CONSTITUTIONAL LAW BERNSTEIN I. Background Info a. Declaration of Independence i. Never cited as authority for con law question ii.

presumes acceptance of natural law theory 1. enlightenment: certain universal principles of morality that can be discovered through reason iii. One ideology 1. underlying/founding principles of US morality a. relied on by abolitionists, women’s rights movements, civil rights movements 2. not underlying ideology of SCOTUS iv. Never a formal part of Constitutional Theory 1. Conservatives opposed to using Declaration in jurisprudence a. judicial restraint i. Declaration too broad  judges should be confined to 4 corners of document ii. terms such as liberty and equality have varying terms would give judges too much discretion to putting their own values into interpretation b. not a legal document  justification for colonies to leave Britain c. General belief that America is a Christina nation w/ a Christian founding i. underlying principle ii. Declaration doesn’t mention Christianity  undermine argument d. Revolutionary document  don’t want to encourage people to rebel 2. Liberals opposed to using Declaration in jurisprudence a. Lochean document i. set up to protect life, liberty, and pursuit of happiness ii. modern liberal believe in activist government 1. Declaration is negative liberty rather than positive liberty b. life of law is not logic, it is experience i. modern liberal believe in living Constitution  allow for social change ii. Declaration has unchanging self-evident truths b. Articles of Confederation 1781-1787 i. 1 weak legislative branch ii. each state had 1 vote iii. No judicial branch, not supreme court 1. similar to England, legal disputes went to House of Lords (part of Parliament) iv. Article II 1

1. limited Congress to expressly delegated powers v. union perpetual vi. Weak Taxing power 1. legislature had to ask States to send money based on property value a. State told legislature property value (under appraisal) 2. later changed to population vii. Unanimous approval needed viii. Problems 1. raising revenue through taxes a. local interest, states might be unwilling to give money to assist other states 2. b/c of revenue problem difficult to raise army to protect settlers and control settlers from encroaching on Indian lands 3. no national trade policy 4. Britain refused to vacate from various forts c. Constitution 1787 i. required ratification of 9 of 13 states 1. popular vote ii. amendments don’t need to be unanimous iii. legality of document 1. questioned 2. Bernstein  legally superseded a. permissible to amend a treaty or come up w/ new agreement i. the Articles were a treaty among 13 states, simply amending them b. if legislators agree to new superseding legislation then the old legislation dies i. Constitution undid prior legislation of Articles iv. Union of People not just the States 1. “We the people in order to form a more perfect union” 2. promote general welfare of all the people of the US 3. setting up a new country  citizen of state and US 4. ratified by the people acting through state conventions v. less higher law conceptions 1. not a justificatory document vi. Functions 1. establishes national government 2. allocates power a. Article I i. legislature 1. Congress has powers “herein granted” th b. 10 Amendment powers not given to Congress given to States c. Article II i. executive ii. electoral college 2

1. not popular vote 2. chosen by state legislature d. Article III i. judiciary 3. no single branch can dominate or function on its own a. strong bias towards stasis 4. dictates relationship between federal and state government a. anti-federalists: opposed Constitution i. opposed strong fed govt. vii. Purpose 1. Establish nation govt. 2. Organize relationship between fed and state govt 3. Protect Individual Rights a. no bill of attainder b. no ex-post facto laws c. no suspension of habeas corpus by Congress d. contracts clause viii. Thurgood Marshall’s view 1. Constitution not impressive, tainted by slavery a. compromising principals 2. disagree w/ Marshall a. structurally designed a document w/ an amendment process to change the document to grow with the times b. founders forced to compromise or South never would have joined c. establishment of democracy even if only for white men  step forward d. inherent tensions which led to Civil War, but still together for decades 3. Connection between Declaration and Constitution a. traditional view: Declaration underlying principles Constitution is supposed to effectuate b. Marshall: slavery not enough of an evil to stand in the way of establishing Union i. we have new Constitution, the 14th Amendment replaced original, improved by New Deal etc etc ii. living document iii. protect individual rights from the states ix. Clarence Thomas’s view 1. slavery at odds w/ Constitution, Constitution as it was written would eliminate slavery x. Montesquiew’s Theory of govt. in the Constituion 1. separation of powers  separate judiciary 2. bi-cameral legislature 3. checks and balances 4. representatives represented geographically not at large 3

II.

a. representatives from all over act as counter-weights to each other b. balance interests of different regional groups xi. Ideological debate 1. system not set up to encourage virtue (system is problem) vs. a. Solution: campaign finance reform, so people of virtue can afford to run, not just the rich who are at the whim of lobbyists who give them money 2. People inherently power hungry (people are the problem) a. good people don’t last long in Washington DC b/c incentives are to increase power b. people naturally seek as much power as the can c. solution: limit terms in office xii. Senate in charge of confirming presidents’ judicial appointments 1. less political b/c no up for re-election  less subject to passions of public 2. balance interests of national and state government 3. concern more populous states would dominate Judicial Philosophies a. Originalism i. interpret Constitution according to original meaning ii. interpret Constitution as a contract iii. don’t want a living interpretation b/c that is a reflection of the judge’s own values 1. no judicial activism iv. free to amend, but interpret the document as it was written v. Scalia (feint-hearted originalist) vi. original public meaning 1. what words of document would have meant time to people who wrote and were reading it b. Thomas i. Constitution is a sound theory of government ii. meant to promote underlying ideals of Declaration 1. social issues forced compromise 2. read Constitution in light of Declaration, the Constitution is a culmination of ideals the Constitution was meant to adhere to 3. Declaration consistent with Constitution 4. Construe constitution in the view of individual/natural rights a. amendments enforcing the original properly understood principles of the Constitution c. Living Constitution i. framer’s purposefully left the Constitution vague to allow for moral development 1. vague clause interpreted in modern lens ii. Constitution establish basis of government, Americans fill in the details iii. general set of guiding principles 1. flexible and responsive iv. adhere to originalism when practical 4

Ripeness – Immediate Threat of Harm i. Democracy and Distrust i. Fed Courts should take sides in political debate 2. interpretation of Article III b. ex President needs to be 35 d. don’t want Constition to be wholly separate from Institutionalism e. when review is appropriate  determine when actual a controversy is present 5 . 1. Separation of Powers 3. there is an immediate threat harm 1. Cons 1. Sandra Day O’Connor f. words of Constitution end up meaning completely different 3. decisions building on decisions until not understandable 2. SCOTUS can NOT issue advisor opinions i. law might be unconstitutional as applied rather than facially c. supreme of constitutional interpretation within its own sphere a. interference g. all judge made law i. resolve current issue right now and figure out related issues later ii. it won’t be proposed/passed iii. decisions ii.Ct.III. Disadvantages of Advisory Opinions 1. case by case pragmatic decision making iii. changed during New Deal era iii. balancing test. typically plaintiff not entitled to review of a state law before it is enforced 1. each branch of govt. potential liability under section 1983 for doing something SCOTUS has deemed unconstitutional 4. Pros 1. Marshall Federal Court Jurisdiction and Justiciable Cases a. meaning evolves through common law process of S. Quasi-legislative pragmatism i. more efficient  if Congress knows SCOTUS will deem a certain bill unconstitutional. executive branch and legislative branch must still determine constitutionality in their own rights b. Advantages of Advisory Opinions 1. judicial opinions explain what actually happens pretty well iii. protecting equal rights of minorities and individual rather than focusing on limited fed govt and separation of powers ii. Common Law Constitutionalism i. Constitution meant to protect natural rights from arbitrary govt. fed court can only hear case following plaintiff’s harm UNLESS ii. Natural Rights i. reading of “case and controversy” (article III § 2) ii.

need not be economic 2. 3 Constitutional barriers to standing 1. live controversy must exist at all stages of review ii. Exceptions 1. must be specific e. Redressability a. a real. injury to which may be sufficient for standing 2. or she refuses to comply and runs a great risk don’t want to wait for accident to occur delay would not put court in better position to resolve case however if statute on books for 100 years and never enforced not ripe b/c no real threat of enforcement d. not to speculative i. a. environmental concerns (sometimes) d. ex criminal dies. civil suit settles iii. injury must be fairly traceable to defendant’s conduct 3. Standing i. Plaintiff must allege an injury a. physical injury. but is free to resume it at any time c. wrongs capable of repetition by evading review i. assures an actual dispute between adverse litigants b. serves efficiency. if personal interest disappears the case is dismissed as moot 1. improves judicial decision making. imminent or already occurred. monetary ii. Mootness i. 3. plaintiff must show a favorable outcome is likely to redress the injury iii.2. Causation a. def: a party’s right to make a legal claim or seek judicial enforcement of a duty or right 1. preserves separation of powers. promotes fairness ii. 3 Prudential barriers 1. Prohibition of 3rd party standing 6 . hardship to the parties of withholding court consideration b. injunctive or declaratory relief  must show injury in future c. * a federal statute may create new interests. 4. collateral injury remains a. 5. class action may continue even if the named plaintiff’s claims are rendered moot e. fitness of the issues for judicial decision on the “horns of a dilemma” either plaintiff complies w/ law at some great expense. ex Roe v Wade 1. defendant voluntarily ceases unlawful behavior. duration of pregnancy short than time required for federal review b.

plaintiff may only assert injuries she has suffered b. 2. standing to pay tax you are required to pay 4. parents and children iii. vendors and customers. parties don’t have real stakes  deterioration of adversarial system ii. black community wouldn’t have standing b/c not party to contract ii. overbreadth doctrine 1. ex religious school and parents. ex racial covenants. exceptions i. fear of collusive litigation a. close relationship between advocate and 3rd party 1. doctors and patients. Expenditure violate a specific constitutional limitation on the taxing and spending power i. substantial obstacles to 3rd party asserting own rights AND reason to believe advocate will effectively represent interests of 3rd party 1.iv. Can Not be a generalized grievance shared in substantially equal measure by all or a large class of citizens a. similar to designating private attorney general c. ex establishment of religion ii. prevents individuals from objecting as tax payers or citizens b. Injury a. particularized: Mass has right as a sovereign to protect its citizens’ land 7 a. . Plaintiff must be within zone of interests (not particularly demanding) 5. prudential restrictions can be overridden Ex Mass v EPA 1. tax payer can challenge a government expenditure as violating the Establishment Clause (Flast) 1. Mass claiming EPA should be regulation emissions from new cars 2. allows a party to challenge a statute on the ground that it is overly broad and violates the 1st amendment speech rights of 3rd parties not before the court even though the law is constitutional as applied to actual litigant 3. Policy i. pro 1. challenge a congressional appropriation under taxing and spending clause (Article I. Con 1. exception i. Mass has standing 3. 1. interest groups represent public interest a. two part nexus a. global retreat of mountain glaciers cause retreating shorelines b. § 8) b.

Jurisdiction i. SCOTUS must first determine jurisdiction before deciding a case 2. restricting due process ii. congress inferring w/ certain classes of litigants 1. in the constitutional plan (Prof Hart) iv. Congress destroying the essential role of the S. Redressability a. but it also gives Congress the express power to take it away 1. thinking in geological times 6. Ct. Dissent: no evidence of actual injury. shall have original Jurisdiction.i. Ct. [giving jurisdiction] with such Exceptions. The Constitution gives SCOTUS appellate jurisdiction. In all other cases. In all cases affecting Ambassadors. Ct. not constitutionally entitled to decide cases. both as to Law and Fact. not imminent (loss by 2100). Pro i. ex abortion c. regulating greenhouse gas emitted by cars is a small incremental step to reducing climate change 5. and those in which a State shall be a Party. other public Ministers and Consuls. can’t trace back to vehicle emissions f. iii. limiting jurisdiction of a specific right is the equivalent of Congress passing the law restricting those rights 1. Ct. Causation a. Article III § 2 Exceptions Clause a. Congress possesses power to regulate and limit appellate jurisdiction 8 . S. the S. aspect that relates to control of land/waterways c. the S. directly challenging authority of S. sovereign rights to protect against pollution ii. cons i. only decide cases within jurisdiction ii. Ct. shall have appellate Jurisdiction. and under such Regulations as the Congress shall make [taking jurisdiction away] b. congress limiting political judgment ii. this is a relaxed standard 4.

Congress has authority to establish # of Justices 2. . ex McCardle a. even if the other branches say it is  don’t defer to other branches b. Court can review actions of Congress AND Executive i. ex veto. Federal Courts may review executive ministerial conduct to determine constitutionality in non-political cases 1. nothing in Constitution explicitly gives S. SCOTUS did not have jurisdiction to hear case iii. the judiciary form the nature of its functions is the least dangerous to political rights in the Constitution b/c it has the least capacity to annoy or injure them 1. power to declare legislation unconstitutional 1. no influence over sword or purse 2. authority to declare laws unconstitutional iii. conflict between legislation and constitution. sough writ of habeas corpus c. cannot review president’s political discretion a. S. Marshall’s justification of judicial review i. how president enforces congressional legislation i. legal duty to act or refrain from acting 2. Ct. duty of judiciary to say what law is 1. Constitution supreme law of land. constitution triumphs c. duty of judicial department to declare the law ii. at time of appeal statute gave SCOUTS appellate jurisdiction  Congress repealed the statute (removing jurisdiction) d.1. Constitution is enforceable legal document ii. those who apply the rule to cases must expound and interpret the rule iii. Historical Justification  Hamilton 78 i. Hamilton didn’t follow this statement w/ reasoning iii. biggest limitation on the Court 1. court won’t substitute own personal opinion for interpretation of the Constitution 1. McCardle arrested for published articles in newspaper opposing fed govt. Ct. must depend on aid of executive 9 IV. intermediary body to keep legislature within the limits of their authority ii. Congress cannot fire a Justice currently on the Court  life tenure Judicial Review a. cannot enforce a statute it deems unconstitutional 1. text of Article III does not suggest limitation of Congress’ power regulate 2. ex Congress passes legislation mandating president to do something a. authority as commander and chief iv.s Reconstruction policies b. who to appoint to an office.

Adams’ midnight appointment of judges ii. Marbury sued directly to S. President Jackson threw Cherokees off their land in contrasts to S. power of persuasion  declare laws unconstitutional ii. Ct. The least powerful branch has a lot of power i. presentment clause 2. Marbury’s commission was not delivered in time iii. Ct. decision d. Marshall attempting to soften readers into complaisance by acknowledging acts that are not subject to judicial review 2. Exception 1. Senate: final unreviewable power to approve or to disapprove presidential appointments 5. review actions of other branches of govt. (both fed and state) e. Jefferson ordered Secretary of State not to deliver the commissions iv. establishes judicial review Legislative Power a. House: initiate impeachments 3. Ct. if a law is presented to both houses of Congress and signed by the president. Congress can control administrative state 1. if Marshall grants the writ  Jefferson would prob refuse to enforce vi. President’s option to veto legislation ii.V. to be repealed it must be presented to both house of Congress and signed by President iii. Congress delegates authority to executive to exercise discretion the agency isn’t making law but just doing what Congress ordered it to do ii. but doesn’t get the commission b/c S. 1. Senate: conduct impeachment trials and convict following trial 4. theoretically President could go against decision a. Regulations enacted by administrative agencies are not “legislation”  don’t go through formality of being voted on by both House and signed by President i. Marbury had right to commission. doesn’t have original jurisdiction issue writs of mandamus b/c congressional statute unconstitutional 1. Bicameral legislative Process 3. legislative hearings 10 . constitutional exceptions authorizing 1 house to act alone and are an exercise of legislative power 2. Marbury v Madison i. threaten to take away funding 2. Senate: unreviewable power to ratify treaties negotiated by president b. ex needed President to send national guard for desegregation in Little Rock 2. violates Constitution 1. Legislative Vetoes are unconstitutional i. v.

Dissent: not making new law. 3. 2. Actions incompatible w/ expresses or implied will of Congress 1. w/out congressional authorization. seizure unconstitutional a. Truman. activist president’s are usually influential 4. Determining the validation of presidential actions with regard to internal affairs (Jackson) i. Dissent: historical argument. Truman asked for action and Congress did nothing i. Special Prosecutors to investigate executive officials 5. Congress authorized AG to use his discretion in suspending deportation proceedings for selected hardship cases among illegal aliens ii. the S. AG discretion subject to disapproval by either house of Congress iii. evaluate only in light of own powers subtracting those of Congress a. the president still couldn’t act i. just b/c Congress didn’t grant doesn’t mean they didn’t deny i. Congressional vacuum 1. House voted to deport Chadha 1. Acting w/ Congressional authorization 1. interpret actions more expansively in light of practicalities of certain situation iii. ex INS v Chada 1983 i.Ct. resolution not sent to Senate or President iv. category 3 i. As long as civilian courts are operating and the defendant is charged with a civilian crime. President possesses own constitutional powers plus those Congress can delegate ii.VI. ex Steel Seizure 1. necessary for the modern state w/ complex problems Executive Powers a. no authority from congress b. not great argument: giving a non-law effect b. Hypo: Argument for Category 2 authority a. findings of AG went to Congress. 3. Congress votes on rules and can make adjustments c. actions highly scrutinized 2. situation where Congress hasn’t granted nor denied power 2. thereby allowing Congress to respond through legislature 4. own constitutional powers independent from Congress 3. evidence that Congress neither granted or rejected authority b. unconstitutional  legislative veto v. the defendant must be tried in civilian court 11 . however. Article II iv. no constitutional power to perform this act from Article II ii. knew it wasn’t a real emergency 3. despite a military emergency. ordered to seize US steel mills when impending strike threatened national defense 2. require agencies to report proposed regulations to a committee and wait a reasonable time before putting them into effect. 1. Declaring Martial Law i.

Quirin and 7 members of German armed forces secretly came to US 2. lived in enemy territory 5. inherent authorization b/c Congress declared war ii. does this invalidate precedence? iv. member of enemy forces i. threatened invasion is not enough 4. Court was under extreme political pressure from Roosevelt. distinguished from Milligan a. cannot be charged w/ civilian crimes c. never in enemy territory. so he should be tried in civilian court e. of Indiana b. courts MUST be closed a. military commission did not have jurisdiction to legally try and sentence a man who had never been in military and was not in State involved in Civil war d. overthrow. seize and subject enemy to discipline when they have violate the laws of war iii. American would be tried as a civilian 2. Germans are belligerents and Milligan was a civilian b. never part of enemy forces 12 . Civilian courts were still opened. response if Congress grants authority then no reason to worry of dictatorship c. US citizenship does not relieve an enemy combatant for consequences of belligerency when his actions were in violation of the laws of war 5. until civilian govt. President is commander and chief: authority to set up military tribunals when US is in an official declared state of war i. arrived in military uniform and changed to civilian dress  instructed to destroy US war industry 3. part of enemy army = enemy combatant b. tried and found guilty by military court c. others arrested  tried by military commission  constitutional 4. 1 turned self in. power to conduct war and adopt measures to repel and defeat the enemy. part of German armed forces. plot to steal Union weapons and invade Union POW camps to fight against govt. Hypo: Sympathetic American contacts German embassy and offers to blow something up in US 1. ex Ex Parte Quirin 1. impossible to administer criminal justice according to law 2. ex Ex Parte Milligan a. fear of presidential acting as dictator  military courts not subject to constitutional safe-guard i. Prisoners of War a. military cannot take charge 3. Must be actual and present threat a.1.

could not say military did not have reasonable belief of threat 4. balancing racial prejudice and military necessity and urgency when Congress grants authority b. take swifter action i. detention of Japanese Americans  constitutional a. The govt. Deference to President’s military action in time of military necessity/urgency when Congress gives authority i. Douglas Concurrence: assume good faith of military. notice of the factual basis for his classification b. exercise of necessary and appropriate force Congress authorized President to use iii. fair opportunity to rebut govt’s factual assertions c. you can certainly detain an American caught abroad (relying on Ex Parte Quirin) v. Due Process required 1. basis Mathews v Eldridge 13 . military claimed curfew protective measure to meet threat of sabotage and espionage which substantially effect war effort and aid enemy invasion b. should be reasonable connection between threat and actions taken f. Court modifies to limit to hostilities in Afghanistan 3. Dissent: if such a true emergency why didn’t govt. may detain an American citizen apprehended in a foreign country in a theater of war as an enemy combatant (Hamdi plurality) i. number and strength could not be quickly ascertained c.d. embraces every phase of national defense e. only limited proof of sabotage or espionage ii. constitutional 3. court looks at all facts and circumstances surrounding curfew order a. even if you are a citizen you can still be an enemy iv. policy: avoid giving President indefinite authority w/out any new legislation ii. apprehension: could not know danger until too late to meet it. passes strict scrutiny c. Hirabayashi 1. extends to every matter and activity so related to war as substantially to affect its conduct and progress ii. Korematsu 1. President has power to wage war successfully i. citizen-detainee seeking to challenge his classification as an enemy combatant must receive a. Authorized through AUMF 1. but war does not suspend bill of rights ii. if you can try and execute an American citizen caught in America. before a neutral decision maker 2. AUMF provides broad vague powers 2. Executive order ratified by Congress gave military commanders and Secretary of War power to exclude people from military areas 2.

limits Milligan to facts (opposite in Hamdan) 5. acknowledges concern of placing power in hands of President to detain Detention Hearing (6-1) O’Connor (Plurality) Yes w/ limits Yes Thomas Yes no limits No Souter No Yes Scalia No Not addressed g. favorably cites Milligan. odd to rely on (social security is a privilege not a right) vi. Quirin only applies to overt acts of conspiracy 5. deny social security benefits b. a military commission is lawful only if it is authorized by 10 USC 821 a. trial must be authorized by the law of war b. opposite result in Hamdi b. Military Tribunals i. had jurisdiction 6. trying Hamdan by military commission planned by President Bush violates the UCMH and Article 3 of Geneva Convention 3. Hamdan charged w/ conspiracy.Ct. favorably cites Quirin.Ct. either suspend writ or try for treason 6. Hamdi is a POW. throws wrench in plurality’s reasoning 7. Bin Laden’s driver 2. Geneva Conventions are part of the law of war c.Ct. once a statute requires President to enforce international law S. Milligan not a POW. distinguish Milligan a. civilian engaged in criminal acts. captured in Afghanistan and brought back to US as enemy combatant to be detained indefinitely  claims he was a relief worker 2. Hamdi American citizen. Scalia’s dissent a.a. Hamdan 1. Thomas a. being detained not punished 4. has authority to interpret 1. applies this rule of law to US via UCMJ 4. Congress authorized detainment through AUMF (clear and unmistakable) 3. case about govt. Habeas corpus statute not binding b/c statute didn’t apply to individuals who had already been detained  S. but limits Quirin to its facts a. UCMJ already existed b. caught in theater of war . although US rejected article 75 of Geneva Conventions S. Article 3 is violated b/c the commission before which he would be tried is not a regularly constituted court d. precedent that an individual detainee cannot claim protections of Geneva Convention a. 14 . NOT caught in theater of war b.

personal liberty at peril ii.a. domestic law incorporating international law b. who is eligible. pragmatic and vague b. and executioner iii. Kennedy (concurrence) a. Executive branch becomes judge. category 3: Congress specifically prohibited executive action i. vindicated importance of international law of armed conflict b. language may suggest it only applies to US sovereign territory a. not claiming authority to interpret international treaty c. nature of sites where apprehensions and detention took place 3. UCMJ imposes limitations  President exceeding limits 9. If Congress intends to suspend the right. or geographic region 3. President’s decision demands deference ii. Conservative Justices w/ dissent h. *living constitutionalism a. Liberal Justices w/ majority. balance factors depending on political climate of time iii. enforcing domestic law necessarily involves interpretation of international treaty 8. jury. Geneva Conventions apply to Al Qaeda 11. doesn’t define who can suspend. Suspension Clause 1. practical obstacles inherent in resolving the petitioner’s entitlement to the writ 4. AUMF gives President power to use all necessary and appropriate force iii. The privilege of the writ of habeas corpus shall not be suspended. category 1: Congress expressly authorized executive action i. an adequate substitute must be offered a. very vague a. enforcing UCMJ against President i. Policy a. Thomas (dissent) a. Habeas corpus review applies to persons held in Guantanamo and to persons designated as enemy combatants on that territory 1. citizenship and status of detainee and adequacy of the process through with that status determination was made 2. unless when is cases of rebellion or invasion the public safety may require it 2. 3 factors relevant to determining scope of suspension clause 1. prisoner meaningful opportunity to demonstrate he is held pursuant to an erroneous application or interpretation of relevant law. Article 21 of UCMJ provides congressional authorization for military commissions and AUMF 10. AND 15 . Habeas Corpus i. “rebellion or invasion” relates to US territory  rejected ii.

Kennedy majority a. and to consider relevant exculpating evidence 2. no argument that writ was suspended ii.the reviewing decision-making must have some ability to correct errors. even less access to lawyers ii. if you can execute you can merely detain f. keep detainees in Afghanistan 1. other clause in original Constitution interpreted narrowly i. majority suggest detainee must have access to exculpatory evidence b. distinguished from Quirin i. ex contracts clause c. ex names of co-conspirators leaked to Bin Laden during discovery d. however. potentially problematice 1. Boumediene can exercise writ from Guantanamo 3. not protecting separation of powers or rights of detainees 5. judiciary is protecting its own power. separation of powers necessary to protect individual rights i. protection of the writ is one of the few safeguards of liberty specified in the Constitution prior to bill of rights  apply broadly b. Scalia dissent a. Roberts dissent a. Suspension clause does not say either persons or citizens iii. S. DTA 2005 did not meet the burden of adequate substitute iv. Boumediene v Bush 1. Response: other options to avoid turning over confidential info i. . turn over to allies w/ even worse due process standards or torture practices 16 b. district judges might potentially order that classified evidence be turned over to detainee c. minor factual distinction  adversarial structure ii. to assess the sufficiency of the government's evidence.Ct. Hamdi distinguished i. Boumediene non-US citizen held in detention in Guantanamo 2. meant to protect persons not necessarily citizens ii. could not define necessary scope of habeus review for enemy combatant detention 4. not clear separation of powers is meant solely for the judiciary to have per se power to restrain executive d. English common law i. just because there wasn’t a case where the writ was extended to aliens being detained overseas doesn’t mean there wasn’t one e. foreign POWs tried quickly by military tribunal and executed 2.

the Constitution is silent on power to remove appointees except for ensuring tenure of all Article III judges “during good behavior” ii. case held that Constitution does not ensure writ for aliens held by US in areas over which govt. other public ministers and consuls. if such a case existed it would have been a big deal and it would have been recorded or it was so ridiculous no one would have brought one f. President 1. however. time in office temporary. Appointments Clause literally does not foreclose inter-branch appointments 2.. President’s power to remove is limited to cause enumerated i. ex removal for good cause b. Congress is free to vest the power to appoint a special prosecutor in the judiciary (Morrison v Olson) 1. no incongruity between the functions normally performed by the courts and the performance of their duty to appoint 3. Section 2: President is empowered with the advice and consent of the Senate to appoint all ambassadors. purely executive officers (cabinet members) at will 2. judges of the S. Appointment i. whose appointments are not herein otherwise provided for… but the Congress may by law vest the appoint of such inferior officers. jurisdiction is limited. as they think proper. Congress may provide statutory limitations on the President’s power to remove all other executive appointees a. congress can control by removing funding 17 . Congress can authorize the President. duties limited and they do not involve policy-making or large-scale administering of programs c.Ct. English tradition i. no distinction between Johnson v Eisentrager i. in the President alone. probably can remove high level. confined to the length of the project she has been assigned to work on j. not general d. Scalia response: Bush administration had released detainees who once released joined enemy forces e. writ did not extend beyond sovereign territory of crown ii. or the Heads of Departments to appoint inferior officers w/out advice from Senate 1. is not sovereign i. or in the heads of departments ii. Removal i. removable for cause by the AG b. inferior officer a. Under the Appointment Clause. Article II.iii. US be more discriminatory of who they capture 1. in the courts of law. Presidents other appointees must be confirmed by Senate iii. and all other officers of the US. the Federal Courts.

“advise and consent” clause was to assuage the less populous states ii. neutral non-partisan expertise established by Congress ii. holding: can remove for causes other than enumerated ii. Originalist i. ? 7. Congress can say under what conditions inferior officers can be removed. absent express language this default rule governs i. creating a 4th branch of govt. no direct authority to remove e. Originalists think all agencies should be abolished 4. Myers appointed postmaster of the 1st class by President w/ advice and consent of Senate for 4 years  fired by President after 2 years b. Independent Counsel (Special Prosecutor) Morrison v Olson a. not responsible to anyone but selves i.3. don’t want President to have law making authority w/out Congressional limitations f. but Congress cannot remove them d. postmaster is executive officer. FTC is quasi-legislative quasi-judicial so President can only remove for cause enumerated in statute e. “independent” agencies are not subject to President’s removal power a. here statute was clear and unambiguous c. small states managed to limit appointment power. power to remove is confined to Act of the AG c. Humphrey’s Executor v US a. removed by Roosevelt for political reasons  opposed to New Deal b. no violation of separation of powers 18 . quasi judicial/legislative b. preserving balance of authority between branches of gov. not removal power c. ii. Humphrey appointed to FTC by Hoover. officials for violation of fed crim law (exec branch usually does this) b. FTC is administrated body created by Congress d. but conditions of removal are legislative i. Myers v US a. departments action as agent of President 6. by default the power to appoint includes the power to remove. distinguishes Myers i. statute in Shurtleff vague and ambiguous. purpose: to investigate and prosecute high ranking govt. however purely executive branch positions can be removed by the President at will 5. distinguishes Shurtleff i. McReynolds’ Dissent: removal of officer is an executive action. preventing life tenures iii.

President not immune from civil cases while in office 1. Ind. Congress 1. Act does not unduly interfere w/ role of Executive Branch i. might recognize an absolute. Nixon’s arguments 19 . branch iii. US v Nixon 1. cannot give a government employee who is subject to removal by Congress any powers that are truly executive in nature k. unqualified Presidential privilege from judicial process under a claim of need to protect military. but rather is an inherent privilege necessary to protect the confidentiality of presidential communications 1. b/c Independent Counsel is inferior officer  does not interfere w/ ability to faithfully execute the laws b/c good cause provisions makes sure the counsel is still performing their duties and AG can remove if otherwise d. executive has some power in the initiation of the investigation e. all of the executive is vested in the President ii. diplomatic. Clinton v Jones vi. Nixon attempting to prevent the Watergate special prosecutor from obtaining access to “Watergate tapes” 2. object of statute to deprive President of exclusive control of ind. good cause limitation on the AG’s power to remove is not unconstitutional 1. balancing test: between the need for privilege and the sixth amendment need to present all evidence for litigation iv. no increase of powers ii. doesn’t undermine powers of executive iv. Counsel Act permitted to lapse) i. Congress retained no powers over Independent Counsel iii. executive privilege is not a constitutional power. purpose: 1. counsel f. Scalia’s dissent (academic reason why Ind. need for protection of communication  those who expect public dissemination of their remarks might self-censor to the detriment of decision making process v.i. Executive Privilege i. cannot give itself the power to remove an officer charged with the execution of laws except through impeachment 2. or sensitive national security interests iii. counsel not subordinate to anyone in exec. the court defines scope of executive privilege a. See Marbury v Madison  emphatically the province and duty of the judicial department to say what the law is ii.

Medellin files writ of habeas corpus d. President acting unilaterally cannot make law 4. National Security i. Bush issues memorandum that he is enforcing treaty e. Executive Privilege i. Impeachment i. Proc. Congress has domestic legislative power 20 . generalized interest in confidentiality not enough  cannot prevail over the fundamental demands of due process of the law in the fair administration of criminal justice 1. doesn’t have jurisdiction i.Ct. President does not have independent power to issue a memorandum ordering compliance w/ non-self-executing treaty that has not been effectuated by Congress  category 3 from Youngstown i. Medellin a. can be independent basis for Congress to adopt legislation b. Self-executing: do not require implementation by Congress 3. Bush memorandum does not make treaty domestic law ii. Non-self-executing: not effective until Congress passes legislation a. method House has to check President  no permanent bureaucracy to allow it to regularly investigate public officials 2. Mexican citizen committed murder b. could be used to impeach defendants’ testimony c. in a sense congress delegate impeachment investigatory role to executive branch AG better suited to investigate m. President has authority to require citizens to obey embargo when authorized by Congress 1. denied c. Response: judiciary is reluctant to intrude on such matters. treaty not self-executing  no law passed by congress f. subpoena violation of Fed Rule Crim. 17 limiting subpoenas to specific matters i.a. International law obligations do NOT automatically become binding domestic law 2. enumerated powers are important when it comes to legislative power a. Treaties 1. Response: Nixon not relying on communications between officials in the performance of their duties ii. used rarely 1. no national security claim l. intra-branch dispute so S. but they are not the basis of eliminating jurisdiction b. only invoking the broad claim of public interest iii. International Rule: must notify a foreign national that they can go to consulate for assistance  didn’t raise til too late. Response: tapes contained material relating to offenses.

Congress giving away authority to bank  independent body w/ no overriding control b. and all other powers vested by the Constitution in the Government of the US. category 1 of Youngstown d. within scope of constitution  act within sphere d. giving MD the power to tax is the power to destroy 1. is superior v. WWII  need to negotiate w/ foreign power VII. Congress has power to charter bank  necessary 1. when acting in its sphere fed govt. or any department or officer thereof ii. function to coin money. borrow money to go to war. where framers wanted necessary to mean indispensable they used absolutely necessary 2. The source of the Constitution’s power is the people NOT the states i. find a way to coin money w/out creating monopoly 2. MD tax is unconstitutional iv. conventions of people gathered in states ratified constitution c. end needs to be legitimate. inherent govt. Ex McCulloch v Maryland i. Congress authorized President to prohibit the sale of arms to countries engaged in armed conflict in Bolivia b. even if necessary bank is not proper a. regulating Congress. Necessary and Proper Clause i. MD imposed tax on all banks except state-owned banks ii. Implied Powers a. Sutherland wrote Humphrey’s Executor which limited executive power i. The National government has primary control over the question of the extent of its powers b. court possibly exaggerating powers b/c about to declare war e. Congress expressly forbade competition iii. control over foreign power is inherent of sovereignty so inherent to executive 3. defendant charged w/ conspiracy to violate statute c. long tradition to govt. ex US v Curtiss-Wright Export Corp a. not necessary a. must have money to carry out responsibilities iii. monopoly i. improper for congress to delegate to private entity 21 . “dissent” Jackson’s veto message 1. power to coin money. distinguished from executive power and foreign policy a.2. chartered monopolies ii. Congress shall have power to make all laws which shall be necessary and proper for carrying into execution the foregoing powers. Necessary = convenient 1.

b/c this is production not commerce c. Gibbons running steam boats between NY and NJ licensed by Feds 2. Sherman Act. Congress won’t abuse power. a. child labor 2. hypo: canal going from West NY to east NY 1. direct/indirect effects test (wooden ship) 1.b. this is commerce 5. original intent argument: everyone at time of constitution knew commerce included navigation iii. if overstep removed through elections v. mining. fed govt. interstate shipments of lottery tickets 2. and parts of nations. NY gave Ogden exclusive right to water 3. can control vii. a moral plague that will affect all the states  only Fed govt. shipping goods across state lines 2. no monopolies 3. Sherman Act unconstitutional. power granted to copyrights and patents NOT bank VIII. Hamber v Dagenhart 1. Majority thinks of lottery as a pestilence . in all its branches. founders didn’t want to give Congress power to grant monopoly charters i. includes navigation  includes embargos (restriction on navigation) 1. Champion v Ames 1. Commerce Clause a. Clause 3 empowers Congress to “regulate commerce with foreign nations and among the several states. manufacturing. ex EC Knight 1. def of commerce: commercial intercourse between nations. Gibbons’ license constitutional  commerce clause. direct: shipping goods across state lines  regulated by fed govt. and is regulated by prescribing to carry on that intercourse i. Gibbons permitted to run ships 4. Historical NOT GOOD LAW i. “Substantial Economic Effect” 22 . commerce is “undoubtedly” traffic ii. and production ii. Article I. Justice Marshall a nationalist  does not strictly construe constitution a. Section 8. Sugar company acquired nearly complete control of manufacture of refined sugar 2. ex Gibbons v Ogden (very broad authority) 1. doesn’t stop at state lines iv. and with the Indian tribes” b. logical extension from Gibbons  fed govt. Supremacy clause. everyone on boat going to Philly 2. indirect: producing goods to ship across state lines  no fed regulation a. Fed license trumps state license 6. can regulate (slippery slope?) vi. can’t regulate goods made by child labor  the goods themselves are not inherently bad  distinguished from lottery tickets d.

that either in itself or in combination with other activities has a substantial economic effect upon or effect on movement in interstate commerce 1. no factual findings made by Congress on the affect of guns in school zones i. Ollie’s BBQ only served blacks in carry-out window.Congress has power to regulate any activity. ex Wickard v Filburn 1942 a. commercial activity: keeping wheat out of interstate market. no advantage that fed govt. will have substantial effect on interstate commerce and undermine the agricultural regulatory scheme of Congress 2. local or interstate. no guns in school zone act b. aggregation: if all restaurants refuse to serve blacks it will have a substantial impact on their ability to travel interstate e. Ex Lopez 1995 a. Agricultural Adjustment Act limited supply of wheat c. has in prosecuting those w/ guns in school zone ii. navigable highways or waterways ii. non-commercial activity b. holding a gun is not inherently tied to economic like wheat d. 2. Power Not Unlimited – 3 options i. purely local. Regulate the channels of interstate commerce 1. statute didn’t even specify guns that moved in interstate commerce f. not substantial impact on interstate commerce i. in the aggregate. no jurisdictional hook. 1. nothing to do w/ commerce/broader regulatory scheme ii. . criminal statute i. OR iii. 48 states have laws like this. distinguished from Wickard 1. guns in school zone do not substantially effect interstate commerce c. this act exerted substantial impact on interstate commerce i. * placing restrictions on commerce power was huge impact on legal community 2. criminal activity is local not commercial activity 23 i. VAWA Morrison raped b. Regulate activities that have substantial effect on interstate commerce 1. farmer growing wheat on own land to feed family and livestock i. Regulate the instrumentalities of interstate commerce and persons and things in interstate commerce. Congress does not have plenary police power i. refused to seat them although whites were allowed to dine in b. state regulation. 3. local police will be catching gun carriers in school zones e. ex Katzenbach v McClung a. Ex Morrison 2000 (more limitations on Commerce power) a.

Raich isn’t engaging in commercial activity. Dissent: O’Connor i. Dissent: Thomas i. Concurrence: Scalia i. pot not being sold e. medical marijuana grown in CA and given to CA residents authorized by state law to use medical marijuana  commerce clause gives Congress to regulate under CSA c. applied rational basis test b. findings of Congress that VAWA effects commerce rejected by Court iii. Ex Gonzales v Raich 2005 (expanding commerce power) a. but regulating commerce i. need to regulate trivial instances to protect overarching regulatory scheme  legal pot creeping into illegal pot market 1. overarching regulatory scheme MUST be about commerce ii. Federalism: results of rational basis test is assuming CA won’t be able to enforce its own laws h. weakness: there can be economic that is not commercial g. US v Comstock 24 . commerce clause not about regulating economic activity. part of economic class of activities that has a substantial effect on interstate commerce - Congress rational basis for believing failure to regulate intrastate marijuana would have negative effect on CSA i. distinguishes Lopez and Morrison: neither regulated economic activity i. aggregation principle only involves something that involves commercial activity 3. marijuana is a commodity with an established interstate market f. cites Wickard: can regulate if undercuts broad regulatory scheme i. economic: b/c Raich consumed marijuana engaging in economic activity i. broad interpretation of necessary and proper ii. doesn’t need to be substantial f. and if she is that means everything can be regulated ex staying home in watching kids b/c you are not paying for day care ii. weakness: farmer was clearly a commercial farmer. if you can regulate all marijuana you can regulate trivial instances iii. difficult to distinguish between local marijuana and marijuana grown elsewhere  diversion into illicit channels d. similar aggregate effect ii. not good enough 2. Implied Powers i. distinguished from Lopez: State AG’s asking feds for help 3. even in aggregate.1.

so it is necessary and proper to assert custody if the individuals are not ready to be released due to mental illness 5. wants to narrow N & P  typical Thomas 12. 3. but not here b. approved of rationale basis in Raich. fed govt. has authority under the Necessary and Proper Clause to require the civil commitment of individuals already in Federal Custody a. Alito (concurrence) a. govt. states have option to take custody of prisoners 8. statute’s accommodation of state interests. has responsibility for the criminal’s potential danger to others 3. 10th amendment truism b.Ct. additional assertion of federal authority  rehab starts after sentencing 6. similar to statutes of committing fed inmates who are not mentally competent  long history of behavior by bureau of prisons a. 4. not mere conceivable link 11. congress has authority to create jails to punish violators of fed crim statutes. does not infringe on state authority a. jail for 15 years  no domicile b. no enumerated power in constitution b. previously stated long practice irrelevant ie line veto 7. commerce clause requires tangible line. so fed govt. S. part of commerce power: necessary and proper to have jails to effectuate commerce power  necessary and proper to civilly commit people in those jails who are not fit to re-enter society 9. Scalia (joined Thomas in dissent) a. joined narrowest opinion after writing broad opinion in Raich 25 . transferred to 3 prisons. N & P proper for 5 reasons a. Kennedy (concurrence) a. so now it is their problem i. created this problem for defendant. Thomas (dissent) a. the feds are responsible for them while they are in prison 4. to take responsibility 13. fed govt. it makes sense for fed. so under that limited circumstance. already has custody in fed prison. 5. 2. committed crime in GA. long history of federal involvement in this area. necessary and proper for fed govt to say that once they have custody. fed govt. unclear which state is responsible.breadth of N & P clause. Comstock deemed sexually dangerous individual before release 2. statute’s narrow scope 10. sound reasons for statute’s enactment in light of the government’s custodial interest in safeguarding the public from dangers posed by those in federal custody.1. 1. if not enumerated power then N&P can’t give you power c. no enumerated power to set up fed prison system b.

5 limitations on spending power i. Congress can tax and spend for the general welfare 1. must be related to federal interest in particular national projects of programs iv. recognized as a constitutional prohibition 3. 10th amendment not a bar b. general welfare  defined by Congress ii. concluded that Congress could not regulate local agriculture through Commerce clause. non-coercive 1.b. distinction: dangerous sexual crimes not inherently commercial c. at this point in time 10th amendment mere truism a. ex Butler i. other constitutional provisions may provide an independent bar to conditional grant of federal funds 1. Congress must unambiguously condition the States’ receipt of federal funds iii. not a violation of 21st amendment a. so it could not regulate through taxing and spending ii. the statute is not about safe highways.Ct. SD permits persons under 21 to buy beer. here pressure NOT compulsion only deprivation of 5% c. 21st amendment seems to ban Congress from regulating alcohol market b. O’Connor Dissent i. S. case is about spending power NOT commerce power d. it is about alcohol regulation iii. teens are not the only drunk drivers 26 . Spending Power i. this is a facial challenge v an as applied challenge g. statute directs Sec of Transportation to withhold highway funds from states who allow persons under 21 to buy alcohol b. cannot violate any specific constitutional prohibition a. before 10th amendment was mere truism. Dole a. not regulating  taxing and spending v. South Dakota v. independent constitutional bar limitation on the spending power is not a prohibition on the indirect achievement of objective which Congress is not empowered to achieve directly 2. the term “general welfare” is “not limited by the direct grants of legislative power enumerated in the Constitution” (Hamilton’s view) 2. not related to federal interest ii. persuaded by Thomas’s essentially twice removed from commerce power d.

but the burden is too high on interstate commerce 2. prevent states from undermining common market/expanding police powers 4. discriminates against interstate commerce 1. States prohibited from passing legislation that i. power over national subjects demanding a nationally uniform scheme of regulation belong exclusively to Congress iii. power is not explicitly declared “exclusive” in Constitution ii. standard of review: strict scrutiny. Congress did not delegate anything. burden out of state commercial entities i. the power over local subjects in interstate commerce is an interstate commerce power. weigh local interests and fed interests 4. state law banning double and triple truck-trailer rigs b. should look at how the money is spent 1. treating out-of-state commercial entities differently from in-state commercial entities to the advantage of the in-state commercial entities 3. ex Cooley v Board of Wardens 1. Pike balancing test a. more serious infraction 2.iv. States permitted to regulate interstate commerce to some extent b. does not treat out-of-state commercial entities differently from in-state commercial entities. pilotage is not a national subject and therefore can properly be regulated by the states 3. Congress can delegate its interstate commerce regulation to the states i. no restriction on how money is spent. pilotage regulations are usually safety-related and not particularly commerce-related  within state police powers c. regulation the states are free to act iv. Dormant Commerce Clause a. courts more lenient 3. it just limits drinking age IX. Ex United Haulers v Oneida-Herkmer 27 . legitimate local interest b. long detours around state ii. non-discriminatory  burdens in and out of state trucks c. state pilotage law 2. Ex Hypo tractor trailer law a. inordinately burdens OR 1. incidental effects on interstate commerce are valid unless the burden imposed is clearly excessive in relation to the putative local benefits b. so Congress can regulate it if it wants to. courts don’t care if alternative is twice as much or less effective 5. no adequate alternative i. but in the absence of fed. difficult for states to meet a. Daniel concurrence a.

if congress explicitly allows a regulation that would otherwise violate the dormant commerce clause judicial precedent. inhabitant of state in which elected ii. natural resources limits iii. which is dispose of garbage  no protectionist interest e. there is a protectionist local interest  sanitation workers protection jobs ii.X. doing what states traditionally do. existence of foreign commerce not just interstate commerce  implicates federal foreign trade agreements iv. can’t use role as a market participant to regulate something else ii. law required to bring waste to private processing facility. citizen for 7 years. Article 1 Sections 2 and 3 i. wealth. it can discriminate or burden as long as it doesn’t fall into 1 of the 3 exceptions i. no downstream regulation 1. citizen for 9 years. Congress can also claim that something is an exclusive area of fed regulation ex ERISA State Control Over Federal Elections (US Term Limits v Thronton 1995) a. law requiring all trash and recyclables generated within the 2 counties to be delivered to state owned processing facilities b. criminal background qualifications 28 . most trash is actually disposed of in private places by private companies. states are allowed to regulate i. minimal qualifications 1. traditional state function doctrine is unworkable d. UNLESS the state is a market participant (rather than a regulator). Senate: 31 years old. Not discriminatory: all private companies being treated equally d. state can put any restrictions on sale of goods 2. Not a violation of dormant commerce clause c. sold timber on the market  only sold timber to buyers who would bind selves contractually to have the timber processed in Alaska 2. Alito dissent i. a. here waste facilities owned and operated by state-created public benefit corporation f. House: 25 years old. distinguishes Carbone i. must reside in State they represent at time of election iii. Ex South-Central Timber Development v Wunnicke 1. NOT a market participant  Imposed downstream regulation a. the processing condition had a substantial regulatory effect outside of the sale of timber market e. state of Alaska had proprietary ownership of logs and timber. no property. sovereign act of the state. so majority is incorrect in saying disposing of trash is inherent job of state iii.

Reasoning (Stevens Majority) i. an amendment is required to change the qualifications set out in the text of the constitution c. if put a restriction on a fed election. Arkansas statute is an attempt by the states to do indirectly that which they could not do directly d. it is given to states under 10th amendment a. fed govt. if power isn’t give to fed govt. Constitution created national sovereignty. Bernstein: weak. at time of amendment states exercised no powers over qualifications 3. Congress could not add additional qualifications beyond qualifications clause b. “Rotation” (ie term limits) was rejected at Constitutional convention vi. weakness: Powel about Congress not states 5. is one of enumerated powers 29 . Powel Precedent a. Congressmen owe allegiance to the people of the US as a whole and not the people of the states 1. States reserve time. didn’t do this for anything else 3.. relying on the same constitutional principles and background to reach opposite conclusions ii.b. questions majority’s interpretation of the work “reserve” 1. Fed govt. places. Federalists: didn’t want states interfering w/ fed elections a. States are not permitted to adopt their own qualifications for congressional service i. Thomas dissent i. states could not have reserved this power b/c Senators and Reps didn’t exist until Congress came into existence 4. framers considered adding a pro-term limits clause  rejected 2. must put it on state b. basing this on idea that states reserved only those powers not ceded to the national govt. any other power regarding elections would also have to be delegated v. Constitution derives authority from the consent of the people 1. incoherent to assert that the people of the states could not reserve any powers that they had not previously controlled iii. Qualifications in Constitution are meant to be exclusive 1. *unusual argument for Stevens  living constitution 4. and manner of elections 1. so states could have no claim to national sovereignty iii. power delegated to states by Constitution 2. reserved powers to the states only applies to powers possessed by the states at the time of the amendment 2. paid out of state treasury iv. sovereign in own sphere th ii. can reserve things prospectively ie reserve a table in a restaurant 2. 10 Amendment 1.

3. electoral college undermines majority’s uniformity argument v. pointed out fed govt sovereign in own sphere 2. presidential election not based on state interests 30 . National League of Cities: congress can regulate states. and not reserved by the states are given to the people of the states th 4. so all equally able to pursue activities even if unorthodox b.XI. assuming fed elections are inherently matter of fed sovereignty  Thomas only things in fed sphere are enumerated powers Dual Sovereignty a. democratic: this is what people of Arkansas choose to do e. holding: transit authority not immune from minimum wage requirements of Act iii. rather than judicially created limitations b.Ct. Inconsistent w/ established principles of federalism 1. Senate is elected by popular vote not state legislatures b. facts: San Antonio Transit System did not adhere to Fair Labor Standards Act ii. the line between traditional state functions and non-traditional state functions is impossible to draw in any coherent way 2. Electoral college: although still vote state by state. this is fed elections  fed sphere  fed sovereign ii. state laboratory is byproduct of federalism not reason for it v. Garcia: S. but writes majority Garcia 1. rather than judicially created limitations 2. Rule: State sovereign interests protected by procedural safeguards within the structure of the federal system. 5-4 decision iv. people reserved power a. consistent w/ Lopez 1. Kennedy concurrence i. any powers not given to fed govt. not clear if any zone of activity that is reserved for the states free from congressional legislation 1. sovereignty of states limited by Constitution vi. state sovereign interest protected by procedural safeguards within the structure of the federal system. even if states did not reserve power. Bernstein’s response: states want sovereignty i. unworkable 1. has abandoned “traditional state function” doctrine  overruled National League of Cities i. weakness a. States are laboratories of democracy a. but not within “traditional state functions” c. 10 amendment a barrier from fed govt infringing on powers of state AND people iv. Blackmun joined majority in National League of Cities. weakness 1. all states regulated.

Stevens Dissent a. Powell modern conservative. Supremacy Clause  doesn’t mention state legislature/exec branch 5. Powell’s dissent 1. power over state g. history has shown there needs to be active protection of states vii. residual state sovereignty a. Congress cannot give a state legislature a direct order to enact a particular law 1. Blackmun growing liberal 4. for overruling Wertz with National League and then overruling it in Garcia 3.16th Amendment: fed income tax  larger fed govt. New York v US ii. Maryland v Wertz: Fed govt. attack S. Brady Handgun Act required state CLEO to do background check on prospective handgun purchaser 2. itself c. New York v US: US can tax the states/state entities i. No commandeering Allowed  the States are not Sub-agencies of the Fed Government i. overall trend: expansion of fed govt. can regulate states so long as the regulations would not lead to utter destruction of the state f. Constitution only requires state Judicial branches to apply fed law a. Printz v United States (Scalia Majority 5-4) 1. must tax the states the same way it taxes private enterprises e. 10th amendment made explicit residual state sovereignty in conferral of enumerated powers of congress 8. Textual argument: under Articles of Confederation there really was no national exec branch so state exec branches were used a.Ct. Brady Act unconstitutional  commandeering 4. not proper to directly interfere w/ state authority 7. should not let political process police a constitutional boundary 5. the very existence of an exec branch at national level implies the exec and not the states are relied upon to execute national laws 6. she had to provide written reasons of why the sale was illegal 3. if the CLEO chose to notify the dealer of an illegal sale.Ct. Congress cannot give a state’s executive branch to enact or enforce a federal law iii. should state the law d. looks to Garcia that protection of state sovereignty lies in the structure of fed govt. 31 . ignoring principles of stare decisis 2. S. attacking Blackmun for switching teams a. growing at expense of states d. the law is not proper for executing laws so can’t rely on necessary and proper clause for authority a.

Driver’s Privacy Protection Act 2. not action on behalf of state i. Reno v Condon 2000 1. does not apply to Seminole Tribe e. Congress must be acting pursuant to section 5 of 14th amendment 2. Alden v Maine 32 b. acting within power that allows congress to abrogate 1. . is Garcia being accepted 9-0. 2nd requirement not satisfied 1. law passed under section 5 of 14th amendment (enforces 1st 4 sections) c. case relied on interstate commerce clause to abrogate state sovereignty b. AND ii. majority decision harms federalism  now create vast bureaucracies to implement policies h. court overrules Pennsylvania v Union Gas a. provided unmistakably clear state of intent to abrogate iii. Underlying principles of Garcia challenged by Printz i. Ex parte young does apply. 11th Amendment i. recognized common-law doctrine of state sovereignty v. explicit statement from congress. 2 conservative justices left  don’t know how similar cases will go down ii. court not willing to broadly expand Printz? Sovereign Immunity a. allowing this would eliminate almost all state sovereignty at the whim of congress b/c almost anything is considered a commerce power c. in the nature of sovereignty the state cannot be sued w/out State consent b. each state is sovereign in federal system iii. they were being prohibited from doing something 3. Souter dissent 1.XII. statute met 1st abrogation requirement. States have Sovereign Immunity UNLESS i. majority putting a novel gloss on it d. 9-0 decision 4. statute: tribes permitted to sue states in fed court when process of negotiating a gambling compact between state and tribe breaks down b/c of state’s alleged bad faith ii. 5th in Union Gas agreed w/ conclusion not reasoning iv. Ex parte Young: if state official doing something illegal. Printz didn’t govern b/c states weren’t being forced to do anything. thus plaintiff can sue state official for injunction to prohibit state official to continue the behavior which indirectly restrains state ii. make-up of court is changing. Ex Seminole Tribe v Florida i. applies to diversity jurisdiction ii. common law always subject to legislative amendment 2. new constitutional structure should inform common law and change it to conform to dual sovereignty 3.

Majority grouping all states as discriminators on the actions of only some b. big federalist and not known for stretching for sex discrimination b. Why is Rehnquist writing this opinion a.XIII. connection to violations is tenuous 8. prevent O’Connor from flipping? d. i. congruence: only abrogate on the strength of finding a widespread pattern of state activity that violates 14th amendment 3. Kennedy majority 1. purpose: states that subvert private contract invite discord and even civil war i. Tennessee v. sides w/ majority to assign opinion to self? c. just b/c some states violating 14th amendment does not mean all state sovereign immunity should be abrogated 7. Garrett 1. Kennedy Dissent a. Scalia dissent a. ADA provision that allowed a private lawsuit against states for monetary relief in cases where employment discrimination was alleged was unconstitutional (beyond § 5 14th amendment power) 2. Lane 1. followed Hibbs looser showing of congruence and proportionality Individual Rights and State Power -. the doctrine of state sovereign immunity from suit by private individuals in its own courts is unalterable except w/ constitutional amendment f. When Congress abrogating states’ sovereign immunity from suits for money damages its exercise of powers under section 5 of 14th amendment must be congruent and proportional i. intermediate scrutiny used for sex discrimination cases 4. unlike racial discrimination. not a remedy for violations of 14th amendment  entitlement program b. Federalist #44 33 .Contracts Clause a. 11th amendment applies to states individually i. discrimination likely justifiable under rational basis test iii. Congruence  discrimination here  widespread discrimination by private sector 5. later opinions can be factually distinguished ii. principles not disturbed i. family medical leave act that authorizes one who alleges a violation to sue his employer 2. Proportional: points to unspecified limitations on applicability of FMLA 6. discrimination based on disability status must only meet rational basis test 3. involved an interference w/ due process  heightened standard of review 2. application of underlying doctrine ii. Nevada Department of Human Resources v Hibbs (Rehnquist 6-3) 1.

contrary to reason and natural law the state should be permitted to revoke contracts  response: would always claim to be revoking b/c of corruption b. problem: police power is somewhat undefined f. Miss legislature gave charter to run lottery  later revoked 2. includes right of state to protect morals of state citizens b. permitted to revoke  acting within police power a. lotteries area moral pestilence ii. 3. 5 criteria 1. rights of personal property should be held sacred b. Fletcher v Peck (Marshall) 1. Contracts Clause prohibits states from passing legislation that applies retrospectively i. people can’t be secure if property is dependent on whims of govt. Gunn buys land from GA through land grant. the state legislature had declared in the Act itself that an emergency protection was needed 2. worried about interfering w/ state police/eminent domain powers d. the relief was appropriately tailored to the emergency that it was designed to meet 4. state law was enacted to protect a basic societal interest. to enforce contracts 2. depression 34 . the state cannot impair the obligations of a contract for which the state bears responsibility i.1. Johnson’s concurrence a. who sold to Fletcher 2. Ogden v Saunders c. law that negates all property rights established under an earlier law is unconstitutional for violating the Contract Clause 5. not a favored group 3. Impairment clause applies to executory and executed contracts e. * all 5 must NOT be met to be constitutional  balancing test ii. GA legislature rescinded prior land grants 3. protecting Americans’ personal security and private rights ii. the imposed conditions were reasonable 5. Rescission of prior land grants unconstitutional a. State Legislature cannot bargain away police power and contracts clause can’t prevent this i. natural law reasoning 4. Joseph Story 1. illustrates morality of keeping obligations  states should encourage 2. Stone v Mississippi 1. sold to Peck. legislation was limited to the duration of the emergency 6. a state can pass legislation that affects future contracts ii. Since contract clause is general. you can interpret it broadly in an emergency to protect public interest as part of police power i. Home Building & Loan v Blaisdell 1933 1. citizens can expect govt.

Principle reason for adoption of Constitution and rejection of Articles of Confederation was the need to curtail state sovereignty b. Southerland Dissent a. fundamental rights 2. didn’t meet new state pension law 2. pension benefits not generally subject to state regulation Individual Rights Limitations and State Power – Applying Bill of Rights to States a. despite this. bill or rights was enacted to protect people from fed govt. operating in an area already subject to a lot of regulation b. the Bill of Rights applied only to the federal govt NOT states i. No. Barron v Baltimore 1. Allied gave pensions plan. extend the period of time in which those in default could redeem and allow defaulters to remain in home 3. . ex post facto clause. the clauses that specifically mention the states ONLY apply to the states iii. applying to states would defeat original purpose of bill of rights iv. weakness a. Selective Incorporation Test i. right to trial by jury 7th amendment ii. constitution can’t mean 1 thing in an emergency and 1 thing during another time iii. contracts clause 4. retroactively modified compensation that Allied agreed to pay. changed obligations in an area where reliance was vital 3. the 5th amendment did not prevent the City of Baltimore from taking private property w/out just compensation ii. adds additional factor a. Prior to the 14th Amendment. protect rights in Bill of Rights that are essential in the scheme of liberty 1. Now. emergency does not furnish the occasion for fed govt to seize authority they couldn’t otherwise exercise b. Allied Structural Steel Company v Spannus 1. several states determined bill of rights applied to states c. textual reason 1. right to an indictment in 5th amendment b. law did not meet any of 5 characteristics so violation of impairment clause a. Historical reason 1. met all 5 factors so not an impairment on contracts 4. ex not fundamental a. framers knew how to specify amendments to the states if they wanted to a. Palko 35 2. nothing in bill of rights that says it applies to states 3. Minnesota law delayed period of time in which mortgage foreclosures could be finalized. rights implicit in order of liberty 3. in constitution specific provisions that explicitly say they apply to states 2. 2.XIV.

denied jury trial 36 1. 14th amendment guarantees a right of jury trial in all criminal cases which were they to be tried in fed court would come within the 6th amendment’s guarantee 2. . not incorporated against states 3. didn’t do this b/c contradictory to Slaughterhouse iii. *later overruled 6. Adamson v California 1. Duncan v Louisiana 1968 1.Palko appealing being tried twice for murder  double jeopardy 2. framers describe BOR as “chiefly defined” meaning not exclusively defined iv. looking to natural rights (unusual for him) c. argument against BOR was fear that people would think list was exhaustive ii. possible redundancy. would have eliminated redundancy ii. CA commented on his failure to take stand and testify during murder trial 2. weakness a. black. emphasis ii. but only rights in bill of rights b. avoid subjective judicial activism c. believes test to be subjective to ideals of justices d. explain what due process means and includes iii. Duncan. convicted of battery. not protected under privileges and immunities i. Black dissent a. if due process includes freedom of speech. bill of rights is an objective source i. every right in bill of rights protected from states. framers wrote down most essential rights ii. weaknesses i. 5th amendment right against self-incrimination was not implicit in the concept of ordered liberty a. but not contradiction b. why is there a 1st amendment i. Frankfurter concurrence a. these rights are fundamental d. if framers wanted to incorporate against states they easily could have said so b. double jeopardy does not violate those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions 4. creating bright-line objective test i. not incorporated against states 5. double jeopardy did not subject him to hardship so acute and shocking that polity could not endure it 3. look to heritage of past to determine which rights are fundamental 4.

Ct.3. did not defer to president’s or congress’s constitutional interpretation and held RFRA unconstitutional  exceeded § 5 14th Amendment powers 4. different than in racial discrimination contest nd e. disagrees w/ selective incorporation d. S. Bernstein’s response: minority religions don’t get what they want legislatively and are often excluded i. 2 amendment is incorporated against states i. in this context. RFRA extremely broad and attacks ability of states to enforce all kinds of laws ii. The appropriateness of remedial measures must be considered in light of the evil presented ii. prior acts like FMLA in Hibbs pretty discrete issues i. City of Boerne v Flores 1. Smith facially neutral law aimed at problem that also involved religious rights  not entitled to accommodation b. violated historic building zoning laws 3. the case is about zoning. Harlen dissent a. RFRA not proportional to evil presented a. Ct. distinguished from voting rights  no direct analogy between racial discrimination and religious discrimination b. every possible regulation could potentially interfere w/ someone’s ability to exercise their religion d. ex Sabatarian couldn’t be a fireman if firemen are required to work on Saturday c. RFRA required strict scrutiny whenever a state law of federal application substantially burdens free exercise of religion 2. Congruence and proportionality test i. exercising authority under Section 5 14th amendment iii. S. nothing fundamentally unfair about trial  no particular reason jury trial would be inherently fairer than bench trial b. last case over religious discrimination was over 40 years old. tended to incorporate criminal procedures when faced w/ sympathetic black defendants from the south 4. Heller: ban on firearms unconstitutional at federal level 37 . there must be a congruence between the means used and the ends sought to be achieved. doesn’t really relate to religious discrimination iii. church wanted to tear down building. When Congress passes a remedial law that intrudes into the legislative sphere of the states. Congress passed RFRA as reaction to Smith decision allowing states to outlaw peyote in applicable rationally based drug laws although peyote used in religion a. Congress does not have a type of necessary and proper power  need strong showing of need for remedial legislation i.

more pure form of orignalism c. ignores 19th Cen. Stevens dissent a. also abolishes “badges of slavery” ii. S. locate nexus of substantive rights in privilege and immunities clause could lead to gay marriage. look to history. long recognized. cases occurred prior to selective incorporation  jurisprudence evolving. dislike for gun rights 6. McDonald v Chicago(plurality) 1. dissent i. in many state constitutions. must look to modern realities relating to right at issue ii. 13th Amendment abolishes slavery or involuntary servitude i. don’t look to moral philosophy or other western societies ii. distinguished from Black i.XV. etc 4. use standard from Palko  whether right is fundamental to liberty a. Thomas Concurrence a. King George III attempted to de-arm colonists  huge outcry b. precedent that 14th amendment does not protect right to bear arms a. temper history w/ modern realities 3. lead to carnage in the streets. mocks originalist argument that privileges and immunities clause should be used to incorporate right to bear arms during oral argument b. historical fundamental right to American people. 38 . 2nd amendment is fundamental i. right to self-defense. not making original public meaning of drafters and average voters argument 5. this right puts people’s lives in danger Individual Rights and State Power --State Action a. plurality i. health care. doesn’t really look to modern society  ancient right w/ modern resonance c. more concerned w/ effects of the interpretation i.Ct. Scalia Concurrence a. not reason to adhere to these precedents when haven’t done so when interpreting other amendments 2. suggested overturning Slaughterhouse  right to bear arms privilege of American people b. quotes various people from founding era that 14th amendment incorporates bill of rights and other rights d. Breyers dissent a.

Shelley v Kramer i. judges in state courts enforced covenants 2. if have a license then acting as a state  can’t discriminate th 4. courts would not enforce  equal protection problem 6. 14 amendment only protects against state action 1. slavery. th 39 . civil rights include not just traditional rights to inns and trains but more peripheral access to theaters a. 13 and 14th amendment not redundant  14th amendment clarifying a. protects against exclusions from very basic rights. do not want to give police power to Congress c.1. 3rd party would need legitimate interest to intervene  racial discrimination is not legitimate interest 4. customs that have force of law that take something from individual w/out consent 2. so must act in non-discriminatory way 3. restrictive covenants  can’t sell to blacks  neighbors can sue to enjoin ii. restraints and alienation strongly disfavored 5. etc 14 amendment does not control private action only state action i. but didn’t have civil rights th iii. limited to facts b/c of 1 statement 1. discriminatory state action 1. beyond § 2 of 13th amendment and § 5 14th amendment ii. public accommodations portions of Civil Rights Act of 1875 unconstitutional 1. building highways to separate races iii. Harlan Dissent 1. sun-down towns 3. ex serfdom. essentially a state actor. enforcing terms of contract against someone who is not a party to the contract a. free people of color prior to civil war were not slaves and had basic rights of free people. exclusion from public accommodations not a badge of slavery 1. contracts. freedom from racial discrimination d. due process. not merely enforcing a contract as a contract 3. state. Civil Rights Act Cases 1883 i. if they were operating against whites. public accommodations exist through public license. Bernstein  need to enforce everyone’s rights b. system of encouragement of discrimination by local. Black Codes. restrictive covenants only enforced against minorities a. even fed govt a. gives people basic civil rights iv. states circumvented i. equal protection of the laws is not achieved through indiscriminate imposition of inequalities 2. being excluded from public accommodations is a badge of slavery 2. states cannot have explicit racial zoning b. buyer and seller parties.

1 year of employment iv. Univ. Univ. would apply to private actors e. here govt. father beat child so bad he is now brain damaged iii. Roth did not have a constitutional right to a statement of reasons and a hearing on the University’s decision not to rehire him for another year iii. state’s failure to protect individual against private violence is not a violation of Due Process v. cabining prior liberal courts discretion of 14th amendment 2. only thing to do when there is abuse is call state services b. did not impose such a stigma or disability that foreclosed his freedom to take advantage of other employment opportunities 2. if we took this seriously all the rules that applied to govt. Due process does not provide individuals affirmative rights to governmental aid i. even if the aid may be necessary to secure the life. Dissent 1. engage in common occupations. marry. Unless Special relationship  state must take action i. hired as assistant professor for 1 year. Special relationship did exist 2. did violate due process by not protecting child Individual Rights and State Power--Procedural Due Process a. but did not remove child ii. worship God in own way. custody 1. bring up children. Liberty Interest i. has crowded out others from assisting child a. child abused by father. those in mental institutions g. and enjoy privileges long recognized as essential to the orderly pursuit of happiness by free men b. social workers reason to believe child was abused. Property interest i. Board of Regents v Roth i. contract not renewed ii. No special relationship  child not in custody of state iv. don’t want to turn courts into social service agencies vi. no violation of liberty interest 1. establish home. in declining to re-employ Roth.XVI. if govt. must have legitimate claim of entitlement c. not just freedom from bodily restraint ii. prevents you from allowing to engage in self-help they must intervened 3. acquire useful knowledge. or property interests of which the government itself may not deprive the individual f. DeShaney (Rehnquist) i. gave Roth what they agreed to. liberty. 40 . ex prisoners. must be in govt. also the right of individual to contract. no violation of property interest a. relationship prevented anyone else from helping child 4. govt. motivation 1.

right to trial. Eldridge disability benefits were terminated after review of medical records  right to seek reconsideration iii. cross-examine witness. just coming up w/ what it thinks is a fair system ii. objects to judicial law-making  majority just inserting own morals and ideals into the opinion v. no property interest v. Dissent 1. at this time movement to include positive rights 2. says he was fired d. right to counsel 2. terms of employment secured property interest for 1 year 2. somewhat limited to facts e. the extent to which procedural due process must be afforded the recipient is influenced by the extent to which he may be condemned to suffer grievous loss. violation of property right 1. so Due Process Clause in 5th Amendment. ridiculous  fugitive slave act iii. not 14th ii. no provision for renewal. every citizen who applies for govt. Douglas a. and depends upon whether the recipient’s interest in avoiding that loss outweighs the governmental interest in summary adjudication 2. Mathews v Eldridge (Berger Court) i. balancing test 1.. Goldberg v Kelly i. here government interest of conserving essential resources are not overriding in welfare context iv. court assuming welfare a property right (conceded by NY) 3. Distinguishing Goldberg 1. Marshall a. more elaborate procedures available than in Goldberg 41 . hob is entitled to it unless the govt.1. not state. Due process requires pre-termination hearings for welfare recipients 1. termination of aid pending resolution of a controversy over eligibility may deprive an eligible recipient of the very means by which to live while he waits 2. Evidentiary hearing is not required prior to the termination of disability benefits iv. discuss violation of 1st amendment for Roth’s view on civil rights b. challenging act of fed govt. Black’s dissent 1. purpose to give well-being to all people in the borders i. court using constitution to interpret own morals and ideal a. S. but if you are on disability you have other means of income ie welfare 2. if you’re on welfare you have no other means of income. can establish some reason for denying employment 3. more conservative justices than on Goldberg court 3.Ct.

42 . Alabama state legislature malapportioned  no action in decades 2. devised new reapportionment schemes a. TEST 1. both houses in state bi-cameral legislature must be apportioned as nearly as is reasonably possible a. was it objective 3. representation by county 3. neither came close to achieving numerical equality b. this case is the standard vi. 1 vote. doesn’t care what your reasoning is  must draw lines by population a. Bush v Gore a. weigh societal and administrative costs against benefits to individual 4.Ct. 1 person.XVII. medical examiner  assuming neutral party b. interpreting facts/evidence in way so they don’t have to give benefits v. no vote dilution 5. constitution’s equal protection rights are individual and personal in nature b. Equal Protection Context ii. Equal Protection rationale a. not extended past 1 person 1 vote principle 6. one person/one vote principle iv. benefits cut off for 1 year w/out hearing 4. each vote must be worth the same 1. Schemes deemed unconstitutional 4. Gray 1. political-subdivision boundaries can be taken into account. no federal analogy. political right protected by 14th and 15th amendment d. Rule: Once you grant individuals the right to vote for a particular office. but not when doing so detracts appreciably from that population ideal 8. no dilution 7. S. Dissent: Harlan a. voting not considered a civil right c. nature of review process a. *pretty subjective test Numerical Equality-One Person One Vote a. no right to oral presentations. Reynolds v Sims 1964 (Warren Court-liberal) 1. Voting Reapportionment i. critiques living constitutional jurisprudence of majority b. how elaborate opportunity to review is 2. no one thought the federal system was inherently unjust to have different apportionment in the Senate than in the House b. no vote dilution iii.

pur curiam Majority 1. rational basis review 1. RULE: limited to fundamental rights that bear on the vitality of the nation as a single entity i. fails iv. individual citizen has no federal constitutional right to vote for electors for the President 1. Majority thinks this is arbitrary and irrational not to have a mandated uniform system 3. here we are concerned about votes not being counted Privilege and/or Immunities Clause a. 14th Amendment: Privileges or Immunities c. Exception: States can discriminate when 1. Distinguish from Sims 1. residents and non-residents must receive equal treatment by the states e. i.XVIII. classification: disparate treatment 1. still in Equal Protection context ii. Court may consider availability of less restrictive means 3. state governments are allowed to discriminate with regard to their own natural resources 1. Florida recount unconstitutional iii. substantial reason for difference in treatment 2. addressing deadline problem a. distinction seems to be irrelevant in grand scheme d. right to travel 43 . states decide how the electors for the Electoral College are chosen 2. can’t re-count votes after deadline  violate Florida constitution vi. persons classified on non-suspect basis 2. Souter and Breyer although in dissent agreed with this analysis a. just wanted to remand to Florida courts and have them create uniform system v. states inherent authority over natural resources f. exception i. disparate treatment given those voters whose defective ballots were counted in recount compared to those voters whose defective ballots were not counted in recount 2. Article IV: Privileges and Immunities b. state can choose method although all have chosen voting method vii. ex Fundamental Rights a. Sims concerned about votes being worth less. the discrimination against non-residents bears a substantial relationship to the State’s objective a. not race or sex discrimination so rational basis 4. re-count teams using different standards a. resources are owned by state/tax payers so if they want to reserve the resources for the state they can 2.

3 component of right to travel at issue 1. Supreme Court of New Hampshire v Piper i. Roe i. Piper lives very close to New Hampshire  undermines state’s arguments 1.’s current approach iii. the right to be treated like other citizens of that State rd v. New Hampshire’s residency requirement for bar membership unconstitutional 1. Expanded the understanding of the right to travel interstate (did not find constitutional right to welfare) 1. plaintiffs can’t just rely on Shapiro  new more conservative court that doesn’t want to give strict scrutiny to fundamental rights ii. part of Goldberg v Kelly welfare is a right movement ii. the practice of law is a fundamental right 1. *S. Thompson 1968 i. if you know a state has passed a policy that will make it impossible to survive the state is discouraging you from setting up residence in that state i. 44 . Shapiro v. welfare applicant denied benefits b/c lived in state less than 1 year 1. CA discriminating against new residents 2. Saenz v.right to practice law ii. Denying welfare assistance to needy families who do not meet a residency requirement. but would otherwise qualify is unconstitutional unless the denial is supported by a compelling interest. important to national economy 2. iii. fundamental right is right to travel from state to state  receive strict scrutiny 1. even if Piper lived far away could have local counsel for emergency hearings h. California passed a law that awarded less welfare benefits to residents who lived in California for less than 12 months than it paid other residents. iii. Ct. need for welfare unrelated to length of time that they have resided in CA 3. a State must provide the same benefits to new residents as it does to other residents. for those travelers who elect to become permanent residents. * Typical Berger Court Balancing g. deprives nonresidents their rights under Privileges and Immunities Clause ii. the right to be treated as a welcome visitor rather than an unfriendly alien when temporarily present in the second State 3. Under the Privileges and Immunities Clause. CA’s fiscal savings justification does not wash when the citizenship rights guaranteed by the 14th Amendment are implicated 4. so here right of travel is being infringed if she can’t receive welfare 2. out-of-state lawyers represent unpopular claims iv. distinct from tuition  benefit not immediately consumed b. she is a traveler who decided to stay in the state. right of a citizen of one State to enter and to leave another State 2. iv.

this is not a fundamental right privileges and immunities clause was meant to protect a. durational residency requirement are allowed on the rational basis for the state to verify recipients are not trying to de-fraud the system 45 .vi. Rehnquist dissent 1. right to travel not at issue 2. welfare and right to travel are unrelated and two separate rights 2. the right at issue is the right to receive equal benefits 3. Thomas dissent 1. a benefit established by positive law not a fundamental negative right vii.