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Constitutional Law Outline

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Constitutional Law Outline Powered By Docstoc
					How power works in our system of government - Power flows in 3 different directions (Check and balances and Separation of Power) o From judicial to legislative, and executive branches  Judicial Review  The way we study law is taught, through Supreme Court decisions  Nature, limits, why it is good or bad, how it should work o Between to elected branches (Legislative and Executive)  Who gets to decide how policy decisions are made o Judicial branch called upon to resolve conflicts  Should judges make decisions about who gets to make policy - States are important as well (Federalism)(Boundary between state and federal power) o How does the federal government have the right to regulate airport security? Source comes from the power to regulate interstate commerce  How do you determine intra-state or inter-state? o Affirmative sources of federal power  Commerce clause  Ability to tax and spend  Necessary and proper clause o What happens when a state tries to regulate inter-state commerce  Dormant commerce clause (Impliedly states congress may not do anything not stated in the Commerce Clause) - How do the people’s rights come into play? o What limits are there on the ability (power) of the government to tell people what to do? o Guantanamo detainees o Bill of rights protects those from the federal government…Framers didn’t think about what some states were doing to African-Americans (Now states can pose a series threat to rights (13, 14, 15th Amendments) o 14th Amendment due process clause limits state power over the people o 14th Amendment Equal Protection Clause Living Constitution - Look at the text and interpret the words - Look at the words in the context of history - Framers intent (To accommodate changes in understanding the world?) - Constitutional policy: Which mode of thinking should we choose and why? Lawrence H. Tribe, Comment in Antonin Scalia, A Matter of Interpretation - STRICT TEXTUALISM: When we ask what a legal text means, we ought not to be inquiring into the ideas, intentions, or expectations subjectively held by the drafters of the Constitution. - Textualism: Such thoughts and beliefs can never substitute for enacted law. It is the text’s meaning, and not the content of anyone’s expectations or intentions, that binds us as law - Authors and ratifiers may have intended to enact a provision that might, in light of its broad language, end up condemning some of what they regarded as just and proper. - Disagreements with Scalia: o MODERATE TEXTUALIST: Scalia proposes a dichotomy between a mode a textual interpretation that seeks out the original meaning of the text and one that looks for whatever meaning best meets the needs of a changing society o Scalia’s error: he looks at what people do rather than what they intended to say o Cannot discover which provisions are of which sort by ascertaining the facts about what a finite set of actors at particular moments in our past meant to be saying - The Constitution would elaborate what the text means in ways certain not to remain static

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o Article I’s references to congressional power to raise and support an army should not be read to negate congressional power to launch an air force Task of deciding which principles to treat as broader than their meanings suggest is the CORE of interpreting o Difficult task, is not a passive process of discovering rather than constructing an interpretation. THERE IS NO DEFENSIBLE SET OF RULES

Erwin Chemerinsky, Con Law Three factors that make constitutional interpretation difficult: o Countless problems arise that the Constitution doesn’t expressly consider  Constitution is an outline for government o Much of the constitution is written in open-textured language ―freedom of speech‖ ―taking‖ ―liberty‖ ―cruel and unusual punishment‖ Principle in Con Interp o Court face the question of what government justifications are sufficient to permit the government to interfere with a fundamental right  Freedom of speech Originalism o Judges deciding constitutional issues should confine themselves to the norms stated explicitly or clearly implicit in the Con. o First look at text and try to solve the question within the terms of the document o Ambiguous words or phrases are interpreted through the intent of the framers o If Con is silent, legislature must interpret o Only amendment can change Con’s interpretation o STRICT CONSTRUCTIONALISTS  Court must follow the literal text and specific intent of drafters  In a dem system, elected branches should make the decisions o MODERATE ORIGINALISTS  More concerned with adopters general purposes than with intentions in a precise sense Non-Originalism o Permissible for court to interpret the Con to protect rights not explicitly stated  Look to other sources of authority o Con’s meaning can evolve by amendment and interpretation o Historical practice is of interest but not determinative because Con is not limited to framers intentions o Principles in the Con should play a significant part of what government gets to do o Varieties of non-originalism  Tradition should be a guide in interpreting Con – Look at how people, judges, and legislatures assumed those words would affect what they do. Works if people were allowed to live without major restrictions on Con meaning  Emphasizing the court’s role in implementing and interpreting Con  Political Process: (Representation Reinforcing Review) Agree that you must be careful before allowing judges to invoke the Con, but we know that the Con sets up a system of democratic representation and decision-making. That fact has implications for Con interp. If the government is denying the people democratic representation, it is appropriate for courts to be more aggressive to fix the political process itself. Source of authority to use in Con interp beyond original intent is the broad notion of democratic representation itself. (Disputes about the right to vote)  Follow moral consensus in society. Words mean different things at different times. Normative and subjective terms. What do people think are, for example, cruel and unusual now and in history?

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 Ely

Natural Law. If you believe in natural law, that there are certain, unalterable precepts or justice,

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o Court can be nonoriginalist when following a representation-enforced approach and originalist when providing for procedural fairness Originalist arguments o Very nature of interpreting a document requires its meaning to be limited to framers’ intentions o Approach is desirable to constrain power of unelected judges in a dem society Nonoriginalist Arguments o Desirable to have Constitution evolve by interpretation o Few amendments are passed o There is not a knowable framers’ intent that can resolve Con questions…it is an interpretative process affected by contemporary values o Even if collective intent is found, historical materials are too incomplete

Interpretations of Marbury: - Decision was an incidental byproduct of the ordinary judicial function in deciding lawsuits: to look to the governing law, to consider the Con as one relevant source of law, and to give priority to the Con and to refuse enforcement of any contravening legal norm. - Con endows the Court with the power to police the other branches, acting as central guardian of constitutional principles and special enforcer of Con norms Marbury v. Madison Six Key Principles 1. Federal judicial power: rightremedy 2. Courts may not review ―political questions‖ a. Marshall doesn’t use the term b. Political question doctrine – discretionary decisions as opposed to mandatory decisions c. ie. Court can’t order Congress to pass a law or order the President to do something within his political discretion d. Judicial appointment here was a political discretionary decision. Once the decision got made, there are mandatory administrative actions that must follow. Sec. of state MUST deliver commissions, so it isn’t discretionary and it can be ruled upon by the court 3. Supreme Court may review actions of executive branch for constitutionality a. This isn’t discretionary, so we can review the case 4. Supreme Court may review acts of Congress for constitutionality 5. Congress ay not expand SC jurisdiction beyond limited of Act III 6. SC must apply Con  must interpret 7. the constitution is the law, and the judiciary as the institution with the final responsibility to interpret the law, is the cornerstone of judicial review today. Holding: - When a commission has been signed by the President, an appointment is made. Withholding commission violate a legally vested right - The nature of the act determines whether it is examinable in a court of justice - Marbury doesn’t have a right to the commission - COURT POWER OF JUDICIAL REVIEW Analysis: - President is vested with powers, and is accountable to his country in his political character. He is authorized to appoint certain officers.

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The acts of such an officer, as an officer, can never be examinable by the courts Where a specific duty is assigned by, individual rights depend on the performance of that duty, that the individual who considers himself injured seeks a remedy o U.S.C. Section 1983 for remedies doesn’t apply to remedies against federal government o Bivens v. Six unknown Federal agents: Right to recover damages, so there must be a remedy o Bivens action: Cause of action you can bring for damages if you are harmed by the federal government The act to establish the courts of the U.S. authorizes the Supreme Court to issue “mandamus in cases warranted by the principles and usages of law, to any courts appointed, to persons holding office under the U.S. Power is expressly to all cases arising under the laws of the U.S. The Act defines the jurisdiction of the Supreme Court by declaring the cases in which it shall take original jurisdiction and that in others it shall take appellate jurisdiction This is brought as a case of original jurisdiction. Judiciary Act of 1789, Section 13, authorizes the court to issue writs of mandamus for original jurisdiction. Marshall concludes that this is not properly an original jurisdiction case; it can only come as appellate jurisdiction. What Congress did in Section 13 of the Judiciary Act of 1789 is improper because that provision gave the court original jurisdiction over provisions that should be appellate Marshall reads the Act fo 1789 in a hostile way…Marshall says that the statute authorizes the court to issue mandamus in cases of original jurisdiction o You could say the statute means that the SC can issue mandamus in the ordinary course of its authorized duties (Appellate cases) o Principle of Constitutional avoidance………. o Where possible, SC and fed courts should read statutes in a manner that is consistent with the Con. Always read the statute in a way that saves the Con provision. The Con is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with legislative acts, and is alterable when the legislature shall please to alter it Duty of the justice department to say what the law is If a law is in opposition to the Con so that the court must either decide that case conformably to the law, disregarding the Con; or conformably to the Con, disregarding the law; the court must determine which of the conflicting rules governs the case Judiciary Act of 1789: Supreme Court has appellate jurisdiction from courts from the states. Congress has control over what kinds of case SC gets to hear. Exceptions Clause: Congress shall have appellate jurisdiction over a broad category of cases subject to congress’ discretion. Congress can say that the Supreme Court can’t hear certain kinds of cases. Federalist won overall here even though they didn’t get their judges into the court because, in terms of political beliefs, the federalists were in favor of a strong central government. Immediate political sense: Marshall has expanded the power of the one branch where the federalists had been in control an incredibly advanced and expanded scope of power…the power to tell the other branches that their laws are invalid. Political philosophy: Expanded power of the fed gov…Complex power structure. Justification for judicial power: o Marshall says that the Con is an enactment of the people of the whole nation, and it is the law that is closest to the direct will of the people. Therefore, the actions of the elected branches are subordinate to the principles of the Con because they are passing fancies as compared to the Con. o How does the court have authority to decide when the political branches have transgressed the Con?  As a matter of mechanics of judicial review, judiciary has no choice but to interpret the Con. Obviously we have to apply the proper law. If someone challenges or invokes an Act of congress, SC must determine whether or not act of congress is consistent with the Con.

Background:

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Political and Historical Setting o Four days before Jefferson’s (Republican) election, Federalist congress created the Circuit Court Act and gave all judge jobs to Federalist judges. o Commissions had been signed by Adams and sealed, but not delivered by Marshall. Jefferson nullified the commissions o Congress fought Jefferson and abolished 2 Supreme Court sessions o Jeffersonian House voted to impeach Judge Pickering from office. o Senate could not get the voted to impeach Chase o Marbuty sues Madison to deliver the commission Alternative forms that Marshall could have avoiding reaching the influential decision o Recusal  Marshall took part in the proceedings…was part of the action o Common law  Commission was a form of property, Marshall may have decided that they didn’t vest until delivery o Political question  Marshall may have determined that Marybury’s question was political, not legal, and dismissed the case o Statutory Construction  He may have found that the Act conferred mandamus power not fitting into original jurisdiction and dismissed for lack of jurisdiction Interpretations of Marbury o Republicans insisted that a judiciary armed with authority to nullify acts of congress would become a tyrant, bending the nation at its will o Federalists thought that the people were their own worst enemies and would be driven to the election of demagogues who would lead an assault on the rights of the stbale members of the community by undermining a national judiciary o The premise of the Con would not be disserved if Congress itself judges the constitutionality fo its actions, and the judiciary could interpret legislative interp as definitive o Federalist papers supported judicial review  ―The judiciary has no influence over either the sword or the purse, and can take no active resolution. It has neither force nor will, only judgment.‖  Courts were designed as an intermediate body between the legislature and the people to keep the legislature within the limits of their authority Judicial review has become imbedded in the American psyche as a practical matter

Judicial Exclusivity in Constitutional Interpretation Is the Con the supreme law of the land? Are courts the ultimate or exclusive interpreters of the Con, or can other branches share the authority? Counter-majoritarian difficult – notion that we have fundamentally a democratic government where elections determine public policy. Judges aren’t elected. If judges have the power to tell elected representatives what to do, there is something wrong with that.

Cooper v. Aaron Procedure: - Claim by governor and legislature of a state that there is no duty on state officials to obey federal court orders resting on the Court’s considered interpretation of the Con. - Governor says the state isn’t bound by Fed holding in Brown

Holding: the constitutional rights of children not to be discriminated against in school admission on grounds of race or color declared by this court in Brown can neither be nullified openly and directly by state legislatures or state executive or judicial officers, nor nullified indirectly through evasive schemes for segregation (Equal Protection) Analysis: - Article VI of the Con makes the Con the supreme law of the land - Interpretation of the 14th Amendment in the Brown case is the supreme law of the land, and Article VI makes binding on the states any thing in the Constitution or law of any state contrary notwithstanding Authoritativeness of Supreme Court Decisions - Some believe that cooper expanded Marbury by confusing Marshall’s assertion of judicial authority to interpret the Constitution with judicial exclusiveness - Reagan AG: Obvious a SC decision is binding; it binds parties in a case and also the executive branch for whatever enforcement is necessary. But such a decision does not establish a Supreme law of the land that is binding on all persons and governments hereon - Article V provides that Congress may initiate an Amendment to the Con, and the amendment can be used to overturn a constitutional interpretation of the SC. - Dickerson: Miranda may not be overruled by an act of Congress Questions: - What is the role of the judiciary in relation to legislative branch? o Congress is an equal protector of the Con o Marshall may have decided that court must consult Con when deciding what ordinary law is just as the legislators must consult the constitution when determining what the law shall be. - Are Supreme Court interpretations binding on Executive Branch? o Jefferson  Jefferson pardoned many convicted under Sedition Act o Jackson  Vetoes a bill to recharter Bank of the U.S. even though the SC had held the bank within the constitutional authority of Congress.  Mere precedent is a dangerous source of authority, and should hold Con power except where approval of people and states has been given o Lincoln  Dred Scott v. Sanford held that an African American was not a U.S. citizen and lacked the privilege to sue in fed court.  ―We propose so resisting it as to have it reversed if we can, and a new judicial rule established upon this subject o Roosevelt  Schechter Poultry Corp. v. U.S.: Court narrowly construed regulatory powers and invalidated National Industrial Recovery Act. Roosevelt urged Congress to enact a NIRA-like act - Is judicial review consistent with democratic government? o In declaring a law unconstitutional, and unelected court thwarts enforcement of a law that presumably reflects will of the voters - Dual conception of political life: o Normal politics: factions pursue narrow interests o Constitutional politics: people speak through constitutional amendments or constitutional moments where a mass of Americans express their assent through extraordinary institutional forms - Judicial review thrives by default because no alternatives are palatable

o Marshall Court made it possible for the federal judiciary to control constitutional arbitration. Judicial review is a way of solving a practical problem of government. Standing Justicablity Doctrines (Court doesn’t decide cases in general unless there are cases and controversy) - Cases and controversies language is a limitation on authority - Advisory opinion – Pre-emptory questions to the judiciary. Court won’t issue advisory opinions. Not a case or controversy because there is no injury. No one has been aggrieved yet. Merely a question of law. There are definitely reasons why you would like an advisory opinions - Theoretically, the power of constitutional judicial review is the ultimate government power. Something must constrain potential danger that the court could run the table Mootness - When litigants who have standing to sue at the outset of litigation are deprived a concrete stake in the outcome by changes in the facts or law after a lawsuit is underway - Exceptions – Cases that are capable of repetition but evading review - Reduce manipulation Ripeness - Prevents premature adjudication, in situations where dispute is insufficiently developed - Requests for anticipatory relief o I’m worried that XYZ is going to happen - Facial statute o Can bring: This statute in all of its applications is unconstitutional. If there is SOME situations where statute is unconstitutional, the facial challenge is lost Standing Questions to ponder - Does the standing principle really limit judicial power, or does it expand judicial power? o Lujan straightforward…but depends on courts relations between injury and relief. The court has the ability to manipulate the facts and elements of a claim. - Is it helpful to have justiciability doctrine if the court can find a way to characterize a claim as imperfect from a justiciability standpoint and dismiss it…saving judicial power for a bigger fight - Is the court really doing this in order to constrain itself, or is the court helping and preserving its own power by picking its fights and drawing preferential boundaries around decisions it has to make Lujan v. Defenders of Wildlife FACTS: Endangered Species Act seeks to protect species of animals against threats to their continuing existence caused by man. Section A notes that, ―each federal agency shall, with assistance of Secretary of the Interior, insure that any action authorized, funded, or carried out by the agency is not likely to jeopardize the continued existence of nay endangered species. Groups on behalf of Secretary of the Interior and Commerce created a regulation stating that the provision applied to actions taken in foreign nations. A revised regulation excluding foreign nations was created. Secretary of the interior was consulting with groups, consultation with groups usually applied to places overseas. PROCEDURE: - P orgs dedicated to wildlife conservation filed an action against Secretary of the Interior seeking declaratory judgment to eliminate the modification in the provision and Secretary moved for summary judgement on standing - D.C. and Court of Appeals ordered Secretary to cancel the modification ISSUE: Whether respondents have standing. Whether public interest in proper administration of the laws can be converted into an individual right by a statute, or that permits citizens who suffer no discrete harm, to sue

HOLDING: Reversed. ANALYSIS: - Standing elements o P must have suffered an ―injury in fact‖ – an invasion of legally protected interest which is:  Concrete and particularized  Actual or imminent, not conjectural or hypothetical o Must be a causal connection between the injury and the conduct complained of – injury must be traceable to the challenged action of D o Must be likely that the injury will be redressed by a favorable decision - INJURY o P claims injury is lack of consultation with respect to funding activities abroad increases the rate of extinction of endangered and threatened species o Injury requires P himself is injured o No facts showing that damage to the species will produce imminent injury to Ps. o The fact that they have visited and only ―intend‖ to go back doesn’t help o Court isn’t supposed to be making evaluations of the injury…unduly speculative…no concrete plans to go abroad o P standing theories  ―animal nexus approach‖ – anyone who has an interest in studying and seeing endangered animals anywhere in the globe has standing  ―Vocational nexus approach‖ – anyone with a professional interest in animals can sue  Goes beyond limit to say that anyone who observes or works with an endangered species is harmed by a single project - REDRESSABILITY o Secretary could be ordered to revise his regulation to require consultation for foreign projects, but this doesn’t remedy the funding question by individual agencies…agencies supply only a fraction of a funding project - ―PROCEDURAL INJURY‖ o P says Citizen-suit provision gives right to sue to anyone for Secretary’s failure to follow procedure o A P raising only a general grievance about government – claiming harm to every citizen and not showing direct tangible benefits, does not state an Article II controversy  Scalia discusses departure to constitutional principles (Article III) in discussing standing o Vindicating public interest in government observance is for Congress and President Concurrences - We must be sensitive to the articulation of the rights of action that do not have clear analogs in commonlaw tradition Dissent - P have raised genuine issues of material fact sufficient to survive summary judgment - Congress seeks to strengthen already mandated procedures, not hurt Residential powers MA v. EPA FACTS: Global temps are rising and concentration of CO2 has increased. No controversy exists when parties seek adjudication of a political question, ask for an advisory opinion. EPA maintains the decision not to regulate greenhouse gases from new motor vehicles because it contributes insignificantly to petitions’ injury ISSUE: Does MA having standing HOLDING: Yes

ANALYSIS: - EPA says that greenhouses gases are widespread harm so no standing exists - A litigant whom Congress has accorded a procedural right to protect his concrete interests – here, the right to challenge agency action withheld – can assert that right without meeting all normal standards for redressability and immediacy. - Under procedural right, a litigant has standing if there is some possibility that the requested relief will prompt the injury-causing party to reconsider the decision harming the litigant - MA is a sovereign state, and states are not normal litigants for invoking federal jurisdiction - INJURY o Climate change is serious and risks are widely shared o Rising seas have swallowed MA coastal lands and MA owns a lot of the property - CAUSATION o EPA’s refusal to regulate the emissions contributes to MA’s injuries o Reducing domestic emissions is not a tentative step - Rise of sea levels has and will continue to harm MA. Risk would be reduced if MA got relief DISSENT: - State ownership of land is a non-sovereign interest because state has similar interests as other landowners - Global warming concept is not concrete and particularized - Nothing in the case to support in inference of actual loss of coastal land - Cannot trace injuries to harms that could have been reduced by EPA standards - 80% of emissions come from outside US, so domestic emissions is marginal Constitutional and Procedural Elements of Standing - Elements o Personal injury  Particularized, concrete, distinct, palpable o Causation o Remedy - The law is about probabilities, not certainties - MA v. EPA: Court should have seen this as a political fight over national policy - CAUSATION o The causation requirement put a burden on P to show the harm is traceable to the government - REDRESSABILITY o Harms could be decreased, not eliminated - PRUDENTIAL STANDING DOCTRINES o Court has imposed prudential limits on  3rd party standing  Generalized grievances  Suits outside a law’s zone of interest o Court has refrained from adjudicating abstract questions of wide public significance - THIRD PARTY STANDING o Third party standing is more likely to be allowed the closer the relationship and the greater the identity of interest with the rightholder, and the greater the unavoidable hinderance to the rightholder’s own assertion of rights o Exception: Associational standing  Associations routinely bring lawsuits on behalf of their members. Technically, it is a 3rd party standing problem but it’s allowed. If the presence of the individual members is not necessary and the suit can be brought for the association. (Union and collective

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bargaining). Court says we don’t need the individual union members in court in order to get the pitch. GENERALIZED GREIVANCES o Court has declined to hear constitutional claims from a P who is one of millions of taxpayers interested in resolving a gov. action o Affects more people, rather than fewer people ZONE OF INTEREST o The ―any person‖ formulation applies to actions against Secretary asserting over or underenforcement o You must have a personal stake in order to be a proper plaintiff. CONGRESSIONAL POWER TO CONFER STANDING o Private AG’s can challenge a gov. action o Where a harm is concrete, though widely shared, Court has found injury in fact o Congressionally authorized privately initiated public actions (qui tam suit)…Congress could legislatively assigned injury to a private P MOOTNESS o When litigants who have standing to sue at the outset of litigation are deprived a concrete stake in the outcome by changes in the facts or law after a lawsuit is underway o Exceptions – Cases that are capable of repetition but evading review o Reduce manipulation RIPENESS o Prevents premature adjudication, in situations where dispute is insufficiently developed o Requests for anticipatory relief

Paradox - Maybe these justiciability doctrines expand the power of the court - Standing – Court can manipulate its account of the pleadings and Ps relationship to the controversy - The more manipulability, the more danger there is that the court can use the principle to enhance its own power by limiting its power Political Question Doctrine - Two strands  Some matters are committed to the unreviewable discretion of the political branches (Constitutional)  Finding a principle in the constitution is the best way, because the principle would keep the court honest.  Whether there has been a textually demonstrable constitutional commitment of the issue to a coordinate political branch o Some otherwise legal questions ought to be left to other branches as a matter of prudence  Perception of a lack of judicially discoverable and manageable standards for resolving an issue  Prudential (If the Con doesn’t require us to limit out power, we’ll do it anyways because we think it’s a good idea)  (Respect for coordinate branch) (Prudential)  No judicially manageable standard  Prudential and constitutional – As a matter of judicial wisdom, kick the question to another branch. Could be constitutional, because, if the constitution didn’t create the standard, the court cannot try to case. BAKER (Equal protection clause) v. CARR (Guaranty Clause)

FACTS: Voters in TN claimed that apportionment of TN Assembly violated equal protection rights by debasing their votes. Although state constitution allocated representation on population basis, Assembly hasn’t been reapportioned since 1901. Also, legislative changes weren’t possible because of the malapportioned legislature. Civil rights case. PROCEDURE: - P sought injunction against further elections and asked federal trial court to direct elections or decree an apportionment - Lower court denied relief ISSUE: Whether our precedents as to what constitute nonjusticiable political questions brings us under the umbrella HOLDING: Challenge to an apportionment presents no nonjusticiable political question. Claim doesn’t implicate the Guaranty Clause (Republican form of government Clause, Article IV, Section IV) ANALYSIS: - In Guaranty Clause cases, it is the relationship between the judiciary and the other branches, not the judiciary’s relationship to states that brings up a political question - Nonjusticiability of a political question is a function of separation of powers - FOREIGN RELATIONS o Error to suppose every case or controversy which touches foreign relations is beyond judicial cognizance - VALIDITY OF ENACTMENTS o The need for finality and certainty about the status of a statute contribute to judicial reluctance to inquire whether it complied with the formalities - POLITICAL QUESTIONS FOUND WHERE: (political questions, not political cases) o Issue to coordinate a political dept o Impossibility fo deciding without initial policy determination of a kind for nonjudicial discretion o Court’s undertaking independent resolution without expressing lack of respect to the other branches o Need for questioning adherence to a political decision already made - REPUBLICAN FORM OF GOVERNMENT o Court in Luther; Guaranty Clause invoked; Which form of government should be had in RI? (Unjusticiable); Guaranty Clause doesn’t discuss which branch should manage the clause. o Several factors to make the question political:  Commitment to other branches of the decision as to which is the lawful state government  Unambiguous action of President, in recognizing charter government as lawful authority  Need for finality in executive decision  Lack of criteria which court could determine which form of government was republican o None present in this case  No question decided by a coequal branch  Didn’t take issue with TN as to constitutionality of action challenged  Appellants need not ask for policy determinations  Judicial standards under equal protection clause are well developed o No text that says congress has this job and the court doesn’t, but it is plausible for the court to determine that court decisionmaking was not right. DISSENT: - Complex matter of policy being committed to courts - Court has been unwilling to intervene in matters of structure and organization of political institutions - Courts are not fit instruments of decision where a policy tradition is at stake

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o Political philosophy theories at stake Equal protection clause not helpful

Constitutional of Prudential Better? We don’t want the court to manipulate justiciability doctrines for its own game Want to lock the court down by constitutional text However, the prudential doctrine may be the best explanation for many cases If the point is keeping the court honest, maybe the best thing to do is have the court come out and say what they think is the best thing to do. Observers in the country ask to justification (Prudential) Distinguishing Legal from Political Questions - CONGRESSIONAL QUALIFICATIONS o Powell held justiciable the question what congressional qualifications consisted of but not the decision whether a member satisfied those qualifications - TREATY ABROGATION o Goldwater v. Carter: Whether President had the authority to terminate a treaty unilaterally was nonjusticiable because it is a dispute of coequal branches of government - IMPEACHMENT PROCEEDINGS o Nixon v. U.S.: Committee of senators heard impeachment evidence. Nixon claimed the proceedings should have been heard by the whole body. Injusticiable because impeachment was designed to be a check on judicial branch o Concurrence said that if the senate acted in a manner that would threaten the integrity of the results, the judiciary could step in (If the Senate just didn’t try Nixon, you’re in a zone where the senate is obligated to do something…that is mandatory for them) o In a case where the senate has decided to use a reasonable methodology to complete the impeachment trial, the court - CONSTITUTIONAL AMENDMENT PROCESS o Coleman v. Miller: Held nonjusticiable the question of what is a reasonable period of time for ratification by the states of a constitutional amendment proposed by Congress under Article V. - PRESIDENT ELECTION PROCESS o Bush v. Gore election fiasco was resolved by the courts. Some feel that the court failed to withdraw from the political thicket when other institutional actors were present to address the potenial harm. Difference between political question and standing doctrine - what different elements are a legal complaint that we can look at when it comes to cases that the court shouldn’t hear o Nature of the question o The timing o Standing of the plaintiff o Question as to the separation of the powers - Generalized grievance (Way to connect political question and standing doctrine) If the court says it is a nonjusticiable political question, the court is saying it is a matter in discretion with the coordinate branch. U.S. v. Nixon: What happens when the decision that comes to the federal court is a state court decision? HYPO: State taxes newsprint (glossy magazine). Publisher challenges law in state court because glossy paper is not newsprint within meaning of state statute. Goes to PA Supreme Court and upholds the decision, that the glossy paper is newsprint. Supreme Court cannot hear it because it is a state dispute about a state law.

HYPO revision: What if the publisher challenges statute because it is a violation of 1st amendment rights, burden on speech. PA Supreme Court affirms; no 1st amendment violation. U.S. Supreme Court can hear it. HYPO second revision: What would happen if the publisher challenged the application of the PA law on state (Glossy paper isn’t newsprint) and federal grounds (1st amendment) and won on the state law issue. U.S. Supreme Court shouldn’t take the appeal because it isn’t necessary to solve the constitutional issue. Independent and adequate state ground principle – When you have alternative grounds for the holding. Neither of those grounds are the necessary grounds for the decision. If S.Ct. is issuing a decision on a question of law that wasn’t necessary to the case and controversy, it is more like an advisory opinion. We don’t want the Supreme Court to decide more than it has to decide. State law is independent and adequate to support the decision. Must be able to point to the state court decision to prove it. What’s the difference between the two? Issues: The nature of the substantive effect of the law Issue: U.S. Supreme Courts authority to interpret the constitution. (encourage uniformity on federal questions and there may be substantive reasons) Supreme Court Authority to Review State Court Judgments - Martin case involved controversy over Section 25 of the Judiciary Act of 1789, which provided Supreme Court review of final decisions of the highest state courts rejecting claims based on federal law - Martin says federal treaties with England kept loyalist land in their own hands - Article II, which left the creation of lower federal courts to Congress, reflected a compromise between mandatory creation of lower federal courts and leaving initial application of federal law entirely to the state courts. + Supremacy Clause of Article VI. - Martin arose from refusal of VA court of appeals to obey Supreme Court’s mandate in Fairfax’s Devisee v. Hunter’s Lessee: o VA claimed that it properly seized Fairfax properties as lands belonging to loyalists and parceling out the lands to its citizens. Hunter claimed land under land grant; Martin claimed title from Fairfax devise. o VA Court of Appeals decided for Hunter, holding VA’s seizure ineffective o US Supreme Court reversed, instructing VA judges to side with Martin o VA Court disobeyed the order, concluding the Supreme Court didn’t have appellate power  Argued that, if federal questions were allowed to arise in state courts, state courts must be final adjudicators  Argued that appellate jurisdiction of Supreme Court doesn’t extend to state court decisions (Federalism argument – supreme court tyranny) o Supreme Court upheld federal appellate power Federal Judiciary Act – Where might state courts encroach on federal prerogatives? - If state court shoots down a federal decision - If a state supreme court upholds a state enaction against a federal challenge Martin: 3 Key Principles - Constitution stripped states of essential attributes of sovereignty o Supremacy Clause - Article III gave Congress power to grant S.Ct. appellate jurisdiction over state court decisions about questions of federal law - Congress in Judiciary Act of 1789 established a pyramidic structure of federal courts to encourage uniformity on federal questions o They could have done it differently, in the way VA wanted. MARTIN v. HUNTER’S Lessee

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Appellate power is not limited by terms of the 3rd article to the constitution to any particular courts. Judicial power shall extend to all cases and in all other cases before mentioned the Supreme Court shall have appellate jurisdiction It is a mistake to believe that the constitution was not designed to operate upon the states. It is crowded with provisions which restrain or annul the sovereignty of states VA and U.S. are not co-equals. States are second-tier HOWEVER, this doesn’t impact the independence of state judges o Abuse of power response: It is always doubtful course to argue against the use or existence of power, from the possibility of its abuse o SOME court has to have the last word o Federal courts care more about federal rights. Need to give federal constitutional interest a fair shake. Federal judges are from state, know something about state interests, many were state judges MOTIVE: Necessity of uniformity of decisions throughout the whole United States, upon all subjects within the purview of the constitution o Judges of equal learning and integrity, in different states, might differently interpret a statute o Without no revising authority, the laws of the U.S. would be interpreted differently in different states

Further Clashes Between Supreme Court and State Court Authority - Supreme Court Review of State Criminal Cases o Cohens v. VA: Court sustained its jurisdiction to review the validity of state laws in criminal proceedings  VA argued here that Supreme Court had original jurisdiction in cases where a state was a party, not appellate jurisdiction  Justice Marshall says, ―the judicial power extends to all cases arising under the constitution or a law of the U.S., whomever may be the parties  Harsh view of the reliability of state judges - State interpretation and Nullification o More extreme opinions asserted state’s rights to interpose their own interpretations on the constitution and that the constitution was only a compact of several states The National and the States in the Federal System - Background o Articles of Confederation emphasized limits on national powers; Article II stated that the state retain all powers not expressly delegated to the federal government o Constitution should strengthen national powers  VA Plan proposed that national legislature ought to be empowered with rights in the Articles of Confederation plus in all cases where the states are incompetent, or which the harmony of the U.S. might be interrupted by individual legislation  Constitution Article I, §8: increased Congress’ powers over taxation and regulating interstate and foreign commerce (Also, §8 enumerates other powers and what can’t be done)  Constitution Article I, Section 8: Necessary and Proper Clause, Congress ―can make all laws which shall be necessary and proper for carrying into execution all foregoing powers  10th Amendment: Powers not given to the government are given to the states. What are the limits of the enumerated powers, and what is the role of the 10th Amendment? McCulloch: 6 Key Principles - constitution  The People

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Federal government: Enumerated powers Necessary and Proper Clause: The Congress shall have power …To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof S.Ct.: Expound meaning of constitution Federal law is Supreme State actions inconsistent with proper federal actions are per se (in of itself) invalid McCulloch v. MD

FACTS: Controversy over MD’s power to tax the 2nd Bank of the U.S. MD legislature adopted An act to impose a tax on all banks or branches thereof in MD, not chartered by the legislature. Any banks operating in MD without authority from the state could issue bank notes only on stamped paper, furnished by the state upon payment of a fee varying with denomination of each note…providing penalties for violators. PROCEDURE: - Action for statutory penalty brought by John James, suing for himself and the state, against the cashier of the Baltimore branch of the 2nd Bank and that he had issued notes without complying with MD law. - Case decided against McCulloch and affirmed by court of appeals ISSUE: Has Congress the power to incorporate a bank and whether MD, as a state, can tax that branch HOLDING: Congress has the power to incorporate and MD cannot tax the Baltimore branch of the federal bank ANALYSIS: - The constitution, when adopted, was of complete obligation, and bound the state sovereignties - MD – Says that constitution is compact entered into by several states, no ―chartering a bank‖ clause in Article I, §8 o Marshall takes issue with the state genesis argument. Constitution represents the acts of the people, and not the action of several states - Among the enumerated powers, we do not find that of establishing a bank or creating a corporation…no phrase in the instrument which excludes incidental or implied powers - ―We must never forget that it is a constitution we are expounding‖ o Framers wanted to give us an outline, a general charter of the boundaries of the federal government. They left to the Supreme Court to fill in the blanks - The government has a right to do an act, and has imposed on it the duty of performing that act, it must be allowed to select its means o Power of making war, regulating commerce - To enumeration of power is added that of making ―all laws which shall be necessary and proper for carrying into executing the foregoing powers. - Congress empowered to make all laws WHICH ARE NECESSARY AND PROPER for carrying them into execution o Necessary frequently imports no more than that one thing is convenient, or useful, or essential to another o The word is used in various senses; the subject, context, the intention of the person using them are all to be taken into view o Even if there isn’t a N&P Clause, the people would have wanted their central government to do the work that the people delegated. That granted powers can be necessarily implied. o N+P Clause in the Section of the constitution the grants Congress powers. - ie. Congress has power to establish post offices and roads, and the delivery of mail of implied… o Marshall’s test (Means/Ends Review)  Let the end be legitimate

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Generally lenient test. Sense in which this idea may morph into (Appropriate for us to inquire into the government’s reasons for doing what it is doing)(Mindset of congress? Court has taken upon itself the authority to scrutinize WHY Congress is doing what it’s doing. Is it pretextual?)  Let it be within the scope of the constitution  And all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consistent with the letter and spirit of the constitution. (Anything congress does that serves a legitimate end is acceptable) o Bank should not be excluded, necessary for fiscal operations CAN MD TAX THE BRANCH? o States are expressly forbidden to lay any duties on imports or exports, except what may be absolutely necessary for executing their inspection laws. Same character would seem to restrain a state’s use of this power where incompatible with the constitution o MD says that the states start out as sovereigns…and have the power to tax. Constitution no longer says that the states no longer have taxing power o Application:  The power to create includes the power to preserve  One with a power to destroy is hostile to the powers to create and preserve  Authority which is supreme must control, not yield to that over which it is supreme  Sovereignty of the state, in taxation, may be controlled by the constitution  If the states may tax one instrument employed by the government in execution of its powers, it may tax any other instrument  When a state taxes the operation of the government, it acts upon institutes created by people over whom they have no control o MD here would be taxing the federal government for the benefit of the people of MD. MD legislature is not politically accountable to the people of the United States as a whole BROAD VIEW OF IMPLIED POWERS

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Background and meaning of McCulloch - Jefferson-Hamilton Debate over 1st Bank o Hamilton (urging national bank)  Augmentation of the active or productive capital  Facility as to government obtaining aids in emergencies  Facilitating payment of taxes o Jefferson (anti-national bank)  Not necessary, and consequently not authorized by the constitution  Jefferson says necessary means no more than needful, requisite, incidental, or useful - Second Bank of the U.S. o 1st bank coincided with times of fiscal difficulties o Approved bank charter in 1814…president vetoes in 1815 o 1816 Congress established bank acceptable to Madison o 1818 – financial depression  Mcculloch and accomplices charged with looting the bank by instigating unsecured loans and sanctioning unreported overdrafts  Anti-bank measures came o 1832 – Jackson veto of recharter o 1836 Bank out of existence - Notes

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o No provision in constitution that specified that federal instrumentalities were immune form state taxation o Marshall interpreted the warranted relational properties between national government and states’ governments o Potential destructive consequences of states’ powers to tax the federal government Political Process Non-originalism o We have to invoke the constitution to strike down this action MD is taking because there is no way for the political process to resolve this question. Breakdown of political accountability. The Supreme Court must step in here and strike that action down as a boundary-drawing principle of judicial review. U.S. Term Limits Inc. v. Thornton

PROCEDURE: - Constitution sets membership in Congress (age, residency, and citizenship) in Article I. - Challenge to an amendment in Arkansas State that prohibits the name of an eligible candidate for Congress from appearing on the general election ballot if the candidate has already served 3 terms in Congress or 2 in the senate - Arkansas Supreme Court held that it violated the constitution HOLDING: The amendment violates the federal constitution ANALYSIS: - State-imposed regulation contrary to fundamental principle of representation democracy that the people should choose who governs them (Powell) - Inconsistent with framer’s vision of national legislature representing the people - Powell: house’s power to exclude a member (Congress may not alter or add qualifications to the constitution) o Petitioners argue that Powell doesn’t support conclusion that Constitution prohibits additional qualifications by states o Disagree  Power to add qualifications not within the original powers of the states (10th Amendment)  Framers divested states of any power to add qualifications (Congress is exclusive source of qualifications - Powers proceed from the people of several states o National government owes primary allegiance to people of the nation o Electing reps was a new right given by constitution. 10th amendment no basis for concluding that states have the power to define qualifications - State governments retained rights of sovereignty they had before that is not now exclusively delegated to U.S. o States can’t exercise power that springs out of national government which isn’t clearly delegated to them - Justice Story: Rejected argument that Constitution’s silence on state power to tax corporations chartered by congress implies that states have reserved the power to tax - Concurrence: Members of Congress occupy offices that are essential to national government o National government controlled by the people without collateral influence by states DISSENT: - Nothing in the constitution deprives people of each state the power to prescribe eligibility requirements - Where Constitution is silent, it raises no bar to action by states or people - Consent of the people of each individual state is ultimate source of authority, not people of nation as a whole

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Fed powers are limited and enumerated Constitution doesn’t recognize a mechanism for action by undifferentiated people of the nation The people of each state trusted their fate to people of several states when approving constitution, but people of each state retained separate political identities Majority says states possess powers that constitution affirmatively granted OR that they had before enactment o McCulloch indicated that all power as to which constitution didn’t speak reserved to states

Term Limits and McCulloch - Opposing structural default rules for state and national power o Majority – States have no reserved powers over operation of federal government o Dissenters – states have all powers except those that constitution withholds - Term limits and representation reinforcement o Argument that state’s imposition of term limits on its own congressmen imposes negative externalities on other states…or even their own state The Commerce power and Its Federalist-Based Limits - National regulatory power over interstate commerce major motivation for constitution - Article I §8, congress has power ―to regulate Commerce with foreign nations, and among several states, and with the Indian tribes‖ - Issues: o Substantive – appropriate division of regulatory responsibility between federal and state government o Institutional - whether the courts are capable of setting workable boundaries to federal regulatory power The Commerce Power before the New Deal Article 1, Section 8: To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes… Two legal issues: - What is the extent of congressional power? - What happens if states try to regulate the area where congress has power Gibbons v. Ogden FACTS: NY legislature granted to Livingston and Fulton exclusive right to operate steamboats in NY waters, and they licensed Ogden to operate a ferry. Gibbons began operating a competitive steamboat company. PROCEDURE: - Ogden obtained an injunction from the NY courts that ordered Gibbons, under NY law, to stop operating his ferries in NY waters HOLDING: Fed statute exempted NY monopoly law under Supremacy Clause of Article VI, held that Gibbons was authorized to operate his ferry in YN waters ANALYSIS: - Interstate commerce: steamship running between NY and NJ - Commerce is traffic. Commerce is intercourse between nations, and parts of nations, in all its branches. If commerce doesn’t include navigation, feds have no direct power over the subject, and cannot make a law prescribing what shall constitute American vessels

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Power is applied is commerce among the several states…cannot stop at the boundary of a state but must be introduced to the interior Completely internal commerce of a state is reserved for state itself Power over commerce is vested in congress as absolutely as it would be in a single government, having in its constitution the same restrictions on the exercise of the power as are found in the constitution of the U.S.

Other things to consider: - There could be a judicial inquiry into legislative mode or purpose. (Courts don’t know Congressional intentions and motivations). Question about proper authority. - If congress does bad things and the court says ―we’re not going to get into it‖, the political process takes over. Political safeguards of federalism: Courts shouldn’t get too deeply into questions of state vs. federal power. - Preemption case: If congress is regulating within its proper authority under the commerce clause, the state cannot overrule the federal law Gibbons Principles - Internal concerns  states - External concerns  unlimited (within individual rights) Congressional power (only talking about federalism - Improper Congressional Purpose  Political remedy - Where Congress regulates property, states may not 2 Questions - What is commerce? - What is interstate? (Have both permissive and restrictive interpretations) Judicial limits on Constitutional Power - Direct vs. indirect effects test o 3 judicial principals  Whether the regulated activity had a direct or indirect effect on interstate commerce  (Restrictive) Sugar Trust Case U.S. v. E.C. Knight – combination of co.’s ok o COMMERCE is the buying and selling of goods (Regulating manufacturing here) o Penalties for any person who shall monopolize, or combine, or conspire to monopolize any part of trade or commerce among several states o Regulation of commerce applies to the subjects of commerce and not to matters of internal police o The fact that an article is manufactured for export to another state doesn’t in of itself make it an article of interstate commerce, and intent is irrelevant o If national power extends to all contracts and combinations whose ultimate effect may be interstate commerce, little would be left for state affairs o If intrastate activity is indirectly affecting interstate commerce, it isnt’ in federal purview o Dissent – Any combination that disturbs freedom in buying and selling articles made for inter-state commerce directly affects people o Dissent – general government not helpless that it must be inactive while capital combines to destroy competition throughout the country - Substantial economic effects test o Houston v. U.S. (Shreveport Rate Case)

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Court sustained congressional authority to regulate interstate rail rates that discriminate against interstate railroad traffic  Congressional authority extends to all matters related to interstate traffic that the control is essential for security of the traffic or efficiency  A nominally intrastate matter can properly been deemed interstate if it has a substantial (not necessarily direct) effect on interstate commerce. Stream of Commerce test o Some local activities may be regulated by congress because they could be viewed in commerce or as an integral part of the current of commerce o Swift v. U.S. – Sustaining a Sherman Act injunction against price fixing by meat dealers  If intrastate manufacturing is part of a larger interstate process, the intrastate activity is within the stream of commerce National Police Regulation o Congressional responsibility for the safe, free, uninterrupted flow of commerce between states carries with it the congressional authority to regulated different problems affecting safety and welfare o (Permissive Powers of Congress) Champion v. Ames (lottery case) – Court upheld federal law prohibiting importing, mailing, or interstate transporting of lottery tickets (subjects of traffic)  Congress can regulate something that isn’t particularly commerce  Dissent – if congress can suppress lotteries, then congress may arbitrarily exclude form commerce any article of any nature regardless of the motive  Dissent – to transform a non-commercial article into one simply because of transport would wipe out state lines  HIPOLITE EGG v. U.S.  Shipment of preserved eggs confiscated because label failed to disclose they contained a deleterious ingredient  HOKE v. U.S.  Court upheld the Mann act, prohibiting the transportation of women in interstate commerce for immoral purposes  Congress’ power is complete in itself and may be exercised in convenient or necessary ways (Restrictive) HAMMER v. DAGENHART (Child Labor case)

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HOLDING: - Court struck down a congressional act that excluded products made from child labor from interstate commerce ANALYSIS: - Act here in itself doesn’t regulate interstate transportation among the states, but it aims to standardize the ages at which children may be employed in industry within the states. The goods themselves are harmless - Act regulates the hours of child labor within states, purely state authority - Prohibition technique for justify commerce regulation o Technique invalid. Restrictive principle - Regulation it because you want to held children - Dissent – Clear that the power to regulate commerce could not be cut down or qualified by the fact that it might interfere with carrying out the domestic policy of a state - Dissent – anything related to commerce is commerce - When they seek to send their products across state lines they are no longer within their rights.

Schechter Poultry - Post-New Deal: - New Deal unleashes a slew of regulatory programs - ISSUE: NERO (National industrial recovery act) (President gets authority to impose wages and price controls, and impose controls on terms of employment) - Federal government doesn’t have authority to regulate matters that aren’t clearly within - Sick chicken case: Dealer buys chickens in NY and usually sold in NY. Commercial process contained within one state. Small time operator/government trying to extend authority - Can’ reach intrastate activities with NERO. Difficult to engage in industry-wide regulation after the decision - Big deal: Court invalidates a good deal of the new deal. Court shoots down broad regulatory efforts of the federal government. FDR schemes and tries the court-packing plan. Congress shoots it down. - What is interstate? o Permissive: Fed says that chicken man’s intrastate activity affects commerce by paying his workers lower wages by limiting consumer buying power o Restrictive: Court says that the effect isn’t direct o Permissive: Congress says that the chicken farm is within the stream of commerce…sales outside NY sometimes o Restrictive: Too remote. There is no stream of commerce here. Commerce power and the New Deal (Restrictive View) - Gov. sought to justify new deal measures under Commerce Clause by using ―substantially affecting commerce‖ rationale in Shreveport and ―in commerce‖ rationale of Swift - Court increasingly rejected those arguments under the Clause - RAILROAD RETIREMENT BOARD v. ALTON RAILROAD o Court decided that Congress lacked the power to establish a compulsory retirement and pension plan for all carriers subject to Interstate Commerce Act o Law was not in purpose or effect a regulation of interstate commerce - SCHECHTER POULTRY v. U.S. o Code of Fair Competition for the Live Poultry Industry to NY unconstitutionally delegated legislative power and application fo the act to intrastate activities exceeded this power o Wages and hours of employees at a slaughterhouse, whose produce was sold locally, not subject to fed control o If the Feds may determine wages and hours of employees in intrastate commerce…slippery slope - CARTER v. CARTER COAL o Bituminous Coal Conservation Act invalidated. Objective was to regulate the max hours and minimum wages of workers o Effect of labor provisions falls on production and not commerce. Production is purely local. Is the effect on interstate commerce direct?  These evils are state evils o Dissent: Price provisions under constitutional power and premature with respect to labor provisions FDR Court-Packing Plan - Increase in judges appointed by legislation. When a judge hits 70 years old, President, for each judge who doesn’t retire, shall nominate an additional judge with consent of senate. Maximum # of Supreme Court justices: 15. - Hughes: an increase doesn’t promote efficiency of the court. More judges to hear, confer, dusciss, to be convinced, and to decide cases - Plan KILLED Commerce Power After New Deal (Permissive) 1937-Present

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Court is turning on a dime because World War II is starting Taking a step back, and looking at a world where there is integration between manufacturing and commerce. Everything is bound together and it becomes more difficult to maintain a difference between the two (Permissive) NATIONAL LABOR RELATIONS BOARD V. LAUGHLIN STEEL CORP.

FACTS: NLRB found that Laughlin engaged in unfair labor practices by discriminatorily discharging union employees for union activity. Laughlin had mines and warehouses all over the country. 75% of product shipped out of PA. HOLDING: National Labor Relations Act may be construed to operate within constitutional authority ANALYSIS: - Board empowered from prevent any person from engaging in unfair labor practices effecting commerce - Court has held that manufacturing is not commerce – Intrastate matter - Whether or not particular action does affect commerce closely as to be subject to fed control is determined by statute - Congressional authority to protect interstate commerce from burdens is not limited to flow of commerce. Even if they are intrastate in character, if they have a close and substantial relation to interstate commerce that control is essential and appropriate, congress may exercise the control - Direct effect not essential - Manufacturing and commerce are indistinguishable - Effect of labor strike on manufacturing opps would be immediate and catastrophic - The workers can’t buy goods anymore, employers shouldn’t be able to fire workers because they try to unionize - Dissent: remote and indirect reference with interstate commerce…invasion of state power U.S. v. DARBY FACTS: GA lumber maker challenged indictment charging him with violating Fair Labor Standards Act. Act’s purpose to exclude goods from interstate commerce and to prevent production where working conditions are detrimental to maintaining minimum standards of living (health) PROCEDURE: - D.C. held that act was unconstitutional because it sought to regulate local factories ISSUES: - Whether congress has con power to prohibit shipment in interstate commerce of lumber made by employees whose weekly hours are over a prescribed maximum - Whether congress has the power to prohibit employment of workmen in production of goods for interstate commerce at other than prescribe hours and wages HOLDING: Prohibition of shipment of interstate goods produced under forbidden labor conditions with within congressional authority ANALYSIS: - Shipment of goods interstate is commerce and prohibition of such shipment is a regulation of commerce - Congress is free to exclude from commerce articles whose use in the states for which they are destined are injurious to public health, morals, or welfare - Prohibition Technique: o Hammer v. Dagenhart hasn’t been followed

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o Ban something to justify the ship of the thing in interstate commerce…that’s ok now Power of congress over commerce extends to intrastate activities which have a substantial effect on the commerce of exercise of congressional power over it Act directed at suppression of method of competition in interstate commerce that is unfair Rational basis test: (See McCulloch) Let the end be legitimate, and the means reasonably suited to that end are permissible (Permissive). In Darby, court is foreswearing inquiry into congressional purpose other than whether the thing congress is doing is within its power. Not looking at motive or intent 10th Amendment is irrelevant o Strong version of 10th Amendment  Idea of state policing power is the first thing to put on the table when trying to figure out state-federal boundary  First question: What power do we know the state has?  Pre-existing body of state power  Congress is trying to regulate something that is usually within state authority  Reservations clause (What falls through cracks) o Weak version of 10th Amendment (Wins in Darby)  First thing to do is to look at Article 1, Sections 8 and determine what the terms mean by ordinary interpretive means  Next you bring in the 10th Amendment analysis

Judicial Deference to Exercise of Commerce Power - ―In commerce rationale‖ o Darby permitted congress to regulate literal shipment of goods across state lines even if motive was to regulate local production - ―Substantially affecting commerce‖ o Relied on substantial effects of local commerce on interstate commerce as basis for authority - ―Stream of commerce‖ o If something is in the stream of commerce, a nominally intrastate - WICKARD v. FILBURN o Diary farmer in OH sued to enjoin Agricultural Adjustment Act for imposing fine on wheat quota exceeded. He actually consumed the wheat on his farm. He didn’t sell the wheat. o Growing and eating is intrastate o Commerce among the states in wheat is large o Maintenance by government regulation of a price for wheat can be accomplished by sustaining or increasing demand by limiting supply o His contribution, taken with many others, is not trivial o Aggregation principle – Even if you’re just talking about 1 wheat farmer, congress is allowed to extrapolate the situation for all wheat farmers - HEART OF ATLANTA MOTEL v. U.S. o Court upheld law against commerce clause challenge by a motel that wished to continue refused to rent to African-Americans o Commerce that concerns more states than one and is a national issue - KATZENBACH v, MCLUNG o Court upheld application of title 2 to a family restaurant who cater to white collar trade with a takeout service for African Americans o Burden on interstate commerce by discrimination o Concurring: Not every remote, possible, speculative effect on commerce should be accepted as an adequate constitutional ground to discard purely local traditions for fed interest o Better to rest judgment on 14th amendment - PEREZ v. U.S. o Upheld a federal prohibition of extortionate credit transactions – loansharking threats of violence

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o Evern where loansharking is purely intrastate in nature, it affects interstate transactions Forward o These decisions usher in unprecedented federal power o Question: What’s left as a constraint on the commerce power?  Substantial effects language requires a substantial effect (trivial effect may be limiting)  Congress has been able to justify decisions up till now because of economic effects

Rehnquist Court’s Revival of Internal Limits on Commerce Power U.S. v. Lopez FACTS: In Gun Free School Zones Act, Congress made it a federal offense to possess a firearm in a school zone. Lopez was convicted for knowingly possessing a concealed handgun at high school. HOLDING: The Act exceeded authority of Congress under the commerce power ANALYSIS: - Divided Government: Principle of Individual Liberty o Constitutional mechanism to protect people from abuses by government…Dimensions of power - Nothing is overruled here from past cases - Activities that congress may regulate under commerce power o The use of channels of interstate commerce o The instrumentalities of interstate commerce, or things or people in interstate commerce, even though the threat may only come from intrastate activities o Power to regulate those activities having a substantial relation to interstate commerce - HERE: o Act is not use of interstate commerce channels o Not a regulation which congress wanted to protect an instrumentality of interstate commerce - Act is a criminal statute having nothing to do with commerce, and isn’t an essential part of a larger regulation of economic activity - Gov. argues that possession of firearm results in violent crime, and violent crime hurts the economy: o Costs of violent crime are substantial o Violent crimes reduce the willingness of citizens to travel o Presence of guns is a substantial threat to educational process, hurting nation’s well-being - Under ―cost of crime‖ reasoning, Congress could regulate all activities that may lead to violent crime - Any activity could be looking at as commercial - Piling on inferences to convert state police power to congressional authority is unfair - Insubstantial effect on commerce + non-economic activity = not within the commerce power - Affect-in-commerce must mean something - If you don’t have a commerce nexus…you have no economic activity, commerce hook, and noneconomic activity…Setting this situation apart from all other cases - Strong version of 10th Amendment – think of state power first, then whatever the states don’t have jurisdiction over goes to the federal government o Court is reanimating the strong 10th amendment o Not willing to construe federal power in a way that evicerates state authority Concurrence: - Lessons o Imprecision of content-based boundaries to define limits of commerce power o Court as an institution has an immense stake in stability fo commerce clause - If Feds took over regulation of entire areas of state concern, even those not relating to commerce boundaries would blur

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―Substantial effect‖ test, could give congress police power over all aspects of American life Activities wholly separated from business is beyond reach of commerce power

Dissent: - In determining whether a local activity will have a significant effect on interstate commerce, must consider the cumulative effect of similar circumstances - Substantial threat to commerce o Extent of gun-related violence problem o Negative effect on learning o Negative commercial effects - 3 legal problems o Majority holding contrary to modern cases o ―commercial‖/‖noncommercial‖ distinction o Creating legal uncertainty - Congress’ power to regulate commerce in firearms includes power to prohibit possession of guns in a location because of harmful use Commerce Clause After Lopez - Katzenbach v. McClung o Formal findings by congress were not necessary to sustain legislation as rationally related to substantial effects on commerce o Congress changed Gun-Free School Zones Act to intertwine inter-state aspects of the law o Congressional findings are neither necessary nor sufficient to ensure a statute’s constitutionality under commerce clause U.S. v. MORRISON FACTS: Rape claim by VaTech student against 2 football players. HOLDING: Invalidated civil damages provision of federal violence against women act (gender-motivated violence). Reject argument that Congress may regulate non-economic, violent criminal conduct based solely on the conduct’s aggregate effect on interstate commerce ANALYSIS: - Usually fed regulations of intra-state activity based upon substantial effects on interstate activity and economic activity - Existence of congressional findings of gender-motivated violence cannot be itself sufficient to sustain constitutionality under commerce clause - Gender motivated violence deters victims from traveling interstate, from engaging in employment interstate etc. - No economic activity here…leaving permissible precedents alone o If accepted, congress could regulate any nationwide crime as long as aggregate impacts had substantial effects - Not a question of what states want, it is a question of individual rights - Is it important for court to look into congressional purpose? o Restrictive – Yes, court have a duty to determine whether congress is regulating interstate commerce here o Permissive – No - Morrison hits harder than Lopez o VAWA really serious business DISSENT:

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By passing legislation, congress concludes that facts support its commerce power exercise Mountain of data assembled showing effects of violence against women on interstate commerce Economic/non-economic distinction not easy to apply Congress must remain primarily responsible to striking appropriate fed/state balance Aggregation Principle o Allows congress to regulate activity that, in isolation, doesn’t substantially effect interstate commerce, because multiple iterations would substantially effect interstate commerce

GONZALES v. RAICH FACTS: Compassionate Use Act creates an exemption from criminal prosecution for physicians and patients who grow and personally use medical marijuana HOLDING: Uphold application of federal narcotics laws to state-authorized use of home-grown medical marijuana for medicinal purposes ANALYSIS: - Wickard establishes that Congress can regulate purely intrastate activity not in itself commercial if it concludes that failure to regulate would undercut regulation of the interstate market of that activity - Congress has a rational basis for concluding that leaving home-grown marijuana outside fed control would have an effect on price and market conditions - Activities regulated by CSA, the larger regulation, are economic. (Regulate production & distribution of commodities for which there is an interstate market) - Pre-emption case – is there a proper basis for federal pre-emption? o No, not in itself commercial, growing weed, using it for medical purposes. No economic activity o Yes, There is a market for the product in question, thus there is economic activity going on - Court emphasizes that CSA is a broad, comprehensive law, and we’re talking about one aspect of it. Lopez and Morrison were pinpoint strikes. Maybe the court is telling congress that, for the commerce power to work, they must draft statutes and laws to include an interstate element. Concurrence - Congress’s authority derives form necessary and proper clause. Authority to enact laws necessary and proper for regulation of interstate commerce - It can be prohibited as part of a larger regulation Dissent - States’ core police powers have always included authority to define criminal law and protect their citizens - Placement of local activity in a comprehensive scheme doesn’t confirm that it is essential to the scheme. - If congress if right, then Lopez is defunct - Respondents haven’t come into possession by any commercial transaction - Government hasn’t shown that growing weed for personal use substantially effects commerce - CSA is not a valid exercise of necessary and proper clause o Respondents aren’t regulatable simply because they belong to a large class that congress may need to reach Commerce Clause After Raich - General v. Specific regulatory schemes o Distinguished comprehensive narcotics regulation from single-subject legislation struck down in Lopez External Limits on the Commerce Power: Federalism and the 10th and 11th Amendments

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Congressional authority that may be allowed under Article 1 may be invalid because it runs up against an affirmative federalism-based immunity 2 Sources: o 10th Amendment – ―The powers not delegated to the U.S. by the constitution, nor prohibited to the states, are reserved to the states or the people‖ o 11th Amendment – The judicial power of the united states shall not extend to any suit commenced against citizens of the United States by citizens of another state of foreign states

State Automony and the 10th Amendment - 10th Amendment preserves a quantum of state regulation - Two categories of direct regulation: o To make states susceptible to regulations imposed on private parties (OK) o Commandeering of state officials to implement federal policy (NOT OK) - COYLE v. OKLAHOMA – invalidated a condition in the federal enabling act for admission of OK to the union that had purported to specify the state capital. The power to locate its own seat of government and to change it are powers of the state government - U.S. v. CA – Court upheld a penalty imposed on a state-owner railroad for violation of the Federal Safety Appliance Act. - NY v. US – upheld a state immunity upheld against a state immunity claim the application fo a federal tax to the state of NY for selling bottled water form its own springs o Power to lay taxes no less a reach than the power of congress to regulate commerce o So long as congress taps a source of revenue that isn’t uniquely capable of being earned by the states Congressional Power/Federalism Limits
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Regulating private parties – Commerce Clause o J&L/Wickard/Darby o Lopez/Morrison Regulating states – laws of general application o Garcia Regulating states – ―Commandeering‖ o NY v US/Printz Authorizing suits against states – 11h Amendment

Power Granting Provisiong & 10th Amendment – affirmative grants of authority for Congress and the reserved power of the 10th Amendment
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Have seen some cases that the 10th has a strong, independent force

Lopez & Morrison put a little bit of a check on what Congress does  but from where we site today (2007) is that in light of Raich there is still the weak view of the 10th amendment  in the area of Congressional regulation is that you start with a broad view of Congressional power, any interstate activity that substantially affects interstate commerce can be regulated Today we start a different problem – what happens when Congress is not trying to regulate 3rd party conduct but rather Congress is trying to regulate the States themselves (this is a less common problem) but they do try and regulate states themselves. One of the ways that Congress tries to regulate states is to have citizens sue states (there are limits on that method of Congressional regulation on states and that is the Eleventh Amendment). Direct Congressional Regulation of States Under the Commerce Clause:

1. To make States suspectible to the same regulations that apply to private parties 2. Commandeering of State officials to implement federal policy What the cases will tell us is that it’s okay for Congress to put States under the similar regulations as people but it is not okay to commandeer the states

NEW YORK v. UNITED STATES FACTS: Act requires states to provide for the disposal of waste generated within their borders and provided 3 incentives: (3) Take title provision, providing that a states that failed to provide for the disposal of all internally generated waste by a particular date must take title to the waste and become liable for all damages suffered by waste’s generator or owner. ISSUE: Whether congress may direct or otherwise motivate the states to regulate in a particular field or in a particular way. HOLDING: While congress has substantial power under constitution to encourage states to provide for the disposal of the waste generated within their borders, the constitution does not confer upon congress the ability to compel the states to do so ANALYSIS: - Congress may not commandeer the legislative process of the states by compelling them to enact and enforce a federal regulatory program - Allocation of power in the commerce clause authorizes congress to regulate interstate commerce directly; it does not authorize congress to regulate states’ regulation of interstate commerce. - Commandeering state official…doing something with which it has no choice. When voters decide they don’t like the waste decision, they don’t know where to point the finger o When federal government compels states to regulate, the accountability of both state and federal governments is diminished - Take title provision offers state governments a choice to accept ownership or regulate waste o Because and instruction alone would be beyond authority of congress, and because a direct order to regulate, congress lacks the power to offer states a choice - Commandeering violates public accountability. Voters who are unhappy with the substantive policy don’t know who they can go to to dispute the policy - Dissent: act results from state leaders acts on state-based remedies. Act was cooperative federalism - Dissent: NY participated and supported passage of the act Congressional alternatives to commandeering - Spending Power o Congress may condition the payment of relevant federal funds on a state’s agreement to take title to waste if it has not already provided waste disposal facilities - Commerce Power o Congress may pass fed legislation directly regulating private producers of waste to limit production - Conditional Preemption o Congress may threaten to pass fed laws under commerce clause unless states choose to regulate Printz v. U.S. - Holding: Court held invalid, provisions of Brady Handgun Violence Prevention Act that required state and fed law enforcements officers to conduct background checks on prospective handgun purchasers - Court extends non-commandeering authority over federal executive branch and fed officials

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(Non commandeering principle doesn’t apply to judicial branch) Analysis: o Congress cannot impose responsibility without consent of the states o Testa v. Katt: state courts cannot refuse to apply fed law.  That says nothing about whether executive state officers must enforce federal law  By forcing state governments to take on the burdens of implementing the fed regulation, the feds get all the credit o Dissent available

11th Amendment (September 25, 2007) a) 11th Amendment: text of amendment: No individual may sue another state of which that individual is not a citizen of. b) Hans v. Louisiana (expands 11th Amendment): Court holds that individual can’t sue their own state. (i.e., 11th Amendment extends to one’s own state) c) Ex parte young (contracts the power of 11th Amendment): This case creates a big loophole in the 11th Amendment. This Court finds that while you can’t sue a state for money damages, you can file suit for injunctive relief against state official. d) Fitzpatrick: Congress may abrogate 11 Amendment immunity pursuant to 14 Amendment Section 5. I.e., This is ordinarily not true but Congress has the authority to authorize suits against the states under the14th Amendment Section 5 (not Article 1 Section 8). Note: In PA v. Union Gas the Court finds that Congress can authorize suits against the states under the Commerce Clause (this is overturned in Seminole Tribe. e) Seminole Tribe: Congress may not abrogate pursuant to Article I Sec. 8 (overrules PA v. Union Gas). Facts: Indian Commerce Clause is part of Article 1 Section 8 and Congress authorizes Tribes to sue states under the Indian Commerce Clause (the court says the Congress doesn’t have this authority – i.e., allow suits against the state pursuant to the commerce clause). This Court distinguishes Fitzpatrick from Seminole Tribe. Fitzpatrick is still good law but only may do so when Congress is exercising its 14th Amendment Section 5 power. (the court notes that the 11th Amendment is modified by the 14th Amendment because the 14th Amendment was ―adopted well after the adoption of the 11th Amendment‖ – 14th Amendment trumps the 11th Amendment. Therefore, under the 14th Amendment, Congress can authorize state suits). Note: the state is allowed to waive its 11th Amendment immunity. f) Alden v. Maine: (suing states in state courts): This case extends sovereign immunity to states in state courts – i.e., Congress cannot authorize suits against states in states court like they cannot be sued in federal court. This case is distinguished from Seminole Tribe: Under the FLSA, Congress authorized suits against states in state court. Issue: whether individuals can sue states in state courts. The language of the 11th Amendment holds that states cannot be sued in federal court; however this is about state courts. If the Court is right in Alden, do we need the 11th Amendment? We have departed so far from the text of the 11th Amendment. g) MAIN THING ABOUT 11TH AMENDMENT - There are different variables which come into play when looking at whether Congress can use lawsuits as a form of regulatory control (What kind of lawsuit, what source of Congressional power, what Court is it being brought in).

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one limitation on the Commerce Power was the idea that a commerce power regulation has to be directed at economic activity there’s a purpose limitation and an effect limitation

Art. I Sect. 8 Powers (Private Conduct) Restrictive Commerce Schecter Poultry Permissive Jones and Loughlin Neo-Restrictiv Lopez

Carter Coal Taxing Spending Bailey Bailey Butler

Wickard Darby Kahriger S.D. v. Dole

Morrison

this tax crosses the line into a penalty court is trying to come up with principles for putting pretty serious restrictions on this taxing power court is looking hard at the purpose and effect of the tax the restrictive holding in Bailey is based on the strong view of the 10th Amendment

U.S. v. Kahriger - here, there is probably a mentality on Congress’s part that they might not be able to do this under the commerce power then lets do it under the taxing power - as long as there is some revenue generating purpose to justify the tax then we are not going to look at them U.S. v. Butler - there is necessarily a policy decision behind every spending decision - Madison said the spending power limits and Hamilton says general welfare means what it says - Court embraces the Hamilton more expansive view of general welfare. - Strong 10th Amendment argument.

Federal Limits on State Regulation - Article 1 restraints on commerce clause: o Dormant commerce clause – Objection to state regulations rests on negative implications of commerce clause, on unexercised power of commerce clause itself  Negative commerce clause, implication of commerce clause  Because Congress has power to regulate interstate commerce, and that the power extends into X area, then states cannot regulate in X area  Article 1, Section 10 notes what states cannot do  Argument, there are explicit things states cannot do, so everything else is allowed? However, we don’t want states regulating national affairs…May be a matter of congressional neglect. Might still be important to draw inference that states can’t regulate areas of interstate concern because congress must be able to go into an area of regulation and weed out state regulations that plotter the territory  Even if we accept that there is a functional need for a dormant commerce clause, the framers left the degree of ambiguity in the constitution.  Drawing the line is dependant on the circumstances of the regulatory area…can’t account for that in a constitutional clause. Framers leave courts with task of refereeing the boundary between state and federal power  Court has to come up with legal doctrine to effectuate DCC o Congress has exercised the commerce power under preemptive effect of the federal legislation under supremacy clause o Privileges and immunities clause bars certain state legislatures from discriminating against outof-state economic interests Dormant Commerce clause

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States regulate economic activity that may affect interstate commerce in ways the congress couldn’t address DCC invalidates protectionist state legislation GIBBONS v. OGDEN

HOLDING: Federal Navigation Act barred NY’s effort to restrict entry into New York waters under supremacy clause. ANALYSIS: - Gibbons, a federal licensee, prevailed. - Dicta – Possibility that NY might not have authority to regulate interstate ship traffic in the first place - State governments shall remain the most important part of our system. Power to tax essential o But when a state regulates interstate commerce, it is exercising a federal power - No general power over objects that are imported is granted to congress o Feds, when regulating interstate commerce, may use the means employed by the state, regulating commerce within the state - States may enact laws in conflict with the constitution or an act congress passed The Nascent Dormant Commerce Clause - Marshall’s dormant clause dicta o Even if national commerce power was exclusive, states would still hold power over police regulations and regulations designed to promote health, safety of its citizens - Marshall’s authority requires looking at the state purpose for the regulation - Marshall’s ―Police‖-―Commerce‖ distinction o Willson v. Blackbird Creek Marsh  Measured to enhance the value of property and health, here by building a dam, are a state power - Taney Court – State regulations of commerce valid unless they come in conflict with a law of congress o Mayor of NY v. Miln: Court upheld a NY statute requiring a master of a vessel arriving in NY harbor to report names of passengers. (Regulation of police) o The Passenger Cases: Court invalidated a NY statute imposing on ships coming from foreign states or countries to pay a tax for each passenger, and an alien tax in MA o The License Cases: Sustained state laws requiring licenses for sale of liquor Cooley v. Board of Wardens - Facts: PA law requiring ships entering or leaving Philly harbor to use a local pilot. Penalty was halfpilotage fee. Congress enacted law allowing states to regulate in this area - Issue: Whether the grant of commercial power to congress deprive the state of the power to regulate pilots - Holding: Mere grant to congress of regulating commerce didn’t deprive states right to regulate pilots - Analysis: o First congress declared that, until congress found it necessary to exert its power, it should be left to the states; local not national (subject matter distinction – how do you define what subject matter you’re talking about?) o Congress has much power over this in the present day o Is this an exclusive or non-exclusive area of regulation? Meaning and Implications of Cooley - National-Local Distinction: o Commerce clause by its own force bars some, but not all, state regulation o Some subjects are of a national nature as to need a uniform rule, while others are local

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o Congress is now viewed as having authority to consent to state regulations that would normally be barred by the DCC Rise and Fall of Direct-Indirect Distinction o St. Louis RR Co. v. IL: Early state ban on freight rate discrimination by railroads unconstitutional o Smith v. Alabama: Court sustained a state examination applied to engineers on interstate trains o DiSanto v. PA: Unconstitutional as a direct burden on a commerce law a law imposing a license fee for travel agents selling steamboat tix o Buck v. Kuykendall: Unconstitutional WA’s denial of a certificate of convenience and necessity to an applicant seeking to operate an auto stage line to carry passengers between two cities o Brady v. Public Utilities Commn.: Upholding OH’s denial of a certificate to operate between OH and Michigan (Congested traffic) 3 modern categories of Dormant Commerce Clause Challenge: o Court has invalidated state laws that facially discriminate against out-of-state commerce o Court has invalidated facially neutral laws that in fact favor local interests at the expense of outof-state competitors o Court sometimes strikes down facially neutral laws that have a disproportionately adverse effect on interstate commerce, applying a balancing approach

State Regulation: Scenarios - State exclusivity – subject matter outside congressional power - Non-exclusivity – Congress may regulate, but there is nothing in the constitution that denies states to regulate as well (failed DCC challenge) o Here, congressional power trumps state power if there is a conflict o If congress doesn’t do anything, the state is free to step in - Congressional consent – Congress permits states to regulate or waives pre-emption o Congress has sole regulatory authority - Federal pre-emption – Federal law trumps state law - Federal exclusivity – Congressional power bars state regulations even absent congressional regulation (successful DDC challenge) PHILADELPHIA v. NEW JERSEY FACTS: NJ Waste Ban was challenged by operators of private landfills in NJ and several cities in other states that had agreements with these operators of waste disposal. HOLDING: Court held unconstitutional a NJ law that prohibited importation of most solid or liquid waste which originated or was collected outside the territorial limits of the state ANALYSIS: - Where simple economic protectionism is effected by state legislation, a virtually per se rule of invalidity has been erected - If this was tantamount to a medical emergency, NJ would be doing something about it. - Where there is no discrimination against interstate trade, you get a balancing formulation - NJ’s purpose may not be accomplished by discriminating against articles of commerce coming from outside the state unless there is a reason to treat the m differently - Out-of-state commercial interests bear full burden of conserving state’s remaining landfill space - Saddles those outside the state to bear the entire burden of slowing the flow of refuse to NJ landfills - Commerce Clause will protect NJ in the future, just as it protects the neighbors now, from one state’s attempt to isolate itself form interstate commerce - If we establish that interstate commerce is a national concern, if the state regulates interstate commerce then the action is out of whack with how the government operates

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There would be a race to the bottom for protectionism Sometimes the effect is more blatant, pronounced, purposeful Dissent: Prohibiting solid waste ok because preserving the health and safety of citizens Dissent: Court has upheld quarantine laws even though they single out a state for special treatment o Majority distinguished quarantine and said this is environmental Economic analysis: Tricky, because it is a zero sum game…Benefit and burden on the other side o How does it affect waste production in and out of state? o Part cannot regulate the whole Judicial review: A state is trying to circumvent the ordinary uses of representation…It is burdening those who do not have a voice o Argument against justification – Big business getting hurt, you can lobby or donate to candidates within that specific state

DORMANT COMMERCE CLAUSE - Per se invalid o Facial Discrimination  Direct ban  Home processing requirements  Taxes/fees  Rebates o Facially-neutral/discrim/purpose/effect - Pike Balancing o Nondiscriminaotor/Burdensom Facial Discrimination Against Out-of-state Commerce - Political or Economic? o Political: Several states must sink or swim together, and that long-run prosperity and salvation are in union and not division o Economic: Goods, labor, and investments can be allocated most efficiently by flowing across state borders to the place where they are most highly valued Origins of Dormant Commerce Clause - Destructive trade wars among states were a major problem under Articles of Confederation o During confederation period, some states imposed taxes on imported goods that they didn’t impose on their own citizens - Import-Export Clause of Article 1, Section 2, Clause 2, applies only to goods coming into or out of the country Interstate Discrimination Principle 1. Law that facially discriminate against outsiders are almost always invalid a. Protectionist purpose b. Social Welfare i. Free trade brings about national prosperity or aggregate social welfare c. Representation Reinforcement i. Courts are needed to protect systematically disadvantaged interests in the political process ii. Out of state interests are unsupported 2. Permissible Facial Discrimination a. Maine v. Taylor: upheld law banning importation of out-of-state baitfish (legitimate environmental purpose 3. State Hoarding of Natural Resource

a. Geer v. CT: upheld a law preventing the killing of certain game birds for purposes of shipment out of state b. Hughes v. OK: overruled Geer and held invalid under Dormant Commerce Clause an OK law forbidding any person to transport or ship minnows for sale outside the state which were procured in the waters of the state 4. Facially Discriminatory taxes a. Chemical Waste Management v. Hunt: invalidated an AL law imposing a hazardous waste disposal fee upon hazardous wastes generated outside of AL and disposed of in a commercial facility in AL, but not identical wastes having a source in AL b. Oregon Waste Systems v. Dept. of Env. Quality: invalidated an OR law imposing a $2.25 charge on disposal of out of state waste and $.85 charge on in-state waste disposal 5. Facially discriminatory subsidies a. West Lynn Creamery v. Healy: invalidated an MA law imposing an assessment on all sales of milk to MA retailers, but rebated all assessment proceeds from MA dairy farmers i. Premium payments are a tax which makes milk production outside MA more expensive b. Camps Newfound/Owatonna v. Town of Harrison: invalidated a ME statute that provided a property tax exemption to benevolent and charitable institutions incorporated in the state but denied exemption to charities not benefiting ME residents c. New Energy Co. of Indiana v. Limbach: invalidated an OH statute awarding a tax credit for sales of ethanol produced on OH, while distinguishing an Indiana subsidy for in-state ethanol 6. Home Processing Requirements a. Minnesota v. Barber: invalidated a Minnesota statute requiring any meat sold in the state to be examined by a state inspector b. Foster-Mountain Packing Co. v. Haydel: Court invalidated a Louisiana statute that forbade shrimp export unless the heads had been removed within the state Cases: - Dean Milk Co. v. Madison o Dean Milk challenged a Wisconsin ordinance barring sale of milk unless it had been processed and bottled within 5 miles of Madison. Dean milk plants were more than 5 miles away o Not discrimination because other Wisconsin milk producers are suffering o Intrastate discrimination as a component of a discriminatory scheme that reaches across state boundaries is not a defense to the dormant commerce clause o Health and safety of our citizens argument: Not entirely implausible…but you could accomplish the same benefits without limiting interstate commerce o Ordinance imposes an unfair burden on interstate commerce o Regulation excludes distribution in Madison of milk produced and pasteurized in IL o One state in its dealings may not place itself in a position of economic isolation o Dissent: The fact that health regulations or laws may impose a burden on trade doesn’t mean that it discriminates against interstate commerce - C&A Carbone Inc. v. Clarkstown: o Clarkstown, NY agreed to close its landfill and build a transfer station. Private contractor would build the plant and run it for 5 years before turning it over to the town. Town created a flow control ordinance requiring all nonsolid waste in the town to go through the transfer facility o Ordinance deprives out-of-state business access to markets o Revenue generation is not a local interest that can justify discrimination against interstate commerce o Dissent: Exclusion of out-of-state capital is part of a broader exclusion of private capital. o Dissent: Facility performs a municipal function recognized as the domain of local government - United Haulers v. Oneida Solid Waste Management Authority o Flow control ordinance requires trash haulers to deliver waste to facilities owned and operated by a state-controlled public corporation

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Law that favor government do not discriminate against interstate commerce Treating public and private entities the same would lead to court interference Here, citizens and businesses bear the burden of the ordinance Dissent: Preferred facility owned by a private contractor who built the facility on behalf of the town o Dissent: Governments often discriminate in favor of state-owned businesses to protect those who derive economic benefits from those businesses Principle ―Discrimination Against Interstate Commerce‖ (3 possibilities) - Where court concludes that the state regulation facially discriminates against interstate commerce o Statute is per se invalid o Reaching that conclusion is difficult - No facial discrimination, but possibly categorized as facially neutral, but the regulation discriminates in effect o If you find this, statute gets struck down Facially Neutral Laws with Protectionist Purpose of Effect - Proof of a forbidden purpose may be inferred from the effects of a state rule BALDWIN v. G.A.F. SEELIG - Facts: To stabilize milk prices, NY Milk Control Act of 1933 set minimum prices to be paid to milk producers by NY dealers. Law prohibited NY sales of out-of-state milk if milk was purchased below price for similar purchases in NY. - Holding: Invalidated statute that protects local interests by limiting access to local markets – even in the absence of facial discrimination - Analysis: o Power, if exerted, will set a barrier to traffic between one state and another as effective as if customs duties, equal to the price differential, had been laid upon the thing being transported. o Direct and Indirect Burdens  Direct when the avowed purpose of the obstruction is to suppress or mitigate consequences against the states o Economic motive is secondary to providing a good supply of milk. o Economic welfare always related to health o Restrictions so contrived are an unreasonable clog on commerce o Hostile in conception and burdensome as in result o If we allow NY to do this, it will be the end of central government as we know it o No veiled purpose here, NY is candidly making the relationship between economic and social policy. States do have a prerogative to make law to improve the welfare of PA o PARADOX: to protect our people, we need to protect our business community. Court doesn’t allow it because you have a central government to set the economic rules. How do we resolve this tension? Look at purpose and effects. How do you measure effects? Another way to look as it is NY setting a fixed minimum price. NY is reaching regulatory tendrils outward. o Purpose: What is the purpose? Purpose is ambiguous o Effects: Doesn’t lead you to a secure result o Dormant Commerce Clause presumes that there are autonomous processes. Complication: what states themselves do effects economic in all kinds of ways even before the court can identify an economic effect o Can’t regulate for citizens health and safety by using in-state economic interests as a lever. You can only do it directly, then we won’t raise the economic effects of the regulation  Might be dumb because an institution that can’t handle economic analysis is making economic judgments o Court us using the purpose element as a rough proxy for when state regulation goes too far

 Off basis on which to judge the constitutional propriety of state law. o Given uncertainties of the purpose and effects inquiries and facial discriminations: Value judgment about what it is essential to preserve congressional authority over a state regulation H.P. HOOD v. DU MOND - Facts: Good sought a NY license to establish a fourth depot but denied the license on the basis of a NY law stating that licenses for new plants couldn’t be issued unless a commissioner was satisfied that the issuance of the license won’t destroy a marketplace competition in a market already served, and that it is in the public interest - Holding: Since statute applied violates Commerce Clause it is invalid - Analysis: - Power of NY to deny addtl. Facilities where grounds for denial are limiting interstate businesses - Where state power is applied in this case to limit expansion by a handler of milk who already has Been allowed some purchasing facilities, the argument for doing so, if sustained, would be equally effective to exclude an entirely new foreign handler from coming into state to purchase IDing Protectionist Purposes and Effects - Hunt v. WA State Apple Advertising Company: o Facts: WA adopted strict inspection programs and required all apples shipped from state to be graded according to its quality standards. NC wanted either not graded or USDA approved labels. o Holding: Court unanimously invalidated a NC law requiring that closed containers of apples offered to sale or shipped into NC to bear ―no grade other than U.S. Grade‖ o Analysis:  No economic protection motive  When legislation comes into conflict with Commerce Clause requirement of a national ―common market‖, we are confronted with the task of effecting an accommodation of the competing national and local interests  Burdens WA apples and discriminates against them - Bacchus Imports v. Dias o Facts: Tax exemption for fruit wine o Holding: Decision invalidated a HI statute the exempted from state’s 20% wholesale liquor tax a brandy distilled in HI o Analysis:  Fulfilled purpose and effect  Tax violated commerce clause because it had both purpose and effect of discriminating in favor of local products  Any effort to confer a benefit on a local industry not granted to out-of-state industry is presumptively invalid as discrimination under Commerce Clause - Exxon Corp. v. Governor of MD. o Can a law be considered protectionist in effect if there are no equivalent economic actors on either side? o Holding: court upheld against DCC challenge a law prohibiting producers or refiners of petroleum products form operating retail service stations in MD o Analysis:  No gas was produced or refined in MD: all gasoline was imported form out-of-state  Law does not discriminate against interstate goods, nor does it favor local producers and refiners  Act creates no barrier to independent dealers: it doesn’t prohibit the flow of goods, placed added costs upon them, or distinguish between in-state and out-of-state companies in retail market

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MN v. Clover Leaf Creamery o Holding: Rejected a discriminatory effects claim, upholding a state law that banned the retail sale of milk products in plastic containers but permitted sales of pulpwood containers o Analysis: Law regulates evenhandedly by prohibiting all milk retailers from selling their products in plastic, nonreturnable containers, without regard to whether the containers or sellers are from outside the state o Even granting that the out-of-state plastics industry is burdened relatively more heavily than MN pulpwood industry, the burden is clearly ―not excessive‖ in light of substantial state interest in promoting conservation of energy and other natural resources and easing solid waste disposal problems.

Review Problem: - Ripeness and standing is the first issue o If case isn’t even proper, then you can never get to substantive issues o Bringing the lawsuit 6 months before the election. When there is no wide controversy, you have no basis for a lawsuit. o Nature of harm – no individualized…Law authorizes any state citizen…challenge to constitutionality coming from someone who is not connected o 3 requirements of constitutional standing  Injury in fact  Need a personalized injury in fact…Can just say that you are offended by what is going on  Prudential doctrines that court have articulated. Prudential/constitutional boundary is elusive. Think of generalized grievance and 3rd party harm doctrine as set apart as a prudential matter. Authority goes back to injury in fact requirement.  Traceability  You injury happened because less people voted for you  Redressability  If they lost the election, the certification won’t matter o Prudential requirements  No generalized grievances  No interest of 3rd party o Facial challenge? Is it clear enough what the consequences of the statute will be?...then ripeness concern will go away. - Article 1, Section 8, Strong 10th Amendment - Source of congressional power o Commerce clause  You have an affecting commerce hook, but the effect you are regulating is a trivial effect  State regulatory decisions affect interstate commerce…nationwide law - If it has a substantial effect in the statute, then there MUST be a commerce hook - Strong 10th Amendment: States have territory (initial foundation). o However, almost indisputable that states get to regulate their own elections. State sovereignty o Feds can argue proper commerce clause Commandeering state officials o Regulating states Themselves, Federalism argument o Gov. defense – can we get this in the Garcia box? If congress regulates private conduct, then that regulation is ok when applies to the states o Political accountability issue. Who is going to feel the greed? Such a trivial substantive requirement that it doesn’t active concerned that lead to the anti-commandeering principle

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Appellate jurisdiction: Article III. o If you are challenging a state’s failure here, is it a state challenge of federal challenge? If state fails to set up procedures, then it is a federal issue. However, the muddle is that the certification itself is a state law 11th amendment state court o Alden v. Maine – state and federal courts are the same o Ex parte young exception – must be suit against state official  Don’t know suit would be styled as a suit against the state of a state official.  Congress can avail itself Standing bells o No particularized injury if ANY voter can sue o Luhan…no individualized injury

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Facially Neutral Laws with a Disproportionate Adverse Effect on Commerce - A law that is neither discriminatory nor protectionist still may be reviewed and struck down under the Court’s residual balancing test o PIKE v. BRUCE CHURCH:  Facts: An Arizona statute required that Arizona-grown cantaloupes advertise the state of origin on their packaging. Church shipped his Arizona-grown cantaloupes to CA to package and ship instead of AZ; a new packaging plant costs $200,000  Holding: Invalidating the law  Analysis:  Balancing Test: where the statute regulates even-handedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden on commerce is clearly excessive in relation to local benefits. If a legitimate purpose is found, the question becomes one of degree. And the extent of the burden that will be tolerated depends on the nature of the local interest involved and on whether it could be promoted as well with lesser impacts on state activities  Asserted state interest is a legitimate one, but cannot justify the building of a new packing plant o BENDIX AUTOLITE v. MIDWESCO ENTERPRISES  Scalia rejects Pike balancing: the scale analogy is not appropriate, since interests of both sides are commensurate. Weighing governmental interests of a State against the needs of interstate commerce is for Congress to decide o KASSEL v. CONSOLIDATED FREIGHTWAYS CORP.  Facts: Iowa statute restricts the length of vehicles that may use its highways, prohibiting use of the popular 65-foot double within its borders. The state said it was enacted due to its police power, the law promoting safety and reduces road wear  Holding: Reject the Iowa statute because it unconstitutionally restricts interstate commerce  Analysis:  Regulations that touch upon safety – especially highway safety – are those that the court is reluctant to invalidate. But the incantation of a purpose to promote safety doesn’t insulate a state law form Commerce Clause attacks. Regulations designed for that purpose may further the purpose so marginally, and interfere with commerce so substantially as to be invalid under the Commerce Clause

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The Iowa regulation significantly impact federal interest in efficient and safe interstate transportation. The law adds $12 million to trucking costs ―Border cities exemption‖ suggests that statute was meant to discourage interstate competition Concurrence: In considering a commerce clause challenge to a state regulation, the judicial task is to balance the burden imposed on Commerce against local benefits sought to be achieved by state lawmakers. A court should focus on legislative purpose, not whether the regulation in fact promotes its intended purpose (as long as the legislative decision was not irrational Dissent: It is not our task to balance incremental safety benefits against burden on interstate commerce. Concurring opinion assumes that individual legislators are motivated by actual purpose, but there are many reasons to vote for a law Dissent: If a state chooses to protect its highways, then it shouldn’t be penalized for other states’ failure to do so

Balancing Interstate Harm Against Local Benefit - Special state powers over safety in transportation o SOUTH CAROLINA STATE HIGHWAY DEPT. v. BARNWEL BROS.  Holding: Court upheld SC law prohibiting use on state highways trucks over 90 inches wide and over 20,000 pounds.  Deferential Standard Review: Few subjects of state regulation are so close to local concern as state highways. State’s primary concern is safety and economical admin. And should be allowed despite burden on commerce o SOUTHERN PACIFIC v. AZ  Holding: Court invalidated AZ law which prohibited railroad trains of more than 14 passenger or 70 freight cars  Determination: Nature and extent of burden which the state regulation of interstate trains imposes on interstate commerce, and whether the relative weights of state and national interests involved make the rule inapplicable, that free flow of interstate commerce in matters requiring uniformity are safeguarded from state interference  Question is whether the total effect fo the law as a safety measure is so slight as to not outweigh national interests which doesn’t have an effect on the interstate train operation it interrupts o BIBO v. NAVAJO FREIGHT LINES  Holding: Court indicated that, even in trucking cases, it would invalidate facially neutral laws with a disproportionate effect on interstate commerce  ―Like any local law that conflict with regulatory measures, state regs that run afoul of the policy of free trade reflected in Commerce Clause must also bow - Pike Balancing used to invalidate state limits on business entry and regulation of corporate affairs o LEWIS v. BT INVESTMENT MANAGERS  Holding: Court struck down a FL law prohibiting ownership of local investment advisory businesses by out-of-state banks  Law prevents ownership of local businesses by out of state firms, preventing foreign enterprise in local markets o EDGAR v. MITE CORP  Holding: Court held unconstitutional the IL Business Take-Over Act, designed to regulate tender offers made to IL companies  Pike: Substantial burden on interstate commerce outweighs local benefits o CTS CORP v. DYNAMICS CORP.  Facts: DCC challenge to Indiana law providing a purchaser who acquired control shares in an IN corp. could acquire voting rights subject to shareholder vote

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Holding: Court upheld the law Analysis:  It has the same effect on tender offers whether or not the person is a resident of IN  Corporate governance laws necessary to protect shareholders. Applies only to corps. in IN.  Concurrence: Real question is whether state law discriminates against interstate commerce or create a risk of inconsistent regulation by different states  Dissent: Act directly inhibits interstate commerce by regulating purchase and sale of shares of IN companies.

The Market Participant Exception - An exception, even for overt facial discrimination, when government acts as a buyer and seller of goods or engages in a program of subsidies or economic relief to in-state businesses - Argument: Preferential state expenditures pose less harm to commerce clause values because they are less coercive or hostile to other states and may benefit national welfare, less likely to cause retaliation o South-Central Timber Development v. Wunnicke  Facts: AK proposed sale of state-owned timber subject to condition that purchaser of timber in AK must process in AK before shipping out  Holding: Market-participant exception inapplicable to AK’s facially discriminatory home-processing environment. State can’t immunize its downstream regulation of timber-processing market  Analysis:  If state is acting as market participant rather than market regulator, Commerce Clause doesn’t restrict activities  Alexandria Scrap: MD program to reduce the number of junk autos in MD by more stringent documentation on out-of-state scrap processors. Rejected Commerce Clause attack. ―Nothing in commerce clause prohibits a state from participating in the market‖  Reeves v. Stake: Court upheld a SD policy of restricting sale fo cement from state-owned plant to state residents  White v. MA Council of Construction Employers: Sustained Commerce Clause challenge against a Boston order requiring all construction site to have over 50% city residents employed  AK is not merely subsidizing timber…Buyer of timber cannot process anywhere else  Reeves controlling here  Market-participant definition – AK isn’t a participant in secondary market. Ordinarily, a seller’s leverage to do what AK is doing wouldn’t be this strong. AK is leveraging timber-selling participation because AK owns the state land.  The limit of the market-participant doctrine must be that it allows a state to impose burdens on commerce within the market in which it is a participant, but it allow it to go no further. The state may not impose conditions that have a regulatory effect on a particular market  Court doesn’t want the state to leverage its political authority to have too much authority on its commercial affairs. The only reason AK is in a position to set these conditions is because AK has the authority and weight of state power  Downstream restrictions have a greater regulatory effect than do limitations on the immediate transaction  Dissent: AK is merely paying buyer indirectly to hire AK residents to process the timber.

Class Outline: P&I Clause – Differences from DCC - Grant fo right, not just structured principle - Protects only individuals, not corps - Limited range: ―Matters of fundamental concern‖ - Empirical: DCC discrimination  P&I  DCC balancing - No market participation exception The Interstate Privileges and Immunities Clause of Article IV - ―The Citizens of each state shall be entitled to all privileges and immunities of citizens in the several states‖ - Differences between Commerce Clause and Article IV, §2: o Corporations have no privileges under P&I Clause o Congress may authorize through commerce power, practices forbidden by DCC. P&I clause can’t be waived o P&I only extends to fundamental rights o ―Market participant‖ under P&I is not valid - 2 P&I Clauses o First (A state, to the extent it creates P&I that apply to its own citizens, can’t deny those same privileges and immunities to citizens of other states) o Second is from 14th Amendment (Broad bases protection of rights relating to national citizenship and how states may try to undermine it in some way) - United Building & Const. Trades Council v. Mayer and Council of Camden o Facts: Camden ordinance requiring at least 40% of contractors’ employees to be Camden residents o Holding: Camden’s ordinance is not immune from constitutional challenge from out-of-state residents because out-of-state residents are disadvantaged o Analysis:  Primary purpose was to fuse into one nation the collection of states, designed to give citizens of one state privileges in other states  Citizen and resident are interchangeable  Test: Whether ordinance burdens P&I privileges and whether an out-of-state resident’s interest in employment in public works in another state is fundamental to promotion of interstate harmony to fall within the Clause  Discrimination against out-of-state resident, not regulation affecting interstate commerce, that triggers P&I  Problem: There is a state law that allows these restrictions to happen in every city (Locality discrimination on employment is ok). Aggregate effect is that the in-staters cut up the pie, but they all get to exclude out-of-staters  If we are concerned about interstate discrimination, it doesn’t exempt locality discrimination  Court views P&I claims are about limitations on economics rights, where union would fall if a state had free rein to protect its people with discriminatory regulations  P&I claim easier to succeed than DCC balancing  Camden justifies their discrimination because otherwise, they wouldn’t have jobs…Camden has the opportunity to show that their community is so depress that this is justified  Dissent: court extends scope of clause holding that it discriminates among state residents on basis of municipal residence  Court says difference between in-state and out-of-state residents is that in-staters have the NJ legislature to complain to  Dissent: state parochialism goes unchecked by state political processes when those who are disadvantaged are disenfranchised

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Dissent: Discrimination on basis of municipal residence penalizes a person within AND outside the state’s community.

Scope and Limits of Interstate Privileges and Immunities - Threshold requirement of Article IV Privilege o Supreme Court of NH v. Piper: a state rule limiting bar admission to in-state residents violated P&I Clause  Clause doesn’t preclude discrimination against non-residents where:  There is a substantial reason for difference in treatment  Discrimination practiced against non-residents bears a substantial relationship to State’s objective  Dissent: State’s interest in maximizing # of resident lawyers, to increase quality pool from which its lawmakers are drawn Congressional Ordering of Federal-State Relationships by Preemption and Consent Congressional Preemption of State Regulation - When Congress exercises a granted power, the federal law may supercede a contrary state law because of the operation of the supremacy clause - Preemption rulings often turn on determination of congressional intent in a setting, and purposes of fed legislation involved o Pacific Gas & Elec. Co. v. State Energy Resources Conservation & Dev. Comm’n  Facts: CA law dealing with problem of finding solution for disposal of nuclear waste. Stopped all nuclear energy plant construction until feds have approved a means for waste disposal  Holding: S.Ct. rejected preemption challenge and upheld state law  Analysis:  Feds erected a complex scheme to promote civilian nuclear development and keep citizens safe  Absent explicit preemptory language, Congress’ intent to supersede state law altogether may be found from a scheme of federal regulation so pervasive as to make reasonable the inference that Congress left no room the supplement it because the act of congress may touch a field in which the federal interest is so dominant that the federal system will be presumed to preclude enforcement of state laws on the same subject or because the object sought to be obtained by fed law and the character of obligations imposed by it reveal the same purpose  Here, congress intended that Nuclear Regulatory Commission regulate safety, and state could regulate the economic aspects (CA legislature ID’ed the economic aspects)  When the federal government completely occupies a given field or an identifiable portion of it, test of preemption is whether the matter on which the state asserts the right to act is in any way regulated by the federal government  State law is preempted if it stands as an obstacle to the accomplishment of the full purposes and objectives of congress Modes of Preemptive Analysis - Express Preemption o Whether a state statute falls within the area preempted - Field Preemption o Court requires a clear showing that congress meant to occupy a field and so displace the states from regulation on that subject matter

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Rice v. Santa Fe Elevator  Assumption that historic powers of state not superceded unless by clear and manifest purpose by federal act  Purpose revealed by pervasive fed scheme, or fed act is so dominant that fed system precludes enforcement of state laws Conflict Preemption o Hines v. Davidowitz:  Court barred enforcement of PA Alien Registration Act because of Fed Registration Act  ―Where federal government, in the exercise of its superior authority in the field, has enacted a complete scheme of regulation and has therefore provided a standard regulation for aliens, state cannot conflict or interfere, curtail or complement, the federal law, or enforce additional or auxiliary regulations‖  Whether PA’s law stands as an obstacle to the accomplishment of the full purposes of congress o Florida Lime & Avocado Growers v. Paul  Conflict preemption a situation where compliance with both fed and state law is impossible  Avocados certified under fed standards but under minimum for CA standards.  No physical impossibility to comply with both standards o Gade v. National Solid Wastes Management v. U.S.  Court found several IL provisions for licensing workers who handle hazardous wastes preempted by OSHA regs, even though OSHA is just safety and state regs are safety and public health Preemption and Foreign Affairs Power o Crosby v. National Foreign Trade Council  Court struck down MA law barring state entities from buying goods form Myanmar  MA law was more stringent and inflexible than fed, and was an obstacle to fed’s accomplishment of objectives…undermining purpose and intents of act

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Congressional Consent to State Regulation - McCarran Act and State Discrimination in Insurance o Limited Applicability of antitrust laws to the insurance business, but assured state authority over insurance  Prudential Insurance v. Benjamin  NJ corp objected to collection of 3% premiums in SC for out-of-state insurance companies  McCarran act validated the tax - Federal development grants and local-hire rules o White v. MA Construction Council  Court upheld executive order by Mayor of Boston requiring 50% of workers on Boston public works projects must be from Boston…market participant exception.  ―Where state or local government action is specifically authorized by Congress, it is not subject to Commerce Clause even if it interferes with interstate commerce.‖ - Other devices for congressional ordering of fed-state relationships o Congressional role in determining scope of intergovernmental immunities o Fed incorporation of adoption of state common law o State administration of fed law o Fed spending power through congressional grants to states

Chapter 6: Separation of Powers

Presidential Powers Express Cong. Disapproval Express cons. Or cong. Authority Steel seizure majority (Black)------------------------------NO------------------------------------------YES Steel seizure (Jackson concurrence No (Twilight Zone) YES Dames & Moore……………….No………………………………………………………….…YES Executive Violation of the Separation of Powers - Article II vests executive power in president without qualification. Differs from Article I which gives congress all legislative powers herein granted - Judicial review, and problems that arise out of judicial review, arise out of separation of powers concerns. Justiciability doctrines…should we decide this? Are we going too far? - Note: This is an area of law where political question doctrine plays an important role: Circumstances in which someone asks the court to referee a suit between president and congress - Constitution gives checks on other branches…Interbranch structure gives effective government that doesn’t run roughshod over the public and allows multi-branch resolution of conflicts. - Two problems: One branch encroaches on another’s power, When 2 branches get together when the shouldn’t have. - President wants to do a lot of things unilaterally…how far can the president go in taking unilateral actions in foreign affairs and crises. o Youngstown Sheet and Tube Co. v. Sawyer [Steel Seizure Case]  Facts: Truman ordered secretary of commerce to take possession and operate the nation’s steel mills. President contends that the action was necessary to avert a catastrophe of steel companies and employee issues in new collective bargaining agreement. Due process doctrine  Holding: constitution doesn’t subject this congressional lawmaking power to the president  Analysis:  Justice Black: o President’s power to issue the order must stem either from an act of congress or from constitution itself. No statute expressly authorizes president to take possession of property as he did here o Direct constitutional authorization or affirmative authorization from congress can enable a president to act in this case o Founders of this nation entrusted lawmaking power alone to congress in good and bad times  Frankfurter concurring: o Pursuant to Taft-Hartley Act, Congress expressed its will to withhold this power from the president  Jackson Concurring: o Constitution enjoins separateness but interdependence, autonomy but reciprocity. Presidential powers are not fixed but fluctuate, depending upon disjunction or conjunction with congress o GROUPING  When President acts pursuant to an express or implied authorization of congress, his authority is at a maximum, for it includes all that he possesses in his own right plus all that congress can delegate  When president acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent

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powers, but there is a zone of twilight in which he and congress may have concurrent authority (No hard and fast rule…multifactor analysis)  When the president takes measures incompatible with the expressed or implied will of congress, his power is at its lowest ebb, for then he can only rely upon his own constitutional powers minus any powers of congress o Pres. Argument…Sending troops abroad is a derivative of seizing means of supply of steel for them  Constitution didn’t imply that commander in chief of the army and navy will constitute commander in chief of the country, its industries and inhabitants Dissents o Successful execution of Korean war depends upon continued production of steel and stabilized prices of steel. When the strike was threatened, the president should act to avert a shutdown o Without explicit authorization, presidents have acted against national emergencies o Under messenger-boy concept, president can’t even preserve legislative programs from destruction so congress can act upon them

Executive authority to Make National Domestic Policy - Aftermath of Steel Seizure o No steel shortage occurred o If court had upheld presidential action, opponents of the seizure would have to raise 2/3 majority in house and senate to overrule presidential veto - Formalism and Functionalism o Formalistic Analysis  Constitutional carves out authority simply, straightforwardly, and not going beyond the boundaries o Functional Approach  Post-New Deal regulatory state would be incompatible with a rigidly formalist separation of powers framework in light of a need for a national government with capacity to impose regulation over complex industries  Bounded by some notion of principled judicial decision-making, determine whether presidential decision it does more hard than good Executive Authority Over foreign and Military Affairs - Executive Agreements o Executive branch resorted in foreign relations to unilateral executive agreements rather than treaties by the senate o U.S. v. Belmont  Court sustained validity of an executive agreement and held that ti took precedence over state policy - Dames & Moore v. Regan o Facts: American embassy in Tehran was seized. Carter, acting pursuant to U.S. intl. Act, blocked transfer of all Iranian property. Dames & Moore filed suit in U.S. court against government of Iran because it was owed $3 million for services performed under contract. Court ordered property of Iranian banks to be held to pay off the debt. American hostages released and establishment of an Iran-U.S. claims Tribunal. o Holding: Neither IEEPA or Hostage Act constitutes specific authorization of President’s action, but President was authorized to suspend the claims

o Analysis:  President’s action is supported by the strongest of presumptions and the widest latitude of judicial interpretation and the burden of persuasion would rest heavily upon any who might attack it  Further in functional direction – treat the 3 possibilities as a continuum.  Statutes passed by congress indicate acceptance of a broad scope for executive action in these circumstances  ―Congress cannot anticipate and legislate with regard to every possible action the President may find it necessary to take or every possible situation in which he might act‖  Congress has implicitly approved practice of claim settlement by executive agreement.  ―A system of unbroken, executive practice, long pursued to the knowledge of congress and never before questioned may be treated as executive power as vested in Art. 1, Section 2. Past practice does not, by itself, create power, but long-continued practice, known to and acquiesced by congress, would raise a presumption that the action had been taken in pursuance of its consent  Multifactor analysis is very case specific. Their won’t be many abstract legal rules to apply. Dames & Moore preserves wiggle room. Executive Discretion in Times of War and Terrorism Enemy Combatant Cases Cong. Consent Y Y Y -Y? -U.S. Citizen Y N N N Y N Access to Tribunal Y Y Y N N Y Held in U.S. Result Y No Mil. Trib. Y Mil. Trib. ok N Mil. Trib. Ok Y fed. Ct. habeas jur. Y fed. Ct. habeas jur.differential Y no mil. Trib.

Milligan Quirin Eisentrager Rasul Hamdi Hamdan

The President, Congress, and War Powers - While constitution confers upon congress the power to declare war, Art. I, section 8, cl. 11, and to raise and support navies, Art I, section 8, it confers upon president authority to act as commander and chief of the armed forces, Art. II, Section II - Arguments: o Ely: constitutional assignment of war declaration power to congress designed to ensure that the decision to go to war would not be made lightly or quickly, without public support adequate to sustin full prosecution of the war. o Sofaer: Efforts to have courts pass on the legality of executive decisions to involve the nation’s hostilities would be futile, harmful to national interests, irresponsible. - War Power Resolution of 1973: o President may introduce troops into hostilities pursuant only to: a declaration of war, specific statutory authorization, or a national emergency created on an attack by the U.S., it’s territories or possessions, or its armed forces o President should always consult with congress before introducing troops into hostilities and shall submit a report to house of reps, and president has 60 days for congress to: declare war, enact a statute, or house fo reps cannot meet an armed attack Emergency Constitutionalism - Emergencies an constitutional text

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o Constitution doesn’t contain any emergency provisions. Art. 1, §9 provides ―the privilege of writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it o Argument for More presidential authority: Congress can’t conduct a war o Natural accumulation of power in executive branch when it comes to war. o Ideas: ―Framework statute‖ providing the U.S. government with authority to detain suspects for 45 to 60 days without the kind of evidence normally required by liberal constitutions, but subject to supermajoritarianism, compensation, and decency; emergencies can only be declared only after an actual attack; they can be continued for short intervals only by increasing supermajorities in the legislature Two Views: o Ex Parte Milligan  Held that President Lincoln’s suspension of writ of habeas corpus had not properly empowered him to try and convict before military tribunals citizens who had been detained during the war o In wartime, all constitutional bets are off and the executive must have the latitude to assume greater unilateral discretion o Strict view of constitution during emergencies: Allowing a curtailment of liberties during those periods acts as a one-way ratchet, reducing civil liberties permanently while increasing executive power o If Exec officials are allowed to act extra-constitutionally during crisis provided they openly and public acknowledge their actions, stricter separation may be maintained between periods of emergency and periods of normalcy

Executive Detention and Trial of Enemy Combatants - Article 1, §9, cl. 2 ―the privilege of the writ of habeas corpus shall not be suspended, unless when in Case of Rebellion or invasion the public safety may require it - Ex Parte Quirin o Facts: Petitioners were born in Germany, all lived in U.S. All returned to Germany before WWII. Haupt claimed U.S. citizenship and received training at sabotage school in Berlin. Went to NY with weapons and were caught. President appointed a military commission to try petitioners for offenses against Articles of War. Petitioners contended that President is without statutory or constitutional authority to try by military tribunal. Government says petitioners must be denied access to the courts because they are enemy aliens of have entered country as enemy belligerents. o Holding: Petitioners were charged with an offense against law of war which the constitution doesn’t require trial by jury o Analysis:  Lawful combatants are subject to capture and detention as POWs by opposing military forces. Unlawful combatants are likewise subject to capture and detention, but also subject to trial by military tribunal  Citizenship in the U.S. of an enemy combatant doesn’t relieve him from the consequences of a belligerency which is unlawful because in violation of the law of war Executive Detention and Trial of Enemy Combatants After 9/11 - Joint Resolution for the Authorization for Use of Military Force o Gave president authority to ―use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on 9/11, or harbored terrorist organizations or persons, in order to prevent future acts of international terrorism against the U.S. o Permitted President to engage Armed Forces in hostilities without defining any particular nation against which the force should be directed

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Johnson v. Eisentrager o ―The privilege of litigation does not extend to aliens in military custody who have no presence in any territory over which the U.S. is sovereign‖ Rasul v. Bush o Holding that fed courts had jurisdiction under the habeas statute, which authorized district courts ―within their respective jurisdictions‖ to entertain habeas applications by persons claiming to be held in custody in violation of the law so of the U.S. o Court recognizes federal court’s power to review applications for writs in times of war and peace o Whether the habeas statute confers a right to judicial review of the legality of executive detention of aliens in a territory over which the U.S. had plenary and executive jurisdiction, but not ultimate sovereignty o Guantanomo prisoners are not national of countries at war with the U.S., and they deny that they have engaged in or plotted attacks against the U.S., they have never been afforded access to a tribunal, or charged. Hamdi v. Rumsfeld o Facts: Hamdi was captured in Afghanistan by the Afghan Northern Alliance in 2001 and then turned over to U.S. military authorities during the U.S. invasion. The U.S. government alleged that Hamdi was there fighting for the Taliban, while Hamdi, through his father, has claimed that he was merely there as a relief worker and was mistakenly captured. Hamdi was initially held at Guantanamo Bay, but then transferred to a naval brig in Norfolk, Virginia when it was discovered that he held U.S. (as well as Saudi) citizenship, and then finally to a brig in Charleston, South Carolina. The Bush administration claimed that because Hamdi was caught in arms against the U.S., he could be properly detained as an unlawful combatant, without any oversight of presidential decision making, or without access to an attorney or the court system. The administration argued that this power was constitutional and necessary to effectively fight the War on Terror, unofficially declared by the United States after the September 11th terrorist attacks, to ensure that terrorists were no longer a threat and could be fully interrogated. o Holding: The Court recognized the power of the government to detain unlawful combatants, but ruled that detainees who are U.S. citizens must have the ability to challenge their detention before an impartial judge o Analysis:  Justice O'Connor wrote a plurality opinion representing the Court's judgment, which was joined by Chief Justice Rehnquist and Justices Breyer and Kennedy. O'Connor wrote that although Congress had expressly authorized the detention of unlawful combatants in its Authorization for Use of Military Force (AUMF) passed after 9/11, due process required that Hamdi have a meaningful opportunity to challenge his detention. However, Justice O'Connor used the three-prong test of Mathews v. Eldridge to limit the due process to be received. This required notice of the charges and an opportunity to be heard, though due to the burden upon the Executive of ongoing military conflict, normal procedural protections such as placing the burden of proof on the government or the ban on hearsay need not apply. O'Connor suggested the Department of Defense create fact-finding tribunals similar to the AR 190-8 to determine whether a detainee merited continued detention as an enemy combatant. The United States Department of Defense created Combatant Status Review Tribunals in response, modeling them after the AR 190-8. O'Connor did not write at length on Hamdi's right to an attorney, because by the time the Court rendered its decision, Hamdi had already been granted access to one. However, O'Connor did write that Hamdi "unquestionably has the right to access to counsel in connection with the proceedings on remand." The plurality held that judges need not be involved in reviewing these cases, rather only an impartial decision maker was required.  Justice David Souter, joined by Justice Ruth Bader Ginsburg, concurred with the plurality's judgment that due process protections must be available for Hamdi to challenge his status and detention, providing a majority for that part of the ruling.

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However, they dissented from the plurality's ruling that AUMF established Congressional authorization for the detention of unlawful combatants.  Justice Antonin Scalia's dissent, joined by Justice John Paul Stevens, went the furthest in restricting the Executive power of detention. Scalia asserted that based on historical precedent, the government had only two options to detain Hamdi: either Congress must suspend the right to habeas corpus (a power provided for under the Constitution only in times of "invasion" or "rebellion"), which hadn't happened; or Hamdi must be tried under normal criminal law. Scalia wrote that the plurality, though well meaning, had no basis in law for trying to establish new procedures that would be applicable in a challenge to Hamdi's detention—it was only the job of the Court to declare it unconstitutional and order his release or proper arrest, rather than to invent an acceptable process for detention.  Justice Clarence Thomas was the only justice who sided entirely with the government and the Fourth Circuit's ruling, based on his view of the important security interests at stake and the President's broad war-making powers. Scope of Hamdi: o Padilla v. Rumsfeld  American citizen was arrested for allegedly helping in a plot to detonate a dirty bomb on Chicago’s airport and turned over as an enemy combatant  Determined that Padilla had not properly filed his habeas petition and he should have brought the charge against the brig commander. o Detainee Treatment Act  Limited habeas corpus rights available to detainees in Guantanomo bay. No court shall have jurisdiction to consider application for habeas from a detainee. Limited review by court of appeals  Court held that DTA did not strip court of its jurisdiction over appeals from denial of habeas corpus, and found President’s unilateral military tribunal procedures unauthorized by statute and contrary to international law Hamdan v. Rumsfeld o Supreme Court case concerning the use of special military commissions to try Guantanamo prisoners, is a bear to boil down, accurately, in a single blog post. It touches on a perfect storm of arcane questions: customary international law, treaty interpretation, the common law of war, the Uniform Code of Military Justice, and jurisdiction-stripping. o The Court’s basic argument, as I understand it, is this: Congress can set the rules governing military commissions in most cases, including this one. Those rules, spelled out in the U.S. Code of Military Justice and corresponding treaties, specify as follows:  The commissions must conform as much as practical to the procedures that govern standing courts-martial (the standing tribunals in which U.S. serviceman can be tried) and ordinary civil criminal trials.  The Geneva Convention sets additional, overlapping requirements that trial of prisoners must occur in ―regularly constituted‖ courts. o Those requirements have been violated. While the commissions depart from the standard procedures of courts-martial, the president hasn’t made a sufficient showing that consistency with the procedures of ordinary courts-martial isn’t a ―practical‖ option, as U.S. law (specifically, Article 36 of the U.S. Code of Military Justice) requires. Because the president hasn’t made that showing, the Gitmo commissions also aren’t ―regularly constituted‖ courts — and therefore trying persons before the commissions violates Common Article 3 of the Geneva Convention. o The Court also holds that Common Article 3 of the Geneva Convention is part of the ―law of war‖ that governs military commissions under U.S. law. That means that Common Article 3 of the Geneva Convention is a restraint on the procedures that govern the commissions. Furthermore, the Court holds that Common Article 3 of the Geneva Conventions applies to the

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armed conflict with al Qaeda. That suggests that the Geneva Convention is a restraint on the way we treat prisoners who are in U.S. custody, since Common Article 3 requires that they be treated humanely. o Finally, the Court lays out a safe harbor for the administration. If the administration (1) adopts procedures and oversight mechanisms that apply to courts-martial — particularly, standards and procedures that insulate the ―presiding officer‖ (judge-like officer who presides over trials in commissions) from control by political appointees selected by the SecDef, and (2) conform standards governing admission of evidence to the rules that govern courts-martial, the commissions might be upheld. Also, if the administration offers record evidence that the procedures of courts-martial are impractical, it might also secure judicial approval of the commissions. Even if it doesn’t do this, the military can still hold Guantanamo detainees indefinitely without trial. The administration can also convince Congress to approve the procedures it prefers. Aftermath of Hamdan o Military Commissions Act of 2006  Provides President with Authority to try any such alien unlawful enemy combatants by military commissions for any offense made punishable by the law of war. Expanded DTA’s removal of habeas jurisdiction to all overseas enemy combatants detainees, regardless of where they were being held

Questions coming out of sequence 1. Did the court its job the right way? a. Thomas in Hamdan – ludicrous to allow congress to question president’s authority with war b. Are we ok the way this comes out? i. Trying foreign nationals and potentially U.S. citizens by military tribunal… Congressional Violation of the Separation of Powers Formal v. Functional Analysis Is it the court’s business to tell the two other branches how to govern? Practical Analysis – Separation of powers is to try to maintain an effective working government and protecting the government from encroaching the liberties of the people Congressional Control over the Actions of the Executive Branch - Congress entails a principal of non-delegation – Congress may not constitutionally delegate its power to another branch - Congress has broadly delegated agencies to make specific rules – legislative power – and non-delegation doctrine hasn’t stopped it - Exception o Panama ref. Co. v. Ryan  Hot oil case where congress struck down another NIRA provision on delegation grounds - United States v. Curtiss-Wright Export Corp. o The unwisdom of requiring congress in the field of government power to lay down narrowly definite standards by which president should govern o President has the power alone has the power to speak or listen as a representative of the nation - ―One-house veto‖ was a technique adopted by Congress in a wide range of statutes - INS v. Chadha o Facts: the INS gave the executive branch power and control over immigration. Provision in Immigration and Nationality Act that House or Senate AG’s ruling (50%). Legislative veto provision.

o Holding: One-House Veto unconstitutional on the merits o Analysis:  Why have the steps to deportation?  Congress sets legal standards, but the problem is that, if you just set out the law, you don’t have control on how the law gets applied in particular circumstances. Natural impulse to come up with a way of maintaining control. Congress can’t review every case of a deportable alien, but AG and DOJ can do this. Last step: we don’t want AG to have the last word and we don’t want the AG to go too far so we have legislative veto to have the last word.  It IS Congress’ statute.  What factors make congressional action a lawmaking action? (Resolution v. Bills)  Alteration of legal rights differentiates bills from resolutions  President’s Actual involvement is Important!  Fighting for the veto is part of the political gravity between president and the other branches  Even a 2/3 legislative veto would throw more weight on congress’ side of the scale…Constitutional arrangement important  Go ahead and set standards, but don’t attempt to come in at the back end and second guess AG  Who is being formal and who’s being function  Dissent – Functional (look at what happens in the world o You can say that white is formal…categorically, if you don’t have leg. veto, then executive branch can regulate  Majority - formal  Presentment Clause Analysis  Art I, §7, cl. 3 provides President with a limited and qualified power to nullify the proposed legislation by veto based on the conviction of the framers that powers conferred upon congress being closely circumscribed  Set out requirements for legislative process  Bicameralism  Acts as a filter – we want any law to go through both filters.  No law could take effect without concurrence of a majority of members of both houses  President’s participation in leg. Process was to protect executive branch from congress and to protect the people from improvident laws  In purporting to exercise powering Art. I, §8, cl. 4 to establish a uniform rule of Naturalization, the house here took action had purpose of altering the legal rights, duties, and relations of purpose  No support in constitution for proposition that cumbersomeness and delays often encountered in complying with explicit constitutional standards may be avoided, by president or congress  THEME: INS is defendant. Legal issue is whether congress has gone too far in encroaching congressional authority…has congress undermined the president, but the INS is saying that the law should be upheld. The 2 branches of government agree that congress should be able to undermine president’s power. Court is applying a principal that overcomes the will of the two entities. It doesn’t matter if a branch of government is trying to muscle in to the acquiescence of hatred of the other branch…not just a checks and balances case…it’s a separation fo powers case  Exceptions: congress can waive exclusive authority to legislate and let states get in on the action…  White Dissent:

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Allows Executive Branch to Make Law o AG can make autonomous policy decisions, what we usually give as power to congress Nondelegation doctrine – Attempt to clarify how congress can delegate authority to other branches. When congress delegates legislative power, congress must provide intelligible principles that guide the executive branch in making the decision. Bridges the strict structure of the constitution and the reality of administrative lawmaking. Represents our basic understanding on how delegation of authority should work. Legislative veto mechanism is a central means by which congress secures the accountability of executive and independent agencies. Without leg. Veto, congress can refrain from delegating authority or to abdicate executive lawmaking function Legislative veto present in 200 statutes Political intervention that allows pres. And congress to resolve major constitutional policy differences, assures the accountability of independent agencies, and preserves congress’ control over lawmaking Veto is a means of defense, a reservation of ultimate authority necessary if congress is to be a nation’s lawmaker Absent veto, agencies receiving delegations of legislative power may issue regulations having the force of bicameral approval without president’s signature

Clinton v. NY o Facts: Clinton canceled a provision of Balanced Budget Act under authority from Line Item Veto Act. o Holding: Act’s cancellation provisions violate Article I, §7 of the constitution o Analysis:  Can majority come up with a good functional arguments?  Political gravity argument  This sequence of action between the two branches is there for a reason. Congress enacted this law at the urging of presidents from both parties. If Congress can’t spend practically…maybe you are not supposed to be able to do it?  Line Item Veto Act gives President Power to cancel in whole three types of provisions:  Any dollar amount of discretionary budget authority  Any item of new direct spending  Limited Tax benefit  He must determine that the provision will:  Reduce the federal deficit  Not impair any essential government functions  Not harm the national interest  Power to enact statutes may only be exercised in accord with a single, finely wrought and exhaustively considered principle.  Power to cancel portions of a duly enacted statute involves greater presidential discretion  He is rejecting congressional policy decision and relying on his own policy judgment  Basis for fiscal restraint…but too much  Act gives President unilateral power to change the text of duly enacted statutes  Kennedy Concurrence  If a citizen who is taxed has the measure of the tax or decision to spend determined by executive alone, without control by citizen’s representatives in congress, liberty is threatened  O’Conner

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Doctrine of unconstitutional delegation of legislative authority: when authorized executive reduction is allowed to go too far, it usurps the nondelegation function of congress and violates separation of powers Dissent:  What the president is allowed to do here is tantamount to some of the things the president is allowed to do…like not spending all appropriated funds  Executive branch agencies, by engaging in rulemaking, are expanding the reach of congressional policy decisions all the time.  Function objection – is majority opinion duly formalist?  Fundamental Problem – you veto the bill, then you sign it

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Congressional Control over Executive Officers Article II, §2, cl. 2 Appointments Clause – president shall nominate, and by and with the Advice and Consent of the Senate, shall appoint ambassadors, judges of the Supreme Court, and all other officers: but congress may vest the appointment of such inferior officers, as they think proper, in the president alone, in the courts of law, or heads of departments o Buckley v. Valeo  Holding unconstitutional the composition of FEC. Majority appointed by president pro tempore of house and senate  Congress could vest appointments because they aren’t considered ―Heads of Departments‖ Removal of Executive Officers o Bowsher v. Synar  Facts: Graham-Rudman-Holl  ings Act aimed to achieve a balanced budget by establishing maximum annual deficits. Act required across the board cuts. Comptroller General would report conclusions about required budget deficits to president. President would enact the adjustment unless congress met the deficit other ways. Comptroller General nominated by President from a list compiled by house and senate, removable only by impeachment or joint resolution of congress  Holding: Invalidated act because here congress retained control over execution of the Act and intruded into executive function by placing act in hands of an officer who is only subject to removal by itself  Analysis  Congress cannot reserve for itself the power of removal of an officer charged with the execution of laws except by impeachment…Would give congress control over execution of the laws  Chadha/Bowsher parallel – Court strikes both down as violation of separation of powers. In both cases, congress cannot extend its authority to downstream decisions after the enactment of the authority. Congress cannot exert direct control over execution of the laws  Majority views the problem as the particular extend of control that congress is maintaining over executive branch decisions.  Formal – Majority – This power to remove controller general exists. De facto, congress can influence decisiosn of executive branch - Unconstitutional  Functional – Dissent. Executive branch is unconstrained because the removal power is so restricted and narrowly cast that you aren’t going to worry about congress’ political sensibilities  What’s the best way to think about separation of powers controversies?

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o Formal – Benefit is virtue of drawing bright lines and preventing slippery slopes o Functional – adaptive to real world?  Constitutional convention chose to permit impeachment of executive officers only for treason, bribery, or other high crimes…not for maladministration  Comptroller has ultimate authority regarding budget cuts  Dissent: Removal of comptroller under statute satisfies requirements of bicameralism and presentment in Chadha  Dissent: Attempt by congress to control actions of an officer doesn’t indicate unconstitutionality Myers v. United States  Unconstitutional a statute providing that certain groups of postmasters could not be removed by the president without consent of senate  Reasonable implication form president’s power to execute law that he should select those under him to execute the laws Humphrey’s Executor v. U.S.  Found that congress could limit president’s power of removal of FCC commissioners for cause and limited Myers to ―purely executive officers.‖  Myers rule now stands for ―unrestrictable power of president to remove purely executive officers  Approve a check on presidential power. Independent agency within executive power.  Key elements: court look sat what FTC does (Functions of commission are legislative in nature), and court points out that congress isn’t maintaining for itself the power to remove FTC commissioner (all congress has done is set standards for the president, but pres. Can still remove FTC officers) Weiner v. U.S.  Commitment to a unitary executive in the creation of substantially independent agencies in specific, limited areas where political influence would be detrimental, might be valid under certain circumstances as the best way of keeping faith with the most fundamental goals of the original scheme Morrison v. Olson  Facts: Ethics in Government Act required AG upon sufficient grounds to investigate, conduct investigation of possible official violations of federal criminal law. If further investigation is warranted, apply to independent council to settle issue  Holding: Rejected claim that vesting the appointment of independent council in the special division violated literal text of Appointments Clause  Analysis:  Independent council was an ―inferior officer‖ because AG could remove them for good cause, tenure was temporary, and she wasn’t a ―principal officer‖  When congress created a temporary office in which duties vary with circumstances, may vest the power to define scope of office in court  Removal of power largely in hands of executive branch. No requirement for congressional approval of executive’s decision  Independent council is an inferior officer under appointments clause  Case isn’t an attempt by congress to increase its own powers at hands of executive branch  Special division powers aren’t administrative or supervisory  Dissent: government investigations of crimes is an executive function  System of separate and coordinate powers involves acceptance of exclusive power  President’s power to remove principal officers who exercise purely executive powers could not be restricted

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―Purpose of separation and equilibriumization of powers in general, and of the unitary executive in particular, was not merely to assure effective government but to preserve individual freedom President pays political damages when crimes aren’t investigated and prosecuted fairly Functional – ―inferior‖ – AG has authority to remove for good cause, judges who appoint council give her limited jurisdiction, temporary tenure. Formal – Not a direct subordinate, prosecutorial authority outside a chain of command, therefore an ―officer‖ Removal issue…AG is limited in removing independent council (good cause) Similar to Humphrey o Congress isn’t retaining removal power for itself o Court limited president’s authority o Functional reasoning – what really is the nature of the removal power…practical ability of AG to remove is strong. Congress isn’t maintaining downstream removal authority and congress isn’t aggrandizing its own power Dissent: Separation of powers meant to preserve individual liberty. Division of authority between legislative policymaking and executive prosecution is meant to preserve rights. Formalist and functionalist.

The Aftermath of Morrison - Mistretta v. U.S. o Facts: Commission set up as an independent commission of judicial branch, consisting of 7 members appointed by president with Senate consent (3 of them judges). Members removable from commission by president with good cause o Holding: Court rejected both antidelegation and general separation of powers attacks on an unusually composed commission created to set federal guidelines for criminal sentences, U.S. Sentencing Commission (Focused on the problem of what the delegated officials are doing). When congress provides standards, congress may vest legislative authority in the officials o Analysis:  Rejecting claim that congress had granted commission excessive legislative discretion in violation of nondelegation doctrine  Chicken-egg – Congress is exercising control over exercise of operations of executive branch. However, executive branch is engaged in making policy choices…relationship between both. Where you find one, you find the other.  Argument for applying nondelegating doctrine – where congress outsources a particular legislative decision to other entities…Here, congress makes the big policy decision and all the commission has to do is provide detail. The reality of the modern administrative state. Court willing to allow congress to outsource broad categories of detail work to other entities  Congress’ delegation of authority to sentencing commissions sufficiently specific and detailed to meet constitutional requirements  We have upheld statutory provisions that commingle functions of branches but pose no danger of encroachment. We expressed vigilance against judiciary assigned tasks more appropriately accomplished by other branches and that no provision of law threatens institutional integrity of judicial branch  Substantive judgment in sentencing has been assigned to judicial branch  Service of judges on commission won’t have a negative effect on operation of judicial branch or threaten impartiality

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Dissent: we must be rigorous in preserving constitution’s structural restrictions that deter excessive legislation Court fails to recognize this case is about creation of a new branch altogether, a JV congress

Executive Privileges and Immunities Presidential Immunity (Rationales) Protect non-official actions? Decisionmaking N Distraction Y (cases) Nixon v. Fitzgerald -Clinton v. Jones N -

Protection extends after term? Y N Y --

Article II specifies no privileges or immunities for the President or members of Executive branch. Courts have implied executive privileges from the structure of the constitution and analogies to common law o United States v. Nixon  Facts: Botched burglary at Democratic National headquarters during 1972 Presidential campaign, by employees of Nixon’s re-election committee. President released transcripts of conversations and moved to quash the subpoenas claiming executive privilege.  Holding: Supreme Court upheld denial of President’s claim of executive privilege.  Analysis:  Neither doctrine of separation of powers, nor need for confidentiality of high level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances  When privilege depends solely on the broad, undifferentiated claim of public interest in confidentiality of conversations, doesn’t work  Twofold aim o The guilt shall not escape nor innocence suffer o Fundamental need to develop all relevant facts in adversarial system  ―We cannot conclude that advisors will be moved to temper the candor of their remarks by the infrequent occasions of disclosure because of the possibility that such conversations will be called for in the context of criminal prosecution. Allowance of the privilege to withhold evidence is demonstrably relevant in criminal trial would cut deeply into guarantee of due process and impair function of courts.  A president’s acknowledged need for confidentiality in communication of his office is general, whereas constitutional need for production of evidence in a criminal proceeding is specific o However, can only do that in limited cases…no absolute privilege o Balancing analysis o Wouldn’t be serious harmful to disclose the tapes? o This wasn’t about the President’s conduct of his official duties in any meaningful sense.  However, necessary in public interest to afford president confidentiality the greatest protection consistent with fair administration of justice  Nixon: Disrespecting work of a coordinate branch. President should have to be subject to criminal sanctions

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Nixon: Presumptive Privilege Argument – Presidential documents and speech is protected. Demand on time and substance will undermine my work. Court in its own way is a political actor. They are aware of the political context of their decisions. If the court didn’t think its decision was secure and would have to be obeyed, the court would have found a way to say no.

Scope and Limits of Executive Privilege - Decision rejected Nixon’s claim that he is immune from judicial process while in office o Relying on a privilege to shield communications from those investigating wrongdoing may cost President political capital in congress and may negatively affect public support o In Re: Sealed Case – holding that federal evidence law doesn’t support a ―protective function‖ privilege for secret service agents assigned by law to protect the president - Presidential Immunity from Civil Damages Liability for Official Actions o Nixon v. Fitzgerald  Whether the president should be accorded immunity from lawsuit.  Held that president is absolutely immune from civil damages liability for his official acts – at least in absence of explicit affirmative action by congress  Protecting president form suits would avoid rendering him too precautious in discharge of official duties  President would be an easy target considering visibility  Dissent: Absolute immunity places president above the law - Presidential immunity from Civil Damages Liability for unofficial actions o Clinton v. Jones  Facts: Jones seeks to recover damages based on actions done before entering office. President contends that constitution requires that federal courts defer litigation until term ends. Court of appeals regarded postponing trial until president leaves office as the functional equivalent of temporary immunity  Holding: Separation of powers doctrine does not require federal courts to stay all private actions against president until he leaves office. Denies president’s request for immunity.  Analysis:  Immunity serves public interest in enabling officials to perform their designated functions effectives without fear that a particular decision may give rise to personal liability (no support for immunity from personal conduct)  Immunities are grounded in nature of the function performed, not the identity of the actor who performed it  Doctrine of separation of powers places limits on judiciary authority to interfere with the executive branch that would be transgressed by allowing action to proceed  Suggestions that judiciary may be performing an executive function  Additional litigation may impose burden on pres. Time and energy o Highly unlikely to occupy substantial amount of time  Availability of sanctions deters litigation directed at president in unofficial capacity  Concurrence: Once president sets forth and explains a conflict between judicial duties and public duties, constitution permits a judge to schedule a trial in civil damages only within principle that forbids a federal judge to interfere with a president’s duties  Concurrence: President isn’t like congress, there is no proper replacement  Bright line between official and unofficial actions Relationship between rationales for Presidential immunity and…

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Reasons for a president to claim immunity from suit o Distraction rationale – President distracted from official duties  Do you make the immunity blanket-covering or official duties? HERE, it should be for all actions because every can be a distraction. You should limit the immunity to president’s term with distraction because distraction from presidency will be over when they leave office. If president isn’t asked to answer to a lawsuit while in office…then maybe the decision-making rationale should e followed o Constraints on President’s Decision-making rationale – Would cause President to act very defensively. President should be worried about personal liability for decisions made. Makes sense to limit Presidential immunity to official actions. You should make the immunity perpetual under this rationale 2 elements o Nature of the duties as to which the president is immune from lawsuit  White: Look at it functionally…and only extend it to president’s official functions. I don’t think that Fitz facts exercise president’s official duties  Majority says no. o Perpetual Immunity – Not time-bound:

Implications of Clinton v. Jones - Immunity for official v. unofficial actions o Court’s decision determined by tyranny-preventing principle that president cannot be placed above the law. However, threat of tyranny may be greater when the president’s alleged concern abuse of official power than when they involve private wrongdoing? - Indictment of sitting president? o Agreement that impeached president is subject to prosecution after leaving office - Impeachment of President o Andrew Johnson  Unilateral dismissal of Secretary of War in violation of Tenure in Office Act  Johnson escaped conviction and removal by 1 vote o Richard Nixon  Article 1: Nixon acted in a manner contrary to trust as president  Article 2: Nixon repeatedly engaged in conduct violating his constitutional rights of citizens, impairing the due and proper administration of justice or contravening the law governing the agencies of the executive branch  Article 3: President willfully disobeyed series of subpoenas o William Clinton  Clinton prevented, obstructed and impeded administration of justice in discovery during Jones suit and willfully provided purjurious and false testimony. - Hate Crimes and Misdemeanors o Does it refer to a specific set of criminal acts? o Implicit suggestion that all crimes are not impeachable  Political crimes?  Serious abuses of political power or public trust - Impeachment as political remedy o Division of conduct in private or public areas is a mere artificiality in the process designed to deal with the perceived legitimacy of a president to govern o Purpose of impeachment is to protect the public rather than punish a specific list of offenses: in the ―prudential judgment‖ of congress, whose duty is to evaluate range of offenses in relation to fitness for office

Rights Provisions Provision Protects Against Barron Bill of Rights Fundamental Civil Rights Fed gov’t Slaughterhouse Art. IV, §2 / P + I Fund. Amended civil rights States (extent state chooses to grant) 14th P or I lim. rights of nat. citizenship states ----------------------------------------------------------------------------Modern 14th Due Process Incorp./Fund. Civil rights states Barron v. Mayor and City Council of Baltimore, 32 U.S. (7 Pet.) 243 (1833) - Facts: Barron believed that municipal street construction by the City had diverted the flow of streams which caused silt deposits in front of his warf. This made the water too shallow for boats to moor up which caused his business to cease. - Issue(s): Whether the protections of 5th Amend of the U.S. Const. apply to the citizens against the actions of state government? - Holding: The Just Compensation provision of the 5th is intended solely as a limit on the exercise of power by the federal government, and not applicable to the legislation of the states. Procedure: Barron sued City of Baltimore. Cnty Ct granted verdict for Barron $45K. State Circuit Ct reversed. Writ of Error U.S. S.Ct. C: No jurisdiction over the case. - Rule(s): 5th Amendment - Rationale: o The U.S. Const was established by the people of the U.S. for themselves, for their government, and not for the government of the individual states. o Each state enacted their own constitution to provide specific limitations and restrictions on its own governments. The powers conferred under the federal constitution were to be exercised by that government. o Any limitations granted therein are not limitation on distinct state governments. The 5th Amend. must be understood as a general limit on the power of the general government, and not applicable to the states. Had the framers intended such a result, they would have included that intention. o Takings Clause doesn’t apply to the states o Article 1, §9 applies to federal government o Article 1, §10 applies to state government  Specific provisions laying out what states can’t do. If framers wanted BOR to restrict the states, the framers knew how to do that but the bill of rights doesn’t discuss states  However, the bill of rights speaks in terms of rights holder  Doesn’t really say anything about the feds either o Privileges and immunities clause deals with the states o Trying to limit national government power over the state  Framers were concerned about fed. Power. Motivation and basis for limiting bill of rights to fed. Gov. o Civil War represents the notion that slavery is an individual rights issue has not penetrated the national consciousness.  Slavery fits well into rights paradigm and it was a major states rights abuse  When states decide to make trouble, they are perfectly capable of doing so o Constitution is altered with the addition of the 13th, 14th, and 15th – Apply directly to the states. Effort to constitutionalize the understanding that states are a problem as well when it comes to individual rights.  13th – Constitutionalized emancipation proclamation  15th – Voting; constitutionalizes ban on racial discrimination on voting.  14th

 Guaranteeing due process of law  Equal protection of the law Privileges and immunities clause BIG QUESTION: What rights protections do these amendments guarantee Slaughter-House Cases, 83 U.S. (16 Wall.) 36 (1872) - Facts: The Louisiana legislature passed an act in 1869 to clean up the Mississippi River from the dumping of refuse into the river from the many small independent slaughterhouses. In the act, the legislature prohibited all landing and slaughtering of livestock in the city of New Orleans or the surrounding parishes except at one large slaughterhouse, which was granted an exclusive franchise for 25 years. The Butchers challenged the act on the grounds that it violated the 13th Amendment and the Privileges and Immunities, Due Process, and Equal Protection Clauses of the 14th Amendment. - Issue(s): Whether the legislative act by the State of LA is in violation of the 13th and 14th, which include the Privileges and Immunities, Due Process, and Equal Protection Clauses? - Holding: No the law does not violate the 13th Amendment or 14th P& Immunities. The 14th does not incorporate any of the protections under the Bill of Rights from the States to the federal govt. - Procedure: Butchers sued in state courts to have act declared invalid as violating 13th and 14th but the Louisiana Supreme Court upheld the law. U.S. S. Ct. Affirmed. - Reason: The Justices supporting the decision felt the spirit of the Amendments at issue were designed to remedy the evils set forth by former slavery and other related issues during an era of excited unrest. Rationale: The power being exercised by LA is one that has always belonged to the states and referred to as a police power. Unless some restraint on that power is found in the const of that state or the federal Const, it is incapable of any exact limitation. When addressing the 13th, 14th, and 15th Amends. must look to the purpose or the evil they were designed to remedy in fashioning a constructive application. 14th opens with a definition of citizenship of the U.S. and of the states. Thus, two different forms of citizenship exist which are distinct. The next section deals with the P & I of citizens of the U.S. and not those of the states. 14th does not protect citizens against deprivations of their rights by State legislation b/c the 14th does not provide any new rights upon citizens. The 14th only assumes that there are such P & I which belong as rights to citizens, and that they shall not be abridged by State legislation. If this constraint refers only to P & I that existed before the passage of that Amend, then no state could ever interfere by its laws. A correct reading allows for a state to permissibly prescribe such regulations that will promote health and safety. Its sole purpose was to declare to the several states that whatever those rights, granted to its citizens, or as it limits, neither more nor less shall be the measure of the rights of the citizens of other States within its jurisdiction. 13th was enacted under the pressure and fresh memory of the Civil War, and its purpose was to provide Const. protection to African-Americans who had suffered. The Const. provides very few limitations on state government; barring ex post facto law; bills of attainder; and laws impairing the obligation of contracts. The entire domain of the P & I of citizens lays within the power of the states. This court is excused from defining P & I of the citizens of U.S. which no state can abridge because the issue is not presented. P & I, as a right of citizens, impliedly protected by the Const, is the right to come before the seat of government and assert any claim on that government, transact any business with it, seeks its protection, share its offices, engage in administration of its functions; right to free access to its seaports, to the sub-treasuries, land offices, and courts of justice. Another P & I belonging to a citizen of the U.S. is the right to demand the care and

protection of the federal government over his life, liberty, and property when on the high seas or within the jurisdiction of the federal government, by right to peaceably assemble and petition for redress of grievances, and use of the privilege of habeas corpus. To these a citizen of the U.S. can add the rights pronounced in the 13th, 14th, and 15th Amendments. There is no reason to inquiry whether further because the rights claimed by the Pl’s are not P & I of the citizens of the U.S. within the meaning of the 14th. The policy concern is preservation of separation of powers and respect for sovereignty after the recent war. If 14th is primarily about extending rights to former slaves, then it only apples in a certain range of case Rights protected by 14th amendment constrained by experience of slavery. Claim under 14th must advance a claim that is at least tantamount to the sorts of rights that would be available to former slaves Foundational argument: What is 14th amendment for? Slaves in 1793 – No property, living in state of fear and subjugation, not likely to advance a rights claim in federal court (only happened in mid-20th century) Miller’s construction of 14th amendment is a rhetorical device for limiting reach of 14th amendment P or I clause doesn’t protect something as basic as right to property because natural rights are a matter of state citizens. Matters of national citizenship are things like petitioning fed. Gov. for redress of grieveances o Limiting category to narrow collection of rights. Rights can are uniquely related to citizenship in the nation as opposed to the states o Property, speech, religion are consigned to rights of state citizenship that isn’t protected by P or I clause (Article 4, §2 P+I does)  Scope of Art 4, §2 is defined by any given state itself  Only protect to the end that states choose to grant them o Imposing too much fed. Authority on states and it would limit state power. Phenomenon: it is difficult to deny that the court’s holding is at odds with the historical context and text of the 14th amendment (constrain states), court says here that state power is still a paramount concern. As a result, we get a narrow view of the 14th amendment prevailing for a long time  Seemed like P or I would be where action was  Court eviscerates P or I clause…except for seins v. rowe case – violation of right to interstate migration is a fundamental element of con. Structure…it is a privilege or immunity of national citizenship. Court uses P or I clause for striking down CA residency requirement.

DISSENT: the correct issue is whether the new Amendments protect the citizens of the U.S. against deprivations of their rights by state legislation. Answer: the 14th affords protection and that intention was expressed by Congress when it framed its provisions and which the states ratified. The Civil Rights Act and the CL of Eng condemned governmental interference with the obligation contracts to avoid state created monopolies. The equality of rights, in the lawful pursuits of life, throughout the entire country, are privileges of the citizens of the United States. Certainly states may regulate health and safety issues within its territory, but once enacted those regulations must be free to be followed by every citizen who is within the conditions designated. Pl A: Statute creates a monopoly by giving exclusive privileges to a small number of citizens at the expense of the larger community, and it also deprives that larger class of citizens the right to exercise a trade. It causes involuntary servitude–13th; restricts P & I –Art. IV; denies Pl’s E.Q. protection–14th; and deprives property w/o DP–5th. 14th amendment challenge: what rights are protected? Supposed to protect some substantive rights. 13th Slavery/15th Voting/14th does tell you what substantive rights should be protected. - P or I – Gutted after slaguhterhouse

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Due Process – ONLY TEXTUAL HOOK YOU HAVE LEFT FOR SUBSTANTIVE RIGHTS Equal protection -

Incorporation of Bill of Rights Through the Due Process Clause - Examine the constitution itself, to see whether the process be in conflict with any of its provisions. If not found to be so, we must look at the settled usages and modes of proceeding existing in the common and statute law of England - Majority of the court has never accepted the view that the 14th amendment due process clause incorporated all the provisions of the bill of rights o Palko v. Connecticut  Selective incorporation  Court implied to the states some bill fo rights guarantees (free speech and right to council) but not others (grant jury indictment and protection against self-incrimination)  The right to jury trial and immunity from prosecution except as the result of indictment may have value and importance. They are not the very essence of a scheme of ordered liberty. To abolish them is not to violate a principle of justice so rooted in the traditions and conscience of our people to be ranked as fundamental o Adamson v. California  Facts: Adamson claimed that his murder conviction violated 14th Amendment because prosecution had been permitted to comment on failure to take the stand during trial  Holding: Such a comment would violate 5th amendment’s self-incrimination privilege oin a federal proceeding  Analysis:  LAYS OUT POLAR OPPOSITE AROUND CENTRIST APPROACH OF SELECTIVE INCORPORATION  Not all bill of rights guarantees were protected by 14th amendment and can’t make self-incrimination privilege applicable to the states  Dissent: due process requires TOTAL INCORPORATION of bill of rights  Dissent: Court endowed by constitution with boundless power under natural law periodically to expand and contract constitutional standards to conform to court’s perception of a particular time constitutes civilized decency and fundamental liberty and justice  Dissent: history demonstrates that 14th amendment language explicit to guarantee that no state could deprive its citizens of the privileges and protections of bill of rights  Concurrence: NON-INCORPORATION POSITION. Due process clause neither comprehends specific provisions by which the founders deemed it appropriate to restrict the federal government nor is it confined to them  Concurrence: Shouldn’t be focusing on provision of bill of rights. What does phrase in bill of rights means? Canons of decency and fairness  Total Incorporation would limit state autonomy in law enforcement  Frankfurter - Be careful what you wish for – if all criminal provisions of bill of rights are applicable to the state system. Court somewhat cautious on imposing restraints on the state. If you raise the stakes in that way, court will be reluctant in the future to find strong protections in those amendments…taking path of least resistance. Warning takes on significance…Williams v. FL, Apadacta v. OR: Criminal conviction by non-unanimous jury doesn’t violate due process of trial by jury  Trade-off: Well, doesn’t it depend what you think is more important? Strong constitutional protections for criminal procedure applying only to feds is

important, but might prefer a broad theory to apply to states, where most criminal prosecutions happen. Secondary consequences of strengthening rights protections  Virtues an deficits of different approaches  Total incorporation o Judges more constrained in decision-making (canons of decency and fairness leaves too much room to make stuff up) (coextensive with bill of rights protections is an anchor)  Selective Incorporation  Non-incorporation o More desirable for State autonomy  States are not subject to well-developed, clearly laid out package of rights protections in BOR  However, state could be more heavily burdened by the BOR restrictions o Individual rights  Distinction among 4 different approaches to how you relate the bill of rights to 14th Amendment st  If you bring a 1 amendment case against a state actor, it is under 1st and 14th amendment o Selective incorporation governs, but dissent eventually prevailed  Palko-Adamson – Court looked to the facts of a case and asked whether the challenged state action violated the fundamental fairness and that should be applicable to the states  Later approach, whether bill of rights provision is essential to fundamental fairness to be applicable to the states  Selective incorporation: Implicit in the context of ordered liberty – Some criminal protections operate against the states. We ask which provisions are implicit in the concept of ordered liberty o Duncan v. Louisiana  Facts: Duncan convicted to battery. Did receive trial by jury because of Louisiana law.  Issue: Should Duncan be allowed right to jury trial in state pursuant to 6th and 14th amendments  Holding: Yes, right to jury trial implicit in concept of ordered liberty  Analysis:  Court has increasingly looked to bill of rights for guidance o Chicago, Burlington & Quincy v. Chicago: Right to compensation for property take by state o Fiske v. Kansas – right of speech, press, covered by 1st amendment o Mapp v. Ohio – right to be free from unreasonable searches and seizure and exclusion of illegally seized evidence o Malloy v. Hogan – free of self-incrimination o Gideon v. Wainwright – right to council o Klopfer v. NC – speedy and public trial  Trial by jury is fundamental to American scheme of justice  Concurrence: No state shall make or enforce any law which shall abridge the P or I of citizens in U.S. seems a reasonable way of expressing the idea that the Bill of Rights shall apply to the states  Dissent: Neither history, nor sense, supports using 14th Amendment to put the states in a constitutional straightjacket with respect to their own development in the administration of criminal or civil law  Dissent: Jury trial not a requisite of due process is quite simple…only fundamental fairness

Dissent: Has not been demonstrated that trial by jury is the only fair means of resolving issues of fact  Dissent: Trial by jury not the only fair way of adjudicating criminal guilt o Incorporation since Duncan  As a result of Selective incorporation, all criminal process guarantees of the bill of rights have now been applicable to the states, with the exception of the grand jury indictment provision of the 5th amendment and the excessive bail provision of the 8th amendment  Cardozo-Frankfurter – finding that a right reflected in one of the bill of rights provisions was essential to fundamental fairness did not mean that all of the detailed interpretations of the relevant bill of rights provision necessarily applicable to the states  Mapp v. OH  Incorporation not merely incorporation of the core of the BOR, but applying to state every detail of the contours of the guarantee  Williams v. FL  12-man panel is not necessary ingredient of ―trial by jury‖  Particular feature of jury system was historical accident  Refined incorporation – not only bill of rights provisions, but also provisions of original constitution should be deemed effective against actions by states, so long as these restrictions on government activity are the sort of restrictions the 14th amendment’s authors would have considered P + I of individuals Review problem 2: - Start with pre-emption because, if you are Smith, because it’s the broadest possible argument o Standards for field pre-emption:  Define the field – Here, we’re talking about price of milk  Legal standards –  Federal interest is so predominant that there is no room for state action.  Character of the federal law and object of obligations it imposes apply preemption o Getting out of field-pre-emption argument  Get out of the field  Wisconsin says that they are regulating public safety - Conflict Pre-emption o Where compliance between federal and state law is impossible, state law is pre-empted as to the direct conflict o If state regulation frustrates the purpose of the federal regulation, state law is pre-empted  Illcorp says that it physically impossible to comply with both laws. To comply with both laws, we’ll lose tremendous amount of money…frustrating the purpose of the laws.  Wisconsin says that the federal law is unconstitutional…no fed law to pre-empt. INS v. Chadha argument  Practical import of 1/3 of either house must approve…same thing as saying that 2/3 of both houses would have to disapprove the Act. INS v. Chadha required only majority. o Presentment argument  If you require a 2/3 supermajority in both houses to reject what the president is doing. It is a veto override supermajority. Satisfying highest test that the constitution ever requires us to meet to supercede a decision by executive branch. Reinforces legislative veto. HOWEVER, might not succeed for Wisconsin because, even if congress puts on itself the burden of meeting the veto override standard, that is not all the constitution requires. Cutting the president out of the equation alters the balance of power. Even 2/3 supermajority may fail constitutional muster

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Dormant Commerce Clause – principle of federal exclusivity o Discriminatory against interstate commerce  Can be proved by: either you demonstrate that a state law is discriminatory on its face, or that the state law is discriminatory in either its purpose or fact  Illcorp – Taxing-out-of-state corporations and subsidizing in-state corporations. Discriminatory rebate scheme – DCC circumvention through money laundering. Not such an Illcorp slam dunk because the state is distributing the rebate to all farmers in Wisconsin to all farmers who lost money, not just dairy farmers. Usually taking from certain industry and redistributing to all instate  Wisconsin – Health and safety o Economic regulation masked with public health and safety. Pre-textual. Better ways to protect health and safety o Wisconsin could come back and say that this is like a quarantine regulation…about inspection and disease o Pike Balancing Argument  Burden on out-of-state interests with in-state benefits  ―Clearly excessive‖ burden on commerce  No case that shows us how pike balancing test works. Court usually finds all the evidence pointing one way o Privileges and Immunities  Prohibits states from discriminating against citizens of other states. State may not deny the citizens of other states privileges and immunities it accords to its own citizens  Test  Only Smith can bring the claim, not the corporation  Prima facie case – Matter of fundamental concern  Losing money is less important than losing a company or a job  State can also deflect P+I claim if they have a justification o State has a substantial reason for denying the fundamental right of interest of federal concern o Economic distress

Substantive Due Process and Economic Liberties - Natural law tradition: Written constitution is merely reaffirming preexisting rights that were entitled to protection whether or not they were explicitly stated in a written document o Calder v. Bull  Court rejected an attack on a CT legislative act setting aside a probate court decree that had refused to approve a will  ―The people of the U.S. erected their constitutions, or forms of governments, to establish justice, to promote the general welfare, to secure the blessings of liberty, and to protect their persons and property from violence. The purposes for which men enter into society will determine the nature and terms of the social compact‖  ―An act of the legislature contrary to the great first principles of the social compact, cannot be considered a rightful exercise of legislative authority  CT law did not exceed legislative powers: since the initial validation of the will had not created any vested property rights in the heirs, the law was consistent with ―natural justice‖  Dissent: To guard against so great an evil, it has been the policy of the American states to define with precision the objects of the legislative power, and to restrain its exercise within marked and settled boundaries. If any act of congress violates the constitution, it is void o Munn v. IL

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Court rejected an attack on state law regulating the rates of grain elevators Police power included regulation of individual use of property that was affected with a public interest and found that grain elevators fit the regulations because grain monopolies could determine pricing. Railroad commission cases  Power to regulate is not a power to destroy Santa Clara Cty. C. Southern Pac. Railroad  Corporations were persons within meaning of 14th amendment Chicago M&St. P. Ry. Co.  Invalidated a state law authorizing administrative ratemaking without providing for judicial review. Mugler v. Kansas  Sustained a law prohibiting intoxicating beverages  Not ever statute enacted ostensibly for the promotion of public morals, the public health, or public safety would be accepted as a legitimate exertion of police powers on a state. Obligated to look at substance of things Allgeyer v. Louisiana  Court invalidated law on substantive due process grounds  Law prohibiting selling insurance on LA property form any marine insurance company which had not complied in all respects with LA law.  Liberty mentioned in the amendment means not only the right of a citizen to be free from physical restraint on his person, but the term is deemed to embrace the right of a citizen to be free in the enjoyment of all his faculties; to be free to use them in all lawful ways; to live and work where he will; to earn a livelihood by any lawful calling, and to enter into contracts where he may prosper Lochner v. NY  Facts: challenge to NY labor law prohibiting bakers from working more than 60 hrs a week.  Holding: Statute unconstitutional  Notes:  Important road not taken…story of how contemporary substantive due rights come to be  Represent another means to limiting state power to regulate economic affairs. Akin to DCC and P+I clause  Conventional wisdom is that Lochner was a terrible decision. What’s wrong with Lochner. Gives rise to new school of thought about judicial review. ―Countermajoritarian difficulty‖ : notion that, when courts make policy, it offends our basic understandings of a democratic approach to government. Legislature is politically accountable to us…majoritarian. Judiciary is countermajoritarin because they aren’t directly accountable or elected. If courts are making substantive policy choices, then they are undermining democracy.  Lochner is a rights doctrine, not a whole lot of standards  Analysis:  General right to make a contract in relation to his business is part of 14th amendment  When state legislature passes an act which seriously limits the right to labor or the right to contract in regard to their means of livelihood between employer and employee, the right of the individual to labor for as much time as he chooses, or right of state to prevent in individual from working over a certain amount of hours  Must be a limit to valid exercise of police power. Otherwise, 14th wouldn’t be effective and legislatures would have unbounded power.

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Under labor law grounds, no reasonable ground for interfering with the liberty of persons or right to freely contract Almost all occupations effect health. Must be more than a mere fact of possible existence of a small amount of unhealthiness to warrant legislative interference with liberty. The act isn’t a health law, but an illegal interference of the rights of individuals ―The purpose of a statute must be determined from the natural and legal effect of the language employed; and whether it is or is not repugnant to the constitution must be determined by the natural effect fo such statutes when put into operation, and not from their proclaimed purpose Dissent: Plain meaning that the statute enacted in order to protect the physical well-being of those who work in bakery establishments. Dissent: Whether the legislation is wise is not for courts to inquire. Court may only decide whether means devised by state are germane to an end which is lawfully accomplished and have relation to public health Dissent: Settle that state laws may regulate life in ways that legislators may think as injudicious and which interfere with liberty to contract

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Court in Lochner did three striking things o As a matter of natural law there are fundamental rights to contract and property that the state must clear a very high hurdle to compromise. o The state’s reason for doing what it’s doing must be a really good reason in the view of the court. (for regulating in a way that violates the way to contract)  Court is making strong value choices  Ends review – the review of legislative ends o What is the relationship between that end and the means that the state has chosen to effectuate it? Lochner represents another means the court comes up with to limit state power to regulate economic affairs (akin to dormant commerce clause) When courts make policy, it offends our basic understandings of a democratic approach to government.

Economic Substantive Due Process Lochner - Fundamental Right to Contract - Judicial review of leg. ends - Strict Scrutiny of leg. means Nebbiq  X  X  X | | V Caroline Products - Text - Political Process - Discrete and insular minorities

Implications of Lochner - Court repudiated Lochner - Following Lechner, courts invalidated other labor laws o Adair v. U.S.  Court held unconstitutional federal law prohibiting interstate railroad employers from requiring employees not to join any labor organization o Coppage v. Kansas

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―Included in right of liberty and private property is right to make contracts. Employees, as a rule, are not financially able to be independent in making contracts for sale of their labor as are employees in making contracts of purchase hereof Court invalidated restraints on business entry o New State Ice v. Liebmann  Court invalidated OK law treating manufacture of ice like a public utility, requiring certificates as pre-reqs to enter business Some challenged laws withstood attack o Muller v. OR  Sustained OR law providing that no female shall be employed in any factory for more than 10 hrs/day o Bunting v. ORG  Upholding a law establishing maximum 10-hr workday for all factory workers o Adkins v. Children’s Hospital  Law prescribing minimum wages for women violated due process

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Implications of Lochner cont. - Nebbia v. NY o Facts: NY legislature established Milk Control Board with power to set min. and max. prices for milk sold in stores. Issue is whether constitution prohibits a state from fixing the selling price of milk o Holding: State can fix milk prices o Analysis:  Fundamental right to contract  Equally fundamental is right to public to regulate it in common interest  Judicial review of leg. ends  Rationale basis test…No rational, cognizable relationship, some causal connection to a legitimate purpose. Court now not second-guessing states regarding due process and governmental purpose. Eliminates judicial review of legislative ends regarding economic substantive due process.  Limit to what due process rights we can enforce…if ny legislature wants to be tough on the milk business, it is their prerogative.  Another milk price statute…Why isn’t this a DCC case? The price is a retail price. Won’t influence interstate commerce.  Under our form of government the use of property and the making of contracts are normally matters of private not public concern. Both shall be free from governmental interference. Neither property nor contract rights are absolute. Equally fundamental is right of public to regulate it in common interest  Guaranty of due process demands that law shall not be unreasonable, arbitrary or capricious, and that the means selected shall have a real and substantial relation to object sought to be obtained  Under proper occasion and by appropriate measures the state may regulate a businesses in any of its aspects, including the prices to be charged for products it sells  Dissent: Unreasonable to expect this legislation to accomplish an increase in prices on the farm. Statute interferes with rights of grocer and takes away liberty of consumers to buy necessity of life in open market Demise of Lochner After New Deal - Moving towards reduced judicial role in scrutinizing means employed in economic regulations o West Coast Hotel v. Parrish  Upheld state minimum wage law for women

Liberty under constitution is necessarily subject to the restraints of due process, and regulation which is reasonable in relation to its subject and is adopted in the interests of the community  Exploitation of a class of workers in an unequal bargaining position and defenseless against denial of living wage is detrimental to their health and burdens their support upon the community  Dissent: Meaning of constitution doesn’t change with economic events and law doesn’t relate to earning power of an employee or circumstances of their employment  Here, court suggests that not regulating would be a subsidy to unconscionable employers who would evade their fair share of welfare costs imposed on the community o United States v. Carolene Products o Carolene Products Footnote 4  Represents court’s effort to escape Nebbia trap.  Distinguishing cases warranting deference from those in which greater judicial scrutiny might be appropriate  Unnecessary to consider whether legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation, is to be subjected to more exacting judicial scrutiny under general prohibitions of the 14th amendment than are most other types of legislation restrictions upon right to vote  Judicial intervention is more appropriate the less political processes may be trusted to even out a winner and loser over time. Judicial intervention reinforces democracy by clearing political channels of change and preventing entrenched advantage or disadvantage in political process.  Takeaways  Justification of judicial review – Seed of incorporation principal. Rights in the bill of rights can be enforced. Textual grounding for rights claim doesn’t present a problem in Lochner  Political process rationale – Representation reinforcing review: if problem with Lochner was that the court was superceding on the policymaking domain of legislature, that problem is only a problem if that legislature is a democratic policymaker…If the political process is corrupt or suffering from imperfections, it is not appropriate to defer to legislature, but actually providing a check on the political process.  Laws affecting the rights of discrete and insular minorities – brown v. board…affirmative action cases…  Nebbia is majoritarian, but majority isn’t always supposed to win and run roughshod over minority groups. Court is reasserting its authority and role in striking a balance  Opens door to new strand of sue process regulation – Non-economic substantive due process o Williamson v. Lee Optical  COURT ILLUSTRATES RATIONAL BASIS TEST  Don’t second-guess ends. State offers bad public health justification, and court says that it was conceivable that they may have intended to improve public health, and that’s good enough.  D.C. held unconstitutional under Due Process Clause state statute forbidding opticians from fitting or duplicating lenses without a prescription. S.Ct. reversed holding  OK law is for legislature, not courts, to balance the advantages and disadvantages of the new requirement

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The law need not be in every aspect logically consistent with the aims to be constitutional. It is enough that the legislative method to cure a particular evil has a rational basis o Hypo: State says you can’t send you kid to a Catholic school, just public schools  After Nebbia…this is not about economic regulations  Health of public education may hinge on everyone participating in it.  Nebbia represents the second coming of slaughterhouse cases – disavowal by courts of any capacity to enforce certain rights. Minimum Rationality Review of Economic Legislation - Conceivable Rational Relationship to any legitimate end o Ferguson v. Skrupa  Sustaining Kansas law prohibiting anyone from engaging in debt adjusting except incident to lawful practice of law.  Court abandoned use of vague contours of due process clause to nullify laws which majority thought was unwise - Punitive Damages and Revival of Substantive Due Process o BMW v. Gore  Invalidated an excessive punitive damages award of $2 million for the concealed paint touch-up of a new car.  Award was grossly excessive, constitutional concern, basic unfairness of depriving citizens of life liberty, or property  Guideposts:  Degree of reprehensibility  Disparity between harm or potential harm suffered and punitive damage award  Difference between this remedy and civil penalties authorized in comparative cases o State Farm Mut. Auto. Insurance Co. v. Campbell  Punitive damages award against insurance co. for $145 million where compensatory damages were $1 million, violated Due Process Clause  A state cannot punish a defendant for conduct that may have been lawful when occurred  Punitive damages awarded to punish and deter conduct that bore no relation to P’s harm. o Phillip Morris v. Williams  Court vacated an award to deceased smoker of $1 million in compensatory and $80 million in punitive damages for falsely leading man to believe smoking is safe  Court failed to instruct jury to not punish Phillip Morris for possible harm to other people than Williams  Constitution’s Due Process Clause forbids a state to use a punitive damages award to punish D for injury that it inflicts upon nonparties who are strangers to the litigation Textual Guarantees of Economic Liberties: The Takings Cause and the Contracts Clause Do these other doctrines bring back Lochner? Constitutional doctrines that limit states power to regulate economic affairs. They fit with DCC and P+I Clause and Fed Pre-emption. All these doctrines are available and constitutional right to limit state power. Takings Clause applies to states through Due Process Clause of 14th Amendment Public use Requirement o Berman v. Parker  Taking of Private Property for purpose of redeveloping urban blighted areas  Sustained scheme against owner of challenging store

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Within power of legislature to determine that communities should be beautiful and wellbalanced o Hawaii Housing Authority v. Midkiff  Upheld HI’s use of eminent domain to solve problem of concentrated land ownership  Where exercise of eminent domain power is rationally related to a conceivable public purpose, court has never held a compensated taking to be proscribed by Public Use Clause  When legislature purpose is legitimate, and means aren’t irrational, empirical debates over wisdom of takings are not to be carried out by courts Takings Clause: Through Lochner - Constraints on state regulatory authority…Eminent domain is a device that government uses to regulate - Lochner: Conflict between state regulation of economic affairs and interference with right to property or contract - Nebbia: Contract and property rights must be understood under government’s power to regulate in public interest - Effort to interpret Takings clause that would substantially limit governmental regulatory authority - Loretto v. Teleprompter Manhattan CATV Corp: o Per se rule for physical occupations. Court held that, when government authorizes permanent physical occupation of an owner’s property, there is a taking without regard to the public interests that government may serve. o Zoning is a regulation. NY cable TV installation law not considering economic impact on owner. o Characteristics that distinguish takings from regulations  If something affects a broad range of people indiscriminately, regulation. (reciprocity of advantage – broad imposition on use fo land generally benefits public)  If a government imposition on someone’s land use affects an individual or discrete limited class of landowners, taking  If government imposition on use of land constrains an injurious use of the property, not a compensable taking (common law nuisance – not use of land whose limitation requires compensation)  If government is constraining a non-injurious use of land, taking o Loretto is targeting a specific discrete group of people, but residential renters in NY are a large amount of people – Not bright line o Cable wire installation non-injurious use on property. However, when government is saying that we’ve got an important thing we need to do and we need to alter the use of property, so if any use of property is impeding a government economic objective, it is injurious o Loretto may fits within distinction – compensable taking appropriate. Strange outcome, though, no real diminution of ability to use property. o Loretto represents characterization technique. o Court looks at a novel problem and fits it into an existing legal paradigm - Lucas v. SC Coastal Council o Per se rule of invalidity for confiscatory regulations, that prohibit all beneficial use of the land o Total deprivation of beneficial use is, from landowner’s POV, the equivalent of physical appropriation o Ruling that landowner could not building on land because of erosion law o Court set forth per se rule of invalidity for confiscatory regulations that prohibit all economically beneficial use of land o Different from Loretto: Not physical occupation of the land. Regulations targeting all beachfront property. Injurious use (use government restricting. Government says that land will erode, owner says harm limited).

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o Scalia says if a use of land is one that someone could abate through common law nuisance action, it is not a use of the land on which landowner had any economic benefit. Anything other than common law nuisance is a use of the land that is entitled to economic benefit. o ―Regulatory action is compensable without case-specific inquiry in the public interest advanced in support of this restraint where regulation denies all economically beneficial or productive use of land o Total deprivation of beneficial use is equivalent of physical appropriation o Where state seeks to sustain regulation that deprives land of all economically beneficial use, it may resist compensation only if the logically antecedent inquiry into the nature of the owner’s estate shows that the proscribed use interests were not part of his title to begin with. o Is this Lochner all over again? Can’t say that the takings clause categorically reanimating Lochner. Takings Clause is different and always accepted as a restraint on government property rights. Loretto/Lucas is beginning to get into Lochner territory. Talking about classic police power regulations and constraining property rights. o Potentially economic yield from property tantamount to bundle of property rights o Landowner, subject to legitimate zoning regulations wants to make improvements on her property, and government allows the improvement only if certain conditions are satisfied. By imposing conditions, the government opens itself up to takings problems Nollan v. CA Coastal Commission - TAKING o Government placing conditions on allowances for people to use their land in a certain way o Government must satisfy proportionality analysis to create conditions on use of property. o Is this Lochner all over again? (When court flexes muscles with regards to rights) o Landowner wants to make home improvements and government allows it with condition of public easement across the beach. o Does condition constitute a compensable taking? Trade-off. Government using authority to make decisions about whether certain uses of property are appropriate. o ―Unless the permit condition serves the same governmental purpose as the development ban, the building restriction s not a valid regulation of the land use o Would have been a taking if state regulation had imposed an easement of access, because it would have amounted to permanent physical occupation o Unless permit condition serves same governmental purpose as the development ban, the building restriction is not a valid regulation of land use but an out-and-out plan or extortion. o What interest is CA asserting for wanting the easement? Public access to beach. What interest does court say government might have by making house larger? Impedes visibility. Government demanding concession for physical access to beach…This doesn’t have a strong enough connection o From minority standpoint of public, access and accessibility are important. Court is striking balance. o Balancing technique: court is doing a means analysis. Does the thing the government is doing that impedes someone’s rights legitimately advance the public interest. Departure from Nebbia. Property rights ARE now paramount. You DO look aggressively at governments ends. NOT be lenient when assessing balances between means and end. Court says different from Nollan because there is factual causal connection between government’s actual interest and what property owner is trying to do. Beyond mere causal connection, there must be ―rough proportionality, a balance between extent of improvements landowner is trying to make and bite government is trying to take out of owner’s property rights. o Is this Nebbia all over again?  Is extent to which court is looking the means-ends connection sufficient out of whack with Nebbia? Is the court elevating property interests to a paramount position?  Argument: Nollan and Dolan may reanimate Lochner

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Distinction: Textual hook (if you call it a taking, but how do you get there?). Substantive due process could be problematic. Due process is vague language to hang anything. 14th amendment intend to protect some substantive rights, but which rights are unclear, particularly when P+I gone. Limits what court is doing here. Nollan and Dolan apply in narrow extents. Also, government has an opportunity to demonstrate that what its doing shouldn’t come under a legal burden. Showing that Nollan and Dolan require is less than the strict scrutiny of Lochner. Another thing going on is that government isn’t being told ―you can’t do that‖. Takings clause just tells government that they have to pay for what they do.  Diff between sub due process and takings – you can’t do that you can do that, but you have to pay for it. Dolan v. City of Tigard - TAKING o Dolan sought permit to increase size of store, and city condition approval upon giving some land to public use o ―essential nexus‖ – degree of exactions demanded by city’s permit conditions bear the required relationship to the projected impact of petitioner’s proposed development o 5th Amendment ―rough proportionality‖ – City must make individualized determination that dedication related in both nature and extent to the impact of the proposed development Kelo v. City of New London o New London approved development plan to revitalize distressed city. City a ―distressed municipality. They condemned a ton of land, and condemned some houses that weren’t distressed. o Issue: Whether what the government is doing satisfies whether taking of land is for public use. o Analysis:  What is a legitimate reason for the government to use the authority it has to eminent domain. Public purposes, public/private benefits. Nature fo government regulation.  Sovereign may not take property from A for the sole purpose of transferring it to private party B. State may transfer property from a private party to another if future “use by the public” is the purpose of the taking.  Court long ago rejected literal requirement that condemned property be put to use for general public.  Argument for homeowners that the government action isn’t properly a taking within meaning of takings clause: Public benefit question. Government may not take land for something other than public use.  Berman v. Parker: area must be planned as a whole for plant o be successful.  Determination that area distressed to justify economic rejuvenation entitled to deference. Same justification for Camden case.  Government’s pursuit of public purpose will often benefit individual parties  When court holds actions against strong rights challenges, city must have really good reason, ongoing economic blight. People don’t have jobs. Strong argument.  Kelo unpopular decision – energized property rights advocates. Theoretical limit as to what regulates public use – if a government taking don’t in a procedurally irregular way, and if there were corruption indications, space to consider egregious cases.  States can pass laws that prohibit similar New London actions.  Concur: A court confronted with a plausible accusation of impermissible favoritism to private parties should treat the objection as a serious one and review the record to see if it has merit, though with the presumption that the government’s actions are reasonable and intended to serve a public purpose  Dissent: economic development takings not constitutional  Dissent: A purely private taking could not withstand scrutiny of the public use requirement; it would serve no legitimate purpose of government

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Dissent: If predicted positive side effects are enough to rend transfer from one private party to another constitutional, the words ―for public use‖ do not realistically exclude any takings, thus do not constrain eminent domain power.  Dissent: Beneficiaries are the rich, losses fall on poor Implications of Kelo o Holdout problem –a single landowner anywhere along a proposed track could block and entire railroading project by attempting to extract a large payment from the builder. Eminent domain transfer to railroad solves the problem without forcing railroad to pay large price. o When subjective values are high, and holdout problem is non-existent, requisite public use isn’t present o Poletown Neighborhood Council v. Detroit  Approved taking of homes and small businesses in a working-class, immigrant community in Detroit to give to GM  To justify exercise of eminent domain solely on basis of the fact that use of the property by a private entity seeking its own profit might contribute to the economy’s health but kills government limitations on eminent domain. Economic benefit could justify any taking of an entity for private use

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Regulatory Takings - Government regulates a property’s use and diminishes its value - Just compensation must be given to not violate Takings Clause - PA Coal v. Mahon o Bill to prevent PA Coal Company from mining under P’s property to cause problems with foundations. PA Coal had mineral rights under houses. o Test for determining limits on Takings: Extent of the diminution, cannot be an act of police power o If people sell mineral rights and take the risk of the coal hurting their land, they risk the outcome - Miller v. Shoene o Court upheld against takings challenge a VA law providing for destruction as private nuisance all cedar trees endangering the health of the apple trees o State doesn’t exceed constitutional powers by deciding upon destruction of one class of property in order to save another which, in judgment of the legislature, is of greater value to the public - Keystone Bituminous Coal v. Debenedictis o PA law prohibiting coal mining that caused damage to buildings - Penn Central balancing test o NYC preservation law designating grand central terminal a historical monument and noted permissible regulation, not compensable taking. o A city may place restrictions of developments of landmarks without effecting a taking o Factors:  Economic impact of regulation on claimant  Extent to which government has interfered with investment-backed expectations  Character of governmental action - First English Evangelical Lutheran Church v. LA County o Held that the mere invalidation of regulation restricting the use of property was constitutionally insufficient remedy when government regulation proves sufficiently burdensome to constitute a taking o State could abandon regulations but it had to pay damages for temporary taking - Palazzolo v. RI o Held that a property owner could challenge regulatory taking restrictions on his property that had originally been imposed prior to his acquisition of that property - Tahoe-Sierra Preservation Council .v Tahoe

o Temporary development ban would have to be evaluated on a case-by-case basis under Penn Central Test rather than being treated as per se taking under Lucas Contracts Clause – Article 1, §10 - Prohibits any state law impairing the obligation of contracts - Sturges v. Crowninshield o Unconstitutional a NY insolvency law discharging debtors of their obligations upon surrender of their property - Ogden v. Saunders o Insolvency laws could be validly applied under contracts made after law was enacted - Like DCC and pre-emption, constraint on states - Imposes constraint on states - Used as a way of nullifying incipient state regulations of newly burgeoning state economy. - Home Building & Loan Assn v. Blaisdell o Challenge to MN mortgage mortatorium law which authorized relief form mortgage foreclosures. o Conditions upon which period of redemption is extended isn’t unreasonable o Rejects challenge – Not prohibitive  Interference of contractual rights was temporary and conditional, economic regulation, moratorium law not designed to help or hurt particular parties (passed in response to particular crisis)  Limits: Permanent abrogation of right…State may not do this. Limited scope. Reason that it is ok for states to go this far in constraining contractual relationships.  Dissent: In times of economic crisis, government will want to interfere with contract. Fact that interference was temporary and condition doesn’t matter, still interference.  Contracts only exist within the larger context of sovereign power. Mechanics: contracts are only as good as state power. Contracts require state power in order to ensure enforceability. Can’t read contracts clause with a bent to limit state’s right to regulate public interest. Must acknowledge authority of state to regulate in public interest. o Allied Structural Steel v. Spannaus  Invalidated application of MN pensions act, requiring employers who established a pension plan and who terminated the plan to pay a pension funding charge. Imposing a new obligation to employer’s…violating contract’s clause  Significant retroactive burden against contracts o U.S. Trust v. NJ  A law impairing the state’s own obligations was subject to greater scrutiny than legislation interfering with private contracts  Complete deference to legislative assessment of reasonableness and necessity not appropriate because state’s interest is at stake  court strikes down state regulation because court was messing with state contracts and using state law as a way of limiting state contractual liabilities or obligations. State using government authority to stack the deck in their favor. o Allied Tie up digression – Set of constitutional doctrines that limit state regulatory authority over economic matters - DCC o State may not regulate where feds have exclusive ability to regulate o Tests  If state law discriminates against interstate commerce, state is per se intruding on exclusive regulatory authority  Facial discrimination

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 Direct bans  Discriminatory taxes  Discriminatory rebates  Discriminatory home processing requirements  Discriminatory purpose or effect (Milk cases)  If a state law is protectionist, that is likely to be found discriminatory of DCC even if not discrim. On face, discrim. on effect shows per se invalidation  However, if state is trying to preserve resources for general use by citizens, allowed (generality of benefit less suspicious)  Undue burden  Pike – Where an evenhanded regulation has an incidental effect o state commerce unless burden on interstate commerce has excessive effect  Very little balancing – big burden on interstate commerce or tremendous benefit o Market participant exception  If state engaging in market transactions, state can’t be called to account on DCC  If state doing something that requires government power or now o Localities can violate DCC (Dean Milk) o Under contemporary understandings is waivable by congress P+I Clause of Art. 4 §2 o No state may deny citizen fundamental right of state citizenship o Trigger when state confers benefit on own citizens and tries to deny same right to an outsider o Challenger must demonstrate that state is depriving her of some fundamental right, a right that is essential to unitary character of nation. If an interest of significant importance is violated by state, state can prevail by showing deprivation of P+I is base don substantial reason, and whether people being burdened are a source of the evil that state is trying to prohibit. o Distinctions between P+I and Commerce clause – P+I applies only to individuals. More about governmental structure, rights granting provision, limited to protection of fundamental interests, doesn’t have market participant section. Federal Pre-emption o Where state and feds are regulating, supremacy clause says fed regulation prevails o Sometimes fed law says regulate X and states can’t regulate here o Litigation where there is conflict between state and fed law…Court msut decide by legislative intent o Type:  Field pre-emption (complete)  Broader, if congress has pre=empted regulation in entire field, states knocked out of regulatory equation.  Inferred where o Pervasive scheme of federal regulation o Where fed interest is so dominant where fed interest reins o Where object of fed law implies pre-emption, infer pre-emption (wiggle room)  Conflict pre-emption (partial)  Inferred where: o Where regulated entity cannot physically comply with state and fed laws (state regulation invalid to extent of conflict) o Where state law, to some degree, impedes full accomplishment of fed interest or congressional purpose o Doctrine, under current law, congress may waive. Express pre-emption, express permission Economic substantive due process o Lochner: strong…Strict scrutiny analysis to means and ends

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o Nebbia: Knocks out strong elements of Lochner. No judicial second-guessing. Shifts from strict scrutiny to rational basis review. o Not 100% dead because of punitive damages – one area where due process principles may constrain state economic regulations. o Unlike pre-emption, DCC, P+I, this constrains feds as well as states Takings Clause Contracts Clause

STATE WAS TRYING TO REGULATE INTERSTATE ECONOMIC MATTERS CHECKLIST ABOVE Substantive Due Process and Privacy - Meyer v. Nebraska o Read liberty broadly to reverse conviction of teacher for teaching German in violation of state law prohibition o Liberty denotes not merely freedom form bodily restraint but right of an individual to contract or engage in common occupations of life - Pierce v. Society of Sisters o Sustained challenge by private schools of a law mandating all children to attend public school o Liberty of parents to bring up their children how they see fit - Skinner v. OK o Invalidated OK act sterilizing criminals after 3 sexual felonies o Dealing with civil rights basic to survival of man o Strict scrutiny essential - Griswold v. CT o Facts: CT provision fining couples for using contraceptives. o Holding: Reversed CT law o Analysis:  Douglas Majority:  Bad law because it is a severe encroachment on rights of privacy at least of married people.  Substantive due process…how do you get from bad law to unconstitutional law. Clearly no specific textual hook.  Protecting unenumerated substantive rights under substantive due process  Law operates directly on intimate relations of husband and wife  Prohibiting contraceptives has maximum negative impact possible  Governmental purpose to control or prevent activities subject to state regulation may not be achieved through means that sweep broadly and invade protective freedoms  Downplays Lochner  3rd amendment Quartering soldiers in your home – specific concern to colonists at framing…no universal appeal. 3rd Amendment has to do with privacy and what you can do in your home. Not an enumerated right that covers what CT is doing here. o Penumbras and emanations from bill of rights. A bunch of enumerated rights that bear indirectly on what is happening here. 3rd amendment about privacy in home. Implies that, when you’re within your home, you should be able to do what you want to do, searches and seizures, integrity of consciousness. o 9th amendment – the fact of enumeration of right in the other amendments should foreclose rights not enumerated. Not the only rights that people have.

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Can the court protect unenumerated substantive rights under due process clause without making the mistake the court made in Lochner?  Is Griswold reconcilable with Nebbia…the repudiation of Lochner  Goldberg concur:  9th amendment proffered to quiet fears that bill of rights couldn’t be so broad as to cover all essential rights  Right of privacy in martial relation is fundamental and basic – a personal right retained by people within 9th amendment presented by 14th  Ultimate reconciliation of incorporation debate. Indirect textual hook to the bill of rights. Both the enumerated rights as important to understand what is going on, but 14th amendment does have independent force. The textual hook for 14th is 9th amendment. It avoids the trap of an unduly narrow conception of rights.  Harlan doesn’t sign on to Goldberg’s concurrence. However, they are doing the same thing in that they are both trying to explain how you can give independent force to ―due process.‖  You can discern and constrain fundamental rights o Collective conscience. Supplements intent of framers when constitution is ambiguous. o Tradition approach and collective conscience approach subject to manipulation. Efforts to grapple with Lochner problem. Need to root independent due process in something other than o How do you give independent effect to due process without making it up?  Harlan concur:  Traditions of liberty – should be giving independent effect to the words due process. An invitation to judicial invention of rights. Harlan is on record against invention of judicial rights. Needs a concept that provides an anchor, tradition of married people. Essential accepted feature of marriage.  Infringes due process of 14th amendment violating concept of ordered liberty  Balance liberty of individual and demands of organized society  Secular state not an examiner of consciences: must operate in realm of behavior and choice of means  3rd and 4th amendments embraces privacy of the home  Approach to substantive due process…we understand that some things are essential  White concur:  Fail to see how prohibition of contraception by married couples reinforces state ban on illicit relationships  Black dissent:  Privacy is a broad, abstract concept which can be interpreted as a constitutional ban against other things than searches and seizures  Government has right to invade privacy unless prohibited by constitutional provision  Overenumerated rights. Fallen into trap of incorporation. If you are rigid about incorporation, no space for unenumerated rights.  Maybe black are right…other justices falling into Lochner trap.  Stewart dissent  No general right of privacy in bill of rights or constitution Scope of Privacy After Griswold o Eisenstadt v. Baird  Court overturned a conviction under law banning distribution of contraceptives

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 Violation of equal protection under minimum rationality standards Carey v. Population Services Intl. o Struck down NY law on prohibition of sale or distribution of contraceptives to minors under 16 o Strict scrutiny required for access to contraceptives because access is essential to constitutionally protected right of childbearing decisions

Incorporation Debates: - Winner - Black - incorporation principle – We want to give substantive effect to the 14th Amendment. Would constrain judicial authority. 14th amendment due process clause protects states - Harlem – Non-incorporation principle. Due Process Clause should be read independently. Made same claims as black made: nonincorporation approach will protect important rights. Gives judges a vehicle for protecting rights. Allows for expansion of 14th amendment substantive rights. This approach constrains judicial decision-making…we have a strong understanding of tradition of rights and laws in our system ―ordered liberty‖. If we use that tradition as a guiding light, we can constrain judicial decision-making to allow this non-incorporation approach to work. - Incorporation obviates the real question of substantive due process. Roe v. Wade - Emboldens non-economic substantive due process - Scope o Enormous turnover of personnel. 5 justice gone and replace o Turn to more jurisprudentially conservative court o 1972 Eisenstadt – changes the Griswold focus. Brennan says that, when we’re talking about privacy rights concerning individual autonomy. Court creates a basis for going beyond narrower Griswold holding  Privacy right doesn’t have to necessarily be about the tradition of marriage, rather there is a more free-standing principle of autonomy that may provide a basis for new substantive rights - Implicit in the concept of ordered liberty from Palco. Since court has grown more conservative, they are more skeptical of claims of new rights. Makes sense that majority in Roe would place Harlan’s unarticulated rights basis above the others. Protects important liberty interests and prevent judicial overreaching. - What is the limiting principle? - Nonoriginalist principles o Tradition (Harlan, Griswold) and natural right  Is this a free-standing autonomy right? Court talks about family and autonomy, but in the context of family relationships. About certain class and tradition of intimate personal decisions.  Objection: Many states have criminal prohibitions on abortion. Changes the law in many states. Odd to talk about tradition in this context when there is a long-standing tradition of prohibition of abortion.  Clashing conceptions of constitutional values.  Court isn’t just a pretext. Tradition is not a magic bullet that solves every subjectivity problem. o Societal Consensus  Is there a strong societal understanding that states should be able to prohibit X?  Emphasis of health of pregnant women.  Strong strand of public opinion that says that we should be concerned with the fetus as life, having nothing to do with medicine. o Political process

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Representation reinforcing review. Can just more aggressive judicial assertions of rights doctrines based upon defects in the political process. Women constitute a majority of the population. Is there an argument for defending Roe holding on this basis.  There are states with a legal abortion if you have means to get one. If you don’t have means, and you are reliant on locality medical care, there may be a problem.  Ely, Unborn fetuses are discrete and insular minorities  Women have been historically discriminated against and there are more males in politics. Women do not get their full share of the political pie. o Balancing of Interests  Standard of review on state restrictions on abortion: compelling state interest  Court is employing a strong standard of review for state restrictions on abortion. Strict scrutiny at least in 1st trimester.  Court recognizes interest in potential life of child and health and safety of pregnant women.  Notion of viability If you take seriously fetus and women’s rights, there is no path of least resistance. o Can conclude that there is no bodily integrity o If there is a 14th amendment privacy interest, then you have to answer when does life begin? Court has recognized right of personal privacy, or guarantee of certain zones of privacy, does exist under constitution 14th amendment concept of personal liberty or 9th amendment is broad enough to encompass a woman’s decision to terminate her pregnancy Maternity, or additional offspring, may force upon the woman a distressful life and future At some point, interests to protect potential life become sufficiently compelling to sustain abortion regulation Person has only been used post-natally 19th century prevailing legal abortion practices Steps: o Prior to end of first trimester, abortion decision left to doctor o After 1st trimester, state can regulation reasonably related to maternal health o Subsequent to vitality, state may regulate abortion except where necessary, in appropriate medical judgment, for the health of the mother. Concur: Liberty protected by due process covers more than freedoms expressly named in Bill of rights. In Eisenstadt, we recognized right of the individual to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as a decision whether to bear or beget a child. Dissent: liberty is not guaranteed absolutely against deprivation, but only against deprivation without due process of law. Court’s sweeping invalidation of any restrictions on abortion during 1st trimester impossible to justify

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NOTES: - Blackmun explains state interest o Protecting women’s health o Protecting potentiality of human life - Doe v. Bolton o Court invalidated portions of a GA law requiring that abortions be performed in a n accredited hospital, requiring additional approval by doctors - Akron v. Akron Center for Reproductive Health o Court invalidated a requirement that abortions performed after 1st trimester be performed in hospitals rather thanoutpatient facilities - Planned parenthood of Central Missouri v. Danforth o Court struck down state requirement of a husband’s consent for abortion during 1st 12 weeks of pregnancy

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o State cannot delegate authority to prevent abortion during first trimester Bellotti v. Baird o State could involve a parent in a minor’s abortion decision only if it provided an alternative judicial bypass procedure so parental involvement isn’t an absolute veto H.L. v. Matheson o Sustaining state law requiring physicians in most cases to notify parents of an abortion on a minor. Hodgson v. MN o Struck down a requirement that both parents of any minor be notified 2 days before abortion was performed on a minor, provided bypass procedure available Akron II o Upheld one-parent notification requirement accompanying a judicial bypass procedure Right-Privilege distinction o A right doesn’t constitute a privilege o Constitutional rights are negative rights, protections against government interferences but aren’t affirmative obligations to which you can hold the state o In abortions funding, problematic distinction. State funds a lot of medical procedures o However, isn’t removing state funding Maher v. Roe o Upheld state regulation granting Medicare benefits for childbirth but not medically unnecessary abortions Harris v. McRae o Rejected constitutional challenges to federal funding limitations in Hyde Amendment, which barred payments even for the most medically necessary abortions Rust v. Sullivan o Court extended reasoning of Maher and McRae to a restriction on abortion counseling by project receiving fed family planning funds Webster v. Reproductive Health Services o Court upheld provisions of state law barring state employees form providing abortions and the use of public facilities for abortions, even when paid for abortion itself o No affirmative right to governmental aid

Due Process: Abortion Cases Roe: Strict Scrutiny/trimester framework Casey: Undue burden standard - theory: comparison to Roe/stare decisis? - application Carhart: weakening of ―undue burden‖ standard?/stare decisis? Planned Parenthood of SoE. PA v. Casey o Court gradually becomes more conservative in its makeup and more amenable to restrictions on abortion, and by the time this case comes down, the question is whether court is disposed to overrule Roe v. Wade. o Strong legal theory that Roe could be overruled: Back to Lochner concern. Court didn’t take too much heat for Griswold because there wasn’t a major societal pushback. Court had made a bet on the norms and morays and preferences of society at the time, and the court decision was consistent with people’s general conceptions about what people should be doing. However, abortion remained a decisive political issue. o Huge expectation that court may overrule Roe v. Wade. o Stare decisis – Adherence to precedent always a big issue, and Casey court affirmed central elements of Roe. Court pushes back against the political uprising. Another consideration when

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looking at jurisprudence. Roe is a decision of the court that has not proved unworkable in practice. Counterweight to substantive due process rights. Nature of lead opinion: Joint from Kennedy, O’Connor, and Souter. Significant because these three justices were appointees from republican presidents that are getting together and speaking with one voice. Souter may have written the stare decisis opinion. If the decision can be applied in practice, then we shouldn’t just overrule precedent. Undue burden standard – Becomes the test. Law survives constitutional review unless it provides an undue burden. Court shifts from strict scrutiny to undue burden because undue burden standard is more flexible and changes with medical knowledge. Motivation for change was that the court is very definite in acknowledging the state’s interest in protecting potential life, but the nature of the law in the wake of Roe has swung too far away from the state’s interest. Strict scrutiny gives the state too little latitude.  This standard is new and not that emphatic in what it requires. More of a straight-up balancing test? What does undue mean? What is an acceptable and non-acceptable burden? Creates concern that courts will have more leeway in analyzing restrictions on abortion than that given in Roe. Court wants states to have more leeway to regulate. How has Casey court applied undue burden standard? Pay attention to:  Black letter law  Informed consent requirement. Information the state wants to provide cuts in a particular direction. State is allowed to provide information it wants to provide. 24-hour waiting period. Court is consistent in dedication of preserving rights in Roe. Can think of the funding cases as saying that, there is this right with an irreducible minimum, but short of that, state can do some things like the 24-hour waiting period. Court seems to look at the population of all women who might be getting abortions in terms of determining whether there is an undue burden. But as to the spousal consent requirement, court placing large considerations on a subset of women. Courts trying legal judgment.  Mode of analysis: Whether undue burden test works in the way we want the test to work. Essential holding of Roe should be retained and reaffirmed  Due process clause – realm of personal liberty which the government may not enter  Protection afforded to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education When court re-examines a prior holding, gauge respective costs of reaffirming and overruling prior cases. Must look at special hardships, defying practical workability, and whether facts have materially changed.  Roe has not been proved unworkable  Reliance on Roe cannot be measured but neither can cost of overruling roe for people who have ordered their lives around the dismissed case.  No evolutionary principle has left Roe’s factual or doctrinal underpinnings weaker than when it was decided  In Lochner and Plessy lines, society’s understandings of facts upon constitutional ruling was fundamentally different from basis claimed in original decisions Overruling Doe’s holding would injure stare decisis and weaken court’s capacity to exercise judicial power and function as Supreme Court  To overrule under fire in absence of most compelling reason to reexamine a watershed decision would subvert Court’s legitimacy Undue burden standard is appropriate means of reconciling state’s interest with the woman’s constitutionally protected liberty Reject rigid trimester Roe framework. To promote state’s profound interest in potential life, throughout pregnancy the state may take measures to ensure that the women’s choice is

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informed, and measured to advance this interest won’t be invalidated unless their purpose is to persuade the woman to choose childbirth.  Unnecessary health regulations providing obstacle to women seeking abortions impose undue burden on that right PA statute required physician informing woman of abortion risks 24 hours before procedure  Those with less financial resources will have problems with 24-hour period, but NOT UNDUE BURDEN PA statute provides, except for medical emergencies, spousal notification required unless husband can’t be located or there is a risk of bodily harm from informing the father. Spousal notice requirement provides construction veto for abusive fathers. UNDUE BURDEN PA statute says that, unless in medical emergency, guardian consent needed for child under 18 to have an abortion unless by court approval. NO UNDUE BURDEN because of procedural judicial bypass PA statue says that every abortion must be recorded. Woman’s information remains confidential. NO UNDUE BURDEN Stevens concurrence  Stare decisis controlling  Questions arise when state persuades woman to choose childbirth Blackmun concurrence and dissent  State’s restrictions on women’s right to terminate pregnancy implicates constitutional guarantees of gender equality  Strict scrutiny invalidates all PA statute provisions Rehnquist dissent  Roe wrongly decided and should be overruled  Abortion involves purposeful termination of potential life. Woman is not isolated in her pregnancy  Roe = strict scrutiny…This decision rejects that view  When constitutional interpretation unsound, must re-examined the question

Meaning and Implications of Casey - Authors in Casey may have given continuity and stability undue prominence relative to their conviction of the rightness of the Roe decision, almost as if the decision couldn’t stand on its own - Ayotte v. Planned Parenthood of No. New England o Remanded consideration of a more modest remedy for state abortion law that would have been unconstitutional in medical emergencies because it lacked an exception for mother’s health - Steinberg v. Carhart o Court upholds ban on partial birth abortion. State justifies it by saying that it is objectionable on moral basis. Does that law pose an undue burden? Is there a medical necessity exception? o No medical necessity exception o Applying Casey, struck down NE law prohibiting late-term D&X abortions without exceptions to preserve a mother’s health (significant health risk) o Stevens concurred  Impossible to understand how a state has a legitimate interest in requiring a doctor to follow any other procedure than what they reasonably believe is best for protecting woman in her exercise of constitutional liberty o Kennedy dissent  State should have more weight in prohibiting partial-birth abortions. States may take sides on the abortion debate o Thomas Dissent  Health exceptions requirement kills Casey’s undue burden standard and imposes abortion-on-demand - Gonzales v. Carhart

o Medical necessity exception available. No definitive answer concerning health exception. o First instance after Casey where court passes on a substantive question of abortion rights. Court actually allows a state to ban a particular procedure notwithstanding the undue burden standard. o Question of whether Roe is on the table again. o Concerning D&E procedures in second trimester and beyond. o Moral, medical, and ethical consensus exists that partial-birth abortion is gruesome and inhumane and is never medically necessary o Act describes method by which fetus is killed moments before birth o Where there is a rational basis to act, and it does not impose an undue burden, the state may use its regulatory power to bar certain procedures and substitute others, all in furtherance of its legitimate interests in regulating the medical profession in order to promote respect for life, including life of the unborn o Some women regret their choice to abort and become depressed o Partial birth abortion is differentiated from standard D&E because fetus is partially outside mother o Disagreement on which procedure has higher risks to women o Ginsburg dissenting  Court blesses prohibition without regard to women’s health  Fetal anomalies and health problems are causes of second-trimester abortions as well  Law only targets a method of performing abortion  Deprives a women of making an autonomous choice, even at the expense of their safety Substantive Due Process and Marriage and Family Relationships Noneconomic substantive due process still exists, but it doesn’t look like an area that’ll be expanded. Then Lawrence overrules Bowers. New wind in the sails of substantive due process. How significant is it? Is the court giving us a new doctrine? Marriage o State regulates marriage and divorce extensively by setting rules for entry and dissolution o Loving v. VA  Struck down VA’s ban on interracial marriage, relying on equal protection. Statute deprived Lovings of liberty without due process of law  Marriage is one of the basic civil rights of man, fundamental to its very existence and survival. To deny this fundamental freedom on so unsupportable basis as racial classification deprives citizens of liberty w/o due process o Zablocki v. Redhail  Court vindicated right to marry and invalidated a state law preventing anyone who lost custody of a child and was paying for support from marrying  Critical examination of state interests required.  Griswold line: right to marry part of fundamental right of privacy implicit in Due Process Clause  Where a law interfered directly and substantially with right to marry, it cannot be upheld unless supported by sufficiently important state interests and is closely tailored to effectuate only those interests o Turner v. Safley  Struck down prison regulation restricting inmates’ right to marry by conditioning it on prison superintendent’s approval for compelling reasons such as birth of a child  Right to marry violated even under reasonable relationship test Extended family relationships o Moore v. East Cleveland

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Invalidated a zoning ordinance limiting occupancy of dwellings to single families Scrutiny stricter than deferential rationality review appropriate Appropriate limits on substantive due process come not from arbitrary lines but from careful respect for the teachings of history and solid recognition of the basic value that underlie society. Institution of family is deeply rooted in nation’s history o Belle Terre v. Boraas  Found no privacy rights involved in a family-oriented zoning restriction excluding unrelated groups from a village. ―economic and social legislation‖ o Troxel v. Granville  A state court granting grandparents visiting rights to children over objections of parent violated mother’s substantive due process rights  Right of parents to make decisions concerning children  Dissent  Due process clause leaves room for states to consider impact of parental decisions on child that may not serve best interests of child Family Relationships and Role of Children o Michael H. v. Gerald D.  Application of CA law establishing presumption that a child born to the wife is legitimately a child of the marriage (Biological child fight)  Due process required not merely that the liberty interest be fundamental, but also that it be an interest traditionally protected by society.  We refer to the specific level at which a relevant tradition protecting or denying the asserted right can be IDed  Dissent: Construing 14th Amendment to protect only historical practice interests ignores our society

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Substantive Due Process and Sexuality - Bowers v. Hardwick o Challenge to state law making sodomy a felony with jail time. Court upheld the statute as applied to homosexual sodomy o Right not fundamental within meaning of court’s precedents under Due Process Clause o Proscriptions against that conduct has ancient roots o Dissent: Court here refuses to recognize fundamental interests in controlling the nature of their intimate association with others - Lawrence v. Texas o Overrules Bowers – Invalidated TX law making it a crime for homosexuals to engage in sexual conduct o Liberty presumes an autonomy of self that includes certain intimate conduct o Griswold: right to privacy protected interest and placed emphasis on marriage relation and protected space of bedroom o Case about sex. Have a due process right to have sex with whomever you want. Kennedy tries to rise above the fray. This is about adults in intensely personal aspects of their decision-making and their ability to make those decisions privately. o In Lawrence, we aren’t getting a precise rights roadmap, but making a broad and encompassing point. Opens door to claims about sexuality, family, o Bowers decision touches most private places of the home o No longstanding history of law directed at homosexuals in this manner, and sodomy laws have no been enforced in private o Liberty gives substantial protection to adults in deciding how to conduct their private lives pertaining to sex o Casey: our laws and traditions afford protection to personal decisions involving most intimate and personal choices

o Romer v. Evans  Court struck down class-based legislation directed at homosexuals as violation of equal protection clause o Stare decisis is not an inexorable command o O’Connor Concurrence  Base argument on Equal Protection Clause  When law harms a politically unpopular group, apply a more searching form of rational basis review to strike down these laws  TX statute makes homosexuals unequal in eyes of public o Dissent:  Constitution allows states to deprive their citizens of liberty so long as due process of law is provided  Sodomy not deeply rooted in nation’s history and tradition  Court has taken side in the culture war as opposed to being a neutral observer  Tradition of respecting the marital bond. Must look at specific tradition, otherwise we’d be unmoored.  Brennan dissent: Should be willing to look at tradition more broadly. If you heed too closely to a specific tradition when elaborating rights of the people, you end up not upholding the rights and liberties of the people.  Tradition isn’t just one linear thing in a discussion. Scalia says use inner concentric ring, Brennan says use an outer ring. o Basis for/nature of fundamental right  Judicial review is now a value question. Are we ahead of the times of behind the times. Court making historical gambles in determining whether they’re in the right place. Decisions about what liberty means and fundamental rights should include. o How to use tradition in substantive due process  Departing from Bowers notion of tradition because there was no reliance by the people on these historical cases  Tradition trump argument: Talk about tradition? What about tradition of liberty? This isn’t a new idea. o May state regulate based on moral concerns? o Standard of review?  Normal template – fundamental right, strict scrutiny.  Scalia: Here, rational basis review. Court doesn’t use any terms of strict scrutiny to explain what it’s doing. Rhetoric concerning intolerable actions. All we need to conclude tht government has no legitimate reason for what its doing.  Court isn’t telling us that strict scrutiny doesn’t apply, just saying that it can apply o Stare decisis? (Bowers) o Why not equal protection? o Gay Marriage o Regulation of morality  Scalia: Marks the end of all morals legislation  Majority says that you can ban adults from doing things just because society doesn’t like it. Inadequate basis of regulation  Harm Principle: Must be an extrinsic harm that comes from conduct to be able to ban it  Kennedy says that there is no extrinsic harm from people having homosexual sex, no third party harm. Scalia says that majority should be able to regulate conduct based on morality? Substantive Due Process and Rights Over Death - Cruzan v. MI Dept. of Health o Discontinuation of life sustaining procedures are not constitutionally required

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o Child left in vegetative state…had neither living will nor designated anyone to make decisions for her…Clear and convincing evidence of her wishes lacking.  Court doesn’t tell us whether MI could bring a blanket ban o No serious hope for recovery. They contend that she would have wanted to be removed from the life-sustaining treatment o A competent person has a constitutionally protected liberty interest in refusing unwanted medical treatment o Balance liberty and state interests  State interest: An erroneous decision to withdraw life-sustaining treatment is not susceptible to correction. Also, state concerned about preserving life. o Incompetent person not able to make an informed and voluntary choice to exercise a hypothetical right to refuse treatment o Choice between life and death deeply rooted personal decision of obvious and overwhelming finality o State may decline to make judgments about quality of life a particular individual may enjoy and assert a qualified interest in preservation of human life weighed against protected individual interests o State may apply clear and convincing standard where guardian seeks to discontinue nutrition and hydration of a vegetative person o Brennan Dissent: State has no legitimate interest in someone’s life, completely abstracted from interest in person living that life, then that could outweigh a person’s choice to avoid medical treatment. o Scalia: Removal of life-sustaining treatment is tantamount to suicide. Preserving regulatory authority. Using traditions of law concerning any conception of substantive due process doctrine. o It the state’s abstract In preserving life isn’t as important as the individual interest, then you have to strike an evidentiary standard. Clear and convincing evidence goes too far. Trying to calibrate a balance. If state was trying to assure itself that it was getting it right, you wouldn’t go so far as clear and convincing standard. We should also be concerned about keeping her alive when she wants to die. o This is a rights case that is also a federalism case. Both values often come into conflict. Washington v. Glucksberg o State law: Person guilty of assisting suicide when he knowingly causes another person to attempt suicide. Withholding life-saving treatment at patient’s decision will not constitute suicide o Issue is physically, you can survive without life-sustaining treatment, but you are in paralysis or pain where you don’t want to go on living. (Distinct from Cruzan) Affirmative action to end life. o Begin with history, legal traditions, and practices.  Longstanding history of states’ commitment to protection and preservation of all human life (no assisted suicide)  American colonies abolished criminal forfeiture sanction. Unfair to punish suicide’s family for his wrongdoing o Due process clause protects fundamental rights and liberties which are deeply rooted in nation’s history and tradition and implicit in concept of ordered liberty. o Decision to commit suicide with assistance may be as personal and profound as decision to refuse medical treatment, but not same legal protection o State interests  Preservation of human life  Integrity and ethics of medical profession  Interest in protecting vulnerable groups from abuse or neglect  Path to euthanasia o Characterization of the right makes a difference. Basis for caveat and uncertainty of the case

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HYPO: Doc could show that patients were in unbelievable agonizing pain, but still mentally competent. Would make a difference, some due process right in extreme circumstances. Fuzzy. Depends on how other cases would go. Right to assisted suicide may trump state interests. Pragmatic disagreement about how bad is too bad? Concurrence: Basic concept of freedom older than common law, interest in dignity Concurrence: court is bound to confine the value that it recognizes to those truly deserving constitutional stature. Respondent emphasizes decriminalization of suicide, giving freedom of choice with body autonomy, and giving them right to medical care and counsel Concurrence: avoidance of severe medical pain would comprise any successful claim because law doesn’t force a dying person to undergo this kind of pain Idea that there is underneath the disputes some kind of fundamental right.

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Meaning and Implications of Glucksberg - Rehnquist narrow positivist approach. Need to ground fundamental liberty interest or right in tradition narrowly defined. - Souter broad view of privacy as freedom from arbitrary restraint - Right to Die and Equal Protection o Vacco v. Quill  NY didn’t violate equal protection clause by prohibiting assisted suicide while permitting patients to refuse lifesaving medical treatment  Distinction between assisting suicide and withdrawing life-saving treatment causation and intent. Painkilling drugs may hasten patient’s death, but purpose is to ease pain. Assisting a suicide purpose is death.  Lettign the patient die and making the patient die Defining Property and Liberty - Cases about what sort of procedural steps the government must take - Analysis of what belongs to you to begin with - Hybrid: Are procedural due process cases but it also deals with whether P has a liberty or property interest. Resemble substantive due process issue. - Why should government give a procedural protection when it was something they gave you to begin with? o People are relying on the protection. But isn’t it purely gratuitous to begin with? In welfare benefits cases, the protection is formed by those in bad economic straights. Government is in a position where, if it decides to address a social concern, the government fills that field. Reliance interest distinctive because fo government’s role, and reliance can be significant when nature of interest in question is difference between life and death o What we expect from government: certain degree of procedural regularity. We want the government not to act in an arbitrary or capricious fashion. Interest served by procedural requirements before the government can remove a benefit. Difference between Taking and a regulation…Taking comes in when you target a small group of people instead of broad effect. If government is making a broad policy decision, it may be erroneous…but our legislature can be arbitrary and erroneous. - Goldberg v. Kelly o Due process required that welfare recipients be afforded an evidentiary hearing before removal of benefits. Benefits are statutory entitlements o Government may not withdraw discretionary benefit without due process - Board of Regents v. Roth o Non-tenured university professor has no constitutional right to hearing before being denied tenure. No rule or policy securing interest in re-employment (no property interest in employment). Different expectations…led to expect that getting let go could happen.

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o Employment per se not treated as property without more. Perry v. Sinderman o Non-tenured college prof. won procedural due process right to hearing on sufficiency of grounds for non-retention because the university had put him on a de facto tenure program Arnett v. Kennedy o Rejecting a non-probationary civil service employee’s claim for hearing prior to dismissal. Where grant of substantive right is intertwined with the limitations on procedures which are employed in determining a right, litigant must take bitter with the sweet Bishop v. Wood o Dismissal of a policeman didn’t implicate any property or liberty interest requiring a hearing to decide sufficiency of the case Cleveland Board of Ed. V. Loudermill o Although state law remains focus for determining whether a property right exists, state procedures not the constitutionally required procedures upon termination of the property right Town of Castle Rock v. Gonzales o Citizens of a state don’t have an enforceable property interest for due process purposes in law enforcement of a restraining order. o Benefit is not a protected entitlement if government officials may grant or deny it in their discretion o Property interest rises incidentally o No property interest in police protection o Don’t want to conceptualize people’s expectation that government will do something well to o Dissent: Federal law imposes no impediment to creation of entitlement by CO law. Respondent could have entered into a contract with a private security firm and been entitled to due process. Paul v. Davis o P, named by Police as an active shoplifter suffered no deprivation of liberty resulting from injury to his reputation o Interest in reputation different from liberty or property recognized in those decisions o Fear of excessive court interference with state programs Mathews v. Eldridge o Predetermination evidentiary hearings not required in the context of disability benefits. o Factors (Balancing analysis)(complex)(makes intuitive sense…relevant factors)  How private interest will be effected by official action (claimant’s interest)  Risk of an erroneous deprivation of interest through procedures used (good faith or bad faith mistake) v. Value of alternative safeguards  Government’s interest o Everything seems to turn on whether there is a liberty or property interest. Court introduced nature of the burden that providing process would place on the government o Balancing test supposed to be answering whether P has a liberty or property interest. Seems weird to make the nature of your property interest turn on how hard it would be for the government to provide a procedural safeguard. Court brings burden of government into play because it gives the government’s interest a role to play in determining entitlement…sounds like something that is bad about this analysis. However, good reason for allowing this. Lynchpin is that government decides to use its resources in a certain way to begin with. Don’t want due process clause to stand as a disincentive for government to help. Can’t be blind to problem the sudden extinguishment of beneficiaries will cause. o Two ways to address government’s concern about burden: there is no property interest at all, or say that we’ll be more accommodating to claimants, but be more restrained regarding what types of procedural protections the government is required to provide. o What is the best way to strike a balance? Claimants interest of reliance/governments interest in preservance of resources….Should we uphold broad definition of liberty and property interest or do we want to loosen the reins on government.

o LIMITED PROTECTION or GOVERNMENT ABILITY TO PULL ENTITLEMENTS  Narrowly focused deep process or broad and shallow-focused process.  If government is abusive, you want to make the protection broad. If concerns are that there are certain kinds of sensitive and important interests, then we may want deep procedure, narrow focus option. o Has a lot to do with why we care about process. Process:  Protects against danger of government mistake  Discourages gov. from deliberate abuses  Gives you a voice – Opportunity to be heard ―Right to Die‖ Cases Mentally Competent Patient Mentally incompetent patient Right to Refuse Treatment? Y-Presumed in Cruzan Cruzan: Substantially limited Right to assisted to suicide Glucksberg: No (But 5 votes in Extreme cases) (Presumably no)

TEST 300 Word limit Exam 4 software 2 issue spotter and one open-ended essay question to defend of attack Review: - Substantive Due Process and Standard of Review o If you get a claim like right to die, think about strict scrutiny first. Then, it might make sense for an undue burden analysis (is right conceptually similar to abortion right?)(Is case like Lawrence where you can cheat the boundaries?) th - 11 Amendment o 2 different sources of congressional regulatory power…article 1 section 8, section 5 of 14th amendment o When congress is legislating pursuant to article 1, section 8 powers, congress can’t give state sovereign immunity, 14th amendment can. o Congress may authorize lawsuits against states for damages o Allow congress to trump 11th amendment when legislating its 14th amendment enforcement power. - Role of historic doctrines in exam o First 2 questions, no occasion to delve into historical developments…gives understanding of law as it currently is, or may be useful as background. o Open-ended essay question is fair game for background. - Incorporation Doctrine o Argument about giving content to due process clause of 14th amendment to protect substantive rights. Incorporation argument to make bill of rights effective to states via due process clause  Nonincorporators say: there is some overlap but no causal methodology. We shouldn’t presume that literal provisions of the bill of rights should be brought in…Flexibility: pure nonincorporation allows for due process clause to protect some rights not even present in bill of rights (Palko v. CT). Concerned about too many rights the states will be bound to preserve  Advocates of rights protection: the court concludes that the bill of rights is incorporated into 14th amendment due process clause, and (in Duncan v. LA) there is such a thing as substantive due process. - Enemy combatants cases: o President has a great deal of authority regarding wartime decisions.

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o Hamdi: still a requirement of congressional authorization for president to do compelling military tribunals for detaining enemy combatants o What types of rights do detainees have under habeus?  U.S. citizens have right to legal process  Guantanomo detainees, by virtue of being on U.S. territory, have right to process. However, doesn’t establish how much process detainees get Separation of Powers: o Is there a way to determine whether the court will use a functional or formal method? o Formal analysis: focuses on form of the constitution o Functional analysis: can measure some ambiguity of uncertainty o Majority has engaged in both modes of thinking. o Morrison – many hallmarks of functional analysis…Scalia dissent formal o Theme: Court seems to be sensitized to notion of protecting against abuses of power. Topic of economic substantive due process is a matter of history o There is still the possibility of a substantive due process claim based on economic rights, it only gets rational basis review. Don’t want to mistake art for science. From the beginning (Griswold), court has never been firm in settling on a basis for discerning fundamental rights under economic substantive due process. o Tradition and collective conscience of the people standard analyses are the two largest issues. Enough different provisions in bill of rights that are concerned with rights and privacy ―penumbras and enamanations‖: there is a privacy principles that comes out of the bill of rights. Strenberg – no exception to ban on procedure when life and health of mother in jeopardy o Gonzales v. Carhart: Partial birth abortion case. Congress went farther than state law in Stenberg that included a life exception but not a health exception. Tons of controversy because personnel on court changed. Still will be situations needed to protect serious health risks. Upheld federal law because there is medical uncertainty. Dissent says better evidence of health risks. Gonzales validates bans on partial birth abortions. Commandering o 10th Amendment sovereignty concerns o NY v. U.S.  New federalism second coming. Federal governmet commandeered state sovereignty and it’s intolerable t our basic understanding of federalism o Prince v. U.S.  Court finds the non-anticommandeering