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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…”
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
Many state laws were invalidated as interfering with freedom of contract. A min wage law would fail as impermissibly interfering with freedom of contract. 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. others left to states. Ex. commerce was one stage of business. Dual Federalism embodied in three doctrines: 1. that each had a separate zone of authority. . distinct from other phases such as manufacturing. Specifically. which the Court found to be protected as a fundamental right under the liberty of the due process clause. Dual Federalism: the view espoused during this time that the federal and state governments were separate sovereigns.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. or production. mining. the court was controlled by conservative justices who were committed to the laissez-faire economics and were strongly opposed to government economic regulations. Ex. A min wage law would fail because it exceeded the scope of Congress’s power. This is the first time the SC aggressively used its power of judicial review to invalidate federal and state laws. Under this view. Court narrowly defined the meaning of commerce as to leave a zone of power to the states. Constitutional law since 1937 is very much a reaction to this earlier era. only commerce could be regulated. Commerce Clause 1890-1937: • LIMITED FEDERAL COMMERCE POWER: During this period.
Ex. Court restrictively defined “among the states” as allowing Congress to regulate only when there was as substantial effect on interstate commerce. Roosevelt’s landslide election in 1936 was seen as a mandate for his New Deal programs that the court was consistently invalidating. because it violated the 10th Amendment. In all other. laissez-faire became more untenable. D sowed 23 acres and harvested an average 239 excess bushels. owns a farm and uses it to herd dairy cattle. even though it was limited to interstate commerce.1 acres and a normal yield of 20. Roosevelt tried his court packing plan to get majority for his programs. 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. the Agricultural Adjustment Act of 1938 set a crop acreage allotment of 11.2. In 1941. 166) – Facts . He would grow a small acreage of winter wheat to sell.Whether the regulation and production of wheat is “beyond the reach of Congressional . or $117. In 1938. Before this could happen though. 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 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. Wickard v.D.1 bushels of wheat an acre. Roberts ended up switching positions to allow for broader federal power known as “the switch in time that saved nine. regulation was left to the state. sell milk. Fillburn (1942) (P. 3. Filburn. Issue . feed his livestock and consume in the home. 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.” The court redefined “affecting commerce” as meaning in commerce or burdening or obstructing commerce or the free flow of commerce. eggs and poultry.49 cents a bushel. He was subject to a fine of .11 in all. Commerce Clause 1937-1995: • BROAD FEDERAL COMMERCE POWER: Leading into the Great Depression.
even though Filburn’s wheat only had a negligible impact on the interstate commerce.” 2. Civil Rights Laws: . 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.”’ Holding . 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. just as does the current demand for the product.power under the Commerce Clause.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. have a substantial effect on commerce. Congress could regulate his production because cumulatively home grown wheat had a substantial effect on interstate commerce.” nor could considerations of its economic effects be foreclosed by calling them “indirect. The requirement is only that the activity.Total supply of wheat clearly affects market prices. 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. Congress could regulate any activity if there was substantial effect on interstate commerce and after Filburn. looked at cumulatively across the country. it was not necessary that the particular person or entity being regulated have a substantial effect on commerce. Reasoning . they would affect both the supply for interstate commerce and the demand for the product. Therefore. 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. The marketing quotas were designed to control the price of wheat. Take away: 1. If many farmers raised wheat for home consumption.
” He favors Congress citing section 5 of the 14th Amendment more than Commerce Clause. Holding Yes. 169) – Facts – This case is a declaratory judgment action that attacks the constitutionality of Title II of the Civil Rights Act of 1964. . like the “right of persons to move freely from State to State. Heart of Atlanta Motel v. it exceeded its power to regulate commerce. HoA says that by passing the CRA with its Commerce Powers. gender. fruit. The US says that by refusing adequate accommodations to anybody. or religion and forbids discrimination by places of public accommodation such as hotels and restaurants. 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. Whether Congress had a rational basis for finding that racial discriminations by motels affected commerce.The court is not the proper entity to review economic decisions of the legislature. has the ability to restrict discrimination based on color in interstate travel through lodging. Congress can use its Commerce Powers to do this. Prior to the CRA. Reasoning . Test: 1.Whether Congress. Issue . Congress’ motive did not have to be commercial because the interstate commerce power was plenary. it interferes with interstate travel and that Congress has the ability to remove these obstructions. US (1964) (P. Commerce Power legislation would be upheld if there were any arguable connection between the regulation and commerce which touched more states than one. steel and coal across state lines. They stated they will continue to do so regardless of the act. through its commerce powers. they refused to lodge African Americans. Heart of Atlanta is a motel that caters and advertises to interstate travelers.” “occupies a more protected position in our constitutional system than does the movement of cattle. • 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.The 1964 Civil Rights Act prohibited private employment discrimination based on race.
Take away from both cases: • • • These cases reflect the breadth of Congress’s commerce power. Under Wickard. is a valid exercise of the power of Congress. Alabama that received 46% of the meat that it purchased annually from out of state. that Congress had rationally concluded that discrimination by restaurants cumulatively had an impact on interstate commerce. Like lottery cases before it. Issue – Whether title II. whether the means it selected to eliminate that evil are reasonable and appropriate.000 worth of food which has moved in commerce. racial discrimination by hotels and restaurants. 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. Reasoning – The decision was not based on the interstate impact of this particular restaurant but rather. in part. McClung (1964) (P. The restaurant refused to serve African Americans in the restaurant. was moral. that interstate travel was obstructed directly by it. it does not matter that Congress’s motive. as applied to a restaurant annually receiving $70. There was no claim that interstate travelers frequented the restaurant. The power of Congress under the commerce clause is broad and sweeping. 171) – Facts – Ollie’s BBQ was a small.2. family-owned restaurant in Birmingham. Holding – District Court erred in concluding that there was n connection between discrimination and the movement of intestate commerce. that business in general suffered and that many new businesses refrained from establishing there as a result of it. looked at cumulatively across the country. There was ample basis for the conclusion that established restaurants in such areas sold less interstate goods because of the discrimination. . If so. Katzenbach v.
regardless of adequacy of findings. which made it a federal offense to carry a gun on school grounds. The presence of a gun near a school did not substantially affect interstate commerce and that the federal law was unconstitutional. He was charged with violating the Gun-Free school Zones Act of 1990. Proc – Lopez was given a bench trial. Three Categories of Activities that Congress can regulate under the commerce clause: 1. On appeal. Congress may legislate to regulate and protect the instrumentalities of interstate commerce.The Commerce Clause After 1995: Narrowing the Commerce Power and Revival of the 10th Amendment: US v. Thus. found guilty and sentenced to 6 months in jail. 2. Reasoning – Re-emphasis on the fact that the Constitution creates a national government of enumerated powers. Issue – Whether the Gun-Free School Zones Act of 1990 was an unconstitutional exercise of Congress’s commerce power. Congress may regulate those activities having a substantial relation to interstate commerce. Holding –SC upheld the 5th circuit but on the grounds that. the 5th Circuit of Appeals found that the law was unconstitutional due to inadequate findings to show a sufficient relationship to interstate commerce. 3. This includes the power to regulate persons and things in interstate commerce such as railroads in several previous cases. the court returns to the notion that Article I limits Congress’s power to those that are express or implied in the Constitution. Lopez (1995) (P. 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. 184) – Facts – Lopez was a 12th grade high school student who brought a gun to school and was arrested. 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 Congress can regulate the use of the channels of interstate commerce. 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. the law is unconstitutional because it was not substantially related to interstate commerce.
there was a lot of legislative history involved in the legislation that showed that. Holding – SC said Congress lacked the authority to adopt the provision under either of these powers. Issue. they sexually assaulted her and raped her. 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. P says that 30 minutes after meeting the Ds. This was appealed and they found the same suspension but downgraded sexual assault to using abusive language. Crawford got to go. During a school-held hearing. Morrison (2000) (P. A gun did not substantially affect interstate commerce. 196) – Facts .Whether the civil damages provision of the Act could be upheld. Reasoning . The P defended the law based on the third part of the test. by itself. 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. but Morrison was found guilty of sexual assault and sentenced him to immediate suspension for two semesters.” Take away: . Morrison admitted to having sexual contact with her despite her twice saying no. violence against women had a substantial effect on interstate commerce. Unlike Lopez though.” Furthermore. The dean eventually set aside the conviction. Here. to sustain the constitutionality of Commerce Clause legislation. cumulatively across the country. • This third category was the basis for the decision in Lopez. on the ground that the violence against women has a substantial effect on the national economy. either as an exercise of Congress’s commerce clause or section 5 of the 14th Amendment. in a concurring opinion.Christy Bronzkala enrolled at Virginia Tech and met the Ds Morrison and Crawford who both played on the varsity football team. the court reaffirms the three part test for Congress’s commerce clause authority that was articulated in Lopez. Still the court rejects this as not “substantial.Gender-motivated crimes of violence are not economic activity. US v. P took D to federal ct under the Violence Against Women Act of 1994 which gains its authority from the congressional commerce clause.restrictive interpretation of congressional power is preferable (substantially affects).
Ct of Apps found in favor of Raich. 205) – Facts . 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. Ct of Apps overruled. buying. county deputies and the DEA came to Monson’s home and after searching her premises.These cases differ from Morrison and Lopez in that they are substantially questions of economic activities. 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. At least in areas that the Court regards as traditionally regulated by the states. and bartering. Gonzalez v. In 2002. Congress cannot regulate noneconomic activity based on a cumulative substantial effect on interstate commerce. 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. Thomas challenges the definition the cts have been using regarding commerce and narrows it as consisting of “selling. Raich (2005) (P.The CSA is a valid exercise of federal power. Holding . Raich’s physician believes that that forgoing cannabis treatment would cause T excruciating pain and could very well prove fatal.Angel Raich and Diane Monson are CA residents who have medical prescription to marijuana under Prop 215 or Compassionate Use Act of 1996. Nevertheless. obtaining or manufacturing cannabis for their personal medical use. Issue . they seized and destroyed her six plants. That simple possession is a noneconomic activity is immaterial to whether it can be prohibited as a necessary part of a larger regulation.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. Reasoning . after a 3-hour standoff with the officials. as . DISSENT: Ct has taken away state as laboratory for change without any proof that homegrown marijuana does effect interstate commerce.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. Proc .
in this decision.” He believes commerce or trade stands in contrast to productive activities like manufacturing and agriculture. are reserved to the States respectively or to the people. 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. did not change the test in Lopez in that Congress may regulate the three. nor prohibited by it to the States. 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. usually the Court speaks of three benefits of protecting state governments: 1. How this decision fits with Lopez and Morrison: The court. it is thought . Also.well as transporting for these products. This notion seems anachronistic in the face of a modern national market economy and decades of federal regulation. substantial effect cannot be based on cumulative impact. 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 dispute over the meaning of the 10th Amendment concerns two interrelated issue of constitutional policy: 1. The court did not revisit its holding in Morrison that in regulating noneconomic activities. 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.
and political ideas. The state had to pick between either taking ownership of the waste or regulating according to the instruction of the Congress. 3. the Congress is not powerless. Reasoning – Congress can regulate the disposal of radioactive wastes. Printz (1992) (P. 216) – Facts – In 1985. Where does one draw the line between the state’s ability to experiment and a need for a strong national mandate? New York v. Also. Enhances democratic rule by providing government that is closer to the people: The smaller the area of government. . Allowing states to be laboratories of change: States with broader power can serve as experiments in the development of new social. 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. 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. 2. the more responsive the government to the interests of the voters. 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. but it could not compel them to do so through the “take title” provision. This value of federalism could be inconsistent with the first value previously discussed. Congress can still set standards that the state and local governments must meet and thereby preempt state and local actions. There were monetary incentives for states to comply with the law and they were able to impose surcharges for wastes imported from other states. in that it can bring up the danger of factions. judicial review will stand as an important check. 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. Even though it is unconstitutional to compel states to adopt law or regulations. economic. Also. Holding – The take title provision in the federal law was unconstitutional.
The Court expressly rejected the argument that a compelling government interest is sufficient to permit a law that otherwise would violate the 10th Amendment. by simply requiring state officers to execute its laws. Also. 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. 226) – Facts – The Brady Bill required that state and local law enforcement officers conduct background checks on prospective handgun buyers. 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. 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. 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: If a federal law compels the state legislative or regulatory activity. That is. the statute is unconstitutional even if there is compelling need for the federal action. Here. Congress had not exercised such powers. Holding – It is not constitutional. 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. This did not violate the 10th Amendment. The bill came about after an LA actress was stalked and murdered because of information given out by the DMV. Issue – Whether compelling these state and local officials to conduct checks is Constitutional. In addition to finding the Brady bill unconstitutional on this ground. . US (1997) (P. Holding – The SC reversed. the power of the president would be subject to reduction if the Congress could act as effectively without the President as with him. Take-away: i. Reno v. Reasoning – Congress was impermissibly commandeering state executive officials to implement a federal mandate. the court limits the scope of the 10th Amendment’s restrictions on Congress. The law is not limited to state governments but also private entities as well. Scalia observed that historically. Condon (2000) (P. the Court also said that it was a violation of separation of powers. Printz v.
state and local laws can be challenged under two principles: 1. The privileges and immunities clause Preemption: If there is a conflict between federal and state law. 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). Congress may prohibit state governments from engaging in harmful conduct. If Congress has not acted. Ex. the distinction between the two can often be blurry. with this last point. Most duties can be characterized either way. The dormant commerce clause 2. . Congress may not impose affirmative duties on state governments but can prohibit conduct However. the federal law controls and the state law is invalidated because federal law is supreme (Supremacy Clause). iii.ii. 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. particularly if the law applies to private entities as well.
Facially Discriminatory Laws: . the dormant commerce clause limits states and local regulation.Two major situations where preemption occurs: 1. the Court broadly defined the scope of Congress’s power under the commerce clause. the state law is deemed preempted. the SC has inferred this from the grant of power to Congress in Article I. The Dormant Commerce Clause: The principle that state and local laws are unconstitutional if they place an undue burden on interstate commerce. Express preemption – where federal law expressly preempts state or local law 2. Implied preemption – implied by clear congressional intent to preempt state or local law. Where the commerce clause authorizes congressional actions. Absent explicit preemptive language. In Gibbons. There is no Constitutional provision that expressly declared that states may not burden interstate commerce. even where Congress has not acted. The court also used Gibbons for considering the commerce clause as an independent limit on state power. 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. Ex. but rather. two types of implied preemption: i. §8 to regulate commerce among the states. Conflict preemption: if a state and federal law are mutually exclusive so that a person could not comply simultaneously with both. Congressional Intent is ultimate touchstone of Preemption. Often found in foreign policy and immigration. ii.
apart from their origin. Holding – The prohibition was unconstitutional. . Serves legitimate local purposes. Issue – Whether the statutory prohibition violates the Commerce Clause. 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. Take-away: Basically. the court found that the ban on importation of live baitfish: 1. Holding – The SC.Since the main issue under the dormant commerce clause is whether the state or local law affects interstate commerce. in the face of invalidity per se precedent. Taylor (1986) (P. this law violated the principle of nondiscrimination. New Jersey (1978) (P. City of Philadelphia v. but were not common in Maine. Maine v. There was no satisfactory way to inspect shipments of live baitfish for parasites or comingled species. Both on its face and in its plain effect. The law was passed to protect Maine’s fisheries from significant threats from parasites that were prevalent in out-of-state baitfish. 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. one key initial question is whether the state law discriminates against out-of-staters or whether it treats in-staters and out-ofstaters alike. 490) – Facts – Maine passed a law that prohibited the importing of live baitfish into the state. Reasoning – The court found that the law should be upheld because there is no other less discriminatory way to prevent these threats. finds this law constitutional. 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. and 2. to treat them differently. Could not adequately be served by available nondiscriminatory alternatives.
Issue . ct sustained and issued an injunction. 467) – Facts . The immediate effect of the ordinance is to direct local transport of solid waste to a designated site within the local jurisdiction. Discriminatory laws must be justified by a purpose that is unrelated to economic protectionism. “tipping fee” a cost higher than the market and a guaranteed waste flow. the counties requested and the legislature created the Oneida-Herkimer Solid Waste Mgmt Authority. Town of Clarkstown. Out of state business is denied access to a local market. Taylor overcame this) There is a strong presumption against discriminatory laws that burden interstate commerce. C&A Carbone v. Oneida-Herkimer (2007) (P. 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. while the economic effects are interstate in breadth. 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. the ordinance drives up the cost for out of state interests. Some companies were overcharging. Reversed. the counties enacted “flow control” ordinances requiring that all solid was generated within the counties be delivered to the authority’s processing site. Too much waste was coming in and clean up was needed. takes business away from cheaper. out-of-state competitors.Town filed for injunction compelling Carbone to conform to the ordinance.Virtual per se rule of invalidity – (Maine v.Clarkstown passed an ordinance requiring that solid waste be processed at a designated transfer station before leaving the city. Requiring Carbone to send waste to the transfer station. 471) – Facts – There was a solid waste crisis in Oneida and Herkimer counties in NY. . Reasoning . The ordinance prevents everyone except the favored local operator from performing the initial processing step. Proc . United Haulers Assn v. In response. NY (1994) (P. Carbone began shipping its solid waste out of state to save costs. One company was conferred a benefit of $81 per ton. thus it discriminates.The ordinance regulates commerce. Also.Whether the flow control ordinance violates the Commerce Clause? Holding – It did. Also. They were given power to impose appropriate and reasonable limitations on competition. St. at an additional cost. 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.
478) – Facts – Oklahoma passed a law that forbade the transport of natural minnows out of the state for purposes of sale. the ordinances were not discriminatory on face because they treat in-state/out-of-state the same. . regardless of the state’s purpose. Reasoning – the statute is discriminatory on its face which in itself. Scalia doesn’t think the courts should perform the Pike balancing test because it should be left to Congress in the “real commerce clause. Also. and in spite of the state’s clam of conservatory purposes. The discriminatory effects were found to be incidental against the legitimate local concerns and by using the Pike test.” Hughes v. 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. the state did not use the least discriminatory alternative available. Holding – The counties action was constitutional. the benefits (incentivizing and monitoring recycling) outweighed the burdens. Reasoning – 1. Oklahoma (1979) (P.They charged a tipping fee. 2. 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. Take-away: The main distinction between the two different outcomes in Carbone and United is that United is public and Carbone was private. this case is different than Carbone in that it is a public entity and not a private one. Also. First. invokes the strictest scrutiny test. Issue – whether the statute violates the commerce clause. Some (Scalia and dissent) think this distinction is weak. 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. Holding – It does. Aside from being facially discriminatory.
while not facially discriminatory. Because virtually all petroleum products sold in MD were produced and refined out of state. had the practical effect of.” Washington had a system for grading apples that was different and more stringent than the federal standard. Take-away: The commerce clause protects the interstate market. Holding – The law did discriminate against interstate commerce. The obvious beneficiary was local business. Exxon Corp v. it does not prohibit the flow of interstate goods. 2. 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. not only burdening interstate sales of WA apples. 3. or distinguish between in-state and out-of-state companies in the retail market. Holding – The law was not discriminatory. 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. but also discriminating against them.Hunt v. from prohibitive or burdensome regulations. Also. The statute stripped away the competitive and economic advantages WA had earned for itself. Since the ultimate destination of the apple boxes is unknown at the time of shipment. place added costs upon them. 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. WA having to raise costs for doing business w NC while NC was left unaffected. giving their apples a damaged appearance. 482) – Facts – A MD law prohibited a producer or refiner of petroleum products from operating a retail service station within the state. Governor of Maryland (1978) (P. Three types of discrimination: 1. Reasoning – The statute. Reasoning – the law creates no barriers whatsoever against interstate independent dealers. or changed their marketing practices to accommodate the needs of the NC market. . Washington State Apple (1977) (P. Washington would have had to obliterate the printed labels. 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. not particular interstate firms. the law meant that these outof-state oil companies could not own service stations in MD.
Also. even though the health and safety of its citizens was cited as the reason for this law. City of Madison (1951) (P. they still erected an economic barrier that protected a major local industry. nondiscriminatory alternatives. State of Minnesota v. Holding – The law was discriminatory against out-of-staters. but it also precluded milk that was pasteurized in other parts of the state from being sold in the city. 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. 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. they could just charge the actual and reasonable cost of such inspection to the importing producers and processors. The net effect was that the tax was borne disproportionately by out-of-staters. There was no approach with a lesser impact on interstate activities available to meet these environmental interests. used balancing test where the environmental benefits of the law outweighed any harms to interstate commerce. the state was taxing both in-staters and out-of-staters. 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. they had other less restrictive.West Lynn Creamery v. If they needed their own inspectors to protect the milk. Reasoning – Even though the law was facially neutral for imposing tax against all milk dealers. . 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. The law prevented mild that was pasteurized in other state from being sold in the city. Holding – this is constitutional. Healy (1994) (P. or sellers are from outside the state. Also. MN had a substantial paper industry but no plastic industry. the law is nondiscriminatory. 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. containers. Dean Milk v. Clover Leaf Creamery (1981) (P. 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. 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. However. In essence. the impact was the same as a discriminatory law.
helping in-staters at the expense of out-of-staters. even with evidence of a protectionist purpose. The Court is more likely to find discrimination if it believes that a law is motivated by a protectionist purpose. the out-of-state plastics industry was disadvantaged but out-of-state paper companies could sell milk containers in the state. but several factors are important: 1. Holding – The law is . 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. No clear criteria for this. 497) – Facts – Iowa passed a law that banned 65-foot double trailers. Consolidated Freightways Corp (1981) (P. yet in Exxon and Clover Leaf. In Clover Leaf. In Hunt. The Balancing Test: If the courts decide that a particular law is not discriminatory against out-ofstaters.Take-away from facially neutral cases: In Hunt and Carbone disparate impact against out-of-staters was enough for finding a law discriminatory. only out-of-state petroleum producers and refiners were kept from operating in the state. the Court emphasized the costs imposed on WA apples producers compared to the NC apple industry 3. Kassel v. proof of discriminatory impact. The law will be unconstitutional if the court decides that the burdens from the law exceed its benefits (Pike test). A law is likely to be found discriminatory if its effect is to exclude virtually all out-of-staters. then a balancing test is used: The court balances the law’s burdens on interstate commerce against its benefits. A law is likely to be found discriminatory if it imposes costs on out-of-staters that in-staters would not have to bear. The state said that they were less safe than 55 foot singles and the law was passed for safety. In Exxon. 2. was insufficient for the Court to deem the law discriminatory.
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
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. They have a “mutually reinforcing relationship. Aliens The dormant commerce clause and the privileges and immunities clause overlap. Discrimination will only be allowed if it is substantially related to achieving a substantial state interest. §2: “The Citizens of each state shall be entitled to all privileges and immunities of citizens in the several states. PI clause can be used only if there is discrimination against out-ofstaters. Who cannot sue under the privileges and immunities clause: 1.” Some key differences: 1.make the electricity is different than electricity itself and so has regulated more than it owns. The DCC can be used to challenge state and local laws that burden interstate commerce regardless of whether they discriminate . Both can be used to challenge state and local laws that discriminate against out-ofstaters. Corporations 2.” 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. Privileges and Immunities Clause: Article IV.
3.against out-of-staters.The court found that the ordinance violated the PI clause. 4. but congressional approval does not excuse a law that violates the PI clause. Corporations and aliens can sue under DCC but not PI clause. If there is such discrimination. Reasoning – The market participant exception only applies with regard to DCC challenges. Analysis under the PI Clause: 1. There is a substantial reason for the difference in treatment b. the market participant clause does not provide exception for the PI clause: United Building & Construction Trades Council v. Has the state discriminated against out-of-staters with regard to P&I that it accords to its own citizens? 2. laws that discriminate are much more likely to be invalidated. So far. Holding. is there a sufficient justification for the discrimination? The Test for Sufficient Justification of Discrimination: a. Also. Mayor of Camden (1984) (P. THE FEDERAL JUDICIAL POWER: . The two exceptions to the DCC do not apply to PI clause. 514) – Facts – A city ordinance required that at least 40 percent of the employees on city projects be city residents. 2. then they do not violate the DCC. The discrimination against nonresidents bears a substantial relationship to the State’s objective (considering the availability of less restrictive means). If Congress approves state laws. Under the DCC. PI clause exclusively to citizens. the court has not found that any law meets this rigorous test.
this provision of the statute was unconstitutional because Congress cannot allow original jurisdiction beyond the situations enumerated in the Constitution. Madison – Facts – The election of 1800 was very political and hotly contested. Jefferson’s sec of state. In 1801. no person—not even the president—could be above the law. 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. This is changed by Marbury v. 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. 2. Congress enacted an act that authorized the president to appoint 42 justices of the peace. 3. Can the Supreme Court issue this remedy? Is mandamus an appropriate remedy? . Marbury v. Adams’s secretary of state. Adams was a federalist and was determined to exercise their influence before the Republicans took office. Ie. Although the Judiciary Act of 1789 authorized such jurisdiction. Issues within the case: 1. because all appropriate procedures were followed. Marbury was one who lost out and filed suit in the SC for a writ of mandamus to compel Madison. Adams made his picks the day before Jefferson took office and the Senate confirmed. The signing. Therefore. to deliver the commission. Adams lost to Jefferson. Holding – The court ruled that it could not constitutionally hear the case as a matter of jurisdiction. not men. Does Marbury have a right to the commission? Yes. Marshal also knew that he had to decide with Jefferson or else he would just ignore the court which would undermine the court. etc.Article III never expressly grants the federal courts the power to review the constitutionality of federal or state laws or executive actions. Madison. Do the laws afford Marbury a remedy? The government is one of law. less than a week before Adams left office. seal. John Marshall. was named the third chief justice of the SC. appointment.
Therefore. rather than the floor of federal jurisdiction. 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. 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. Does mandamus on original jurisdiction violate Article III? Once it concluded that it had original jurisdiction under the section of the JA of 1789. People found out that Nixon . this establishes the power of the judiciary to review the constitutionality of executive actions. US v. Marshal had a forum to declare it unconstitutional and thereby grant the court this power to in the first place. 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. Nixon (1974) (P. Marshall established the principle that federal courts are courts of limited jurisdiction. the court then considered whether this violated Article III. The Court agreed even though Marshall really could have read the section to apply only to appellate jurisdiction. by viewing Article III as the ceiling. 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. The Constitution applies limits on government powers and these limits are meaningless unless subject to judicial enforcement. 329) – Facts – The Watergate burglary happened. Top political officials were implicated in the cover-up. Some though are political questions and cannot be touched.Yes.
However. This all lead to impeachment calls. The court rejected the claim that the Constitution gave the president executive privilege. Justiciability Limits Congressional Limits on the Power of the Supreme Court There is dispute over the ability of congressional restrictions of Supreme Court jurisdiction. Those who believe that Congress can limit jurisdiction to hear particular matters point to the language of Article III. Originalism v non-originalist. Limits on the Federal Judicial Power: 1. The court said it was their role to decide whether the president has executive privilege. Also at issue was that of executive privilege. Evolving through interpretation v. 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. This power though is not absolute. with such Exceptions. These tapes were subpoenaed but Nixon said that he would not comply. and under such Regulations as the Congress shall make. Although some argue that Marbury does not indicate anything that precludes a constitutional interpretation which gives final authority to another branch. It must yield when there are important countervailing interests. the court did find that executive privilege does exist because of the need for candor in communications with advisors. 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.had a recording device in his office that recorded all of his conversations. and if so.” . Interpretive Limits: Narrow and with electoral accountability. How Relates to Marbury: Marbury had given the province and duty of the judicial department to say what the law is. the scope. §2: “The Supreme Court shall have appellate Jurisdiction. both as to Law and Fact. amendments 2.
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. 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. Soon after. federal courts could hear HC petitions only of those who were held in federal custody. 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.” meaning that the SC cannot overturn fact-finding by lower courts. 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. The SC rejected this claim and set the case for arguments on the merits of the MRA. For jurisdiction stripping: the supporters of jurisdiction stripping point to this case as precedent. or laws of the US be either a state or the federal govt. The US government claimed that the federal courts lacked jurisdiction by reading the 1867 act as providing federal court relief only for state prisoners. People who argue against this say that the word “exception” applies to the word “Fact. The Congress wanted to keep the case out of the court so that Reconstruction could not be deemed unconstitutional. 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.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. Before 1867. HOLDING. Ex Parte McCardle (1868) (P. such as abortion or school prayer. 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 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. . under the JA of 89.
Congress adopted a statute providing that individuals whose property was seized during the Civil War could recover the property. Against jurisdiction stripping: Points to case. the SC said that Congress cannot direct the results in particular cases. anytime Congress amends the law will create a change to substantive outcome. the statute provided that a pardon. without express disclaimer of guilt. even after the repeal of 1867 Act. upon proof that they had not offered aid to the enemy during the war. Really. Moreover. Why couldn’t Congress amend the statute to provide that a certain class of citizens. Prior to Klein. but rather only eliminated one of the two bases for its authority. was proof that the person aided the rebellion and would deny the federal courts jurisdiction over the claims. Klein – Facts – In 1863. or compensation for it. In McCardle. those pardoned. For jurisdiction stripping: Klein establishes only that Congress may not restrict SC jurisdiction in a matter that violates other constitutional provisions. 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 SC still had authority to hear McCardle’s case under the 1789 JA (which the 1867 Act modified but did not replace).Against jurisdiction stripping: McCardle is different than modern attempts to prevent SC review of topics such as abortion and school prayer. the federal courts had the power to return seized property. The SC held that a presidential pardon fulfilled the statutory requirement of demonstrating that an individual was not a supporter of the rebellion. Reasoning – While acknowledging Congress’s power to create exceptions and regulations to the Court’s appellate jurisidiction. United States v. In response to this and frequent presidential pardons. Klein establishes that Congress may not restrict SC jurisdiction in an attempt to dictate substantive outcomes Response to proponents of jurisdiction stripping: . were not entitled to recover under the law. Holding – The court held that the statute was unconstitutional. the court was only deciding the constitutionality of statute that did not completely preclude SC review. Therefore. the Congress adopted a statute providing that a pardon was inadmissible as evidence in a claim for return of seized property.
and that the statute violated other constitutional provisions: 1.Two features distinguish Klein. Congress was redefining the president’s pardon power. 40) – An act was passed that both required certain harvesting restriction on land.The court found that Congress had changed the law itself and did not direct findings or results under the old law. The denial of jurisdiction prevented the federal courts from vindicating their protected property interest.The 9th circuit held that the provision was unconstitutional under Klein because Congress was directing the outcome of the pending litigation. In the statute at issue in Klein. Proc. . standing. Reasoning. The statute was arguably unconstitutional as an infringement of the executive’s power under Article II. 2. 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 statute in Klein may have deprived property without just compensation or due process. ripeness. Seattle Audubon Society (1992) (P. Holding – The SC reversed. 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. 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. They include prohibition against advisory opinions. Robertson v. Justiciability Limits: Judiciability Doctrines – Determine which matters the federal court may hear and decide and which must be dismissed. mootness and the political question doctrine.
3. Promotes fairness. The court is centered on controversies being played out to get to the best decision. Brandeis laid these out best in the Ashwander case: 1. Conserves judicial resources. The language defines judicial power in terms of nine categories of cases and controversies. 4. It allows the federal courts to focus their attention on the matters most deserving of review. Separation of powers. The court does not want to squander their political capital on inappropriate matters. The court has decided that in certain instances wise policy militates against judicial review. 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. especially to the individuals who are not litigants before the court. 2. 3. the court said that they would follow certain principles of avoidance. Principles of Avoidance: along with these justiciability doctrines. nonadversary proceeding.Constitutional v. The court will not pass upon the constitutionality of legislation in a friendly. It would be unfair to allow someone to bring a complaint on behalf of a person who is satisfied with a situation. These doctrines exist to ensure concrete controversies and adverse litigants. Reasons for Justiciability: 1. 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 will not anticipate a question of constitutional law in advance of the necessity of deciding it. Improve judicial decision making by providing the federal courts with concrete controversies best suited for judicial resolution. . Others are derived not from the Constitution but from prudent judicial administration. The court depends on other branches to voluntarily comply with judicial orders and that this acquiescence depends on credibility. The idea of political capital comes into play. Prudential Requirements : Some of these doctrines are a result of the Court’s interpretation of Article III of the Constitution. 2.
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. When the validity of an act of Congress is raised. 7. The court will not pass upon the constitutionality of a statute at the instance of one who has availed himself of its benefits. the other on a statutory construction or general law. 42) 2. 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. 5. Prohibition of Advisory Opinions: Article III’s limitations on federal judicial power is that federal courts cannot issue advisory opinions. Criteria to avoid being an advisory opinion: 1. 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. (Like the case involving America’s neutrality in the war between France and England p. There must be an actual dispute between adverse litigants. The court will not pass upon a constitutional question although properly presented by the record. 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. if there is also present some other ground upon which the case may be disposed of. Standing: . one involving the Constitution.4. the court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided. the court will decide only the latter.
A party must raise a claim within the zone of interest protected by the statute in question. . Serves the judicial efficiency process by preventing a flood of lawsuits by those who have only an ideological stake in the outcome. Separation of powers can be undermined by the overexpansion of the federal court or by undue restriction. 4. Concern for separation of powers. 3. Prudential Standing Principles (Congress may override by statute): 1. the question of whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues. A party generally may only assert their own rights and cannot raise the claims of third parties. (although. Must allege that P suffered or immediately will suffer an injury. general grievance in a citizen suit is constitutional. Reasons for Standing: 1. P must allege that a favorable federal court decision is likely to redress the injury. A P may not sue as a taxpayer who shares a grievance in common with all other taxpayers. 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. 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. P must allege that the injury is fairly traceable to D’s conduct. Requirements for Standing: Constitutional Restrictions (cannot be overridden by statute): 1. In essence. 3. not prudential) 3. 2. 2. The determination of whether a specific person is the proper party to bring a matter to the court for adjudication.
EPA (2007) (P.Massachusetts and several other states petitioned the Environmental Protection Agency (EPA). Circuit. the schools would either stop discriminating or have to charge more money because of the loss in tax break. Issues – 1. but also the notion of separation of powers as reason for standing limitations. the Agency had discretion to defer a decision until more research could be done on "the causes. claiming that the Clean Air Act does not authorize the Agency to regulate greenhouse gas emissions. Massachusetts v. Either way. Take-away: Issues of injury/redressability both at work. Even if it did. even though a change in the IRS policy might have been redressability. If the IRS enforced the law. 53) – Facts . 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. Holding – 1. Their children’s chances to receive an integrated education were diminished by the continued tax breaks to discriminatory schools. more white students would likely attend the public schools." EPA denied the petition. Reasoning – Even in the second claim. EPA argued. Massachusetts argued that EPA was required to regulate these "greenhouse gases" by the Clean Air Act . asking EPA to regulate emissions of carbon dioxide and other gases that contribute to global warming from new motor vehicles. Issue .1) May the EPA decline to .which states that Congress must regulate "any air pollutant" that can "reasonably be anticipated to endanger public health or welfare. The first injury was too abstract to confer standing. Wright (1984) (P. it was still insufficient for standing because the IRS did not cause the segregation. and a divided panel ruled in favor of EPA. 2.C. extent and significance of climate change and the potential options for addressing it. The second claim state an injury but is denied of standing because of an absence of causation.Constitutional Standing Requirements: Allen v." Massachusetts appealed the denial of the petition to the Court of Appeals for the D. Also. The parents and their children were stigmatized by government financial aid to schools that discriminate. 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. 2.
Justice Scalia's dissent argued that the Clean Air Act was intended to combat conventional lower-atmosphere pollutants and not global climate change. but not be able to get rid of it. need to frame to slow down this loss rather than stop it. the Sierra club sought to prevent the construction of a ski resort in Mineral King Valley. In Sierra Club v.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 . 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]". the majority ruled that the EPA was unjustified in delaying its decision on the basis of prudential and policy considerations. Does this apply only to states? The ruling is unclear when it says “litigant” rather than “states. because the potential injuries from global warming were not concrete or particularized (individual and personal). had standing to sue the EPA over potential damage caused to its territory by global warming. The issue was whether the P was adversely affected or aggrieved so as to be entitled to seek judicial review. due to its "stake in protecting its quasi-sovereign interests" as a state.C. The opinion by Justice John Paul Stevens held that Massachusetts. Take-away: MA as a state deserves special solicitude.” Injury: loss of coastal wetlands but is not imminent but rather decades away. Morton.No and yes. 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. Finally. Circuit and ruled in favor of Massachusetts. The Act's definition of air pollutant was written with "sweeping. The Court held that if the EPA wishes to continue its inaction on carbon regulation. By a 5-4 vote the Court reversed the D. it is required by the Act to base the decision on a consideration of "whether greenhouse gas emissions contribute to climate change. Redressability: Some favorable federal court holding would slow rate of loss of coastal wetlands. To show injury." "capacious" language so that it would not become obsolete. The club asserted a special ." Chief Justice Roberts's dissenting opinion argued that Massachusetts should not have had standing to sue. This is a lenient test for demonstration of causation especially when compared to some of the other cases.
Reasoning – Although Lyons could bring a suit seeking damages for his injuries. personally. 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. 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. City of LA v. Again. 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 Sierra Club failed to allege that it or its members would be affected in any of their activities or pastimes. They needed one member to walk through the park. In fact. Result – The court ruled that Lyons did not have standing to seek injunctive relief. the club amended its complaint to allege that its members did use the park and they were accorded standing. The students maintained that their enjoyment of the forests and streams in the area would be lessened as a result. Nowhere in the affidavit did the club state that its members use the park for any purpose. he did not have standing to enjoin the police because he could not demonstrate a substantial likelihood that he. The decrease in recycling would lead to more use of natural resources and thus more mining and pollution. 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. . 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. on remand. Lyons (1983) (P.interest in the conservation of the park but the court found this insufficient for standing. would be choked again in the future. in the SCRAP case.
Lujan v. Could Hays not claim injury as having been excluded from that district due to the drawing of the lines? FEC v. Hays (1995) (P. 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. Their desire to return someday is insufficient for standing without any concrete plans or any specification of when that someday will be. Reasoning – The fact that the women had visited the country in the past did not prove that they would return. The Ps claimed that the failure to comply with the Act increased the rate of extinction of endangered and threatened species. A federal statute authorizes suit by any person aggrieved by the FEC decision. US v. Akins (1998) (P. personally. 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. 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. 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. Reasoning – Only individuals that reside within a district suffer an injury from how the lines are drawn. 66) – Facts – Congress created a statute that created a right to information. Defenders of Wildlife (1992) (P. 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. Holding – There is no standing. Holding – The court . They had also not shown that they. 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. Also. have been subjected to a racial classification.
Congress gave specific grievance which they cited. an association of home builders that wanted to construct such housing joined as Ps in the suit. Richard D. Linda R. No generalized grievance here. Also. Eastern Kentucky Welfare Rights (1976) (P. the redressability problem is because even if the zoning was changed. 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. the builders might not choose to construct the new housing regardless of the outcome of the lawsuit.S. Also. 67) – Facts – Several Ps challenged the unconstitutionality of exclusionary zoning practices in NY. it would result only in the jailing of the child’s father and the payment would at best be speculative. Claimant has statute to go by. Warth v. there was no definite plan to build lowincome housing. There is a redressability problem. but did not prosecute fathers of illegitimate children. they could not demonstrate that appropriate housing would be constructed without the exclusory zoning ordinances. but not sufficient. Reasoning – Even an injuction commanding the state prosecutions would not ensure that the mother would receive any additional child support money. (1973) (P. If the appellant were granted the requested relief. 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. Take-away: Causation problem because they wouldn’t be able to afford the housing anyways. Holding – The Ps lacked standing Reasoning – Even though they alleged violation of their constitutional rights. The state of Texas had a policy of prosecuting fathers of legitimate children for not paying required child support. The Ps argued that this was unconstitutional discrimination on the basis of the child’s legitimacy.granted standing. Holding – The court dismissed the case for lack of standing. 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. 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 . Causation and Redressability: Injury is necessary for standing. Also. 67) – Facts – An unwed mother sought to have the father of her child prosecuted for failure to pay child support. Seldin (1975) (P. v. 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. Take-away – Congress had created a method for petitioner to be able to bring an action.
under the new provisions only emergency medical treatment of indigents were required. 68) – Facts – 40 individuals and two organizations challenged the constitutionality of the Price-Anderson Act. Reasoning – Causation and redressability were lacking. which limited the liability of utility companies in the event of a nuclear reactor accident. Singleton v. Would not have brought about any change and so no redressability. Carolina Environmental Study Group (1978) (P. the Court has held that the P generally must assert his own legal rights and interests. An action by Congress and expenditure of money because of need…might relax standing. Holding – The Ps were granted standing. 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. The Prohibition of Third-Party Standing: Even when the P has alleged injury sufficient to meet the ‘case or controversy” requirement. including exposure to radiation and other harms. Holding – The court denied standing. and cannot rest his claims to relief on the legal rights or interests of third parties (jus tertii standing). Wulff (1976) (P. 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. Take-away: Inconsistent case – It is talking about future injuries and its not clear if its going to affect claimants at all. Take-away: Causation problem that tax exempt status may not have been cause of problem. Reasoning – The doctors were injured by the statute because it denied . By threatening status w suit would not take away or give any redressability to the issue. 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). Reasoning. Furthermore. Holding – The SC found standing. 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. The Ps argued that the P-A Act violated the due process clause because it allowed injuries to occur without compensation.provide. Whereas previously tax-exempt charitable hospitals had to provide free care to indigents.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. Duke Power Co v. The Ps were individuals who claimed that they were denied needed medical care and hence injured by hospitals receiving tax-exempt status.
a white person who had signed a racially restrictive convenant. Moreover. Boren (1976) (P. The likelihood that the third party can sue on its own behalf (but also obstacles). The bartender suffered economic loss from the law. Reasoning.2% beer at age 18 but denying men that privilege until age 21. Reasoning – After an injury was alleged. who were not parties to the lawsuit for breach of contract. Take-away: Genuine obstacles exception. thus fulfilling the injury requirement. Reasoning – The court allowed the white dude to raise the interests of blacks to rent and own property in the community. was sued for breach of contract for allowing nonwhites to occupy the property. 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. Gilmore v. 71) – Facts – Barrows. Take-away: This case lays out two of the exceptions to the rule of prohibition of third-parties: 1. 2. 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. Holding – Standing was granted.The D had waived his rights by not pursuing them himself. the court emphasized the closeness of the doctors relationship to the patient and that the physician is intimately involved in the decision of abortion.them payments for particular medical services. The close relationship between P and the third-party (mainly this in Singleton). A bartender sought to challenge the law on behalf of male customers between the ages 18-21. 72) – Facts – OK adopted a law permitting women to buy 3. Holding – The court allowed third-party standing. 72) – Facts – Gilmore was sentenced to death in the state of UT but chose not to pursue collateral challenges in federal court. Jackson (1953) (P. Holding – The court refused the mother’s claim. they had no legal basis for participation in the breach of contract suit. Parties may not have even known that they were being excluded. Utah (1976) (P. Take-away: Vendors can assert right of their customers based on the exception of the close relationship between P and third party. The mother should not be granted standing because there was no reason why her son could not protect and assert his own rights. The defense was raised on the rights of blacks. The court said it would be difficult if not impossible for the persons whose rights are asserted to present their grievance before any court. Craig v. . Genuine obstacle for racial minorities and best advocate is the person who owns the land. His mom sought a stay of execution on his behalf. Barrows v. Because blacks were not parties to the covenant.
Reasoning – The P presented a generalized grievance and did not allege a violation of a personal constitutional right. Holding – The court dismissed the case for lack of standing. Customarily. 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. from those cases that are appropriate for federal court action. 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. 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. and not Newdow. The court stressed that the girl’s mother. That is. had legal custody and the court also emphasized a traditional unwillingness of federal courts to get involved in domestic relations matters. 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. Newdow (2004) (P. United States v. a person can challenge the legality of a statute or regulation only when he or she is prosecuted for violating it. it does not allow preenforcement review in all instances. It prevents the courts. The hardship to the parties of withholding court consideration: The more a P can demonstrate substantial hardship to a denial of preenforcement review. Ripeness: Seeks to separate matters that are premature for review because the injury is speculative and never may occur. This is constitutional because the stateu does not permit advisory opinions because it limits federal court action to justiciable cases. through avoidance of premature adjudication. Elk Grove School District v. Holding – The court ruled that the P lacked standing. Two considerations for ripeness: 1. 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. Reasoning – The father lacked the third party standing to sue on behalf of his daughter. Richardson (1974) (P.Take-away: This case did not by-pass the prohibition of third party claims. 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. Contrary intent. the more likely a federal court is to find . from entangling themselves in abstract disagreements.
the less likely it is that review will be granted. 1. 1. 2. the court will find it ripe. Hardship because of collateral injuries. 1. iii. .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. The case was not deemed ripe even though it was a purely legal question that did not depend on the factual record. Poe v. Hardship from choice between possibly unnecessary compliance and possible conviction. ii. Ullman (1961) (P. Hardship where enforcement is certain. There was not enough hardship. the court seems to say that you need some of both. Reasoning – There had only been one other prosecution under the law in more than 80 years. Poe v. Contraceptives were commonly and notoriously sold in CT drugstores. Ex: In possible arrest due to anti-vietnam war pamphlets. iv. In this case. Conversely. that would not have been created but for the P-A act. the more speculative and uncertain the harm. Hardship is Prerequisite for Ripeness. Holding – the court found this case not ripe. i. There was minimal harm to denying review and so it was found not ripe.ripeness. 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. 1. 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. etc. Under the regime of the declaratory judgment they should not have to make these choices. Where the application of a law is inevitable and consequences attach to it. court found the case ripe because he would have to choose between giving up freedom of speech or imprisonment. the greater the probability that a case seeking preenforcement review will be dismissed on ripeness grounds. Take-away: Do you need both 1 and 2 above to have ripeness. or just one of them? The interaction is not clear. Duke Power case again. there were other damages like exposure to raidiation. Even though the injuries that the P-A act limited liability for had not occurred. But the more judicial consideration of an issue would be enhanced by a specific set of facts. below. the more likely it is that the court will find ripeness. Ullman falls into this category. Ripeness. 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.
Ex: criminal D dies during trial. and the increase of severity of future convictions. the challenge to criminal convictions is not moot because of the adverse effects still felt—things like not being able to get jobs. whereas the prudential concern about the record is to be given less weight. Although they served their time. 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. However. Collateral Consequences: Injury survives after the P’s primary injury has been resolved. and a suit by students against school censorship was moot after they graduated. 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. Reasoning – Intervening circumstances meant that there no longer was a live controversy between the P and the state. Because the hardship requirement is constitutionally based. at both the trial and appellate levels. . a Ds challenge to state law denying him pretrial bail was deemed moot after his conviction. the court held that their challenge to the constitutionality of their convictions was not moot. Wade (1973) (P. her pregnancy was completed and she no longer sought an abortion. the case should be dismissed as moot. Even after a D has served a sentence. if a case is moot. Ex: two Ds challenged the constitutionality of the legality of evidence seized from them during a stop-and-frisk. 2. The doctrine derives from Article III’s prohibition of advisory opinions. Four exceptions due to the flexible character of the mootness doctrine: 1.Thus it appears that preenforcement review is possible only if there is both hardship to denial and an adequate factual record. if a challenged law is repealed or expires. Holding – Her case was not moot. there no longer is an actual controversy between adverse litigants. by the time she reached the SC. Mootness: An actual controversy must exist at all stages of federal court proceedings. By definition. 99) – Facts – The P was pregnant when she filed her complaint challenging the constitutionality of a TX state law prohibiting abortion. i. The challenge to the state law prohibiting abortions truly could be capable or repetition yet evading review. If events subsequent to the filing of the case resolve the dispute. Roe v. in all likelihood it is less flexible. not being able to vote.
a white male. Not enough to say that it will happen to someone at sometime again. the P was in his final year and that he would be allowed to complete his studies regardless of the outcome. challenges to election laws. Criticisms: Some people think the case should have constituted a wrong capable of review yet evading review. b. The election was held before the case was heard by the SC. However. 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. iii. By the time the case reached the SC. there was no chance that P would again be subjected to the law school admissions process.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. The injury must be of a type likely to happen to the P again. He sued the school contending that he was discriminated against because of the school’s preferential treatment of minority candidates. Holding – The court held that the case was not moot. Holding – The court held that the case was moot. Reasoning – It presented a wrong capable of repetition yet evading review. Odegaard (1974) (P. 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. 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. applied for admission to the U of W law school and was denied acceptance. Moore v. The court ordered a temporary injunction allowing him to attend school while the case was pending. Oglivie (1969) (P. 3. ii. . like the court said. 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. Also. 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. 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. 99) – Facts – The P. Typical in restraints on speech.
Baker v. 104) . Carr (1962) (P. Has authority to decide this case.Only if there is no reasonable chance that the D could resume the offending behavior is a case deemed moot under this exception. The Guarantee Clause: The US shall guarantee to every state in this union a republican form of government. Contrasted with the Colgrove case where the ct said the case wasn’t brought under equal protection clause. The political question doctrine refers to subject matter that the court deems to be inappropriate for judicial review. In a series of cases. The Ps sought declaratory and injunctive relief. 4. Friends of the Earth v.is an equal protection case from 14th A. the SC has held that a properly certified class action suit may continue even if the named P’s claims are rendered moot. The SC consistently has held . This is quite different from the standing requirements where the P is responsible for showing the constitutional and prudential requirements are met. Six areas of political question: 1. Laidlaw (2000) (P. alleging that it was violating the mercury discharge limit. 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. 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. 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. Had to do w gerrymandering and without equal protection was a political question. 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. 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. 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. The republican form of government clause and the electoral process. Holding – The case was not moot. 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. i.
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. Impeachment Process: i. recognition of foreign governments. Also. 4. but this does not mean the court will throw away every case that touches it. 6. Reasoning – The Constitution holds two separate proceedings against officeholders charged of wrongdoing: a judicial trial and . He contested the use of the committee. Finally enough states did ratify it but were obviously coerced into it. Will not usually touch: declaration of when war starts or ends. created a committee to hold a hearing and make a recommendation to the full senate.that cases alleging violation of this clause presents nonjudiciable political questions. Holding – The judiciary will not review the Senate’s use of a committee to hold a hearing and make a recommendation on an impeachment.Nixon was a federal district court judge who had been convicted of making false statements to a grand jury. The process for ratifying constitutional amendments. 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. Nixon argued that the senate’s procedure violated the constitution in that the entire senate did not sit and hear evidence. 121) – Facts. Congress’s ability to regulate its internal processes. in accord. the court has ruled in favor of the constitutionality of the use of the treaty power for specific subject matters. Nixon v. Relief would require ongoing supervision and control of the ONG. Instances where the federal court cannot shape equitable relief: Ex: After the Kent state shooting. students sued the government saying that the Ohio State National Guard was improperly trained. 5. The HofR adopted articles of impeachment and the senate. Ex: ct has upheld the constitutionality of the president’s use of executive agreements instead of treaties to implement major foreign policy agreements. challenges to the president’s use of the war powers 3. 2. Foreign Affairs: Issues relating to the conduct of foreign affairs pose political questions. Nixon refused to resign from the bench and continued to collect his judicial salary while in prison. The Committee recommended removal from office and the entire senate voted accordingly. US (1993) (P. issues concerning the ratification and interpretation of treaties.
The 10th Amendment holds that powers not delegated to US are reserved to the states. Facts. What if the senate flipped a coin.whether the takings clause of the 5th amendment applied to the city. the SC expressly held that the Bill of Rights was a restriction of federal actions. Issue. not to state or local govts. the political question doctrine is not derived from Article III’s limitation of judicial power to “cases” and “controversies. Is It Constitutional or Prudential? It is uncertain if its one or the other.legislative impeachment proceedings. 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 state or local conduct. Gore (2000) (P.” 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. for their own govt. 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. Take-away – This case leaves open the question of whether all challenges to impeachment are nonjusticiable political questions. SC held that the application of the bill of rights applied only to the federal govt. Holding.Barron sued the city for taking his property without just compensation in violation of the 5th Amendment. The fact that the framers deliberately made two distinct forums made the judicial review of the senate’s methods inappropriate. and . Bush v. or both. The 9th Amendment maintains that by enumerating rights that omission of a right would deny such right. or impeached with less than two-thirds of the senators? They probably would step in then. In Barron.the Bill of Rights was clearly intended to apply only to the federal government. 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. He contended that the city ruined his wharf by diverting streams and thereby made the water too shallow for boats. Reasoning – “the constitution was ordained and established by the people of the US for themselves. On the other hand. Barron v Mayor: Early in history.
not for the govt of the individual states. The court interpreted each provision narrowly and solely to achieve this limited goal. The law required that the company allow any person to slaughter animals in the slaughterhouse for a fixed fee. Holding – narrowly construing these provisions.” It could be argued that this provision was meant to apply the Bill of Rights to the states. They argued that the state law impermissibly violated their right to practice their trade. They argued involuntary servitude. Justice Field says. The 5th Amendment states “no person shall” and ends “nor shall private property be taken for public use. Dispute over framer’s intent on what these words meant and likely that Congress that adopted the 14th Amendment also had disputes amongst themselves. “Congress shall make no law. Butchers brought suit challenging the grant of the monopoly. 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. 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. “If the . without just compensation. such as the takings clause. Issues – how the court should construe the newly implemented amendments 13-15 in regard to the claims above. 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. Reasoning – Justice Miller believes that the 13th and 14th amendment were solely to protect former slaves. “they would have declared this purpose in plain and intelligible language. the court rejected the plaintiffs claims.” Take away: Barron meant that the Bill of Rights applied only to the federal government. In contrast. do not limit themselves only to the federal government. 1st Amendment starts.” If the framers had intended the Bill of Rights to apply to the states. In the dissent.” Argument against: at least some of the provisions of the Bill of Rights. Slaughter-House Cases: Facts – seeing a huge surplus of cattle in Texas. Take-away: the ruling in this case basically stripped the 14th amendment of all its meaning.” It does not say that the fed govt cannot commit such taking. IV §2. These words were already a part of the Constitution at Art.
but also by their status as a citizen of the US.to 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. limited solely by the predictions of those who happen at the time to be members of this court. Take-away: Dissenting disagreed with the revival of the privileges and immunities clause as a basis for protection rights.” Privilege and immunities clause was rendered a nullity by this case and has been ever since. Holding The right is protected not only by the new arrival’s status as a state citizen. which accomplished nothing. Kentucky. Also. as held by the majority of the court. Tutorial 10-19: . 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. One aspect of this right of new residents to be treated the same as longer term residents of a state. the P&I clause “will become yet another convenient tool for inventing new rights.” Note: Could be.[privileges and immunities clause] only refers. and has been. used to dispute in-state tuition. Without regard to these considerations. and this aspect of the right to travel is protected by the privileges and immunities clause. 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. Colgate v. Harvey. that was overruled 5 years later by Madden v. 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. another dissent was that the decision did not give enough evaluation of the framers of 14th A intent. Reasoning – The right to travel is a fundamental right. in Saenz there was no dispute that the P was a resident of California. and most unnecessarily excited Congress and the people on its passage. it was a vain and idle enactment.. Although. Revival of the Privileges and Immunities Clause: Saenz v. Court breathed life into this clause of the 14th amendment that had been relied upon in only one other court decision.
If you don’t figure out what to do with the waste. Structure of constitution Reno v Condon: Fed. that is enough for the court to give deference to the rational basis test. Historical understand: original intent 2. Prinz v US: The rule is that the fed govt in this case cannot commandeer the powers of the state to enact fed programs. going to make them to take title. They go back to the rational basis test. as opposed to Morrison. However. Some questions on test that are similar to this. Forcing to make some sort of regulation. Jurisprudence of ct and holdings 3. this traffickers trafficking of organ effects xstate commerce. The ct struck it down. and if Cong has decided one way. pg 7: “For the transfer of any human organ…if the transfer affects interstate commerce. Cars move through interstate commerce. . Holding comes from three things: 1.” What would the prosecutor have to show to prosecute? In this specific instance. Cars are instrumentality. Lopez doesn’t affect CVR cases because all the others are economic. They disregarded the rationality test which had been used a lot before. In doing so Rehnquist created a new test: activity in question must be economic or commercial in nature for the aggregation to apply. Brandeis brief: if could be two rational ways to decide a contentious issue. Narrow because of the facts and the rememdy. Gonzalez – some of the people who followed the decisions in M and L are trapped. govt can regulate some state activities but not in a specific manner. The results showed that bias against women did affect the economy. guns free zone act. Problem 2. It’s just a drafting issue that Congress could fix quickly. Activity was not economic in nature. ct did strike it down. 1. Re-activation of the rational basis test. Went all out in using the rational basis test. 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.In Lopez. Not a lot of congressional discussion into effect. This goes against the previous rulings. The activity to be regulated can only be aggregated using the Wickard analysis if it is economic in nature. The rule applies to everyone uniformly in the state. Carjacking is an economic activity even though illegal. Inconsistent w Morrison 2. Holding that you can aggregate non-economic activity 3. Should we read Lopez as a broad or narrow decision? It’s narrow. NY v US – 10th Amendment. The court held that you can aggregate noneconomic activity under the Wickard test. Used one fo the tests from Lopez. All exam shit. Problem 5: fed statute prohibits carjacking with gun or vehicle…is constitutional? Yes. 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.
Dean Milk: Disc in effect. Could have treated the instate minnows the same way they did with the out of state minnows. Washington apple was superior to FDA system. Govt can favor instate public orgs but cannot favor private orgs. Operation of the market and the way the statute is working within it. No explicit mention of local concern. the market was broader than the 5 mile . no discrimination. No disc on face but in effect. Even if they have. On face & effect. Hughes v Oklahoma: discriminated on face like Taylor. Carbone: discriminatory on face. 4. 3. Least restrictive means fail by singly out and favoring one private employer who at the same time regulated all others. There is local concern with the disease. Hughes: state could subsidize… 2. 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. Also. Local concern was conservation but there was a least restrictive means available. Do not go to test if discriminatory purpose. Possibly discriminatory purpose. Although not on face. no less restrictive means to achieve end. Cannot discriminate burden interstate commerce a. 3. Not only regulating but running. There was some better method that was being developed at that time that would have been less restrictive. in effect because Washington apple labeling system was lost and were not able to differentiate themselves from other apples. 2. Does not even get into the test. Ct uses disc in effect analysis. Market participant exception because of the local govt got together and bought the recycling center. There is some local concern in the quality of the milk perhaps but was not the least restrictive means. When state acts as participant the dormant clause does not apply. United Haulers: Ct upholds it. Effect If either is “yes. have they also shown that they are using the least restrictive means? Examples: 1. Clause: 1. Effect Discrimination: 1.” then move to: Facial Discrimination: i. Has state shown legitimate local concerns? ii. Taylor v Maine: any out of state fish cannot come in.Two parts to the dormant comm. Face b. Hunt Washington Apple: not discriminatory on face because applied to everyone.
5th Amendments Taking Clause states. it would have been declared unconstitutional as exceeding the scope of Congress’s powers or as violating states’ rights and the 10th Amendment. and convey property. SC has wavered over time regarding the protection of economic liberties.” Also. Concurrent to this era. “no state shall pass any law impairing the obligation of contracts. itd be too broad and would allow a lot of laws to be struck down. Late 19th century to 1937. if a state passed a labor law. . 2. Due process of the 14th Amendment protected the freedom of contracts but this is not the contracts clause in Art I. and to acquire. to pursue a trade or profession. Cannot unduly burden interstate commerce Economic Liberties Refer to constitutional rights concerning the ability to enter into and enforce contracts. it would have been struck down for violating the due process clause but if federal government adopted the same law. liberty or property. possess. History: It is clear that the framers wanted to protect economic liberties. §10. 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. §10 of Constitution states.range and so was going to have an effect on those people.” 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. court found that the freedom of the contract was a basic right under the liberty and property provision of the due process clause. 14th amendment encompassed contracts already. and also found that the 10th amendment reserved a zone of authority exclusive to the states. Therefore. This is usually referred to as the Lochner era where the courts aggressively protected economic liberties under the due process clause. Art I. If you want to uphold the statute if its in effect discrimination. the courts were also using federalism to limit the ability of Congress to regulate the economy. But if not. “nor shall private property be taken for public use without just compensation. The courts narrowly defined the scope of Congress’s powers under the commerce clause.
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.Loan Association v Topeka – courts struck down city law that imposed a tax to fund bonds to attract private businesses to Topeka. 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. 2. There was no reasonable end in Lochner. Holding . Court in Lochner.The law interfered with freedom of contract and also did not serve a valid police purpose. stated that freedom of contract is a basic right protected as liberty and property rights under the due process clause of the 14th Amendment. In this case. health or morals. necessary and essential. right to purchase and sell labor is part of the liberty protected by the amendment.” Take-away: In this case. 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. Holding – SC declared this law unconstitutional because it violated the due process clause of the 14th Amendment. *These cases dictated by a sense of “natural law” that was formed by laissez-faire philosophy and social Darwinism. Set key themes of economic substantive due process that would be followed for next 40 years. Reasoning . according to the court. 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. . Munn v Illinois – sets precedent for test of reasonableness to be decided by judiciary. Three major principles in ruling: 1. but ruling held that this was beyond legislative power and an invasion of private right. Did not refer to Constitution. to live and work where he will…and for that purpose to enter into all contracts which may be proper. Court said that the government could interfere with freedom of contract only to serve a valid police purpose: to protect the public safety. 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. to be free to use them in all lawful ways. and throughout era. Allegeyer v.
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. The requirements of due process were satisfied as far as the court was concerned. The Lochner court had both upheld and invalidated some price control.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. 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. The Constitution should not embody a particular economic theory. NY (1934) – Facts. Lochner era in sum: Freedom of contract was a right protected by the due process clause of the 5th and 14th Amendments. reasonable. This is what was meant by the “passed for other motives” quotation on the bottom of pg 611.3. 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. The price set was 9 cents a quart and Nebbia sold two quarts and a loaf of bread for 18 cents. Holmes – rejected that the Constitution should be used to limit government regulation and protect a laissez-faire economy. the government could interfere with the freedom of contract only to serve a valid police purpose of protecting public health. “Is it a fair. Holding – A state is free to adopt whatever economic policy by legislation adapted to its purpose. 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. or public morals. Reasoning – the courts are without authority to override a reasonably passed law by the state legislature. public safety. upholding . 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. Dissents: Harlan – emphasized the need for judicial deference to the legislature. and the judiciary would carefully scrutinize legislation to ensure that it truly served such a police purpose. Changes to Lochner era: Nebbia v. and appropriate exercise of the state?” Notes: in this case.
A “regulatory” taking occurs when the governments regulation leaves no reasonable economically viable use of the property. Reasoning – The decision stressed the need for judicial deference to legislative choices. except upon written prescriptive authority of one. Possessory takings: . or out of harmony with a particular school of thought. What is a Taking? Two types of taking can occur: “possessory” taking occurs when the government confiscates or physically occupies property. In other words.” There is no bright-line test for determining whether a taking has occurred. However. It could also be construed as broad by questioning the decisions of the Lochner era. should be borne by the public as a whole.” Purposes: The principle purpose of the takings clause is “to bar the Government from forcing some people alone to bear public burdens which. “nor shall private property be taken for public use without just compensation. in all fairness and justice. 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. 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. Holding – The Oklahoma law was not unconstitutional. Nebbia may be seen in this light. improvident. Therefore. Procedure – Dist ct found law unconstitutional as failing the rational basis test. 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. Few coherent principles come out of cases. 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.ones that it deemed to affect the public interest more. It sort of questioned the absolute right of contracts and property rights and also declared the need for judicial deference to legislative choices. the 5th Amendment states.
the Court applied “the traditional rule that a permanent physical occupation of property is a taking. The SC ruled this was not a taking. pipes. the government did not confiscate. 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. Robins. it was a taking. When Is There a Physical Occupation? Occupation becomes more difficult when one considers the issue of when the government requires public access to property. where the owners of a Hawaii pond spent a substantial amount of money to dig a channel connecting it to the Pacific Ocean. etc. Holding – Yes. the government just regulated its use. occupy. there was a substantial interference with “reasonable investment backed expectations. An example of this issue is the case of Kaiser Aetna v US. 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. The effect of the law was to prevent companies from exercising certain mining rights.” Regulatory Takings: Pennsylvania Coal v. The distinction between these two cases is that in Kaiser Aetna. they were required to leave columns of coal underground to support the surface. Reasoning – Although the amount of space involved was ony about one cubic foot.” but in Pruneyard the Ps failed to show that excluding speakers was “essential to the use or economic value of their property. The US Corps of Engineers deemed it to be “navigable waters” and thus open to use by the government and the general public.) even though they do no interfere with the landowner’s use of the rest of his land. It amounted to a small box and some cables on the owner’s roof. Issue – whether this government regulation constituted a taking.Loretto v Teleprompter Manhattan CATV – Facts – A city ordinance required apartment building owners to make space available for cable television facilities. destroy or invade the property. Mahon – Facts – a Penn statute prohibited the mining of coal in any manner that would cause the subsidence of property. Unlike other cases. Reasoning – “When regulation reaches a certain magnitude. in most if not in all cases there must be an exercise fo eminent domain and compensation to support the act. telephone lines.” Holmes recognized that the government could not function if it had to compensate every person whose property .” Earlier cases clearly established this as a taking (including wires. In contrast to this is the issue of whether private shopping centers could restrict free speech in Pruneyard Shopping Center v. Holding – This did constitute a taking.
” 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. Because designating the building a historic landmark had the effect only of decreasing the value of the property. 2. Penn Central Transportation Co v City of New York – Facts –Through the city’s Landmarks Preservation Law. if regulation goes too far it will be recognized as a taking. Proc – the state trial ct concluded that this prohibition rendered the property “valueless. the state adopted a coastal protection plan that prevented the construction of any permanent habitable structures on the property.” Holding – There was a taking. that is. Reasoning – There is a taking “where regulation denies all economically beneficial or productive use of the land. so long as it leaves reasonable economically viable uses. 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.” 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. Lucas v. in fact.” . and because it served an important purpose.” There is no formula or rule to answer this question. general criteria that should be considered in evaluating whether a regulation is a taking include: 1. to leave his property economically idle. However. the government designated a building as a historical landmark and prevented the owner from constructing a substantial expansion on top of the building. he has suffered a taking. government regulation is not a taking simply because it decreases the value of a person’s property. South Carolina Coastal Council – Facts – Lucas purchased beachfront property for almost $1 million. had not even precluded all development of the air rights above the building. but he said that “while property may be regulated to a certain extent. The economic impact of the regulation on the claimant. 3.values decreased because of government action. Reasoning – The regulation did not deny the owners all profitable use of the building and. The extent to which the regulation has interfered with investment-backed expectations. Holding – There was not a taking.
The court said “the segregation of residential. in the judgment of the legislature. In Euclid v. crucial in evaluating whether there is a regulatory taking is the relationship of the government’s actions to the property owner’s expectations. therefore. and its value was reduced to about $2. it is clear that.000 per acre was rezoned so that it could be used only for residential purposes. business. Miller v. and industrial buildings will make it easier to provide fire apparatus available for the character and intensity of the development in each section. Generally.” Zoning Ordinances: Zoning ordinances limit the way in which a person may use his or her property and. The state acted to protect many apple orchards in the vicinity. the court has refused to find a taking concluding that the regulation does not eliminate all reasonable economic viable uses of the property. is of greater value to the public. Holding – the court sided with the state and did not require that it provide compensation to the owners of the trees.500 an acre. frequently have the effect of diminishing the property’s economic value. Nonetheless. 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. 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. . 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. Also. there is not a regulatory taking when the government’s action leaves reasonable economically viable use of the property. the SC rejected a due process challenge to the revised zoning ordinance and emphasized the government’s strong police purpose in the zoning regulation. a highly infectious plant disease. though. land that was originally worth $10. Amber Realty Co. at the very least.Take away: From these two cases. 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.
” In an expansive view of public taking. 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. In Berman v. The rational basis test is used to determine if taking is for public use. The action was for public use .” IF the taking were deemed to be for private use. the taking would be invalidated and the government would have to return the property to the owner. with just compensation. so that real property may continuously be traversed. Holding – the court said that there would be a taking if the government were to require the property owners to grant an easement. The Supreme Court has expansively defined “public use” so that virtually any taking will meet the requirement. and with the plan of selling ownership to a much larger number of people. not the judiciary is the main guardian of the public needs to be served by social legistlation….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. even though no particular individual is permitted to station himself permanently upon the premises. The state used its eminent domain power to take the property. the court delivered this ruling: “In such cases. the right to realize it through the exercise of eminent domain is clear. Parker. We think a permanent physical occupation has occurred…where individuals are given a permanent and continuous right to pass to and from. that is. 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. They have indicated that a taking is for public use as long as it is an exercise of the state’s police power. Holding – the taking was for public use. The owners argued that the taking was not for “public use. Issue – whether or not the government was impermissibly taking from some private owners to give to others. Reasoning – the government met the rational basis test. “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.” 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 legislature. 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. Reasoning – Scalia wrote.” What Is A Taking For Public Use? The Fifth Amendment authorizes the government only to take private property for “public use. Hawaii Housing Authority v.
Facts – An economically depressed city sought. Strict scrutiny means that the government must justify its interference by providing that its action is necessary to achieve a compelling government purpose. In reality. Due Process: If a right is safeguarded under due process. 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. it will be a taking for “public use. Also. to take private property for purposes of a new economic development project. Reasoning – The court. . it is in congruence with the Berman case and the need for great deference to the legislature.” The way around this if dissatisfied is to create state laws that restricts this notion. Some of the owners did not want to sell their land. 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. Note: Some people were upset with this holding. relying on Berman and Midkiff. through a private economic development corporation. Issue – whether this is a public taking. 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. City of New London . 2. The main difference between the two as the basis for protecting fundamental rights is in how the constitutional arguments are phrased: 1. “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. O’Connor said. The court said that in this case the taking would benefit the public by creating new jobs and increase economic growth. 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. Holding – Yes. the constitutional issue is whether the government’s interference is justified by a sufficient purpose.because it acted out of a reasonable belief that distributing ownership among a larger number of people would benefit the public.” Kelo v. saying that it dramatically changed the law. Equal Protection Clause: the issue is whether the government’s discrimination as to who can exercise the right is justified by a sufficient purpose.
If a right is not fundamental. “The enumeration in the Constitution of certain rights. Is there a fundamental right? If a right is deemed fundamental. while allowing it to others. 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. The Supreme Court has never articulated criteria for determining whether a claimed purpose is to be deemed “compelling. but if a law denies a right to some. 4. The Ninth Amendment: often mentioned in discussion of fundamental rights. the ninth amendment is used to provide a textual justification for the Court to protect nontextual rights. under rational basis. Framework for Analyzing Fundamental Rights: 1. If the right is not fundamental than only the rational basis test is applied. In comparison. Is the Constitutional Right Infringed? If there is a fundamental right. the government will usually be able to prevail only if it meets strict scrutiny. then the due process would be the best grounds for analysis. Is There a Sufficient Justification for the Government’s Infringement of a Right? If a right is deemed fundamental. 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. This requires the government to prove that it could not attain the goal through any means less restrictive of the right. such as the right to privacy. Rather.” The government has the burden of swaying the court that a truly vital interest is served by the law in question. the discrimination can be challenged as offending equal protection or the violation of the right can be objected to under due process. 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.” There are no ninth amendment rights in that rights are not protected under it. especially not rights explicitly mentioned in the Constitution. 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.If a law denies rights to everyone. only a legitimate purpose is required for the law to be sustained. shall not be construed to disparage others retained by the people. under what circumstances is the government’s action an infringement? 3. . the government must present a compelling interest to justify an infringement.” Basically. the government must also show that the lawa is necessary to achieve the objective. 2. It states.
Essentially. Various guarantees create zones of privacy. He said that the “specific guarantees in the Bill of Rights have penumbras. Buck. if instead of waiting to execute degenerate offspring for crime. formed by emanations from those guarantees that help give them life and substance. Bell v.” He then concluded that the Conn law violated the right to privacy in prohibiting married couples from using contraceptives. Holding – this sterilization was constitutional. This approach has been criticized and was not followed in subsequent cases. The Right to Purchase and Use Contraceptives: Griswold v. pursuant to a law that provided for the involuntary sterilization of the mentally retarded who were in state institutions. such as the First. Initially this position was rejected by the Court in Bell v. the Bill of Rights is guaranteed to the states through the 14th Amendment and so ultimately penumbra approach is a due process analysis. The court rejected this approach in Skinner v. Griswold. Reasoning – “It is better for all the world. the executive director of the Planned Parenthood League of Connecticut. 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. even though he was trying to avoid due process. 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. 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. Oklahoma in 1942.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. Buck (1927) – Facts – Virginia sterilized and 18-year-old woman named Carrie Buck. and Fifth Amendments. Third. . Holding – The right to privacy is a fundamental right. Fourth. or to let them starve for their imbecility. Notes: Douglas wanted to avoid the use of substantive due process and instead used the “penumbra” of the Bill of Rights.” The court found that the law violated equal protection. was prosecuted for providing contraceptives to a married woman. society can prevent those who are manifestly unfit from continuing their kind…Three generations of imbeciles are enough. and a physician. Connecticut – Facts – A state law prohibited the use and distribution of contraceptives.
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. Warren. and in protecting the distribution of contraceptives and their use. married or single. Reasoning. 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. The court said that they doubted that prohibiting the distribution of contraceptives would deter teenage sexual activity and they thought it . Harlan said that the right to privacy should be protected under the due process clause. 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. Holding – the court found that the law denied equal protection because it discriminated against nonmarried individuals. Carey v. Also. While White said that the law did not even need to meet a rational basis test.” Dissenting opinions: Black and Stewart said that the law was constitutional because there was no right to privacy mentioned in the Constitution. The court found that limiting the distribution unduly restricted access to birth control and infringed the right to control procreation.” Also. and Brennan wrote concurring opinions focusing on the ninth amendment as the authority for the court to protect this privacy. The case also restricted distribution to licensed pharmacists to those under 15.Also. Rather.“If the right of privacy means anything. Populations Services International declared a New York law that prohibited the distribution of contraceptives to minors under the age of 16 unconstitutional. to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child. An individual was convicted for giving a woman a package of contraceptive foam at the completion of a lecture on birth control. Notes: This case expands Griswold in recognizing a right to control reproduction as a fundamental right. it is the right of the individual. Other concurring opinions: Goldberg. the court said that prohibiting the distribution of contraceptives served no legitimate legislative purpose. 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.
such as the ability to control procreation. but the government “may.” Finally. 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. the state could not prohibit abortions and could regulate them only as it regulated other medical procedures. Roe v. Viability became the courts distinction for the “compelling” point and they divided pregnancy into three trimesters. Casey v. Blackmun did say that. the government also could not outlaw abortions. The Court held that strict scrutiny must be used when balancing these two because the right to abortion is a fundamental right. 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. . the Court ruled that the government may not prohibit abortions prior to viability and that government regulations of abortions had to meet strict scrutiny. This case challenges that law. is constitutional protected even though it is nowhere mentioned in the text of the Constitution and was not considered by its framers. right of privacy is broad enough to encompass the woman’s right to decide whether or not to terminate her pregnancy. 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. unlike Griswold and his penumbra argument. Wade (1973) – Facts – A Texas law prohibited all abortions except those necessary to save the life of the mother. ruling that the government may regulate abortions before viability so long as it does not place an “undue burden” on access to abortions. the government may prohibit abortions except if necessary to save the mother’s life or health. During the second trimester. During the first trimester. for the stage subsequent to viability. Holding – the law is unconstitutional. Planned Parenthood modified some of the framework set in Roe. The court also held that the term “person” in the Constitution was never meant to apply to fetuses. Reasoning – Blackmun says that it does not matter whether you turn to the ninth amendment or the 14th amendment to find right of privacy. Specifically. The Right to Abortion: Roe v.irrational that the state would want an unwanted pregnancy to be the punishment for fornication. Take away: These cases exemplify how the Court should interpret the Constitution where a basic right. the right to privacy is found within the due process clause of the 14th Amendment. The state has “compelling interest” in protecting maternal health after the first trimester because it was then that abortions became more dangerous than childbirth. regulate the abortion procedure in ways that are reasonably related to maternal health. ifit chooses.
The Court was wrong to protect abortion because the right is neither mentioned in the text nor intended by the framers. The Court erred in using due process rather than equal protection as the basis for its decision. the right to keep the family together. b. it is often left to values centered around social meanings and sexual politics. the right to custody. even if you grant that the fetus is a person at the moment of conception. and thus should be marked as gender discrimination. The argument is that laws prohibiting abortion apply exclusively to women. 2. The Court gave insufficient weight to the state’s interest in protecting the fetal life. Responses to these objections (in order): 1. Many argue that this is a bad decision because it is bad constitutional law. 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.Dissent: White and Rehnquist said the question of abortion should have been left to the legislative process Objections to Roe: 1. Since there is no scientific determination as to when life begins. 2. 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. The court was correct in not deciding the question of when personhood beings. 3. Forced motherhood is sex inequality. Even if the fetus is regarded as a person. The Court has protected other rights concerning family and reproductive autonomy. . and none of these are explicitly mentioned but are still aspects of “liberty” which the Fourteenth Amendment protects. 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. etc. Two responses to this: a. Such rights include the right to marry.
and requiring spousal notification. requiring parental consent for unmarried minors’ abortions. The dissent saw this ruling as a Court on the verge of overruling Roe. The court said only overrule if the decisions had proven unworkable. Casey (1992) – Facts – A Pennsylvania law regulated abortions. Webster v. 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. Reproductive autonomy is a fundamental right even though it is not explicitly mentioned in the text of the Constitution. like a privacy approach. gender discrimination is okay if intermediate scrutiny is met. 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. The court also brought in the concept of stare decisis and the circumstances that justify overruling an earlier precedent. . 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. Holding – The SC upheld the Missouri law. Wade should be reaffirmed. Planned Parenthood v. nothing is gained by shifting to an equal protection analysis. if the government’s action is substantially related to an important government interest. Under equal protection law. 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. the court finds them unconstitutional. Basically. but prohibiting it before viability. Scalia said that the plurality opinion effectively would overrule Roe v Wade but that he thought it should have been done more explicitly. that is. still comes down to the same basic question of whether or not the government’s interest in protecting fetal life justifies prohibiting abortion. creating requirements for reporting and record keeping. An equality analysis. Reasoning – The essential holding of Roe v. Holding – Where state laws place an undue burden on access to abortion. and that there should therefore be a rigid line allowing state regulation after viability.3. requiring physicians to inform women of the availability of information about the fetus. 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.
concurring. this requirement is likely to prevent a significant number of women from obtaining an abortion and that the choice is theirs alone. 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. but after viability. Thus. As to the Pennsylvania laws. CONCURRING: Stevens and Blackmun. 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. The court did overrule the trimester framework articulated in Roe. The test then moves to whether state regulation places an “undue burden” on access to abortion. Should these women become pregnant. SPOUSAL NOTIFICATION REQUIREMENT: Majority noted the prevalence of men abusing their wives and said that a spousal notification requirement could trigger such abuse. What Is An Undue Burden on the Right to Abortion? Stenberg v. the court found that none of the regulations placed undue burdens on access to abortion except for the spousal notification requirement. abortions may be prohibited except where necessary to protect the woman’s life or health. undervalues the State’s interest in potential life. He did not think that the trimester framework had been undermined. The court said the framework misconceives the nature of the pregnant woman’s interest and in practice. as recognized in Roe. they may have a good reason to choose not to inform their husbands or their decision to obtain an abortion.NOTES: The court reaffirmed the viability dividing mark as the line during pregnancy: before viability the court cannot prohibit abortion. he would have rejected all of the challenged provisions in the Pennsylvania law. There is no statement that the goal of the alw must be compelling or important or . There are some problems in determining what constitutes an undue burden: 1.” Therefore. 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. Carhart was the first time that the court said that the undue burden test is to be used in evaluating laws regulating abortion.
Reasoning – The earlier decisions protecting privacy pertained to matters of family and reproduction. 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. homosexuality activity did not fall within these rights. This causes internal tension within the same decision.that the means have to be necessary or substantially related to the end. A police officer came to his apartment on a totally unrelated matter. though.” defined as sexual activity between same sex couples. Lawrence v. White said that the Court should protect rights as fundamental only if they are supported by the Constitution’s text. by doing so. Texas (2003) – Facts – Police in Texas received an anonymous tip of a disturbance in an apartment. Hardwick (1986) – Facts – Hardwick was arrested fro engaging in homosexual activity in his bedroom. marriage or preocration on the one hand and homosexual activity on the other. Constitutional Protection for Sexual Orientation and Sexual Activity: Bowers v. Holding – the court struck down the Texas law and. Kennedy said that the laws involved in Bowers and in this case. 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. The court implied that an undue burden exists only if a court concludes that a regulation will prevent women from receiving an abortion. have more . or a tradition of being safeguarded. The men were convicted under a Texas law prohibiting “deviate sexual intercourse. overruled the decision in Bowers. They went to investigate and entered the apartment and found two men engaged in sexual activity. White did not find in the text or tradition a fundamental right to engage in homosexual activity. Holding – In a 5-4 decision. A roommate answered the door and directed him to Hardwick’s room where he witnessed homosexual behavior. White asserted that there was no connection between family. the SC upheld the Georgia statute. He arrested Hardwick for violating the Georgia sodomy law. Their penalties and purposes. Reasoning – There is a constitutional protection for all individuals in the most intimate and private aspects of their lives. 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. 2. the framer’s intent. are statutes that purport to do nothing more than prohibit a particular sex act.
This case recognizes that sexual activity is a fundamental aspect of personhood and that it is entitled to constitutional protection. Lawrence is a powerful affirmation of a right to privacy under the Constitution. the court did not mention the idea that this was a fundamental right or mention strict scrutiny at all. 3. On the other hand. contraception. . 2. for almost a century in decisions involving family autonomy.far-reaching consequences. Problems: the court did not articulate the level of scrutiny to be used. Kennedy pointed out that the Court has safeguarded privacy. Texas justified the law as advancing its moral judgment and traditionally this is enough to meet the rational basis test. Lawrence does three things: 1. Also. touching upon the most private human conduct. and in the most private of places. 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. and abortion. This case means that the laws in 13 states prohibiting private consensual homosexual activity are unconstitutional. the home. the court did rely on privacy cases where strict scrutiny had been used. The court’s rejection of this can be seen as implying heightened scrutiny. even though it is not enumerated in the Constitution. sexual behavior. These statute are often the basis for discrimination against gays and lesbians.
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