Con Law Reading


Federalism: The Power of Congress to Legislate
• Congress must have Express or Implied Powers

The basic principle of American government is that Congress may act only if there is express of implied authority to act in the Constitution; states may act unless the Constitution prohibits the action. This is a play between Article I and the Tenth Amendment. Two questions in evaluating constitutionality of any act: 1. Does Congress have the authority under the Constitution to legislate? 2. If so, does the law violate another constitutional provision or doctrine, such as infringement of separation of powers or interfering with individual liberties? Only the state has the police power where states and local governments can adopt any law that is not prohibited by the Constitution. McCulloch v. Maryland (1819) (P. 129) – Facts - In 1790 the US debated over the establishment of a Bank of the United States. Opponents (Jefferson and Randolph) said Congress did not have constitutional authority to create a national bank and that by doing so it would take from the reserved state powers left to states by the 10th amendment. Congress created the bank. Charter expired in 1811 but after the war of 1812, was recreated in 1816. The bank did not help the economic problems of the time and the bank was largely blamed. It called in loans owned by the states which angered states. States began to limit operations of bank through laws. Maryland taxed it. The bank did not pay Maryland and so John James sued on behalf of himself and Maryland. McCulloch was the cashier for the branch of the B of US. Proc - The trial court rendered judgment in favor of the Ps and the Maryland Court of Appeals affirmed. Issue - Whether it is constitutional for the State of Maryland to tax the Bank of the United States. Holding - The law passed by the legislature of Maryland, imposing a tax on the Bank of the US is unconstitutional. Reasoning: a. Defining the scope of Congress’s powers: Enumerated Congressional powers includes that “all laws which shall be necessary and proper, for carrying into execution the foregoing powers.” The word “necessary” gives Marshall some talking points. He decides that necessary is not defined by the limiting meaning of the words, such that it is the only single way an end can come about , but that it is “any means calculated to produce an end.” This interpretation

gives the word “necessary” enlarges Congress’s powers, whereas the stricter definition would limit it. b. Delineating the relationship between federal and state governments: The rules of the Constitution and the powers given to the government by it, are the supreme laws of the land. Even though two sovereign agents in charge of collecting taxes (state and federal), the state laws are subordinate to the federal laws. If states can tax an agent of the federal govt in this case, they may soon tax the constitutionally provisioned for post offices or post roads, etc. This would go against the desired ends of the government. “This was not intended by the American people. They did not design to make their government dependent on the states.” Take-away: 1. Refuted “compact federalism” which is notion that since states

gave up some power to federal and ratified the Constitution, the states are sovereign. Federal government is supreme over the states and states have no authority to negate federal actions.
2. Expanded scope of federal congressional authority by allowing it

to choose any means not prohibited by the Constitution to carry out its powers rather than limited to only those expressed. 3. Limits the ability of the states to interfere with federal activities, such as by imposing taxes or regulations on the federal government. The Commerce Power: • Article I §8 states, “The Congress shall have the power to regulate Commerce with foreign Nations, and among the several States…”

Three questions:
1. What is commerce? Is it one stage of business or does it include

all aspects of business and even life in the US?
2. What does among the several states mean? Is it limited to

instances where there is a direct effect on interstate commerce or is any effect on interstate activities sufficient.

3. Does the Tenth Amendment limit Congress? If Congress is acting within the scope of the commerce power, can a law be declared unconstitutional as violating the Commerce Clause? Gibbons v. Ogden (1824) (P. 141) – Facts - NY Legislature had given a
monopoly to operate steamboats in NY to Robert Fulton and Robert Livingston. Fulton and Livingston licensed Ogden to operate a ferry boat between NY and NJ. Thomas Gibbons operated a competing ferry service and thus violated the exclusive rights given to Fulton and Livingston and their licensee Ogden. Gibbons maintained that he had the right to operate his ferry because it was licensed under a federal law a “vessels in the coasting trade.” Proc - Ogden successfully sued for an injunction in the NY state courts. Holding – SC reverses. Reasoning - Ct. found monopoly invalid because it conflicted with a valid federal statute that held the right to engage in coastal trade. Commerce is “intercourse.” Navigation is a part of commerce as well. Congress could regulate commerce which concerns more than one state. Commerce power, “like all others vested in Congress, is complete in itself, may be exercised to its utmost extent and acknowledges no limitations other than are prescribed in the Constitution.” Some internal commerce within a state would be beyond the power of Congress to regulate. The only commercial activities which were immune from fed power and reserved for the state, were those “which are completely within a State, which do not affect other States, and with which it is not necessary to interfere, for the purpose of executing some of the general powers of the government.” Some internal commerce beyond scope of Congress but created standard under which few activities could be found to meet the definition of internal commerce.

As in Gibbons: What is Commerce? Commerce is intercourse not just the interchange of commodities. Commerce includes all phases of business, including navigation, which was the issue in this case. What is “Among the States?” Court can regulate intrastate commerce if it has an impact on interstate activities. The completely internal commerce of state is reserved for the state itself. Marshal interprets “among” in the middle of three possibilities where no clear line is drawn and leaves discretion to court to define how direct or substantial the impact must be to constitute interstate effects. Does the State Sovereignty Limit Congressional Power? In Gibbons, at least, the court rejected the constraint that that there is any limit on

the court was controlled by conservative justices who were committed to the laissez-faire economics and were strongly opposed to government economic regulations. A min wage law would fail because it exceeded the scope of Congress’s power. A min wage law would fail as impermissibly interfering with freedom of contract. Ex. Many state laws were invalidated as interfering with freedom of contract. Under this view. Constitutional law since 1937 is very much a reaction to this earlier era. Specifically. or production. Court narrowly defined the meaning of commerce as to leave a zone of power to the states. Commerce Clause 1890-1937: • LIMITED FEDERAL COMMERCE POWER: During this period. which the Court found to be protected as a fundamental right under the liberty of the due process clause. mining. Dual Federalism: the view espoused during this time that the federal and state governments were separate sovereigns. Dual Federalism embodied in three doctrines: 1.Congress because of state sovereignty except where otherwise prescribed in the Constitution. and that it was the judicial role to protect the states by interpreting and enforcing the Constitution to protect the zone of activates reserved to the states. distinct from other phases such as manufacturing. Ex. . others left to states. that each had a separate zone of authority. commerce was one stage of business. only commerce could be regulated. This is the first time the SC aggressively used its power of judicial review to invalidate federal and state laws. Many federal laws were invalidated as exceeding the scope of Congress’s commerce power or as violating the Tenth Amendment and the zone of activities reserved to the states.

eggs and poultry. Roberts ended up switching positions to allow for broader federal power known as “the switch in time that saved nine.1 bushels of wheat an acre. Ex. The court broadened Congress’s commerce power by saying that their power is plenary and may be exerted to protect interstate commerce no matter what the source of the dangers which threaten it. 166) – Facts . regulation was left to the state. Roosevelt tried his court packing plan to get majority for his programs. In 1941. Court restrictively defined “among the states” as allowing Congress to regulate only when there was as substantial effect on interstate commerce.11 in all. owns a farm and uses it to herd dairy cattle. sell milk. Court held that production was left to the states and therefore a federal law that prohibited shipment in interstate commerce of goods made by child labor was unconstitutional.” The court redefined “affecting commerce” as meaning in commerce or burdening or obstructing commerce or the free flow of commerce. laissez-faire became more untenable. Before this could happen though. because it violated the 10th Amendment. Issue . Wickard v. In all other.Whether the regulation and production of wheat is “beyond the reach of Congressional . Court held that Tenth Amendment reserved a zone of activities to the states and that even federal laws within the scope of the commerce clause were unconstitutional if they invaded that zone. even though it was limited to interstate commerce. Commerce Clause 1937-1995: • BROAD FEDERAL COMMERCE POWER: Leading into the Great Depression. Roosevelt’s landslide election in 1936 was seen as a mandate for his New Deal programs that the court was consistently invalidating.49 cents a bushel. the Agricultural Adjustment Act of 1938 set a crop acreage allotment of 11. In 1938. Fillburn (1942) (P. or $117. 3.1 acres and a normal yield of 20. feed his livestock and consume in the home. He would grow a small acreage of winter wheat to sell. Filburn.2. He was subject to a fine of .D. D sowed 23 acres and harvested an average 239 excess bushels. The number of justices is not set anywhere in the Constitution and was initially set by the Judiciary Act of 1797 at six and has changed over time.

they would affect both the supply for interstate commerce and the demand for the product. If many farmers raised wheat for home consumption. Congress could regulate any activity if there was substantial effect on interstate commerce and after Filburn. Therefore.Marketing quota legitimately could be applied to a farmer who grew a small amount of wheat although the wheat was primarily to be consumed on his own farm with some to be sold locally. The court rejected the limits on the commerce power that were enforced in the earlier era stating that their power was not to be decided by questions of finding the activity in question to be “production.” 2. The requirement is only that the activity. Cumulative effect of the home grown wheat on the national market – home grown wheat accounted for 20% of the production and was the single most variable factor in the market. It was not for the judiciary to restrict congressional power either by limiting the subject matter of the power or independently reviewing the “directness” of connections to commerce. Civil Rights Laws: . looked at cumulatively across the country. just as does the current demand for the product. The cts ruling effectively held Marshall’s broad definition of commerce. since they are local in character and the effects on interstate commerce are ‘indirect.power under the Commerce Clause. even though Filburn’s wheat only had a negligible impact on the interstate commerce. Congress could regulate his production because cumulatively home grown wheat had a substantial effect on interstate commerce.Total supply of wheat clearly affects market prices. Reasoning .”’ Holding . it was not necessary that the particular person or entity being regulated have a substantial effect on commerce. The marketing quotas were designed to control the price of wheat. Take away: 1.” nor could considerations of its economic effects be foreclosed by calling them “indirect. have a substantial effect on commerce.

” “occupies a more protected position in our constitutional system than does the movement of cattle. 169) – Facts – This case is a declaratory judgment action that attacks the constitutionality of Title II of the Civil Rights Act of 1964. . US (1964) (P. Holding Yes. Heart of Atlanta is a motel that caters and advertises to interstate travelers. The US says that by refusing adequate accommodations to anybody.The court is not the proper entity to review economic decisions of the legislature. Douglas Concurring: Douglas fully agrees that Congress has power to regulate but that he believes that the right of people to be free of state action that discriminates against them because of race.The 1964 Civil Rights Act prohibited private employment discrimination based on race.” He favors Congress citing section 5 of the 14th Amendment more than Commerce Clause. gender. They stated they will continue to do so regardless of the act. they refused to lodge African Americans. Commerce Power legislation would be upheld if there were any arguable connection between the regulation and commerce which touched more states than one. has the ability to restrict discrimination based on color in interstate travel through lodging. fruit. Whether Congress had a rational basis for finding that racial discriminations by motels affected commerce.Whether Congress. Prior to the CRA. Congress’ motive did not have to be commercial because the interstate commerce power was plenary. Issue . it interferes with interstate travel and that Congress has the ability to remove these obstructions. steel and coal across state lines. HoA says that by passing the CRA with its Commerce Powers. like the “right of persons to move freely from State to State. Reasoning . or religion and forbids discrimination by places of public accommodation such as hotels and restaurants. Heart of Atlanta Motel v. it exceeded its power to regulate commerce. • Congress enacted this legislation under its commerce clause power rather than §5 of the 14th Amendment because in 1883 the Supreme Court held that Congress only could regulate government conduct and could not regulate private behavior under the amendment. through its commerce powers. Test: 1. Congress can use its Commerce Powers to do this.

Holding – District Court erred in concluding that there was n connection between discrimination and the movement of intestate commerce. looked at cumulatively across the country. Issue – Whether title II. it does not matter that Congress’s motive. was moral.2. is a valid exercise of the power of Congress. Reasoning – The decision was not based on the interstate impact of this particular restaurant but rather. that Congress had rationally concluded that discrimination by restaurants cumulatively had an impact on interstate commerce. whether the means it selected to eliminate that evil are reasonable and appropriate. . racial discrimination by hotels and restaurants. that business in general suffered and that many new businesses refrained from establishing there as a result of it. surely has an effect on interstate commerce There is no reason why it should matter that Congress’s primary purpose was based more on a moral judgment to eliminate discrimination than on concern for enhancing the economy. Take away from both cases: • • • These cases reflect the breadth of Congress’s commerce power. Katzenbach v. Like lottery cases before it. that interstate travel was obstructed directly by it. family-owned restaurant in Birmingham. There was no claim that interstate travelers frequented the restaurant.000 worth of food which has moved in commerce. Under Wickard. There was ample basis for the conclusion that established restaurants in such areas sold less interstate goods because of the discrimination. in part. The restaurant refused to serve African Americans in the restaurant. 171) – Facts – Ollie’s BBQ was a small. McClung (1964) (P. as applied to a restaurant annually receiving $70. The power of Congress under the commerce clause is broad and sweeping. Alabama that received 46% of the meat that it purchased annually from out of state. If so.

3. This was the holding in Hearts of Atlanta which upheld the federal law that discrimination by hotels and restaurants was an example of channels of interstate commerce. Lopez (1995) (P. 2. The Congress can regulate the use of the channels of interstate commerce. He was charged with violating the Gun-Free school Zones Act of 1990. found guilty and sentenced to 6 months in jail. 184) – Facts – Lopez was a 12th grade high school student who brought a gun to school and was arrested. The presence of a gun near a school did not substantially affect interstate commerce and that the federal law was unconstitutional. Issue – Whether the Gun-Free School Zones Act of 1990 was an unconstitutional exercise of Congress’s commerce power. which made it a federal offense to carry a gun on school grounds. Congress may legislate to regulate and protect the instrumentalities of interstate commerce. This includes the power to regulate persons and things in interstate commerce such as railroads in several previous cases. The court said that the previous case law was unclear whether an activity must “affect” or “substantially affect” interstate commerce and that the more . the 5th Circuit of Appeals found that the law was unconstitutional due to inadequate findings to show a sufficient relationship to interstate commerce.The Commerce Clause After 1995: Narrowing the Commerce Power and Revival of the 10th Amendment: US v. The Court specifically rejected the federal government’s claim that regulation was justified under the commerce clause because possession of a gun near a school may result in violent crime that can adversely affect the economy. On appeal. Reasoning – Re-emphasis on the fact that the Constitution creates a national government of enumerated powers. Holding –SC upheld the 5th circuit but on the grounds that. the court returns to the notion that Article I limits Congress’s power to those that are express or implied in the Constitution. regardless of adequacy of findings. Proc – Lopez was given a bench trial. the law is unconstitutional because it was not substantially related to interstate commerce. Three Categories of Activities that Congress can regulate under the commerce clause: 1. Thus. Congress may regulate those activities having a substantial relation to interstate commerce.

Morrison (2000) (P. Unlike Lopez though. to sustain the constitutionality of Commerce Clause legislation. they sexually assaulted her and raped her. Crawford got to go. on the ground that the violence against women has a substantial effect on the national economy. 196) – Facts .restrictive interpretation of congressional power is preferable (substantially affects). the court reaffirms the three part test for Congress’s commerce clause authority that was articulated in Lopez. In response to the large amounts of evidence presented during Congressional hearings on the act showing that gender-motivated violence does impinge on interstate commerce. Holding – SC said Congress lacked the authority to adopt the provision under either of these powers. Here. in a concurring opinion. Thomas states that the “substantial effects” test under the Commerce Clause is rootless in terms of the original understanding of Congress’s power. the court stated: “The existence of congressional findings is not sufficient.Christy Bronzkala enrolled at Virginia Tech and met the Ds Morrison and Crawford who both played on the varsity football team. A gun did not substantially affect interstate commerce. The P defended the law based on the third part of the test. The dean eventually set aside the conviction. P took D to federal ct under the Violence Against Women Act of 1994 which gains its authority from the congressional commerce clause.” Furthermore. Reasoning . • This third category was the basis for the decision in Lopez. either as an exercise of Congress’s commerce clause or section 5 of the 14th Amendment. by itself.Gender-motivated crimes of violence are not economic activity.” Take away: . During a school-held hearing. P says that 30 minutes after meeting the Ds. Issue. cumulatively across the country. Morrison admitted to having sexual contact with her despite her twice saying no. This was appealed and they found the same suspension but downgraded sexual assault to using abusive language. but Morrison was found guilty of sexual assault and sentenced him to immediate suspension for two semesters. violence against women had a substantial effect on interstate commerce. US v. there was a lot of legislative history involved in the legislation that showed that. Still the court rejects this as not “substantial.Whether the civil damages provision of the Act could be upheld.

That simple possession is a noneconomic activity is immaterial to whether it can be prohibited as a necessary part of a larger regulation. Issue .  At least in areas that the Court regards as traditionally regulated by the states. after a 3-hour standoff with the officials. Ct of Apps overruled.Whether the power vested in Article I (Commerce Clause) of the Constitution “to make all Laws which shall be necessary and proper for carrying into Execution” its authority to “regulate Commerce…among the Several States” includes the power to prohibit the local cultivation and use of marijuana in compliance with California law. DISSENT: Ct has taken away state as laboratory for change without any proof that homegrown marijuana does effect interstate commerce. and bartering. This is in comparison to the Wickard case where the diversion of homegrown wheat frustrated federal interests in stabilizing prices by regulating the volume of commercial interactions in the interstate mkt. The diversion of homegrown marijuana tends to frustrate the federal interests in eliminating commercial transactions in the interstate market in their entity. found that her use of marijuana was entirely legal. Gonzalez v. Proc . Thomas challenges the definition the cts have been using regarding commerce and narrows it as consisting of “selling. Nevertheless. Congress cannot regulate noneconomic activity based on a cumulative substantial effect on interstate commerce. as . county deputies and the DEA came to Monson’s home and after searching her premises. In 2002. they seized and destroyed her six plants.These cases differ from Morrison and Lopez in that they are substantially questions of economic activities.Angel Raich and Diane Monson are CA residents who have medical prescription to marijuana under Prop 215 or Compassionate Use Act of 1996. Reasoning . 205) – Facts . Raich’s physician believes that that forgoing cannabis treatment would cause T excruciating pain and could very well prove fatal. buying. Morrison goes further than Lopez in limiting the scope of Congress’s commerce power by narrowing the ability of Congress to regulate based on findings of “substantial effects” on interstate commerce. obtaining or manufacturing cannabis for their personal medical use. Raich (2005) (P. Holding . Ct of Apps found in favor of Raich.The CSA is a valid exercise of federal power.D brought suit against the Attorney general of the US and the head of the DEA for declaratory and injunctive relief prohibiting the enforcement of the CSA to prevent them from possessing.

in this decision. Should it be the role of the judiciary to protect state prerogatives or should this be left to the political process? As to question number 1. How important is the protection of state sovereignty and federalism? 2. nor prohibited by it to the States.” The dispute over the meaning of the 10th Amendment concerns two interrelated issue of constitutional policy: 1. substantial effect cannot be based on cumulative impact. Decreases the likelihood of federal tyranny: framers thought that the possibility of federal abuses could be limited by restricting the authority of the federal government by most of the governance coming from state or local authorities with rare and limited federal actions. The court did not revisit its holding in Morrison that in regulating noneconomic activities.” He believes commerce or trade stands in contrast to productive activities like manufacturing and agriculture. did not change the test in Lopez in that Congress may regulate the three. are reserved to the States respectively or to the people. usually the Court speaks of three benefits of protecting state governments: 1. Instead this case stands for the proposition that intrastate production of a commodity sold in interstate commerce is economic activity and thus substantial effect can be based on cumulative impact.well as transporting for these products. it is thought . This notion seems anachronistic in the face of a modern national market economy and decades of federal regulation. Also. How this decision fits with Lopez and Morrison: The court. The Tenth Amendment and Federalism as a Limit on Congressional Authority:  The 10th Amendment states “the powers not delegated to the US by the Constitution.

the law said that the state would have to “take title” of wastes not disposed of by a certain time and they would be liable for all damages directly or indirectly incurred.that if a federal action intrudes upon individual liberties. Allowing states to be laboratories of change: States with broader power can serve as experiments in the development of new social. Also. and political ideas. judicial review will stand as an important check. Printz (1992) (P. the more responsive the government to the interests of the voters. Holding – The take title provision in the federal law was unconstitutional. There were monetary incentives for states to comply with the law and they were able to impose surcharges for wastes imported from other states. Congress can still set standards that the state and local governments must meet and thereby preempt state and local actions. 2. Even though it is unconstitutional to compel states to adopt law or regulations. but it could not compel them to do so through the “take title” provision. Reasoning – Congress can regulate the disposal of radioactive wastes. This value of federalism could be inconsistent with the first value previously discussed. economic. The 10th Amendment and Article I limits Federal government’s power by not being allowed to compel the states to enact or administer a federal regulatory program. The state had to pick between either taking ownership of the waste or regulating according to the instruction of the Congress. Enhances democratic rule by providing government that is closer to the people: The smaller the area of government. the Congress is not powerless. . in that it can bring up the danger of factions. 216) – Facts – In 1985. Also. the Low-Level Radioactive Waste Policy Amendments Act created a statutory duty for the states to provide for the safe disposal of radioactive wastes generated within their borders. 3. Where does one draw the line between the state’s ability to experiment and a need for a strong national mandate? New York v. Congress may attach strings on grants to state and local government and through these conditions induce state and local actions that it cannot directly compel.

Congress had not exercised such powers. The law did not require the state legislature to enact any laws or regulations and it did not require state officials to assist in the enforcement of the federal statutes. Here.Take-away: If a federal law compels the state legislative or regulatory activity. by simply requiring state officers to execute its laws. the power of the president would be subject to reduction if the Congress could act as effectively without the President as with him. Condon (2000) (P. US (1997) (P. That is. Holding – It is not constitutional. Reasoning – Congress was impermissibly commandeering state executive officials to implement a federal mandate. The Court expressly rejected the argument that a compelling government interest is sufficient to permit a law that otherwise would violate the 10th Amendment. Also. Reasoning – The law is constitutional as an exercise of Congress’s commerce clause power because Congress found that many states sell the personal information to individuals and businesses which generate revenues for the states. This did not violate the 10th Amendment. Scalia observed that historically. 236) – Facts – The Driver’s Protection Act is a federal law that prohibited states from disclosing personal information gained by departments of motor vehicles like phone numbers and addresses. Take-away: i. this was not a violation of the 10th A because it was a prohibition of conduct rather than an affirmative mandate as in NY v US or Printz v US. the statute is unconstitutional even if there is compelling need for the federal action. Issue – Whether compelling these state and local officials to conduct checks is Constitutional. the court limits the scope of the 10th Amendment’s restrictions on Congress. Proc – The court of appeals of the 4th circuit declared the law unconstitutional as violating the Tenth Amendment because it commandeered the states to not disclose the information. In addition to finding the Brady bill unconstitutional on this ground. Reno v. the Court also said that it was a violation of separation of powers. . The law is not limited to state governments but also private entities as well. 226) – Facts – The Brady Bill required that state and local law enforcement officers conduct background checks on prospective handgun buyers. Printz v. The bill came about after an LA actress was stalked and murdered because of information given out by the DMV. Holding – The SC reversed.

Ex. with this last point. state and local laws can be challenged under two principles: 1. DPPA could be characterized as imposing the affirmative duty on states to keep information secret or the Brady Act could be characterized as a prohibition on state and local governments from issuing gun permits without doing background checks. the distinction between the two can often be blurry. The privileges and immunities clause  Preemption:  If there is a conflict between federal and state law. Congress may prohibit state governments from engaging in harmful conduct.ii. the federal law controls and the state law is invalidated because federal law is supreme (Supremacy Clause). The dormant commerce clause 2. particularly if the law applies to private entities as well. Congress may not impose affirmative duties on state governments but can prohibit conduct However. If Congress has not acted. Federalism: Limits on State Regulatory Power: Two possibilities when considering whether a state or local law is invalidated due to restrictions:  If the Congress has acted (passed a law and is a lawful exercise of their power) the question is whether the federal law preempts state or local law (Supremacy Clause). iii. . Most duties can be characterized either way.

Absent explicit preemptive language. ii. Ex. Implied preemption – implied by clear congressional intent to preempt state or local law. In Gibbons. §8 to regulate commerce among the states.Two major situations where preemption occurs: 1. Express preemption – where federal law expressly preempts state or local law 2. the dormant commerce clause limits states and local regulation. two types of implied preemption: i. Field preemption: where the scheme of federal law and regulation is so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it. but rather. the SC has inferred this from the grant of power to Congress in Article I. There is no Constitutional provision that expressly declared that states may not burden interstate commerce. Often found in foreign policy and immigration. Congressional Intent is ultimate touchstone of Preemption. The court also used Gibbons for considering the commerce clause as an independent limit on state power. The Dormant Commerce Clause:  The principle that state and local laws are unconstitutional if they place an undue burden on interstate commerce. Conflict preemption: if a state and federal law are mutually exclusive so that a person could not comply simultaneously with both. the state law is deemed preempted. Where the commerce clause authorizes congressional actions. Facially Discriminatory Laws: . even where Congress has not acted. the Court broadly defined the scope of Congress’s power under the commerce clause.

this law violated the principle of nondiscrimination. 464) – Facts – A New Jersey law effectively kept landfills in the state exclusively for New Jersey’s use by preventing the importation of any wastes from out of state. the court found that the ban on importation of live baitfish: 1. and 2. Maine v. apart from their origin. to treat them differently. but were not common in Maine. finds this law constitutional. Reasoning – The court found that the law should be upheld because there is no other less discriminatory way to prevent these threats. Both on its face and in its plain effect. Taylor (1986) (P. Issue – Whether the statutory prohibition violates the Commerce Clause. There was no satisfactory way to inspect shipments of live baitfish for parasites or comingled species. Holding – The prohibition was unconstitutional. 490) – Facts – Maine passed a law that prohibited the importing of live baitfish into the state. . Take-away: Basically. Could not adequately be served by available nondiscriminatory alternatives. Holding – The SC. in the face of invalidity per se precedent. New Jersey (1978) (P. The law was passed to protect Maine’s fisheries from significant threats from parasites that were prevalent in out-of-state baitfish.Since the main issue under the dormant commerce clause is whether the state or local law affects interstate commerce. City of Philadelphia v. these ends could not be accomplished by discriminating against articles of commerce coming from outside the state unless there was some reason. Those immediately effected by the law were the operators of private landfills in NJ and several cities in other states that had agreements with these operators for waste disposal. Reasoning – Even though the aim of the provision was to reduce the waste disposal costs of NJ residents or to save remaining open lands from pollution. Serves legitimate local purposes. one key initial question is whether the state law discriminates against out-of-staters or whether it treats in-staters and out-ofstaters alike.

NY (1994) (P. Carbone began shipping its solid waste out of state to save costs. C&A Carbone v. the ordinance drives up the cost for out of state interests. Discriminatory laws must be justified by a purpose that is unrelated to economic protectionism. Oneida-Herkimer (2007) (P.The ordinance regulates commerce. Reasoning . The Court has said that a discriminatory law “invokes the strictest scrutiny of any purported legitimate local purpose and of the absence of non discriminatory alternatives. . at an additional cost. 467) – Facts . while the economic effects are interstate in breadth. They were given power to impose appropriate and reasonable limitations on competition. Requiring Carbone to send waste to the transfer station. “tipping fee” a cost higher than the market and a guaranteed waste flow. Too much waste was coming in and clean up was needed. A state or local law that discriminates against out-of-staters will be upheld only if it is proved that the law is necessary to achieve an important government purpose.Town filed for injunction compelling Carbone to conform to the ordinance. 471) – Facts – There was a solid waste crisis in Oneida and Herkimer counties in NY. ct sustained and issued an injunction. the counties requested and the legislature created the Oneida-Herkimer Solid Waste Mgmt Authority. Also.Clarkstown passed an ordinance requiring that solid waste be processed at a designated transfer station before leaving the city. Issue . Some companies were overcharging. thus it discriminates. St. United Haulers Assn v. Also.Whether the flow control ordinance violates the Commerce Clause? Holding – It did. Reversed. takes business away from cheaper. In response. The immediate effect of the ordinance is to direct local transport of solid waste to a designated site within the local jurisdiction. The ordinance prevents everyone except the favored local operator from performing the initial processing step. out-of-state competitors.Virtual per se rule of invalidity – (Maine v. the counties enacted “flow control” ordinances requiring that all solid was generated within the counties be delivered to the authority’s processing site. One company was conferred a benefit of $81 per ton. Proc . Taylor overcame this) There is a strong presumption against discriminatory laws that burden interstate commerce. Shielding in-state industries from out-of-state competition is almost never a legitimate local purpose and laws that do this have been subject to a virtually per se rule of invalidity. Town of Clarkstown. Out of state business is denied access to a local market.

Oklahoma (1979) (P. Holding – It does. First. The court suggests a few like limiting the number of minnows that can be taken by licensed minnow dealers or limiting how these minnows may be disposed of within the state.” Hughes v. Aside from being facially discriminatory. Take-away: The main distinction between the two different outcomes in Carbone and United is that United is public and Carbone was private. the state did not use the least discriminatory alternative available.They charged a tipping fee. Also. the ordinances were not discriminatory on face because they treat in-state/out-of-state the same. 2. It is not the office of the commerce clause to control the decision of the voters on whether government or the private sector should provide waste management services. Some (Scalia and dissent) think this distinction is weak. Issue – whether the statute violates the commerce clause. Holding – The counties action was constitutional. invokes the strictest scrutiny test. Scalia doesn’t think the courts should perform the Pike balancing test because it should be left to Congress in the “real commerce clause. regardless of the state’s purpose. the benefits (incentivizing and monitoring recycling) outweighed the burdens. Reasoning – the statute is discriminatory on its face which in itself. this case is different than Carbone in that it is a public entity and not a private one. and in spite of the state’s clam of conservatory purposes. Reasoning – 1. 478) – Facts – Oklahoma passed a law that forbade the transport of natural minnows out of the state for purposes of sale. Also. The discriminatory effects were found to be incidental against the legitimate local concerns and by using the Pike test. . Facially Neutral Laws:  The Court has held that facially neutral laws can be found to be discriminatory if they either have the purpose or the effect of discriminating against out-of-staters.

Governor of Maryland (1978) (P. not particular interstate firms. Washington State Apple (1977) (P. Holding – The law did discriminate against interstate commerce. or distinguish between in-state and out-of-state companies in the retail market.” Washington had a system for grading apples that was different and more stringent than the federal standard. It prohibited WA growers and dealers from marketing apples under their state’s grades and created a leveling effect which operated to the advantage of local owners. or changed their marketing practices to accommodate the needs of the NC market. Also. from prohibitive or burdensome regulations. giving their apples a damaged appearance. 3. Holding – The law was not discriminatory.Hunt v. place added costs upon them. 480) – Facts – A North Carolina law required that all closed containers of apples sold or shipped into the state bear “no grade other than the applicable US grade or standard. Exxon Corp v. Reasoning – the law creates no barriers whatsoever against interstate independent dealers. 482) – Facts – A MD law prohibited a producer or refiner of petroleum products from operating a retail service station within the state. Washington would have had to obliterate the printed labels. the law meant that these outof-state oil companies could not own service stations in MD. the reasoning section in this case can probably be used as a type of non-facially discriminating check-list for what is or is not discriminating in effect or purpose. The statute stripped away the competitive and economic advantages WA had earned for itself. but also discriminating against them. The absence of any of these factors fully distinguishes this case from those in which a state has been found to have discriminated against interstate commerce. Reasoning – The statute. it does not prohibit the flow of interstate goods. Since the ultimate destination of the apple boxes is unknown at the time of shipment. while not facially discriminatory. 2. Because virtually all petroleum products sold in MD were produced and refined out of state. WA having to raise costs for doing business w NC while NC was left unaffected. Take-away: The commerce clause protects the interstate market. The obvious beneficiary was local business. Three types of discrimination: 1. not only burdening interstate sales of WA apples. had the practical effect of. .

The law prevented mild that was pasteurized in other state from being sold in the city. 489) – Facts – A Madison city ordinance required that all milk sold in the city had to be pasteurized within a five mile radius of the city. Reasoning – This law was not facially discriminatory because the law applied to the in-staters outside of the five mile radius as well as out-of-staters. even though the health and safety of its citizens was cited as the reason for this law. Also. Also.West Lynn Creamery v. Reasoning – Even though the law was facially neutral for imposing tax against all milk dealers. City of Madison (1951) (P. the impact was the same as a discriminatory law. However. they had other less restrictive. If they needed their own inspectors to protect the milk. The net effect was that the tax was borne disproportionately by out-of-staters. Clover Leaf Creamery (1981) (P. they could just charge the actual and reasonable cost of such inspection to the importing producers and processors. nondiscriminatory alternatives. Holding – this is constitutional. 487) – Facts – A MN law prohibited the sale of milk in plastic disposable containers but allowed its sale in paper disposable containers. Holding – The tax/subsidy combo is unconstitutional. Healy (1994) (P. 485) – Facts – MA imposed a tax on all milk dealers but the funds from the tax went into a fund to pay subsidies to in-state dairy farmers. used balancing test where the environmental benefits of the law outweighed any harms to interstate commerce. the law is nondiscriminatory. State of Minnesota v. . Holding – The law was discriminatory against out-of-staters. Dean Milk v. and despite that the trial court found that the actual basis of the statute was to promote the economic interests of certain segments of the local dairy and pulpwood industries. MN does not effect simple protectionism but regulated evenhandedly by prohibiting all milk retailers regardless of whether the milk. but in effect refunding the taxes paid by in-staters through the subsidy system. or sellers are from outside the state. but it also precluded milk that was pasteurized in other parts of the state from being sold in the city. Reasoning – Even though the law created a demand for paper products traditionally produced in-state and prevented the out of state plastics industry from having access to this MN market. There was no approach with a lesser impact on interstate activities available to meet these environmental interests. containers. In essence. they still erected an economic barrier that protected a major local industry. the state was taxing both in-staters and out-of-staters. MN had a substantial paper industry but no plastic industry.

Holding – The law is . A law is likely to be found discriminatory if its effect is to exclude virtually all out-of-staters.Take-away from facially neutral cases: In Hunt and Carbone disparate impact against out-of-staters was enough for finding a law discriminatory. helping in-staters at the expense of out-of-staters. 2. the out-of-state plastics industry was disadvantaged but out-of-state paper companies could sell milk containers in the state. even with evidence of a protectionist purpose. The law will be unconstitutional if the court decides that the burdens from the law exceed its benefits (Pike test). yet in Exxon and Clover Leaf. No clear criteria for this. the Court emphasized the costs imposed on WA apples producers compared to the NC apple industry 3. was insufficient for the Court to deem the law discriminatory. Consolidated Freightways Corp (1981) (P. In Exxon. The Balancing Test:  If the courts decide that a particular law is not discriminatory against out-ofstaters. then a balancing test is used: The court balances the law’s burdens on interstate commerce against its benefits. The state said that they were less safe than 55 foot singles and the law was passed for safety. In Clover Leaf. 497) – Facts – Iowa passed a law that banned 65-foot double trailers. The legal standard is not different but the cases turned on the Court’s appraisal of the particular facts and its assessment of whether there was discrimination. In Hunt. only out-of-state petroleum producers and refiners were kept from operating in the state. A law is likely to be found discriminatory if it imposes costs on out-of-staters that in-staters would not have to bear. but several factors are important: 1. Kassel v. The Court is more likely to find discrimination if it believes that a law is motivated by a protectionist purpose. proof of discriminatory impact.

unconstitutional. Reasoning – The court weighed the asserted safety purpose against the degree of interference with interstate commerce. The Court found that the state failed to present any persuasive evidence that 65-foot doubles were less safe than 55-foot singles. The court had statistical studies showing this to be true. On the other hand, the court found that the law substantially burdened interstate commerce by forcing the trucks to avoid Iowa or detach trailers and ship them separately.

“Some burdens associated with state safety regulations must be tolerated, but where, as here, the state’s safety interest has been found to be illusory, and its regulations impair significantly the federal interest in efficient and safe interstate transportation, the state law cannot be harmonized with the commerce clause.”

Take-away – The court will evaluate state laws on a case-by-case basis considering the specific evidence as to the benefits of the laws compared to their burdens on interstate commerce.

Exceptions to the Dormant Commerce Clause:

There are two exceptions where laws that otherwise would violate the dormant commerce clause will be allowed: 1. Congressional approval – Since the Constitution holds that Congress has the power to regulate commerce among the states, state laws are permissible, even when they otherwise would violate the dormant commerce clause, if they have been approved by the Congress. This is one of the few areas where Congress has the power to override a Supreme Court decision interpreting the Constitution. This is still subject to other Constitutional concerns like Equal Protection or Privileges and Immunities.

2. The Market Participant exception – Provides that a state may favor its own citizens in dealing with government-owned business and in receiving benefits from government programs. If a state is literally a participant in the market, such as with a state-owned business, and not a regulator, the dormant commerce clause does not apply:

Hughes v. Alexandria Scrap – Facts – Maryland passed a law designed to rid the state of abandoned automobiles by having the state pay for inoperable cars. The state required minimal documentation of ownership from in-staters but required more elaborate proof from outof-staters through either a cert of title, police cert vesting title, etc. Holding – The law was upheld. Reasoning – The state was a market participant by purchasing cars and that therefore its discriminatory actions against out-of-staters did not violate the dormant commerce clause. Nothing short of congressional action forbids a state from participating in the market and exercising the right to favor its own citizens over others.

Reeves v. William Stake (1980) (P. 504) – Facts – South Dakota set up a cement factory in response to a cement shortage in 1910. Over the years, it started selling a lot of its cement to interstate buyers. Reeves was one of them. When a cement shortage again hit the area, the plant decided to meet all the needs of in-staters first, then give to outof-staters on a first come first serve basis. They told Reeves they could not fill his orders. Holding – The law was upheld. Reasoning – The court said that SD, as the seller of cement was clearly a market participant and thus was able to favor in-state purchasers over those from out of state.

White v. Massachusetts – Facts – A city ordinance required that all construction projects financed by the city must use a workforce comprised of at least 50 percent residents of the city. Holding – The ordinance is upheld. Reasoning – The court used Alexandria scrap and reeves to say that when a state or local government enters the market as a participant it is not subject to the restraints of the Commerce Clause. The city can favor its residents over out-of-staters in employment because the projects were government-funded and so made them a market participant.

Take-away: The market participant exception is not limited to state-owned businesses; states may also favor their citizens in receiving benefits from government programs.

Limitation on Market Participant Exception:

South-Central Timber v. Commissioner (1984) (P. 506) – Facts – Alaska passed a law that required that purchasers of state-owned timber have the timber processed in Alaska before it is shipped out of state. Holding – The law was not upheld. Reasoning – The limit of the market participant doctrine must be that it allows a state to impose burdens on commerce within the market in which it is a participant, but allows it to go no further. The market needs to be narrowly defined or else the doctrine has the potential of swallowing up the rule that States may not impose substantial burdens on interstate commerce even if they act with the permissible state purpose of fostering local industry. There is a distinction between the ability of a state to prefer its own citizens in the initial disposition of goods when it is a market participant and a state’s attachment of restrictions on dispositions subsequent to the goods coming to rest in private hands.

Take-away: State businesses may favor in-state purchasers, but they may not attach conditions to a sale that discriminate against interstate commerce.

Should there be a Market Participant Exception:

Two criticisms: 1) The dormant commerce clause is meant to stop protectionist actions by state governments. Protectionism should not be allowed regardless of whether the state is acting in a proprietary or a regulatory capacity. 2) There is not a clear distinction between situations where the government is acting as a regulatory and when it is a market participant. a. Example: The court declared unconstitutional a law that limited the ability of electricity to be shipped out of the state without the permission of the state’s public utility commission. The court said the state regulated more than just a resource that it owns and that the water used to

Discrimination will only be allowed if it is substantially related to achieving a substantial state interest.” The Court has interpreted this provision as limiting the ability of a state to discriminate against out-of-staters with regard to fundamental rights or important economic activities. Both can be used to challenge state and local laws that discriminate against out-ofstaters. Answer to this: 1) The market participant exception can be defended as allowing citizens in a state to recoup the benefits of the taxes that they pay. PI clause can be used only if there is discrimination against out-ofstaters. Who cannot sue under the privileges and immunities clause: 1. They have a “mutually reinforcing relationship. Aliens The dormant commerce clause and the privileges and immunities clause overlap. The DCC can be used to challenge state and local laws that burden interstate commerce regardless of whether they discriminate .make the electricity is different than electricity itself and so has regulated more than it owns. §2: “The Citizens of each state shall be entitled to all privileges and immunities of citizens in the several states. Privileges and Immunities Clause:  Article IV. Corporations 2.” Some key differences: 1.

Mayor of Camden (1984) (P. Analysis under the PI Clause: 1.The court found that the ordinance violated the PI clause. Reasoning – The market participant exception only applies with regard to DCC challenges. is there a sufficient justification for the discrimination? The Test for Sufficient Justification of Discrimination: a. Corporations and aliens can sue under DCC but not PI clause. Has the state discriminated against out-of-staters with regard to P&I that it accords to its own citizens? 2. the market participant clause does not provide exception for the PI clause: United Building & Construction Trades Council v. The discrimination against nonresidents bears a substantial relationship to the State’s objective (considering the availability of less restrictive means). laws that discriminate are much more likely to be invalidated. but congressional approval does not excuse a law that violates the PI clause. Also. the court has not found that any law meets this rigorous test. 514) – Facts – A city ordinance required that at least 40 percent of the employees on city projects be city residents. 3.against out-of-staters. If Congress approves state laws. PI clause exclusively to citizens. If there is such discrimination. There is a substantial reason for the difference in treatment b. The two exceptions to the DCC do not apply to PI clause. THE FEDERAL JUDICIAL POWER: . Under the DCC. So far. then they do not violate the DCC. 4. 2. Holding.

3. no person—not even the president—could be above the law. The signing. Do the laws afford Marbury a remedy? The government is one of law. In 1801. Congress enacted an act that authorized the president to appoint 42 justices of the peace. this provision of the statute was unconstitutional because Congress cannot allow original jurisdiction beyond the situations enumerated in the Constitution. Can the Supreme Court issue this remedy? Is mandamus an appropriate remedy? . seal. not men.Article III never expressly grants the federal courts the power to review the constitutionality of federal or state laws or executive actions. Adams made his picks the day before Jefferson took office and the Senate confirmed. 2. to deliver the commission. appointment. Holding – The court ruled that it could not constitutionally hear the case as a matter of jurisdiction. Issues within the case: 1. Although the Judiciary Act of 1789 authorized such jurisdiction. John Marshall. Therefore. etc. less than a week before Adams left office. Madison. Adams’s secretary of state. This is changed by Marbury v. Does Marbury have a right to the commission? Yes. John Marshall (also Adams’s secretary of state at the same time he was chief justice) signed these but not all were delivered before Jefferson came to office and withheld the undelivered. Jefferson’s sec of state. was named the third chief justice of the SC. Ie. Marshal also knew that he had to decide with Jefferson or else he would just ignore the court which would undermine the court. Madison – Facts – The election of 1800 was very political and hotly contested. Marbury v. Adams was a federalist and was determined to exercise their influence before the Republicans took office. because all appropriate procedures were followed. Adams lost to Jefferson. The fact that there was no jurisdiction should have ended the decision but instead Marshal was able to go into the issues of whether or not the commissions had vested or whether the judiciary had the ability to review the executive’s action. Marbury was one who lost out and filed suit in the SC for a writ of mandamus to compel Madison.

Therefore. The Constitution applies limits on government powers and these limits are meaningless unless subject to judicial enforcement. the Court turned its attention to the issue of jurisdiction: Does the law authorize mandamus on original jurisdiction? Marbury argued that the SC had original jurisdiction to hear his suit for mandamus due to a section of the Judiciary Act of 1789. Can the Supreme Court Declare laws Unconstitutional? Even after deciding the section in the JA of 89 was unconstitutional. was the court bound to follow that section or could it declare it unconstitutional? Marshall found that it could in that it is inherent to the judicial role to decide the constitutionality of the laws that it applies. rather than the floor of federal jurisdiction. Some though are political questions and cannot be touched. Does mandamus on original jurisdiction violate Article III? Once it concluded that it had original jurisdiction under the section of the JA of 1789. 329) – Facts – The Watergate burglary happened. Marshal had a forum to declare it unconstitutional and thereby grant the court this power to in the first place. Nixon (1974) (P. The Court agreed even though Marshall really could have read the section to apply only to appellate jurisdiction. US v. by viewing Article III as the ceiling. Marshall found that Article III’s enumeration of original jurisdiction would be entirely without meaning if Congress could just add more areas of original jurisdiction. Marshall established the principle that federal courts are courts of limited jurisdiction. Top political officials were implicated in the cover-up. the court then considered whether this violated Article III. this establishes the power of the judiciary to review the constitutionality of executive actions. By construing it this way. Having decided that Marbury had a right to the commission and that the Court had the authority to issue mandamus as a remedy. People found out that Nixon .Yes.

the scope. Interpretive Limits: Narrow and with electoral accountability. Although some argue that Marbury does not indicate anything that precludes a constitutional interpretation which gives final authority to another branch. This power though is not absolute. Congressional Limits 3. Holding – Court rejected Nixon’s contention that the case posed a non-justiciable political question because it was an inter-branch dispute and that the president alone had the authority to control prosecutions. with such Exceptions. both as to Law and Fact. These tapes were subpoenaed but Nixon said that he would not comply. and if so. and under such Regulations as the Congress shall make. Justiciability Limits Congressional Limits on the Power of the Supreme Court There is dispute over the ability of congressional restrictions of Supreme Court jurisdiction. He ended up having the special prosecutor fired by going through a chain of people that he ended up firing until he got the person who would fire the prosecutor. This all lead to impeachment calls. The court rejected the claim that the Constitution gave the president executive privilege. Also at issue was that of executive privilege.” . Evolving through interpretation v. It must yield when there are important countervailing interests. Limits on the Federal Judicial Power: 1. However. How Relates to Marbury: Marbury had given the province and duty of the judicial department to say what the law is. the court did find that executive privilege does exist because of the need for candor in communications with advisors. Originalism v non-originalist. amendments 2. Those who believe that Congress can limit jurisdiction to hear particular matters point to the language of Article III. §2:  “The Supreme Court shall have appellate Jurisdiction. The court said it was their role to decide whether the president has executive privilege.had a recording device in his office that recorded all of his conversations.

McCardle contended that the Military Reconstruction Act was unconstitutional because it provided for military trials for civilians and also several other violations of his Bill of Rights. People who argue against this say that the word “exception” applies to the word “Fact. 35) – McCardle was a newspaper editor who was arrested by federal officials for writing a series of newspaper articles that were highly critical of the Reconstruction and military rule of the South following the war.” meaning that the SC cannot overturn fact-finding by lower courts. Mc Cardle filed for a writ of habeas corpus pursuant to a statute adopted in 1867 that permitted federal courts to grant HC relief to anyone held in custody in violation of the Const.The ct decided that it could not decide McCardle’s case because of Congress’s authority to create exceptions and regulations to the Court’s appellate jurisdiction. such as abortion or school prayer. Before 1867. The SC rejected this claim and set the case for arguments on the merits of the MRA.The claim is that Article III authorizes Congress to create exceptions to the SC’s jurisdiction and that such exceptions include the ability to preclude review of particular topics. . Soon after. The court then had to decide if it had jurisdiction to hear the constitutional claims in light of the recently adopted statute denying it authority to hear appeals. HOLDING. or laws of the US be either a state or the federal govt. under the JA of 89. federal courts could hear HC petitions only of those who were held in federal custody. Congress adopted a rider to a tax bill that repealed the part of the 1867 statute that authorized SC appellate review to writs of HC. For jurisdiction stripping: the supporters of jurisdiction stripping point to this case as precedent. The US government claimed that the federal courts lacked jurisdiction by reading the 1867 act as providing federal court relief only for state prisoners. Ex Parte McCardle (1868) (P. They say it establishes that Congress may prevent SC review of constitutional issues and that the court can only look into Congress’s power under the Constitution to make exceptions and not to inquire into the motives of the legislature. The Congress wanted to keep the case out of the court so that Reconstruction could not be deemed unconstitutional.

The SC held that a presidential pardon fulfilled the statutory requirement of demonstrating that an individual was not a supporter of the rebellion. Holding – The court held that the statute was unconstitutional. United States v. In response to this and frequent presidential pardons. Against jurisdiction stripping: Points to case. without express disclaimer of guilt. This was proven a year later in Ex Parte Yerger where the court found jurisdiction over HC from a lower court due to the JA of 89. the court was only deciding the constitutionality of statute that did not completely preclude SC review. anytime Congress amends the law will create a change to substantive outcome. Moreover. were not entitled to recover under the law. In McCardle. Really. but rather only eliminated one of the two bases for its authority. Therefore.Against jurisdiction stripping: McCardle is different than modern attempts to prevent SC review of topics such as abortion and school prayer. even after the repeal of 1867 Act. Klein establishes that Congress may not restrict SC jurisdiction in an attempt to dictate substantive outcomes Response to proponents of jurisdiction stripping: . For jurisdiction stripping: Klein establishes only that Congress may not restrict SC jurisdiction in a matter that violates other constitutional provisions. Congress adopted a statute providing that individuals whose property was seized during the Civil War could recover the property. the SC still had authority to hear McCardle’s case under the 1789 JA (which the 1867 Act modified but did not replace). the SC said that Congress cannot direct the results in particular cases. upon proof that they had not offered aid to the enemy during the war. Reasoning – While acknowledging Congress’s power to create exceptions and regulations to the Court’s appellate jurisidiction. the Congress adopted a statute providing that a pardon was inadmissible as evidence in a claim for return of seized property. Klein – Facts – In 1863. the federal courts had the power to return seized property. or compensation for it. those pardoned. Why couldn’t Congress amend the statute to provide that a certain class of citizens. Prior to Klein. the statute provided that a pardon. was proof that the person aided the rebellion and would deny the federal courts jurisdiction over the claims.

The statute in Klein may have deprived property without just compensation or due process. The statute was arguably unconstitutional as an infringement of the executive’s power under Article II. In the statute at issue in Klein. Congress was redefining the president’s pardon power. and that the statute violated other constitutional provisions: 1. Proc.Two features distinguish Klein. Seattle Audubon Society (1992) (P. ripeness. 40) – An act was passed that both required certain harvesting restriction on land. Holding – The SC reversed.The court found that Congress had changed the law itself and did not direct findings or results under the old law. Reasoning. standing. The denial of jurisdiction prevented the federal courts from vindicating their protected property interest. mootness and the political question doctrine. They include prohibition against advisory opinions. Justiciability Limits:  Judiciability Doctrines – Determine which matters the federal court may hear and decide and which must be dismissed. but also specifically mentioned two pending lawsuits deeming that certain sections from the new act was adequate consideration for the purpose of meeting the statutory requirements that are the basis for the two law suits. The court read Klein as applying in a situation where Congress directs the judiciary as to decision making under an existing law and not applying when Congress adopts a new law. 2. Take-away: The court read Klein as applying in a situation where Congress directs the judiciary as to decision making under an existing law and not applying when Congress adopts a new law.The 9th circuit held that the provision was unconstitutional under Klein because Congress was directing the outcome of the pending litigation. . Robertson v.

Reasons for Justiciability: 1. 3. Promotes fairness. Principles of Avoidance: along with these justiciability doctrines. Improve judicial decision making by providing the federal courts with concrete controversies best suited for judicial resolution. It would be unfair to allow someone to bring a complaint on behalf of a person who is satisfied with a situation. The Justiciability doctrine define the judicial role by determining when it is appropriate for the federal courts to review a matter and when it is necessary to defer to the other branches of the government. The court will not pass upon the constitutionality of legislation in a friendly. especially to the individuals who are not litigants before the court. The court will not formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied. The court has decided that in certain instances wise policy militates against judicial review. The idea of political capital comes into play. 3. Separation of powers. 2.Constitutional v. Others are derived not from the Constitution but from prudent judicial administration. . The court is centered on controversies being played out to get to the best decision. The court will not anticipate a question of constitutional law in advance of the necessity of deciding it. Prudential Requirements : Some of these doctrines are a result of the Court’s interpretation of Article III of the Constitution. the court said that they would follow certain principles of avoidance. Brandeis laid these out best in the Ashwander case: 1. The court does not want to squander their political capital on inappropriate matters. The language defines judicial power in terms of nine categories of cases and controversies. Conserves judicial resources. 4. nonadversary proceeding. The court depends on other branches to voluntarily comply with judicial orders and that this acquiescence depends on credibility. These doctrines exist to ensure concrete controversies and adverse litigants. 2. It allows the federal courts to focus their attention on the matters most deserving of review.

5. the court will decide only the latter. one involving the Constitution. Many states are able to issue advisory opinions and one benefit is that the legislature will be spared time and be able to correct legislation before it is invalidated. The court will not pass upon a constitutional question although properly presented by the record. There must be an actual dispute between adverse litigants. (Like the case involving America’s neutrality in the war between France and England p. 42) 2. the court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided. When the validity of an act of Congress is raised. There must be a substantial likelihood that a federal court decision in favor of a claimant will bring about some change or have some effect. 7. Prohibition of Advisory Opinions:  Article III’s limitations on federal judicial power is that federal courts cannot issue advisory opinions. the other on a statutory construction or general law. The court will not pass upon the constitutionality of a statute at the instance of one who has availed himself of its benefits. if there is also present some other ground upon which the case may be disposed of. Standing: . The court will not pass upon the validity of a statute upon complaint of one who fails to show that he is injured by its operation 6. Criteria to avoid being an advisory opinion: 1.4. If a case can be decided on either of two grounds. The justifications for prohibiting advisory opinions are basically the same as the reasons for justiciability.

Prudential Standing Principles (Congress may override by statute): 1. P must allege that the injury is fairly traceable to D’s conduct. Improves judicial decision making by ensuring that there is a specific controversy before the court and that there is an advocate with a sufficient personal concern to effectively litigate the matter. Concern for separation of powers. 3. A party generally may only assert their own rights and cannot raise the claims of third parties. the question of whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues. A party must raise a claim within the zone of interest protected by the statute in question. 3. The determination of whether a specific person is the proper party to bring a matter to the court for adjudication. (although. 2. P must allege that a favorable federal court decision is likely to redress the injury. Separation of powers can be undermined by the overexpansion of the federal court or by undue restriction. . A P may not sue as a taxpayer who shares a grievance in common with all other taxpayers. In essence. general grievance in a citizen suit is constitutional. 2. 4. Reasons for Standing: 1. 2. Requirements for Standing: Constitutional Restrictions (cannot be overridden by statute): 1. Serves the judicial efficiency process by preventing a flood of lawsuits by those who have only an ideological stake in the outcome. Must allege that P suffered or immediately will suffer an injury. not prudential) 3. Serves the value of fairness by ensuring that people will raise only their own rights and concerns and that people cannot be intermeddlers trying to protect others who do not want the protection offered.

2. Massachusetts argued that EPA was required to regulate these "greenhouse gases" by the Clean Air Act . If the IRS enforced the law. and a divided panel ruled in favor of EPA. even though a change in the IRS policy might have been redressability. Massachusetts v. the Agency had discretion to defer a decision until more research could be done on "the causes. 46) – Facts – Parents of black public school children brought a class action suit challenging the failure of the IRS to carry out its statutory obligation to deny tax-exempt status to racially discriminatory private schools. Also.C.which states that Congress must regulate "any air pollutant" that can "reasonably be anticipated to endanger public health or welfare. Issue .Massachusetts and several other states petitioned the Environmental Protection Agency (EPA). the schools would either stop discriminating or have to charge more money because of the loss in tax break." Massachusetts appealed the denial of the petition to the Court of Appeals for the D. EPA (2007) (P.Constitutional Standing Requirements: Allen v. Their children’s chances to receive an integrated education were diminished by the continued tax breaks to discriminatory schools. but also the notion of separation of powers as reason for standing limitations." EPA denied the petition. Take-away: Issues of injury/redressability both at work. EPA argued. 53) – Facts . The first injury was too abstract to confer standing. more white students would likely attend the public schools. Wright (1984) (P. extent and significance of climate change and the potential options for addressing it. Holding – 1. it was still insufficient for standing because the IRS did not cause the segregation. Either way. The parents and their children were stigmatized by government financial aid to schools that discriminate. the injury is not fairly traceable to the government’s conduct—it is too indirect and results from the independent action of some third party not before the court. Issues – 1. Even if it did. 2. The second claim state an injury but is denied of standing because of an absence of causation. Circuit.1) May the EPA decline to . Reasoning – Even in the second claim. asking EPA to regulate emissions of carbon dioxide and other gases that contribute to global warming from new motor vehicles. claiming that the Clean Air Act does not authorize the Agency to regulate greenhouse gas emissions.

had standing to sue the EPA over potential damage caused to its territory by global warming. To show injury. because the potential injuries from global warming were not concrete or particularized (individual and personal). due to its "stake in protecting its quasi-sovereign interests" as a state. The issue was whether the P was adversely affected or aggrieved so as to be entitled to seek judicial review.C. The Act's definition of air pollutant was written with "sweeping. Injury:  The SC has declared that the “irreducible minimum” of Article III’s limit on judicial power is a requirement that a party show he personally has suffered some actual or threatened injury. Circuit and ruled in favor of Massachusetts. Redressability: Some favorable federal court holding would slow rate of loss of coastal wetlands. the Sierra club sought to prevent the construction of a ski resort in Mineral King Valley. The Court held that if the EPA wishes to continue its inaction on carbon regulation. but not be able to get rid of it. the majority ruled that the EPA was unjustified in delaying its decision on the basis of prudential and policy considerations.” Injury: loss of coastal wetlands but is not imminent but rather decades away. Morton. This is a lenient test for demonstration of causation especially when compared to some of the other cases. In Sierra Club v. Does this apply only to states? The ruling is unclear when it says “litigant” rather than “states." Chief Justice Roberts's dissenting opinion argued that Massachusetts should not have had standing to sue. The opinion by Justice John Paul Stevens held that Massachusetts.No and yes. By a 5-4 vote the Court reversed the D. Take-away: MA as a state deserves special solicitude.issue emission standards for motor vehicles based on policy considerations not enumerated in the Clean Air Act? 2) Does the Clean Air Act give the EPA authority to regulate carbon dioxide and other greenhouse gases? Holding/Reasoning . need to frame to slow down this loss rather than stop it. it is required by the Act to base the decision on a consideration of "whether greenhouse gas emissions contribute to climate change. The Court rejected the EPA's argument that the Clean Air Act was not meant to refer to carbon emissions in the section giving the EPA authority to regulate "air pollution agent[s]"." "capacious" language so that it would not become obsolete. Finally. Justice Scalia's dissent argued that the Clean Air Act was intended to combat conventional lower-atmosphere pollutants and not global climate change. The club asserted a special .

Again. Criticisms: Is it not enough to show future psychological harm or fear of a future choke-hold so long as the policy goes unchanged? Defenders of decision: The court did not deny his standing to pursue a damages claim and the constitutionality of the chokehold could be adjudicated there. The SC upheld the standing saying that aesthetic and environmental injuries are sufficient for standing so long as the P claims to suffer the harm personally. The students maintained that their enjoyment of the forests and streams in the area would be lessened as a result. The decrease in recycling would lead to more use of natural resources and thus more mining and pollution. They needed one member to walk through the park. personally. Reasoning – Although Lyons could bring a suit seeking damages for his injuries. he did not have standing to enjoin the police because he could not demonstrate a substantial likelihood that he. Result – The court ruled that Lyons did not have standing to seek injunctive relief. the SC upheld standing to a group of students who said that a hike in railroad freight rates would discourage the use of recycled goods because of the extra cost.interest in the conservation of the park but the court found this insufficient for standing. City of LA v. . Nowhere in the affidavit did the club state that its members use the park for any purpose. The Sierra Club failed to allege that it or its members would be affected in any of their activities or pastimes. the club amended its complaint to allege that its members did use the park and they were accorded standing. 60) – Facts – Lyons brought suit to enjoin as unconstitutional the use of chokeholds by the LAPD in instances where the police were not threatened with death of serious bodily injury. In fact. would be choked again in the future. Take-away: Perhaps the most important application of the requirement for a personally suffered injury is the requirement that a P seeking injunctive or declaratory relief must show a likelihood of future harm. in the SCRAP case. on remand. Lyons (1983) (P.

A group of voters brought suit challenging a decision by the FEC that the American Israel Public Affairs Committee was not a political committee subject to regulation and reporting requirements under the FEC. DISSENT: The requirement that a P have a specific plan to return to a foreign country created only a silly formality that a P must purchase a plane ticket in order to sue. Their desire to return someday is insufficient for standing without any concrete plans or any specification of when that someday will be. Holding – There is no standing. Blackmun dissented over the issue that a P is only harmed by the destruction of the environment only if the individual has concrete plans to visit the harmed place. Reasoning – The fact that the women had visited the country in the past did not prove that they would return. A federal statute authorizes suit by any person aggrieved by the FEC decision. Akins (1998) (P. Holding – The court . 66) – Facts – Congress created a statute that created a right to information.Lujan v. have been subjected to a racial classification. Reasoning – Only individuals that reside within a district suffer an injury from how the lines are drawn. Also. Defenders of Wildlife (1992) (P. Holding – The court said that they lack standing because they could not show sufficient likelihood that they would be injured in the future by a destruction of the endangered species abroad. US v. Hays (1995) (P. Could Hays not claim injury as having been excluded from that district due to the drawing of the lines? FEC v. 62) – Facts – The SC considered a challenge to a revision of a federal regulation that provided that the Endangered Species Act does not apply to the US government activities outside of the US. They had also not shown that they. The Ps claimed that the failure to comply with the Act increased the rate of extinction of endangered and threatened species. 65) – Facts – Hays claimed that the State of LA’s congressional district plan is such a racial gerrymander and that it violates the 14th Amendment but the appellees do not live in the district that is the primary focus of the gerrymandering claim. personally.

The Ps argued that this was unconstitutional discrimination on the basis of the child’s legitimacy. but did not prosecute fathers of illegitimate children. they could not demonstrate that appropriate housing would be constructed without the exclusory zoning ordinances. v.granted standing. it would result only in the jailing of the child’s father and the payment would at best be speculative. Also. but not sufficient. 67) – Facts – The Ps challenged an IRS revision of a revenue ruling limiting the amount of free medical care that hospitals receiving tax-exempt status were required to . The court felt that the low-income residents seeking to live in Penfield might not be able to afford to live there even if the ordinances were invalidated. Simon v. Reasoning – Even an injuction commanding the state prosecutions would not ensure that the mother would receive any additional child support money. an association of home builders that wanted to construct such housing joined as Ps in the suit. The Ps included residents who wanted to live in Penfield but claimed that they could not because of the zoning practices that prevented construction of multifamily dwellings and low-income housing. Reasoning – They concluded that Congress had created a right to information about political committees and that the Ps were denied the info by virtue of the FEC’s decision. (1973) (P. the redressability problem is because even if the zoning was changed. Causation and Redressability:  Injury is necessary for standing. Also. The state of Texas had a policy of prosecuting fathers of legitimate children for not paying required child support. Claimant has statute to go by. Congress gave specific grievance which they cited. No generalized grievance here. 67) – Facts – An unwed mother sought to have the father of her child prosecuted for failure to pay child support. Linda R. A P must also allege and prove that the personal injury is fairly traceable to the Ds allegedly unlawful conduct and likely to be redressed by the requested relief. the builders might not choose to construct the new housing regardless of the outcome of the lawsuit. Also. 67) – Facts – Several Ps challenged the unconstitutionality of exclusionary zoning practices in NY.S. Take-away: Causation problem because they wouldn’t be able to afford the housing anyways. Richard D. Holding – The Ps lacked standing Reasoning – Even though they alleged violation of their constitutional rights. Warth v. There is a redressability problem. Eastern Kentucky Welfare Rights (1976) (P. Seldin (1975) (P. Holding – The court dismissed the case for lack of standing. If the appellant were granted the requested relief. there was no definite plan to build lowincome housing. Take-away – Congress had created a method for petitioner to be able to bring an action.

Holding – The Ps were granted standing. Carolina Environmental Study Group (1978) (P. Take-away: Inconsistent case – It is talking about future injuries and its not clear if its going to affect claimants at all. The Prohibition of Third-Party Standing:  Even when the P has alleged injury sufficient to meet the ‘case or controversy” requirement. and cannot rest his claims to relief on the legal rights or interests of third parties (jus tertii standing). Furthermore. The Ps argued that the P-A Act violated the due process clause because it allowed injuries to occur without compensation. Whereas previously tax-exempt charitable hospitals had to provide free care to indigents. Reasoning – Causation and redressability were lacking. Duke Power Co v. Take-away: Causation problem that tax exempt status may not have been cause of problem. Holding – The court denied standing. the court accepted the lower court’s conclusion that the causation and redressability tests were met because but for the P-A Act the reactor would not be built and the Ps would not suffer these harms. The court said that it was purely speculative whether the new revenue ruling was responsible for the denial of medical services to the Ps and that the complaint suggests no substantial likelihood that victory in this suit would result in respondents receiving the hospital treatment they desire. Would not have brought about any change and so no redressability. Holding – The SC found standing. The Ps were individuals who claimed that they were denied needed medical care and hence injured by hospitals receiving tax-exempt status. 68) – Facts – 40 individuals and two organizations challenged the constitutionality of the Price-Anderson Act. Reasoning. including exposure to radiation and other harms. Singleton v.provide. under the new provisions only emergency medical treatment of indigents were required. Reasoning – The doctors were injured by the statute because it denied . the Court has held that the P generally must assert his own legal rights and interests. Wulff (1976) (P. Prudential Standing Requirements:  Can be overruled by Congressional statute because these standings are not derived from the Constitution but from the court’s view of prudent judicial administration. 69) – Facts – two physicians challenged a state statute that prohibited the use of state Medicaid benefits to pay for nontherapeutic abortions (abortions that were not necessary to protect the health of life of mother). which limited the liability of utility companies in the event of a nuclear reactor accident. By threatening status w suit would not take away or give any redressability to the issue. An action by Congress and expenditure of money because of need…might relax standing.The construction of a nuclear reactor in the Ps area subjected them to many injuries. Not have status did not cause hospitals to deny free care beyond emergency care.

Take-away: Vendors can assert right of their customers based on the exception of the close relationship between P and third party. The court said it would be difficult if not impossible for the persons whose rights are asserted to present their grievance before any court. The bartender suffered economic loss from the law. Jackson (1953) (P. Reasoning. The court said it is generally appropriate to allow a physician to assert the right of women patients as against governmental interference with the abortion decision.them payments for particular medical services. 71) – Facts – Barrows. Take-away: This case lays out two of the exceptions to the rule of prohibition of third-parties: 1. thus fulfilling the injury requirement. Craig v. 72) – Facts – OK adopted a law permitting women to buy 3. Genuine obstacle for racial minorities and best advocate is the person who owns the land. Holding – The court refused the mother’s claim. Parties may not have even known that they were being excluded. the court observed that generally vendors and those in like positions have been uniformly permitted to resist efforts at restricting their operations by acting as advocates for the rights of third parties who seek access to their market or function. a white person who had signed a racially restrictive convenant. Take-away: Genuine obstacles exception. the court emphasized the closeness of the doctors relationship to the patient and that the physician is intimately involved in the decision of abortion. Moreover. Holding – Standing was granted. A bartender sought to challenge the law on behalf of male customers between the ages 18-21. Reasoning – The court allowed the white dude to raise the interests of blacks to rent and own property in the community. Barrows v. who were not parties to the lawsuit for breach of contract.The D had waived his rights by not pursuing them himself. The mother should not be granted standing because there was no reason why her son could not protect and assert his own rights. Reasoning – After an injury was alleged. The close relationship between P and the third-party (mainly this in Singleton). they had no legal basis for participation in the breach of contract suit. Utah (1976) (P.2% beer at age 18 but denying men that privilege until age 21. Holding – The court allowed third-party standing. 2. Boren (1976) (P. . His mom sought a stay of execution on his behalf. The likelihood that the third party can sue on its own behalf (but also obstacles). Gilmore v. The defense was raised on the rights of blacks. Because blacks were not parties to the covenant. was sued for breach of contract for allowing nonwhites to occupy the property. 72) – Facts – Gilmore was sentenced to death in the state of UT but chose not to pursue collateral challenges in federal court.

Ripeness:  Seeks to separate matters that are premature for review because the injury is speculative and never may occur. That is. Newdow (2004) (P. from those cases that are appropriate for federal court action. Holding – The court dismissed the case for lack of standing. the more likely a federal court is to find . Customarily. He lacked standing because he was seeking to employ a federal court as a forum in which to air his generalized grievances about the conduct of government. Reasoning – The P presented a generalized grievance and did not allege a violation of a personal constitutional right.Take-away: This case did not by-pass the prohibition of third party claims. The hardship to the parties of withholding court consideration: The more a P can demonstrate substantial hardship to a denial of preenforcement review. 72) – Facts – A father sued on behalf of his daughter to challenge the use of the words “under God” in the pledge of allegiance in public schools. The Prohibition of Generalized Grievances:  Prevents individuals from suing if their only injury is as a citizen or a taxpayer concerned with having the government follow the law. Two considerations for ripeness: 1. Contrary intent. a person can challenge the legality of a statute or regulation only when he or she is prosecuted for violating it. It is not enough for the third party to have a close relationship but the advocate must also be part of the third party’s exercise of the protected right. Holding – The court ruled that the P lacked standing. 77) – Facts – P claimed that the statutes providing for the secrecy of the CIA budget violated the Constitution’s requirement for a regular statement and accounting of all expenditures. Elk Grove School District v. and not Newdow. This is constitutional because the stateu does not permit advisory opinions because it limits federal court action to justiciable cases. Richardson (1974) (P. it does not allow preenforcement review in all instances. It prevents the courts. United States v. The Declaratory Judgment Act – permits people to avoid the choice (between having to break the law and hope it is invalidated or refrain from the prohibited conduct rather than risk criminal punishment) and obtain preenforcement review of statutes and regulations. but instead claimed injury only as a citizen and taxpayer. Reasoning – The father lacked the third party standing to sue on behalf of his daughter. The court stressed that the girl’s mother. had legal custody and the court also emphasized a traditional unwillingness of federal courts to get involved in domestic relations matters. from entangling themselves in abstract disagreements. through avoidance of premature adjudication.

below. The case was not deemed ripe even though it was a purely legal question that did not depend on the factual record. the court will find it ripe. Poe v. Ullman falls into this category. Ullman (1961) (P. There was not enough hardship. Take-away: Do you need both 1 and 2 above to have ripeness.ripeness.92) – Facts – Married women for whom pregnancy was medically unadvisable and their doctors filed a lawsuit challenging a CT law preventing the distribution or use of contraceptives. Poe v. the less likely it is that review will be granted. 2. ii. Holding – the court found this case not ripe. Hardship because of collateral injuries. Reasoning – There had only been one other prosecution under the law in more than 80 years. there were other damages like exposure to raidiation. Ripeness. that would not have been created but for the P-A act. the more likely it is that the court will find ripeness. Conversely. Hardship where enforcement is certain. Where the application of a law is inevitable and consequences attach to it. iv. There was minimal harm to denying review and so it was found not ripe. court found the case ripe because he would have to choose between giving up freedom of speech or imprisonment. 1. iii. etc. Hardship is Prerequisite for Ripeness. . Hardship from choice between possibly unnecessary compliance and possible conviction. 1. The fact that CT had not chosen to press the enforcement of the statute deprived these controversies of the immediacy which is an indispensible condition of constitutional adjudication. Duke Power case again. Contraceptives were commonly and notoriously sold in CT drugstores. Ex: In possible arrest due to anti-vietnam war pamphlets. the more speculative and uncertain the harm. The fitness of the issues for judicial review: The more a question is purely a legal issue the analysis of which does not depend on a particular factual context. Under the regime of the declaratory judgment they should not have to make these choices. But the more judicial consideration of an issue would be enhanced by a specific set of facts. In this case. i. Criticism: What were the people to do? Were the supposed to violate the law and go to prison? Violate the law surreptitiously and hope they did not get caught? This decision left them no choice. the greater the probability that a case seeking preenforcement review will be dismissed on ripeness grounds. 1. or just one of them? The interaction is not clear. Even though the injuries that the P-A act limited liability for had not occurred. the court seems to say that you need some of both. 1.

By definition. Ex: criminal D dies during trial. Roe v. and a suit by students against school censorship was moot after they graduated. Four exceptions due to the flexible character of the mootness doctrine: 1. Mootness:  An actual controversy must exist at all stages of federal court proceedings. her pregnancy was completed and she no longer sought an abortion. if a case is moot. Collateral Consequences: Injury survives after the P’s primary injury has been resolved. i. the challenge to criminal convictions is not moot because of the adverse effects still felt—things like not being able to get jobs. not being able to vote. . Ex: two Ds challenged the constitutionality of the legality of evidence seized from them during a stop-and-frisk. The challenge to the state law prohibiting abortions truly could be capable or repetition yet evading review. Wade (1973) (P. Holding – Her case was not moot. 2. in all likelihood it is less flexible. But the SC refused a request to dismiss because the duration of pregnancy was inherently likely to be shorter than the time required for federal court litigation. if a challenged law is repealed or expires. Although they served their time. However. a Ds challenge to state law denying him pretrial bail was deemed moot after his conviction. whereas the prudential concern about the record is to be given less weight.Thus it appears that preenforcement review is possible only if there is both hardship to denial and an adequate factual record. the court held that their challenge to the constitutionality of their convictions was not moot. and the increase of severity of future convictions. Because the hardship requirement is constitutionally based. 99) – Facts – The P was pregnant when she filed her complaint challenging the constitutionality of a TX state law prohibiting abortion. Even after a D has served a sentence. the case should be dismissed as moot. If events subsequent to the filing of the case resolve the dispute. at both the trial and appellate levels. by the time she reached the SC. Reasoning – Intervening circumstances meant that there no longer was a live controversy between the P and the state. Wrongs Capable of Repetition Yet Evading Review: Some injuries are over so quickly that they always will be moot before the court litigation process is completed. there no longer is an actual controversy between adverse litigants. The doctrine derives from Article III’s prohibition of advisory opinions.

The court ordered a temporary injunction allowing him to attend school while the case was pending. Reasoning – The controversy between the parties had clearly ceased to be definite and concrete and no longer touched the legal relations of parties having adverse legal interests. Moore v. 99) – Facts – The P. Criticisms: Some people think the case should have constituted a wrong capable of review yet evading review. Reasoning – It presented a wrong capable of repetition yet evading review. applied for admission to the U of W law school and was denied acceptance. . Typical in restraints on speech. Also.Take-away: Two criteria must be met in order for a matter to fit within the wrong capable of repetition yet evading review exception: a. It must be a type of injury of inherently limited duration so that it is likely to always become moot before federal court litigation is completed. Holding – The court held that the case was not moot. The court said that the P might again seek access to the ballot for independent candidates and that the matter would always escape review because litigation could never be completed before the election. DeFunnis v. The injury must be of a type likely to happen to the P again. However. Odegaard (1974) (P. ii. He sued the school contending that he was discriminated against because of the school’s preferential treatment of minority candidates. iii. 98) – Facts – a suit was brought challenging a state law requiring the obtaining of a certain number of signatures in order for an independent candidate to get on the ballot to run for president or vice-president. Holding – The court held that the case was moot. like the court said. a white male. challenges to election laws. there was no reason to believe that the issue would evade review because not every challenger would obtain an injunction securing law school attendance while the case was pending. b. The election was held before the case was heard by the SC. there was no chance that P would again be subjected to the law school admissions process. Voluntary Cessation: A case is not to be dismissed as moot if the D voluntarily ceases the allegedly improper behavior but is free to return to it at any time. Oglivie (1969) (P. Not enough to say that it will happen to someone at sometime again. By the time the case reached the SC. 3. the P was in his final year and that he would be allowed to complete his studies regardless of the outcome.

The political question doctrine refers to subject matter that the court deems to be inappropriate for judicial review. Take-away – Ginsberg says that the “heavy burden of persuading” the court that the challenged conduct cannot reasonably be expected to start up again lies with the party asserting mootness. the reason why the ct does not resolve a political question is because of separation of powers. Class Actions: The court has taken a particularly flexible approach to the mootness doctrine in class action suits.Only if there is no reasonable chance that the D could resume the offending behavior is a case deemed moot under this exception. Baker v. The SC consistently has held . The republican form of government clause and the electoral process. the SC has held that a properly certified class action suit may continue even if the named P’s claims are rendered moot. Had to do w gerrymandering and without equal protection was a political question. 104) .is an equal protection case from 14th A. The Guarantee Clause: The US shall guarantee to every state in this union a republican form of government. Reasoning – Voluntary changes in behavior by a D are not sufficient to make a case moot because the D would be free to resume the behavior once the case was dismissed. Six areas of political question: 1. 100) – Facts – Environmental groups brought a lawsuit pursuant to a citizen suit provision of the Clean Water Act against a holder of a National Pollutant Discharge Eliminations System permit. In a series of cases. i. Carr (1962) (P. Contrasted with the Colgrove case where the ct said the case wasn’t brought under equal protection clause. The Ps sought declaratory and injunctive relief. The Political Question:  Certain allegations of unconstitutional government conduct should not be ruled on by the federal courts even though all of the jurisdictional and other justiciability requirements are met. Has authority to decide this case. Friends of the Earth v. 4. alleging that it was violating the mercury discharge limit. Got rid of gerrymandering by getting around the political question doctrine of not hearing cases that question the republican form of government and the electoral process that had been established in Colgrove. Laidlaw (2000) (P. The D sought to have the case dismissed as moot on the ground that it had changed its conduct and complied with the permit requirements and had closed one of its facilities. Holding – The case was not moot. This is quite different from the standing requirements where the P is responsible for showing the constitutional and prudential requirements are met.

Holding – The judiciary will not review the Senate’s use of a committee to hold a hearing and make a recommendation on an impeachment. 121) – Facts. He contested the use of the committee. Nixon argued that the senate’s procedure violated the constitution in that the entire senate did not sit and hear evidence. Nixon v. but this does not mean the court will throw away every case that touches it. Reasoning – The Constitution holds two separate proceedings against officeholders charged of wrongdoing: a judicial trial and . recognition of foreign governments.Nixon was a federal district court judge who had been convicted of making false statements to a grand jury. created a committee to hold a hearing and make a recommendation to the full senate. students sued the government saying that the Ohio State National Guard was improperly trained. challenges to the president’s use of the war powers 3. Ex: the history of the 14th Amendment with Reconstruction Act by placing rebel states under military rule and denying them reentry into the union until they ratified the 14th amendment. 6. issues concerning the ratification and interpretation of treaties. Impeachment Process: i. the court has ruled in favor of the constitutionality of the use of the treaty power for specific subject matters. The HofR adopted articles of impeachment and the senate.that cases alleging violation of this clause presents nonjudiciable political questions. Finally enough states did ratify it but were obviously coerced into it. The Committee recommended removal from office and the entire senate voted accordingly. Nixon refused to resign from the bench and continued to collect his judicial salary while in prison. Congress’s ability to regulate its internal processes. The court dismissed this as a political question because it would require a judicial evaluation of a wide range of possibly dissimilar procedures and policies approved by different law enforcement agencies and it would be inappropriate for a judge to do this. Ex: ct has upheld the constitutionality of the president’s use of executive agreements instead of treaties to implement major foreign policy agreements. in accord. The process for ratifying constitutional amendments. Instances where the federal court cannot shape equitable relief: Ex: After the Kent state shooting. Foreign Affairs: Issues relating to the conduct of foreign affairs pose political questions. 2. 4. US (1993) (P. Relief would require ongoing supervision and control of the ONG. Will not usually touch: declaration of when war starts or ends. Also. 5.

whether the takings clause of the 5th amendment applied to the city. Reasoning – “the constitution was ordained and established by the people of the US for themselves. 1113) – Facts – The Application of the Bill of Rights to the States: The first 8 Amendments in the Bill of Rights detail protection of individual rights. the doctrine is prudential if it reflects the court’s concerns about preserving judicial credibility and limiting the role of an unelected judiciary in a democratic society. SC held that the application of the bill of rights applied only to the federal govt. Facts.Barron sued the city for taking his property without just compensation in violation of the 5th Amendment. In Barron. Is It Constitutional or Prudential? It is uncertain if its one or the other. and . or impeached with less than two-thirds of the senators? They probably would step in then. The fact that the framers deliberately made two distinct forums made the judicial review of the senate’s methods inappropriate.legislative impeachment proceedings. the political question doctrine is not derived from Article III’s limitation of judicial power to “cases” and “controversies. or both. Issue. the SC expressly held that the Bill of Rights was a restriction of federal actions. On the other hand.the Bill of Rights was clearly intended to apply only to the federal government. He contended that the city ruined his wharf by diverting streams and thereby made the water too shallow for boats. for their own govt. Take-away – This case leaves open the question of whether all challenges to impeachment are nonjusticiable political questions. The 10th Amendment holds that powers not delegated to US are reserved to the states. What if the senate flipped a coin. Gore (2000) (P. not state or local conduct. Bush v. Holding. Barron v Mayor: Early in history. The 9th Amendment maintains that by enumerating rights that omission of a right would deny such right. not to state or local govts.” The political question doctrine might be treated as constitutional if it is thought to be based on separation of powers or textual commitments to other branches of the government. Could Congress direct the federal courts to adjudicate a matter that the SC deemed to be a political question? Unlike the other justiciability doctrines.

not for the govt of the individual states. do not limit themselves only to the federal government. Take-away: the ruling in this case basically stripped the 14th amendment of all its meaning. that they were deprived of their property without due process of law and denial of equal protection and that it abridged their privileges and immunities as citizens. 1st Amendment starts. without just compensation. In the dissent.” Take away: Barron meant that the Bill of Rights applied only to the federal government.” It does not say that the fed govt cannot commit such taking. Dispute over framer’s intent on what these words meant and likely that Congress that adopted the 14th Amendment also had disputes amongst themselves. Holding – narrowly construing these provisions. Slaughter-House Cases: Facts – seeing a huge surplus of cattle in Texas. Justice Field says. They argued involuntary servitude. Issues – how the court should construe the newly implemented amendments 13-15 in regard to the claims above.” It could be argued that this provision was meant to apply the Bill of Rights to the states. Reasoning – Justice Miller believes that the 13th and 14th amendment were solely to protect former slaves. They argued that the state law impermissibly violated their right to practice their trade. The court interpreted each provision narrowly and solely to achieve this limited goal. In contrast. the Louisiana legislature gave a monopoly in the livestock landing and the slaughterhouse business for the City of New Orleans to the Crescent City Livestock Landing and the Slaughter-House Company. such as the takings clause. the court rejected the plaintiffs claims.” Argument against: at least some of the provisions of the Bill of Rights. These words were already a part of the Constitution at Art. IV §2. “Congress shall make no law. “If the .” If the framers had intended the Bill of Rights to apply to the states. The law required that the company allow any person to slaughter animals in the slaughterhouse for a fixed fee. Butchers brought suit challenging the grant of the monopoly. Privileges and Immunities Clause: The 14th Amendment states that “No state shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States. The 5th Amendment states “no person shall” and ends “nor shall private property be taken for public use. “they would have declared this purpose in plain and intelligible language.

. and this aspect of the right to travel is protected by the privileges and immunities clause. which accomplished nothing. it was a vain and idle enactment. Roe – Facts – A California law was passed that limited welfare benefits for new residents in the state to the level of the state that they moved from for their year of residence. and has been.[privileges and immunities clause] only refers. the P&I clause “will become yet another convenient tool for inventing new rights. and most unnecessarily excited Congress and the people on its passage. Also. in Saenz there was no dispute that the P was a resident of California. Colgate v. Kentucky. that was overruled 5 years later by Madden v. used to dispute in-state tuition. but also by their status as a citizen of the such privileges and immunities as were before its adoption specially designated in the Constitution or necessarily implied as belonging to citizens of the United States.” Privilege and immunities clause was rendered a nullity by this case and has been ever since. can argue that Saenz is distinguishable because in-state tuition preferences draw a distinction between in-staters and out-ofstaters and involve the state’s ability to define when a person becomes a resident of the state for purposes of receiving particular benefits. Reasoning – The right to travel is a fundamental right. another dissent was that the decision did not give enough evaluation of the framers of 14th A intent. Tutorial 10-19: . limited solely by the predictions of those who happen at the time to be members of this court.” Note: Could be. Holding The right is protected not only by the new arrival’s status as a state citizen. as held by the majority of the court. Revival of the Privileges and Immunities Clause: Saenz v. Without regard to these considerations. Court breathed life into this clause of the 14th amendment that had been relied upon in only one other court decision. Take-away: Dissenting disagreed with the revival of the privileges and immunities clause as a basis for protection rights. Harvey. Issue – What is at issue in this case is the right of the newly arrived citizen to the same privileges and immunities enjoyed by other citizens of the same State. One aspect of this right of new residents to be treated the same as longer term residents of a state. Although.

This goes against the previous rulings. Narrow because of the facts and the rememdy. In doing so Rehnquist created a new test: activity in question must be economic or commercial in nature for the aggregation to apply. Activity was not economic in nature. All exam shit. The results showed that bias against women did affect the economy. guns free zone act. The court held that you can aggregate noneconomic activity under the Wickard test. Not a lot of congressional discussion into effect. and if Cong has decided one way. Went all out in using the rational basis test. Jurisprudence of ct and holdings 3. Brandeis brief: if could be two rational ways to decide a contentious issue. govt can regulate some state activities but not in a specific manner. Historical understand: original intent 2. The ct struck it down. ct did strike it down. The activity to be regulated can only be aggregated using the Wickard analysis if it is economic in nature. Problem 2. They disregarded the rationality test which had been used a lot before. Should we read Lopez as a broad or narrow decision? It’s narrow. They go back to the rational basis test. . This decision on the commerce clause is not as important in the range of things Morrison had a lot more hearings and evidence into the effect of the commerce. All they need to do to change the statute is to say that we can regulate any gun that comes through school that comes through interstate means. Lopez doesn’t affect CVR cases because all the others are economic. pg 7: “For the transfer of any human organ…if the transfer affects interstate commerce. Carjacking is an economic activity even though illegal. Holding that you can aggregate non-economic activity 3. 1. Used one fo the tests from Lopez. going to make them to take title.In Lopez. The rule applies to everyone uniformly in the state. Cars are instrumentality. Some questions on test that are similar to this. Cars move through interstate commerce. Re-activation of the rational basis test. If you don’t figure out what to do with the waste. this traffickers trafficking of organ effects xstate commerce. It’s just a drafting issue that Congress could fix quickly. Gonzalez – some of the people who followed the decisions in M and L are trapped. Prinz v US: The rule is that the fed govt in this case cannot commandeer the powers of the state to enact fed programs. Structure of constitution Reno v Condon: Fed. NY v US – 10th Amendment. Forcing to make some sort of regulation. as opposed to Morrison. Problem 5: fed statute prohibits carjacking with gun or vehicle…is constitutional? Yes.” What would the prosecutor have to show to prosecute? In this specific instance. that is enough for the court to give deference to the rational basis test. Holding comes from three things: 1. However. Inconsistent w Morrison 2.

Also. the market was broader than the 5 mile . No explicit mention of local concern. no discrimination. 4. Dean Milk: Disc in effect. Even if they have. Effect If either is “yes. When state acts as participant the dormant clause does not apply. no less restrictive means to achieve end.Two parts to the dormant comm. Hughes: state could subsidize… 2. 3. Local concern was conservation but there was a least restrictive means available. Clause: 1. There was some better method that was being developed at that time that would have been less restrictive. Could have treated the instate minnows the same way they did with the out of state minnows. Do not go to test if discriminatory purpose. No disc on face but in effect. Face b. On face & effect. Market participant exception because of the local govt got together and bought the recycling center. Although not on face. Least restrictive means fail by singly out and favoring one private employer who at the same time regulated all others. Ct uses disc in effect analysis. Possibly discriminatory purpose. There is local concern with the disease. Does not even get into the test. Carbone: discriminatory on face. in effect because Washington apple labeling system was lost and were not able to differentiate themselves from other apples. Taylor v Maine: any out of state fish cannot come in.” then move to: Facial Discrimination: i. Cannot discriminate burden interstate commerce a. Operation of the market and the way the statute is working within it. Hughes v Oklahoma: discriminated on face like Taylor. 3. United Haulers: Ct upholds it. have they also shown that they are using the least restrictive means? Examples: 1. Not only regulating but running. Washington apple was superior to FDA system. There is some local concern in the quality of the milk perhaps but was not the least restrictive means. Govt can favor instate public orgs but cannot favor private orgs. Has state shown legitimate local concerns? ii. Almost disc on face because of 5 mile radius. Labeling never even got to the actual consumer so local concern that people wouldn’t understand the labeling was not justified. Hunt Washington Apple: not discriminatory on face because applied to everyone. Effect Discrimination: 1. 2.

The courts narrowly defined the scope of Congress’s powers under the commerce clause. if a state passed a labor law. This is usually referred to as the Lochner era where the courts aggressively protected economic liberties under the due process clause. it would have been struck down for violating the due process clause but if federal government adopted the same law. 2. Late 19th century to 1937. §10. liberty or property. Concurrent to this era. Therefore. . If you want to uphold the statute if its in effect discrimination. “nor shall private property be taken for public use without just compensation. the courts were also using federalism to limit the ability of Congress to regulate the economy. itd be too broad and would allow a lot of laws to be struck down.” Note: Substantive due process is the issue whether a government action is justified by a sufficient purpose whereas procedural due process focuses on whether the government has provided adequate procedural safeguards in taking away a person’s life. 5th Amendments Taking Clause states. But if not. §10 of Constitution states. 14th amendment encompassed contracts already. it would have been declared unconstitutional as exceeding the scope of Congress’s powers or as violating states’ rights and the 10th Amendment. Art I. court found that the freedom of the contract was a basic right under the liberty and property provision of the due process clause. and to acquire. to pursue a trade or profession. “no state shall pass any law impairing the obligation of contracts. and convey property. SC has wavered over time regarding the protection of economic liberties. and also found that the 10th amendment reserved a zone of authority exclusive to the states. History: It is clear that the framers wanted to protect economic liberties. Cannot unduly burden interstate commerce Economic Liberties Refer to constitutional rights concerning the ability to enter into and enforce contracts. you want to stick with Clover and Exxon and if you want to strike it go with Dean and Hunt Exxon is inconsistent with Hunt on the facts because both dealt with parties that were disc to some but not all and Exxon comes to a different decision than Hunt.range and so was going to have an effect on those people. possess. Due process of the 14th Amendment protected the freedom of contracts but this is not the contracts clause in Art I.” Also.

Reasoning . Set key themes of economic substantive due process that would be followed for next 40 years. There was no reasonable end in Lochner. Three major principles in ruling: 1. Lochner v New York (1905) Facts – New York made a law that set the max hours that bakers could work to sixty hours per week or 10 hours a day. to live and work where he will…and for that purpose to enter into all contracts which may be proper. Holding . Lousiana (1897) Facts – A state law was made in Louisiana that prohibited payments on marine insurance policies issued by out-of-state companies that were not licensed or did not have a place of business located in Louisiana. according to the court. stated that freedom of contract is a basic right protected as liberty and property rights under the due process clause of the 14th Amendment. to be free to use them in all lawful ways.” Take-away: In this case. .Loan Association v Topeka – courts struck down city law that imposed a tax to fund bonds to attract private businesses to Topeka. Munn v Illinois – sets precedent for test of reasonableness to be decided by judiciary. and throughout era. Court in Lochner. Reasoning – “The liberty mentioned in the amendment is deemed to embrace the right of citizens to be free in the enjoyment of all his faculties. but ruling held that this was beyond legislative power and an invasion of private right. Allegeyer v.The law interfered with freedom of contract and also did not serve a valid police purpose. *These cases dictated by a sense of “natural law” that was formed by laissez-faire philosophy and social Darwinism. In this case. Court said that the government could interfere with freedom of contract only to serve a valid police purpose: to protect the public safety. necessary and essential. the court moved from speaking only in dicta of due process as a limit on economic regulations to invalidating a state law based on it. 2. right to purchase and sell labor is part of the liberty protected by the amendment. Did not refer to Constitution.The state law was declared unconstitutional because it interfered with freedom of contract and that it thus violated the due process clause of the 14th Amendment. health or morals. Holding – SC declared this law unconstitutional because it violated the due process clause of the 14th Amendment.

Holmes – rejected that the Constitution should be used to limit government regulation and protect a laissez-faire economy. public safety. Reasoning – the courts are without authority to override a reasonably passed law by the state legislature. Court said that ti was the judicial role to carefully scrutinize legislation interfering with freedom of contract to make sure that it served a police purpose. upholding . and the judiciary would carefully scrutinize legislation to ensure that it truly served such a police purpose. reasonable. Dissents: Harlan – emphasized the need for judicial deference to the legislature. The requirements of due process were satisfied as far as the court was concerned.The legislature of NY established a Milk Control Board with power to fix minimum and maximum retail prices to be charged by stores for milk. He said that the legislation was a reasonable way to pretect the health of bakers who suffered serious medical conditions as a result from exposure to flour dust and heat. Lochner era in sum: Freedom of contract was a right protected by the due process clause of the 5th and 14th Amendments. Holding – A state is free to adopt whatever economic policy by legislation adapted to its purpose. This is what was meant by the “passed for other motives” quotation on the bottom of pg 611. The price set was 9 cents a quart and Nebbia sold two quarts and a loaf of bread for 18 cents. The Constitution should not embody a particular economic theory. Issue – Whether the Constitution prohibits a state from fixing the selling price of milk and whether the enforcement of such denied the appellant the due process secured to him by the 14th Amendment. or public morals. “Is it a fair. The Lochner court had both upheld and invalidated some price control. Changes to Lochner era: Nebbia v. the court intended that many laws that purport to be exercises of the police power in reality are to redistribute wealth or to help a particular group at the expense of other. the government could interfere with the freedom of contract only to serve a valid police purpose of protecting public health. and appropriate exercise of the state?” Notes: in this case. NY (1934) – Facts.3. Notes: This case can be viewed as a narrow decision based on the fact that milk was an Important and unique industry and that the market would not be able to fix itself through ordinary means.

What is a Taking? Two types of taking can occur: “possessory” taking occurs when the government confiscates or physically occupies property. It could also be construed as broad by questioning the decisions of the Lochner era.” Purposes: The principle purpose of the takings clause is “to bar the Government from forcing some people alone to bear public burdens which. This SC reversed.” The Takings Clause Both the fed government and the states have the power of eminent domain —the authority to take private property when necessary for government activities. Procedure – Dist ct found law unconstitutional as failing the rational basis test.ones that it deemed to affect the public interest more. “nor shall private property be taken for public use without just compensation. However. Possessory takings: . It sort of questioned the absolute right of contracts and property rights and also declared the need for judicial deference to legislative choices. improvident. Therefore. A “regulatory” taking occurs when the governments regulation leaves no reasonable economically viable use of the property.” There is no bright-line test for determining whether a taking has occurred. or out of harmony with a particular school of thought. Reasoning – The decision stressed the need for judicial deference to legislative choices. should be borne by the public as a whole. except upon written prescriptive authority of one. In other words. in all fairness and justice. the 5th Amendment states. Holding – The Oklahoma law was not unconstitutional. Few coherent principles come out of cases. Nebbia questioned the issue that the government could only regulate to achieve a police purpose and that the court needed to review laws aggressively to ensure that they truly served that purpose. Nebbia may be seen in this light. The court admitted that the law might be illogical in some of its applications but noted that the “day is gone when the court uses the due process clause to strike down state laws regulatory of business and industrial conditions because they may be unwise. Williamson v Lee Optical of Oklahoma (1955) Facts – Oklahoma made a law that any person not licensed as an optometrist or ophthalmologist could not fit lenses or replace frames lenses or other optical appliances.

where the owners of a Hawaii pond spent a substantial amount of money to dig a channel connecting it to the Pacific Ocean. The effect of the law was to prevent companies from exercising certain mining rights. in most if not in all cases there must be an exercise fo eminent domain and compensation to support the act.Loretto v Teleprompter Manhattan CATV – Facts – A city ordinance required apartment building owners to make space available for cable television facilities. It amounted to a small box and some cables on the owner’s roof. it was a taking. pipes. Mahon – Facts – a Penn statute prohibited the mining of coal in any manner that would cause the subsidence of property. In contrast to this is the issue of whether private shopping centers could restrict free speech in Pruneyard Shopping Center v. destroy or invade the property. Holding – This did constitute a taking. there was a substantial interference with “reasonable investment backed expectations. telephone lines. Robins. The US Corps of Engineers deemed it to be “navigable waters” and thus open to use by the government and the general public. the Court applied “the traditional rule that a permanent physical occupation of property is a taking. California decided that there was a state constitutional right to use shopping centers for speech activities and the owners appealed to the SC saying that the mandate to access was a physical invasion of the property. When Is There a Physical Occupation? Occupation becomes more difficult when one considers the issue of when the government requires public access to property.) even though they do no interfere with the landowner’s use of the rest of his land. Unlike other cases. Issue – whether this government regulation constituted a taking. The SC ruled this was not a taking.” Earlier cases clearly established this as a taking (including wires. The distinction between these two cases is that in Kaiser Aetna. Holding – Yes. etc.” Regulatory Takings: Pennsylvania Coal v. the government just regulated its use. An example of this issue is the case of Kaiser Aetna v US. they were required to leave columns of coal underground to support the surface.” Holmes recognized that the government could not function if it had to compensate every person whose property . Reasoning – “When regulation reaches a certain magnitude. Reasoning – Although the amount of space involved was ony about one cubic foot. the government did not confiscate.” but in Pruneyard the Ps failed to show that excluding speakers was “essential to the use or economic value of their property. occupy. The court ruled that this was a taking because the government was transforming private property into public property and in essence allowing the public to occupy the property.

Holding – There was not a taking. the government designated a building as a historical landmark and prevented the owner from constructing a substantial expansion on top of the building. Reasoning – There is a taking “where regulation denies all economically beneficial or productive use of the land.” When Does a Regulation Become a Taking? It’s a taking once the regulation has gone “too far. the Court concluded that there was not a taking requiring just compensation. Lucas v. government regulation is not a taking simply because it decreases the value of a person’s property. the state adopted a coastal protection plan that prevented the construction of any permanent habitable structures on the property. and because it served an important purpose.values decreased because of government action.” Holding – There was a taking. he has suffered a taking. that is. 3. Proc – the state trial ct concluded that this prohibition rendered the property “valueless. Reasoning – The regulation did not deny the owners all profitable use of the building and. The character of the governmental action One important principle si that government regulation is a taking if it leaves no reasonable economically viable use of property. if regulation goes too far it will be recognized as a taking.” There is no formula or rule to answer this question. 2. The extent to which the regulation has interfered with investment-backed expectations. in fact. but he said that “while property may be regulated to a certain extent. to leave his property economically idle. The economic impact of the regulation on the claimant.” . so long as it leaves reasonable economically viable uses. Because designating the building a historic landmark had the effect only of decreasing the value of the property. had not even precluded all development of the air rights above the building. South Carolina Coastal Council – Facts – Lucas purchased beachfront property for almost $1 million. general criteria that should be considered in evaluating whether a regulation is a taking include: 1.” Scalia said that “there are good reasons for our frequently expressed belief that when the owner of real property had been called upon to sacrifice all economically beneficial uses in the name of the common good. Penn Central Transportation Co v City of New York – Facts –Through the city’s Landmarks Preservation Law. However.

. though.Take away: From these two cases. business. land that was originally worth $10. The state acted to protect many apple orchards in the vicinity. frequently have the effect of diminishing the property’s economic value. is of greater value to the public. Schoene – Facts – the State of Virginia ordered the destruction of a large number of ornamental red cedar trees to prevent the spread of cedar rust. Holding – the court sided with the state and did not require that it provide compensation to the owners of the trees. the SC rejected a due process challenge to the revised zoning ordinance and emphasized the government’s strong police purpose in the zoning regulation. the court has refused to find a taking concluding that the regulation does not eliminate all reasonable economic viable uses of the property. Nonetheless. and industrial buildings will make it easier to provide fire apparatus available for the character and intensity of the development in each section. crucial in evaluating whether there is a regulatory taking is the relationship of the government’s actions to the property owner’s expectations. a highly infectious plant disease. therefore. In Euclid v. Amber Realty Co. at the very least.500 an acre. in the judgment of the legislature. Reasoning – When the government is forced to make a choice between the preservation of two types of property – either the cedars or the apples—“the state does not exceed its constitutional powers by deciding upon the destruction of one class of property in order to save another which. there is not a regulatory taking when the government’s action leaves reasonable economically viable use of the property.000 per acre was rezoned so that it could be used only for residential purposes. and its value was reduced to about $2.” Zoning Ordinances: Zoning ordinances limit the way in which a person may use his or her property and. that it will increase the safety and security of home life…” Government Conditions on Development: The above cases concerned government prohibitions or restrictions on the use of propert. it is clear that. Also. The court said “the segregation of residential. but what if the government allows the development of property but subjects it to specific conditions that the developer must meet? The court has answered this by deeming a condition a taking if the burden imposed by the condition is not roughly proportionate to the government’s justification for regulating. Miller v. Generally.

Parker. The Supreme Court has expansively defined “public use” so that virtually any taking will meet the requirement. even though no particular individual is permitted to station himself permanently upon the premises.” In an expansive view of public taking. and with the plan of selling ownership to a much larger number of people. Holding – the taking was for public use. The state used its eminent domain power to take the property. it is public use so long as the government acts out of a reasonable belief that the taking will benefit the public.once the object is within the authority of Congress. the legislature. the right to realize it through the exercise of eminent domain is clear. “had California simply required the Ps to make an easement across their beachfront property available to the public on a permanent basis…we have no doubt that there would have been a taking. Issue – whether or not the government was impermissibly taking from some private owners to give to others. Hawaii Housing Authority v.” IF the taking were deemed to be for private use. the District of Columbia used its eminent domain power to acquire slum properties and planned to sell or lease them to private interests for development. Midkiff – Facts – The state of Hawaii was concerned that so much land was owned by a relatively few amount of people which was a result of Hawaii’s precolonial property system that restricted ownership to the island’s chiefs and nobility.” Take away: A taking is for public use so long as the government is taking property to achieve a legitimate government purpose and so long as the taking is a reasonable way to achieve the goal. the taking would be invalidated and the government would have to return the property to the owner. They have indicated that a taking is for public use as long as it is an exercise of the state’s police power. that is. with just compensation.Nollan v California Coastal Commission – Facts – The government conditioned a permit for development of beachfront property on the owner’s granting the public an easement to cross the property for beach access. Holding – the court said that there would be a taking if the government were to require the property owners to grant an easement. not the judiciary is the main guardian of the public needs to be served by social legistlation…. Reasoning – the government met the rational basis test. The owners argued that the taking was not for “public use. The rational basis test is used to determine if taking is for public use. The action was for public use . the court delivered this ruling: “In such cases.” What Is A Taking For Public Use? The Fifth Amendment authorizes the government only to take private property for “public use. so that real property may continuously be traversed. We think a permanent physical occupation has occurred…where individuals are given a permanent and continuous right to pass to and from. Reasoning – Scalia wrote. In Berman v.

Fundamental Rights for Due Process The Supreme Court has held that some liberties are so important that they are deemed to be “fundamental rights” and that generally the government cannot infringe upon them unless strict scrutiny is met. City of New London . Almost all of these rights cases have been protected but the Court under the due process clauses of the Fifth and Fourteenth Amendment and/or equal protection clause of the Fourteenth Amendment. saying that it dramatically changed the law. held that a taking is for public use so long as the govt acts out of a reasonable belief that the taking will benefit the public. Note: Some people were upset with this holding. Also. relying on Berman and Midkiff. 2. Equal Protection Clause: the issue is whether the government’s discrimination as to who can exercise the right is justified by a sufficient purpose. Issue – whether this is a public taking. Due Process: If a right is safeguarded under due process.Facts – An economically depressed city sought. Some of the owners did not want to sell their land. it will be a taking for “public use. through a private economic development corporation.because it acted out of a reasonable belief that distributing ownership among a larger number of people would benefit the public. to take private property for purposes of a new economic development project. it is in congruence with the Berman case and the need for great deference to the legislature. Reasoning – The court.” The way around this if dissatisfied is to create state laws that restricts this notion. In reality.” Kelo v. “The Court has made it clear that it will not substitute its judgment for a legislature’s judgment as to what constitutes a public use unless the use be palpably without reasonable foundation. The main difference between the two as the basis for protecting fundamental rights is in how the constitutional arguments are phrased: 1. O’Connor said. The court said that in this case the taking would benefit the public by creating new jobs and increase economic growth. the court applied the exact same standard that had been articulated for decades: that as long the government acts out of reasonable belief that the taking will benefit the public. Strict scrutiny means that the government must justify its interference by providing that its action is necessary to achieve a compelling government purpose. the constitutional issue is whether the government’s interference is justified by a sufficient purpose. Holding – Yes. .

. If a right is not fundamental. the ninth amendment is used to provide a textual justification for the Court to protect nontextual rights. This requires the government to prove that it could not attain the goal through any means less restrictive of the right. The Supreme Court has never articulated criteria for determining whether a claimed purpose is to be deemed “compelling. the next question must be: Has the government infringed upon the right? The Supreme Court has said that in evaluating whether there is a violation of a right it considers “the directness and substantiality of the interference. Debates and theories exist regarding how the Court should decided which rights are fundamental that are not supported by the text or clear intent of the framers. such as the right to privacy. If the right is not fundamental than only the rational basis test is applied.If a law denies rights to everyone. Framework for Analyzing Fundamental Rights: 1. only a legitimate purpose is required for the law to be sustained. the government will usually be able to prevail only if it meets strict scrutiny. the discrimination can be challenged as offending equal protection or the violation of the right can be objected to under due process. Is the Means Sufficiently Related to the Purpose? Under strict scrutiny is not enough for the government to priove a compelling purpose behind a law. especially not rights explicitly mentioned in the Constitution. the government must also show that the lawa is necessary to achieve the objective. Is there a fundamental right? If a right is deemed fundamental. It states. under what circumstances is the government’s action an infringement? 3. 2. the government must present a compelling interest to justify an infringement. Is the Constitutional Right Infringed? If there is a fundamental right. Rather. shall not be construed to disparage others retained by the people. but if a law denies a right to some. Is There a Sufficient Justification for the Government’s Infringement of a Right? If a right is deemed fundamental.” Basically.” The government has the burden of swaying the court that a truly vital interest is served by the law in question. 4. The Ninth Amendment: often mentioned in discussion of fundamental rights. then the due process would be the best grounds for analysis. “The enumeration in the Constitution of certain rights. while allowing it to others. under rational basis. the means only has to be a reasonable way to achieve the goal and the government is not required to use the least restrictive alternative. In comparison.” There are no ninth amendment rights in that rights are not protected under it.

Notes: Douglas wanted to avoid the use of substantive due process and instead used the “penumbra” of the Bill of Rights. was prosecuted for providing contraceptives to a married woman. Connecticut – Facts – A state law prohibited the use and distribution of contraceptives. Reasoning – “It is better for all the world.Constitutional Protection for Reproductive Autonomy: The Right to Procreate: The Supreme Court has held that the right to procreate is a fundamental right and therefore government imposed involuntary sterilization must meet strict scrutiny. society can prevent those who are manifestly unfit from continuing their kind…Three generations of imbeciles are enough. Fourth. Holding – this sterilization was constitutional. Buck (1927) – Facts – Virginia sterilized and 18-year-old woman named Carrie Buck. Griswold. if instead of waiting to execute degenerate offspring for crime. Essentially. Third. Bell v. He said that the “specific guarantees in the Bill of Rights have penumbras. formed by emanations from those guarantees that help give them life and substance. The Court declared unconstitutional the Oklahoma Habitual Criminal Sterilization Act that allowed courts to order the sterilization fo those convicted two or more times for crimes involcing “moral turpitude. Initially this position was rejected by the Court in Bell v. The court did not explicitly overrule Buck v Bell but the right to procreate is deemed fundamental and any attempt to impose involuntary sterilization is to be met with strict scrutiny. pursuant to a law that provided for the involuntary sterilization of the mentally retarded who were in state institutions. Buck. the executive director of the Planned Parenthood League of Connecticut. This approach has been criticized and was not followed in subsequent cases. Holding – The right to privacy is a fundamental right.” The court found that the law violated equal protection. The court rejected this approach in Skinner v. and a physician. Reasoning – Douglas rejected the right coming from the Due Process Clause but instead said privacy was found within many of the specific provisions of the Bill of Rights. . Various guarantees create zones of privacy. even though he was trying to avoid due process. the Bill of Rights is guaranteed to the states through the 14th Amendment and so ultimately penumbra approach is a due process analysis. and Fifth Amendments. such as the First. or to let them starve for their imbecility.” He then concluded that the Conn law violated the right to privacy in prohibiting married couples from using contraceptives. Oklahoma in 1942. The Right to Purchase and Use Contraceptives: Griswold v.

Also. Holding – the court found that the law denied equal protection because it discriminated against nonmarried individuals. to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” Also. An individual was convicted for giving a woman a package of contraceptive foam at the completion of a lecture on birth control. While White said that the law did not even need to meet a rational basis test. It also establishes rights for unmarried couples as well as married couples. Douglas did not focus on a right to avoid procreation or to make reproductive choices. and Brennan wrote concurring opinions focusing on the ninth amendment as the authority for the court to protect this privacy. The court found that limiting the distribution unduly restricted access to birth control and infringed the right to control procreation. and in protecting the distribution of contraceptives and their use. married or single. Notes: This case expands Griswold in recognizing a right to control reproduction as a fundamental right. Harlan said that the right to privacy should be protected under the due process clause. Douglas focused on the need to protect the privacy of the bedroom from intrusion by the police and the ability to control information about contraceptive use. White said that he “wholly failed to see how the ban on the use of contraceptives by married couples in any way reinforces the State’s ban on illicit sexual relationships. Other concurring opinions: Goldberg. it is the right of the individual. Warren. The case also restricted distribution to licensed pharmacists to those under 15. the court said that prohibiting the distribution of contraceptives served no legitimate legislative purpose.“If the right of privacy means anything.” Dissenting opinions: Black and Stewart said that the law was constitutional because there was no right to privacy mentioned in the Constitution. Populations Services International declared a New York law that prohibited the distribution of contraceptives to minors under the age of 16 unconstitutional. Carey v. Rather. A Fundamental Right to Control Reproduction: Eisenstadt v Baird (1972) – Facts – Massachusetts made a law that prohibited distributing contraceptives to unmarried individuals and that only allowed physicians to distribute them to married persons. Also. The court said that they doubted that prohibiting the distribution of contraceptives would deter teenage sexual activity and they thought it . Reasoning.

the government also could not outlaw abortions. regulate the abortion procedure in ways that are reasonably related to maternal health.irrational that the state would want an unwanted pregnancy to be the punishment for fornication. is constitutional protected even though it is nowhere mentioned in the text of the Constitution and was not considered by its framers. ruling that the government may regulate abortions before viability so long as it does not place an “undue burden” on access to abortions. . Specifically. The state has “compelling interest” in protecting maternal health after the first trimester because it was then that abortions became more dangerous than childbirth. unlike Griswold and his penumbra argument. the right to privacy is found within the due process clause of the 14th Amendment.” Finally. The Court held that strict scrutiny must be used when balancing these two because the right to abortion is a fundamental right. Wade protects a right for a woman to choose to terminate her pregnancy prior to viaility—the time at which a fetus can survive on its own outside the womb. He cited the emotional and psychological harm of the woman that may result from maternity and also the distress for all concerned associated with an unwanted child. right of privacy is broad enough to encompass the woman’s right to decide whether or not to terminate her pregnancy. the state could not prohibit abortions and could regulate them only as it regulated other medical procedures. Reasoning – Blackmun says that it does not matter whether you turn to the ninth amendment or the 14th amendment to find right of privacy. Wade (1973) – Facts – A Texas law prohibited all abortions except those necessary to save the life of the mother. Planned Parenthood modified some of the framework set in Roe. Roe v. Casey v. The court did state that the right to abortion is not absolute and that it must be balanced against other considerations such as the stat’s interest in protecting prenatal life. for the stage subsequent to viability. such as the ability to control procreation. Holding – the law is unconstitutional. the government may prohibit abortions except if necessary to save the mother’s life or health. but the government “may. During the first trimester. This case challenges that law. The court also held that the term “person” in the Constitution was never meant to apply to fetuses. Viability became the courts distinction for the “compelling” point and they divided pregnancy into three trimesters. Take away: These cases exemplify how the Court should interpret the Constitution where a basic right. The Right to Abortion: Roe v. Blackmun did say that. During the second trimester. ifit chooses. the Court ruled that the government may not prohibit abortions prior to viability and that government regulations of abortions had to meet strict scrutiny.

The Court has protected other rights concerning family and reproductive autonomy. b. Some people focus less on the issue of judicial methodology and more on the Court’s substantive judgment that protecting the fetus was not a sufficiently compelling interest to justify the prohibition from abortion. etc. 2. The court was correct in not deciding the question of when personhood beings. Even if the fetus is regarded as a person. The Court gave insufficient weight to the state’s interest in protecting the fetal life. Such rights include the right to marry. the right to keep the family together. . The argument is that laws prohibiting abortion apply exclusively to women. the law should not force the woman to be an incubator against her will. Therefore it was correct for the Court to leave the decision to the woman to decide for herself when life begins. even if you grant that the fetus is a person at the moment of conception. The Court was wrong to protect abortion because the right is neither mentioned in the text nor intended by the framers. Responses to these objections (in order): 1. Two responses to this: a. and none of these are explicitly mentioned but are still aspects of “liberty” which the Fourteenth Amendment protects.Dissent: White and Rehnquist said the question of abortion should have been left to the legislative process Objections to Roe: 1. Forced motherhood is sex inequality. the right to custody. Parents are not require to donate organs to save their children’s lives and so neither should a woman be forced to donate their wombs and bodies to sustain fetal life. and thus should be marked as gender discrimination. it is often left to values centered around social meanings and sexual politics. Since there is no scientific determination as to when life begins. The Court erred in using due process rather than equal protection as the basis for its decision. Many argue that this is a bad decision because it is bad constitutional law. 3. 2.

Scalia said that the plurality opinion effectively would overrule Roe v Wade but that he thought it should have been done more explicitly. Reproductive Health Services (1989) – Facts – Missouri passed a law that declared the stat’s view that life begins at conception. NOTES: The Rehnquist opinion did expressly urge the overruling of Roe v Wade but it was the implication of declaring that states have a compelling interest in protecting fetal life from the moment of conception. still comes down to the same basic question of whether or not the government’s interest in protecting fetal life justifies prohibiting abortion. Reasoning – The court did not see why the state’s interest in protecting potential human life should come into existence only at the point of viability. and that there should therefore be a rigid line allowing state regulation after viability. Under equal protection law. Wade should be reaffirmed. creating requirements for reporting and record keeping. Casey (1992) – Facts – A Pennsylvania law regulated abortions. prohibited the use of government funds or facilities from performing or “encouraging or counseling” a woman to have an abortion and allowed abortions after 20 weeks of pregnancy only if a test was done to ensure that the fetus was not viable. but prohibiting it before viability. . Reproductive autonomy is a fundamental right even though it is not explicitly mentioned in the text of the Constitution. O’Connor was the fifth vote for the result in Webster but ruled only on the specifics of the Missouri law and did not speak on the question of whether Roe should be revisited. if there was an evolution of legal principles that undermined the doctrinal foundation of the precedents or if there was a change in the factual predicate for the decisions. requiring physicians to inform women of the availability of information about the fetus. Basically. The court said only overrule if the decisions had proven unworkable. that is. like a privacy approach. nothing is gained by shifting to an equal protection analysis. gender discrimination is okay if intermediate scrutiny is met. Holding – The SC upheld the Missouri law. if the government’s action is substantially related to an important government interest. The court also brought in the concept of stare decisis and the circumstances that justify overruling an earlier precedent. An equality analysis. Webster v.3. Reasoning – The essential holding of Roe v. The dissent saw this ruling as a Court on the verge of overruling Roe. requiring parental consent for unmarried minors’ abortions. the court finds them unconstitutional. and requiring spousal notification. Holding – Where state laws place an undue burden on access to abortion. Planned Parenthood v.

Should these women become pregnant. There is no statement that the goal of the alw must be compelling or important or . he would have rejected all of the challenged provisions in the Pennsylvania law. The court did overrule the trimester framework articulated in Roe. SPOUSAL NOTIFICATION REQUIREMENT: Majority noted the prevalence of men abusing their wives and said that a spousal notification requirement could trigger such abuse. The test then moves to whether state regulation places an “undue burden” on access to abortion. undervalues the State’s interest in potential life. they may have a good reason to choose not to inform their husbands or their decision to obtain an abortion. Blackmun wrote that he would have maintained the strict scrutiny and continued the basis framework in Roe. They also recognized that a husband has an interest in whether his wife has an abortion but “the inescapable fact that state regulation with respecft to the child a woman is carrying will have a far greater impact on the mother’s liberty than the father’s. Thus. As to the Pennsylvania laws. but after viability. There are some problems in determining what constitutes an undue burden: 1. concurring. What Is An Undue Burden on the Right to Abortion? Stenberg v. abortions may be prohibited except where necessary to protect the woman’s life or health. CONCURRING: Stevens and Blackmun. The court said the framework misconceives the nature of the pregnant woman’s interest and in practice. the court found that none of the regulations placed undue burdens on access to abortion except for the spousal notification requirement. He did not think that the trimester framework had been undermined.NOTES: The court reaffirmed the viability dividing mark as the line during pregnancy: before viability the court cannot prohibit abortion. this requirement is likely to prevent a significant number of women from obtaining an abortion and that the choice is theirs alone. Carhart was the first time that the court said that the undue burden test is to be used in evaluating laws regulating abortion. as recognized in Roe. The undue burden test is confusing because it melds three issues together: is a fundamental right infringed? Is the infringement justified by a sufficient purpose? Are the means sufficiently related to the end sought? No level of scrutiny is articulated by the court. They pointed out that there are millions of women who are the victims of regular physical and psychological abuse at the hands of their husbands.” Therefore.

homosexuality activity did not fall within these rights. This causes internal tension within the same decision. or a tradition of being safeguarded. How is it to be decided which of these laws is invalid as an undue burden and which is permissible? The definition can be circular. The court implied that an undue burden exists only if a court concludes that a regulation will prevent women from receiving an abortion. White said that the Court should protect rights as fundamental only if they are supported by the Constitution’s text.” defined as sexual activity between same sex couples. have more . Constitutional Protection for Sexual Orientation and Sexual Activity: Bowers v. Kennedy said that the laws involved in Bowers and in this case. 2. Hardwick (1986) – Facts – Hardwick was arrested fro engaging in homosexual activity in his bedroom. The men were convicted under a Texas law prohibiting “deviate sexual intercourse. the SC upheld the Georgia statute. by doing so. Lawrence v. the framer’s intent. The joint opinion says both that the state cannot act with the purpose of creating obstacles to abortion and that it can act with the purpose of discouraging abortion and encouraging childbirth. They went to investigate and entered the apartment and found two men engaged in sexual activity. A police officer came to his apartment on a totally unrelated matter. are statutes that purport to do nothing more than prohibit a particular sex act. Holding – In a 5-4 decision. Reasoning – The earlier decisions protecting privacy pertained to matters of family and reproduction. overruled the decision in Bowers. White did not find in the text or tradition a fundamental right to engage in homosexual activity. A roommate answered the door and directed him to Hardwick’s room where he witnessed homosexual behavior. Holding – the court struck down the Texas law and. but the spousal notification requirement was struck down because it was “likely to prevent” abortion where the 24-hour wait requirement was constitutional because there was inadequate evidence to show that this would keep someone from getting an abortion. Reasoning – There is a constitutional protection for all individuals in the most intimate and private aspects of their lives.that the means have to be necessary or substantially related to the end. Their penalties and purposes. White asserted that there was no connection between family. marriage or preocration on the one hand and homosexual activity on the other. He arrested Hardwick for violating the Georgia sodomy law. Texas (2003) – Facts – Police in Texas received an anonymous tip of a disturbance in an apartment. though.

Also. the court did not mention the idea that this was a fundamental right or mention strict scrutiny at all. Lawrence does three things: 1. sexual behavior. The silence of the decision about the level of scrutiny leaves this issue open until the SC returns to it and offers needed clarification. Also. Problems: the court did not articulate the level of scrutiny to be used. Lawrence is a powerful affirmation of a right to privacy under the Constitution. the home. Texas justified the law as advancing its moral judgment and traditionally this is enough to meet the rational basis test. even though it is not enumerated in the Constitution. the court did rely on privacy cases where strict scrutiny had been used. for almost a century in decisions involving family autonomy. This case recognizes that sexual activity is a fundamental aspect of personhood and that it is entitled to constitutional protection. These statute are often the basis for discrimination against gays and lesbians. 2. and abortion. contraception.far-reaching consequences. . 3. On the other hand. This case means that the laws in 13 states prohibiting private consensual homosexual activity are unconstitutional. and in the most private of places. Kennedy pointed out that the Court has safeguarded privacy. touching upon the most private human conduct. The court’s rejection of this can be seen as implying heightened scrutiny.

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