Law School Outline- Constitutional Law I prof.Stern- FSU College of Law

I. Nature and Scope of Judicial Review a. Introduction to Judicial review i. Premise of it is that the S. Ct. CANNOT decide any issue they consider interesting. Case must be in a particular factual posture (e.g. jurisdiction) ii. Notes on Federalist Paper #10 1. Separation of powers between the legislature and the executive. If have this separation then no side can act unilaterally and slow things down. Also, Federalism – dispersal of power between the states and the federal government – prevents the tyranny of the majority. 2. Mechanism of judicial review – power of judiciary to review acts of executive and legislature. Under judicial, review we let an unelected branch to overturn decisions made by the elected officials. We have this because we want to temper passionate majorities. The court forces society to follow fundamental pacts (agreements). iii. Marbury v. Madison (Establishes Judicial Review) 1. Broad Issue: Whether the S. Ct. had jurisdiction. 1. Holding: S. Ct. held that it is without power to direct the President to deliver Marbury’s commission. Stems from the fact that S. Ct. did not have jurisdiction to hear the case. a. Congress passed a statute that was in conflict with Constitution (Article 3 clause 2) and thus S. Ct. rules that the Constitution prevails. Thus, the Judiciary Act of 1789 is unconstitutional. b. Holding: The court has power to determine whether statute passed conforms to Constitution (S. Ct. is without power to direct the President to deliver Marbury’s commission). Really the holding is that Marbury promulgates one facet of judicial review - established power of Court to rule on Constitutionality of Federal Statute, which are those passed by Congress. The important holding in the case was the S. Ct. has the power to declare acts of Congress unconstitutional – that is, that the S. Ct. has the power of judicial review. 2. Rule of Clear Mistake (General proposition) - pg. 44 of casebook: court will NOT declare a statute is Unconstitutional UNLESS it is clearly erroneous (that is, clearly irrational – clearly outside the bounds of the Constitution). That is, legislation is strongly presumed to be constitutional. a. There is a heavy burden on the one challenging the constitutionality of a statute 3. Marbury opens the question of whether the S. Ct. can review a state supreme court’s ruling on the constitutionality of a statute. This is taken up in case of Martin v. Hunter’s Lessee (infra). iv. NOTES: 1 1. This case established the power of Judicial Review. The S. Ct. has the power to determine what the Constitution means. 2. Judicial Review is a mechanism by which the courts may invalidate decisions of Congress and the President, subject ONLY to the burdensome process of constitutional amendment. 3. Judicial decisions are not self executing. Thus, the Court needs active cooperation of other branches. If no cooperation then decision does not have significant effect. E.g. Segregation rule. After Brown not all the segregated schools were desegregated because some did not want it to occur. 4. Limitations on Judicial Review: a. Judiciary cannot reach out to issues which are not properly brought before them. i. S. Ct. CANNOT initiate case on its own – case must have a relevant issue to the S. Court. b. S. Ct. knows power of other branches; it is not in business of stepping on toes c. S. Ct. constrained by popular views, and usually give statutes benefits of the doubt d. To challenge the constitutionality of a law, you must first violate it. e. Informally, Congress controls funding and enforcement of S. Ct., thus S. Ct. is encouraged to be cooperative. Congress can also challenge rulings b. Theories of Constitutional Interpretation: i. Countermajorian Difficulties 1. Even though there is deference to other branches (general rule: presumption of constitutionality of statutes), there are exceptions to it: 2. U.S. v. Carolene Products [footnote 4] - Exception to the general presumption of constitutionality (See pg 767 of casebook): a. In certain cases challenging statues, some categories of statutes do not enjoy the presumption of constitutionality (that is, the government does NOT enjoy the presumption that the statute is constitutional). Thus, it applies a stricter standard of review (higher level of scrutiny) b. The S. Ct. will apply STRICT SCRUTINY when the statute applies to: i. Legislation that appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments, which are deemed equally specific when held to be embraced within the 14 th Amendment. 1. Actions/Statutes that on their face seem to violate the bill of rights ii. Legislation which restricts those political processes such as voting, expression, and political association, 2 which can ordinarily be expected to bring about repeal of undesirable legislation. iii. Statutes directed at a particular religious, national, or racial minorities. ii. Martin v. Hunter’s Lessee ―Yes VA there is appellate jurisdictions‖ 1. Boils down to a Federalism issue. Virginia says the Constitution sets up a system where there are two separate and co-equal systems (system with state S. Ct. and a federal system with USA S. Ct. at the top). 2. Types of Interpretations (how the S. Ct. reviews the case) a. Textual Approach - Look at the plain text of Article 3 of the Constitution Art. 3. i. Based on Art. 3 of Constitution, the S. Ct. has appellate jurisdiction all the time. Thus, the S. Ct. has the power to review decisions over state courts, even state S. Ct. b. Design of the Constitution – looks at broader design of Constitution as to how the power is divided. i. The spirit and design of Constitution says that the S. Ct. has power over State Supreme Courts. 1. Supremacy Clause says the federal law is supreme. c. Teleology – If outcome of legal issue is not clear from text or design, then look at the two principle outcomes and decide which one better serves or advances the goal of the Constitution. i. Teleological part dealt with looking at the broader implications for a course of action. 3. Holding: S. Ct. has appellate jurisdictions over constitutional issues decided by State supreme courts.(S. Ct. can review State S. Ct. decisions) c. Political Question Doctrine i. Baker v. Carr (Lead case on political question doctrine) 1. Issue: Whether Tennessee’s mal-apportionment is a justiciable issue. 2. Rule: a. The mere fact that the suit seeks protection of a political right does NOT mean it presents a political question. b. 2 dominant considerations for determining whether a question falls within the political question category: i. Separation of Powers: the appropriateness under the system of government of attributing finality to the action of the political departments ii. No judicially manageable standard (that is, lack of satisfactory criteria for a judicial determination) c. A political question is essentially a function of the separation of powers. Prominent on the surface of any case 3 held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question. d. Guaranty Clause claims involve those elements which define a "political question," and for that reason and no other, they are nonjusticiable. The nonjusticiability of such claims has nothing to do with their touching upon matters of state governmental organization. 3. Holding: a. S. Ct. holds that it is a justiciable issue, thus a non-political question. b. S. Ct. further holds that the claim does NOT rest upon NOR implicates the Guarantee Clause. i. Rather the S. Ct. says that the claim deals with the 14 th Amendment’s Equal Protection Clause, which protects individual rights and liberties. The Guarantee Clause just guarantees a certain structure of government. ii. The bases for finding a political question: Baker identifies a variety of bases for finding an issue NON-justiciable. 1. A “textually demonstrable commitment” of the issue to one of the political branches a. Hypo: Disaffected group of people in Fla. are mad about location of capitol of Fla. They want to move it to Orlando. So they set up own capitol in Orlando and Fla. AG is upset. Fla. AG decides to prosecute the group and are convicted and Fla. S. Ct. affirms and then appeals the USA S. Ct. This is like Luther v. Borden which dealt with the Guarantee clause under Constitution. The S. Ct. will not get involved with Fla. incident because it is political in the larger sense in that it should be resolved by other branches, not the judicial branch. This is a ―textually demonstrable commitment‖ of the issue to one of the political branches type issue – that is, under the Constitution it is the Legislature’s or Executive’s job to resolve it. i. Luther v. Borden: the kinds of considerations that bear on what is a republican form of government is a question for the political branches to resolve. There is 4 nothing in the Constitution or in judicial reasoning to tell a court what is a republican form of government. Moreover, there is a policy issue and policy issues are not usually for the courts to deal with. Legislature and Executive deal with policy questions. b. Nixon v. United States i. Recall that political questions are non-justiciable. ii. S. Ct. HELD that there was a political question and thus a non-justiciable issue. In sum, S. Ct. rejects Judge Nixon’s claim. iii. Prof. notes that the case gives illustration of the internal dynamics of the Court. c. Powell v. McCormack i. Powell was excluded from the House. ii. S. Ct says it is a justiciable because the House seating involves an interpretation of the Constitution and is within the court’s power under Marbury to interpret it. iii. S. Ct. holds as long as Powell meets requirements set out in the Constitution, he cannot be excluded from the House. iv. Rule: The S. Ct. has the power to interpret the text of Constitution as it relates to other branches of government without infringing upon them. v. Trend: The S. Ct. will be willing to rule on issues that seem political, IF inaction would result in subversion of the political process itself vi. Case Resembles Baker 1. Court relied on a specific Constitutional provision to get judicial standing. 2. Similar to Baker since a political power has been subverted the court had to intervene 3. Court had to step in because anti-democratic process of excluding members is dangerous – there would be backlash if S. Ct. does not step in d. Gilligan v. Morgan – Kent State shootings case i. Wanted a decree forcing Ohio to clean up the Ohio National Guard. S. Ct. said that it would not get involved. ii. S. Ct. uses a Texual Approach: Art. 1, § 5, Cl.15 relegates authority over state militia to Congress, resulting in a Political Question 1. S. Ct. looks to Article 1 Section 8 and says that it is an issue for another branch. 5 iii. Opposite of Baker: Where S. Ct. could have brought up textual authority, BUT instead emphasized lack of standards. 2. Foreign Affairs a. When the S. Ct. is confronted with cases concerning political questions connected in some way to foreign affairs, the S. Ct. is quite deferential to Congress and the President. b. Goldwater v. Carter i. S. Ct. said that the justices do NOT have judicial principles to determine, one way or another, the issue of whether Congress should be involved in the termination of a treaty. c. Notes: The Political Question Doctrine excludes from judicial review those controversies which revolve around policy choices and value determinations constitutionally committed for resolution to the halls of Congress or the confines of the Executive Branch. As Baker v. Carr held, the courts have the authority to construe treaties and executive agreements, and it goes without saying that interpreting congressional legislation is a recurring and accepted task for the federal courts. 3. No Justiciable standards a. The primary ground on which the S. Ct. has found a case to involve a non-justiciable question is that there are NO “judicially cognizable standards‖ by which to assess the claim of unconstitutionality. In order to say whether there is a political question the court has to examine BOTH the relevant constitutional provision AND the plaintiff’s legal claim: Does the former (relevant constitutional provision) set out criteria by which a court can assess the latter (P’s legal claim)? IF it does NOT, the question is labeled ―political.‖ 4. Validity of Laws/Time for approving Constitutional Amendments (pg 132 casebook) a. Coleman v. Miller i. Concerned the Kansas passing of a vote in favor of Constitutional Amendment many years after it was proposed. S. Ct. said that they would not rule on it. They said that there was no guideline for a reasonable time – any time Ct. picked as a reasonable time would be arbitrary and they would in essence be imposing their views. S. Ct. said that the Legislature should come up with the standards. Basically, S. Ct. concluded that “reasonable time” question was NOT justiciable. d. Justiciablity – derived from Article 3 Section 2 ―cases and controversies‖. Note that State courts are NOT bound by Article 3 and thus if States want, they can have their courts issue advisory opinions to other courts within the state. Also, Art. 3 Section 2 forbids the courts from invalidating legislative or executive 6 action merely because it is unconstitutional. The courts may rule ONLY in the context of a constitutional case – Implications: courts may NOT issue ―advisory opinions‖; may NOT decide ―political questions‖; must have before them someone with ―standing‖ OR with some kind of personal stake in the controversies; AND may NOT decide issues that are EITHER ―premature‖ OR ―moot‖. i. Political question doctrine 1. Political questions are non-justiciable questions; thus, the Court will never decide a case dealing with a political question. 2. Note that those listed below MAY be decided in certain circumstances – it depends on the facts and other circumstances. ii. Advisory opinions 1. S. Ct. is constitutionally forbidden to issue ―advisory opinions‖ – opinions on the constitutionality of legislative OR executive actions that did NOT grow out of a case or controversy. 2. Even if a federal court has jurisdiction over the subject matter of a case, it still might to REFUSE to hear the case. Whether the court will hear the case (i.e. whether the case is justiciable) depends on whether a ―case or controversy‖ is involved and on whether other limitations on jurisdiction are present. 3. Muskrat v. United States a. The S. Ct. dismissed the case because it thought that the Indians were just attempting to get an advisory opinion, which is something the Court does NOT do. i. Lack of Adverseness: Court said that the USA did NOT have an adverse interest to the Indians. Thus, S. Ct. did NOT rule on the case. ii. Lack of Definiteness: What is usually missing in a request for an advisory opinion is the concrete factual background that lets the Court know what it needs to rule on. When parties seek advisory opinions the Court does NOT know what other factual case they are ruling on; it does NOT know or is aware of the exact question it is ruling on. iii. Lacks injury and thus ruling would be advisory. iii. Ripeness 1. Very closely related to Advisory Opinions and Ripeness. 2. Ripeness: the parties are adverse to each other BUT it is NOT entirely clear what is the exact dispute or what facts are actually in dispute. In short, S. Ct. is saying that it is not ready to deal with the issue now, but may deal with it in the future. a. The federal courts will NOT hear a case UNLESS the P has been harmed OR there is an immediate threat of harm. b. Ripeness bars consideration of claims BEFORE they have been developed. 3. United Public Workers v. Mitchell 7 a. Declaratory relief – what the Court says is that it has enough facts to consider the question as a case or controversy and thus will rule on the issue presented. b. Declaratory requests are usually denied for the reasons of ripeness. c. The S. Ct. did NOT issue declaratory relief because the case was NOT ripe. The Ps had NOT actually done anything that was in dispute. Thus, the Court did NOT have a satisfactory opinion of what the case was actually about. i. RULE: Must first break the law to get a ruling on its constitutionality. d. Separation was the bigger issue that the S. Ct. does NOT want to rule on unless it has to. 4. Rescue Army v. Municipal Court a. Aswander rules –The Rule describes the principled basis for this – the court will go out of its way to avoid ruling on the Constitutionality of certain issues. i. E.g.: S .Ct. will not rule on case if the record presents some other ground for disposing of the case without confronting the constitutional question presented by the case. b. Doctrine of Constitutional Doubt: IF there are 2 interpretations of the constitutionality of a statute – 1st interpretation will cast doubt on its constitutionality and the 2nd interpretation will not. In that case the S. Ct. will error on the side of avoiding the interpretation casting doubt on the Constitution. In short, will rule in favor of the interpretation that does not question the constitutionality of the statute. iv. Mootness 1. Mootness bars consideration of claims AFTER they have been resolved. a. When the dispute is over; the issue is moot. It is the flip side of advisory opinion and ripeness. b. Mootness: IF events occurring after the filing of a suit have deprived the litigant of an ongoing stake in the controversy, THEN the issue is moot; thus, any ruling would NOT have a meaningful impact on the parties. 2. DeFunis v. Odegaard a. The S. Ct. held the issue was moot because no matter what it does it will not affect DeFunis who was about to graduate. In the case of mootness, the court split. Here some say the case was not moot. b. Whether the Justices will find the case moot is based on how they perceive the function of the judiciary: 8 i. Private Law Model: Narrow view that the S. Ct. should only resolve individual, clear, and present disputes/issues. ii. Public Values Model: The S. Ct. should provide a coherent interpretation of the law, of which law suits are the vehicle. IF there is still ambiguity, then the Court should clear it up. 3. MOOTNESS RULE: A federal court will NOT hear a case that has become moot; a real, live controversy must exist at ALL STAGES OF REVIEW, not merely when the compliant is filed. a. EXCEPTIONS: i. Capable of Repetition but Evading Review 1. Where there is a reasonable expectation that the same complaining party will be subjected to the same action and could again be unable to resolve the issue because of the short duration of the action (i.e., where the controversy is capable of repetition yet evading review), the controversy will NOT be deemed moot a. E.g.: issue concerns events of short duration (pregnancy/abortion, elections, divorce actions) b. Roe v. Wade is an example of this exception to mootness. ii. The case is moot because the D voluntarily changed his position BUT NOT permanently changed his conduct 1. D voluntarily stops the offending practice, BUT is free to resume it. iii. Collateral consequences of D’s conduct will result. v. Standing (based in Art. 3 of the Constitution) 1. Standing is a threshold requirement. 2. RULE: The S. Ct. will NOT decide a constitutional challenge to a government action UNLESS the person who is challenging the government action has ―standing‖ to raise the constitutional issue. A person has standing ONLY IF she can demonstrate a concrete stake in the outcome of the controversy. a. Have to have a party that is currently suffering injury from the action they complain about. In Article 3 terms, there needs to be a case or controversy. 3. With regard to standing, the court is dealing with the ―who‖: whether that party is the proper person on this set of facts to bring this claim and present it to the court. 9 4. When evaluating standing, assume that the person has a valid claim. 5. RULE: Article 3 requires (1) An injury in fact that (2) Is due to the D’s behavior AND (3) Is likely to be redressed by a decree in the P’s favor. 6. Prove standing by 3 ELEMENTS found in Art. 3 a. Injury in fact – this is the threshold requirement. It requires a demonstration of injury. The P has to have suffered an injury that the court recognizes. Have to be able to attribute injury to action you are challenging. Must show injury in fact to have standing. Injury is core requirement of standing. i. RULE: To have standing, a person must be able to assert that she is injured by a government action OR that the government has made a clear threat to cause injury to her if she fails to comply with the government law. Some specific injury must be alleged, AND it must be more than the merely theoretical injury that all persons suffer by seeing their government engage in unconstitutional actions. ii. RULE: the P MUST litigate on the basis of injury to him or her; it is up to third parties to litigate their own claims. iii. RULE: the injury in fact requirement is usually met by those who can show a sufficient threat of future injury. This threat MUST be real and immediate rather than merely speculative and hypothetical. iv. Prudential requirements are ―judicially selfimposed limits on the exercise of federal jurisdiction. Prudential requirements, NOT based on Article 3 and subject to congressional override, require that the P’s injury : 1. Be arguably within the zone of interests protected or regulated by the statutory or constitutional provision at issue AND 2. NOT be too generalized (that is, be particular and NOT shared by all or almost all citizens. b. Attributability: must be able to attribute the complained of injury to the government action. In other words, injury has to be fairly traceable to the government’s action (causation). Thus, if challenging the constitutionality of statute, then has to show your injury can be attributed to the statute. 10 c. Redressability: have to demonstrate that the relief you are seeking is going to address the injury which you are complaining about. This requirement is closely related to attributability. If you CANNOT attribute the action to the injury, then you CANNOT get relief related to the injury. Thus, redressability is closely linked to redressability. 7. Types of standing a. Individual Standing: this is the prominent one – the one most seen. The government has infringed on some individual constitutional right the party directly enjoys. i. Warth v. Seldin ―Snob Zoning Case‖ 1. S. Court holds that none of the complainants have standing to challenge the ordinance. a. S. Ct. found that the claimants failed to show attributability b. Note that the S. Ct. does NOT rule on the merits. It just says that the petitioners did not have standing. 2. The S. Ct. says it is a matter of attributability/redressability because complainants will continue to suffer from the same injury even if Court invalidates the ordinance because complainants did not show that they could even afford to live in Penfield. b. Other category (Taxpayer or Citizenship standing): there is very little content on this. There is a notion of standing based on being a taxpayer or a citizen. The government owes a duty to that person as a citizen or taxpayer to act in conformity to the Constitution. Found to exist under the establishment clause. i. United States v. Richardson 1. S. Court holds that Richardson lacks standing to bring the claim. Note that this is NOT a ruling on the merits. Rather it is a ruling that says Richardson does NOT have standing to bring the claim because his injury is so widespread that the legislature is the appropriate forum for seeking relief. 2. Why does Richardson lack standing? S. Ct. says that he does NOT have a concrete injury. a. The problem of widely diffused injuries is associated with that of taxpayer standing. 11 3. Prof. says the S. Ct.’s view in Richardson is the view they take today – that is S. Ct. is hostile to the idea of taxpayer/citizenship standing. c. Statutory Standing i. When Congress creates standing, it is deeming that a certain injury or a certain class of persons will be hurt or affected. E.g. Environmental statutes – it may say that any person who is hurt by the statute will be able to come to court and raise a claim under the statute. It is NOT because of a constitutional right, rather Congress has ―filled a gap‖ in that they are allowing people to assert a statutory right. 1. Prof.: Generally, it easier to bring a statutory claim rather than a constitutional claim. 2. When the S. Ct. allows a person to bring a constitutional claim and there are nonconstitutional grounds to dispose of the claims, it will – recall this is the Aswander Rules. 3. On the other hand, if S. Ct. allows a person to bring a statutory claim, it is trying to figure out what Congress meant –implement its will – and thus they are not stepping on a coordinate branches power. ii. S. Ct. has said that Congress does NOT have infinite power to create standing. d. Third Party Standing i. Rule Against Third Party Standing: To have standing, you have to complain about your own constitutional rights being violated. You may NOT challenge a law or bring a claim based on another’s rights being violated. 1. S. Ct. has always said this is a prudential rule and thus the S. Ct. can waive it when it deems necessary. 2. The rationale stems from the nature of the adversary system. Another rationale is the private law model – the S. Ct. does NOT want to pass on the constitutionality of an issue if it does NOT have to. 3. E.g. S. Ct. inclined to waive third party standing when the third person is in a difficult or impossible position to bring a claim to assert their own constitutional rights. 12 ii. EXCEPTIONS: 1. P may assert third-party rights WHERE he himself has suffered injury AND a. Third parties find it difficult to assert their own rights (NAACP v. Alabama); OR i. Significant obstacle to the third party that prevents them from bringing their claim. E.g. Piece v. Society of Sisters (referred to in another case) – S. Ct. let the society bring the claim on behalf of the parents who were not allowed to send their children to parochial schools. ii. Griswold and Eisenstadt were cases that the S. Ct. also allowed another person to assert the constitutional rights of others. Griswold: Certainly the accessory should have standing to assert that the offense which he is charged with assisting is not or cannot constitutionally be a crime iii. There is a common thread to these cases and that is to say the party who is in court, the litigant, is somebody who makes the exercise of the other parties rights possible that is, the litigant is an indispensable party. b. The injury suffered by the P adversely affected his relationship with third parties, resulting in an indirect violation of their rights Craig v. Boren i. Note that there is a difference between having standing to be in court and having standing to bring a specific claim. 13 ii. Prof.: When you are in court asserting 3rd party standing, you are saying that the party has been injured and that you are also injured. iii. This case is an example of an issue when standing is given to a third party when an individual could not assert own right in a timely manner Barrows v. Jackson iv. Case built upon Shelly v. Kraemer which held: A court CANNOT specifically enforce a racially based covenant. v. Barrows deals with suing for damages based on breaching racially based covenant. The problem with standing deals with rule against asserting third party rights (standing). Here the person who is involved is White and is trying to assert Blacks constitutional rights. The S. Ct. grants standing and allow the White seller to assert the rights of the Black buyers. In sum, the White seller is the most suitable party to assert the Black buyer’s constitutional rights. 2. Associations: as seen in NAACP v. Alabama and Hunt. a. Hunt v. Washington State Apple Advertising Commission i. RULE: An association has standing to bring a suit on behalf of its members WHEN: (1) its members would have standing to sue in their own rights; (2) the interests it seeks to protect are germane to the organization’s purpose; AND 14 II. (3) NEITHER the claim asserted NOR the relief requested requires the participation of individual members in the lawsuit. ii. Prof. notes that the last element of the rule is the one that usually causes the most problems for association to meet. iii. The test in Hunt reflects one of two models of the judiciary: it shows a permissive test that embodies the ―public values model‖ – the S. Ct. will, as a general rule, will let associations bring suit on behalf of members as long as meets the three part test in Hunt. Congressional Power Under the Commerce Clause and Related Sources of Regulation a. Scope of Congress’s powers under Article 1 – Necessary and Proper Clause: grants Congress the power to make all laws necessary and proper (i.e. appropriate) for carrying into execution any power granted to any branch of the federal government. The Necessary and Proper clause is NOT a basis of power; it merely gives Congress power to execute specifically granted powers. a. McCulloch v. Maryland i. Landmark decision and tells about implied or incidental powers in the ―Necessary and Proper Clause‖. ii. Issue: Does Congress have the power to incorporate a bank. 1. The reason we have this challenge is because there is nothing explicit in the constitution that confers that power to congress (NO express power for congress to create a bank). Thus, the power must be inferred from the constitution. The way the Court frames the question is that if Congress does indeed have the power to create and incorporate a bank of the USA, the power has to come from the necessary and proper clause. iii. Holding: Congress is given a wide range of powers under the Art. I § 8 necessary and proper clause, Congress can charter a bank under this clause and the state has no right to infringe on this power and tax the bank thus destroying it. iv. Marshall’s Reasoning 1. You can achieve a goal in a way that is NOT, strictly speaking, that necessary – necessary, here means an essential or indispensable or the minimum required. 15 2. When Marshall interprets the term ―necessary‖ in the necessary and proper clause he means ―no more than that one thing is convenient, or useful, or essential to another‖. Basically, it means convenient – pg. 65 of casebook. 3. Marshall rejects the modern notion of necessity (as understood by us today, which was the notion Maryland had argued) as to the meaning in the necessary and proper clause. a. Marshall thinks that the term does NOT restrict Congress to things that are necessary as we understand the term today. 4. RULE: Should Congress, in the execution of its powers, adopt measures which are prohibited by the constitution; or should Congress, under the pretext of executing its powers, pass laws for the accomplishment of objects not entrusted to the government; it would be duty of this court to say that such an act was not the law of the land. But where the law is NOT prohibited, and is really calculated to effect any of the objects entrusted to the government, to undertake here to inquire into the degree of its necessity, would be to pass the line which circumscribes the judicial department, and to tread on legislative ground. a. In other words, Court cannot tell Congress what is the least needed to accomplish a goal. It would drag the court into policymaking which violates the principle of separation of powers. 5. Marshall argues that the constitution draws the broad lines and does not spell out every operational detail. Thus, it is a constitution that is being expounded. a. Recall the purpose of the Constitution is to enumerate the most fundamental principles and powers you want a government to have throughout the ages. Whereas the legal codes (statutes) lay out the specific details and the specific powers. This is essentially a teleological argument. 6. The framers did NOT intend the necessary and proper clause to be construed strictly. It is located in a section where powers are given, NOT where powers are restricted as in other sections. 7. Marshall provided a broad interpretive guide to federal legislative power (PRINCIPLE/TEST): a. Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional. i. ―Plainly adapted to that end‖ language is NOT a strict test ii. There is a very strong presumption of constitutionality of statutes UNLESS clearly prohibited. 16 8. Rational Basis Test: IF the means the legislature has chosen are rationally related to some legitimate goal then the law will be held constitutional b. COMMERCE CLAUSE – Art. 1, § 8 – says that Congress has power to regulate interstate commerce. i. There are 2 different dimensions to the commerce clause 1. What is apparent on its face: Explicit grant of power to Congress allowing it to regulate interstate commerce. 2. Dormant Commerce clause: there exists within the commerce clause an implied limitation on what the States can do. ii. Note: Political Constraints versus Judicial Enforcement 1. Courts may invalidate laws that are consistent with the proper allocation, and Congress may enact laws inconsistent with the proper allocation despite political constraints. Note also that the courts have the opportunity to review ONLY laws Congress has enacted. iii. Definition of “Commerce” 1. Includes Basically All Activity Affecting Two or More States a. In Gibbons v. Ogden, Marshall defined commerce as ―every species of commercial intercourse which concerns more states than one‖ and included within the concept virtually every form of activity involving or affecting two or more states. b. Gibbons v. Ogden Landmark case dealing with internal limits of the Commerce Clause. i. S. Ct. adopts an expansive notion of what constitutes commerce after looking at two prongs: 1. What constitutes commerce a. Expansive view of Congress’ power to regulate commerce. Commerce is ―commercial intercourse‖ between nations, and parts of nations, in all its branches, and it is regulated by prescribing rules for carrying on that intercourse. 2. What is ―among‖ the states a. ―Among‖ may properly be restricted to that commerce which concerns/affects/involves more States than one. b. The Commerce Clause does NOT extend to that commerce which is completely internal and which does NOT affect other states. Thus, the completely internal commerce of a 17 state may be considered reserved for the State itself. ii. Within the commerce clause are internal limitations, which are not very substantial in view of the Court’s expansive view of commerce. iii. 2 Limits to the Commerce Clause 1. Internal Limits - The Clause might define a specific subject matter (that is, what constitutes commerce), such that Congress could not ―regulate‖ anything but ―interstate and foreign commerce‖. a. Marshal’s opinion considers 3 internal limits that might be found in the commence clause. i. Commerce ii. ―Among the several states‖ iii. Regulation 2. External Limits a. The Clause might allow Congress to do anything reasonably regarded as regulation of anything reasonably regarded as interstate or foreign commerce, BUT other provisions of the Constitution, such as the first amendment, might bar the exercise of a power concededly granted. iv. One limitation: Any power exercised under Art 1 § 8 OR carrying out any of the enumerated powers will be stuck down IF its ends and means are NOT constitutional. 1. This flows from the RATIONAL BASIS TEST in McCulloch v. Maryland, which is a. First show congress is exercising enumerated power under a constitutional provision, AND b. Second, the Congressional purpose is rationally related to the object of Congress (the means has a rational/reasonable and legitimate link to the ends) AND the grant does NOT violate another constitutional provision (NO internal or external limitations) 2. If both prongs are met then the S. Ct. will uphold the statute. 18 3. When the rational basis test is met the conduct does not have to be commerce specific v. The power of Congress must be exercised within the territorial jurisdiction of the several states. Congress has the power to prescribe the rule by which commerce is to be governed. This power, like all other powers vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges NO limitations, OTHER THAN are prescribed by the Constitution. Congress has the power to regulate commerce among the several states and with foreign nations. 2. Includes Transportation or Traffic a. The S. Ct. has consistently regarded transportation or traffic as commerce whether or not a commercial activity is involved i. Vehicular Transportation NOT required 1. Any transmission across state lines, such as electricity, gas, telegraph, telephone, TV, mail, etc., will constitute interstate commerce. ii. “Substantial Economic Effect” 1. The S. Ct. has sustained Congressional power to regulate any activity, local or interstate, that EITHER in itself OR in combination with other activities has a “substantial economic effect upon,” or “effect on movement in,” interstate commerce. a. E.g.: In Wickard v. Filburn the S. Ct. held that Congress can control a farmer’s production of wheat for home consumption. Rationale – Cumulative effect of many instances of such production could be felt on the supply and demand of the interstate commodity market. 2. Power NOT Unlimited a. The S. Ct. made clear that the power of Congress to regulate commerce, although very broad, does have limits. To be within Congress’s power under the Commerce clause, a federal law must EITHER: 19 i. Regulate the channels of interstate commerce; OR ii. Regulate the instrumentalities of interstate commerce and persons and things in interstate commerce; OR iii. Regulate activities that have a substantial effect on interstate commerce b. IF Congress attempts to regulate NON-economic (that is NONcommercial) intra-state activity, the federal government MUST prove to the S. Ct. that the activity in fact affects interstate commerce. It is unlikely that the S. Ct. will allow Congress to use its commerce power to regulate NON-economic activity occurring in a single state, particularly IF the activity has historically been regulated by local law. i. E.g.: United States v. Lopez – federal statute barring possession of gun in school zone is invalid; United States v. Morrison – federal civil remedy for victims of gendermotivated violence invalid. iv. Champion v. Ames (The Lottery Case): Expanded Interstate Commerce Clause 1. Congress’s purpose in prohibiting the activity of shipping lottery tickets between the states is a moral purpose. So, Congress is really concerned about a moral problem. a. DIFFERENT from Gibbons where Congress had a commercial purpose. 2. Congress can pursue goals and purposes that are commonly associated with Police Powers (police powers concern health, morals, and well-being). Thus, Congress can do so as long as the means are granted in the Constitution. S. Ct. does NOT confine Congress to regulating only commercial goals. 3. Even if Congress’s motive was corrupt, as long as the ends and means are legitimate, then what Congress does is legitimate. 4. As a general proposition when courts review constitutionality of legislations, the courts do NOT looks at the motives/intent of the 20 legislature. Also, the courts are NOT going to question the wisdom of the legislation as long as there is a plausible basis that the means and the ends are legitimate. a. The court will look at the announced goal of the statute and determine whether there is a reasonable or legitimate link between the statute and the goal of the statute. i. This is because it is hard to know the motive and it is hard to impute that motive to single legislators or even groups of legislatures. Also, looking at the motives of legislatures (thus going beyond the face of the statute) infringes on the principle of the separation of powers. ii. If Congress’s actions are injurious or corrupt, that problem is resolved by the political process. 5. RULE: The power of Congress to regulate commerce among the states is plenary, is complete in itself, and is subject to NO limitations EXCEPT such as may be found in the Constitution. v. Houston, East & West Texas Railway v. United States (The Shreveport Rate Cases) 1. There was price fixing for shipping of goods between particular points. The Interstate Commerce Commission (note – no longer exists) says that there cannot be price discrimination and thus the railroad must charge the same price for interstate and intra-state shipping. 2. Congress’s authority, extending to these interstate carriers as instruments of interstate commerce, necessarily embraces the right to control their operations in all matters having such a close and substantial relation to interstate traffic that the control is essential or appropriate to the security of that traffic, to the efficiency of the interstate service, and to the maintenance of conditions under which interstate commerce may be conducted upon fair terms and without molestation or hindrance. a. Closes and Substantial Relationship Test - Congress can regulate an intra-state function IF it is so closely and substantially relates to interstate commerce. i. This is DIFFERENT from Gibbons v. Ogden and Champion v. Ames (lottery case) 3. RULE: Whenever the interstate and intrastate transactions of carriers are so related that the government of the one involves the control of the other, it is Congress, and NOT the State, that is entitled to prescribe the final and dominant rule. 4. RULE: Congress posses the power to foster and protect intrastate commerce and to take all measures necessary or appropriate to that end, although intrastate transactions of interstate carriers may thereby be controlled. vi. Stafford v. Wallace - ―Stream of Commerce case‖ 21 1. Court looks at the whole transaction. The broader transaction is implicated – the shipping, slaughter, and sale of cattle throughout the USA. 2. S. Ct. says Congress is entitled to its judgment; the Court only looks to see if there is a rational basis for the legislation. 3. Court looks at the big picture and relies on Shreveport since the selling of cattle was in the ―stream of commerce‖ it had a close and substantial relationship to Interstate Commerce and thus court allows congress to regulate it. c. Limitations of Congressional Power i. Dealing with another trilogy of commerce clause cases – THESE 3 CASES ARE NOT GOOD LAW 1. In these cases are representative of significant and Formalistic requirements on Congress to regulate Commerce. a. Formalist – Court relies on rules and mechanisms that may be out of touch with reality (Shreveport and E.C. Knight) b. Functionalist: Court takes a realistic approach. 2. United States v. E.C. Knight Co. NOT GOOD LAW a. Case demonstrates ―Formalism‖ b. S. Ct. applied Ashwander Principal because the S. Ct. will go out of their way to NOT deal with the constitution and rules on constitutional issues. c. The S. Ct. did NOT strike down the Sherman Act. Rather it invoked the Principle of “Constitutional Doubt‖ (IF one of the interpretations of the statute raises doubt and the other interpretations does not, THEN the S. Ct. will select the one that is without doubt). d. S. Ct. said interpreting the Sherman Act in this way (saying that Congress could control manufacturing of sugar) was overstepping Congress’s authority because Congress, in this case, was trying to control the production/manufacture of sugar. e. The S. Ct. did not regulate because they felt the Act did not involve commerce; rather it involved manufacturing. i. ―Commerce succeeds manufacture and is not a part of it.‖ ii. Holding: Sherman Act did NOT reach the monopoly because the Constitution did NOT allow Congress to regulate ―manufacturing‖. 3. Hammer v. Dagenhart (The Child Labor Case) NOT GOOD LAW a. Congress passed law prohibiting the flow of goods across state lines that were produced as a result of unfair child labor. b. Holding: S. Ct. said the act exceeded congressional power, and thus invalid, because it regulated manufacturing and NOT commerce. 22 i. Police Power is a State power, NOT federal power. Thus, the States have to regulate the child labor, but Congress may not ban shipment of production in order to control the local labor market ii. Congress has NO power to require the States to exercise their police power so as to prevent possible unfair competition. Congress does not have the power to destroy unfair competition in the States c. Court draws distinction between Commerce and manufacturing i. Commerce is interstate, whereas Manufacturing is local. Thus, Congress CANNOT regulate manufacturing ii. RULE: If the regulation falls in the category of/effects production, then Congress has exceeded its power. d. For the S. Ct., the congressional regulatory power over interstate commence, while ample, was limited by the 10 th amendment. In this view, the powers reserved to the States served to limit the powers granted to the national government. This was the Doctrine of Dual Federalism. e. Comparison to other cases i. Different than Champion v. Ames (Lottery case). Recall in Champion v. Ames (the Lottery Case) that Congress was trying to restrict lottery tickets at the local level. 1. In Champion the activity was intrinsically harmful whereas in Hammer it was not. In Hammer we are talking labor, not product! 1. On moral grounds, Congress can regulate lottery tickets – the goods themselves Congress is trying to restrict in interstate commerce are harmful. 2. Thus, in this case (Hammer) it is different because Congress is trying to exercise a power of regulation that does NOT fall to the federal government BUT RATHER falls to the State. ii. Similar to EC Knight 1. Federal government prohibited from regulating labor and production in a practical sense. 2. There is a parallel to E.C. Knight (S. Ct. tried to break up the sugar manufacturing monopoly) – the consequence of the Knight decision was that the monopoly succeeded 23 because no one was able to rein in the monopoly. Practical effect of both cases is to thwart federal regulation. f. This case is indicative in the supreme courts shift away from Shreveport relationship test and towards a less permissive test g. Case demonstrates ―Formalism‖ 4. Carter v. Carter Coal Co. NOT GOOD LAW a. Government set coal prices and enacted regulation under the Interstate Commerce Clause in an attempt to stabilize production of the coal market when the industry was in trouble. There was a provision that dealt with wages and allowed local boards to set wages and max hours employees could work b. Holding: Congress has exceeded its power to regulate under the Commerce Clause, and thus the Act is invalid, because it does NOT have a direct affect on interstate commerce; rather it only had an indirect affect. i. S. Ct. does NOT apply the relationship test. Instead, the Court used a direct/indirect test. ii. Here Court found that the regulation affected local production. Congress should only have been involved after the production when the coal was shipped between the states. Thus, Congress was trying to reach a local activity. iii. Note: If one were inclined to sustain this legislation, other authority (Shreveport case, for example) could have been relied upon. c. S. Ct. says it a NOT an absolute rule that when congress results production or local activity that the regulation will be struck down. RATHER, it is a direct/indirect test. There are a number of steps of causation that have to be looked at. i. Previous test used: ―close and substantial‖ – court will take into account the local activity’s impact on interstate commerce. ii. Direct/Indirect test: IF the effect is indirect, (that is it, it does NOT matter the degree of the effect,) THEN it falls beyond Congress’s power to regulate interstate Commerce. 1. It is a Formalist approach 2. ―Direct‖ – implies the activity or condition invoked or blamed shall operate proximately – not mediately, remotely, or collaterally – to produce the effect. The distinction between direct and indirect effect turns 24 entirely upon the manner in which the effect has been brought about. 3. The test does NOT measure the extent of the effect, but rather the relationship. Thus, rejects Shreveport’s close & substantial test. 4. This case is indirect because the legislation does NOT exert a direct effect on commerce. 5. 2 Part Test a. Commerce or production? i. Production – NO power to regulate ii. Commerce – Power to regulate b. Direct or indirect? i. Direct – Power to regulate ii. Indirect – NO power to regulate d. Issues between employee and employer are local in nature e. Federal Power does not begin UNTIL Interstate Commerce intercourse begins f. Cannot be Necessary and Proper IF it violates the Commerce Clause d. New Deal Response to the Commerce Clause: Modern trend i. NLRB v. Jones & Laughlin Steel Corp. 1. Congress passed the national labor relations act which allowed for employee collective bargaining to prevent strikes; congress said the strikes deterred commerce 2. Scope of the Act a. Principle: Acts which directly burden or obstruct interstate or foreign commerce, or its free flow, are within the reach of the congressional power. It is the effect upon commerce, NOT the source of the injury, which is the criterion. 3. RULE: IF activities that are intra-state in character when considered separately have such a ―close and substantial relation‖ to interstate commerce that their control is essential or appropriate to protect that commerce from burdens and obstructions, THEN Congress has the power to exercise that control. 4. NO longer necessary to use rigid conceptions like ―direct or indirect‖, RATHER the Court will use a permissive standard/approach like ―close and substantial.‖ 5. Close and Substantial” Test a. 2 step analysis: 25 i. 1st Step - Congress must rationally believe that they are regulating interstate commerce. ii. 2nd Step – is there a plausible connection between the mechanism Congress has set up and the aim (the end) congress has given. 6. Holding - A major strike would affect Interstate Commerce, this relationship is enough to for the court to allow the legislature to regulate. 7. Relation to other cases a. If court applied Carter v. Carter Coal - the narrow approach would make the Act unconstitutional because it would be looked at as regulating production i. Court changes position here and uses close and substantial relationship test 1. If there is a close and substantial relationship between the in-state activity and interstate commerce, congress can regulate it 2. Test reverses Hammer BUT NOT Carter, it just uses a different approach; now there are 2 approaches b. Majority allows a permissive use of the Interstate Commerce Clause. This is similar to the provision rejected in Carter. 8. 2 different kinds of findings on which this case rests a. Congress found that the employers’ not allowing unions or collective bargaining was disrupting interstate commerce. In short, Congress went out of their way to show the there was relation between the act which regulated certain actions and interstate commerce. Although the act focuses on production, the production effects commerce so congress can regulate it b. In this particular case, what happens at Jones has the potential to/does spill over to other parts of the USA. So, the activities of this company can affect others. ii. United States v. Darby (broad and permissive approach to Commerce Clause) 1. D charged with violating the Fair Labor Standards Act which prohibited the shipment of goods by employees paid below minimum wage and under substandard conditions. First the act regulates commerce, second it regulates production. Act attempts to regulate the local conditions under which things are produced a. Under Hammer the FLSA would be unconstitutional. b. BUT S. Ct. upheld the first provision of the Act because it was plausibly related to Congress’s goal. The second provision of the Act is also upheld by the S. Ct. because it 26 was OK for Congress to regulate in-state activity because of its implications for interstate commerce. 2. S. Ct. uses the Protective Principle – as stated in Champion v. Ames (the Lottery case). a. Court asks does this regulate interstate commerce AND is there some rational relation between the regulation of interstate commerce and Congress’s goal which is to make sure people are paid a fair wage. b. “Protective Principle‖ – Congress has the power to regulate interstate commerce in order to protect channels of commerce from being used to do harm (unfair competition) at the local level. i. This does not give congress unlimited power; must still apply the rational relationship test ii. Statute itself must also be constitutional to be applied 3. Congress is presumptively allowed to enact programs that operate on a national scale. 4. RULE: Congress can regulate means or channels of interstate commerce at the source (the state level) in order to prevent harm. 5. S. Ct. OVERRULES Hammer v. Dagenhart (which said that Congress had overstepped it power by regulating production at the state level and thus Congress violated the 10 th Amendment) and reverts to mentality in Champion v. Ames where it can regulate commerce that is injurious or immoral. a. Court now uses a permissive standard and allow a broad regulation (even of moral standards) 6. Court calls the 10th Amendment a ―truism‖ in that it did NOT add anything to the Constitution but rather it just stated a principle already implicit in the Constitution a. In McCulloch v. Maryland, Justice Marshall addresses the 10th Amendment and he said the same thing said in Darby, which is reassuring the states that they retained the powers that they did NOT relinquish. 7. In NLRB v. Jones & Laughlin Steel Corp. S. Ct. went to painstaking lengths to show that a strike at Jones would affect interstate commerce. Note that the Court does NOT do that in Darby. 8. Prof. says that it is a precursor to the doctrine enunciated in Wickard v. Filburn. iii. Wickard v. Filburn 1. Agricultural Adjustment Act set quotas on production of wheat to make farming profitable again when overproduction drove done prices. D exceeded his quota. He does not sell wheat but uses it for animals and family on farm. Very local, very personal use. 27 a. D claims the act exceeds congressional power because product is NOT in stream of commerce i. Would have won under the direct/indirect test 2. Holding - S. Ct. ruled that the imposition of wheat quotas was within Congress’s Commerce clause powers. a. S. Ct. NOT concerned with production v. commerce BUT RATHER S. Ct. moves toward a practical kind of test; Court will actually look at the big picture. Court takes a practical/pragmatic approach. i. If Congress reasonably believes that there is a problem arising out of the wheat over production AND Congresses goal is rationally related to the means, then the Congress has not overstepped its power. 3. Cumulative Impact Doctrine – S. Ct. is in the economic realm. IF federal government regulates an economic activity and each incident taken together would exert a significant impact on interstate commerce, THEN Congress can regulate each and every individual activity that falls with the class without having to show that the specific activity, in isolation, substantially affects interstate commerce. Look at it as a permissible regulation of a class of activities. a. In other words: Congress may look to the impact of numerous people engaged in the similar activity and evaluate the aggregate impact. If congress can regulate a class of activity, it can regulate an instance of that activity in that class (later limited by Lopez) i. S. Ct. will not overrule UNLESS it fails to meet the Rational Basis Test 4. Implications a. S. Ct. will NO longer intervene in economic sphere as it did in Hammer and Carter b. S. Ct. will assume that laws Congress passes because of powers in Commerce clause will have the means related to the ends; that is the legislations is presumed to be rational. i. This was also seen in Perez v. United States (pg. 207 of text book) iv. Perez v. United States 1. Concerned Statute banning loan sharking which D said was a purely local activity and thus out of congress’s regulatory reach. 2. S. Ct. relied on Cumulative Impact Doctrine: S. Ct. realizes that loan sharking is local in nature but the cumulative harm of loan sharking is a valid reason for Congress to pass laws based on Commerce clause. v. Modern Trend: Court is done with rigid classification restrictions on congress’ power to regulate activities under Commerce Clause. S. Ct. 28 rejects artificial classifications, and accepts Cumulative Impact Doctrine. Being a member of the class is enough to justify regulation. e. Protection of Civil Rights and pursuance of non-commercial goals through ICC i. Heart of Atlanta Motel v. United States 1. Motel has a policy of racial discrimination. Title II prohibited discrimination on basis of race where people are served (hotels and restaurants). 2. Issue: whether Congress had the power to enact the law and thus prohibit the Hotel from discriminating (this is a constitutional issue). 3. S. Ct. relies on the Commerce Clause (rather that the Equal Protection Clause of the 14 th amendment) and takes from the rationale of Champion v. Ames (the lottery case). 4. Congress was not so concerned with the effect on interstate commerce, but rather with the act that discrimination is morally wrong. Court reasoned that discrimination had a great impact on interstate commerce in modern times, thus the definition of commerce is expanded. The S. Ct. finds that the Statute is constitutional and concludes that the ends justify the means. 5. Commerce clause sustained Congress’s power to prohibit racial discrimination. Commerce Clause does NOT, in itself, prohibit racial discrimination. Also, since the constitution does not address private behavior (only addresses government powers and limitations on those powers), it does NOT prohibit racial discrimination that is why Congress MUST enact a statute. 6. Big Picture: Does not ban discrimination; Rather, allows congress to attack a moral evil through Commerce Clause as long as a Rational Basis exists. ii. Katzenbach v. McClung 1. Companion case to Atlanta Motel 2. The link between interstate commerce and Ollie’s barbeque is tenuous BUT the S. Ct. does uphold Title II because it was within Congress’s power to regulate interstate commerce a. The interstate commerce connection came from not only the fact that Ollie got meet shipped from out of state BUT ALSO (and more importantly) the fact that it discriminated against blacks. Thus the Court relied on the cumulative affect of all restaurants’ discrimination on interstate commerce; in short the S. Ct. relied on the cumulative effects doctrine. 3. This case is the high-water mark of Congress’s Commerce Clause power. f. Limitations on the Commerce Clause After 60 years of expansions i. United States v. Lopez 1. Concerned Congress’s regulation of firearms via the Gun Free School Zone Act. Government argued that possession of guns 29 within school zones affected learning and thus interstate commerce. S. Ct. found the Act Unconstitutional 2. S. Ct. said it was NOT within Congress’s power to create this Act because they were NOT regulating an economic aspect. a. Majority focuses on fact that carrying a gun is NOT an economic or commercial activity. 3. 3 broad categories of activity that Congress may regulate under its Commerce power: a. Channels of interstate commerce; b. Instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intra-state activities; c. Activities that have a substantial relation to interstate commerce. i. That is those activities that substantially affect interstate commerce. 4. The S. Ct. re-embraces the substantial effects test: for Congress to regulate intra-state commerce it must have a ―substantial relation‖ to interstate commerce. a. Does NOT say that it will NOT allow use of cumulative impact theory; RATHER S. Ct. says that in some circumstances it will use Cumulative Impact Doctrine. 5. SIGNIFICANCE OF THE DECISION a. S. Ct. will focus on the activity – there is a new substantial relationship test and factorial analysis: i. Activity must have an economic or obviously commercial aspect; IF NOT, then the S. Ct. will be skeptical in applying the Cumulative Effects Doctrine. 1. There is NO more of piling of inferences to determine an activity is commercial. ii. There must be a showing of a connection between local activity and interstate commerce iii. S. Ct. will look to see if the activity is traditionally regulated by the State/local law (e.g.: education). 6. Prof.: S. Ct. will consider, when dealing with commerce clause cases, whether the problem requires national legislation. The S. Ct. does NOT want to give Congress plenary power (police power) on the issue. 7. S. Ct. relied on Consequentialism – S. Ct. looks at the consequences of Congress’s free reign to regulate Interstate Commerce, and feels that the expansions of Congress’s power would lead to harsh results. 8. The Court indicates that it does NOT overrule any of the decisions from Jones & Laughlin Steel onward. ii. United States v. Morrison 30 1. S. Ct. struck down civil damages portion of the violence against women act. S. Ct. thought it was a state issue. Reinforced Lopez decision and forced congress to show its findings before passing legislation 2. Violence against women is not economic in nature and its tie to commerce is attenuated. iii. Gonzales v. Raich 1. Case dealt with California law that allowed growing marijuana for medicinal purposes. S. Ct. said that the marijuana may make it into interstate commerce and thus the Federal government can regulate growing marijuana for medicinal purposes. Growing marijuana does NOT have an immediate economic dimension BUT it does have one. Also cannot overlook the drug aspect. g. State Immunity from Federal Regulation i. National League of Cities (OVERRULED) 1. Congress accused of over reaching with the passage of FLSA. The challenge is that the wage requirement for state employees is beyond reach of the Commerce Clause 2. Holding - 10th Amendment barred Congress from making a federal minimum wage and overtime rules applicable to the states a. S. Ct. strikes down extension of FLSA to state and local government employees because it operates to displace the states freedom to structure integral operations in traditional government functions 3. 3-part Test (Questions to ask): a. Is the activity being regulated interstate commerce; OR IF it is intra-state commerce, does it have a substantial impact on interstate commerce, AND b. Does the Act have a Rational Relationship to some legitimate end; AND c. Does the Act violate a provision of the Constitution? 4. The problem was the Act violated the 10 th Amendment. a. Here the S. Ct. says we are dealing with an external limit. b. 10th Amendment forbids the government from telling the states how to structure services. When government tells state how to structure they are intruding on the states c. Regulation cannot intrude on essential state function (police, firemen, etc) 5. Compared to Lopez, in National League of Cities the general concept of commerce does not change BUT it carves out certain activities congress CANNOT reach into like the 10th Amendment. The 10th Amendment limits Commerce Clause power of federal government. 6. Dual Sovereignty: 2 types of government functions (Usery Doctrine) 31 a. Essential - which federal government may regulate such as minimum wage and overtime pay b. Proprietary – Federal government CANNOT exert power over traditional State activities. 7. Note that Garcia overruled National League of Cities. Thus, Garcia is the law. ii. Garcia v. SAMTA 1. The test is: ―Does it unduly impair the traditional governmental functions of the States‖. 2. The effect of imposing the requirements of the LSA would cause the states to spend more than they budgeted for and this was an overreaching of Congress’s power. 3. At the heart of the majority’s opinion is that – What does the 10th amendment mean? Does it provide so type of judicially enforceable standard? Is there substantive limitation against federal government power? Is it a shield to protect states? a. The 10th amendment does protect state sovereignty. b. The 10th amendment as stated in a prior case is a truism – federal government cannot exercise powers NOT delegated to the Federal Government – it is a self-evident proposition. c. Under the 10th amendment, Powers not reserved for the federal government are reserved for the states. 4. Compared to other cases: a. This opinion is the flipside of Caroline Products footnote – idea is that judicial intervention is best reserved for when it is injected in an area where we cannot count on the political process to operate correctly. b. National League of Cities: 10th absolutely protects states vs. Darby: 10th is a truism h. More Expansive Interpretation of the 10 th Amendment i. New York v. United States 1. S. Ct. does NOT overrule Garcia 2. Congress passed a statute compelling the states to dispose of nuclear waste or else pay other consequences. 3. Holding - Court cannot compel state to enact federal regulatory program a. S Ct. does not revive the 10th and calls it a tautology 4. S. Ct. does not rely in 10th amendment. Rather the S. Ct. relies on the principle of federalism. S. Ct. gets authority from the larger picture of federalism and inferences in history and the constitution 5. 2 valid ways to get a state to do something a. Attach conditions to receipt of federal funds b. Cooperative federalism - States can either regulate the activity under federal regulations, or have a federal law preempted by federal regulation i. Either way states keep decision making power 32 II. 6. Different than National League of Cities a. In National League of Cities, the legislation applied to individuals and states in a blanket manner; in New York v. United States, the legislation is only directed at one state. 7. Different than Garcia a. This case deals with a state law, not a blanket authority b. Federal government can take over an entire field, BUT CANNOT force the state to do anything or instruct them in a specific way. That is, it is OK for the state to enact a blanket prohibition BUT federal government CANNOT tell states to enact a specific regulation ii. Printz v. United States 1. S. Ct. struck down provision of the Brady Act because the Court said that the federal government could not conscript state officials to carry out the background checks for perspective gun owners. In sum, it was diverting state resources. Also, the Court was bothered by the muddying of the democratic water - that is, there are not the usual lines of political responsiveness. 2. Similar to New York v. United States in that the federal government CANNOT tell state officials how to carry out a federal program. Executive (Presidential) Power, Other Sources of National Power, the Separation of Powers a. Article 2: Powers of the Presidency and limitations to those powers i. The presidency has a certain institutional advantages over other institutions such as Congress – the presidency has the power of unity. Presidency is a single institution. 1. Unitary Executive Theory: president has complete control of the executive branch. ii. Youngstown v. Sawyer (Steel Seizure case) 1. Truman passes an executive order seizing the steel industry to prevent a mill strike during the Korean War. Mill owners argue President’s order amounts to lawmaking, a function for the legislature. 2. Holding: Majority held that the seizure of the steel was unconstitutional because the seizure amounts to lawmaking by the president, which is beyond his presidential power. a. 2 Sources of Presidential Power - Truman had neither i. Inherent Constitutional Authority (Express or Implied) ii. Statutory/Congressional Approval 3. 3 groupings of Presidential power – Jackson’s CONCURRANCE – are a guide to determining the validity of presidential actions regarding internal affairs a. Congressional Authorization 33 i. Where President has acted with express or implied authorization from Congress the President’s power is at its maximum and his actions are likely valid. BUT IF the statute itself is unconstitutional, THEN the president will not have authority. ii. No Signal from Congress 1. When the acts in the absence of either a Congressional grant or denial of authority (Twilight Zone): Where the presidents acts where Congress is silent, the president’s action will be upheld as long as the act does NOT take over the powers of another branch of the government or prevent another branch from carrying out its tasks (e.g.: United States v. Nixon) When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers in the constitution, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. In this area, any actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law. a. Court looks at the totality of circumstances on a case by case basis, and the decision is based on history iii. Congressional denial of authorization 1. Where the President acts against the express or implied will of Congress, the President has little authority (his power is at its lowest ebb) and his action likely is invalid. 2. Courts can sustain exclusive presidential control in such a case only by disabling the Congress from acting upon the subject. a. Strict Scrutiny will apply. iii. Executive Agreements 1. The President’s power to enter into agreements (that is, executive agreements) with the heads of foreign countries is NOT expressly provided for in the Constitution; nevertheless, the power has become institutionalized. Executive agreements can probably be on 34 any subject as long as they do NOT violate the Constitution. They are very similar to treaties, EXCEPT that they do NOT require the consent of the Senate. The President has more latitude to act in foreign affairs than in domestic affairs. a. Conflicts with Other Governmental Action i. Executive agreements that are NOT consented to by the Senate are NOT the ―supreme law of the land.‖ Thus, conflicting federal statute and treaties will prevail over an executive agreement, regardless of which was adopted first. However, executive agreements prevail over conflicting state law. 2. Dames & Moore v. Regan (Example-Power to Settle Claims of United States Citizens) a. During Iran hostage crisis US agrees to settle with Iran to get hostages back, agree to nullify attachments of Iranian property, transfer Iranian assets to bank of England, and settle or suspend claims and transfer them to international arbitration. Problem was with the extension of the claims because the statute (IEVA) could not be construed to support the president’s action – thus it is in the No Signal category (category 2 of the 3 categories). b. How much inherent power does the president have under Article II? He may have some power to take these actions if combine article II powers with other considerations. 3 factors that affected S. Ct. decision: i. S. Ct. says that Congressional acceptance over time of broad presidential latitude for president to take initiative in these types of situation. S. Ct. finds Congress has set a tenor/attitude that the president has broad latitude in these types of affairs. ii. President’s own inherent power in article II – S. Ct. says that it does count for something – the president does have the power to enter into general agreements on behalf of the USA with another government iii. The S. Ct. said that the crisis was so imperative that the president could act as he did – thus based on 3 factors the S. Ct. said the president had authority to act as he did. iv. Congressional “Veto” of Executive Actions Invalid 1. INS v. Chadha a. Chadha, a student in US on a visa overextended his time limit in the US. Chadha meets requirements for deportation, but under a new statute the Attorney General suspends his deportation. Congress vetoes and says Chadha has to go 35 based on a private bill created by a committee in congress—a.k.a. a legislative veto b. Holding: i. Legislation (that is, lawmaking) can only occur through bicameral passage (passage of the bill in both houses) and presentment to the President (presidential approval). ii. Legislative vetoes are Unconstitutional and invalid because it allowed one house of congress to create a new legal regime without creating a new law. iii. Legislative vetoes also are invalid because they violate the implied separation of powers requirements of the Constitution. c. S. Ct. used a Formalistic approach v. Line Item Veto Unconstitutional 1. Clinton v. City of New York a. Formalistic approached used in this case – case fits neatly with Chadha. i. Court rules similar to Chadha in saying that law making can only occur through bicameral passage according to Art. I § 7 ii. No provision in the Constitution that authorizes President Clinton to enact, to amend, or to repeal statutes. b. Holding: Line Item Veto Act held Unconstitutional i. Court strikes the Act down because president was allowed to enact law without going through the formal process (bicameralism passage with presentment to president). c. Non-Delegation Doctrine – Congress has considerable leeway in delegating to the executive branch powers so long as it is plausibly construed as carrying out the instructions of the law. i. The Doctrine has not been of much force for 71 years; thus Congress can create vague language that gives president power and will not be struck down. vi. Extent of the Executive Privilege 1. United States v. Nixon (defines executive privilege) a. Threshold Issue: justiciability - YES, S. Ct. can hear case b. Main Issue: Privilege – whether there is an absolute or blanket executive privilege on the President’s communications i. S. Ct., relying on Marbury v. Madison, notes that separation of powers does not preclude judicial review of what executive privilege entails 36 1. The claim of privilege based on a generalized interest in confidentiality cannot prevail over the demonstrated specific need for evidence in a criminal trial ii. Court refuses to acknowledge an absolute privilege for the president. There must be some kind of limitation on the President’s power to withhold communications. Court says there is at least a qualified privilege for the President to withhold communications. c. Holding: Nothing in the Constitution precludes a subpoena directed against the President. i. Executive Privilege is limited to: 1. Military or national security secrets only; and 2. This information may have to be revealed if there is a particular need for indispensable evidence in a criminal case which may benefit the defense (such as here in Nixon). d. RULE: Balancing test - while denying the claim for executive privilege the S. Ct. notes that there is a qualified executive privilege flowing from the separation of powers. When assessing this privilege the court balances the privilege (need for confidentiality) and the need for information. i. Judicial need to adjudicate outweighs the privilege 2. Clinton v. Jones: S. Court held in that the president can be sued while in office for actions he did before he was elected president AND can be forced to testify in that suit. This somewhat refined the Nixon case holding. b. Removal Power – Congress i. Bowsher v. Synar 1. Gramm-Rudman-Hollings Act - statute put forth a plan in which any year that congress exceeded it maximum debt, there would be across the board, automatic cuts in spending to balance deficit 2. S. Ct. strikes down Act because of Congressional power was not found in the Constitution. a. Holding: Unconstitutional in that a legislative officer is executing (executive) law which amounts to an invasion of the separation of power doctrine i. Note: Congress cannot remove an executive except through impeachment process due to separation of powers b. The S. Ct. does not base its holding on the Chadha case. i. But this case is conceptually similar to Chadha. 37 3. The decision is based on a theory of executive power – Unitary Executive theory. The theory is grounded in Article II of constitution which says powers are invested in president. The president has the power and when that power is vested in someone else (here the Controller or other person) is a violation of the principle of the unitary executive because it violates Article II. 4. Similar to Chanda and Buckley in spirit (formalistic) 5. Different from Chadha a. In Bowsher simply executing law vs. making law in the wrong branch c. Removal Power -- President i. Myers v. US (President has power to remove purely executive officers) 1. President removes a postman, he sues saying that he cannot be removed without consent of the senate. 2. Holding: S. Ct. ruled statute invalid because the power to appoint is also the power to remove. Since the president alone can appoint an executive officer, he can remove them a. Article II gives the President removal power and appointment power; NO other branch can remove or appoint an executive officer but the president b. The president can remove all purely executive officers. Under the doctrine of unitary executive all executive power is given to the president ii. Humphrey’s Executor v. United States (limit on removal power) 1. Case involves a quasi executive officer who is appointed by the president but does not perform an executive function. FDR removes officer from FTC however a statute says they are allowed a 7yr term 2. Holding: President lacks unlimited removal power of members of the FTC because not a purely executive officer 3. Humphrey’s recognizes a congressional power to create “independent agencies‖ – governmental entities that are free from presidential removal power and, to some uncertain degree, presidential power to supervise and control the decisions of their officers. The FTC, the Federal Energy Regulatory Commission, and the FCC are examples of independent agencies. 4. In Bowsher, the S. Ct. said that congress CANNOT remove executive officials except through impeachment, BUT congress may limit the president’s presidential power to dismiss as long as they are not compromising his power iii. Morrison v. Olsen (from formalist to functionalist) 1. Statute at issue allows AG to appoint special counsel to investigate who the President can only be remove due to malfeasance or misfeasance. President claimed the statute is unconstitutional because it encroaches on his removal powers 38 2. First (narrow) Issue: whether the appointment of independent counsel by the special commission violates the Appointments Clause (namely Article 2 Section 2 Clause 2) of the constitution? a. Under the appointments clause only the executive can appoint inferior officers, but there is a loophole in that clause which allows congress to appoint inferior officers. In the Morrison case, the Act fit into this exception (vague loophole). i. Buckley v. Maleo case (pgs 431-32): mentions the appointments clause. Because some members were not chosen by the president, but rather by group of judges, the act violated the appointment clause. 1. Whether an officer is inferior or not inferior is something the S. Ct. knows it when it sees it (SEE the Buckley case). 3. Central Question of the case: whether the authority and independence vested in the counsel violates the principle of separation of powers? a. This is divided into 2 distinct sub-questions: i. Whether the restrictions on AG’s power (and by extension the president’s power) to remove independent counsel encroaches on presidential authority? 1. Court had to squirm out of prior precedent: Rule in Myers case (Rule: when court comes to a case where the officers are purely executive – perform purely executive function, e.g. members of presidents cabinet – once the person is installed, Congress cannot impose restrictions on the presidents ability to remove the officer/person) and Rule in Humphreys’ executor v. USA (Rule: flipside of Myers rule – Congress could limit president’s ability to remove people who perform quasi-legislative or quasi-judicial function, e.g. people in FTC people in other agencies). In Humphreys: S. Ct. held the president could remove a person who performs quasi-legislative or quasi-judicial function for good cause. 2. The S. Ct. says that the Myers rule was what was said in earlier cases and will not read that earlier case literally. There was a strong presumption, in this case, of president’s ability to remove the officer. 39 III. a. New Broad Test - The question to ask is: Whether a restriction on president’s authority to carry out his functions under Constitution’s article 2 – that is ―Are of such a nature that they impede the president’s ability to perform his constitutional duty‖. b. NOTE: Under Myers and Humpreys the statute will fail because the office is purely executive and the President alone has the power to remove i. Bright line rule of Myers and Humphrey’s overruled ii. The larger issue: Dose the Act taken as a whole excessively intrudes on or diminishes the president’s constitutional authority? 1. Majority of S. Ct. says on balance that the limited role of congress under the statute and the special division (panel of judges) and limited diminution of president’s power were together limited enough to uphold that Act. 4. Majority was a very functionalist approach as opposed to Scalia’s formalist dissent 5. Underlying Concern - The Status of Individual Government Agencies a. IF court followed Chadha, Myers, or Humphrey’s then this would be a launching point for the demise of all independent agencies of government b. There is really no place for such agencies in constitution 6. Prof. thinks the S. Ct. was concerned that if in fact it overturned the statute and followed Chadha and Bowsher it would lead to many acts being overturned and the independent agencies are fatally flawed as well. The Court did not want to go there; thus it upheld the act in the Morrison case. State Power to Regulate: Dormant Commerce Clause, Preemption, and Interstate Privileges and Immunities Clause a. The very existence of congresses power to regulate Interstate Commerce through the Commerce Clause precludes the State from imposing any kind of restriction on interstate commerce. Commerce Clause implicitly displaces certain exercises of state power even before the state acts b. DORMANT COMMERCE CLAUSE i. Dormant Commerce clause assumes that Congress has been silent on the issue at hand. Dormant Commerce clause: begin with a situation where Congress has not specifically exercised power under commerce clause with regard to what is being regulated or is at issue. 40 1. Usually, there is NO federal statute pre-empting legislation. That is there is Congressional silence on the issue. ii. RULE: State regulation of commerce in the absence of congressional action 1. IF congress has NOT enacted laws regarding the subject, a state or local government may regulate local aspects of interstate commerce IF the regulation: a. Does NOT discriminate against out-of-state competition to benefit local economic interests; AND b. Is NOT unduly burdensome (that is, the incidental burden on interstate commerce does NOT outweigh the legitimate local benefits produced by the regulation). 2. NOTE: IF either test is NOT met, the regulation will be held void for violating the Commerce Clause iii. Note: Dormant Commerce Clause applies to states when it acts as a regulator. c. Dowling’s Law Review Article i. Dowling Balancing Test: 1. IF the states action amounts to be what the court considers an unreasonable interference with the national interest (particularly those in the commerce clause) AND Congress had NOT expressly authorized the state to enact the legislation, THEN the Court presumes Congress did NOT want the state to enact the legislation, and thus the court will invalidate the statute/legislation. a. It is conceded the Court will get it wrong b. Congress has paramount authority in interstate commerce. Congress can always come in after the fact and enact the legislation that it wants. c. Congress’ silence is viewed as disapproving of state action. 2. When a state impedes the flow of commerce the state action will be restricted 3. Court can say congress may not allow an action, however congress has the right to rebut the assumption and grant the state power and under the Commerce Clause make permissible what was once impermissible by balancing both sides and making a judgment for the weightier side d. Non-Discriminatory Laws i. As a formal matter all the cases below have been scrutinized under the test mentioned below (Dowling Balancing Test); what triggers the test is there is a burden imposed and the state does NOT discriminate between in-state and out-of-state commerce. ii. South Carolina Highway Department v. Barnwell Brothers 1. The holding is an approach to the Commerce clause that the Court NO longer uses (although it is technically still good law). 2. It is important to the Court that the S. Carolina statute did NOT discriminate (it was non-discriminatory) – it was an even handed 41 statute. The S. Ct. is more concerned with discriminatory statute (which will usually always be struck down) than even-handed burdens. iii. Southern Pacific Co. v. Arizona (Creation of the Balancing Test) 1. NOTE: Know this case by name because it is the first case to use Dowling’s approach. 2. Court says that a statute can be both offensive to the police power and the commerce clause. 3. This is an instance where congress has NOT acted (did not pass statute dealing with train length) and the Court finds that the state disrupts interstate commerce without great safety advantages. 4. S. Ct. strikes down the statute: what S. Ct. is really doing is saying that Congress would have stopped the state from taking this action. 3. Balancing Test (Dowling) a. TEST: Court will balance state benefit in promoting safety and police power, with the burden of congress and interstate commerce without congress explicitly challenging the action. b. RULE: a non-discriminatory law will be invalidated ONLY IF the burden on interstate commerce outweighs the promotion of legitimate (not discriminatory) local interests. iv. Bibb v. Navajo Freight Lines 1. IL required trucks on its highway to have a contoured mud guard. On the other hand, no other state required theses mud guards. 2. Holding: the statute imposes a burden on interstate commerce without protecting a legitimate state interest, and thus it is unconstitutional. a. Court decides the impact on interstate commerce is greater than the impact on safety (had a substantial impact on interstate commerce). Thus the statute is invalid. b. The statue cannot be justified as a safety measure because it impinges on interstate commerce. On balance, there is too much interference with interstate commerce to justify it as a safety measure. 3. When the S. Ct. reviews a statue that impinges on interstate commerce: The more aberrant a state’s safety measure is on interstate commerce, the more difficult to overcome the balancing test (basically it weighs heavily against the state statute). e. Situation where Congress has not enacted statute addressing the issue BUT the Court has inferred from the Commerce power that Congress has the power to regulate the activity at issue. i. Kassel v. Consolidated Freightways Corp. 1. Iowa has enacted a statute that bans trucks (semis) over 65 feet and justification is that the killer trucks pose a safety hazard. 2. Holding: S. Ct. in plurality opinion strikes down the Iowa act 42 a. Unless we have a situation where a state is required to have special things on vehicles, the state CANNOT shift a problem common to all to others. 3. When Court is presented with case dealing with Dormant Commerce clause, IF the impact is overly burdensome, THEN the Court will presume that Congress would not have permitted the states to enter the field and create a law regulating that activity. a. Balancing TEST: S. Ct. will balance the Burden of interstate commerce against the level of the state’s interest. All things being equal there is a presumption that the burden on interstate commerce is greater. 4. The S. Ct. will not support a law that protects the interest of one state at the expense of another 5. In Kassel, the burden on interstate commerce outweighed Iowa’s safety interest. f. Discriminatory Regulations (Intentional Discrimination): state discriminates between in-state and out-of-state commerce. i. Regulations Requiring Local Operation 1. Pike v. Bruce Church, Inc. a. AZ statute required cantaloupes to be shipped in containers with name of the producer on the package. Bruce had packaged the cantaloupes in CA and because of the law would have to package in AZ at a higher cost b. S. Ct. says this is an unjustified higher cost and therefore strikes down the statute. i. Balancing Test: S. Ct. balances the burden on interstate commerce against the state’s interest. c. General Rule: Where the statute regulates evenhandedly 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. IF a legitimate local purpose is found, THEN the question becomes one of degree. And the extent of the burden that will be tolerated will depend on the nature of the local interest involved AND on whether it could be promoted as well with a lesser impact on interstate activities. d. S. Ct. was aware that there was a little bit of protectionism involved in this case. S. Ct. will usually invalidate all discriminating legislation. ii. Regulations Prohibiting Out-Of-State Wastes 1. City of Philadelphia v. New Jersey a. New Jersey enacted a statute that banned the importation of out of state waste. b. Holding: statute is unconstitutional 43 c. Threshold issue: whether the commerce clause is even implicated because is garbage commerce i. Under the Gibbons definition of commerce, the S. Ct. says garbage meets that definition of commerce. ii. Once the S Ct. decides the Dormant Commerce clause applies then the statute is in trouble because on its face it discriminates. d. The S. Ct. says the statute is presumed to be per se illegal because it discriminates on its face. i. RULE: Where simple economic protectionism is effected by state legislation, a virtually per se rule of invalidity has been erected. ii. Rule: Where other legislative objectives are credibly advanced and there is NO patent discrimination against interstate trade, the S. Ct. will use the rule/test enunciated in Pike. iii. The crucial inquiry must be directed to determine 1. Whether the statute is basically a protectionist measure OR Whether the statute can fairly be viewed as a law directed to legitimate local concerns, with effects upon interstate commerce that are ONLY incidental. e. Key - NO matter how great the state interest in creating the legislation the goal cannot be met by discrimination and protectionism f. This case goes further than the Dean Milk case; if the state can find another way not to impose the burden, the state has to take that measure. g. What is the S. Ct. going to do with a statute that on its face is non-discriminatory BUT in its operation or in its effect it disproportionately affects interstate commerce? Ct. deals with this in Hunt. i. Hunt v. Washington State Apple Advertising Commission 1. NC puts a restriction on apples saying that the containers shipped into the state could only bare the USDA approval and no other grading system to prevent fraud. Washington sues for two reasons. First, their apples are of a higher grade that USDA approved on a different scale. Also, cost of changing containers for NC imports would be high. 1. S. Ct. says: There was discrimination against the apples coming to NC from WA because it costs extra money to repackage the WA apples with the appropriate label enunciated under the NC statute. 2. S. Ct. finds the impact is discriminatory and then the least restrictive alternative test comes into play. 44 a. Least Restrictive Alternative Test: Whether there is a way the state could have substantially accomplished its goal without discriminating against another state or goods. 3. When it comes to this type of legislation, even if court does not attribute improper motive to the state, the S. Ct. will look to see if the affected group has the power to change the legislation. Where the S. Ct. is satisfied that the political process will allow the affected group to change the law, the S. Ct. does not scrutinize the statute as much. 4. Case Comparison: The contrast is between Hunt (in-state interest group and no out of state counterpart) and Barnwell Brothers (where in state and out of state groups are affected) 5. NOTE: a. IF statute imposes a burden – use least restrictive alternative test. That is, When the statute does NOT discriminate on its face then the case will turn on the effects of the statute. b. IF there is clear discrimination in the statute – it will be struck down almost every time. It is highly scrutinized. ii. Exxon Corp. v. Governor of Maryland 1. Md statute provides that a producer or refiner of gas products may not operate any retail service station within the state. This case involved a neutral statute that was not discriminatory 2. Threshold issue was whether the statute discriminates against interstate commerce. The S. Ct. said NO, it does NOT discriminate against interstate commerce. a. S. C. finds that cannot characterize as discrimination against interstate commerce because other out of state producers can come in and own service stations 3. One of the factors the S. Ct. takes into account is relative political influence among those who are affected. a. Prof. one of the reasons the factor was not in Exxon’s favors was because the S. Ct. thinks that big oil companies have political clout. b. Remember: Congress can always come in and reverse the S. Ct. by passing a statute. 4. NOTE: The fact that the burden of a state regulation falls on some interstate companies does NOT, by itself, establish claim of discrimination against interstate commerce. If the effect of state regulation is to cause local goods to constitute a larger share, and goods with an out-of-state source to constitute a smaller share, of the total sales in the market – as in Dean Milk – the regulation may have a discriminatory effect on interstate commerce. a. Hughes: the Commerce Clause protects the interstate market, NOT the interstate firms, from prohibitive or burdensome regulations. 45 iii. Minnesota v. Clover Leaf Creamery Co. (pg. 258 of casebook) 1. The S Ct. upheld a Minnesota statute that banned sale of milk in plastic disposable containers but allowed it in paper containers. The fact that some in-staters benefited was not sufficient to establish a discriminatory effect when some out-of-staters also benefited. a. Prof: it smells of protectionism because it hurts more outside companies than those within Minnesota (get similar holding to Exxon). 2. The statute ―regulates evenhandedly‖. 3. Statute passes the Pike Test because there were only trivial burdens ii. Summary 1. IF the regulation is a burden, THEN apply Dowling Balancing Test 2. IF the regulation is discriminatory, THEN apply the Least Restrictive Alternative Test: In determining whether a nondiscriminatory state regulation of interstate commerce violates the Commerce Clause, a court will sometimes consider whether less restrictive alternatives are available. h. Doctrine of Preemption: it is a statutory doctrine; it assumes that federal statues preempt the state statutes; it involves a situation where Congress has chosen to exercise its power under commerce clause and enact a statute. It raises a question of interpretation: is this particular state statute preempted by this federal statute? Congress does NOT usually put an express preemption clause in its laws. Thus the Court must make a judgment call. i. 3 types of Preemption used by the S. Ct. 1. Express Preemption: statute contains a provision specifically referring to preemption and indicating which state laws the national statute supplements. 2. 2 types of Implied Preemption a. Conflict Preemption: conflict between operation of federal statute by state statute then the Federal statute preempts the state statute. i. E.g.: Gibbons – where there were 2 conflicting laws and the federal law preempted the state law. b. Field Preemption (Where Congress has occupied the field) – appears from the nature or details of the statute or regulatory scheme; the scheme is so pervasive that Congress intended to occupy the field – the federal method for regulation was to be the sole regulation. Thus, the court is saying that the federal regime is so thorough that Congress did NOT want the states to put on more regulation. i. The S. Ct. has provided factors to be considered in determining whether Congress intended to preempt non-conflicting state law: 46 1. IF the area requires uniformity of regulation rather than diversity, then preemption is more likely. The pervasiveness of the federal law – whether it appears that Congress sought to regulate all the critical aspects of the subject – will often be of controlling importance. 2. IF then subject area is one that historically has been dominated by the State government, then the S. Ct. is more likely to reject preemption absent some clear indication by Congress to the contrary. 3. IF the administration of both federal and state law is likely to produce conflict, the courts are more likely to find a Congressional intent to exclude the states. 4. Under what is sometimes referred to as the one-master theory, Congressional creation of an agency to provide regular superintendence over a regulatory area suggests that continued state action is precluded. ii. Preemption is always based on what the congressional intent/purpose was. When the preemption does not fit neatly into the category, then the Ashwander Rules will be used. i. Market Participation Doctrine i. RULE: States may discriminate when they act as a participant in the market, BUT NOT when the act as regulators ii. Where the state acts as a Market Participant and not as a regulator, the Dormant Commerce Clause does not apply iii. Central Timber Development v. Wunnicke 1. Market Participant Doctrine: Only applies when the state satisfies the court that it is only participating. 2. RULE: The Commerce Clause does NOT prevent a state from preferring its own citizens WHEN the state is acting as a market participant (e.g.: buying and selling products, hiring labor, giving subsidies). a. Limitation: ―Downstream Restrictions‖ i. While a state may choose to sell only to state residents, it may NOT attach conditions to a sale that would discriminate against interstate commence. b. The limit of the market-participant doctrine allows a state to impose burdens on commerce within the market in which it is a participant, but go no further. The state may 47 IV. NOT impose conditions that have a substantial regulatory effect outside of that particular result. iv. Reeves, Inc. v. Stake: 1. The S. Ct. has said that nothing in the purposes animating the commerce clause prohibits a State from participating in the market and exercising the right to favor its own citizens over others. 2. When states act in the marketplace, they resemble private businesses and should be free to exercise a similar discretion to choose that parties with whom they deal. j. The Privileges and Immunities clause of Article 4 i. Article IV Immunities and Privileges clause: Citizens of each state entitled to all privileges and immunities of the states. ii. States cannot discriminate against non-residents. 1. State cannot discriminate against individuals just because those individuals are non-residents. iii. Article 4 is different from the Dormant commerce clause: Thus just because state does NOT violate article 4, it does NOT mean that it has NOT violated the Dormant commerce clause. Thus, if clear under one of them, then may not be clear under the other. iv. United Bldg. & Construct. Trades Council v. Camden 1. 2 step analysis: where state treats in-state people differently from out-of-state people. a. (1) Is the state burdening a fundamental right? i. Fundamental right means the right involved has to be fundamental to the promotion of interstate harmony 1. S. Ct. has said that for purposes of article 4 (privileges and immunities clause) the right to seek employment is a fundamental right. b. (2) State must show it has a substantial reason for the statute treating in-state citizens different from out-of -statepeople. i. That is, the non-residents must somehow be shown to constitute a peculiar source of the evil at which the statute is aimed. Substantive Protection of Economic Interests from State Regulation: The Due Process and Contract Clauses a. Interpretivism: a school of though or mode of constitutional interpretation that insists on sticking to the text of the Constitution when determining the powers of the government and peoples individual rights – that is, do NOT read individual rights into the Constitution. i. NOTE it is different from Originalism which is concerned more with looking at the history behind the text of the Constitution. b. Non-Interpretivism: a school of though or mode of constitutional interpretation that insists the constitution does NOT spell out every limitation on governmental 48 power and every single right of the people, rather there are rights that can be inferred from the constitutional text. c. Substantive Due Process i. Standards of Review 1. Strict Scrutiny – when fundamental right (e.g. privacy, voting, other rights in the Bill of Rights) is involved. a. Where the law limits a fundamental right, strict scrutiny will be applied, and the law (or other governmental action) will be upheld ONLY IF it is necessary to promote a compelling OR overriding interest. 2. Mere Rationality – All other cases a. In all other cases (e.g. business, economic, and social affairs), the mere rationality test is applied, and the law will be held IF it is rationally related to any conceivable legitimate end of the government. d. The 14th amendment has 3 major provisions: i. Privileges and Immunities Clause: 1. The Slaughter-House cases: a. Gradually over time the S. Ct. gravitate from the privileges and immunities clause to the due process clause – that is, to invoke the Dues Process clause when issues involve state infringing on economic and property rights of persons. b. When looking at state statutes dealing with economics and property, S. Ct. looks at the reasonableness of the state statute and analyzes it under the Due Process clause. ii. Equal Protection clause 1. Probably NOT on Exam iii. Due process clause: 1. Prohibited the taking of liberty and property without due process of law. Due process clause contains a substantive and procedural component 2. The S. Ct. will analyze state statutes affecting economic interests under the Due Process Clause 3. TEST: whether the statute is reasonable. e. Lochner Era i. Lochner v. New York 1. NY state statute limited number of hours bakers could work. Rationale was health and safety. 2. Holding: the due process clause of the 5th and 14th amendments protect liberty of contract and private property against unwarranted government interference. a. The notion of liberty of contract is not on the face of the constitution (NOTE that this is different from the contract clause) 49 3. S. Ct. found liberty to contract (different from contract clause in article 1 section 10) implied in the due process clause of the 14 amendment in Lochner. 4. Lochnerizing - judges read in own biases and views as to what constitutes a good policy into the constitution, and in effect substitutes own views for the wisdom of the legislation (noninterpretive) 5. Comparison to Bowsher: if the court were to strike down the Gramm-Ruddman act under principal. If the court had Lochnerized, they would have struck down the policy because they did not like it rather than dismissing on a separation of powers ground f. Demise of Lochner: MODERN APPROACH (S. Ct. will leave debatable issues as respects business, economic, and social affairs to the legislative branch) i. Nebbia v. New York 1. S. Ct. examines the underlying facts of the legislation and applies the rationale basis test. a. So long as the minimum price has a plausible relation to the states goals, then the S. Ct. will NOT invalidate the statute. b. Very little will be struck down with this approach because it is highly deferential. Thus, the S. Ct. does NOT scrutinize economic regulations as it had before in the Lochner era. 2. RATIONAL BASIS TEST- IF the legislation is supported by a legitimate state goal the statute will be upheld 3. The Due Process demands only that the law shall NOT be unreasonable, capricious, and arbitrary, and that the means selected shall have a real and substantial relation to the object sought to be attained. ii. West Coast Hotel Co. v. Parrish 1. S. Ct. overrules Lochner and the S. Ct. upholds minimum wages for women. iii. Carolene Products 1. P has the Burden of Proof to prove NO plausible rational relationship. g. Contracts Clause: Article 1 §10 – No state shall pass a law limiting the obligation of contracts. i. The contracts clause bars state government from disrupting voluntary agreements simply because government wants to help one or another side. ii. Once a state has established its contract regime, and chooses the rules that will govern enforceability of contracts, it may not retroactively change those rules However, prospective changes are fine. iii. Distinctions between Contract clause (article 1 section 10) and liberty of contract in Lochner: 50 1. Under Lochner notion of liberty of contract there was certain restrictions on government’s ability to not allow people to enter into certain contracts. 2. The Contract clause does NOT limit the State to any particular way to enforce contracts. Rather once the state creates rules governing K and people enter into contracts because of reliance on those rules, the State CANNOT change the rules BUT the State can only prospectively enact new set of rules. The limitation is on retroactively changing the contract rules. It does NOT tell what is and is not a permissible form of contracts. iv. Private Contracts 1. The Contracts Clause prevents ONLY substantial impairments of contract (that is, destruction of most or all of a party’s rights under a contract). However, NOT all substantial impairments are invalid. In determining whether legislation is valid under the contracts clause, use the 3-PART TEST: a. Does the legislation substantially impair a party’s rights under an existing contract? IF it does NOT, THEN the legislation is valid under the contracts clause. IF it DOES, THEN it will be valid ONLY IF it: i. Serves an important and legitimate public interest; AND ii. Is a reasonable and narrowly tailored means of promoting that interest. 2. Allied Structural Steel Co. v. Spannaus a. Reasonableness of changes in the contract: S. Ct. is really looking at foreseeability: i. IF it was a foreseeable problem then the state has no reason to come in now and change the terms of the contract. ii. IF it was unforeseeable to the employers then the state law is unreasonable b. Was the contractual modification necessary: Was there other ways the state could have reached its objective? c. The more severely the legislation alters the terms of the existing contract then the more closely the S. Ct. looks at the legislation. d. NOTE: When the legislation falls on a few contracts, the S. Ct. is generally fine with that. v. Public Contracts (United States Trust Co. v. New Jersey) 1. Public Contracts (that is, contracts in which the state or political subdivision is a party) are tested under SAME 3-PART TEST. However, the S. Ct. applies Stricter Scrutiny, especially IF the legislation reduces the contractual burdens on the state. 2. When applying the 3 –part test, NOTE: 51 a. In determining whether the law serves a legitimate public interest, note that the state CANNOT be obligated by contract to refrain from exercising its police powers necessary to protect the health and safety of its residents. b. To be narrowly tailored, the law should NOT constitute an unnecessarily broad repudiation of contract obligations. vi. NOTE 1. Modern Review under the Contracts Clause is substantially identical to modern rationality review under the due process clause and equal protection clauses. In all 3 contexts, the S. Ct. engages in the same inquiry, identifying the legitimate state interests and requiring rough relation between the legitimate state interests and the measure under review. The class of legitimate state interests is extremely broad. The Right of Privacy (or “Personhood”) a. Various privacy rights, including marriage, sexual relations, abortion, and childrearing, are fundamental rights. Thus, regulations affecting these rights are reviewed under Strict Scrutiny standard and will be upheld ONLY IF they are necessary to a compelling interest. b. Meyer v. Nebraska i. S. Ct. struck down statute prohibiting teaching in a foreign language. ii. RULE: State may NOT forbid education in a language other than English. iii. Test: Rational Basis c. Pierce v. Society of Sisters i. S. Ct. struck down a statute requiring parents to send kids to public schools. S. Ct. relied on the Due process clause when deciding these cases--it used substantive due process doctrine. ii. RULE: Although the State may prescribe reasonable education standards, it may NOT require that all children be educated in public schools. iii. These cases led to holding in Griswold d. Skinner v. Oklahoma i. Oklahoma statute provided that if a person was convicted 3 times of a crime of moral turpitude then the person was involuntarily sterilized. The classification of the crimes of moral turpitude under the statute is the ground that gives the Court the ammunition to strike it down – it strikes it down on equal protection grounds. ii. Strict Scrutiny will apply to cases involving Bodily Integrity. iii. The right of privacy is laid down here but is officially promulgated in Griswold. e. Right to Privacy i. Griswold v. Connecticut 1. Case involved the Connecticut statute that prohibited use and giving of contraceptives to married couples. 2. Announces the right of privacy and says it is referenced in the 1st, 4th, 5th, 3rd, 9th amendments. The S. Ct. says each one of these V. 52 contains a ―zone of privacy‖ and the penumbras of these zones come together a form the fundamental right of privacy that concerns things like child rearing, contraception, etc. a. What the S. Ct. is really doing here is relying on Substantive Due Process and calling it something else 3. The case recognizes individual autonomy in family planning decisions. It comes to embody a specific right to marriage and to a broader right of procreation, child rearing, etc. 4. S. Ct. applies strict scrutiny to the statute. Strict Scrutiny: necessary to achieve a compelling state interest. f. Abortion i. Roe v. Wade 1. Holding: when a state passed a statute like Texas’s (prohibiting abortion except when mother’s life in danger) the state has restricted one of the fundamental rights that the S. Ct. thinks is in the right of privacy. What that means is that because this restricted a fundamental right, then the S. Ct. was going to apply strict scrutiny. 2. S. Ct. said the State did not have legitimate reason to interfere with women’s right to decide if they want to have an abortion during the first trimester because it is up to her and her doctor and there is little health risk to mother for having an abortion. Around the second trimester there is a stepped up health risks to woman who has abortion during the second trimester so the state has a compelling interest to create reasonable measures to protect the mother. For the third trimester – when the fetus becomes viable the state has a compelling interest in preserving a viable fetus which exceeds the mothers right to decide if she wants to keep the fetus. Thus, the state can prevent the mother from having an abortion in the third trimester except when her life is in danger. ii. Maher v. Roe; Harris v. McRae 1. RULE: Neither Federal NOR local government are required to grant medical benefit payments for abortions to indigent women, EVEN IF they grant benefits to indigent women for childbirth services. 2. RULE: Although the government may NOT place obstacles in the path of a woman’s exercise of her freedom of choice, the government need NOT remove those obstacles NOT of its own creation. iii. Period after Roe 1. S. Ct. upheld regulation that did not require a woman to get consent or be warned of adverse effects or alternatives to abortion 2. S. Ct. however upheld statutes requiring parental consent or judicial permission. 3. Government assistance with abortion is struck down iv. Planned Parenthood of Southeastern Pennsylvania v. Casey 53 1. Modified Roe’s holding 2. Court overturned the strict trimester formula used in Roe a. Recognized viability as the point at which the State interest in life of fetus outweighs woman’s right to abort b. When dealing with restrictions on abortion prior to viability, the required procedures that do not preclude abortion will be presumed valid UNLESS can prove in operation that a significant number of women will be prevented from getting an abortion (undue burden) 3. Heightened Scruntiny is replaced with a lesser ―undue burden” standard a. Undue burden standard: IF a state places something that is NOT an undue burden on abortion THEN the challenger faces a great burden of showing that in operation that a significant number of women are banned from obtaining an abortion. 4. A legal restriction posing an undue burden was defined as one having "the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus." a. Applying this new standard to the Pennsylvania Act under challenge, the Court struck the spousal notification requirement, stating that it gave too much power to husbands over their wives and would worsen situations of spousal abuse. The Court upheld the State's 24 hour waiting period, informed consent, and parental notification requirements, holding that none constituted an undue burden. 5. In the case, the Court said that minors are different. So a teenager who lives with parents would have to get parents permission for abortion as long as the women had the alternative to go to court and gain consent to get abortion and the court has to grant if one of the 2 is found: (1) the minor was mature enough to make the decision on her own OR (2) if the judge finds it is in the minor’s best interest to have an abortion. 6. The Court has held there is a distinction between the state posting an obstacle in the women’s way to have an abortion (state actively makes it so she cannot) and the other side which is the state does not doing anything to aid women in getting an abortion. So the holding was the state cannot get in a woman’s way to have an abortion BUT the state does NOT have to give any financial assistance or other things to aid the women in having an abortion. 7. Notice that the S. Ct. avoids the use of the term ―privacy‖ 54 a. Thus, the plurality in Casey has demoted the right to choose an abortion from a privacy interest to a liberty interest – Abortion concerns liberty interests. 8. In this case the plurality seems to refer to liberty ―with a punch‖ – that is state action will be scrutinized at a standard between rational relationship and strict scrutiny. a. When the court characterizes something as a/have to do with right of privacy, then the S. Ct. uses Strict Scrutiny b. When the S. Court thinks the person has a liberty interest BUT the state has a compelling interest then the court uses Rational Relationship test. 9. The joint opinion heavily relied on the principle of institutional legitimacy (wanted to follow the principle of stare decisis so the S. Ct. retained its legitimacy) g. Family and Lifestyle Interests i. Moore v. City of East Cleveland (Plurality opinion) 1. Community regulated who could live with whom. In this case, the P was a grandmother who could not have her family live with her because they were cousins. 2. S. Ct. used the Test applicable to Substantive Due Process a. S. Ct. invalidates the application of the ordinance because it intrudes too deeply into the family decision making. 3. The S. Ct. admits the operative doctrine it uses here is substantive due process. The right here is the same encompassed by the due process clause. a. The rights infringed on here fall into non-economic rights, indicating Substantive Due Process and the liberty to choose whom you will live with. b. Freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the 14 th Amendment. 4. RULE: The Right of Privacy includes the right of family members–even extended family members–to live together. Thus, a zoning ordinance CANNOT prohibit extended families from living in a single household since there is NO compelling interest to justify such a rule. ii. Zablocki v. Redhail (Right to Marry) 1. S. Ct. recognizes the right to marry (in a traditional sense). a. There is NO absolute right to marry – e.g. certain restrictions are OK like bigamy or incest. 2. Wisconsin passed statute that prohibited marriage under circumstance of owing child support and this could be lifted if the person paid up the child support and the kids were not likely to because public charges. 3. S. Ct. strikes down the statute because the statute violates Equal Protection. 55 VI. a. Prof. thinks otherwise and agrees with Justice Stewart – that is the case is about substantive due process. iii. Bowers v. Hardwick (OVERRULED) 1. This case shows 2 competing ways of interpreting the constitution. a. Majority uses mode of constitutional construction termed Texualism/Formalism (Conservative Interpretivist) - it looks at the text of the constitution. iv. Lawrence v. Texas 1. Lawrence overrules Bower. 2. Issue: Does the right to engage in sexual conduct in the home fall in the broader cluster of non-economic personal rights. 3. RULE: The State has NO legitimate interest in making it a crime for fully consenting adults to engage in private intimate sexual conduct that is NOT commercial in nature. 4. The Majority in Lawrence says the liberty implicated here must be looked at broadly because it is about the rights of autonomy and personal dignity. So talking about something broader then a particular right to engage in a particular sexual act. 5. Test: The level of scrutiny is unclear. Similar to Casey in that it is somewhere between the rational relationship and strict scrutiny tests. 6. ―At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.‖ Other 14th Amendment Rights a. Saenz v. Roe (Right to Travel – Interstate Travel) i. 1st big 14th Amendment holding since the Slaughterhouse cases. 1. Holding: A law providing that persons residing in the state for less than one year may receive welfare benefits NO greater than those paid in the state of prior residence is invalid. ii. RULE: Individuals have a fundamental right to travel from state to state, which encompasses the right: (1) to leave and enter another state, AND (2) to be treated equally IF they become permanent residents of that State. iii. Test: Strict Scrutiny 1. When the statute uses durational residency requirement (a waiting period) for dispensing benefits, that requirement normally should be subject to the Strict Scrutiny test. This means that the government must show that the waiting period requirement is tailored to promote a compelling or overriding interest. iv. Comparision to other Cases: 1. The big deal here is similar to Lochner in that it is not the fact that the state cannot have a concern here, however, it is the means the court decided to use to achieve its desired end. 2. What is also going in the Court’s mind is how California statute fits into larger structure of federalism – Similar to New York v. United States 56 a. S. Ct. does not point to a particular opinion, part of the courts willingness to read the right to travel goes into the larger context of the statute b. The main point is the cohesiveness that should not fence individuals out of states - this statute violated that structure. b. Procedural Due Process i. This has really nothing to do with substantive due process because procedural due process is concerned with process and procedure rather than certain rights. ii. The typical case in this area involves the government taking away a government benefit (and what needs to be done to take this away) iii. When is individual adjudication required? 1. There is a right to procedural due process ONLY when the government acts to deprive an individual of life, liberty, or property a. A ―depravation‖ of life, liberty, or property requires more than a mere denial of certain kinds of remedies. ONLY when the government affords NO remedy OR inadequate remedies may a deprivation of life, liberty, or property result. 2. There is NO right to individualized adjudication when the government acts generally, EVEN IF the action will result in burdening the individual’s life, liberty, or property interests. iv. 2-step analysis for deciding whether process was violated: 1. (1) Was there a deprivation of liberty or property? a. The S. Ct. will determine whether a legitimate liberty or property interest is being taken. 2. (2) IF YES, was the deprivation one that could cause a loss and be done without due process of the law? v. Liberty 1. The term liberty is NOT specifically defined. It includes more than just freedom from bodily restraints (for example, it includes the right to contract and to engage in gainful employment). 2. A deprivation of liberty occurs IF a person: a. Loses a significant freedom of action; OR b. Is denied a freedom provided by the constitution or a statute. 3. Injury to Reputation a. Paul v. Davis: Injury to reputation in itself is NOT a deprivation of liberty or property. b. However, IF governmental acts (such as a statement of reasons given for termination of public employment) so injure a person’s reputation that he will have lost significant employment or associational opportunities, there is a loss of liberty. 57 vi. Property 1. Property includes more than personal belongings and realty, chattels, or money BUT an abstract need or desire for (or a unilateral expectation of) the benefit is NOT enough. There MUST be a legitimate claim OR ―entitlement‖ to the benefit under State or Federal law (Roth) i. Board of Regents v. Roth 1. NO property interest in position since he was only hired for one year. Thus, he had no reasonable expectation that his education would continue. b. Welfare Benefits i. One has a property interest in welfare benefits IF she has previously been determined to meet the statutory criteria. (Goldberg v. Kelly) c. Continued Public Employment i. IF there is a statute or ordinance that creates a public employment contract, OR there is some clear practice or mutual understanding that an employee can be terminated ONLY ―for cause,‖ THEN there is a property interest. (Arnett v. Kennedy) 1. It is not enough to have a public position; the government has to give individual some kind of notice that the job will continue. ii. BUT IF the employee holds his position ONLY at the “will” of the employer, there is NO property interest in continued employment. vii. What Type of Process is required? 1. Mathews v. Eldridge a. This is the case to cite when trying to decide if a case decided by the government needs a pre-determination hearing. b. What constitutes fair process in terms of timing and scope of the hearing varies according to the circumstances of the deprivation. The S. Ct. will weight (this is the ―balancing‖ or ―cost-benefit analysis‖ Test): i. The importance of the individual interest involved; 1. How much will one suffer if they lose the benefit? ii. The value of the specific procedural safeguards to that interest; AND 1. What is the risk or an erroneous deprivation and how much would a hearing help? iii. The governmental interest in fiscal and administrative efficiency. 58 1. What is going to be the burden on the government to provide the benefit? This focuses on cost. c. In all situations, the S. Ct. will probably require fair procedures and an unbiased decision-maker. Normally, the person whose interest is being deprived should also receive notice of the government’s action and have an opportunity to respond before termination of the interest. However, the court may allow post-termination hearing in situations where a pre-termination hearing is highly impracticable. d. Public Employment i. Cleveland Board of Education v. Loudermill 1. Loudermill court rejects the Arnett position 2. RULE: A public employee who is subject to removal for “cause” (and who, therefore, has a property interest in his job) generally must be given notice of charges against him that are to be the basis for his job termination, and a pre-termination opportunity to respond to those charges. The employee does NOT have to be given a full, formal hearing before his termination, as long as there is a fair system of pretermination notice, an opportunity to respond (to the person making the termination decision), and a subsequent evidentiary hearing regarding the termination (with reinstatement if the employee prevails). 59