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Chapter 1 The Federal Judicial Power Our Constitution What is a Constitution? Define the scope of Gov. power and define individual rights What is Con Law? Interpretation of the constitution by bodies that can make those decisions The constitution is extremely hard to amend Wrote in 1787 Ratified in 1788 First president under it in 1788 Unalienable rights Rights of persons that cannot be taken away Pre 1787 Position (Articles of Confederation--- very little federal power) Unalienable Rights Post-independence (state sovereignty) Inherited and Inherent National Powers Constitution of 1788 (Modified the Articles of Confederation) James Madison was the #1 guy Amendments and Precedent Federal Power Legislative power (Article I) Executive power (Article II) Judicial Power (Article III) Structure and Theory limits on federal power Federalism limits on State Power Preemption (where federal gov. has the power; its laws are Supreme) Dormant Commerce Clause Individual rights against the Gov. State Action Economic Liberties- contracts, taking clause, substantive due process clause Equal protection Fundamental rights 1st amendment rights Criminal defendants rights First act after the Constitution was the Bill of Rights Judicial Review Concept The ability of the Supreme Court to Review decisions of lower courts Determine if the statutes made by the legislature are constitutional Review executive acts 2 main purposes Political Theory of Constitution and Court‟s decisions

Broadly outline the role of the SCT in the Constitutional Scheme Who interpreters the constitution Judicial Executive and Legislative branches Marbury v. Madison Implied authority from Article IV § 2 of the Constitution To review acts of Congress and can declare them void Limits on Federal Judicial Review Interpretive No agreement on the method Modes of Constitutional Interpretation Text Precedent (judicial and other practices that have occurred/ Tradition) History (leading up to the formation of the Constitution/Framers intent) Structure and Theory (when the text is not explicit how it works) Prudentialism (Social Policy Arguments) Originalism (text, history) Focuses on things that at the time of adoption (2 types) Specific intent (ex. The word He = men only) Abstract (general) intent (army and navy = all armed forces) Normative (should or Good)(establishes the Norm) Formalist (based on authority or political legitimacy) Non-Originalism (S&T, Prudentialism, Precedent) Focuses more on S&T, Prudentialism, Precedent Formalist historical evidence is framers intended interpretation “living document” United States v. Emerson Individualized liberty theory The 2nd amendment secures the fundamental right of individuals to privately possess and bear firearms This has been interpreted in 3 fashions The state has the right to arm a militia but individuals have no right to private ownership Individual members of an organized, functioning militia have the right to bear arms Individuals have the right to private ownership Court held that the FRAMERS INTENT in the 2nd amendment was for individuals to own arms and not collective rights Silveira v. Lockyer Collective liberty theory Second amendment does not secure individual rights Second amendment is unique due to its Syntactic structure Court held framers intent was that militias could bear arms Congressional

1 Supreme Court Can ordain and establish inferior courts (including their subject matter jurisdiction) Life tenure for judges Extends to all cases that rises out of the constitution Supreme Court shall have appellate jurisdiction as to both law and fact Congress can create exceptions Ex Parte McCardle Constitution gives the express power to congress to make exceptions to appellate jurisdiction This is a clear example of judicial restraint Ex Parte Yerger Reversed McCardel Separation of Powers as a Limit on Congress‟s Authority United States v. Klein Congress was trying to nullify a rule of decision Congress said can‟t be prosecuted but it doesn‟t mean they didn‟t help and that they can buy land Constitution state that the President has to power to pardon Congress cannot pass a law stating that a pardon is not effective This is a Structure and Theory conflict Justiciability Judicially created Types of “cases and controversies” that can be heard 5 doctrines Prohibition against advisory opinions There is a need for an actual dispute between adverse litigants Effective relief Must be a substantial likely hood that that a federal court decision in favor of a claimant will bring about some change Opinion of the justices Conflict between England and France and Jefferson wanted to know the courts interpretation of the US opinion of neutrality The justices declined to provide an opinion, because there was no case and controversy and they said that the 3 branches of the government had separation of powers (Used article III limitations and separation of powers) Hayburn’s Case Making recommendations regarding pensions was “not of judicial nature” Plaut v. Spendthrift Farm Congress order the court to reopen cases Court held that congress may not retroactively command the court to reopen final judgments without violating separation of powers Declaratory judgments are justiciable so long as they meet the requirements for judicial review Nashville v. Wallace

Sought a declaratory judgment that a tax was unconstitutional Court focused on the substance and found that the case was a real controversy “Substance” not “form” is was counts Standing Definition- the determination whether a specific person is the proper party to bring a mater to the court for adjudication 3 Requirements 1st Plaintiff must allege that he or she suffered or imminently will suffer an injury 2nd the plaintiff must allege that the injury is fairly traceable to the defendant‟s conduct 3rd the plaintiff must allege that a favorable federal court decision is likely to redress the injury 3 conditional requirements Injury Core requirement of Article III Causation Redress Allen v. Wright Here the IRS was not applying its statute where the private school must be non-discriminatory in order to get its tax exempt status Plaintiffs were the parents of the students in public schools in 7 different states Here since there was no personal injury there was no standing “INJURY MUST BE FAIRLY TRACEABLE TO THE CHALLANGED ACTION AND RELIEF FROM THE INJURY MUST BE LIKELY TO FOLLOW FROM A FAVORABLE DECISION” The injury here was to speculative City of LA v. Lyons Lyons sued the city for an injunction on the police using a choke hold He did this because he wanted the city to stop because it was dangerous CT said he needed to prove that the police always put people in chokeholds or that the department authorized the hold He did not have personal injury because there is no certainty that he will be choked in the future He could have sued for the choke hold but not an injunction Lujan v. Defenders of Wildfire The directly injured party is the injured species and citizens, don‟t have standing They are not injured if they just plan on visiting they need to have concrete plans Future environmental cased there needs to be very specific language Need to be “directly” affected from there “Special Interest” United States v. Hayes Here the voting districts were broken un racially

Since the appellees did not live in the district they did not have standing If they lived in the racially gerrymandered district they would have had standing Federal Election Commission v. Akins Statute allowed for the suit from anyone “aggrieved” by the FEC Since congress created the right then there is standing Linda v. Richard Mother waned the father jailed for not paying the child support The court denied standing Having him jailed would only ensure that he did not pay child support it would result in only jailing the father This would not “remedy the injury” Duke Power Co. v. Carolina Env. Study Group There was standing because the building of the power plant subjected the people who lived near by to injury Generally there is no 3rd party standing Must assert your own legal rights Exceptions Singleton v. Wulff Medicaid should be available for abortions Legislation passed a bill saying only abortions that are medically needed will be paid Here the doctors are suing that Medicaid should pay the bills Here the doctors can bring suit because of the doctor patient relationship and that the plaintiff would have difficult to bring suit Elk Grove Pledge case Have to have 1st person part of standing The problem here is the fact that the mother not the father has legal custody of the child Structure and theory of the constitution keep separation of power federalism Other theory is that states have all the power except where the constitution gives the power to the federal government New federalismMost liberal justice of the court Part of the prudential standing doctrine includes giving certain powers to the states Prohibition against generalized grievances In order to challenge the law the person must have a general stake in the outcome and; 2 prong test Challenging an enactment under the taxing and spending clause

Claiming that the challenged enactment exceeds specific constitutional limitations imposed on the taxing and spending power Must show injury Why have this prohibition? Might be a case where congress might assert a generalized grievance 3rd party standing doctrine is prudential Prevents individuals from suing if their only injury is as a citizen or taxpayer concerned with having the government follow the law Prudential principal Cant sue just to have the gov follow the law must have a specific violation of a constitutional right Flast v. Cohen exception (1968) 2 prong test above The Establishment Clause $ to religious schools is being challenged United States v. Richardson 2 prong test Must be on the taxing and spending power Exceeds specific constitutional limits Limits the exception from Flast Valley Forge Christian College v. Americans United It was outside the taxing and spending case Limits it even more Must be a law of congress and not an administrative agency Daimler Chrysler v. Cuno Limits Flask to its very facts Need a congressional act with taxing and spending power Limits to Establishment clause Ripeness Determines when a litigation may occur Seeks to separate the matters that are to speculative and may never occur, from those cases that are appropriate for federal court Plaintiff must show that review is not premature Harm has occurred or; Imminently will occur Best understood when thought of DETERMINATION OF WHETHER A FEDERAL COURT CAN GRANT PREENFORECEMENT REVIEW Can the court hear a declaratory injunction Rational Prevent from entangling themselves in abstract disagreements over administrative polices,

And also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging party Poe v. Ullman Conn. Prohibited the use of contraception The Poe‟s have had 3 unhealthy babies that have died shortly after birth Therefore they want BC for heath reasons and cannot purchase it Since Conn. has not enforced the statue it deprives the immediacy needed Abbott Labs. v. Gardner Developed the 2 fold test Evaluate both the fitness of the issues for judicial decision and The hardship to the parties of withholding court consideration Here the harm was imminent because it dealt with every advertising the company did United Public Works v. Mitchell Hypothetical threats are not enough International Longshoremen’s .. v. Boyd Wanted to ensure their return to the UA after traveling to Alaska Court said determining future political stances is to abstract Regional Rail Cases Ripe when it is inevitable that it will happen Mootness When there is no longer a live controversy 3 exceptions Wrongs capable of repetition but evading review Injuries that are of short duration they are always over before proceedings are completed Injury must be likely to occur again in the future And possible to happen to the same Plaintiff again Voluntary cessation Class action suits Moore v. Ogilvie Here there was suit on how a ballot for elections were entered Even though the one election is over this problem could still occur in future elections Roe v. Wade She filed suit for a declaratory injunction on the law prohibiting abortions in Texas She was in her first trimester when she filed the suit Since pregnancy often occurs to a woman more than once in her life this case is not moot DeFunis v. Odegaard Filed a suit when he was denied admission to law school He was admitted to an other law school and at the time the suit reached the supreme court he was already a 3rd year law student Since he will not have to reenter law school this case cannot reoccur

Friends of the Earth v. Laidlaw Environmental Services Here Laidlaw voluntarily stopped But this does not end the suit (RATIONAL) Don‟t want the court not to have power on people to return to their old habits Must show If unchecked by litigation the defendant‟s allegedly wrongful behavior will likely occur to continue AND The “threatened injury is certainly impending” United States Parole Commn. v. Geraghty The controversy over the guidelines is still live between some of the petitioners even if the main person bringing the suit is now moot Political Question Doctrine Some constitutional provisions are left to the political branches of the government to interpret and enforce Cases that pose a political question cannot be decided by the court Political Question Examples War Powers Foreign Relations Status of Indian Tribes Validity of Enactments (Constitutional Amendments) Republican Form of Government – One that does not have a monarch, and has a representative democracy. The Guarantee Clause Baker v. Carr 6 factors to determine if it is a political question Textual demonstrable constitutional commitment of the issue to a coordinate political department Lack of justicibility discoverable and manageable standards for resolving it Impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion Impossibility of a court‟s undertaking independent resolution without expressing lack of the respect due coordinate branches of government Unusual need for unquestioning adherence to a political decision already made The potentiality for embarrassment from multifarious pronouncements by various departments in question Nixon v. U.S. – (page 95) Nixon was a Congressman convicted of bribery, who continued to get a paycheck, and was impeached by the House – the Constitution states “the Senate has the sole power to try all impeachment proceedings. . .” the Court found the impeachment and removals are non-justiciable, and that the case is that of a political question the Senate can chose to have a subcommittee try the case if it so

choose ROL - if the Senate were to act in a manner seriously threatening the integrity of its results, then judicial interference may be appropriate Powell v. McCormick – (page 90) the House determines that Powell should be denied membership, because of his deceptive travel expenses, and payroll practices the Court finds this case to be justiciable, and not a political question because of the importance in allowing people to select their legislators Congress possess to the power to expel someone, but not exclude ROL- The judiciary can adjudicate a political question when the legislative branch has overstepped its bounds in regard to a textual commitment. Goldwater v. Carter Foreign policy is a political question The Court has found the following foreign policy areas to be political questions: 1. the determination of when war begins and ends is left to the political branches of government; 2. the recognition of foreign governments is a political question; 3. many issues concerning the ratification and interpretation of treaties pose a political question; and 4. the challenges to the President‟s use of war powers are political questions Chapter 2 The Federal Legislative Power Congress and the States Congress may only act if there is express or implied authority in the Constitution, whereas states may act unless the Constitution prohibits the act TWO QUESTIONS: 1. Does Congress have the authority under the Constitution to legislate? a. This requires defining the scope of the powers granted to Congress, particularly in Article I, Section 8 of the Constitution. 2. If so, does the law violate another constitutional provision or doctrine, such as by infringing separation of powers or interfering with individual liberties? – The Necessary & Proper Clause – McCulloch v. Maryland – (page 101) Congress has the power to make a Bank where the ends are legitimate MD does have the right to tax, but Congress can limit the power to tax the Bank because, according to the Court, “the power to tax is the power to destroy” by taxing the Bank, MD interferes with Congress‟ power to create, and greatly impedes its operation and potentially could even tax it out of existence ROL – the states have no power by taxation or otherwise, to retard, impede, burden, or in any manner control the operations of the constitutional laws enacted by Congress to carry into execution the powers vested in the general government (supremacy clause) Several crucial aspects of Constitutional Law are established by McCulloch: 1. By rejecting “compact federalism,” McCulloch declares that the federal government is

supreme over the states and that the states have no authority to negate federal actions; 2. the Court expansively defines the scope of Congress‟ powers; and 3. the Court limits the ability of states to interfere with federal activities, such as imposing taxes or regulations on the federal government - The Commerce Clause – Article 1 § 8 clause 3 “The Congress shall have power to regulate Commerce with foreign nations, and among the several states, and with the Indian Tribes” Congress does not have the power to regulate totally intrastate commerce Gibbons v. Ogden –(Broad interpretation) (page 113) the Court defines commerce as “traffic and intercourse,” “navigation,” and “buying and selling” and reasons because these ferry‟s transport people, that is most certainly commerce What is commerce? The court defines commerce as “every species of commercial intercourse...which concerns more states than one” commerce comprehends navigation what does among the several states mean? Court determines it concerns more states than one water was the primary mode of transportation, and without it, there would have been no significant commerce ROL – “Congress has the power to regulate, that is, to prescribe the rule by which commerce is to be governed. 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 what is prescribed in the Constitution What is Commerce? United States v. E.C. Knight (the case is limited) Here congress tried to regulate a sugar refinery because it ended up refining 98% of the sugar but they were not allowed to ROL – commerce is NOT manufacturing (ex: mining, agriculture, etc) Carter v. Carter Coal Co. (limited again) Purely local activities, such as the negotiation of wages and working conditions are outside of the Congress‟s authority under the Commerce Clause What is “Among the States” There was no consistent approach in defining this from 1890-1937 Shreveport Rate Cases Congress has authority to regulate intrastate commerce where it has the potential to affect interstate commerce absent fed. reg. The court upheld the ability of the Interstate Commerce Commission to set intrastate railroad rates because of their direct impact on interstate commerce. “Congress in the exercise of its paramount power may prevent the common instrumentalities of interstate and intrastate commercial intercourse from being used in their intrastate operations to the injury of interstate commerce. ROL- Congress can regulate IntrAstate commerce where it effects IntErstate commerce A.L.A. Schechter Poultry Corp. v. United States the Court declared the Code unconstitutional because there was not a sufficiently direct relationship with interstate commerce, because the Code concerned the operation of

business within NY ROL – where the effect of intrastate transaction upon interstate commerce is merely indirect, such transactions remain within the domain of the state powers The court emphasized that Congress only can regulate with there is a DIRECT effect on interstate commerce Does the 10th amendment Limit Congressional Powers? 2 approaches Not a limit but just tells congress that they cannot go to far Protects state sovereignty from federal intrusion Hammer v. Dagenhart Congress power does not extend to areas that have been traditionally left up to the states police powers Champion v. Ames Congress may (pursuant to the Commerce Clause) prohibit the interstate shipment of items adjudged to be evil or pestilent in order to protect the commerce concerning all states (lottery tickets). Court upheld federal law regulating lottery tickets. Broadening the Federal Commerce Power(1937-1990’s) “The switch in time that Saves Nine” NLRB v. Jones & Luaghlin (substantial effect test) Congressional power to regulate interstate commerce extends to the regulation of intrastate activities that may have “an effect” on interstate commerce. (local steelworker strike which would effect national economy) “affecting commerce” means – in commerce, or burdening or obstructing commerce or the free flow of commerce, or having led or tending to lead to a labor dispute burdening or obstructing commerce or the free flow of commerce. Affectation Doctrine – Congress may regulate any activity, which has a substantial economic effect in the stream of interstate commerce Rational the fundamental principle is that the power to regulate commerce is the power to enact all legislation for its protection and advancement, and adopt measures to promote its growth and insure its safety United States v. Darby Congress has the authority, under the Commerce Clause, to exclude any article from interstate commerce, in judgment that they are injurious to the public health, morals, or welfare. (lumber manufacturer who placed goods in interstate commerce violated Fair Labor Act) Also held that 10th is a “truism” and does not prohibit any constitutionally valid congressional action. This case overrules Hammer v. Dagenhart Wickard v. Filburn Congress‟s commerce authority extends to all activities having a substantial effect on interstates commerce, including those that do not have such a substantial effect individually, but do when judged by their national aggregate effects. (growing wheat for personal use) ROL – Cumulative Impact Doctrine – an entirely intrastate activity can have a

substantial, cumulative effect on interstate commerce, allowing such an activity to be regulated by Congress Civil Rights Cases the Meaning of “Commerce among the States”
The 1964 Civil Rights Act based part of its authority on the commerce clause, banning discrimination in establishments which serve interstate travelers, or which buy or sell food a substantial portion of which has “moved in interstate commerce.”

Heart of Atlanta Motel v. United States
Congress has the power, under the commerce clause to regulate local activities that could reasonably be seen as exerting a substantial and harmful effect upon interstate commerce. (here it would impede interstate travel of black Americans.) Congress is allowed to prohibit discrimination having a substantial effect on interstate commerce.

Katzenbach v. McClung the Court reasoned that because 46% of the meat it purchased annually came out of state, and that discrimination by restaurants cumulatively had an impact on interstate commerce through loss profits, travel obstructions, and general business suffering
Congress‟s commerce authority extends to any public commercial establishment selling goods that have moved in interstate commerce and/or serving interstate travelers.(here SCT upheld the application of CRA to a restaurant.)

ROL – Congress enacted the legislation of the Civil Rights Act under the Commerce Clause power, prohibiting private employment discrimination, and forbid racial discrimination by places of public accommodation such as hotels, and restaurants § 5, of the 14th Amendment would not allow Congress the authority to regulate such, because under this section, Congress would only be able to regulate government conduct and could not regulate private behavior Congress thus chose the Commerce Clause as the authority for this landmark legislation Regulatory Laws Hodel v. Indiana
ROL- Court held that Commerce Clause legislation could be invalidated only where there is no rational basis for a congressional finding that the regulated activity affects interstate commerce, OR that there is no reasonable connection between the regulatory means selected and the asserted ends.

Criminal Laws Perez v. United States
This case illustrates the Court‟s willingness to uphold federal criminal laws adopted under the commerce power: SCT held that it was rational for Congress to believe that even intrastate loan sharking activities had a sufficient effect on interstate commerce; specific or particularized findings not required to uphold law as constitutional th The 10 amendment between 1937 and 1990 Very weak limitation of the federal government today Congress cannot commandeer the states legislative process by directly compelling them to enact and enforce federal regulatory policy

National League of Cities v. Usery
The commerce clause does not empower congress to regulate states or local governments in their integral governmental functions Congress violates the 10th when it interferes with traditional local and state government functions

Wage laws are State Rights

Garcia v. San Antonio Metro Transit Authority
Now the rule is whether the regulation as applied to the state activity is destructive of the state sovereignty or violates of any constitutional provision

Overrules Usery, and states they continue to recognize State‟s special power but because the traditional function is too vague, the Court will not deny Congress that that power This is not impairing state sovereignty because that is protected by the political process because congress is made up by people of the states What is Congress‟s Authority to Regulate “Commerce Among the States” United States v. Lopez Gun free school zone law Three Broad Categories of Activity That Congress May Regulate Under its Commerce Power Regulate the use of the channels of interstate commerce. Protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities.
Those activities having a substantial relation to interstate commerce, i.e., those activities that substantially affect interstate commerce This Act reaches to far into the string of causation; therefore, this is unconstitutional.

ROL – the proper test requires an analysis of whether the regulated activity “substantially affects” interstate commerce Narrowing of Commerce Power and Revival of 10th Amend. as Restraint (1990‟s - ???) United States v. Morrison This was a rape case that was tried in federal court
Congress may not, pursuant to the commerce clause regulate a local activity solely on the basis that it has substantial effects on interstate commerce when viewed in its nationwide aggregate.

ROL – Congress cannot regulate non-economic activity based on the cumulative substantial effect on interstate commerce Solid Waste Agency of North Cook County v. US Army Corps of Eng. Dealt with the clean water act Cant apply the federal act with the interstate commerce being migratory birds ROL – narrowly interpreting laws to avoid “constitutional doubts” Pierce County, Washington v. Guillen whether 23 USC 409, which protects information “compiled or collected” in connection with certain federal highway safety programs from being discovered or admitted in certain federal or state trials the Court found that it was, and because the legislation is aimed at improving safety in the channels of commerce, and increasing the protection for the instrumentalities of interstate commerce, and therefore, it falls within Congress‟ Commerce Clause power Does the 10th Amendment Limit Congress‟s Authority? New York v. United States Congress may not compel the states to enact or administer a federal regulatory program = anti-commandeering Congress can strongly encourage States to pass legislation but may not demand it Printz v. United States Whether the Brady Handgun Violence Prevention Act violated the 10th Amend. in requiring local law enforcement officers conduct background checks on prospective

handgun purchasers. Congress does not have authority to compel states to enact, enforce, or administer fed. reg. programs and cannot circumvent this prohibition by conscripting state officials directly. Scalia also noted that the law violates SOP the Court also finds that the 10th Amendment recognizes dual/state sovereignty, and if the power is with Congress, it is not with the states, and vice versa ROL- Congress has a limit on their commerce clause – enacting legislation is NOT commerce Reno v. Condon Driver‟s Privacy Protection Act of 1994 (DPPA) regulates the disclosure of personal information contained in the records of DMV‟s the Court found that by enacting the statute, Congress did not violate the Constitution, because by selling such information to private companies, the state is clearly engaging in interstate commerce, and therefore, Congress has the power to regulate ROL – Congress can control the commercial transactions of government agencies Taxing and Spending Power Article I, § 8 – “Congress shall have power to lay and collect taxes, duties, imposts, excises, to pay the debts and provide for the common defense and general welfare of the U.S., BUT all the duties, imposts, and excises, shall be uniform throughout the U.S.” Need to ask For what purposes may congress tax and spend? Can tax and spend for only the enumerated powers? Or does Congress have the broad authority to tax and spend for the general welfare? United State v. Butler
Congress sought to stabilize production in agriculture by offering subsides to farmers to limit their crops. By restricting the supply of agricultural products, Congress sought to ensure a fair price and thus to encourage agricultural production Held unconstitutional because it regulated production and, the regulation of production is left to the states

Steward Machine v. Davis
Congress has the power to encourage states to comply with legit. Fed. reg. programs by the use of monetary incentives under the spending power, if it is done for the “general welfare.”

Sabri v. United States the Court finds that bribing city councilmen with money, that may or may not relate to federal funds, is a distinction without a difference
There must be a relationship between a bribe or kickback and some federal money.

ROL – corruption does not have to be that limited to affect the federal interest Conditions on Grants to State Governments the Court has held that Congress can place strings on such grants, so long as the conditions are expressly stated and so long as they have some relationship to the purpose of the spending program Congress does have the power to fix the terms upon which its money allotments to states shall be disbursed South Dakota v. Dole S.D. allowed kids at the age of 19 buy alcohol, which allowed the Secretary of Transportation withhold a percentage of federal highway funds to States who do so – S.D. argues it violates the constitutional limits of congressional power

the Court finds that it does NOT violate the Constitution, because the provision is designed to serve and protect the general welfare of the U.S., and the condition imposed by Congress is DIRECTLY related to one of the main purpose for which highway funds are expended – safe interstate travel 3 limits to the spending power In pursuit of “the general welfare” Must be so unambiguous enabling the states to exercise their choice knowingly Must be related to the federal interest in particular national projects and programs Congress Powers Under the Post-Civil War Amendments 13th Amend – prohibits slavery and involuntary servitude except as a punishment for a crime; Congress shall have power to enforce this article by appropriate legislation 14th Amendment – provides that all persons born or naturalized in the U.S. are citizens and that no state can abridge the privileges or immunities of such citizens; nor may states deprive any person of life, liberty, or property without due process of law or deny any persons protection of the laws; §5 also states that “Congress shall have the power to enforce this article, through appropriate legislation” 15th Amendment – declares the “rights of the citizens of the U.S. to vote shall not be denied or abridged by the U.S. or by any State on the account on race, color or previous condition of servitude” and §2 again provides that Congress has the power to enforce through appropriate legislation Whom May Congress Regulate Under Post-Civil War Amendments? Civil Rights Cases Held Civil Rights Act of 1875 as unconstitutional. Court also stated that the 13th Amend. applies to private conduct (prohibits people from being or owning slaves). Congress could not use its power under the 13th Amend. to “adjust what may be called the social rights of men and races in the community.” 13th Amend. does not apply to discrimination. Crt. said 14h Amend applies to gov.‟t action and can‟t be used by Congress to regulate private behavior; is prohibitory upon the states. This is not the current view of the court. United States v. Morrison Court finds that under §5, Congress can only regulate state acts and NOT individual acts, and therefore, in this case it does not apply because rape is not a state act What is the scope of Congress‟s Power? 2 approaches Narrow- to prevent or provide remedies for violations of rights recognized by the supreme court Under this view congress cannot expand the scope of rights or even to create new rights Alternative accords Congress authority to interpret the 14th amendment to expand the scope of the rights or even to create new rights Katzenbach v. Morgan there was a NY statute requiring passage of a literacy test in order to be able to vote, and there is also a federal statute declaring that statute invalid Court finds that by eliminating the literacy test through the federal statute, Congress is

enforcing voting rights and enforcing equal protection, and therefore declares the literacy requirement in NY invalid By including §5 into the 14th Amendment, the draftsmen sought to grant Congress broad powers ROL – displays the first view above (broad view) City of Boerne v. Flores The court rejects the view expressed in Katzenbach – federalist perspective in this case: Congress may not use its section 5 powers to expand the scope of rights or to create new rights. Majority opinion declared the Religious Act unconstitutional on the grounds that it impermissibly expanded the scope of rights and that it was no proportionate or congruent as a preventative or remedial measure. neutral laws of general applicability DO NOT violate the Free Exercise Clause neutral laws of general applicability prohibit everyone from the same thing, not simply a specific group Congress’s Power to Authorize Suits against State Governments 3 levels of scrutiny 3 test the courts use when looking at Equal protection, subsequent due process, fundamental rights, and 1st amendment based claims Strict scrutinymust be necessary in compelling governmental interest Almost never met (EX. National security, protecting children, religion) Intermediate Scrutiny- (gender) (never really used) Rational Basis- (age) almost always meet 11th Amendment – states “the judicial power of the U.S. shall not be construed to extend to any suit in law or equity, commenced or prosecuted against the U.S. by citizens of another state, or by citizens or subjects of any foreign state” implemented after Chisholm (which allowed a man from S.C. to bring suit to recover money from the state of GA) Hans – since, states immune to suit by their own citizens AND suits with citizens of other states 3 Ways around the 11th Amendment A state officer could be sued in federal court, even when state governments cannot be sued, because the 11th Amendment does not bar injunctive relief from state officers, even when the remedy will enjoin the implementation of an official state policy; States may waive their 11th Amendment immunity and may consent to being sued in federal court (such a waiver must be explicit); and The Supreme Court has held that Congress, acting pursuant to §5 of the 14th Amendment may authorize suits against state governments Two interpretations of 11th Part of broad Const. limitations on fed. crt. Jurisdiction Restricts only diversity jurisdiction Congress‟s Power to Authorize Suits against the State Governments

The Basic Rule: Congress May Authorize Suits against States Pursuant ONLY to §5 of the 14th Amendment – suits by other states are allowed (ex: FL v. GA) Federal Government can sue the States (ex: when States violate a federal statute) Fitzpatrick v. Bitzer The court ruled that Congress could authorize suits against state government if it acts pursuant to section 5 of the 14th Amendment The court held that state governments may be sued for violating CRA which prevents employment discrimination based on race, gender, and religion Pennsylvania v. Union Gas Here the Court ruled that state governments could be sued pursuant to a federal environmental law because Congress was clear in acting under the commerce clause in authorizing suits against state govs. Seminole Tribe of Florida v. Florida Congress passes the Indian Gaming Regulatory Act (IGRA), which provided that the states had to use good faith in their negotiations with Tribes – Seminole Tribe brings suit FL claims immunity and the Court agrees – the Court recognizes sovereign immunity and recognizes that sovereign immunity has ALWAYS been there Cases Denying Congress’ Authority to Act Under §5 to Authorize Suits Against State Governments Florida Prepaid v. College Savings Bank and the United States defendant patented a system for students to use to save money to later pay for their college education, and the Florida Government copied that patent – Congress had amended the patent laws to allow suits against the state governments for patent infringements Although patents unquestionably are property and the 14th Am protects property from being denied by state governments without due process, the Court found that the authorization of suits was impermissible because it was not “proportionate” or “congruent” to remedy constitutional violations Kimel v. Florida Board of Regents former employees, and 2 other similar cases, claimed that FSU (including Kimel) failed to provide promised pay adjustments discriminating against older workers and violating the Age Discrimination in Employment Act (ADEA) ROL- Rational basis test – the Court said that the states may discriminate based on age without offending the 14th amendment if the age classification is rationally related to a legitimate state interest University of Alabama v. Garrett whether state governments can be sued for violating Title I of the Americans Disabilities Act, which prohibits employment discrimination against the disabled and requires reasonable accommodations for disabilities by employers The Court concluded that Title I of the ADA is not “proportionate” or “congruent” to preventing and remedying constitutional violations Legislative history fails to identify a pattern of irrational state discrimination in employment against the disabled Congress’s Greater Authority to Legislate Concerning Types of Discrimination and Rights that Receive Heighten Scrutiny.

Nevada Dept. of Human Resources v. Hibbs the Court upholds the FMLA, and finds employees may recover monetary damages for the state‟s failure to comply with the Act intermediary scrutiny is used to examine gender (more specifically men) Congress supported their argument with sufficient evidence of a pattern to show discrimination in the work force, and satisfied the need for a substantial governmental interest in correcting such Tennessee v. Lane ??? Does Title II of the ADA “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, etc. of a public entity, or be subjected to discrimination by any such entity.” – exceeds Congress‟s power under section 5 of 14th Am. Congress’s Power to Authorize Suits against State Gov.’ts in State Courts Alden v. Maine the Court held that state governments cannot be sued in state court without their consent 11th only applies in federal court; it does not prevent a state from being sued in its own courts or in another state‟s courts. Chapter 3 The Federal Executive Power Questions to Ask? What inherent powers does Pres have? Can Congress expand executive power beyond those in constitution? What problems to administrative agencies pose? Allocation decision make and foreign policy. Inherent Presidential Powers No mention of separation of powers in const. but is implied from structure and theory of checks and balances and legislative intent. Youngstown Sheet & Tube Co. v. Sawyer Taking Possession of Steel Mills under the national defense pretense Congress did not actively (were silent) give president power to seize, therefore they affirmatively told president not to do it. the Court found the seizure of the steel mills unconstitutional, and throughout the opinion, 4 different approaches can be identified: (all of which are reflected in numerous cases) There is no inherent presidential power; the president may act only if there is an express constitutional or statutory authority; The president has inherent authority unless the president interferes with the functioning of another branch of government or usurps the powers of another branch; . The president may exercise powers not mentioned in the Constitution so long as the president does not violate a statute or the Constitution; and .the president has inherent powers that may not be restricted by Congress and may act unless the constitution is violated The Scope of Inherent Power: The Issue of Executive Privilege Executive privilege refers to the ability of the Pres. to keep conversations with or memoranda to or from advisors. For matters of national security and so discussion is more candid rather than subject to politics.

Why not criminally indict a sitting president? Take away from his job; bad foreign view; should impeach first, try later; politically motivated prosecutors Why do criminally indict a sitting president? Not above the law; up to court to handle such overly-motivated prosecutors United States v. Richard Nixon The court rejected the Presidents claim to absolute privilege Areas of Absolute Presidential Privilege Need to protect the military, diplomatic, or sensitive national security secrets There is no elicit mention of privilege in the Constitution Executive privilege is an extraordinary assertion of power that cannot be abused Cheney v. United States Claims that Cheney violated the Federal Advisory Committee Act by holding secret meetings Here there was a discovery request that Cheney claimed privilege Court held that Discovery Request were overbroad Distinction between Nixon was that this case is civil and the other was criminal The Criminal Cases have constitutional need for the production of relevant evidence The Authority of Congress to Increase Executive Power Two approaches If Congress and pres. agree, courts should rarely invalidate their actions. Courts play a crucial judicial role in enforcing the separation of powers. Clinton v. NYC Line item veto case which wanted to allow the President to veto only certain parts of a bill the Court found that the statutory increase in presidential power was unconstitutional, because in effect, the President was changing a law adopted by Congress when using the line-item veto – the final version of the law is different after the veto than what Congress had passed ROL – the Constitution does not allow for the President to enact, amend, or to repeal statutes, and the procedures for doing such found in the Constitution must be strictly adhered to The Constitutional Problems of the Administrative State Administrative Agencies created to help Congress and Pres. wade through the minutia. Congress creates the broad legislation and the agencies fill in the details. Political reasons – People look down on the agency, not their congressman or president. Escape the political heat from having to make decisions, leave it up to the agencies. Agencies created because of the complexity of number of regulations. The quantity of laws now is at such a high level that Congress would not be able to adopt all of the law Agencies have all three types of power: Legislative – Create laws Executive – Enforce Laws Judicial – Employee administrative law judges to hear cases re: violations of agency regulations Const. question – Can Congress and Pres. delegate their powers to these agencies? Three options Non-delegation – Congress can not delegate powers to other decision makers

A.L.A. Schechter Poultry Corp. v. United States Congress cannot delegate legislative power to the president to exercise an unfettered discretion to make whatever law he thinks may be needed or advisable for the rehabilitation and expansion of trade and industry this regulation was unconstitutional as an impermissible delegation of legislative power Panama Refining v. Ryan Here congress did not make any law nor did they require the president to make any determination of fact Unconstitutional delegation of legislative power – court also emphasized the lack of any standards to limit the president‟s discretion Whitman v. American Trucking Assn., Inc. Remanded to the agency instead of declaring unconstitutional Limited-delegation – Congress can delegate w/in certain circumstances/confines Unlimited – delegation – Congress and Pres. agree, they can delegate as much as they wish Legislative Veto and its Demise Legislative Veto – was created by Congress as a check on the actions of the administrative agencies; Congress included in statutes provisions authorizing Congress or one of its houses, or committees to overturn an agency‟s action by doing something less than adopting new laws typical form of a legislative veto provision authorized Congress to overturn an agency‟s decision by a resolution of one house of Congress legislative vetoes also took the form of overturning agency‟s rules by resolution of both houses of Congress or even by action of a congressional committee Immigration and Naturalization Service v. Chadha law gave either house of Congress the authority to overturn an INS decision to suspend deportation. SCT declares this legislative veto to be unconstitutional because it bypassed bicameralism ( passage by both House and Senate) and presentment (giving the bill to the present to sign or veto The Constitution provides 4 provisions by which one House may act alone with the unreviewable force of law, not subject to the President‟s veto: The House of Representatives alone was given the power to initiate impeachments; The Senate alone was given the power to conduct trials following impeachment on charges initiated by the House and to convict following a trial; The Senate alone was given un-reviewable power to approve or disapprove presidential appointments; and The Senate alone was given un-reviewable power to ratify treaties negotiated by the President Checking Administrative Power Congress can control administrative agencies through statutes, enacting laws directing agencies to perform certain tasks or denying them authority in particular areas BUT Congress MUST following bicameralism and presentment (the President can veto such statutes, requiring Congress act by a 2/3 vote to effectuate the check) Congress controls the budget of administrative agencies and can use this as important checks of their work The President‟s authority to select members of agencies, subject to confirmation by the Senate,

often directs the conduct of the agencies The president also has the power of removal The Appointment Power – Article II, §2 provides that “the President shall nominate, and by and with the advice and consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the U.S., whose appointments are not herein otherwise provided for, and for which will be established by Law: but the Congress may by Law vest the appointment of such inferior officers, as they think proper, in the President alone, to the Courts of Law, or in the Heads of Departments” Morrison v. Olson Court upheld the constitutionality of limits on the president‟s ability to remove independent counsel The court stressed that the independent counsel, who exists to investigate and prosecute alleged wrongdoing in the executive branch of government, ideally should be independent of the president inferior officer (due to the limited term, limited scope and jurisdiction, and the fact he can only be fired by the A.G. with “good cause”) it saw no problem with the appointment being vested in the lower federal courts The Removal Power - No const. provision addresses removal power (other than impeachment) – general rule – the president may remove exec officials unless removal is limited by statute ROL – principal v. inferior officer Two questions to ask in analyzing removal power: Is the office one in which independence from the president is desirable? Second, are Congress‟s limits on removal constitutional? Removal Power there is no provision in the constitution giving the President authority to remove executive branch officers, but the general rule has become, unless limited by statute, the President may remove executive officers Congress by statute may limit removal both if it is an office where independence from the President is desirable, and if the law does not prohibit removal, but rather, limits removal to instances where good cause is shown Independent position from the President‟s removal power are important – public policy Impeachment of Andrew Johnson Impeachment for firing the secretary of war This was a violation of a federal law House voted to Impeach Senate was one vote short Myers v. United States Myers, who was Postmaster General, is fired by President Taft, and there is a federal law prohibiting the removal of the postmaster within his 4 year term without the advice and consent of the Senate the Court found that the power to remove is inherent from the power to appoint, and therefore, because the Postmaster is acting FOR the President, the President can fire Myers

ROL – this case stands for the broad proposition that any congressional limits on the removal power are unconstitutional Humphrey’s Executor v. United States Pres. removed commissioner on the basis that he had been appointed by a different president. Humphrey‟s executor claims he is entitled to a sum of money alleged to be due to the deceased, because he could not be fired without cause, the President argues that he does not need “good cause” because the Fed. Trade Commission is a quasi-judicial and quasilegislative position the Court finds that officers in quasi-judicial and quasi-legislative positions are different (from that of Myers, which dealt with purely executive officers) and that Congress may limit the removal of these individuals ROL- Congress could, for some officers and under some circumstances limit the removal power. This case distinguishes cabinet Wiener v. United States Even without a statute, Congress can limit the pres. removal power if there is a desire to keep the position independent from the pres. Bowsher v. Synar ROL – one clear and important limit on the removal power: Congress CANNOT give itself the power to remove executive officials, the only exception being, Congress can of course implement impeachment proceedings against such officials Morrison v. Olson Congress gives a “good cause” limitation on executive removal power. Limitation does not sufficiently deprive pres. of control over independent council. could only be removed by the Attorney General for “good cause” General Rule Today – the President has the power to remove executive officials, but Congress may limit the removal power if it is an office where independence from the President would be desirable. Congress cannot however, completely prohibit all removal, and it cannot give the removal power to itself (other than exercising impeachment power) Separation of Power and Foreign Policy Art. I, § 8 grants Congress power to regulate commerce with foreign nations “To declare war, grant letters of Marque and Reprisal, and make rules concerning captures of land and water” to raise and support armies, and to “define and punish Piracies and felonies committed on the High Seas, and offenses against the law of nations.” Art. II “the President shall be Commander and Chief of the Army and Navy of the U.S., and of the militia of the several States, when called into actual service; the President shall have Power, by and with Consent and Advice of the Senate to make treaties, provided 2/3 of the Senators present concur.” United States v. Curtis Wright Export Corp. the President is the physical manifestation of the U.S. as a country, and he is the “sole organ” in representing our country to foreign nations (it would be impractical to send all 500 members of Congress!) ROL – foreign and domestic affairs are different Treaties and the Executive Power Art. II, § 2 – Pres. shall have power to make treaties provided 2/3 of the senators present concur. A treaty requires senate approval, an executive agreement does not.

Two types of Art II treaties: Advise and consent treaties Most treaties are not Art. II treaties, but are congressional/executive agreements (acting w/congressional participation) and executive agreements (acting w/out congressional participation) treaty – an agreement between the U.S. and a foreign country that is negotiated by the President and is effective when ratified by the Senate executive agreement – an agreement between the U.S. and a foreign country that is effective when signed by the President and the head of the other government anything that can be done by a “treaty can be done by an executive agreement” the Court has sided with the President each time there has been a challenge to an executive agreement both prevail over all state laws and policy Dames & Moors v. Reagan The President has the power to terminate legal proceedings and settle pending claims of U.S. citizens against foreign governments where such action is necessary fort the resolution of a major foreign policy dispute. (Narrow decision) the Court concluded that the executive agreement was constitutional because federal statutes authorized Presidential actions; and there was a history of such executive settlement claims ROL - if the President continuously exercises his power over and over, and if Congress never disapproves of such powers, it becomes a CATEGORY 1 POWER and will be approved by the Court time and time again War Powers Art. I – grants congress power to declare war and authority to raise and support army and navy. What is a declaration of war? Must it be a formal resolution such as what congress adopted after Pearl Harbor? Or may it be less specific such as Gulf of Tonkin resolution? “Herein” granted to congress – limiting as opposed to pres. Necessary and proper clause gives congress authority Art II – makes the Pres. the commander-in-chief. Argues practicality and efficiency – no time to go to congress. What is courts role? Is an unconstitutional war possible? If so, can court so state? Court uses political question doctrine to stay out of this debate Title 50 – War and National Defense; Chapter 33 – War Powers Resolution Adopted in response to Vietnam War. What does war resolution require? Pres. in every possible instance shall consult with Congress Wars should involve collective judgment of congress and pres. (Framers intention) Reporting requirements – Section 1543 –In the absence of a declaration of war, President must provide to Congress within 48 hours a report of such activity. Congress can terminate US military powers overseas by not acting thus making Pres. terminate war. No president has formally followed this resolution though they regularly report to

Congress. Constitutionality has never been tested before court. No cases on this b/c court has either struck it down for lack of standing (Campbell v. Clinton) or political question doctrine Presidential Power on the War On Terrorism Detentions Detainees in Guantanamo Bay had a right to have their habeas corps petition read Hamdi v. Rumsfeld whether the executive has the authority to detain citizens who qualify as “enemy combatants” the Court finds that under 18 U.S.C. §4001(a) “no citizen shall be imprisoned or otherwise detained by the U.S. except pursuant to an Act of Congress” – therefore, Hamdi is being detained illegally Hamdi is a U.S. citizen, and there has been no Act of Congress ROL – opportunity to be heard, and notice of why detainee is being detained for US citizens Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism – executive order Military Tribunals Ex Parte Quirin (boat in Jacksonville case) A couple of enemy aliens taken into custody by government for planning to participate in terrorist acts – they are tried in a military tribunal SCT stated that these criminals were permitted to be tried in tribunal because this was within the laws of war the Court relies on the law of war – ignoring the Constitution and applying these rules instead Checks on the President Nixon v. Fitzgerald Fitzgerald argues discrimination, and brings a civil suit against the President the Court finds that the President has absolute immunity – complete protection from civil suit, for the President for all official actions while in office Rational because of the importance of the President‟s duties, diversion from energies by concern with private lawsuits would raise unique risks to the effective functioning of government Qualified Immunity – Government officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Absolute Immunity for acts done in office Clinton v. Jones facts occurred when Governor, sexual harassment suit from Jones seeking damages; which the President argues immunity (before Office) the Court assumes her allegations are correct, and finds that immunity is NOT absolute, and allows the case to go to trial because he was not the President at the time of the incident in question Rational Purpose of immunity is to safeguard pres. decisions and conduct while in office

No case has addressed whether a sitting Pres. can be criminally prosecuted. Arguments against allowing criminal prosecution – interference with job performance; prosecutor may use his or her position for political purposes; impeachment and removal is appropriate remedy for pres. wrongdoing. Arguments for – No person is above the law (basic principle of rule of law); if no aggressive prosecutor, there are ways the court can discipline the prosecutor Impeachment Article II, §4 – “The President, the V.P. and all civil officers of the U.S. shall be removed from Office on Impeachment for, and conviction of, Bribery, Treason, or other high crimes or misdemeanors. Article I, §2 – the House of Representatives has the sole to impeach, and if there is impeachment by the House, the trial is held by the Senate Article I, §3 – gives the Senate the sole power to try impeachment and prescribes that “no person shall be convicted without the concurrence of 2/3 of the members present” Basic Questions What should be an impeachable offense? What should “high crimes and misdemeanors” be interpreted to mean? What procedures must the Senate followed Are secret Senate deliberations constitutional? Should judicial review of impeachment process be political question? Should Supreme Court interpret those words of the const. or not? Impeachment of Andrew Johnson Impeachment of Richard Nixon Impeachment of Bill Clinton Congress not prevented from coming forward and defining “high crimes and misdemeanors.” Chapter 4 – Limits on State Regulatory and Taxing Powers State Power Article 1 § 10 Limitations on State Power Can‟t enter into treaties No letters or marquis or reprisal – party who receives letter may seize body or goods of state where sender belongs until satisfaction is made. Grounded in valid legal claim. Can‟t coin money, enter bills of credit No granting title of nobility Prohibits bill of attainder No ex post facto laws May not impair obligations of conracts. Supremacy Clause – Article VI Preemption (If there is a conflict between federal and state law, the fed. law controls and the state law is invalidated b/c the fed. law is supreme). When a person cannot comply with both state and federal law it is pre-empted by federal law. Where Congress has not acted  if there is no pre-emption, state and local laws can be challenged under 2 principles: Dormant Commerce Clause – the principle that state and local laws are unconstitutional if they place an undue burden on interstate commerce; and Privileges and Immunities Clause (Art. IV, §2) – “The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states.”

the Court has interpreted the clause as limiting the ability of states to discriminate against out-of-staters with regard to constitutional rights or important economic activities there are 2 extremes as to what the appropriate degree of judicial oversight or judicial deference to state and local governments should be: State and local governments should be unfettered by the federal governments as much as possible; and It is essential for the judiciary to preserve the federal nature of the American Government Pre-emption of State and Local Laws – if there is conflict, federal law is supreme over state law here is no clear rule for deciding whether a state or local law should be invalidated on preemption grounds, but the Supreme Court has identified 2 major situations where pre-emption occurs: where a federal law expressly pre-empts state or local law; and where the pre-emption is implied by a clear congressional intent to pre-empt the state or local law, and there are 2 types of implied pre-emptions: field pre-emption – where the scheme of the federal regulation is so pervasive as to make the reasonable inference that Congress left no room for the state to supplement it; and conflict pre-emption – where the compliance with both state and federal regulations is physically impossible, or where state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress Express Preemption Lorillard Tobacco v. Reilly invalidated a Massachusetts law that prohibited outdoor advertising for cigarettes, such as billboards, within 1,000 feet of a playground or school The key point is that provisions in federal statutes expressly preempting state and local laws inevitably require interpretation as to their scope and effect the Court found that the MA law was pre-empted by the FCLAA, stating that everything dealing with cigarettes are health related, and found no distinction between the health goals of the FCLAA and the youth protection goals of the MA law Implied Preemption Florida Lime Growers v. Cal CA law, which gauges the maturity of avocados by oil content, prohibits the sale and transportation in CA of avocados containing less than 8% oil – whether the law is constitutional as it may be applied to exclude FL avocados, which are certified under the federal regulations, from the CA market The Court found no inevitable collision between the 2 schemes of regulations, despite the dissimilarity of the standards ROL – if it is possible to comply with both federal and local or state law, there is no conflict, and no need for pre-emption Pacific Gas v. State Energy and Resources Conservation the federal law‟s objective at issue is safety, and the state law‟s objective is maintaining the economy Court finds the pre-emption of the state law unnecessary because the state law did not interfere with the achievement of the federal objective

ROL – even if the federal and state laws are not mutually exclusive, pre-emption will be found if the state or local law interferes with attaining a federal legislative goal Preemption because Federal Law Occupies the Field Hines Secretary of Labor of Penn. v. Davidowitz Here there was a law passed on Alien registration in the state of Penn. Foreign affairs is the power of the federal government the Court found that immigration/foreign affairs belong to Congress, and therefore, the PA alien registration act conflicted with the federal field ROL – where the federal government, in the exercise of its superior authority over a field, has enacted a complete scheme of regulation and has therein provided a standard for the registration of aliens for example, states cannot inconsistently with the purpose of Congress, conflict or interfere with, curtail or complement, the federal law, or enforce additional or auxiliary regulations The Dormant Commerce Clause 2 functions of the Commerce Clause Authorized congressional actions Limiting the state and local regulations Dormant Commerce Clause – State and local laws are unconst. if they place an undue burden on interstate commerce. (essentially, discrimination against out-of-staters) S. Ct. invalidates state and local laws if they find they interferes improperly with interstate commerce Two Approaches problems of economics and politics emphasizes role of const. promoting vision of nat. unity. Crucial Dormant Commerce Clause Issue – whether the judiciary, in the absence of congressional action, should invalidate state and local laws b/c they place an undue burden on interstate commerce not the only remedy – Privileges and Immunities Clause and Equal Protection Clause Arguments for Dormant Commerce Clause economic (economy better off), political (citizens should not be harmed by laws of another state when they have no representation there), separation of powers, historical (articles of confed. failed b/c they couldn‟t regulate commerce) Arguments against Dormant Commerce Clause – no const. provision, congress could regulate it if they chose too, court should be deferential to state legislation on federalism principles. Centeral Question in the Dorman Commerce Clause Whether the state or local law discriminates against out-of-staters or whether it treats instaters and out-of-staters alike If discriminates most likely to be unconstitutional Why a Dormant Commerce Clause Hood v. DuMond Commissioner of Agriculture and Markets of NY We hold that a state may not enact laws that burden the exportation of local products in

order to protect and advance local economic interests. State may not promote its own economic advantages by curtailment or burdening of interstate commerce applies Rational of the Commerce Clause Commerce Clause was adopted from the Articles of Confederation to promote economic cooperation, and because it would be best for the people of the U.S. to have an integrated economy economy is better off if state and local laws that impede upon interstate commerce are invalidated States and their citizens should not be harmed by laws in other states where they lack political representation The Dormant Commerce Clause Before 1938 Privileges and Immunities (PnI) – States can‟t discriminate against out of staters w/regard to rights and const. activities. Cooley v. Board of Wardens of the Port of Phily The SCT drew a distinction between subject matter that is national, in which event state laws are invalidated under the dormant commerce clause, and subject matter that is local, in which event state laws are allowed The Contemporary Test for the Dormant Commerce Clause The Shift to a Balancing test the modern approach is not based on rigid categories, but rather on courts balancing the benefits of a law against the burdens that it imposes on interstate commerce Types of tests National v. Local Subject Matter Test (Cooley) Police Power v. Commerce Power Test (Gibbons) Today and In the Past Balancing Test (benefits of a law against the burden that it imposes on interstate commerce – Strikes it down only if burdens exceed benefits) Court has not overruled other tests and sometimes uses them to explain a particular result South Carolina v. Barnwell SC law prohibits use on state highways of motor trucks and semi‟s whose width exceeds 90 inches and whose weight is in excess of 20,000 pounds the Court finds that the prohibitions do not, and reason such because the roads are state highways, paid for and maintained by state funds, and therefore the regulatory measures taken by SC are within its legislative power Southern Pacific v. Arizona Arizona made it unlawful to operate a train with more than 14 passenger cars The standard practice is the operation of more that 14 cars on main US railways Here the additional cost of operating trains around the statute would be more than $1,000,000 a year Also the restriction impedes the efficient operation Determining whether a Law is Discriminatory if the Court concludes that a state is discriminating against out-of-staters, there is a strong presumption against the law and it will be upheld only if it is necessary to achieve an important purpose there are 2 types of discriminatory laws

facially discriminatory – the laws in their very terms draw distinctions between in and out-of-staters; and facially neutral – which might be motivated by a desire to help in-staters at the expense of out-of-staters or might have a discriminatory impact against those from other states City of Philadelphia v. New Jersey Court reviewed a NJ law that effectively kept landfills in the state exclusively for NJ‟s use by preventing the importation of any wastes from out of state imposes solely on out-of-state commercial interests the full burden of conserving the State's remaining landfill space, which clearly is impermissible under the Commerce Clause The statute on its face, as well as in its effect, violates the principle of nondiscrimination C & A Carbone v. Town of Clarkstown Requires the solid waste to be processed at a designated transfer station the Court found the law discriminatory because states and localities may not attach restrictions on exports/imports in order to control the commerce in other states the Court finds the law affects local competitors, and is discriminatory, because it prevents others from thriving in the trash disposal business *discrimination against interstate commerce in favor of local business or investment is per se invalid, save in the narrow class of cases in which the municipality can demonstrate, under rigorous scrutiny, that it has no other means to advance a legitimate state interest The commerce clause presumes a national market free from local legislation that discriminates in favor of local interest Hughes v. Oklahoma OK law prohibited the transfer of minnows outside of the state, arguing environmental conservation the Court finds that the law is discriminatory, because the law acts as a barrier, blocking the flow of interstate commerce at state borders the Court also finds that OK chose the MOST discriminatory method of minnow conservation, even though non-discriminatory alternatives would seem likely to fulfill the state‟s purpose (ex: quota on minnows) ROL –discrimination, UNLESS it can be justified with a compelling governmental interest, with no other available alternatives (strict scrutiny) The Court has held that reciprocity requirements are facially discriminatory – a state allows outof-staters to have access to markets or resources only when the out-of-staters are from states that grant similar benefits Facially Neutral Laws Hunt v. Washington Apples Washington apples have their own grading system, which is higher than the USDA, and NC implements law which required all closed containers of apples sold, offered for sale, or shipped into NC to bear “no grade other than the U.S. federal applicable grade or standard” the court determines that the NC law is discriminatory because the WA apples would increase shipping costs, and the costs of doing business in general for WA growers, and the NC statute strips away the advantage WA established by WA growers ROL – when discrimination is found, as in this case, it is the burden of the State (NC) to

justify it both in terms of the local benefits flowing from the statute and the unavailability of non-discriminatory alternatives adequate to preserve the local interests at stake Exxon Corp v. Governor of MD MD law prohibits refineries from operating gas stations, all refineries are out-of-state and all the gas stations are obviously within MD Court determines the law to be facially neutral because the local producers AND the refineries are placed on the same level, and the purpose of the law is to protect MD businesses from the large out-of-state businesses the law creates no barriers against interstate independent dealers, it does not prohibit the flow of interstate goods, place added costs on them, or distinguish between in and out-ofstate companies in the retail market – the absence of these factors fully distinguishes this case from those in which a State has found to be discriminatory against interstate commerce West Lynn Creamery v. Healy Places an assessment on milk sold to by dealers to Mass. Retailers and that assessment was distributed to Mass. Dairy farmers the Court finds that a tax on all milk sales, by itself, would not violate the Commerce Clause because it taxes EVERYONE and is therefore non-discriminatory, but the tax along with the subsidizing provision, does violate the Commerce Clause because the instate MA farmers are subsidized later on, which makes both provisions together discriminatory the Court finds that the purpose and the affect of the pricing order are to divert market share to MA dairy farmers, and such a diversion injures dairy farmers in neighboring states ROL – when a non-discriminatory tax is coupled with a subsidy to one of the groups hurt by the tax, a State‟s political process can no longer be relied upon to prevent legislative abuse, because one of the in-state interests, which would otherwise lobby against the tax, has been modified by the subsidy State of Minnesota v. Clover Leaf Creamery MN law bans the retail sale of milk in plastic containers reasoning that plastic pollutes the environment The District Court finds the law discriminatory because it benefits a local paper industry , and the Court therefore finds that the ACTUAL basis for the law, has nothing to do with the environment, and instead was to promote the economic interests of certain segments of the local dairy/pulpwood industries at the expense of the plastic industry the Supreme Court upholds the MN law finding the local benefits are supported, and there is no alternative approach that will lessen the impact on interstate activities – the law even-handedly regulated ALL plastic companies there was a “modest” burden placed on the plastic company‟s there is not just one paper industry in the country in MN Dean Milk v. City of Madison under Madison law, milk must be pasteurized within 5 miles of Madison because Madison wants their inspectors inspecting the milk Madison argues the risk of sickness and harm (to kids) and that milk is time sensitive (meaning the longer it sits, the worse it gets) and therefore the milk should be locally inspected

Court concludes that the law was discriminatory against out-of-staters. ROL – cannot have city by city discrimination, because such practices, if upheld, would flow to every other city in WI, and WI would therefore discriminate against out-of-staters Maine v. Taylor ME law prohibits the importing of bait fish, arguing that such imports bring parasites and affects the ecology the Court finds the risk sufficient enough to allow the states to make the judgment, and the Supreme Court will accept the findings in the Dist. Ct. Analysis if a Law is Deemed Non-Discriminatory if the Court concludes that a state‟s law is non-discriminatory (meaning it treats in and out-ofstaters alike) then it is subject to much less demanding test, and such laws are upheld so long as the benefits to the government outweigh the burdens on interstate commerce Pike v. Bruce Church “where the statute regulates even-handedly to effectuate a legitimate local public interest, and its effects on interstate commerce, are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits” the extent of the burden that will be tolerated will of course depend on the nature of the local interest involved, and on whether it could be promoted as well with a lesser impact on interstate commerce Here there was an undue burden for the purpose of the legislation and the statue was rule unconstitutional Bibb v. Navajo IL law requires contour mud-flaps, as opposed to straight mud-flap the Court found the law to be to be burdensome, and declares the law invalid, because the law interferes with “interline” operations of motor carriers ROL – the Court uses the balancing test to find a non-discriminatory law unconstitutional Kassel v. Consolidated Freightways Corp. Iowa prohibits the use of certain length of trucks The Court said that the State failed to present any persuasive evidence that 65 foot doubles are less safe than 55-foot singles This law also substantially burdened interstate commerce by forcing these trucks to avoid Iowa or detach the trailers and ship them separately Law unconstitutional because of the substantial burden without valid reasoning CTS Corp v. Dynamics Law limited corporate takeovers by requiring that a purchaser who acquired “control shares” in an Indiana corporation would acquire voting rights only if the transaction was approved by a majority vote by the preexisting disinterested shareholders the Court finds the law valid, and states that if IN wants to regulate IN corporations the Court will let it do so, because a state has an interest in promoting stable relationships among parties involved in the corporations charters, and the state also has in interest in protecting IN corporation‟s shareholders Summary – Sate laws that discriminate against out-of-staters are almost always declared unconst. Such a law will be allowed only if

it is proven that the law is necessary the least restrictive means – to achieve a non-protectionist purpose. If a law does not discriminate against out-of-staters, the Court balances its burdens on interstate commerce against its benefits. The inquiry is fact dependent and the outcome obviously turns on how the Court appraises the burdens and the benefits. Exceptions to the Dormant Commerce Clause If congress approves the state law Even if clearly unconstitutional because of its plenary power to regulate congress among the states If congress has acted the Commerce Clause is no longer Dormant Market participation exception the state may favor its own citizens in receiving benefits from the government programs or in dealing with government owned businesses Congressional Approval In re Rahrer The Court upheld a state law restricting the importation and sale of alcoholic beverages because Congress had said it can do this. Western & Southern Life Ins. V. State Board of Cal. if Congress ordains that the states may freely regulate an aspect of interstate commerce, any action taken by a State within the scope of the congressional authorization is rendered invulnerable to Commerce Clause challenge Keep in mind Congressional approval does not excuse a violation of Equal Protection, or the Privileges and Immunities Clause, or other constitutional provisions besides the Dormant Commerce Clause Reeves v. William Stake Court upheld a cement plant owned by S.D. charging less to in-state purchasers and more to out of state purchasers The Court said that S.D., as the seller of cement, was clearly a market participant and thus was able to favor in-state purchasers over those from out of the state South-Central Timber v. Commissioner of Natural Recourses of Alaska the Court declared unconstitutional an Alaska law that required that purchaser of stateowned timber have the timber processed in Alaska before it is shipped out of State. Limited the scope to the action of participation could not go further Privileges and Immunities Clause of Article IV § 2 “the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states” – the Supreme Court has interpreted this provision as limiting the ability of states to discriminate against out-of-staters with regard to fundamental rights or important economic activities such discrimination will be allowed only if it is substantially related to achieving a substantial state interest aliens and corporations may not sue under the Privileges and Immunities Clause because, by definition, they are not citizens the Privileges and Immunities Clause may ONLY be used if there is discrimination against outof-staters there is no congressional approval or market participant exception to the Privileges and

Immunities Clause Strong presumption against state and local laws that discriminate against out-of-staters w/regard to fundamental rights or important economic activities. Analysis Under the Privileges and Immunities Clause – there are 2 basic questions: Has the state discriminated against out-of-staters with regard to privileges and immunities that it accords its own citizens?; and If there is such discrimination, is there a sufficient justification for the discrimination What are the Privileges and Immunities of Citizenship? the Court has primarily applied the clause in 2 contexts: constitutional rights; and important economic activities Toomer v. Witsell SC statute charges more $ for the registration of shrimp boats for out-of-staters compared to what SC charges for in-state boats the Court finds the law “plainly discriminatory,” and the Court reasons the case falls under the Privileges and Immunities because shrimp boaters have a right to earn a livelihood, and the law interferes with such United Building and Construction Trade Council of Camden County v. Mayor and Council of the City of Camden Camden implemented a “local hire” law, stating that at least 40% of the employees of contractors and subcontractor working on city construction projects had to be Camden residents the Court decided that law did violate the Privileges and Immunities Clause, UNLESS the City of Camden can show that the out-of-staters are causing the unemployment (“source of evil”) the city has to show that there are jobs available, but they are being taken by out-ofstaters, and must show that the in-staters are equally as qualified for the jobs being taken (VERY HIGH STANDARD) ROL- The Privilege and Immunities Clause prevents states (and cities) from discriminating against non-residents if: The discrimination burdens a "fundamental" privilege, and There is no "substantial reason" for disparate treatment. Baldwin v. Fish and Game Commn. Of MT the Court upheld the law because hunting is NOT a right, it is a privilege, but not the type of privilege falling under the Privileges and Immunities Clause elk hunting was neither a constitutional right nor an important economic activity What Justifications are Sufficient to Permit Discrimination? the Privileges and Immunities Clause is not absolute New Hampshire v. Piper Limited admission to the bar for state residents only the court gives the above arguments little or no weight and refuse to validate the NH residency law ROL-the most extreme form of discrimination is where a state completely bars out-ofstaters from engaging in a particular trade of profession in a state the clause does not preclude discrimination against non-residence where there is an substantial reason for the difference in treatment

the discrimination practiced against non residence bears a substantial relationship to the State‟s Objective Chapter 5: The Structure of the Constitution’s Protections of Civil Rights and Civil Liberties Why is there so little in the text of the Constitution about individual liberties the framers thought an enumeration of rights was unnecessary in that they had created a government with limited powers and thus without authority to violate basic liberties; and the framers were concerned that the enumeration of some rights in the text of the Constitution inevitably would be incomplete and thus would deny protection to those not listed the 9th Amendment was added to address this latter concern and provides: “The enumeration in the Constitution of certain rights, shall not be construed or deny or disparage others retained by the people.” the Bill of Rights Consists of the first 8 Amendments “We the People. . .” so why doesn‟t the Bill of Rights apply to the states as written? Justice Marshall: “The Bill of Rights does not apply to the states because the sole purpose of the Constitution was to create a federal government” If the original framers had wanted to say “states”, the framers would have said “states” The Constitution also states things that NO GOVERNMENT can do (state or federal) – protecting the people The only Amendments NOT incorporated in the Bill of Rights to the states through the 14th Amendment are: 2nd Amendment (bear arms) 3rd Amendment (military in home quarters); and 5th Amendment (grand jury trial/jury trial/bench trials) Barron v. Mayor of the City of Baltimore Sued the city for taking property without just compensation in violation of the 5th amendment at this time the Constitution did not apply to the state therefore the taking was ok False Start in applying the Bill of Rights to the States: The P&I Clause 14th Amend. does not create additional rights, it only guarantees that states cannot infringe on the rights of citizens of the United States. Also P&I in 14th Amend. – “No state shall make or enforce any law which shall abridge the privileges or immunities of the citizens of the United States.” Slaughter House Cases “closed the “privileges and immunities” clause by limiting it to protection of only “fundamental” privileges, not all of those in the bill of rights.” ROL – this case means that the privileges and immunities clause is removed as the basis for applying the Bill of Rights to the states or for protecting any rights from state interference SIDE NOTE – Differences between the two P&I Clause – Article 4, Section I – P&I – The Courts will respect decisions of other courts unless there is a major reason not to. (Comity Clause) Article 4, Section II – P&I – This protects classifications if there‟s a legitimate state interest. Court strikes down legislation that discriminates against out of staters. 14th Amendment – P&I – not applied against the state per Slaughterhouse. The Revival of the Privileges or Immunities Clause: Saenz v. Row

Saenz v. Roe ROL – one of the privileges conferred by the Privileges and Immunities Clause is that a citizen of the U.S. can, of his volition, become a citizen of any State of the Union by a bona fide residence therein, with the same rights of every other citizen of that State you are a U.S. citizen and have a right to be treated as one no matter what State you are in – right to travel Incorporation of Bill of Rights into Due Process of the 14th Amendment the 14th Amendment states; “a state may not deprive an person of life, liberty, and property, without due process of law procedural fairness – “we‟re going to give you a fair trial, and then we‟re going to hang you  what procedural fairness stands for substantive due process – comes from: framer‟s intent (Scalia) how the clause is interpreted elsewhere (5th Amendment means procedural fairness so the 14th should too!) natural principles of justice – the Constitution does not say the government cannot violate the natural principles of justice what “due process of law” is are the “natural principles of justice” – the idea of some greater sense of justice, and statutes and common law in conflict with that “higher sense” are not actually laws, but are instead, inconsistent with our Constitution for example, what good is a fair trial, if the law itself is inconsistent with natural principles of justice? In criminal cases, courts turn on these natural principles all the time – public policy of protection of public interests Twining v. New Jersey The Court expressly recognized the possibility that the due process clause of the 14th Amendment incorporates provisions of the Bill of Rights and thereby applies them to state and local governments. Gitlow v. New York The Court for the first time said that the First Amendment‟s protection of freedom of speech applies to the states thrugh its incorporation into the DPC of 14th Amendment. Powell v. Alabama The SCT concluded that the DPC of the 14th protects the fundamental rights from state interference and that this can include Bill of Rights provisions The debate over Incorporation Total incorporation v. Selective Incorporation “Selective Incorporation” of “fundamental rights” look at the facts of the trial to see if they were “fundamentally unfair,” if so incorporate the necessary bill of rights provision. It should not be included or excluded simply because of the Bill of Rights Total Incorporation believe that all of the Bill of Rights should be deemed to be included in the Due Process Clause of the 14th Amendment OR, the other approach is to incorporate the Bill of Rights plus more selective incorporationists have prevailed in this debate in that the Supreme Court has never accepted the total incorporationist approach

Palko v. Connecticut State could appeal a criminal case if they did not get a conviction Cardozo stated that test of whether a right is “fundamental” is if it is of “the very essence of a scheme of ordered liberty” and whether it is one of those “fundamental principles of liberty and justice which lie at the base of all our civil and political institutions.” No double jeopardy allowed by the states. Adamson v. California 14th Due Process is not a “shorthand summary” of the 1st 8 Amend. (Bill of Rights), nor is in all-inclusive towards the states. Here a CA law permits the failure of a D to explain or to deny evidence against him to be commented upon by court and by counsel and to be considered by court and jury The Court does not hold self-incrimination as a fundamental right incorporated by 14th to the states – therefore, law upheld. The Current Law as to What‟s Incorporated All but 2nd 3rd 5th (right to a grand jury) 7th (right to grand jury in civil action) 8th (prohibition of excess fines Duncan v. Louisiana The court stated that the 1st 4th 5th 6th Amendments apply to the state governments thought the Due Process Clause of the 14th amendment Content of Interpreted Rights Bag and Baggage Theory Once right has been incorporated, all interpretations of it are incorporated as well. – Once you decide a right is fundamental – it‟s interpretation should come with it. Exceptions for jury and verdict – practically applied same to federal and states The Requirement for State Action State Action Private conduct generally does not have to comply with the Const. The state action doctrine provides that the Constitution only applies to the government. But the government can still enact laws that require private conduct Meet the same standards that the Constitution requires of the government. The Const. applies to government at all levels and to actions of government officers at all levels. Constitution generally does not apply to private entities or actors. The Civil Rights Cases United States v. Stanley The Fourteenth Amendment prohibits only state action. The Amendment gives Congress the power to enforce the Fourteenth Amendment by

appropriate legislation. This legislation may correct the effects only of prohibited state action. The Amendment does not give Congress the power to regulate private rights. The Civil Rights Act makes no reference to any violation of the Fourteenth Amendment by the States. It does not correct any constitutional wrong committed by the States. th The 13 Amendment forbids people from being or owning slaves. HOLDING- The civil rights cases held that federal constitutional rights do not govern individual behavior, and further more, that Congress lacks the authority to apply them to private conduct. Structuring the legal relationships of private citizens was for the state, not the national government. Historical explanation for State Action Arguments For: (listed on page 491 Supp.) preserves zone of private autonomy by limiting reach of fed. law and fed. judicial power enhances federalism Arguments Against: allows private actors to violate rights of others and thus prohibits individual freedom why should federalism justify infringement of basic rights? Chapter 6: Economic Liberties Economic liberties generally refers to Constitutional rights concerning the ability to enter into and enforce contracts, to pursue a trade or profession, and acquire, posses, and convey land Constitutional Provisions included Art. I, § 10 – Contracts Clause “No state shall...pass impairing the obligation of contracts. 5th Amend. – Takings Clause “nor shall private property be taken for public use w/out just compensation.” 14th Amend. – Due Process Clause to protect other economic liberties such as freedom of contract, freedom to pursue a livelihood, and freedom to practice a trade or profession. After 1937, Court has only twice found a law in violation of the contracts clause. Court does use takings clause to protect property rights. Economic Substantive Due Proces Procedural Due Process – Gov.‟t must follow procedure for taking away life, liberty, and happiness. Substantive Due Process – Gov.‟t must have adequate reason for taking away for life, liberty, and happiness. Example – Child Custody Court requires procedural due process of notice and hearing procedures before termination of custody. Substantive due process requires that the gov.‟t show a compelling reason for terminating custody, such as parental abuse or neglect. Historically, two areas protected under substantive due process: Economic Liberties and Privacy. Early History of Economic Substantive Due Process

Munn v. Illinois Court upheld a state law that set maximum rates for grain-storage warehouses. The court indicated, however, that under some circumstances regulation of business would be found to violate due process. Central question whether the “private property is „affected with a public interest‟ When one devotes property to a use in which the public has an interest, he, in effect, granted to the public interest in that use Railroad Commission Cases Court upheld a state law regulating RR rates but the Court indicated that due process could be used to challenge such rates in the future. The power to regulate is not the power to destroy Mulgar v. Kansas Court upheld as constitutional a state law that prohibited the sale of alcoholic beverages. Substantive Due Process of the Lochner Era Allgeyer v. Louisiana use of due process to invalidate gov.‟t economic regulations as interfering with freedom of K. The SCT declared unconstitutional a state law that prohibited payments on marine insurance policies issued by out of state companies that were not licensed or approved to do business in the state. Court found that the LA law interfered with freedom of contract and that it thus violated the DPC of the 14th Amendment. the law must be balanced with the citizen‟s right to contract and the state‟s police power ROL – to deprive citizens of the liberty to contract, without due process of law is illegal Lochner v. New York SCT declared unconstitutional a NY law that set the max hours bakers could work based on a violation of the due process clause of 14th because it interfered with freedom of K and because it did not serve a valid police purpose. Three major principles put forth in Lochner: The freedom of K is a basic right protected as a liberty and property rights under the DPC of 14th. The government could interfere with freedom of K only to serve a valid police purpose: that is to protect the public safety, public health, or public morals. The judicial role is to carefully scrutinize legislation interfering with freedom of K to make sure that it served a police purpose. **These principles were followed only until 1937. Criticisms of Lochner Gov.‟t should be able to regulate K under police powers; under domain of legislature to regulate consumers and public if they wish you; made real freedom of K an illusion. Also decisions inconsistent. Court should not be so activist – judges should not be substituting their values for those of legislature and court should defer to legislature when it chooses to regulate economy. Reflected political choices – using freedom of K favored employer over employees, corp.‟s over consumers. No reason for court to overturn the choices that political process had already made.

Laws Protecting Unionizing: Coppage v. Kansas SCT said that it was not a legitimate exercise of the police power for the government to attempt to equalize bargaining power between employer/employee by passing laws that prevented employees from joining unions. Maximum Hours Laws Muller v. Oregon SCT upheld the maximum hours law for women because there was widespread belief that women‟s justify special legislation. physical organization of women; maternal functions; child rearing; maintenance of the home the court does not deny the freedom to contract, they simply determine that women are different and need to be protected because of the above mentioned reasons – the “Brandeis Brief” in this case demonstrated sufficient evidence Bunting v. Oregon Court upheld a max hours law for manufacturing jobs. Minimum Wage Laws Adkins v. Children’s Hospital Court declared unconstitutional a law that set a minimum wage for women SCT said that it interfered with freedom of K, and did not serve any valid police purpose. Consumer Protection Legislation Weaver v. Palmer Brothers Co. Court holds that the use of shoddy will not directly impact health therefore, the Court declared unconstitutional a state law prohibiting the use of shoddy in making bedding – shoddy was rags and other debris that were stuffed into mattresses. The Court said that the public interest in health could be served by regulation, such as by mandating sterilization of the material. Consumer Protection Legislation – Price Regulations Nebbia v. NY the Court upheld the NY law that set prices for milk, finding the case different from Weaver because of the importance of milk – if the milk is not handled with care, it can be come dangerous and hurt people‟s health (which is different than say, a blanket) the Court also stresses the importance of milk, and protection of the market; and the need for judicial deference to legislative choices Initial Suggestions of the Demise of Lochnerism Economic Substantive Due Process since 1937 Pressure for Change Lochner rested on the assumption that freedom of contract and related property rights were part of the natural liberties possessed by individuals. Attacked by liberal realists, arguing that the law reflected political choices; using freedom of K to invalidate state laws was a political choice that favored employers over employees and corp.‟s over consumers.

End of Lochnerism Court signaled the end of the laissez-faire jurisprudence that had dominated constitutional law for several decades. West Coast Hotel Co. v. Parrish (end of substantive due process) The liberty safeguarded in the constitution is liberty in a social organization that requires the protection of law against evils that threaten the health, safety, morals and welfare of the people. It is thus subject to the restraints of due process, and regulation that is reasonable in relation to its subject and is adopted in the interests of the community is due process. WA act authorizes the fixing of minimum wages for women and children the Court overturns their decision in Adkins, finding that states can regulate minimum wage laws the Constitution does not speak of freedom to contract, it speaks of liberty and the deprivation of liberty without due process of law the state is looking out for those with unequal bargaining power (women and minors), and to limit their exploitation through protection ROL – regulations which are reasonable in relation to its subjects and is adopted in the interests of the community is due process the Court unequivocally declared that it no longer would protect freedom of contract as a fundamental right, that government could regulate to serve any legitimate purpose, and that the judiciary would defer to the legislature‟s choices so long as they were reasonable U.S. v. Carolene Products Co. whether the “Filled Milk Act” of Congress, prohibiting the shipment in interstate commerce of skimmed milk compounded with any fat or oil other then milk fat, so as to resemble milk cream, infringes the 5th Amendment Footnote 4 is most cited footnote. Proclaims a need for judicial deference to government economic regulations with more aggressive judicial review reserved for cases involving fundamental rights and “discrete and insular minorities.” Court will only look at cases involving: fundamental right, political processes affecting minority, and discrete and insular minorities. ROL- Courts will presume the constitutionality of the statuts Economic Substantive Due Process since 1937 Since 1937, not one state or fed. economic regulation has been found unconst. as infringing liberty of K as protected by Due Process Clauses of 5th and 15th. Economic regulation upheld under Due Process so long as they are rationally related to legitimate gov.‟t purpose. the bottom line, is that since 1937 economic substantive due process has been unavailable to challenge government economic and social welfare laws and regulations protection of economic rights, since 1937, is such that it has been has come under either the Contracts Clause of Art. I § 10, and the Takings Clause of the 5th Amendment Williamson v. Lee Optical of OK Court will no longer use the Due Process Clause to strike down state statutes regulating business or industry conditions, and will instead defer to legislature. SCT upheld an OK statute that prohibited an optician to fit or duplicate lenses without a prescription from an optometrist or an ophthalmologist

Supreme Court upheld in OK statute that prohibited an optician to fit or duplicate lenses without a prescription from an optometrist or an ophthalmologist again, judicial deference to legislative decisions was stressed, then the Court hypothesized legitimate purposes for the law (such as eye exams being critical, public safety in eyesight) in all likelihood, the law was adopted to protect business for doctors and was not motivated by a desire to improve health ROL – so long as the Court can conceive of some legitimate purpose and so long as the law is reasonable, the law will be upheld Ferguson v. Skrupa Court upheld a KS law that made it unlawful for a person to engage in the business of debt adjusting, except incident to the practice of law. Lincoln Federal Labor Union v. Northwestern Iron Court held a state “right to work law” which mandated no person could be denied a job for failure to join a union. BMW of North America v. Gore (Economic substantive due process invalidates large punitive damage award as violating due process) – Punitive damages may properly be awarded to further a state's legitimate interests in punishing and deterring unlawful conduct. Most states require only that the damages be reasonably necessary to vindicate these interests. Thus, only when an award is grossly excessive in relation to these interests will it be said to be so arbitrary as to be in violation of the Fourteenth Amendment. In this case, this Court found that a punitive damage award of $2M against BMW for repainting automobiles because of acid rain damage without disclosing to customers was “grossly excessive”. Three Guideposts: Degree of Reprehensibility of the defendant‟s misconduct disparity between the actual or potential harm suffered by the P and the punitive damages award. the difference between the punitive damages awarded by the jury and the civil penalties authorized or imposed in comparable cases. ROL – Due Process requires notice that the conduct regulated is criminal and the severity of the penalty, and that grossly excessive punitive damages deny Due Process Too Much Deference? Ultimately the question is whether this is appropriate judicial deference to legislative choices in regulating the economy or whether this constitutes judicial abdication of an important role in protecting economic liberties. The Contracts Clause Art. I, §10 – “No state shall...pass impairing the obligation of contracts.” Only applies to state or local gov.‟t not federal (those are brought under Due Process). Also only applies to existing contracts, not future. Framer Intent – The Contracts Clause was meant to stop such debtor relief legislation that had the effect of interfering with contractual rights. The goal was not only to protect creditors, but also to encourage credit by assuring lenders that they would be repaid.

The bottom line is that since 1937 economic substantive due process has been unavailable to challenge government economic and social welfare laws – Protection of Economic rights now falls under K Clause and Takings Clause. Home Building and Loan Assn. v. Blaisdell The state's power to place such temporary conditions on contracts in the presence of an emergency is thus inferred in every contract. And if the power exists to give temporary relief to citizens in times of great natural disasters, it cannot disappear when the urgent public need arises from economic or other causes. Energy Reserves Group v. Kansas Power and Light – Current Test A contact for natural gas provided that the price to be paid would be increased if government regulators fixed a higher price than that specified in the K. Subsequently, KS adopted a law that provided that the price to be paid for natural gas under a K could not be increased because of prices set by federal authorities. The state law prevented the natural gas producer from charging the higher prices that it was entitled to under the K. SCT upheld the KS law. Three Part Test: (similar to trad. Rational Basis review) Is there a substantial impairment of a contractual relationship? If so, does it serve a significant (hightened scrutiny) and legitimate public purpose? If so, is it reasonably related to achieving a public purpose? General Motors v. Romein SCT rejected a challenge to a state that that changed the workers‟ compensation program on the ground that it did not interfere with existing Ks. Allied Structural Steel Co. Spannus The only case since 1934 that the SCT has declared a state law that interfered with private Ks – unconstitutional. An IL company operated an office in Minnesota and provided a pension plan for its employees. The terms of the plan provided that the company could, at any time, amend the plan or terminate the plan and distribute the assets to the employees. Minnesota adopted a pension funding charge – and assessed Allied Structural Steel a fee violated K clause. Government Interference with Government Ks United States Co. v. New Jersey SCT indicated that government interference with government Ks will be subjected to heightened scrutiny. In 1962, NJ and NY adopted laws prohibited the use of toll revenues from the port authority to subsidize RR passenger service. Later in the 1970s – the states repealed this prohibition and permitted the use of toll funds to improve transit SCT held that the states had violated the K clause and emphasized its distrust of the government when it is abrogating its own contracts. The Takings Clause “Nor shall private property be taken for public use without just compensation.” 5th Amend. Four Questions: Is there a “taking?” Is it “property?” If there is a taking of property, is the taking for “public use?”

must be rationally related to a conceivable public purpose –very broad. If is a taking for public use, is “just compensation” paid? generally fair market value of property – compensation is measured in terms of the loss to the owner; gain to the taker is irrelevant. No set formula to determine when gov.‟t actions become takings. Two types of Takings: Possessory – occurs when the gov.‟t confiscates or physically occupies property. Regulatory – occurs when the gov.‟ts regulations leaves no reasonably economically viable use of the property. Difficult because every regulation is some sort of “taking” as economically affects some property somewhere Is there a Taking? Loretto v. Teleprompter Manhattan (Possessory Taking) The placement of a fixed structure on land or real property is an obvious physical occupation which will rarely be subject to dispute. Once that fact is shown, a court should consider the extent of the occupation as one relevant factor in determining the compensation due. Pennsylvania Coal Co. v. Mahon (Regulatory Taking) PA statute prohibited the mining of coal in any manner that would cause the subsidence of property. The effect of the law was to prevent companies from exercising certain mining rights – they were required to leave columns of coal underground to support the surface. In this case, the government did not confiscate, occupy, destroy, or invade the property; the government regulated its use. If a regulation goes too far it will be recognized as a taking – “making it commercially impracticable to mine certain coal has nearly the same effect for constitutional purposes as appropriating or destroying it.” Miller v. Schoene (Regulation not a taking) When that choice is, as it was here (cedar rust), unavoidable, the exercise of the state's power does not constitute a taking. Virginia ordered the destruction of a large number of ornamental red cedar trees to prevent the spread of cedar rust, a highly infectious plant disease – in order to protect the apple orchards. Court did not require that state give compensation to the owners of the ornamental red cedar trees. Court said that when the government is forced with making a choice between the preservation of two types of property – the state does not exceed its constitutional powers by deciding upon the the destruction of one class of property in order to save another which is of greater value to the public. Penn Central Transport v. New York City One important principle that is a crucial consideration in regulatory takings is that government regulation is a taking if it leaves no reasonable economically viable use of property…government regulation is not a taking simply because it decreases the value of a person‟s property so long as it leaves reasonable economically viable uses. Connolly v. Pension Guaranty Corp: The courts decisions have, however, identified several factors that aid in making such a determination. Among those are: The economic impact of the regulation, The extent of interference on the property being affected, and The character of the government's action.

Generally speaking, a taking may be more readily found where there is a physical invasion of property by the government. Court in this case emphasized that the regulation did not preclude all development above the building. Lucas v. South Carolina Coastal Council There are two situations, however, where courts have recognized a taking as a matter of law. First, where there is any physical occupation of private property for public use, a taking has occurred. Second, where regulation denies a property owner of all economically beneficial or productive use, a taking has also occurred. After a person purchased a million dollar lot, the state prevented construction on the property. SCT says this is a taking unless this restriction was there BEFORE he purchased the property. Zoning Ordinances – page 589 Village of Euclid v. Amber Realty Land was rezoned and resulted in a reduced value – Court emphasized the government‟s strong police purpose in the zoning regulation and did not find a taking. Keystone v. DeBenedictis Nollan v. CA Coastal Commn. Conditions placed on builder as a requirement for receiving building permit. Court said no taking because the state has the police power to allow the government to place conditions on development if its rationally related to preventing harms caused by the new construction. Dolan v. City of Tigard Government gave the owner of a store a permit to expand the building on the condition that the land be set aside from a public greenway – did these conditions amount to a taking? Two part test: is there a NEXUS between the legitimate state interest and the permit condition created by the city? Evaluating whether the exactions on development were roughly proportionate to the government‟s justifications for regulating this is a reasonableness test…called the “rough proportionality” test. Two additional questions Can a property owner bring a takings challenge to regulations that already were in place when the property was acquired? Palazzolo v. Rhode Island Court held that a property owner could bring a takings claim as to regulations and laws that were in place at the time property acquired. Is temporarily denying an owner development of the property a taking? Tahoe v. Tahoe Regional Planning Court held that a moratorium on development of private property was not a taking even though this moratorium took effect after owner bought land. The state‟s interest in

making an efficient plan to protect environment is sufficiently strong – to not find a taking. Is it for public use? A taking is for public use so long as the government is taking property to achieve a legitimate government purpose and so long as the taking is a reasonable way to achieve the goal. Hawaii Housing Authority v. Midkiff While the Fifth Amendment prohibits a state from taking private property for public use without just compensation, and by extension, would prohibit the taking of private party for anything other than public use even with compensation, where the exercise of the eminent domain power is rationally related to a conceivable public purpose, the takings clause is satisfied. Hawaii was settled in a fashion that only a couple of people owned land – so the government wanted to take this land and allow more diverse ownership. SCT found this was for public use so long as the government meets the rational basis test. SCT concluded that the state‟s action was for public use because it acted out of a reasonable belief that distributing ownership among a larger number of people would benefit the public. What is the requirement for just compensation? Is determined in relation to loss of the owner? Usually fair market value. Brown v. Legal Education of WA Here the lawyers had to put the clients money into trust accounts The interest from the trust accounts went to help pay for legal fees for the indigent people of WA Brown sued claiming that the bar was taking his money (the interest) The Supreme court said that taking is what the owner lost not what the government gained Here the owner lost nothing because he never had the interest in the first place Therefore the government owes him no money This was also not regulatory taking because the interest was transferred to another owner for a legitimate public reason

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