CONSTITUTIONAL LAW OUTLINE

CONSTITUTIONAL LAW OUTLINE I. INTRODUCTION A. History and Theory of the Constitution 1. The Declaration of Independence - In Congress July 4, 1776 The Unanimous Declaration of the Thirteen United States of America: offers a theory of the purposes of government which states that; -All men are created equal -Endowed by CREATOR with unalienable rights - life, liberty, and pursuit of happiness -Government is there to secure these rights -When government destroys these rights the people have a right to abolish the gov‘t and establish a new one. This theory has an evil twin in the remainder of the Declaration: the list of abuses attributed to ―the present King of Great Britain.‖ This list, together with the theory of govt. above, entails that the king has lost the right to govern: ―A prince, whose character is thus marked by every act which may define a tyrant, is unfit to be the ruler of a free people.‖ 2. The Articles of Confederation - Philly, PA - July 9, 1778 (3rd year of the independence of America): sets up a national govt., but it is less the govt. of a single nation than a league of independent sovereignties. I - call US the ―The United States of America‖ II - states retain sovereignty & every power not expressly given to US ―in Congress assembled‖ III - states enter league of friendship for their common defense etc. IV - free inhabitants are entitled to all privileges and immunities of free citizens in all states V - Delegates appointed by state legislature to meet in Congress. No less than two delegates from any state no more than six. Each state gets one vote in Congress. VI - States can‘t make treaties. Congress must approve treaty between states. States can‘t lay impost or duties which would interfere with US treaties. State can‘t go to war without consent of US unless actually invaded or knows of planned invasion and state is in imminent danger. VII - When land forces are raised for common defense state legislature will appoint officers under colonel and fill vacancies as needed. VIII - Expenses for common defense and general welfare will come from states according to value of land owned by people. IX - Congress is last resort in appeal in disputes between states. US can regulate alloy and value of coins from US and from states. Establish and regulate post offices, and exact postage. Appoint officers in service to US. Make rules for the gov‘t and reg. of land and naval forces. X - committee of states or any nine of them can execute powers of congress when congress is in recess, the powers congress vested them with by consent of nine states. But can‘t give powers that it is required that nine states in congress assembled must vote for. XI - Canada entitled to advantages of union. Need approval of nine states to admit other colonies XII - Any debts or loans by or under authority of congress, in pursuit of the confederation , before the assembly of US, are charged to US. XIII - States shall abide by decisions of congress and the Articles. Union shall be perpetual Alteration of Articles must be agreed to in congress and then confirmed by legislatures of every state. 3. The Constitution: attempts to take a middle path between tyranny denounced in the Declaration and the weak federation of the Articles. The Constitution created a more powerful federal govt. It also, significantly, was a different kind of government: not merely a league of independent sovereignties, but a nation unto itself, with the full powers of a govt. a. The Constitution was a response to defects of the Articles of Confederation - Dispute over what the defects were. Some Views: -―The conventional wisdom refers to Congress‘s inability to raise revenue to perform necessary functions; to the perceived need for the executive authority to provide energy and resolution in domestic and foreign affairs; and to interstate jealousies, which produced retaliatory trade measures and inhibited the flow of interstate commerce.‖ -States did not follow treaties -States failed to abide by their obligations. (A. McLaughlin) -No severe problems but commercial and mercantile interests had problems with various states and needed protection. (M. Jensen, The New Nation) -―The articles failed because the Congress lacked the power to regulate commerce and to levy taxes directly.‖ (Koppleman handout) b. Differences Between the Articles of Confederation and the Constitution Constitution Articles of Confederation Separation of Powers = Executive, Judicial, and No Separation of Powers: Only entity with Federal 1 Legislative branch Bicameral Legislature Congress has Power to declare war, to raise and support armies C. has the power to lay and collect taxes Congress has Power to regulate interstate commerce = frees up trade among states (economic doctrine favoring free trade among states over local protectionism) Article I section 10 takes away state‘s power to coin money V centralization of economic power Makes specific accommodations for slavery enumeration by 3/5 of all other persons C can‘t restrict the importation of people if slaves escape another state has an obligation to return them  Constitution is/was NOT all about freedom and equality Req. super majority of states to amend constitution. Can‘t pass a bill of attainder - can‘t make it illegal to be Andy Koppelman Can‘t pass ex post facto law Article IV gives constraints to individual states power is Congress (But Congress is a creature of the states. Each state appoints its own delegates in any manner it likes, and pays its own delegates‘ salaries. Unicameral - each state only gets one vote. States provide their own armies for the common defense, and retain the power to appoint the officers of their own armies (A. VII) Congress can ask states for their armies = US is a league of different armies with coordination problems Feds just took $ from the states = hard to get $. Must requisition funds from the states, and hope that the states will comply. C. has no power over interstate commerce, but only a treaty power that partly limits states‘ abilities to impose tariffs at their borders (A. VI) Allowed states to treat each other as foreign nations and impose tariffs No uniform currency = reduction in trade. No specific accommodations for slavery Required unanimous decision by all state legislatures to ratify and amend. Required nine of thirteen to approve all laws. c. New govt.’s power was legally limited: The experience of the British monarchy, however, had taught the former colonists to fear a large, powerful govt., and so the new govt.‘s power was legally limited in three ways: (1) Federalism (2) Separation of Powers (3) Guarantee of Individual Rights The basic idea, reflected in Federalist 10 (Madison), is to prevent tyranny by making it hard for govt. to get things done without a broad consensus that they‘re worth doing. d. Federalist 10 (Concern with Factions)- Madison, 1787: Madison thinks the primary problem of gov‘t is the control of factions. He wants a system in which even a majority of people would have difficulty securing power. A well-constructed union will ―break and control the violence of faction‖ (a) Worry over Factions: A faction is a group, whether a majority or a minority, that is united by a passion that is adverse to the rights of other citizens or to the interests of the community. For Madison and the other federalists, the question of corruption was transformed into that of faction, which was itself an inevitable product of liberty, which would produce inequality in the ownership of property. Crucially, this redefinition meant that the basic prob. could not be solved by the traditional republican means of education and inculcation of virtue. Moreover, the problem of faction was likely to be most, not least, severe in a small republic, for it was in a small republic that a self-interested private group would be most likely to be able to seize political power in order to distribute wealth or opportunities in its favor (b) Remedy: Madison thought that the traditional conceptions of civic virtue, or public education, could not guard against factional tyranny. The solution began with the insight that in a direct democracy, the prob. posed by factions is esp. acute, for a ―common passion or interest will, in almost every case, be felt by a majority of the whole‖ and there will be no protection for the minority. But safeguards would be found in a large republic. There, the diversity of interests would reduce the risk that a common desire would be felt by sufficient numbers of people to oppress minorities. In this respect, the likelihood of factional tyranny contained a built-in check in a large republic. - Republic opens a different scheme and is the way to control effects of faction Different from pure democracy in two ways 2 1. a small number of citizens are elected by the rest - The greater number you have to choose from for your elected reps the more likely you are to pick the right people. - Since a greater number of people are voting in a large republic, then one unworthy candidate is less likely to be able to swindle people into voting for him. and when the votes of people are more free they will be more likely to vote for the person with the most merit. - Acknowledges that if the republic is too big then the rep will not know the constituents and their ―lesser interests and local circumstances‖ AND if it‘s too small he will be too attached to these and not so much interested in the greater good of the whole country 2. the citizens may be a greater # and over a greater sphere of the country. - greater number of citizens and the larger area that can be brought within a republic rather than a pure democracy is good. - the smaller the society, the fewer the differences in opinion, the more likely you will be to have a majority in the same party - the smaller the # of people in a majority, the smaller compass within which they are placed, the more easily they can execute plans of oppression - If you expand the sphere, the interests and parties have greater variety and it is less probable that a majority of the whole will have a common motive to invade the rights of other citizens OR if such a common motive exists it will be more difficult for all who feel it to discover their own strength and act in unison. - Also where an interest is unjust or dishonorable in purpose ―communication is checked by distrust in proportion to the number whose concurrence is necessary.‖ (1) Federalist 51 (System of Checks and Balances to reduce Factionalism): The system of checks and balances was designed with the recognition that even national representatives may be prone to the influence of ―interests‖ that are inconsistent with the public welfare. Checks and balances are supposed to act as check against factions and self-interested representation. (a) Separate and distinct powers in gov‘t is thought to be essential to preserve liberty: Need each dept. to have a will of its own and the members of each should have as little agency as possible in appointing members of the others. (b) Divide and arrange the several offices so they can check each other. Impossible to give each dept. equal self defense. The legislature will dominate so break that into two and try to make them as separate as possible by different modes of election and different modes of action. The executive is weak and needs some fortification but problem of potential abuse so make connection b/t the weaker branch and the weaker dept of the stronger branch so the latter may support the constitutional rights of the former. (c) The larger the republic the better able it is to self govern. When there are many different interests parties and sects as there are in the US ―a coalition of a majority of the whole society could seldom take place on any other principles than those of justice and the general good...‖ Many sects, interests, parties = protection for the minority (d) Result is a complex system of checks: National representation, bicameralism, indirect election, distribution of powers, and the federal-state relationship. All act in concert to counteract the effects of faction in spite of the inevitability of the factional spirit. The mechanisms of accountability would prevent representatives from acquiring interests distinct from those of their constituents. The system of checks and balances would ensure that, if representatives became self-interested, or if a particular group acquired too much power over one set of representatives, there would be safeguards to prevent either representatives or private groups from obtaining authority over the national government in general. Note: Where does Judicial review fit in?? To enforce the lines of division in the Constitution in order to make sure the areas marked off from politics would not be subject to political revision. Therefore the boundaries were unrevisable by electoral majorities - a ―safeguard that would buttress the other checks‖ Note: Property Rights and Freedom of Contract: The protection of property rights and contractual liberty were principal interests of the framers, and one of their principal targets was debtor-relief legislation. There is a close practical relationship between the desire to protect private property from governmental intrusion and the devices set up by the framers to guard against the dangers posed by faction. For the framers, the problem of faction lay partly in the danger that a self-interested group would obtain governmental power in order to put rights of property at risk. In this light, the various safeguards may be understood as having the protection of property rights from majoritarian incursion as one of its principal purposes. e. Madisonian Republicanism and Contemporary Constitutionalism. (a) ―Constitutional Moments‖ - B. Ackerman argues there have been several, and that the founding, the Civil War, the New Deal resulted in three different constitutional ―republics.‖ According to Ackerman, the Constitution represents. a ―dualistic democracy,‖ that is, a system that distinguishes between higher politics of constitution- making and the ―normal politics‖ of day to day life. Constitutional politics 3 has many of the features of republican self-governance; normal politics acknowledges the partial truths of pluralism. He claims that there have been three large periods of constitutional politics, setting for the nation‘s basic political aspirations. In his view, much of the work of the Supreme Court can be understood as efforts to synthesize the commitments of these three different republics. His view is controversial but we will see both the Civil War and New Deal did help inaugurate major changes in constitutional law. II. THE INSTITUTION OF JUDICIAL REVIEW A. The Basic Framework 1. Review of Acts of Congress – If the S/Ct. identifies a conflict between a constitutional provision and a congressional statute, the Court has the authority (and the duty) to declare the statute unconstitutional and to refuse to enforce it. a) Marbury v. Madison (1803): Establishes Judicial Review, the power of federal courts to declare statutes unconstitutional. Facts: John Adams (federalist incumbent president) appointed several justices of the peace, including William Marbury, at the end of his Administration. Federalist controlled Senate confirmed the appointment on March 3, 1801. Formal commissions had not been delivered when Thomas Jefferson the Republican President took office. The Jefferson Administration then refused to honor the appointments for which commissions had no actually been delivered prior to the end of Adam‘s term. Several of the would be justices of the peace, including Marbury, brought suit directly to the S/Ct. They sought a writ of mandamus compelling Jefferson‘s Secretary of State (James Madison) to deliver their commissions. Holding: First, Marshall decided that Marbury and the other justices did indeed become entitled to their commissions once these had been signed by the President. Secondly, as to the remedy, Marshall distinguished between political acts, which are not reviewable by the courts and acts specifically required by law, which are reviewable. The refusal to deliver the commissions fell into the latter category. Thus Marbury and the other justices were entitled to a remedy. Lastly, Marshall held that the particular remedy that the plaintiffs sought, a writ of mandamus, could not be granted. While the then-effective Judiciary Act explicitly authorized the Court to grant this relief, Marshall concluded that this grant of jurisdiction was in conflict with Article III, §2 of the Constitution, which grants the S/Ct. original jurisdiction only ―[i]n all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party.‖ Since issuance of mandamus is not among the types of cases as to which original jurisdiction is conferred on the S/Ct, Marshall held, the congressional statute was at odds with the Constitution (and Marbury does not get his commission.) IMPORTANT HOLDING – If the S/Ct. identifies a conflict between a constitutional provision and a congressional statute, the Court has the authority (and the duty) to declare the statute unconstitutional and to refuse to enforce it. Therefore, Marshall concluded the requested write of mandamus could not be issued. Marshall’s Arguments: Marshall made two interlocking arguments (which are the foundation of judicial review): 1) Constitution is Paramount: The very purpose of a written constitution is to establish a fundamental and paramount law. If follows from this that any act of the legislature that conflicts with the Constitution must be void. (Supremacy Clause) 2) Who Interprets: ―It is emphatically the province and duty of the judicial department to say what the law is.‖ That is, it is the court, not the legislature, which must make the determination whether, in a particular case, an act of Congress is in conflict with the Constitution. To deny the permissibility of judicial review of the constitutionality of a congressional statue would be to say that the courts ―must close their eyes on the constitution, and see only the law. This doctrine would subvert the very foundation of all written constitutions.‖ Note: It is striking to many modern readers that Justice Marshall‘s principal arguments rely not on the text of the Constitution, but instead on its structure and on the consequences of a conclusion that judicial review was unavailable. Why the Ct should be allowed to prefer the Const. over law: 1) judges took an oath to support the Const. 2) existence of a written constitution 3) Article VI—Const. ―shall be the supreme law of the land‖ {supremacy clause} b) Criticism of Marbury (1) Who determines Constitutionality: Most critics agree with the first part of the argument, but not the second. The critics argue that nowhere in the Constitution does it state that the courts, not Congress, ought to decide whether a given statute does in fact conflict with the Constitution. (a) Congress could decide: Congress would be seen as having the duty to make sure that no act promulgated by it exceeded the Constitution; but Congress‘ interpretation of the presence or absence of a conflict, not the courts‘ would be the method of enforcing constitutional limits. (b) Response-- Assumption, not conclusion: One answer to this criticism is to say that Marshall was making an assumption, rather than a deduction, when he stated that courts have the ultimate right to interpret constitutionality. That is, the Constitution can be classified as being ―indeterminate‖ as to who 4 2. has the final say. When viewed in this way, Marshall‘s assumption is at least as reasonable as the contrary one (that Congress, not the court‘s should decide constitutionality) – this contrary assumption is also nowhere to be found in the Constitution. (c) Response--Judicial Independence: Furthermore, if one is merely trying to decide which assumption to make, there are some practical reasons why judicial interpretation, rather than legislative interpretation, might be a better means of construing the Const. 1) Fed. Judges are appointed for life, and are thus fee of day-to-day political pressures. 2) Since Congress generally responds to the majority’s will, and since one of the key functions of the Const. is to protect the rights of minorities, the relatively apolitical judiciary will interpret the Const. in a way more sensitive to this minority-protection goal. (2) Reading of Article III & the Judiciary Act is an optional reading at best. Original and appellate jurisdiction are not mutually exclusive and ―exceptions clause‖ can allow Congress to change something that was appellate into original jurisdiction if wants to. Constitution provides minimum for original jurisdiction and congress can expand it just can‘t reduce the scope of original jurisdiction of SC. (a) Marshall has stretched both Article III and the Judiciary Act. Unless both of these texts are read in the way that he reads them, there is no conflict between them and therefore the case does not present an occasion for the Ct. to exercise the power of judicial review. (b) §13 of the Judiciary Act can be read as adding either to the Ct.‘s original jurisdiction or to its appellate jurisdiction. It depends on how you read the semicolon in the last sentence in the footnote on p. 27. If you regard the mandamus power as expanding the Court‘s appellate jurisdiction, then Marshall is right; but you can also read the power as applicable only in the class of cases listed before the semicolon. (c) Article III, §2 can be read either as forbidding Congress from adding to the Court‘s original jurisdiction (the Constitution describes the maximum amount of original jurisdiction that the Court can possess) or as permitting Congress to add to the Court‘s original jurisdiction (on one reading of the ―exceptions‖ clause.) (3) Merits of the Case: Marshall‘s way of ordering the issues is extraordinary. Ordinarily, the question of whether the court has jurisdiction should be considered first; if the answer is no, then there is no occasion to reach the substantive issues, such as whether Marbury has a right to his commission. The argument on behalf of Marshall is that, since judicial review is also a delicate matter, it was important for Marshall to demonstrate that he could not avoid the constitutional question. (4) Countermajoritarian Difficulty: The tension between the basic principle that the Constitution reposes sovereign authority in the people, who elect their representatives, and the (perhaps) competing principle that , in interpreting the Const. under the doctrine of judicial review, the courts have final say over the political process. (a) Courts are suppressing the will of a present majority, merely because some past majority has said that a particular course of action is impermissible. This is really an inter-temporal difficulty; it applies even if judicial interpretation is purely mechanical. (b) There is a discretionary element in interpretation, so that the values of (unelected) judges will enter into the political decision making process. In order to respond to this difficulty, courts must rest their decision on some legitimate source of decision in order to ensure that judges are not acting like legislators. What those sources of decision should be is, or course, a matter of continuing debate. Review of State Court Decisions: When the S/Ct. reviews the judgment of a state court, it is of course exercising its appellate, rather than its original jurisdiction. Art. III, §2 provides that the S/Ct.‘s appellate jurisdiction may be regulated and limited as Congress shall provide. Since the original Judiciary Act was enacted in 1789, the S/Ct.‘s appellate review of state court judgments has always been limited to the federal questions decided by the state courts. Thus the S/Ct. may determine whether a statute court has reached a decision that is not in conformity with the Constitution; but it may not review state court decisions that merely adjudicate questions of state law. a) Martin v. Hunter’s Lessee (1816): Upholds as constitutional §25 of the 1789 Judiciary Act, which allows the S/Ct. to hear appeals of const.al issues decided by the highest court of a state. Facts: Involved the issue of whether a particular VA statute conflicted with a federal treaty. The VA courts took the position that if litigation commenced in state courts, then it was up to the state court to say whether the state action violated the federal constitution, and the U.S. S/Ct. had no right to review whatever conclusion the state court reached. Holding: S/Ct. flatly reject the VA court‘s view and held that the Court could review the constitutionality of a decision by a state’s highest court. Story’s Arguments: There were two principal strands to the Court‘s opinion 1) Jurisdiction over all case constitutional cases: First, Story notes that Art. III, §2 of the Const. gives the Court jurisdiction over all constitutional cases, regardless of their origin. He relies on a structural argument that final judgment must reside somewhere and a consent argument that the American people granted this power. 2) Sovereignty argument rejected: Secondly, the VA ct‘s assertion that it was ―sovereign‖ was rejected, on the grounds that the federal Constitution cut back upon state sovereignty in numerous respects. There was no reason to presume that state judiciaries were immune from this set of limitations. 5 3) Uniformity: Finally Story relies on a prudential argument that uniformity of decision is important. He wrote that there is a need for uniformity in decisions throughout the nation interpreting the Constitution. ―[I]f there were no revising authority to control these jarring and discordant judgments, and harmonize them into uniformity, the laws, the treaties and the constitution of the U.S. would be different in different states. …‖ He also made another prudential argument for preventing forum shopping. Note: Story‘s deference to Congress in this opinion contrasts strikingly with Marshall‘s lack of deference in Marbury. How important is prudential argument in constitutional law? Is arguing about consequences a legitimate/appropriate way of interpreting the constitution? b) Underlying Concerns (1) Possibility of state hostility to, or lack of sufficient sympathy for, federal rights. State judges will be less likely to react sympathetically to federal claims – either because they lack the tenure and salary protections of Art. III, and are thus more susceptible to political influence, or because they have a natural alliance with the legislative and executive parts of state govt. State judges aer insufficiently independent of the forces against which const. guarantees are supposed to run. Neuborne p. 51. (2) Another justification for judicial review of these state court decisions stresses the comparative expertise of the federal courts in dealing with federal constitutional questions. c) Constitutional Basis: Do the arguments, textual and otherwise, for the power of judicial review of state laws carry more force than those for judicial review of federal laws? One View - Justice Holmes: ―I do not think the United States would come to an end if we lost our power to declare an Act of Congress void. I do think the Union would be imperiled if we could not make the declaration as the laws of the several States.‖ This conclusion must depend on a belief in the existence of institutional safeguards at the federal level. B. Judicial Exclusivity in Constitutional Interpretation? 1. Cooper v. Aaron (1958): Facts: AR failed to comply with a district court order requiring desegregation. State argued desegregation would lead to violence and disorder and therefore could disobey the decree. S/Ct rejected the argument of AR that ―law and order are not here to be preserved by depriving the Negro children of their constitutional rights.‖ Governor of state said wasn‘t bound by the decision in Brown b/c he had to interpret the constitution himself. Holding: Marbury might have been read narrowly, but in this case Court declared : ―[Marbury v. Madison] declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and that the principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our Constitution.‖ It follows that the interpretation of the 14th Amendment in Brown v. Board of Education is ―supreme law of the land‖ and Art. VI. makes it binding on the states. Thus S/Ct can invalidate acts of President and other executive officials and Congress. Implication: On one view, Marbury means only that every branch of gov‘t acting within its sphere is authorized to interpret the constitution. BUT Book p.54 states that ―Cooper v. Aaron suggests that the courts have been entrusted with a special and distinctive role as ultimate guardians of the meaning of the constitution, and that other government officials must not interpret the Constitution for themselves, but instead must look to the courts’ interpretation and take it as authoritative.‖ 2. Judicial Supremacy (From Last Year outline/Calabresi Class): Judiciary gets to interpret Const. and gets final word. Meaning is fixed and clear. Substantial power to Judiciary—puts decisions on same level as C. Obviously, other branches can be proactive and don‘t have to pass/sign laws that they don‘t want to. Language in opinion is given interpretative weight (v. departmentalist who only regard holding as crucial.) e.g. Cooper v. Aaron. (1) Justified by tradition OR Redish says Const. mandates it (2) Arguments FOR Judicial Supremacy (a) Uniformity in meaning of the Const. is good, and 3 branches interpreting will most likely lead to 3 diff. interpretations. (b) Facilitates pre-event ordering. Makes it easier for people to figure out what the law is. (c) Post-event equity. If you allow all 3 branches to interpret, the other 2 won‘t necessarily follow court‘s lead, so different standards are applied. (d) Fear of exec. lawlessness. Exec. might not be bound by ct. opinions. (e) Judges better at Const. interp. (see Madison below) b/c. they have an obligation to write opinions, which imposes discipline on the courts and makes them more deliberate and thoughtful in reasoning. (f) Judiciary meant to check other branches; this role diluted w. departmentalism (g) Courts are better suited to interpret the Const. b/c. they are a countermajoritarian branch and it is a countermajoritarian document. BOR, 14th am. etc. are antidemocratic, so it makes no sense to have an electorally accountable branch dictating what the law is, when law is designed to protect minority rights. (h) No danger for courts to start running the country b/c they have to wait for stuff to come to them. Thayer: and Congress can take jurisdiction away, so don't worry about countermajoritarian concern 3. View from the Presidency: What is responsibility of president when: a. he believes a statute is unconstitutional in the face of a Court‘s decision that it isn‘t 6 4. The constitution imposes a duty on all branches to comply with the constitution Inference that the President and Member of Congress must make their own judgment. Responsibility of these actors is very important in light of fact that moral decisions often become constitutional decisions. - Don‘t want pres. or congress to do something just b/c they know the SC will agree with it. - Want them to invalidate something they think is unconstitutional even if they think SC would say it is constitutional. - But how likely is it that a legislator or President who believed a statute to be sound as a matter of public policy would believe it to be unconstitutional? - Jefferson: ―But nothing in the constitution has given them a right to decide for the Executive, any more than to the Executive to decide for them. Both magistracies are equally independent in the sphere of action assigned to them.‖ .... ―That instrument meant that its coordinate branches should be checks on each other.‖ b. he believes the statute is constitutional when the Court makes a decision it isn‘t or they expect that the court will make that decision. - what can say the president do if he thinks the Court has wrongly invalidated a statute? (recent examples invalidating laws for segregation, laws restricting abortion, laws protecting flags from being burned, laws requiring school prayer) - May the president sign or propose legislation that would be against a court decision? Can he attempt to get the Court to overrule its decision? May he campaign against the Court? - Lincoln Inaugural Address: Decisions of Court must be binding to the parties. And they are deserved much respect in parallel cases by other departments of the government. ―At the same time, the candid citizen must confess that if the policy of the government, upon vital questions affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made, in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned the government into the hands of that eminent tribunal. Nor is there in this view any assault upon the court or the judges. It is the duty from which they may not shrink to decide cases properly brought before them, and it is no fault of theirs if others seek to turn decisions to political purposes.‖ - Other presidents including FDR and Richard Nixon have expressed similar views. - Can this position be distinguished from the refusal of Governor Faubus to comply with Brown v. Board of Education? - Attorney General Edwin Meese: ―Obviouslay [a Supreme Court decision] does have binding quality. It binds the 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 parts of the government, henceforth and forevermore... for then the Court would not be able to change its mind. It could not overrule itself in a constitutional case....‖ Readings on Departmentalism (handout) -Summary: All three branches would have to agree that the govt. action is constitutional. Must pass three hurdles to protect freedom. Departmentalists limit ct. to cases and controversies. Departmentalists regard only holding of judicial opinions as binding, not language of opinion except as predictor of future. -Arguments for Departmentalist model: (1) Gels w. Marbury better. Rests Judicial Review on judges deciding cases. (2) Liberty better protected. Better to have all three branches enforcing Const. (3) There should only be one way to interpret Const. anyway, so why can‘t all three branches interpret (4) There may be a need for the political process to check the judicial branch, i.e. the electorate and the president. (5) Text of Const. doesn‘t seem to single out the courts as the only interpreter of the Const. (6) Courts are not ideally suited for Const. interpretation. They are undemocratic and often invalidate the preferences of the majority. -Departmentalist Presidents: (1) Lincoln endorsed departmentalist view in Lincoln-Douglas debates. Said he would challenge Dred Scott; thought exec. branch should grant passports. First Inaugural: ―the candid citizen must confess that if the policy of the govt., upon vital questions affecting the whole people, is to be irrevocably fixed by decisions of the S/Ct., the instant they are made, in ordinary litigation between parties in personal actions, the people will have ceased to be their own rulers, having to that extent practically resigned the govt. into the hands of that eminent tribunal.‖ (2) When S.Ct. invalidated FDR‘s statutes, his advisors recommended continuing to pass laws. -Legal Scholars who support Departmentalism: IF TIME REVIEW ARTICLE (1) Judge Easterbrook, 7th cir. ―Presidential review is neither a power to nullify nor a power to disregard judgments. But, it is a real part of the system that separates and duplicates power, so that concurrent approval is necessary 7 - 5. 6. to action.‖… ―No one would take seriously an assertion that the President may not interpret federal law. After all the president must carry out the law, and faithful execution is the application of law to facts.‖ In Reality - Judicial Supremacy model usually followed, although Congress and President get around it whenever possible (by continuing to pass ―unconstitutional‖ laws, stacking the Ct. with people who interpret the Const. the way they want, and following only the narrowest holding in a case) and sometimes outright refuse to follow it. (see Departmentalist presidents above) (1) Calebresi suggests that in times of real Constitutional crisis, the other branches will reassert their authority. (2) James Madison‘s letter — 1834. Accurately foreshadowed practical mix btw. departmentalism and judicial supremacy. (a) ―Notwithstanding this abstract view of the co-ordinate and independent right of the three departments to expound the Const., ...it is the Judicial department in which questions of Constitutionality, as well as of legality, generally find their ultimate discussion and operative decision...‖ b/c.: (1) Courts attract public confidence by composition of tribunal (Unbiased, not self-interested b/c. of lifetenure) (2) Cts. better at Const. interp. b/c. they are skilled reasoners by training and solicit briefs from all interested parties. (3) Do this stuff on a regular basis; practice makes perfect. (4) Ideal size for such decisions, more than one person, but not as big as Congress. (5) usually last word but can be challenged Some Misc. Things to Consider: (1) Historical events that give credence to the case against/for judicial review: - Dred Scott case (1857): Lincoln argued against Supreme Court attempts to settle whether Congress can extend slavery into the territories. Ct says Congress had no power at all to exclude slavery from territories. Said blacks could not be citizens of the United States. (Racist view of Am. citizenship) (From notes - Lincoln "ignored" and told Congress to treat as though citizens) Didn‘t work to calm country, rather exacerbated tensions over slavery. Invoked as ―judicial overreading.‖ - 14th Amendment (1868) overrules this opinion and says all can be citizens. It gave the judiciary the right to police states in a way it hadn't before. "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States..." - Lochner v. NY S/Ct interpreting 14th amendment. Said max hours laws were unnecessary regulation on economy. Holding : max hours laws = unnecessary regulation, violates 14 th amendment. - New Deal 1930's Sup. Ct has head on collision with executive and legislative branch when they attempted most economic regs. ever (via commerce clause) in response to worst economic disaster ever. Ct. backs down and allows vast expansion of the Fed. power. - Brown v. Board of Education (1954): Segregated schools violate equal protection clause of 14th Am. Unassaultable fortress of judicial review, sweeping intrusion by judiciary on states. No one will disagree with this ruling, though massive amount of judicial review was necessary. - Roe v. Wade (1974) creates Constit. right to abortion. Some argue this is much like Brown. (states intruding on women‘s rights) Opponents argue that it is like Lochner (No right in constitution per se. Ct. imposing own political views on country) or even more radically like Dred Scott (Deeply morally corrupt like D/S. Declare some people as non-people with no rights as citizens. - People who like a particular case will compare it Brown v. Board of Education. Enemies say it is like Dred Scott or Lochner - court imposing own political views on the country. Fact that Civil War turned on piece of Constitutional interpretation by the Executive makes statement that Sup. Ct. is supreme interpreter need at least some qualification. Lincoln's first inaugural - Kopp: the most important piece of Constitutional history in American history. Key sentence offers interpretation of Constitution. "I hold the Union is indissolvable" Civ. War turned on a piece of constitutinal interpretation not by the Judiciary, but by the President. Hard to imagine what American history would have been without that piece of legal reasoning. (no Civil War) Lincoln's address: - Most important sentence in American Consitutional history is on p217. I hold that in contemplation the union of these states is perpetual. Union is older than the C. The Union is less perfect (as in C's preamble) when it is dissolved. - Kopp thinks this is a stretch b/c in effect he is saying -"stay with me or I will kill you." This works only if there is some overriding moral imperative residing not in the C itself that justifies the civil war - prevention of slavery not found in the C, which specifically protects slavery. Is the C the source of ultimate authority or are there other sources worthy of respect? Political theory Marshall lays out in 58-59 is the ultimate grounding for the authority in the supremacy clause. 8 C. Sources of Judicial Decisions 1. Phillip Bobbitt - The Modalities of Constitutional Argument: Modalities = the ways in which legal propositions are characterized as true from a constitutional point of view. (Note: K. looks at modalities in Marbury, McCulloch, and Calder) a. Historical - rely on intentions of framers and ratifiers. (1) Historical or "originalist" approaches to construing the text are distinctive from textual modality in their reference back to what a particular provision is thought to have meant to its ratifiers. (2) Calder v. Bull is the first case where we see true "historical" modality. Less clear in McCulloch or Marbury, which don‘t cite any history, though they‘re full of talk about what the framers must have meant. The hist. args. In these cases seem to be ―makeweight‖; the real argument is coming from other sources of authority. (3) Important to get clear who's ideas matter. Not the guys who wrote the Constit. in Philly. Doesn't matter what they had in their minds. In fact the proceedings were secret and remained so for decades. The Constitution was going to stand or fall on its own language. Secrecy was important to the drafters. Only reason we know is that Madison took detailed notes - but these only became public after he died. What gave it force of law was that it was ratified in convention, so the intention that matters is that of the ratifiers. This is why they turn to Federalist papers to see intention. B/c they were the papers widely published during the time they were deciding about ratification. b. Textual - look to meanings of words of constitution alone, as they would be interpreted by the average contemporary. (Sometimes the text can be a straightjacket, confining the judge to language that would have been different if its drafters had foreseen later events.) (1) Other type of source were those talked about in Calder. Were there generally shared meanings of terms at the time the Constitution was ratified? Reasonable to infer the general meanings are what the constit. means? (Acc. K. all three ops start from text, but none stop there.) (2) We won't see many opinions that don't refer to the text. All start there but none stop there. No text is self interpreting. (3) 9th amendment is the only provision that gives idea or instruction to interpretation. (4) Scalia big on textual readings c. Structural - inferring rules from the relationships that the constitution mandates among the structures it sets up. First an uncontroversial statement about a constitutional structure is introduced, then a relationship is inferred from this structure, then a factual statement about the world is made, finally a conclusion is drawn. (1) see most clearly in 2nd half of McCulloch v. MD (lot said in class notes about the case) Marshall argues that it‘s contrary to the overall purposes of the document for the states to be able to control Congress. Struct. Arg. Also implicit in Marbury‘s view of the role of courts. (2) example- is there judicial review? someone has to constrain the legislature as part of overall system of checks and balances. d. Doctrinal - applying rules generated by precedent. Turn to precedent to find similar uses in which authoritative decisions would govern the present one. It is not however dependent on stare decisis, that is, strict adherence to previously decided cases. One of the principles of doctrinalism is that the Supreme Court may reverse the relevant precedent. (1) invokes a precedent, an existing doctrine. e.g. Is there judicial review? Sure, look to Marbury v. Madison OR is there a federal bank, yes. Long settled favor for a federal bank. (2) K. says, ―Doctrinalism is resorted to at the start of McCulloch, which invokes precedent. Similarly Calder, in its reading of ex post facto: the framers, it is argued there, wanted to follow existing English doctrine, so the historical and doctrinal modalities run together. History can carry you anywhere, because the framers might have drawn on any source.‖ e. Ethical - deriving rules from those moral commitments of the American ethos that are reflected in the Constitution. Sense of overall purpose: certain rights which are regarded as valuable in a system of free republican govt. Like structural arguments these do not depend on the construction of any particular piece of text. Structural argument infers rules from the powers granted to governments; ethical argument infers rules from the powers denied to government. The principal error one can make regarding ethical argument is to assume that any statute or executive act is unconstitutional if it causes effects that are incompatible with the American cultural ethos. This equates ethical argument with moral argument generally. (1) Calder overall purposes of American gov't. Certain rights that are just regarded as valuable. Is suggested by Chase‘s opinion, resisted by Iredell. f. Prudential – results oriented…seeking to balance the costs and benefits of a particular rule. Often gives rise to a "balancing test." (1) just looking at consequences. What will give better results? Which reading will give better results? If particular reading will give ridiculous results go back and read it again. (2) Lively debate about extent to which any of these modalities is appropriate. 9 (3) E.g. Justice Black - if don't like reading of Constitution then go change Constit. judges aren't supposed to run on what is wise or appropriate. (4) Worry that hangs over any of the modalities is that it gives judges an ability to legislate from the bench. (5) Given these sources to what extent do the worries get ameliorated by restraint on judicial power ( Jurisdiction, Standing, Political Decision) if at all? If at all, how much? If not, why not? (6) Historical mode can move into any of the modalities. (7) Clearly present in McCulloch and Hunter‘s Lessee, where Marshall and Story both worry about the consequences of an alternative construction. 2. Doctrine of Implied Powers (Structure!): Although the federal gov. may act only where it is affirmatively authorized to the so by the Const., the authorization does not have to be explicit. That is, by the doctrine of ―implied powers,‖ the federal govt. (esp. Congress) may validly exercise power that is ancillary to one of the powers explicitly listed in the Constitution, so long as this ancillary power does not conflict with specific Constitutional prohibitions. This notion of implied powers is itself explicitly stated in the ―necessary and proper‖ clause of Art. I, §8: Congress may ―make all powers granted by Art. I, §8, or by other parts of the Constitution. McCulloch was the first case to make an important interpretation of ―necessary and proper.‖ a. McCulloch v. Maryland (1819): Facts: Congress chartered the second Bank of the United States in 1816. The bank soon encountered substantial political opposition, mostly as a result of the Panic of 1818 and corruption with the various branches of the Bank. As a result, a number of states enacted anti-Bank measures. One of these anti-Bank statutes, enacted in MD, was at the center of the McCulloch dispute. MD imposed a tax requiring all banks chartered outside the state to print their bank notes on stamped paper if they established any branch or office within Maryland boundaries. Taxes were aimed at getting the bank not to operate within MD. MD then brought suit against the Bank, and its cashier (McCulloch) to collect the tax. Holding: The S/Ct. held the tax constitutionally invalid in McCulloch. The opinion had two main portions: (1) Congress has the power to charter a bank, even though that power is not specifically enumerated in the Constitution; and (2) A finding that since the Bank was constitutionally chartered, MD’s tax upon it was unconstitutional. Part One: A National Bank Is Constitutional (a) Constitutionality of Bank: Marshall first disposed of MD‘s argument that the powers of the national govt. were delegated to it by the states, and that these powers must be exercised in subordination to the states. Marshall concluded that the powers come directly from the people, not from the states qua states. (Sovereignty argument) (p.58 - The convention that selected the C was elected by states. until ratified by people just a piece of paper. Not ratified by state legislatures but by ratifying conventions in each states which were directly elected by the people, so the state legislatures were bypassed. Marshall says in this ratification, the C was directly approved by the people.) (b) Grant need not be explicit: Marshall then turned to the issue of whether the constitutional grant of the particular power (here, the power to charter a bank or a corporation) was required to be made explicitly in the Constitution. M. concluded that the particular powers could be implied from the explicit grant of the other powers. He found that Congress had the power to create a corporation (the Bank), if this was incidental to the carrying out of one of the constitutionally-enumerated powers (the power to raise revenue.) (c) Justification/Necessary and Proper Clause: He justified Congress‘ right to create a corp./bank even though such a power was not specifically granted in the Constitution by relying on the ―necessary and proper clause.‖ He rejected the contention that ―necessary‖ meant ―absolutely necessary‖ or ―indispensable.‖ Instead, he stated that ―let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to the end, which are not prohibited, [and which are consistent] with the letter and spirit of the constitution, are constitutional.‖ Thus, so long as the means is rationally related to a constitutionally specified end, the means is also constitutional. (assuming that it does not violate any specific prohibition, such as those from the Bill of Rights.) (d) Support for Conclusion: M. pointed to a # of situations where Congress‘ power to carry out constitutionallyspecified objectives had been liberally interpreted. For instance, the Const. does not contain any specific grant of the power to punish the violation of federal laws, yet this power had always been inferred. The power ―to estb. post offices‖ had been substantially expanded to include the federal prohibition on mail theft. (Thus, on the question of Congressional power, M. starts with text, but moves quickly to considerations of political theory and prudence, relying not on the language or hist. of the Const., but on the perceived harmful consequences for Am. govt. of a contrary construction. To the extent that he relies on original intent, he infers if from these other considerations. See also Modalities below) (e) Separation of powers rationale: Basis for opinion. An examination by the judicial branch into the ―degree of necessity‖ justifying a statute would be an invasion of Congress‘ domain. M. felt that the S/Ct. should strike down a law as being beyond the powers of Congress only where it was quite clear that no 10 constitutionally-specified object was being pursued: in any closer case, the final decision should be left to Congress, not the courts. (f) Conclusion: M thus concluded that the act chartering the national bank was valid, because it bore a reasonable relationship to various constitutionally-enumerated powers of the govt. (e.g. the power to collect taxes, to borrow money, to regulate commerce, etc.) M. then went on to find the MD tax invalid, because it interfered with the exercise of a valid federal activity. Part Two: M. finds an implicit prohibition on state taxation of the national bank. Federal govt. is immune from taxation by any state, unless Congress has consented to such taxation. Relies on this syllogism: (1) the power to tax is the power to destroy; (2) if state taxation were permitted to destroy or harm the Bank, the fed. govt.‘s exercise of its powers under the Const. (esp. the ―N&P‖ and Spending Clauses) would be thwarted; and (3) the fed. Const. must be preserved against such state interference. What const. provision does the tax violate? M.‘s analysis is largely an inquiry into the operations of representative govt. see pg. 70-71 for more details. 1) A structural argument. Structure prevents abuse of power through safeguards. People have control over govt. so govt. cannot get out of control. KEY: Overall structure of the constitution becomes a legitimate source of Constitutional law. 2) A sovereignty argument. M. argues that sovereignty ultimately lies with the people. (Lockean Theory) Not that sovereignty resides in states, rather states get authority from the people. (1) Modalities and Notes: Marshall doesn‘t strictly rely on a textual argument for either part. (The opinion, like Hunter‘s Lessee is a lot more deferential to Congress than Marbury) The approach in McCulloch is distinctive because of M.‘s willingness to rely on the ―structures and relationships‖ set up by the constitution, and not only the text, in resolving const. questions. Marshall doesn‘t say what enumerated powers the bank is ―necessary and proper‖ for carrying out. There‘s no text prohibiting the taxation of the bank. Hamilton says its helpful to carry out laying and collecting taxes, keeping armies, furnishing loans. bank makes collecting taxes easier, more convenient. Jefferson worrying Marshall is putting us on a slippery slope to federal police power. (2) Interpretations of Marshall’s Opinion: (a) Power-granting provisions of Const. should be broadly construed. These provisions are meant to endure over time. Should be interp. flexibly as new and unforeseen problems arise. But this is emphatically not to say that courts should have license often or ever, to strike down a legislative action on the grounds of changed circumstance. (b) All provisions of Const. including those granting power and creating power should be broadly construed. Const.‘s simply do not contain specific answers to specific questions for all times. (c) Meaning of C changes with changed circumstances, in accordance with changing social norms, and needs. judges need not adhere to specific intent of framers or orig. meaning of text, but must interpret flexibly in light of contemporary necessities. 3. Doctrine of Natural Law Calder v. Bull (1798) Note: This is a pre-Marshall/Chief Justice writing the opinion case. Each judge wrote own opinion. All the judges agree that ban on ex post facto laws (ones which have a retroactive punitive effect) only apply to criminal law and the legislature overruling a court opinion and setting new trial does not violate ex post facto provision of Const. Facts: ―The Connecticut legislature ordered a new trial in a will contest, setting aside a judicial decree. Losing party (who won first) says this violates ex post facto law. Legislating after they won a case and saying no you lose. Issue: Whether Art. I, §10 ban on ex post facto laws forbade only retroactive criminal laws or whether it also forbade retroactive civil laws? Significant Holding: The prohibition on ex post facto laws (Art. I, §10) applies only to criminal laws. Although Justice Chase and Iredell agreed on the ―ex post facto law‖ issue they disagreed over the appropriate role of ―natural law‖ in constitutional interpretation.‖ Justice Chase: thinks that legislatures are limited, not only by the constitutional text, but also by ―the very nature of free republican governments.‘ (Natural Law Arg.) Justice Iredell: disagrees, not because such philosophical views are mistaken, but because they invite too broad a field for judicial discretion. ―The ideas of natural justice are regulated by no fixed standard: the ablest and the purest men have differed on the subject.‖ The Debate: has two basic elements: (1) does the text of the Const. confer on the S/Ct. the authority to invalidate statutes that do not transgress any judgment specifically attributable to the framers of the Const.? Does the Const. – either in general or in some of its provisions – authorize judges to invalidate laws on normative ground that are independent of the specific value judgments of the framers? (2) Is it desirable to authorize judges to invalidate laws on such grounds? Some argue that recognition of such authority is indispensable as a protection against the potential injustice of majoritarian govt. Others contend that a judicial role of that sort would be intolerable in light of the basic constitutional commitment to electoral control of public officials. The debate shows how questions of what (courts should say that ) the constitution is are intertwined with questions of how the constitution is to be interpreted and who the interpreter is to be. Political theory is part of Chase‘s 11 constitution, but not Iredell‘s and institutional concerns about who gets to make decisions undergird Iredell‘s decision to read political theory out of the document. D. The Power of Reprisal: Political Constraints on the Supreme Court: Does Congress’ power of reprisal allay the countermajoritarian difficulty? Is the exceptions clause too broadly worded? 1. Constitutional Amendment: The most straightforward way for the people to respond to a S/Ct. decision with which they disagree is to amend the Const. (p.75) Difficult to do at the national level. (Though many states make it possible through simple referendum.) Madison believed in making it difficult to amend; Jefferson thought it should be much easier. (p.75-77) 2. The Power to Appoint: Members of the S/Ct. are appointed by the President, subject to the advice and consent of the Senate. As a result, the President has an opportunity to put justices on the Court who share his views. Appointing power has been imp. in controlling the direction of the S/Ct. p.78 3. Impeachment: Justices of the S/Ct. ―hold their Offices during good Behavior.‖ Art. III, §1 They may be removed from office or impeached, though no justice has been removed and Samuel Chase was the only justice impeached, but he was never convicted. 4. Life Tenure: Under the Const., federal judges are appointed for life. This provision is associated with the goal of promoting judicial independence. 5. Informal mechanisms and Self-imposed limits: There is little doubt that the Ct. is reluctant to make decisions that depart too sharply from what it perceives as a political census. There are, however, a few occasions in the nation‘s history in which the Ct. has persisted in a course to which the country is sharply opposed. And, the Ct.‘s decisions may themselves help to shape a national consensus (good or bad?), and it is undoubtedly true that on occasion the Ct. as been willing to insist on a course of action notwithstanding considerable public disagreement. 6. Congress’ Control of Federal Court Jurisdiction: To what extent may Congress curtail the jurisdiction of the S/Ct., or the lower federal courts? If one looks solely at Art. III, the only direct grant of jurisdiction to any particular court is that the S/Ct. shall have original jurisdiction in cases involving ambassadors, ministers and consuls, and cases in which a state is a party. a. Art. III suggests that Congress may place certain limits both on the S/Ct.‘s appellate jurisdiction and on the jurisdiction of the lower federal courts. First, Art. III, §2 states that in all cases not falling within the S/Ct.‘s original jurisdiction (but falling within the federal judicial power), the S/Ct. shall have ―appellate Jurisdiction both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.‖ Similarly, the lower federal courts do not even exist until Congress creates them; Art. III, §1, provides that fed. judicial power shall vest in the S/Ct. and ―in such inferior courts as the Congress may from time to time ordain and establish.‖ b. Ex Parte McCardle (1869): The S/Ct. has confirmed that Congress does indeed have at least some power to control the boundaries of the S/Ct.‘s appellate jurisdiction. Facts: McCardle was imprisoned by a military govt. imposed by Congress as part of post-Civil War Reconstruction for libel, disturbing the peace, inciting insurrection, disorder and violence and impeding reconstruction. He brought a habeas corpus action in federal circuit court, charging that the Reconstruction Acts under which he was imprisoned were unconstitutional. The circuit court rejected his claim, and he then appealed under an 1867 Congressional statute, authorizing the grant of habeas corpus by fed. circuit cts. and also authorizing appeal to the S/Ct. in such cases. After the S/Ct. heard arguments in the McCardle case, but before it handed down its decision, Congress passed a law repealing the portion of the 1867 Act which allowed appeals to the S/Ct. (Congress did this out of fear that the Ct. would hold in McCardle that the Reconstruction Acts were unconstitutional.) Thus C. purported to deprive the S/Ct. of its right to decide the McCardle case and any other habeas corpus case coming to it by appeal from the circuit courts. Holding: The S/Ct. upheld Congress‘ restriction of the Court‘s jurisdiction. The opinion noted that the appellate jurisdiction of the S/Ct. is conferred ―with such exceptions and under such regulations as Congress shall make,‖ (under the Exceptions Clause) The limitation enacted by Congress here was such an exception. Therefore, the Ct. concluded, it had no jurisdiction to decide the case. Note: Congress was not completely withdrawing the S/Ct.‘s right to hear habeas corpus cases, rather it was withdrawing that right only where the S/Ct. got the case by appeal from the lwer courts; under the jurisdictional statutes of the time, an original petition for habeas corpus could be commenced in the S/Ct. itself. c. Limits on Congressional Power: But Congress does not have unlimited power to tamper with the Supreme Court‘s appellate jurisdiction. Klein seems to stand for the proposition that ―[A]ny jurisdictional limitation must be neutral; that is, Congress may not decide the merits of a case under the guise of limiting jurisdiction. (1) Destruction of Supreme Ct.’s essential role: Another limitation on Congress‘ right to curtail the S/Ct.‘s appellate jurisdiction has been suggested by some commentators, most notably Prof. Hart. Hart argued that ―the exceptions must not be such as will destroy the essential role of the S/Ct. in the constitutional plan.‖ This argument is largely a structural one. The framers, it is claimed, intended the t. to perform an imp. function in the separation of powers scheme: to ensure that Congress, the President and the state are kept within constitutional limits. Under this theory, it would clearly be unconstitutional for Congress to provide that the S/Ct. shall have no appellate jurisdiction whatsoever – while Art. III allows Congress to ―regulate‖ and to make ―exceptions‖ to the 12 Supreme Ct‘s appellate jurisdiction, Congress may not destroy or eviscerate that jurisdiction. If Congress had the power to remove the Ct.‘s jurisdiction, it could insulate its won laws, or those of the states, from constitutional attack, effectively writing the Ct. out of the constitutional system. p.84 (2) *Separation of Powers: If plenary power to restrict jurisdiction existed, Congress could immunize state and federal laws from Supreme Ct. review. However, one could argue that the power to restrict jurisdiction is not such an intrusion at all, but is instead a means of making it tolerable to have judicial review in a system of representative govt. Under this view, the availability of the power to limit jurisdiction is an important check on the S.Ct., discouraging it from straying too far from ―popular will,‖ as expressed in legislative and executive enactments, and allowing the legislature to retain ultimate control over the Ct. (3) Due Process: Similarly, Congress may not limit the S/Ct.‘s jurisdiction) or that of the lower federal courts) in a way which would place upon a litigant an unconstitutional limitation. Thus the right to due process, to equal protection of the laws, to free speech, etc. must all be respected in a statute curtailing federal court jurisdiction. (4) Practical limitation: If Congress is motivated by hostility to a particular Ct. decision, then it might be defeating its own purpose by restricting the Ct‘s subsequent ability to hear similar cases – the adverse precedent will be left on the books. Furthermore, without S/Ct. jurisdiction in an area, the individual courts of appeals will be left to go their own ways, destroying national uniformity of the law in that area. (5) Caseloads and Lower Cts.: Eisenberg relies on the expansion of the caseload of the lower federal courts and their important role in protecting federal rights to argue: "The inability of the Supreme Court to do justice in every case within the Article III grant of jurisdiction has broad implications. It means that Congress cannot deny lower federal courts jurisdiction on the ground that Supreme Court review of state court judgments provides an adequate vindication for federal rights. [The] lower federal courts are thus indispensable if the judiciary is to be a co-equal branch and if the "judicial power of the United States" is to remain the power to protect rights guaranteed by the Constitution and its amendments. Abolition of the lower federal courts in no longer constitutionally permissible." 7. General Thoughts on Power of Reprisal: Does Congress, President have enough or too much authority over the court? Consider the following viewpts. a. ―In light of the various mechanisms of control, the countermajoritarian difficulty said to be produced by the existence of judicial review is much less severe than it appears at first glance. The various safeguards make it much less troublesome that interpretation is often or inevitably discretionary; there is usually a political corrective, even in the short run.‖ b. ―The mechanisms of control make the courts so dependent on the political branches that justifications for Marbury that rely on the political insulation of the judges ultimately break down. It turns out that the judges are not insulated at all. They are emphatically political actors.‖ c. ―The various mechanisms are insufficient to ally the countermajoritarian difficulty. It remains the case that the power of judicial review permits unelected judges to have what is in effect the final say on issues of public importance. The fact that the judges are subject to some control through other means does not respond to the basic problem.‖ E. ―Case or Controversy‖ Requirements and the Passive Virtues -Article III, Section 2 of the Constitution provides that ―[t]he Judicial Power shall extend‖ to enumerated ―cases‖ and ―controversies.‖ -Nothing really turns on the distinction between these two terms. Both deal with disputes of two or more parties. 1. Purposes of Case/Controversy Requirement a. Judicial Restraint. Issues will not be decided unless ―strictly necessary.‖ This reduces the friction between the branches produced by judicial review. This rationale is often tied to a concern with the countermajoritarian difficulty and separation of powers. The fact that the Court may not issue advisory opinions may assuage our worries about the possibility of judicial tyranny, and so may help to justify judicial review. b. Ensure that constitutional issues will be resolved only in the context of concrete disputes rather than in response to problems that may be hypothetical, abstract, or speculative. By allowing the judiciary to decide only on focused, specific conflicts, this ensures against the court being inadequately briefed and making unwise or unduly broad pronouncements which it will then have to revise when confronted with a specific, and real conflict. c. Promotes the ends of individual autonomy and self-determination by ensuring that constitutional decisions are rendered at the behest of those actually injured rather than at the behest of bystanders attempting to disrupt mutually advantageous accommodations or to impose their own views of public policy on govt. 2. Restraints Imposed by Case/Controversy Requirement a. Courts may not issue opinions based on abstract or hypothetical questions. This is known as the prohibition of ―advisory opinions‖ b. Courts may not decide ―political questions‖ c. Courts must have before them someone with ―standing,‖ or some kind of personal stake in the controversy d. Courts may not decide issues that are either ―premature‖ or ―moot.‖ 3. Does this imply Deference to the Legislature? This question is asked in the week three handout. 13 a. b. Koppelman quotes James Bradley Thayer who argued that the ―Case and Controversy‖ limitation of judicial power entailed an obligation of the judiciary to defer to the legislature. He states that ―[i]t is plain that where a power so momentous as this primary authority to interpret is given, the actual determinations of the body to whom it is entrusted are entitled to a corresponding respect; and this not on mere grounds of courtesy or conventional respect, but on very solid and significant grounds of policy and law.‖ However Marshall, in his opinion in Marbury gives far greater weight to the role of the judiciary. He states that ―It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. …So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. … If then, the courts are to regard the constitution, and the constitution is superior to any ordinary act of the legislature, the constitution, and not such ordinary act, must govern the case to which they both apply.‖ This view seems to give little deference to the legislature with regards to interpreting the constitution. 4. Standing – The Plaintiff must have a significant stake in the controversy to merit her being the one to litigate it. (Thus focusing on the party rather than the issue at stake.) a. Why Standing? (1) Standing derives from what we think the court is all about. The standing doctrine goes back to Marshall‘s claim in Marbury v. Madison that the courts sole job is to resolve individual‘s rights, not to monitor/police Congress (or anything else.) (2) The study of standing is the study of what kind of interests in the outcome of a controversy are sufficient. (What a party is entitled to. Entitlement changes over time.) (3) Standing has special relevance to constitutional issues because in constitutional litigation, where a plaintiff alleges that the govt. has acted in an unconstitutional manner, it will be much less clear that the govt. action has affected the plaintiff more directly than any other citizen, or that resolution of the dispute in her favor will be of special benefit to her. -Note: the court has never been willing to hold that the generalized interest of a citizen in having her govt. behave constitutionally is a sufficient ―stake‖ to permit the litigation. Therefore, a plaintiff must show that her interest in the controversy is somehow more direct and individualized than that of the citizenry at large. (4) The Court has stated several times that the standing requirement reflects the idea of separation of powers: if bystanders could obtain injunctions from federal court, this ―would have the federal courts as virtually continuing monitors of the wisdom and soundness of Executive action,‖ Allen, p. 95), and would ―permit Congress to transfer from the President to the courts the Chief Executive‘s most imp. constitutional duty, to ―take Care that the Laws be faithfully executed.‖ (Lujan p. 117). -Note: Koppleman asks if we find this persuasive. The standing req. means that even if there‘s a constitutional violation, there may be no redress in federal court. This conclusion strengthens Sager‘s claim (p. 56) that the constitution is judicially underenforced. b. 6 Standing Requirements ( Articulated in Valley Forge Christian College v. Americans United (1982) see pp. 9899 and below) -The first 3 are Constitutional. Congress can not waive these through a statute because they are found in Article III. See Lujans Also, Congress can not empower S/Ct. to go beyond these limits. (1) Plaintiff must allege that she has suffered or imminently will suffer INJURY. (Though what constitutes an ―injury‖ may be debatable. It‘s about what society considers to be a legally protected interest.) -Old view ―legal injury‖- One had to show that some law entitled one to relief; this showing could be made by identifying an injury to an interest that was protected at common law, or that entitled the plaintiff to redress under a relevant statute. -Modern view ―INJURY IN FACT‖ – first appeared in Association of Data Processing Services Organization v. Camp. Here the court rejected the ―legal injury‖ test for a broader understanding of the Standing Req. An ―injury in fact‖ is ―an invasion of a legally-protected interest which is (a) concrete and particularized , and (b) ‗actual or imminent‘, not ‗conjectural‘ or ‗hypothetical‘‖ (quote from Lujans) The court emphasized that the injury in fact req. is relatively lenient and could include a wide variety of economic, aesthetic, environmental and other harms. Still required that it be an injury to the party and not to the citizenry at large. -Federal taxpayer suits -The Court generally does not allow cases where the plaintiff sues as a federal taxpayer, claiming that his taxes are being spent in a way that violates the Constitution or a federal statute. ―No Taxpayer Standing‖ -There is one exception. The Court in Flast created a ―nexus‖ exception. If a plaintiff can prove that there is a certain type of ―nexus‖ between the taxpayer‘s status and the claim sought to be litigated, the plaintiff will have standing. 14 -The nexus test has two parts: (1) that the statute relies on Congress‘ power under the Taxing and Spending Clause of Article I, §8, rather than being merely ―an incidental expenditure of tax funds in the administration of an essentially regulatory [law];‖ and (2) that the challenged law violates ―specific constitutional limitations‖ imposed on that Taxing and Spending power, not simply that the statute is ―generally beyond the powers delegated to Congress by Article I, §8.‖ -Flast v. Cohen (1968) Facts: Case involved a taxpayer challenge to aid religious schools. Holding: Court held that a taxpayer may challenge the constitutionality of a federal taxing or spending program if there is a ―logical nexus‖ between the status [of taxpayers] and the claim.‖ (The nexus rule stated above comes from this case.) The Court found that this case passed the two-part test. (Under the ―Establishment Clause‖ people shouldn‘t have to make contributions to religious organizations that they don‘t believe in. Koppleman said that the Court really thinks that religion is an appropriate issue for it to police.) Note: Koppleman said that this exception is only for Establishment Clause cases. Note: While the Court has never overruled Flast, no case since this one has been able to come within the nexus exception. -Citizen Suits -The Court has never been willing to recognize standing on the part of individuals as citizens to object to unlawful or unconstitutional conduct because such cases involve Non-individuated harm, i.e. cases in which the harm complained of by the plaintiffs is no different from that suffered by very large numbers of people not before the court. -Suits not based on taxpayer or citizen status (usually involve more individualized types of injury.) -Outside of ―taxpayer‖ and ―citizen‖ suits we return to the 3 constitutional requirements for standing. Once again, the first requirement is that there must be an injury in fact. There are two elements to an injury in fact; a) the injury must be concrete and particularized , and b) the injury must be ‗actual or imminent‘, not ‗conjectural‘ or ‗hypothetical‘ a) The injury suffered must be concrete and ―individuated,‖ that is, it must not be precisely the same harm as is suffered by an extremely large group of others. Modern courts however, interpret this requirement quite liberally.. -As long as the litigant alleges the requisite ―concrete‖ and ―individuated‖ harm, standing will not be denied merely because there is a large number of people suffering the harm. -Conduct that denigrates a minority group. Members of a minority group will not from that membership alone derive standing to litigate against governmental conduct which denigrates that minority group. -Allen v. Wright (full case description below) – In Allen, the parents‘ interest in avoiding the ―stigmatizing injury‖ generally caused by racial discrimination was insufficient to establish standing – only those who were ―personally denied equal treatment‖ by the challenged discriminatory conduct had standing. -Members of a political body, such as a legislature, do not have standing to litigate against an action that they say takes away the political power of that body. -Raines v. Byrd (1997) –Holding: Members of Congress who unsuccessfully voted against a bill allowing line-item vetoes by the President were held not to have standing to litigate the constitutionality of the resulting statute, where their only claim was that the bill ―causes a type of institutional injury (the diminution of legislative power), which necessarily damages all Members of Congress and both Houses of Congress equally.‖ The Court held that the ―abstract dilution of institutional legislative power‖ is not sufficient injury to permit standing. Rationale: The plaintiff Congressmen were not alleging injury to themselves as individuals, merely injury to the position of Member of Congress. And the institutional injury they alleged was ―wholly abstract and widely dispersed.‖ Therefore the plaintiffs did not have a ―concrete and particularized‖ interest required of standing. Note: See handout for concurrences and dissents. b) The injury must be ―actual or imminent.‖ If the threatened harm is too far in the future, or too speculative, the ―actual or imminent‖ element will not be satisfied, and standing will not be found. -Lujan v. Defenders of Wildlife (1992) Facts: Plaintiffs challenged certain federal agency action that , they say, will have the effect of endangering certain species abroad. Defendant (The U.S. Govt.) argues that the plaintiffs do not have standing. The plaintiffs retort that they have in the past, and will again, travel abroad to the habitats of the potentially affected species, in order to observe and study those species. Holding: The court held that the plaintiffs have not shown the requisite actual or imminent harm, therefore they do not have standing. Justice Scalia holds that the plaintiffs cannot sue because they are not the objects of the government action. ―Such ‗someday‘ intentions – without any description of concrete plans, or indeed any specification of when the someday will be – do not support a finding of the ‗actual or imminent‘ injury that our cases require.‖ His language seems to imply an absolute constitutional barrier, but it‘s easily crossed: the plaintiffs could have bought plane 15 tickets, or Congress could have created a $1 bounty for anyone who successfully sued. The latter suggests that injury in fact isn‘t an Art. III req. at all. -See handout if you‘re interested in the concurrences and dissents ---In addition to the ―injury in fact‖ requirement, the action challenged must be the ―cause in fact‖ of the injury. This encompasses both the second and third standing requirements (listed below.) The challenged action must be a ―but for‖ cause of the injury (Requirement #2) and that the relief being sought, if granted, has a reasonable likelihood of redressing the injury. (Requirement #3) (2) Plaintiff must allege that the injury is fairly TRACEABLE TO THE DEFENDANT’S CONDUCT (the ―but for‖ cause). ―There must be a causal connection between the injury and the conduct complained of – the injury has to be ‗fairly…traceable to the challenged action of the defendant, and not…the result [of] the independent action of some third party not before the court.‖ Lujans -Allen v. Wright (1984) Facts: In Wright, parents of black public school pupils claimed that the IRS‘s grant of tax-exempt status to discriminatory private schools enabled these schools to offer cheaper tuition, thus inducing more parents of white students that would otherwise be the case to withdraw their children from the public schools to place them in these private schools. These withdrawals, in turn, deprived the black students of their constitutional right to attend integrated public schools, the parents claimed. Holding: The court held that the line of causation from the IRS‘s conduct to the continued segregation of the public schools was so attenuated that the latter was not ―fairly traceable‖ to the former. Reasoning: The court said that for standing the parents needed to show (1) that ―there were enough racially discriminatory private schools receiving tax exemptions in [plaintiffs‘] communities for withdrawal of those exemptions to make an appreciable difference in public-school integration;‖ (2) that a significant number of schools would, if threatened with loss of the tax exemption, change their policies; and (3) that a significant number of parents of children attending such schools would transfer their children to public school if the exemption were withdrawn. (3) The issue must be REDRESSABLE BY THE COURT. ―It must be ‗likely,‘ as opposed to merely ‗speculative,‘ that the injury will be ‗redressed by a favorable decision.‘‖ Lujans. - See Lujans for another ―redressable‖ exp. (pg. 115) Also Emmanual states that the plaintiffs in Warth v. Seldin lacked standing due to redressability (see pp.748-749). The casebook does not detail this case. -The last 3 are Prudential requirements. In theory, Congress could change these reqs. because they are issues that the S/Ct. has set for itself. This is not likely. (1) Plaintiff must assert own rights. Cases where the rights claimed to be violated are those of third parties not before the court are generally not allowed. (2) Courts won‘t adjudicate abstract questions or generalized grievances. (3) Plaintiff‘s complaint must be in legally protected zone of interest (protected or regulated by statutory scheme) c. Functions served by standing limitations (basically the same as the purposes of the case/controversy requirements.) i) They ensure that the courts will decide cases that are concrete rather than abstract or hypothetical. ii) They promote judicial restraint by limiting the occasions for judicial intervention into the political process. iii) They ensure that decisions will be made at the behest of those directly affected rather than on behalf of outsiders with a purely ideological interest in the controversy. iv) Standing doctrines are an important part of the separation of powers system. They ensure that courts will not hear cases simply because they want to; they require a concrete stake and thus give the executive and legislative branches a range of breathing space. Without standing, the Court would exceed its authority. Part of its legitimacy is its role of resolving only cases and controversies. d. Koppleman’s concerns re: standing i) The deep problem with standing doctrine is the difficulty of discerning what constitutes injury. As Easterbrook notes on 105, ―bystanders‖ may have vital interests in whether the police are doing their job or not. Because we all have real interests in living in a certain kind of world, the standing question tends to get tied up with the underlying question of the merits of the plaintiff‘s claim. ii) Often the requirements for standing seem to run into the merits of the underlying claim (which one is not supposed to discuss if there isn‘t standing.) There is no clear line or bright standard by which to judge each requirement. Critics argue that the doctrine‘s application is wholly dependent on how the court chooses to characterize the plaintiff‘s injury, and there is no principled constraint on the court‘s choice. iii) There is no principle that can determine what is a sufficient likelihood of solution to justify standing. Nor, even if the court knew how much likelihood was enough, would it have any basis for determining likelihood (other than guessing), since courts must make these decisions on the pleadings, before the trial, and therefore they have no evidence on which to base their determinations. iv) Causation seems hard to work out in principle. Note: Koppleman says that the standard answer to these criticisms is that standing is an Article III requirement, and courts just need to do the best they can. Is that a necessary reading of Article III? 16 5. Political Question Doctrine ―[T]here is hardly a political question in the United States that does not sooner or later turn into a judicial one.‖ Alexis de Toqueville a. Description -At issue is whether the S/Ct. ought to refuse to decide a constitutional question because it is not the Court‘s role to decide those kinds of Constitutional questions. -First evinced in Marbury v. Madison: Justice Marshall acknowledges that, ―where the heads of departments are the political or confidential agents of the executive, merely to execute the will of the President, or rather to act in cases in which the executive professes a constitutional or legal discretion, nothing can be more clear than that their acts are only politically examinable.‖ This acknowledgment created the category of cases involving ―political questions,‖ which are not subject to judicial review. -Determination – According to L. Tribe, the Court, in deciding whether an issue is a non-justiciable political question, must ―determine whether constitutional provisions which litigants would have judges enforce do in fact lend themselves to interpretation as guarantees of enforceable rights.‖ (The factors which the courts must consider in making this determination are a diverse blend of constitutional and discretionary considerations. In other words the black letter law is ―mushy‖ and one must look to cases to understand the law.) -The political question doctrine meshes the following two principles: (1) Separation of powers: As a constitutional matter, the Court will not decide matters which it concludes are committed by the Constitution to other branches of government for decision; and (2) Prudential concerns: various ―prudential‖ considerations, because of which the Court concludes that it is unwise, even if not strictly unconstitutional, for it to decide the case. b. Factors - The Court in Baker announced a series of factors, at least one of which, must be present in order to make an issue a non-justiciable political question. Each of these factors, the Baker Court argued, relates in some way to the separation of powers principle. Baker v. Carr (1962) Facts: Voters in TN brought a suit challenging a state statute, passed in 1901, that apportioned the members of the state General Assembly among the state‘s 95 counties. The plaintiffs claimed that there was not equal representation under that system (more people in cities than in the country, but have the same # of reps.) Plaintiffs sought an injunction prohibiting elections under that system and requiring either a reapportionment in accordance with the # of voters under federal census figures or ―atlarge‖ elections. Holding: The constitutionality of legislative apportionment schemes is not a political question. (This paved the way for the Court‘s ‗one person, one vote‘ ruling.) The Court rejects the claim that the issue is a nonjusticiable political question under the republican from of government (or ―guaranty‖) clause (Art. IV, §4). Note: Koppleman asks us to contrast the factors set out in Baker with Marshall in Marbury, who thought that political questions were those about which the Constitution simply had nothing to say. (Bright line test…in Baker it‘s not clear where the limits are.) (1) Commitment to another branch: A ―textually demonstrable constitutional commitment of the issue to a coordinate political dept.‖ (i.e., to Congress or to the President); Examples include: -Regulating militia (Congress) -Excluding representatives – the most famous case discussing the ―commitment to other branches‖ strand was on in which the Court concluded that at most only a limited commitment of the decision-making authority in question of another branch (Congress) was involved. -Foreign Affairs – (Treaties – Congress) - Note: Emmanuel states that this case is an exp. of the Court‘s view that the need for the federal govt. to speak with a single, unified voice is occasionally a factor in the conclusion that an issue presents a political question. This is more likely to happen in the area of foreign affairs than in the domestic area. -Impeachment - A strong argument can be made that the House of Reps.‘ Decision whether to impeach the President or other federal officers, and the Senate‘s decision whether to convict, are not judicially reviewable because these decisions are committed to those bodies by the Constitution. The court has never had to decide this issue, but a recent case on a different aspect of impeachment law strongly indicates that most controversies relating to impeachment will be found to fall within the ―committed to other branches‖ category and thus be non-justiciable political questions. -Amendment of Constitution – The process by which constitutional amendments are adopted is probably also committed to Congress for final determination, and therefore presents a non-justiciable political question. (2) Lack of standards: A ―lack of judicially discoverable and manageable standards‖ by which to assess the claim of unconstitutionality; (Casebook says that this is the primary ground on which to find a political question. In order to say whether there is a political question, the Court has to examine both the relevant constitutional provision and the plaintiff‘s legal claim.) Examples include: 17 c. d. e. f. -Time for ratifying amendments -Guarantee of republican form of govt. – The Court has consistently held that claims based upon Art. IV, §4 (the so called ―Guaranty Clause, which provides that ―[t]he United States shall guarantee to every State in this Union a Republican Form of Government‖) are non-justiciable political questions. -(Possibly) War Power disputes (this is mentioned in Emmanuel pg. 765) (3) Unsuitable policy determination: The ―impossibility of deciding [the issue] without an initial policy determination of a kind clearly for non-judicial discretion‖; (The desire to avoid deciding major controversial issues, or to avoid embarking on a path which might have damaging practical consequences, has also been a factor in some of the Court‘s conclusions that a case presented a political question.) (4) Lack of respect for other branches: The ―impossibility of a court‘s undertaking independent resolution without expressing lack of the respect due co-ordinate branches of govt.‖; (5) Political decision already made: An ―unusual need for unquestioning adherence to a political decision already made‖; and (6) Multiple pronouncements: The potential for ―embarrassment form multifarious pronouncements by various departments on one question.‖ Reapportionment – Until 1962, the Court consistently refused to adjudicated claims concerning legislative apportionment, on the grounds that they presented political questions. See e.g., Colegrove v. Green (1946), in which J. Frankfurter‘s plurality opinion declared that ―[i]t is hostile to a democratic system to involve the judiciary in the politics of the people. … [C]ourts ought not to enter this political thicket.‖ But in Baker v. Carr (1962) the Court reversed its course. -Baker v. Carr (also mentioned above) The challenge in Baker was to the apportionment of the Tennessee Assembly, which had not been reapportioned in 60 years, despite a state constitutional requirement that representation be on the basis of population, and despite significant changes in population over the years. The Court concluded that the claim, which was that the malapportionment violated the Equal Protection Clause, did not present a political question. Rationale: The Court reasoned that not all cases involving ―politics‖ present nonjusticiable ―political questions.‖ The equal protection claim did not involve any of the factors the Court listed as being present in true political question cases. (Factors listed above) For instance, the issue had not been ―textually… commit[ted] by the Constitution to another branch of govt.; nor were judicially discoverable and manageable standards for resolving it‖ lacking. Note: The Court denied that this case in reality involved a Guaranty Clause claim (which the Court conceded, would not be justiciable). What makes Guaranty Clause claims non-justiciable political questions is that they involve the relations between the judiciary and the other branches of the federal govt., not the relations between the judiciary and the states (the relation at issue here.) Gerrymandering – The Court has held that claims of unconstitutional gerrymandering are justiciable. Miscellaneous Cases – In many cases, the Court has reached the merits of a constitutional controversy notwithstanding the implications for foreign affairs, the high stakes, or the fact of interbranch disagreement. -INS v. Chada (1983) Court rejected a political question challenge to its power to consider the legality of the ―legislative veto‖ – a device by which one House of Congress might ―veto‖ executive action by a majority vote. The Court observed that the controversy ―may, in a sense, by termed ‗political.‘ But the presence of constitutional issues with significant political overtones does not automatically invoke the political question doctrine. Resolution of litigation challenging the constitutional authority of one of the three branches cannot be evaded by courts because the issues have political implications in the sense urged by Congress.‖ -Dames & Moore v. Regan (1981) – Reaching merits of dispute over legality of President Carter‘s executive agreement for the release of U.S. hostages in Iran. -U.S. v. Nixon (1974) – Ordering President Nixon to turn over Watergate tapes. -Youngstown Sheet & Tube Co. v. Sawyer (1952) – Invalidating President Truman‘s seizure of the steel mills despite President‘s claim that national emergency required seizure. -U.S. v. Curtiss-Wright Export Corp. (1936) – Reaching merits of congressional delegation of power to President to prohibit sale of arms to countries engaged in armed conflict. Why is there a Political Question Doctrine? There are four principal justifications, but each of them is vulnerable to criticism. (These criticisms are drawn from Martin H. Redish, ―Judicial Review and the ‗Political Question.‘‖) (1) Judicial review is undemocratic. Maybe this is right, but it doesn‘t distinguish political questions from any other questions that might be presented for judicial review. In a constitutional regime, a majority may not be permitted to do everything it want to do. (2) It is hard to resolve some questions in a principled way. Again, there are some quite difficult questions, such as the meaning of ―due process: or ―equal protection,‖ that the Court has little reluctance to take on if it thinks the job worth doing. Some questions are matters of discretion, but these are clearly identified in the text. When the Constitution‘s framers intended that one of the political branches has discretion to act without principles, the document effectively says so, by vesting decision making power in those branches without 18 simultaneously indicating how that power must be exercised. But if the document provides, for exp., that it is Congress‘ province to declare war, on may ask why it is appropriate for the courts, interpreting and enforcing the document, to overrule the Constitution‘s allocation of power by concluding that the conduct of military affairs, even to the point of waging war, must lie in the executive‘s uncontrolled discretion. (3) Judges aren’t politicians, and can’t understand the broader political situation in which their decisions operate, so they should defer to those who can assess the practical consequences of their decisions. This, once more, proves too much. ―[I]f the constitutional limitations on majoritarian power are to mean anything, at some point the judiciary must be able to question the political branches‘ assertion of factual necessity.‖ (4) Court orders might be ignored by the political branches. But this is not a real danger in many of the political question cases, and even when it is, it is not clear that the judiciary enhances its authority by slinking away before the confrontation has a chance to occur. 6. Questions of Timing – Ripeness and Mootness (Note: According to my notes, we did not even discuss this in class!) a. Ripeness – The doctrine of ripeness bars courts from deciding cases that are premature – too speculative or remote to warrant judicial intervention. A case is not ripe when it is brought too soon. -Classic exp. – A case brought to challenge a criminal statute before a prosecution is initiated, in circumstances in which the mere existence of the statute is not alleged to produce actual harm. -Uncertain enforcement of criminal statute: Ripeness problems also may arise where the plaintiff alleges that he has violated a statute whose constitutionality he attacks, but it is not clear that the statute is generally enforced, or that it will be enforced in this particular case. -Poe v. Ullman (1961) Facts: Two married couples and a physician challenged Connecticut‘s anticontraception law. Holding: A majority in the Court refused to hear the case on appeal, on the grounds that the statute had been on the books for 80 years with only one reported prosecution and that there was thus no the requisite ―clear‖ threat of prosecution. -Requirement of specific threatened harm: For a case to be ripe, it is not necessary that the litigant have already suffered harm; it is sufficient that there is a reasonable probability of harm. However, the anticipated harm must be reasonably specific. -Note: The ban on adjudication of unripe matters is closely related to the ban on advisory opinions. Both doctrines reflect the view, based partly on the constitutional requirement of a ―case or controversy,‖ that the federal courts must not render opinions except in situations where there is a well-defined, live controversy, with specific facts, and with either an allegation of past injury or a likelihood of future injury. b. Mootness – The doctrine of mootness prevents courts from hearing cases when events subsequent to the institution of the lawsuit have deprived the plaintiff of a stake in the action. A case is moot when it is brought too late. -Classic exp. – A case brought by a plaintiff challenging a statue prohibiting her from obtaining employment where the plaintiff has been given the job before the appeal. -Exception to Mootness – ―Capable of repetition, yet evading review.‖ – An issue will not be treated as moot if is ―capable of repetition, yet evading review.‖ Southern Pacific Terminal Co. v. ICC (1911). -Roe v. Wade (1973): Roe herself was no longer pregnant by the time the case came to the S/Ct. The Court nonetheless held that it was not moot, relying on this exception. If the termination of pregnancy, the Court said, ―makes a case moot, pregnancy litigation seldom will survive much beyond the trial stage, and appellate review will be effectively denied.‖ Jurisdiction of the Supreme Court – there are two principal routes to the S/Ct. 1) Through an appeal (very rare). It is generally said that the appellate jurisdiction is ―mandatory.‖ If a party who as lost below seeks review, the Court must hear any case that falls within its appellate jurisdiction. 2) Through certiorari. Certiorari jurisdiction is discretionary. Litigants seeking certiorari must file a petition for cert., setting out the reasons the case deserves plenary consideration. Note: ―Rule of Four‖: if four of nine members of the Court vote to grant certiorari, then it will be granted. Justices sometimes dissent, in writing, from the denial of certiorari when they feel strongly that the lower court erred and that the Court ought to intervene. a) Reasons to grant certiorari. (Rule 17 of the Supreme Court rules lists the following considerations…) - ―When a federal court of appeals has rendered a decision in conflict with the decision of another federal court of appeals on the same matter; or has decided a federal question in a way in conflict with a state court of last resort; or has so far departed from the accepted and usual course of judicial proceedings [as] to call for an exercise of this Court‘s power of supervision. - When a state court of last resort has decided a federal question in a way in conflict with the decision of another state court of last resort or of a federal court of appeals. 19 When a state court or a federal court of appeals has decided an important question of federal law which has not been, but should be, settled by this Court, or has decided a federal question in way in conflict with applicable decisions of this Court.‖ b) Reasons to deny certiorari (must be for some reason other than its agreement with the decision below. Note: The general rule is that a denial of cert. does not have any precedential value. -The unimportance of the issue -The unusual character of the particular facts -The desire to see the issue ―percolate‖ in the lower courts, the controversial character of the problem -The controversial character of the problem -The wish to allow the political process time to consider the problem before an authoritative resolution is obtained. Note: The Court does not have jurisdiction under the relevant statutes to hear a case when the decision below rests on ―adequate and independent state ground‖ – that is, when an issue of state law was actually decided that is sufficient to support the outcome. III. FEDERALISM (VERTICAL DISTRIBUTION OF GOVERNMENTAL POWER) A. A Government of Enumerated Powers (Why does federalism matter?) 1. Definition of Federalism: The U.S. has a federalist system. This means that the national government and the governments of each state coexist. The fundamental attribute of federal power under the U.S. Constitution is that the federal government is one of limited, enumerated powers. That is, the three branches of the federal government can only assert those powers specifically granted by the U.S. Constitution. 2. Federal Government Action: For an action by the federal government to be valid, it must meet two distinct requirements: a. It must fall within one of the powers specifically enumerated within the Constitution as being given to the federal government. b. It must not violate any particular limitation on federal power given in the Constitution (e.g. the limitations contained in the Bill of Rights.) 3. Specific Federal Powers (Enumerated Powers): The principal grant of specific federal powers is in Art. I, §8. That section contains 18 clauses which grant power to Congress. Among the most important powers given to the Congress include: a. lay and collect taxes b. provide for the defense of the country c. borrow money on the credit of the U.S. d. regulate commerce with foreign nations; and among the several states e. regulate immigration and bankruptcy f. establish post offices g. control the issuance of patents and copyrights h. declare war i. ―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….‖ Note: One exception has been recognized to the general rule that only enumerated powers may be exercised by the federal government. Nothing in the Constitution explicitly gives the federal govt. the power to regulate foreign affairs. The federal govt.‘s right to conduct foreign affairs is generally considered to be implied by the nature of the federal union, and by the impracticability of having each of the several states conduct its own foreign policy. 4. No Federal Police Power: There is no general federal police power, i.e. no right of the federal govt. to regulate for the health, safety or general welfare of the citizenry. Instead, each act of federal legislation or regulation must come within one of the very specific, enumerated powers (e.g. the Commerce Clause, the power to tax and spend, etc.). 5. Why Enumerated Powers? (Straight from 2/3/98 handout) -At Philadelphia, the Convention resolved that Congress could ―legislate in all cases to which the separate States are incompetent, or in which the harmony of the United States may be interrupted by the exercise of individual Legislation.‖ This was then translated by the Committee of detail into the present Art. I, §8, which was accepted by the Convention without discussion. -Is the Committee‘s revision an improvement? Would a functional definition of federal powers have been better than an enumeration of those powers? -How much of a limit is the enumeration of powers? Is Hamilton right, in Federalist 84 (p. 149), that separation of powers is such a reliable limit that a bill of rights is unnecessary and potentially pernicious (because it implies powers beyond those enumerated)? 6. Comparison with State Power: The limited-power of the federal government should be contrasted with the nature of state power. The power of state governments might be called ―inherent‖ – a state government, at least as far as the federal Constitution is concerned, holds a general ―police power‖, i.e., the power to protect the health, safety or general welfare of state residents. An action by a state government is valid under federal law unless it violates some 20 - specific limitation imposed by the U.S. Constitution. (Whereas a federal action must fall within one of the enumerated powers listed in the Constitution.) 7. Why Reserve Powers to the States? (pp. 150-54) a. Promotes efficiency – Given the wide variations in the circumstances obtaining in different areas of the country, it is likely that different solutions to specific problems will be appropriate in different areas. b. Promotes individual choice – A national government can enforce the values shared by a majority in the nation as a whole, even against those who are a majority in one or a few states. In contrast, disabling the national govt. from acting on some subjects while allowing states to act in varying ways allows people to move from one area to another in order to select the kind of government policies they prefer. See also James Madison, Federalist No. 46 pg. 150 Note: This view of federalism may overestimate the ease with which voters may relocate. c. Encourages experimentation – ―It is one of the happy incidents of the federal system that a single courageous State may, if is citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.‖ Justice Brandeis, in his dissent in New State Ice Co. v. Leibman. For a list of examples of recent innovations see pg. 151. d. Promotes democracy – State and local governments provide the opportunity for people to participate directly in the activities of governments that have significant effects on their lives. e. Prevents tyranny – ―[While] the states are more easily captured by relatively undifferentiated majoritarian interests intent on suppressing small minorities, the federal government may be a more likely subject of capture by a set of special minoritarian interests, precisely because the majority interest of the national constituency is so large, diffuse, and enormously difficult to organize. … The most influential protection that the states offer against tyranny is the protection against the special interest of the govt. itself. … [It] is precisely because the states are governmental bodies that break the national authorities‘ monopoly on coercion that they constitute the fundamental bastion against a successful conversion of the federal govt into a vehicle of the worst kind of oppression.‖ Rapacyznski, ―From Sovereignty to Process: The Jurisprudence of Federalism after Garcia,‖ 1985 Sup. Ct. Rev. (pg. 152) 8. If decentralization is such a great idea, then, why unite into federations at all? a. Reduces the threat of internal war b. Provides common defense, solves other collective action problems, as the Art. of Confed. conspicuously failed to do c. Facilitates activities in which there are economies of scale: defense, research programs, highway system, redistribution of wealth d. Promotes free flow of commerce (as, again, the Art. of Confed. failed to do.) e. Regulates externalities that one state may impose on others f. Protects individual human rights. (Note: 14th Am. is most intrusive to states rights.) B. Congress’s Power to Regulate Interstate Commerce 1. Federalism and Judicial Review: The Latest Word United States v. Lopez (1995) Facts: This case involved a federal statute entitled the ―Gun-Free School Zones Act of 1990‖, in which Congress made it a federal crime ―for any individual knowingly to possess a firearm at a place that the individual knows, or has reasonable cause to believe, is a school zone.‖ Holding: The Court struck down the statute. (This was the first time in 60 years that the Court invalidated a federal statute on the ground that it was beyond Congress‘ Commerce power.) After Lopez, we have 3 categories of commerce power (See pg. 158). 1) Congress can regulate use of channels of interstate commerce. Thus Congress can regulate in a way that is reasonably related to highways, waterways and air traffic. Presumably Congress can do so even though the activity in question in the particular case is quite intrastate. 2) Congress can regulate and protect instrumentalities of interstate commerce. This category refers to people, machines, and other ―things‖ used in carrying out commerce. So, for instance, presumably Congress could say that every truck must have a specific safety device, even if the particular truck in question was made and used exclusively within a single state. 3) Congress can regulate activities having a substantial relation to interstate commerce. -The big question is how broad Congressional power is under the third category. What does it mean to ―substantially affect‖ interstate commerce? -The court‘s opinion with regard to ―substantial relation‖ had two distinctive parts: 1) ―Substantial‖ effect required on Commerce: The Court held that it is not enough that the activity being regulated merely ―affects‖ interstate commerce, rather the activity must ―substantially affect‖ interstate commerce. (It must have real bite.) 2) Requisite effect not present: The Court concluded that the possession of guns in schools had not been demonstrated to ―substantially affect‖ commerce. It notes three factors that the Court relied on: a) activity involved was noncommercial, b) was traditionally subject to state regulation and c) Congress had made no findings on the regulated activity‘s impact on the national economy. a) Not a commercial activity: The majority seemed to think that it was important that the particular activity being regulated – possession of guns in schools – was not itself a ―commercial‖ activity. The majority distinguished Wickard v. Filburn (which it called ―perhaps the most far reaching example of Commerce 21 Clause authority over intrastate activity…) from the activity at issue here, saying that Wickard ―involved econ. activity in a way that the possession of a gun in a school zone does not.‖ Also, unlike the wheatgrowing regulation in Wickard, the regulation here was not part of a ―larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intra-state activity were regulated.‖ -Apparent Black Letter Law (from Emmanuel pg. 43) -If the activity itself is arguably ―commercial,‖ then it doesn‘t seem to matter whether the particular instance of the activity directly affects interstate commerce, as long as the instance is part of a general class of activities that, collectively, substantially affect interstate commerce. But if the activity itself is not ―commercial,‖ then there will apparently have to be a pretty obvious connection between the activity and interstate commerce. b) Traditionally subject to state regulation. (Parade of Horribles) – The majority went on to describe some of the types of federal regulation that would fall within the Commerce power, if the govt.‘s approach were accepted: ―Congress could mandate a federal curriculum for local elementary and secondary schools because what is taught in local schools has a significant ‗effect on classroom learning,‘ and that, in turn, has a substantial effect on interstate commerce.‖ Similarly, ―Congress could … look at child rearing as ‗fall[ing] on the commercial side of the line‘, because it provides a ‗valuable service – namely, to equip [children] with the skills they need to survive in … the workplace.‘‖ Such results would make the Commerce power limitless. -Apparent Black Letter Law -If what‘s being regulated is an activity the regulation of which has traditionally been the domain of the states, and as to which the states have expertise, the Court is less likely to find that Congress is acting within its Commerce power. Thus education, family law and general criminal law are areas where the Court is likely to be especially suspicious of congressional ―interference.‖ However, the fact that the activity has traditionally fallen within the states‘ domain can be outweighed by a showing that a national solution is needed. This would be so, for instance, where one state‘s choice heavily affects other states (like the environment.) c) Doesn’t affect the national economy: The Federal Govt. argued that the possession of a firearm in a school may result in violent crime and violent crime affects the functioning of the national economy in several ways such as the way in which the costs of crime are spread across state lines due to the interstate nature of the insurance market, the reduction of individuals‘ willingness to travel to areas of the country that they believe are unsafe and violent crime in schools reduces the schools‘ ability to educate their students, who thus become less economically-productive. The Court rejected this argument because it proved too much. Under the government‘s approach, ―[I]t is difficult to perceive any limitation on federal power, even in areas such as criminal law enforcement or education where States historically have been sovereign. Thus, if we were to accept the Government‘s arguments, we are hard-pressed to posit any activity that Congress is without power to regulate.‖ -Apparent Black Letter Law -The Court won’t give much deference (as it used to) to the fact that Congress believed that the activity has the requisite ―substantial effect‖ on interstate commerce. The Court will basically decide this issue for itself, from scratch. It certainly will no longer be enough that Congress had a ―rational basis‖ (as argued for by Breyer, see dissents below) for believing that the requisite effect existed – the effect must in fact exist to the Court‘s own independent satisfaction. Note: According to Koppleman, it‘s hard to nail down a black letter rule, because of uncertainty regarding how much weight is placed on each of the three categories listed above. -Summary: In summary, the majority said, ―To uphold the Government‘s contentions here, we would have to pile inference upon inference in a manner that would bid fair to convert congressional authority under the Commerce Clause to general police power of the sort retained by the States.‖ Prior cases may have extended the Commerce power to great lengths, ―but we decline here to proceed any further.‖ To uphold the act here ―would require us to conclude … that there never will be a distinction between what is truly national and what is truly local….‖ -Concurrences -Kennedy’s concurrence (joined by O‘Connor) doesn‘t clarify the rule. He doesn‘t want to compromise ―the stability of our Commerce Clause jurisprudence as it has evolved to this point.‖ (invokes stare decisis) (164) In other words, he wants to remain deferential to C., but he‘s particularly troubled by this law because it ―seeks to intrude upon an area of traditional state concern.‖ (166) He rejects any bright line rule; he‘s keeping his options open. -Thomas, concurring, thinks that the ―substantial relation‖ test allows Congress too much power. He wants to revive the manufacturing-commerce distinction, and thus go much further than the majority was willing to go. -Stevens simply invokes the traditionally deferential approach to the commerce clause. -Dissent -Souter thinks that the Court‘s decision, and any rule for judicial review of the commerce power that has teeth in it, is just like Lochner (Ohhh, no not just like Lochner!) and is therefore a bad idea. (Note: Lochner was about 22 14th Am. limitations of the states’ power to regulate the economy, while the concern in Lopez is about Commerce Clause limitations on Congress’ power to regulate the economy. Both bodies of law were revolutionized, in the direction of great judicial deference, during the New Deal, but they‘re different constraints and they apply to different governments.) Souter thinks that nothing in the commerce clause compels judicial activism, and the Court has no special competence in this area. -Breyer also emphasizes the lack of judicial competence, and tries to show that there is a substantial relation between this law and interstate commerce. The story he tells involves some fairly attenuated connections between guns and commerce, but his ―rational basis‖ test doesn‘t demand much of a connection. (Emmanuel says that for Breyer the test was ―whether Congress could have had a rational basis for finding a significant (or substantial) connection between gun-related school violence and interstate commerce.‖ For the majority the question was whether there actually was a substantial connection, not merely whether Congress could rationally have believed that there was. With the issue formulated this way, Breyer had no trouble concluding that the answer was yes. Note: Emmanuel has a bit more to say on this dissent on pg. 40 if anyone is interested.) -Significance of Lopez (Where do we go from here? and Is there a workable rule of law to be derived from the limitations of the commerce power? Several views follow.) 1) Steven Calabresi writes that we don‘t need ―a whole grand and unified theory of the commerce power‖ in order to decide this case. ―It is enough to say that Lopez is not remotely a close case and that we will worry about the close ones when they come up and when a new body of Commerce Clause case law … has been assembled.‖ 2) Lawrence Lessig thinks that there is no good way in principle to sustain the lines that the Court has drawn, most especially the line between commercial and noncommercial activity. As the line is drawn in the opinion, the examples of what Congress cannot reach – family law, school curricula – are all object of local concern. And we have already seen the fact of the ―local concern‖ test in National League of Cities v. Usery (See casebook, 266-68), in which the Court attempted to protect from federal regulation, on federalism grounds, state government actions that involved matters that were traditionally of local concern. Lower courts fell into hopeless confusion attempting to define the boundaries of the protected category, and eventually the case was overruled. Thus, Lessig thinks that the tools we have been given in Lopez are sure to fail, even though the aim of protecting federalism is a worthy one. 2. The Evolution of Commerce Clause Doctrine: The Lessons (?) of History (Pre-New Deal) Note: K. mentioned that on a past exam he asked students to describe different understandings of the Commerce Clause (and Congress’ power with regards to the C/C) over time. For some reason the casebook starts with Lopez which is the most recent case, and then goes back over the history. a. The Commerce clause could be limited in two ways; internal limits or external limits. The distinction between the two, though not always state in those terms, pervades discussions of Congress‘ power. 1) ―External‖ limits: The clause might grant plenary power to Congress by allowing it to do anything reasonably regarded as regulation of anything reasonably regarded as interstate or foreign commerce, but other provisions of the Constitution, such as the first amendment, might bar the exercise of a power concededly granted. See J. Marshall‘s quote from McCulloch on pg. 190. It is usually conceded that the courts can enforce external limits such as the first amendment. 2) ―Internal‖ limits: The clause might define a specific subject matter, such that Congress would lack power (a) to do anything other than regulate (b) anything other than interstate and foreign commerce. These limits are imposed to protect the values of federalism. Judicial enforcement of federalism based limits is more controversial that external limits, in part because they seem to be internal limits. b. Groundwork: The first major case construing the Commerce Clause was a Marshall opinion in Gibbons. Although the Gibbons opinion contained some discussion of the Commerce Clause as a limitation upon state powers, its principal interest is for its broad-sweeping view of congressional power under that clause. -Gibbons v.Ogden (1824) Facts: Ogden acquired, by grant from the NY legislature, monopoly rights to operate steamboats between NY and NJ. Gibbons began operating steamboats between NY and NJ, in violation of Ogden‘s monopoly; Gibbons‘ boats were licensed, however, under a federal statute. Ogden obtained an injunction in a NY court ordering Gibbons to stop operating his boats in NY waters. Holding: When the case came to the S/Ct. J. Marshall found the injunction against Gibbons invalid, on the ground that it was based upon a monopoly that conflicted with a valid federal statute, and thus violated the Supremacy Clause. Justice Marshall found three ―internal‖ limits in the commerce clause. a) Broad view of commerce power: In reaching this conclusion, Marshall took a broad view of Congress‘ powers under the Commerce Clause. Under that clause, he said (in what is arguably all dictum) Congress could legislate with respect to all ―commerce which concerns more States than one.‖ ―Commerce,‖ he concluded, included not only buying and selling, but all ―commercial intercourse.‖ b) May affect intrastate matters: He also stated that the congressional power to regulate interstate commerce included the ability to affect matters occurring within a state, so long as the activity had some commercial 23 c. connection with another state. He says that the clause does not extend to ―that commerce which is completely internal [and] which does not [affect] other states.‖ c) May be used to ―utmost extent‖: Marshall stated that no area of interstate commerce is reserved for state control. That is, the mere existence of the states does not by itself act as a limit upon Congress‘ power to govern commercial matters that affect more than one state: ―This power, like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the constitution.‖ Koppleman says: The relevant statute is clearly constitutional, though it‘s not clear that it‘s preemptive. Again, Marshall is probably stretching a federal statute in order to get it to conflict with something else. The question of Congressional power is hinted at in Gibbons, but not really presented until late 19th Century. The Casebook (194) notes that the slavery controversy limited the possibilities for federal law; it was dangerous to suggest that Congress could prohibit the interstate shipment of slaves. The Civil War and its aftermath inaugurated an era in which Congress began to act more vigorously. The Interstate Commerce Act of 1887 was the first major piece of legislation. It created the ICC, which could penalize railroads for unjust charges. Second was the Sherman Antitrust Act of 1890. Both illustrate the opening of a new era. 1880 – 1937: Between 1880 and 1937, the S/Ct. reviewed (and frequently struck down) two different types of congressional legislation premised upon the commerce power: (1) economic regulatory laws and (2) ―police power‖ regulations, i.e., those directed at moral or general welfare issues. Note: Casebook (195) mentions that these commerce clause cases invoked two general approaches taken by the court: a formal approach and a realist approach. Under the formalist approach, the Court examined the statute and the regulated activity to determine whether certain objective criteria are satisfied. Under the realist approach, the Court attempted to determine the actual economic impact of the regulation or the actual motivation of Congress. Both were used to uphold and invalidate legislation. (1) Economic Regulation – The S/Ct.‘s review of economic regulatory laws from 1880 to 1937 was characterized by what has been called a ―dual federalism‖ approach. That is, the Court felt that there were areas of economic life which, under the 10th Am., were to be left to state regulation, and other areas of activity which were properly the preserve of the federal govt. These two areas were viewed as being essentially non-overlapping – either an area was proper for state regulation, or for congressional regulation, but not for both. a) ―Manufacture‖ vs. ―Commerce‖: This duality was visible here. United States v. E.C. Knight (1895) (195) Facts: The fed. Govt. sued under the Sherman Antitrust Act to force a major sugar refiner to divest itself of other refiners that it had recently acquired. Holding: The Court held that Congress could not, under the Commerce Clause, forbid a monopoly in ―manufacture.‖ Sugar Trust, which controls 98% of the sugar refining market, is not subject to the Sherman Antitrust Act of 1890, because the Trust is not a monopoly of commerce. The fact that the refined sugar was eventually sold ―in commerce‖ was irrelevant, since the manufacturing operation‘s relation to commerce was only ―incidental and indirect.‖ Intent also seems to have something to do with the result, though it‘s hard to say just what. Harlan thought that if there were any subject that the states couldn‘t competently regulate, the federal government had to have the power to do it. What does that suggestion do to the idea of enumerated powers? Rationale: The protection of states‘ rights to regulate ―local activities.‖ The majority opinion contended that if the federal commerce power extended to a ―all contracts and combinations in manufacture, agriculture, mining and other productive industries, whose ultimate result may affect external commerce, comparatively little of business operations and affairs would be left for state control.‖ b) ―Substantial economic effects‖ test: But other cases not long after Knight, without repudiating that case, followed an approach that was less hostile to congressional power. In these cases, congressional regulation was found to fall within the commerce power so long as the activities being regulated had a ―substantial econ. effect‖ upon interstate commerce. That is, these cases did not focus on whether the logical relationship between the activity and commerce was ―direct or ―indirect,‖ but rather, looked at whether the practical econ. effects of the activity upon interstate commerce were quantitatively substantial. Houston, East & West Texas Railway v. U.S. (The Shreveport Rate Cases) (1914) Facts: The Interstate Commerce Commission, after setting rates for transport of goods between Shreveport, LA and various points in TX, sought to prevent railroads from setting rates for hauls totally within TX which were less per mile than the Texas-to-Shreveport rates. The Commission‘s theory was that Shreveport competed with certain TX cities for shipments from other parts of TX, and that the lower TX intrastate rates were unfairly discriminating against the TX-to-Shreveport interstate traffic. The railroads countered that it was beyond Congress‘ power to control intrastate rates of an interstate carrier. Holding: The Court upheld the ICC‘s right to regulate intrastate charges, at least of interstate carriers. The opinion held that the commerce power necessarily included the right to regulate ―all matters have such a close and substantial relation to interstate traffic that control is essential or appropriate to the security of that traffic. …‖ The fact that the activity being regulated was intrastate did not place it beyond congressional control, since the ultimate object was protection of interstate commerce. 24 d. Note: Koppleman says that it makes a difference that this is a railroad case. ―Current of commerce‖ theory: Apart from the ―substantial economic effects‖ rationale for sustaining congressional action, Justice Holmes developed the ―current of commerce‖ rationale. Under this theory, an activity could be regulated under the commerce power not because it had an effect on commerce, but rather, because the activity itself could be viewed as being ―in‖ commerce or as being part of the ―current‖ of commerce. Note: Emmanuel states that this theory was first espoused by Justice Holmes in Swift & Co. v. U.S. (1905). This case is not in the case book. Instead the Casebook gives us Stafford v. Wallace as an exp. of this theory. Stafford v. Wallace (1922) Justice Taft‘s opinion, relying on the metaphor of a ―stream of commerce‖ lets Congress regulate the ―throat through which the current flows.‖ (2) ―Police Power‖ Regulations and the commerce-prohibiting technique: In the ―economic regulation‖ cases, Congress attempted to regulate local activities directly (e.g., a sugar refinery monopoly in Knight). But Congress also developed a separate technique; instead of regulating intrastate activities directly, Congress used the techniques of prohibiting interstate transport of certain items or persons. This ―commerce-prohibiting‖ technique was used not only for pure economic regulatory matters, but also for ―police power‖ or ―moral‖ regulation. During the first two decades of the twentieth century, the Court was substantially more sympathetic to this ―commerce-prohibiting/ police power‖ technique than to direct regulations of intrastate affairs. (a) The Lottery Case: For instance, when Congress passed the Federal Lottery Act, which prohibited the interstate shipment of lottery tickets, the Court upheld the statute. Champion v. Ames (The Lottery Case) (199) (1903) The majority opinion began with the assumption that lotteries were clearly an ―evil‖ which it was desirable for Congress to regulate; since Congress regulated only the interstate shipment of these evil articles, it could not be said to be interfering with intrastate matters reserved for state control. Thus, the Court lets Congress prohibit the shipment of immoral objects in interstate commerce. Harlan thinks that prohibition is a subset of regulation. Is promotion of morality an appropriate goal of the federal government? Of state governments? If the statute‘s purpose were to promote moral or social goals, would the use of the commerce power be a pretext of the sort Chief Justice Marshall disapproved in McCulloch? Note: A four-Justice dissent contended that only commerce itself could be regulated, and that lottery tickets were not ―articles of commerce.‖ (b) Regulation of intrastate affairs: Once it became apparent that the Court looked favorably upon the commerce-prohibiting technique as a means of asserting national police power, Congress took a significant additional step: it began to regulate intrastate activities as a means of enforcing bans on interstate transport. Even this extension was generally favorably viewed by the S/Ct. (c) The Child Labor Case: But the S/Ct. was more hostile to congressional interference with the employeremployee relationship. The Justices were particularly unwilling to allow congressional legislation which was pro-labor, and which the Justices saw as being an unwarranted interference with the free-market system. Hammer v. Dagenhart (The Child Labor Case) (202) (1918) Holding: The Court voted (5 to 4) to strike down a federal statue which prohibited the interstate transport of articles produced by companies which employed children younger than certain ages or under certain conditions. Koppleman Rationale: The Court stated that power to regulate commerce does not mean a power to stop commerce from moving. In light of the Lottery Case, this is probably a pretext decision, following the dictum in McCulloch: Congress is really trying to regulate an intrastate transaction that has nothing to do with commerce. Congress‘ power to prohibit exists only if the goods are not ordinary commodities. The trouble with this case‘s reasoning is that the Court seems to be arrogating to itself the power to say what goods are or are not in themselves harmless. Child labor hasn‘t traditionally been regarded as regulable in the way that lotteries were. Emmanuel Rationale: The majority distinguished this statute from other police power/commerceprohibiting statutes which the Court had upheld; in those cases, the Court argued, the interstate transportation being prohibited was part of the very evil sought to be prohibited. Here, by contrast, the goods shipped in interstate commerce were themselves harmless; it was only the employment of child labor which was an evil, and this employment was not directly related to interstate commerce. The setting is ready for New Deal collision. Old law is in place. Congress can only regulate: 1) Commerce, not manufacturing, production, or agriculture (which are traditionally state concerns) 2) Intrastate activities that directly , and not merely indirectly, affect interstate commerce 3) Intrastate transactions that are in the stream of commerce, not those that precede or follow that stream 4) For purposes that actually carry out enumerated powers, not as a pretext for ends not assign to Congress (McCulloch v. Maryland) 5) Regulation does not include the power to bar innocent items from commerce altogether. c) 25 3. The New Deal Crisis and the Rise of the Welfare State A. The New Deal threatened: When Congress and Pres. Roosevelt began implementing the New Deal in 1933, the S/Ct.‘s view of congressional power under the Commerce Clause stood in an ambiguous state. The ―commerceprohibiting‖ technique was of doubtful validity, in view of Hammer. The validity of the ―effect upon commerce‖ rationale was unclear: The Shreveport Rate Case indicated that intrastate activity having a substantial practical effect on interstate commerce could be regulated; but the Knight case suggested that there must be a ―direct‖ and ―logical‖ relationship between the intrastate activity being regulated and interstate commerce. B. Restrictions on Commerce Power in 1930: 1. Commerce is NOT manufacturing (agriculture, etc. – this is a local level concern) settled in E.C. Knight 2. Congress can only regulate activities that directly affect interstate Commerce, not indirectly affect it (also settled in E.C. Knight) 3. Congress can regulate what is in the stream of commerce, but not those things outside of the stream of commerce 4. Can regulate only things for the purpose that actually carry out enumerated powers 5. Can’t regulate non-harmful articles – Hammer v. Dagenhart (soon to be overruled) 6. Can regulate immoral items (lottery case) C. Schechter Poultry Corp. v. United States (1935) – Facts: New Deal tried to keep commodity prices up b/c people were unemployed and can‘t buy goods, farmers were going bankrupt. The National Industrial Recovery Act authorized the President to approve ―codes of fair competition‖ developed by boards from various industries. The Live Poultry Code established a 40 hour work week and a minimum wage, it prohibited child labor and allowed employees to organize and bargain collectively. D. was charged with violating the wage and hour provisions of the NY Metropolitan Area Live Poultry Indus. Fair Competition Code. Although the vast majority of poultry sold in NY came from other states, D itself bought within NYC and resold its stock exclusively to local dealers. The govt. argued that D‘s conduct could constitutionally be reached under the Commerce Clause, on the alternative theories that: (1) D‘s activities were within the ―stream of commerce‖ of the chicken trade; and (2) D‘s activities, though themselves completely local, substantially ―affected commerce‖ (rationale from Rate Case.) Holding: Ct. STRUCK DOWN statute as unconstitutional, b/c ―extraordinary conditions do not create or enlarge constitutional power.‖ Rejected both arguments. This statute would violate the 10th Am. (1) Note in ―current of commerce‖: D‘s activities (slaughtering and sales) were not within the ―current‖ or ―stream‖ of commerce, because the interstate transactions ended when the shipments reached P‘s NYC slaughter-houses (they were INTRAstate commerce NOT INTERstate commerce.) (2) Not ―affecting commerce‖: Nor was the ―affecting commerce‖ rationale applicable; what was required was a direct, not indirect, effect on commerce. Although D‘s wage and price policies might have forced interstate competitors to lower their own prices, this impact was much too indirect to allow for Congressional control – if wage policies of an intrastate enterprise were deemed to have a sufficiently direct impact upon interstate competitors, so would all other cost components of the intrastate enterprise, so that no facet of intrastate enterprises would be beyond congressional control, or left for state control. Main Point: A unanimous opinion, turns on direct/ indirect effects distinction: this activity‘s effect on interstate commerce is too indirect to permit regulation. Hughes insists that extraordinary conditions do not enlarge constitutional power. Even Cardozo thinks the degree of causation is too attenuated here. However, Koppelman points out that stream of commerce and direct affects are NOT cut and dry categories and can be stretched if the court wanted to stretch them. Ct. is trying to draw a line somewhere. D. West Coast Hotel Co. v. Parrish (1937) – (From the notes) Court upholds a state minimum wage statute. J. Roberts, who had voted with the five person majority in Morehead (invalidating state minimum wage law for women as violating due process) now voted to uphold a similar statute. The Court had taken a preliminary vote before Roosevelt submitted his Court-packing plan, and Roberts switched after this plan was announced. Note: Just before the Court changes its position, FDR had announced his court packing plan b/c the court had become an obstacle to his New Deal. R. sought congressional authority for him to appoint an additional judge for each judge who was 70 years old and had served on a court for at least 10 years. Applied to all fed. cts. with max. of 15 supremes, i.e. and additional 6 justices. But this plan dies in Congress. Still, the Court begins to back down (also b/c of retirement, gets 7 new justices, and J. Roberts switched his vote so FDR no longer needed to pack the Ct. ―The switch in time that saved nine.‖) E. This is where the Court Caves in and the Modern Trend begins. Beginning with NLRB the Court showed a vastly greater willingness to defer to legislative decisions. Now, the Ct. will uphold commerce-based laws if the Court is convinced that the activity being regulated ―substantially affects‖ interstate commerce. -Three theories: The Court expanded the reach of the Commerce power by recognizing three theories upon which a commerce-based regulation may be premised: (1) an expanded ―substantial economic effect‖ theory; (2) a ―cumulative effect‖ theory; and (3) an expanded ―commerce-prohibiting‖ protective technique. (1) Expanded ―substantial econ. effect‖: In pre-1937 cases, the Ct. had insisted upon a ―direct‖ and ―logical‖ relationship between the intrastate activity being regulated and interstate commerce. But 26 beginning in NLRB, the Ct. substantially loosened the nexus req. between intrastate activity being regulated and interstate commerce. -NLRB v. Jones & Laughlin Steel Corp. (1937) – Facts: The National Labor Relations Act (NLRA) regulates management/labor relations and established the NLR Board, P, to enforce its provisions. The NLRB charged Jones, D, with the unfair labor practice of firing employees who sought to unionize. D ran plants in several states and claimed the NLRA‘s attempt to regulate all industry was unconstitutional b/c it invaded powers reserved to the states. Holding: The majority of the Ct. held that the NLRA, as applied to Jones & Laughlin, lay within the commerce power. (Use rationale from Holmes dissent in Carter.) Main Points: (1) Substantial Effect: Congress CAN regulate labor relations of a company engaged in intrastate activities that, taken together, have a substantial effect on interstate commerce, even though D‘s activities may be intrastate in character when separately considered, D still has nationwide sales. Industrial labor relations have ―such a close and substantial relation to interstate commerce that their control is essential or appropriate to protect that commerce from burdens and obstructions.‖ If its operation stopped, this would seriously affect interstate commerce. Congress can regulate industries that organize themselves on a national scale, b/c of their relation to interstate commerce. (2) ―Current of commerce‖ rationale not needed: The Ct. expressly declined to rely on the ―current of commerce‖ theory. The Ct. indicated that ―current of commerce‖ cases were merely particular, not exclusive, illustrations of the commerce power. (3) 10th Am. rejected as limitation: Overrules Carter. Abandons manufacturing/ commerce distinction. The Ct. implied, though it did not expressly state, that the 10th Am. would no longer at as an independent limitation on federal commerce-clause powers. Decided two weeks after West Coast Hotel v. Parrish, reversing itself and upholding minimum wage laws, and two months after Roosevelt announced his court-packing plan. Allows ct. to decide what is a ―close and substantial relationship.‖ (2) The ―cumulative effect‖ theory: Provides that C. may regulate not only acts which taken alone would have a substantial economic effect on interstate commerce, but also an entire class of acts, if the class has a substantial economic effect (even though one act within it might have virtually no interstate impact at all.) Wickard Abandons both commerce/ manufacturing and direct/ indirect distinctions, and paves the way for complete judicial abdication, at least until Lopez. Opens up the door b/c if this is allowable, then what isn‘t? This is a signal to Congress that Ct. is NOT going to restrict Congress‘ power under the commerce clause anymore. (Bottom falls out completely) -Wickard v. Filburn (1942) Estb. ―cumulative effect‖ principle. Is probably the furthest the Ct. has ever gone in sustaining Commerce-Clause powers, at least in the economic, as opposed to ―police power‖ area. Facts: Filburn was ordered to pay a penalty imposed by the Agriculture Adjustment Act for producing wheat in excess of his assigned quota. The purpose of the AA Act was to control the volume of wheat moving in interstate commerce to avoid surpluses and shortages which would result in abnormally high or low prices and thereby obstruct commerce. D argued that the federal regulations could not be constitutionally applied to his crops because part of his crop was intended for his own consumption, (for consumption on the very farm where it was raised) not for interstate commerce. Therefore, he says that his product is not in the stream of commerce, doesn‘t substantially affect commerce, doesn‘t have a direct relation to commerce. Holding: (J. Jackson) Congress, under the Commerce Clause, DOES have the power to regulate production of wheat which is grown for home consumption purposes rather than for sale in interstate commerce. Reasoning: (1) Consumption has market effect: Even though it is a local activity, if exerts a substantial economic effect on interstate commerce, and therefore can be regulated. The consumption of home-grown is a large and variable factor in the economics of the wheat market. The more wheat that is consumed on the farm where it is grown, the less wheat that is bought in commerce (i.e., from other farmers), whether interstate or not. (2) Cumulative Effect: That wheat which D produces for his own use means that he will buy less wheat on the market. Although his effect on the market will be small, this decision, (key sentence) ―taken together with that of many others similarly situated [a class], is far from trivial…‖ The combined effect would have a substantial effect on commerce, because the home grown wheat is competing with wheat in commerce. Note: ―Similarly situated‖ is a vague term. Looks like it is up to C. to decide. If you can regulate anything that can be taken with all other similarly situated things, C. can regulate anything. Apparently this is what the Ct. wants. (To get itself out of the business of dealing with Commerce Clause cases.) (3) The commerce-prohibiting technique (police power regulations): Substantially broadened after 1937 -United States v. Darby (1941) Flatly overrules Hammer. Facts: Darby, D, was a lumber manufacturer, some of whose goods were later shipped in interstate commerce. He was indicted for violation of the wage and hour provisions of the Fair Labor Standards Act, and defended on the ground that as an intrastate producer he was not subject to federal regulation. Holding: Ct. unanimously upheld the Fair Labor Standards Act of 1938, which set minimum wages and maximum hours for employees engaged in the 27 production of goods for interstate commerce. Congress has the power to prohibit shipment in interstate commerce of goods produced in violation of the wage/ hour provisions of the Labor Standards Act and the power to regulate employment of workers involved in the production of goods for interstate shipment in violation of the wage/ hour provisions of the Labor Standards Act. Although manufacturing itself is not interstate commerce, the shipment of goods across state lines is interstate commerce and the prohibition of such shipment is a regulation of commerce. Main Points: (1) The 10th Am. will no longer act as an independent limitation on congressional authority over interstate commerce. C. is completely free to impose whatever conditions it wishes upon the privilege of engaging in an activity that substantially affects interstate commerce, so long as the conditions themselves violated no independent constitutional prohibition. (2) Motive Irrelevant: Upholds minimum wage by discarding motive test. No interest in C.‘s motive: ―The motive and purpose of a regulation of interstate commerce are matters for the legislative judgment upon the exercise of which the Const. places no restriction and over which the courts are given no control.‖ Thus, doesn‘t concern itself with the indirect effect of such prohibition on the states. F. Later Developments: -Civil Rights Litigation/Local Activities: A key use of the federal commerce power has been in civil rights legislation. Thus the Title II of the 1964 Civil Rights Act bans discrimination in places of public accommodation. This ban applies against all but the very most localized, small hotels or restaurants. It does this by covering any establishment which serves interstate travelers, or (in the case of a restaurant) which buys food, a substantial portion of which ―has moved in commerce.‖ Heart of Atlanta Motel v. United States (1964) Facts: P was a motel located in downtown Atlanta, which refused to rent rooms to blacks. The motel was near two interstate highways, derived 75% of its occupancy from out-of-state guests, and solicited business in national media. Holding: The Court upheld the statute as constitutional, saying that that discrimination by race or color places burdens upon interstate commerce, by keeping people from traveling from state to state. Even though Court admits this is also a moral issue, explains that Congress had based its reasoning on the commerce issue as well. Furthermore, it did not matter that the motel was of a ―purely local character. The Court held, ―[t]he power of C. to promote interstate commerce also includes the power to regulate the local incidents thereof, including local activities in both the States of origin and destination, which might have a substantial and harmful effect upon that commerce.‖ The Ct. quoted a prior decision, to the effect that ―if it is interstate commerce that feels the pinch, it does not matter how local the operation that applies the squeeze.‖ Main Point: Congress can regulate the local incidents of interstate commerce. Katzenbach v. McClung (1964) Demonstrates even more clearly the Ct.‘s approval of the use of the Commerce Clause to reach what seemed to be overwhelmingly local activities. Facts: This was a companion case to the Heart of Atlanta Motel, involving Ollie‘s Barbecue, a family owned restaurant in Birmingham, Alabama which could serve 220 customers at a time as was located on a state highway 11 blocks from an interstate and some distance from a railroad and bus stations. The restaurant, which buys 46% of its food from a local supplier who purchased it out of state. The restaurant challenged the constitutionality of Title II. Holding: Again, Title II found to be constitutional. Again, the court brings up the fact that discrimination in restaurants had a ―direct effect upon interstate travel by Negroes‖ which effects interstate commerce. Court relies on the fact that some of the customers are not local and that the restaurant gets food from outside of the state. Returns to Wickard rationale: even though Ollie‘s itself was small, and the value of food it purchased from out of state had only an insignificant effect on commerce, the restaurants‘ discriminatory conduct was representative of a great deal of similar conduct throughout the country, and this conduct in the aggregate clearly had an effect on interstate commerce. Note: It‘s not clear whether Lopez would change the result in either of these two cases. Katzenbach: If the govt.‘s belief that businesses won‘t locate in areas with poor schooling (including schooling marred by gunfire) wasn‘t enough of a connection to interstate commerce in Lopez, it may well be that Congress‘ belief that discrimination in accommodations dissuades blacks from traveling interstate wouldn‘t be enough either. On the other hand, the core activity being regulated in Katz. – the furnishing or restaurant meals – is clearly ―commercial‖ in a way that possessing a gun in a school is not. On balance, Katz. would probably be decided the same way today, because of the more obviously commercial nature of the activity being regulated. Koppelman says: It is unclear as to what‘s determinative: (1) Where Ollie‘s Barbecue purchased its supplies or (2) who its customers are? The Court seems to be reaching here more so than in Heart of Atlanta to get to interstate commerce. Also says that b/c trying to prevent racial discrimination, it would have been better to use the Reconstruction Amendments here rather than the Commerce Power, but Court is trying to base its decision on positive S. Ct. law (since past Civil Rights Acts had been struck down). (seems to be like giving C. a general police power.) However, if this is right, then Lopez should have been decided differently. G. Summary of New Deal Legislation: K says: The formal categories for interstate commerce stopped being persuasive. But the difficulty of drawing lines doesn‘t keep us from drawing them in other contexts. 28 Some thoughts on New Deal Legislation:  Jackson, in Wickard, says we‘ve returned to Marshall‘s original understanding of the commerce power as broad enough to reach any activity that, together with other activities, similarly situated, has a substantial economic effect on interstate commerce. BUT Marshall never contemplated anything like the modern administrative state. Prof Bruce Ackerman: The Constitution was effectively “amended” (de facto) during the New Deal giving Congress what amounts to a general police power. Though didn‘t formally amend it following Article V, at least there was a supermajority who DID approve of this change. Ackerman claims that even though this is an ―illegal‖ way of changing the Constitution, since we are the people, we can change the Constitution. Congress now has a lot more power than it did before the New Deal. Since we don‘t want to believe that the Court could have consistently gotten Constitutional law wrong for decades at a time, this theory explains the division b/t post New Deal and pre New Deal decisions. Prof. Lessig: The preexisting doctrinal categories are less persuasive against the changed background culture, but the basic idea of federalism remains part of the Constitution. Objection to this: It‘s far from clear that the background culture assumptions had changed so much that the Court‘s reversal of course was compelled. Abdications as well as assumptions of authority need principled justification. Justice Thomas (in Lopez): The New Deal was an unwarranted abdication of judicial responsibility; the preexisting caselaw should not have been overruled, and its categories should be reintroduced into constitutional doctrine. Objection to this: It‘s odd to think that Constitutional Law could go so wildly wrong for 50 years. Even if it did, a return to the old categories would dismantle much of the federal government as we know it, with who knows what consequences. Anything commercial can be regulated now. Today, the Commerce power is pretty broad, even after Lopez. Must now ask, when determining whether commerce clause extends to it: 1) Is it non-commercial? 2) Is it supposed to be regulated by states? If yes to #1 probably can be regulated, yes to #1 and to #2 also should be regulated but yes to #2 only should NOT be regulated (as in Lopez w/ education). Some say that New Deal cases are a gross abuse of power but still not ready to tear it down. C. Other Powers of Congress: Are They More (or Less) Plenary than the Commerce Power? 1. The Treaty and War Powers a. War power: Congress is given the power declare war and to tax and spend for national defense. Also, it is explicitly given the right to ―raise and support Armies‖ and to provide and maintain a navy. All of these powers are given by Art. I, §8. The President, by contrast, is made the Commander in Chief of the Armed Forces (Art. II, §2). Thus Congress, and the Pres. In effect split the war powers. (1) Separation of Powers: This division raises important questions of the separation of powers (E.g., may the Preseident commit armed forces to battle without express congressional authorization?) b. Treaty power: Like the war power, the treaty power is divided between two branches of the fed. govt. The President may make a treaty, but it must be ratified by 2/3‘s of the Senate. (Art. II, §2) (1) Independent source of authority: The power to ratify treaties is in effect an enumerated legislative power, just like the specific powers listed in Art. I, §8. Thus even though a subject area might not otherwise be within congressional control, if it falls within the scope of an otherwise valid treaty, it will be valid as a ―necessary and proper means‖ of exercising the treaty power. It will also be binding on the states, under the Supremacy Clause. Missouri v. Holland (1920) Facts: The U.S. entered into a treaty with Great Britain to protect birds that migrated between Canada and the United States. Congress passed a statute to enforce the Migratory Bird Treaty which allowed the Sec. of Agric. to formulate regulations to enforce the treaty. Missouri, P, claims that the Bird Treaty Act was an unconstitutional interference with the rights reserved to the states by the 10 th A and that it had a pecuniary interest as owner of the wild birds which were being interfered with. Before the treaty had been entered into, Congress had attempted to regulate the killing of migratory birds within the states and that statute had been declared unconstitutional. Holding: The treaty and its regulations are valid, and do not violate any state‘s 10th Am. rights. The treaty power is explicitly given to Congress, and thus furnished authority for this particular treaty. While acts of Congress are the supreme law of the land only when they are made in pursuance of the Constitution, treaties are valid when made under the authority of the U.S. There are situations that require national action which an act of Congress could not deal with, but which a treaty enforced with a congressional act could. The treaty power implies an unspecified ability of Congress to agree to that which it can‘t directly legislate. There is not much case law after this making clear 29 2. the scope of the treaty power. But it is clear that Congress has broad treaty power EXCEPT no treaty may infringe on the Bill of Rights, but may be allowed to go beyond enumerated powers. The Taxing Power: Comes from Art. I, §8 ―Congress shall have power to raise taxes‖ (puts no limit on this ability). a. Independent federal power: This power to tax is an independent source of federal authority, Congress can pay debts and can spend to provide for the general welfare of the U.S. Congress may tax activities or property that it might not be authorized to regulated directly under any of the enumerated regulatory powers. Problem court faces is that all the powers prohibited by commerce power can be gained by taxing, spending, war, etc. This is a problem for the Courts definition of the Commerce Power. b. Regulatory Effect: Nearly any measure enacted in the form of a tax will have at least an incidental regulatory effect. For instance, if an excise tax on cigarettes is enacted, people may smoke, on average, fewer cigarettes. FI the regulatory impact of the tax is one which could be achieved directly by use of one of the other enumerated powers (e.g. the Commerce Clause), the fact that the tax has this regulatory effect is not of constitutional significance. (1) Disguised regulation: If, however, the regulatory effect is one which could not have been achieved directly (e.g., the subject matter is so purely local that it could not be reached under the Commerce Clause, and there is no other enumerated power which applies), then it is possible that the tax may be stricken as an invalid disguised regulation. This prob. of distinguishing between taxes that are valid revenue-raising measures, and taxes that have no real revenue purpose and that are therefore invalid disguised regulations, has been the subject of two important S/Ct. decisions. (2) Child Labor Tax Case: Congress‘ attempted to prohibit the shipment of products of child labor in interstate commerce, but the statute was struck down by the S/Ct. in Hammer v. Dagenhart. Shortly, thereafter, C. tried to achieve a similar result by enacting the Child Labor Tax Law of 1919, which imposed a federal excise tax of 10% of annual net profits on every employer of child labor in specified industries. The Spending Power: Art. I, §8, gives C. the power ―[t]o lay and collect taxes… to pay the Debts and provide for the common defense and general Welfare of the U.S. …‖ The power to spend is thus linked to the power to tax – money may be raised by taxation, and then spent ―for the c/d and g/w‖ (1) Not limited to enumerated powers: In Butler (below) the Ct. resolved the question of whether C. could only spend in order to carry out one of the other enumerated powers listed in Art. I, §8 by holding that no such limitation exists – the spending (and taxing) powers are themselves enumerated powers, so C. may spend (or tax) to achieve the general welfare, even though no other enumerated power is being furthered. But C. may not regulate in a particular area, merely on the ground that it is thereby providing for the general (2) Can’t regulate for general welfare: The most imp. principle for which Butler stands today is that c. has no power to regulate for the purpose for providing for the ―general welfare.‖ C. may spend for the g/w, it may tax for the g/w, but it may not regulate for the general welfare. (3) Tenth Amendment limits abandoned: Today, Ct. will not prevent C. from using its spending power in areas of primarily local interest. That is, the 10th Am. is effectively dead as a limitation upon federal spending power, just as it is essentially dead as a limit upon federal commerce power. (4) Other constitutional provisions as limits: A federal spending program may still be found invalid because it runs afoul of other, specific, federal constitutional provisions protecting individuals. For instance, C. could not violate the Due Process Clause of the 5th Am., even as part of an otherwise-valid spending program in furtherance of the ―general welfare.‖ (a) Achievement of otherwise disallowed objectives: Congress may use its conditional spending power to achieve a result indirectly that it could not achieve by direct regulation. South Dakota v. Dole (1987) - Upheld a federal statute that directed the Secretary of Transportation to withhold a portion of federal highway funds from states that do not prohibit the purchase of alcohol by people under the age of 21. Congress used this technique because of uncertainty about its power to impose a national minimum drinking age directly, in light of the 21st amendment. Main points: Spells out the limits of the spending power: Must be: (1) For the general welfare (2) If Congress desires to condition the states‘ receipt of federal funds, it ―must do so unambiguously‖ (3) Need to be related to the federal interest in particular national projects or programs (4) Other Constitutional provisions cannot bar the conditional grant of federal funds. Only if, by the use of that conditional spending power, induced the states to pass laws that would themselves violate constitutional rights of individuals would that congressional action be unconstitutional. CONCLUSIONS: Moved away from broad rule that Congress can do anything it wants but have very few limits on what Congress can do (thanks to New Deal Cases. Justices wrote opinions that are far more deferential to federal powers.) Rule now is that C. can do ―almost‖ anything it wants. The Power to Enforce the Reconstruction Amendments 30 3. 4. a. Broad Remedial Powers: It is clear that congressional power to adopt ―remedial‖ legislation concerning the 13th, 14th, & 15th Ams. is extremely broad. (1) Voting Rights: The broadening of Congress‘ ―remedial‖ powers occurred largely within the framework of voting-rights measures adopted during the 1960‘s. In 1965, Congress enacted the Voting Rights Act designed to eradicate racial discrimination in voting by dealing with it prophylactically rather than on a case-by-case basis. Katzenbach v. Morgan (1966) Facts: New York had a statute which required all persons seeking to register to vote be able to read and write the English language. In the Voting Rights Act of 1965, Congress inserted a provision that prohibited a requirement of ability to read and write English where the person seeking to vote had completed at least a sixth-grade education in Puerto Rico. A group of New York voters challenged this provision of the Voting Rights Act. Holding: The Voting Rights Act provision is constitutional because a federal statue enacted pursuant to the Enabling Clause of the 14 th Am. supersedes a conflicting state law by reason of the Supremacy Clause of the U.S. Constitution. The test must be whether the federal legislation is appropriate to enforcement of the Equal Protection Clause. It is well within congressional authority to say that the need to vote by the Puerto Rican community warranted intrusion upon any state interests served by the English literacy test. Main Points: Raises the question of how Congress‘ interpretation of the 14 th amendment can legitimately differ from the Court‘s. A 1959 decision of the Court (Lassiter v. Northhapton Election Board) had held that an English-language literacy requirement did not violate the 14th A (or 15th A); then Congress enfranchised Spanish-speaking persons (largely New Yorkers) who had completed sixth grade in Puerto Rico. Some answers: Remedial Interpretation: Congress can fashion remedies too complex for courts, or prevent constitutional violations before they happen (which courts can‘t do b/c there‘s not yet a case or controversy), or find facts that it would be hard for a court to find. Substantive Interpretation: Congress can adopt any reading of the 14th Amendment that is within reason. (or, the ct. should reconsider its earlier decision in light of Congress‘s considered disagreement.) Underenforcement: Because institutional considerations prevent the Court from completely enforcing the Constitution‘s commands, Congress can step in and do what the courts can‘t. Especially powerful in explaining validity of laws reaching private action; see Jones v. Alfred H. Mayer Co., (2) Power to ―remedy‖ past or anticipated discrimination (Preventative Remedies): Majority in Rome seems to be saying that wherever a practice (whether at-large voting districts, literacy tests, or other practice) has a discriminatory impact on minorities, and might be used for discriminatory purposes, C. may ban that practice (at least in states that have in the past purposely committed racial discrimination in voting.) This is true even if the jurisdiction responds with compelling evidence that the practices are not being used for discriminatory purposes. (3) Congressional power to regulate ―private‖ action for civil rights purposes (a) 13th Am. Jones v. Alfred Mayer Co. (1968): Facts: The plaintiffs alleged that Mayer, the developer of a large suburban housing complex, had refused to sell them a home solely because one of them was black. They claimed this violated 42 U.S.C. §1982, which provides: ―all citizens shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof, to inherit, purchase, lease, sell, hold and convey real and personal property. Holding: The Court held that the statute barred private racial discrimination in the sale of property and that, ―thus construed, it is a valid exercise of the power of Congress to enforce the 13th A. The Court said that the amendment is an absolute declaration that slavery or involuntary servitude shall not exist in any part of the United States. Its second section ―clothed Congress with power to pass ‗all laws necessary and proper for abolishing all badges and incidents of slavery in the United States.‘ Surely Congress has the power to determine what are the badges and the incidents of slavery. (4) Congress may not Redefine Scope of Guarantees: Previous cases allowed Congress broad enforcement powers under post-Civil War Ams. based explicitly on a ―remedial: theory. That is, C‘s actions were viewed there as being designed to combat what, by the Ct‘s own opinions, constituted past or prospective violations of the post-Civil War Ams. But other legislation enacted by C. from time to time under these amendments was harder to justify on a ―remedial‖ theory. This latter type of legislation seems to constitute an attempt by C. to redefine the meaning and scope of constitutional guarantees themselves. The Ct., however, decided that C. may not do this. It’s up to the Ct. alone, not C. to define the scope of const. rights, even rights (such as those given by the 14th Am.) as to which C. has an explicit enforcement power. Congress has no right to specify the substantive contours of constitutional rights. City of Boerne v. Flores (1997) Facts: Congress, reacting to the Employment Division v. Smith (smoking peyote) decision, which held that facially neutral statutes were constitutional no matter what their impact on the exercise of religion, enacted the Religious Freedom Restoration Act, which provides in part, 31 ―Government shall not substantially burden a person‘s exercise of religion if the burden results from a rule of general applicability,‖ unless ―it demonstrates that application of the burden to the person (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.‖ Balances the state interest in the infringement against the freedom to practice one‘s religion. Holding: RFRA is STRUCK DOWN as an unconstitutional act of Congress. Congress does not have the power to infringe on the states in this way. Justice Kennedy said that ―[Congress] has been given the power ‗to enforce‘ not the power to determine what constitutes a constitutional violation.‖ Main Point: RFRA is the latest skirmish between Congress and the Court over the scope of religious liberty. Ct. tries to distinguish Katzenbach b/c of New York‘s racial discrimination problem. Ct. finds a lack of fit between means and ends here. Morgan Defenses: Koppleman asks if the RFRA can be justified under any of the three possible defenses of Morgan. Substantive Interpretation: [Congress can adopt any reading of the 14th Amendment that is within reason. (or, the ct. should reconsider its earlier decision in light of Congress‘s considered disagreement.)] Ct. takes this up first and rejects it. C., it holds, must not be permitted to advance its own substantive interpretation of the fourteenth amendment, because ―[u]nder this approach, it is difficult to conceive of a principle that would limit congressional power.‖ The Ct. rejects without discussion the possibility that Congress‘ substantive disagreement should occasion a revisiting of the Smith decision. Instead, it casually invokes state decisis. This seems a bit hypocritical, inasmuch as Smith itself discarded a large body of precedent and illustrates (if illustration were needed) that the Ct. isn‘t bound by its own precedents when it doesn‘t want to be. In rejecting the substantive interpretation, the Ct. does not consider the possibility that it could retain the power to review the rationality of Congress‘ interpretation of its own powers, as it did in Jones v. Alfred H. Mayer Co. Remedial Interpretation: [Congress can fashion remedies too complex for courts, or prevent constitutional violations before they happen (which courts can‘t do b/c there‘s not yet a case or controversy), or find facts that it would be hard for a court to find.] The Ct. considers the argument that RFRA is merely a device to prevent constitutional violations that are recognized as such by Smith – intentional religious persecutions. It accepts this interpretation of Morgan. But, the Ct. says, C. hasn‘t documented, or even alleged, contemporary religious persecution of a magnitude sufficient to justify this sweeping statute. It thus reads into the remedial interpretation of the Morgan power a requirement of proportionality: ―The appropriateness of remedial measures must be considered in light of the evil presented.‖ Because this statute is so disproportionate to the evil present, it is beyond C.‘s powers. Underenforcement: This is the black hole that the Ct. didn‘t even mention, perhaps because it raises unusual complexities. Because institutional considerations prevent the Court from completely enforcing the Constitution‘s commands, Congress can step in and do what the courts can‘t. Especially powerful in explaining validity of laws reaching private action; see Jones v. Alfred H. Mayer Co., D. Implied Limitations on Congress’s Power (The Tenth Amendment): The 10th Am. places relatively few practical limitations upon the exercise of federal power under the Commerce Clause. 1. 1976-1985: However, for the period 1976-85, the Supreme Ct. treated the 10th Am. as imposing an important limit on federal power – this Am. was held to bar the federal government from doing anything that would impair the states‘ ability to perform their ―traditional functions.‖ a. National League of Cities v. Usery (1976) (From the notes) Held that the commerce clause did not empower Congress to enforce the minimum-wage and overtime provisions of the Fair Labor Standards Act (FLSA) against the states in areas of traditional governmental functions. The Court agreed that the wages and hours of state employees affected interstate commerce, but found the application of the statute to state and local employees unconstitutional. 2. 1985  : Then in 1985, the line of cases establishing the limit on the fed. govt.‘s ability to do anything that would impair the states‘ ability to perform their traditional functions was flatly overruled by the S/Ct., in one of the most amazing reversals of doctrine in modern Supreme Ct. history. a. Garcia v. San Antonio Metropolitan Transit Authority (1985) Facts and holding: Here the Court OVERRULED National League of Cities, which held that minimum wage statutes were unconstitutional. Expressly relies on the Wechsler-Choper argument about the political safeguards of federalism to hold that state governments are not immune from generally applicable federal laws. ―[The principal means chosen by the Framers to ensure the role of the States in the federal system lies in the structure of the Federal Govt. itself. [State] sovereign interests, then, are more properly protected by procedural safeguards inherent in the structure of the federal system than by judicially created limitations on federal power.‖ Ct. rejects a rule of state immunity from federal regulations that turns on a judicial appraisal of whether a particular governmental function is ―integral‖ or ―traditional.‖ Significance of the Case: Garcia appears to mean that once Congress, acting pursuant 32 3. to its Commerce power, regulates the states, the fact that it is a state being regulated has virtually no practical significance – if the regulation would be valid if applied to a private party, it is also valid as to the state. 1990s: The 1980‘s reversal was partially ―re-reversed,‖ in several cases from the 1990s that estb. that C. cannot directly command the states to enact or enforce federal policies. a. Fed. govt. may not compel state to enact or enforce a particular law or type of law New York v. United States (1992) Limits Congress‘ power to ―commandeer the legislative processes of the States…‖ Facts: Congress enacted (after being asked by the states to do so) the Low-Level Radioactive Waste Policy Amendments Act after the National Governor‘s Association devised this plan for disposing of radioactive waste. The act set deadlines for every state to join a regional waste compact, develop in-state disposal or find another way to dispose of its own waste. In order to ensure compliance the act had three incentives, including: 1) sited states could impose a surcharge with funds to be returned to complying states (monetary incentives) 2) Cited states could deny access to other states 3) ―take title,‖ states would have to provide for disposal of its own waste by 1992 or it would be obligated to ―take possession of the waste.‖ NY fights this last provision saying it is unconstitutional. Holding: Ct. agrees that the ―take title‖ provision is unconstitutional, because it is unconstitutional for Congress to command the states to do anything, though setting up incentives to do things is just fine. Even though this was a state brokered agreement, court says it is unconstitutional. Congress CAN regulate waste, but not force the states into these decisions. Also, even if states agreed to this provision, they do not have the power to change the constitution. The federal government may not order a state government to enact particular legislation. Congress can‘t compel states to regulate radioactive waste. Congress can‘t either force the states to take title to the waste or force them to pass legislation, so it can‘t make the states choose between these two options. Main Points: Dissent focuses on the fact that it was a state brokered agreement. Stevens says Congress can command state governments to regulate waste. But, majority points to the problem of making state legislators responsible for Federal legislators plans, so no accountability. This argument comes up again in Printz, and it is hotly contested. O‘Connor fears a loss of accountability: ―it may be state officials who will bear the burden of public disapproval, while the federal officials who devised the regularly program may remain insulated from the electoral ramifications of their decision.‖ But Koppelman asks: Has federalism no political safeguards against this result? Specifically, cannot state official educate the electorate about the true source of their burdens? If the concern is one about Congress unnecessarily taking over state functions, then ought not the question to be the necessity of the legislation, rather than whether states have a categorical immunity against an imposition of this kind? Has J. White shown that this law was necessary? Here there is a difference between the formalist and realist approach. The majority is formalist. Stevens, in dissent, is formalist in a different way, looks to articles of confederation to make his point (says this power was in the ACO so still have it). b. Fed. govt. may not compel state/local officials to perform federally specified administrative tasks. In a pair of post-N.Y. cases, the Ct. has held that Congress may, similarly, not compel a state or local government‘s executive branch to perform functions. And that‘s true even if the functions are fairly ministerial and easy-to-perform, and if the compulsion is only temporary. Printz v. United States (1997) Facts: The Brady Handgun Violence Prevention act would require chief law enforcement officers (CLEO‘s) of each state to do a background check on anyone applying for a handgun. They would do the check during the five day waiting period for a handgun, and would be expected to do this only until a computer program is in place at the federal level so the government could do this on its own. Holding: The Court holds that the act is unconstitutional b/c the federal government is not allowed to require chief law enforcement officers (CLEO‘s) to do anything. Dissent disagrees strongly – what about war? Etc. This is okay, AND its only temporary. Main Point: Congress cannot require state officials to enforce federal law. Violates rights of states; also violates separation of powers, by reducing the power of the President. Dissent: Stevens first pointed out that the federal commerce power gave C. the authority to regulate handguns. He then concluded that this being so, the ―necessary and proper‖ clause gave C. the right to implement its regulation by temporarily requiring local police officers to perform the ministerial step of identifying persons who should not be entrusted with handguns. This was especially true, he said, since C. could have required private citizens to help with such identification: ―The [10th] Amendment provides no support for a rule that immunizes local officials from obligations that might be imposed on ordinary citizens.‖ He thinks that the Court will accomplish the opposite of what it intends, by creating incentives for the aggrandizement of federal power (because now the fed. Gov‘t will have to create an agency to handle these checks). Souter distinguishes New York v. United States, because state legislators are entitled to discretion in a way that state law enforcement officials are not. Breyer draws on comparative law to show that conscription of local officials is not necessarily oppressive. Again, the issue of accountability comes up here, with the Court pointing out that it will look like a local check rather than a federal check, but this is not so persuasive b/c certainly local officials running for office will blame it on the federal officials. 33 c. Breyer in dissent, looks at how this issue is dealt with in other countries. Scalia answers that our federalism is not Europe‘s so its not appropriate to bring this in. But Breyer seems to be getting at a prudential concern, should interpret the constitution in a way that won‘t destroy the federal government. Marshall makes this argument in McCulloch. Court is worried about letting Congress do whatever it wants even if you adopt a functional view of the constitution it doesn‘t mean everything. Concerns also about federal government turning state government into puppet regimes, so Breyer looks to Europe to see is this what will happen? Since it doesn‘t, maybe court doesn‘t have to worry about this tyranny. But… States cannot put reqs. on the Federal govt. by supplementing the Constitution. U.S. Term Limits v. Thorton (1995) Facts: Arkansas passed amendment 73, putting term limits on who could appear on the ballot. They put limits on the governor, the state legislatures and the U.S. Congress. The provision about Congress is being challenged here. Stevens holds that the states may not supplement the qualifications laid down in Article I. Holding: The states may not supplement the qualifications laid down in Article I., therefore this provision is unconstitutional. Art. I, § 3, cl. 2 and 3 which gives the qualifications for the Senate and the House as to age, citizenship and inhabitant of the state or district. The court finds that the Qualification Clause limits it to the criteria given in the constitution. The Court points to a historical analysis, showing this is what Hamilton and the other drafters of the constitution had intended. The Court also says that there are democratic principles involved, that people should be allowed to vote for whomever they choose. Concurrences: Stevens and Kennedy both think that this follows from the fact that Congress is a national institution that does not represent the states. There is a federal right of citizenship with which the states may not interfere. Because the Ark. Enactment intrudes upon this federal domain, it exceeds the boundaries of the Constitution. Dissent: Thomas, on the other hand, thinks that Congress is an assembly of representatives from distinct political entities, who retain reserved powers to prescribe qualifications for those representatives. The people of each state retain their separate political identities—they act as citizens of each state, not of the US. The debate among the justices therefore gives rise to a dispute about the nature of the federal union. Significance: Gives rise to a dispute about the nature of the federal union. Asks: to what extent do states retain the sovereignty that the possessed before they joined the Union? To what extent is a measure of retained autonomy a necessary check on Federal power? Cites McCulloch: Stevens notes that McCulloch rejected the idea that because the Constitution was silent of the question, the states had a reserved power to tax the bank. Thomas says that would make most of McCulloch unnecessary because the states would have lacked the tax power even without conflicting Federal statutes. E. Limitations on State Regulation (Judicial Efforts To Protect the Expansion of the Market Against assertions of Local Power) There are two federalism-based limits on state power: (1) the ―Dormant Commerce Clause‖ and (2) Ways in which Congress may block states from legislating in particular areas. Note: In a question regarding limits on state power one first must ask whether there is a preempting federal statute (go to preemption), if there isn‘t, then this is a situation of federal silence and is thus a DCC issue. If a DCC issue – Ct. must decide whether state action is constitutional…if it is C. can always pass a law to preempt, if it isn‘t C. can always pass a law giving consent. 1. Preemption and Consent: a. Congress can preempt the states from affecting commerce. Congress‘ ability to do this comes from the ―Supremacy Clause‖ which states that federal laws take priority over any conflicting state law. . (1) Actual Conflict: A congressional statute and a state action may be in actual (clear-cut) conflict, if this is so, the state regulation is automatically invalid. There are two ways in which an actual conflict could occur: (a) Express Conflict: Congress may preempt state regulation by expressly stating the preemption. There will still be interpretive questions concerning the reach of the express preemption. (b) Conflicting Regulations: Congress may preempt state regulation by enacting a regulation with which the state regulation in fact conflicts. It may be impossible to comply with both the federal and the state law, or, even if the federal and state regulations do not conflict upon their face, it may be that the objectives behind the two regulations are inconsistent (i.e., the state law may frustrate the purpose of the federal statute.) (2) Federal Occupation of the Field: Congress may preempt state regulation not because there is an actual conflict between what Congress does and what the states do, but because the scheme of federal regulation may be so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it (i.e., Congress is found to have made the decision to ―occupy the field.‖) If C. has made such a decision to occupy the field (i.e., if it has ―preempted‖ the entire subject area), state action in that area must fail no matter how will it agrees with the federal action and policies. b. C. may always consent to state action that would otherwise violate the Commerce Clause. c. Summary (in relation to DCC): Taken together the doctrines of preemption and consent mean that a judicial decision on a commerce clause challenge need not be final. If the challenge is rejected, those who oppose state regulation may secure federal legislation preempting it. If the challenge is sustained, those who support state regulation may secure federal legislation permitting it. 34 2. Protection Against Discrimination (Facial Discrimination) a. Dormant Commerce Clause: At issue is whether the mere fact that the Constitution gives Congress the power to regulate interstate commerce prevent a state from taking a particular action which affects interstate commerce, assuming that Congress has not actually exercised its power in the subject area in question (focusing not on what Congress has done, but on what it might have done)? Where do we locate certain issues that seem to be on the border between federal powers and state powers? Are there some areas that the states can‘t regulate even if there is no federal statute? (1) Classical View: (a) The vices of ―Protectionism‖ The framers were concerned that the states would erect barriers to trade in order to protect the economic activities of local residents. There were two problems with protectionism: impedes economic development by making it more difficult for goods and capital to move to places where they are more valued and it impairs the development of a sense of national unity (b) Possible Ct. positions: The early Supreme Ct. could have adopted either of two extreme views on the significance of the DCC for state regulation: (i) Great Freedom to states: It could have held that where C. has remained silent as to a particular subject matter, the states are completely free to regulate, no matter what the burden on or discrimination against interstate commerce. (ii) Exclusive Federal Terrain: The Ct. could have held that C‘s power to regulate interstate commerce is exclusive, so that even if C. has chosen not to act in a certain area affecting interstate commerce, the states are not entitled to act. -The exclusive power argument was troublesome for practical reasons because where Congress‘s power is exclusive, the states may not act, even if Congress, too, has failed to act. If some regulation is thought appropriate, the ―exclusive power‖ arg. may go too far in insisting that the regulation always derive from Congress. (c) Middle Ground: Rather than adopting either extreme, the Ct has always chosen something of a middle ground, though the precise nature of what middle position has varied throughout the years. Essentially, the Ct.‘s approach has always been to weigh the state interest in regulating its local affairs against the national interest in uniformity and in an integrated national economy. (d) Congress has Ultimate Say: Because the limitations on state authority imposed by the DCC are not explicitly stated in the Const., but are rather derived by negative implication, limitations on state commercerelated conduct imposed by the Ct. may always be reversed by Congress. (i) States given greater freedom: Thus, if the Ct. holds that a particular type of state action unduly burdens interstate commerce, Congress may pass a law explicitly allowing the state to interfere with commerce in this manner. (ii) Stricter standard: Conversely, if the Ct. holds that a particular type of state action, although it affects interstate commerce, does not burden it unduly, C. may reverse this ruling either by state that it intends to preempt the entire field to which the state regulation relates, or by passing a statute which explicitly conflicts with the state rule. (iii) Summary of Ct’s role: To put it another way, the S/Ct.‘s role in this area is limited to interpreting congressional silence. DCC is merely a presumption, a tool for interpreting Congressional silence, given that there‘s no mechanism for Congressional review of state legislation. (Unlike the federal judiciary, C. doesn‘t have to hear the cases that come to it.) (e) Early Interpretations: From the earliest days, the S/Ct. has given great weight to the purpose behind the Commerce Clause; the creation and nurturing of a common market among the states, and the abolition of trade barriers. (i) Failure of A of C: A of C had failed largely because the states fought destructive trade wars against each other. These trade wars arose principally from the fact that state govts. tended to pursue the interest of its own constituents, at the expense of citizens of the other states. (ii) Prevention of Econ. Balkanization: Therefore, under the Const., the power of the fed. judiciary, interpreting the Commerce Clause, had to be used to prevent this ―econ. balkanization.‖ (iii) Congress’ Silence: Also, the S/Ct. has always well recognized that the fact that C. has not chosen to speak out in a particular area does not mean that it tacitly approves of state regulation of that area. C. is simply too busy, with too many pressing matters on its legislative docket, for there to be any assurance that state regulations which burden or discriminate against interstate commerce will be overturned by congressional action. T/f, the S/Ct. has always been intensely conscious of its own obligation to keep the channels of interstate commerce free of state-originated impediments. (iv) First Case – Gibbons v. Ogden (Interpreting meaning of congressional silence in a commerce context.) -Marshall, relying on J. Johnson‘s concurrance in Gibbons v. Ogden, flirts with the idea that C‘s power to regulate interstate commerce is exclusive, and that the states may not enact any laws 35 that regulate such commerce. But perhaps inconsistently, Marshall also approved of local inspection and quarantine laws, which he regarded as legitimate exercises of the state police power. -Purpose: J. Johnson coupled his ―exclusive power‖ arg. with the contention that C. was granted the power to regulate interstate commerce only to achieve commercial ends. It followed that the states lacked power only insofar as they sought to achieve similar ends, such as the protection of local enterprises from out-of-state competition, but not insofar as they exercised their general ―police‖ powers, those designed to promote the health and safety of their citizens. This limitation requires the Ct. to distinguish between statutes designed to serve commercial goals and those designed to serve police power ones; determining the legislature‘s purpose in light of the impact of its action may be quite difficult. (v) State ―police power‖ allowed: Marshall appeared to concede that a state could sometimes affect interstate commerce as an incidental consequence of its exercise of its ―police powers.‖ (vi) Rise of the ―local‖ vs. ―national‖ distinction: Move away from focusing on whether the state was regulating commerce or using its ―police powers,‖ to whether the subject matter being regulated was ―local‖ or ―national.‖ -Cooley v. Board of Port Wardens (1851) Facts: Involved a PA law requiring all ships entering or leaving the port of Philadelphia to use a local pilot or pay a fine to support retired pilots and their dependants. Holding: The Ct. held that some but not all state regulation affecting interstate commerce was permissible. The states were free to regulate those aspects of interstate commerce that were of such a local nature as to require different treatment from state to state. But the states could not regulate aspects of interstate commerce which, because of their nature, required a uniform national treatment (which only C. could provide.) Ct. found PA‘s regulation was permissible, because pilotage in local harbors was a subject appropriate for local control (even though the regulation of pilots was a regulation of interstate commerce). It upheld the statute. Significance: Congress has the exclusive power to legislate on matters that are in their nature national or admit only of one uniform system. Problems: (1) It was not at all easy to distinguish between those ―subjects‖ that required uniform national regulation, and those that needed diverse local regulation. Is this distinction useless because it is only metaphysical? (Scalia) (2) The Cooley test looked solely to the ―subject‖ being regulated, and did not consider how extensively the states‘ regulation impacted interstate commerce. Legacy of Cooley: Even up through today, the basic policy behind Cooley remains in effect; the DCC blocks some but not all state regulations which affect interstate commerce, and the resolution of particular cases turns on , roughly speaking, a balancing between the state interest in regulating local affairs and the national interest in uniformity. (vii) Direct/Indirect Impact Test: To remedy the second short coming of Cooley, the Ct began to look closely at the actual impact the state regulation had on interstate commerce. In taking impact on interstate commerce into account; a state regulation having direct impact on interstate commerce was not acceptable (even though Congress remained silent), but one having only an indirect impact was permissible. (2) Modern View: The distinction between ―direct‖ and ―indirect‖ effects upon interstate commerce has proven to be no ore satisfactory than the ―effect on commerce‖ vs. ―police power‖ distinction. In recent years, the S/Ct. has shifted to a more complex series of tests. (a) 3 Part Test: (Note in City of Philadelphia just a two part test (1&3)) 1. The regulation must pursue a Legitimate State End 2. The regulation must be rationally related to that legitimate end 3. The regulatory burden imposed by the state on interstate commerce, and any discrimination against interstate commerce, must be outweighed by the state‘s interest in enforcing its regulation. (b) 3 Theories Behind Modern View: the modern doctrine is based on distrust of the states, See J. Stone quote, p.294, who draws on the representation-reinforcement rationale we first saw in McCulloch) combined with the view that Congress is too busy to police the states (J. Jackson quote, p.296) Since nobody else can be (c) trusted to prevent abuses of state regulatory power, the S/Ct. must. 1. Purely political – some statutes aim at the promotion of in-state interests at the expense of out-of-state interests. If the statute says expressly that local interests will be treated differently from out-of-state interests, it signals clearly the state‘s indifference to its national obligations. 2. Purely economic – protectionist legislation interferes with the efficient disposition of resources throughout the country, By excluding some commerce from a state, these statutes may lead to a lower level of economic performance than would be possible in the absence of the statutes 3. Mixed political and economic – protectionist legislation results from the operation of a political process that can be understood as ―distorted.‖ See J. Stone quote on p.294 re: distrust of the states. (d) Application of the Test 36 1. 2. 3. Meaning of ―legitimate state end‖: The Ct. has sharply distinguished between measures that are designed for promotion of health, safety and welfare objectives, on the one hand and those that are designed for the furtherance of econ. benefits, on the other. a. Health, safety and welfare: If the state is acting to further health, safety or ―general welfare‖ objectives, the Ct. I quite likely to hold that these objectives constitute ―legitimate state ends.‖ This is really the ―police power‖ rationale which has been used by the Ct. ever since the Black Bird Creek case. b. Economic advantage: The Ct. is much more skeptical of a state regulatory scheme where the state‘s objective is to promote the econ. interests of its own residents. Protection of a state‘s econ. interests is generally not considered to be a legitimate state objective, where pursuit of that objective materially affects interstate commerce. A state will violate the DCC through ―simple economic protectionism,‖ for which there is a ―virtually per se rule of invalidity.‖ (from City of Philadelphia v. NJ) This is where it is obvious on its fact that the law discriminates against out of staters. -City of Philadelphia v. New Jersey (1978) Facts: New Jersey has a law that prohibits importing waste from outside the state. The law was enacted in response to the use of NJ landfills for disposal of waste from cities in PA and NY. Several NJ operators and out-of-state users of the landfill sites sued to have the statute invalidated on the ground that it discriminated against interstate commerce. Holding (Stevens): The Court STRUCK DOWN the statute because it violated the Commerce Clause. Law was basically a ―protectionist measure‖ Attempted to distinguish quarantine laws on the basis that those laws banned the importation of materials which, at the moment of importation, were hazardous, whereas here, the solid waster endangered health only when buried within landfill sites. (IN THIS CASE, THIS TEST IS NOT MET) Dissent (Rehnquist) – Quarantine laws supported the NJ law. Rational Means to End: Usually has less bite than first req. The Ct. as been fairly careful not to substitute its judgment for that of the legislature in determining whether the regulation is a good way of attaining the end. A mere ―rational relation‖ between means and end is all that is required; it is not required that the means used be the best way of achieving that end, or the way which least affects interstate commerce. a. Deference to legislative fact finding: In judging whether there is a requisite ―rational relation,‖ the Ct. will also give due deference to any ―facts‖ found by the state legislature; that is, the Ct. will not conduct its own de novo inquiry into the facts. b. Similarity to review of Congress’ actions: In general, the Ct.‘s role is similar to the one it follows when evaluating whether an act of C. falls within the commerce power. ***Balancing (Effects) Test: Once the first two tests have been met, the Ct. generally performs a rough ―balancing‖ test, but one skewed towards a finding of constitutionality. While the law does not discriminate on its face, it may inadvertantly discriminate against out-of-staters. ―Where the state 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 imposed on such commerce is clearly excessive in relation to the putative local benefits.‖ Pike v. Bruce Church, Inc. (1970). The state bears the burden of showing that the burdens on interstate commerce are incidental rather than intentional, and that the local benefit is not excessively outweighed by the burden on interstate commerce. Thus in the case of legislation that is non-discriminatory (even if somewhat burdensome to interstate commerce), the state regulation achieves a presumption of constitutionality. But this presumption can be overcome by a clear showing that the national interest in uniformity or in free commerce outweighs the state benefit. -Note: Casebook looks at effects of regulation through a strict economic analysis: ―exporting costs‖ and a ―cost/benefit analysis‖ see p. 301 and 315. Note however, that a detailed analysis of economic effects may be misguided because the Ct. (a) properly uses facial discrimination as a rough indication that out-of-state burdens exceed local benefits and (b) refrains from looking at economic effects in more detail because it lacks the expertise to do so. a. ―Local‖ vs. ―National‖ subject matter: Recall the ―local‖ v. ―national‖ distinction made by the Cooley case. Although this distinction is no longer explicitly made in S/Ct. cases, it is implicit in the balancing process.: if the matter being regulated is overwhelmingly of local concern, it is much more likely that the state interest in controlling its own affairs will be found to outweigh the national interest in uniformity and free commerce. b. Less-restrictive alternatives: In performing this balancing test, the Ct. has sometimes considered not only the objectives which the state is pursuing, but also the necessity of the means which the state has used to achieve this objective: if the objective could have been achieved by means less burdensome (or less discriminatory) to interstate commerce, the Ct. is more likely to find that the national interest in free commerce outweighs the state‘s interest. 37 c. Alternative must be real, not hypothetical: Dean Milk, as noted, stands for the proposition that even a barrier to out of state goods that is motivated by bona fide safety or health concerns will be struck down on Commerce Clause grounds if reasonable non-discriminatory alternatives are available. However, the alternative must be truly ―available‖ in the sense that it already exists – the state is not required to go out of its way do discover one. d. Relevance of Retaliation: City of Philadelphia concludes by invoking fears of retaliatory responses by other states. b. The Privileges and Immunities Clause of Art. IV: Art IV, §2: The citizens of each state shall be entitled to all Privileges and Immunities of Citizens in the several states. (1) Function: This interstate P&I clause (to be distinguished from the P&I clause of the 14th Am.) prevents states from discriminating against out-of-state individuals. As the S/Ct. has put it the clause ―was designed to insure to a citizen of State A who ventures into State B the same privileges which the citizens of State B enjoy.‖ Toomer v. Witsell (1948). Like the Commerce Clause, the interstate P&I Clause is an attempt to ―help fuse into one Nation a collection of independent, sovereign States.‖ Id. (2) Test for P&I Violation: Even where a state does discriminate against out-of-staters, it is relatively hard for the out-of-staters to establish a violation of the P&I clause. Two-part test. (a) Only ―fundamental rights‖ covered: The right that meet this ―fundamental national unity‖ standard are all related to commerce. Thus the right to be employed, the right to practice one‘s profession, and the right to engage in business are all fundamental, and are therefore protected. Conversely, non-economic rights are generally not ―fundamental to national unity,‖ and thus not protected by the P&I Clause. (b) ―Substantial Relationship‖ test: Once the Ct. concludes that a ―fundamental right‖ is at stake, then the Ct. applies a ―substantial relationship‖ test to determine whether the discrimination against non-residents is acceptable. The plaintiff (who is attacking the discrimination against out-of-staters) will win if either of the following is shown: P will win if the discrimination against non-residents does not bear a ―substantial relationship‖ to the problem the statute is attempting to solve. (c) No ―Market Participation‖ exception to the P&I Clause: Majority in Camden, reasoned that the rationale for a ―m/p‖ exemption in the P&I context was not nearly as strong as in the Commerce Clause context. The Commerce Clause deals only with regulation, and a state acting as ―m/p‖ is simply not regulating. But the P/I Clause bars any type of state conduct, regulatory or otherwise, which discriminates against out-of-staters on matters of fundamental concern. Equal Protection Clause: Discrimination against out-of-staters- as equal protection violation: This principle that C. may not immunize state violations of equal protection is extremely significant to Commerce Clause analysis, because of a case in which the Ct. held that discrimination by a state against out-of-staters violated the Equal Protection Clause. c. 3. Facially Neutral Statutes with Significant Effects on Interstate Commerce: A statute which is evenhanded on its face may nonetheless turn out to be disproportionately burdensome to some or all out-of-state businesses. Where this disproportionate impact is truly accidental, and does not directly derive from the fact that the burdened firms are out-ofstaters, the Ct. will normally uphold the statute. a. Obstructing Commerce b. The problem of sales and compensating use taxes. c. Gerrymandering or Mere Facial Neutrality?: (Note: This is where casebook places this case, Emmanuel has this as an exp. of a case where the Ct. is much more likely to strike down a statute whose clear purpose is to favor local economic interests by discriminating against out-of-state interests.) Casebook asks, ―[s]hould cts. infer a discriminatory or anti-commercial purpose from neutral criteria that have the effect of distinguishing in-state and outstate producers? How precisely must the neutral criteria target out-of-state producers to justify that inference? -Hunt v. Washington State Apple Advertising Commission (1977) – Facts: NC had a law requiring that closed containers of apples shipped into or sold within the state bear the applicable US grade or no grade at all. A group of WA state apple growers attacked the NC statute, since it prohibited the display in NC of Washington‘s stringentlypoliced apple grades. The WA manufacturers had to either obliterate the printed labels on containers shipped to NC or repack apples bound for NC in special containers. Held: The NC statute unconstitutionally burdened interstate commerce. Three objections: (i) Washington apple growers, but not NC apple growers, have to bear additional costs by altering their marketing practices. (BUT—this is the disparate impact argument rejected by the Court in Exxon) (ii) The regulation strips away WA‘s competitive advantage that it has earned for itself by having a stricter standard. -Koppleman: What is earned about WA‘s advantage, If there‘s really a national acceptance of the WA standard, why hasn‘t the FDA regulation changed? (iii) The law has an insidious leveling effect on the heretofore free market forces at work. -Koppleman: Why is the market created by WA state‘s participation ―free‖, while the NC regulation isn‘t? 38 Significance: Seems to indicate that the court is likely to strike down a statute whose clear purpose is to favor local economic interest by discriminating against out-of-state interests, but this is not clear, since the decision in Hunt is irreconcilable with Exxon. K. Both cases agree that proof of discriminatory impact can be a basis for a claim of discrimination, but differ on whether discrimination has been proven. Not clear what ―discrimination‖ means. If it doesn‘t mean discriminatory purpose, and it‘s not demonstrable simply by discriminatory impact, then what else could it mean? 4. Summary of Dormant Commerce Clause analysis. a. Prohibits ―simple economic protectionism‖ – for this, there is a per se rule of invalidity. (City of Philadelphia v NJ) b. Requires the state to justify incidental burdens on interstate commerce and uses a balancing test to determine whether a state has met its burden. (Pike v Bruce Church, Inc.) c. Impact on interstate commerce may lead a court to declare that the statute is impermissible discriminatory (Hunt), but not clear (Exxon). d. Exception to the nondiscrimination rule as mentioned in Camden for ―market participant.‖ If a state acts as a market participant rather than a market regulator, then it may discriminate in favor of its own residents. (Reeves, Inc. v. Stake). e. Consider Scalia: ―to the extent that we have gone beyond guarding against rank discrimination against citizens of other states, which is regulated not by the Commerce Clause but by the P&I clause, the court for over a century has engaged in an enterprise that it has been unable to justify by textual support or even coherent nontextual theory, that it was almost certainly not intended to undertake and that it has not undertaken very well.‖ f. Preemption that state legislation would automatically follow if the grant of power to Congress to regulate interstate commerce were exclusive, but its not. g. The court cannot distinguish the subjects of commerce power because the Constitution treats commerce as a unitary subject. The least plausible theory it the one that in enforcing the Commerce Clause the Court is not applying a constitutional command at all, but is merely interpreting the will of Congress, whose silence is to be taken as a prohibition of regulation. There is no reason why congressional inaction under the Commerce Clause should be deemed to have the same preemptive effect elsewhere accorded only to congressional action. There, Congress‘ silence is just that—Silence. h. Bobbitt’s modalities and dormant commerce clause analysis. (Class discussion and handout). Which of Bobbitt‘s six modalities does the Court rely on most heavily in its dormant commerce clause analysis? -Historical: The prevention of state protectionism was one of the underlying purposes of the original Constitution, because one of the principle defects of the Articles was that they permitted such protectionism. However, there is no evidence that the framers specifically intended that the judiciary invalidate laws that hadn‘t been prohibited by Congressional statute. Moreover, if the text doesn‘t support judicial power, this reinforces the conclusion that the framers didn‘t mean for judges to have this power. -Textual: Art I, §8, cl. 3 gives Congress the power ―to regulate Commerce…among the several states.‖ Other provisions in §9 prohibit duties on articles exported from any state, and §10 prohibits states from laying imposts or duties without Congress‘s consent. -Marshall: Congress‘ commerce power was exclusive, but he wasn‘t willing to go all the way by invalidating quarantine laws and preventing states from damming navigable waterways. If Congressional power isn‘t absolutely exclusive, then is there a limited sphere of exclusive power over commerce? Cooley v. Board of Port Wardens (1851) held that Congress has exclusive power to legislate on matters that ―are in their nature national, or admit only of one uniform system.‖ -This position has left the Constitution‘s text behind, as in the realm of judicial gloss. If Cooley is correct, then (1) the text is indeterminate and (2) it is legitimate to go beyond the text. Thus, the test does not support the dormant commerce clause doctrine. At best, it is permissive insofar as it does not prohibit courts from assuming this power. -Structural: It is inconsistent with the overall constitutional scheme for the states to be able to enact protectionist laws that obstruct interstate commerce. The original intent and the text indicate a purpose to maintain free trade among the states. However, it is not clear that this purpose will be thwarted if the federal courts get out of the dormant-commerce-clause business. It may be Congress‘ job. -Doctrinal: The dormant commerce clause doctrine is well established in precedent. But is that precedent justified? -Ethical: Fact of common citizenship. The US is a single nation, not an expedient alliance between otherwise hostile powers. Thus, people of one state shouldn‘t treat the interests of fellow Americans as irrelevant or as resources to be exploited. But this is how outsiders are treated by protectionist laws, which the Court therefore ought not to tolerate. However this says nothing about the judicial role. -Prudential: If the states are allowed to do whatever thy want, free trade will break down, trade wars will ensue and the political and economic consequences will be bleak. However, if the results are that bad, then Congress can probably be relied on to intervene. -Note on Role of consequentialist reasoning: Note that the historical, structural, ethical and prudential arguments, identify purposes that the Constitution seeks to achieve. Because these consequentialist arguments depend on the 39 future, and because predictions are necessarily contestable among reasonable people, there will always be room for disagreement about the validity of the doctrine. IV. SEPARATION OF POWERS (Horizontal Distribution of National Power) A. The Distribution of National Powers (Why does Separation of Powers Matter?) 1. The Federalist No. 47 (Madison) 1787 {There must practically be some mixing of the 3 branches, but full power over 1 branch by another = tyranny} a. Does the constitution violate the political maxim that the legislative, executive and judiciary departments ought to be separate and distinct? (Answer: No) b. WE look to Montesquieu and the British Constitution, which shows that the three departments are not absolutely distinct from one another. Montesquieu did not mean that the three branches ought to have no control over whatsoever over one another, just that where the whole power of one department is exercised by the same hands which possess the whole power of another department, the fundamental principles of a free constitution are subverted and leads to tyranny. c. States‘ constitutions too—not a single instance in which the several depts. of power have been kept absolutely separate and distinct. 2. The Federalist No. 48 (Madison) 1787 a. Unless the three branches are so far connected and blended as to give each a constitutional control over the others, the degree of separation which the maxim required as essential to a free government cannot be maintained. b. We must provide some practical security for each branch, against the invasion of the others. c. The entity most needing to have its power checked is the legislative branch because in a democracy, the legislative power is exercised by an assembly, which is inspired by a supposed influence over the people and a confidence in its own strength, yet is not so numerous as to be incapable of pursuing the objects of its passions by means which reason prescribes, its constitutional powers are at once more extensive and less susceptible of precise limits than any other branch 3. The Federalist No. 51 (Madison) a. Each dept. shall have a will of its own…yet practical difficulties necessitate some deviations from that principle. b. The greatest security against a gradual concentration of the several powers in the same dept. = giving to those who administer each dept. the necessary constitutional means and personal motives to resist encroachments on the others. ―Ambition must be made to counteract ambition…‖ c. You must first enable the gov. to control the goverened; and in the next place oblige it to control itself. Latter done via policy of supplying, by opposite and rival interest… checks and balances necessary b/c men aren‘t angels d. In a republican gov., the legislative authority necessarily predominates. remedy = bicameralism. 4. The Theory of Separation of Powers and Checks and Balances a. In general. ―Separation of powers‖ captures the constitutional effort to allocate different sorts of power among 3 governmental entities that are constituted in different ways. S of P suggests the independence of each branch. ―Checks and balances‖ is in some ways more accurate. C&B implies their interdependence, with each needing the help of the others to accomplish its ends. C&B focuses on the constitutional effort to ensure that the system will be able to guard against usurpation of authority by any one branch. To some extent, the two concepts work against one another. As with federalism, the point of Sof P is to protect individuals, not institutions. The various checks secure a realm of private liberty, by preventing govt. from becoming strong enough to invade those liberties. b. Purposes of separation and checks. i. Efficiency. A division of labor among the various branches makes government more efficient, especially because of the concentration of executive power in the president, who can act with dispatch. A central defect of the Articles of Confederation was the failure to provide for an executive. ii. Preventing tyranny. The separation of powers diffuses governmental power, diminishing the likelihood that any one branch will be able to use its power against the citizenry (1) The rule of law. The separation of powers ensures that the power to make the law is not in the hand of those who execute it. Lawmakers know they will be subject to the laws they make. (2) Rulers vs. ruled. A concern of the framers was that government officials would act in their own interest, not in the interest of the public. The separation of powers was intended as a partial remedy , safeguarding both liberty and private property against governmental action. If one branch tried to use its power in an oppressive manner, ambition would counteract ambition and another branch would provide resistance. The power of the legislature provided the most danger. 40 (3) Limited Government. No law can be brought to ear against the citizenry without a broad consensus. The executive and the judiciary must concur with the legislature in order for a law to be enforced. (4) The problem of factions. Separation of powers was also a partial solution to the problem posed by factions – the risk that governmental power will be usurped by private groups seeking to obtain distribution of wealth or opportunities in their favor. Under separation of powers, a faction may be able to acquire power over one branch, but it was unlikely that it could do so over all three. A goal of separation of powers was to protect minorities against tyranny. c. The Constitutional distribution of powers: contemporary criticism. The separation of powers has come under attack in the 20th century. Critics claim that: i. The system is so inefficient it can‘t accomplish anything ii. The separation of powers scheme, instead of solving the problem of factions, aggravates it by allowing well-organized private groups to block necessary legislation. Sometimes urged the President should have a greater role. iii. Power is now concentrated in the executive branch and it is thus necessary to restore Congress to its original status of preeminence. d. A judicial role. What role should the courts play in preserving the barriers against combination of powers and the maintenance of checks and balances. i. J. Choper – ―The important message [to] be gleaned from [the] founders‘ thinking is that the checks on legislative autocracy contemplated exist independently of judicial supervision of the constitutionally mandated separation of powers between the President and Congress.‖ ii. Does this argument disregard the possibility that a judicial role is necessary to prevent a stalemate between the branches and potential constitutional crises? B. Control of Domestic Affairs 1. Executive Authority: There are few powers which are explicitly granted by the Constitution to the President. These are enumerated in Art. II §2. Much of the President‘s power, in both the domestic and foreign sphere is implied. This process by implication has been derived mostly from Art. II §1, ―The executive power shall be vested in the President …‖ If the S/Ct, concludes that a presidential action is properly regarded as being part of the ―executive‖ (rather than judicial or legislative) sphere, that action will not be rendered unconstitutional merely be the fact that it does not fall within any specific constitutionally-enumerated power. a. Executive-Legislative Conflicts (1) President has no right to ―make laws‖: One big limitation: The President may not make laws; he may only carry them out. -Youngstown Sheet & Tube Co. v. Sawyer (The Steel Seizure Case) (1952) Facts: During the Korean War, President Truman sought to avert a strike in the nation‘s steel mills. He therefore issued an executive order directing his Secretary of Commerce to seize the mills and operate them under federal direction. Congressional approval of the seizure was not requested. When T. seized the mills, he explained that the Taft-Harley Act was inadequate to deal with the national emergency, because the steel plants would have been shut down during an inquiry which would have least at least a week. The steel companies sought an injunction to prevent the seizure. Koppleman noted that there was no Congressional approval or authority for sending troops to Korea, either. Holding: The Court STRUCK DOWN the seizure order, concluding that it was an unconstitutional exercise of the lawmaking authority reserved to Congress. Opinions : -Black – Opinion of the Ct.: This is a legislative and not an executive act, and therefore the president can‘t do it. The taking of private property in order to keep labor disputes from stopping production of was materiel was too far removed from the actual ―threat of war‖ in which the President had the right to set policy. Nor could the seizure be justified under the President‘s power to see that the laws are faithfully executed –the language of the clause shows that the President must merely carry our the laws, not make them. - Modality- Black‘s approach is rigidly textual and one of classification: Does the asserted power fall within the category of ―legislation‖ or that of ―execution‖, as those terms are conventionally understood? -Frankfurter: – Congress chose, in the Taft-Hartley Act, not to give the President this power, therefore he doesn‘t have it. Koppelman asks—why is this not a question of the political question doctrine.? -Jackson: The most influential opinion - President‘s powers are not fixed, but fluctuate depending on their disjunction or conjunction of Congress. President can exercise power in three situations: (1) Pursuant to express Congressional authorization, then he acts for the entire federal government and exercises all the power that the government has; 41 Where the president acts in the absence of either a congressional grant or denial of authority, the scope of which can‘t be defined by abstract theories. (Koppleman notes that most presidential acts will fall in this category). (3) When Congress has indicated that it does not want the President to exercise a certain power, then the president can act only if the subject is one that Congress has no authority to act upon. The steel seizure falls in this category. The inherent presidential power asserted here is dangerous because it is inherently limitless. Allowing such inherent emergency authority improperly amends the constitution. Modality: In contrast to Black‘s opinion, Jackson‘s considers: whether Congress has granted or refused to grant the relevant power, whether historical practices support the assertion of power, and whether ―contemporary imponderables‖ or the imperatives of events argue in favor of or against the asserted power. -Douglas: This order seizes property. Property can‘t be taken without compensation, under the 5th amendment. Only congress can appropriate the money to compensate for taking property. T/f, only Congress, not the president, can authorize a seizure of this sort. Dissent: Vinson- Immediate peril to the nation justifies the president in doing what is necessary in order to meet the emergency. Koppleman notes that Vinson‘s account of the facts are more detailed than those provided by the dissent. If the facts asserted by Vinson are true, should the be irrelevant to the Court‘s decision? Note: Rehnquist, who was Jackson‘s law clerk at the time, later said that public opinion influenced the court‘s decision. Also note: Both Frankfurter and Jackson agree that the text of the Const. is not conclusive. Both believe that ―history‖ is relevant as a ―gloss‖ on the text. (2) Unless there is an implied acquiescence by Congress: C. may sometimes be found to have impliedly acquiesced in the President‘s exercise of power in a certain area. Where such acquiescence exists, this fact may be enough to tip the balance in favor of a finding that the President acted within the scope of his constitutional authority. The Ct. relied on such a theory of implied congressional acquiescence in upholding Pres. Carter‘s power to take certain actions for the purpose of obtaining the release of American hostages from Iran. -Dames & Moore v. Regan (1981) Facts: As part of the settlement of the hostage situation, President Carter took a number of actions affecting the claims of American creditors against Iran. The action which posed the most difficult constitutional issue was his suspension of all contractual claims against Iran then pending in American courts; such claims were to be later arbitrated by an international tribunal. Holding: The court found that the claims suspension WAS OK, within the President‘s constitutional authority. The court upheld that agreement with Iran that provided, inter alia, that all legal proceedings in the US would be transferred to the tribunal. While Congress had never explicitly delegated to the President the power to suspend such claims, it had implicitly authorized that practice by a long history of acquiescing in similar presidential conduct. (Emmanuel) The Ct. carefully stressed the limited scope of its holding. ** It was not holding that the President has constitutional authority to settle or suspend all claims; the Ct. was simply deciding that where such settlement or suspension is a ―necessary incident to the resolution of a major foreign policy dispute, and C. has acquiesced in that type of presidential action, the action will be deemed within the President‘s authority. Distinguished from Youngstown: The legislative scheme in one case constitutes a mood against presidential power and the other for presidential power, but there is a shakiness about the arguments because the intent being attributed to Congress is so obviously a judicial invention in both cases. Rehnquist attempts to differentiate the two by invoking the International Emergency Economic Powers Act (IEEPA), which, though it doesn‘t specifically authorize what the president has done, indicates congressional acceptance for a broad scope of executive action in circumstances such as those presented in this case. Thus, here Congressional silence reflects a mood that supports the President, whereas in Youngstown, Congressional silence was read to have the opposite implication. - US v. Curtiss-Wright Export Corp. (1936) (p930) Ct upheld the President‘s action against CW for selling guns to warring factions in Bolivia. J. Sutherland: national power over external affairs inherent and plenary & the President plays a uniquely important role in foreign affairs. ―In this vast external realm…Pres. alone has the power to speak of listen as a representative of the nation. He makes treaties w/ advice and consent of the Senate; but he alone negotiates.‖ If our foreign policy is not to be embarrassed, congressional legislation which is to be made effective via negotiation and inquiry must often accord to Pres. a degree of distinction and freedom from statutory restriction. b. Executive-Judicial Conflicts (1) Executive Privilege: Several presidents have invoked what they described as the doctrine of ―executive privilege‖ to justify their refusal to disclose info. which they claimed to be confidential. The only S/Ct. case to give any definitive scope to the doctrine of executive privilege was U.S. v. Nixon, the famous 42 (2) ―Watergate Tapes‖ case. In Nixon, the Ct. recognized in general terms a constitutionally-based doctrine of e/p, but held that the privilege was only a qualified one, which was overcome on the facts of Nixon by the needs of a pending criminal investigation. -U.S. v. Nixon (1974) Facts: In March 1974, a federal grand jury indicted seven Nixon aides on charges of conspiracy to obstruct justice and other Watergate-related offenses. The president was named as an unindicted co-conspirator. The Watergate Special Prosecutor then persuaded the federal trial court to issue a subpoena duces tecum to the president requiring him to produce various tapes and documents relating to certain meetings involving the president; these documents and tapes were to be used during the trial of the indictments. The president released transcripts of some of the tapes, but refused to produce the tapes themselves, and moved to quash the subpoena. The trial court rejected the president‘s claim of privilege, and the matter was heard by the Supreme Court on an expedited basis. Holding: In unanimous decision, although SCt upheld the general doctrine of executive privilege, SCt held that in this case, the privilege did not apply, and ordered the president to comply with the subpoena. i. Court, not President decides: First, SCt rejected president‘s claim that ―the separation of powers doctrine precludes judicial review of a President‘s claim of privilege.‖ The SCt quoted Justice Marshall‘s statement in Marbury v. Madison that it is the duty of the judicial branch to ―say what the law is.‖ Thus, the Court, and not the President, must evaluate claims of presidential privilege. ii. Privilege Exists: SCt then held that there was indeed a privilege for ―confidentiality of Presidential communications in the exercise of Article II powers.‖ The SCt noted that confidentiality was required by the fact that ―those who expect public dissemination of their remarks may well temper candor with a concern for appearances and for their own interests to the detriment of the decision-making process.‖ Therefore, the SCt concluded, the privilege of confidentiality ―can be said to derive from the supremacy of each branch within its own assigned area of constitutional duties.‖ ―The privilege is fundamental to the operation of Government and inextricably rooted in the separation of powers under USC.‖ iii. Privilege only qualified: However, SCt rejected President‘s claim that executive privilege was absolute. At least where the claim of privilege was (as in the present case) a general one, and not related to a particular need to protect ―military, diplomatic, or sensitive national security secrets,‖ the Court held that the privilege was merely a qualified one. As such, it was outweighed by the need to develop all relevant facts in a criminal trial. Rationale: (1) Article III Argument: SCt observed that both President‘s claim of privilege, and the criminal justice system‘s need for access to all relevant evidence, were of constitutional dimension. However, the latter outweighed the former, in part because the SCt did not believe that the possibility of infrequent subpoenas like the one here would often have an adverse impact on the candor of discussions to which Presidents are parties. The president‘s need for confidentiality can‘t be absolute or this will conflict with the rule of law. Cts. must be allowed to adjudicate criminal cases fairly. (Though K. says this arg. goes too far. Sees a chilling effect with regards to other privileges such as attorney, priest, self-incrimination. If SC were correct that need for relevant evidence in trials is an overriding one, then these privileges would have to be discarded as well.) (2) Rights of Defendants: Moreover, D in criminal trial has right to subpoena witnesses; he cannot be deprived of liberty without due process of law, and to guarantee these Ds due process, court must be able to consider relevant evidence. (K. says: Arg. might be relevant if it were defs. trying to get evidence, but even then it would not authorize such rights to override privileges noted above b/c privileges should not be any less strong. But here, prosecutor trying to obtain evidence. If prosecutor cannot get evidence needed to make case, result is not that def. is deprived of liberty but rather that def. is mistakenly acquitted. It is disingenuous to rely on rights of defs. in this case, when defs. seek SC to uphold privilege.) iv. Balancing Test: Since privilege is not absolute, it can be overcome by the intersts of the criminal justice system. This is of course a balancing test. v. Duty of Trial Court: President was therefore ordered to deliver the subpoenaed tapes and documents to the federal district court. However, the district court was ordered to perform a close in camera (non-public) examination of all of the materials. Statements that were both admissible and relevant to the criminal prosecution were to be isolated, and all other statements were to be disregarded and kept secret. (2) Case Law on Presidential Immunity - Nixon v. Fitzgerald (Powell 1982) – The President has absolute immunity from civil liability for his official acts. SC held by 5-4 vote that Nixon was immune from action for damages from P claiming he was discharged from government position b/c he exercised his right to freedom of speech. Reasoning: 43 SC reasoned that prominence of president‘s office makes president easy target for suits for civil damages; vulnerability to such suits would distract president from his public duties to detriment not only of presidency as office, but also the nation. In response to suggestion that absolute immunity would leave nation unprotected against presidential misconduct, SC argued that numerous safeguards are already in place: impeachment, scrutiny by press, Congressional oversight, desire to win reelection, need to maintain prestige as element of influence, president‘s concern for historical stature. White Dissent: (1) Speech and Debate Clause (which provides protection for members of Congress) has no counterpart in USC giving any sort of immunity to members of Executive Branch. Thus, any presidential immunity is derived from constitutional separation of powers and public policy. (3) No Presidential Immunity for Non-official acts: Fitzgerald only estb. immunity for official presidential acts, i.e., those that are within the ―outer perimeter‖ of the President‘s job. There is no immunity – not even qualified immunity – for acts that the President takes that are completely unrelated to the carrying out of his job. - Clinton v. Jones (1997) Facts: Involved a private damages suit by Paula Jones, filed while Clinton was in office. Jones claimed that while she was employed by the state of AK and Clinton was Gov., Clinton made illegal sexual advances to her. Clinton argued that a President should have ―temporary immunity‖ - to last while he is in office – against virtually all civil litigation arising out of events that occurred before he took office. Holding: Unanimously REJECTED. Ct. noted that the rationale for immunity for official acts of the President and other officials was that such immunity ―serves the public interest in enabling such officials to perform their designated functions effectively without fear that a particular decision may give rise to personal liability. This rationale did not apply to the President‘s unofficial acts, including any acs he took before he became President. T/f, there was no policy reason for allowing even temporary immunity for unofficial acts. Stevens (majority): unpersuaded that effective performance of president‘s office will be impaired, b/c he deems case ―highly unlikely to occupy any substantial amount of president‘s time.‖ Also rejected separation of powers claim. The Ct. also rejected claim that when the judiciary subjects a sitting president to the burdens of trial in a civil case, this is a violation of s of p, in that the judiciary is burdening the President‘s performance of his duties. The Ct. reasoned that the burden of defending a civil case was no greater than other litigation-related burdens to which Presidents had always been sugjected. 2. Legislative Authority; Legislative-Executive Conflicts a. Formalism vs. Functionalism – Much of the debate about Legislative Authority centers around disagreement concerning these two theories of constitutional interpretation. (1) Formalism – separation of powers doctrine is governed by relatively clear rules that demarcate separate spheres of governmental authority. (a) Formalism is defended on originalist grounds. (b) Some formalists argued that SC has good reason to decide cases in formalist way so as to ensure against various problems presented by modern legislative initiatives, even if formalism is not defensible historically. (2) Functionalism – advocates more fluid approach that prohibits an ―aggrandizement of power‖ or ―undue mingling of functions,‖ but that allows some overlap and is more receptive to changing boundaries so as to deal with changing situations. (a) Some functionalists use originalism to criticize formalism (shown by Flaherty‘s argument below). (b) Other functionalists concede that formalism is defensible on originalist grounds, but defend functionalism as best way to make sense of constitutional structure under modern circumstances, in which president‘s power threatens to undermine constitutional structure. (3) Flaherty – originalist defense for flexible approach to separation of powers: Judiciary should not be shielding presidency (most powerful office in nation) from congressional regulation. (a) Founders intended for separation of powers to fulfill several goals: balance among branches, accountability to electorate, energetic/efficient government. (b) Balance cuts against unitary presidency, but accountability and energy cut in favor of unitary presidency. (c) Examination of founders‘ intentions shows we do not need to consider balance and accountability/energy as mutually exclusive goals: i. Founders took balance very seriously. Thus, given rise of administrative state, congressional regulation of executive branch is more crucial than ever before. ii. Contrary to usual assumptions, Founders sought to tame, not further empower, those divisions of government claiming special responsiveness to electorate. Thus, need for congressional 44 regulation is necessary precisely because of modern president‘s claim to electoral accountability. b. The Nondelegation Doctrine– Note on Administrative Agencies – The nondelegation doctrine holds that the Legislature cannot delgate any of its structural powers to either of the other two branches. This would violate the concept of Separation of Powers. (Textual/Structural Arg.) Additionally, neither the Executives‘ Role nor the Judicial‘s Role can be abridged by an action of one of the other branches. The functions that are the appropriate job of any of the three branches cannot be given instead to another branch. (1) Introduction - Historical conventional understanding – that C. is exclusive lawmaker – no longer reflects reality. In every industrialized nation, administrative agencies (part of executive branch) have been granted considerable lawmaking power. Under current doctrine, very few, if any, constitutional restraints on C.‘s power to delegate. (a) Possible reasons why Congress delegates broad discretionary power to administrative agencies: i. Administrators have necessary expertise ii. Area changes rapidly iii. Severe political costs to precise solutions of problems; no such costs attach if Congress merely identifies problem and asks administrators to solve it. iv. Only an administrative agency staffed by experts and combining legislative, adjudicative, and executive authority has flexibility to engage in regulatory and redistributive activity necessary in a post-New Deal regulatory state. (b) Constitutionality of broad delegations of discretionary power to admin agencies i. Some argue that such delegations violate original constitutional structure by allowing combination of legislative and executive power. ii. Others argue there is no historical basis for this view, and that early congresses often delegated discretionary power to the executive. iii. Our opinion here may depend on our position over extent to which government interference with ―private‖ economic ordering is constitutionally permissible. Two views: (1) Framers created sharp divisions between legislative and executive authority in order to make such interference difficult. (2) Framers left questions about substantive ends of government to democratic processes. (c) Nondelegation doctrine – Article I, by vesting legislative power in C., imposed constraints on C.‘s authority to delegate that power to others. (In past, this was much more strictly adhered to) Doctrine was thought to serve several functions: i. Ensured that fundamental policy choices would be made by legislature and not by officials w/in executive branch (less accountable). ii. Promoted predictability for those benefited/burdened by regulation. iii. Prevents arbitrariness on part of administrators by confining them to enforcement process. (f) Application of nondelegation doctrine concerning National Industrial Recovery Act of 1933 (NIRA) – NIRA sought to permit representatives of labor and management in each industry to design codes of ―fair competition‖ in order to stabilize wages and prices. Two cases below are only decisions which invalidated federal statutes on nondelegation grounds in nation‘s history. i. Schechter Poultry Corp. v. United States (1935): SC invalidated ―live poultry code‖ which contained maximum hour and minimum wage provisions and prohibited various practices said to be ―unfair methods of competition.‖ It is unconstitutional for Congress to delegate lawmaking authority regarding what constitutes ―fair competition‖ to trade/industrial associations. (2) The Demise of the nondelegation doctrine – The growth of administrative state is wedded to demise of nondelegation doctrine. Nondelegation doctrine has all but disappeared as constraint on delegation of authority to administrative agencies. (a) Why did the nondelegation doctrine fail? i. Judicially underenforced constitutional norms. ii. Has Const. changed? (e.g. Bruce Akerman) iii. Are there any situations in which it would be appropriate to invoke the nondelegation doctrine? Suppose a statute paraphrases Truman‘s pre-Youngstown press conference and declares ―the president shall have the power to do whatever he thinks is best for the country.‖ 45 (c) On rare occasions, nondelegation doctrine is invoked as aid to statutory construction: fear of broad delegation is reason to construe administrative authority narrowly. (d) Schecter itself has not been overruled, and massive delegation of authority as in that case might be struck down today. But nondelegation doctrine has not been invoked in modern cases, notwithstanding breadth of delegations to administrative agencies. (3) Arguments in favor of reviving nondelegation doctrine (a) D. Schoenbrod: Delegation allows legislators to claim credit for benefits which a regulatory statute promises yet escape blame for burdens it will impose b/c they do not issue laws needed to achieve those benefits. USC prohibits delegation of legislative power. (b) Rehnquist dissent [Industrial Union v. American Petroleum Institute (1980)] Rehnquist would have decided case on nondelegation grounds. (1) Rehnquist argued that when fundamental policy decisions underlying important legislation about to be enacted are to be made, buck stops with Congress and president insofar as he exercises his constitutional role in legislative process. (2) C/A: If Congress is forced to confront ―hard choices,‖ its ability to enact legislation declines and more activity is left unregulated in private sphere. (c) Ely (Democracy and Distrust): Distribution of the franchise and other political rights is irrelevant unless important policy choices are made by elected officials. C/A: Response to argument that delegation is necessary given complicated policy problems (d) Class Discussion: Without Delegation it is much harder to regulate. C. would have too much on its plate. C/A: It wouldn‘t take much for Congress to ratify what ever proposals the agencies offered up. C/C/A: May be good that agencies aren‘t too politically involved. Should be concerned with public good not what the head of some congressional committee wants. (d) Stewart – against nondelegation doctrine: In many government endeavors, it is inherently impossible to identify particular course of action to be adopted. There are many institutional constraints on Congress‘s ability to specify regulatory policy in meaningful detail. Judicial enforcement of nondelegation doctrine is problematic b/c judgment as to degree of policy specificity that is possible in given case is quite subjective. (4) Structural Statutes (a) If nondelegation doctrine is not revived, and if it is impossible for C. to set forth clear standards to govern decisions by administrative agencies, are there alternative means by which C. might establish original position as lawmaker? (b) Congress has sporadically attempted to reassert its authority by enacting structural or ―quasiconstitutional‖ statutes: Presentment/ Bicameralism Argument (Can‘t delegate power to legislate, because it violates these principles) (1) Legislative Veto – A legislative veto provision was typically included as part of a congressional statute delegating certain powers to federal agencies. The legislative veto allowed one or both houses of C. to pass a resolution invalidating decisions made by administrative agencies. The resolution was not presented to the Pres. (as a statute must be), and Pres. did not receive an opportunity to veto the resolution. The legislative veto enabled Congress to retain some control over the authority which it broadly delegated to president. In Chada, S/Ct. held that a typical one-house legislative veto was unconstitutional, because it violated both the President‘s veto power and the bicameral structure of Congress. If the House or Senate wants to reserve power to undo the action of an administrative agency, both houses will have to pass the same bill and present it to the President for a possible veto. -INS v. Chadha (Burger 1983) – Facts: Article I, §8 of USC gives Congress the right to establish rules of naturalization and, by implication, immigration. Congress has always possessed, and has frequently exercised, the power to allow an alien who would otherwise be deportable under existing immigration rules to remain in the country; typically, this has been done by means of a ―private bill‖ applicable to one or a few particular aliens. In an effort to relieve itself of the burdens of considering numerous private bills, Congress delegated to the Attorney General, in the Immigration and Nationality Act, the authority to suspend deportation of aliens in certain situations. However, in order to retain some control over this delegated power, Congress reserved to itself a legislative veto over each decision by the Attorney General suspending deportation. The veto could be exercised by a resolution passed by either house within a certain time after the Attorney General‘s decision to suspend deportation. Chadha, the plaintiff, was one of several aliens as to whom the House of Representatives used its veto power to reverse the A/G‘s suspension of deportation. Holding: Veto Provision Stricken: SCt struck down this legislative veto as a violation of two distinct constitutional requirements. First, the veto violated the Presentment Clause (Art. I, §7, cl. 2) which requires that every bill be presented to the President for his signature, so that he may have 46 c. (2) (3) (4) (5) the opportunity to veto it. Secondly, this particular veto provision, since it could be exercised by a single house, violated the bicameral requirement of Article I, §§1 and 7, by which both houses must pass a bill before it can become law. (a) Essentially Legislative Act: The real issue in the case was whether the House‘s issuance of the legislative veto here itself constituted the exercise of legislative power. Not all acts by a house fall into this category, and only the ones that do require presentment and bicameral approval. However, in the Court‘s view the overruling of the Attorney General‘s decision on a deportation matter did constitute the exercise of legislative power, since it had the ―purpose and effect of altering the legal rights, duties, and relations of persons . . . outside the legislative branch.‖ (b) Consequence: Consequently, Congress could reverse the Attorney General‘s decision on a deportation matter only by passing a law, in the constitutionally-prescribed manner (passage by both houses, presentment to the President and either signature by him or the overriding of his veto). The fact that the legislative veto mechanism may be a more ―efficient‖ means of controlling administrative action was irrelevant. (c) Two-House Veto Provisions: In the vast majority of instances, legislative veto clauses allowing a veto only where both houses act concurrently are just as unconstitutional as a single-house veto provision, since both types of clauses deprive the President of his veto power. Koppelman Critique (a) Does it make sense to deem such decisions ―essentially legislative‖? Under nondelegation doctrine, that label would probably have meant that INS could not suspend Chadha‘s deportation, because INS cannot make law. (b) Why is bicameralism and presentment necessary when Congress delegates ―essentially legislative‖ power to itself or its members, but not when it delegates such power to someone else? Dissent (White): (Functional) Argued that a house‘s use of the legislative veto was simply not the functional equivalent of passing a law. The legislative veto ―no more allows one House of Congress to make law than does the presidential veto confer such power upon the President.‖ He argues that this holding is inconsistent with the abandonment of the nondelegation doctrine and the recognition of independent agencies, both of which were based on a flexible approach to separation of powers issues. Since executive power has grown far beyond anything contemplated in the original Constitution, it is appropriate for C. to craft a new check on that power. Also has a formalist arg. to counter the majority‘s formalism: the legislative veto device replicates the basic constitutional structure for enactment of laws, because a regulation can‘t become law unless al three branches concur. Dissent (Rehnquist): Argues that the legislative veto is not severable from the rest of the law, so Chadha should be deported anyway. If entire statute is invalid, then the INS had no authority to suspend Chadha‘s deportation. Issue re: Doctrine of Severability: See notes on pg. 8 of 3/9/98 handout. General Critique by Koppelman (a) None of opinions address whether legislative veto was actually an effective tool for checking administrative agencies. i. Tribe: ―legislative vetoes may not have substantially enhanced governmental efficiency, but may instead have simply given special interest groups that lose battles before agencies ways to win favors from committees of Congress.‖ (b) It is not clear that decision has had much effect on actual practice. i. From Chadha  end of 103rd Congress on 12/1/94, Congress enacted more than 300 new legislative vetoes, most of which require executive branch to obtain approval of specified committees. ii. B/c Congress can place onerous restrictions on funding, it has been able to bargain for informal, nonstatutory agreements that certain agency actions will not be taken w/o approval of specified committee. These understandings were first articulated in committee reports but have now often been incorporated into agency manuals, and would therefore remain in effect even if legislative vetoes were removed from statutes. iii. Fisher and Devins: ―Predictable and inevitable result of Chadha is a system of lawmaking that is now more convoluted, cumbersome, and covert than before. In many cases the Court‘s decision simply drives underground a set of legislative and committee vetoes that used to operate in plain sight.‖ 47 (c) Chadha in Context: Legislative Control of the Bureaucracy – the legislative veto is one of a number of means by which Congress has attempted to control administrative agencies to which Congress had delegated substantial discretionary authority. (1) Hearings: Congressional committees/subcommittees hold oversight hearings; publicity may lead to informal pressure for changes in executive policy. (2) Appropriations Rider: attachment to an authorization of expenditure of federal $$$ that prohibits agency from engaging in certain courses of conduct. (3) Budget: C. can simply increase/decrease a given agency‘s budget in the annual appropriations process to express its views on the agency‘s mission and whether more or less enforcement is desirable. (4) Sunset Legislation: provides that agency authority will terminate after certain period unless Congress reenacts substantive statute. (5) Ordinary Legislation modifying agency’s authority: Repeal of agency authority, through o/l, to engage in particular course of conduct. Even more extreme, C. might rewrite statute itself to limit agency authority. Where do administrative agencies ―fit‖ in the separation of powers scheme? (1) Defining the Issue: (a) The basic idea of separation of powers as applied to Congress is that the maker of the law should not control how the law is applied; it must be applied equally to everyone. Separation of powers is bound up with the notion of ―rule of law.‖ i. Legislature: One explanation of the result in Chadha (though it does not appear in any of the opinions) is that the law was bad because Congress was attempting to control the application of its own standard, so that it mean one thing when applied to its friends and another thing when applied to its enemies. ii. Judiciary: Similarly, the judiciary applies the law, but does not get to say what standards it will apply. iii. Executive: No such limitation on the executive is possible. Police officers routinely decide which infractions to penalize and which to ignore. Prosecutors pursue some cases vigorously and dismiss others. The inevitable discretion of law enforcement officers means that executive is well placed to benefit his friends and persecute his enemies. The control against executive‘s abuse of power is primarily political. (b) Article II vests executive power in one person (unlike the legislative and judicial powers). Power is vested in the President, not in subordinate officials. Framers rejected notion of a ―plural executive.‖ (Federalist No. 70). i. Unitary executive helps to ensure (1) expeditious action, (2) coordination, and (3) accountability. ii. The rise of administrative agencies threatens all these purposes. Improper Execution of Laws: (C. not allowed to delegate power to execute the law to one who administer‘s the law – violation of S of P) - Bowsher v. Synar (Burger 1986) – This case invalidated the Gramm-Rudman Act because the Act violates the separation of powers. Facts: The Gramm-Rudman Act, Congress‘ attempt to reduce federal budget deficits, set a ―maximum deficit amount‖ for each of the fiscal years 1986-1991. The size of the maximum allowable deficit was reduced each year, until it was to become zero in 1991. In any year in which the deficit exceeded the maximum deficit amount, the Act required across-the-board cuts in federal spending to meet the targeted amount. These cuts were ―automatic‖ in the sense that they were essentially pro-rata (half to defense programs and the other half to non-defense programs). Role of Comptroller-General: The Act gave a key role to the Comptroller General of the U.S. in carrying out the automatic cut provisions. The Comptroller was to review budget estimates given to him by two federal agencies, and then submit to the President a report stating on a program-by-program basis how much needed to be cut. The President was then required to issue an order mandating the reductions specified by the Comptroller. Congress could then, by special legislation, reduce spending to eliminate the need for some or all of the cuts; if it did not do so, the cuts called for in the presidential order were to be automatically carried out. Right to Remove Comptroller: By separate, much older, legislation, Congress reserved to itself the right to remove the Comptroller General from office for five specified reasons (―permanent disability,‖ ―inefficiency,‖ ―neglect of duty,‖ ―malfeasance,‖ or ―a felony or conduct involving moral turpitude.‖) In the 80-odd years since the post of Comptroller General was established, Congress had never exercised, or even made a serious move to exercise, this removal power. Holding: Statute Struck Down: By a 7-2 vote, SCt struck down the automatic-reduction provisions of the Act. In doing so, the SCt applied the following reasoning: 48 d. e. (a) Act uses the Comptroller‘s ―executive powers;‖ (b) Executive powers may not be vested by Congress in itself or its agents, because Congress is limited to legislative rather than executive functions. (c) Because Congress can remove the Comptroller, he is an agent of Congress; (d) Therefore, the Comptroller may not constitutionally exercise the executive powers given to him in the Act, and (e) The Act‘s automatic budget reduction mechanism, which is based on the Comptroller‘s exercise of his executive powers, must be invalidated. Nature of Removal Power: The most novel aspect of majority‘s reasoning is its assertion that the retention by Congress of the right to remove an executive officer for certain specified types of cause converts that officer into an agent of Congress. The majority stressed that several of the types of cause (―inefficiency,‖ ―neglect of duty,‖ and ―malfeasance‖) are ―very broad and, as interpreted by Congress, could sustain removal of a Comptroller General for any number of actual or perceived transgressions of the legislative will.‖ Also, it was not clear to the majority that there could be judicial review of any removal. Furthermore, there was evidence that both Congress and the Comptroller General himself view him as being ―an office of the Legislative Branch.‖ Concurrence (Stevens, Marshall): Does not think that the Comptroller is acting in an executive capacity. He thinks the law is unconstitutional because the Comptroller‘s actions make law, yet do not meet the bicameralism and presentment requirements of the Constitution. Dissent (White): White argued the majority opinion was too formalistic and ignored the realities of the problem that Congress is trying to address. The SCt‘s technical argument has nothing to do with the concerns that underlie the separation of powers. The constitutional test should be ―whether the Act so alters the balance of authority among the branches of government as to pose a genuine threat to the basic division between the lawmaking power and the power to execute the law.‖ No such threat is presented here. As a result, admin. agencies are given power without an appropriate check. f. Congressional Control over Administrative Officials (1) Chadha and Bowsher: While these two cases both invalidated innovative schemes designed to preserve congressional control of delegated authority, the two decisions utilize different approaches: (a) Chadha: invalidated statute (legislative veto) because it failed to comply with presentment and bicameral requirements for enactment of statutes. Problem with this approach is that in absence of legislative veto, Chadha‘s deportation status would be determined by INS, yet the INS‘s decision also fails to comply with bicameralism requirement. (b) Bowsher: Avoids this difficulty by reversing the analysis; SCt treated Comptroller General‘s budget-cutting authority not as legislative, but rather as executive power. SCt. Held that Congress unconstitutionally trenched on executive authority by vesting this authority in an officer under legislative control. Note: So far, we‘ve looked at statutes designed to assert congressional control over administrative officials (Myers, Chada, and Bosher) these statutes were shot down. The Cases below concern statutes that were designed to protect administrative officials from Executive Control. These statutes were upheld. (H/E, Morrison, and Mistretta) g. The Rise of Independent Agencies: The cases below recognize a congressional power to create ―independent‖ agencies – governmental entities that are free from presidential removal power, and to some uncertain degree, presidential power to supervise and control the decisions of their officers. (e.g. Federal Trade Commission, Federal Energy Regulatory Commission, Federal Communications Commission) - Humphrey’s Executor v. United States (1935) – decided during a time of great faith in bureaucratic expertise, held that an agency‘s proper functioning will be impaired if it is too vulnerable to political interference. SCt unanimously UPHELD a statute limiting the President‘s authority to remove members of the FTC; such members could be ―removed by the President for inefficiency, neglect of duty, or malfeasance in office.‖ Distinguished this case from Myers (Myers v. U.S. (1926) upheld statute that allowed Pres. to remove postmasters) by noting that Myers involved purely executive officers restricted to the performance of executive functions. In contrast, FTC is an administrative body created by Congress to implement legislative policies in accordance with legislative standard in the statute, and to perform other specified duties as a legislative or judicial aid. FTS acts in part quasilegislatively and in part quasi-judicially. h. Special Prosecutor – Congress has delegated from the Executive to the Special Prosecutor an Exec. Function. Congress may limit the President‘s right to remove even a purely executive officer (though an ―inferior officer‖), so long as the removal restrictions are not ―of such a nature that they impede the President‘s ability to perform his constitutional duty.‖ Morrison - Morrison v. Olson (Rehnquist 1988) – Facts: The statute in Morrison required the Attorney General to investigate any allegations of wrongdoing against certain high level members of the Executive Branch 49 (including members of the Cabinet), and to apply to a special federal court (the ―Special Division‖) for the appointment of a special prosecutor if he found ―reasonable grounds to believe that further investigation or prosecution is warranted.‖ Once the special prosecutor was appointed, she could only be removed by the Attorney General, and only ―for good cause, physical disability, mental incapacity, or any other condition that substantially impairs the performance of [her] duties.‖ Holding: By a 7-1 vote, SCt rejected claim that the Act violated Article II, §2‘s appointments clause. The independent counsel is an ―inferior officer,‖ not a principal officer who must be appointed by the president. This is because: (1) the independent counsel can be fired by the attorney general (although only if certain conditions are met), (2) the independent counsel performs very limited duties; (3) the independent counsel has only limited jurisdiction; and (4) the independent counsel has a limited tenure. (a) Appointment by the judiciary is permissible: Congress can determine appointment of inferior officers ―as they think proper,‖ and nothing in Article III prohibits the judiciary from receiving this power. The independent counsel does not interfere with the president‘s executive authority, so the law does not violate separation of powers. (b) the SCt also held that neither the removal provisions nor the act taken as a whole so restricted the Pres.’s powers as to violate the S of P principle. i. Removal Provision: Because the Attorney General could terminate the special prosecutor for ―good cause,‖ the Executive Branch ―retains ample authority to assure that the counsel is competently performing her statutory responsibilities.‖ ii. Law taken as a whole: Similarly, the Act taken as a whole did not unconstitutionally take away the President‘s executive powers, even though his freedom to control the special prosecutor was somewhat limited. True, the President could not select the prosecutor, determine her jurisdiction or remove her except for cause. But the Act reserved to the President the right to decide whether to apply for appointment of a prosecutor, imposed on the prosecutor the obligation to abide by Justice Department policy ―except where not possible,‖ and as noted, allowed the Attorney General to remove her for cause. These powers gave the Executive Branch ―sufficient control over the [special prosecutor] to ensure that he President is able to perform his constitutionally assigned duties.‖ (d) Koppelman Critique: Majority‘s interpretation of the inferior-officers clause is puzzling. To whom, precisely, is the independent counsel inferior? She usually stays in office longer than most cabinet secretaries, and she gets to investigate the president. Does investigating the president not interfere with his authority? (e) Dissent: Scalia contended that the separation of powers principle required that the President maintain complete control over the investigation and prosecution of violations of law. Since even by the majority‘s reasoning the President‘s control over the special prosecutor was curtailed, in Scalia‘s view the Act was clearly a violation of the constitutionally-required separation of powers. i. Separation of powers is intended to prevent precisely the sort of unaccountable coercive governmental power that is created by this statute. ii. The unitary executive is important, in Scalia‘s view, not only because it coordinates governmental action, but also because its accountability protects individual liberty by preventing an unreasonable – and judgments of reasonableness are not applications of any fixed standard – investment of legal resources in the prosecution of a single person. iii. When investigative resources are mechanically concentrated on a single person, that person is immediately in deep trouble. If that person is a government official, the trouble is likely to interfere with her performance of her duties. The statute here thus appears to Scalia to be a mechanical device that randomly attacks innocent people and deranges the operation of the executive branch. Scalia concedes that his answer does not solve the conflict-of-interest problem, but argues that the answer to that problem must be political, not legal. iv. Possible C/A to Scalia: In a certain sense, the independent counsel really isn‘t immune to presidential control (as Scalia claims). After all, president has pardon power (e.g. could pardon Lewinski and thus deprive Starr of any leverage with which to compel her testimony). The limitations on the use of this power are purely political (exactly the sort of limitations that prevented Nixon from firing Jaworski). (5) Significance: Morrison seems to have major significance for the separation of powers doctrine. It is hard to imagine a more purely executive function than the right to investigate and prosecute violations of the law. The case thus seems to stand for the proposition that the Executive Branch may be deprived of the power to appoint, and the untrammeled power to remove, an ―inferior officer,‖ even where the appointment relates to purely executive powers. Apart from the issue of restricting the President‘s right of removal, the case seems to herald a Ct that will view even fairly substantial 50 i. j. interference with the Pres‘s ability to exercise unfettered control over executive functions as not being violative of the separation of powers. (6) Top Level Officers: It is not clear whether the rationale for Morrison would even allow Congress to limit the President‘s right to appoint or remove ―principal officers‖ of the U.S. such as cabinet officers. Probably not. President‘s right to make such appointments seems directly/unequivocally guaranteed by the Appointments Clause of Article II. Congress does have sufficient flexibility in delegating to the Judicial Branch tasks that might be considered law-making ones, at least where the subject matter relates to the role of the courts. (Note: In general though, not allowed to assign) -Mistretta v. United States (case summary) (Blackmun 1989) – Held that the Sentencing Commission does not violate separation of powers. Facts: Sentencing Commission: Congress set up the U.S. Sentencing Commission to develop mandatory guidelines that federal judges would have to apply in setting sentences for federal crimes. C. provided that of the 7 voting members (all to be appointed by the President with the advice and consent of the Senate), at least 3 must be federal judges. Plaintiffs claimed this was an unconstitutional delegation of law-making power to the Judicial Branch. That is, Congress was assigning to the judges on the Commission not the job of interpreting the law (proper judicial role) but the job of making sentencing policy, a classic legislative function. Holding: SCt. rejected the claim of unconstitutional delegation of law-making authority to the Judicial Branch. It is true that non-judicial duties may generally not be given to the Judicial Branch. But there are some exceptions, and this was one. Because the judiciary plays the major role in sentencing, allowing some judges to participate in the making of guidelines for sentences does not threaten the ―fundamental structural protections of the USC.‖ SCt. also rejected a second argument that the ―judiciary‘s entanglement in the political work of the Commission undermines public confidence in the disinteredness of the Judicial Branch.‖ Since the sentencing process itself is carried out by the Judicial Branch, allowing judges to help set the guidelines is an essentially neutral endeavor and one in which judicial participation is peculiarly appropriate.‖ Dissent (Scalia): This was a ―pure delegation of legislative power‖ to the Judicial Branch, and as such violated separation of powers principles. Commission gets to decide how long individuals will have to go to jail for certain crimes, narrowing the range of sentencing discretion specified by Congress. Power this broad needs to be accountable. Scalia wants to bring back formalism because of fear of unaccountable power. -Koppelman on Morrison and Mistretta: (a) Two concerns regarding separation of powers: (1) concentrated power, (2) unaccountable power. (b) In these two cases, while majority concerns itself primarily with concentrated power, Scalia‘s dissent concerns itself primarily with unaccountable power. (c) Both of these cases represent a triumph of anti-formalism. Review Board staffed by Members of Congress, if it is carrying out what are properly viewed as legislative functions, the board‘s own actions must be approved by both Houses and presented to the Pres. for his veto. (This could properly come after Chada) C. Control of Foreign Affairs 1. Comparison with Domestic Affairs a. In domestic sphere, SCt has at least sporadically asserted that separation of powers questions can be guided by the textual division of authority among the executive, legislative, and judicial branches. b. In foreign sphere, allocation of authority is not determined by any ―natural‖ division. Much of the ―law‖ in this area is the product of historical practice and practical accommodations, formal and informal, between executive and legislative branches. 2. Executive Authority a. President given much greater authority with respect to foreign affairs. -United States v. Curtiss-Wright Corp. (Sutherland 1936) Facts: A joint resolution of Congress authorized the President to ban the sale of arms to countries engaged in a particular conflict. FDR proclaimed such an embargo, and Curtiss-Wright was charged with conspiring to sell arms to Bolivia, one of the countries to which the embargo extended. Curtiss-Wright challenged the joint resolution as being an unconstitutionally broad delegation of legislative power to President. Holding: Upheld by SCt: SCt upheld the resolution, and the resulting presidential embargo. SCt stressed the ―very delicate, plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations . .‖ The need for negotiation, plus the President‘s special access to sources of information, required a ―degree of discretion and freedom from statutory restriction which would not be admissible were domestic affairs alone involved.‖ Here, for instance, Pres. would be better able than C. to determine whether Bolivia was in fact 51 3. engaged in the conflict. Thus the delegation to the Pres. was not unconstitutionally broad, regardless of whether such delegation would be permissible with respect to a domestic issue (a question which SCt did not decide). Legislative Authority a. The War Powers Resolution (1) Background: Before enactment of resolution, Pres. had considerable discretion in use of military force to accomplish foreign policy objectives. WPR was enacted after Vietnam and Watergate to define and enlarge the congressional role in use of military power. (2) Summary: Requires President ―in every possible instance to consult with Congress before introducing U.S. armed forces into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances.‖ President‘s ability to conduct hostilities without affirmative authorization from Congress is limited to at most 90 days. Whenever American forces are engaged in hostilities without Congressional authorization, ―such forces shall be removed by the President if the Congress so directs by concurrent resolution.‖ (3) Interpretation Issues: (a) What does act mean by ―introduction‖ of U.S. armed forces ―into hostilities‖? When is ―imminent involvement in hostilities‖ clearly indicated by the circumstances? (b) It is questionable whether the legislative veto provision here is constitutional after Chadha. If it is not, then we are presented with same severability problem raised by Rehnquist‘s dissent in Chadha. Should the entire statute be invalidated? (c) We can argue that even if the legislative veto is unconstitutional, such a veto could still suffice under Justice Jackson‘s analysis in Youngstown to place the President‘s power at its lowest ebb. (4) The constitutional issue: (a) WPR is an unconstitutional infringement on the powers of the President. i. USC gives President authority to introduce armed forces into hostilities without congressional declaration of war. ii. In cases of effort to ―repel sudden attack,‖ resolution allows congressional role where such a role is constitutionally proscribed. iii. Rostow argues there is nothing constitutionally illegtimate about ―undeclared‖ wars; U.S. fought them frequently in 18th, 19th, and 20th centuries. This resolution would turn clock back to Articles of Confederation and destroy presidency. (b) WPR is constitutional. i. Resolution merely restores constitutional balance that had been upset by long period of congressional inactivity before its passage. Resolution allows Congress to ensure there is no undeclared war. ii. If anything, resolution allows President to wage war without declaration in far too many circumstances. iii. Mere historical acquiescence by Congress in President‘s exercise of war does not by itself prove that Congress lacks authority to exercise of that power when it gathers wisdom/courage to do so. (5) Practice Under the Resolution – many commentators agree that resolution has been ineffective in constraining executive discretion. (a) Congress reduced resolution‘s effectiveness by failing to address two new types of military action arising during 1980s: i. Covert wars: resolution covers U.S. Armed Forces but not private activities of former CIA operatives. (e.g. Oliver North‘s operatives) ii. Short-term military strikes: could be completed well within resolution‘s 60-day time limit (e.g. Grenada and Panama) iii. Ironically, resolution has also failed to prevent even type of creeping escalation that it was expressly enacted to control: e.g. U.S. troops in Lebanon and American ships patrolling Persian Gulf. (b) Could Congress have crafted a more effective resolution? i. Yes, as long as Congress still has the will to be held accountable. (Ely) ii. No. No modification of the resolution will in itself ensure that collective judgment of both Congress and President will apply to introduction of U.S. Armed Forces into hostilities. No statute is even required for members of Congress to have the insight and courage to stand up to Presidential exercise of war. (Glennon) 52 b. (1) The Constitution without courts: Both War Powers Resolution and Boland Amendments represented efforts by Congress to utilize self-help in enforcing constitutional boundaries. Does experience here suggest that judicial review is essential to constitutional government in this area? Actually, note that SCt has regularly tipped the balance of foreign policy making power in favor of the president, both on the merits or on justiciability grounds. (a) Following conclusions might be drawn from SCt‘s record here: i. Judicial review is not the solution to the inadequate enforcement of constitutional limitations on executive power. Rather, constitutional requirements are best enforced through the give-andtake of political process. ii. Constitutional limitations have been inadequately enforced precisely because SCt has mistakenly remitted these questions to political process. iii. Constitutional limitations have not been inadequately enforced. Framers deliberately created strong executive. Moreover, USC is flexible enough to accommodate changed circumstances that have caused our political system to tilt toward a powerful president. Congressional Control over Agreements with Foreign States: Treaties, Executive Agreements, and Congressional-Executive Agreements (this involves role Congress should play when question is making of peace rather than war) (1) Treaties (a) Art. II, §2 of USC grants to President the power ―by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of Senators present concur,‖ and Art. V, §6 makes ―all Treaties made, or which shall be made, under the Authority of the U.S.,‖ the supreme law of the land. (2) Executive Agreements (a) Although there is no express constitutional authority for executive agreements, USC indirectly recognizes possibility of non-treaty international agreements in Article I, §10, which prohibits states from entering treaties but authorizes them to enter an Agreement or Compact with a foreign Power‖ with consent of Congress. (b) Constitutional limits on scope of executive agreements i. Dames & Moore v. Regan: upheld constitutionality of presidential action taken pursuant to an executive agreement with Iran only after finding congressional authorization for (or at least acquiescence in) President‘s decision. ii. Can the President act unilaterally in cases where he lacks express constitutional authority? According to Henkin, we must conclude that there are agreements which President can make on his sole authority and others which he can make only with consent of Senate, but neither Belmont nor anyone else has told us which are which. (3) Congressional-Executive Agreements (a) Approved by simple majorities of both Houses of Congress, rather than by a two-thirds majority of Senate. (e.g. NAFTA, GATT). (b) Are congressional-executive agreements constitutional in absence of approval of 2/3 of Senate? i. Tribe: Because of broad delegation in Article II, President is understood to have inherent power to perform all executive acts, subject to limitations in Articles I and II and other constitutional provisions. Authority to make international agreements that do not rise to level of treaties has long been correctly recognized as one such inherent executive power. However, this does not suggest that Congress may plan an ex post role in approving such agreements with foreign nations on behalf of U.S. ii. Ackerman & Golove: In approving GATT, Congress enacted a ―law‖ that is formally identical to all others passed under Article I. USC text creates multiple legislative procedures for accomplishing same end. Articles I and II set up alternative systems through which nation can commit itself internationally – one with, and one without, the cooperation of the house. V. JUDICIAL PROTECTION OF INDIVIDUAL RIGHTS – Here we turn from structural or institutional strategies for avoiding government tyranny to an individual rights strategy. Rather than demanding that government is structured in a certain way, the judiciary intervenes directly to invalidate laws that violate certain protected rights. A. Background (from case book notes, Emmanuel and handout) The heart of the debate is whether the courts must confine themselves to interpreting rights that are expressly guaranteed by the Constitution as it was understood by those who ratified it (originalism) or whether they may also enforce general principles of liberty and justice not expressly within the Constitution (nonoriginalism) 53 1. 2. 3. 4. -N/O reflects the view that the task of interpretation authorizes courts to make partiuclar judgments not foreseen by or even contrary to those of the Constitution‘s ratifiers. N/O almost always accept the view that the text of the Constitution is binding. These are helpful organizational tools -Two forms of Originalism; hard and soft. Hard orginalists (Scalia and Thomas) believe that the meaning of the Constitution should be settled by asking the framers and ratifiers some very particular questions. Soft originalists believe that the original understanding is important not for particular answers to particular questions, but in order to get a general sense of purposes and aspirations. Argument for Originalism: a. Historical Argument: It is argued that the framers and ratifies did not intend to permit courts to invalidate legislation for reasons other tan those set out by them. b. Democratic Argument: It is argued that nonoriginalism, or use of extra-textual norms, is objectionable because it accords excessive power to unelected judges. This latter view assumes that in the U.S. system, basic decisions are made by those subject to the constraints of the electoral process. If judges invalidate laws because of extratextual norms, they are acting in a way inconsistent with the basic premise of electoral accountability. The remedy for an outmoded original understanding is a constitutional amendment., not a novel judicial interpretation. Argument against Originalism: (fear of Judicial Inadequacy – Ct fails to intervene when it should) (1) The orignalists suppose that the intention of the Framers [is] some complex psychological fact locked in history waiting to be winkled out from old pamphlets and letters and proceedings. But this is a serious common mistake, because there is no such thing as the intention of the Framers waiting to be [discovered]. Dworkin. (2) Who counts? Which persons ―intent‖ to we look at? Drafters, ratifiers, legislators? What combination would we use. Are we interested in abstract or concrete intentions: (3) Interpretivism attempts to implement the rule of law by assuming that the meanings of words and rules are stable over extended periods of time. But [in] imaginatively entering the world of the past, we not only reconstruct it, [we] also creatively construct it. We cannot understand the acts of those in the past without entering into their mental world. The imagination that w have used to adjust and readjust our understandings makes it impossible to claim that any one reconstruction is uniquely correct. The past shapes the materials on which we use our imaginations; our interests, concerns, and preconceptions shape our imaginations themselves. Tushnet Argument for Non-Originalism: (See also args. against originalism) (1) Natural law: Concept of a higher law which can‘t be completely codified into written (positive) law. It has come to be accepted under this view that the judiciary had the power to enforce the commands of the written Constitution when these conflicted with ordinary law, it is also that judges would enforce as constitutional restraints the unwritten natural rights as well (2) Moral Philosophy: Government should have enduring values. Cts have capacity to deal with matters of principle that the legislature and executive do not. Judges should have the leisure, training and insulation to follow the ways of the scholar in pursuing the ends of gov‘t. (3) History: The relevant past for the purposes of constitutional law is to be found not only in the intentions of the framers but in the entirety of our history. (4) Common Law and Consensus: When dealing with legal principles a court must take a moral point of view. Unlike the moral philosopher, though, it is not so much about the court asserting it‘s view as it is ours (the view should reflect the larger consensus. (5) Representation-Reinforcement: (Ely) In order to protect minority from majority tyranny the Constitution is concerned with procedural fairness and ensuring broad participation in the process of government. Clearing the channels of political change and facilitating the representation of minorities is supporting of the underlying premises of the American system of representative democracy. Under this view decisions that look outside the four corners of the Const. are justifiable when they promote representation in government, (but not if they recognize or create fundamental rights unrelated to representation.) Arguments against Non-Originalism: (Fear of Judicial Tyranny – Ct. abuses its power) see Ely (1) Natural Law: Natural law is too vague—you can invoke it to support anything you want, therefore often not revered. (2) Moral Philosophy: Lawyers and judges are not the best people imaginable to tell good moral philosophy from bad. There is also a problem about whether it is possible to engage in a rational discourse about such philosophical questions—this breaks down into what is ultimately subjective and competing value preferences. (3) Tradition: This can also be invoked in support of almost any cause. It‘s backward looking tendency highlights its undemocratic nature. People who are traditionally penalized for their way of life will be those who are the least likely to receive judicial protection (4) Consensus: Widely shared public values are hard to ascertain and legislatures, not courts are in a much better position to reflect consensus. (5) Representation-Reinforcement: this idea is also value laden, much in the same way as determining fundamental values is. Who ought to be included in the political process, exactly how representative should our various systems of government should be. 54 B. The Privileges and Immunities Clause – P/I clause of the 14th Am. comes at the beginning of the second sentence of §1: ―No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the U.S. …‖ 1. The Slaughterhouse Cases: (1873)—Miller, J. Facts: Arose when LA passed a law giving a monopoly on New Orleans-area slaughterhouses to a particular company. Butchers not included in the monopoly claimed that the statute deprived them of the opportunity to practice their trade, and thereby violated the 13th and 14th As. The plaintiffs‘ most serious arg. was that the statute was a denial of the P&I of LA citizenship, including the right to practice one‘s calling. Plaintiffs argue: a. the privileges and immunities clause of Art. IV, §2 (which protects out-of-staters) protects the right to pursue a calling b. the privileges and immunities clause of the 14th Am. extends the reach of the corresponding Article IV clause by applying it to state actions directed at a state‘s own citizens c. the law is unconstitutional because the affected butchers are citizens of the United States and their right to pursue a calling is abridged by the law. Holding: S/Ct. rejects all of these arguments and holds that the law granting a slaughtering monopoly in New Orleans does NOT violate the Privileges and Immunities of the butchers whose business is harmed by the law. Reasoning: 14th Am. distinguishes between state and federal citizenship, privileges and immunities clause applies only to the privileges derived from federal citizenship, and the right to pursue a calling is not derived from federal citizenship and therefore the law is constitutional. Ramifications of the decision: Miller‘s reading makes the privileges and immunities clause a nullity! By limiting the clause to rights already given by some other federal law it has no larger effect. Miller expressed reservations about interpreting the P & I clause as to transfer the security and protection of all the civil rights from the states to the Federal government. Thus, the first eight amendments do not apply to the states as they are not privileges and immunities. Slaughter-House is still good law—gives support to judges who don‘t want to make the determination of which rights are fundamental so they shy away from the broad and vague power the clause seems to give. Note: Imp. to distinguish between P&I of 14th Am. and P&I of 4th Am. 14th Am. clause merely bars a state from abridging an U.S. citizen‘s rights of ―national‖ citizenship. 4th Am. clause protects rights of ―state‖ citizenship, but only when a non-resident of the state is not treated the same as a resident with respect to an important state right. Koppleman Note: Miller worried about empowering the federal courts to protect individuals from their own state governments. He believes that this would ―radically change the whole theory of the relations of the State and Federal governments to each other and of both these governments to the people.‖ However, because of the strengthening of the other provisions of the 14th Am., the parade of horribles that Miller sets forth pretty accurately describes the regime we now inhabit: any state law may be subject to constitutional challenge, and C. can pass laws limiting states‘ legislative power when it reasonably decides that this is necessary to enforce 14th Am. rights. (see Katzenbach v. Morgan) C. The Incorporation Controversy—Does the Bill of Rights extend to the states? Present law holds that only certain provisions apply to the states, but the Court has now incorporated almost all of the bill of rights into the 14th Am. Over the years there have been two main approaches espoused by the Courts. {see C 380+ for issues of debate} 1. Selective incorporation/Fundamental Rights approach—denies that the entire Bill of Rights is made applicable to the states. Instead the term ―liberty‖ as used in the 14th Am. is to be interpreted—only those aspects of liberty that are in some cases ―fundamental‖ are protected by the 14 th Am. -Palko v. Connecticut (1937) Facts: concerned the constitutionality of a CT statute permitting the state to appeal in criminal cases. Holding: S/Ct. held that statute was NOT found to be a violation of due process by the Ct. Reasoning: Cardozo articulated the selective incorporation/ fundamental rights test as being whether the Bill of Rights guarantee in question is of ―the very essence of a scheme of ordered liberty‖ and whether to abolish the right would ―violate a principle of justice so rooted in the tradition and conscience of our people as to be ranked as fundamental‖. Whether without it there could not be a fair and enlightened system of justice. Cardozo expressly adopts the idea of a hierarchy of rights with only the most highly valued are enforceable by the federal courts.  By 1937 there is no doubt that ―due process‖ could embrace not only procedural rights but also substantive rights 2. Total Incorporation approach: All of the guarantees of the Bill of Rights are made applicable to the States by the 14 th Am. Due Process Clause. Black, J.‘s theory (articulated in Adamson below)—never commanded a majority in the Ct. Black criticizes the fundamental rights approach because it gives too much room for judges to base decisions on their personal views. However, there are also criticisms to the total incorporation approach: (1) the historical support is weak, (2) it deprives the states of the opportunity of reforms, (3) it merely shifts judicial discretion from the general concept of ―liberty‖ and ―due process‖ to the individual guarantees of the Bill of Rights (i.e.: what is meant by cruel and unusual punishment) -Adamson v. CA: Facts: In state court, the prosecution was permitted to comment on the defendant‘s failure to take the stand. Holding: Ct. held that the 14th Am did NOT incorporate the privilege against self-incrimination.  This case is most noted for Black‘s DISSENT, which sets forth the total incorporation view. ―I fear to see the consequences of the Court‘s practice of substituting its own concepts of decency and fundamental justice for the language of the Bill of Rights…I believe the original purpose of the 14 th Am—to extend to all the people of the nation the complete protection of the Bill of Rights.‖ 55 3. In a concurring opinion, Frankfurter attacked Black‘s theory of total incorporation. He invokes a historical approach—it is a federal bill of rights, not meant to apply to the states. Judges‘ decisions should turn on ―those canons of decency and fairness which express the notions of justice of English-speaking peoples‖ Modern Approach: In the early 1960‘s the Warren court, without expressly abandoning ―fundamental fairness (rights)‖ began to modify the incorporation approach. Whereas Cardozo would apply to the states only those guarantees ―of the very essence of a scheme of ordered liberty,‖ the Court today incorporates into the 14 th Am. any guarantee which is fundamental to the judicial processes maintained by the AMERICAN STATES. It is derived from the Duncan decision and is neither historical nor philosophical, but a hybrid: it asks—whether, given the system we have inherited, liberty is possible unless citizens have the asserted right. The only rights that have NOT been incorporated, of the first 8 Am. are the 2nd, 3rd, 5th Am—requirement of grand jury indictment and 7 th. After the 60‘s the Ct. had also reached the conclusion that the rights that were selectively incorporated should apply to the states in precisely the same manner as they apply to the federal government.  D. Protection of Economic Liberties 1. Textual Provisions: The Contracts Clause: One of the few protections against state action given to individuals in the body of the Const. (as distinguished from the Bill of Rights or other amendments) comes in Art. I §10: ―No state shall … pass any … Law impairing the obligation of Contracts. …‖ This so-called Contracts Clause by its terms applies only to the states. The original purpose of the Contracts clause was to protect creditors against debtor relief laws, by which the obligations of debtors were often postponed or even completely lifted. (This involved the protection of private contracts) But the clause was quickly extended to include the prevention of the impairment of ―public‖ contracts, i.e., contracts between the govt. and private parties. a. State can’t rescind contract, even if product of corruption/fraud -Fletcher v. Peck: (1810) Facts: The majority of the Georgia legislature had been openly bribed to convey about 35 million acres of state land to private companies for about 1 ½ cents an acre. The legislature then tried to rescind the grant, but this was after large parcels had been sold to northern investors. Holding: State can‘t rescind on its own contract even if it was the product of corruption/fraud. Reasoning/Implication: Majority— Marshall, J: This case stands for championing individual rights against state legislature. Marshall primarily relies on the Contracts Clause which stipulates that—no state shall pass any law impairing the obligation of contracts. Marshall claimed that the holding was justified by both the contract clause and ―general principles that are common to our free institutions‖ (more of a natural law approach). He also implies that the law would be unconstitutional even without this express prohibition. Johnson, furthers the idea that the social contract itself, not mere reliance on the constitutional text, prevents government from seizing property from its owners.  Until nearly the end of the 19th Century the contract clause was the only major constitutional limitation on state legislatures in a period when the states were the source of most laws regulating business interests. b. Only Retroactive Laws are barred by the Contracts Clause -Ogden v. Saunders (1827) Facts/Holding: Involved a state bankruptcy law passed before the parties had entered into the relevant contract. Ct held that the Contract clause only prohibits states from modifying contracts that are already in existence at the time of legislation. States remain free to prescribe rules that restrict the obligation of contracts made in the future {that is until Lochner, which prohibited states from interfering with prospective contracts}  Marshall dissented: He again relied on natural law—individuals do not derive from government their right to contract. He did not feel that the govt. could dictate in advance the terms of private contracts. Also relied on the text—the clause did not allow for a distinction between prospective and retrospective impairments. This was his only constitutional law dissent…unsuccessfully attempts to estb. the Lochner principle a century early. c. Revival of Contract Clause for Private-Agreement Cases – The Contract Clause was more recently saved from extinction in private-agreement cases, just as U.S. Trust did this in public-contract cases. The Allied Structural holding seems to indicate that the Contract Clause may now be used as a significant weapon against state police power regulations which affect contracts. d. The Contracts Clause today: US Trust and Allied Structural suggested that the court might revive the contracts clause as a substantive constraint on legislation. But, shortly thereafter the Court returned to its previous more deferential approach. MODERN REVIEW UNDER THE CONTRACT CLAUSE LOOKS A LOT LIKE MODERN RATIONALITY REVIEW UNDER THE DUE PROCESS AND EQUAL PROTECTION CLAUSES. THE COURT ENGAGES IN A SIMILAR INQUIRY: IDENTIFY THE LEGITIMATE STATE INTEREST AND REQUIRE A ROUGH RELATION BETWEEN THE LEGITIMATE STATE INTEREST AND THE MEASURE USED TO ADDRESS IT.  its hard to know where the court is going with this, but it looks like it is becoming more deferential to state legislatures and the various balancing-type tests articulated. In this regard Allied Structural might just be a blip on the screen. 56 2. SUBSTANTIVE DUE PROCESS: The Protection of Economic Interests and the Problem of ―Redistribution‖ a. Introduction: The Due Process Clause of the 14th Am., sounds like a limitation that relates solely to procedures. However, the clause came to be interpreted as a limitation upon the substantive power of state legislatures to regulate various areas of economic and non-economic life. (1) Fundamental Rights: The idea of fundamental rights that is a recurrent theme in constitutional law is an artifact of liberalism, the political philosophy that holds that the purpose of govt. is not the promotion of religious, moral, or martial virtue, but rather peace, prosperity, intellectual progress, and personal liberty. (See Declaration of Independence) The basic concept then and now was that the individual was autonomous within a certain sphere which government could not violate. Concept has been understood differently at different times. (2) Meaning of ―Liberty‖: Courts‘ willingness to review (and often invalidate) the substance of state legislation has taken place principally through interpretation of the term ―liberty,‖ as used in the DPC. For instance, if a given state regulation is found to be an undue interference with a private person‘s ―freedom of contract,‖ or with her ―right to privacy,‖ the regulation is stricken as a taking of ―liberty‖ without due process of law. b. Early History of Substantive Due Process - The Road to Lochner: (1) Rise of Substantive Due Process: Although the doctrine of economic substantive due process did not come into full flower until Lochner, several pre-Lochner decisions flirted with analogous doctrines. (a) ―Natural Rights‖ Theory: Doctrine held that certain rights (especially the right to own property and the right to contract freely) were ―fundamental‖ or ―natural‖ rights, i.e., rights which derived not from any constitution or legal system but simply from the nature of things. It was only a short step to the view that if a legislature enacted a law which restricted these ―natural rights,‖ the statute was a deprivation of ―liberty‖ and/or ―property‖ without due process of law. Seen in Calder v. Bull -But, these early allusions to substantive due process did not seriously challenge the prevailing view that the due process guarantee was essentially procedural (see Slaughterhouse). (b) Laissez-faire Economic Theory: The nation‘s rapid post-Civil War economic development coincided with the rise in ―laissez-faire‖ economic theory, according to which industrial growth and national wellbeing would be maximized by minimizing government interference with business. This ―laissez-faire‖ theory was related to the so-called ―Social Darwinism,‖ a doctrine which asserted that, in socio-economic life, as in evolution of species, only the fittest would and should survive. (This was Holmes Belief) Sup. Ct was forced to reconcile majoritarian authority with individual property rights in the new era of large-scale private organizations. (c) Enactment of the 14th Am.: Finally, enactment of the 14th Am., with its explicit guarantee of due process protection of liberty and property against state action, came to be viewed by the Ct. as a ―peg‖ on which substantive review of state law could be hung. This occurred despite the initial rejection of this view by the majority in the Slaughterhouse Cases. (2) Increasing Scrutiny: In two post-Slaughterhouse Cases decisions, the S/Ct. sustained state regulations, but indicated its willingness to engage in substantive review in some circumstances. (3) Liberty of Contract: Ct. finally used substantive due process review to invalidate a state statute. -Allgeyer v. Louisiana: (1897)—THE COURT‘S FINAL STEP TOWARD LOCHNER. The court here struck down a LA statute which prohibited anyone from issuing insurance on property in the state with companies that had not been admitted to do business in the state, because it violated Due Process under 14th Am. Peckham, J offered a comprehensive articulation of the ―liberty of contract‖. Liberty in the Due Process clause protected not only physical liberty (to be free from physical restraint) but also such things as the right to live and work where one wishes, to earn a livelihood by ―any lawful calling‖, and to enter into contracts necessary to accomplish these goals. c. Lochner and its aftermath: The 40 years after Allgeyer saw an enormous S/Ct. trend towards striking down state legislation on due process and similar constitutional grounds. Between 1899 and 1937, 159 S/Ct. decisions (not counting civil rights cases) held state statutes unconstitutional under Due Process and Equal Protection clauses; another 25 were struck down under the DPC coupled with some other constitutional provision. -Lochner v. NY (1905) Holding: Peckham, J. MAJ—The court held unconstitutional a NY statute which limited the hours which bakers could work to 10 hours/day, 60 hours/week because it violated due process. Reasoning: TEST: The power of the state to legislate vs. the right of the individual to liberty of person and freedom of contract. [the police power of the state relating to health, safety, morals and welfare vs. liberty protected under Due process, Peckham argues that the right to contract and to buy and sell labor fall under the umbrella of ―liberty‖ K. Note: His modality is textual to the extent that the word ―liberty‖ is there for construction, and historical to the extent that he is being true to the framer‘ intent. But the Lockean vision that animates him points him toward structural and ethical modalities, so that reliance on moral and political philosophy -- more accurately, one particular and political philosophy, -- immediately appears to be most appropriate. That approach in turn leads him to balancing, and it‘s because he balances that he‘s charged by later generations with importing his own values into the Constititution. ] 57 a. Two Defenses of Statute: The statute was defended on two grounds: (1) that it was a valid labor law; and (2) that it protected the health and safety of the workers b. Not Valid Labor Law: The Ct. quickly rejected the labor law justification. There is a limit to the police power of the state. The question turns on whether it is a valid exercise of police power: ―Is this a fair, reasonable and appropriate exercise of police power of the State or is it an unreasonable, unnecessary and arbitrary interference with the right of the individual to his personal liberty or to enter into those contracts in relation to labor?‖ The statute is not a valid labor law. ―There is no reasonable ground for interfering with the liberty of person or the right of free contract by determining the hours of labor. (thus, the balance tips in favor of liberty). K. Note: The Ct. interpreted the police power to concern primarily the protection of private rights -- again, understood as property rights and freedom of contract. Any statute whose purpose was to redistribute resources and thus benefit some persons at the expense of others would extend beyond the boundaries of legislative authority. K. Note: Ct. employs a balancing test to decide whether the state has met its burden of showing that the police power can be exercised in this case. Thus, the Ct. necessarily relies on its own notions of reasonableness…the balancing technique cannot be carried out without the judge‘s own views influencing the weight that is given to each factor. c. Not Safety or Health Measure: Not a valid exercise of police power because the statute doesn‘t involve the safety, morals, health or welfare of the public. The Ct. did NOT find bakers to be an esp. endangered group (as it had found miners to be in a Holden v. Hardy a few years previously.) And long working hours did NOT affect public health and safety by making the baked goods less fit to eat. The statute must have a direct relation, as a means to an end, and the end itself must be legitimate, before it can be upheld. This statute is interferes with the rights of the individual (―limits the hours in which grown and intelligent men may labor to earn their living‖). There is NO direct relation between the length of the workday and the healthful quality of bread made. The statute therefore violates the constitution. d. Legislature’s Motives Suspected: Majority clearly believed that the legislature had in fact acted in part for safety and health reasons. The law‘s natural effect was to regulate labor conditions, not to protect anyone‘s health and safety. The Ct. thus implied that only the legislature‘s actual motive, not a hypothetical motive, would be looked to in evaluating a statute subjected to substantive due process attack. e. No Deference to Legislative Fact Finding: Another key element of the Ct.s‘ holding was its refusal to defer to legislative findings of fact. The Ct. insisted on reaching its own conclusions on the factual issue of whether the health and safety of bakers, or of the bread-eating public, need special protection. Dissent, Harlan: There was enough evidence that the statute would promote the health and safety of the bakers that the court should have deferred to the legislature‘s judgement. The court had sustained an 8-hour law for miners in Holden v. Hardy because mining was regarded as ultrahazardous so that they could not be presumed to be competent to take of themselves. Harlan has a lot in common with the majority. He agrees that liberty of contract is protected by the constitution and that the issue is whether the state has adequately justified its limitation of that liberty. He simply thinks that the state had met its burden of proving the necessity of the limitation Dissent, Holmes: Court had no right to impose its own views about correct economic theory on legislatures— shouldn‘t legislate from the bench. The 14th Am. doesn‘t enact social Darwinism of laissez faire theory. The court should defer to the legislature‘s expertise unless ―it can be said that a rational and fair man necessarily would admit that the statute proposed would infringe fundamental principles as they have been understood by the traditions of our people and our law,‖ i.e., ―Liberty‖ as the term is used in the 14th Am. (1) Analysis of Lochner Test: Test was extremely stringent in at least two respects: (a) Close Fit: First, it required a very close ―fit‖ between the statute and its objectives. In the majority‘s words, there had to be a ―real and substantial‖ relationship between the statute and the goals which it was to serve. This tight fit was absent in Lochner because bakers could have been protected by less restrictive measures. (b) Limited Objectives: Second, only certain legislative objectives were acceptable. Regulation of health and safety was permissible, but readjustment of economic power or economic resources was not. Thus the extent that the NY law in Lochner was merely a ―labor law‖ which readjusted bargaining power, rather than a true health regulation, served an impermissible objective. (2) The Vices of Lochner: L. ―is one of the most condemned cases in U.S. history and has been used to symbolize judicial dereliction and abuse.‖ B. Siegen (a) Broad Reading of ―Liberty‖: The ―liberty of contract‖ protected in Lochner is not within the ―liberty‖ protected by the due process clause; Does liberty really include the right to contract, perhaps it just meant liberty of the person—to be free from physical restraint. (b) ―Freedom of Contract‖ an Illusion: Even if the ―liberty of contract‖ is a ―liberty‖ or ―property‖ protected by due process, the clause doesn‘t accord substantive protection to the liberty of contract. The due process clause is concerned with procedure only, and therefore has no relation to that statute at issue in 58 (c) (d) (e) (f) Lochner. I.e.: there is no such thing as substantive due process, like the example Ely gave—―green pastel redness‖. Substantive due process and the Incorporation Controversy--3 views: i. If due process was limited to prohibiting arbitrary governance in the legislature and judiciary, and not about ―substantive‖ rights then we could abandon the incorporation controversy because we wouldn‘t have to worry about which ―substantive‖ rights of the bill of rights should be extended to the states. ii. Black, J. argues that the substantive due process extends only to those rights expressly guaranteed in the bill of rights. (Excluding the ―liberty to contract‖) iii. Substantive due process protects all ―fundamental‖ rights but that the ―liberty to contract‖ is not fundamental. Thus, the problem with Lochner is not that with judicial intervention per se to protect liberty, but that the courts shouldn’t intervene in rights that are not ―fundamental‖. The means/ends connection: even if the ―liberty of contract‖ is entitled to ―substantive‖ protection under the due process clause, the statue at issue in Lochner was justified by the state‘s interest in protecting the health of bakery employees.—like Harlan‘s opinion. The means/ends test that Peckham invokes might be too stringent and perhaps shouldn‘t be handled by judges at all because (1) they do not have the factfinding competence to engage in such inquiries and (2) they are not elected and therefore lack the accountability that would support such a role. [note that this means/ends analysis is pretty common in modern Con. law especially with respect to suspect classifications in equal protection]. The problem with ends: even if the liberty of contract is entitled to ―substantive‖ protection under due process the statute in Lochner could be justified as a ―labor law, pure and simple‖. Maybe NY should have been justified in regulating hours in recognition of the unequal bargaining power of the bakers. Summary: 2 camps of OBJECTION TO Lochner: i. Institutional: The court overstepped its bounds in relation to the legislature. This objection focuses on the court‘s careful scrutiny of the means/ends connection and on its willingness to declare certain legislative ends impermissible. The problem here is that the Court interfered in the realm of policymaking, it doesn‘t matter what the basis for the interference was. ii. Substantive: The role of the Court has more to do with particular ideas. The problem with Lochner is that the Court tried to vindicate, as a matter of Con. law, a laissez-faire conception of the role of government. The majority saw this economic approach as a status quo, ―that‘s just the way it is‖ rather than realizing that it was a product of a set of legal choices. Koppelman—What should we think of this decision? a. Partly depends on whether redistribution is a legitimate governmental purpose. Maximum hours laws in fact tended to redistribute wages to workers, who had to be paid a subsistence wage no matter how long they worked. A reduction of hours often meant a de facto increase in hourly wage. The court thought that ―it was impossible to uphold freedom of contract and the right of private property without at the same time recognizing as legitimate those inequalities of fortune that are the necessary result of the exercise of those rights‖ Coppage v. Kansas. b. Arguable that this decision and the line of cases that it exemplifies represent the most significant judicial intervention in American history. Bailey v. Alabama (1911)—shows the attractive side of Lochner‘s logic a. Constitutionalizes that personal service contracts can‘t be enforced through specific performance. Here Bailey, who was black, was convicted for violating an employment contract to work as a farmhand. b. Holmes, J, Maj—State may not compel one man to labor for another in payment of a debt. Court found that AL was indirectly doing this by punishing Bailey as a criminal for the failure to continue working. The Court saw the state statute as effectively enforcing involuntary servitude, so the Ct. struck it down. The Demise of Lochner: Over the next three decades, Lochner was substantially criticized. In addition to this criticism, the election of FDR and his New Deal programs, convinced many people of the need for aggressive legislative programs to ensure the nation‘s economic survival. Such large-scale govt. intervention in econ. affairs was clearly at odds with the Lochner ―freedom of contract‖ philosophy. (1) West Coast Hotel v. Parrish: (1937) Upholds a state law establishing a minimum wage for women. The court acknowledged that the minimum wage law interfered with ―freedom of contract‖ BUT found that the state‘s interest in redressing women‘s inferior bargaining power by enabling them to earn a living wage was a legitimate limitation on that freedom of contract. WITH THIS DECISION LOCHNER IS DEAD: rejects challenges to legislation based on assertions of a constitutional preference for laissez-faire economics. Think about this in terms of history two Laissez-faire economics wasn‘t working in light of the Depression. The New Deal, complete with a rise in government intervention, was on the political and economic agenda which made the courts were more willing to accept state economic legislation.  Lincoln Federal Union v. Northwestern Iron & Metal (1949) is a good example. The court explained that it has abandoned the ―Allegeyer-Lochner-Adair-Coppage constitutional doctrine‖ and returned ―to the 59 d. (2) (3) (4) (5) earlier constitutional principle that States have power to legislate against what are found to be injurious practices in their internal commercial and business affairs so long as their laws do not run afoul of some specific federal constitutional prohibition.‖ US v. Caroline Products (1938) Stone, J: Ct upheld a Congressional act that prohibited the use of ―filled‖milk (skim milk with non-milk fats added). Significance: Maximum deference to the legislature. Minimum rationality standard and a presumption of constitutionally. A presumption of constitutionality would be applied to the case of an economic regulation subjected to due process attack. The court noted that Congress has acted upon the findings of fact showing a public health danger from filled milk. ―The existence of facts supporting the legislative judgment is to be presumed, for regulatory legislation affecting ordinary commercial transactions is not to be pronounced unconstitutional unless…it is of such a character as to precluded the assumption that it rests upon some rational basis within the knowledge and experience of the legislators.‖ This case stands for a rule of judicial abdication, but footnote four set forth three exceptions, each in a separate paragraph. Each became the basis of an important line of subsequent case law. a. THE FAMOUS FOOTNOTE 4: i. Describes the incorporation of the bill of rights (into the 14th Am.) ii. ―Legislation which restricts those political processes [such as voting, expression, and political association] which can ordinarily be expected to bring about repeal of undesirable legislation is to be subjected to more exacting judicial scrutiny‖ under the 14 th Am than are other types of legislation. This anticipates the representation-reinforcing cases, such as Baker v. Carr. iii. Expresses concern about the review of statutes directed at ―particular religious, national, or racial minorities; whether prejudice against discrete and insular minorities may be a special consideration, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities and which may call for a correspondingly more searching judicial inquiry.‖ This anticipates the equal protection cases. Williamson v. Lee Optical of Oklahoma (1955) Douglas, J.: The court upheld an OK statute that prevented opticians from fitting eyeglass lenses into frames without a prescription from an ophthalmologist or optometrist, even if opticians were qualified. EVEN IF the statute seemed concededly ―needless‖ and ―wasteful‖ (which in any case was for the legislature to decide), it did NOT violate due process. The court found that the statute was a rational health measure because the legislature ―might have concluded‖ that in some instances prescriptions were necessary to permit accurate fitting or that eye examinations were so critical that every change in frames should be accompanied by a prescription from an expert. ―It is enough that there is an evil at hand for correction and that it might be thought by legislature that the particular legislative measure was a rational way to correct it. The day is gone when this court. uses the DPC to strike down state laws, regulatory of business and industrial conditions, because they be unwise, or out of harmony with a particular school of thought.‖ Economic substantive due process today: S.Ct. has almost completely abandoned Lochner strict scrutiny approach to social and economic legislation. i. Economic substantive due process review has become extremely deferential in the post-Lochner era.. Almost all legislation—even if it reflects the result of a powerful private self-interest lobby with the slightest hint of ―public-regarding justifications‖ is upheld. I.e.: the dairy lobby was hard at work behind the passage of the ―filled milk‖ act in Congress—more concerned about the dairies‘ pocketbooks than consumer‘s health. After decisions like Caroline Products, Williamson and Ferguson—no claim of substantive economic rights would now be sustained by the Supreme Ct. ii. Alternatives to abdication? Perhaps the court has gone too far in its withdrawal from the substantive review of economic legislation? Maybe it should have adhered to the Nebbia standard—―that the means selected should have a real and substantial relation to the object sought to be attained iii. Decline of Lochner and the rise of the ―double standard‖: Why is there a presumption of constitutionality (Carolene Products) when the court reviews economic legislation? The idea that a substantive due process consideration by the court doesn‘t extend to economics, just to fundamental rights. -Intent of the Framers: Consider W. Nelson: The framers did not think a serious conflict would arise between the protection of individual rights and the preservation of legislative freedom. They did not see the 14th Am as removing fundamental individual rights from the sphere of state control, rather it prohibited arbitrary and unreasonable lawmaking on the part of the state. In Lochner and its progeny, however, the Court read the 14th Am. as authorizing the federal court to immunize fundamental rights from all legislative regulation. The court ignored the need to preserve the power of the state, which is equally important as preserving the power of the federal government. The court enlarged the scope of the 14th Am far beyond its original purpose. The court did not cut back on Lochner by distinguishing between reasonable and arbitrary state regulations; instead it distinguished in Carolene Products between economic and non-economic rights—giving government plenty of power to regulate the former and little power to regulate the latter. Koppelman: 60 i. Should the Court go further than it has in protecting economic liberty? Depends on whether you think the New Deal revolution is constitutionally and/or democratically legitimate. It also depends on your views about whether unregulated economy maximizes individual liberty. What about government intervention to lessen unemployment? Would your individual liberty be trammeled with legislation creating jobs? This cuts both ways. i. Koppelman suggests that perhaps one reason for the total abdication of the field of economic substantive due process is the policing practice. It is hard for them to come up with a bright-line rule in this regard. Policing the legislative process would require courts to evaluate the case for each one of thousands of interferences with economic liberty that the modern regulatory state undertakes daily. E. Modern Substantive Due Process: Privacy, Personhood and Family 1. Overview – The key question to be answered is: what are the unenumerated fundamental rights? a. Two-Tier Scrutiny: Ct. has applied different standards of review in substantive due process cases. I the case of economic rights, the Ct. has required merely that there be a rational relation between the statute and a legitimate state objective. (―Thou shalt not Lochner) But where the Ct. finds that a ―fundamental right‖ is impaired by a statute, it has applied a heightened scrutiny that is stricter in two respects: (a) the state‘s objective must be ―compelling‖ not merely ―legitimate‖ and (b) the relation between that objective and the means(i.e., the means-end ―fit‖) must be very close, so that the means can be said to be ―necessary‖ to achieve the end. b. Comparison with Equal Protection: This two-tier scrutiny is used in very much the same way in equal protection cases; differential treatment of groups will be sustained if it is rationally related to a legitimate state goal, unless either the classification impairs a ―fundamental right,‖ or the classification itself is found to be ―suspect.‖ c. Which rights are ―fundamental‖: In the substantive due process area, the rights which the S/Ct. has found to be ―fundamental‖ have tended to be in the related areas of sex, marriage, child-bearing, and child-rearing. d. Right to ―privacy‖: Generally, the Ct. has treated most of the interests it has found to be fundamental as falling within the broad category of the ―right to privacy.‖ By privacy, the Ct. seems to mean ―personal autonomy.‖ e. Significance of two tiers: Where the right is found NOT to be fundamental, so that a ―legitimate‖ state objective, and a rational relation between the means chosen and that objective, are all that is required, the Ct.’s deference to the legislative judgment is so extreme that there is virtually no scrutiny at all. By contrast, if the right is found to be fundamental, the scrutiny is so strict that few statutes impairing it can meet the double test of showing that the state‘s objective is ―compelling,‖ and that it cannot be achieved in a less burdensome way. {extremes} 2. Early non-economic cases: Although vindication of non-economic rights by use of the substantive due process doctrine has become of great practical importance only in recent years, several much older cases make similar use of the doctrine. a. Meyer v. Nebraska (1923) is an example of the way the court construed substantive due process in a much broader context. In striking down a state law that prohibits teaching a language other than English, the court held that the term ―liberty,‖ as used in the 14th Am., included many non-economic, but nonetheless important, rights; the right of teachers to teach, and that of students to acquire knowledge, were among these. Used a ―mere rationality‖ test (rather than strict scrutiny), but nonetheless concluded that the statute was ―without reasonable relation to any end within the competency of the State.‖ No emergency exists requiring a child to know a language other than English. 3. Post New-Deal a. Message of the New Deal was: ―Thou shalt not Lochner.‖ Thus, the problem in the courts post-New Deal was what remained of unenumerated individual rights. b. Views of the New Deal: (1) Rediscovery of the true constitution, ending an anomalous period in which the Court illegitimately imposed its own laissez-faire philosophy (Lochner was wrong when it was decided) (2) A true constitutional revolution in which the people, by supporting Roosevelt, exercised their power to change the Constitution (Lochner was right when it was decided, but then the constitution changed, so now it is wrong) (3) An illegitimate usurpation of power which should be overruled by the judiciary (this view doesn‘t seem to have much future). c. Problem facing judges was: ―What‘s left of the 14th amendment?‖ d. General rule is now judicial abdication (Holmes‘ view) e. Carolene Products (1) the existence of facts supporting the legis. judgment is to be presumed. (2) Means effectively, a rubber stamp in favor of legislation. (3) Justice Stone’s Footnote #4: Three exceptions to general rule of judicial deference: (a) When the law falls within some prohibition of the constitution. (Black: this means it‘s the court‘s job to protect enumerated rights). (b) When legislation restricts the political processes (c) When laws reflect prejudice against certain minorities, because prejudice can curtail the operation of those political processes normally to be relied on. (anticipates Brown v Bd) Note: K says there’s a 4th category- the right to privacy, that is not mentioned in FN4. 61 Court faces question ―What are the unenumerated fundamental rights?‖ 4. Birth Control: The first major modern-era case which was used in a substantive-due-process-like approach to protect a fundamental right was Griswold. {see modern outline} a. Griswold v. Connecticut - Douglas (1965) – Facts: The statute at issue was a CT law which forbade the use of contraceptives (and made this use a criminal offense); the statute also forbade the aiding or counseling of others in their use. The defendants were the director of the local Planned Parenthood and its medical director. The were convicted of counseling married persons in the use of contraceptives. Holding: Struck down anti-contraceptive statute. The majority opinion declined to make explicit use of the substantive due process doctrine. Instead, here turns to text, specifically the guarantees of the bill of rights. He holds that that several of the B of R‘s guarantees protect the privacy interest and create a ―penumbra‖ or ―zone‖ of privacy.  For him, the text, once again, points beyond itself to a larger principle. The text leads him to a structural and purposive analysis from which, through inductive reasoning, he arrives at the right to privacy. The purpose of the guarantees of the 1st, 3rd, 4th, and 5th amendments is to protect the privacy of the home. This law could not be enforced without violating that privacy. Therefore it is unconstitutional.  Note: Penumbra argument is vulnerable. None of the specific provisions protects a general right to privacy. Concurrences: --(Goldberg): 9th amendment expressly protects rights not found in the Constit. (Not 14th - due process). - ―The enumeration in the Constit., of certain rights, shall not be construed to deny or disparage others retained by people‖. Privacy in marriage is clearly a fundamental right ―retained by the people‖. - This ruling doesn‘t apply to state‘s rights to regulate sexual promiscuity or misconduct. --(Harlan): Argues that the 14th Am. due process clause not only incorporates those liberties contained w/in the bill of rights, it also protects those basic values ―implicit in the concept of ordered liberty‖ (Palko test). - Marital privacy is one of those basic values. The due process clause gives effects to values rooted in traditions of our people. (Much time is spent focusing on traditions and settled norms) --(White): DPC should be the test in determining whether such laws are reasonably necessary for the effectuation of a legitimate and substantial state interest and are not arbitrary or capricious. Here he found there was no need to ban the use of birth control by married people in order to serve the state‘s policy against promiscuity and illicit sex. Dissents: (Black): Black, staying true to his views, says that only those rights which are explicitly included in the Bill of Rights were protected using the 14th amendment due process provision. There are no specific constitutional provisions that this law violates, therefore it should be upheld. Thinks it‘s Lochner all over again. (Stewart): There is no general right of privacy found in the Constit. Rejects 9th amend. basis for decision because 9th only applies to the states. (Stewart later changes his view) b. Criticism of Griswold: (1) Penumbra theory illogical: - Argument is weak- no constit. provision protects general right to privacy. It could be argued that ―[w]hen the Const. sought to protect private rights it specified them; [the fact] that it explicitly protects some elements of privacy, but not others, suggests that it did not mean to protect those not mentioned. Note: A stronger penumbra case is NAACP v Alabama - To disclose a list of NAACP membership would impede on freedom of speech and association. Giving out names has resulted in harm to members in past. Here an unenumerated right (to keep one‘s membership a secret) was necessary to exercise an enumerated right (the right of association). (Griswold lacks such clear grounding in an enumerated right). Douglas‘s argument in Griswold that the marriage relationship is protected in its privacy because it is an association for a noble purpose misses the mark because the issue is not whether the privacy right is for a noble purpose, but whether its necessary to the exercise of an enumerated right and is therefore an implied right. Douglas‘s argument at the end about such a law leading to searches in the bedroom is makeweight and not at issue in this case. -Griswold leaves us with a worry that the court has a license to protect liberties that are unenumerated. (2) Issue of 9th Am. (a) Ely- ―the conclusion that the 9th amend. was intended to signal the existence of federal constitutional rights beyond those specifically enumerated in the Constitution is the only conclusion its language seems comfortably able to support‖. - Backs the notion that the peripheral rights do exist and a basis for those can be found in the Constit. - But, if true, why was it never invoked by one justice until the 1960s. (b) Berger - 9th amend. deals w/ rights retained by the people. 10th amend. deals with powers reserved to the states or to the people. Courts don‘t enforce these rights. Rather, in ―retaining‖ the unenumerated rights, the people reserved to themselves power to add or subtract from the rights enumerated in the Constit. by the process of amendment. 62 5. Post-Griswold contraceptive law: Ultimately case means more than that married persons may not be prevented from using birth control – it means that no person, single or married, may be prohibited from using contraceptives, or otherwise by subjected to undue interference with decisions of procreation. (1) Eisenstadt v. Baird (1972): Extended right of contraception to single persons. Ct decided (6-1) that a Mass. law that distributing any drug or device to unmarried persons for the prevention of contraception violated the equal protection clause because it provided dissimilar treatment for married and unmarried couples. In striking down the statute, the majority invoked equal protection as well as substantive due process grounds. Koppleman: Hard to analogize to Griswold, w/ Griswold‘s emphasis on the sanctity of marriage. Marriage was explanation for why contraception was justified in Griswold. History has shown that the ct. has been more willing to follow Harlan‘s dissent in Griswold than Douglas‘ majority opinion. Following Harlan, ct. asks is this position ―deeply rooted in our nation‘s history and traditions‖. Abortion: The right of privacy which the Ct. found to exist in Griswold has been extended to the abortion context. a. Roe v. Wade (1973) - A Texas statute made it a crime to procure an abortion except ―by medical advice for the purpose of saving the life of the mother‖. (Typical statute). Holding: Ct. overturned statute. The Ct. held that a woman’s right to privacy is a ―fundamental right‖ under the 14th Am. This right of privacy ―is broad enough to encompass a woman‘s decision whether or not to terminate her pregnancy.‖ T/f, the legislature has only a limited right to regulate – and may not completely proscribe – abortions. Ct. broke pregnancy down into trimesters. 1st trimester – matter of right. 2nd trimester – Can be prohibited {regulated} (The state may protect its interest in the mother‘s health by regulating the abortion procedure in ways that are ―reasonably related‖ to her health.) 3rd trimester- Fetus is viable, thus state has a ―compelling‖ interest in protecting the fetus. State can regulate abortion, but it must be permitted where it is necessary to preserve the life or health of the mother. Rationale: Premised upon the right of privacy. A woman‘s interest in deciding this issue herself was a ―fundamental‖ one, thus a strict scrutiny approach was used. Woman‘s fundamental interest could only be outweighed if : (1) there was a ―compelling state interest‖ in barring or restricting abortion; and (2) the state statute was ―narrowly drawn‖ so that it fulfilled only that legitimate state interest. Dissent: (White): Objected to what he called the Ct.‘s imposition of its own value scheme, preferring the ―convenience, whim or caprice of the putative mother [over] the life or potential life of the fetus‖ prior to viability. He thought that the relative weights which should be assigned to these two interests should be left to ―the people and to the political processes.‖ (Rehnquist): Argued that only a ―mere rationality‖ test, not a strict scrutiny one, should be applied; in his view, at least some of the abortion prohibitions and regulations forbidden by the majority could meet this minimum rationality standard. He also criticized the majority‘s three part result as being ―judicial legislation.‖ b. Note on the Abortion Decision:- The central issue in Roe is whether a constitutional basis exists for a woman‘s right to privacy. The ct. relies heavily on precedent to establish that it does indeed exist - Griswold and Eisenstadt. (1) Critique of this approach: Ely - In Griswold ct. only invalidated that part of law prohibiting use, not manufacture or sale of contraceptives. Distinction between use and sale is that it would have been impossible to enforce prohibitions on use of contraceptive. ―No such rationalization is possible in Roe, for whatever else may be involved, it is not a case about governmental snooping‖. Ely also says: ―Roe is bad because it is bad constitutional law, or rather because it is not constitutional law and gives almost no sense of an obligation to try to be‖ - This protection is not inferable from any constitutional source: - language of document, framer‘s thinking on the subject, any general values contained in document or from the nation‘s gov‘tal structure.‖ (2) Defenders of Roe: (a) Precedent establishes a sphere of interests - which the Court now calls privacy - which is implicit in the 14th amendment of the Constitution. Among the familial interests regarding marriage and children, ―plainly the right to an abortion falls w/in this class of interests.‖ (962). n.b.--But, the difficult decision in Roe isn‘t about this sphere of interests, it is because in Roe, the state interest in the matter is very imp. (b) - Heymann - Essentially argues that the decisions about children and values are ones that are made inside the family. These decisions have been delegated to the family and not to the state. State‘s do not raise children. (c) Also, Roe dealt w/ control over one‘s own body. This is a concern or value that is far more closely related to what was sought to be controlled under the Due Process clause and the common law - than the privacy right that was in issue in Griswold. (d) Also, abortion laws only target women. (Tribe) - Men nowhere are forced to give up their bodily integrity because the state has issued a law prohibiting certain activity. ―To one who regards this outcome as unjust, a right to end a pregnancy might be seen more plausibly as a matter of resisting sexual domination than as a matter of shielding from public control ―private transactions‖. (964). - Ability to bear children becomes a social disadvantage. - Women become involuntary incubators. (3) Compelling State Interests: The question still remains, even if a right to privacy is recognized, whether the prohibition of abortion serves a compelling state interest. Ct. finds 2 such interests: 1) protecting health of pregnant woman and 2) protecting potential life of human fetus. At various points, these interests do become compelling. If these questions are of moral significance and the court does refer to religious views on the 63 c. c. subject, shouldn‘t the people be allowed to express their moral views through the Legislature that passes laws dealing w/ abortion. (4) Issue of ―Viability‖ - The ct. said that the compelling point w/ respect to the interest in potential life is viability, because at that point the fetus can survive outside of the mother‘s womb. At that point, abortion becomes tantamount to murder. Problems w/ this view: biologically, viability is not a fixed time. Particularly as medical technology allows the fetus to survive out of the womb for longer times. The modification of Roe by Casey: In Casey, a majority of the Ct. declined to overrule Roe, however, important aspects of Roe, including abortion‘s status as a ―fundamental right,‖ the state‘s almost complete inability to regulate first trimester abortions, and in fact the whole trimester framework of Roe were all overturned. ** As a result of Casey, the states may restrict abortion so long as they do not place ―undue burdens‖ on the woman‘s right to choose. --Planned Parenthood of Southeastern Pennsylvania v. Casey (1992) - Facts: The PA statute requires a woman seeking an abortion give her informed consent prior to the abortion and specifies that she be provided w/ certain information about the procedure 24 hours before the abortion is performed. Minors must get parental consent to the procedure (there are exceptions to this). A married woman must sign a form saying her husband consents to the act. – Reqs. are not necessary in the case of an emergency. Holding: (All but one (spousal notification) of the restrictions were upheld as not being unduly burdensome) The O’Connor group’s (O’Connor, Souter, Kennedy) opinion has two parts. The first reaffirms the Roe holding, ―the essential holding in Roe should be retained and once again reaffirmed‖. The 3 components of Roe are affirmed: 1) woman‘s right to abortion prior to viability, 2) state can interfere w/ abortion after viability, 3) state has legitimate interest from outset of pregnancy in protecting life of the woman and life of fetus that may become a child. The Ct. finds these rights are affirmed in the due process clause of the 14th amendment - which has a recognized substantive component. The woman‘s liberty is protected under this provision. The second part of the opinion offers a theory of stare decisis, and explains why the Roe precedent should be adhered to. But what the joint opinion gave, it partly took away. Three aspects of Roe were ABANDONED; the trimester framework, the understanding of abortion as a fundamental right, and (thus) the principle that any pre-viability abortion regulation must survive strict scrutiny. Concurrences: Blackmun (CONCURRING IN PART, DISSENTING IN PART)-Believes that any regulations relating to abortion should continue to be analyzed under the strictest scrutiny standard. Thus, the 24 hr. wait, parental informed consent and reporting abortion related info. should be invalidated. (He believes that the undue burden standard imposed by the ct. does not reach this level). Argues for complete reaffirmation of Roe - State restrictions on abortion violate women‘s‘ right to privacy in two ways: 1) compelled continuation of pregnancy infringes upon a woman‘s right to bodily integrity by imposing substantial physical intrusions and significant risks of physical harm. 2) restricting a woman‘s right to terminate pregnancy, deprives woman to make her own decisions regarding reproduction and family planning, (similar to contraception or marriage), which the ct. has determined is central to the right to privacy. Criticizes Rehnquist for not being concerned about how these decisions impact women and how the requirement of child-bearing impact women. Stevens (CONCURRING IN PART, DISSENTING IN PART) The state‘s interest in protecting a potential life is not one that can be found in the Constit.- these are humanitarian and social concerns. But, a woman‘s interest in liberty is constitutional. A woman however could not be forced to receive state approved pro-life material right before deciding whether to undergo the procedure. Does not explicitly say he disagrees w/ the undue burden standard, but he would clearly apply it in a manner very similar to strict scrutiny standard when examining state decisions on this matter. Right to abortion must be understood at a high level of generality. Dissents: Rehnquist (DISSENTING IN PART, CONCURRING IN PART,) He says the ct. ―retains the outershell of Roe v. Wade, but beats a wholesale retreat from the substance of the case‖. He would uphold all the regulations enacted under the statute. This is the case b/c the regulation merely had to be ―rationally related to a legitimate state interest‖ and he believes these are all related to such an interest. One cannot ignore the fact that abortion, unlike marriage, procreation and contraception, does not impact solely the woman. The decision to abort necessarily involves a fetus. Switching gears he says- There is no recognized fundamental right in American history to support the view that abortion is a fundamental right. Many states had passed anti-abortion laws at the time of the 14th amendment. (Rehnquist seems to believe that fundamental rights are present because they have their roots in US history). Criticizes the reliance argument used by the Ct. ―The simple fact that a generation or more had grown used to Lochner or Plessy did not prevent Ct. from correcting its errors in those cases, nor should it prevent us from correctly interpreting the Const. here. -Scalia (DISSENTING IN PART, CONCURRING IN PART): The real question that the Ct. has to answer is whether the ―liberty‖ to have an abortion is protected by the Constit. - ―I am sure it is not‖. (Issue is not whether this issue is imp. to women.) He reaches his conclusion based on 2 points: 1) the Constit. says 64 6. absolutely nothing about it and 2) long-standing traditions of American society have permitted bans to be legally proscribed. By not relying on tradition, Scalia says the Ct. systematically is eliminating checks upon its own power. The best the Ct. can do ―to explain how it is that the word ―liberty‖ must be thought to include the right to destroy human fetuses is to rattle off a collection of adjectives that simply decorate a value judgment and conceal a political choice‖. Scalia makes a somewhat interesting argument about public response to Roe. The public outrage on both sides of the issue regards how the Ct. decided Roe. If the public just saw the Justices as reading and interpreting text, the Ct. would be left alone. ―Texts and traditions are facts to study, not convictions to demonstrate about‖. d. Koppelman’s theory to abortion: protected under 13th amendment. Relying on Bailey v. Alabama (which holds that personal service cannot be compelled) and Jones v. Mayer (which holds that C. can abolish the ―badges and incidents of slavery,‖ because those badges and incidents are part of what the amendment forbids,) the 13th amendment protects both liberty and equality. Abortion restrictions violate amendment‘s guarantee of personal liberty. Forcing a woman to serve a fetus, it is a form of involuntary servitude that the state requires she continue. Also violates equal protection, only woman are subject to carry a child, and to force them to carry the child puts them into a servant caste. Through required birth, they serve another group and not themselves. State supplies the coercion by forcing them to carry the child. -What about the state’s interest in protecting the fetus? Under the 14th Am., laws that ―impinge on personal rights protected by the Const.‖ will be sustained ―only if they are suitably tailored to serve a compelling state interest.‖ Once it is shown that a law impinges on such a right, the burden is on the state to show that the right is overcome by a compelling state interest. Because the 13th Am. is worded much more strongly, the state‘s burden is even heavier than this. It is arguable that due process and equal protection are preserved even when a fundamental right is impinged upon or a disadvantaged group is discriminated against, so long as a compelling state interest is shown. But involuntary servitude is involuntary servitude no matter how compelling the state‘s interest is, and the amendment declares that involuntary servitude must not exist. (What about idea that pregnancy is voluntary, because agreed to have sex?) Sexuality: A person‘s sexual conduct (apart from any issues of procreation or family life) may in some instances be entitled to substantive due process. However, the S/Ct. has refrained from establishing any general protection of adult consensual sexual activity. Indeed, one major S/Ct. decision in this area, one involving homosexual sodomy, indicates that the present Ct. will take a highly restrictive view of what substantive due process protection, if any, should be given to dult consensual sexual acts. a. Bowers v. Hardwick (1986) – Facts: P., an avowed homosexual, challenged a GA statute making it a crime to perform or submit to oral sex or sodomy. The statute did not on its face distinguish between heterosexual and homosexual behavior. Holding: By a 5-4 vote the Ct. UPHELD the statute. The majority phrased the issue as being ―whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy?‖ White delivered opinion. - Opinion opens by noting that none of the rights announced in cases like Griswold and Roe ―bears any resemblance‖ to the claimed constit. rights of homosexuals to engage in sodomy. Whereas those cases dealt w/ family, marriage or procreation, there is NO such connection w/ homosexual activity. There is NO fundamental right to engage in homosexual sodomy, b/c it is long standing convention in US history that sodomy was prohibited. For this reason it is not ―implicit in the concept of ordered liberty.‖ Also, the Ct. is reluctant to read into the due process clause a provision that was clearly not intended. (Worried about judicial overreaching) They hurt their own judicial legitimacy when they do such things. The fact that the prohibited activity occurs w/in the home does not make it constitutional. Adultery, incest, and other sexual crimes will be punishable even when they occur w/in the home. (Respondent tried to argue that under Stanley v. Georgia, possessing and reading obscene material in home, was permissible under the 1st amendment - ct. says this is distinguishable for above stated reasons). Concurrences: Burger: (Invoking Judeo-Christian moral and ethical standards) There is no such thing as a fundamental right to commit homosexual sodomy. For much of Western civilization state intervention prohibited such things. This is a moral matter and the legislature has right to intervene if it so desires. Powell: Agrees that no such fundamental right exists under the substantive due process clause. Since the punishment is so severe, 20 yrs for one incident, it may be unconstitutional on 8th amend. cruel and unusual punishment grounds. Dissent: Blackmun: Case is about a fundamental right to engage in homosexual activity. It is about the ―most comprehensive of rights and the right most valued by civilized men‖, the right to be left alone. Criticizes the majority opinion for saying that the fundamental right to privacy extends only to family relationships. It is not that the family is so central to the courts concern, it is because these type of concerns are so central a part of an individual‘s life. (Decisional privacy guarantees) The right to privacy extends to personal decisions such as how a person may define himself through sexual intimacy. (Also emphasizes Spatial Privacy) Additionally, the right to conduct intimate relations in the home is at the heart of the Constitution‘s protection of privacy. 65 Stevens: The rationale that the Ct. uses applies equally to the prohibited activity regardless of whether those who engage in it are married or unmarried, of the same or different sexes. Thinks that there‘s an equal protection problem in selective application of this law to gays. Koppelman: Case sets out two-pronged test for whether an action will be protected under right to privacy. 1) Conduct must be ―implicit in the concept of ordered liberty (from Palko) or 2) deeply rooted in this nation‘s sense of history and tradition. -Neither protects homosexual sodomy. * Validity of Distinction b/w Bowers and other privacy cases? -- yes, (J. White‘s opinion)—earlier cases all involved pregnancy, actual or possible, while Bowers does not. -- no, (Posner)—statutes which criminalize homosexual behavior express an irrational fear & loathing of a group that has been subjected to discrimination, much like that directed against Jews… {homosexuals despised more for what they are than for what they do}… statutes thus have a quality of invidiousness missing from statutes prohibiting abortion or contraception. {homosexuals ―despised‖ for both their status and their conduct} 7. Physician Assisted Suicide: a. Washington v. Glucksburg (1997) - (Rehnquist) Facts: Involved Washington‘s ban on promoting a suicide attempt. WA defined this crime as ―knowingly causing or aiding another person to attempt suicide‖ and made it a felony. Issue: Whether Washington‘s prohibition against causing or aiding a suicide offends the 14th amend. of the Constit. Holding: It does not, i.e. the law is constitutional. Rehnquist phrases the issue at a very high level of generality: ―whether the liberty specially protected by the DPC includes a right to commit suicie which itself includes a right to assistance in doing so.‖ He looks to history, legal tradition and practices. (Tradition based – no tradition of protecting physician suicide thus right isn‘t protected.) He concluded there is NO historical right, and therefore there is no fundamental interest in protecting it. State had a rational interest in prohibiting assisted suicide, because it had an interest in preserving human life, protecting the integrity of the medical profession, and protecting vulnerable groups. He said the state could rationally fear that legalizing assisted suicide would set it down a slippery slope towards voluntary and involuntary euthanasia. Concurrences: O’Connor, concurring, agrees that statute is unconstitutional. But, being the critical 5th vote, she does not completely reject the idea that in some cases a physician assisted suicide statute may be constitutional. Particularly where person is in intense pain and death is imminent. Stevens- the states’ interest in preventing abuse of the sick will be a valid reason for prohibiting suicide in some, but not all, cases. Some terminally ill patients may have a constitutionally protected right to decide ―how to die.‖ Souter- won‘t says whether the individual‘s autonomy interest is ―fundamental‖, because he thinks the state‘s interest in preventing abuses is sufficiently persuasive to overcome that interests, Koppelman: Note that the court remain unsettled about the scope of constitutional privacy, It appears to go beyond the 2-pronged test in Hardwick, but how far remains to be seen. F. Equal Protection: 1. Race and the Constitution: There is ambiguity in the Court‘s understanding of discrimination. Both Exxon and Hunt agree that proof of discriminatory impact can be a basis for a claim of discrimination, but differ on whether discrimination has been proven. These cases leaves us in doubt as to what ―discrimination‖ means. If it doesn‘t mean discriminatory purpose, and it‘s not demonstrable simply by discriminatory impact, then what else could it mean? 2. Slavery and the Constitution: Three provisions in the original Constit. recognize and arguably legitimatize slavery. Art. I § 9 prohibits C. from outlawing the slave trade until 1808. Art. 1 §2 requires apportionment of legislators on the basis of free people and ―3/5s of all other persons‖. Art. IV § 2 clause 3 (fugitive slave clause) requires states to ―deliver up‖ escaped slaves. 3. Reconstruction and Retreat: Pre-Civil War there was a very different view of Const. law than that which followed the war. Pre-war, the states faced very little restrictions on its actions from the federal gov‘t and the Ct. This was not due to the fact that the Bill of Rights was applied to the states, instead the view was that the most serious threat to individual liberty came from federal gov’t, and the states were actually to serve as a protection against an overly active or intrusive fed. gov’t (See Fed. #28). After Civil War, it was clear that changes were needed. Southern states could not be relied on to protect the rights of freed slaves. At this time a transformation occurred, Constit. came to be seen as a basis ―for the assertion of federal power to protect indiv. against state interference‖. -Strauder v. West Virginia: Facts: Strauder, a black man, was indicted for murder and after a trial was convicted of the charge. On appeal, Strauder argued that at the trial he was denied rights to which he was entitled under the Const. and laws of the U.S. b/c under state law blacks were ineligible to serve on the grand or petit jury. Holding: A state may NOT prevent blacks from serving on juries. The 14th Am. is one of a series of const. provisions securing to a race recently emancipated, all the civil rights that the ―superior‖ race enjoys. The 14th Am. declares the law in the states shall be the same for blacks and whites. The Amend. implies a right to exemption from unfriendly legislation which implies inferiority in civil society. The statute is clearly discriminatory b/c blacks are singled out, which leads to a practical ―brand on them.‖ n.b.—Plessy distinguishes Strauder by stating that Strauder involves political inequality, whereas Plessy I involves social equality. 66 Main Point: Two themes emerge here which later become significant in determining whether a group constituted a suspect classification and whether the leg. in question violates constitutional prohibitions: 1) Whether the class, as in the case of blacks, is one that has historically been the victim of societal discrimination. 2) Whether the leg. in question tends to stigmatize that class in the eyes of society. 4. Classifications based on Race (Strict Scrutiny Analysis): Classification based on race is the classic exp. of a ―suspect‖ classification, because of our nation‘s long history of both public and private racial discrimination. (Applies to other races as well). A classification will not be deemed ―suspect,‖ and therefore subject to strict scrutiny, unless the Ct. finds that there was a legislative intent to discriminate against the disfavored group. That is, the mere fact that a law has a less favorable impact on a minority group than it has on the majority is not sufficient to constitute a violation of equal protection. A demonstration of disproportionate impact is a factor in the equal protection analysis, but it can never by itself suffice; proof of intentional discrimination is required. a. Three ways to show purpose: Purposeful discrimination may appear in any of three ways: (1) The law discriminates on its face, i.e., by its explicit terms. (Exp. Strauder) Note: Where a law is found to discriminate ―on its face‖, the Ct. will not require that it be shown to have had an actual discriminatory impact in the case at hand. (2) The law, although on neutral on its face, is administered in a discriminatory way (3) The law, although it is neutral on its face and is applied in accordance with its terms, was enacted with the purpose of discriminating, as shown by the law‘s legislative history, statements made by legislators, the law‘s disparate impact, or other circumstantial evidence of intent. b. Early Cases: (Separate but Equal Doctrine) a. Plessy v. Ferguson (1896) Facts: Plessy who was 7/8 white and whose skin color was white was denied a seat in an all-white railroad car. When he resisted he was arrested for violating a state law which provided for segregated ―separate but equal‖ railroad accommodations. Plessy appealed the conviction, saying that sep. of the races stigmatized blacks and stamped them with a badge of inferiority. He claimed that segregation violated the 13th Am. and the 14th Am. Holding: A state may segregate the races because this is a valid exercise of the state’s police power. Where this has been the established custom, usage, or tradition in the state, it may continue to require such seg. as is reasonable to ―preserve order and the public peace.‖ This is not a bade of ―slavery‖ under the 13th A and it violates no provision of the 14th A. Just b/c some blacks and Plessy feel it is a badge of inferiority doesn‘t make it one. Conviction sustained. Dissent: (Harlan, J) The state interferes with the personal freedom of individuals to freely associate with others. The Const. is color blind. All citizens should and must be treated alike. Blacks are not subordinate or inferior things. They are citizens and are entitled to all of the privileges which this entails. Enforced separation is an impermissible burden on these privileges and freedoms. * n.b.—Koppleman thinks Plessy is stupid & that everyone knew what was going on (prejudice), but to criticize Plessy via text of the 14th Amend. is difficult, b/c the text is so vague. c. Equal Protection Methodology: Strict Scrutiny (1) The last case in which a racial or ethnic classification survived strict scrutiny was Korematsu v. United States (1944) the infamous Japanese Exclusion Case. Facts: Korematsu, an American citizen of Japanese ancestry, was convicted of violating exclusion order NO. 34, a World War II decree which ordered all persons of Japanese ancestry to leave the military area of the Western United States. Those of Japanese ancestry were to report to and temporarily remain in an assembly center and go under military control to a relocation center for an indeterminate period. Korematsu appealed on grounds that the order denied equal protection. Holding: Apprehension by the proper military authorities of the gravest imminent danger to the public safety can justify the curtailment of the civil rights of a single racial group. While such a classification is immediately suspect and is subject to the most rigid scrutiny, pressing public necessity can sometimes justify such exclusions. When under conditions of modern warfare the country is threatened, ―the power to protect must be commensurate with the threatened danger.‖ Congress, placing its confidence in the military, determined that the military should have that power. Conc: (Frankfurter) This decision only says that the C was not violated, not that the Ct. approved of the methods used. Dissent: (Roberts) To make this case turn on order NO. 34 alone is to close our eyes to reality, the overall plan for forcible detention. (Murphy) It cannot be reasonably assumed that all persons of Japanese ancestry may have a dangerous tendency to commit enemy acts. (Jackson) A civil court should not be made to enforce an order which violates const. limitations even if it is a reasonable exercise of military authority. (Says unconst. but he won‘t say what the implications for this are.) Main Point: This case is the first to set forth the ―strict scrutiny‖ standard for laws that discriminate on the basis of race. But the Court doesn‘t seem to scrutinize the classification very strictly here. It accepts the assertion of military necessity without much question. (3) This decision is the font of present equal protection doctrine. That doctrine is: the equal protection clause of the 14th Am. states that ―no state shall ... deny to any person within its jurisdiction the equal protection of the laws.‖ The S Ct. has interpreted this provision as prohibiting arbitrary discrimination, or treating similar things dissimilarly. This produces a very deferential standard of judicial review. The general rule is 67 legislation is presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a leg. state interest. The clause, however has been given teeth in cases where the challenged classification is based on race: ―all legal restrictions which challenge the civil rights of a single racial group are immediately suspect.‖ (4) Justification: This higher level of scrutiny has been justified with the explanation that race is ―so seldom relevant to the achievement of any legitimate interest that laws grounded in such considerations are deemed to reflect prejudice and antipathy – a view that those in the burdened class are not as worthy and deserving as others.‖ (3) So, all race classifications  subject to strict scrutiny To pass strict scrutiny need to be suitably tailored to serve a compelling state interest (= no other way state could have reached the same result). ALMOST NO LEGISLATION HAS BEEN ABLE TO SATISFY THIS TEST, WHEREAS ALMOST ANY LEG. CAN PASS MINIMAL SCRUTINY. 3 LEVELS OF SCRUTINY STRICT SCRUTINY RACE (must be no other way to achieve the ends) MIDDLE LEVEL  SEX (need to be substantially related to the ends) MINIMAL LEVEL  ALL ELSE (need to be rationally related to state interest) Also, with suspect classifications like race, whenever a discriminatory intent can be proven, statute is struck down. Rejection of the ―Separate but Equal‖ Doctrine: (In Brown v. Board of Education, at least insofar as public education is concerned (1) Brown I (1954) Facts: Black children were denied admission to public schools attended by white children. It was found that the black children‘s schools and the white children‘s schools had been or were being equalized with respect to buildings, curricula, qualifications, and salaries of teachers. Holding: Segregation of children in public schools solely on the basis of race, even though the physical facilities are equal, deprive the children of the minority group of equal protection of the law. Intangible as well as tangible factors may be considered. Hence, the fact that the facilities and other tangible factors in the schools have been equalized is not controlling. Segregation of white and black children in public schools has a detrimental effect on the black children b/c the policy of separating the races is usually interpreted as denoting the inferiority of the black children, and a sense of inferiority affects children‘s motivation to learn. Segregation tends to deprive black children of some of the benefits they would receive in an integrated school. {causal sequence: separation low self-esteem impairs desire to learn inferior education.} Any language in Plessy contrary to this is rejected. The ―separate but equal‖ doctrine has no place in the field of education. Separate facilities are inherently unequal. Such facilities deprive black children of their right to equal protection of the laws. (2) Note: After the Brown decision the cou,rt found segregation unconst. in other public facilities (including beaches, buses, golf courses, and parks. Despite the emphasis on the school context in Brown, the later cases resulted in orders simply citing Brown. (3) K- Breaks down the decision into 3 reasons: 1) public education is so important that it must be provided on equal terms 2) racially segregated education is not equal because black children get worse education in segregated schools 3) thus segregated schools are unconstit. (4) Justifications and Explanations for Brown: (a) Charles Black ―The Lawfulness of Segregation Decisions‖ Separating the races causes a sense of inferiority among black students and may impact them in a way likely to not be undone - - He says that segregation was set up and continued for the very purpose of keeping blacks in an inferior station. This purpose was a matter of common notoriety not so much for judicial notice as for background knowledge of educated men who live in the world‖. He then makes an originalist argument that intent of framers was for equal protection. If a whole people finds itself being seg. and branded, then ct. must ask -- is this equal protection? (But Bork argues that framers allowed segregated schools at the same time they allowed equal protection). (b) Alternative Rationales and Explanations: Wechsler ―Toward Neutral Principles of Constitutional Law‖ - He claims that the issue that should really be addressed is freedom of association, not discrimination. When the state denies the freedom to associate to any citizen, it is a right that impinges on any groups or races. Wechsler asks, ―in a situation where the state must practically choose between denying association to those individuals who wish it or imposing it on those who would avoid it, there is a basis in neutral principles for holding that the Constit. demands that the claims for association should prevail‖. (c) Much of the criticism that is aimed at Brown stems from the belief that it was an unjustified assertion of judicial power. (5) Southern Manifesto: response from Congress arguing that there were segregrated schools in the North when the 14th Amed. was drafted {originalist grounds seem to point the other way. } 68 d. e. f. (6) Bowling v. Sharpe (1954): Applies similar reasoning to the federal government (must desegregate) and seems to incorporate the equal protection clause into the Fifth Amen. (looks to much like sub. due process, so many say should not have been decided this way). Implementation of Brown: (1) Brown II (Implementation Decision) (1955): Facts: In Brown I, the court decided that racial discr. in public ed. is unconst. It requested further arguments on the question of relief. Holding: Relief in the public school racial desegregation cases should be accorded by remanding the cases to the lower courts to enter orders requiring integration. School authorities have the primary responsibility for assessing and solving the problem of achieving racial integration in the public schools. It will be for courts to consider whether the school authorities’ actions are good-faith implementations of the governing consit. principles. B/c of their proximity to local conditions and the possible need for further hearings, the courts which originally heard these cases can best perform this judicial appraisal. The courts will require that D make a prompt and reasonable start toward full racial integration in the public schools. Parties should be admitted to public schools on a racially nondiscriminatory basis ―with all deliberate speed.‖ Facially neutral laws that disadvantage minorities: (1) Washington v. Davis (1976): Facts: Washington administered a written test of verbal skills, vocabulary, and reading comprehension to applicants for jobs on the Police Department, and since four times as many blacks failed the test as whites, Davis brought suit alleging the invalidity of the test due to its discriminatory impact. Holding: A facially neutral law with a racially discriminatory impact is not unconstitutional unless it was enacted with a racially discriminatory purpose. The central purpose of the eq. prot. cl. of the 14th A is the prevention of official conduct which discriminates on the basis of race. It has never been held that a law or other official action is unconst. solely b/c it has a racially disproportionate impact. See pp. 10-11 of the 4/13/98 for more details (2) Important Note: The upshot of the present doctrine is that discriminatory impact alone cannot violate the equal protection clause, but it may violate the dormant commerce clause. Is there something wrong with this/ Do these rules, taken together, make sense? Why should impact matter more in the commerce context than in the context of race? 5. Equal Protection Methodology: Rational Basis Review a. Comments on Equal Protection and the 14th Am. (from the 4/20 handout p1-4) 1. Not just enough to show that recognition of a right is a good idea—need to show that recognition of that right by the judiciary is consistent with federalism and separation of powers. This invariably affects the interpretation of the 14th Am. 2. Koppelman agrees with Ely’s process-based argument. Ely is concerned separation of powers and with ensuring broad participation in the processes and distribution of government. Wants ―the selection and accommodation of substantive values [to be] left almost entirely to the political process,‖ and judicial review to be concerned solely with ―what might capaciously be designated process writ large – with ensuring broad participation in the process and distributions of govt.‖ Basically ensuring that the legislature give minority groups equal concern and respect in the design and administration of the political institutions that govern them. Koppelman used this extensively in class as a way to defend extending equal rights protection beyond race. THE CORE VIOLATION OF THE 14TH AM. IS A LAW THAT IT PREDICATED ON THE IDEA THAT SOME CITIZENS ARE LESS THAN FULLY HUMAN. 3. Support for this argument can be found in the concepts of constitutionalism and democratic theory. (Murphy) Constitutionalism holds that there are fundamental rights that cannot be violated even with the consent of the majority and democratic theory holds that if people have an obligation to the law they must in some senses be its author. These both provide limits the scope of legitimate decision-making in that if you presuppose a democracy‘s purpose with legislation that denies people the right to use the democratic processes you deny certain members of some human worth. 4. Following this line of argument then, if every citizen has a right to be treated equally in worth, then if there are discriminatory stereotypes which taint the process of political decisionmaking—any coherent constitution must include some rights against discrimination. 5. Why is this determination left to the judiciary? Goes back to Federalism. Equal Protection clause reflects the idea that state legislatures are not to be trusted and there must be some provisions to police state action to ensure that it is not discriminatory. The basis of judicial review under 14 th Am. is not that judges have some special expertise in this area but that the legislatures are unable to impartially judge themselves. b. Rational Basis Review (1) Tiers of review (from Emmanuel‘s pg. 242-6, and SSST pg. 561):  The justification for any given discrimination depends on the purpose that the government is trying to pursue—Equal Protection doctrine tends toward a means/ends analysis. The question is always whether the legislative classification is based on traits that are relevant to the achievement of the legislature‘s purpose. 69 6. (a) Strict Scrutiny: Ct. applies strict scrutiny to any statute that is based upon a suspect classification of race and a few other suspect characteristics (i.e.: national origin) are subject to this heightened standard of review and are frequently invalidated. (Also statutes that impairs a ―fundamental right‖) Cts. look to the whether the differential treatment is intentional on the part of the government and will only be upheld if it is necessary to promote a compelling governmental interest. This also applies when the legislature impairs a fundamental right (i.e.: the right to vote, have access to courts, etc) (b) Middle-level Review: In a few situations, the Ct. uses a middle level of review. This level is used for ―semi-suspect‖ classifications, i.e. those based on gender and illegitimacy. Under mid-level review, the means chosen by the legislature (i.e. the classification) must be substantially related to an important governmental objective. (c) Ordinary ―mere rationality‖ Review: much easier to satisfy than strict scrutiny. This standard applies to all classifications that are not based on a ―suspect‖ or ―semi-suspect‖ classification. These statutes will be upheld so long as it is conceivable that the classification bears a rational relationship to a legitimate governmental objective. (2) Cases (a) Koppelman asks how to reconcile White‘s decision here with his decision in Washington v. Davis where he reasons that racial discrimination violates Equal Protection only when it is a product of discriminatory purpose. While showing a disproportionate racial impact is a factor in ascertaining intent it is never by itself sufficient to prove discriminatory intent. Yet in Beazer he turns precisely to the implications of an anti-methadone law and its impact on minorities. In Washington, White expressed concern that if the court were to invalidate a statute that is designed to serve neutral ends yet in practice burdens one race would be far reaching and might spill over to invalidate a whole range of tax, welfare, public service, regulatory statutes that may be more burdensome to the poor and to the average black than to the more affluent white. Perhaps it is because the effects of the Washington decision has a larger impact on society and White did not want to legislate from the bench (thou shalt not Lochner). The effects of Beazer are much more narrow and limited. Thus, if the decision will call for judicial legislating—don‘t go there. (b) Koppelman also breaks Equal Protection into: -- Intent Test: need to look at the intent of the legislatures to determine discriminatory purpose. Much like White‘s decision in Washington. However, Koppelman hypothesizes construing intent more broadly—could be that race was a motive but the actor might not have been conscience of it. Problem with that approach is that it is hard to ascertain what are the subconscious motives—and how do you prove unconscious racism. Thus, is Washington too tough on Plaintiffs b/c calls for proof of conscious discriminatory purpose --Output Test: what is the effect on the disadvantaged group. If the decisionmaking process is contaminated by impermissible determinations perhaps the best way to ascertain this is to look at the effects of the legislation. Kind of like Ely‘s process argument (c) Notes from the book: i. The ―relevant difference‖ requirement: the equality principle should be modified to provide that differences in treatment can be justified by relevant differences between individuals. A difference is relevant only if it bears an empirical relationship to the purpose of the rule. ii. Relevant difference and the public interest: differential treatment violates the equality principle when its purpose is to advance the interest of politically powerful individuals but is permissible when it serves the public welfare. If there is a close connection between the classification and the public end the court may be persuaded that the rule‘s end is legitimate. iii. OVER-INCLUSION/UNDER-INCLUSION (1) Over-inclusion: disadvantages some people who do not threaten the state interest—i.e.: some methadone users are good workers and their exclusion would not advance the state‘s purpose. Perhaps permitting an over-inclusive statute to stand should turn on the cost of its overinclusiveness vs. the cost of a more individualized judgement. In Beazer, employ a balancing test: safety v. denying jobs to qualified methadone users. If employment outweighs then perhaps use a more individualized assessment to determine eligibility on a case-by case basis. Potential problem here is with administrative costs. (2) Under-inclusion: some people are not disadvantaged even though they threaten the state‘s interest. Can also be seen in terms of administrative costs—justify inclusion of one group because they are easier to identify than others. One way to think about under-inclusion is in terms of the Carolene Products footnote: if under-inclusive laws are not subject to scrutiny or protected by a counter-majoritarian judiciary this may give legislatures the incentive to burden powerless ―insular minorities‖ because they cannot form coalitions to challenge the laws. Equal Protection Methodology: Heightened Scrutiny and the Problem of Gender a. Historical Backdrop: (Note: the asterisks indicate cases discussed in the handout) 70 (1) **Bradwell v. Illinois (1873): Murphy, J: Court UPHOLD‘s IL‘s refusal to license a woman to practice law. Ct. following the Slaughter-House Cases concludes that privileges and immunities issue has no effect—right to practice law was not a privilege or immunity of national citizenship and therefore was not to be protected by 14th Am. Bradley, Concurrence: looks at traditional role of women. Women are wives and mothers and are unfit for law. This case falls in line with many of the Slaughter-House era cases which had given a narrow reading to due process and equal protection and the courts paid little attention to claims of gender discrimination as violating these doctrines. b. The Road to Intermediate Scrutiny: Any gender based classification must be ―substantially related‖ to ―important‖ governmental objectives. (Intermediate level of scrutiny) (1) ―Exceedingly persuasive justification‖: The Ct. will now, as the result U.S. v. Virginia, apparently apply intermediate scrutiny in a quite rigorous way, which makes it closer to ―strict scrutiny‖ than to ―mere rationality‖ review. As the result of Virginia, the defenders of a gender-based scheme must show ―an exceedingly persuasive justification‖ for the scheme, and the Ct. will apply ―skeptical scrutiny.‖ The Ct. still officially applies the intermediate level test (―substantially related to an imp. governmental objective‖), but apparently the govt. won‘t often pass this test. (2) Stereotypical Thinking v. attempt to reverse discrimination: A gender-based scheme is especially likely to be invalidated where it is an older one that arguably stems from traditional, stereotypical way of thinking about gender roles, rather than a newer one that is intended to combat past discrimination against women. (3) Cases: (a) **Reed v. Reed (1971): Berger, J.: First S. Ct. case to invalidate a gender classification under the equal protection clause. Purports to use the rational relationship test when it invalidates an Idaho statute preferring men to women as estate administrators. Berger identified the issue as whether a difference in sex bears a rational relationship to the state objective. (b) **Frontiero v. Richardson (1973) Plurality opinion which invalidates a federal law requiring a female member of the armed forces to prove that her husband was dependent on her for financial support even though the same requirements were not expected of men b/c the law didn‘t survive strict scrutiny. Brennan, J.: Strict scrutiny analysis—much higher standard than that imposed in Reed. Gender discrimination like race are inherently suspect. Sex, like race and national origin is an immutable characteristic determined solely by the accident of birth. Brennan bases his argument on the history of discrimination against women. Powell, J: don‘t need to decide level of scrutiny. This case doesn‘t pass rational relation test of Reed. Powell doesn‘t think the court should reach this issue—because the ERA would. Cts shouldn‘t legislate from the bench. (4) From Reed to Craig—Evolution and Doctrinal Confusion: Reed started a period of intense interest in gender classification and the Court began to utilize a variety of techniques to invalidate discriminatory law based on sex. (a) Due Process and Conclusive Presumptions: (b) Equal Protection: (c) Unsuccessful challenges to gender classification: c. Retreat to ―Intermediate Scrutiny‖: Ct. settled on an ―immediate‖ level of scrutiny for gender-based classifications, whether ―benign‖ or not. (1) Craig v. Boren (1976) Facts: invalidates OK statute which forbade the sale of 3.2% beer to males under 21 and Females under 18. The constitutional claim was that the statute denied Eq. Prot. to males 18-20. Holding: Brennan, J—Majority: First looks to Reed that statutory classifications that distinguish between males an females are subject to scrutiny under Eq. Prot—archaic and overbroad generalizations can‘t justify gender classification. Then sets out the rule: ―to withstand constitutional challenge previous cases establish that classifications by gender must serve important governmental objectives and must be substantially related to achieve those objectives.‖ { ―intermediate scrutiny‖} This is less deferential than rational basis test, but more deferential than strict scrutiny. -Use of Statistics: OK defended the statute on the grounds that it promoted traffic safety, since, statistically, 18-20 year old males were arrested for drunken driving much more frequently than females in the same age group (2% vs. .18%) Brennan didn‘t buy this statistically-based defense—it was insufficient: (1) if maleness is to serve as a proxy for drinking and driving you have to have a stronger correlation than 2%, (2) statute only restricted sale and not consumption. Brennan also points out the methodological problems of statistics in that social stereotypes distort the accuracy of comparative statistics—in this case young men who drink and drive are transformed into arrest statistics, but their female counterparts are chivalrously escorted home. ―Proving broad sociological propositions by statistics is a dubious business and one that inevitably is in tension with the normative philosophy that underlies Eq. Prot.‖. Brennan concludes that the relationship between gender and traffic safety becomes too tenuous to satisfy Reed‘s requirement that the gender-based difference be substantially related to achievement of the statutory objective—therefore denied the 18-20 yr old males Eq. Prot. 71 d. -Compromise between Brennan and Powell - Unlikely that Brennan changed his opinion of strict scrutiny for gender classifications developed in Frontiero, but also wanted a majority opinion. Powell probably agreed to sign on in exchange for Brennan adopting a more intermediate ―middle tier approach‖ -Concurrence: Powell, concurring: middle-tier approach –less than strict scrutiny but more than rational basis Test for middle-tier: the classification must bear a fair and substantial relation to the object of the legislation. Here Powell thinks the classification fails. Stevens, concurring: Ct. shouldn‘t rely on tiered system of review, because it does not describe a completely logical method of deciding cases. Rather the court should go through a careful explanation of its reasoning rather than relying on all-encompassing terms. The test should be whether the objective of the state is sufficient to make an otherwise offensive classification acceptable. -Dissent: Rehnquist: case should be judged by rational basis test. He thinks heightened scrutiny is inappropriate when men, rather than women, are being disadvantaged, because there is no history or pattern of past discrimination. He focuses on the group that is burdened not the kind of classification that is employed. He also doesn‘t agree with middle-level approach, doesn‘t come from language of Eq. Prot. Clause, no precedent. He feels that it will be difficult to determine what ―substantially‖ related means and that the term is so ―elastic as to invite subjective judicial preferences or prejudices relating to particular types of legislation‖. He doesn‘t agree with the majority‘s conclusion that the statute was invalid because the fit between maleness and drunk driving was unduly tenuous. Rater what counted was not the relative size of percentage of young males who drank, but if the percentage was higher than for females. Since males drink and drive at a higher rate than the age group as a whole there is a rational relationship—statute should be upheld. (2) Note: Heightened Scrutiny for Gender Classifications? (a) History: in Slaughter-House cases Miller, J. state that 14th Am designed to protect freedom of emancipated slaves—so how do you find support in the 14th Am for heightened scrutiny based on gender classifications. Especially when §2 introduced explicit gender discrimination—excludes women from voting ? (b) Arguments by analogy i. Gender should be treated like race because it is based on an immutable and highly visible trait and therefore lends itself to system of stereotyping. ii. Sexual stereotypes and the historical subjugation of women make gender like race. Brennan takes this view in Frontiero—statutory restrictions on women in the 19th Cent. make them comparable to blacks in pre-Civil war. iii. Ely suggests that women can hardly be considered an insular minority entitled to special protection, because they make up about half the votes. But there is a contrary theory, too--the idea that patriarchal system is so embedded in out culture that it has become naturalized and therefore unalterable, no matter if there is access to the process or not. Only way to get around this is to eradicate the symbolism of female dependency. Note too that Ely also thinks that because women couldn‘t vote until 1920, therefore laws classifying by sex which were passed before this should be invalidated. iv. ERA & Koppelman: mistake to focus too closely on fact of classification. Concern about ERA is that sex based classification is the thing to be concerned about. Going after classification is the symptom not the disease. ERA just looks at classification, and doesn’t pay enough attention to output or process. ERA doesn’t look at the material effects of the disadvantaged group, background stereotypes which create patterns of discrimination. v. Think about the fact that you need to prove intent for suspect classification, maybe this is too hard a burden on women, instead they should focus on the effects. The court in Mississippi University for Women v. Hogan: skeptical attitude toward gender classifications is designed to ensure that government action is determined by reasoned analysis, judicial inspection of means/ends connection rather that through the mechanical application of traditional often inaccurate assertions about proper roles of men and women. vi. Limits of race analogy: there is something different about why bathrooms were segregated by race and why they are segregated by sex. Hogan dealt with a suit brought by a man who wanted to attend an all-woman school of nursing. The court held that since co-ed institutions were far from his home, not being able to attend the women‘s school placed an undue burden on him that he wouldn‘t have to bear if he were a woman. By stating that the University allots more slots to women than men, he states that they are perpetuating the notion that nursing is a woman‘s job. Ct. was clear that it wasn‘t ruling against the general policy of ―separate but equal‖ education for men and women. Most Recent Case: (1) United States v. Virginia (1996) Facts: VMI was the only single-sex school among VA‘s 15 public universities. VA‘s principle defense of its single-sex policy was that 3 aspects of VMI‘s approach would have to be materially changed if the school were made co-ed—its extremely rigorous physical training, technique of depriving students of privacy, and its adversative (hazing) approach. The state sought to create a parallel 72 program for women at Mary Baldwin College, rather than make the school co-ed. Holding: Ginsberg, J—maj: VA‘s policy of excluding women from VMI was a violation of women‘s equal protection rights and that the program at Mary Baldwin College was not sufficiently comparable to the VMI program and therefore was not a sufficient remedy. -Standard: ―Parties who seek to defend gender-based government action must demonstrate an ‗exceedingly persuasive justification‘ for that action. Ginsberg relies on precedent of Miss. Univ. for Women. The burden of justification is demanding and rests entirely on the state. State must show that the classification serves an important governmental objective and that the discriminatory means employed are substantially related to the achievement of those objectives. -Koppelman suggests that this seems to approach strict scrutiny, in the very least it sounds like middle-tier approach. Ginsberg states that precedent does not make sex a proscribed classification. VA‘s justifications did not meet the exceedingly persuasive standard. Gender-based classification must not rely on overbroad generalizations—sex classifications may be used to compensate women for past economic disabilities or promote equal employment opportunity, but may not be used, as they once were, to create or perpetuate the legal, social and economic inferiority of women. -Ginsberg attacks VA‘s two justifications for VMI‘s exclusion of women: (1) VA claims that single sex education provides important educational benefits and contributes to diversity in educational approaches (2) the school‘s unique adversative approach would have to be modified if women were accepted. i. Categorical exclusions will not be accepted automatically, a tenable justification must be describe actual state purposes not rationalizations. Ct. found no persuasive evidence that diversity objective was furthered by VMI‘s single-sex policy which affords a unique educational benefit only to males. (there was no all-women public university, let alone one comparable to VMI‘s program) ―However liberally this plan serves the State‘s sons, it makes no provision for her daughters‖. That is not equal protection ii. State cannot deny to women who have the will and capacity, the training and attendant opportunities VMI affords. Generalizations about the ―way women are‖ no longer justify denying opportunities. The idea that women would destroy the adversative approach is not proved (look at how women are doing in the regular military) and isn‘t different form other self-fulfilling prophesies routinely used to deny rights or opportunities. -Mary Baldwin program would not constitute an adequate remedy for equal protection violation because it is not a comparable single-gender women‘s institution—rather it is a pale shadow of VMI in terms of curricular choices, faculty, funding, prestige, alumni support, etc. -Concurrance: Rehnquist: Doesn‘t like that Ginsberg has added exceedingly persuasive justification to the test—―while terms like ‗important government objective‘ and ‗substantially related‘ are hardly models of precision they have more content and specificity‖ that exceedingly persuasive. Although Koppelman‘s handout on pg. 8 says that Rehnquist thinks that if the state had attempted genuinely equal separate schools, that might have been unconstitutional—look at the Supplement pg. 95—he specifically states ―an adequate remedy in my opinion might be a demonstration by VA that its interest in educating men in a single sex environment is matched by its interest in educating women in a single sex institution…It would be a sufficient remedy, I think, if the two institutions offered the same quality of education and were of the same overall caliber.‖ -Dissent: Scalia: He objected to the majority‘s choice of standard as having changed the traditional intermediate level of review—in essence creating an ―amorphous‖ new test—a redefinition of intermediate scrutiny that makes it indistinguishable from strict scrutiny. Scalia believed that VMI satisfied the intermediate level of review, if it had been traditionally applied, because single-sex status substantially related to the government‘s educational objectives in achieving diversity. Scalia thinks that the rationale of the majority‘s decision is far reaching and makes single-sex public education ―functionally dead‖. In fact, he suggests that it might even effect private single-sex institutions because government support is so important—and he fears that now that the support will be deemed contrary to public policy. Scalia also mentions in a footnote that under the majority‘s theory any woman ready, willing and able to participate in a football program would constitutionally be entitled to.  The decision in VA seems to mean that sex-based classifications are less likely to survive judicial review.  Emmanuels: ―Exceedingly persuasive justification‖ is tougher than mid-level review, but it is still short of strict scrutiny. The court, under this new standard, apparently will insist that the objective being advanced be one that actually motivated the government when it devised the system—a requirement that the court traditionally applied in strict scrutiny (seems like the intent test). The court also seems to be exceptionally intolerant of anything that appears to be stereotypical thinking about the differences between the sexes. Even if there is some respectable scientific evidence that most women are different from most men in a particular way, this won‘t support a gender based classification—as long as some women don‘t fall within the generalization it is was a violation of equal protection. 73 Other Candidates for Heightened Scrutiny (Sexual Orientation) a. Watkins v. U.S. Army: 9th Cir. case Facts: Army promulgated new regulations which mandated the disqualification of all homosexuals from the Army without regard to the length or capacity of their military service. Watkins was discharged because of his homosexuality. Watkins argued that regulations constitute a invidious discrimination based on sexual orientation violating the equal protection of the 5th Am due process clause. Holding: Homosexuality is a suspect class. Factors that determine whether a group is entitled to constitutional protection are: i. Whether the group has suffered a history of purposeful discrimination ii. whether the discrimination embodies a gross unfairness that is sufficiently inconsistent with the ideals of equal protection to term it invidious. Ct has determined gross unfairness by considering (a) whether the disadvantaged class is defined by a trait that frequently bears no relation to ability to perform or contribute to society—Frontiero, (b) whether the class has been saddled with unique disabilities because of prejudice or inaccurate stereotypes. iii. Whether the trait defining the class is immutable CT. HOLDS THAT CLASSIFICATION BASED ON SEXUAL ORIENTATION SATISFY ALL OF THESE REQUIREMENTS -Court also makes a process argument—the social, economic and political pressures to conceal one‘s homosexuality commonly deter many gays from openly advocating pro-homosexual legislation, thus intensifying their inability to make effective use of the political process. -Army‘s justification is that the regulation is not merely a response to prejudice but are also grounded in legitimate moral norms. Also argues that it has a valid interest in maintaining morale and discipline by avoiding hostilities and tensions between known homosexuals and those other members who detest homosexuality.  Ct doesn‘t buy it—―equal protection does NOT permit notions of majoritarian morality to serve as compelling justification for laws that discriminate against suspect classes. - Army also argues that it would be incongruous to hold that these regulations deprive gays of equal protection, when Hardwick holds that there is not a constitutionally protected privacy right to engage in homosexual sodomy.  Ct disagrees b/c: (1) although Hardwick does hold that the due process clause provides no substantive privacy protection for acts of private homosexual sodomy, nothing in Hardwick suggests that a state may penalize gays for their sexual orientation (2) although Hardwick held that due process clause does NOT prevent states from criminalizing acts of homosexual sodomy, nothing in Hardwick actually holds that the state may make invidious distinctions when regulating sexual conduct. -Dissent: Although he agrees with the majority‘s opinion, he is bound as a judge to apply the Constitution as it has been interpreted by the Supreme Ct. Because Hardwick held that the government may outlaw homosexual sodomy, even though it fails to regulate private sexual conduct of heterosexuals—Ct was clear that it was saying only that homosexual sodomy is not constitutionally protected. Thus, after Hardwick, homosexuals can‘t be treated as a suspect class. 7. A. Equal Protection and Sexual Orientation 1. Strict scrutiny—defining the suspect class: depends on whether you base it on acts or propensity to engage in those acts a. Acts: How do you reconcile Bowers, that individual have no constitutional right to engage in homosexual sodomy, with the idea that laws discriminating against homosexuals should be strictly scrutinized? Richards states that the issue with all suspect classes is whether we should treat such a minority justly with respect as persons or unjustly with contempt as outcasts—traditional moral condemnation which appeal to highly personal, religious beliefs rather than ethics. b. Desires: Equality Foundation Center of Cincinnati v. Cincinnati: no law can successfully be drafted to penalize an unidentifiable group whose identity is defined by subjective and unapparent characteristics such as innate desires. But what about Washington v. Davis: laws prohibiting conduct might be enacted ―because of‖ rather than ―in spite of‖ their disproportionate impact on people who have those mental states. On this premise then, such laws could be evaluated according to strict scrutiny as they were enacted because of animosity toward the people with the particular mental state. 2. Strict scrutiny—indicia of suspectness: Sunstein states that homosexuals may be politically powerless in the relevant sense because they are often anonymous and diffuse and face large barriers to exerting adequate political influence—the open hostility toward gays makes it hard for both homosexuals and heterosexuals to speak out against this form of discrimination 3. Strict scrutiny and gender discrimination: The Hawaii Supreme Court interpreted its state constitution as subjecting laws against gay marriages to strict scrutiny on the ground that they embody gender classification (i.e.: women can marry men but men can‘t). A Missouri court came out the opposite way, holding that the statute prohibits men from doing what women do, engage in sexual activity with men, but likewise prohibits women from doing something that men do, engage in sexual activity with women—thus it applies equally to men and women and therefore no denial of equal protection. a. Consider Loving v. Virginia—Ct held that the facially neutral prohibition against blacks and whites alike from intermarrying supported a system of white supremacy and therefore should be invalidated. 74 4. Koppelman makes a similar argument that prohibition against homosexual conduct has to do with supporting male supremacy. ―The central outrage of male sodomy is that a man is reduced to the status of woman, which is understood to be degrading. Just as miscegenation was threatening because it called into question the distinctive and superior status of being white, homosexuality is threatening because it calls into question the distinctive and superior status of being male. As with miscegenation, a member of the superior caste who allows his body to be penetrated is thereby polluted and degraded and he assumes the status of the subordinate class—he becomes woman- like‖ The Court‘s role: (2 ways of looking at it) What is the proper role that the court should take in promoting social change? Should the Court, as Sunstein suggests, wait until there is more consensus within society before it takes an affirmative stance on same-sex relations, so that it doesn‘t lose legitimacy with the populace. Sunstein thinks the court should follow an incremental approach. BUT, the other side of the argument is that look to previous efforts of the Court in Roe and Brown—is it fair to sacrifice individual litigants who will lose cases that they might legitimately have otherwise won, simply because the court is waiting for a sufficient signal of approval from the political branches? b. B. Romer v. Evans (1996) 1. Facts: Colorado provision, Amendment 2, modified Col. constitution to provide that neither the state nor any of its subdivisions could prohibit discrimination on the basis of ―homosexual, lesbian, or bisexual orientation, conduct, practices or relationships.‖ Prohibits gays from having any claim to minority status, quota preferences, protected status or claim of discrimination. 2. Kennedy, J—Maj— a. The state‘s principle argument in defense of Amendment 2 is that it put gays in the same position as all other persons and does no more than deny homosexuals special rights. Kennedy found this interpretation implausible. ―The amendment withdraws form homosexuals, but no others, specific legal protection from the injuries caused by discrimination‖ b. Because the 14th Am did not give Congress the power to prohibit discrimination in public accommodations, most states have chosen to counter discrimination by enacting their own statutory schemes. Usually these set forth a catalogue of traits which cannot be the basis for discrimination i.e.: age, political affiliation, disability. Amendment 2 bars from gays from securing protection from arbitrary discrimination both the public, gov‘tal sphere and the private sphere. Homosexuals are forbidden the safeguards that others enjoy or may seek without constraint—protections which are taken for granted by most people because they already have them or don‘t need them c. Fails rational relation test: i. Amendment has the peculiar property of imposing a broad and differentiated disability on a single named group and therefore calls for careful consideration to determine whether this law is obnoxious to the constitutional provision. . It is both too broad and too narrow. It identifies a persons by a single trait and then denies them protection across the board. ii. the sheer breadth is so discontinuous with the reasons offered that the Amendment seems inexplicable by anything but animosity toward the class of persons affected. ―If the constitutional conception of equal protection of the laws means anything it must at the very least meant that a bare…desire to harm politically unpopular group cannot constitute a legitimate governmental interest.‖ iii. The primary rationale the state offers for Amendment 2 is respect for other citizens‘ freedom of association and in particular the liberties of landlords and employers who have personal or religion objections to homosexuality. Kennedy thinks this is a status based enactment. Am. 2 classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else. A state cannot deem a class of person a stranger to its laws. 3. Scalia—―vigorously dissents‖ a. Accuses majority of taking sides in the culture wars. Scalia thinks the majority based its decisions on its own principles of righteousness rather than judicial holdings. Finds that the ―principle underlying the court‘s opinion is that one who is accorded equal treatment, but cannot as readily as others obtain preferential treatment under the law, has been denied equal protection…‖ is ―ridiculous‖. b. Scalia finds maj. opinion to be inconsistent with Bowers: ―If it is constitutionally permissible for a State to make homosexual conduct criminal, surely it is constitutionally permissible for a State to enact other laws merely disfavoring homosexual conduct.‖ c. Scalia finds the Amendment was in fact reasonably related to a legitimate governmental interest: traditional American moral values. Scalia goes to great lengths to make this argument. ―Of course it is our moral heritage that one should not hate any human being or class of human beings. But I had thought that one could consider certain conduct reprehensible (i.e.: murder) and could exhibit animus to such conduct.‖ That is the issue here, he thinks—moral disapproval of homosexual conduct, the same sort of disapproval which gave rise to the criminality which was upheld in Bowers. He also makes an anti-process argument—finding that homosexuals posses political power much greater than their numbers (he relies on supposed trends that homosexuals have higher disposable in come, etc—Koppleman is 75 critical of this argument!). Furthermore, the Amendment was passed by referendum—what could be more democratic than the populace giving their support for the Amendment.  Koppelman’s notes in the hand-out are extensive. Here are some of the issues/interpretations/meaning of Romer: 1. Koppelman thinks that the court meant what it said: that the Amendment was invalid because of its impermissible purpose. The intent is unconstitutional, look at the results of the amendment and the extraordinary singling out of gays: Amendment 2 did not even invalidate all anti-discrimination laws on the basis of sexual orientation, but held that gays could not be protected by those laws. a. To define ―singling out‖ Koppelman turns to Black‘s article—not about a method of sociology, but it is about history and common knowledge of discrimination of the group. Thus, Romer is analogous to Brown in that way. Brown invited irrelevant debate about sociology much in the same way Kennedy‘s debate about legislative draftsmanship is irrelevant (i.e.: how narrow a class may be that is disadvantaged, how broad the disadvantaging could be). THE RELEVANT BACKGROUND IS THE PERVASIVE PREJUDICE AGANST GAYS IN AMERICAN SOCIETY. Gays are despised more for what they are then what they do. Juxtapose this with the Carter quote. b. Koppelman thinks the singling out of a group that is the target of widespread prejudice is a sufficient basis for the conclusion that the law is the product of an impermissible motive and therefore agrees that Romer was rightly decided. 2. How to reconcile Romer with Hardwick? a. Crucial distinction between due process and equal protection claims. Due process is backward looking, protecting traditionally valued liberties, while equal protection is forward looking and self-consciously directed against tradition in the name of equality. The distinction that is more relevant to process-based equal protection analysis is that between result and motive. The due process clause protects citizens from being injured in important ways and is indifferent to the state‘s motives, whereas in equal protection analysis motive is central. b. Hardwick turned on the importance of the asserted liberty—to engage in homosexual sodomy. This was rejected by the court because it was not central to the concept of liberty nor deeply rooted in history or tradition. Hardwick‘s interest was deemed constitutionally trivial so that the state didn‘t need much justification. When an invidious motive is suspected, on the other hand, it doesn‘t mater whether the discrimination is trivial—the state has a serious burden of proving the relevance of laws that discriminate against the group. c. Koppelman doesn‘t think that there is too much doctrinal inconsistency between the two decisions. A sodomy law that facially discriminates against gays is valid under Hardwick (i.e.: a sexual privacy challenge is not a fundamental right for the purpose of due process) can still be invalidated on equal protection grounds. 3. Laws that facially disadvantage gays will always reflect both impermissible prejudice and permissible moral judgments. Koppelman thinks CO supreme ct. decision is silly because every constit. denies giving people what they want in certain situations (i.e.: murderers denied what they want). Thus, once it has stipulated that homosexual acts are harmful in some way that state can permissible cognize, then discrimination against gays is indisputably rational. Thus, Scalia doesn‘t think that process is irrational—there are disadvantaged groups—if its rational to criminalize the conduct than its is rational to prohibit the conduct. Koppelman agrees that there is a rational purpose as espoused in Hardwick—rational for state to make these presumptions, in that way he agrees with Scalia—but, there is something more here than just a rational relations test. Koppelman agrees with the more heightened scrutiny the Ct employed, in this way Romer is the Reed of sexual orientation. Koppelman thinks that it is more about classifying gays as inferior and less than fully human then minimal scrutiny is inappropriate because those stereotypes and animosity are not being addressed, that is the greatest violation of 14th Am. 4. Sexual Orientation and Same Sex Marriage: a. McConnell and Federalism: prudent approach to social change would be to use states as ―laboratories of democracy‖ to test the results before imposing a national decision Koppelman thinks that this presupposes that no fundamental liberty or equality right is being violated by any region‘s laws. If such rights are being violated a federalist solution is intolerable. (think about the ramifications of McConnell‘s argument with respect to slavery). b. Posner and Separation of powers: It is a mistake to think that legal reasoning alone can underwrite so profound a change is public policy as same sex marriage. If there is a new right such as same-sex marriage Constitutional text and precedent are not going to dictate the judges‘ conclusion. Constitutional law can’t solve the problem of governance, there are institutional limits on the judiciary and they have to recognize public acceptability of a decision. Not enough support today for same-sex marriage so if the Ct. did recognize it as a right it would be taking on the whole country. 76