Standards of Review

• • If a fundamental liberty interest is infringed, the court applies strict scrutiny, in which case a law will usually be struck down to be the least burdensome means of achieving a compelling governmental interest Where only property or a nonfundamental liberty is involved, the court applies a rational basis test, under which a law will be upheld if there is any legitimate goal that a rational legislature might have thought the measure would further

PROCEDURAL ISSUES
Political Question
• • Courts don’t hear political question because it wouldn’t be prudent with the appropriate roles of the gov’t. Balance between 3 branches. The test: I.

Commitment to another branch: Constitution commits this issue to another branch, either
by omission or by inclusion in another constitutional provision that allocates that power to another government branch.

II. III.

Lack of standards: A "lack of judicially ‘discoverable and manageable standards’ for
resolving" the issue.

Lack of respect for another branch: The "impossibility of a court's undertaking
independent resolution without expressing lack of the respect due to co-ordinate branches of the government”

IV. V.

Unsuitable policy determination: The "impossibility of a court deciding [the issue]
without an initial policy determination of a kind clearly for non-judicial discretion.

Multiple pronouncements: Each branch has individual interpretation. Pg 55… The
potential for "embarrassment from multifarious pronouncements by various departments on one question.”

VI. •

Political decisions already made: An "unusual need” for unquestioning adherence to a
political decision already made.

Baker v. Carl o o The mere fact that the suit seeks protection of a political right does not mean it presents a political question (TN failed to reapportion electorate districts for many years, so 1 vote in rural was 8 in suburban area). Not political question, issue of equal protection. Laid out the framework of what questions the court will count as political. Legislative apportionment used to be considered to be “political” before this case.

S. or indeed may not occur at all United Public Workers v. subsequent events might make it ripe: o The law changes o The wrongful behavior in question has ended and couldn’t reasonably be expected to recur o a party had died or is no longer subject to the challenged statute Exceptions to mootness. Gardener o The impact of the regulations upon the petitioners is sufficiently direct and immediate as to render the issue appropriate for judicial review at this stage Mootness • • If the court’s decision will have no effect upon the outcome of the situation then it is moot and the limitations of article 3 will not allow the court to hear it Even though a case might have been moot at one point. Mitchell o • A hypothetical threat is not enough Abbott Laboratories v. The judiciary can provide some type of effective relief • Muskrat v. as per prior agreement school would not interfere in the classes already enrolled o The courts decision would not have had any effect upon the situation as he would have already completed law school regardless of what the court held. Case or Controversy 1.o ~~~~Include guaranty clause~~~~~  the U. yet evading review: pregnancy. changed his conduct o Collateral consequences Defunis v. Odegaard o Law school admission policies violate Equal Protection clause of 14th Amend. shall guarantee to every state a republican form of Gov’t. because they involve important constitutional issues: o Capable of repetition. appellate stayed. Court he was already enrolled in the final term. wade 2 • • • . United States o The court will not give advisory opinions as it is a waste of time because it is nonbinding.. election cases. by the time got to the Sup. but not permanently. etc o Cases in which a defendant has voluntarily. Roe v. Ripeness Doctrine • • • Ripeness means that an issue must present an immediate threat of harm A claim is not ripe for adjudication if it rests upon contingent future events that may not occur as anticipated. There is an actual dispute involving the legal relations of the adverse parties 2.

3. defenders of wildlife o There was no injury in fact. to say that anyone who observes or works with an endangered species.o Famous abortion decision which focused on the first exception under mootness – the decision was for future events that may transpire. which is concrete and particularized and actual or imminent NOT conjectural or hypothetical 2. CONSTITUTIONAL LIMITATIONS (Case-or-Controversy) 1. The injury be redressable by the court o Must be likely not merely speculative Lujan v. anywhere in the world. The injury be caused by the defendant o injury fairly traceable to the challenged action of the defendant and not a result of independent action of some third party that is not before the court 3. The respondents argument goes into pure speculation and fantasy. town zoning ordinance excluded low/moderate income families from moving from Rochester to Penfield. is appreciably harmed by a single project affecting some portion of that species with which he has no specific connection. now Penfield is penalized because there are whole bunch of poor people living there) a. The plaintiff be injured: injured in fact (cap on ai) o An invasion of a legally protected interest. PRUDENT LIMITATIONS (To comply with separation of powers only power allowed under Art III. asserting the Individuals’ rights again) does not have standing c. There is standing where litigant is entitled to have court decide the merits of the dispute i. Justiciability (Ripeness/ No Mootness) Only to redress Only to protect against injury of complaining party Of course. Standing • • • • Focuses on whether plaintiff has a sufficient interest in the litigation Look for standing in EACH case Look at each plaintiff separately Requirements/Test: 1. all jurisdictional limits apply • ii. couldn’t go to those schools. commuting time and cost) and Taxpayer (who had to provide tax abatements for the poor) would have standing b. Warth v Seldin (NY Rochester against Penfield. In this case Individuals (who couldn’t live in Penfield. Housing Council (general loss of business. what business? Did they lose govt contracts for low income building?) and Home Builders Association (Public Interest. Otherwise it is too abstract and it invades into the legislative province.) 3 . 2. 4.

Logical link b/t status and precise nature of constitutional infringement he is alleging. Legal theory. the threat should be IMMEDIATE a. doc missed out on income from otherwise lawful abortions) A π may. unless it is medically indicated. concrete b. ID the groups and their status 4. Causation. particularized as to π 2. show me the right that is violated (under PRUDENT limitations. injunctive relief iv. imminent (will definitely happen) METHOD for STANDING problems 3. Redressability – whether favorable ruling would eliminate the harm Third Party Standing Two factual elements to determine whether one may claim standing to vindicate the constitutional rights of some third party: 1. assert third-party rights where he himself suffered the injury and Taxpayer Standing • Must challenge a taxing or spending measure NOT a governmental expenditure that is incidental to the exercise of some other power 1.The relationship of the litigant to the person whose right he seeks to assert 2. a taxpayer will be a proper party to allege the unconstitutionality of Congressional power under taxing and spending clause of art 1 §8 (TAXPAYER) 2. suit for damages 2. It has to be your OWN legal rights and interests – can’t rest claim on 3rd party rights [proper allocation of branch duty can change that ??????] Defines STANDING iii. goes to the merits of the case) 7. Wulff o (where a doctor brought an action that he was harmed by the statute prohibiting abortion. Logical link b/t status and type of legislative enactment he is attacking. actual (not conjectural or hypothetical) b.The ability of the third party to assert his own right • Singleton v.1. must show that the enactment exceeds specific constitutional limitations imposed upon the congressional taxing and spending powers. the threat should be REAL a. Injury in fact (past injury is good). Threat of happening again 1.the injury must be traceable to the challenged conduct of the defendant and not be attributable to some independent 3rd party not before the court 6. The following should be analyzed separately 1. (EXCEEDING SPECIFIC CONSTITUTIONAL LIMITTIONS) 4 . Define the injury in fact – Harm (doesn’t have to be economic) 5. NO “generalized grievances” – need particularized harm 2. however.

Too remote and speculative.) If. concrete 2.g. CAUTION! Procedural requirement (including a citizen-suit provision in the statute) does not on its own give standing. need “case” or “controversy” under Art. The threat should be REAL 1. Flast v. III § 2) a. If Fontingham could establish standing virtually any taxpayer could establish standing. however. CONSTITUTIONAL ELEMENTS (not factors. particularized (affect π in a personal and individual way ii. Redressability should be LIKELY – NOT speculative or just possible II. 2) relate the injury to class of persons entitled to bring it. non-instrumental right. provide for cash bounty.• • Fontingham v. the Congress invites the court to hear particular dispute then Prudence elements (only) are minimized or extinguished. Causal connection – injury should be easily traceable to the ∆’s act (proximate cause) NOT result of some 3rd party not before the court c. Instead he showed that he merely suffered in some indefinite way in common. Cohen o The complaint contained specific allegations under the criteria to give them standing to invoke a fed ct’s jurisdiction for adjudication on the merits o Distinguished Frothingham on grounds that P there tried to assert State’s interest in its legislative rights instead of the fed taxpayer’s interest in being free of taxing & spending against specific const limitations. however. give rise to case or controversy where none before if: 1) id injury it seeks to vindicate. with people generally. court is unwilling to go that far. STANDING FRAMEWORK I. It can. i. b. Otherwise it is too abstract and it invades into the legislative province. imminent (will definitely happen again) Past exposure to illegal conduct does not in itself show a present case or controversy (might be moot) if unaccompanied by any continuing present adverse effects. Mellon o Plaintiff did not show that he sustained or is immediately in danger of some direct injury as the result of its enforcement. PRUDENCE ELEMENTS (To comply with separation of powers only power allowed under Art III. Injury in fact – invasion of legally protected interest. self-contained. each element should be satisfied. the threat should be IMMEDIATE 1. 5 . unless framework can be satisfied e. Congress can’t confer injury in fact in a way of abstract. actual (not conjectural or hypothetical) 2.

States cant Unduly burden • Be on the lookout for intentional discrimination against out-of-staters. Preemption • • Field Preemption – has the fed gov’t filled the field so the state has no room to act? o Congress is found to have made the decision to occupy an entire field Conflict preemption – can you comply w/ both fed and state rules? o It is physically impossible to comply with both state and federal law. States cant discriminate 2. since compliance with one violates the other o The congressional statute and the state action may be in actual conflict. Hunter’s lessee o Lower courts have to follow the mandate of the supreme court • Cooper v. The President enforced the decision by sending in troops. • Martin v. If the state is promoting is resident’s own economic interests. the state regulation is automatically invalid Pacific Gas o Cali wanted to regulate nuclear power o Not preempted unless the state said so o Whatever the state would try to do frustrated the fed gov’ts purpose • Dormant Commerce Clause 1. 2 fed courts can tell state courts what to do judiciary normally didn’t have power over states. so the regulation will virtually automatically violate the commerce clause • If Congress says the state can discriminate there is no dormant clause problem o Applies only to states that are acting where congress hasn’t spoken o “in this area we don’t need uniformity” “Do as you please state” 6 . NO “generalized grievances” – need particularized harm (won’t work if impact on π is plainly undifferentiated and common to all members of the public b.a. Felt it was a personal jurisdiction matter. This was the power of the executive and legislative. It has to be your OWN legal rights and interests – can’t rest claim on 3rd party rights [unless qualify for 3rd party standing: relationship + genuine obstacle to their own presentation] LIMITS ON STATE POWER Supremacy Clause • • • art 6 cl. board of education decision because that took place in Kansas and they were in Arkansas. this will not be a legitimate state objective. Aaron o Governor and legislature felt that they were not bound by Brown v. If so.

The regulation MAY burden interstate commerce some. 3. Seelig Inc. or might not be allowed on some highways) – regulation prohibiting use of semi’s based on width and weight. its legislation “manifested an intention not to regulate. public welfare. o This is a safety issue because local pilots understood the harbor provisions better than foreign pilots South Carolina State Highway Dept. v. In the absence of Federal legislature 2. Can’t do it.A. 4. Board of Wardens o CONGRESS SPOKE – told the states that they can make their own regulations for the navigable waters within the state. o Functionally overruled (even though on some bridges there might be weight restrictions. Although the Congress legislated on the subject. G. o All trains so this wasn’t a discrimination case Baldwin v. 93% of freight traffic and 95% of passenger traffic was by train. State has to have a legitimate. however. 2. compelling state interest(pursuant to its police powers: health.) 3. Create barriers against interstate independent dealers Prohibit the flow of interstate goods Place added costs on goods in the interstate flow Distinguish b/w in-state and out-of-state companies in the retail market TEST FOR DORMANT COMMERCE CLAUSE 1. Barnwell Bros. Arizona o Train length (75 cars. “you cant bring your goods into our state. position Health is a legitimate interest. Also. Necessity of the method should be established (other alternatives to achieve the same purpose) 4. Cooley v. not an absolute exception (otherwise.F. PA required that all ships traveling w/n the state must have local pilots.” or “you cant take goods out of our state into your state” How to spot DISCRIMINATION against interstate commerce 1. it MAY NOT discriminate against the interstate commerce (can’t erect economic barrier protecting a major industry. o NY wanted stable milk prices o Cant erect trade barriers 7 • • • • . the court got involved in relative benefit analysis. o Burden – have to unload their truck and adjust it into smaller loads o A safety issue – conservation or roads Southern Pacific Co. safety. v. safety and welfare objectives are usually legitimate (but this cannot be used as a smokescreen for protecting resident’s own economic interests at the expense of out-of-staters) a measure that leads to a lack of uniformity is likely to constitute a big burden on interstate commerce The most standard illustrations of forbidden protectionism are where the state says. 14 passenger) regulated. it would eat up the rule under the guise of exception. Weighed burden against benefit – not a safety measure.• • • State’s health. indirectly or incidentally • • However. economic welfare is always related to health). well-being of local communities etc. because what is gained by having shorter train is made up by increased volume of the trains. but to leave its regulation to the several states.

o Where the state acts as a market participant. Clover Leaf Creamery Co o no milk in plastic bottles. and the state may favor local citizens over out-of-state economic interests o A state chooses to deal with in-staters rather than out-of-staters in direct transactions.an oil refinery is allowed to open service stations in every state but Maryland  The court said Exxon could charge more to Maryland for oil if they pleased Suppose a state acts as a market participant. UPHELD. Producers in Chicago. could not sell. STRUCK DOWN. v. Dean Milk Co. spending money to run a proprietary enterprise. Regulates evenhandedly. v. o So a gov’t-owned entity may prefer in-state buyers when gov’t sells. better quality Grade A milk. o A city was regulating milk o Couldn’t send up your milk unless you were within 5 miles of the city o Created an unduly burden o You CAN require tat milk meets certain qualities but you CAN’T burden and discriminate in any way Hunt v.• • • • • •  Singled out Vermont  Interstate commerce clause o A state CAN tax milk from another state as long s its done in a nondiscriminatory manner Minnesota v. Healy* o Anytime you subsidize the local industry and don’t subsidize everyone else your giving the locals an advantage – discrimination but not the type of discrimination recognized by Congress or the court o Subsidize is o (subsidize = giving money) o If you try to show an intention to discriminate its going to fail 8 . and the like *West Lynn Creamery Inc. may prefer in-state sellers hen gov’t buys. Could have required them to pay fee for the inspector come out (other alternatives where the interstate commerce would not be discriminated). have to be inspected in order to sell in the state. Maryland* o If you were an out-of-state oil refinery couldn’t open a service station in Maryland o In state oil refineries could – but there were NO in-state refineries o Not discrimination because no one in state is benefiting  The mere fact that the entire burden of the statute fell on some out-of-state companies was insufficient to establish that interstate commerce was discriminated against o On face it appears to be discrimination but the court said it has no effect on interstate commerce  According to JAMAR: burden . dormant commerce cause analysis will not be applied. Madison o In city of Madison all dairies to be inspected are w/n 5 mile radius. or to subsidize private businesses. environment – leg state interest. Washington Apple Advertising o Grading scale of apples o In NC you cant bring in apples unless you use the federal system o Washington was using a different system – more unique and advanced o You’re burdening washington’s efforts to sell apples o NC claims uniformity o Supreme court: NC cant stop Washington from using their advanced scale *Exxon v.

happiness & safety o Right of a citizen of one state to pass through or reside in any other state for any purpose o Benefit of habeas corpus o Bring suit in state court o Take.Two competing interests: State Police Power (women’s health and life of a baby) v. 9 • . TEST – Fundamental Rights .hold & dispose of property o Exemption from higher taxes than are paid by other residents of the state o Elective franchise • Slaughterhouse o • Baldwin v. property. Purpose was to help fuse into one nation a collection of independent. the discrimination practiced against nonresidents bears a substantial relation to the problem they present.implicit in the concept of ordered liberty 1.RIGHTS The Privileges and Immunities Clause Art 4 Citizens of each state are entitled to all privs & ims of citizens of the several states. so rooted in the traditions and the conscience of our people as to be ranked fundamental a. Personal Liberty (freedom of choice) • a state's discrimination against nonresidents is permissible where 1. history b. (strong) compelling state interest 2. legislative enactment must be narrowly drawn and Necessary to express ONLY the legitimate interest at stake Fundamental rights are NOT ABSOLUTE . Corvell o Protection by the govt o Enjoyment of life. • Corfield v. sovereign states • Does not require states to treat nonresidents in exactly the same way that they treat their own citizens • Triggered only if a state discriminates against citizens of other states w/ respect to interests that are sufficiently “fundamental” to come within the purview of the clause. then 1.liberties are implicit in the concept of ordered liberty IF the right is FUNDAMENTAL. Fish and Game Commission of Montana o A state does not violate the privileges and immunities clause of article 4 if they do not offend a “fundamental” (ex: livelihood) right/activity of a citizen o Legitimate interest of preserving elk and allowing state citizens more access because they were tax-paying citizens. and 2. liberty. the presence or activity of nonresidents is the source or cause of the problem or effect with which the state seeks to deal. popular importance 2.

Roe o The constitutional right to travel includes the right to be treated equally in one’s new state and the citizenship clause of the 14th amendment does not allow for degrees of citizenship based on the length of residence o Three components of the right to travel: 1. Protects nonresidents who enter another state and prevents states from alienating them in any way Unlike art 4.• o GET THE RULE FROM THE DISSENT that shows when discrimination is ok Supreme Court of New Hampshire v. 10 • • • o o . This liberty may not be interfered with. equal protection. vote. o The right to practice law is a “fundamental” right. the right to be treated like other citizens of that state Privacy • How do we get the right to privacy out of the constitution? Nowhere does it say that a person has a right to privacy. But if choosing to stay. The statute exceeded the power of the state and conflicted with the rights guaranteed to all citizens through the 14th amendment.” prohibits states from limiting federal citizen P. The right of a citizen to enter and leave a state 2. education and due process Saenz v. Piper o When a state discriminates against non residents there must be a substantial relationship to the problem they present and the discrimination practiced against them. Right to be treated as a welcome visitor when temporarily present in a state 3. there are some rights actually listed a parent’s right to direct the upbringing and education of his children is fundamental Liberty includes: o Not only freedom from bodily restraint but also the right of the individual to contract o To engage in any of the common occupations of life o To acquire useful knowledge o To marry o Establish a home and bring up children o To worship God according to the dictates of his own conscience o And generally to enjoy those privileges long recognizes at common law as essential to the orderly pursuit of happiness by free men Meyer v. the 14th amendment prohibits any abridgment of a citizens’ privileges or immunities whether or not there is discrimination against citizens of other states Non-slavery. privacy. The Privileges and Immunities Clause – 14th Amendment • • • • • • “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the U. o “Liberty” from 14th o 9th Am. Nebraska o No legislature can impose such restrictions (outlaws the teaching of German in elementary schools) upon the people of a state w/o doing violence to both letter and spirit of the constitution.I.S.

o Homosexuality and Sexual Privacy • • State laws that criminalize homosexual sodomy demeans the lives of homosexual persons and thus violates their substantive due process rights. pursuant to a doctors prescription. o The state over-stepped its boundaries o It is a promise of the constitution that there is a realm of personal liberty which the government may not enter. Bowers v. Sexual conduct is now covered under the substantive due process. but physicians. and certain intimate conduct. It is not for the Court to decide whether the legislature actually works. Whalen v. Hold: states cannot criminalize private homosexual conduct between two consenting adults. Carhart o The government was focused on preserving and promoting fetal life. Texas o Overrules Bowers.found constitutional). An act can ban an abortion procedure without containing a health exception for women when the risk posed to women is not clearly agreed upon by the medical community therefore the original focus on fetal life remains the dominant concern. All other concerns were secondary. • CONGRESSIONAL POWER • • Congress is always setting the measuring stick. certain drugs for which there is a lawful and unlawful markets. o Drug use is a problem and Congress’ business o There is a rational relationship between drug trafficking and the illegal drug use. court upheld the constitutionality. o The right of liberty allows citizens to define their own concept of existence as they have the right to control intimate choices with respect to adult sexual relations. GA statute prohibits homosexuality. Liberty presumes the “autonomy of self” that includes freedom of thought.• • Legislatures cannot achieve social reform by trying to control personal and family autonomy as these are private decisions left to the discretion of the parent. Congress has HUGE effect on the judiciary However congress cannot tell the court what the minimum standard is. the name and addresses of all persons who obtained. Tracking illicit flow of drugs Gonzalez v. belief. cops dropped charges. always be deferred to the Congress or the state legislature o Not tracking citizens. in a centralized computer file. o Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government. expression. That is what the court is for 11 . but he claimed he is in the imminent threat of being arrested at any time o the court refused to find the right to engage in sodomy a fundamental right Lawrence v. They can make laws and the court has to apply them. Roe o (NY wanted to record. Hardwick o Hardwick was arrested in the bedroom of his own home. State can experiment with different measures.

o Congress exceeded its power in taking away the appellate jurisdiction of the court and encroached on presidential prerogative to offer pardons. atheist can’t use  UNFAIR. violates equal protection clause .staute gives church a legal weapon that agnostic.govt cant have a preference for religion Exceptions Clause • • • • Congress is granted plenary power to withdraw subject matters from the court’s appellate jurisdiction. Ex Parte McCardle o “Exceptions Clause” (Art III §2. o Congress wanted to give greater protection to churches and religion o Congress does not have the power to set the standard of review for 1st amendment – right of free exercise o Proportionality and Congruence test  “statute must justify exercise of Cong’ §5 power by showing “proportionality and congruence between the injury to be remedied and the means to adopt that end” o RFRA gives ppl who can access it a federal statutory entitlement to an exemption from a generally applicable. § 5: “Cong has power to enforce.arising under this constitution [and] the laws of the United States…. o The operation of the act passed the limit which separates the legislative from the judicial o Congress was attempting to manipulate the court’s jurisdiction in order to achieve a particular result. but it also invalidated a presidential pardon. Art 3 provides that the judicial power “shall extend to all cases…. the provisions of this article.” o Cong is only enforcing 14th Amendment to provide equal protection under §5 o -enforcement was w/in Cong’s power to prioritize right to vote over the fed intrusion upon the state’s interests in keeping the literacy requirement o would be “invidious discrimination” to use literacy test to present PR w/ 6th grade education from pub/priv school that was not taught in English Boerne v. lowering the standards. Morgan o 14th Am. Klein o The act not only stripped the Sct of its appellate jurisdiction. neutral civil law . by appropriate legislation.” Watch for the separation of powers: no branch may usurp or encroach on the constitutionally vested functions of another branch. flores o Congress can stack on other privacy rights but they cannot knock rights down. • Necessary and Proper Clause 12 . cl 2): “the SCt shall have appellate jurisdiction…with such Exceptions and under such regulations as the Congress shall make” o The act took away the appellate jurisdiction of the court o Congress defines the scope of the court’s jurisdiction United State v.• • Katzenback v.

5) but consistent w/ the letter and spirit of the Constitution. or property 95% of the battle in analyzing a substantive due process problem is deciding whether the right in question is “fundamental” or not 5th Amendment [Applies to FEDERAL government] 13 . Congress provides a “necessary and proper” means through which the judiciary can effectively exercise the judicial power vested in it by article 3 McCulloch v. o Ex: through the creation of administrative agencies congress provides a “necessary and proper” means through which the president can see that laws be “faithfully executed. 2) let it be within the scope of the constitution. Also. and all other powers vested by the constitution in the government of the united states. or in any other department or officer thereof. The clause empowers Congress to provide the coordinate branches with the means to carry out their respective constitutional responsibilities.• • • • • Art 1 §8 cl 18 grants Congress the power “to make all laws which shall be necessary and proper for carrying into execution the foregoing powers. to regulate commerce etc. not diminish the powers vested in the gov't…an additional power.” The test to determine if necessary and proper: o 1) Let the end be legitimate. o Courts view of necessary and proper clause: 1. and 3) all means which are appropriate.” The necessary and proper clause makes it possible for the gov’t to establish a bank as a means to an end of the aforementioned powers. Maryland o The gov’t has the power to lay and collect taxes. liberty. The terms of the clause purport to enlarge. is to serve as a broad governing document.” o By providing support personnel to the federal judiciary. The clause is positioned in the enumerated powers of Congress (NOT the limitations of powers) and it should be given an expansive construction because a narrow construction would render many of the enumerated powers useless. which are plainly adopted to that end. Power to Regulate the Economy Substantive Due Process Lochner Era • Substantive due process o Insists that the law itself be fair and reasonable and have an adequate justification regardless of how fair or elaborate the procedures might be for implementing it   • Has the gov’t by carrying out this taking violated the individual’s substantive interest in life. 2. to borrow money. The court said that such powers imply “means of execution. 4) which are not prohibited. not a restriction on those already granted. because it is in the Constitution is indication that it should be read broadly because the const. are constitutional The constitution vested congress with the authority to select reasonable means through which to exercise its constitutional responsibilities.

they lack a valid purpose and therefore violate due process • Muller v. o The legislation for the protection of women may be sustained. o o o (1) freedom to contract is a right protected by the 14th Amendment (2) government could interfere with that freedom to contract only to serve a valid purpose related to the public health. New York o o The court struck down a NY law that sought to protect the health of bakers by outlawing their employment for more than 10 hrs a day or 60 hrs a week Violated due process because it was “an unreasonable. • Lochner v. Oregon o The court upheld a law that set maximum hours for women who worked in factories and laundries o “Widespread and long continued belief” that “woman has always been dependent upon man” o Women’s right to contract for a certain number of hrs being limited was for the good of the public. passed for other motives Its real objective was to simply regulate the hours of labor between the master and his employees BEYOND the legitimate scope of the state’s police power. morals and general welfare.enter into those contracts in relation to labor which may seem to him appropriate or necessary Violation of liberty/right to contract  The limitation of the hrs of labor has no such direct relation to and no such substantial effect upon the health of the employee as to justify us in regarding it as a health law A law that interferes w/ liberty to contract will be found to violate due process unless the court is convinced that the measure was necessary to directly advance an important governmental purpose o  o Court concluded that that the health goal was a sham    Passed under the state’s police power for the purpose of protecting the public health or welfare.• • 14th amendment – you can’t deprive a person of property or due process [Applies to STATE and LOCAL governments] The right to contract protected by the due process clauses of the fifth and fourteenth amendments involves the freedom to enter into contract on terms and conditions of one’s choosing. in reality. unnecessary and arbitrary interference w/ the right of the individual to…. (3) the judiciary would carefully review any legislation that alleged infringement on the freedom to contract to insure it was a valid exercise a police power with legitimate ends. 14 . even when like legislation is not necessary for men. safety. are.

the federal govt can regulate.manner connected with commerce among the several states o So NY waters.o Not overruling Lochner. i. collectively. the court holds that a state is free to adopt whatever economic policy deemed necessary to promote pub welfare and the courts are w/o power to override it • West Coast Hotel Co. fall within the meaning of interstate commerce 15 • • . Must be some connection to interstate commerce Commerce Clause power reaches into three categories of problems o Channels of interstate commerce which are being misused (roads. Parrish o Exploiting a class of workers o The denial of minimum wages to women and children was not only detrimental to their health but also to the community because the community would bear the burden for their support o In such cases deference must be shown to the legislature o The legislation is free to recognize degrees of harm and it may confine its restrictions to those cases where the need is deemed to be clearest Demise of the Lochner era • Liberty to contract was still protected by Due Process Clause. whose infringement would trigger strict scrutiny • Since freedom to contract was now just an ordinary liberty. water. the court in reviewing a law that impaired this liberty interest would cease to substitute its own judgment for that of the legislature and would instead treat the measure as being presumptively valid • Laws that sought to redress inequalities of wealth or bargaining power on behalf of certain groups would no longer be overturned on the ground that they did not further the public good Commerce Clause • • • The Commerce Clause art 1 §8 provides Congress shall have power to regulate commerce with foreign nations and among the several states. only viewing the right to contract under different circumstances • Nebbia v. Ogden o The power granted to Congress under the commerce clause includes the power to regulate navigation within the limits of every state in the union. stuff that is being moved in interstate commerce) o Activities have a substantial effect on interstate commerce  Activity is commercial  IF NOT there will apparently have to be a pretty obvious connection between the activity and interstate commerce  as long as the instance is part of a general class of activities that. people. cars. o In regards to due process. it no longer amounted to a fundamental liberty. since they were used at least for transportation to NJ. economic matters that do not affect more states than one Gibbons v. so far as that navigation is in ny .. boats. RR) o Instrumentalities of interstate commerce (airplane.e. substantially affect interstate commerce Congress may not rely on the commerce power to regulate matters that are completely internal to a state. things. v. New York o The court upheld a NY law that sought to rescue farmers by setting a minimum price for the sale of milk. and with the Indian tribes Basic rule: o If it touches on interstate commerce in any way.

Activities that may substantially effect interstate commerce o test is not whether the activity must affect commerce but whether the regulated activity substantially affects interstate commerce o the rule from the precedents is that where economic activity substantially affects interstate commerce. including the marketing.• • • • • • • The word commerce embraces any activity involved in the commercial exchange of goods and services. v. 3. Darby o lumber manufactured by employees whose wages are less then those prescribed by law is w/n CC power (unanimous decision) Wickard v.S. legislation regulating that activity will be upheld o the possession of a gun in a local school zone is in no sense an economic activity that might substantially affect any sort of interstate commerce. McClung o Commerce clause gives congress power to regulate public establishments that sell goods which have moved in interstate commerce and which serve interstate travelers o Discriminatory practices prevent people from buying prepared food while on a trip. Dole (use this for spending) 16 . and interstate travel falls within the definition of interstate commerce Katzenbach v. NO Sonzinsky South Dakota v. purchase. o No exercise of commerce power will be validated under the substantial affects test unless:  The activity must be an economic activity  The activity must substantially affect interstate commerce Taxing and Spending Powers (add notes on pg 215) • • • • • • • • • Art 1 §8 – the congress shall have power to lay taxes. Channels of interstate commerce. for local consumption.S. and duties for the general welfare of the united sTATES Must be in the interest of the general welfare Can tax on things we don’t like and spend on things we like Through taxing congress can encourage or discourage state action Economic power through taxing power Cant tax the internet Spending example from class: o Money to Mississippi for school because they’re the worst in the country. o Discrimination by hotels and motels impedes interstate travel. because the actions substantially effect interstate commerce in aggregate. Heart of Atlanta Motel v. YES o Money to Massachusetts for school because they’re the best in the country. U. Filburn o Agricultural Adjustment Act. 2. and transportation of those goods The clause has been interpreted as vesting Congress with the authority to adopt legislation of a common market free from state-imposed restraints US v. Instrumentalities of interstate commerce. Does not matter. regulating local farmers. Lopez o Three areas of activity that congress may regulate under commerce power: 1. which has a highly restrictive effect and directly obstructs interstate commerce U.

power minus whatever has been assigned to the congress Dames Moore v.) Lowest ebb – when the president acts in contradiction to the express of implied will of Congress. possesses plus all the power that the congress can delegate 2) Uncertain – President acts in the absence of either a congressional grant or denial of authority – can only rely on his own powers 3. they subpoenaed. now the crim court wants those documents.– only can rely on his own const. it was directly related to a national directive. acts pursuant to express or implied authorization of congress – all the power that the pres. Jackson concurrence: Presidential powers are not fixed but fluctuate depending upon disjunction or conjunction with those of Congress. he does not want to produce claiming immunity executive. Privileges and Immunities of The Office United States v. ordered them to operate according to Executory order) Justice Jackson. This is an action for the nation’s lawmakers. the conditions were clearly stated. and the 21st amendment did not provide an independent bar Limitations on t&s power:  Must be in pursuit of general welfare  Conditions must be stated unambiguously so states understand them  Conditions may be illegitimate if unrelated to fed interest in nat’l programs  Other constitutional provisions may provide an independent bar (means that other prvisios can prevent Executive Powers Youngston Sheet & Tube Co. Nixon (Watergate scandal. Truman seized steel mills. He has the power when the action is necessary in a foreign dispute. Sawyer (1950 North Korea crisis. but had to produce tapes because this presented a series of issues under separation of powers because the prosecutors were under the executive. set out a framework of the degrees of the presidential power: • • The Commander in Chief does not have the power to take possession of private property to keep labor disputes from stopping production. Black rejects executive domestic lawmaking. Regan (broad power in foreign disputes) has power to settle claims without the consent of senate. in his concurrence. v. bugged his offices privately expressed himself. TEST – In order to withhold information using the privileges and immunities There must be a claim that there is a need to 17 . “According to Justice Black’s 3 standard from Youngstown…” 1) Maximum – when Pres.o o o SD was permitting people under 21 to buy beer so Congress withheld a percentage of federal highway funds The means were reasonably calculated to advance the general welfare.

US – pres. Jones o this was a civil action – sexual harassment o Was asked to go to the hotel where Pres. President can be sued for non official acts.A Schechter Poultry v.1. Bush uses this to justify torture and wage war in Iraq President has maximum power when we are at war. DELEGATION POWER A. sensitive national security secretes Absent these 3 concerns. TEST 1. Congress should itself have the power to be able to delegate 2. Clinton v. Pres. agency War Powers • • • • • Be alert for separation of powers issues when the president’s war-related powers are at stake The constitution gives Congress the power to declare war. Should set out standards to define boundaries of the regulations by admin.” Did not give enough standards. delegated his power to an administrative agency to set up standards for “fair competition. should lay out an objective 3. Just look at what Bush is doing right now To torture: o It’s a necessity to gain information for our national security o On American soil – violation – cruel and unusual punishment 18 • . President wants the freest hand to do as he leases and have it unreviewable by the court  in times of Nat’l security President can suspend or eliminate rights. PRESIDENT DOES NOT HAVE THIS POWER Korematsu o Japanese Americans placed in concentration camps o This was justified through a compelling state interest – NATIONAL SECURITY An issue of National security is used over and over. made sexual advances. Clinton said that he is entitled to the staying of the case while he is in office. there is a little reason to sustain this all encompassing executive privilege (only a presumption of privilege that can be rebutted by sufficient countervailing interests. protect military secrets 2. o As an actual war President has extended powers  “WAR” in terrorism is not used as a metaphor.L. diplomatic secrets 3. discretion too broad. basically the pres is immune while in his official capacity o He wanted to wait until he finished his term because he said too many he had too many other things to focus on Immunity is grounded in the “nature of the function performed [and] not the identity of the actors who perform it.

You cant torture. Hamdi v. troops are still involved in active combat in Afghanistan those detentions are under the exercise of “necessary and appropriate force. There are treaties against it. Rumsfield o Hamdi was an American citizen captured on the battlefield and alleged to be an enemy combatant o The Authorization for Use of Military Force (AUMF) enacted shortly after September 11 o The AUMF authorizes the President to use “all necessary and appropriate force” against “nations organizations. o If the record establishes that the U. No way around it in international law. or persons” associated with the September 11.” and therefore are authorized by the AUMF. o 19 . 2001.S. terrorist attacks.• • Bush has given the Taliban and Al Quaeda the status of an “enemy combatant” –This is a loophole which squeezes it past the Geneva Convention treaties which does not allow such treatment of soldiers or citizens.

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