example: In passing the OSHA act. c) State law impedes the achievement of a federal objective B) The Dormant (Negative) Commerce Clause . there are rules to regulate different types of tobacco to separate them into categories of tobacco. Example: In Arizona. it would be reasonable to assume they didn’t want someone else involved. b) Express: Occurs where there is explicit preemptive language. The federal regulation is so pervasive that there is no room for state laws. c. However. Occurs where Congress has been so active within one area. So there is no competing state capacity to regulate. there was a statute that suspended the drivers license of anyone who has not settled a judgment against them. because the federal law is supreme. in three categories: a. b) Field Preemption a.

since there are other less restrictive means of achieving the same goal. This should not be the role of an unelected federal judiciary. b. There are several other limits on state power in the constitution. the burden of proof goes to the state to show it is either to protect a legitimate local concern. C) Determining Whether a Law is Discriminatory 1) Facially Discriminatory Laws a) Limiting Accessibility of Natural Resources: Philadelphia v. Textual: The drafters could have included a provision prohibiting states from interfering with interstate commerce. New Jersey a. b. Facts: New Jersey law kept landfills in the state exclusively for New Jersey’s use by preventing the importation of any wastes from out of state. 2) Principle: Should there be a Dormant Commerce Clause? a) Arguments in Favor: a. Role of Judiciary: The Constitution gives Congress the power to regulate commerce and Congress can invalidate state laws that unduly burden interstate commerce. Political Justification: States and their citizens should not be harmed by laws in other states where they lack political representation. Holding: The ban imposes an unnecessary burden on interstate commerce. Protectionist legislation will harm the overall economy. and that this is the least restrictive (non-discriminatory) means. Historical Argument: Framers intended to prevent state laws that interfered with interstate commerce. and a limit on the ability to burden interstate commerce is not among them. to treat them differently c. apart from their origin. Rule: State legislation resulting in simple economic protectionism is automatically invalid unless the law addresses legitimate local concerns and the effects on interstate . b. Economic Justification: The economy is better off if state and local laws impeding interstate commerce are invalidated. b) Arguments Opposed a. New Jersey may not discriminate “against articles of commerce coming from outside the State unless there is some reason.1) Discrimination a) If a law is discriminatory against out of state commerce. c.

except the transfer station is a government owned facility. Rule: Laws that benefit a local government for the purpose of generating public revenue are different from laws that benefit a local business for the purpose of generating private revenue. and instead has chosen to ‘conserve’ its minnows in the way that most overtly discriminates against interstate commerce. b. b. they had to pay a fee at the transfer station even if it had already sorted the waste. Facts: Essentially the same as Carbone. c. Anything short of this is an illegitimate means of isolating the State from the national economy. Maine’s ban on the importation of baitfish serves legitimate local purposes that could not adequately be served by available nondiscriminatory alternatives. Restriction of resources to in-staters: Hughes v. Oklahoma a. Holding: The law was facially neutral and applied to both instate and out-of-state companies. but they had to bring their nonrecyclables to the transfer station. Protection of Unique Resources Okay if Only Means: Maine v. in that they are not “discriminatory. Promoting Locally Sponsored Business: C&A Carbone v. They could not ship nonrecyclable waste themselves. Taylor a. Holding: Oklahoma has not chosen the least discriminatory alternative. The law allowed recyclers to continue to receive solid waste. Oneida-Herkimer a. then it is not unconstitutional. Government Owned Facility: United Haulers v. c.” . Rule: If there is a legitimate local purpose that cannot “adequately be served” by a less discriminatory alternative. The state has not satisfied their burden of showing that the method that they chose was the least restrictive means. Facts: A city adopted an ordinance that required all nonhazardous solid waste in the town to be deposited at a transfer station. Holding: Roberts concludes that there is no discrimination against out-of-state interests if it is a state owned facility. b. Holding: There was no less of a discriminatory way to prevent these threats. Facts: Maine Statute prohibiting the importation of live baitfish in order to protect fisheries from parasites that were prevalent in out of state fish but not in Maine.b) c) d) e) commerce are only incidental. Clarkstown a. b. but it was discriminatory against out-of-state companies since they had to use the in-state station. Facts: Oklahoma law that prevented the shipment of minnows out of the state.

and major refineries were favoring their local retail outlets. Facts: Massachusetts imposed a tax on all milk dealers. and independent retailers were being excluded from getting gas. but the funds from the tax went into a fund to pay subsidies to in-state dairy farmers. c) Facially Neutral Tax Law: West Lynn Creamery v. but since the subsidy is going towards in-state firms. c. Discussion: The court did not have to consider whether there were less discriminatory means. b. Facts: North Carolina law prevented the marketing of apples with gradings in addition to those prescribed by the federal government. since they don’t exist. Facts: Maryland law prevented out-of-state petroleum producers or refiners from operating service stations in the state. and the state could not justify their concern or show that there were no other less restrictive means. Washington State Apple a. making it difficult for Washington growers to participate in North Carolina b. . Clover Leaf Creamery a. Rule: A subsidy that has the effect of benefiting local firms at the expense of out-of-state firms is discriminatory in effect. d.2) Facially Neutral Laws a) Helping In-State Farmers: Hunt v. b) Exxon Corp. Washington had a market advantage because of stricter standards than the federal standards. b. but allowed its sale in paper disposable containers. Governor of Maryland a. Holding: The statute is discriminatory in effect. This was in the middle of the 1970s gas crisis. Facts: A Minnesota law prohibited the sale of milk in plastic disposable containers. c. Rule: The commerce clause does not protect certain companies. v. only the market itself. d) Laws that Unnecessarily Benefit Local Business: Minnesota v. Holding: The law had a minimal burden on interstate commerce. The entire gas supply comes from out-of-state. since they found that the law was not discriminatory in effect. Rule: A local statute that has the effect of discriminating against out of staters must have a legitimate purpose and the burden is on the state to show that there are no other lessrestrictive means of achieving the purpose. Healy a. c. so banning out-of-state producers from selling at the retail level does not benefit in-state producers. Holding: A subsidy is not discriminatory necessarily. the effect is to drive up the cost for out-of-state firms and lower the costs for in-state firms.

e) Dean’s Milk v. Dean Milk’s product is grade A. since Minnesota had a substantial paper industry but no plastic industry. This is discriminatory. but the primary processing must occur in-state. Rule: When the “actual basis” for a statute is to promote the economic interests of a certain segment of a local industry at the expense of the interests of out-of-state industry. Alaska a. b. and out-of-state plastic companies were prevented from having access to the market. Facts: Alaska makes a law that logs sold from State own lands can be sold out of state. b. Burdens: Kassel v. c. Rule: When deciding whether a law is constitutional. Facts: Iowa statute prohibits use of “double” 65 foot length trucks. In fact there is evidence that they are at least as safe. Holding: The effect of this statute is to exclude all out of state producers and in-state producers outside the 5 mile radius. it is unconstitutionally discriminatory. and is denied a license to sell milk because it is not within 5 miles of Madison. City of Madison a. . as discriminatory. Holding: The State failed to present any persuasive evidence that 65-foot trucks are less safe than 55 foot trucks. c. Facts: Madison prohibits milk from being sold in Madison that hasn’t been pasteurized within 5 miles of Madison. The law “substantially burdens” interstate commerce by forcing these trucks to avoid Iowa or to detach the trailers and ship them separately. it is necessary to balance the benefits of the law versus the burden on interstate commerce.b. the burden shifts to the state to show a legitimate local interest and no other nondiscriminatory means. Holding: Court strikes the statute down. D) Exceptions to the Dormant Commerce Clause 1) Market Regulator a) South-Central Timber v. Consolidated Freightways of Delaware a. b. Dean Milk is from out of state. 3) Balancing Test a) Benefits v. and there are other less restrictive means of achieving safe milk. c. only allowing “semi” 55 feet in length. Rule: When a law is discriminatory. Holding: The law had a substantial discriminatory effect in favor of in-state business.

c. Stake a. b) White v. Facts: Maryland law was designed to rid the state of abandoned automobiles by having the state pay for the destruction of abandoned automobiles. it is not subject to the restraints of the commerce clause. b. There is a “basic distinction” between States acting as a market participant rather than a market regulator. Facts: South Dakota went into business to provide cement during a shortage. it may restrict the beneficiaries of that service to members of its own state if it so chooses. State required minimal documentation of ownership from in-state scrap processors. Alexandria Scrap a.” c. even though it might be discriminatory to do so. acting as a market participant. Rule: When a state or local government enters the market as a participant.The State in this case is both a market participant and a market regulator. Massachusetts Council of Construction Employers a. Holding: The court held that the state was a market participant as it was purchasing the cars. company decided to no longer provide to out of staters. but after the shortage ended. Holding: The city could favor its residents over out-of-staters in employment for government-funded construction projects because “it was a market participant. b. they began selling the excess to out of state companies. . Rule: When a State goes into business and provides a service. and the S. they have the right to favor instate citizens over out-of-state citizens. rather than a market regulator. and therefore its discriminatory actions against out-of-staters did not violate the dormant Commerce Clause. c) Hughes v. 2) Market Participant a) Reeves v. b. Another shortage came. Facts: City ordinance that required that all construction projects financed by the city must use a workforce comprised of at least 50% residents of the city. Holding: Since it was a State. Rule: When a State becomes a “market regulator” rather than a “market participant” it is unconstitutional to discriminate against out of state interests. but required more elaborated proof from out-of-state scrap processors.D. c.

The Federal Judicial Power A) The Authority for Judicial Review 1) Impeachment a) An accusation made by house of representatives (Articles of Impeachment). d) Checks and Balances . by majority vote. If. White was a market participant case. Ex. Marshall says. Camden argues that there is “substantial reason.E) The Privileges and Immunities Clause of Art. and obvious. Marshall uses the oath to claim a lot of power. self enforcing. Rather routine. Mayor of Camden a) Facts: Camden makes a law that people who work on construction projects must be at least 40% residents. IV. that because there are instances where there are clear answers.” b) SCOTUS has interpreted this as a limit on a state’s ability to discriminate against out-of-staters with regard to fundamental rights or important economic activities. it is the role of the court to interpret the constitution. The exclusion triggers the protection for out of staters of the privilege and immunities clause. the House does this. (2) Is there a “substantial reason” for the difference. b) Rule: Two Step Process: (1) Whether the statute in question burdens a privilege or immunity that is sufficiently fundamental. etc. 2) Substantial Reason Test: United Building and Construction v. c) Role of the Courts: “Province” of the courts to say what the law is. State doesn’t get a pass by saying it’s spending its own money. then b) the Senate conducts a “trial” to determine whether or not the person has violated the norms or not. and this was a privileges and immunities case.” on account of the economic ills that Camden faces. and is the out of state person the cause? III. b) Written Constitution: The fact that the constitution is written (as opposed to England) is significant in Marshall’s mind. 2) Structure a) Oath: Marshall says all public officials took an “oath” to defend the constitution. Not subject to great ambiguity. §2 1) Rule a) “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.: requirement of two witnesses on treason cases.

b. and a law cannot amend the constitution. c) Rule: A statute cannot amend the constitution. b) Holding: Marbury is entitled to his commission. Madison a) Facts: Marbury was commissioned to justice of the peace by Adams the day before he left office. it is the job of the Supreme Court to hold it unlawful. When there is a conflict between a statute and the constitution. The Genius: Marshall does nothing (did not create a situation where Executive or Congress had to “thumb its nose” at the Judiciary). because the Judiciary Act of 1789 is unconstitutional. “Counter Majoritarian Difficulty”: Judges are not elected.a. Cryptic way of saying that the financial and security responsibilities of the government is not in the hands of the court. amendment process is extremely difficult. Marbury sued. praying for a Writ of Mandamus to compel Jefferson to recognize his commission. This case establishes the superiority of the Constitution over all other legislation. but the Judiciary lacks the power to issue a Writ of Mandamus. Fundamentally however. Marbury is about the idea that the court can hold that an act of the legislature is invalid or unconstitutional. f) Protect political process: Prevents incumbents from distorting the political process to favor themselves at the expense of challengers. other public officials. This case does not fall into one of these categories. c. but not delivered. Section 13 of the Judiciary act tried to give authority to the courts to issue writs of mandamus with the court as original jurisdiction.” d. “If a statute conflicts with the Constitution. Jefferson denied the commission since it wasn’t delivered on time. b. yet asserted authority over both Executive and . 3) Judicial Review of Legislature and Executive: Marbury v. it is the authority of the judiciary to decide the problem. d) Discussion a. “Least Dangerous Branch”: No power over the purse or the sword. Marshall assumes it is the obligation of the court to do what it did. The commission was signed. There are three cases where the supreme court has “original jurisdiction”: Ambassadors. sealed. e) Protect individual rights: The role of Judicial Review is that it protects individual rights which is in contrast to the counter majoritarian difficulty. The flaw of the statute was to expand on the three categories of “original jurisdiction” set forth in the constitution. have life tenure. and those in which the State shall be a party.

Nixon a) Facts: Arises from the Watergate scandal. but not an absolute one. then the interest in executive privilege does not outweigh the interests of justice.. in part..’” Marbury v. 2) autonomy. Every state legislature and executive and judicial officer is solemnly committed by oath… ‘to support this Constitution. if there is no claim of national security secrets. etc. The Governor of Arkansas called out the National Guard to physically block 10 children from entering the school. diplomatic secrets. in this case). who stayed in Military occupation of Little Rock for the school year. A special prosecutor seeks private oval office recordings via a subpoena. The President called out the 101st Airborne. In the case of criminal cases. Army. it would conflict with the ability of the court to do their job under Article III. However. If there were an absolute E. There was a cover-up by members of the president’s high ranking advisors. Aaron (1958) a) Facts: A federal district court ordered the desegregation of the Little Rock. 3) Executive privilege (absolute. Nixon makes several claims: 1) Not amenable. 4) Judicial Review of State Laws and Actions: Cooper v. when the Republican party broke into the Democratic headquarters. b) Holding: “Article VI of the Constitution makes the Constitution ‘the supreme Law of the Land. Madison stood for the proposition that the federal judiciary is supreme in “the exposition of the law of the Constitution” and this is a “permanent and indispensable feature of our constitutional system…. based on a professed concern that compliance would lead to violence. Arkansas public schools. By then. and in part.. and does not have autonomy. The state disobeyed this order.’” 5) Dread Scott (1857) a) Invalidated the Missouri Compromise and helped precipitate the Civil War. based on a claim that it was not bound to comply with judicial desegregation decrees.P. However there is an executive privilege. c) Rule: We must weigh the importance of the general privilege of confidentiality of Presidential communications in performance of the President’s responsibilities against the inroads of such a privilege on . b) Holding: President is amenable. Lincoln rejected the notion of an unbridled Supreme Court. military secrets. 6) Executive: United States v.Congress for Judicial Review by declaring unconstitutional a law that would expand the Court’s powers. the power of the Court to consider the constitutionality of federal laws was an accepted part of American Government.

Facts: Congress adopted a statute providing that individuals whose property was seized during the Civil War could recover the property. Congress then adopted a bill that repealed the statute that authorized Supreme Court appellate review of writs of habeas corpus. upon proof that they had not offered aid or comfort to the enemy during the war. So. there was still another avenue to get to the Supreme Court. d. Discussion: The Supreme Court still had authority to hear McCardle’s claims under the 1789 Judiciary Act. B) Congressional Limits 1) Checks on Judiciary a) Impeachment b) Political Mood of the Country c) Controlling Jurisdiction a. Subject Matter Jurisdiction: Article III sets the outer limits of jurisdiction. unlike in Nixon. Ex parte McCardle i. Amount in Controversy c. who was arrested by federal officials for writing a series of newspaper articles that were highly critical of the Reconstruction and especially of the military rule of the South following the Civil War. United States v. Holding: The court no longer has jurisdiction. McCardle filed a petition for a writ of habeas corpus for violation of several constitutional rights. Mississippi. this is a civil suit. because Congress confers jurisdiction “with such exceptions and under such regulations as Congress shall make.the fair administration of criminal justice. Klein i. Facts: McCardle was a newspaper editor in Vicksburg.” iii. which allowed federal courts to grant writs of habeas corpus to federal prisoners. The supreme court . or compensation for it. and in Nixon the request for information was very specific. 7) Cheney a) Court rules it is different because. ii. b.” “We are not at liberty to inquire into the motives of the legislature. but Congress must vest authority in the courts to do what Article III permits. not a general subpoena of all information.

The statute in question was an infringement of Executive power under Article II. . iii. this case is distinguish from Klein because it is not about existing law or a constitutional issue. So. Argument: Klein establishes that Congress may not restrict Supreme Court jurisdiction in an attempt to dictate substantive outcomes. it would be unconstitutional for Congress to restrict Supreme Court jurisdiction in an attempt to undermine the Court’s protections in abortion and school prayer cases. because Congress had changed the law itself and did not direct findings or results under the old law. Opposing Argument: Klein merely establishes that Congress may not restrict Supreme Court jurisdiction in a manner that violates other constitutional provisions. By analogy. but rather a new law. the statute arguably deprived property without due process. Facts: Department of Interior and Related Agencies Appropriations Act of 1990 required the Bureau of Land Management to offer specified land for sale and also imposed restrictions on harvesting from other land. iv. and doing so is interference with Executive and Judicial power. saying “congress hereby determines and directs that management of areas according to [this statute] is adequate consideration for the purpose of meeting the statutory requirements that are a basis for [the two lawsuits]. Robertson v. Discussions: The Court read Klein as applying in a situation where Congress directs the judiciary as to decision making under an existing law and not applying when Congress adopts a new law. Also. they cannot direct the results to a particular case.” ii. it expressly noted two pending cases. Holding: This statute was not unconstitutional. e. and President Johnson was simultaneously pardoning ex-confederate officers.subsequently held that a presidential pardon fulfilled the statutory requirement. While Congress has the power to create exceptions and regulations to the Court’s appellate jurisdiction. iii. Congress then passed a law that a pardon was inadmissible as evidence in a claim for return of seized property and that a pardon was in fact evidence of guilt. Also. Holding: The statute was unconstitutional. Seattle Audubon Society i. ii.

because it violated the separation of powers for them to give advisory opinions to other branches of government. SOS Jefferson asked the Supreme Court for its answers to a long list of questions concerning American neutrality in the war between France and England (selling weapons to both sides. Injury: Π must demonstrate that they have suffered an actual injury b.) b. the court should decide the statutory claim. The judicial role is limited to deciding actual disputes. Separation of powers is maintained by keeping the courts out of the legislative process. b) Origination a. . The justices wrote back declining to answer. 2) Brandeis’ Opinion a) Decide the case very narrowly. If there is a dispute between a constitutional claim and a statutory claim. causation and redressability. c. e) Political Questions: Not all disputes are permissible for federal courts because they raise the advisory opinion issue. what can they sue about. b.C) Justicability Limits 1) Who can sue. Causation: Π must demonstrate that ∆ caused their injury. During Washington’s administration. b) Standing to Sue: Injury. 3) Prohibition on Advisory Opinions a) Justification: a. Judicial resources are conserved because advisory opinions might be requested in many instances in which the law ultimately would not pass the legislature. etc. Prohibition helps ensure that cases will be presented to the court in terms of specific disputes not as hypothetical legal questions. c) Ripeness: Cases must be mature enough to justify judicial action. d) Mootness: Cases must not be moot to justify judicial action. 4) Standing a) There are principles that the court has derived from Article III determining who can sue and over what: a. and when can they sue? a) No Advisory Opinions: The federal court cannot make advisory opinions. it does not include giving advice to Congress or the president.

d) Injury a. Π must assert some concrete claim of grievance. Parents of black children brought a class action suit against the IRS because they were not sufficiently enforcing their statutory policies. d. Facts: After the school desegregation cases. b) There are also rules that the court has issued as a matter of discretion. because the court says the first allegation is either “a mere claim that there is a right to have the government follow the law. Serves the values of fairness by ensuring that people will raise only their rights and concerns and that people cannot be intermeddlers trying to protect others who do not want the protection offered.c. private schools for white kids were created. that Π must meet after meeting the Article III principles a. or an . By restricting who may sue in federal court. They claimed two injuries: (1) that the policies of the IRS mean that the discriminatory schools are getting federal aid. Wright i. c. not those of a 3rd party. b. c) Policies a. Serves judicial efficiency by preventing a flood of lawsuits by those who have only an ideological stake in the outcome. In this case. Holding: The plaintiffs have no standing. Tax support for schools that discriminate was eventually struck down. Improves judicial decision making by ensuring that there is a specific controversy before the court and that there is an advocate with a sufficient personal concern to effectively litigate the matter. Allen v. the IRS said that these private schools needed to adopt and certify that their admissions and other policies were not racially discriminatory in order to receive tax breaks. c. Π must be arguing for their own rights. not a generalized grievance. (1) They fail the injury test on the first claim. Promotes separation of powers by restricting the availability of judicial review. Π must be in the zone of interest that congress meant to protect in enacting the statute at issue. ii. and (2) the consequence impedes the desegregation process in their districts. b. Redressability: The injury must be redressable by the court’s ruling. standing limits what matters the judiciary will address and minimizes judicial review of the actions of the other branches of government.

because that is a generalized grievance. and potentially hundreds of schools. Article I. there is no standing. but no causation and the injury would not clearly be redressable. it is unclear even if the school changed its admissions policies. Holding: The matter poses a generalized grievance. United States v. ii.” If you are merely unhappy with the law. D. and there is nothing about any individual’s interests that distinguishes them from any other person. streams. Moreover. Reservists Committee to Stop the War i. the court says that there is a valid claim of injury. and mountains in the Washington. by the government who is not following their laws. not a violation of a specific constitutional right. Π alleged injury only as a citizen or taxpayer with an interest in having the government follow the law. §6 of the Constitution prevents a senator or representative from holding civil office. iv. (2) On the second claim. or that the government is not following the law. The court says that they should not be policing how the executive branch does its business. it takes a certain critical mass of parents changing their attitudes to effect the situation. iii. Rule: A Π cannot claim injury as a taxpayer or citizen. area . SCRAP i. but it is unclear that the school would change its admissions policies.abstract stigmatic injury. Facts: A group of law students at George Washington University Law Center contended that a hike in railroad freight rates by an Act of the Interstate Commerce Commission would discourage the use of recycled goods because of the extra cost of shipping them. This case immunizes the IRS from judicial scrutiny. and that their enjoyment of the forests. iii. Facts: Πs sued to enjoin members of Congress from serving in the military reserves. Finally. They claimed that a decrease in recycling would lead to more use of natural resources and thus more mining and pollution. and is thus bared from judicial ruling. Discussion: The parents could have sued for someone who was denied entrance into a school in order to get standing. The tax exempt status could be withdrawn. whether the parents would send their children to the public schools.C. b. Schlesinger v. but they wanted to universally affect the system. c.

Although Lyons could bring a suit seeking damages for his injuries. There was an amendment that said that the Act does not apply to government activities outside the US or on the high seas. iv. Personally Suffered Injury: City of Los Angeles v. there is no injury. Holding: The Sierra Club did not allege that any individual in their organization used the region in any way that would be effected by the by the proposed actions. Facts: The Sierra Club sought to prevent Disney’s construction of a ski resort in the California Sierra Mountains. Facts: The Endangered Species Act requires government agencies to consult with other agencies having to do with endangered species in order to prevent agencies from acting in such a way as to harm endangered species. Sierra Club v. whereas. no matter how long standing the interest and no matter how qualified the organization is in evaluating the problem is not sufficient to justify standing. Discussion: The difference between Sierra Club and SCRAP is that in Sierra Club. f. Defenders of Wildlife i. ii. because aesthetic and environmental injuries are sufficient for standing so long as the Π claims to suffer the harm personally. iii. Rule: A mere interest in a problem. Holding: There is standing. he did not have standing to enjoin the police because he could not demonstrate a substantial likelihood that he would be choked again in the future. Therefore. and Lyons filed suit to enjoin as unconstitutional the use of chokeholds by the LAPD in instances where they were not threatened with death or serious bodily injury. Rule: Absent a sufficient likelihood of future injury. Lujan v. there was a “warm body” asserting a specific injury. d. iii. Holding: Lyons did not have standing to seek injunctive relief. even though it was an injury to many other people too. Facts: The LAPD did a chokehold on Lyons. their complaint was not specific as to injury suffered from the development of the specific land. a Π cannot sue to discontinue a policy.would be lessened as a result. Morton i. e. Lyons i. s claim that the . ii. ii. The Sierra Club sued the secretary granting the permit. in SCRAP.

g. Scalia also says that there is no obligation for any agency to accept the secretary of the interior’s interpretation of the Endangered Species Act. Facts: Massachusetts says that based on a group of scientists alleging that Global Warming is the result of the release of carbon dioxide and other greenhouse gases by cars they are injured.lack of consultation between the agency for international development and environmental agencies increases the rate of decline of species in other countries and the chances of endangered species going extinct. vi. etc. ii. v. ii. etc. Scalia also argued that says there is no redressability. and their desire to return in the future “some day” is insufficient for standing “without any description of concrete plans or indeed any specification of when the some day will be. Increase in sea levels will impact coastal areas in Massachusetts and lead to disease. Some argue that this decision was calculated to immunize the executive from judicial scrutiny. The alleged injury was that s would not be able to see these species. and there was no evidence that their lack of funding would halt the actions of the foreign governments. Massachusetts v. Holding: Πs lacked standing because they could not show a sufficient likelihood that they would be injured in the future by a destruction of the endangered species abroad. causation and redressability are the irreducible .” iii. They said that the fact that some of the Πs had visited the areas in the past proves nothing. concrete injury. because the Agency for International Development was only contributing 10% of the money to the projects. Inconsistency: In Lujan. There were named parties that had been to Egypt and Sri Lanka. the court found that injury. Blackmun dissented saying that the requirement that a Π have specific plans to return to a foreign country created only a silly formality that a Π must purchase a plane ticket in order to sue. The EPA says that Massachusetts has no standing because there is no imminent. They sued the EPA on the basis that they were not fulfilling their own duty to regulate the emissions standards of new cars. Environmental Protection Agency i. iv.

Facts: Constitutional provision says “no money should be drawn. by law you have to disclose your information. Facts: Under the Elementary and Secondary Education Act of 1965. This case is inconsistent by suggesting some leniency in the standing requirements when congress has granted this procedural right.minimum. which violates the provision in the Constitution. Holding: Although this is a widely shared grievance. They lack standing because they are “seeking to employ a federal court as a forum in which to air his generalized grievances about the conduct of government. This is inconsistent with Lujan too. V. Akins i. This is another case (Mass. the court softens the standards. EPA. Richardson i. If you are a political committee. h. ii. but instead claimed injury only as a citizen and a taxpayer. Holding: Πs have standing. i. ii. it is concrete because it is specific information because it allows particularly interested voters to assess the whether the contributions made by this special interest group influenced decisions that their representatives made.” and the court said that citizen suit cases are no longer adequate for standing. Cohen i. Facts: A group of voters brought a suit after the FEC determined that the American Israel Public Affairs Committee it was not a “political committee”.” j. EPA) allowing Congress to create a procedural right to sue. ii. because the statute said “any citizen may sue. and they were denied information about the funding and donations. the federal government provided funds for instruction in secular subjects in parochial schools. United States v. What’s the difference? The court says that Congress has given litigants a procedural right (the ability to sue the EPA).” Citizens sued for not publishing the spending of the CIA. The Πs sued to get this information on the grounds that they are tax payers. FEC v. In Mass. Holding: Πs did not allege a violation of a personal constitutional right. Flast v. because the rule . Πs challenged the act as violating the First Amendment’s prohibition against government established religion. but a regular statement of account published form time to time. V.

therefore. United States v. 2. Holding: The Court characterized his injury as an inability to compete for all 100 slots and. c. Regents of the University of California v. Congress giving money to a religious institution is a violation of the establishment clause. otherwise it is a generalized grievance. ii. ii. a judicial decision declaring the set-aside 16 spots unconstitutional would remedy the injury.preventing generalized grievances is prudential rather than constitutional in origin. Bakke i.” A taxpayer can challenge only the expenditure of funds under the taxing and spending clause. “The taxpayer must establish a logical link between that status and the type of legislative enactment attacked.” iv. Facts: There was district gerrymandering based on race. was denied admission to the University of California at Davis Medical School and filed suit challenging the school’s practice of setting aside 16 spots for minority students out of an entering class of 100. Holding: Only people who reside within the district have suffered injury for the purposes of standing. “The taxpayer must establish a nexus between that status and the precise nature of the constitutional infringement alleged. since he might not be admitted anyway. b. iii. not an incidental expenditure of tax funds in the administration of a regulatory statute. e) Causation and Redressability a. a white male. Facts: Alan Bakke.” They must argue that Congress is violating a particular constitutional provision with the expenditure and not just that Congress is exceeding the scope of its powers. The school argued that he lacked standing because of redressability if his injury was being denied admissions. Rule: The ability of a Π to sue as a taxpayer depends on “whether there is a logical nexus between the status asserted and the claim sought to be adjudicated. Hays i. Two part test: 1. Richard . Linda v. Also.

Π argued that this was unconstitutional discrimination on the basis of the child’s legitimacy. Eastern Kentucky Welfare Rights Organization i. iii. In other cases. Facts: Exclusionary zoning laws require certain standards for building. In some instances the court has said that the must demonstrate that there is a “substantial probability” that ∆ caused the injury. Simon v. since it is probably because of low economic assets.i. Holding: The court says there is no causation and redressability. The state of Texas had a policy of prosecuting fathers of legitimate children for not paying the required child support. the court has said that the causation only be “fairly traceable. but did not prosecute fathers of illegitimate children. ii. the court sometimes says that there must be an “inability removed. Seldin i. Whereas previously tax-exempt charitable hospitals had to provide free care for indigents. Facts: Πs challenged an IRS revision of a Revenue Ruling limiting the amount of free medical care that hospitals receiving tax-exempt status were required to provide. Holding: Dismissed for lack of standing. d. because there is no proof that the reason the father hasn’t paid is because of unenforcement. Discussion: The standards that the court has articulated are inconsistent.” and other times it says there must be a “substantial likelihood” of redressability. Also. iii. under . ii. Facts: An unwed mother sought to have the father of her child prosecuted for failure to pay child support. ’s claim that it is a way of excluding minorities and low income people from coming into the area. it is not clear that changing the zoning restrictions would allow them to move there. Rule: In order to have standing a Π must allege that “the asserted injury was the consequence of the ∆’s actions. there is no causation. Also.” In the case of redressability. so no redressability. Warth v. because it is not clear that the zoning rules caused the exclusion. because even an injunction commanding state prosecutions would not ensure that the mother would receive any additional child support money. or that the prospective relief will remove the harm” e.

and no substantial likelihood that victory would result in Πs receiving medical care in the future (no redressability). Holding: Standing exists because the construction of a nuclear reactor in Π’s area subjected them to many injuries including exposure to radiation. which limited the liability of utility companies in the event of a nuclear reactor accident. the reactor would not be built and Πs would not suffer these harms. Πs were individuals who claimed that they were denied needed medical care. by hospitals receiving tax-exempt status. thermal pollution. Facts: A state statute prohibited the use of state Medicaid benefits to pay for non-therapeutic abortions. Facts: Barrows. Jackson 1. Barrows v. Causation and Redressability were met because but for the Act. Singleton v. Carolina Environmental Study Group i. 2. Πs argued that the Act violated due process because it allowed injuries to occur without compensation. However. Wulff 1. the act was deemed constitutional.the new provisions only emergency medical treatment of indigents was required. and fear of a major nuclear accident. was sued for breach of contract for allowing nonwhites to occupy his property. f. Facts: 40 individuals and 2 organizations challenged the constitutionality of the Price-Anderson Act.” ii. ∆ based his defense on the . 3. ii. and hence injured. a white person who had signed a racially restrictive covenant. Holding: The court said there was no standing to challenge the law because it was “pure speculation” whether the law was responsible for denial of medical services (no causation). Duke Power v. g. Rule: It is generally appropriate to allow a physician to assert the rights of women patients as against governmental interference with abortion decisions because the “constitutionally protected abortion decision is one in which the physician is intimately involved. Holding: The doctors were injured by the statute because it denied them payments for particular medical services. Third Party Standing: i. ii.

2. v. Utah 1. rights of blacks. Holding: Members who wish to remain anonymous might never come forward. permitting the with defendant to raise the interests of blacks to rent and own property in the community. The father of a girl wanted to sue on his daughter’s behalf to remove “under god.iii. 2. Because blacks were not parties to the covenant. One of the ways they did was by requiring the NAACP to disclose the names of all members. and she was in conflict with his interest. 2. . who were not parties to the lawsuit for breach of contract.” The mother wanted to prevent this by asserting that she has the right over her daughter. who is a christian and has no objection. It would be difficult if not impossible for the persons whose rights are asserted to prevent their grievance before any court. Facts: Alabama was trying to drive the NAACP out of the state. The mother should be denied standing because there was no reason why her son could not protect and assert his own rights. Newdow 1. The Supreme Court has held in the past that it is a violation of the establishment clause for schools to lead students in prayer. Facts: During the Cold War. Holding: There is third-party standing. because the ∆ had waived his rights by not pursuing them. because the interest of the 3rd party are inconsistent. Congress added “under god” to the pledge. Alabama 1. and thus it would be desirable to allow the NAACP to assert its members’ challenges to the constitutionality of the disclosure law. iv. Holding: The court refused to hear the mother’s claim. Elk Grove v. 2. Facts: Gilmore was sentenced to death in the state of Utah. Holding: No standing for the father. they had no legal basis for participating the breach of contract suit. Gilmore v. but chose not to pursue collateral challenges in federal court. His mother sought a stay of execution on his behalf. NAACP v.

c. Rule: (1) The case must be suitable for judicial resolution. 2. . 2.” The case was therefore not ripe. because the duration of pregnancy was inherently likely to be shorter than the time required for federal court litigation.” ii. Ullman a. and their doctor. By the time the case reached the Supreme Court. two who were injured by pregnancy (one of whom was married). Moore v. Wade 1. and (2) if there is no judicial review. “Contraceptives are commonly and notoriously sold in drug stores. b. Holding: Although the election was held before the case was heard by the Supreme Court. There were three Πs. Facts: Married women for whom pregnancy was medically unadvisable and their doctors filed a lawsuit challenging a Connecticut law preventing the distribution or use of contraceptives. Holding: The case was nonjusticiable because there had only been one prosecution under the law in more than 80 years. Ogilvie 1.5) Ripeness a) Poe v. the case was not moot because it presented a “wrong capable of repetition. The fact that Connecticut has not chosen to press the enforcement of this statute deprives these controversies of the immediacy which is an indispensable condition of constitutional adjudication. 6) Mootness a) The court will not accept moot cases with three exceptions: a. yet evading review. Facts: A suit was brought challenging a state law requiring the obtaining of a certain number of signatures in order for an independent candidate to get on the ballot to run for president or vice president. Holding: The request is not dismissed on the grounds of mootness. Wrongs capable of repetition yet evading review i. Facts: Π was pregnant when she filed her complaint challenging the constitutionality of a state law prohibiting abortion. the citizen will fact undue hardship. Roe v. her pregnancy was completed and she no longer sought an abortion.

Πs sought declaratory and injunctive relief. ∆ sought to have the case dismissed as moot on the grounds that it had changed its conduct. contending that he was discriminated against because of the preferential treatment of minorities. Holding: Voluntary changes in behavior by a ∆ are not sufficient to make a case moot because the ∆ would be free to resume once the case was dismissed. the Π was in his final year of law school and would be allowed to finish regardless of the outcome. The ∆ would argue that there are collateral consequences. 2. but still wants to challenge the underlying conviction. such as preventing ∆ form certain rights. Rule: Limits are: (1) Same party. Odegaard 1.” 3. Laidlaw 1. Defendant does time for burglary. iii. Facts: Environmental groups brought a lawsuit pursuant to a citizen suit provision of the Clean Water Act against the holder of an pollution permit. applied for admission to the University of Washington Law School and was denied acceptance.DeFunis v. Collateral Consequences i. 2. Facts: Π. The trial court issued a preliminary injunction admitting the Π to law school while the case was pending. b) Getting around mootness: Bringing a case as a class action. Holding: The case was moot because “the controversy between the parties has clearly ceased to be definite and concrete and no longer touches the legal relations of parties having adverse legal interests. Friends of the Earth v. 7) Political Questions . (2) some reasonable expectation that it will occur again (short time period). c. or doing it through 3rd party standing with physicians will get around the mootness doctrine. By the time the case reached SCOTUS. alleging that it was violating mercury discharge limits. a white male. He sued the school. Voluntary Cessation i. b.

Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department ii. the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion iv. War-making powers. There is no easily discoverable standard for what form such advice should take. The House adopted articles of impeachment. v. Diplomatic issues of foreign affairs. c. Qualifications of Senate members. a lack of judicially discoverable and manageable standards for resolving it iii. Rule: i. Examples: Issues of impeachment. Carr a. The Senate created a committee to hold a hearing and make a recommendation to the full Senate. 1-3= Constitutional 4-6= Prudential (Created by Court) d) Nixon v. It violates equal protection rights to have such a dramatically inconsistent apportionment. there was a malapportionment issue. United States a. Issues involving the National Guard. an unusual need for unquestioning adherence to a political decision already made vi. Decision of how to advise the President is textually limited to the Senate. Holding: Challenges to malapportionment are justiciable under the equal protection clause. b) Policies a. the impossibility of a courts undertaking independent resolution without expressing lack of the respect due coordinate branches of government. Facts: Federal district court judge Walter Nixon was convicted of making false statements to a grand jury. Any form would best be established by the legislature. Any attempt to force such a definition on the senate would show disrespect on the senate. He refused to resign from the bench and continued to collect his judicial salary while in prison. when there were rural areas with a disproportionate amount of political control relative to the number of people in those areas. and . Facts: In Tennessee. b. the potential embarrassment from multifarious pronouncements by various departments on one question.a) Rules a. c) Baker v.

and in a per curium decision. to indicate whether its decision rested on state law or federal law. §3. without descent. in order to avoid congressional involvement). c. f) NAACP v.recommended removal from office. That case goes to SCOTUS. The court held that the lack of uniform standards for the recount violates the equal protection. the court vacated the decision back to the Florida Supreme court. They then conclude that since there was no time to finish the recount on time (safe harbor exclusion: each state must send a list to congress as to the electoral-college votes.” Nixon argued that this meant that the whole senate had to sit and hear the evidence and that the use of a committee was unconstitutional. Alabama a. The decision on the recount will turn to the “intent” of the voter. Holding: SCOTUS holds that the manual recount violates equal protection. Rule: The judiciary will not review the Senate’s use of a committee to hold a hearing and make a recommendation on impeachment. Gore a. b. Holding: The language of the article demonstrate a textual commitment of impeachment to the Senate. Judicial review of the Senate’s trial would introduce bias. Holding: Members who wish to remain anonymous might never come forward. The framers intended that there would be two proceedings: a judical trial and a legislative impeachment. which provides that the “Senate shall have the sole Power to try all Impeachments. The Florida court said that its state law provisions require a manual recount for which there is no electronic vote. There was no time to fix it and meet the December 12th Safe Harbor deadline. the Florida supreme court had extended the deadline for accepting hand-counted ballots. because the standards are so inconsistent that it produces arbitrary results. e) Bush v. The “intent of the voter” rule does not give limiting principles telling election officials how to determine the vote. there was no sense in sending it back to the Florida Supreme Court. Facts: In the first decision. which the Senate agreed to. Bush gets 3rd party standing for the electorate. Nixon argued that the Senate’s procedure violated Article I. b. Facts: Alabama was trying to drive the NAACP out of the state. and thus it would be desirable to allow the . They said their decision rested on state law. One of the ways they did was by requiring the NAACP to disclose the names of all members. b.

Facts: Barron sued the city for taking his property without just compensation in violation of the 5th Amendment. Mayor and City Council of Baltimore (1833) a. The second sentence has three individual rights provisions. Holding: The Bill of Rights was clearly intended to apply only to the federal government. The argued that the restrictions created involuntary servitude and deprived them of their property without due process. He contended that the city ruined his wharf by diverting strams and thereby made the water too shallow for boats. arguing that the state law impermissibly violated their right to practice their trade. If the framers had intended the Bill of Rights to apply to the states.NAACP to assert its members’ challenges to the constitutionality of the disclosure law. IV. 4) Slaughterhouse Cases a) Facts: Louisiana legislature gave a monopoly in the livestock landing and the slaughterhouse business for the city of New Orleans to the Crescent City Livestock Landing and Slaughterhouse Company because of a huge surplus of cattle in Texas. Individual Rights A) The Application of the Bill of Rights to the States 1) Issue a) What is the role of SCOTUS in enforcing the bill of rights to individuals? b) 14th Amendment: “No State shall make or enforce any law which shall abridge the privileges or immunities of the citizens of the United States. denied them of equal protection and abridged their privileges and immunities.” 2) The Takings Clause (5th Amendment) a) Barron v. The law required that the company allow any person to slaughter animals in the slaughterhouse for a fixed fee. Several butchers brought suit challenging the monopoly. “they would have declared this purpose in plain and intelligible language. b. .” 3) Reconstruction Amendments a) 14th Amendment: The first sentence in section one overrules the Dread Scott decision that says Congress has no Constitutional power to limit slavery in the territories.

Equal protection does not apply outside the context of race. Instead the . The Court also later found that the due process clause did protect the right to practice a person’s trade or profession. Holding: The court said that this was a limit on the right to travel. California is creating to classifications of people. and it still is not seen as applying to the Bill of Rights. but it takes all California residents and distinguishes them from a group of needy people who are short term residents. as well as privacy and autonomy rights such as the right to marry. Roe (1999) a. c) Discussion: The privileges and immunities clause was essentially nullified by the Slaughterhouse Cases. The state argued that it was justified in restricting welfare benefits for new residents to avoid California becoming a magnet for those moving to the state solely to collect its higher welfare benefits. and abortion. and legitimacy. the narrow interpretation of the privileges and immunities clause has never been expressly overruled. Discussion: It may not have deterred the right to travel. treats them as less-worthy of other people. Thomas: Privileges and Immunities clause had a very short life. Privileges and immunities applies to US citizenship. not State citizenship and doesn’t apply to the butchers since they are from the same state. but one group penalized because it had exercised their right to travel.b) Holding: Due process does not include a right to be a butcher. The privileges and immunities clause was not meant to protect individuals from state government action and was not meant to be a basis for federal courts to invalidate state laws. using contraceptives. 5) Right to Travel a) Revival of Privileges and Immunities Clause: Saenz v. c. (2) you can be treated like a welcome visitor. and although there is no explicit right to travel. (3) you can be treated like other citizens of the state if you become a permanent resident of the state. d. It is not a basis for applying the Bill of Rights to the states or for protecting any rights from state interference. it is implicit that a person should be able to move between the states. alienage. custody of children. The ruling on equal protection only applying in the context of race was later overruled and was used since the 1960s to prevent discrimination based on gender. both equally needy. It has never been distinguished or overruled. Facts: A California law limited welfare benefits for new residents in the state to the level of the state that they moved from for their year of residence. However. b. (1) You can come and go. and based only on their right to travel. d) Discussion.

Holding: It is for the judiciary to evaluate the reasonableness of state regulations. and must submit to be controlled by the public for the common good. Facts: A state law set maximum rates for grain-storage warehouses. 2) Due Process Clause a) Procedural a. relating to matters in which the . he. A claim by a citizen that regardless of what rules the state follows. but from nature. in effect. claim was that the government cannot prevent butchers from practicing their profession.’ because when one devotes his property to a use in which the public has an interest. Ex.” However. Nobles did not get anything out of it. parliament won (beheaded the King). it cannot do what it is doing. When parliament came in. we give up some of those rights in a “social contract. “ iii. grants to the public an interest in that use. Right to practice religion. Civil b) Substantive a. Issue: Whether “private property is ‘affected with a public interest. Illinois i. that means that the government is beholden to the people. ii. B) Economic Liberties 1) Historically a) Magna Carta: Provided that the King must follow the law of the land. because of the “divine right” of the Kings. All it did was transfer the right to make laws to parliament. b) John Locke: Philosophy was that each of us receives our rights not from the crown. Munn v. When we come together as a society. Criminal b. “Undoubtedly. When the King makes the law. c) Incorporation Theory: Justice Black: The 14th Amendment incorporated the bill of rights into the states. Right to free expression. in mere private contracts. e) Substantive Due Process a. d) Fundamental Rights: Opposition to Justice Black’s interpretation said that the Bill of Rights represented fundamental rights. Slaughter-house cases. which stored grain for farmers.court has used the due process and equal protection rules to do the job that should have been done by the privileges and immunities clause. it’s not a great concession.

reasonable. The court says that the law fails on the labor law issue. Part of that liberty is the right to do business with an out of state corporation. ii. there is no evidence that the restriction will contribute to increased health among consumers.” At the time. Algeyer v. It provided that no employee shall “work in a biscuit. or to enter into those contracts in relation to labor which may seem to him appropriate or necessary for the support of himself and his family? iii. and others absorbed them. unnecessary and arbitrary interference with the right of the individual to his personal liberty. there was an economic consolidation. many laws that purport to be exercises of the police power in reality are to redistribute wealth or to help a particular group at the expense of others. or more than 10 hours in any one day. and appropriate exercise of the police power of the state. Holding: The law interferes with freedom of contract and it thus violates the due process clause of the 14th Amendment. The existing players were in favor of driving up the marginal costs of competition and drive out their competitors. and that statutes like this are meddlesome interferences. Also. or is it an unreasonable. Facts: A state law prohibited payments on marine insurance policies issued by out-of-state companies that were not licensed or approved to do business in the state. ii. Facts: A New York law set maximum hours that bakers could work. Holding: The court said that there is no direct relation between the interest in health (the end) and the restriction on hours (the means). what is reasonable must be ascertained judicially. Also. c. Issue: Is the law a fair. New York i. Louisiana i. as smaller businesses went out of business. the government can interfere with freedom of contract only to serve a .public has no interest. Also.” b. Lochner v. bread or cake bakery or confectionary establishment more than 60 hours in one week. iv. because bakers are intelligent grown men who can make decisions for themselves. Rule: Freedom of contract is a basic right protected as liberty and property rights under the due process clause of the 14th Amendment.

public health. Will the means achieve the ends? If you force the retailer to charge more. New York i. Facts: A New York law set the maximum price for a quart of milk at 9 cents. Nebbia v. Holding: Neither property rights nor contract rights are absolute. Holding: The court struck down these laws. as an interference between the liberty to contract between employers and employees. Yellow Dog Contracts i. but they were able to get Congress to pass laws that prohibit employers from not hiring people who wanted to join unions. Facts: Weak labor unions. Brandeis argued that the question was whether there was a rational relationship between the ends and the means. Also. not the law. f. Oregon i. Discussion: The interests of New York included labor law (protection from being exploited). Also. e. and the burden is on the challenger to show that it is not. vii. The role of the court is not to substitute its judgment of wisdom for the state legislature. there is a need for judicial deference to legislative choices. This is about arguing the social reality. The legislation was a reasonable way to protect the health of bakers who suffered serious medical problems because of exposure to flour dust and intense heat. since the government cannot exist if the citizen may at will use his property to the detriment of his fellows. Holmes dissent: The Constitution should not be used to limit government regulation and protect a laissez-faire economy. d. There is a presumption that a law is constitutional. v. It operates as a kind of shield. vi. or public morals. Brandeis’ Opinion: Muller v. there was no evidence that they would pass that on to the producer. ii. it is the judicial role to carefully scrutinize legislation interfering with freedom of contract to make sure that it serves a police purpose. New York then prosecutes Nebbia for violating the law. Harlan dissent: There is a need for judicial deference to legislative choices. ii. .valid police purpose: that is to protect the public safety. health and safety of the public. or exercise his freedom of contract to work them harm.

” C) The “Takings” Clause 1) Eminent Domain a) Policy: Government uses eminent domain to seize private property for public use using “condemnation” and gives the property owner “fair market value. or out of harmony with a particular school of thought. not the courts. g. a result of Hawaii’s precolonial property system which restricted ownership to the island’s chiefs and nobility. Lee Optical i. The state therefore used its eminent domain power to take the property. setting a minimum price at the retail level. with just compensation. improvident. 4. it doesn’t matter). Holding: There is a need for judicial deference to legislative choices. Labor law ends ok. 3. Presumption of Constitutionality 2. . and with the plan of selling ownership to a much larger number of people. Midkiff a.So. because they may be unwise. ii. “The day is gone when the Courts use the Due Process Clause to strike down state laws regulatory of business and industrial conditions. Rule: Rational Basis Review framework 1. Williamson v. Rational = debatable 5. Facts: An Oklahoma statute prohibited an optician from fitting or duplicating lenses without a prescription from an optometrist or an ophthalmologist. if means are inefficient. Wisdom not for courts to assess (defer to judgment of legislature. b) Hawaii Housing Authority v. The law may be needless and wasteful but it is for the legislature. Inefficient means ok 7. Speculate on ends 6. it is not clear that it would trickle down to the producer. Facts: The State of Hawaii was concerned that so much land was owned by a relatively few people. Means rationally relate to ends. to balance the advantages and disadvantages of the new requirement.” Sometimes property owners claim “inverse condemnation” for the government taking property that isn’t theirs but is close enough to theirs to render it less valuable. The owners were furious and argued that the government was impermissibly taking from some private owners to give to others. iii.

b. Holding: They said that there was an “integrated development plan. b. the Court concluded that there was not a taking requiring just compensation. the role of the court is an extremely narrow role. Facts: Phyzer wanted to take houses to build a plant. If there is any conceivable basis for why the property is taken. 2) “Extremely narrow role. the role of the court is at an end. They argued that the public would benefit. Holding: This is not a taking. The role of the court is narrow. Facts: The government designated Grand Central Station a historical landmark.b. Because designating the building a historical landmark had the effect only of decreasing the value of the property and because it served an important purpose. and prevented the owner from constructing a substantial expansion on top of the building.” Paying money to redeploy resources is not very popular. Where the exercise of eminent domain is rationally related to a conceivable public purpose. The Kelo decision was a result that was upheld from a comprehensive development scheme. The effect of the law was to prevent companies from exercising certain mining rights. (2) If the legislature decides to go down this path. they were required to leave columns of . The regulation did not deny the owners all profitable use of the building and. A regulation becomes a taking if the regulation “goes too far. by increased jobs and tax revenue.). nor is it for the public to use (railroad). 2) “Taking v.” (1) The government had to pay the “fair market value. in fact. Holding: 1) Public use does not mean public use. don’t they need the power to condemn the entire property? c. etc. Regulation” a) Policy: If it’s a “taking” then the government has to pay fair market value. had not even precluded all development of the air rights above the building. c) Kelo v.” When the issue is public use. Because the use is not ultimately by the public (firehouses. Use instead is by the tenants. Facts: A Pennsylvania statute prohibited the mining of coal in any manner that would cause the subsidence of property. It means public purpose. they don’t. City of New York a. Mahon a. d) Penn Central Transportation Co. Discussion: Approach between Midkiff and Kelo is consistent. etc.” b) “Goes too far”: Pennsylvania Coal v. City of New Haven a. If it’s a regulation. v. the court’s rule is at an end.

and has thus crossed the line from regulation into a taking. Issue: Whether this regulation constituted a “taking” requiring “just compensation. Economic impact of the regulation on the property owner (does the regulation make the property impractical to use?) ii. if regulation “goes too far” it will be recognized as a taking. This is a taking because “making it commercially impractical to mine certain coal has nearly the same effect for constitutional purposes as appropriating or destroying it.” c. Character of the government action (taking or possessory?) iii. Holding: Holmes said that “when regulation reaches a certain magnitude. The owners appealed .” Government could not function if it had to compensate every person whose property values decreased because of a government action.coal underground to support the surface.” c) Permanent Physical Invasion: Loretto v. Goes too far: i. Holding: Upheld because it was voluntary on the part of the pole owners to allow the cable companies to use their poles. e) PruneYard Shopping Center v. Teleprompter Manhattan a. Holding: Even though the amount of space involved is only about one cubic foot. d. Facts: A city ordinance required apartment building owners to make space available for cable television facilities of about one cubic foot. Rule: While property may be regulated to a certain extent. There was a stat constitutional right to use the shopping centers for speech activities. Robins a. but instead regulated its use. d) Utility Poles a. occupy. b. b. destroy or invade the property. Facts: Congress allowed the FCC to set rates that utility pole owners could charge cable operators for access to utility poles. by allowing them to install a cable going up the side of the building and having a cable box installed. then they could not charge obscene rates. b. Whether the government action frustrates “investment backed expectations. but if they did. The government did not confiscate. Facts: The California Supreme Court interpreted the California Constitution to allow shopping centers be open to speech activities. it constitutes a permanent physical invasion. e. in most if not all cases there must be an exercise of eminent domain and compensation to support the act.

because the state was letting them come onto their property. Discussion: There seems to be a new opinion that the attempt to save houses is a valid use of the police power. Army corps of engineers comes along and wants to use the harbor that he built out of the lagoon. the law should be upheld because it is a reasonable way to prevent or repair environmental damage caused by coal mining. arguing that mandating access to the shopping center was a taking because it meant that there would be a physical invasion of the property. c. “When the coal that must remain beneath the ground is viewed in the context of any reasonable unit of petitioners’ coal mining operation and financial-backed expectations. only because of the private investment is a taking. and upheld to allow public access for that purpose. b. and invest his time. Facts: A state law prohibited coal mining that would cause subsidence damage to property. The owner has no expectation of privacy. DeBenedictis a. b. b. The law prevented exactly what the coal miners had bargained to be able to do. g) United States v. The property owners said that it was a takings clause. Private mall.” Court did not say it was an invasion of property. Holding: Although the law interferes with contractual rights. so for the government to take it. Holding: The courts says it is a violation of the takings clause because it is a frustration of investment backed expectations. it is plain that petitioners have not come close to satisfying their burden of . The government allowed him to do that work. Requiring public access. because “there is nothing to suggest that this activity will unreasonably impair the value or use of the property as a shopping center. Causby a. Holding: SCOTUS rejected the mall owner’s argument.this ruling. it would frustrate the investment backed expectations. f) Investment backed expectations test a. people want to collect political petition signatures on the property. Facts: The government’s regular use of airspace for military flights destroyed the use of land as a chicken farm. The coal mine companies frequently had entered into agreements with those owning the surface rights whereby the companies were allowed to mine. even if it caused subsidence of the land. b.” h) Keystone Coal Association v. Facts: Property owner wants to develop private yacht club in a lagoon. Holding: The government’s action was “as complete as if the United States had entered upon the surface of the land and taken exclusive possession of it.

Facts: Condition in exchange for allowing Nollan to build a bigger house. saying it was a taking of property. Holding: The court held that the government was liable to the property owner for the time of the imposition to the recognition of invalidity. in the judgment of the legislature. Creates a reluctance for government to enact regulations. Facts: Government comes along and passes a historic preservation act. they want him to build an easement to allow public to walk between the public beaches.i) j) k) l) proving that they have been denied the economically viable use of that property. because they will be on the hook for payments.” This happens when there is a (1) physical invasion. The time period between the imposition of the rule and the change. South Carolina Coastal Council a. c. b.” It was a taking unless there was a similar restriction on development at the time the owner acquired the land. Temporary Taking a. Facts: The State of Virginia ordered the destruction of a large number of ornamental red cedar trees to prevent the spread of cedar rust. Holding: The Court sided with the state and did not require that it provide compensation to the owners of ornamental red cedar trees. the state adopted a coastal protection plan that prevented the construction of any permanent habitable structures on the property. Discussion: There are certain areas where there is no balancing test: “Total Takings. a highly infectious plant disease. California Coastal Committee a.” Lucas v. b. Facts: After a person purchased beachfront property for almost $1 million. b. property owner sued. Holding: There is a taking “where regulation denies all economically beneficial or productive use of the land. Holding: The court holds that the condition imposed on the . The stat acted to protect many apple orchards in the vicinity. (2) denies all economic value.” Miller v. This case places a sharp restriction on the ability of governments to respond to the emergence of environmental problems. c. Shoene a. is of greater value to the public. Rule: When the government is forced with making a choice between preservation of two types of property “the state does not exceed its constitutional powers by deciding upon the destruction of one class of property in order to save another which. b. Nollan v. was free for the government.

how do you know the conditions are adequate. by adding a bicycle and pedestrian pathway. not a legislative one. Discussion: The court says the state must demonstrate “rough proportionality” between the harms and the conditions. They say she cannot build in the flood zone. So. Dolan want to build a bigger hardware store. City of Tigard a. The easement (condition) had nothing to do with the justification. The city bears the burden of proof to justify the conditions by an “individualized determination. double the size. The condition must relate to the problem and must substantially advance the solution. The court says this is an adjudicative process. This has nothing to do with rational basis review.” The city could have said it was a flood plane and they could not build on it. which is a taking. This demands that the government satisfy the burden of proof. In other words. it was an executive action. Facts: Hardware store in city of Tigard. D) Fundamental Rights Under Due Process 1) Strict Scrutiny a) If there is a fundamental right. there must be an “essential nexus” between the conditions and the harm. there must be a “rough proportionality. but with conditions. The concerns of the city are flooding and traffic congestion (vehicular and pedestrian). they said that they must set aside the land for public use. and do not apply to legislative actions. double the parking lot. Holding: The court says that if the government is going to impose conditions on the property owner. Second. these conditions are limited to an adjudicative agency. The court says you cannot impose conditions that do not relate to the government interests.” in other words. Also. The government fails in this case. but that it would help. the court engages in “strict scrutiny. and Mrs. They also say that they must do something to offset the harm from added congestion. and must put grass there. Mr.” The government must now bear the burden of proof that (1) the interest . m) Dolan v. Instead. b. because the justification for the easement was for the view to the road. this is a decision limited to the process that develops. Not only that the restriction could help. The city says okay. c. The court said that the way the government acted did not show sufficient consideration to the public interest.property owner must substantially advance a legitimate governmental interest.

The Connecticut law violated the right to privacy in prohibiting married couples from using contraceptives. Instead. it is implicit in the Bill of Rights. and the court is un-persuaded that there is any reason to include certain crimes not others. This right however is not protected under the due process clause. Discussion: The court described Carrie Buck as a “feeble minded white woman. Holding: The right to privacy is a fundamental right. and was prosecuted for providing contraceptives to a married woman. Estelle Griswold was the executive director of Planned Parenthood in Connecticut. Holding: Holmes says “It is better for all the world. b. Oklahoma a. The State of Virginia sterilized Carrie Buck. It must use the “least restrictive means.of the government is compelling. and a physician. who openly ran a planned parenthood clinic for 10 days in 1961. c) Right to Contraception: Griswold v. and found to be a woman of normal intelligence. in 1980. b. c. The law violates equal protection and the right to procreate is a fundamental right. Holding: Douglas said the right to procreate is a fundamental interest.” c. Facts: A Connecticut law banned and punished the use of contraception. and (2) that there was no other way to achieve the objective. Connecticut a. Discussion: Justice Harlan concurred with the opinion. 3rd. Facts: The Oklahoma Habitual Criminal Sterilization Act allowed courts to order the sterilization of those convicted two or more times for crimes involving “moral turpitude. The court did not recognize reproductive autonomy as a fundamental right. or counsel a violation of the law. society can prevent those who are manifestly unfit from continuing their kind… Three generations of imbeciles are enough. 4th and 5th Amendments. if instead of waiting to execute degenerate offspring for crime.” 2) Constitutional Protection for Reproductive Autonomy a) Right to Procreate: Buck v. pursuant to a law that provided for the involuntary sterilization of the mentally retarded who were in state institutions. an 18-year-old woman. abet. a basic civil right. such as the 1st. or let them starve for their imbecility. but .” b. she was found to be alive and living with her sister who also had been sterilized by the state. b) Skinner v. Bell a. and made it a crime to assist.” In fact.

for anyone other than a licensed pharmacist to distribute contraceptives to persons over age 15.” c. Facts: A Massachusetts law prohibited distributing contraceptives to unmarried individuals and only allowed physicians to distribute them to married persons. and even though the law might be stupid. where a decision as fundamental as whether to bear a child is involved.” Limiting distribution of contraceptives to licensed pharmacists unduly restricts access to birth control and infringes on the right to control procreation. An individual was convicted for giving a woman a package of contraceptive foam at the completion of a lecture on birth control at Boston University. Its about place. “The right of privacy means that it is the right of the individual. b. Holding: The law denies equal protection because it discriminates against non-married people. Baird a. . Discussion: The court says that it would be unreasonable to say that the legislature would prescribe pregnancy and an unwanted birth as punishment for premarital sex. d. Justice Black and Justice Stewart wrote dissenting opinions arguing that the law was unconstitutional because there is no right to privacy mentioned in the Constitution. Holding: Strict scrutiny must be met for the government to justify a law restricting access to contraceptives. e) Carrey v. e. b. married or single. Individual autonomy. “’Compelling’ is of course the key word. iv. the law violates the rights of those under age 16. It’s about procreation. to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear a child. ii. The role of judges is a narrow one. Facts: A New York law made it a crime to sell or distribute contraceptives to minors under age 16. Population Services International a. judges should not impose their will on the country under the guise of doing it through the due process clause. Also. regulations imposing a burden on it may be justified only by compelling state interests and must be narrowly drawn to express only those interests. 4 Interpretations: i. and for anyone to advertise or display contraceptives.found that the right was protected under the due process clause of the 14th amendment. Is that it’s about marriage. d) Eisenstadt v. iii.

c.” iii. Facts: A Texas law prohibited all abortions except those necessary to save the life of the mother. During the second trimester. such as requiring a licensed physician. The right to privacy is now a right that every individual has. but substantially shift the nature of the privacy right. whether it be founded in the Fourteenth Amendment’s conception of personal liberty and restrictions upon stat action. Discussion: The court doubted that prohibiting distribution of contraceptives would deter teenage sexual activity an in any event. d. f) Roe v. the government also could not outlaw abortions.” Forcing a woman to continue a pregnancy against her will obviously imposes enormous physical and psychological burdens. the government could not prohibit abortions and could regulate abortions only as it regulated other medical procedures. Casey a. but rather enormous disagreement among various religions and philosophies. or in the Ninth Amendment’s reservation of rights to the people.” Strict scrutiny is to be used in striking the balance because the right to abortion is a fundamental right. as we feel it is. if it chooses. the government may prohibit abortions except if necessary to preserve the life or health of the mother. i. requiring physicians to inform women of the availability of information about the . thought it irrational that the state would want an unwanted pregnancy to be the punishment for fornication. Also they noted that there was no consensus as to when human personhood begins. ii. b. Discussion: The Court divided pregnancy into three trimesters. regulate the abortion procedure in ways that are reasonably related to maternal health. In the final trimester. The court rejected the state’s claim that fetuses are persons and that there was a compelling interest in protecting potential life. Wade a. Facts: A Pennsylvania law regulated abortions by creating a 24 hour waiting period for abortions. is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy. Rule: The right to abortion is not absolute and it must be balanced against other considerations such as the state’s interest in protecting “prenatal life. Carrey and Eisenstadt seem relatively unimportant.c. but the government “may. During the first trimester. g) Planned Parenthood v. Holding: “This right to privacy. d.

” The right to abortion is constitutionally protected because of the importance of the choice and the intrusion in forcing a woman to remain pregnant against her will. because that is not an undue burden on the right. and measures designed to advance this interest will not be invalidated as long as their purpose is to persuade the woman to choose childbirth over abortion. White. However. Holding: The court strikes the law down because (1) there was no exception to protect the health of the mother. the trimester framework from Roe was overruled. and the reporting and recording requirements. but after viability. The court rejects the notion that . the government may not prohibit abortion. In the third version. and requiring spousal notification before abortions. or (3) if there was a change in the factual predicate for the decisions. Facts: A state law prohibited a procedure called “partial birth abortions. b. Discussion: The court explained that it is warranted to overrule precedents if the earlier decisions (1) had proved unworkable. d. requiring parental consent for unmarried minors’ abortions. The second form occurs in 2nd trimester by dilation and evacuation. e. This places an undue burden on the mother. (2) if there was an evolution of legal principles that undermined the doctrinal foundation of the precedents. Justices Rhenquist. Holding: “The essential holding of Roe v. the state may take measures to ensure that the woman’s choice is informed. f. they ruled that the spousal notification requirement is unconstitutional. the physician induces labor and punctures the skull while it’s being born. h) Undue Burden: Stenberg v Carhart (2000) a. c. the requirement that the woman be told of the availability of detailed information about the fetus. creating requirements for reporting and record keeping. Before viability.fetus. Wade should be retained and once again reaffirmed. and Thomas expressly said that they believed that Roe should be overruled because it was wrongly decided. and (2) it prevents women from having free choice. Rule: The test for the constitutionality of a state regulation of abortion is whether it places an “undue burden” on access to abortion. abortions may be prohibited except where necessary to protect the woman’s life or health. Majority opinion: The court upheld the 24 hour waiting period. b. However. The third form occurs in 3rd trimester by dilation and extraction (In tact D&E). 85-90% of abortions are performed in 1st trimester using vacuuum aspiration. Scalia. However.

Is there a fundamental right? ii.the statute is protecting life. Rule: The law is an undue burden “if its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability. Depending on whether the fetus is coming out head first or feet first. in it’s lack of recognizing the horribleness of these procedures. Discussion: When the Supreme Court considers cases involving individual liberties. therefore there must be a health exception in order to protect women’s rights. etc. The court says it is not an undue burden on the women’s right. (3) There must be an “overt” act. the ban can or cannot apply. i) Carhart: a. The federal statute is not void for vagueness.” States may not prohibit abortions prior to viability and states may prohibit abortions after viability. referring to Dred Scott. Is the infringement justified by a sufficient purpose? iv. (2) That there are certain anatomical lines drawn. This is an aspect of procedural due process that requires notice to people whom you expect to follow the law and to officials who will enforce it. He also says that the five judges value the life of the mother over the life of the child. Dissent: Scalia says this decision ranks up there with the worst decisions of the court. Is the right infringed? iii. The line that had been drawn regarding viability is undercut here. regardless of how viable the fetus is. c. and it is a simple matter of politics. It is permissible for Congress to entirely prohibit the third method of abortion. The statute does not impose an undue burden. f. Facts: In 2003. There are fact-findings and the statute itself. c. there was a federal statute on partial birth abortion. Holding: i. d. ii. There are four . Are the means sufficiently related to the end sought? e. except where necessary to protect the woman’s life or health. Discussion: Roe is still on solid ground. since they are still allowing one form of abortion. There are three parts of the statute to focus on. Majority: The majority says the medical profession is in disagreement. (1) That the physician must “knowingly” act. b. because there are other methods available. there are four issues: i.

There was virtually no chance of her regaining consciousness. and writes Cahart. McRae d) Stenberg e) Cahart 4) Constitutional Protection for Medical Care Decisions a) Right to Refuse Treatment: Cruzan v. Her parents wished to terminate food and hydration and thus to end her life. b) Maher v. and Kennedy vote to overturn.justices who think that the Carhart ruling was wrong. Holding i. because there is no obstacle for women to get abortions. ii. The court did not articulate a level of scrutiny to be used in evaluating government regulation of personal decisions concerning refusal of medical treatment. 3) Government Restrictions on Funds and Facilities for Abortions a) It is permissible for the government to restrict funds for abortion services. Competent adults have a constitutional right to refuse medical care. A state may prevent family members from terminating treatment for another. Alito. Missouri Dept. Discussion i. Roe c) Harris v. The Court did not resolve what is sufficient to . The court was not going to get into a fight with the legislature by ordering them to spend funds. Facts: Nancy Cruzan suffered severe head injuries in an automobile accident and was in a persistent vegetative state. In Thomas’ confirmation hearing. he described Roe as a “superprecedent” that had been reaffirmed so many times that it would take a lot to overturn it. c. b. iii. A state may require clear and convincing evidence that a person wanted treatment terminated before it is cut off. of Health a. The right to end treatment belongs to each individual. Alito and Thomas did not sign on to an opinion that gave them the opportunity to say Roe is overturned. and a state may prevent someone else from making the decision. he concurred with Casey. He assumes the principles of Casey in Cahart. ii. Director. but on the other hand. Kennedy dissented in Stenberg. Roe will remain in tact unless Roberts. The state intervened to prevent this.

Hardwick a. b) Right to Physician-Assisted Suicide: Washington v. iii. Holding: The law does not violate a fundamental right protected under due process. d. the rational basis test must be used. b) Lawrence v. holding that it had viewed the liberty interest too narrowly. Holding: The court upheld the law on the grounds that the right to privacy does not extend to homosexual activity as being fundamental. c) Vacco v. b. b. Discussion: Since homosexual activity is not a fundamental right. Facts: A sodomy law in Texas criminalized homosexual activity. O’Connor’s separate opinion says that there may be a Constitutional right to have a surrogate decision maker to make such decisions. Facts: Michael Hardwick was arrested for engaging in homosexual activity in his bedroom. Holding: Bowers is explicitly overruled. A right is protected under the due process clause only when supported by history or tradition. and the state has a rational basis for the law. Glucksberg a. spouse. and the Court found that it was rational for the legislature to make laws about morals. b.constitute clear and convincing proof of a person’s desire to terminate treatment. A police officer came into his apartment on a totally unrelated matter. whatever. The fact that the homosexual activity occurred in the privacy of the home did not justify giving it constitutional protection. Quill a. Next of kin. c. A roommate answered the door and directed the officer to Hardwick’s room. Facts: A Washington law prohibited assisted suicide. 5) Constitutional Protection for Sexual Orientation a) Bowers v. Therefore the rational basis test should be used to test the validity of the law. Holding: Laws prohibiting physician-assisted suicide do not violate the equal protection clause. Texas (2003) a. The Court does not address the situation where a competent person designates a surrogate or guardian to make the decision concerning terminating lifesaving treatment. The common law has prohibited suicide for over 700 years. The officer said that he witnessed the homosexual behavior and arrested Hardwick for violating the Georgia sodomy law that banned oral and anal sex. Intimate consensual .

and the injury threatened by the official action. c. even though he had not exhausted his post-termination administrative remedies. c) Rule: In determining the amount of process due. The government’s interest. and (2) it was incorrectly decided. 2) Three Step Process a) Life. He sued. b) Holding: A pre-termination hearing is not required in this case. He was not provided with a hearing prior to the termination of his benefits in which he could argue for a continuation in benefits. Discussion: Prior to this case. c. including the function involved and . if any. or recognition under State law (hearing before losing drivers license. Bowers is overturned because (1) it was framed incorrectly. and the probable value. because he had other means of subsistence during the post-termination hearing. The interests of the individual in retaining their property. E) Procedural Due Process 1) Definition a) Refers to the procedures that the government must follow before it deprives a person of life. liberty or property interest? a. The state does not have to create liberties. then the Constitution will protect it. Also. because historically there have not been bans on homosexuality. of additional or substitute procedural safeguards. Liberty: Substantive due process (federal law). Eldridge a) Facts: The Social Security Administration terminated Eldridge’s disability benefits through its normal procedures. the court should weigh three factors: a. there has been an emerging awareness that tends to create the right. there was no constitutional protection for homosexual activity. The risk of erroneous deprivation of such interest through the procedures used.sexual conduct was part of the liberty protected by substantive due process under the 14th Amendment. but many similar laws have been overturned as a result. b) Has the state “deprived” an individual? c) Without due process? 3) Mathews v. and the burden on the public would be great in keeping an unworthy recipient on disability benefits. This case does not necessarily create a fundamental right however. liberty or property. tenure). b. but if it does.

the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. .