Text: Red text = from class notes Black text = from case book Blue text = from additional supplements Purple text = from Quimbee supplement Green text = from Chemerinsky Italic text = quotes from the Constitution Yellow highlight = important Blue highlight = unsure of/needs more info Purple highlight = not tested Outline: Light green case name = main case in book (assigned), but primary case on syllabus Black case name = case in notes of book that was discussed in class
Table of Contents
CONSTITUTIONAL LAW OUTLINE ................................................................................................. 4 PART I: THE ROLE OF THE COURTS IN CONSTITUTIONAL INTERPRETATION ................ 4 JUDICIAL POWER ............................................................................................................................... 4 INTRODUCTION: THE CONSTITUTION OF THE UNITED STATES, PP. XXXV-XLIX............................................... 4 Interpreting the Constitution ............................................................................................................................ 4 Levels of Review ....................................................................................................................................................... 5 The Constitution ...................................................................................................................................................... 5 THE SUPREME COURT S AUTHORITY AND ROLE: THE POWER AND LIMITS OF JUDICIAL REVIEW ............ 5 Judicial Review ......................................................................................................................................................... 5 The Establishment of Judicial Review (pp. 1-21) ..................................................................................... 6 The Power to Review State Court Judgments (pp. 21-29) ................................................................... 7 The Adequate and Independent State Grounds Doctrine (pp. 29-) ................................................. 8 The Operation of Judicial Review (pp. 35-47) ........................................................................................... 9 Courter-Majoritarian Role (pp. 36) ................................................................................................................ 9 Limitations on Judicial Review: (pp. 49, 65-66, 98-118, 122-25) ..................................................... 9 The Proper Role of Federal Courts (pp. 65) ............................................................................................. 10 The Eleventh Amendment (pp. 122-125).................................................................................................. 12 PART II: ENFORCING THE CONSTITUTIONAL ALLOCATION AND LIMITATION OF NATIONAL POWER ......................................................................................................................... 14 NATIONAL LEGISLATIVE POWERS ............................................................................................. 14 THE VALUES AND ENFORCEMENT OF FEDERALISM LIMITS ON NATIONAL LEGISLATIVE POWER (PP. 127-53) .......................................................................................................................................................................... 14 Federalism............................................................................................................................................................... 14 10th Amendment ................................................................................................................................................... 14 Police Power ........................................................................................................................................................... 14 THE COMMERCE POWER ............................................................................................................................................. 16 General Scope (pp. 153-72) ............................................................................................................................. 16
Pre-1937 Commerce Clause (pp. 172-81)................................................................................................. 18 New Deal Expansions (pp. 181-91) ............................................................................................................. 22 What s the Law Today? (pp. 191-204) ....................................................................................................... 25 External Limits on the Commerce Power imposed by State Autonomy (pp. 204-26) ......... 30 OTHER NATIONAL POWERS: TAXING, SPENDING, TREATIES, WAR-RELATED, FOREIGN AFFAIRS AND CIVIL RIGHTS (PP. 226-51) ....................................................................................................................................... 31 Taxing Power ......................................................................................................................................................... 31 Spending Power .................................................................................................................................................... 32 Treaties, War-related, Foreign Affairs and Civil Rights ..................................................................... 34 HEALTHCARE CASES ..................................................................................................................................................... 34 FEDERAL LIMITS ON STATE REGULATION OF INTERSTATE COMMERCE ....................... 35 THE DORMANT COMMERCE CLAUSE (DCC) .......................................................................................................... 35 Development of the Doctrine (pp. 253-60) .............................................................................................. 37 Discrimination against Interstate Commerce (pp. 260-70)............................................................. 38 Neutral Burdens on Interstate Commerce (pp. 270-83).................................................................... 39 Facially Neutral Regulations with Discriminatory Effects (pp. 284-300) ................................. 40 States as Market Participant Exception (pp. 300-08) .................................................................... 43 THE PRIVILEGES AND IMMUNITIES CLAUSE OF ARTICLE IV (PP. 308-17) .................................................. 44 FEDERAL PREEMPTION AND CONSENT: CONGRESS HAS THE FINAL WORD (PP. 317-30) ........................ 46 PART III: SEPARATION OF POWERS .......................................................................................... 48 SEPARATION OF POWERS ............................................................................................................ 48 INTRODUCTION (PP. 333-34) ................................................................................................................................... 48 EXECUTIVE ACTION ...................................................................................................................................................... 48 Executive Action: Domestic Affairs (pp. 335-55) .................................................................................. 49 Executive Action: Foreign Affairs (pp. 355-83)...................................................................................... 50 LEGISLATIVE ACTION AND THE ADMINISTRATIVE STATE:................................................................................. 52 General Themes (pp. 383-97) ......................................................................................................................... 52 Specific Limitations (pp. 397-413) .............................................................................................................. 53 IMMUNITIES AND PRIVILEGES (PP. 413-24) ........................................................................................................ 54 PART IV: INDIVIDUAL RIGHTS LIMITATIONS ON GOVERNMENT POWER....................... 56 DUE PROCESS INTRODUCTION ................................................................................................................................... 56 PROCEDURAL DUE PROCESS (PP. 425-43) .............................................................................. 57 Property ................................................................................................................................................................... 57 Liberty ....................................................................................................................................................................... 58 Determining the Process That is Due ......................................................................................................... 58 SUBSTANTIVE DUE PROCESS ....................................................................................................... 58 SUBSTANTIVE DUE PROCESS ...................................................................................................................................... 58 THE INCORPORATION DOCTRINE (PP. 443-58) .................................................................................................. 59 THE RISE AND FALL OF ECONOMIC RIGHTS AS THE SUBSTANCE OF DUE PROCESS (PP. 458-70) ........ 64 THE MODERN REVIVAL: PRIVACY RIGHTS (PP. 470-549) ........................................................................... 66 Origins: Contraception (pp. 472-83): ......................................................................................................... 67 Abortion (pp. 483-516): .................................................................................................................................... 70 Family Relationships (pp. 516-23)............................................................................................................... 73 The Right to Die (pp. 523-35): ....................................................................................................................... 75 Consensual Sexual Choices (pp. 535-49) ................................................................................................... 76 Methodology........................................................................................................................................................... 78 THE MODERN REVIVAL: EXCESSIVE PUNITIVE DAMAGES ................................................................................. 79
ECONOMIC RIGHTS: THE TAKINGS AND CONTRACTS CLAUSES ......................................... 80 THE TAKINGS CLAUSE (PP. 551-92) ...................................................................................................................... 80 The Public Use Requirement (pp. 552-62) ............................................................................................... 81 Regulatory Takings: When Does Regulation Become a Taking? ................................................... 82 Conditional Regulatory Takings (pp.587-92)......................................................................................... 87 THE CONTRACTS CLAUSE (PP. 593-605) .............................................................................................................. 87 EQUAL PROTECTION OF THE LAWS........................................................................................... 88 INTRODUCTION AND LEVELS OF SCRUTINY (PP. 607-12)................................................................................. 89 Introduction ........................................................................................................................................................... 89 Levels of Scrutiny ................................................................................................................................................. 90 Over-inclusive/Under-inclusive ..................................................................................................................... 91 Classifications ........................................................................................................................................................ 92 MINIMAL SCRUTINY: THE DEFAULT LEVEL OF REVIEW..................................................................................... 93 Means: What is Not Rational? (pp. 612-19) ........................................................................................... 93 Ends: What Purposes are Not Legitimate? (pp. 620-29) ................................................................... 95 Same Sex Marriage? ........................................................................................................................................... 96 Enhanced Minimal Scrutiny: Means? Ends? Both? (pp. 629-40)................................................ 97 STRICT SCRUTINY AND SUSPECT CLASSIFICATIONS: RACE AND ETHNICITY ................................................. 99 Overview (pp. 640-42) ....................................................................................................................................... 99 Purposeful Discrimination Required (pp. 642-49) .............................................................................100 Official Racial Segregation (pp. pp. 649-58) .........................................................................................104 Affirmative Action .............................................................................................................................................106 STRICT SCRUTINY AND SUSPECT CLASSIFICATIONS: LAWFUL RESIDENT ALIENS (PP. 716-19)......... 114 INTERMEDIATE SCRUTINY: SEX AND ILLEGITIMACY (PP. 720-43) ............................................................. 114 Gender Discrimination ....................................................................................................................................115 FUNDAMENTAL RIGHTS: STRICT SCRUTINY REVISITED .................................................................................. 121 Introduction (pp. 743-49) ..............................................................................................................................122 Voting: Denial, Dilution, Gerrymandering (pp. 749-75) ..................................................................123 Access to Courts (pp. 775-80).......................................................................................................................127 Penalties on the Right of Interstate Migration (pp. 781-87).........................................................128 CONGRESSIONAL POWER TO ENFORCE CONSTITUTIONAL RIGHTS ............................... 129 INTRODUCTION (PP. 1143-44) ............................................................................................................................. 129 CONGRESSIONAL POWER TO ENFORCE CONSTITUTIONAL RIGHTS .............................................................. 129 Coverage: Public or Private Conduct? (pp. 1165-70) ........................................................................129 Content: Remedial or Substantive? (pp. 1170-91) .............................................................................130 THE RIGHT TO KEEP AND BEAR ARMS AND THE PROPER INTERPRETATION OF THE CONSTITUTION.............................................................................................................................. 135
Judiciary has decided certain parts of the Constitution pose political questions a. The Constitution does not say who should interpret the document a. But since Marbury it has been held that the federal courts have this authority 2. This likely best describes the current system of constitutional interpretation 1. Marbury v. Philosopher-king rationale vs. xxxv-xlix
The 3M cases the cannons of the power of the branches of government under the Constitution the three cases where the courts decide who has the power . Hunter . pp. Madison endorses this approach
. No authoritative interpreter each branch would have equal authority to determine the meaning of the constitutional provisions. Often challenges to the president s conduct of foreign policy c.Martin v. written constitution/textualist (two ends of the specrum) a.CONSTITUTIONAL LAW OUTLINE
PART I: THE ROLE OF THE COURTS IN CONSTITUTIONAL INTERPRETATION JUDICIAL POWER Introduction: The Constitution of the United States. and conflicts resolved through political power and compromise b. Critique of philosopher-kings that s what we elect the legislature for 3. The judiciary as the authoritative interpreter i.McCulloch
Interpreting the Constitution
1. Arguably. Three possible answers to the question of who should be the authoritative interpreter of the Constitution a.Marbury . Each branch is authoritative in certain areas i.
The Court has generally tried to exercise judicial review in a fashion that mediates rather than aggravates the tension between a judicially enforceable Constitution and representative democracy
. Anti-Federalists really wanted a Bill of Rights which wasn t initially included. 15
The Supreme Court¶s Authority and Role: The Power and Limits of Judicial Review
1. business type matters a. Discrimination is often given the greatest scrutiny 3. but many of the state ratification conventions called for a bill of rights to be added to the Constitution 5. it had not authority to act 3. Article II the Executive Branch 6. property. Amendments 1-10 the Bill of Rights 8. The presumption created was that unless the federal government could find authority for its acts in the Constitution.e. Federalists prevailed b.Levels of Review
1. Federalists v. Article III the Judicial Branch 7. states were presumed to have power to act unless denied by the Constitution. all get minimal?
1. federal law. Should all rights get the same level of review i. 10th Amendment States Rights 9. whereas judicial power over the executive branch is somewhat muted in its textual support
1. When government regulates those the court typically adopts a minimal review posture 2. The minimal review is usually for economic. Anti-Federalists a. 14th Amendment Equal Protection Clause overruled Dred Scott th Amendment protection of voting 10. Judicial review: the process by which courts decide whether actions of government officials (including legislation) comply with the Constitution a. 13th Amendment abolished slavery b. or the relevant state constitution 4. The new federal government was given only a few specifically enumerated (but very important) powers 2. Amendments 13-15 the Civil Rights Amendments a. Power over the legislative branch is pretty textual. By contrast..
comprised of the Supreme Court of the United States and the lower courts created by Congress 3. 4. 7-13)
1.fully appointed to that position by the President s act of signing his commission. (3) It depends. 1-21)
Marbury v. When Jefferson assumed office he refused to finalize Marbury s appointment. Thus the Court showed that it had ability to review acts of Congress b. However. further enforced by his confirmation in the Senate. (2) Yes. Section 13 of the Judiciary Act of 1789. Cited as authority for the judicial review power of courts
. this provision directly conflicts with Article III of the Constitution. seeking a writ of mandamus to compel Jefferson s SOS Madison to compel him to finalize the appointment b. The Act is unconstitutional because it seeks to expand the Supreme Court s original jurisdiction and therefore jurisdiction over Marbury s claim cannot be exercised. Facts a. Although a writ of mandamus would have been appropriate. Marbury brought action. Madison (pp. The Court held that although the Judiciary Act of 1789 authorized such jurisdiction. 2. does Marbury have a remedy under United States law? (3) If Marbury is entitled to a remedy. Marbury appointed by President Adams. Rule of Law: The Supreme Court of the United States has the authority to review federal executive and federal legislative acts to determine whether they comply with the United States Constitution. Marbury is entitled to a remedy under federal law c. Issue: (1) Does Marbury have the right to his judicial appointment? (2) If he does have a right and that right is violated. is unconstitutional. is that remedy specifically a writ of mandamus as outlined in Section a. Holding: the SC ruled against Marbury and held that it could not constitutionally hear the case as a matter of original jurisdiction. this provision of the statute was unconstitutional because Congress cannot allow original jurisdiction beyond the situations enumerated in the Constitution a. b.The Establishment of Judicial Review (pp. The Act allows the Supreme Court to have original jurisdiction over actions for writs of mandamus. which authorized the United States Supreme Court to give such a remedy. (1) Yes Marbury does have a right to his commission as Justice of the Peace because he was law. Article III: establishes powers and jurisdiction of the judicial branch of the federal government. It also showed it s ability to review executive acts whether Jefferson must allow for Marbury s appointment 5. Madison s refusal to finalize Marbury s appointment interferes with Marbury s legal title. which greatly limits the cases in which the Supreme Court has original jurisdiction and provides it with appellate jurisdiction in all other cases.
Facts a. trust a. Arkansas public schools. Rejected interposition 2. in part based on fears of violence. The state disobeyed the order. Shows that the real concern of Congress is supremacy and not uniformity 7
. Accordingly. Rejected the idea that states. 25 of the Judiciary Act. 8. and in part based on a claim that it was not bound to comply with judicial desegregation decrees i. The Court rejected this position. The specific issue in Marbury. Chief Justice Marshall s reasons why the Court could declare federal laws unconstitutional a. These are the only cases the SC can hear under this statute a. federal law would be interpreted differently in each state i. 19-21)
1. Supremacy. 21-29)
1. upholding Marbury
The Power to Review State Court Judgments (pp. Marbury could be interpreted (consistent with approach that each branch is authoritative in certain areas of constitutional interpretation) as assigning to the judiciary only the responsibility of interpreting Article III. The Supremacy Clause b. Federal courts. Constitution imposes limits on government powers and that these limits are meaningless unless subject to judicial enforcement b. which defines judicial power. Uniformity without a regulatory body. Marbury could be read narrowly as holding only that the Court is the final arbiter of the meaning of Article III of the Constitution. is whether s section of the Judiciary Act of 1789 is consistent with Article III of the Constitution. Supremacy: when a state law conflicts with federal law. Aaron (1958) (pp. the federal law rules i.6. All of Marbury could have been avoided if the Constitution said that the courts have judicial review 7. retain the right to assert their sovereignty to trump unwanted federal action a. having entered into a compact to form the Union. Under Sec. A federal district court ordered the desegregation of the Little Rock. appellate review of state courts only for decisions on federal law where the state court has rejected federal law 1. Today the SC can hear state law cases as long as they implicate federal law 2. have the authority to review the constitutionality of state laws and the actions of state officials 3. uniformity. as well as the SC. It s inherent to the judicial role to decide the constitutionality of the laws that it applies
Holding: if the opinion mentions both state and federal law. Upheld the constitutionality of section 25 of the Judiciary Act of 1789 which empowered the Supreme Court to review certain decisions of the highest state court which. Long (1983) pp. Support for the holding: a. Rejects VA s separate sovereigns argument b. and state interests might sometimes obstruct or control the regular administration of justice if state courts weren t subject to the federal courts review 6. thus Martin did not have a valid claim to the land c. 30
1. State prejudices. Facts a. Martin inherited land from a Brit ii. the presumption will be that you acted on federal law unless you clearly state why you acted on state law
. 7. then the SC would be powerless to hear any cases. state jealousies. Issues of uniformity and supremacy d. Although the Constitution does not explicitly say that the SC may review state court decisions. Hunter¶s Lessee (pp. 23-27)
1.2. generally speaking. Court argued that the Constitution creates a SC and gives Congress discretion whether to create lower federal courts.Martin v. ruled adversely to some federal right or claim. except for the few fitting within its original jurisdiction. Hunter VA had taken the land before the treaty came into effect. US and England entered into treaty protecting the rights of British citizens who owned land in the US b. granting state authority to have taken the land 3. Hunter addressed this 2. the Judiciary Act of 1789 provided for SC review of state court judgments
Martin v. The judicial power goes to ALL cases that have federal law in them c. Two conflicting claims to certain land within VA i. unless it could review state court rulings
The Adequate and Independent State Grounds Doctrine (pp. But if Congress chose not to establish lower federal courts. VA Court ruled in favor of Hunter. The Court rejected Virginia s position that its courts interpretations were not subject to federal review regarding federal law 5. The one hole in judicial review after Marbury was power over the state judiciary . 29-)
Michigan v. Issue: Does the Supreme Court have appellate review authority over state courts? 4.
Doesn t have to be written down in the Constitution. mootness. Justice Iredel written constitution/textualist a. 32-34
1. will not undertake to review the decision 2. Justice Chase philosopher-king end of the spectrum a. Is a constitutional limit on federal judicial power
Political Question Doctrine
1. appointment. AISG type of issue 2. impeachment b. What s the point of a written Constitution if you can just go off of it?
Limitations on Judicial Review: (pp. 65-66. Article III subject matter jurisdiction d. If the state court decision indicates clearly and expressly that it is alternatively based on bona fide separate. of course. ripeness. 36)
Calder v. we. 35-47)
Courter-Majoritarian Role (pp. Amendment. One of the more controversial applications of AISG
The Operation of Judicial Review (pp. II to cases or controversies 2. Political Question Doctrine 4. then sorry b. grounded in nature and social compact theory 2. If not written in the Constitution. 39
1. External controls on judicial power a. 49. Self-imposed controls jurisdiction is limited by Art. Judicial interpretation of Article III has created crucial doctrines that restrict access to the federal courts a. adequate and independent grounds. Issue: whether the state court could order a recount or whether the election laws passed by the legislature should govern a.Adequate and Independent State Ground Doctrine (AISG)
1. Gore (2000) pp. 11th Amendment: prevents federal court relief against state governments a. 12225)
1. Congress can withhold jurisdiction from the courts (amount in controversy limits) c. the principles of standing. 98-118. For example. The way Florida s court and legislature interpret state election laws is a state issue 3. Bull (1798) pp. If decided on both state and federal then it is eligible for SC review
Bush v. Non-justiciable political questions
. and the political question doctrine 3.
It is very difficult for a court to apply the Baker criteria to identify what cases are political questions a. Instances where the federal court cannot shape effective equitable relief vi. Jubelirer (voting case) the Court dismissed a challenge to partisan gerrymandering and a plurality said that such suits are inherently nonjusticiable political questions
The Proper Role of Federal Courts (pp. But not in the case of Powell iv. Even though their may be a constitutional violation 3. So can really only be understood where it has been invoked: i. We first saw this doctrine in Marbury a. Court: justiciable. Usually the conservative members of the court argue in favor of the political question doctrine a. Not in Bush v. Congress s ability to regulate its internal processes 1.2. Holding: challenges to malapportionment are justiciable 3. Carr (1962) pp. This case only decides a threshold question: is this case justiciable or is it a political question? a. Gore 7. The process for ratifying constitutional amendments v. never could be political questions 5. according to the Court. the other four are more prudential 10
. the latter. Rule of Law: A challenge to malapportionment of state legislatures brought under the Equal Protection Clause is not a political question and is thus justiciable. because brought under the Equal Protection Clause 4. The impeachment process 6. A textually demonstrable commitment of the issue to a coordinate political department b. Usually is non-justiciable a. The republican form of government and the electoral process ii. Lays out six criteria for whether there s a political question a. In Vieth v. Self imposed restriction on the SC 4. Political questions: issues which the federal courts will not address because their subject matter is deemed to be not fit for judicial resolution a. Issue: Does an equal protection challenge to malapportionment of state legislatures qualify as a non-justiciable political question? 2. A lack of judicially discoverable and manageable standards for resolving it i. Chief Justice Marshall contrasted political questions with instances where the individual rights were at stake. Foreign affairs iii. a. 99-105
1. The two above are the main two (thought to be driven by the Constitution. 65)
Case specifics a. the Court has held that congressional judgments pertaining to its internal governance should not be reviewed by the federal judiciary
. I § 5 which says that each house shall be the judge of the qualifications of its own members. have the sole power to determine who is qualified to be a member? a.c. ii. §2 age. expel a member. he was excluded. by a vote of two-thirds of its members. Issue: Does the House. Defendants the House i. though certainly not always as illustrated in Powell. Issue: Is a challenge to restrictions on Congressional membership set by the United States House of Representatives a non-justiciable political question? 5. under Art. The impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion d. Often. 6. However. Stressed the importance of allowing people to select their legislators 8. Issue: Can the SC decide this question or is it a nonjudiciable political question? a. Holding: No. Rule of Law: A challenge to restrictions on congressional membership set by the United States House of Representatives is justiciable and not a political question. It is for the court only to decide whether something is a political question 4. Court s policy argument for this being justiciable a. not expelled b. the Court noted that the issue in Powell was not expulsion. residency) 2. the house can only judge the three qualifications as set forth in Art. But the Court held that the House had discretion only to determine if a member met the qualifications stated in Art I. the SC can decide the question because it is not a political question 3. citizen. An unusual need for unquestioning adherence to a political decision already made f. citizenship and residence 7. The impossibility of a court s undertaking independent resolution without expressing lack of the respect due coordinate branches of government e. 105
1. Argued that the Constitution gives Congress the power to judge the qualifications of its members . 2 (age. I § 2 cl. The Constitution specifically provides that each house of Congress may. Holding: Yes. The potentiality of embarrassment from multifarious pronouncements by various departments on one question
Powell v. McCormack (1969) pp.
Impeachment as only legislative check on the judiciary 7. Article I. 11th Amendment: prevents federal court relief against state governments a. This was a political question that the court could not address a. Challenges to the impeachment process are nonjusticiable 3.Nixon v. or upon a summary determination that an officer of the US was simply a bad guy. say upon a coin-toss. Section 3. Liberal justices argued this was a political question case (usually the Conservatives are the ones arguing in favor of the political question)
The Eleventh Amendment (pp. Non-justiciable. Text based limit on judicial power 4. Issue: Whether the scope of the Senate s constitutional authority to conduct impeachment proceedings is a non-justiciable political question incapable of resolution by the courts. Clause 6 of the Constitution gives sole power to the Senate to try all impeachments. 122-125)
1. Facts a. Is a constitutional limit on federal judicial power 3. The court here declined to view as political questions the issues brought up in this case 2. convicting. a. judicial interference might be appropriate
Bush v. 2. Souter s concurrence a. Court said the Senate has the sole authority to decide impeachment cases Constitution gives complete control over the impeachment process to Congress 6. Federal district judge had been convicted of making false statements to a grand jury b. Recognized the potential need for judicial review b. Basically says you can t bring a diversity case against the state in federal court 5. Sovereign immunity 2. Nixon argued that the whole Senate had to sit in on impeachment hearings. Policy reasons for being non-justiciable a. not just a committee 4. Horizontal textual commitment 5. The 11th Amendment basically says you can t bring a diversity case against the state in federal court 12
. United States (1993) pp. Gore (2000) pp. 106-111
1. If the Senate were to act in a manner seriously threatening the integrity of its results. The framers use of the word sole is significant in that it is a textually-demonstrable commitment of complete discretion to the Senate to conduct impeachment proceedings and to determine the rules by which those proceedings are conducted. Judicial review would be inconsistent with system of checks and balances i.
Sanctioned litigation against the states pursuant to statutes adopted under the 14th Amendment th Amendment: Provides states with sovereign immunity which prohibits 9.
Hans v. The current court disagrees whether the court in Hans got it right see Seminole Tribe of Florida v.6. Florida
. Facts a. federal courts do have the authority to enjoin state officials from violating federal law. 11 federal suits by someone of another state or country for money damages or equitable relief. A citizen of a state could sue his own state in federal court on a federal question. Louisiana
1. A citizen of Louisiana sued the state in federal court. In Hans the Court held that it would be anomalous to allow states to be sued by their own citizens 3. The scope of Congress s section 5 (of 14th Amendment) power is critically important to determining the extent of 11th Amendment immunity 4. The SC has devised three primary mechanisms for circumventing the 11th Amendment and allowing federal courts to ensure state compliance with federal law. Suits against state officers b. Even though the actual amendment only says it s immune from suit by citizens of other states and foreign countries i. alleging that LA had violated the Constitution s contract clause 2. The Court has allowed a. For purposes of this amendment a state official is not a state unless the remedy sought against a state official would require the state to pay compensation for past actions 7. However. Should be read like: No state may be sued in federal court by any person or foreign government unless the state consents to the suit or Congress has clearly and unequivocally abrogated this immunity by exercise of its powers under section 5 of the 14th Amendment. first established in 1875 when Congress gave the federal courts general jurisdiction of federal questions 8. Permitted states to waive their 11th Amendment immunity and consent to suit c. The Court concluded that the 11th Amendment was intended to confer upon the states sovereign immunity from suit in federal court by a citizen of the defendant state even when the claim is premised upon federal law or the Constitution a.
Does the legislation violate the Constitution?
1. Congress may act only if there s express of implied authority to act in the Constitution 3. Evaluating an act of Congress always two questions a. Limits some of the Congressional powers under the commerce clause
1. The police power allows state and local governments to adopt any law that is not prohibited by the Constitution
. Evaluating constitutionalty of a state law a. nor prohibited by it to the States. The whole notion of federalism is that we have two sets of government and the national government is a government of limited. Police power: refers to the state power to legislate to protect the health. and laws for regulating transportation and the internal commerce of a state fall within the state police power and are not within the power granted to Congress Gibbons v. safety. enumerated power and the state governments are ones of general. 127-53)
1. health laws. or to the people. are reserved to the States respectively. such as by infringing separation of powers or interfering w/ individual liberties? 5. does the law violate another Constitutional provision or doctrine. Does Congress have authority under the Constitution to legislate? b. If so. but we re now focusing on the vertical axis 2.PART II: ENFORCING THE CONSTITUTIONAL ALLOCATION AND LIMITATION OF NATIONAL POWER NATIONAL LEGISLATIVE POWERS The Values and Enforcement of Federalism Limits on National Legislative Power (pp. 2. Stats may act unless the Constitution prohibits the action 4. States have inherent power to govern unless doing something that s assigned to the federal government or is prohibited by the Constitution
1. Most of the issues of judicial review are questions of the horizontal axis. State inspection laws. inherent power a. The powers not delegated to the US by the Constitution. morals and general welfare of its citizens 2. Ogden 3.
or in any department or officer thereof ii. Congress shall have the power. Article I. may individual states tax a federally-created bank? 2. §8. The bank refused to pay the tax and the state sued 8. Looks at what power does Congress have and what power do the states have 5. Held that MD could not tax notes issued by the Bank of the US 4. The Court thus rejected the view that the Constitution should be regarded as a compact of the states and that the states retain ultimate sovereignty under the Constitution 10. Broadly construed Congress s powers and narrowly limited the authority of state governments to impede the federal government 9. Marshall looks to the meaning of the Necessary and Proper Clause. (1) Yes. (2) No. Argued it was the people who ratified the Constitution. 3. Maryland (1819) pp. Issue: (1) can Congress charter a bank? (2) if so. I § 8. Only state/local governments have police power (Congress only does in few exceptions like in District of Columbia)
McCulloch v. Necessary and Proper Clause a. The MD law required that any bank not chartered by the state pay either an annual tax on its notes b. and all other powers vested by this Constitution in the government of the US. Justice Marshall recognized this case as an ideal opportunity to articulate a broad vision of federal power. It s a valid means to an end that s empowered to Congress by the Constitution 1.. 18) i. Facts a. and thus the people are sovereign. not the states b. 133-139. can states tax that bank? 6. Holding: a. Ends must be legitimate and within the scope of the Constitution b. and to make such other laws as it deems necessary and proper to carry out this enumerated power. Issue: (1) Does Congress have implied constitutional power to create a bank? (2) If so. Congress has the power under the Constitution to incorporate a bank pursuant to the Necessary and Proper Clause (Art. The State of MD does not have the power to tax an institution created by Congress pursuant to its powers under the Constitution 7. much as he used Marbury to establish the power of judicial review a. to make all law which shall be necessary and proper for carrying into execution the foregoing powers. Rule of Law: The Constitution specifically delegates to Congress the power to tax and spend for the general welfare. 141-144
1. federal laws are supreme and states may not make laws that interfere with the federal government s exercise of its constitutional powers.. concludes by granting Congress the power to make all Laws which shall be necessary and proper for carrying into Execution 15
. cl.a. Additionally.
to carry out its lawful authority 12. 145-153
1. Section 8. Comstock (2010 Supplement. and among the several States. not prohibited by the Constitution. enumerate that power
U. Doctrine of Implied Powers
United States v. or in any Department or Officer thereof i. Once it s determined that something is under the power of Congress then Congress can do whatever it wants to regulate. The court articulated different visions of the 10th Amendment a. The Necessary and Proper Clause grants Congress power over things not specifically enumerated in the Constitution b. Thornton (1995) pp. The Commerce Clause: [The Congress shall have Power] To regulate Commerce with foreign Nations. v. pp. Inc. Clause 3 16
1. includes the power to preserve it. This provision makes clear that Congress may choose any means. 153-72)
1. A state tax on the bank of the US was essentially a state tax on those in other states i. These four justices decision would have done away with McCulloch
The Commerce Power
General Scope (pp. Term Limits. not prohibited by the Constitution. and taxing could destroy it b. On taxing the bank a.the foregoing Powers. Marshall s ultimate conclusion is that Congress is not limited only to those acts specified in the Constitution. Both Comstock and McCulloch are about Congress s power to regulate things not specifically provided by the Constitution a. to carry out its express authority 11. Five justices argued that the 10th Amendment reserved to the states only powers they possessed before the Constitution was created b. This is an essential aspect of limits on the ability of states to put a burden on commerce from other states: It is unfair to allow a state to regulate those who have no representation in the state 13. Congress my choose any means. and with the Indian tribes Article I. The power to create the bank. The framework for government articulated in McCulloch continues to this day 14. and all other Powers vested by this Constitution in the Government of the United States. Four justices contended that the states retained all power not denied them i.S.
5. Restrictive interpretation of among the states iii. even though the threat may come only from intrastate activities i. or production c. Things that don t go from state to state but have an affect on interstate commerce ii. c. The use of the channels of interstate commerce i. manufacturing. Congress s most important power The broad categories of activity that Congress may regulate under its commerce power a. not a single federal law was declared unconstitutional as exceeding the scope of Congress s commerce power upholding Gibbons and broadening the CC s scope 17
. etc. Commerce was not phases such as mining. The Court held that commerce was one stage of business. railroads. Court narrowly defined commerce so as to leave a zone of power to the states. The instrumentalities of interstate commerce. rather than just affect Most SC cases concerning the CC begin their analysis by considering Gibbons The Commerce Clause constitutes the principal domestic power of the federal government. The interpretation of the Commerce Clause has changed over time From the late 1837 until 1937 the Court adopted a much narrower construction of the commerce power and invalidated many federal laws as exceeding the scope of this authority.
6.2. automobiles. Court also morally conservative b. or persons or things in interstate commerce. During this era a major aspect of the Court s approach included the requirement that there be a direct effect on interstate commerce came from interpretation of among the states d. Activities that substantially affect or substantially related to interstate commerce i. 4.
3. Rejecting Gibbons and finding that the 10th Amendment reserves a zone of activities for the states i. Little federal legislation a. trains. The emphasis is on the word affect 1. Use of state sovereignty as a constraint on congressional power From 1937 until 1995.
a. Narrow definition of commerce ii. 3 doctrines all advance dual federalism and all limit the scope of Congress s authority under the CC: i. The court says we must use the words substantial affect. Court controlled by conservative Justices deeply opposed to government economics regulations and in support of laissezfair economics ii. Anything that goes from one state to another is using the channel of interstate commerce b. Instrumentalities: planes.
Here. NY can t interfere with interstate commerce Gibbons going from NY to NJ was interstate commerce 5. 172-81)
Gibbons v. thus the NY granted monopoly was preempted by federal law
. and in part a reaction to the intense criticism of the earlier decisions that had sharply limited the scope of federal powers b. Holding: a. Facts a. For the first century of our history. in response to rapid industrial development and an increasingly interdependent national economy. The Commerce Clause emerged as the Framers' response to the central problem giving rise to the Constitution itself: the absence of any federal commerce power under the Articles of Confederation. Rule of Law: If a state and Congress both pass conflicting laws regulating interstate commerce.
Pre-1937 Commerce Clause (pp. Issue: May a state regulate interstate commerce within its borders when Congress also chooses to regulate interstate commerce in the same area? 3. the primary use of the Clause was to preclude the kind of discriminatory state legislation that had once been permissible. Wickard v. US v. Jones & Laughlin Steel Corp (1937) ii. The Court s expansive interpretation of congressional authority was in part based on a perceived need for a strong national government to deal with 20th century problems. the federal law governs pursuant to Congress s constitutional grant of power to regulate interstate commerce. Darby (1941) iii.a. Gibbons argues that he has a federal license and that ought to rule i. NLRB v. Congress ushered in a new era of federal regulation under the commerce power. Three decisions overruled the pre-1937 decisions and expansively defined the scope of Congress s commerce power i. beginning with the enactment of the Interstate Commerce Act in 1887 and the Sherman Antitrust Act in 1890. 172-174
1. Ogden (1824) pp. the SC adopted an expansive view of the scope of the commerce clause 2. But in the last decade the Court has sharply changed course and in several rulings has limited the scope of Congress s power under the CC and under §5 of the 14th Amendment 8. Then. Filburn (1942) 7. FDR won a landslide reelection victory in 1936 and put pressure on the Court d. Federal law authorizes Gibbons to operate a ferry in NY. Economic crisis of the depression made laissez-faire economics seem untenable c. Ogden (NY) sues Gibbons (NJ) because he had the exclusive right granted by NY state to operate ferry boats in the NY waters b. 4.
The court did not choose the broadest possible definition of among i. In Standard Oil Co. The word among means intermingled with. Manufacturing is not commerce 4. the Court continued to focus on the directness of the connection between the activity regulated by Congress and interstate commerce 5. it did include commerce which affected another state even though it did not involved crossing a state line i.C. Among in dictionaries frequently is in the midst of which would be regulation of all commerce within the US. Implicitly. Commerce extended beyond navigation to include commercial intercourse b. Court says commerce includes more than buying and selling navigation and transportation are essential to commerce and so commerce also involves transport as well as buying and selling 7. Court held that the Sherman Antitrust Act could not be used to stop a monopoly in the sugar refining industry because the Constitution did not allow Congress to regulate manufacturing b. Facts a. the Court disavowed E. which is carried on between man and man in a State. However. Among the states did not include that commerce. The New York monopoly was an impermissible restriction on interstate commerce 6. Issue: May Congress use its general powers under the Commerce Clause to regulate a purely local activity? 2. even intrastate the Court chose among which meant Congress could regulate intrastate commerce if it had an impact on interstate activity 8. Of course. Court looks at the word among among the several States a. Knight Co (1895) pp. United States (1911).b. US government tried to use the Sherman Act to block the Sugar Refinery from acquiring four competing refineries 19
. Knight s reliance on the distinction between manufacturing and commerce. Regulate involved the power to prescribe the rule by which commerce could be governed c. A thing which is among others is intermingled with them c. 174
1. and which does not extend to or effect other States. declaring that approach unsound. E. which is completely internal. Chief Justice Marshall articulated a broad vision of the Commerce Clause a. Determines among doesn t mean stop at the border b. of New Jersey v. or between different parts of the same State. much of this discussion was dicta because the facts of the case clearly involve interstate movement
United States v. Rule of Law: Congress may not use its general powers under the Commerce Clause to regulate a purely local activity. 3.C.
Majority was saying that production is not commerce because production is a purely local activity i. Issue: May Congress regulate the production of coal under its Commerce Clause powers? 2. SC s reasoning a. The Coal Conservation Act authorized coal producers and coal miners to establish a code setting maximum hours and minimum wages for coal miners a. While it may ultimately lead to commerce what s being regulated here is production and that s not commerce amongst the several states c.Carter v. striking down the act 5. but is really a part of the stream 2. The Protective Principle: the essence of the principle is that intrastate commerce can be regulated when necessary to protect instrumentalities of interstate commerce
. than all the points along the way are interstate and can be regulated 3. production is not commerce and the effect of production on commerce is at most indirect and not direct and therefore Congress has no power to regulate it 7. The effect of the labor provisions of the act primarily falls upon production and not upon commerce. Carter Coal Co. Each point along the way may seem like a local matter. 177
1. How you could argue on the government s behalf a. Wages and employment relate to production and not of trade trade is commerce b. Coal is a national commodity b. Invokes McCulloch whether the end sought to be attained by an act of Congress is legitimate is wholly a matter of constitutional power and not at all of legislative direction 6. As an abstract matter. 176
1. Focus on the word direct d. This would have an affect on interstate commerce
The Stream of Commerce pp. The court looks at it abstractly a. Rule of Law: Congress may not regulate a purely local act under its Commerce Clause powers. A tax was imposed on all producers who failed to abide by the code b. Carter was a shareholder s suit to restrain the company from complying with the code because it was allegedly beyond Congress s power to authorize 4. (1936) pp. 174
1. Since a stream is interstate. The SC agreed. This theory was used to distinguish between direct and indirect effects on interstate commerce (see Schecter Poultry)
Shreveport Rates Case (1914) pp. 3.
the power is complete in and of itself a. Rule of Law: Congress may not use its Commerce Clause power to regulate child labor in the states as this is a purely local matter. it had little doubt that it was authorized by the CC to do so. 3. Congress. This plenary power is distinct from the aggregate-impact theories later espoused in the Shreveport line of cases 8. as here. 179
1. The Court upheld an Interstate Commerce Commission order requiring the affected railroads to charge the same rate for interstate shipments as for intrastate shipments
Champion v. Congress under the Commerce Clause 6. Issue: May Congress regulate the interstate commerce of goods produced in factories with child labor? 2. Champion argued that pretextual use of the commerce power in order to achieve objectives that are moral or social a. 4. the SC recognized that Congress power to regulate interstate traffic is plenary. 177
1. within Constitutional limits. the labor of their production is over. 7. Dagenhart (Child Labor Case) (1918) pp. and before transportation begins. Unconstitutional because it controlled production b. When Congress enacted the Child Labor Act of 1916. and the mere fact that they were intended for interstate commerce transportation does not make their production subject to federal control under the commerce power
. This wide discretion allowed Congress to regulate traffic as it sees fit. That is. When offered for shipment. but in Hammer the court voided the Act. The goods shipped are of themselves harmless. CC does not give Congress authority to control the States in their exercises of the police power over local trade and manufacture c.2. Here. even to the extent of prohibiting goods. Rule of Law: The trafficking of lottery tickets across state lines constitutes interstate commerce that may be prohibited entirely by Congress under the Commerce Clause of the Constitution. prohibited the interstate sales of lottery tickets 5. Issue: Does the trafficking of lottery tickets across state lines constitute interstate commerce that Congress may prohibit under the Commerce Clause? 2. 3. Court: a. Ames (The Lottery Case) (1903) pp. Example of this era s conservative Court s support of laws directed at what was perceived as sin 4. The SC held that trafficking lottery tickets constituted interstate commerce that could be regulated by the U. through the Federal Lottery Act of 1895.S. Important message of this case is that it doesn t have to be commercial to constitute interstate commerce
Hammer v. banning the interstate shipment of goods produced by child laborers.
In both Congress was trying to stop intrastate activities: use of child labor and gambling in lotteries. Jones & Laughlin. Hammer was overruled in 1941 in the case of US v. Darby.S.5. had a substantial effect on commerce not just one person . looked at cumulatively across country. NLRB v. The Hammer and Knight cases are major roadblocks to the New Deal legislation that comes later 4. 10th Amendment no longer a limit on congressional power instead a federal law would be upheld so long as it was within the scope of Congress power. Yet. and Wickard v. 3. Contrasted with the Child Labor Case a. Declared a federal law unconstitutional based on an insufficient effect on interstate commerce 5.Wickard 2. 181-91)
1. U. As the New Deal progressed the SC confronted some of the acts of Congress. Provides language on national/local direct/indirect a. 181
1. The SC used substantive due process rationales to strike down many key provisions of the New Deal. Both federal laws prohibited the shipment of a specified item goods made by child labor or lottery tickets in interstate commerce. manufacturing. The New Deal programs in the 1930s increased the controversy regarding the use of substantive due process to invalidate economic regulation a. If CC covered all enterprises and transactions with an indirect effect upon interstate commerce then the Federal government would have complete control no control of state s for domestic affairs 4.
Schechter Poultry Corp v. New standard: Congress could regulate any activity if there was a substantial effect on interstate commerce a. Or if the activity. US v. Darby Lumber Co. and the CC was interpreted so broadly that seemingly any law would meet this requirement 22
. Rule of Law: Congress may not regulate activities occurring in a state that have only an indirect effect on interstate commerce. 6. in the Child Labor case the Court declared the federal law unconstitutional. Issue: May Congress pass regulations relating to in-state poultry trade activities that only indirectly affect interstate commerce? 2. Court permitted ways that Congress could use the Commerce Clause to improve the economy for New Deal purposes 5. No longer distinction between direct and indirect effects on interstate commerce Congress can regulate any activity with cumulative effect c. whereas in the Lottery Case the Court upheld the federal law 6. Filburn a. (1935) pp. This case is in contrast to the Shreveport Rate Cases
New Deal Expansions (pp. Ended diference between commerce and other stages of business (mining. believing they went beyond some of the powers of the Commerce Clause 3. production) b.
Jones & Laughlin Steel Corp. Congress cannot be denied the power to exercise that control. 3. 5. (1937) pp. 182-184
1. Significant change in application of doctrine. Rule of Law: Congress may regulate local activity if that activity exerts a substantial economic effect on interstate commerce. which violated the Agricultural Adjustment Act of 1938 even though it was a minor amount and not grown for sale but for his cattle. under the Commerce Clause. The purpose of the act was the stabilize the price of wheat in the national market by controlling the amount of wheat produced b. if they have such a close and substantial relation to interstate commerce that their control is essential or appropriate to protect that commerce from burdens and obstructions. claimed federal law could not constitutionally be applied because the his wheat was for home consumption and not part of interstate commerce c. no so much of doctrine 8. Aggregation or cumulative effect theory 4. Issue: May Congress regulate labor relations under its Commerce Clause power to regulate interstate commerce? 2. Court strikes down precedent that production is not interstate commerce 6. the Court suggested that it would proceed on a case by case basis to determine if the activity Congress was regulating had a close and substantial relationship to commerce a. indirect or isn t even commerce if it exerts a substantial economic effect on interstate commerce that is OK
. Court says it doesn t matter if it is local.NLRB v. Wickard Secretary of Agriculture 5. The dissent here was the majority in the Carter case
Wickard v. Court: Although activities may be intrastate in character when separately considered. 185-186
1. The Court adopted Justice Cardozo s approach from his dissent in Carter Coal 4. Farmer grew wheat in excess. 3. Rule of Law: Congress may regulate labor relations under its Commerce Clause power because labor relations have such a close and substantial relationship to interstate commerce that their control is essential to protect that commerce from burdens and obstructions. In place of the bright line tests of which E. farmer. interstate or otherwise? 2. Fillburn. The Court upheld the National Labor Relations Act of 1935 in a 5-4 decision.C. the production of wheat designed wholly for individual consumption and not for sale in commerce. The Court explained how steel business was part of the stream of commerce and labor relations within it had a direct effect on commerce 7. Facts a. Knight had sought to apply. Filburn (1943) pp. Issue: May Congress regulate.
Thus. Cumulative effect of all the homegrown/home-consumed Filburns would account for over 20% of wheat production c. Court s rationale a. then the govt can regulate that individual even for what s produced on the farm and doesn t leave the farm
Perez v. which is a pastime of organized crime a. That Filburn s own contribution to the demand for wheat may be trivial by itself is not enough to remove him from the scope of federal regulation where. nor can consideration of its economic effects be foreclosed by calling them indirect 6. Look at every aspect of local commerce and aggregate it aggregation theory i. And. Darby (1941) pp. Organized crime is interstate b. then all of their activity in the aggregate will have an effect on interstate commerce 3. if part of national regulatory scheme. If you don t look at the one person. taken together with that of many others similarly situated. loan sharking is interstate c. United States (1971) pp. his contribution. Example of Congress using its broad CC power to enact federal criminal laws
United States v. House that Jack Built argument 4.a. The aggregation theory i. Court concedes that it was grown for his own consumption and didn t have a direct effect on interstate commerce. etc. and govt can show that activities of all similarly situated. 188-189
1.. but b. Issue: May Congress prohibit the shipment of goods in interstate commerce made by workers in unfair employment conditions and the employment of such workers in manufacturing goods for interstate commerce? 2. Rule of Law: Congress may regulate the labor standards involved in the manufacture of goods for interstate commerce and may exclude from
. Even where particular actor or part of industry doesn t have direct effect on interstate commerce. Perez was locally involved in loan sharking. as here. you look at all the people in his class/trade. Court used aggregate theory 2. anyone that loan sharks is interstate d. questions of federal power cannot be decided simply by finding the activity in question to be production. Once an economic measure of the reach of the power granted to Congress by the CC is accepted. is far from trivial ii. Implies that Congress can have power over anything that when aggregated/cumulative will produce a harmful result on interstate commerce 7.
Doesn t matter if it s a purely local motel 2. Discrimination by restaurants cumulatively had an impact on interstate commerce Congress found that restaurants in areas that discriminated sold less goods Wickard
What¶s the Law Today? (pp. Court upheld the Act rejecting the view that the 10th Amendment limits Congress s powers Court explained that Congress may control production by regulating shipments in interstate commerce Court spoke repeatedly of plenary power conferred on Congress by the CC Court said that basically if it is prohibiting the interstate shipment. stretching back to the Lottery Case. Why not 14th Amendment? a. many federal laws. v. The Act in part.3. 5. 190
1. The modern Commerce Clause jurisprudence followed from Darby and Wickard and featured extensive deference to Congress
. b. 7. Court said it didn t matter that Congress s motive was in part moral. gender or religion. The act prohibited the shipment in interstate commerce of goods made by employees who were paid less than the prescribed minimum wage. and forbids discrimination by places of public accommodation 2. 46% of the meat it purchased came from out of state b.
interstate commerce any goods produced under substandard labor conditions.
1. Under the §5 of the 14th Amendment Congress could only regulate government conduct and not private behavior 3. had been adopted under the commerce power to remedy moral wrongs
Katzenbach v.S. Court upheld application of the 1964 Act to a small family-owned restaurant 2. prohibits private employment discrimination based on race. 190
1. 6. McClung (1964) pp. Discrimination by hotels and motels impedes interstate travel a. 1964 Civil Rights Act Congress enacted this legislation under its commerce clause power a. Essentially the Hammer case except its Fair Labor Act instead of child labor overruling Hammer a. that s a per se violation of interstate commerce Unanimous decision
Civil Rights Laws & the Commerce Power
1. Example of the CC being used for social and moral purposes
Heat of Atlanta Motel Inc. (1964) pp. U. Interstate connections of the restaurant a.
interstate commerce Congress s power to regulate railroads c. Court said it was unclear from case law whether it must affect or substantially affect interstate commerce ii. The channels of interstate commerce Heart of Atlanta Motel b. regulate three broad categories of activities: a. The majority is saying there s not a sensible or reasonable connection between the Commerce Clause and this law this law is in excess of the Commerce Clause a. Court here says simple possession of anything does not come within category #3 of the Commerce Clause the mere possession is not a commercial or economic activity 5. Holding: unconstitutional because it was not substantially related to interstate commerce a. The possession of a gun in a local school zone is in no sense an economic activity that might. Lopez. The instrumentalities of. 154-167
1. or persons or things in. Wickard and Raich upheld federal statutes 2. Case specifics a. Rule of Law: Congress may. Lopez (1995) pp. Economic and commercial ii. pass a law that prohibits the possession of a gun near a school? 3. pursuant to its Commerce Clause powers. through repetition elsewhere. 157 is a synthesis of the Court s prior rules and holdings in relation to the commerce clause 2.Wickard. SC declared unconstitutional a federal law prohibiting a person from having a firearm within 1. under its Commerce Clause powers. Lopez and Morrison narrowed the CC struck down federal statutes a. Rule that emerges from Morrison and Lopez on the nature of the Commerce Clause: i. Up to pg. have a substantial effect on interstate commerce 6. Raich
1. Morrison and Gonzales v. Activities that substantially affect or substantially relate to interstate commerce i. Lopez was the first time in nearly 60 years where the Court struck down a federal law as violating the Commerce Clause
. Congress exceeded its power in this specific regulation 8.000 feet of a school on the grounds that it exceeded the limits of the commerce power 7. Lopez and the cases which followed it have opened a door to constitutional challenges that appeared to have been closed almost 60 years ago
United States v. Rehnquist (majority) chose substantially affect because the more restrictive interpretation of congressional power was preferable 4. Aggregation can t aggregate where it s not economic 3. Issue: May Congress.
Congress s argument in support of the law: a. would be satisfied by category #1 ii. Thomas ii. Congress could hold hearings and make findings that a gun in school is bad for education 1. Court s response to Congress s argument: a. Kennedy. Dissent: Stevens. and then would not contribute to economic activity 10. Breyer
. To give Congress this power would require us to conclude that the Constitution s enumeration of powers does not presuppose something not enumerated. Majority: Rehnquist. Congress could say any state that doesn t make it a crime to have guns in school would lose education appropriations iii. Thomas concurrence: a. Scalia. Issue: May Congress regulate the discriminatory conduct of private actors under §5 of the Fourteenth Amendment 2. As long as Congress has a rational basis for passing a law than the Court should not interfere b. Court overrule 60 years of precedent c. Could put in language that relates to interstate commerce i. Make it a crime to possess or sell a gun on or near a school iv. 159 11. The Court was split the same as in Lopez i. Souter.9. Ginsburg. Rule of Law: Under §5 of the Fourteenth Amendment.S. Wants to take out the substantial affect notion 12. v. O Connor. Yes. not private actors. How could this statute be fixed to be constitutional? How could Congress reenact this statute? a. and that there never will be a distinction between what is truly national and what is truly local pg. If guns allowed in school then kids might not attend school. If the house that Jack built argument works then we re giving a police power to the national government and saying anything affects everything b. Without boundaries limiting the Commerce Clause to truly commercial activity. The court said that Congress didn t even make the findings to back up its rationale for this statute
U. then would not graduate. Morrison (2000)
1. Only other case (Lopez) in modern times where court says something is outside the commerce clause and that Congress has overstepped its authority a. Dissent a. 3. Would this satisfy the majority? 1. Congress may only regulate the discriminatory conduct of state officials. we give the federal government a blank check to regulate anything under the guise of the Commerce Clause b. This was judicial activism 13.
the Court held that the findings were too attenuated from commerce to support the legislation 8. Rejected Congress s findings in support of the law i. Congress s argument a. No aggregation except where its been economic or commercial b. 169 c.4. Holding: 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 Wickard
. Congress was regulating a non-economic activity that has traditionally been dealt with by state laws i. 192-200
1. a. Absence of commercial or economic relation ii. Gender-motivated violence costs the US economy billions a year and is a substantial constraint on freedom of travel by women throughout the country 7. Dissent here was basically the same as in Lopez a. Raich (2005) pp. no such exemption exists to the federal law 3. The fact of such a substantial effect is not an issue for the courts. Violence against women has a substantial affect b. Rule of Law: Congress may regulate the use and production of home-grown marijuana as this activity. which authorized victims of gendermotivated violence to sue their assailants 6. looked at cumulatively. Said if upheld then Congress could regulate all violent crimes ii. Where assailant has traveled across the state line to commit the violence b. but for Congress. Court s reasoning a. Could say violence in the work place
Gonzales v. whose institutional capacity for gathering evidence and taking testimony far exceeds the judiciary s 9. Congress may not use the Commerce Clause to completely obliterate the distinction between national and local authority pg. it has a substantial effect on interstate commerce 5. Although Congress had made extensive findings that violence against women impacted the economy. Facts a. taken in the aggregate. Issue: May Congress regulate the use and production of homegrown marijuana? 2. Morrison goes significantly further than Lopez in limiting the scope of Congress s CC power by holding that Congress cannot regulate a noneconomic activity by finding that. Although the state has created an exemption to its state marijuana laws for medical uses. Violence Against Women Act. How could this be fixed to be Constitutional? a. could rationally be seen as having a substantial economic effect on interstate commerce.
How would you describe the substantial affects notion after reading this case? a. because of the aggregate theory 8. and welfare of their citizens c. CA law allows cultivation and use of medical marijuana c. Legally homegrown marijuana can t be distinguished from illegally harvested marijuana in the criminal market place c. How court distinguishes present case from Lopez a. in that it is not produced for sale. In light of Lopez and Morrison a. Ok to regulate. The states core police powers have always included authority to define criminal law and to protect the health. Nor did the Court revisit its holding in Morrison that in regulating noneconomic activities. It goes in the opposite direction of Lopez and Morrison and upholds Congress law 5.4. Majority s holding is irreconcilable with the court s decisions in Lopez and Morrison 11. The majority implied a market is a market. Relies on Wickard i. Facts a. whether illegal or not ii. The court conceded that growing marijuana for personal use is not a commercial activity necessarily b. Larger regulatory scheme here than in Lopez 10. if it concludes that failure to regulate that class of activity would undercut the regulation of the interstate market in that commodity pg. 193 1. Ps were CA residents using the marijuana for medicinal purposes th Circuit threw the federal statute out by looking to Lopez and Morrison 6. Establishes that Congress can regulate purely intrastate activity that is not itself commercial. States as laboratories b. It seems now like rational basis is the buzz word
. Dissent a. Says marijuana is an economic good but Lopez gun is not b. safety. Controlled Substances Act (CSA) prohibits manufacture and use of marijuana b. Court s reasoning a. Congress didn t change the test for the CC that it followed since Lopez b. 9 ruling CSA was an invalid use of Congress commerce clause powers 7. substantial effect cannot be based on cumulative impact 9. even if not a commercial activity.
Printz case and the two damages cases basically provide immunity from executive commandeering. Printz (97). 204-26)
1. San Antonio Metropolitan Transit (1985) pp. so long as the regulation is (1) a clear and unequivocal statement of congressional intent to regulate a state s sovereign functions and (2) not the product of a political process as dramatically defective as South Carolina v. The majority rejected this way of carving out state substantive immunity 4. The court saw this as Congress telling the states how to legislate a. US (92). Morrison (00) i. Viewed it as an imposition on the state s legislative authority b. 3. judicial commandeering and legislative commandeering so it seems like the SC of that era was anxious to create an area of immunity that Congress could not enter when exercising its commerce clause (???)
Garcia v. Rule of Law: Congress s application of the Fair Labor Standards Act to the employment actions of a state municipal transit authority is a constitutional exercise of its Commerce Clause power. Represents six decisions in seven years where the Court said Congress overstepped 2. Congress gave three incentives/requirements for states to follow regulations on radioactive waste 4. Alden (99). The Garcia view of procedural immunity is that Congress can use the commerce power to regulate the states in whatever manner it please. Usery 5. 210
New York v. 205-209
1. Limits imposed by principles of state autonomy: a. Rule of Law: Congress may not compel states to enact or administer a federal regulatory program. Substantive Immunity: areas the federal government can t poach and the state can regulate on their own 3. Overruled National League of Cities v. Seminole Tribe (96). Lopez (95). Procedural Immunity: are there ways that the fed govt can t go about it are there process ways that the fed govt can t go about it? 4.External Limits on the Commerce Power imposed by State Autonomy (pp. 211-218
1. even though required by Congress. and the citizens of that state would then blame the state legislature for that law if they didn t like it
. By requiring to pass a law which would then be viewed as a state law. Issue: May Congress apply the Fair Labor Standards Act to govern the employment actions of a state municipal transit authority? 2. NY v. Facts a. NY Case. United States (1992) pp. Baker suggests pg. Issue: May Congress compel states to enact or administer a federal regulatory program? 2. 3.
Federal govt can do it themselves b. 10th Amendment legislative immunity (?) 6.5. Imposts and Excises. The Court struck down a provision of the Brady Bill which required local law enforcement officials to investigate prospective handgun purchasers. 10th Amendment executive immunity
Other National Powers: Taxing. Issue: May Congress compel state officials to participate in the administration of federal programs? 3. 6. War-related. but they can t say the states must enforce it 9. Duties. As such Congress has broad power to tax
. Imposts. Spending. Fed govt can bribe states to do it c. Since it is the President whose job it is to enforce federal law 1. then you can tax that thing 2. to pay the Debts and provide for the common Defence and general Welfare of the United States. Rule of Law: Congress may not compel state officials to participate in the administration of federal programs. Is a vertical separation of power. But fed govt can t make states do it it hides political accountability and encroaches upon states sovereignty 7. but all Duties. in Printz applies same principal in New York a. Congress has taken that power from the President and placed it on local officials 8. note here? a. Makes clear that if Congress wants to do it themselves they can and can enforce it. 4. Broad power of taxation for national purposes a. Foreign Affairs and Civil Rights (pp. Ct. General rule: if you can regulate something. §8 of the Constitution. Congress shall have Power to lay and collect Taxes. What other separation of power issues did the ct. 218-225
1. Congress is given power to tax to provide for the common defense and the general welfare. Federal government can t make states enforce particular law because it hides political accountability and encroaches upon state sovereignty 2. United States (1997) pp. but also is a horizontal detraction of power by Congress from the President i. states that. Speaks to the principle that Congress is limited in its ability to require state executive officials to administer a federal regulatory program 5. 22651)
Article I. and Excises shall be uniform throughout the United States. Treaties. Congress cannot require the state to legislate in a particular way
not the receiving state 2.g. Kahriger (1953) pp. The Court upheld a tax on bookies even though the statute s primary purpose was to regulate the activity. Congress cannot tax in a way which would otherwise violate some constitutional prohibition (e. This is pretext. Congress was trying to tax the bookies out of existence since they didn t have a federal law to prosecute the books and local law enforcement wasn t prosecuting
1. Prior to this case the doctrine was that Congress had great liberty to tax what it wanted. Congress reacted to Hammer v. The court concluded that such legislation was a pretext for regulating productive activity and argued that the only harm occurred in the producing state. Drexel Furniture Co. 3. Court shuts its eye to the true nature of this tax which is an attempt to regulate conduct in spite of lack of constitutional grant of powers of congress. not a separate source of Congressional power 3. by enacting the Child Labor Tax Law. the case that struck down regulation of child labor using the commerce power. which imposed on virtually ever employer of a child under 14 years of age (and on certain employers of children aged 14 to 16) a federal excise tax of 10 percent of the annual net profits of the employer. More recently that restriction has been abandoned 2. thus it s presumptively valid 2. Facts a. cases held that Congress could not spend for ends it could not directly achieve. (Child Labor Tax Case) (1922) pp. Drexel Furniture paid the tax. Dissent: a. even if it looked like a regulation
United States v. 227229
1. The General Welfare Clause is a limitation on the power to tax and spend. The Court struck down a federal law regulating movement of goods in interstate commerce made in factories which used child labor a. then successfully sued for a refund in the federal district court. Prior to 1937. The Court has held that Congress has broad power to spend funds to advance the general welfare so long as it does not violate another constitutional provision
. a tax on newspapers alone)
Bailey v. b.3.trying to punish someone because Congress doesn t have the nerve to punish them themselves c. 229-230
1. Dagenhart. The question really is: can Congress use its tax power to regulate behavior that is beyond its powers under the commerce clause 3. The tax does raise revenue. not to generate revenue a.
Congress had to state conditions clearly c. Congress is not limited to spending only to achieve the specific powers granted in Article I of the Constitution
United States v. Issue: Is the tax imposed on farmers by the Agricultural Adjustment Act a constitutional exercise of Congress s taxing and spending power? 2. 237-241
1. Rule of Law: The receipt of federal funds may be conditional if the exercise of the spending power is for the general welfare. It is an established principle that the attainment of a prohibited end may not be accomplished under the pretext of the exertion of powers which are granted pg. Facts a. 3. Butler (1936) pp. 234 With the exception of Butler. This is the major one at play in this case
. 236 both seemed in jeopardy because of the Butler case but the court still upheld them)
South Dakota v. The Court upheld a federal statute that reduced the amount of federal highway funds distributed to states that allowed minors to purchase alcohol (Congress used the funds as incentive for states to raise drinking age). We see the pretextual rule from McCulloch again here a. Congress has broad power to tax and spend for the general welfare as long as it does not violate other constitutional provisions 3. which sought to stabilize production in agriculture by offering subsidies to farmers to limit their crops. The Court held that Congress could attach conditions to spending grants subject to the following requirements: a. Conditions had to relate to the federal interest in the national program or project i. 232-235
1. the conditions are unambiguous. the conditions are related to a federal interest in a particular national project or program. Issue: May Congress withhold federal funds to states that do not comply with federally-imposed conditions? 2. Concerned the constitutionality of the Agricultural Adjustment Act of 1933. By restricting supply Congress sought to ensure a fair price and thus to encourage agricultural production 4. the court was pretty lax on Congress using the spending power to achieve what needed to be achieved (see two cases on pg. and the conditions do not violate any other constitutional provisions such as the Tenth Amendment.a. Dole (1987) pp. a. Rule of Law: Congress may not use its taxing and spending powers to obtain an unconstitutional result. The expenditures had to be for the general welfare b. such as invading the reserved rights of the states under the Tenth Amendment. Example of Congress doing indirectly through the spending power what they can t do directly through the commerce power 5.
1. Not all teens are drunk drivers and not all drunk drivers are teens
1. Case was about the power to regulate in aid of war-making 2. and these powers weren t really questioned
Thomas More v. Treaties a. Foreign Affairs and Civil Rights
1. Can be made by the President if 2/3 of the Senators present concur b.d. Missouri think the treaty violates the 10th Amendment b. Obama (online) ± upheld healthcare law
1. Miller Co. Facts a. Objects because it views it as local
Woods v. and fining you if you don t. the one adopted last in time controls c. is not a proper exercise of the commerce clause 2. If there is a conflict between a treaty and a federal statute. (1948) pp. Dissent a. Holland (1920) pp. Not sufficient relatedness between the highway program and the drinking age b. Reasoning
. Treaty powers and foreign affairs powers. Suggested that the President and Senate could achieve ends through treaty. It seems unlikely the Court would adhere to this result today 2. It is overinclusive and underinclusive i. which were beyond the constitutional power of Congress. The Court rejected the claim that state sovereignty and the 10th Amendment limit the scope of the treaty power 3. The war power allowed a ton of regulations of local matters to help mobilize. The condition cannot become compulsion or coercion 4. The Court upheld the constitutionality of a treaty between the US and England protecting migratory birds 4. War-related. Executive Agreements a. Cloyd W. Congressional approval is not required for executive agreements
Missouri v. Plaintiffs here believe that making you purchase insurance. Treaties cannot violate the Constitution 3. trumps and replaces competing local rules and regulations 2. Expenditures could not violate any independent constitutional requirement e.
a. Limited by the Constitution s protections of individual rights 2. The Privileges and Immunities Clause (PIC)
The Dormant Commerce Clause (DCC)
1. state and local laws can be challenged under two principles: i. In Wickard and Gonzales it was voluntary activity. or grant any Title of Nobility 3. Where Congress has not acted a. the Constitution explicitly identifies a few instances where states may not act. Under the CC Congress can always preempt state or local regulation of commerce. make any Thing but gold and silver Coin a Tender in Payment of Debts. whereas this is purely commercial
Commonwealth of Virginia v. The crucial issue with regard to the DCC is whether the judiciary. Also. Even though there is no preemption. Those were regulating non-commercial activities. shows that Congress can take account of some local activity. Kathleen Sebelius (online) ± healthcare law is unconstitutional
1. Court cites to Wickard and Gonzales. §10: No State shall enter into any Treaty. or Confederation. grant Letters of Marque and Reprisal. Therefore. even if not economic. DCC: is the principle that state and local laws are unconstitutional if they place an undue burden on interstate commerce a. Distinguished from Lopez and Morrison a. emit Bills of Credit. Alliance. coin Money. Congress can invalidate any state or local law that it deems to place an undue burden on interstate commerce. if in the aggregate will have some substantial effect on interstate commerce c. Article I. Even in situations where Congress has not acted and its commerce power lies dormant 2. whereas here it was involuntary placement in the stream of commerce
FEDERAL LIMITS ON STATE REGULATION OF INTERSTATE COMMERCE
Limits on State and Local Governments 1. Court s reasoning a. in the absence of 35
. The Dormant Commerce Clause (DCC) ii. The SC has consistently rejected claims that individuals who choose not to engage in commerce thereby place themselves beyond the reach of the Commerce Clause 3. The economic decisions that the Act regulates as to how to pay for health care services have direct and substantial impact on the interstate health care market b.
The DCC reflects an inference that as long as Congress is silent it will only allow states to regulate consistent with those two tests.
7. 15 OF THE SUPPLEMENT LOOKS LIKE AN EXAM QUESTION ON THE DORMANT COMMERCE CLAUSE a.
9. the burden falls on the state to obtain explicit congressional consent to regulate. but if it rules that a regulation is valid. The DCC responds in part to concern that state legislatures will favor their instate constituents over out-of-staters The loser of a dormant commerce clause case has recourse to Congress a.
6. Supporters of the DCC say this would be too much work for Congress to do The DCC does not apply when Congress authorizes state action which would otherwise be invalid under the strict scrutiny or Pike balancing tests. It simply refers to a body of constitutional jurisprudence which sets parameters for state regulation when Congress has not regulated an area within the Commerce power Justifications for the DCC: a. If the court decides a state regulation violates the DCC. This is an exam question masquerading as a case 36
. Historical argument: framers intended to prevent state laws that interfered with interstate commerce b. Congressional action may not be easy. Political justification: states and their citizens should not be harmed by laws in other states where they lack political representation i. 8. In McCulloch SC invalidated MD s tax on the US Bank because it was a tax that would ultimately be borne by those in other states without representation in MD Arguments against the DCC: a. the burden falls on the regulated entity to obtain congressional legislation that will preempt the state regulation PG. It is not in the Constitution like the PIC b. so Congress can invalidate state laws that unduly burden interstate commerce i.
4. Constitution gives Congress power to regulate commerce. But Congress may rebut that inference by authorizing the states to regulate in a manner that would otherwise be forbidden. The CC is primarily a grant of power to Congress to regulate commerce. should invalidate state and local laws because they place an undue burden on interstate commerce It is not in the Constitution a.3. Thus.
5. whenever the Court decides any dormant commerce clause case it is essentially deciding who the state or the regulated person will bear the burden of seeking congressional alteration of the Court s decision i.
Congressional action. Economic justification: the economy is better off if state and local laws impeding interstate commerce are invalidated c. so the Court s decision as to which party bears the burden is important b.
There is no clear distinction between what is national. states could regulate without restraint within areas covered by the Commerce power. in which event states laws are invalidated under the DCC. Upheld a PA statute requiring vessels to use a local pilot. Good example of court applying various doctrines we ve looked at
Development of the Doctrine (pp. It allows state regulations. requiring diverse regulation
Modern DCC Doctrine
1. 2. Facial discrimination here 6. Regulating pilots was a local matter because of differences among ports and also because a federal law adopted in 1789 expressly allowed states to regulate piloting 4. Cooley held that states could not regulate matters needing a uniform national approach but could regulate local matters a. and subject matter that is local. 256-258
1. Pg. It is an indirect effect. 258-259 direct and indirect 5. If a state regulation openly discriminates against interstate commerce. The regulation is void only if the challenger can prove that the burden imposed on interstate commerce that outweighs the benefits of the law 2. Problems with Cooley test a. no matter how protectionist or how much it interferes with interstate commerce. the regulation is presumed to be invalid i. demanding local regulation. so long as the subject matter is deemed local b. in which event state laws are allowed 3.b. and what is local. If a state regulation is nondiscriminatory and has only incidental effects on interstate commerce. Whether the benefits of the state law outweigh its burdens on interstate commerce
. it is presumed valid i. says the court. b. Board of Wardens (1851) pp. Court s reasoning a. Cooley took an intermediate course between those who argued that the Commerce Clause precluded any state action within its bounds and those who argued that absent congressional action. The Cooley test: distinction between subject matter that is national. The regulation is valid only if the state can prove that it furthers a legitimate state interest that cannot be achieved by any less discriminatory means b. 253-60)
Cooley v. even though it s a burden on out-ofstate pilots a. Modern DCC doctrine proceeds along two tracks: a.
They are asking. A barrier at the board to interstate garbage is an improper means under the DCC this is almost a per se violation of the DCC 2. Facts a. the state statute is deemed per se invalid
Philadelphia v. more or less. Congressional approval b. 261-264
1. it may not be accomplished by discriminating against articles of commerce coming form outside the
1. however. such a balancing test gives courts enormous discretion because it is attempting to weigh and compare two completely different things: burdens on interstate commerce and the benefits to a state or local government In applying the balancing test.
4. By definition. Strict scrutiny is applied where the state seeks simply to protect the economic interests of its citizens at the expense of outsiders. They are presumed invalid and are upheld only if the state can prove that they serve a legitimate purpose that cannot be achieved in any less discriminatory way b. Strict scrutiny if facial discrimination a. New Jersey (1978) pp. The Market Participant Exception
Discrimination against Interstate Commerce (pp. NJ s argument for preventing out-of-state garbage from coming in a. Whatever NJ s ultimate purpose. Does this state regulation so interfere with the national interest in maintaining a free flow of interstate commerce that the local benefits of the regulation are comparatively slight? Scalia argued that the courts should leave to Congress the essentially legislative judgments of weighing the governmental interests of a state against the needs of interstate commerce Usually states don t articulate a protectionist purpose on the face of a statute (facial discrimination) or in legislative history.3.
6. Court held that the law violated the principle of nondiscrimination a. Where. Law was designed to protect the state s environment and not its economy and that its substantial benefits outweigh its slight burden on interstate commerce 4. When the court detects such economic protectionism. courts are essentially making Cooley s national versus local distinction. NJ law that kept landfills in the state exclusively for NJ s use by preventing the importation of any wastes from out of state 3.
a. a state cannot point to a legislative state purpose for the statute or cannot show the absence of a nondiscriminatory alternative way to achieve its purpose. the Court infers that the true purpose was protectionist Two exceptions where laws that otherwise would violate the DCC will be allowed: a.
Elaborated in the Pike v. The court balances the law s burdens on interstate commerce against its benefits. 3. The inquiry is very much fact dependent a. adopted as a safety
. when a state law purports to place equal burdens on interstate and intrastate commerce. 270-83)
1. and its effects on interstate commerce are only incidental. The test has been criticized for being unpredictable and arbitrary
Southern Pacific Co. all objects of interstate trade merit CC protection
Maine v. No satisfactory way to inspect shipments of live baitfish for parasites or commingled species that do not exist in Maine 2. This is somewhat of an exception. it is measured against a more lenient balancing test 2. Issue: Whether the Arizona law restricting the length of trains passing through its borders was an unconstitutional limitation on interstate commerce. The court upheld the law because it concluded that there was no less discriminatory way to prevent these threats and protect Maine s fragile fisheries i. the court expansively declared that. Rule of Law: In the absence of congressional legislation. to treat them differently 5. Taylor pp. This is where it doesn t look like an effort to discriminate against interstate commerce non-facially discriminatory a. If the state statute does not discriminate against commerce on its face. Here. 271-273
1. The law will be found unconstitutional if the court decides that the burdens from the law exceed its benefits a. it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits 3. The Court expressly articulated a balancing test when it said: Hence the matters for ultimate determination here are the nature and extent of the burden which the state regulation of interstate trains. Arizona (1945) pp. Bruch Church (1970) balancing test: Where the statute regulates even-handedly to effectuate a legitimate local public interest. Maine s ban on the importation of live baitfish serves legitimate local purposes that could not adequately be served by available nondiscriminatory alternatives
Neutral Burdens on Interstate Commerce (pp. 264
1. 2. the court upheld Maine s absolute ban on the importation of bait fish a. apart from their origin. v. but the practical effect of the state s regulation places a greater burden on interstate economic interests. the judiciary may balance the relative burden on the interests and strike down the state law.state unless there is some reason. Here.
1. other times they will use a balancing test it s not always clear which will be used a. Strict Scrutiny i. 273-280
1. The Court declared unconstitutional an Iowa law banning 65-foot double trailers 3. When the discriminatory effect is combined with some evidence of a discriminatory purpose iii. v. The state failed to present persuasive evidence that 65-foot doubles are less safe than 55-foot singles c. but did little to enhance safety
Kassel v. But discriminatory effects are so burdensome to commerce that they always grossly outweigh local benefits unless the benefits are only achievable with the discriminatory effect (apart from which party bears the burden of proof. Sometimes courts will use strict scrutiny. The Court declared unconstitutional a state law that limited train lengths to 14 passenger or 70 freight cars a. The Court decided that the burdens on interstate transportation were greater than the safety benefit to the state from its law b. and the burden would be on the state to prove that there was no less discriminatory alternative that would accomplish the state s legitimate objective b. The Court weighed the asserted safety purpose against the degree of interference with interstate commerce b. imposes on interstate commerce. Facially neutral
. (1981) pp. When the discriminatory effect is particularly severe ii. Enforcement of the law in Arizona will result in impairment of efficient railroad operation because the railroads are subjected to regulation which is not uniform in its application 5. Madison (1951) pp. Consolidated Freightways Corp. Discusses different approaches to dealing with cases where there is a neutral burden on interstate commerce 2. and whether the relative weights of the state and national interests involved are such [as to make the law permissible] 4. is this any different from strict scrutiny?)
Dean Milk Co. Reasoning a. The law substantially burdens interstate commerce by forcing these trucks to avoid Iowa or to detach the trailers and ship them
Facially Neutral Regulations with Discriminatory Effects (pp. 284-300)
1. Case is best understood as reflecting the Court s conclusion that the Arizona law put a substantial burden on commerce.measure. Such laws would be presumed void.
The Court concluded that the law was discriminatory against out-of-staters. The city erected an economic barrier protecting the major local industry against competition from without the State plainly discriminating against interstate commerce b. 5. grade or standard b. The Court considered a city s ordinance that required that all milk sold in the city had to be pasteurized within five miles of the city. 2. The Court found discrimination based on the disparate impact of a law against out-of-staters 4. Speaks to the standard that: a law is likely to be found discriminatory if it imposes costs on out-of-staters that in-staters would not have to bear
. By prohibiting Washington growers from marketing apples under their State s grades. Washington State Apple Advertising Commission (1977) pp. 4. Facts a. NC s statute strips Washington apple industry from the competitive and economic advantages it has earned for itself through its expensive inspection and grading system iii. Discriminatory because of its effect on the sale of Washington apples i. 3. Rule of Law: A facially neutral statute still violates the Commerce Clause if it discriminates against interstate commerce in practice. Court invalidated a. but it also precluded milk that was pasteurized in other parts of that state from being sold in the city. the statute has a leveling effect which insidiously operates to the advantage of local apple producers 6. NC law required all closed containers of apples sold or shipped into the state bear a particular sticker reading: no grade other than the applicable U. Issue: Is a statute unconstitutional if it places an excessive burden on interstate commerce? 3.2. a. 287-289
1. Facially neutral in that all applies sold in state whether produced in state or out of state had to comply 5.S. The Court said it was irrelevant that the law also discriminated against in-staters
Hunt v. Issue: Whether the North Carolina statute violates the Commerce Clause even though it does not facially discriminate against interstate commerce. Facts a. Rule of Law: A state statute that discriminates against interstate commerce will be held invalid if there are other less-discriminatory means by which the state legislature can accomplish its objective. The law prevented milk that was pasteurized in other states from being sold in the city. Washington had a system for grading apples that was different from and more stringent than the federal standard ii.
3. Issue: Whether. Facts a.P. in practical effect. Hunt disparate impact against out-of-staters was sufficient for finding a law discriminatory b. it has a disparate impact on some interstate business. They don t disagree as to the legal standard: All of the cases indicate that proof of discriminatory impact is sufficient for a facially neutral law to be deemed discriminatory ii. in the absence of congressional action. MD law prohibited a producer or refiner of petroleum products from operating a retail service station within the state b. Court s reasoning a. Washington State Apple and Exxon Corp a. Exxon proof of discriminatory impact. Hood & Sons v. the law meant that these out-of-state oil companies could not own service stations in MD greatly benefiting local businesses 4. 291-294
1. Since virtually all petroleum products sold in MD were produced and refined out of state. Does not prohibit the flow of interstate goods. Reconciling the two i. Issue: Whether the Maryland statute violates the Commerce Clause because it discriminates against interstate commerce. Case speaks to the standard that: a law is likely to be discriminatory if its effect is to exclude virtually all out-of-staters from a particular state market. Governor of Maryland (1978) pp. other out-of-staters could own service stations in the state 7. place added costs upon them. or distinguish between in-state and out-of-state companies in the retail market c. The Court found the state law was not discriminatory even though it greatly harmed out-of-state oil companies and favored local businesses 5. DuMond (1949) pp. The absence of these factors fully distinguishes this case from those in which a State has been found to have discriminated against interstate commerce 6.Exxon Corp v. Hunt v. was insufficient for the Court to deem the law discriminatory c. Only out-of-state petroleum producers and refiners were kept from operating in the state. The act creates no barriers against interstate independent dealers b. The cases turn not on differences about the rule but on the Court s appraisal of the particular facts and its assessment of whether there was discrimination
1. Rule of Law: A facially neutral statute may be held valid even if. the Court may invalidate New York state laws that deny additional facilities to acquire and
. even with evidence of a protectionist purpose. but not if it only excludes one group of out-of-staters a. 2.
5. 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 a. rather than as a market regulator. the DCC does not apply 2. pp.
States as ³Market Participant´ Exception (pp. Inc. Issue: Whether a pricing order that imposes a tax on all fluid milk sold to Massachusetts retailers and distributes the entire revenue from the tax to Massachusetts s dairy farmers unconstitutionally discriminates against interstate commerce. if the state is literally a participant in the market. When the state acts as a market participant. 4. i. 1522)
West Lynn Creamery.
3.e. such as with a state owned business. While it may not violate the DCC. may invalidate state and local laws that place an undue burden on interstate commerce. the judiciary.
ship milk in interstate commerce on the grounds that those state laws unduly burden interstate commerce. Market participant exception (MPE) a. in the absence of congressional action. Healy (1994) pp. In other words. New York law that prevented a company from constructing an additional depot for receiving milk b. Rule of Law: A regulation violates the Commerce Clause if the combination of a tax and subsidy discriminates against interstate commerce. v. The Court here said the central purpose of the DCC is to prevent protectionist legislation Facts a. may choose to favor its own citizens (DCC doesn t apply) 3. the state. a buyer or seller of goods or services. The effect of the law was to keep more milk for in-staters at the expense of those in Massachusets The Court declared the law unconstitutional as violating the DCC because there was not a permissible nonprotectionist purpose for it
Family Winemakers of California v. Is an exception to the dormant market clause b. might still violate PIC or EPC
. 2. even if each component would be constitutional if separated. 300-08)
1. Jenkins (2010 Supplement. and not a regulator. In other words. as a market participant. the DCC does not apply i. Rule of Law: Under its dormant Commerce Clause powers.
the state can only favor its own citizens in the market in which it participates 3. but they may not attach conditions to a sale that discriminate against interstate commerce a. But. the Court drew 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 4. Privileges and Immunities Clause (PIC): The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States Article IV a. rules which favor in-state people seem to be immune from invalidation a. The Clause basically precludes a state from treating out-of-staters worse than instaters with respect to privileges and immunities 2. v. The Court struck down an Alaska law that required all who bought timber from the state to also process it in state. The court here said that the way it was chosen will not be allowed by the DCC and will not fit within the MPE a. Case a. Big issue was whether the MPE applied since it doesn t then it s a traditional dormant commerce clause case
The Privileges and Immunities Clause of Article IV (pp. Thus. then there is not a violation of the PIC 4. Alaska could favor its own in selling the timber. Inc.South-Central Timber Development. Where the government is involved in the market. PIC: interpreted by the SC as limiting the ability of states to discriminate against out-of-staters with regard to constitutional rights or important economic activities a. If no economic discrimination nor discrimination with regard to constitutional rights. 308-17)
1. Almost all of the recent SC cases applying PIC have involved challenges to state and local laws that discriminate against out-ofstaters with regard to their ability to earn a livelihood 3. but could not impose regulations which discriminated in favor of its own citizens regarding conduct in a downstream market b. Laws that discriminate against out-of-staters can be challenged under the EPC of the 14th Amendment or the DCC as well 5. Wunnicke (1984) pp. Rule: state businesses may favor in-state purchasers. Protection by the government 44
1. This is a limit on the scope of the MPE 2. PIC: activities which are sufficiently basic to the livelihood of the nation primarily is to protect constitutional rights and economic activities a. i.
One big one is that corporations aren t considered to be citizens for purposes of the PIC but may bring commerce clause challenges 11.Enjoyment of life and liberty Right to acquire and possess property Right to pursue happiness and safety Right to earn a livelihood (majority of the cases under the PIC) i.
. It does not have a test parallel to the Pike balancing test c. A state may only discriminate against out-of-staters regarding a Privilege and Immunity if it has a substantial reason for the difference in treatment and if discrimination against nonresidents bears a substantial relationship to the state s objectives 7. Right to police and fire protection when out of state g. a challenge certainly could be brought under the PIC. Right to engage in political speech and religious worship 6. Generally. But in reality the suit would be brought under the 1st Amendment as applied to the states through the 14th Amendment 9. d. If there is such discrimination. e. ii. 308) a. Right to medical care h. Has the state discriminated against out-of-staters with regards to privileges and immunities that it accords its own citizens? i. or mandates that a preference be given to in-staters for employment f. is there a sufficient justification for the discrimination?
b. Congressional approval does not excuse a law that violates the PIC 10. not to corporations b. or charges a discriminatory license fee. Is like a second-cousin to the DCC and EPC 8. The PIC only addresses discriminatory measures i. The PIC resembles the DCC (both used to challenge state and local laws that discriminate against out-of-staters). If a state were to prevent out-of-staters from engaging in religious worship. but there are some important differences: a. The Market Participant Exception does not apply to the PIC e. Violation of PIC if state excludes out-of-staters from practicing a trade or profession. c. Two basic questions when a challenge is brought under the PIC: a. doctrines and test between the PIC and the DCC (bottom of pg. there is no need to use the PIC to protect constitutionally guaranteed rights b. The PIC only applies to individual citizens. 5 important distinctions that mark the differences between the coverage. PIC only protects privileges and immunities d. Example: i. PIC and EPC a. Consider the meaning of privileges and immunities b.
This case is different from White because the basic issue is one of the PIC 3. then you have to be a citizen of NJ. Because of the supremacy clause. so it s still discriminatory c. Camden s argument a. Preemption is not limited to the exercise of the commerce power 2. Mass an MPE case 1. Express preemption 46
1. The court remanded it to the lower court to determine whether there is a substantial reason for the state to discriminate against outsiders
Federal Preemption and Consent: Congress has the final word (pp. if there is a conflict between federal law and state or local law. but strong protection with regard to fundamental rights and important economic activities 12. Similar to White v. Thus far. In all states the cities are creatures of the state and in this case the city was authorized by the state to do it b. A state may discriminate against out-of-staters with regard to PIC only if the discrimination is substantially related to a substantial state interest a. the Court has not found that any law meets this rigorous test
United Building & Construction Trades Council v. The contrary decision in the White case was based on the CC/MPE and this doesn t trump the horizontal bar in the PIC 6. If you live in Camden.i. PIC is not absolute. Courts must decide what is preempted. Made a facial argument as to why the PIC doesn t apply i. Camden is a city not a state arguing the PIC only protects against state discrimination based on state citizenship 4. PIC applies to local as well as state-wide discrimination b. and this inevitably is an inquiry into congressional intent statutory interpretation a. Camden enacted law requiring at least 40% of all employees of contractors on city construction jobs must be Camden residents i. The right to a common calling (ordinary occupation) is one of the most fundamental of those privileges protected by the PIC 5. Facts a. PIC protects the right to work in a private setting c. 317-30)
1. The problem is that Congress s intent is frequently unclear 4. Primarily a PIC case 2. the latter is deemed preempted 3. Redress the extreme economic depression of Camden b. Rules from this case a. Court s reasoning a. City of Camden (1984) pp.
and is compelled whether Congress command is explicitly stated in the statute s language or implicitly contained in its structure and purpose i. Both the federal and state regulations required training of hazardous waste operators. preempted an Illinois law that protected the health and safety of workers who handled hazardous waste a. When compliance with both state and federal law is literally impossible 2. 319325
1. Even though they both were virtually the same 5. Congress created a system where states could have their regulations approved by the federal Occupational Safety and Health Administration and then their regulations would replace federal law. Question of statutory interpretation b. Reasoning: a. Difficulty with preemption is in deciding whether a particular state or local law is preempted by a specific federal statute or regulation
Gade v. Has two sub-parts i. refresher courses. In some way Congress tells states to get out. and fines for violations 4. an exam. Issue: whether the federal Occupational Safety and Health Act of 1970. National Solid Wastes Management Association (1992) pp. Good example of an exercise of what s preempted and what is not 2. Who are the biggest pushers of preemption? Businesses. Then discusses the two types of implied preemption
. either federal or state. they are in charge 5. Where Congress says the following types of state laws are preempted b. b. and federal regulations promulgated pursuant to it. because its easiest to control one legislature than 50 7. of occupational safety and health standards 6. Preemption may be either express or implied.a. In Gade the Court summarized the tests for preemption a. Conflict preemption: occurs in one of two ways and is less sweeping 1. This evidenced a desire by Congress that there be only one set. Field preemption: Congress wants to regulate the entire field they don t want hindrance or help from state or locals they are saying it s just their turf ii. When a state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress 6. Ultimate conclusion here is preemption 3. Holding: a. Court found the Illinois law preempted by state law i. Implied preemption implied by a clear congressional intent to preempt state or local law a.
Court says not preempted because no conflict between state and federal law
PART III: SEPARATION OF POWERS SEPARATION OF POWERS Introduction (pp. State Regulation was vertical 2. Some construe Presidential power broadly.
Under the Supremacy Clause. Horizontal focus is on which government can do it a. II: The executive power shall be vested in a President of the United States a. 22 (Supplement)
1. The debate turns to some extent on whether the vesting clause in Article II is seen as conferring powers or as simply conferring a title on the person who possesses the powers set forth elsewhere in Article II b. Government argues that failure to warn was preempted because the FDA said it s a kosher label says the state can t come along with a state law that has a higher standard for the company 3. from which our pre-emption doctrine is derived. Makes it hard for government power to aggregate in one place and then be used against the people b. Good example of the court pendulum swinging away from the presumption for preemption and against preemption 2. Levine pp. Facts a. any state law. must yield
Wyeth v. 333-34)
1. (like it does for
. Executive Power Art.7. Grandisement: concern once branch has pulled too much power towards itself a power grab 4. Unenumerated authority (broad power): Since Article II does not limit the president to powers herein granted. Protect the individual rights i. Reasons for separation of powers a. Encroachment: this is a power poaching instead of a power grab
1. however clearly within a State s acknowledged power. which interferes with or is contrary to federal law. Judicial Power and National Legislative Power were horizontal. Woman sues drug company for failure to issue warning b. Provides checks and balances 3. others argue for a narrower definition i.
(1) When the President acts with congressional support 1. President s powers are greatest here ii. 5. When does the Court limit it or when does it let Congress limit it?
Executive Action: Domestic Affairs (pp. When can Congress limit it? c. Jackson s Concurrence considered most significant opinion in the case a. 4. Enumerated authority (limited): The other argument is that the president has no powers that are not enumerated in Article II and. Separated three circumstances: i. of Commerce to implement this a. Weakest here
. Justice Black wrote opinion (5 concurrences) not all members of majority shared same opinion a. Argued for a broad Presidential power to exercise emergency powers 8. Dissent a. SC declared the seizure of the steel mills unconstitutional by a 6 to 3 margin a. Issue: Whether the President of the United States is acting within his constitutional executive powers when issuing a lawmaking order directing the Secretary of Commerce to take possession of and operate most of the nation s steel mills. Typically president can do what he wants unless the Constitution or Congress has said to do otherwise 3. Seized them because employees were planning a strike during the middle of war 2. indeed. Rule of Law: The President of the United States may not engage in lawmaking activity absent an express authorization from Congress or the text of the Constitution. Sawyer (Steel Seizure Case) (1952) pp. 335-55)
Youngstown Sheet & Tube Co. (2) When he acts against congressional silence iii. (3) When he acts at odds with Congress 1. turned to Sec. 7 different opinions 6. v. such unenumerated authority would be inconsistent with a Constitution creating a government of limited authority 2.Congress) it is argued that the president has authority not specifically delineated in the Constitution c. Question was does the President have the power to do this without explicit permission from Congress 3. What is the extent of it? b. Reasoned that Truman was engaged in lawmaking rather than law enforcing and accordingly had overstepped the bounds of his office 7. Question of executive power a. 335-345
1. President seized major steel mills in the US.
The foreign affairs power is divided between the President and Congress but in practice the President has exercise the dominant role 2. 351-354
1. Broadest authority under this approach 10. Rule of Law: The Constitution grants sole authority to the President to appoint and remove principal officers of the federal government. in foreign policy
. This approach sees it as Congress s responsibility to act to stop presidential infringements d. The president has inherent authority unless the president interferes with the functioning of another branch of the government or usurps the powers of another branch i.b. No SC case definitively makes one of these approaches correct and the others wrong
NOTES MISSING FROM 4/16 CLASS THIS WAS THE PILC FAIR pg. Jackson viewed the steel seizure as falling in the last category and accordingly representing a weak exercise of Presidential power 9. Since Congress didn t authorize this action. The president has inherent powers that may not be restricted by Congress and may act unless the Constitution is violated i. The president may exercise powers not mentioned in the Constitution so long as the president does not violate a statute of the Constitution i. The President s power to receive and dispatch ambassadors implicitly suggests a power to recognize foreign governments a. 345-373
Morrison v. but permits appointment and removal of inferior officers defined as such by their more limited executive functions by the President. 346-349. heads of departments. This approach allows the courts to invalidate presidential actions that interfere with the other branches of government c. or the judiciary. All four of these approaches have support in Youngstown and some support in other cases a. 355-83)
1. Issue: Whether Morrison is a principal officer of the federal government such that her appointment and removal by an entity other than the President constitutes a violation of executive powers under the Constitution. 3. Four different approaches to the question of when President may act without express constitutional or statutory authority are identified in the case: a. This has been used to justify the idea that the President rightly speaks for the U. There is no inherent presidential power may act only if there is express constitutional or statutory authority b. No constitutional provision addresses the removal power
Executive Action: Foreign Affairs (pp. 2.S. Olson (1988) pp.
Issue: Whether an otherwise unconstitutional delegation of legislative power to the executive may nevertheless be sustained on the ground that its exclusive goal is to provide relief in a foreign conflict. Executive agreements with other countries have largely replaced treaties as the method of entering into agreements with other countries.S. they are binding international agreements
U. Issue: May the President settle the claims of United States citizens against a foreign government through an executive order? 2. Executive Agreements a. 3. This case is to be contrasted against the Steel Seizure case where the President s domestic actions during war were limited
Dames & Moore v. (1936) pp. 359-363
1. Regan (1981) pp. 356-358
1. 363-364 The War Powers Resolution pp.3. This case stands for the idea that the President can exercise broad power in foreign affairs and is often relied upon by Presidents to support claims to sweeping executive power in foreign policy. 2. Showed that domestically the President s agreements with other countries are binding
The Prize Cases (1983) pp. v. This interpretation rests largely on dicta in Justice Sutherland s opinion. This case upheld the executive agreements resolving the Iran hostage situation which suspended American claims pending in American courts and required that they be presented to an Iran-United States Claims Tribunal a. Whether: An otherwise unconstitutional delegation of legislative power to the executive may nevertheless be sustained on the ground that its exclusive goal is to provide relief in a foreign conflict. 365-366
1. Congress had authorized the action President Roosevelt had taken 4. Rule of Law: The President has authority to settle claims through executive orders where the settlement of claims is necessary for the resolution of a major policy dispute between the United States and another country and where Congress acquiesces to the President s action. The War Powers Resolution sought to regulate exercise of the President s power to commit troops to battle by limiting the President s ability to commit troops for more than 60 days without congressional authorization and by introducing some features designed to promote accountability a. With or without legislative sanction. Others claim that the measure was unconstitutional in abdicating to the President Congress power to declare war
. Curtis-Wright Export Corp. 3. In fact.
Later. Whether someone is an inferior officer may turn on whether he/she is subject to removal or supervision by a superior. three factors are relevant in determining the scope of the Suspension Clause with respect to detainees: (1) the citizenship and status of the detainee and the adequacy of the process that deter.
Johnson v. Appointing Power a. jurisdiction and tenure. and (3) the practical obstacles inherent in resolving the prisoner s entitlement to the writ. 372
1. The Constitution empowers the President to appoint federal officers with the Senate s advice and consent. Rumsfeld (2006) pp. i. Rule of Law: United States citizens held in the United States as enemy combatants must be given a meaningful opportunity to contest the factual basis for that detention before a neutral decision-maker. Eisentrager (1950) pp. Most significant legislative power the President possesses b. Congress can vest the appointment of inferior officers in the President. the Court held that statutory claims of habeas corpus jurisdiction extend to foreign nationals imprisoned by the United States at Guantanamo Bay. Seeing these happen more b.
Hamdi v. or the nature of his/her duties. Executive agreements executive branch creating treatises with other countries without getting authorization from Congress a.S. 373-377
1. Congress eliminated the statutory right to bring a writ of habeas corpus. Congress can create offices and define their qualifications but cannot appoint person to hold offices b. 370 Rasul v. They can get replaced by more formal treatises
Legislative Action and the Administrative State:
General Themes (pp. Bush (2004) pp. In light of Eisentrager. President cannot veto only part of a bill Clinton 2. 370
2. The Court denied the writ to enemy aliens captured outside U.
. who were tried and convicted by a military tribunal for offenses committed outside the United States and who were at all times imprisoned outside the United States. territory. Rumsfeld (2004) pp. In Rasul v. Veto power a. Bush (2004). 383-97)
1.mines the status.Ex parte Quirin (1942) pp. the courts of law or heads of department. (2) the nature of the sites where apprehension and then detention took place.
Hamdan v. 370
The Court previously held unconstitutional the legislative veto feature which Congress has incorporated in numerous pieces of legislation which allows one or both houses to delegate power to the executive
. but is an inherent executive power b. Removal a. Grandisement argument a. Holding: it is OK for Congress to delegate legislative power (sentencing guidelines) to the executive/judicial branch
Morrison v. Olson (1988) pp. Limiting the judge s ability to do their job 4. 3. it can restrict the President s power to remove that officer at least so long as the restriction does not compromise the President s ability to fulfill the constitutional duties of the office. So then why independent ? ii. or the judiciary. US Sentencing Commission has been placed in the judicial branch i. Legislative veto a.
Specific Limitations (pp. Rule of Law: The Constitution grants sole authority to the President to appoint and remove principal officers of the federal government. Issue: Whether Morrison is a principal officer of the federal government such that her appointment and removal by an entity other than the President constitutes a violation of executive powers under the Constitution. heads of departments. 397-413)
4. More recently. the Court has held that although Congress cannot claim for itself power to remove an officer charged with executing the laws. Not expressly in Constitution. Judges couldn t agree on the sentences for most crimes so they set up this commission that created sentencing guidelines which federal judges would then have to follow 2. it can restrict the President s power to remove that officer at least so long as the restriction does not compromise the President s ability to fulfill the constitutional duties of the office. 383-392
Mistretta v. 392-397
1.c. The Constitution allows at least some interbranch appointments. The judicial branch was given too much power by Congress 3. An independent commission within the judicial branch 1. United States (1989) pp. Facts a. ± Morrison v. 2. Encroachment a. the Court has held that although Congress cannot claim for itself power to remove an officer charged with executing the laws. Olson 3. More recently. but permits appointment and removal of inferior officers defined as such by their more limited executive functions by the President.
Says Majority didn t consider practical benefits for a line-item veto b. Clinton v. Immunities and privileges the final theme of separation of powers a. Rule of Law: The Constitution does not permit the president to repeal or amend laws without the approval of both houses of Congress. i. 407-413
1. Chadha (1983) pp. Legislative veto a. Congress can overturn such a veto by a majority vote of both houses 4. which permits one house of Congress to unilaterally override an executive action. 399-406
1. Chadha 5. Dissent a. The court found it to be unconstitutional 2. City of New York (1998) pp. 3. Issue: Whether the President s vetoing action under the Line Item Veto Act is a constitutional exercise of executive power 2.
President Clinton v. Rule of Law: Legislation providing Congress with a veto over an action of the executive branch does not meet the constitutional requirements of presentment and bicameralism. 413-24)
1. The President. is constitutional. as well as the Vice President and other civil officers of the United States can be impeached and removed for treason. Line-item Veto a. The budget process has changed with the growth of government over 200 years
Immunities and Privileges (pp. the court ruled the Line Item Veto Act unconstitutional in this case. Impeachment a. Can be impeached but not removed 7. 3. Issue: Whether §244(c)(2) of the Immigration and Nationality Act. the Court has adopted a more functionalistic approach which allows adjustments so long as they do not involve a usurpation by one branch of the powers assigned to another. At other times. Accordingly. City of New York 6. Separation of Powers a. Privilege is not to testify or reveal particular information or material
. The President cannot veto only part of a bill.branch while retaining some control over executive action INS v. so long as no one branch aggrandizes its powers at the expense of another. At times the Court has used a formalistic approach which envisions the functions of the federal government as being strictly divided between the three institutions of the federal government.
Immigration and Naturalization Service v. bribery and other high crimes and misdemeanors. and so long as the ability of a branch to discharge its functions is not compromised.
Court suggested that a claim based on national security or for Presidential papers in a civil case might be treated differently 5. Nixon v. Clinton v. 4. Rule of Law: Presidential communications are not entitled to an absolute privilege in a court of law based on a generalized interest in confidentiality. Jones The only immunity Presidents have from damage suits is the Fitzgerald immunity The President has absolute immunity from liability for actions relation to his Presidential duties. and such communications are discoverable when demonstrably relevant in a criminal trial. Nixon v. Rule of Law: The Constitution does not grant the President immunity from civil litigation involving actions committed before he entered office. Executive Privileges and Immunities
. Fitzgerald (1982). The President can claim executive privilege with respect to conversations and papers but that claim will not necessarily prevail Nixon didn t prevail because of the needs of the criminal justice system
President Clinton v. Executive immunities immunity basically means immunity suit from legal action Is the President immune from liability for actions relating his Presidential duties? a. Paula Jones (1997) pp. The Court rejected this relied on Marbury 4.
b. President can be sued as a defendant b. Nixon argued that it was for the executive to determine the scope of executive privilege a. President Nixon (1974) pp. 3. The Court here held that the President s generalized claim to the confidentiality of his papers will not prevail over the needs of the criminal justice system for evidence i.
United States v. Stands for the fact that the President can be sued as a defendant a. Fitzgerald b.2. Accountability a. but not regarding claims arising out of events that preceded his tenure in office. Issue: Whether communications of the President are entitled to a generalized absolute privilege from discovery in a court of law. 2.
5. Issue: Does the Constitution protect the President from suits based on conduct occurring before he assumes the Presidency? 2. 421-423
1. Yes i.
3. But not regarding claims arising out of events which preceded his tenure in office Clinton v. Jones (1997).
then the government will meet substantive due process only if it can prove that the law is necessary to achieve a compelling government purpose 6. Liberty has been more than just not going to jail b. Due process holds the government subservient to the law of the land protecting individual persons from the state. If a law is in an area where only rational basis review is applied. Procedural Due Process: the procedures that the government must follow before it deprives a person of life. Looks to whether there is a sufficient justification for the government s action b. liberty or property b. Also substantive due process has come to cover rights beyond just life. a. But if it is in an area where strict scrutiny is used such as for protecting fundamental rights. Substantive Due Process: asks whether the government has an adequate reason or taking away a person s life. Due process of law is more than just the procedure 4. Due process as a restraint on all three powers of the federal government i.a. Includes making sure the legislature passes a fair law 2. Whether there is such a justification depends very much on the level of scrutiny used i. substantive due process is met so long as the law is rationally related to a legitimate government purpose ii. liberty and property 3. Can distinguish between procedural and substantive due process based on the remedy sought
. liberty. or property 5. 5th Amendment you interpret it as barring the federal government i. Government must give you due process if they want to take away your life. The President can claim executive privilege with respect to conversations and papers but that claim will not necessarily prevail Nixon
PART IV: INDIVIDUAL RIGHTS LIMITATIONS ON GOVERNMENT POWER Due Process Introduction
1. Two due process clauses in the Constitution a. liberty or property a. Substantive due process i. Substantive Due Process: protection of liberty and safeguard of due process of law have been interpreted in substantive ways a. Fair laws with valid objectives ii.
3. An infamous example of this is the Dred Scott case 11. then the government does not have to provide procedural or substantive due process 8. Kelly i. the question remains what process is due 2. Once it is determined that the Due Process Clause applies. So when government takes away liberty or property interest it must be subject to due process c. If the P is seeking to have a government action declared unconstitutional as violating a constitutional right. Sindermann pg. or property. The privilege approach the government benefits are privileges and not rights b. If no denial of life. You get the benefits that the government has put out there for you i. 460 10. Without due process of law?
Cleveland Board of Education v. procedural due process is the issue 7. What are the interests protected by due process 3 approaches taken by the court over time a. The approach represented by Goldberg v. 425-43)
Procedural Due Process can be broken down into three basic questions: 1. Social welfare benefits are vital can t live or survive without them. or property. The substance of the law can be questioned under due process a. Perry v. so when something threatens your existence than that is like liberty 1. such as notice and a hearing. liberty. liberty. the Constitution and not the state law determines the procedures to be followed
.a. But when a person or a group is seeking to have a government action declared unconstitutional because of the lack of adequate safeguards. 432 9. Has there been a deprivation. Of life. Types of liberties pg. substantive due process is involved. 2. Property interest/property right
Procedural Due Process (pp. b. Loudermill (1984) pp. 432-434
1. Court said when there is a property interest.
Liberty Determining the Process That is Due
Matthews v. Eldridge (1976) pp. 438-441
1. Lays out a 3-factor balancing test a. Private interest b. Public interest (burden imposed on government) c. Risk of erroneous decisions this is the lynchpin factor i. Is the procedure it s asking for likely to prevent a mistake from being made and is the government s action likely to make a wrong decision? 2. Issue: Whether the Due Process Clause of the Fifth Amendment requires the recipient be afforded an opportunity for an evidentiary hearing prior to the termination of Social Security disability benefit payments. 3. Rule of Law: Procedural due process is satisfied by administrative proceedings, even those not as extensive as a full evidentiary hearing, for the termination of disability benefits under the Social Security Act.
Substantive Due Process
Equal Protection = why me? Due Process = is it fair? 1. Federal Constitutional rights are available only against the government (from federal to municipal) a. A lot of rights we have are not Constitutional rights such as employment rights Rational review test Strict scrutiny instead of the challenger having to prove the law is rationally related to a purpose, the government here must prove that the law is necessary for a government objective 1. Government must prove the law is substantially related to achieving government interests
Substantive Due Process
1. The core of substantive due process is the idea that some laws invade life, liberty, or property in such a fashion that they cannot be considered valid law
2. Substantive Due Process is the concept that there are certain rights so fundamental to our traditions of justice that, no matter what procedural guarantees government affords, government cannot abridge those rights a. The basis of substantive due process has generally been the liberty clause of the 14th Amendment (i.e., government would be violating a person s liberty despite the procedural guarantees afforded) i. Requires a broad reading of the word liberty in the Due Process Clause of the 5th and 14th Amendments 3. Substantive due process means two things: a. It means a definition of liberty that goes beyond not going to jail b. Due process of law looked like a fair hearing i. Court expanded both of these notions to have substantive connotations 4. Calder v. Bull (pg. 444) illustrates the polar positions on this issue 5. Is there a middle ground between what s explicitly protected by the Constitution and what is not? 6. Idea that substantive due process should be used to protect fundamental, unenumerated rights 7. What courts really mean by substantive due process is about what are deep traditions are they aren t really looking at public preferences but rather which states have laws and statutes, etc. a. See family rights cases, Moore v. City of East Cleveland and Griswold, etc.
The Incorporation Doctrine (pp. 443-58)
1. Bill of Rights = first 10 Amendments 2. Perhaps the most enduring monument of substantive due process is the incorporation doctrine, by which most of the substantive guarantees of the Bill of Rights have been incorporated into the Fourteenth Amendment s due process clause and thus made applicable to the states 3. The Incorporation Controversy addresses the issue of whether the 14th Amendment incorporates the protections of the Bill of Rights to make them applicable against the states a. Before the adoption of the 14th Amendment in 1868, the SC held in Barron v. Mayor of Baltimore (1833) that the protections found in the Bill of Rights were not applicable against the states. b. The 14th Amendment reopened the door for the argument that the Bill of Rights should also be applied against the states c. The SC first addressed this argument in the Slaughter-House Cases (1872). i. The majority s decision in Slaughter-House is still good law today. d. The PIC of the 14th Amendment remains essentially written out of the Constitution by Slaughter-House e. Saenz v. Roe revived the PIC of the 14th Amendment
4. The SC s use of selective incorporation 5. Five provisions of the Bill of Rights have never been incorporated and do not apply to state and local governments. Of importance: a. 2nd Amendment right to bear arms is not incorporated i. So the Court has upheld state and local gun laws b. The 5th Amendment right to a grand jury indictment in criminal cases is not incorporated i. Thus, states need not use grand juries and can choose alternatives such as preliminary hearings and prosecutorial informations c. 7th Amendment right to jury trial in civil cases is not incorporated i. States therefore can eliminate juries in some or even all civil suits without violating the Constitution d. Has never ruled whether the prohibition of excessive fines in the 8th Amendment is incorporated 6. Technically, the Bill of Rights still applies directly only to the federal government; Barren v. Mayor & City Council of Baltimore never has been expressly overruled. Therefore, whenever a case involves a state or local violation of a Bill of Rights provision, to be precise it involves that provision as applied to the states through the due process clause of the 14th Amendment
Barron v. Mayor & City Council of Baltimore (1833) pp. 445-446
1. Issue: Whether the Takings Clause of the Fifth Amendment operated as a restriction on the Baltimore City government. 2. Rule of Law: The Bill of Rights, specifically the Fifth Amendment s guarantee that government takings for public use require just compensation, are only restrictions on the federal government and not state or local governments. 3. Holding: the Bill of Rights was a restriction of federal actions, not state and local conduct 4. Facts a. Barron sued the city for taking his property without just compensation in violation of the 5th Amendment 5. Court s reasoning a. The Framers did not say the Bill of Rights applies to the states if they wanted this to be the case they would have made it clear b. Counter-argument: i. Some provisions of the Bill of Rights, such as the takings clause, do not limit themselves only to the federal government 1. 5th Amendment begins no person shall, and concludes, nor shall private property be taken for public use, without just compensation 2. The 1st Amendment, in contrast, begins, Congress shall make no law
1. §2. Bill of Rights doesn t apply to state or local government
1. and the Fourteenth Amendment (which is largely geared towards the protections of emancipated slaves and African Americans) only protects rights guaranteed by the United States and not individual states. Majority s response: each state established a constitution for itself. At the time Barron was almost certainly decided correctly a. Privileges and immunities were already part of the Constitution in Article IV. The law required that the company allow any person to slaughter animals in the slaughterhouse for a fixed fee 61
. If the Bill of Rights applies only to the federal government. Rule of Law: The Thirteenth Amendment solely prohibits slavery as experienced by Africans in the United States before the Civil War.ii. It was thought that this provision applied the Bill of Rights to the states i. This is very disputed b. First SC case to interpret the 14th Amendment 2. Worry is that the Federal Government has the excessive power ii. provided such limitations and restrictions on the power of its particular government 6. No specific direction that the Bill of Rights only applies to the Federal Government a. which prevents a state from denying citizens of other states the privileges and immunities it accords its own citizens
Slaughter-House Cases (1873) pp. the obvious concern is that state and local governments then are free to infringe even the most precious liberties 1. But the court said it only applies to the Federal Government because i. Most states have their own bill of rights iii. Invalidated the argument that the provisions of the Bill of Rights are the basic privileges and immunities possessed by all citizens 5. 14th Amendment declares: No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States a. and in that constitution. Because of a huge surplus of cattle in Texas. the Louisiana legislature gave a monopoly in the slaughterhouse business to one company. 3. But today it is troubling that state and local governments were free to violate basic constitutional rights 7. Issue: Whether the Louisiana statute creating a slaughterhouse monopoly violated the Thirteenth and Fourteenth Amendments to the United States Constitution. 4. Aren t worried that states would mess with federal Bill of Rights 8. Facts a.
Roe pp. The privileges or immunities clause was rendered a nullity by the Slaughter-House Cases. Giving a very narrow reading 7. the SC used the PIC of the 14th Amendment to invalidate a state law 2. and it has been ever since
Saenz v. To federalize all of the good life rights would be to federalize almost everything says the majority 8. 454
1. Most of the decision has since been reversed. Court s first interpretation of the Civil War Amendments. The butchers invoked many of the provisions of the recently adopted constitutional amendments 6. Except for the privileges or immunities clause. which applied against the states b. all of the other restrictive interpretations of the 14th Amendment in the Slaughter-House Cases were subsequently overruled a. The Court said that the purpose of the 13th and 14th Amendments was solely to protect former slaves a. As it defined the privileges and immunities as things that had already existed prior to the adoption of the 14th Amendment 14. The dissent here found the right to work was fundamental right and one that must be found in one of the three clauses or all three of the clauses of the 14th Amendment 10. Slippery slope argument a. Slaughter-House and privileges or immunities of the 14th Amendment 13. Several butchers brought suit challenging the grant of the monopoly argued that the state law impermissibly violated their right to practice their trade c. Equal Protection. The opinion narrowly construed the Due Process. and the Court has much more liberally construed the 14th Amendment 12. California made it difficult for newcomers to get social welfare benefits that long-term citizens of the state received court found this unconstitutional 62
. Court refused to redistribute power away from the states and toward the federal government c. Many different opinions from the justices here 11.b. Two separate questions: do you get fundamental rights from the 14th Amendment and do you get the Bill of Rights from the 14th Amendment? 9. Slaughter-House Cases interpreted the PIC of the 14th Amendment in a manner to rob it of all meaning i. Importance of Slaughter-House a. and Privileges and Immunities Clauses of the 14th Amendment d. The SC s extremely narrow interpretation of the privileges or immunities clause of the 14th Amendment never has been expressly overruled and has precluded the use of that provision to apply the Bill of Rights b. Essentially for the first time in American history.
a. CA has represented to the Court that the legislation was not enacted for any such reason c. 2nd Amendment now being incorporated through the 14th Amendment via the Due Process Clause
. The right to be treated well in another state c.
7. This is the last incorporation issue 2. 29 (Supplement)
1. The right to come and go b. 457
1. such a purpose would be unequivocally impermissible Dissent (only two) a. Whether the 2nd Amendment applies to the individual states 3. Rehnquist and Thomas b.
6. Justified in restricting welfare benefits for new residents to avoid CA being a magnet for those moving to the state solely to collect its higher welfare benefits Majority s rejection of this argument a. The right to be treated equally if you decide to stay and live in that state California s argument a. Incorporates some rights. Frankfurter won the battle.3. Not limited to the enumerated rights b. Each lamented the revival of the privileges or immunities clause as a basis for protecting rights Justice Thomas really likes the PIC here says it should have a broad application but says its not for the right to get social welfare benefits Scalia. voted with the majority
The Black-Frankfurter Arguments ± pg. 8. Justice Black argues that the Fourteenth Amendment is a total incorporation of only the enumerated Bill of Rights. Court revived the Privileges and Immunities Clause here somewhat in its holding The right to travel is three kinds of rights a. Even if it were. not all rights c. Not limited to the Bill of Rights
The right to bear arms pp. Justice Frankfurter argues for selective incorporation a. Empirical evidence shows the number is quite small not enough to justify a burden on those who had no such motive b. Black won the war 2. one of the Court s foremost opponents to protecting nontextual constitutional rights.
2. Where did these notions come from? i. Issue: Whether a Louisiana law which effectively prohibited the contracting of Louisiana citizens with foreign corporations violated the Due Process Clause of the Fourteenth Amendment. Rule of Law: A state may not regulate the working hours mutually agreed upon by employers and employees as this violates their Fourteenth Amendment right to contract freely under the Due Process Clause. Says liberty is not absolute
. to pursue any livelihood or avocation. to live and work where he will. New York (1905) pp. Liberty now embeds them in the Constitution
Lochner v. Louisiana (1897) pp. Court says this law is an unreasonable exercise of police power i. not necessarily through Constitution but through law of the land 1. Socrates. Limiting hours of work for bakers had no relationship to public health b. Holding: Yes interfered with freedom of contract and didn t serve valid police power a. 459
1. 3. and for that purpose to enter into all contracts which may be proper. 3. 460-464
1. etc. Rule of Law: The freedoms protected by the Due Process Clause of the Fourteenth Amendment include economic freedoms and prohibit a state from preventing its citizens from contracting with foreign insurance companies to insure property located within the state. The liberty to contract 2. 460 b. NY passed law to limit the hours that baker could work 4. Defined liberty in a very broad way a. necessary and essential to his carrying out to a successful conclusion the proposes above mentioned pg. Facts a. But these are also things that England s court protected. Courts as philosopher kings looking to natural law theory Locke. Issue: does the law s restrictions on working hours deprive the boss and baker of liberty? 5. ii. The right to contract for your labor is protected as liberty under the Constitution c. 458-70)
Allgeyer v. to be free to use them in all lawful ways. Allgeyer i. to earn his livelihood by any lawful calling.The Rise and Fall of Economic Rights as the Substance of Due Process (pp. Embraces the rights of the citizen to be free in the enjoyment of all his faculties.
but not minimum wage laws 65
. because the government should be able to regulate to achieve many other goals. If it was regulating money it looked like wealth and the court would strike it down. Court allowed maximum hour laws for women. but is an illegal interference with the rights of individuals. or which they may agree upon with the other parties to such contracts pg. if it looked like health than the court would uphold it pg. The court says the NY law fails the means test i. with respect to an individual s freedom. The law has to serve proper ends b. Doesn t think limiting the hour of work for the baker will have an effect on the baker s health 1. This is one of the major arguments against Lochner Most people think Lochner was wrong
The Lochner Era
1. Court says they must intervene and protect individual rights Fearing legislative invasion into all aspects of private life. The act is not. 468 2. which requires: 1. It can be restrained if the legislature acted with due process of law/acted with reasonable exercises of the police power iii. within any fair meaning of the term. than it is up to the legislature i. 462 Dissent a. If reasonable people could differ about this legislation. Criticisms of the Lochner era a. Liberty includes the right to contract for your livelihood iv.
7. Proper means to those ends ii. a health law. Pursuit of proper ends 2. both employers and employees.
i. Focus here is on the means ii. that the Court considered arbitrary Is reminiscent of McCulloch a. Critics argue that the decisions during this era were wrong.5 hours e. to make contracts regarding labor upon such terms as they may think best. Questions how you can argue that they can work 10 hours but not 10. consumers and the public generally b.6. the Court used substantive due process to prevent legislatures from enacting laws that drew lines. including protecting workers. Liberty includes the right to earn your living d. It s a pretexual label on the grounds of health when it s really supposed to reduce the disparity in wealth between bosses and workers i.
9. It s subject to the reasonable exercise of the police power.
Issue: Whether the rational basis test is the appropriate judicial review for congressional legislation of common commercial products. they reversed ways b. but not for bakers d. Rule of Law: Congressional legislation of common commercial products will be scrutinized under a rational basis test. Presume that any law that regulates business is constitutional i. Court introduced new standard: a. It permitted maximum hour laws for coal minors and manufacturing workers. Protection of economic rights since 1937 has come under two specific constitutional provisions: the contracts clause of Article I. Big question: are the courts the best institutions to resolve issues of life. 470-549)
1. Need for more government regulations 2. This was a post-New Deal case a. But this deference would not extend to laws interfering with fundamental rights or discriminating against discrete and insular minorities b.
The Modern Revival: ³Privacy´ Rights (pp. Abandonment of the substantive due process principles of Lochner 3. These are pure Lochner and Allgeyer substantive rights cases applied to family rights a. Abandonment of laissez-faire b. The Court would curtail its scrutiny of economic rights and expand its scrutiny of more personal rights.c. not one law has been declared unconstitutional by the SC as violating economic substantive due process 4. Saying the family makes the decisions about how family life should be and not that of the state 2. §10 and the takings clause of the Fifth Amendment
United States v. Many of the same reasons that were also changing things in regards to the CC a. Lochner had strong review of laws. Carolene Products (1938)
3. the law is sustained 6. here it is exceedingly minimal 7. Since 1937. At first the court tried reining in the New Deal legislation then when Roosevelt threatened to put more justices on the court. Unless the challenger can prove that the law has no rational basis. 5. Judicial activism
Demise of the Lochner Era
1. death and infinity or should it be up to the voting process and legislature? 66
. The burden of showing otherwise is on the challenger of that law meaning the government doesn t have to rush in to defend it c. 4. The Court would defer to the government and uphold laws so long as they were reasonable ii.
Rule of Law: An implied right of privacy exists within the Bill of Rights that prohibits a state from preventing married couples from using contraception. one of the people in the couple would need to testify that they used contraceptives 4. In order to prosecute the crime.
Origins: Contraception (pp. But only certain crimes got this treatment. Facts a.Skinner v. asserting that the Court does nto sit as a super-legislature to review legislation on social and economic matters
. Specific Holding: Yes. The Connecticut statute conflicts with the exercise of this right and is therefore null and void 6. 472-83):
Griswold v. Rule of Law: A state law requiring forced sterilization of criminals convicted of crimes of moral turpitude unconstitutionally infringes on the fundamental rights of marriage and procreation and thus violates the Equal Protection Clause of the Fourteenth Amendment. Facts a. Issue: Whether a statute that allows for the forced sterilization of persons deemed to be habitual criminals violates the Equal Protection Clause of the Fourteenth Amendment. Rather than regulating their manufacture or sale b. Justice Douglas (majority) a. This case is for rights. Law making use of contraceptives illegal i. 472-479
1. General Holding: there is a privacy right in the Constitution and it protects married couples and their right to intimacy 7. 470
1. 6. Oklahoma (1942) pp. Refused to rely explicitly on substantive due process analysis. State had a statute that people who have been convicted of a crime three times would be sterilized i. 2. Established right to procreate as a basic liberty/fundamental right 4. what McCulloch was for power 3. Rule of Law: A state law requiring forced sterilization of criminals convicted of crimes of moral turpitude unconstitutionally infringes on the fundamental rights of marriage and procreation and thus violates the Equal Protection Clause of the Fourteenth Amendment. Connecticut (1965) pp. Issue: Whether a statute that allows for the forced sterilization of persons deemed to be habitual criminals violates the Equal Protection Clause of the Fourteenth Amendment. Issue: under constitutional law. does the Constitution protect the right to marital privacy against state restrictions on a couple s ability to be counseled in the use of contraceptives? 5. 3. 2. white collar crimes did not 5.
Man was claiming his natural right to be father. joined by Rehnquist. What s in the zone of privacy that is being created? a. Used the 9th Amendment to support his position that the 14th Amendment DPC protected a fundamental right to marital privacy ii. formed by emanations from those guarantees that help give themlife and substance 8. the various guarantees within the Bill of Rights create penumbras or zones that establish a right to privacy. Dissent in general a. Justice Stewart s dissent a. Gerald D. the right to privacy in marital relations 9. irrespective of it happening through an adulterous affair 3. In finding a right of marital privacy. said that the Court should recognize a liberty interest only if there is a tradition of providing protection. Feels this is a due process violation of the 14th Amendment 13. The court found that an adulterous father has no fundamental liberty interest in creating or maintaining a parental relationship with a child born into another s marriage 2. Justice White s concurrence a. There is no constitutional right to privacy
Michael H. when the tradition is stated at the most specific level of abstraction
. Fourth. Says to look at our societal traditions 12. Instead. Says his job is not to look at this law. Though the Constitution does not explicitly protect a general right to privacy. and Ninth Amendments.b. Some scholars viewed this decision as a return to the substantive due process analysis disavowed by the Court in the post-Lochner era 15. The court here looks to tradition a. Justice Goldberg s concurrence a. the First. 480
1. (1989) pp. Douglas argued that specific guarantees in the Bill of Rights have penumbras. v. Scalia. Justice Black s dissent a. Justice Harlan s concurrence a. create a new constitutional right. his job is to look at the Constitution and see if there s anything in there that invalidates this law and he sees nothing 14. Use of contraceptives by married couples 10. Goldberg looked to the traditions and [collective] conscience of our people to determine whether the principle was so rooted [there] as to be ranked as fundamental 11. Together. Third. This is asking us to do Lochner and we don t do Lochner anymore i. Relies on the 9th Amendment to say why it is covered i.
i. Said that such specificity was necessary because general traditions provide such imprecise guidance. Contraceptives were handed out to single people only which is what he was prosecuted for 6. they permit judges to dictate rather than discern society s views 4. Father have a fundamental interest in their children and this is sufficient for a liberty interest 5. 483 69
. It is the right of the individual. 482
1. The Court said that the biological father had no right to a hearing to determine paternity and could be denied all parental rights. Rule of Law: The right of a potential natural father to assert parental rights over a child born into a woman s existing marriage with another man is not traditionally recognized in historical jurisprudence and is thus not a fundamental right protected by the Due Process Clause of the Fourteenth Amendment. Issue: Whether a state statute that permits the giving of contraceptives to married persons and not to unmarried persons violates the Equal Protection Clause of the Fourteenth Amendment. 9. Baird (1972) pp. 3. Facts a. including visitation 10. Issue: Whether a statute that prevents a possible biological father from establishing his paternity of a child after two years since the child s birth violates the Due Process Clause of the Fourteenth Amendment. It should be noted that the court has additionally not recognized a liberty interest for foster families
Eisenstadt v. 8. married or single. Therefore the right of privacy is not for the married couple but for the individuals of the couple a.married persons. The Court refused to recognize any parental rights for a biological father even though he had lived with the mother and the child for almost a year and a half. 2. Rule of Law: Under the Equal Protection Clause of the Fourteenth Amendment. by implication. to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child pg. Is an EPC case 5. the right of unmarried couples to engage in potentially nonprocreative sexual intercourse 4. Brennan objected to this narrow definition of liberty a. The dispute between Brennan and Scalia was over how the Court should go about interpreting the meaning of liberty 6. a state may not outlaw distribution of contraception to un. The SC held that a state could create an irrebuttable presumption that a married woman s husband is the father of her child. 7. Established the right of unmarried people to possess contraception on the same basis as married couples and.
The Court held that a woman s right to an abortion fell within the right to privacy (recognized in Griswold) protected by the 14th Amendment 4. abortions may be regulated by a state after the first trimester of pregnancy and may be completely prohibited after the point of viability of a fetus unless necessary to preserve the health of the mother. Just like Lochner shouldn t recognize an enumerated right to economic liberty. the word person doesn t include unborn fetuses 5. Rehnquist s dissent a. Once we crossed from married to single in Eisenstadt this becomes an easy case 7. Why should this be decided by the judiciary and not the legislature? 70
. Looks to the state s interest i. However. Texas s argument a. Stewart s concurring opinion a. Compelling interest standard turns court into super legislature b. Strict scrutiny if government invades that right 3. Begins by looking at history shows that bans on abortions weren t always part of American history b. Rule of Law: The constitutional right of privacy encompasses a woman s right to an abortion. Roe shouldn t recognize an enumerated right to abortion 1. 2. 483-487
Abortion (pp. The fetus is a person within the language and meaning of the 14th Amendment i. Court says Constitution does not define person 1. And since abortions were far freer when the 14th Amendment was adopted. Not supposed to use substantive due process they did it in Lochner and the conventional wisdom is that was wrong i. 483-516):
1. Wade (1973) pp. Dissented in Griswold but joins majority here i. Takes the rights out of the marital context and makes them individual rights
The 9th Amendment
1. These cases show the Court s modern substantive due process jurisprudence
Roe v. Should be played out in the legislature rather than the court 8. 9th Amendment: The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people. Safety of patient ii. Human life 6. Right of abortion a constitutional right within the realm of privacy for matters of pro-creating a. Court s decision process a.
a provision of law is invalid if its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability b. of meaning. Let the decision stand in Roe ii. To overrule under fire in the absence of the most compelling reason to reexamine a watershed decision would subvert the Court s legitimacy beyond any serious question pg. of the universe. Takes liberty beyond the procreational choices and to human choices ii. Majority formally adopted an undue burden standard. An undue burden = a substantial obstacle ii. Why wasn t this written more like a women s rights case? a. the majority rejected the heightened strict scrutiny standard to state regulation of abortion 3. Woman s choice b. 24-hour waiting period yes b. rather than the legislature that does not reflect the minority interests 9. Pre-viability = the woman has the right to an abortion without an undue burden from the state 5. At the hear of liberty is the right to define one s own concept of existence. Don t want to imply a bias by the legislature who passed the law they re invalidating b. while reaffirming the essential meaning of Roe a.a. Informed consent yes c. Court hadn t really gotten into EPC cases between men and women at this time these cases came later
Planned Parenthood v. Parental consent yes
. Rule of Law: A state abortion regulation places an undue burden on a woman s right to an abortion and is invalid if its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability. Protect the minority. Second portion stare decisis i. and of the mystery of human life pg. This passage later appears in Lawrence v. 493-507
1. State can regulate up to the viability line so long as these regulations are not an undue burden i. Under this standard. Texas iii. In so doing. Undue burden test a. Structure of decision a. First portion liberty i. 494 1. Casey (1992) pp. Applying under burden test to the statute court upheld 3 of the 4 challenged provisions a. 496 4. 2.
But other recording measures allowed
Casey¶s adherence to Roe
1. if the law contains exceptions for pregnancies which endanger a woman s life c. As per Roe v. Spousal notification/agreement no i." i. Why is this not found to be an undue burden (though it is in Stenberg?)
. (1) A recognition of the right of the woman to choose to have an abortion before viability and to obtain it without undue interference from the state i. 507
1. Signed by President Bush. as defined in Roe? 4. b. Carhart (2007) pp. But exceptions for medical emergencies and allowed judicial bypass d. Holding: the Supreme Court held that the Partial Birth Abortion Act does not threaten a woman s right to abortion under Roe. 2. it bans all "partial-birth abortions 3. women have the right to an abortion at any point of previability. Constitutional protection of the woman s decision to terminate her pregnancy derives from the Due Process Clause
Stenberg v. In 2003. the State s interests are not strong enough to support a prohibition of abortion b. Wade.i. Court a. Before viability. Adheres to Roe s essential holding which has three parts a. Congress passed the Partial Birth Abortion Act. (3) Principle that the state has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child 2. Carhart pp. (2) A confirmation of the state s power to restrict abortions after fetal viability. 508-515
1. Issue: does a ban on intact D&X abortions on living fetuses threaten a woman s right to have an abortion. Applied the undue-burden standard in striking down a Nebraska law that made it a crime to perform an abortion by means of delivering a substantial portion of a living fetus into the birth canal. Upholds the Partial Birth Abortion Act 5. The Partial Birth Abortion Act would be unconstitutional "if its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before a fetus attains viability. Rule of Law: Congress may ban a specific type of partial-birth abortion provided its restrictions on the practice are narrow and clear and the ban does not constitute an undue burden on a woman s right to an abortion. unless necessary to save the life of the pregnant woman
built upon postulates of respect for the liberty of the individual. has struck between that liberty and the demands of organized society. A close scrutiny and stronger justification than that are required
The right to determine how to raise your children
1. Does the Constitution protect the right of parents to determine how to raise their children? a. There s no formula for due process a. The Act provides that anyone who in or affecting interstate or foreign commerce. It is not the particular enumeration of rights in the first eight Amendments which spells out the reach of Fourteenth Amendment due process. Libertarian c. 516-23)
Harlan excerpt from Poe v. Pierce and Meyer i. Yes. or both But the woman being operated on cant be prosecuted pg. which belong to the citizens of all free governments for the purposes of securing which men enter into society 2.i. They differed to Congress findings. Ginsburg s dissent a. That tradition is a living thing Speaking about the Connecticut statute 3. having regard to what history teaches are the traditions from which it developed as well as the traditions from which it broke. Where in the Constitution does this come from?
. Notions of morality can t trump individual rights Lawrence
Family Relationships (pp. it will not do to urge in justification of that abridgement simply that the statute is rationally related to the effectuation of a proper state purpose. 476 1. Ullman (that is within Griswold and is looked at in Moore v. but rather [those] rights which [are] fundamental. Pure Lochner cases 1. Congress gains power to regulate the way abortions are performed through the Commerce Clause a. to a limited extent b. 510 7. That balance is the balance struck by this country. It has represented the balance which our Nation. Since the statute abridges important fundamental liberties protected by the 14th Amendment. knowingly performs a partial-birth abortion and thereby kills a human fetus shall be fined or imprisoned not more than 2 years. City of East Cleveland when court says how we must understand the Court s function under the Due Process Clause) . which found that this procedure is never really necessary to the life of the pregnant woman 6.pg.
City didn t want extended families in the neighborhood they associated that with less stable neighborhoods 4. 2. Justice White s dissent a. Facts a. the court could
. Here Oregon put the thumb on the scale of the grandparents. Invalidated zoning ordinance that restricted dwellings to single families (narrowly defined) 3. 3. This is a perfect example of being in treacherous territory when going outside the text i. 517-519
1. State can t infringe on parents right to exclude children from seeing grandparents (as long as they are fit parents) 4. 520
1. like nuclear families are protected by the Constitution 6. and necessarily encompasses a broader definition of family than just members of the nuclear family. if those visitation rights are opposed by the child s parent because doing so interferes with the parent s fundamental liberty interest in rearing his or her child. a state court may not grant visitation rights to a person. Justice Powell is quite candid about the substance and says that the limit of substantive due process is tradition 5. Rule of Law: Under the Due Process Clause. even when doing so would be in a child s best interest. The ruling is outside of the text using only tradition as a guide a. Court doesn t really have a clear line for determining how any of the family rights cases will be decided a. American civilization recognizes extended families co-habitating 7. Look at what is required by a system of ordered liberty
Troxel v. Grainville pp. City of East Cleveland (1977) pp. Rule of Law: The right of related family members to live together is fundamental and protected by the Due Process Clause. and permits the court to grant such visitation if it is in the best interest of the child. Substantive due process finding that liberty has a substantive definition and content to it and finding that due process has a substantive and not just procedural process to it 2. Issue: Whether a Washington statute that permits any person to petition a superior court for visitation rights at any time.i. When looking at rights looks at the text and then at tradition. Extended families. violates the Due Process Clause protections of a parent s right to rear his or her child. Instead of granting the parent the right to decide who the child lives with. However usually parents have rights above non-marital parents and non-martial parents usually have heightened rights if they ve acted like the parents
Moore v. 2. even though the mother is a fit parent a.
He wins the court says it s fundamental subject to strict scrutiny 4. Missouri Department of Health (1990) pp. Virginia (1967) pp. Is the right to die a Constitutional right? a. The Court recognized not a right to die but a constitutional right to refuse life-saving hydration and nutrition 3. Issue: Whether a statute that prevents certain residents from marrying without first obtaining a court order granting permission to marry violates the Equal Protection Clause of the Fourteenth Amendment. 3. a state may require clear and convincing evidence of that person s wishes to have life-sustaining medical care stopped before actually agreeing to terminate such care. Because of non-biological parents b. State must have a very strong reason for withholding marriage a. 522
1. Issue: Whether a Virginia statutory scheme adopted to pre. No
Cruzan v. Rule of Law: A competent person has a constitutionally-protected right to refuse life-sustaining medical care under the Due Process Clause. Facts a. Man argues for fundamental right to marry b. Woman persisted for 7 years on a feeding tube in a vegetative state with no hope of recovery
. The gay rights community is particularly attracted to this case a. Rule of Law: A state may not restrict marriages between persons solely on the basis of race under the Equal Protection and Due Process Clauses of the Fourteenth Amendment. if one of the gay parents
Loving v.vent marriages between persons solely on the basis of racial classification violates the Equal Protection and Due Process Clauses of the Fourteenth Amendment. and any legislative attempts by a state to limit that right are unconstitutional unless they are narrowly-tailored to the accomplishment of an important governmental purpose. If rendered incompetent. Redhail (1978) pp. 2. State law not allowing you to marry if you re behind on child-support payments a. Director. 3. Also. Court says by withholding marriage here it would just lead to more illegitimate children and having to pay child support for them
The Right to Die (pp. 524-528
1. Interracial marriage 2. 2.
Zablocki v.5. 523-35):
1. Rule of Law: The right to marry is a fundamental right.
which the court says is very different b. 2. 529-533
1. objectively. First. we have regularly observed that the Due Process Clause specially protects those fundamental rights and liberties which are. legal traditions and practices thus provide the crucial guideposts for responsible decision making that direct and restrain our exposition of the Due Process Clause
Vacco v. 533
1. Court looks to tradition i.4. Everything they look at speaks to them that doctors shouldn t kill their patients it is against medical ethics 5. NY allowed the removing of life sustaining devices (Cruzan) but not assisted suicide (Glucksberg) and this was claimed to violate equal protection a. Court says: our established method of substantive-due-process analysis has two primary features: a. Quill pp. Second. Court held that Washington s prohibition against assisted suicide didn t violate the DPC of the 14th Amendment 3. Stands for the proposition that when the state puts protections on the right to die the court will look at it in modest ways
Washington v. there are historical. Here they don t want the plug pulled but a needle put in. Our nation s history. traditional and medical differences between the two. deeply rooted in this Nation s history and tradition (Moore) and implicit in the concept of ordered liberty. permitting the state to allow one but not the other What rights have been protected under liberty by the court? What methodology has the court used to address this? How has the court fashioned rules of law to determine whether the state can infringe rights in this are or not?
Consensual Sexual Choices (pp. Glucksberg (1997) pp. Court concludes that the procedural hoop (clear and convincing evidence that the ill would want the life support removed) does not take away due process 5. Is sex a fundamental right? 76
1. The SC said no. She d kill herself but she s immobile so wants physician s help 4. Court won t recognize a right of physician assisted suicide a. Rule of Law: The right to physician-assisted suicide is not a constitutionallyprotected liberty interest under the Due Process Clause of the Fourteenth Amendment. such that neither liberty nor justice would exist if they were sacrificed b. Facts a. we have required in substantive-due-process cases a careful description of the asserted fundamental liberty interest.
2. Sex falls within the zone of privacy protected by the 14th Amendment
Bowers v. Hardwick (1986) pp. 535
1. The Court upheld a Georgia statute prohibiting private, consensual sodomy between both homosexual and heterosexual couples. a. The Bowers Court s reliance on historical traditions prohibiting homosexual activity
What happened between Hardwick and Lawrence?
1. Two things happened that strengthen the claim of privacy here a. Sweet mystery of life language in Casey about liberty i. Good language for Gay rights advocates b. Romer v. Evans case of Colorado referendum if group wants to pursue their rights by getting a city to pass a gay discrimination ordinance they d have to go to the state 2. Societal terrain had changed substantially a. Gay rights more recognized businesses, universities, some local governments
Lawrence v. Texas (2003) pp. 536-546
1. Rule of Law: The constitutional right to privacy protects a right to engage in private consensual homosexual activity including oral-genital or anal-genital contact. 2. Basically a do-over of Hardwick 3. Facts a. Sodomy law only applied to homosexuals 4. The Court struck down the statute as it does not further a legitimate state interest which can justify its intrusion into the personal and private life of the individual 5. In our tradition the state is not omnipresent in the home a. Liberty includes an autonomy of self 6. Very broad, capacious definition of liberty is given here a. Uses definition of liberty from Allgeyer i. To be free in the enjoyment of all his faculties 7. How the court dismantles/overrules Bowers v. Hardwick a. Said Hardwick got the history and tradition wrong i. The Bowers Court s reliance on historical traditions prohibiting homosexual activity was largely overstated b. The central holding of Bowers demeaned the lives of homosexual persons. Petitioners were adults at the time of the alleged offense. Their conduct was in private and consensual. Petitioners were entitled to respect for their private lives c. Ruling that homosexual sodomy is unconstitutional is in effect the same as ruling that homosexual rela- tionships are themselves unconstitutional. Such a determination would impinge upon the
fundamental right of homosexuals to en- gage in intimate personal and familial relationships. 8. The government must respect your private choices pg. 540 a. The Court said: Increasing legal and social acceptance of homosexual behavior and the right to privacy in consensual conduct between adults. The Court s recent decisions in cases such as Planned Parenthood v. Casey (1992) and Romer v. Evans (1996) further evidence such a trend. The right of privacy announced in these decisions and de- rived from the Bill of Rights encompasses the right of consenting adults to engage in homosexual activity. 9. The court looks to other states a. The Court noted that the reasoning and holding of Bowers had been rejected in other nations, and there was no showing that the US governmental interest was more legitimate or urgent b. Most states that currently had laws prohibiting homosexual conduct largely admitted a lack of prosecution of individuals for engaging in such conduct. 10. What level of scrutiny did the court use during this case? 11. A lot of the language is gay rights specific but it also applies to heterosexual couples a. Is it a gay rights case or a sexual privacy case? 12. What was the state s interest for having such a law? 13. Times change and the law must change to reflect the current beliefs a. Majority talks about the Living Constitution pg. 540 14. Justice O Connor s concurrence: a. TX law invalidates the law under the EPC i. Moral disapproval does not satisfy denying equal protection 15. Justice Scalia a. You haven t identified it as a fundamental right b. It s been de facto given intermediate scrutiny c. Pg. 544 gives a list of things now out the window because of this law
McDonald v. City of Chicago (2010 Supplement, pp. 30-38)
1. Court held that the right to bear arms is a sufficiently important liberty interest 2. Answer the objective question: is right to bear arms part of DPC? a. Yes it is 3. Justice Steven s dissent a. Talks about putting a substantive definition into liberty b. Talks about Cardozo s ordered liberty test c. Attacks the conservative approach to traditions i. Saying that you don t get restraints on the justices by looking to tradition
d. Due Process Clause safeguards the ability to independently define one s identity, individual s right to make certain unusually important decisions that will affect his own, or his family s destiny, and the right to be respect as a human being pg. 32 i. But where does this come from? 4. Justice Scalia (concurring) a. Says the Stevens approach does not limit the court in anyway b. Has real animus towards the reference to what other countries do c. Pg. 38 says history is not a perfect way but it s the best way we ve got and is certainly better than Stevens approach i. Say it s much less subjective ii. But why s the strict textualist/conservative relying on history? 5. Bottom line is 4 justices using Due Process saying the right to bear arms is deeply rooted in our traditions
The Modern Revival: Excessive Punitive Damages
BMW of North America, Inc. v. Gore, pp. 39 (Supplement)
1. Issue: Whether a state trial court s award of $2 million in punitive damages to a purchaser of a pre-delivery damaged car violates the Due Process Clause of the Fourteenth Amendment. 2. Rule of Law: A state s assessment of grossly excessive punitive damages against a defendant violates substantive due process. 3. Issue before the Supreme Court whether punitive damages that are grossly excessive violate Due Process 4. Majority gives a three part test to determine whether an award is grossly excessive a. Degree of reprehensibility i. State may not assess punitive damages for unlawful conduct that occurs outside its jurisdiction (?) b. Ratio i. If more than four times the amount of compensatory damages than it s pushing it c. Sanctions for comparable misconduct i. Allows the court to look to penalties in similar cases 5. Another example of substantive due process substance of jury s determination
Phillip Morris, USA v. Williams (2010 Supplement, pp. 39-50)
1. Justice Thomas (dissent): the Constitution does not constrain the size of punitive damages awards Note #2 on pg. 49-50 of Supplement Is he accurately describing the rules in the cases?
The 5th Amendment does not prohibit government takings of property. Is it being taken? c. the constitutional issue is to determine when a regulation of property is so extensive that it amounts to a de facto taking of property 8. needed to condemn some property to do so 7. The Fifth Amendment s guarantee against taking without just compensation was one of the earliest constitutional protections of economic rights incorporated into the 14th Amendment a. Is it being taken for public use? i. the SC has watered down these two through various doctrines a. When that occurs. When a taking is acknowledged. state and local 3. If so. This is the least covered feature of the 4 6. There s been more action on the Takings Clause (TC) then the Contracts Clause (CC) 4. but only requires just compensation
The Takings Clause (pp. Takings Clause: [found in Fifth Amendment] Requires that just compensation be paid to the owner of private property taken for public use. The public use requirement ensures that government compulsion is used only to secure public benefits ii. 551-92)
1. Sometimes the government denies it has taken property. Four basic features of the TC a.ECONOMIC RIGHTS: THE TAKINGS AND CONTRACTS CLAUSES
1. With respect to the CC and the TC. Regulatory taking = statutes or laws that would limit what you can do to your house or land (other than a nuisance abatement) a. A major difference between the substantive due process protection of economic liberties and the takings clause is that substantive due process was far more wide-ranging: it permitted courts to void statutes because the statutory objectives were thought to be illegitimate. Bulldozer taking = extended the runway at La Guardia. claiming it has merely regulated property. Applies to federal. 2. Issue: should the court complete the dilution of those rights so that when any economic claim comes before the court you have a one size fits all standard? 2. the major constitutional issue presented is determining whether an acknowledged and fully compensated taking is for public use d. Regulatory takings
. Is it property? b. are you provided just compensation? i. The TC applies to all types of property tangible or intangible and applies to executive and legislative actions that effect a taking 5.
Issue: Whether the public use requirement of the Takings Clause of the Fifth Amendment prohibits a state from taking. 51-52 of the Supplement
The Public Use Requirement (pp. 552-62)
1.jurisprudence. Looses out on what the property interest would be tomorrow b. The test is a conceivable public purpose 7. Judicial actions of the state can also amount to a taking a. Pg. Court should generally presume an impermissible private purpose when a. Transfers are so suspicious b. Public Use = used by the public a. They also say that what s happening here is not for public use 6. with just compensation. Land could be seized and distributed in order to cure land oligopoly (broad conception of public use ) 4. title in real property from private lessors and transferring it to private lessees for the purpose of reducing the concentration of ownership of private property. Rule of Law: A state s use of eminent domain to condemn property from private individuals and redistribute it to other private individuals consti81
. Rationally related to a legitimate government interest 5. 3. Midkiff (1984) pp. does not concern itself with the legitimacy of the state s regulatory objectives. Extremely broad interpretation of what public use is and therefore a broad allowance for taking property c. The court took a one-size fits all approach here
Kelo v. Procedures employed are prone to abuse c. 552-555
1. City of New London (1984) pp. 555-561
1. it merely examines the means by which those objectives are sought to be attained 9. Rule of Law: A state may use the eminent domain process to take property that is heavily concentrated in the hands of a few private landowners and redistribute it among the general population of private individuals. The court used a minimal standard of review a. Either owned by the public or open to the public b. by contrast.
Hawaii Housing Authority v. Public Use Clause: [found in Fifth Amendment] Expressly authorizes eminent domain in matters that positively impact the general public. Purported benefits are trivial or implausible 2. Justice O Connor s definition: a public use is anything within the police power (which basically means anything) i. Main argument of the people who did not want their land taken even though they were being compensated at the fair market value a. Issue: Whether a state s exercise of its eminent domain authority to condemn private property and sell it to private developers for the purpose of creating new jobs and increasing tax revenues violated the public use requirement of the Fifth Amendment. 2. 2.
Facts a. The purpose of giving more stringent review is to look out for the weak and vulnerable b. Since they couldn t have categories against economic development. they are going to defer to the city 7. Permitting minimal judicial scrutiny of zoning work would ultimately benefit more communities and people 10. Regulatory takings: the government shows up with a law or statute that restricts what you can do to your house (mine underneath your house. But can the Congress by statute change the Takings Clause? c.tutes a public use under the Fifth Amendment if it is rationally related to a conceivable public purpose. But the court has been reluctant to find regulatory takings 3. Bills introduced in Congress to have some effect on the outcome of Kelo i. Court said this plan unquestionably serves a public interest a. In the wake of Kelo virtually every state has considered changes to its limits on eminent domain b. Were going to use eminent domain to get property from those unwilling to sell and would compensate them 4. 3. Dissent O Connor (wrote majority in Hawaii Housing Authority) a.) a. etc. To the extent that regulations diminish the value of property. Why would the liberal justices grant this power to the developers? a. Many civil rights groups upset
Regulatory Takings: When Does Regulation Become a Taking?
1. A tea party like case 5. The court rejected rigid formulas and scrutiny 6. The local zoning czars would know what s better for everybody then the people affected b. development not open to use in the public. When legislature s purpose is legitimate and its means are not irrational. City approved development plan to revitalize city which had economic problems. they could be deemed takings requiring just compensation a. The opposite of a bulldozer taking 2. Legislative reaction to Kelo a. Court applies 3 categorical rules to assess whether a regulation is a de facto taking
. add a second floor. takings are not to be taken up by the federal courts are going to defer to the zoning boards that exist 8. The weak and powerless will be bulldozed by the developers 9. etc.
Facts a. There is no taking. Condition cases a. Nolan no connection between providing public access to the beach and the development ban s goal of protecting sight lines ii. Classic weighing of the public benefit and the homeowner 5. Issue: Whether a state regulatory act constitutes a taking under the Fifth and Fourteenth Amendments if a serious diminution in the value of the property results from the alleged taking. no matter what the economic impact of the regulation.a. then all are the same and everyone
. v. Kohler Act said you can t continue mining rights if it will result in damage to the housing above it 4. Nolan and Dolan the government requires something of you that would be a taking i. Outside of these three limited rules are balancing situations a. Dolan to expand store would have to give easement for flood plain and bike path 1. Pg. No reason for flood plain to be public 3. Justice Holmes a. If you live in a residential area where everyone s house is equally limited in height. Proper exercise of the police power b. but not strong enough 2. Reciprocity of advantage i. 564 lays out a test for when the balance favors the property owner 6. if government regulation of property merely abates a common law nuisance b. Justice Brandeis a. A taking has occurred when government regulations produce a permanent physical occupation of private property. Nexus was found. 563-565
1. A taking has occurred when government regulations (other than nuisance abatement) leave the owner with no economically viable use of his or her property 4. no matter how slight c. No reason for bike path
Early Approaches (pp. Rule of Law: A state regulatory act constitutes a taking requiring the payment of just compensation under the Fifth and Fourteenth Amendments if a serious diminution in the value of the property results from the alleged taking. 563-67) Pennsylvania Coal Co. Mahon (1992) pp. Question: is this is a taking of their property requiring the government to pay for it? 5. 3. 2.
Only a small piece of the pie is taken. Complete destruction of all economically beneficial use
. Issue: Whether the complete destruction of economic value of private property by a state regulation constitutes a taking of private property for a public use under the Fifth and Fourteenth Amendments and requires the payment of just compensation. DeBenedictis (1987) pp. Lucas and Loretto
Lucas v. as the coal company has several coal properties
Miller v. Rule of Law: A state regulation that completely deprives private property of all its economic value constitutes a taking under the Fifth and Fourteenth Amendments that requires the payment of just compensation to the property owner. Court said it was ok for VA to favor one bunch of property owners against another a. unless the economic activity prevented by the regulation is not part of the owner s initial title or property rights when acquiring the property. Prior to this case it was generally thought that the Takings Clause reached only a direct appropriation of property. Maybe the rust from the cedar trees is considered a nuisance
The Categorical Approach (pp. 566
1. v. Schoene (1928) pp. 568-575
1. or the functional equivalent of a practical ouster of [the owner s] possession
Keystone Bituminous Coal Assoc. The Court found a modern version of the Kohler Act not to be a taking a. 2. PA s Subsistence Act required sufficient coal to be left in place to support the surface b. Owners of cedar trees were compensated for the cutting of the trees but were denied compensation for the taking of the trees 4. South Carolina Coastal Council (1992) pp. VA law required removal of all red cedar trees within two miles of an apple orchard whenever it was determined that the cedars hosted cedar rust fungus. a parasite that inflicted no damage whatever to the cedars but would ruin apple orchards located within two miles of cedars harboring the fungus 3.benefits your property rights take a little of a hit but so do everyone else s 1. But why didn t the coal case come out the same way? a. The majority said there is no such opportunity here as not everyone is effected 7. Facts a. Balancing case that rivals Keystone Bituminous 2. 566-567
1. The apple business was an important industry for the state creating a preponderate public interest 5. 3.
Regulations that compel the property owner to suffer a physical invasion of his property 1. A permanent physical occupation caused by the government is basically a per se taking
. what s the public interest in doing so?
Loretto v. Exception 1. State wanted an unspoiled sea shore 5. In general. the width of a telecommunications cable running through an apartment 3. State made law saying all apartment building owners must allow for such installation. Modest occupation. Penn Central comes in b. (1982) pp. Teleprompter Manhattan CATV Corp. Nuisance is typically looked at as something that a neighbor could protest and take legal action for
The Balancing Approach (pp. Permanent and physical occupation 2. Regulations that destroy all economically viable use of private property and that are not abatements of public or private nuisances are takings per se 1. the court has required compensation b. The takings clause is violated when land-use regulation does not substantially advance legitimate state interests or denies an owner economically viable use of his land ii. Court said there are two discrete categories of regulatory action as compensable (remedied with compensation) without case-specific inquiry into the public interest advanced in support of the restraint a. (2) Destruction of all economically viable use i. (1) Permanent physical occupation i. In both categories the property owner carries the burden of proof 6. the government would give $1 each year for the inconvenience 4. Nuisance a. Court says the government can take away all the value of the property if going to abate a public nuisance b. no matter how minute the intrusion and no matter how weighty the public purpose behind it. Court notes the denominator problem 7. The court thinks it may resist compensation if the owner s estate shows that the proscribed use interests were not part of his title to begin with c. Harm to property owner. 577-86)
1. SC held that it was a taking a. Balancing a. 575
1.4. Facts a. Government s justification it serves the public interest 8.
Tahoe Regional Planning Agency (2002) pp. The majority said this was a temporary taking and thus the developers should not be compensated. Penn Central claimed that the Commission s refusal to permit development above Grand Central constituted a taking. Dissent relies on Lucas
. 2. 3.Penn Central Transportation Co. New York City (1978) pp. v. the extent to which the regulation has interfered with the owner s reasonable investment-backed expectations and the character of the government action involved in the regulation. In prior cases it has been established that when there is a taking for the public s benefits. Balancing approach 4. Rule of Law: In determining whether a state regulation constitutes a taking under the Fifth and Fourteenth Amendments. Everyone in the city benefits from the landmark designation of a building 5. 3. The court said you can t cut the property into different time zones 6. Moratorium on development around the basin of the lake while the question of development is being studied b. 577-579
1. Facts a. Rule of Law: A temporary moratorium on development imposed for the purpose of developing a comprehensive land-use plan does not constitute a per se taking of property for public use requiring the payment of just compensation under the Fifth Amendment. Developers and owners of property went to court claiming it ws a regulatory taking 4. Temporary so that the preservation committee could determine how to keep Tahoe beautiful 5. then the public will pay for the taking
Tahoe-Sierra Preservation Council v. as it was just for a limited period of time a. The temporary denial of all viable use of land for six years is a taking b. The Court ruled that the landmark regulations were not a taking a. 2. The dissenters say it was actually a 6 year moratorium and that thus they should be compensated a. Issue: Whether the Landmarks Preservation Law as applied to Penn Central constitutes a taking for public use of the company s property that requires the payment of just compensation under the Fifth and Fourteenth Amendments. Issue: Whether a moratorium on development imposed during the process of devising a comprehensive land-use plan constitutes a per se taking of property requiring compensation under the Takings Clause of the United States Constitution. courts should consider the economic impact of the regulation on the owner. 580-585
the temporary moratorium is lifted
Conditional Regulatory Takings (pp. 593-605)
1. In this area the court has scrutinized zoning more than others
Nollan v. The Court found that the government had not established a nexus between a legitimate governmental objective of nondevelopment and the means of exacting the easement
Dolan v. The CA Coastal Commission wouldn t grant a permit unless he recorded an easement permitting the public to cross his beachfront so as to move more easily btwn public beach areas to the north and south of Nollan s property. Facts a. Issue: Whether the city s conditions for granting a permit were so disconnected from a state interest as to constitute a taking of property requiring payment of just compensation under the Fifth and Fourteenth Amendments. dilapidated beachfront cottage and replace it with a larger residence in keeping with the neighborhood. They want Nollan to address something that is caused by what he wants to do 3. requiring payment of just compensation unless the exaction is roughly proportional to the impact of the proposed development on the regulatory interest. Nollan contended the condition was a taking 2. Blaisdell (1934) pp. No State shall pass any law impairing the obligation of contracts 2. and when. Section 10 which bars states from impairing contractual obligations a. The Court held that conditioning a building permit on a landowner s grant of a public easement across his land constituted a taking. City of Tigard (1994) pp. Applies only if a state or local law interferes with a contract
Home Building & Loan Association v. Nollan wanted to demolish his small.
The Contracts Clause (pp.
I would hold that regulations prohibiting all productive uses of property are subject to Lucas per se rule. Contracts Clause of Article I. California Coastal Commission (1987) pp. 587-589
1. Contracts clause is not an absolute utterly unqualified restriction of the State s protective power
. regardless of whether the property so burdened retains theoretical useful life and value if. 2. Rule of Law: A government regulation seeking to exact an individual s property from a proposed development constitutes a taking.
v. Is there significant or legitimate public purpose i. Spannhaus (1978) pp. The state is impairing its own contract 2. and subject to the jurisdiction thereof. Inc. 3. Conflicts of interest here a.2. Court applied a two-tiered inquiry a. nor shall any State deprive any person of life. Kansas Power & Light Co. Issue: Whether a state statute that repeals a previous contractual obligation with bondholders not to use toll funds to improve railroad transit violates the Contract Clause of the Constitution. are citizens of the United States and of the State wherein they reside. Arguably there has been b. without due process of law. And if so is an adjustment of responsibilities reasonable?
EQUAL PROTECTION OF THE LAWS
Equal Protection Clause: All persons born or naturalized in the United States. Whether state operated a substantial impairment of the contractual relationship i. liberty. Issue: Whether a state law that regulates the price of natural gas sold at wellhead in the intrastate market violates the Contract Clause of the United States Constitution. How s it different from the Trust v. Rule of law: The impairment of a contract between a state and private bondholders may only be upheld if it is both reasonable and necessary to serve an important public purpose. or property. Issue: Whether the application of pension funding charges to a company under Minnesota s Private Pension Benefits Protect Act violates the Contract Clause of the United States Constitution. 598-601
1. (1983) pp.
Allied Structural Steel Co. v. 2.
Energy Reserves Group. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States. Rule of Law: A state may not pass legislation that retroactively and significantly affects the contractual obligation of an employer to provide a pension plan for its employees. 3. states may constitutionally impose increased limitations on the freedom to contract if those limitations help address the emergency. nor deny to any 88
. 3. New Jersey (1977) pp. v. Rule of Law: In times of economic emergency or other exigent circumstances. Court is of the opinion that the Minnesota statute as here applied does not violate the contracts clause
United States Trust Co. 601-603
1. New Jersey case? 2.
Does the government meet the level of scrutiny? i. When law treats people differently but makes no purpose for the law doing so a. Rational basis/minimum scrutiny legitimate purpose ii. But here we re a little more concerned on the means 5. Strict scrutiny close fit a. Intermediate scrutiny end has to be important 3. Amendment
Sec. Is there a good fit between means and ends? 7. blacks) 6. EPC of the 14th Amendment was designed to impose upon the states a duty to prohibit legislative classifications and administrative behavior that discriminated against particular groups in the distribution of certain fundamental rights 3. The fact that a law is underinclusive and/or overinclusive does not mean that it is sure to be invalidated just used to evaluate the fit between the government s ends and means 2. Others are facially neutral but have a disparate impact 1. We re once again in the land of means and ends like substantive due process i. Some ends viewed as valid in the mid-1900s. Insufficient to prove a racial or gender classification 2. demonstrating a race or gender classification requires proof that there is a discriminatory purpose behind the law b. Strict scrutiny end must be compelling 2. Same laws are facially discriminatory iii. Limits state and local government equally
. The legitimacy of ends can change with time a. Means is necessary the least restrictive alternative 4. Why me? is the constant question 2. 607-12)
1. What is the appropriate level of scrutiny? c. The Court evaluates both the law s ends and its means 1. If facially neutral. Focus on under-inclusive/over-inclusive 1. 1 of the 14th
Introduction and Levels of Scrutiny (pp. All EP issues can be broken down into three questions: a. What is the classification? i. How is the government distinguishing amongst people? ii. are no longer viewed as permissible ends (women.person within its jurisdiction the equal protection of the laws. State has come to mean any local government as well a.
All EPC cases pose the same basic question: is the government s classification justified by a sufficient purpose? 2. Most cases will be addressed with this bottom tier f. Rational basis test b. Sharp court had to bring the EPC into the 5th Amendment to limit federal government 9. d.8. Burden i. Minimal scrutiny a. It s under the 14th Amendment b. Seen it in the DCC and PIC b. Law is upheld if it is proved necessary to achieve a compelling government purpose i. Law is upheld if it is rationally related to a legitimate government purpose i. Race or national origin ii. It s enormously deferential to the government h. As long as there s rational relationship between classification and government goal that s enough to satisfy minimal scrutiny 3. Designed to give protection to the outsider c. Can show its not legitimate which is hard to do ii. Classifications i. Law is assumed valid and burden is on challenger (plaintiff) i. The means chosen only need be a rational way to accomplish the end e. So when looking for solutions to a problem you would want to canvas all three of them (some wouldn t apply for certain situations)
Levels of Scrutiny
1. Bowling v. Discrimination between newcomers and out-of-staters is also in equal protection a. Strict Scrutiny: a. Sometimes alienage c. Classifications i. Default rule if not strict or intermediate scrutiny c. Or fail to show that it s not but show that the justification does not rationally relate i. Also limits the federal law why is this a problem? a. Must show there s no rational basis with any legitimate government interest g. Government must show that is cannot achieve its objective through less discriminatory alternatives
. Top-tier everything is reversed from the rational basis review the law is assumed invalid b. Govt s objective need not be compelling or important ii.
As is the ability of the group to protect itself Part of the task is to look at the objectives of classification figure out whether the means of the classification have a good fit with the objectives Some special interest group can get a law passed making it easier for them and harder for their competitors once this happens under minimal standard of review there s not going to be relief from the court
1. But when they under-regulate there s usually someone being picked on
d. Government has burden of proof i. Classifications i. why am I part of the solution? 2. Middle Tier b. why aren t they included? 3. but so do they. Government has burden of proof d. These people would say. Over-inclusive a. Difficult for a government to win these cases Important distinction between rationally related v. Illegitimate children Some cases don t fit this three-tiered model The history of discrimination against the group is relevant to the Court in determining the level of scrutiny a.
8. Gender ii. Sometimes the courts seem to be more concerned with laws that overregulate a. 7.4. Must show the classification is to serve a compelling government interest ii. 5. yes. I cause a problem. 9. but must have a substantial relationship to the end being sought f. A law is upheld if it is substantially related to an important government purpose i. but it must characterize objective as important government purpose c. necessary Intermediate Scrutiny: a. Laws which impact negatively what has been identified as a fundamental interest protected by equal protection e. I m not part of the problem. Government purpose need not be compelling. Classification must substantially advance an important government interest/purpose e. People here say. Under-inclusive a.
6. The means used need not be necessary. Regulate less than you need to achieve the objective b. Those which regulate more than you need to in order to achieve the objective b.
Voting rights ii. What about economic minorities why do they not get such protection? a. Some get a closer look than others a. Rooted in a union of concerns about democratic process. But a law against women being police officers would probably get a closer look 2. Maryland. Access to the judicial process iv. first articulated in McCulloch v. 629 a. national origin. For instance mandatory retirement ages for police officers would not b. They don t have a stigma. Travel iii. The opticians case b. or membership in any other discrete and insular minority the suspect class strand of equal protection jurisprudence prohibits government discrimination against groups of people based on race. but after looking at the classification it makes no sense (no relationship between the two) i. Three types of legislative classifications that might be suitable for heightened scrutiny a. Court is saying legislature has told the goal. The Court often considers the ability of the group to protect itself through the political process 4. Every now and then the court will apply minimum scrutiny in a way that knocks out classification see pg. that the courts have a heightened role in protecting the democratic process from structural distortions c. (1) Those that are in facial conflict with specific rights guaranteed by the Constitution b. Reflects the theme. alienage. (3) Those that classify on the basis of race. religion. and the perception that such classifications are rarely germane to any legitimate government objective ii. (2) Those that inhibit the democratic process the fundamental rights strand of equal protection jurisprudence prohibits discrimination with respect to certain fundamental rights i. haven t been used to disadvantage people 5. illegitimacy and certain other criteria i. Age discrimination is not protected by the EPC 3. gender. It used to be that they d have to have the identity to be picked on 6.Means: is there a rational relationship between the means and the ends?
. Don t have to give heightened review but just say no rational relationship Minimal Scrutiny: the default level of review .Classifications
1. Is identifiable an important characteristic? a. the historical reasons for equal protection.
1. The Court was not troubled by the fact that the City prohibited certain signs on vehicles but allowed others a. Opticians are the least educated of eye specialists 4. Opticians get minimal review
. more educated then the opticians.Minimal Scrutiny: The Default Level of Review
Means: What is Not Rational? (pp. They were likely trying to give the eye doctors another referral. 612-19)
Railway Express Agency. New York (1949) pp. Talking about a made-up legislative purpose here 4. On the EPC claim. The Court said that equal protection does not require the eradication of all evils of the same sort 5. Why did Oklahoma want to restrict opticians? a. Issue: Whether an Oklahoma state law prohibiting the fitting of lenses by an optician without prescriptive authority from a licensed optometrist or ophthalmologist in the state violates the Fourteenth Amendment. Facts a. 2. Rule of Law: A state law that is substantially under-inclusive does not necessarily violate the Equal Protection Clause because a state may conclude rationally to address a public problem in phases. The word may appears very often in the case b. 612-614
1. lobbied the legislature) 5. 3. Issue: Whether New York s regulation of advertising on business vehicles violates the Equal Protection Clause of the Constitution. Rule of Law: A state may regulate a business if its legislature determines there is a particular health and safety problem at hand and that the regulation in question is a rational way to correct the problem. REA sold space on the exterior sides of trucks for advertising b. v. (1955) pp. Government can address a problem one step at a time so it could start by just outlawing the advertisements on the REA trucks and other trucks that weren t advertising their own business b. it does not contain the kind of discrimination against which the EPC affords protection 6. Justice Douglas concluded that even if the City s opinion that the classification reduced traffic hazards was incorrect. 2. Justice Jackson s concurrence a. 3. Even on the minimal tear you must show a relationship between the means and the ends
Williamson v. Inc. Facts a. Lee Optical Co. more business (probably these eye doctors. Oklahoma statute that prohibited opticians from duplicating or fitting lenses without a prescription from an optometrist or ophthalmologist b.
Facts a. Issue: Whether the Railroad Retirement Act s classification of some employees as eligible to receive windfall benefits while some were ineligible was arbitrary and not rationally related to a legitimate state purpose. Rational review with bite a little more teeth then the bottom review a. a. Rule of Law: Under rational basis review. 3. If you re still employed or have a connection with the Rail Road industry when the law was passed then you could 5. and that it might be thought that the particular legislative measure was a rational way to correct it. Isn t at the level of strict scrutiny c. The court upheld the law under minimal scrutiny. and any means that would achieve this hypothesized goal b. 2. because they may be unwise. Focuses on the ends the ends to what Congress was pursuing 4. Court willing to accept any plausible reason as the goal of the law. The Court stated the law need not be in every respect logically consistent with its aim to be constitutional. Requires more of a determination of what the actual goals were b. Congress actual purpose behind a law is irrelevant and the law must be upheld as not violating the Fifth Amendment if any state of facts may reasonably be conceived to justify its discrimination.a. The language of the statute was clear Congress intended what it enacted
. Doesn t look for a rational relationship (not crazy) but a reasonable relationship 6. improvident. finding that the no drugs policy is supported by the legitimate inference that so long as a treatment program (or other drug us) continues. a degree of uncertainty persists
United States Railroad Retirement Board v. Beazer (1979) pp. 615
1. The question was those between the two could they double dip into both benefit plans i. Upheld ban on methadone users from being hired 3. or out of harmony with a particular school of thought 6. This also became the current standard of judicial review for economic regulation
New York City Transit Authority v. Majority (Rehnquist) a. The reasons were plausible b. If no more than 10 years you couldn t double dip c. Minimal review 2. Fritz (1980) pp. If in the system more than 25 years than you could double-dip no matter what b. It is enough that there is an evil at hand for correction. Said: the day is gone when the Court uses the DPC to strike down state laws regulatory of business and industrial conditions. 616-619
The law undercuts vested interests that the law was supposed to uphold i. But the court says it's not convinced that the stated goal is the actual goal. there is no reason to interfere with the outcomes produced by the tug-of-war of politics. Gave a different purpose to what Congress implemented i. The test is rationally related to a legitimate stated purpose i. 619
Ends: What Purposes are Not Legitimate? (pp. 3. it seems to retard the goal rather than advance. Issue: Whether a law which terminated food stamp benefits for a class of persons comprised of unrelated people living in the same households violated the Due Process Clause of the Fifth Amendment. 620-29)
United States Department of Agriculture v. at least with respect to economic legislation. Said they won t require that Congress tell them what it s purpose was 7. The actual purpose version proposed by Justice Brennan assumes that the political process cannot be trusted always to be free of defects pg. It s tough to tell whether this is just an unreasonable relationship case (in which case it would be available in Fritz and other cases) or if it s a reasonable relationship for hostile purposes
. So no rational basis 8. 620-621
1. The majority s very deferential version of minimal scrutiny assumes that. To alleviate hunger b.c. Said this formula needs something c. This case is cited for the fact that when the purpose seems to be to harm a certain group than it s viewed as an improper purpose 2. Said the purpose of the law was that some people would get windfalls an others wouldn t d. By redefining households it does not help to further the goal. help the farmers 5. Intention of act a. Rule of Law: A state regulation that arbitrarily creates two classes of persons and deprives one class of government benefits violates the Equal Protection Clause and Due Process Clause of the Fifth Amendment because it is based on a mere legislative preference for one class that is not rationally related to a legitimate state purpose. To prevent hippy communes from receiving benefits (probably wasn t all of Congress) c. 6. Dissent a. If this were a plain rational relationship case then you'd say that there's no rational relationship. Moreno (1973) pp. Court focuses on stated purpose of the act to alleviate hunger. The means and ends were not related b. 4.
Fear of gays having too much political power c. 621-627
1. Rejecting Colorado s argument that the amendment simply put homosexuals in the same position as all other persons. or state legislature. Dissent (conservatives) a. can only get them through the people of the state i. the Court stated that Amendment 2 placed homosexuals in a class by themselves. you can t get them through your local legislature. Romer + Lawrence + Loving = right of same sex marriage? a. The Colorado State constitutional amendment that the Court struck down here not only repealed local ordinances prohibiting discrimination against homosexual persons but also prohibited all future legislative. Purports to be an animus case 5. Facts a. or judicial action at any level of state or local government designed to protect these individuals b. we re not asking for a compelling objective. depriving only them of protection against discrimination 6.Romer v. Not a case where sexual orientation is viewed as a suspect or semi-suspect classification ii. If you re seeking protections set out. CO s objective: to protect personal and religious objections to homosexuality 7. 2. Issue: Whether Amendment 2 to the Colorado Constitution which prohibited state and local governments from enacting anti-discriminatory legislation to protect homosexual persons violated the Equal Protection Clause of the Fourteenth Amendment. Is this a heightened minimum review case or an animus heightened review case? 4. we re asking for a legitimate objective a. Court says this is pure equal protection because homosexuals aren t able to gain rights through local or state legislatures the way that other groups are in this situation they d have to lobby the citizenry/entire state 8. executive. The Constitution demands neutrality in the law and bans classes among citizens Plessy
Same Sex Marriage?
1. If we re at the bottom tie of review here. Principle from Romer = can t single out gays or lesbians for different treatment without a stronger reason
. Opposition to homosexuality is not as bad as that to race or religion 9. Rule of Law: A state law that neither burdens a fundamental right nor targets a suspect class of persons will be upheld under the Equal Protection Clause of the Fourteenth Amendment if it bears a rational relation to a legitimate state purpose 3. Evans (1996) pp. Majority is taking sides in a culture war b.
legislation that distinguishes between the mentally retarded and others must be rationally related to a legitimate governmental purpose a. 2. Facts a. then we might be doing harm by discouraging legislatures from being helpful 6. To withstand equal protection review. That flood waters in the area could pose a problem 7. and whether the review of such a denial required intermediate scrutiny. 629-40)
City of Cleburne. So. Texas v. Court said no rational basis for the law even if some of these ends are legitimate 8.i. Cleburne City required permit for the mentally challenged but they didn t require this permit for other group living situations i. A strong argument was made saying laws discriminating against mentally retarded require at least intermediate scrutiny like laws based on gender 5. 3. Lawrence = can t infringe upon the intimate rights of people c. and thus any legislative regulations affecting their rights are subject to rational basis review and not intermediate scrutiny. Court: The short of it is that requiring the permit in this case appears to us to rest on an irrational prejudice against the mentally retarded a. Court says minimal scrutiny a. Court points out that if we d give higher scrutiny to laws that treat mentally retarded differently. 630-633
1. End that city claimed it was serving: a. Can t have separate legislation b. Rule of Law: The mentally disabled are not a quasi-suspect class. Incredibly under-inclusive law only group home that was required a permit 4. Feared high school students across the street would harass the mentally challenged b. this is not just plain old rational relationship it s rational relationship with some animus going on i. Issue: Whether a city s denial of a permit for a group home for mentally disabled persons violated the Equal Protection Clause of the Fourteenth Amendment. A little bit like a Romer or Moreno case
. Loving = marriage is a fundamental right i. Cleburne Living Center (1985) pp. Right to marry person you love can t be taken away except for a compelling reason
³Enhanced´ Minimal Scrutiny: Means? Ends? Both? (pp. The court wont let private prejudice rule public action 9.
They say this is clearly heightened review b. and to what extent those interests should be pursued. Brennan. Similar oversight by the courts is due when state laws impinge on personal rights protected by the Constitution. how. The general rule gives way. Issue: Whether a state may constitutionally deny free public education to undocumented school-age children when that state provides such education to children who are citizens of the United States or legally admitted aliens. Rule of Law: A state legislative classification that denies public education to undocumented school-age children violates the Equal Protection Clause of the Constitution unless the classification furthers a substantial goal of the state. 634-639
1. Legislative classifications based on gender also call for a heightened standard of review. 2. For these reasons and because such discrimination is unlikely to be soon rectified by a legislative means. pg. Blackmun (concurrence in judgment in part and dissenting in part) a. Marshall. Doe (1982) pp. Facts a. 3. however. Does the court treat this as a suspect classification? No
. or national origin. When social or economic legislation is at issue equal protection allows the states wide latitude. TX legislation aimed to deny undocumented children from receiving free public education 5. the Court struck down the challenged law because it did not pass the required rationality test 12. and the Constitution presumes that even improvident decisions will eventually be rectified by the democratic process. these laws are subjected to strict scrutiny. In such cases. You could not look so closely at the means or the end if it s not heightened review 11.10. These factors are so seldom relevant to the achievement of any legitimate state interest that laws grounded in such considerations are deemed to reflect prejudice and antipathy a view that those in the burdened class are not as worthy or deserving as others. the courts have been very reluctant to scrutinize closely legislative choices as to whether. equal protection requires only a rational means to serve legitimate end. 630
Plyler v. Violation of EPC 4. alienage. Despite holding that mentally retarded individuals were not a quasi-suspect class. That factor generally provides no sensible ground for differential treatment But where individuals in the group affected by a law have distinguishing characteristics relevant to interests the state has the authority to implement. when a statute classifies by race. The general rule of equal protection is that legislation is presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest.
Substantial interest is a new formula ii. Kinds of traits in history that go with race or ethnic status were traits used to harm people ii. only their parents violated 6. Not a case for higher review b. But arguably a semi-suspect classification because they did not violate the law. Note that the Court required the classification to be rationally related to a substantial. is still very important i. When you have strict scrutiny the formula changes the law that classifies based on race or ethnicity has to meet a compelling interest standard a. Ethnicity/national origin = where you come from c. state interest and effectively shifted to TX the burden of proof on this issue. Looks to see if the interest of the state is a substantial interest i. It is not strictly speaking intermediate scrutiny. but functionally it looks like intermediate scrutiny b. Clover Leaf Creamery state outlawed plastic containers for milk and required paper only
Strict Scrutiny and Suspect Classifications: Race and Ethnicity
Overview (pp. while not a fundamental right. Race and ethnicity a. This was not intermediate scrutiny. rather than simply a legitimate. Education. So here there is a semi suspect classification used to take away a semi-fundamental right 7. 640-42)
1. TX s policy may be unwise but it s not in violation of EPC Idea that if it s questionable.a. the tie goes to the government 1. Because the parents of the children do not get protection because undocumented how can you say someone violating the law can be treated as a suspect classification b. which would have obliged TX to prove that its statutory classification was substantially related to an important state interest pg. Race = who we are genetically appearance what you are b. 639 8. The two are not interchangeable 99
. Minnesota v. In the past a lack of access to political power to correct the wrongs that discrimination has put on groups and therefore the law is steeping in 2. Why are they subject to strict scrutiny? i. Strict scrutiny required for any racial or ethnic qualifications 3. Standard of review a. Dissent a. Court s reasoning a.
Rule: if a classification directly employs the suspect criterion. Alienage = what country you re a citizen of a. compelling interest test i. If you are a citizen of US then you re not an alien 5. In between the above two: Korematsu v. 3. Pressing public necessity may sometimes justify the existence of such restrictions. 641
1. Germans and others we were at war with who were living in the country weren t put into internment camps 2. (1944) pp. It is to say that courts must subject them to the most rigid scrutiny. U. The government can take race into account to achieve affirmative action c. 642-49)
Strauder v.4. of murder. The court ruled that the facially discriminatory law violated equal protection
. intentional discrimination is revealed on the fact of the statute. A West Virginia jury. Ironically. the Court concluded that the pressing public necessity of preventing espionage by those of Japanese ancestry justified deference to the military authorities judgment that wholesale exclusion was necessary
Purposeful Discrimination Required (pp. Court: All legal restrictions which curtail the civil rights of a single racial group are immediately suspect. and no further inquiry is necessary to determine that the classification is suspect 2. 34. Would be tough to justify affirmative action under this
Korematsu v. Rule of Law: State laws restricting the rights of persons based on race are subject to strict scrutiny and will only be upheld if they further a pressing public necessity. was constitutional. Government lied to SC to justify the threat of espionage c. The government should never do it i. an Executive Order requiring Japanese Americans to relocate to internment camps during World War II.S. Facts a. racial antagonism never can a. U. West Virginia (1879) pp. 642
1. limited by law to adult white males. 4. 3 positions about treating people differently based on race a. Couldn t implement something like affirmative action ii.S. 3. Facts a. That is not to say that all such restrictions are unconstitutional. Internment camp b. The government can t use race or ethnicity to harm people unless it has a very good reason to do so ii. convicted Strauder. Race can be used by the government to help historically disadvantaged people b. a black man. Issue: Whether Civilian Exclusion Order No.
A variation of the facially discriminatory classification is found here b. Would lead to the fact that you can t discriminate based on race for voting registration purposes 5. 240 Chinese persons operating buildings were arrested. a state is constitutionally free to redraw its political boundaries in any manner it chooses. while not a single white voter was removed 3. Lightfoot (1960) pp. Is an example of neutral classifications motivated by discrimination that produce a discriminatory effect a. Facially neutral laws nevertheless violate the EPC if they are administered in a racially discriminatory manner 2. In Gomillion v. 643
1. Facts a. SF prohibited operation of laundries in wooden buildings. The court ruled that the Virginia law banning interracial marriage serves no legitimate purpose and the law rests solely upon distinctions drawn according to race
Yick Wo v. Court found the legislation to be solely concerned with segregating white and black voters a. but the party challenging the classification has the burden of proving its suspect application 3. Is an example of a neutral classification applied in a discriminatory fashion. a voting district violates the Fourteenth Amendment s Equal Protection Clause if the state s purpose in
1. The law was being enforced racially even though not discriminatory on its face it was being applied with an evil eye and an uneven hand 5. Tuskegee. Lightfoot (1960). Statistics alone here make out a prima facie case 4. virtually all in wooden structures.4. However. Virginia (1967) a. Hopkins (1886) pp. Loving v. Alabama redrew its boundaries from a square to an uncouth twenty-eight sided figure. while 80-odd laundries operated by Europeans were left unmolested. Facts a. a. The Court invalidated the ordinance because SF had no justification for its invidiously discriminatory application of a facially neutral law
Gomillion v. the Court held that in the absence of an invidious purpose. A facially neutral classification (one that classifies on a non-suspect basis) that is actually applied on a suspect basis is treated as a suspect classification. all but 10 of SF s 320 laundries were barred from further operations and Chinese persons operated 75% of city s laundries. 4. About 99 percent of the black voters were allegedly eliminated from Tuskegee. A facially neutral classification that is adopted solely because of an invidiously discriminatory motive and that produces the intended effect is treated as a suspect classification 2.
1. but it is not the sole touchstone of an invidious racial discrimination forbidden by the Constitution. Higher court said the disproportionate statistics are relevant but not enough i. D. Govt s argument: they needed to higher officers with stong written and verbal communications skills 5. Court also said that the police dept was taking additional measurements to: racial composition was changing (more blacks) in the force and they had a hiring program to increase racial diversity
. 644 6. Lower court: statistics alone are enough to show purposeful race discrimination.C.drawing the voting district is to minimize invidiously the voting potential of racial or ethnic minorities. police department to screen new employees violates the Fifth Amendment Due Process Clause. Davis (1976) pp. To prove such a purpose. This case was about statistics and how they reflect on the government s purpose a. statistics alone aren t enough to make a prima facie case iii. 644 7. In Yick Woo and Gomillion disparate statistics are enough to make out a prima facie case. court says that except in those exceptional cases. Facts a. A large amount of blacks were not passing a test to become a police officer four times as many blacks as whites failed and thus weren t hired b. Problem here: how do you should discrimination when it s not apparent on the fact? 4. Standing alone. The differentiating factor between de jure segregation and so-called de facto segregation is purpose or intent to segregate pg. 3. Rule of Law: A state-sponsored racial classification violates the equal protection provisions in the Fifth Amendment s Due Process Clause only if it is shown to have both a disproportionate impact on a particular race and is motivated by invidious racial discrimination. Issue: Whether the test used by the Washington. What make an equal protection violation is purposeful discrimination ii. Disproportionate impact is not irrelevant. a plaintiff bears a high burden of proving that the disputed plan is conceived or operated as a purposeful device to further racial discrimination. Statistics alone not enough must have purposeful discrimination a. 2. making out a case for equal protection violation b.
Washington v. it does not trigger the rule that racial classifications are to be subjected to the strictest scrutiny and are justifiable only by the weightiest of considerations pg.
and the Court must look to other evidence. 2. to establish discriminatory intent. Facts a. a plaintiff must show that the decision-maker selected or reaffirmed a particular course of action at least in part because of. etc. not merely in spite of. Issue: Whether the Village s denial of a zoning reclassification permit for a racially-integrated multi-family dwelling violates the Equal Protection Clause of the Fourteenth Amendment. Under Arlington a P need only show that discrimination was a motivating factor in the decision. Issue: Whether a state veteran s preference law discriminates against women in violation of the Equal Protection Clause of the Fourteenth Amendment. but disparate impact was an important starting point
Personnel Administrator v. The village denied the permit request. Then you look at the historical background of the case and specific sequence of events c. impact alone is not determinative. and MHDC brought suit in federal court alleging denial of the permit was racially discriminatory and violated the 14th Amendment and Fair Housing Act 4. its adverse effects upon an identifiable group. Rule of Law: To prove that a state actor violates the Equal Protection Clause by enacting legislation with a discriminatory purpose. Impact was seldom sufficient. legislative history. The decision making process itself hearings. The court said the law was passed despite that it hurt women.Arlington Heights v. What do you have to show to prove the disparate impact here was intended? a. MHDC planned to build a racially-integrated complex featuring nearly two hundred townhouse units marketed to law and moderate income tenants b. not the sole or even the dominant or primary factor. 647
1. anything within the documents that refers to race or racial undertones 5. Absent a pattern as stark as that in Gomillion or Yick Wo. 3. but not inspite of the fact that it hurt women 103
. Metropolitan Housing Development Corp (1977) pp. standing alone. You start with the numbers if no disparate impact than no discrimination b. Housing and Zoning a. particularly if it reveals a series of official actions taken for invidious purposes. Rule of Law: A state-sponsored racial classification will not be held to violate the Equal Protection Clause of the Fourteenth Amendment unless a plaintiff shows that the law is motivated by a discriminatory purpose and has a discriminatory impact. 645
1. The specific sequence of events leading up to the challenged decision also may shed some light on the decision makers purposes pg. Feeney (1979) pp. 2. 3. The historical background of the decision is one evidentiary source. 646 6.
The court said at some point the trial court must interfere if it detects a pattern a. Plessy = separate but equal 2. The Road to Brown a. They chose to bring suit in Topeka. Issue: Whether the segregation of children in public schools solely on the basis of race.4. 648
1. 2. 3. the prosecutor 3. even though the physical facilities and other tangible factors are equal. 5. Stigma 2. 48 of Lexis Outline
Official Racial Segregation (pp. deprives the children of the minority group of educational opportunities in violation of the Equal Protection Clause of the Fourteenth Amendment. but also undermined public confidence in the criminal justice system 4. Women applicants for civil service jobs alleged that the statute favored men because they historically had served in the military in far greater numbers than women. 9-0 decision
. then what s the problem? 1. Detailed explanation of how this method of picking a jury to discriminate is proven and prevented on pg. 649-58)
1. Feeney illustrates the effect of the intentional discrimination requirement in the gender context
Batson v. If completely equal but separate schools. Goal was to end separate but equal by showing that separate could never be equal i. The Court upheld the Massachusetts Veterans Preferance Statute requiring all veterans who qualified for state civil service positions had to be considered for appointment ahead of qualifying non-veterans a. The Court held that race-based peremptory challenges violated the EPC. Discusses the process for determining if a jury selection is racially biased 2. The burden of proof shifts to the govt. At that point the prosecutor must show that there was some nonracial reason for it s discrimination in the jury selection b. Giving black children a sense of inferiority
Brown v. pp. 651-652
1. the education was basically equal in dollar amounts (even money spent on facilities for both black and white schools) a. They not only harmed the D. Rule of Law: Separate educational facilities based on racial classifications are inherently unequal and violate the Equal Protection Clause of the Fourteenth Amendment. Kentucky (1986) pp. Board of Education (Brown I) (1954) pp. Kansas because by all objective measurements.
Court said when segregation in the past. If you haven t integrated than you haven t righted the wrong
Swann v. School District No. 1 (1973) pp. 2. Busing of pupils is a legitimate tool for school desegregation ii. Board of Education to eliminate racially separate public schools established and maintained by state action. Said we re not interested in the process but interested in the results 3. Court assumes that today s segregation is still the result of yesterday s a. Problem: many blacks on one side of residential area and whites on another 5. race-conscious remedies are permissible a. Issue: Whether busing is included in the scope of the duties of school authorities under the Supreme Court s mandate in Brown v. 654
1. Off the book segregated actions could speak as loudly as those in the codes/laws . didn t want their children to have to be bused away from their homes 7. If it s only a right to be free from segregation. that s different than the right to an integrated education
Green v. approximately equal numbers of black and white students. rearrangement of school districts. Charlotte-Mecklenburg Board of Education (1971) pp. from both races. Rule of Law: As part of a state-wide plan to desegregate schools. state boards of education are required to consider the use of racial quotas. 654
1. De facto segregation violated the EPC only when it was produced by intentionally invidious discrimination. The Court also suggested gerrymandering or clustering of attendance zones as one remedy for correcting past discriminations
Keyes v.4. and busing as practical ways to facilitate desegregation. To remedy its prior deliberate racial segregation a school district with two schools. 3. The watershed school desegregation remedy case 4. plaintiffs must prove not only that segregated schooling exists but also that it was brought about or maintained
. Facts a.almost like de facto. County School Board (1968) pp. Where no statutory dual system of segregated schools has ever existed. 655
1. Solution: busing 6. Issue was many parents. and little residential racial segregation adopted a freedomof-choice plan that permitted students to chose which school to attend b. Court invalidated a freedom-of-choice plan said county must develop a unitary system following Brown a. Affirmative obligation to take affirmative action to remedy when segregation occurred in past i. not quite. After 3 years the formerly all-black school was still all black and the formerly all-white school was about 85% white 2. but certainly not de jure 2.
Two holdings to this case: a. No trying to find a specified percentage of a particular ethnic group. What argument is taken away? a.by intentional state action. school officials must show either (1) that segregative intent was not among the factors that motivated their actions or (2) that its past segregative acts did not create or contribute to the current segregated condition of the core city schools 3. 658-66) Regents of University of CA v. The compelling interest here was the diverse student body 2. No racial balancing here a. Says quotas wouldn t be narrowly tailored 3. simply proving discriminatory effect or impact was not sufficient
First Views (pp. Presumptions like this and in other cases eroded the intentional discrimination requirement in school desegregation cases 4. But proof of this deliberate wrongdoing as to any part of a school system creates a presumption that other segregated schooling within the system is not adventitious. To sustain that burden of proof. Four of the justices argued that the school can t get money under Title 6 by doing this affirmative action a. Even though some of these cases lightened the burden of proving discriminatory intent. Lightened the burden of proving discriminatory intent a. They are not remedying their own wrongdoing the school did not do racial wrong in the past i. Title 6 any institution that receives federal funds can t discriminate
. Taking race into account by admissions is constitutional 5. which the court says would be unconstitutional b. 658-665
1. The geographic presumption of Keyes allowed a finding of systemwide discrimination from a finding of intentional discrimination in a small segment of a school district i. Bakke wins b. Bakke (1978) pp. Can t remedy because no discrimination on their behalf 4. Whether they could use race as part of the selection i. Required that government-imposed racial classifications must be narrowly tailored to further compelling governmental interests a. The school system then has the burden of proving that other segregated schools within the system are not also the result of intentionally segregative actions. Court said affirmative action is not unconstitutional if properly applied.
6. This case really brings up the argument of who gets strict scrutiny applied to them which groups? a. how do we determine who is in the white majority? i. because Congress was entitled to deference concerning its conclusion that the federal government s traditional procurement practices. Laws designed to harm racial minorities must be subject to strict scrutiny. 666
1. The plurality opinion applied strict scrutiny and concluded that societal discrimination alone is not sufficient to justify a racial classification. The court held that the racially preferential layoffs violated equal protection but could not form a majority as to the reasons. Facts a. Bakke laid down the general principals. Klutznick (1980) pp. When times were tough financially they laid off senior white teachers and kept less senior minority teachers 2.
General Principles (pp. The majority is made up of several sub-groups. Raised question as to how to judge racially based government action 3. 665
1. But Fullilove did not say
. some of whom may be first generation Americans or Jews who have been prejudiced against 7. Contractor cases a. Can t argue there will be different perspectives or it will be done better because of diversity
Fullilove v. but the following principles that applied them weren t education cases which created a problem because Bakke was based on an academic diversity theory a diverse student body gives better results. but were not doing that. Taking steps to hire minority teachers b. Powell argued. Strict scrutiny was applied here 4. The Court held that a congressional program requiring that 10% of certain federal construction grants be awarded to minority contractors did not violate equal protection. They normally had a seniority system for dismissing. Jackson Board of Education (1986) pp. Bakke s impact a. so how do you differentiate? 8. Almost all groups have been discriminated against. when applied to minority businesses. Government can take account of race as a plus if it s a factor and not a primary consideration 9. could perpetuate the effects of past discrimination. which is what the following cases dealt with
Wygant v. Can t use the academic diversity rational for these cases b. but those that harm white majorities shouldn t be subject to strict majority a. but no one had said this about the work place.
Court said it was too rigid a use of race 7. This case says strict scrutiny for both state and local government i. Strict Scrutiny a. The court was very deferential to Congress. which necessitates strict scrutiny ii. Which leads to the argument then what about federal? 6. Significant statistical differences between the number of qualified minority contractors available an interested in performing a particular service and the number actually doing work. The state and local governments were so not trusted with equal protection that the 14th Amendment needed to be written c. (1989) pp.A. Individual instances of discrimination supported by statistical proof. Rule of Law: Without evidence of past particular race-based discrimination. a city may not enact a plan to provide a race-based set-aside to exclusively promote minority business enterprises. What clash is raised between Bakke and Fullilove?
City of Richmond v. Court did not say what standard of review. This is a 14th Amendment case. Croson Co. as this does not constitute narrowlytailored means geared towards accomplishing a compelling state purpose.precisely what standard of review it was using to reach this conclusion and expressly disclaimed adoption of either the Powell or Brennan view in Bakke 2. J. The plurality offered guidance regarding what steps state and local governments had to follow in formulating appropriate plans. Congress has a lot of authority to do things when spending money 5. Refused to join an opinion that he thought was too much of a compromise
1. acting on the basis of race. Issue: Whether a city may constitutionally use a set-aside plan requiring prime contractors to give thirty percent of their business to minoritycontrolled subcontractors. 2. So why is this looked at through the prism of strict scrutiny? i. 3. or c. For the first time a majority of the Court applied a compelling state interest test to affirmative action cases 4. Direct application of 14th Amendment here 1. Scalia a. state or city government. Fullilove didn t give strict scrutiny even though it was dealing with a suspect class b. Individual instances standing alone support individual remedies rather than an affirmative action plan 8. just said a federal program would be valid and focused on Congress s spending rights 3. Direct evidence that nonminority contractors had systematically excluded minority contractors b. Findings necessary to underpin an affirmative action plan included: a. they also said it s a spending program.
the City must demonstrate that is used narrowly-tailored means to accomplish a compelling state interest
Adarand Contractors. Court applies three general propositions to equal protection cases that deal with construction and the federal government a. as long as it identifies such discrimination with sufficient particularity so as not to run afoul of the 14th Amendment. Skepticism b. Here. A state or local subdivision of government has the authority to eradicate the effects of private discrimination within its own legislative jurisdiction. Court s rational: equal protection is right of individual not to be treated differently. Applies intermediate scrutiny b. But then there is a further definition presuming that these people would be racial minorities c. Congruency 4. The case wants to avoid another Korematsu here 7. Agrees with strict scrutiny i. Facts a. Thomas first affirmative action case b. FCC i. 674-678
1. Racial paternalism as pernicious as any form of discrimination
. This is a race neutral standard informed by a presumption 2. at least for the plurality. Consistency c. Metro Broadcasting v. without a strict scrutiny type of justification a. But sees harm in these affirmative action programs c. It s a personal right 6. v. Inc. Federal government can engage in affirmative action for a remedial purpose ii. strict scrutiny is the appropriate standard of review to judge the constitutionality of the City s actions in attempting to remedy past discrimination. Federal government gives monetary incentive to select a minority business subcontractor b. FCC. can rely on strict scrutiny 5. Case is important because it puts down. The regulatory standard for the minorities is socially and economically disadvantaged person i. This case is confronted by Metro Broadcasting v. How does the plurality resolve the clash here? i. Plurality says any person subject to any different racial discrimination. Justice Thomas a. To pass strict scrutiny. Pena (1995) pp. from any level of government. and it strikes down that holding a. strict scrutiny of state and local racial classifications a.9. Strikes down Metro and upholds Croson 3.
Convinced admissions officers are acting holistically in each case no one factor is dominant i. 680-693
1. Issue: Whether the use of race as a factor in student admissions is unlawful under the Equal Protection Clause of the Fourteenth Amendment. Are we moving towards that goal or further away with affirmative action? 2. The establishment is in support of affirmative action i. What Powell said in Bakke is essentially what was said in Grutter 2. 55 of Supplement
Race and Admission to Public Universities (pp. Rule of Law: Consideration of race as a factor in admissions by a state law school does not violate the Fourteenth Amendment because supporting student body diversity is a compelling state interest. race-neutral alternatives to achieve the sought-after racial diversity. Diversity is critically important for law schools c. These programs stamp minorities with a bade of inferiority and may cause them to develop dependencies or to adopt an attitude that they are entitled to preferences 8. Majority a. This case kept the door open for both government agencies to develop/revise programs like this. 4. Diversity is important as an end in itself and as a means i. This is likely why O Connor ruled with the majority here 8. Strict scrutiny is the standard to use for both affirmative and negative race conscious actions by the government 7. as long as they had some justification in proving discriminatory action in their community
Ricci v. Rehnquist says that they re running a quota system here
. the school must demonstrate it previously made a serious. Dissent a. Thus the court accepted the university s argument b. Why did the same court that upheld the program in Grutter invalidate a similar program in Gratz?
Grutter v. Many businesses are in support of affirmative action believing it s good for business ii. Strict scrutiny is the standard of review here 3. Extends to post-graduation life creating diversity in society d. Both classroom/campus diversity and improving the workforce making life after school more diverse ii. however. Bollinger (2003) pp.d. More diversity in education will lead to more diversity in the workforce and amongst leaders of our society 6. 679-708)
1. The ultimate goal is that race will no longer be relevant a. 5. DeStefano pp. good faith consideration of workable.
1. Must be an individual determination c. Justice O Connor switched sides here from Grutter 7. Use of race by government in prisons 4. violates the Equal Protection Clause of the Fourteenth Amendment. Facts a. Relied on Turner
. Doesn t want the advancement of African-Americans to be considered to be brought to that level by affirmative action c. Dissent a. 20 points are given to an applicant who is a minority maximum score for an applicant is 150. 100 guarantees admission 4. Issue: Whether strict scrutiny is the appropriate standard of review for policies involving racial classifications in state prisons. Michigan undergrad made race a decisive factor for virtually every minimally qualified underrepresented minority applicant 6. Majority a. The admissions offices will do it anyway/covertly
Johnson v. A plus is a plus whether given a number or not b. Rule of Law: All racial classifications made by the government. Justice Thomas a. Not narrowly tailored b. 3. So many decisions are being made behind the admission s office closed doors 9. Lets be honest and transparent about the role of diversity in the admissions process of else schools will just camouflage the process to achieve improved diversity i. Rule of Law: A university admissions policy that automatically gives preference to minority students on the basis of race. including those involving prison policies. Issue: Whether racial preferences in undergraduate admissions violates the Equal Protection Clause of the Fourteenth Amendment. The law school s admissions policy is inherently elitist and not effective in remedying the past effects of discrimination on minorities b. By distributing 20 points to an applicant based on his race. 2. Bollinger (2003) pp. 693-696
1. without additional individualized consideration. Facts a. Thought one reason why many people defended affirmative action was to allow for legacy admits to continue elitism
Gratz v. 3. CA law put people in cells with only those of their own race to avoid racial violence in prison i. This program uses race too much it s too rigid 5. are subject to strict scrutiny by the courts. California (2005) pp. 2.b.
If Grutter came back to the court today after the K-12 cases. The middle justice on this issue is now Kennedy who partly joins the majority and partly writes his own concurrence straddler b. But they defined it as white and non-white 3. Attempting to achieve diversity like Univ of Michigan iii. Does it have to do with the nature of the positions? ii. Grutter type of cases i. Louisville i. Difference between the lower school cases and Grantz. Perhaps its because the prisons are segregating while the admissions officers are working to promote diversity
Seattle & Louisville School Board Cases (2007) pp. but by housing patterns. Schools were becoming segregated not by actions of the government. reinforce racial and ethnic divisions pg. But the court does rely on the instincts of those in the admissions offices why? i. Did not previously have de jure segregation b. 698-709
1. Balancing ii. Facts a. Formerly segregated ii. Court invalidated the CA law a. Changed the balance ii. Alito replaced O Connor 1. Background a. City doesn t want any school to depart too much from the demographics of the district 1. The court though isn t convinced it will prevent race riots thinks it could even trigger race riots 6. Seattle i. etc. Remedied it and it was now falling into de facto segregation c. so school districts sought a solution d. We apply strict scrutiny to all racial classifications it is possible that prison officials will breed further hostility among prisoners. The court did not defer to the wardens b. would it still come out the same way? 2. The court didn t say preventing a race riot is not a compelling interest they just said you can t do it this way i. The wardens of the prison were asking the court to trust them a.ii. School programs i. 698 b. Turner governments may burden the constitutionally fundamental rights of prisoners when the burdens imposed are reasonably related to legitimate penological interests 5. Seattle
Seattle School District (1982) pp. Erickson (1969) pp. Issue: Whether public school districts that have never operated legally segregated schools are permitted to assign students to particular schools solely on the basis of race in order to achieve racial integration. Race consciousness can be used to achieve integration
Race and the Political Process (pp. Racial balancing is not a compelling interest top of pg. Sees it as students being denied or admitted to public schools based solely on their race in order for the districts to achieve balance b. 701 i. Wants to defer to local government officials/school boards b. race-conscious objectives to achieve general diversity in schools is permissible. Dissent a.a. When the political process or the decision making mechanism used to address racially conscious legislation and only such legislation is singled out for peculiar and disadvantageous treatment. the governmental action plainly rests on distinctions based on race pg. 712
. Board of Education a. When the political process is altered in a manner that does not explicitly use race but has a racially disparate impact. although the use of narrowly-tailored. rather than when it s to keep them apart c. 708
Hunter v. Brown wasn t just about ending segregation but was about achieving integration d. Where did we see this before where a hurdle was put in front of civil rights legislation? Romer 2. it s individually based c. Rule of Law: Public schools may not assign students to schools solely on the basis of race for the purpose of achieving racial integration. Quota system d. Can use race conscious criteria when it s to keep races together. 4. Can t assign children to a school based on their race 5. 708-16)
1. The battle in this case is how to apply Brown v. Majority a. b. the problem is essentially identical to other disparate impact cases pg. Said it s not affirmative action. Allowing racial balancing as a compelling end in itself would effectively assure that race will always be relevant in American life 6. Pg. 710-714
1. 703 who is on the right side of Brown b. 709-710 Washington v.
What is it about alienage? a. 716-19)
1. 5. Is gender ever relevant or should we never allow gender? a. law enforcement. But we d never allow someone to say they re more comfortable with a black or white person frisking them 3. For government jobs that carry out the political community lesser level of scrutiny i.Strict Scrutiny and Suspect Classifications: Lawful Resident Aliens (pp. Its not immutable and not identifiable 4. Teachers. Certain kinds of discrimination against lawful aliens are subject to strict scrutiny b. Alienage: someone not a citizen of the U. 2. For example the head of the school-board 4. etc. Third tier of alienage discrimination a. gender or sex are subject to a higher form of review. When federal government discriminates against aliens than it gets minimal review i. 5. Civil service employees 2. then the court said citizenship is not a proper measure 3. Higher levels of workforce are subject to less scrutiny/intermediate scrutiny i. If it s working for government. Facts a. The court is saying there are two levels of scrutiny a. Dougall (1973) pp. Perhaps frisks by the opposite sex i. Is a classification which within itself has two or three different standards of review 3. local leaders. 716-718
1. The Court generally only scrutinizes discrimination against resident aliens but not discrimination against illegal aliens. Classifications based on race. Rules a. 72043)
1. For government jobs of a ministerial level then strict scrutiny b.S. Because the federal government is in charge of immigration and nationality
Intermediate Scrutiny: Sex and Illegitimacy (pp. rather than the typical rational basis
. It was articulated and invented with sex/gender discrimination 2. The Court subjects discrimination against aliens by state or local government bodies to far more rigorous scrutiny than it applies to discrimination against aliens by the federal government
Sugarman v. ethnicity.
To support this conclusion. Issue: Whether a female armed services member may claim her spouse as a dependent for the purposes of obtaining increased quarters allowances and medical and dental benefits on an equal footing with male armed services members. there will already be a hearing anyway. Justice Brennan relied on a long and unfortunate history of sex discrimination and the fact that sex. Key issue: what standard of review a. Rule of Law: All governmental classifications based on gender are subject to strict scrutiny review. Four justices led by Justice Brennan. Gender a. 721
1. Court fashioned a middle tier standard of scrutiny in the gender area
Reed v. Military men could automatically claim wife as dependent b. Sex discrimination was a battle of what level of scrutiny i. Facts a. Strict at top ii. It was this case where the argument over the level of scrutiny broke into the open a. Rational basis review
Frontiero v. Intermediate at middle iii. Heightened scrutiny 2. Reed (1971) pp. Are there situations where the differences are such that law can take account of them? 2. than a preference would got to the male this was challenged by a female 3. Rational at bottom b. The law said that if two people were equally entitled to administer a state. Are there more legit differences based on sex then there are based on race? iii. 3. argued for treating sex as a suspect classification. like race and national
. thus triggering strict scrutiny. There s 3 tiers that most acknowledge i. so the hearing could make the decision as to who is the better administrator 5. The court said not reasonable here in a estate situation you ll always have a judicial proceeding if the brother and sister are going to dispute over who gets to administer. Richardson (1973) pp. Should it be like race suspect classification ii. 2. Classifications on gender must be substantially related to achieve that directive
1. But military women had to prove that their husband was dependent 4. State s reason for this: theory that the woman would likely be married 4.
and one that inevitably is in tension with the normative philosophy that underlies equal protection pg. Rule of Law: A governmental regulation involving gender discrimination is constitutional if it is substantially related to the achievement of an important government purpose. The court still upheld some gender lines a. Important women s rights issues being addressed in this case 4. is an immutable characteristic [that] frequently bears no relationship to ability to perform or contribute to society pg. Also.origin. The Court applied a middle tier standard: to survive scrutiny. These were largely struck down primarily on a rational basis level 3. can t hold 100% of men accountable for 2% of their population s actions 8. a gender classification must serve important governmental objectives and must be substantially related to achievement of those objectives 6. and 2% of men b.18% of women caught for DUI. 721-724
1. Cases where women s economic need was the critical aspect of the law were not upheld a. Proving broad sociological propositions by statistics is a dubios business. Important point: establishment of intermediate scrutiny with language on pg. After Frontiero the court started to strike down sex classifications rooted in what the court described as archaic and overbroad generalizations about sex roles 2. 720
1. Dissent: finds it s to be a close fit because they said men were 10X as likely to be arrested 10.2% beer to males under the age of 21 and to females under age 18 5. So to say young male = drunk drivers is a gross overstatement 7. Why d it uphold this generalization despite the earlier cases? 1. 3. Court upheld it because widows have greater problems than widowers i. Facts a. 721 Arachic and overbroad generalizations concerning the financial position of servicewomen and working women could not justify use of a
. This furthered women stereotypes
Craig v. Widows surviving their husbands who had died would get an automatic tax exemption in FL (even if they were independently wealthy women) b.dividuals of the same age based solely on gender violates the Equal Protection Clause of the Fourteenth Amendment. Boren (1976) pp. . Said it s compensatory women are more needy ii. 722 9. 2. Issue: Whether a statute that denies the sale of alcohol to in. Oklahoma statute that prohibited the sale of 3.
Man brought suit 4. Facts a. Lower the drinking age for men to 18 or raise the drinking age for women to 21 so that both men and women are allowed to buy beer at the same age 12. 3.rolling in a statesponsored professional nursing school violates the Equal Protection Clause of the Fourteenth Amendment. Rule of Law: A state statute that discriminates on the basis of gender may be unconstitutional if the statutory objective itself reflects archaic and stereotypical notions relating to gender. 3. CA statutory rape law b. Facts a. 725
1. The application of that to reject statistical differences btwn men and women 11. State said the purpose was to provide more jobs for women 5. compensatory purpose. Court said the actual purpose was discriminatory a. Hogan (1982) pp. 2. Issue: Whether California s statutory rape law violates the Equal Protection Clause of the Fourteenth Amendment. it failed to establish that the alleged objective is the actual purpose underlying the discriminatory classification
Michael M. 2. Although Mississippi asserted that its policy substantially served an important state goal of compensating for discrimination against women in public education. So what would the Oklahoma legislature do once this was struck down? a. Women s only nursing school b. the Court held that although the state recited a benign. Superior Court of Sonoma County (1981) pp. 725-728
1. State wanted to further push stereotype of women being nurses and men being doctors b. v. Similarly. Issue: Whether a state statute that excludes males from en. Interest must be important and classification must bare a substantial or close relationship to achieving those interests
Mississippi University for Women v.gender line in determining eligibility for certain governmental entitlements. Men who commit consensual sex with a woman under 18. Key adjectives that the formula depends on a. Rule of Law: A state statutory rape law that discriminates against males does not violate the Equal Protection Clause because it deters males from engaging in sexual behavior that might lead to illegitimate pregnancies. increasingly outdated misconceptions concerning the role of females in the home rather than in the marketplace and world of ideas were rejected as loose-fitting characterizations a. but if two are married then it s fine
Intermediate scrutiny applied 8. based largely on biological arguments
J. Rule of Law: A congressional act that requires men and not women to register for a military draft does not violate the Fifth Amendment to the Constitution because women cannot statutorily participate in combat and thus are not similarly situated as men. Men were kicked off jury by prosecutor because he thought men would be more sympathetic to men
United States v. Justice Stevens: the bigger deterrent should be STDs for both sexes. The paramount interest in evenhanded enforcement of the law. If the court had said otherwise and struck down this CA law. A rule that authorizes punishment of only one of two equally guilty wrongdoers violates the essence of the constitutional requirement that the sovereign must govern impartiality pg. Since no deterrent for the men (since they can t get pregnant). Court believes this to be the purpose (Conservatives are in the majority) b. Justice Marshall s dissent a. State s rational: state has an interest in preventing teenage pregnancies this would be a deterrent. Virginia (1996) pp. Issue: Whether the Military Selective Service Act. Intermediate scrutiny with bite exceedingly persuasive justification 2. Challengers did not challenge women from combat duties 5. 728-730
1. This is a policy argument. Alabama (1994) pp. v.4.E. which requires the registration for the draft of males and not females. State wanted paternity decided for child support purposes 2. 728 6.B. If you want the crime to fit the purpose (deterring teenage pregnancy) then you d make it a crime to impregnate a woman
Roskter v. harsh form of birth control a. Probably wouldn t have said put them both in jail b. Deference of the military and Congress 6. Government has shown what it has to show that a gender neutral rule would be less effective for the military 7. The administrative burdens are way overstated 4. 731
1. what would the CA state legislature do? a. What reasons persuaded the court that this was a valid sex discrimination? a. also said to put them both in jail for the crime i. 2. this law would be the deterrent for men 5. Goldberg (1981) pp. violates the Fifth Amendment to the Constitution. Dissent: this law was just aimed at trying to protect women s chastity a. 3. 732-741
1. VMI s argument as to why women were excluded:
and unchallenged use that dates back to the beginning of the Republic. Scalia a. Majority says it is intermediate scrutiny for any governmental gender classification a. Hogan which affirmed intermediate scrutiny i. it is my view that when a practice not expressly prohibited by the text of the Bill of Rights bears the endorsement of a long tradition of open. Important and substantially related b. whether the creation of an alternative school for women is the proper remedy for this denial. and. Two of his major themes again show up in this quote 1. widespread. Court rejected this b. Wants an explicit prohibition 2. Issue: Whether the VMI s policy of excluding women from admission denies women equal protection of the laws. Admitting women would ruin the program weren t fit for the tough. Rule of Law: All governmental gender classifications must be substantially related to an important government purpose that can be demonstrated by the government if it offers an exceedingly persuasive justification for the classification 5. boot-camp like program 3. He says the new test is now exceedingly persuasive justification (EPJ) which is a different way of saying strict scrutiny 1. 4. 738 i. If one woman can qualify and do it then excluding all women is not justified under intermediate scrutiny 7. i. Did the court articulate the typical standard or a new standard? 9. This standard requires the government to provide an exceedingly persuasive justification for policies that discriminate against women. What standard did the court apply? 10. More specifically. Enhances education to have a place where only men can go (much like how there s women only schools) i.a. Exceedingly persuasive justification is this the new test? a. if so. American traditions must be protected 119
. Said the court was actually applying strict scrutiny even though the majority was saying it was an intermediate formula b. we have no proper basis for striking it down pg. Is this intermediate scrutiny hyped up or a higher scrutiny? 6. If it s not strict scrutiny as articulated it surely is by the way it s applied c. Why d he say the court was using a strict scrutiny formula? i. This standard comes from Hogan where the court said gender lines are subject to intermediate scrutiny and the govt has a EPJ burden to meet that test ii. Virginia has not shown an exceedingly persuasive justification for excluding all women from VMI s leadership training 8.
Dissent (O Connor and Ginsburg the two women on the court) a. 3. Scalia would say it is public education will not be allowed to be single sex and that private ones that receive federal funding also would not under this opinion
Nguyen v. Women aren t a discreet minority they have plenty of access to the legislature 11. Did some bad things and is deportable if he s not a citizen of the U. Issue: Whether a statutory scheme that imposes different requirements for a child s acquisition of United States citizenship depending upon whether the citizen parent is the mother or the father violates the Equal Protection Clause. Moms are closer to the kids at birth and in formative years 6. statutes that discriminated on the basis of illegitimate birth were subjected to minimal scrutiny and were upheld 2. statutes that classify on the basis of illegitimate birth are subjected to intermediate scrutiny
. Immigration and Naturalization Service (2001) pp. Congress rationally chose to impose these requirements on unmarried men and not unmarried women due to the significant biological differences existing between men and women and the resulting differences between mothers and fathers respective relationships to potential citizens at birth. Today. 741
1. The court says it is not an EPC violation 7. The majority says it is not b.d. Rule of Law: When a child born overseas and out of wedlock to unmarried parents consisting of a United States citizen and non-citizen seeks United States citizenship. governmental gender classifications that require more stringent proof of citizen parents paternity than maternity are constitutional based on the inherent biological differences between men and women. Why is Nguyen challenging the determination that he s not an American Citizen? a. 4.S. If your mom is a citizen then you are i. The court gave great deference to the academics in Grutter so some of the critics of this case ask why the VMI educators didn t get this same deference 12. Prior to 1968. Is this decision the death nail of single sex education? a. The court uses intermediate scrutiny here a. Men travel more out of the country (especially in war) and they may conceive of children while abroad
1. Thought there were too many stereotypes and not enough DNA testing i. Citizenship of child is different depending on mother or father s citizenship a. 5. Says gender shouldn t get anything but rational basis scrutiny i. Court s most recent statement on gender discrimination 2. 8.
the court has required strict scrutiny a. Court has a lot of discretion to say what s a fundamental interest and what isn t 3. Four areas we look at to see whether those classifications receive stricter scrutiny in these areas we look to see if the interests are fundamental a. are so important to be provided (?) 5. The rights of newcomers 8. Affording heightened scrutiny to laws that distinguish on the basis of wealth would call into question a wide range of social programs. thus intermediate scrutiny
Fundamental Rights: Strict Scrutiny Revisited
. For such laws to be valid the state must prove that the classification is substantially related to an important governmental objective pg. Easier to think of it as fundamental interests rather than rights a. 743 b.a. But if they give the right to anyone then the laws drawn about who gets the right to vote and who doesn t is subject to strict scrutiny 2. The Court has not regarded the poor as a discrete and insular minority. At least substantive due process clause gave us the word liberty but there s nothing like this in the EPC 6. Access to the courts d. Doesn t mean the government has to give it to you ii. Education b. laws differentiating on the basis of wealth are not subject to heightened scrutiny. Is this a proper function of the EPC or is the EPC just supposed to guard against more pernicious discrimination 7. Voting under strict scrutiny but determinations about education spending are not subject to anything even remotely close to strict scrutiny 4. Equal protection for the poor a. Accordingly. Court says voting is so important that it s a fundamental interest i. You don t have a constitutional right to vote it turns out i. In all of these cases. just using the EPC. Turns out that voting is a fundamental interest but education is not a. even though not technically rights. Illegitimacy is a quasi-suspect classification. The Constitution doesn t protect the right to vote b. Voting c. Substantive equal protection conveys the idea that the court is using the EPC substantively to decide what interests.
Education is linked directly with being a good citizen 9. Issue: Whether a system of financing public education based on property taxes that results in significant disparities in funding among school districts violates the Fourteenth Amendment rights of children attending schools in less-affluent districts. Is wealth a suspect classification when govt makes wealth difference between whether or not you get something i. Whether education is a fundamental interest so that who gets some or who gets more may be based on wealth or some other criteria 2. 6. Facts a. Argument here is that wealth like race is a suspect classification b. food and clothing would have to be recognized as fundamental constitutional rights. Property taxes go to schools b. The court noted that equality of education could not be precisely determined. The lower court had subjected the funding system to strict scrutiny. Wealthier neighborhoods get more money to their schools so these schools are better of than those in less affluent neighborhoods 3.Introduction (pp. Rule of Law: Education is not recognized as a fundamental right under the Fourteenth Amendment to the Constitution. The Supreme Court rejected both conclusions a. finding that wealth was a suspect classification and that education was a fundamental right. Idea of making education a fundamental right strongest arguments for this a. 4. Court says where something as fundamental as welfare assistance they did not say it s a fundamental interest requiring strict scrutiny
. Welfare rights cases 8. and thus a state regulation impacting the right to education should be analyzed under rational basis review to determine if it bears a rational relationship to a legitimate state purpose 5. Rodriguez (1973) pp. and therefore could only be implemented in the most relative sense b. it might be that those who do not have adequate food and clothing are the least effective at utilizing their free speech and voting rights. For example. 743-49)
San Antonio Independent School District v. The Court feared that accepting appellee s fundamental rights argument would require the Court to find an infinite number of fundamental rights based on the same rationale i. Pg. Why shouldn t wealth be viewed as a suspect classification? 7. Two EPC issues on the table here: a. Therefore. 746 movement for courts to rule that poverty did deprive you of rights should be treated as a suspect classification like race a. 744749
a. pg. 746 b. Court is saying they don t want to do substantive EPC 10. Court says we need to figure out if a right to education is implicitly or explicitly guaranteed by the Constitution if so then they ll protect it but they don t want to make it up on their own, it must be in the Constitution 11. Court we must ask if the distinction (in property taxes) is rationally related to a legitimate state purpose a. The court says it is rationally related
Voting: Denial, Dilution, Gerrymandering (pp. 749-75)
1. Denial someone denied the opportunity to vote 2. Dilution the impact of the vote has been diluted or disregarded perhaps by gerrymandering or perhaps by political or racial gerrymandering a. The weight of your vote and your impact as a constituent is different if you re in a district that s 1/10th the size of another district b. These districts may be perfectly square, not necessarily gerrymandered c. Prison based gerrymandering 3. Gerrymandering a. Independent redistricting commission takes the politicians out of the picture less likely to have political gerrymandering 4. The Constitution originally left to the states the power to determine who could vote a. States originally limited it to free, white male property owners i. The only way this changed was by repeatedly amending the constitution (5 Amendments have to do with this) 1. The most well known is the 15th Amendment a. Also 19th, 24th, 26th 5. By 1960s the Court said the right to vote was constitutionally fundamental 6. Voting, though not guaranteed by the Constitution, has been held as the most fundamental interest a. Strict scrutiny applied 7. School board elections a. Can t be excluded by not being a property owner in the district or not having kids in that school district 8. Once the court hands down a decision, then other litigants with similar concern will come to the court about the same issue, so there was a mass of voting rights cases that came up 9. Special purpose election a. Something so specialized about this government unit and the effect it has on certain peoples that it s ok to limit the vote to those who own property there 10. In using the EPC the court is making judgments as to which government units can be limited to particular people or to all 11. Disenfranchising felons is like disenfranchising minorities because a large portion of felons are minorities 123
12. Citizenship in voting a. If everyone is required to be a citizen to vote then should they all be required proof of citizenship in order to vote? b. You prove citizenship with passport or birth certificate
Harper v. Virginia State Board of Elections (1966) pp. 750
1. Facts a. VA had a poll tax b. Which was outlawed by the Court in 1964 why was it still happening? i. The anti-poll tax amendment only dealt with federal elections 2. The Court invalidated a state-sponsored poll tax, finding the provision invidiously discriminated against certain low-income voters unable to pay the tax. 3. Issue: Whether Virginia s requirement of a poll tax on every resident of the state over the age of twenty-one violated the Equal Protection Clause of the Fourteenth Amendment. 4. Rule of Law: Poll taxes in all elections are unconstitutional as a denial of equal protection of the laws 5. Court a. While the right to vote in state elections is not expressly mentioned in the Constitution, such a right may be inferred from the First Amendment right of expression and thus should not be limited by a tax or fee. b. Right to vote is part of the 1st Amendment s penumbra c. Just as a state cannot constitutionally deny the right to a vote to a person based on his or her race, a state also cannot impose a fee on a person that has the effect of disqualifying a person from voting. 6. Close and strict scrutiny for the right to vote 7. Dissent a. Thought a poll tax was okay i. Doesn t facially discriminate b. If you don t care enough to pony up $1.50 to vote then maybe you shouldn t be able to have that right
Kramer v. Union Free School District (1969) pp. 751
1. Issue: Whether a state law requiring property ownership as a prerequisite for voting in a school district election violated the Equal Protection Clause of the Fourteenth Amendment. 2. Rule of Law: A state statute that denies the right to vote in school district elections to residents who do not own real property within the school district violates the Equal Protection Clause of the Fourteenth Amendment unless the exclusion of these residents is necessary to further compelling state interests. 3. Why are age, citizenship and residency proper restrictions to voting? a. Why can t kids vote they are the closest ones to the school s issues
b. Residency what about people in the town next door affected by the kids education?
Crawford v. Marion County Election Board (2008) pp. 754-758
1. Issue: Whether an Indiana statute requiring photo identification for all voters unduly burdens the right to vote for Indiana citizens. 2. Rule of Law: A state statute requiring photo identification as a prerequisite for voting is not unconstitutional. 3. Facts a. Could get the ID for free at the DMV b. Safety valve was to vote provisionally 4. Justice Stevens, Roberts, Kennedy uphold the voter ID statute a. Balancing approach state s justifications for the burden imposed by its rule vs. the asserted injury to the right to vote b. State s interest i. Voters confidence in democracy ii. Voter fraud iii. Administrative purposes because the of dead people on the voter lists c. They argue it s a facial challenge saying the law may be improper, but for the most part is ok because 99% of the people have IDs 5. Scalia, Thomas and Alito s concurrence a. We shouldn t even be giving it the balancing review that the majority gives it b. Should just say it s a law that s not invidious on its face i. Election law should be viewed no differently unless there is a clear prevention from the ballot box c. They wanted a more minimal approach 6. Dissent a. Want a more significant review b. Burdens outweigh the benefits c. There is zero evidence that in person voter fraud exists d. They see this as a modern poll tax
Reynolds v. Sims (1964) pp. 759-761
1. Issue: Whether Alabama s failure to reapportion itself every ten years and the resulting inequalities of legislative representation among counties throughout the state violate the Equal Protection Clause of the Fourteenth Amendment. 2. Rule of Law: The Equal Protection Clause requires the seats in a bicameral state legislature to be apportioned on a population basis that equally weights one vote for every one person residing in a state legislative district. 3. Typical malapportion issue
Bush v. Gore (2000) pp. 762-764
1. Using different standards to count the votes in each county 125
Holding (Scalia): Yes. The literal counting of the votes was not uniform across Florida
Davis v. At issue in the present case is the second test: focusing on whether there is a lack of judicially discoverable and manageable standards for resolving the issue. Jubelirer (2004) pp. Rule of law: The issue of political gerrymandering represents a nonjusticiable political question incapable of adjudication by the courts. the Court laid out six independent tests in descending order of importance and certainty. 765-767
1. 772 4. 766
Vieth v. for determining whether an issue is a nonjusticiable political question. Bandemer (1986) pp. 4. Unconstitutional discrimination occurs only when the electoral system is arranged in a manner that will consistently degrade a voter s or a group of voters influence on the political process as a whole.2. Reno (1993) pp. The holding in Davis v. Why would republicans want to create a lot of majority-minority districts? The DOJ at this time was under republican control a. Wanted to concentrate the Democrats making the other districts less competitive 2. the issue at bar represents a nonjusticiable political question. An equal protection violation may be found only where the electoral system substantially disadvantages certain voters in their opportunity to influence the political process effectively. Examining eighteen years of jurisprudence on political gerrymandering reveals a lack of judicial standards for clearly resolving the issue. and therefore. 3. In Baker v. In order to succeed on the EPC claim the Ps were required to prove both intentional discrimination against an identifiable political group and an actual discriminatory effect on that group 2. 770-773
1. Such a finding of unconstitutionality must be supported by evidence of continued frustration of the will of a majority of the voters or effective denial to a minority of voters of a fair chance to influence the political process pg. Carr (1962). Can t create a district if the primary purpose was to create a racial district 3. rationally cannot be understood as anything other than an effort to separate voters into different districts on the basis of race.
Shaw v. and that the separation lacks sufficient justification pg. Justice Souter s Dissent a. Issue: Does the issue of political gerrymandering constitute a nonjusticiable political question incapable of adjudication by the courts? 2. though race-neutral on its face. The majority said this is like apartheid
. Issue over whether this was a justiciable question 3. Court concludes that a Plaintiff challenging a reapportionment statute under equal protection may state a claim by alleging that the legislation. 767
1. Bandemer (1986) should be affirmed and political gerrymandering should be ruled a justiciable issue.
This is similar to Rodriguez (education case) a. S. but you need money for the transcript b. Griffin was being denied a fundamental aspect of criminal justice system because he could not afford to pay for another trial 3. Griffin recognized the right to appeal in criminal cases without foreclosure from a state fee structure. 777
1. if you want appeal. The races of the Congressmen won t represent that of the constituents (but this wasn t primary issue) b. Districts are being drawn simply because of the way they look.L. The proponents of this said that is creates more black legislatures 6. Facts a. If access is based on wealth then strict scrutiny must be applied
Boddie v. 2. Illinois (1956) pp. Rule of Law: The Due Process Clause of the Fourteenth Amendment prohibits a state from denying. EPC will be vigilant when liberty is at stake. 775-80)
1. a. Court was concerned with something more ephemeral that you were being put into an electoral district because of your race 7.J. v. The analytical structure is that there is no independent right to every aspect of the judicial process 2. not because of how they may vote 5.a. Court invalidated a state law denying persons convicted of a crime full appellate review unless they were able to pay for a transcript of the trial proceedings should be overruled.B.
M. less populated states only have trial courts and supreme courts nothing in the middle 3. 777-780
1. Protecting incumbents is a valid state interest
Access to Courts (pp. Connecticut (1971) pp. (1996) pp. but when property or other things are at stake then EPC will be less important
Griffin v. Woman didn t have money for this and therefore the court would take her children away from her
. fine. access to its courts to indigent individuals who seek in good faith judicial dissolution of their marriages. Civil litigation a. The Ps are white what s their claims a. Like the Griffin case. solely on the basis of inability to pay. Interests are less sharply revealed because you won t go to jail in civil cases b.L. 775
1. At a certain point states weren t required to have appeals courts a. Even now some of the smaller.
Rule of Law: The Privileges and Immunities Clause protects the right to travel by allowing citizens to move freely between states. Fundamental rights of parental relationship 3. 3. Rule of Law: Under the Due Process and Equal Protection Clauses of the Fourteenth Amendment. The right to come and go i.
Penalties on the Right of Interstate Migration (pp. Court said taking away children is almost worse or worse then going to jail i. Dissent a. Unless you can prove that someone who shows up and says here I am. Cites some CA cases b. a state may not condition appeals from trial court decrees terminating parental rights on the affected parent s ability to pay record preparation fees. and securing the rights of new citizens to be treated the same as long-term citizens living within the state. and as part of the structure of the federal government (structure federal government with many states gives you right to travel) 5. Court said this would be in violation of the EPC and procedural and substantive due process a.2. 783-787
1. The right to be treated well when you are temporarily/visiting that state i. Very similar to Boddie v. 2. Substantive due process because of taking the children away b. securing the right to equal treatment in all states when visiting. CT 4. PIC. I m here forever is lying. It s a civil case but the consequence here would be just as bad as in a criminal case ii. The Court struck down as against the right to travel a CA statute that denied new residents the same level of welfare benefits available to those who had been CA citizens for more than 12 months 4. The right to be treated equally if you decide to stay 128
. 2 c. Due process doesn t require an appeal 5. Rebranding of the right to travel a. 3 rights to travel a. Previously it had been a wanderer wandering throughout the different parts of the Constitution i. then you have to treat them the same as anyone else in your state
Saenz v. She had due process she was never deprived of it b. 4 Sec. CC. EPC. 781-87)
1. PIC Art. Roe (1999) pp. Issue: Whether the California statute limiting the availability of welfare benefits to families residing in the state for less than twelve months was an unconstitutional violation of the Privileges and Immunities Clause.
then it s like government action c. then Congress can outlaw or restrict that practice
Congressional Power to Enforce Constitutional Rights
Coverage: Public or Private Conduct? (pp. Court said when private party discriminates and the government is the landlord. leased the coffee shop to a company that discriminated based on race ii. The Court said this is an example of the company acting like the government (running the town) and denying a constitutional right b. If legislation has the effect of discrimination. 1169-1170 deal with situations where Congress has tried to reach private individuals who engage in various forms of civil rights deprivation a. Times when people who aren t the government are still subject to Constitutional limitations according to the Court a.i. Outside of the 13th Amendment support: pg. Where there is an inter relationship between private and the government such that the private s actions could be taken as that of the government i. 1166-1168
1. Public parking lot that wanted a coffee shop inside. Where the government has encouraged or coerced the private action. Where a company owned town people would be arrested for trespassing when handing out leaflets in the town ii. Issue: Whether Congress acted constitutionally in passing the Civil Rights Act to prohibit discrimination by individuals
. Court said requiring English literacy as a voting requirement wasn t outlawed by EP 3. How can Congress change what the Court intends the Constitution to mean? 4. 14th Amendment has provisions that guarantee people are citizens of the state and the US
CONGRESSIONAL POWER TO ENFORCE CONSTITUTIONAL RIGHTS Introduction (pp. Where the private entity is performing a public function i. 1165-70)
1. not just the purpose of discrimination. 2. If the private person is somehow in cahoots with the government (such as local sheriffs tipping off people on civil rights movement members actions) it can be reached under the 14th Amendment
Civil Rights Cases (1883) pp. Citizenship clauses ii. 1143-44)
The Court said it includes buying. Court says that if Congress said a railroad that went from one state to another couldn t discriminate on race than that may be protected under the CC c. renting of property and this is justified by the 13th Amendment a. Very narrow interpretation of EPC 4. The Court says Congress power is to remedy clear violations and to head off likely violations (prophylactics) but it cannot declare new substantive/constitutional rights 130
. Didn t have the mindset that what happened in a local hotel or restaurant had to do with interstate commerce iii. And this is private action. Interstate commerce didn t really exist at this time ii. Laws challenging racial discrimination in public accommodations 5. This case did for the EPC what Slaughter House did for PIC (namely nothing) a. 1170-91)
1. Alfred H. Very important case 2. 14th and 15th Amendments use the language of state but the 13th Amendment has no state action requirement b. private action is not state action ii. At this time the 13th Amendment was the one place where you could attack private discrimination i. Deals with housing private transactions 3. Court said it is therefore not a violation of the EPC may be bad or in violation of local law but not in violation of the EPC which only protects against the government b. 1168
1. 3. But the court said it must be equivalent to slavery
Jones v. than that s not the government 6. Mayer (1968) pp. This says that the stingy interpretation of the 13th Amendment under the Civil Rights Cases has been expanded
Content: Remedial or Substantive? (pp. Why didn t Congress use the CC? i. but where it s simply an innkeeper who doesn t want to serve based on race. Why could you get private discrimination banned under the 13th Amendment but not under the 14th Amendment? a. Rule of Law: Under the Equal Protection Clause of the Fourteenth Amendment. Because 13th Amendment doesn t include any state action limitation i. Federal Civil Rights Act of 1875 a. If the state or local laws affirmatively authorize the discrimination than maybe that might be a finding of state action. not private individuals. Court first talked about the 14th Amendment no state shall deprive anyone of equal protection i. Congress may only prohibit discrimination by state actors. What s wrong with telling public accommodators who they can admit? a. selling.2.
Marbury v. Congress is saying it s in violation of federal law 4. If Congress perceives that the requirement is itself a violation. Congress a. Justice Harlan s dissent pg. Court says this is proper enforcement of legislation by Congress a. Issue: May Congress enact a law under §5 of the 14th Amendment that limits state power to inhibit the free exercise of religion?
. In Boerne. 2. Rule of Law: Congress may pass legislation to enforce the Equal Protection Clause of the Fourteenth Amendment even when the legislation conflicts with state law. 2nd rationale: as long as Congress could perceive a basis it could go ahead and do so i. Substantive approach: Congress says approaches have potential to be abusive such that they can be in violation
Katzenbach v. even though the court has said it is not. Morgan (1966) pp. Enforcing the EPC means remedying the declared violations of the EPC 3. Held that Congress could not expand the substantive sweep of the Civil Rights Amendments. Flores (1997) pp. Extremely deferential to Congress 7.2. Giving up power of review under Marbury
City of Boerne v. 1172-1174
1. New York s argument: a. is that enforcement or Congress implementing a new meaning? 5. the Court held that the Religious Freedom Restoration Act extended beyond Congress power because it revised the constitutional norm rather than simply providing a remedy for an existing norm. Court upheld the displacement of the requirement on both grounds 6. 1175-1179
1. Congress is not declaring it unconstitutional. Court says as long as we can perceive a basis for Congress to do this then Congress gets the nod a. Congress could perceive that the literacy requirement is a direct violation of the EPC 1. 1st rationale: b. Remedial approach: Congress uses its power to remedy existing violations 3. The court reasserted that Marbury empowered the Court to define the substantive scope of the Constitution 2. Saying they are outlawing something constitutional itself because it believes it can lead to a violation b. Madison ii. 1173 a. Which would be a contradiction as to the Court s interpretation a. You can t impose this on us b.
It s remedial ii. 1177
. Overrules the Smith case 7. Same with wrongs and remedies i. Don t have strong rights ii. and. Court: a. like other acts. Rule of Law: Section 5 of the Fourteenth Amendment provides Congress with remedial powers only and. The right and wrong factors are congruent f. Argument that it could: Congress said this is like a prophylactic rule i. If Congress could define its own powers by altering the 14th Amendment s meaning. Religious freedom = strict judicial scrutiny 6. To remedy clear violations b. If it s beyond remedial than Congress is declaring substantive rights b. Some rights are strong going down to weaker rights (just a way of looking at this not very important Professor just made it up) a.pg. It would be on a level with ordinary legislative acts. Intentional discrimination requires strict scrutiny 9. Congress can do remedial but not substantive 11.3. Difference between remedial and substantive 10. To head off likely violations prohylactics c. no longer would the Constitution be superior paramount law. Can Congress pass a statute. The right to be free from non-purposeful negative affects from religion are weak i. The Court says Congress power is: a. Court draws line between remedial and substantive i. unchangeable by ordinary means. the court comes to the conclusion that the sweeping measures of this is crossing a line illegitimate substantive redefinition of rights 14. The link between wrong and remedy is about proportionality 13. 4. state and local government e. Thus. alterable when the legislature shall please to alter it. which has an effect of overruling or displacing a SC decision? 8. when upholding a constitutional right. There was no evidence of wrongs here so that was pretty weak d. Madison . Marbury v. Issue: could Congress go against what court said on religious freedom a. Here the right is kind of weak c. But for remedies it would go more from strong remedies to weak/focused remedies b. But can t declare new substantive/constitutional rights 12. Clear effort to overrule a SC decision goes against Marbury a. The remedy was a very strong remedy applied to every federal. Congress may only enforce legislation that utilizes means proportional to achieving that legislative purpose. Congruence and proportionality test (C&P) 5.
wrong. remedy) 5. Yes says Garcia d. A lot of deference to Congress here
. but may be problems if only regulating the states b. The remedy was very strong because it required states to spend money i. Cleburne is the closest case to this ii. no matter what the context. not strong right
Hypothetical on pg. we d have to run this formula (right. The right here is a weak. Flores type situation
Board of Trustees of the University of Alabama v. remedy) line up in such a way that majority concludes it does not pass the test of C&P e. Court a. Bottom of pg.Kimel v. Battle over where the wrong lever was was it strong or weak? i. Based on the real world c. Garrett (2001) pp. 1182-1185
1. The levers (right. Linkage between 11th Amendment and 14th Amendment 3. Based on the statute d. If there s a provision for monetary damages against the state. This is a Boerne case 2. Florida Board of Regents (2000) pp. Age discrimination case 2. 1181 Professor¶s Hypothetical
1. Garcia you can regulate state governments. Right to be free from employment disability not that strong i. If you re acting just against the states then you re in the Boerne v. Commerce Power c. Say Congress passes a law against incinerators private or public is this a violation? a. Garcia even if including the state in the bouquet of this regulation that s ok they can t get off from regulations just because they are states e. it is not viewed as being a problem unless you re asking for monetary damages 4. Court says they view this as the bottom tier it s a minimal equal protection problem a. Can states be subject to general regulation under the commerce clause? i. Laws that treat people whoa re disabled aren t as strictly viewed b. In the Smokestack case. wrong. 1182 a. 1180
Facts a. to grant up to 12 weeks unpaid leave annually to permit an employee to care for a serious health condition in an employee s spouse. but the majority opinion has lowered the remedy lever a. The Court upheld Congress law 3. Where the remedy is concerned the court says this is about whether Congress can require people with disabilities access to the courts 3. 1189
1. Hibbs (2003) pp. child or parent b. Congress argument a. Kennedy who wrote the majority opinion in Boerne b. The remedy is proportional to the wrong and to the right i. The remedy is a targeted remedy that will head-off violations c. Is it unconstitutional for government not to allow for family leave? a. Issue: the Court was confronted with the question of whether Title II of the Americans with Disabilities Act was a valid use of §5 of the 14th Amendment to abrogate state sovereign immunity 2. Recent case where the court shifts directions 2. 11861189
1. Lane (2004) pp. Says they are requiring something that the Constitution doesn t require to protect against something that the Constitution does require 7. Feels that this has become a new substantive right
Tennessee v. including state government. Majority (Rehnquist) a. The dissent says that this case is only about access to the courts. Lack of family leave will encourage sex discrimination in government employment 5. The majority has narrowed the statute has made it C&P 4. FMLA required employers. Linkage between sex discrimination and family leave b. The remedy is proportional to the wrong and to the right 1. Conclusion that this meets C&P 8. Has C&P been changed or are the rights and wrongs stronger and the remedy more targeted? 4. No b.Nevada Department of Human Resources v. Here you have a requirement nobody would say is constitutionally required 6. Congress thought there d be discrimination women most likely to case for these relatives and thus employers would be less likely to hire women i. The majority would say the right here is a stronger right it s not about the mentally disabled
. Dissent a.
Court said now that we ve recognized a strong.a. the Second Amendment to the United States Constitution creates an individual right to keep and bear arms apart from any military purpose. Court should have done the balancing would have come to the conclusion that even if individual right and not just militia right. The law at issue was that DC made it almost impossible to possess a handgun at home i. even if just in home for self defense b. This is in response to those who argue the 2nd Amendment is only supposed to apply to the right to militia 5. Didn t say the right to self-defense was fundamental 6. Breyer s Dissent a. Stevens Dissent a. 3.guns in the home violate the Second Amendment to the United States Constitution? 2. Hibbs and Lane a. Issue: Does a law prohibiting the possession of usable hand. 2nd Amendment protected a strong but limited right the court now recognizing that right a. First time Court said this 7. Means individual right to bear arms. Designed to keep federal government from states people in case they needed to fight against a tyrannical federal government
District of Columbia v. 1193-1213
1. Hunters could if kept disassembled 4. The wrong is strong 5. Says Scalia got the history wrong how it s interpreted/viewed 8. it s still outbalanced by the harms and risks 135
. Issues and facts a. Looks like the Court is allowing more flexibility in maneuvering these levers then was the case in Boerne
THE RIGHT TO KEEP AND BEAR ARMS AND THE PROPER INTERPRETATION OF THE CONSTITUTION
1. inherent right of self-defense they find this law that restricts this right is unconstitutional a. Rule of Law: Subject to certain safety limitations. Scalia says to look at the operative part of the 2nd Amendment provision a. Right to possess a gun at home for self defense 2. Standard of review isn t strict scrutiny must be some kind of intermediate scrutiny b. Heller (2008) pp. The preamble led a lot of people to think it was just a militia right a.
Right to bear arms against state and local government
. Pg. Justice Thomas PIC a. including the 2nd Amendment this is what was intended by the framers of the 14th Amendment 3. The right to bear arms as part of the 14th Amendment 2. We should change course. 99 of Supplement McDonald a.Post-Script to Heller
1. recognize that the Bill of Rights falls under the PIC.