Law School Outline- Constitutional Law Outline II

1 Constitutional Law Outline (2002) Chanler Langham I. The Judicial Function ..................................................................................................................................... 3 A. B. C. D. Judicial Review .................................................................................................................................................................. 3 Supreme Court Review of State Court Decisions ............................................................................................................ 3 Adequate and Independent State Grounds ....................................................................................................................... 4 Congressional Control of Federal Court Jurisdiction ...................................................................................................... 4 II. A. B. C. D. E. F. G. H. Justiciability .................................................................................................................................................. 5 Introduction ........................................................................................................................................................................ 5 Case-or-controversy ........................................................................................................................................................... 5 Standing .............................................................................................................................................................................. 5 Mootness............................................................................................................................................................................. 7 Ripeness .............................................................................................................................................................................. 7 Political Question ............................................................................................................................................................... 7 Lack of Judicially Manageable Standards Strand. ........................................................................................................... 8 Prudential Considerations.................................................................................................................................................. 8 III. A. B. The Powers of the National Government ................................................................................................. 8 Introduction: Sources of Congressional Power ................................................................................................................ 8 The Necessary and Proper Clause: ................................................................................................................................... 8 IV. A. B. C. D. E. F. G. The Commerce Clause ................................................................................................................................ 9 Art. I, § 8, cl. 3 ................................................................................................................................................................... 9 Brief History of C.C. Jurisprudence: .............................................................................................................................. 10 Evolution of Commerce Clause Doctrine – C.C. Toolbox (3 different tests) .............................................................. 10 The ―Switch in Time That Saved Nine:‖ The Court‘s Decision in NLRB .................................................................. 11 The Modern Law of the Commerce Clause ................................................................................................................... 11 Commerce Clause and Civil Rights ................................................................................................................................ 12 Recent Move Toward Closer Judicial Scrutiny ............................................................................................................. 12 V. A. B. C. External Limits on Power of Federal: 10th and 11th Amendments .................................................. 13 Introduction: State Immunities and Limits on Congressional Power ........................................................................... 13 The Tenth Amendment Timeline (20th Century) ........................................................................................................... 13 The Eleventh Amendment ............................................................................................................................................... 15 VI. A. B. C. The Power to Tax and Spend ................................................................................................................... 16 Introduction: Questions to Consider .............................................................................................................................. 16 The Power to Tax ............................................................................................................................................................. 16 The Power to Spend ......................................................................................................................................................... 17 VII. A. B. C. D. E. The Power Over Foreign Affairs ......................................................................................................... 18 Introduction: Judicial Deference to Foreign Affairs ...................................................................................................... 18 Foreign Affairs Power of Congress: ............................................................................................................................... 18 The Treaty Power: ........................................................................................................................................................... 18 Executive Agreements ..................................................................................................................................................... 19 The War Powers ............................................................................................................................................................... 20 VIII. A. B. C. D. The Supremacy Clause .......................................................................................................................... 20 Article VI, Clause 2 ......................................................................................................................................................... 20 The Preemption Doctrine ................................................................................................................................................ 20 Federal Immunity from State Regulation ....................................................................................................................... 21 Federal Immunity from State Taxation .......................................................................................................................... 21 IX. A. B. C. D. The Dormant Commerce Clause ............................................................................................................. 21 Introduction: What is the Dormant Commerce Clause?................................................................................................ 21 Rational Relationship to a Legitimate State Purpose .................................................................................................... 21 Market Configurations ..................................................................................................................................................... 22 Market Participant Exception .......................................................................................................................................... 22 X. XI. A. The Privileges and Immunities Clause ................................................................................................... 22 The Separation of Powers......................................................................................................................... 23 Introduction: Source of SOP ........................................................................................................................................... 23 More Free Outlines: http://c.finamore.home.comcast.net or http://finamore.net 2 B. C. D. E. F. G. H. Presidential Exercise of Lawmaking Power................................................................................................................... 23 Congressional Encroachments on Executive Authority ................................................................................................ 24 Power to Appoint ............................................................................................................................................................. 24 Power to Remove ............................................................................................................................................................. 24 The Nondelegation Doctrine: .......................................................................................................................................... 25 Foreign Affairs ................................................................................................................................................................. 25 Legislative and Executive Immunities to Judicial Process: .......................................................................................... 27 XII. A. B. C. D. E. F. Individual Rights and Incorporation .................................................................................................. 27 Early protections of individual rights: ............................................................................................................................ 27 The Bill of Rights............................................................................................................................................................. 27 14th Amendment Text ...................................................................................................................................................... 27 Early Judicial Trends in Construing the 14th Amendment ........................................................................................... 28 The Incorporation Doctrine ............................................................................................................................................. 28 Incorporation since Duncan: ........................................................................................................................................... 29 XIII. A. B. C. D. E. F. Introduction to Substantive Due Process ........................................................................................... 30 Introduction ...................................................................................................................................................................... 30 Procedural versus Substantive Due Process ................................................................................................................... 30 Standards of Review ........................................................................................................................................................ 30 The Rise and Fall of Economic Due Process ................................................................................................................. 30 The Decision in Lochner v. New York........................................................................................................................... 30 Property and Economic Liberty Today .......................................................................................................................... 31 XIV. A. B. C. D. E. F. G. A. B. C. D. E. F. Revival of Substantive Due Process for Non-Economic Liberties .................................................. 32 Origin of DPC Non-Economic Liberties ........................................................................................................................ 32 Carolene Products‘ Footnote Four .................................................................................................................................. 32 Griswold and the Reemergence of Unenumerated Liberties ........................................................................................ 32 The Right to Privacy: Abortion ....................................................................................................................................... 33 Sexual Intimacy: Bowers v. Hardwick ........................................................................................................................... 34 The Right to Refuse Medical Treatment: A Right to Die? ........................................................................................... 34 Suicide and Physician-Assisted Suicide ......................................................................................................................... 35 Introduction and Overview.............................................................................................................................................. 35 Suspect Classifications .................................................................................................................................................... 35 Racial Segregation of Public Schools ............................................................................................................................. 36 Affirmative Action ........................................................................................................................................................... 36 Gender Discrimination .................................................................................................................................................... 37 Fundamental Rights ......................................................................................................................................................... 38 XV. Equal Protection ........................................................................................................................................ 35 XVI. A. B. C. D. E. F. State Action Doctrine............................................................................................................................. 38 Introduction ...................................................................................................................................................................... 38 Private Performance of a Public Function ...................................................................................................................... 38 Judicial Enforcement of Private Agreements ................................................................................................................. 39 Joint Activity Between a State and Private Party: The Nexus Approach ................................................................... 39 State Endorsement of Private Conduct ........................................................................................................................... 39 Lugar Test and No State Action Cases ........................................................................................................................... 39 XVII. A. B. C. Congressional Enforcement of the Civil War Amendments ........................................................... 40 Limitations of Civil Rights Laws.................................................................................................................................... 40 Enforcement of the Thirteenth Amendment................................................................................................................... 40 Enforcement of the 14th Amendment ............................................................................................................................ 40 More Free Outlines: http://c.finamore.home.comcast.net or http://finamore.net 3 I. The Judicial Function Judicial Review 1 Marbury v. Madison (US 1803): J. Marshall overruled section 13 of the Judiciary Act as exceeding the constitutional limits on the Supreme Court‘s original jurisdiction. In so doing, he affirmed the court‘s power of judicial review. a) Several things to keep in mind: (1) The narrow nature of the power Marshall is declaring:  ―Where the Court identifies a conflict between a constitutional provision and a congressional statute, the Court has the authority (and the duty) to declare the statute unconstitutional and refuse to enforce it.”  Contra – see below Cooper v. Aaron (2) The limited power of the court with regard to ―enforcement.‖ Note that the Court can‘t nullify the act it can only refuse to enforce it. (3) Marshall‘s response to the sentiment that the Court was a ―Anti-democratic‖ institution  At the time of the decision, Marshall (and the Federalist court) were under attack from the Jeffersonian Republicans for being ―anti-democratic‖ and elitist (the Federalists were known for protecting property interests). In addition, the court as an institution was under attack as an institution b/c it was the only unelected branch.  In an effort to respond to these concerns, Marshall borrowed an argument from Hamilton – (i) That the constitution is the ultimate manifestation of the will of the people, AND (ii) That the court has the unique role of safeguarding the constitution from mismanagement/interpretation by the other branches that may be more subject to political whims… (4) Brilliance of decision: ―rejecting and assuming power in a single breath”  At the time Marshall handed down decision, Cts were in a vulnerable state and their powers were largely undefined. The Ct was also uniformly Federalist and faced a particularly antagonistic Republican executive and legislature. Marshall wisely sacrificed the Courts minor power to hear cases over writs of mandamus, while asserting the much more important power of judicial review. More importantly, by not issuing the writ he left the executive w/ nothing to do. Had he ordered the writ Madison would have been sure to ignore it, only further undermining the legitimacy of the Court.  Note: Often the bounds of the courts power are determined by the court‘s recognition of what it can and can‘t enforce. The few times the court has overstepped these bounds it has been defeated – either by amendment, war…only hurting the legitimacy and authority of the branch. 2 Cooper v. Aaron (US 1958): Arkansas officials claimed that they weren‘t bound by decision in Brown v. Bd. Of Ed. b/c Arkansas wasn‘t a party. Ct reads Marbury as holding that, ―the federal judiciary is supreme in the exposition of the law of the Constitution.‖ Thus, under Marbury and the supremacy clause Brown’s interpretation of the 14th A. is (by the court‘s argument) the supreme law of the land. a) Note: This sweeping notion of judicial supremacy is at odds with the more limited doctrine set forth in Marbury. B. Supreme Court Review of State Court Decisions 1 The Judiciary Act of 1789, Section 25 a) Gave the Supreme Court authority to hear appeals from state courts in cases involving questions of federal law. b) (Note: With the rise of states‘ rights agitation during and after the War of 1812, the Court‘s right to review such rulings was challenged). 2 Martin v. Hunter’s Lessee (US 1816)(J. Story), Defended the legitimacy of S.Ct. review of state court interpretation of federal law and rejected VA court‘s challenge of section 25. a) Decision relied on the text of Art. III and Art. VI (1) Art. III  Art. III grants S.Ct. appellate jurisdiction but left it up to Congress to create any federal courts.  Since the Framers knew there might not be any federal courts, they must have been talking about appellate jurisdiction in cases involving state courts. (2) Art. VI (Supremacy Clause) A. More Free Outlines: http://c.finamore.home.comcast.net or http://finamore.net 4 While the Supremacy Clause directs the state judges to honor the Constitution over conflicting state laws, the Framers nonetheless provided the S.Ct. review in such cases to ensure the supremacy and uniformity of federal law.  (Note: language reflects general distrust of states by Federalists) 3 Cohens v. VA (US 1821), Held that the S.Ct. could hear Cohen‘s appeal under section 25 and rejected VA‘s argument that the State had the final say on matters of constitutional/federal law. a) NOR, did it matter that here, unlike in Martin, the state was party to the suit. Art. III, section 2 gives the S.Ct. appellate jurisdiction in ―ALL cases arising under the Constitution, laws, treaties of the U.S., ―whoever may be the parties.‖ b) Although the 11th A bars federal jurisdiction where a citizen brings suit against a state, we do NOT have an 11th A. problem here because the state filed the initial action – this is simply an appeal from a stateinitiated criminal case. Adequate and Independent State Grounds 1 Section 25 of the Judiciary Act of 1789, Congress expressly limited the S.Ct.‘s review of state court judgments to questions of federal law. If a state court had also decided questions of state law, the S.Ct. couldn‘t review the correctness of those state decisions. Though Congress later dropped this limitation on the scope of review, the S.Ct. has continued to follow that principle. 2 Problem Case: When a state court‘s judgment rests on two alternative grounds (state and federal). a) In this situation, the S.Ct.‘s review of the case could have no possible effect on the rights or duties of the parties (the state could always ignore it and decide it on state grounds). b) Sounds a lot like an ―advisory‖ opinion by the S.Ct. to the states (―If we were to decide this on federal grounds, this is what we would recommend you do…‖) c) For this reason, when the requirements of the adequate and independent state grounds doctrine are met, the state court‘s decision is absolutely shielded from S.Ct. review, no matter how erroneous that state court‘s handling of federal law. 3 ―Adequate and Independent‖ State Grounds: a) Adequate: (1) (1) Fully sustains the result; and (2) (2) Does not itself violate the Constitution/federal law b) Independent: (1) One that is not based on the state court‘s understanding of federal law Congressional Control of Federal Court Jurisdiction 1 Art. III, section 2 a) ―…In all other cases before mentioned, the Supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such exceptions, and under such Regulations as the Congress Shall Make.‖ 2 Introductory Notes: a) Why was Congress given this power? (1) In part, it was a compromise -- at the time of the framing there wasn‘t a consensus on how to organize the courts (major disagreement whether the creation of lower federal courts would infringe upon the power of the state courts); (2) Safeguard on abuse of power by court (indirectly subjecting the Court to popular accountability)  Other safeguards include: executive power of appointment, life-long tenure, institutional safeguards of law (written opinions), self-inflicted prestige wounds (Dred Scott), Amendment, no power of the purse… b) Contrast the detailed provisions (Art. I and II) concerning the power of the leg/exec, with Art. III. 3 Ex Parte McCardle (US 1869) [75]: The power of Congress to deny jurisdiction? a) There is language in this decision suggesting that Congress has absolute power to withhold Supreme Court appellate jurisdiction under the power to make exceptions. b) But the holding is actually quite narrower – McCardle simply upheld the power of Congress to repeal an 1867 statute that gave the Supreme Court power to review habeus corpus decisions. BUT, the Court was careful to point out that the repeal did NOT affect other statutes giving the power to review habeas corpus decisions. c) See Ex Parte Yerger (US 1869): In the same term, Court held that denial of habeuse corpus could be reviewed by a petition for habeus corpus and certiorari in the Supreme Court under the All Writs Act. 4 United States v. Klein (US 1872): Clear decision holding denial of jurisdiction to a federal court unconstitutional a) Facts: Statute allowed recovery of property seized by U.S. Gov‘t during the Civil War upon proof that the owner had not given aid or comfort to the rebellion, and the S.Ct. had held that such proof could be  C. D. More Free Outlines: http://c.finamore.home.comcast.net or http://finamore.net 5 made by producing a Presidential pardon for Confederate activities. The Congress then amended the statute while Klein‘s case was pending to provide that a pardon was instead to be taken as proof that the owner had given aid and comfort to the rebellion and it deprived all courts of jurisdiction to award property to a person with a pardon. b) Holding: Found the amendment to be unconstitutional. c) Congress may NOT dictate the result in a pending case and use its power over jurisdiction to deny a substantive right. d) Structural Argument (violation of separation of powers) (1) Usurping power of Ct. to decide ―case or controversy‖ (2) Denying executinve power to issue pardons  Question: How else can McCardle and Klein be distinguished?  In Klein, unlike McCardle, all avenues of recovery were closed thereby denying the substantive rights of the party which were at stake. Justiciability A. Introduction 1 Justiciability is a body of judicially created doctrines that define and limit the circumstances under which an Art. III federal court may exercise its constitutional authority, including its authority to engage in judicial review. a) The article III ―case-or-controversy‖ requirement; and b) Prudential considerations involving perceptions of the proper role for federal court w/ constitutional structure of government. 2 Requirements: a) Must present a case or controversy b) Plaintiff must have standing c) Must NOT be moot d) Must be ripe e) Must not suggest abstention for discretionary reasons (prudential) f) Must not present a political question 3 The point about justiciability relates to the separation of powers in the US Constitution – unlike the other two branches of government, the judicial branch is essentially reactive in its powers: it can only hear issues presented to it, and must choose from among those issues the ones that truly present cases or controversies. 4 Issues of self-preservation? B. Case-or-controversy 1 Required by Art. III § 2: Must have a) A focused controversy/adversary proceeding b) Judgment must be final c) ―Strict necessity‖ – constitutional issues won‘t be decided unless ―strictly necessary‖ (1) See Rescue Army v. Municipal Court (1947), court emphasized overarching theme of ―strict necessity.‖ Court gave several reasons for court‘s unwillingness to issue advisory opinions:  Prudential (better for court‘s legit. Not to issue opinions that aren‘t authoritative);  Limited resources of court  More abstract decisions might make rights (not focused on a particular controversy) might make rights even more insecure. (2) Historical Example – See 1793 Refusal, Justices declined to give Washington an advisory opinion on neutrality in war between Fr. and Eng. Ct. argued separation of powers issue (Art. II § 2 authorizing Pres. to require opinions from the head of Dpt. on any subject related to the duty of their office). Also cited the need for finality in their judicial opinions (advisory opinion could be ignored by exec/leg) and institutional considerations (work load, adversarial proceedings, legitimacy of court). C. Standing 1 Introduction: Standing assures that there is an actual dispute between two adverse parties capable of judicial resolution. Must show that the plaintiff has established a personal stake in the outcome of an otherwise justiciable controversy. a) Valley Forge - At an irreducible minimum, Art. III requires the party who invokes the court‘s authority to show that 1) he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant, and that 2) the injury fairly can be traced to the challenged action and 3) is likely to be redressed by a favorable decision b) Lujan v. Defenders of Wildlife (animal nexus not good enough, one day going to visit too speculative) II. More Free Outlines: http://c.finamore.home.comcast.net or http://finamore.net 6 (1) Injury in fact – an invasion of a legally-protected interest which is a) concrete and particularized, and b) actual or imminent, not conjectural or hypothetical (2) Causal Connection – injury has to be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court (3) Redressability – must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision Requirements for Standing a) Injury-in-fact (1) P must demonstrate that he/she suffered a perceptible and recognized harm. (2) Three basic ―take-aways‖ from cases:  General Rule: Very low threshold to establish injury  BUT, when the interest/harm is either conceptually or factually too abstract or speculative, the court becomes increasingly unlikely to find an ―injury-in-fact‖  See Lujan v. Defenders of Wildlife (1992)(environmental organizations challenged a federal regulation that rendered the Endangered Species Act inapplicable to the federal funding of projects in foreign nations) (i) Conceptual infirmity (a) Rejected 3 creative theories of harm (ecosystem, animal, and vocational nexus) (b) Suggested that had Ps observed/worked with a particular species in the area in which they were being threatened, it would have constituted an actual harm… (ii) Speculative facts (a) The injury here (the possibility of traveling to study the species) was too speculative. Court suggested it would have been more receptive had the Ps already made definitive plans/investments in visiting the place. (3) 3. Doesn‘t necessarily have to be an economic harm  See Friends of the Earth v. Laidlaw Environmental Services (S.Ct. 2000) (Court found that, under the Clean Water Act suit for discharging pollutants into a river, members of an environmental organization satisfied the injury-in-fact requirement by attesting that the pollutant discharges had deterred them from fishing, camping, swimming…(despite the fact that the D argued that no harm to the environment had been demonstrated). b) Cause-in-fact – two parts (1) But-for causation:  P must establish a causal link between the claimed injury and the conduct of the D – the injury must be ―fairly traceable‖ to the D‘s conduct.  As with injury-in-fact, the Ct will be somewhat reluctant to accept what may be characterized as speculative/elongated chains of causation, particularly when absent 3 rd parties are involved.  Contrast the below two zoning cases: (i) Warth v. Seldin (ii) Contra Arlington Heights  Bennett v. Spear (1997) (i) Fact: 4 parties receiving water from the project filed suits against the FWS and Secretary of the Interior , arguing that the ESA required that the potential economic impact be considered whether or not to complete a project that will danger endangered species. They claimed standing under the ―citizen-suit‖ provision of the ESA. (ii) The broad citizen-suit provision: (1) includes cases involving over and under enforcement of the ESA; (2) creates legitimate basis for standing here b/c (a) there is an alleged economic injury; (b) the injury is ―fairly traceable‖ to the Services Bio Opinion and is ―likely‖ to be redressed. c) Redressibility: Focuses on relationship between injury and relief sought which must be designed to alleviate the injury caused by Ds conduct. Generalized Grievance: a) General Rule: (1) Precludes Art III courts from entertaining ―citizen‖ or ―taxpayer‖ lawsuits in which the only injury claimed by the P is the shared harm experienced by all citizens and taxpayers when the gov‘t fails to comply w/ the Constitution or laws of the U.S. Unless the P can show that the challenged 2 3 More Free Outlines: http://c.finamore.home.comcast.net or http://finamore.net 7 gov‘t action caused him to suffer a particularized injury (eg. property damage) standing will be denied. (2) Frothingham v. Melon, (1923): no taxpayer standing to challenge federal spending measure as inconsistent w/ the 10 th Amendment (sovereign immunity). b) Exception: Flast v. Cohen (1) Court has since then made it clear that this will be a NARROW exception (probably will only apply in Establishment Cl. cases). 4 Third Party Standing a) Craig v. Boren 5 Legislative Standing a) Raines v. Byrd: (1) Contra, Clinton v. NY b) Powell v. McCormack: Mootness 1 Basic Principle: That Cts. will not decide cases in which there is no longer any actual controversy. 2 Typical Case: Where litigants clearly had standing to sue at the outset of the litigation but events occurred once the lawsuit had gotten under way which deprived litigants of the necessary stake in the outcome. a) Despite its Constitutional origin, the Court has carved out a variety of exceptions to it. Harms, which can prevent a case from being held moot: (1) A continuing harm to the P; (2) The likelihood of the future recurrence of past harm; (D‘s voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice Friends of the Earth) (3) The probability that the future cases will evade judicial review. [quintessential example:. Roe v. Wade]; (4) Class actions. Ripeness 1 Basic Principle: Case has not yet become concrete enough. 2 Rationale: Court wants to prevent premature adjudication–its usually invoked when a dispute is insufficiently developed/too speculative to warrant adjudication. Usually rests on the Art. III ―case -orcontroversy‖ requirement. a) Example, U.S. Public Works v. Mitchell(1947): [Attack on Hatch Act, which prohibited federal executive branch employees from taking active part in political management/campaigns–the challengers sought a declaratory judgment that the act was unconstitutional] Held: Nonjusticiable. Court found it to be premature. Seemed to be seeking advisory opinion on broad Constitutional issues. b) In determining whether sufficiently ripe for Art. III, consider 3 factors (involves certain level of subjectivity): (1) The probability that the predicted harm will take place; (2) The hardship to the party if immediate review is denied; (3) The fitness of the record for resolving the legal issues presented. Political Question 1 General Rule: Even when the Court has jurisdiction over a properly framed suit, it may decline to rule b/c it decides that a case raised “political” q that is dependent on the will of the other 2 political branches. 2 Note that this doctrine has rarely been invoked. No precise litmus test. Tend to focus on: a)Does the issue implicate SOP?; b) Does the Constitution commit resolution of this issue to either the Pres/Cong? 3 Example of Political Question a) Colegrove v. Green (1946): Refused apportionment case because ―Court ought not to enter this political thicket.‖ {Frankfurter} 4 Modern Definition of ―Political Question‖ Baker v. Carr: a) Held: The issue of mal-apportionment of the state legislature is not as a rule a ―political question.‖ Provides prudential factors to consider in determining whether or not it is a political q: b) In reviewing the Guaranty clause (Art.IV §4) cases & in other ―political question‖ cases, it is that relationship btw. the judiciary & the coordinate branches of the Federal Gov’t, & not the federal Judiciary’s relationship to the States, which gives rise to the “political question.” [Therefore, isn’t it really a SOP concern and NOT a separate doctrine]. c) Laid out list of factors; must have at least one to be P.Q. D. E. F. More Free Outlines: http://c.finamore.home.comcast.net or http://finamore.net 8 (1) Commitment to Another Branch. Textually demonstrable commitment of the issue to a coordinate political department. (2) Lack of judicially discoverable standards (3) Issues requiring policy determinations beyond judicial discretion (4) Lack of respect due to coordinate branches (5) Adherence to political decisions already made (6) Potential for embarrassment from multiple pronouncements by departments on one question. 5 Q: Why were Powell v. McCormick and Baker v. Carr not political questions and Nixon was held to be political? a) Textual Commitment to Other Branches b) Nixon v. U.S. (U.S. 1993): Fed. judge being impeached challenge Senate‘s delegation of hearing the case to a committee on grounds that const. required that Senate, not some delegated party, ―try‖ all impeachments. Court ruled that Impeachment Clause provision that ―the senate shall have sole power to try all Impeachments‖ gave the Senate complete authority over what constituted a ―trial‖ under that clause. Lack of Judicially Manageable Standards Strand. 1 Coleman v. Miller (US 1939, p 1653): (governor‘s tie breaker deprived State Senators of vote) Court refused to determine a ―reasonable time‖ to ratify an amendment; would have to consider too much economic and social data better left to other departments. 2 Guarantee Clause Not-Justiciable. Luther v. Borden (US 1849, p 1657): Rebellion in Rhode Island left two governments, case to decide which one was legitimate. Challenges Art. IV, §4 (U.S. shall guarantee to every state a republican form of government) not justiciable. Lack of criteria by which one government or another could be determined ―republican.‖ Prudential Considerations a) (foreign relations – better handled by executive) 2 Need for Unified Voice. Goldwater v. Carter (US 1979): Court refused to decide whether President could terminate a treaty without consent of Congress. 3 Vietnam War too Controversial. Mora v. McNamara (US 1967) G. H. III. The Powers of the National Government Introduction: Sources of Congressional Power 1 Principle of Limited Government: Every exercise of national authority must be linked to a constitutionally granted power a) Problem: Even when powers are explicitly given, we don‘t know the extent of those powers. b) Consequence: Not all actions by the government will be explicitly authorized in the Constitution; many will be implied. 2 Will examine the ongoing struggle to define national power, with regard to: a) Interstate Commerce; b) The Tax and Spend Power; c) Foreign Affairs. B. The Necessary and Proper Clause: 1 The final clause of Art. I, § 8 a) Art. I, § 8: provides for the majority of Congressional powers b) This clause is the ―catch-all‖ provision, which has been relied upon to authorize Congress to effectively carry out their granted powers (and the powers of the other two branches) through whatever means are ―necessary and proper.‖ 2 McCulloch v. Maryland (1819)(p 86) Maryland sued cashier of Baltimore branch of U.S. bank for failing to pay tax, imposed by Maryland, which taxed banks operating w/in the state w/o state authority. a) Held: Congress has the implied powers under N and P to employ reasonable means to carry out their duties under the constitution. Establishing a national bank is a reasonable and constitutional means for the Congress to employ (1) Two justifications for Congressional power to establish bank?  Structural: Implicit in sovereignty that the gov‘t shall have the means to effectively carry out its powers; this is required and implied in the structure of our Constitution (generality?)  Textual: (i) Just a textual affirmation of the above reasoning. (ii) Court interpreted necessary to NOT mean necessary – instead seemed to be reading it as ―necessary or proper.‖ A. More Free Outlines: http://c.finamore.home.comcast.net or http://finamore.net 9 (a) ―To employ the means necessary to an end, is generally understood as employing any means calculated to produce the end, & not as being confined to those single means w/o which it would be unattainable.‖ (iii) Placement in the laundry list of powers implies that it was meant to amplify, NOT limit, Congress‘s power A state may not tax on the operations of the federal government. (1) Source for this prohibition: Supremacy Clause of Article IV (2) Rationale:  States are not sovereigns on par with the federal government and are not allowed to thwart/interfere with the exercise of federal power  A matter of representation -- While the federal gov‘t can rightfully tax the states b/c all the people w/in the U.S. are represented by the federal gov‘t, a single state, which only represents the citizens of its own state, cannot tax the federal gov‘t (an institution and a people it does not have the right to control). ―Take-Aways‖ From McCulloch: (1) Interpretation of the Necessary and Proper clause remains authoritative – today, we still give Congress broad discretion in choosing the means through which it will exercise granted powers (2) N and P -- applies not only to the powers in Art. I § 8, but also to “all other Powers vested by this Constitution in the Government of the U.S., or in any Dpt. Or Officer thereof.”  Empowers Congress to provide the coordinate branches w/ the means to carry out their respective Const. responsibilities.  Example -- Congress created administrative agencies as a ―necessary & proper‖ means through which the President can see that the laws be ―faithfully executed.‖ (3) Principle of “broad” constitutional interpretation -- sets forth a principle of interpretation that has been used ever since (4) (4) Question (Tension): On the one hand we can see the need for such an expansive reading of the N+P clause. On the other hand, where is the limiting principle (DOES THE 10 TH A. provide the ―limiting principle?‖) b) c) IV. A. The Commerce Clause Art. I, § 8, cl. 3 1 provides that ―the Congress shall have Power…to regulate Commerce with foreign Nations, and among the several States and with the Indian Tribes. 2 The Clause has had a two-fold impact: a) As a restraint on state action: to prevent individual states from erecting trade barriers to interstate and foreign trade; (1) Note: C.C. was initially passed to mitigate rivalries between the states (See Federalist Paper # 22) b) As a source of Congressional authority: empowers Congress to get rid of these state imposed restraints and create one common national market. Has been understood to include positive exercises of authority to promote a national economic agenda. (1) Ultimately, the C.C. has become the primary tool for Congress to regulate domestic affairs (note: we will be exploring the scope and evolution of this power). 3 Meaning of the text: a) Commerce: any activity involved in the commercial exchange of goods & services, including the marketing, purchase, & transportation of those goods. b) Among the several states: involve activity occurring in more than one state c) Regulate: the power to prescribe rules under which that commerce shall be transacted, including the power to prohibit particular transactions d) Note that the courts definition of these terms change from case to case; we will track the ongoing struggle of the court to make sense of this…. 4 Under the modern interpretation it reaches 3 types of activities: a)To prescribe rules of conduct to be applied to any activity that can be rationally characterized as involving interstate commerce. b) To regulate the instrumentalities of interstate commerce such as RR & airlines, since these are conduits through which interstate commerce occurs. c)And, in conjunction with their power under the necessary & proper clause, to regulate any economic activity that has a substantial relationship w/ interstate commerce or that substantially affects that commerce. More Free Outlines: http://c.finamore.home.comcast.net or http://finamore.net 10 (1) Often Cts have argued that the power over production can be established under this rationale Brief History of C.C. Jurisprudence: 1 Gibbons v. Ogden (1824): J. Marshall; Held state statute granting steamboat monopoly for steamboat, which traveled between two states unconstitutional. a)Laid down broad, modern conception of C.C. – (1) What is interstate commerce?  Not merely the buying and selling; it includes ―every species of commercial intercourse.‖ (Definition is inclusive enough to cover navigation). (2) What is the extent of the power to regulate it?  Congress‘s power is ―complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than those prescribed in the Constitution.‖ (3) What is the effect on the states of this grant of power to Congress? (Dormant commerce clause)  Put off this issue; sidestepped issue of greatest controversy b) Significance: Allowed for broad national power under C.C. as augmented by N&P, while leaving the power over internal commerce to the States. BUT, at this point the fact that the activity being regulated was ECONOMIC was assumed. c) Note: Didn‘t resolve the ―dormant c.c.‖ issue – the validity of state regulations of local matters that were potentially subject to federal regulation under the CC and NP Clause. 2 Cooley v. Board of Wardens (1851): Taney Court a) Dormant c.c. issue: Except in those areas, which, by their nature require a uniform national rule (area of exclusive national authority), the states retained a concurrent power to regulate local activities until Congress opts to regulate them 3 Post-Cooley -- Court found that in matters of a local nature there are NO concurrent powers, they are reserved for the states. a)This was in part premised on the 10th–the underlying assumption was that there existed an enclave of activity, internal to the states, that was virtually insulated from congressional legislation by virtue of the inherently local nature of the activity. Evolution of Commerce Clause Doctrine – C.C. Toolbox (3 different tests) 1 Direct/Indirect Test: Formal Approach a) U.S. v. E.C. Knight Co. (1895): U.S. attempted to enforce Sherman Act against company that was alleged to have gained complete control over the manufacture of refined sugar in U.S. (1) Held: C.C. power did NOT extend to manufacturing which is a ―local activity,‖ the regulation of which was reserved to the states. (2) Standard: Since manufacturing only “incidentally and indirectly” affected interstate commerce, Congress couldn‘t regulate it. 2 Stream-of-Commerce Approach: Greater Flexibility a) Swift & Co. v. U.S. (1905): Gov‘t brought suit under Sherman Act to restrain practices of certain meat dealers who were alleged to have engaged in a conspiracy to control the prices at which livestock had begun their interstate journey and while they remained in transit as part of interstate commerce. (1) Held: Upheld act b/c even though the activities being challenged took place w/in a single state, the effect on commerce was ―direct‖ since the object of the conspiracy was to restrain livestock arriving in other states. (2) Stream of commerce theory -- the stockyards were one step in the stream of commerce for products that would arrive in other states and therefore could be regulated. [Matters could be regulated not b/c of their impact on commerce but b/c they were in commerce]. 3 The “Substantially Affects” Test: Very Flexible a) Shreveport Rate Cases (1914), Upheld federal statute, authorizing ICC to prohibit a RR from charging a higher rate for interstate services than was charged for similar intrastate services w/in TX. (1) Held: ―Local‖ RR rates were reachable b/c of their practical, economic impact on interstate transportation. Emphasizes practical considerations rather than the formal logical approach used in Knight. (2) Shreveport Doctrine: Wherever the interstate & intrastate transactions or carriers are so related that the gov‘t of the one involves the control of the other, it is Cong., & not the State, that is entitled to prescribe the final & dominant rule, for otherwise Cong. would be denied the exercise of its Const. authority & the State, & not the Nation, would be supreme w/in the national field b) Wickard v. Filburn [142] HELD: ―Even if activity be local and though it may not be regarded as commerce, it may still be reached by Congress if it exerts a substantial economic effect on interstate commerce, irrespective of ‗direct‘ or ‗indirect‘ distinction B. C. More Free Outlines: http://c.finamore.home.comcast.net or http://finamore.net 11 4 Period of court hostility toward federal economic regulation (1905-36). a) (Look for the same trend when we get to substantive due process). b) Example: Hammer v. Dagenhart (1918): (1) Held: Congress couldn‘t prohibit interstate transportation of goods manufactured w/ child labor. Even though the statute literally regulated interstate commerce itself, the court concluded that the real object and purpose of the law was to regulate manufacturing, a purely local activity that was reserved for the states. (2) Note: Here, the Statute directly regulated interstate commerce. In overruling the statute, the court is considering: (1) the congressional motive; (2) the potential impact on local activities (3) Dissent (Holmes): Power over interstate commerce was granted to Congress – Court should not inquire into motive and should defer to its decision. c)Also see Bailey v. Drexel Furniture(1922): Court held that a revenue-generating measure that purported to be a tax–the child labor tax law –was indeed a disguised regulation agst. child labor and not a proper exercise of the power to tax. Court sees that the gov‘t is trying to get around Hammer v. Dagenhart. Here, like in Hammer, the court placed a special emphasis on the motive of Congress. This means that the court looks at the taxing statute to see its purpose, its intended effect, and its effect in normal operation. If the purpose is for revenue then the tax is valid. But here, the court finds that the purpose is to discriminate btw. ―good guys‖ and ―bad guys‖ and is therefore unconstitutional. 5 Note, prior to Hammer, the Court had allowed some regulations imposed by Congress that were ―intended‖ to alleviate a primary local harm (not really aimed at controlling trade for ―trades-sake‖ but the court didn‘t care at this point). a) One example: Champion v.Ames, in which the court held that Congress could restrict the shipping of lottery tickets b/c the ―suppression of nuisances injurious to public health/morality is among its most important‖ gov‘t duties. b) Similar holding in Hoke v. U.S. regarding statute, prohibiting transportation of women for prostitution c) [Note – why were ―morals‖ a legit basis for regulation, and not protecting against child labor?] 6 Court‘s restrictiveness carried through the beginning of New Deal, invalidated many Cong. statutes: a) Schechter Poultry Corp. v. U.S. (1935) [131]: Bad test case under C.C. b/c dealing w/ a very ―local‖ kosher poultry business (1) Held: Overruled the NIRA that regulated the hours and wages of employees in poultry business, relying on the Knight ―direct‖ and ―indirect‖ effects distinction. (2) Also overruled b/c:  Unconstitutionally delegated legislative powers to executive and private parties;  Extraordinary conditions don‘t create/enlarge Constitutional powers (3) Note: Entire Court (even the ―liberals‖ who had previously upheld regulation) found this act unconstitutional – Why? Even the courts liberal members were chagrined by the vastness of the NIRA scheme both w/ regard to the delegation of its authority to private authority combined with the sheer sweep for the NIRA into local industry—can be contrasted w/ the more carefully drafted and litigated NLRB. b) Ct. struck down tons of New Deal leg.; eventually led FDR to propose Court Packing Plan. Although never adopted, FDR succeeded in changing the direction of the ct., in part due to implicit threat of plan and in part due to natural course of judicial retirements and new appts. The ―Switch in Time That Saved Nine:‖ The Court‘s Decision in NLRB 1 NLRB v. Jones & Laughlin Steel Corp. (1937) [137]: Great test case–Pittsburgh Steel Co. brought and sent products everywhere. NLRB found that a Co. had engaged in unfair labor practices agst. union members. Co. failed to comply. a) Held: Abandoned the direct/indirect test from Knight and applied the ―close and substantial relationship‖ test from Shreveport, to uphold the National Labor Relations Act‘s regulation of local activity that affected interstate commerce. b) So long as the activity being regulated is impeding interstate commerce it can be regulated, it doesn‘t matter the motive or whether in stream of commerce. 2 Significance: Revived ―affecting commerce‖ rationale–the rationale, which justifies national regulation of intrastate activities b/c of their practical effect on interstate commerce. The Modern Law of the Commerce Clause 1 Introduction: The Court‘s Darby decision provides a classic ex. of Gibbons reformulated to advance goals of national economy. Also describes basic framework for current jurisprudence: 2 U.S. v. Darby(1941): Challenged the Fair Labor Standards Act, which prohibited the shipment in interstate commerce of certain products manufactured by employees who earned less than the minimum wage/who D. E. More Free Outlines: http://c.finamore.home.comcast.net or http://finamore.net 12 worked more hours than a specified max. Statute also prohibited employment of workers, at other than prescribed wages and hours, in the production of goods intended to be shipped in interstate commerce. a) Upheld restriction on shipment: It was constitutional so long as it actually regulated interstate commerce. No longer care about motive/local impact of the act. b) Upheld restriction on employment – could have previously been unwilling to do this because it was considered a local activity. Yet, w/ the aid of the NP Clause, here Congress was held to have the power to regulate intrastate activity that had a “substantial effect on interstate commerce.” 3 Under a rational basis test, the Court is willing to accept a range of possible rationales for regulation. So long as the court concludes that Congress could have had a reasonable basis for passing legislation, it will not look to the actual motive involved. a) *Rejected argument that the 10 th prevented Congress from passing FLSA: Court says the 10th Amendment is a ―truism‖ b) Note: Compare and contrast the statute here and the statute in Schechter…. 4 Darby’s Significance: Net Result –> significant expansion in federal power. a) The court abandoned the view that under the commerce power, Congress could regulate only the ―stream of commerce‖ and those activities that had ―direct effects‖ on interstate commerce; instead, the court adopted the more inclusive ―substantially affects‖ test b) Note that it is not necessary for each entity being regulated to have a substantial effect. It is enough that Congress is regulating a class or group of activities that in the aggregate exerts this effect c) By treating 10th as a truism, the Darby Court essentially destroyed the enclave theory and the notion that certain activities were automatically off limits to federal regulation. (1) Note: sometimes Court will require proof of a jurisdictional nexus w/ interstate commerce before a regulation can be applied in a particular case. As a result, Congress will write statutes in which the first part regulates interstate commerce while the second part regulates a matter that substantially affects interstate commerce. [This is not a court test, just a tool through which Congress attempts to confine federal law to constitutional norms.] Commerce Clause and Civil Rights 1 Introduction:Congress has used CC as a source of gov‘t authority to prohibit various forms of discrimination in the economic marketplace, including discrimination based on race, gender, age, and disability. 2 Heart of Atlanta Motel v. United States (1964) [146]: Upheld provision of Civil Rights Act, finding that Congress could have reasonably concluded that racial discrimination by motels serving interstate travelers substantially affected interstate commerce by decreasing the interstate travel by blacks due to racism and uncertain lodging. 3 Katzenbach v. McClung (1964) [146]: Here dealing w/ local family restaurant in Birmingham, but bought some food from out of state. Court turned to congressional hearings, citing evidence that raci al discrimination by restaurants had a depressing effect on the economy by diminishing the amount spent in such restaurants by black customers and by imposing a ―depressant effect on general business conditions in the respective communities.‖ This burden, albeit indirect, was sufficient. Recent Move Toward Closer Judicial Scrutiny 1 Introduction: For the first time since the New Deal, the Court held that a congressional regulation of private activity exceeded the authority granted to Congress under the C.C. 2 United States v. Lopez (1995) [149]: D challenging constitutionality of Gun-Free School Zones Act, under which he had been charged and convicted for possessing a firearm in a ―school zone.‖ a) Held: Possession of a gun in a school zone is not sufficiently related to interstate commerce to justify the regulation under the Gun-Free School Zones Act. (1) Channels of interstate commerce (okay) (2) Instrumentalities of or persons or things in interstate commerce (okay) (3) Activities having substantial effects in interstate commerce (new state) b) Holding: Two related concerns: ―Where economic activity substantially affects interstate commerce, legislation regulating that activity will be sustained.‖ (1) ―Economic activity‖ is a threshold requirement for regulation of conduct under C.C.  Activity being regulated must itself be properly characterized as economic in nature, OR  Regulation of the activity must be ―an essential part of a larger regulation of economic activity.‖ [Decision made it clear that creative efforts to expand phrase beyond what is commonly accepted as commercial in nature will be viewed w/ fatal suspicion]  To allow regulation in this case, and accept Gov‘t arg. that schools contribute to ntl. economic well-being, would essentially transform C.C. into a general police power. F. G. More Free Outlines: http://c.finamore.home.comcast.net or http://finamore.net 13 (2) ―Substantially affects‖: Court is now willing to scrutinize whether the activity ACTUALLY, SUBSTANTIALLY affects commerce  Even though we‘ve seen this language used in Shreveport and then in Darby, here the majority places a special emphasis on it. Now:  The mere effect on interstate commerce won‘t sustain an exercise of the power.  Court will be unwilling to continue to defer to the judgment of Congress. Court will independently evaluate whether a sufficiently substantial relationship/effect validates the exercise of power. (i) Rejected creative ―effects‖ arguments [eg. that guns in the schools, increases crime, which discourages travel] c) *Problem: the court doesn‘t provide us with particular tests/standards. Following this decision, all we know is that the gun law here didn‘t satisfy them. d) Two Alternative Readings of Lopez: (1) No exercise of the C.C. will be validated unless the activity is an economic activity and it substantially affects interstate commerce; (2) That the two elements are not necessarily independent of one another, but merely diff. perspectives on the ―substantially affects‖ inquiry, one focusing on the nature of the activity and the other focusing on the actual relationship w/ interstate commerce. United States v. Morrison (2000) [166]: Court invalidates § 13981 of the Violence Against Women Act as beyond the confines the Congress‘s commerce power. a) In Lopez, the court held §922 to be an improper exercise of power under CC, b/c: (1) The activity in question must be some sort of economic endeavor. Here, it was a criminal statute that by its own terms had nothing to do w/ commerce or any sort of economic enterprise. (2) The statute contained ―no express jurisdictional element which might limit its reach to a discrete set of firearm possessions that additionally have an explicit connection w/ or effect of firearm possessions that additionally have an explicit connection w/ or effect on interstate commerce.‖  No formal findings establishing ―substantial burdens‖  Link between gun possession and a substantial effect on interstate commerce was attenuated. b) Like Lopez, gender motivated crimes are not ―economic activity,‖ §13981 contains no jurisdictional element to tie it to interstate commerce (actually wider here, covering all violent crime), there is a weak causal link btw. violent crimes and commerce (although more evidence about harm to victims was presented at trial) 3 V. External Limits on Power of Federal: 10th and 11th Amendments Introduction: State Immunities and Limits on Congressional Power 1 Whether and under what circumstances can a state‘s activities, even though they otherwise relate to commerce, are nevertheless immune from federal regulation because of external limits (stemming from the 10th and 11th A, and from other structural considerations from the federal scheme)? 2 Within our federalist system, the governing of the nation is shared by two sets of sovereigns – one national and one state. There are two ways that this principle of federalism can inform the Courts decisions in defining the proper scope of power: a) May operate as a rule of construction that limits the defined scope of constitutionally granted powers [eg. Lopez definition of commerce]; b) May function as an independent check. B. The Tenth Amendment Timeline (20th Century) 1 Until 1976, the Court continued to reject challenges to federal regulations allegedly interfering with state autonomy. a) See Darby, the ―10th A as a truism.‖ Seemed to have ―rung the death knell for federalism as a check on the exercise of national power.‖ b) See Maryland v. Wirtz (1968): Ct, rejecting the state immunity claim, upheld the amendment to the Fair Labor Standards Act, applying the law to employees of state-operated schools & hospitals. However, in the dissent, J. Douglas argued that this Leg. was a violation of state sovereignty under the 10th Amendment c) But see Fry v. U.S. (1975): Ct narrowly upheld the federal law, emphasizing that the federal law was an ―emergency measure‖ of a limited scope. Acknowledged that although the 10 th was characterized in Darby as a mere ―truism‖ it was not without significance. A. More Free Outlines: http://c.finamore.home.comcast.net or http://finamore.net 14 (1) “The Amendment expressly declares the constitutional policy that Congress may not exercise power in a fashion that impairs the States’ integrity or their ability to function effectively in a federal system.” But see Ntl. League of Cities v. Usery (1976) [173] Reaffirmed fed. as a check on national power. a) Rejected provision of FLSA that extended minimum wage and maximum hour provisions to all employees of state and local governments b) HELD: 1) It ―impermissibly interfered with the integral governmental functions of these bodies‖ (integral functions = basic employment decisions of fire, police, sanitation, public health, parks, and recreation). c) Significance: Although FLSA clearly fell within the scope of the C.C., the court overruled it as a violation of the 10th A (viewed as a reflection of principle of federalism as embodied in structure of Constitution) – the principle of state autonomy here is NOT limited to the commerce clause power. Ntl. League overruled by Garcia v. San Antonio Metrop. (1985): Returned the 10 th to a ―truism?‖ a) Ntl. League ―traditional functions‖ test is unworkable b) Yet, the Court insists that it is NOT saying that 10th is meaningless – just refusing to put forth a specific test. c) Argues that the procedural safeguards inherent in the structure of the federal government is a better protection of state interests than judicially created limits (e.g. Congress, which is comprised of rep. from states, must make decisions as to necessary intrusion upon states.) See New York v. U.S. (1992) [179], Held that Congress: a) Could preempt the states from the field of regulation by directly regulating the private activity, b) Could try to entice the states into implementing the federal scheme by offering a monetary incentive to do so (S.D. v. Dole, spending power), c) BUT Cong. could NOT directly force a state to administer a federal regulatory scheme. (1) *Note: It doesn‘t matter that the states consented b/c where Congress exceeds its authority relative to the States, the departure from the Const. plan cannot be ratified by the ―consent‖ of state officials. d) Facts: Compromise btw. States to accept low level radioactive waste. The act imposed 3 ―incentives‖ to ensure states compliance: (1) monetary; (2) access incentives; (3) a ―take title‖ provision, which specified that a state or regional compact that failed to provide for the internal disposal waste by the proscribed date must, upon the waste generator‘s owner‘s request take possession of the waste & become liable for any of the damages incurred. NY claimed act was unconstitutional under the 10 th A. (1) The 3rd component was overruled here b/c it violated the 10 th A and principles of federalism – in forcing the states to take waste and responsibility for any damages that result and in forcing the states to regulate according to the Congressional scheme, the federal government had invaded state sovereignty and treated the states like administrative agents, ―commandeered‖ into federal service.‖ (2) Note: The New York decision itself had only involved a federal command directed at state legislatures but language of the court seemed broader: ―the Federal Gov’t may not compel the States to enact or administer a federal regulatory program.” Unsure of scope until Printz. Printz v. United States (1997) [186]: HELD: To the extent that the Brady Act imposed federal administrative duties on local law enforcement officers, violated the constitutionally enforceable principle of federalism (the structural framework of dual sovereignty). In the Court‘s view, this aspect of the Brady Act was indistinguishable from the take-title provision struck down in NY v.United States. a) Even though in NY the take title provision required state legislatures to create policy, where as here it simply issues final directives to state CLEOS, b/c: (1) Line between ―policymaking‖ and ―implementation‖ is unclear (2) Worse than N.Y. case -- preservation of the states as independent and autonomous political entities is arguably less undermined by requiring them to make policy in certain fields than by reducing them to Congressional puppets. (3) Hurts federal and state accountability—by forcing state gov‘t to absorb the financial burden of implementing a federal regulatory program, Congress can take credit for solving problems w/o have to set aside funding. b) In Printz, the Court made clear that under such circumstances there wouldn‘t be any balancing of interests. A federal law whose object is to force state participation in a federal regulatory scheme is categorically unconstitutional. Reno v. Condon (2000): Unanimous S.Ct. held that NY v. U.S. and Printz had not limited Congress‘ ability to regulate the commercial vending of personal data by the states. At issue were amendments to the DPPA, which regulated and restricted the ability of states to sell the personal info their DMV collects on drivers and car owners. 2 3 4 5 6 More Free Outlines: http://c.finamore.home.comcast.net or http://finamore.net 15 The license info is a thing of interstate commerce so Congress has the power to regulate. Unlike NY v. U.S. this does not violate the 10th, b/c: (1) The DPPA doesn‘t require the States in their sovereign capacity to regulate their own citizens (not applying to states b/c they are states; it also applies to private parties who obtain this information); (2) The DPPA regulates the States as the owners of databases (3) It does not require state legislatures to enact any laws or regulations (all done under federal law) (4) It does not require state officials to assist in the enforcement of federal statutes regulating private individuals. c) Reminder: In addition to sometimes serving as a basis for invalidating a federal law, the principle of federalism also serves as an important tool of statutory construction. (i.e. in order to overcome the presumption that Congress does not regulate a state/ subdivision directly, Congress must make its intent to do so unambiguously clear). The Eleventh Amendment 1 Introduction: a) The Eleventh Amendment established (reaffirmed?) the principle of sovereign immunity. b) Was adopted b/c of the uproar created by Chisholm v. Georgia (1793), where the Ct took original jurisdiction of a suit against GA by a South Carolina creditor seeking payment of goods purchased by GA during the Revolution. 2 Case Law: a) Background to Hans: Following the Civil War, Congress for the first time effectively gave the federal courts general federal question jurisdiction, AND a large # of states in the Sth. defaulted on their revenue bonds in contravention of the K clause. b) Hans v. Louisiana (1890) [197]: Highly criticized ruling that the 11th applied not only to cases w/in the diversity jurisdiction but also to cases w/in the federal question jurisdiction of the federal Cts. (1) Held: The 11th (or the principles under the which the A. is based) is also a bar for suits brought by citizens of that state against itself. c) Subsequent cases made considerable inroads on the state sovereign immunity provided by the amendment allowed the following: (1) A federal ct. could issue an injunction against state officials enforcing an unconstitutional state law; (2) Suits for prospective injunctive relief against state officials; (3) States to be sued directly for retrospective damages, under 14 th enforcement. 3 Seminole Tribe of Florida v. FA (1996) [198]: Rejected the Indian Gaming Regulatory Act that imposed upon the states a duty to negotiate in good faith w/ an Indian tribe toward the formation of a compact & authorized a tribe to sue the state in a federal Ct in order to compel performance of that duty. a) Held that the commerce power does NOT give Congress the power to abrogate a state‘s 11 th Amendment immunity. Thus, the law cannot grant jurisdiction & the state cannot be sued. b) Note: 11th A. poses independent bar to the exercise of Congressional Power. 4 Alden v. Maine (1999) [199]: Extends the state sovereign immunity bar announced in Seminole from lawsuits against states in federal court to lawsuits against states in state courts. a) Reasoning: (1) Acknowledging that this limitation on congressional powers could not be derived from the text of the 11th A., which merely limits the exercise of federal judicial power. (2) This extended immunity is rooted in the Constitution‘s structure and history, which make it clear that States‘ immunity from suit is a fundamental aspect of the sovereignty, which the states enjoyed before ratification and today. b) In spite of this ―extended immunity,‖ the court noted that there are other bases for individuals to sue states: (1) Suits to enforce Art. I legislation when brought by fed. gov‘t themselves (2) Suits brought by private individuals under federal statutes authorized by §5 of the 14th A. (3) Under Ex Parte Young (197), the state sovereign immunity does not bar ―certain actions against state officers for injunctive or declaratory relief.‖ (no money damages as compensation to be paid from treasury) 5 Kimel v. FA Board of Regents (2000): Court invalidated Congressional attempt to abrogate sovereign immunity under the Age Discrimination Act. a) Reasoning by Court: (1) On the one hand, Ct. noted that Congress had the power to regulate age discrimination among employers generally, including the States, under the Commerce Clause. a) b) C. More Free Outlines: http://c.finamore.home.comcast.net or http://finamore.net 16 (2) On the other hand, Congress‘s power under the Commerce Clause does NOT include the power to subject states to suit at the hands of private individuals. (3) Therefore, the Ps will ONLY be able to bring their suits against Alabama and Florida if and only if the ADEA is appropriate under § 5 of the 14 th. VI. The Power to Tax and Spend Introduction: Questions to Consider 1 Which is more effective to achieve Congressional purpose? 2 Which is easier to administer? 3 Which is more acceptable to objects of regulation? 4 To what end may the government tax and spend? a) According to the language of the clause, the permissible ends include: debts, common defense, and general welfare of the nation. b) In actuality, have been broadly construed to provide practically limitless discretion. (1) See Helvering v. Davis (1937): the discretion to define general welfare belongs to Congress (2) See South Dakota v. Dole (1987): the term ―general welfare‖ may not be a judicially enforceable restriction. (3) See United States v. Butler (1936): Court held that the power to tax and spend is a distinct constitutional power, fully effective w/o reference to other granted powers. B. The Power to Tax 1 Art. I, § 8(1), ―The Congress shall have the power to lay and collect taxes, duties, imposts, and excises.‖ a) Note: This power doesn‘t rely on other enumerated powers. This means there is NO subject matter jurisdiction Congress can regulate – allows it to reach things that it wouldn‘t be able to reach via the commerce clause. 2 Limitations on Congressional Taxing Power: a) Must be uniform throughout country b) Direct taxes must be in proportion to # of people each state c) No tax or duty on exports 3 What Constitutes a Tax for Purpose of the Taxing Power? 2 Inquiries: a) Does the measure operate as a tax (i.e., does it raise some revenue)?; (1) Low threshold – generally, will only fail if it raises no revenue b) Even if the measure raises some revenue, does it function in a fashion that is more properly characterized as prohibitory or penal? (1) Today, once it is established that a purported tax raises some revenue, the presumption is that the measure is a true tax will be difficult to overcome. The mere presence of a regulatory effect will be insufficient. Courts will be unwilling to look into hidden motives. 4 United States v. Kahriger (1953) [209]―low threshold‖ a) FACTS: A federal tax was levied on each wager made on gambling employees, and there was a requirement of registration for those gambling. The tax was challenged as being a disguised regulatory measure. b) HELD: 1) A federal excise tax does not cease to be valid merely because it discourages or deters the activities taxed. Nor is the tax invalid because the revenue obtained is negligible. 2) Unless there are penalty provisions extraneous of any tax need, courts are without authority to limit the exercise of taxing power c) General Rule: Even if Congress‘ principal motive is to regulate rather than tax, so long as the tax produces some meaningful revenue and any regulatory provisions accompanying the tax are reasonably related to the tax‘s enforcement, it will be okay. 5 Bailey Drexel Furniture Case: Child Labor Tax Case (1922) [206] ―Unusual Case Looking at Motive‖ a) HELD: that a revenue-generating measure that purported to be a tax–the child labor tax law –was just disguised child labor regulation and not a proper exercise of the power to tax. b) In its decision (similar to Hammer), the Ct. examines the statute for its motive/intended effect, and its effect in normal operation. Will only be valid if the purpose is for revenue. c) Cautionary note – This case probably isn‘t good law anymore – (1) It was decided during the pre-Switch in Time era when the Court was prone to interpret the powers of Congress in relatively narrow fashion; (2) Today, if the Ct. were to conclude that a tax was penal/prohibitory, the most likely result would be that the regulation would be upheld as an exercise of the commerce power under Darby. Although, given the recent Lopez decision, we would have to be cautious. A. More Free Outlines: http://c.finamore.home.comcast.net or http://finamore.net 17 (1) [Makes sense – taxing/other alternative powers were most useful as a means to regulate when Congress‘s power to directly regulate was severely constricted by the court‘s narrow interpretation of the commerce clause – once that interpretation broadened, it provided a very efficient tool for Congress] The Power to Spend 1 Art. 1, § 8, Gives Congress power ―to lay and collect Taxes…to pay Debts and provide for the common Defense and General Welfare of the United States.‖ a) Henkin: ―The national spending power is probably the most important of all Art. I § 8 powers in its impact on the actual functioning of the federal system.‖ 2 What Constitute ―Expenditures‖ for Purposes of the Spending Power? a) If the spending is directed toward the common defense or the general welfare. (1) Note: Congress may also spend money incident to its other powers b) Although, generally Ct. review of exercises of spending power is very deferential, if it finds that a spending measure is actually a disguised regulation of private activity, the measure won‘t past muster as an exercise of the spending power. c) Program must be 1) voluntary 2) to induce action and 3) not to coerce action 3 Spending Clause Jurisprudence: General Trends a) Congress has long promoted federal policy by attaching conditions to the use of funds given to the states. A state autonomy limitation on such conditions has been suggested but is only conjectural at this point [esp. after Garcia overruled Natl. League]. The Court held that Congress may condition such grants on cooperation w/ federal objectives; and b) Congress is pretty much the arbiter of what is for the general welfare. Query whether this spending power can be used to enact leg. in almost any field; and c) Only limitation -- the spending program still must be reasonably adapted to the attainment of an end that will justify the expenditure. 4 U.S. v. Butler (1936) [211]: Rejected incentive program for farmers to reduce production under the Agricultural Adjustment Act, on the grounds that it was backdoor regulation. Congress, via the spending and taxing powers, coerced farmers to enter into contracts with the federal government, which bound farmers to a regulatory scheme, which would not have passed otherwise b/c it was beyond Congress‘s regulatory power. a) Two Basic Problems: (1) Disguised regulation: The program was not truly voluntary. A farmer who refused to accept would be placed at a substantial competitive disadvantage; (2) Substance of the regulation beyond power of Congress: At this time, it was impermissible for Congress to directly regulate the nature of production under the commerce clause b/c it was a local matter, only indirectly affecting interstate commerce. b) Note: Today, Court would have been more deferential b/c even if it was ―backdoor regulation‖, Congress would probably be able to regulate it under the Commerce Clause (rationale: farming for profit is economic activity that substantially affects interstate commerce). 5 Coercion of the states by Congress: a) Companion Cases: Social Security Cases b) Steward Machine Co. v. Davis (1937)(p 216): Upheld Social Security Act which imposed an excise tax upon Ers of 8 or more, w/ a credit given where the Er has made contributions to a state unemployment fund. Issue over the constitutionality of a federal taxing structure designed to induce states to adopt laws complying with federal standards (state autonomy claim). Held that a conditional spending (tax-credit combo) that seeks to induce state action is constitutional if the action is ―fairly within the scope of national policy and power.‖ (1) It was for the ―general welfare‖ (to provide relief in depression); will go to general fund; not earmarked like in Butler. (2) No impermissible coercion under the 10th A. It is simply a corrective measure to ensure that states with security plans don‘t suffer an economic disadvantage (i.e. scare away business). Will only be accomplished via a cooperative endeavor  Note: implicitly accepts that ―coercion‖ would be invalid (3) Aim of statute is to protect the federal treasury/fiscal need; NOT to discourage/encourage unrelated conduct like in Bailey. c) Helvering v. Davis (1937)(p 218) Upheld federal spending scheme, which laid special taxes on covered Ers and Ees and provided for the payment of federal old age benefits. (1) Defer to Congress as to definition of ―general welfare‖ C. More Free Outlines: http://c.finamore.home.comcast.net or http://finamore.net 18 (2) It is a national problem requiring national solutions; individual states would be penalized for imposing such taxes and offering such benefits independent of a national program b/c: (1) business would move elsewhere; (2) would be a magnet for the old/needy d) South Dakota v. Dole (1987) (Disbursal of federal highway funding that required any state accepting the funds to make the possession of alcoholic beverages illegal for persons under 21 yr.) (1) Upheld provision. Based decision on broad reading of Congressional power -- that Congress has authority to impose conditions on the receipt of federal funds, even to attain objectives it might not be able to attain directly. The authority is incident to the spending power. (2) Provided 4 limitations on Congressional spending power:  1. It must be in pursuit of the public welfare  2. Any conditions imposed must be unambiguous, so that the states make knowing choices  3. The conditions must be related to the federal interests in particular national programs  4. The conditions must not demand what the constitution forbids. (3) Application here:  Statute is consistent w/ the first 3 requirements b/c it is intended to promote highway safety in interstate travel.  With regard to the fourth requirement – (i) The Statute does not impermissibly coerce the states in violations of the 10 th A – a 5% tax is NOT coercive. (ii) Moreover, b/c it is constitutionally permissible for states to increase their drinking age, Congress is not barred from imposing such a condition of federal funds. VII. The Power Over Foreign Affairs A. Introduction: Judicial Deference to Foreign Affairs 1 Includes specific textual grants and the implied authority of the U.S. to exercise those powers inherent in the concept of nationhood and sovereignty. While the exercise of these powers must conform to the text and principles of the Constitution, one can expect the judiciary to be deferential in examining whether any exercise of the power over foreign affairs exceeds the scope of constitutionally vested authority or transgresses constitutional limitations. B. Foreign Affairs Power of Congress: 1 U.S. v. Curtiss-Wright (p 231): Argued that the below powers inhere in sovereignty and are NOT dependent on textual affirmative grants within the Constitution. a) Argued that the statement that the federal gov‘t can exercise NO powers except those specifically enumerated in the Constitution, and such implied powers as are necessary and proper to carry into effect the enumerated powers is categorically true only in respect to domestic affairs. b) Henkin: While this has been dismissed by some; it has never been overruled. C. The Treaty Power: 1 Constitutional Provisions a) Art. II, § 2, cl. 2, grants the President the ―Power, by and with the Advice and Consent of the Senate, to make Treaties, provided 2/3s of the Senators present concur.‖ b) Art. VI (The Supremacy Clause), treaties are the supreme law of the land and are binding on states (preempts ALL state laws inconsistent with its terms). 2 Two types of treaties a) Self-executing: est. enforceable domestic law w/o additional Congressional action b) Non-self-executing: requires Congressional implementation before its provisions can be any effect as domestic law (e.g. treaties that require an appropriation of money or the criminalization of certain conduct). 3 General Principles a) * The treaty power (like the power to tax and spend) is a distinct constitutional power that may be exercised w/o reference to other constitutional grants of power. b) Once a treaty is ratified, Congress, pursuant to NP Clause, may enact legislation to implement provisions of the treaty, even if in the absence of the treaty Congress would not have had the power. c) Note, that to this extent, the 10th A. is not a limitation on the treaty power. d) Historical Note -- An earlier case, DeGeofrey v. Riggs (1890) [228], held that the treaty power may extend only to ―proper subjects of negotiation between our government and the governments of other nations.‖ In spite of that suggestion, the reality is that the court has never held a treaty to be invalid on the ground that it addressed a subject matter beyond the competence of the treaty power. 4 Missouri v. Holland (1920) [226]: ―Migratory Birds‖ More Free Outlines: http://c.finamore.home.comcast.net or http://finamore.net 19 Facts: The U.S. entered treaty w/ Great Britain designed to protect the annual migration of a bird species, which provided both a food resource and important pest control. Treaty called for closed hunting seasons and other protections. Congress responded by enacting Migratory Bird Treaty Act, which empowered the secretary of agriculture to impose regulations designed to implement the provisions of the treaty. Missouri then challenged the regulations as a violation of the 10 th. b) Held: (1) Court assumed that in the absence of the treaty, Congress would have lacked the power to pass MBTA. Held it would still be constitutional under Art. I, § 8 as a ―necessary and proper‖ means to implement the treaty so long as the treaty itself passed constitutional muster. (2) ―The only question is whether it is forbidden by some invisible radiation from the general terms of the Tenth Amendment‖ (3) The 10th provided NO bar to Congressional authority under the treaty power b/c the treaty power was delegated to the U.S under the Constitution. c) Note: B/c treaties are HARDER to pass than legislation, we don‘t need to worry too much about the gov‘t using the treaty power to exercise authority it wouldn‘t be able to do via domestic law. 5 Bricker Amendment a) A response to worries (exacerbated by Holland decision) that all constitutional limitations could be overridden by international agreement b) 2 sections: (1) § 1: ―A provision of a treaty which conflicts with this Constitution shall not be of any force or effect.‖  There was confusion over whether the Constitution was a limitation on the treaty power. The Supremacy Clause speaks of ―laws pursuant to the Constitution‖ but Treaties under the ―Authority of the United States.‖  Some (Holmes) argued that treaties are not subject to the Constitution.  Henkin: ―Pursuant‖ here means ―following‖ – it was purposely left out with regard to treaties because the framers wanted to include treaties that had been made prior to the framing of the Constitution.  Issue decided in Reid v. Covert (1957) [229], where court overruled treaty as inconsistent specific constitutional provision. HELD: ―No agreement with a foreign nation can confer power on the Congress, or on any other branch of Government, which is free from the restraints of the Constitution.‖ (2) § 2: ―A treaty shall become effective as internal law in the U.S. only through legislation which would be valid in the absence of treaty.‖  This section was aimed against the Holland ―enlargement‖ of Congressional powers under the treaty power.  Today, often have ―non-self-executing‖ clauses which require Congress to pass an act to make it the law of the land (this innovation achieves a good part of the Bricker goals) 6 Remaining question – What about conflicting treaties and federal statutes? Treaties and federal statutes are on equal footing–usually the most recently adopted will prevail over the other. 7 Power over foreign affairs as a restraint on state power? a) The broad power over foreign affairs may also act as a restraint on state action. See Zschernig v. Miller (1968) [232], where the Court barred the application of a state alien inheritance law b/c it intruded ―into the field of foreign affairs which the Constitution entrusts to the President and the Congress.‖ Executive Agreements 1 Introduction: Since Washington, the executive has entered into executive agreements that don‘t satisfy the treaty requirements. The authority to do this is considered to be inherent in the concept of nationhood. See U.S. v. Curtiss-Wright Export Corp. 2 3 types of executive agreements: a) Those that are congressionally authorized by either a prior delegation/subsequent implementation (Congressional Executive Agreement); b) Those that are authorized by the provisions of a preexisting treaty; and c) Those that are undertaken under the independent constitutional authority of the executive branch. 3 In terms of constitutional power, the validity of an executive agreement depends, at least in theory, on the scope of the granted power pursuant to which the agreement was made. However, any limits derived from that are largely theoretical since the S.Ct. has never held an executive agreement invalid on grounds that it exceeded the powers granted to the national government. 4 When an executive agreement conflicts with laws a) D. More Free Outlines: http://c.finamore.home.comcast.net or http://finamore.net 20 a) State law: will be preempted by conflicting valid executive agreement b) Federal law: more complicated (1) If the executive agreement is authorized by Congress it will have the same preemptive effect as a treaty (2) BUT, if it is solely authorized by the executive authority then there is disagreement as to its preemptive weight. See Youngstown Sheet v. Sawyer The War Powers 1 Introduction: a) The below powers, coupled w/ the necessary and proper cl. and the ―inherent‖ sovereign power of the government to conduct foreign affairs vest the U.S. w/ the complete power to make war and to prosecute war successfully. (Still limited by the Constitution, i.e. Bill of Rights) b) These powers are BROAD c) They are NOT limited to the theater of war; they may be exercised domestically 2 Constitutional (textual) Power a) Congressional Powers (Art. 1, § 8): To declare war, raise and support armies, provide and maintain a navy, and tax and spend for the common defense b) Executive Powers (Art. II, § 2): To lead the armed forces as commander-in-chief 3 Woods v. Cloyd W. Miller (1948): a) Upheld the Housing and Renting Act that limited the amount of rent that could be charged for housing in ―defense-rental areas‖ w/in U.S. even though it was passed after the end of hostilities in WWII. b) Found that this was a legitimate attempt by Congress to ameliorate the lingering effects of the war -since the war effort contributed heavily to the deficit, Congress has the power even after the cessation of hostilities to act to control the forces that a short supply of the needed article created. c) Note: Even though Court still affirmed its authority to review exercises of the war powers it appears that it will only strike one down in extreme circumstances E. VIII. The Supremacy Clause A. Article VI, Clause 2 1 ―This Constitution, Laws of U.S. in pursuance thereof, and Treaties under authority of U.S., shall be the supreme Law of the Land, and States are bound thereby‖ 2 Foundation for the law of federal supremacy traced by McCulloch v. Maryland and Gibbons v. Ogden 3 NOTE: The federal law must itself be valid under appropriate constitutional standards. If the federal law is not valid, the Supremacy Clause has no effect. B. The Preemption Doctrine 1 General Rule: Valid federal law, including statutes, treaties, administrative rules, and common law, supplants or supercedes state law that is inconsistent with the specific terms or overall objectives of the federal law. Pacific Gas & Electric v. State Energy (1983) [315] a) Express Preemption: Congress expressly describes the extent to which a federal enactment preempts state law (must be clear from the face) b) Conflict Preemption: State law Clashes with federal law by imposing inconsistent obligations on affected parties or by interfering with the objectives of a federal scheme c) Field Preemption: State law operates within a field of law that Congress intends the federal government to occupy exclusively 2 Conflict Preemption a) Physical Impossibility: Occurs when a state law requires an act that is expressly prohibited by federal law (ex: Statute requiring doctors to prescribe marihuana to cancer patients) b) Obstacle to the Accomplishment and Execution: Analysis requires 1) identification of the federal objective 2) a determination of the extent to which state law interferes, if at all, with the realization of that objective (ex: Federal law w/variety of passive restraint options and State law mandating the use of airbags) 3 Field Preemption a) Express Field Preemption: Federal law expressly states that it intends to ―occupy the field‖ of a particular substantive area and prohibits in state regulation in that area (ex: Fed. Statute expressly forbids state from enforcing any law ―relating to rates, routes, or services‖ of any carrier; regulation of advertising rates would be preempted) (1) NOTE: When express, must define the field as narrowly as the preemptive language permits so as not to limit unduly the police powers of the states More Free Outlines: http://c.finamore.home.comcast.net or http://finamore.net 21 Implied Field Preemption: Problem when not expressly stated and involves a field which States have traditionally occupied. (ex: city noise-abatement ordinance in light of extensive FAA regulations) Three things to consider: (1) Pervasiveness of federal regulation, leaving no room for States to supplement (2) Dominance of the federal interest (3) Object sought to be obtained by the federal law and the character of the obligations imposed Federal Immunity from State Regulation 1 General Rule: States may not regulate the operations of the federal government in a manner that impairs or interferes with the ―full purpose and objectives‖ of the federal program at issue. Any such ―obstacle‖ created by state regulation will be struck down under the Supremacy Clause 2 Johnson v. Maryland State may not convict a postal worker for driving without a license in the course of his employment Federal Immunity from State Taxation 1 In order to violate this principle, the legal incidence of the tax must fall on the federal government or its instrumentalities; in other words, it is not enough that the economic burden of the tax is passed on to the federal government a) Ex: A State is free to impose a tax on the income of persons employed by the federal government since the legal incidence of that tax falls on the employee and not on the government 2 The immunity doctrine also forecloses state from imposing taxes that discriminate against the federal government, its instrumentalities, agents, or employees. a) Ex: A state may not tax the income of federal employees if it did not impose a similar tax on individuals employed by the state or private sector b) The tax will be subject to federal immunity if it can be said that the taxed entity and the federal government are so closely tied that they cannot realistically be viewed as separate entities The Dormant Commerce Clause Introduction: What is the Dormant Commerce Clause? 1 Idea that state laws that burden or discriminate against interstate or foreign commerce may still be invalidated on the ground that they violate the dormant or negative Commerce Clause 2 3 types of state laws potentially against DCC: a) Laws whose purpose is to regulate interstate commerce, or whose affect is to control out-of-state transactions b) Laws that discriminate against interstate commerce c) Laws that do not discriminate against, but nonetheless burden interstate commerce 3 Questions to consider a) Is the law rationally related to a legitimate state purpose? b) Does the law have the practical effect of regulating out-of-state transactions? c) If the law discriminates against interstate or foreign commerce, does it represent the least discriminatory means for the state to achieve its purpose? d) Are the burdens the law places on interstate commerce clearly excessive in relation to the benefits which the law affords the state? e) Does the law represent the least burdensome means for the state to achieve its goals? 4 Pike Balancing Test a) Pike v. Bruce Church (275) TEST: Where the statute regulates even-handedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden 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 of course depend on the nature of the local interest involved, and on whether it could be promoted as well with a lesser impact on interstate activities. Rational Relationship to a Legitimate State Purpose 1 Legitimate State Purpose: Under their police powers the states may regulate and tax for the health, safety, morals, and general welfare of the public. 2 Economic Protectionism: DCC bars a state from seeking to benefit its people by shielding them from the economic consequences of free trade among the states (strict scrutiny) 3 Rational Relation: Under the rational basis test it is assumed that facts were known to the legislature that would make the challenged law a reasonable way of achieving the state‘s ends (Rarely struck down on these grounds) b) C. D. IX. A. B. More Free Outlines: http://c.finamore.home.comcast.net or http://finamore.net 22 Market Configurations 1 Market Configurations: The Commerce Clause protects interstate dealers or traders from state discrimination designed to insulate in-state competitors, but it does not protect particular configurations or arrangements or the market. a) Exxon Corp. v. Maryland (292) FACTS: Court upheld a law prohibiting producers or refiners of petroleum products, all of whom were out-of-staters, from operating retail service stations in Maryland. Since no producers or refiners in Maryland, in-state dealers would have no competitive advantage over out-of-state dealers. HELD: 1) Not invalid simply because it causes some business to shift from a predominantly out-of-state industry to a predominantly in-state industry. b) Minnesota v. Clover Leaf Creamery (293) FACTS: Upheld a state law that banned the retail sale of milk products in plastic non-returnable containers but permitted sales in non-returnable containers, mainly made of pulpwood. Pulpwood was a major instate product. HELD: 1) Does not effect simple protectionism, but regulates evenhandedly by prohibiting all milk retailers from selling their products in plastic, regardless of state. 2) Most dairies package in more than one type of container 2) Out-of-state pulpwood may still benefit 2 Business entry and regulation of corporate affairs a) CTS Corp v. Dynamics Corp. of America (295) FACTS: Indiana law providing that a purchaser who acquired ―control shares‖ in an Indiana corporation could acquire voting rights only to the extent approved by a majority vote of the prior disinterested stockholders HELD: 1) On its face, the Indiana Act evenhandedly determines the voting rights of shares of Indiana corporations. 2) To the limited extent that the Act affects interstate commerce (M&A), this is justified by the State‘s interests in defining the attributes of shares in its corporations and in protecting shareholders. b) Bendix Autolite v. Midwesco Enterprises (299) FACTS: Struck down an Ohio law providing for unlimited tolling of the statute of limitations wrt entities located outside of Ohio that had not designated an Ohio agent for service of process. HELD: 1) Places an unreasonable burden on commerce 2) Leave balancing approach to negative commerce clause cases and legislative judgments to Congress D. Market Participant Exception 1 If a state enters the marketplace as a participant, its actions are treated as being like those of a private party, and the state is exempt from the restraints of the dormant Commerce Clause a) Applies when state engages in the buying, selling, or dispensing of goods or services 2 Reeves, Inc. v. Stake (1980) South Dakota was a market participant when, in selling cement from a stateowned cement plant, it restricted sales to residents of South Dakota 3 Exception to the market participant exception: Applies only to a state‘s activities in the particular market, narrowly defined, in which it is a participant. A state may not impose conditions that have substantial regulatory effects outside, or ―downstream‖ of the market in which it is participating. a) South-Central Timber v. Wunnicke (301) FACTS: Special provision to Alaska timber sale contracts requiring the purchaser to partially process the timber in Alaska before shipping out of state. Alaska participated in sale of timber, but not processing. HELD: 1) If a State is acting as a market participant, rather than as a market regulator, the dormant Commerce Clause places no limitation on its activities 2) When a state imposes ―downstream‖ conditions, restrictions on resale or use, it no longer acts as a market participant but as a regulator 3) Restricts what purchaser does after it makes purchase from State, when State no longer has an interests in transaction 4) Within virtual-per-se rule of invalidity The Privileges and Immunities Clause 1 Article IV § 2: ―The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.‖ Serves as a restraint on state efforts to bar out-of-staters from access to local resources. 2 Similar to protections under Commerce Clause but not completely synonymous. a) Corporations enjoy no protection under PIC b) PIC = rights provision, not a grant of authority to Congress, so nonwaivable unlike CC violations c) Standard of review is stricter than balancing test used in dormant commerce clause cases d) PIC extends not to all commercial activity but only to fundamental rights e) No market participant exception to PIC violations 3 United Building & Construction v. Mayor of Camden (306) FACTS: Challenge to Camden ordinance requiring that at least 40% of the employees of contractors and subcontractors working on city construction projects be Camden residents. a) HELD: 1) PIC applies to municipal ordinances, ―A person who is not residing in a given State is ipso facto not residing in a city within that State. 2) Only with respect to those privileges and immunities bearing upon the vitality of the Nation as a single entity must the State treat all citizens, resident and nonresident, equally. C. X. More Free Outlines: http://c.finamore.home.comcast.net or http://finamore.net 23 Commerce Clause distinction b/w market participator and market regulator is not dispositive It is discrimination against out-of-state residents on matters of fundamental concern which triggers the Clause, not regulation affecting interstate commerce. (1) PIC does not preclude discrimination of other States where there is a substantial reason for the difference in treatment [e.g. Claims of widespread unemployment in city] XI. The Separation of Powers A. Introduction: Source of SOP 1 Not explicit in constitution, deducted from Allocation or Non-Allocation of powers. More about the distribution of power. The separation is symbolized by the discrete treatment of each branch, in Articles I, II, and II of the Constitution. Separation was not intended to be airtight. Repeatedly, powers are blended and intermixed: veto power; treaties w/consent of Senate; Congress declaration of war w/Pres. as commander in chief. 2 Myers v. United States (332) ―The doctrine of separation of powers was adopted not to promote efficiency but to preclude the exercise of arbitrary power. The purpose was, not to avoid friction, but, by means of the inevitable friction incident to the distribution of the governmental powers among three departments, to save the people from autocracy.‖ 3 Separation of Powers Arguments: Two Types a) A textual separation of powers argument is based on a specific clause of the Constitution. b) A structural separation of powers argument. When the action of one branch threatens the tripartite structure of our federal gov‘t by altering the balance of power between the branches. 4 Analyzing SOP Problems: Three Questions a) Has one branch of government exercised a power/performed a function that a specific clause of the Constitution requires to be performed by, or only in conjunction with, another body or branch? b) Has one branch of government aggrandized its authority by usurping power that more appropriately belongs to a coordinate branch? c) Has one branch of government encroached on the functions of a coordinate branch so as to undermine that branch‘s integrity/independence? B. Presidential Exercise of Lawmaking Power 1 Relevant Text for Lawmaking Power a) Art. I, § 1, provides that ―[a]ll Legislative Powers herein granted shall be vested in a Congress of the U.S.‖ b) The use of the word ―all‖ would seem to exclude any exercise of the legislative or lawmaking power by any other branch, except as expressly provided by the Constitution. 2 Youngstown Sheet v. Sawyer [The Steel Seizure Case] (1952) [333] ISSUE: Whether Truman was acting within his constitutional power when he issued an order directing the Secretary of Commerce to take possession of and operate most of the Nation‘s steel mills, during the war of Korea in order to combat a strike. Steel used to create weapons for the war. HELD: 1) President, as Commander in Chief, does not have power to take possession of property in order to keep labor disputes stopping production. This is the job of Congress. 2) President‘s power to see that the laws are ―faithfully executed‖ refutes the idea that he is to be a lawmaker a) JACKSON (Tripartite Analysis) ―Poverty of really useful and unambiguous authority‖ (1) Presidential action pursuant to express or implied congressional authority. ―Supported by the strongest of presumptions‖ (2) Presidential action in the context of congressional silence: may rely only on his own independent powers. “Zone of twilight” where concurrent authority w/Congress makes distribution uncertain (3) When measures incompatible with the expressed or implied will of Congress, then his power is at its lowest ebb, for then he can rely only upon his own constitutional powers of Congress over the matter. b) FRANKFURTER (President has always been doing this, so it should be allowed.) 3 Clinton v. New York (1998) [362]: ―Line Item Veto Act‖ a) FACTS: Clinton exercised his authority under the Line Item Veto Act of 1996 by canceling certain funds it would otherwise have had to repay to the federal government ISSUE: Whether the president may change a bill that has already been signed into law? b) HELD: 1) Difference between ―return‖ of a bill pursuant to Article I § 7 and the cancellation authority pursuant the Line Item Veto 2) The return comes before the bill becomes law; the cancellation after the bill becomes law 3) Entire bill vs. Only part 4) Express in Constitution vs. Silent (1) Unilateral power to change the test of duly enacted statutes. b) More Free Outlines: http://c.finamore.home.comcast.net or http://finamore.net 24 C. Congressional Encroachments on Executive Authority 1 Introduction: Note that although the Court has taken a fairly liberal attitude toward Congressional delegation, when Congress exercises legislative power itself the Court has insisted that Congress adhere strictly to the Constitutional requirements: a) Bicameralism: Mandates that a legislative act of Congress must be approved by both the H of R and Senate; b) Presentment: Requires that before any measure approved by the H of R and Senate can become law; if the Pres. vetoes the measure it may become law only if it is repassed by a 2/3‘s majority in each House of Congress 2 INS v. Chadha (1983) [353] a) FACTS: Challenge to constitutionality in Immigration Act authorizing one House of Congress to invalidate a decision of the Executive (attorney general) to suspend the deportation of an individual b) HELD: Rejected statute b/c it authorized legislative action to be taken through a ―one-House legislative veto‖ w/o satisfying either the bicameralism or the presentment requirements of Article I. (1) How did court determine that this was a legislative action?  Court claimed that a legislative act was one, which has the ―purpose and effect of altering the legal rights, duties, and relations of persons…outside the Legislative Branch.‖  Here, the veto was a ―legislative‖ act because it affected rights and duties of the alien and the attorney general.  By contrast, a resolution to recess wouldn‘t be a ―legislative action‖ since it would only affect Congress (2) Powell (concur): The House action was more judicial than legislative in nature. Instead of adopting a general rule, the House made its own determination that Chadha didn‘t satisfy the requirements. This type of action involves a judicial function traditionally performed by the courts/agencies. Thus, the act was unconstitutional on structural grounds. (3) White‘s (dissent): Agreed that it was an exercise under their lawmaking power. It isn‘t clear from the text that congressional action taken pursuant to a properly enacted law must again satisfy the presentment and bicameralism requirements. The decision ―sounds the death knell‖ of nearly 200 other statutory provisions in which Congress has reserved a ―legislative veto‖ c) Note: Very controversial decision. Highlights the different results one may get for a textual (here had effect of invalidating all use of leg. veto), as opposed to a structural/functional approach (would have permitted it as a means of controlling the other branches exercise of lawmaking authority delegated to them by Congress. Power to Appoint 1 Art. II, § 2, cl. 2, the President appoints ―Officers of the United States‖ while Congress may vest appointment of ―such inferior officers as they deem proper‖ in the President, the Courts, or the Heads of Departments. 2 Thus, the question over appointment will hinge on whether the position is classified to be: a) Principal officer of the United States: Art. II, § 2 requires that they are appointed by the President w/ advice and confirmation by Senate b) Inferior officer of the United States: Gives Congress 4 options for their appt: (1) By President w/ advice and confirmation by Senate; (2) By President alone; (3) Courts; (4) Heads of departments. c) Mere employee. 3 Factors to Consider a) The nature and extent of the official‘s duties, and whether or not they include policymaking functions; b) The amount of independence and source of supervision (eg. whether the official answers to the President, or to a principle officer…) c) The position‘s tenure in terms of whether it is continuing, temporary, and under what circumstances they can be removed. 4 Buckley v. Valeo (1976), where the Court held that ―direct and wide ranging‖ enforcement powers of the Federal Election Commission could only be exercised by ―Officers of the US‖ (appt. by the executive) and that an organization primarily appointed by Congress could ONLY exercise the powers of a Congressional Committee. Power to Remove 1 Bowsher v. Synar (1986) [370], ISSUE: Whether the assignment by Congress to the Comptroller General certain functions under Balanced Budget and Emergency Deficit Control Act violates the doctrine of separation of powers. Statute permits removal for ―inefficiency,‖ ―neglect of duty,‖ or ―malfeasance‖ (only through joint resolution and signed by president) D. E. More Free Outlines: http://c.finamore.home.comcast.net or http://finamore.net 25 HELD: 1) The Act gives Congress the power to remove an executive officer 2) The separated powers of our government can not be permitted to turn on judicial assessment of whether an officer exercising executive power is on good terms with Congress 3) Once Congress makes its choice in enacting legislation, its participation ends. Congress can thereafter control the execution of its enactment only indirectly – by passing new legislation b) Dissent: J. White: Upset w/ majority‘s ―distressingly formalistic view‖ as a bar to government action (of which the other branches approve). 2 Morrison v. Olson (1988) [376] FACTS: Challenger to an independent counsel provision, which requires the Attorney General to appoint an independent counsel to investigate and prosecute possible official violations of federal criminal law a) HELD: Congressionally imposed restrictions on the grounds for removing executive officers are valid unless the nature of the position makes it ―essential to the President’s proper execution of his Article II powers‖ that the officer be removable at will. b) At one time the court had suggested that ―good cause‖ type limitations on removal were only valid regarding officers who perform quasi-legislative or quasi-judicial functions, as opposed to purely executive functions. 3 Printz v. U.S. (1997) [186], Held that Congress violated the SoP by assigning to state officials the task of implementing a federal gun control law, a job which should be executed by the President or officials over whom ―there is meaningful Presidential control.‖ a) *In an aside, court questioned whether ―meaningful Presidential control is possible without the power to appoint and remove?‖ (1) This statement is surprising b/c it seems to challenge the constitutionality of many of the independent agencies Congress has created within the executive branch. According to the Ct‘s reasoning these agencies are insulated from any ―meaningful Presidential control‖ since the President typically lacks the power to either appoint or freely remove their members. b) Note: It remains to be seen whether Printz will be used to require that Congress place these agencies under more direct presidential control. Either way, court is signaling that it may be willing to take a harder look at Congressional restrictions on the President‘s ability to appoint and remove federal executive officials. The Nondelegation Doctrine: 1 Introduction: What is the doctrine? a) Nondelegation – theory that Congress may not constitutionally delegate its legislative power to another branch of government. But in practice, Congress has engaged frequently in broad delegations that in effect require agencies to make specific sub-rules. Nondelegation doctrine has very little bite to stop the practice (1) United States v. Curtiss-Wright (352) Emphasized ―the unwisdom of requiring Congress to lay down narrowly definite standards by which the President is to be governed‖ (foreign affairs) 2 Easy standard: Congress often lacks the time and expertise to develop intricate rules and must enlist help from other branches. Moreover, virtually all laws involve some degree of delegation 3 Mistretta v. U.S. (1989) [382]: Upheld law under which Congress created an independent judicial sentencing commission, an independent entity within the judicial branch, to promulgate sentencing guidelines that would be binding on the federal courts. a) HELD: Constitution does not specifically prohibit judges from serving on independent commissions. b) TEST: 1) Is it more appropriately performed by other branches or 2) does it undermine the integrity of the judiciary (1) Judicial rulemaking, on matters surrounding a fair trial, is appropriately performed by the judicial branch. (e.g. Fed. R. Civ. P.). [Judiciary has a major role in sentencing] (2) Besides, here they are serving an administrative, not a judicial function. Won‘t intrude on power of other branches since they will be developing rules for their own branches. Foreign Affairs 1 Executive Powers a) The powers of the executive are enumerated in Art. II, § 2 b) United States v. Curtiss-Wright Corp (US 1936), upheld joint resolution of Congress authorizing President to impose arms embargo on Bolivia and Paraguay during conflict against charge of unconstitutional delegation of legislative authority. (1) Reasoning: The president’s special position as sole organ of the nation in foreign affairs justifies a greater level of delegation of authority than would be permissible in domestic affairs. 2 Declaring War and Initiating Hostilities a) F. G. More Free Outlines: http://c.finamore.home.comcast.net or http://finamore.net 26 a) While the founders did envision that the decision to initiate war belonged to Congress, they also realized that future exigencies might require an immediate response, one which could not await congressional action. (See Madison‘s notes on Art. I § 8 in which framers chose language to ―declare war‖ instead of ―make war‖ so as ―leave to the Executive the power to repel sudden attacks.‖) b) The Prize Cases (1863), Despite the Law of Nations (which requires that a war must exist de facto in order to legitimize the capture of neutral vessels or property on the high seas) the Ct upheld Lincoln‘s decision to declare a blockade of Southern ports without a formal declaration of war from Congress. HELD: The determination of the extent of an armed challenge rests with the President (need not wait for specific authority). c) Modern Dilemma: In the 19th and 20th centuries the limiting principle for executive authority to ―make war‖ became increasingly blurred. Generally, Presidents sent armed forces into hostilities solely on their own initiative, even where there was no pretext of defending the U.S. against sudden attack. War Powers Resolution (1973) a) Historical Context: Passed in response to the pattern of unilateral executive action. Passed it over Nixon‘s veto. b) Nixon made two constitutional objections to the act: (1) Congress could not deprive Executive of its traditional function (power had been exercised by executive for past 200 ys)  Note: Weak point b/c SOP cannot be waived even if the branch whose authority was encroached upon may have previously acquiesced. (2) That the provision allowing Congress, by concurrent resolution, to direct the withdrawal of armed forces from hostile situations violated the Presentment Clause.  Note: Given Chadha ruling, this is much stronger. c) Situation Today: The War Powers Act has been ineffective in resolving the dispute. So long as the federal courts decline to become involved, the SOP dispute as to the locus of the power to initiate hostilities will continue to be resolved by the branches themselves. (1) See e.g., Mora v. McNamara (1967), where the Supreme Court denied certiorari to a case seeking declaratory and injunctive relief on the grounds that the Vietnam War was illegal. d) Note: A Congress determined to protect the authority given to it under Art. I § 8 has the means of doing so through its control over the purse strings and can: (1) Refuse to appropriate new funds; (2) Bar further expenditure of funds that have already been appropriated. Executive Agreements – As a substitute for treaties? a) Since a treaty is effective only if ratified by 2/3s of the Senate, whereas an executive agreement doesn‘t need the approval of the legislative branch, a president may prefer executive agreements for a number of reasons: (1) Can take effect even in the face of Senate opposition that would doom a treaty. (2) Even where adequate Senate support may exist, executive agreements can take effect immediately w/o the long delay that sometimes accompanies ratification of a treaty. b) The problem does not arise often for the following practical reasons: (1) Counterproductive if the agreement depends on congressional implementation (2) President takes risk that Congress will respond by passing a law that overrides the executive agreement or requires that it be renegotiated. c) United States v. Belmont (1937) [343] FACTS: FACTS: Executive agreement to recognize Soviet Union HELD: 1) Assignment and agreement, or international compacts, unlike treaties do not require Senate participation 2) Supremacy Clause requires that contrary state policies must give way d) Dames & Moore v. Regan (1981) [344] Upheld an executive agreement by which Carter, in order to settle the Iran hostage crisis, suspended all lawsuits against Iran pending in American courts, and nullified all attachments of Iranian assets. (1) Reasoning: Upheld act based on ―long-continued practice, known to and acquiesced by Congress, raising presumption of consent.‖  It was crucial to their decision that Congress had expressly or impliedly approved and acquiesced in the domestic aspects of the accord. (2) Limited: Holding only applied to situations where settlement is a necessary element of a resolution of a major foreign policy dispute between our country and another and where Congress has acquiesced in the president‘s actions. 3 4 More Free Outlines: http://c.finamore.home.comcast.net or http://finamore.net 27 H. Legislative and Executive Immunities to Judicial Process: 1 Legislative Immunity: Art. I, § 6: Senators and representatives ―shall not be questioned in any other place‖ for ―any Speech of Debate in either House.‖ 2 Executive Immunity: Executive officials are NOT given any express immunity under the Constitution. However, several presidents have claimed implied immunity, and some cases have inferred that a limited privilege exists. 3 Absolute Presidential Immunity From Civil Damages a) Nixon v. Fitzgerald (1982) FACTS: Whistleblower loses job at Defense Department and sues HELD: Absent explicit affirmative action by Congress, the President is absolutely, rather than qualifiedly, immune from civil liability for his official acts. b) Clinton v. Jones: (1997) Constitution does not require the federal courts to defer civil litigation until President‘s term ends, based on actions taken before he got into office. (1) Nixon Distinguished: Only extends to official acts (2) Central concern of the court was to avoid rendering the Pres. ―unduly cautious in the discharge of his official duties.‖ That immunity was grounded in ―the nature of the function performed, not the identity of the actor who performed it.‖ (3) The fact that the case will impose a burden on the President‘s time does not violate SOP. 4 Limitations On Executive Privilege In Relationship To the Courts a) U.S. v. Nixon (1974) [386], Held that executive immunity does NOT give the president an unqualified general privilege of immunity from judicial process under all circumstances. (1) The duty of the courts to ―say what the law is‖ extends to controversies involving the president. (2) Legitimate judicial needs may outweigh a presidential privilege of confidentiality absent a need to protect military, diplomatic, or sensitive national security secrets. (3) Balancing test – Here, the generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial. 5 Impeachment a) Textual Foundation (1) Art. II, §4 states ―The President, V.P…shall be removed from office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.‖ (2) Questions – What does ―high crimes and misdemeanors‖ mean? XII. Individual Rights and Incorporation Early protections of individual rights: 1 There were relatively few explicit references to individual rights in the original Constitution: a) Limitations on state power (Art. 1 § 10): (1) Contracts clause (2) State bills of attainder prohibited (singled out an individual to bear consequence of other‘s actions or punishment) (3) Ex post facto laws prohibited (4) Privileges and immunities clause – Article IV (under this, an out of state has more rights than an in-stater – C doesn‘t protect you against your state and it won‘t protect you against your fed government, but it will protect you against other states) b) Limitations on national government: (1) Privilege of the writ of habeas corpus – Art. I, §9 (2) Ex post facto laws prohibited – Art. I, §9 (3) Bills of attainder prohibited – Art. I, §9 (4) Treason narrowly defined in Art. III (5) Right to trial by jury in criminal cases – Art. III, §2, cl. 3 B. The Bill of Rights 1 Did not originally apply to the states until 14th Amendment a) Barron v. Baltimore, held that the BOR only applied to the federal government (1) Wise of Marshall; S.Ct./federal apparatus was not ready to adjudicate individual rights disputes with the states 2 The 14th Amendment, accompanied by subsequent judicial and congressional interpretations, now provides substantial protection against both state and federal encroachments on individual liberty C. 14th Amendment Text 1 Sentence One: ―All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.‖ A. More Free Outlines: http://c.finamore.home.comcast.net or http://finamore.net 28 Creates a definition of U.S. citizenship (―All persons born or naturalized‖) and provides a definition of state citizenship (―resides‖) b) “Subject to the jurisdiction thereof” excludes two classes of people: children of alien enemies in hostile occupation and children of diplomatic representatives of foreign states 2 Sentence Two: Privileges and Immunities Clause: ―No state shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States…‖ Probably to: (1) Prevent state discrimination with respect to fundamental civil rights such as those protected by Article IV P+I (2) Include certain other fundamental rights found in the BoR, such as freedom of the press and freedom of speech  It may have been intended to incorporate all the provisions of the first eight amendments to the Constitution. 3 Due Process Clause: ―Nor shall any State deprive any person of life, liberty, or property, without due process of law…‖ a) ―Process‖ suggests procedures and ―due‖ suggests appropriate/reasonable. b) ―Person‖ is broader than ―citizen.‖ It includes: illegal aliens, diplomats, and corporations. c) Mirrors the 5th Amendment but its applicable to the states 4 Equal Protection Clause: ―Nor shall any State deny to any person within its jurisdiction the equal protection of the laws.‖ a) This clause has never been made to apply to the fed government – what about District of Columbia? Early Judicial Trends in Construing the 14th Amendment 1 Slaughterhouse Cases (1872), Butchers challenged LA law which granted a monopoly to one slaughterhouse (allowing ind. butchers to use the corp. facilities for a charge) as a violation of their rights under the 13th and 14th a) HELD: 13th A‘s prohibition against slavery does NOT protect the butcher‘s individual property rights; it‘s application is limited to cases of involuntary slavery (in particular to free the slaves post Civil War); b) * Emphasized that the 14th A was passed to protect former slaves, NOT to upset our entire federalist system of government by applying the BoR to the states. (had that been the intent, it would have been made explicit). 2 Implications of the Slaughter-House Cases: a) Effectively disemboweled the P&I clause; even though the P&I clause on its face seems like the more obvious choice for incorporation of the BoR, the court instead relied on the DP clause b) In spite of brief dismissal of DP by Slaughterhouse decision, the court began using the DP Clause to incorporate parts of the BoR against the states. This ―selective incorporation‖ continued through the 20th cent. such that most of the BoR has been incorporated. (1) Equal Protection Clause extension. The Court began to interpret the clause more broadly, to cover substance of laws (Strauder v. West Virginia black jury case) and to apply it to all races (Yick Wo v. Hopkins). The Incorporation Doctrine 1 ―Selective Incorporation‖ and Fundamental Rights a) Twining v. New Jersey (435) [1908] Declined to consider whether the BoRs had been incorporated by the 14th Amendment. Instead, Ct reasoned that a right is protected by the DP clause ―not because it is enumerated in the first eight Amendments, but because it is of such a nature that it is included in the conception of due process of law.‖ b) Palko v. Connecticut (435) [1937] FACTS: Connecticut permitted the State to take appeals in criminal cases HELD: The right to trial by jury and the immunity of prosecution are important, but they are not of the very essence of a scheme of ―ordered liberty.‖ To abolish them is not to violate a ‗principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental 2 Total Incorporation Approach a) Adamson v. California: self-incrimination clause of the 5th amendment was not incorporated in the 14 th amendment. (1) Black’s dissent: argument for total incorporation. Authors of the amendment intended for all provisions of first 8 amendments to be applicable to the states under §1. One of the purposes of §1 was to overrule Barron and make the BoR enforceable against the states. Further, the fundamental rights approach was subjective and indeterminate. 3 The modern Court’s approach under Duncan a) D. E. More Free Outlines: http://c.finamore.home.comcast.net or http://finamore.net 29 Duncan v. Louisiana (1968) [441]: Appellant, appealing his conviction for a misdemeanor, alleges that the 6th and 14th secure the right to jury trial in state criminal prosecutions where a sentence as long as two years may be imposed. (1) HELD: The nature of the right was fundamental to the American scheme of justice and should also be protected against state action under the DPC. Here, the court found that the right to trial by jury under the 6th A was fundamental and consequently is incorporated against the states.  Note: Ct focused on the nature of the right, NOT on its application in an individual (2) Footnote 11: Fundamental rights are limited to how our system works, not necessarily the natural law of man applicable to all societies  Concurrence, Black: Total Incorporation! Criticizes the subjectivity of ―fundamental fairness.‖  Concurrence, Fortas: Agrees with decision but he doesn‘t think that this requirement needs to embrace all of the ancillary rules which have been or may hereafter be developed incidental to the right to jury trial in the federal courts.  Dissents, J. Harlan, J. Stewart: The D.P. Clause of the 14th requires that state procedures be fundamentally fair, which can be achieved through other means than trial by jury. Arguments against incorporation: assault on ―jot-by-jot‖ approach b) The Modern Incorporation Standard (1) Are the facts of the case applicable to any particular provision in the Bill of Rights? (2) Is that right essential to ―fundamental fairness‖ and should it, as a rule, be made applicable to the states?  *seems like a convergence between the fundamental rights model and the incorporation model c) Problems Of The Modern Approach (1) In Adamson v. CA, J. Frankfurter warned that the incorporation of specific B of Rs guarantees risked a ―warped construction‖ and possible dilution of those provisions. He foresaw that if the B of R‘s guarantees were incorporated against the states, including the details of their federal application, then the courts would begin to weaken the requirements concerning the application on both the federal and state level in an effort to avoid over-burdening the states. (2) Williams v. Florida (1970): Petitioner seeking reversal of a robbery conviction claimed that he should have been tried by 12-person jury. Court held that the 12-person panel was not necessary to the ―trial by jury‖—in either federal or state cases. In Harlan‘s dissent he chastised the majority for the dilution of 6th amendment guarantees. The majority had tried to incorporate the B of R against the states, but, finding that the 12-person jury requirement was ―not fundamental‖ and would needlessly burden the states, they dismissed that requirement for either the state or federal government. In so doing, they diluted the federal protection. (3) Apodaca v. Oregon (1972): Dealt w/ another question left open by Duncan—whether a unanimous jury verdict is required in state courts after the incorporation of the Sixth Amendment? As in Williams, the Court ruled that what had formerly been thought to be an ingredient of the 6 th Amendment guarantee was not constitutionally required after all and accordingly sustained the constitutionality of a state nonunanimous jury verdict. Yet, here, there was a sharp divide w/in the court--even though 5 of the justices read the 6th Amendment as requiring unanimous jury verdicts in federal trials. Only made possible by Powell‘s concurrence. Incorporation since Duncan: 1 What the cheat book says is incorporated to date: a) The First Amendment in its entirety b) The Fourth Amendment in its entirety c) The Fifth Amendment except for the requirement of a grand jury indictment for criminal prosecutions d) The Sixth Amendment in its entirety e) The Eighth Amendment provision against cruel and unusual punishment 2 Exceptions: a) 2nd amendment right to bear arms (Presser v. Illinois) b) 5th amendment: the grand jury indictment provision c) 7th amendment: (1) right to a jury trial in civil cases (Walker v. Sauvinet) (2) $20 was a lot of money in 1791 but now is nothing. Black had suggested inflation to adjust the amount, one of the real obstacles to total incorporation (Henkin). 3 Court has not ruled on: a) F. More Free Outlines: http://c.finamore.home.comcast.net or http://finamore.net 30 a) b) 4th amendment: possibly quartering soldiers. 5th amendment: the ―excessive bail‖ provision. XIII. Introduction to Substantive Due Process A. Introduction 1 There are two Due Process Clauses in the Constitution: a) Fifth Amendment: limitations on national government b) 14th Amendment: limitations on state government B. Procedural versus Substantive Due Process 1 Procedural due process commands that when the government acts to deprive a person of life, liberty or property, it must do so in accordance with procedures that are deemed to be fair. This usually means notice and hearing before a deprivation. 2 Substantive due process insists that the law itself be fair and reasonable and have an adequate justification regardless of how fair or elaborate the procedures might be for implementing it a) Thus a law that comports with PDP might nonetheless violate SDP if it is substantively unfair or unreasonable. b) This SDP protection is independent of any other textual guarantees found in the Constitution or its Amendments. Thus, SDP protects life liberty and property even if no other right has been infringed upon. C. Standards of Review 1 Fundamental liberty (non-economic due process) interests involving civil or personal liberties a) ―Strict scrutiny‖ means a law will usually be struck down unless it is shown to be (1) the least burdensome means of achieving a (2) compelling government interest 2 Property (economic due process) or non-fundamental liberty interest a) ―Rational basis‖ means a law will be upheld if there is any legitimate goal that a rational legislature might have thought the legislation would further, whether or not this was the leg‘s actual goal or whether the law actually furthers it. D. The Rise and Fall of Economic Due Process 1 Initially no SDP: The 14th amendment was ratified in 1868. At first the court rejected a number of economic SDP challenges to state laws that interfered with property or economic liberty: Munn v. Illinois (1877) and Slaughter-House Cases (1872)(see above) 2 Rise of Liberty of Contract a) Allgeyer v. Louisiana (1897) [457]: The first time the Court invalidated a state law on SDP grounds. Involved a LA law that prohibited obtaining insurance on LA property ―from any marine insurance company which has not complied in all respects‖ with LA law. (1) Broad articulation of ―liberty of contract‖: ―The liberty mentioned in that amendment means not only the right of the citizen to be free from the mere physical restraint of his person, as by incarceration, but … to be free in the enjoyment of all his faculties…to earn his livelihood by any lawful calling…and for that purpose to enter into all contracts which may be proper, necessary and essential.‖ [case also mentioned non-economic substantive rights] b) Difference between ―liberty to contract‖ and the Contracts Clause: (1) The liberty to contract protected by the Due Process Clauses of the 14th and Fifth Amendments involves the freedom to enter into contract on terms or conditions of one‘s choosing. (2) This liberty interest should not be confused with the Contracts Clause of Article I, §10, which prohibits a state from ―impairing the Obligations of Contracts‖ by interfering with the terms of pre existing contracts. E. The Decision in Lochner v. New York 1 Lochner v. New York (1905) [485] FACTS: Struck down a NY law that sought to protect the health of bakers by regulating their work hours, and symbolized the rise of substantive due process as a protection of economic and property rights a) HELD: 1) may not regulate working hours, because it is an infringement on the liberty (right) to contract 2) [Police Power Limited; health, safety, morals] Must have reasonable ground for interfering with liberty, mere assertion of public health concerns does not make it valid. Means must be direct and appropriate. 3) No substantial effect on health (baker not dangerous). Real objective is labor regulation. Labor laws are not within police power 2 What did Lochner do? More Free Outlines: http://c.finamore.home.comcast.net or http://finamore.net 31 First, the Lochner Court identified a particular aspect of liberty – liberty to contract – nowhere mentioned in the Constitution and elevated that liberty to a status where it received extraordinary protection. (Means-ends, close scrutiny) b) Second, in deciding whether NY‘s interference with liberty to contract was justified by an important government interest, the Court was not interested in the actual facts, but relied instead on its own understanding of the situation. (ignored evidence of health risks to bakers) (1) Muller v. Oregon (1908): after Lochner, Court upheld a law setting maximum hours for women working in factories/laundries. There was ―evidence‖ that long hours were detrimental to women, but the Court‘s real reason appeared to be the ―widespread and long continued belief‖ that ―woman has always been dependent on man.‖ c) Third, Lochner rejected the legitimacy of governmental efforts to redress inequalities in wealth or bargaining power. (ct. concluded health goal was a sham) (1) NOTE: Many pushing for legislation were discriminating against Blacks and Hispanics, who worked longer hours 3 The Demise of Lochner a) Approach of Lochner applied well into 1930s. b) The tide began to turn during the Depression. In Nebbia v. New York (1934) [469], the Court upheld a NY law rescuing farmers by setting a minimum price for the sale of milk. (1) Roberts: Economic freedoms are not absolute. If the laws passed are seen to have a reasonable relation to a proper legislative purpose, and are neither arbitrary nor discriminatory, the requirements of due process are satisfied (2) Holding that it is not job of the courts to decide on the wisdom of the legislation—they are incompetent and unauthorized to make that decision, the court abandoned its practice of strictly scrutinizing laws that interfered with liberty to contract. This was a veiled repudiation of Lochner. 4 West Coast Hotel v. Parrish (1437) [472] the court upheld a state law setting minimum wages for women and children, overruling Adkins. a) Court rejected Lochner‘s elevation of freedom of contract to fundamental liberty status. Freedom of contract was still protected but no longer got special protection. b) Court emphasized that great deference must be shown to the legislature in such cases. c) Expansion of ―Public Good‖: West Coast‘s enlarged view of the public good was actually consistent with Lochner‘s principles. The Lochner doctrine acknowledged that governmental intervention was permissible if it was on behalf of those who as a group were vulnerable; they simply refused to deny that status to bakers. Yet within the Lochner framework, if changing conditions were to render workers vulnerable, government intervention would then be justified on a more widespread basis. Hello, Great Depression! (1) The extreme deference to the leg. that the Court displayed in West Coast has continued to the present time. As a result, substantive due process challenges that are brought on an alleged interference with property or economic liberty are almost certain to fail. Property and Economic Liberty Today 1 The Court today uses the rational basis test for economic SDP claims. 2 United States v. Carolene Products Co. (1938) [473]: Court rejected a SDP challenge to a fed law excluding nondairy milk products from interstate commerce. Laws impairing liberty to contract were subject merely to rational basis review. a) Under the rational basis test, courts may engage in speculative exercises of hypothesizing a legitimate goal that the challenged law might have been designed to further. b) Whether this is in fact the goal of the leg. or whether it actually furthers the goal is irrelevant. The only question is whether there is some legitimate end that a rational leg. might have thought the law would further. 3 Williamson v. Lee Optical Inc. (1955) [1937]: Upheld OK law, which, forbid the optician from fitting or duplicating lenses w/o a prescription from an opthamologist or optometrist. In practical effect, it means that no optician can fit old glasses into new frames or supply a lens, whether it be a new lens or one to duplicate a lost or broken lens, w/o a prescription and advertisements on frames. a) ―It is enough that there is an evil at hand for correction, and that it might be thought that the particular legislative measure was a rational way to correct it.” b) Even though there are many cases in which this legislation would seem unnecessary, in other cases it would be necessary—it is for the leg. to balance these advantages and disadvantages…not for the courts. c) ―The law need not be in every respect logically consistent with its aims to be constitutional.‖ a) F. More Free Outlines: http://c.finamore.home.comcast.net or http://finamore.net 32 Note: The rhetoric and the result in Lee made clear that the Court‘s approach to economic DP had returned to the pre-Lochner noninterventionist model. Virtually toothless. (1) While other clauses of the Constitution, such as the dormant Commerce Clause, the Takings Clause and the Equal Protection Clause may afford meaningful government protection against governmental interference with property or economic liberties, challenges based on SDP are virtually certain to fail. XIV. Revival of Substantive Due Process for Non-Economic Liberties A. Origin of DPC Non-Economic Liberties 1 Allgeyer v. Louisiana (1897) (457): defined the meaning of ―liberty‖ in the DP clause. a) List of freedoms protected went beyond non-textual economic freedoms such as liberty to contract and the freedom to pursue an occupation. The Court recognized that the Clause protects such un-enumerated freedoms and personal liberties such as freedom from physical restraint, freedom to enjoy one‘s faculties, and freedom to reside/work where one wishes. 2 Meyer v. Nebraska (1923) (508): Court struck down a law outlawing German in schools, saying that the statute interfered with several liberties by the DP clause. HELD: “the right…to acquire useful knowledge, to marry, establish a home and bring up children…and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.” 3 Pierce v. Society of Sisters (1925) (509): relied on Meyer to overturn a law compelling parents to send children to public rather than private school; statute violated DP because it unreasonably interfered with the liberty of parents and guardians to direct the upbringing and education of children under their control.” 4 Historical Note: The Lochner Approach Revisited? a) The process the Court applied in Meyer and Pierce with respect to personal liberties was indistinguishable from that which it had employed in Lochner re: liberty to contract. b) In each case, the court held an unenumerated liberty protected by the DP clause, elevated that nontextual liberty to fundamental status and accorded it a strict level of judicial protection. B. Carolene Products‘ Footnote Four 1 United States v. Carolene Products (1938) (473): The Court rejected a SDP challenge to a federal law excluding nondairy milk products from interstate commerce a) Rational basis review now ―the standard‖ for economic and non-economic liberty interests: (1) For the first time, the Court held that laws impairing liberty to contract were subject merely to rational basis review. The Court suggested that the rational basis standard should govern other noneconomic liberty interests as well. 2 Footnote Four and Strict Scrutiny: In dicta in footnote four, Stone called for more rigorous judicial scrutiny in only three exceptional situations: a) If ―legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments;‖ b) If it ―restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation,‖ like impairments of the right to vote; (Primarily EPC) c) If it is aimed at ―discrete and insular minorities‖ who, because of past prejudice, are unable to protect themselves through ordinary political processes. (Primarily EPC) 3 Intended effect of footnote four on the DP clause was to divide up the universe of constitutionally protected liberties into two categories: a) Those mentioned in the Bill of Rights or incorporated thereinto (strict scrutiny review), and b) Those unenumerated but which the Court nonetheless protects (rational basis review). (1) Carolene thus implicitly rejected the SDP approach of Meyer and Pierce. The footnote suggests that these cases might have met the EP exception as both involved groups that at the time had been the subject of persecution. 4 Collapse of SDP after Carolene: the SC rejected a lot of SDP challenges in the decades following Carolene. This collapse of SDP affected all nontextual liberties. a) A rare exception (and kind of under EP): Skinner v. Oklahoma (1942): Invalidated state law mandating compulsory sterilization for certain repeat felons. Although this case was ―equal protection‖ in part, it rested on a view akin to substantive due process. Court applied strict scrutiny to protect the unenumerated right to procreate. C. Griswold and the Reemergence of Unenumerated Liberties 1 Griswold v. CT (510): struck down a CT law outlawing use of or the counseling of others to use contraceptives. The Court held that as applied to advice given to married couples, the statute violated the DP clause by interfering with the ―right to privacy‖ in marriage. d) More Free Outlines: http://c.finamore.home.comcast.net or http://finamore.net 33 “Penumbras” and “emanations:” Douglas linked the right to privacy in marriage to the Bill of Rights amendments: the 1st(association), 3 rd/4th (protection of the home), 5th (guarantee against selfincrimination), and the 9 th (other rights retained by the people) ―have penumbras, formed by emanations from those guarantees that help give them life and substance.‖ b) Douglas did this to fit the state law within Carolene #1. This right was not explicitly mentioned in the USC but was found to lie within the ―zone of privacy created by several fundamental constitutional guarantees.‖ The Court applied a very strict standard of review and invalidated the statute without any consideration of the state‘s possible justifications for it. 2 Not reviving Lochner: Ct expressly declined to revive Lochner, made it clear that the rebirth of SDP was limited to personal liberties. 3 Inconsistencies: the Court while eschewing Lochner resurrected Meyer and Pierce, two Lochner-era cases discredited by Carolene, under the ―penumbras‖ rubric. 4 Alternative Approaches to Griswold: Liberty and the Ninth Amendment a) Harlan concurrence: this is a liberty case; right of marital privacy is ―implicit in the concept of ordered liberty‖ and is therefore protected. b) Goldberg, Warren and Brennan: Three other members of Griswold majority agreed with Harlan that the right of privacy is an aspect of DP liberty, but also cited the 9th amendment: (1) “The enumeration in the Constitution of certain rights shall not be construed to deny and disparage others retained by the people.” 9th amendment was used as authority for construing the 14 th amendment DP clause to encompass rights not enumerated elsewhere in the USC. (2) Not a new source of rights but rather a rule of construction for the courts in interpreting other provisions of the USC, like liberty in the DP clause. Right to privacy in marriage is therefore among the fundamental personal liberties protected by the 14th amendment from infringements by the states. c) Stewart and Black: this approach is wrong. 9 th amendment is like the 10th, enacted just to make clear that the BoR did not alter the plan that the Fed gov‘t was to be a limited government. 9th was intended to protect state powers from federal invasion, not to recognize unenumerated rights to be judicially enforced against the federal or state governments (1) Aspen book commentary: problem with this approach is that it basically renders the 9 th amendment synonymous with the 10 th and thus redundant. The 10th amendment does deal with a kind of federalism balance, but the 9th says something different: that the people have other rights against the government besides those enumerated in the BoR. If these other rights are not judicially enforceable, then they are not meaningful and it is hard to see why the Framers would have done this. 5 The right of marital privacy recognized in Griswold was soon extended to persons who were not married and to conduct that did not occur in the privacy of the home. (Eisenstadt, Carey) ―Personal Autonomy‖ The Right to Privacy: Abortion 1 The Court‘s abortion decisions grew out of earlier decisions involving contraception. In striking down these laws, SC held that ―one of the fundamental liberties protected by the DP clause is the decision whether to bear or beget a child.‖ Eisenstadt. 2 Roe v. Wade (1973) (521): attacked TX abortion laws making it a crime to ―procure an abortion‖ except ―by medical advice for the purpose of saving the life of the mother.‖ Court: although the constitution does not explicitly mention a right to privacy, it has recognized that such a right exists. This ―right to choose‖, however, is not absolute. It must be balanced w/ the states‘ interests in: (1) potential life; (2) safeguarding the mother‘s health; (3) maintaining medical standards. a) The Test: Where ―fundamental rights‖ are involved, regulation limiting these rights may be justified only by a compelling state interest and that legislative enactments must be narrowly drawn to express only the legitimate state interests at stake. (strict scrutiny test) b) The Trimester Approach: (1) First trimester, medical judgment of the pregnant women‘s attending physician; (2) Second trimester, regulate the abortion only in ways reasonably related to maternal health. (3) Subsequent to viability, the State may regulate, and even proscribe, abortion except where it is necessary for the preservation of the life/health of the mother. 3 A challenge to Roe: City of Akron v. Akron Center for Reproductive Health (1983) (532): Ct. struck down a range of abortion regulations: (1) requirement that abortions performed after the first trimester had to be performed in the hospital; (2) provision mandating a set of guidelines regarding info the physician had to convey to patients; (3) a mandatory 24-hr. waiting period following to signing the consent form (required a second dr. visit). a) Powell: Stare decisis - Reaffirmed central holding and trimester framework. a) D. More Free Outlines: http://c.finamore.home.comcast.net or http://finamore.net 34 O‘Connor dissent: an abortion law ―is not unconstitutional unless it unduly burdens the right to seek an abortion.‖ (W/technology state interest diminished by lesser health risks, while viability determined sooner. 4 Planned Parenthood v. Casey and the end of the Trimester Approach (537) a) How did O’Connor win out? Though the undue burden test was subscribed to by only three justices, it represented the holding: ―Where a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five justices, ‗the holding of the Court may be viewed as that position taken by those members who concurred in the judgment on the narrowest possible grounds…‘‖ Marks v. United States (1977). Since Blackmun and Stevens concurred in the result on the grounds that Roe should be totally affirmed. O‘Connor‘s opinion wins. 5 The “Undue Burden” Test: a law presents an undue burden ―if its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.‖ a) ―Purpose‖: this standard is not met if the state‘s purpose is ―to persuade the woman to choose childbirth over abortion.‖ Huh? Since a state can almost always claim that its purpose was to persuade and not to hinder, almost no law will be held to constitute an undue burden because of its purpose. b) ―Effect‖: it is more difficult to establish that a law unduly burdens the right to choose an abortion than it was under Roe and progeny. The govt may adopt measures that interfere with a woman‘s ability to obtain an abortion as long as they do not actually prevent or ―prohibit any woman from making the ultimate decisions to terminate her pregnancy before viability.‖ ―The fact that a law…has the incidental effect of making it more difficult or more expensive to procure an abortion cannot be enough to invalidate it.‖ 6 The Undue Burden Standard a) What if a law has the purpose of discouraging abortion but doesn‘t impose what would otherwise be considered a substantial obstacle? Mazurek v. Armstrong (1997) (556): HELD: restriction to licensed physicians is not an undue burden b) Partial birth abortion. Stenberg v. Carhart (2000) (556): Court struck down a NE law that banned socalled ―partial birth abortions‖ w/o providing for exceptions to preserve the mother‘s health. (1) Breyer: Where substantial medical authority supports the proposition that banning a particular abortion procedure could endanger a women‘s health, Casey requires the statute to include a health exception when the procedure is ‗necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.‖ Sexual Intimacy: Bowers v. Hardwick 1 Introduction: The Court has been reluctant to expand privacy to include other highly personal and intimate decisions. 2 Bowers v. Hardwick (1986) (568): Court upheld Georgia‘s criminal sodomy law as applied to sexual conduct engaged in by two adult men in the privacy of their home. a) White framed the issue as ―whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy…‖ The Court held that because no such right exists, the law was subject to rational basis review. This standard was satisfied by the fact that the law reflected the ―belief of a majority of the electorate in Georgia that homosexual sodomy is immoral and unacceptable.‖ 3 Whalen v. Roe (1977) (574) held that the right of privacy shields a person‘s ―interest in independence in making certain kinds of important decisions.‖ It is the right to make these decisions without gov‘t interference, not the right to engage in any particular conduct, which is central to the right of personal autonomy. Had the Bowers court followed this approach, it might have asked whether the right of privacy embraces a decision made by two consenting adults as to their private sexual conduct. a) Instead the Court focused solely on the specific conduct, asking whether the right of ―homosexuals to engage in acts of consensual sodomy‖ is ―‗deeply rooted in this Nation‘s history and tradition‘ or ‗implicit in the concept of ordered liberty.‘‖ You can of course guess what the answer was to this ridiculous question. The Right to Refuse Medical Treatment: A Right to Die? 1 Introduction: The liberty to refuse unwanted medical treatment is sometimes tantamount to choosing the time and manner of one‘s death. The same is true of the more tenuous right to choose a particular drug or medical procedure. 2 Cruzan v. Missouri Department of Health (1990) (575): Rehnquist conceded, ―the principle that a competent person has a constitutionally protected liberty interest in refusing unwanted medical treatment may be inferred from our prior decisions.‖ a) The court applied a modified strict scrutiny test under which it simply balanced the state‘s interests against the liberty interests of the parents. It found that the state‘s interests in preserving life and b) E. F. More Free Outlines: http://c.finamore.home.comcast.net or http://finamore.net 35 protecting the authenticity of the decision to die were sufficient to outweigh any possible frustration of a patient‘s liberty interest. G. Suicide and Physician-Assisted Suicide 1 Washington v. Glucksberg (1997) (578): unanimously rejected a due process challenge to a Washington law that made it a crime for anyone, including physicians, to assist another in committing suicide. a) Critical framing of the issue: a ―right to commit suicide,‖ not a ―right to die:‖ b) Instead, the Court said, ―the question before us is whether the ‗liberty‘ specially protected by the Due Process Clause includes a right to commit suicide which itself includes a right to assistance in doing so.‖ c) Tradition argument: Based on a long tradition of banning suicide, the court found that the asserted right to assistance in committing suicide is not a fundamental liberty interest protected by DPC The Court‘s reluctance to find a fundamental liberty here was heightened by the fact that such a ruling would come in the middle of a national debate and would have preempted it. [would be very undemocratic for the court to step in]. d) Rational basis test applied: The ban was found to be reasonably related to a number of legit state interests, including: saving human life, assuring proper treatment for those suffering from depression/mental illness, preserving trust in the doctor-patient relationship, protecting vulnerable groups from those who might want to bring about premature death. 2 Vacco v. Quill (1997) (588): Court found that NY‘s assisted suicide ban did not violate the EP Clause. B/c no fundamental rights and no suspect classifications were involved, only a rational basis standard of review was called for. Distinguished from Cruzan: a) When life-sustaining treatment is w/drawn from a terminally ill patient, death is caused by the underlying disease, when an individual is given lethal medication, however, death is caused by the medication. W/ respect to intent, when life-sustaining treatment is w/drawn, the intent of the patient and her physician is not necessarily to cause death, but perhaps to live w/o unwanted medical technology, surgery, or drugs. b) In the case of assisted suicide, the intent of the patient and her physician must in part be to cause the patient‘s death. XV. Equal Protection A. Introduction and Overview 1 The Equal Protection Clause: 14th Amendment §1: “No State shall…deny to any person w/in its jurisdiction the equal protection of the laws.” 2 Standard of Review: a) If a law or practice discriminates on the basis of race, alienage, national origin or if it selectively burdens the exercise of a fundamental right, the Court will apply strict scrutiny. b) If it discriminates on the basis of gender or legitimacy, Court will apply intermediate scrutiny. c) Most other classifications are tested under a highly deferential rational basis standard of review. 3 What type of discrimination is involved? a) Facial Discrimination: Classifications drawn in the text b) Discrimination by Design: Facially neutral w/ disproportionate impact or burden AND purpose c) Discriminatory Application: Facially neutral, no purpose but discriminatory as applied 4 Prima Facie Case must show: a) Disproportionate or disparate impact on a particular group. b) Intentional impact on particular group from discriminatory purpose or design. B. Suspect Classifications 1 Race: The driving force behind adoption of the 14th amendment was a determination to prevent states from continuing to discriminate against the recently emancipated slaves (Slaughter-House Cases); extended to other races (Yick Wo v. Hopkins); setback in (Plessy v. Ferguson) 2 Modern Equal Protection: a) Shelley v. Kraemer (1948): the Court invoked the EP clause to overturn a state court‘s enforcement of a racially restrictive covenant. b) Brown v. Board of Education (1954): EP clause finally recovered from the blow sustained in Plessy. In Brown and progeny, the Court emphatically rejected the doctrine of separate but equal. Instead, the Court said that laws that classify on the basis of race or national origin are ―odious to a free people,‖ and if ―they are ever to be upheld, they must be shown to be necessary to the accomplishment of some permissible state objective, independent of the racial discrimination which it was the object of the 14 th amendment to eliminate.‖ Loving v. Virginia (1967 - miscegenation case). c) Rare exception: race classification survives SS. Korematsu v. U.S. (1944). Court sustained conviction for violating WWII order excluding people of Japanese ancestry from certain areas. More Free Outlines: http://c.finamore.home.comcast.net or http://finamore.net 36 3 Strict Scrutiny as a Measure of Constitutionality a) A law that is subject to SS under the EP clause will pass muster only if it is: (1) Justified by a compelling state interest (2) Narrowly tailored to further that interest b) Compelling Interest (1) Ex: administrative convenience is not a ―compelling‖ enough interest (2) Frontiero v. Richardson (1973 – struck down army law requiring women to prove dependent husbands for benefits). c) Narrowly Tailored (1) Definition: ―must fit the alleged compelling interest ‗with greater precision than any alternative means.‘‖ Wygant v. Jackson Board of Ed. (1986 post-Bakke case striking down a law requiring AA in layoffs) (2) Sometimes a less discriminatory alternative available for achieving the purpose. Racial Segregation of Public Schools 1 Plessy v. Ferguson (637) [1896] FACTS: Louisiana law of 1890 required ―equal but separate accommodations‖ for ―white‖ and ―colored‖ railroad passengers. Plessy arrested for not leaving coach seat for whites. HELD: 1) Laws requiring separation in public places does not necessarily infer the inferiority of either race to the other, but is within the competency of the state legislature in the exercise of their police power 2) The legislature is at liberty to act with reference to the established usages, customs, and traditions of the people, and with the view to the promotion of their comfort, and the preservation of the public peace and good order. a) HARLAN dissent – Our constitution is color-blind, and neither knows nor tolerates classes among citizens. 2 Brown v. Board of Education (639) [1954] FACTS: Negro minors seek the aid of the courts in obtaining admission into public schools of their community on a non-segregated basis HELD: 1) To separate them from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone. 2) In the field of public education the doctrine of ―separate but equal‖ has no place. Separate educational facilities are inherently unequal. a) Sociological Studies (footnote 5) – Education does not exist in a vacuum b) ―All deliberate speed‖ – oxymoron which reflected thinking of problem in political terms, he knew there would be resistance so affirmed procrastination 3 Bolling v. Sharpe (643) [1954] HELD: Racial segregation in District of Columbia public schools violates the DPC of the 5th Amendment. ―It would be unthinkable that the same Constitution would impose a lesser duty on the Federal Government.‖ a) Justice Warren had to create a link b/w 5th and 14th Amendment 4 Brown extended to non-educational settings: a) Johnson v. Virginia (644) [1963] FACTS: Reversed a contempt conviction for refusal to comply with a state judge‘s order to move to the section of courtroom reserved for blacks HELD: It is no longer open to question that a State may not constitutionally require segregation of public facilities Affirmative Action 1 Regents of California v. Bakke (1978) [752] FACTS: Affirmative action admissions program at university HELD: 1) The guarantee of equal protection cannot mean one thing when applied to one individual and something else when applied to an individual of another race 2) May consider race as a factor, but program is not narrowly tailored 3) Diversity may be a compelling governmental interest in the field of education a) Strict Scrutiny applied, but disagreement by 4 other justices b) Hopwood v. Texas (1996) diversity does not survive strict scrutiny c) Smith v. Washington (2000) diversity is a compelling governmental interest (see Mark v. U.S.) 2 Wygant v. Jackson Bd. of Ed. (1986) [766] FACTS: Collective bargaining agreement that allowed white teachers of more seniority to be fired before minority teachers HELD: 1) Societal discrimination alone is not sufficient evidence to show that remedial action is necessary 3 Richmond v. J.A. Croson (1989) [770] FACTS: Richmond plan requiring contractors awarded city construction contracts to subcontract at least 30% of the work to minority business enterprises. HELD: 1) laws that discriminate on the basis of race are subject to strict scrutiny, including laws that discriminate against whites.2) a showing of prior racial discrimination must be grounded in a strong basis in evidence before allowing some racial classifications C. D. More Free Outlines: http://c.finamore.home.comcast.net or http://finamore.net 37 The Croson majority noted that SS is necessary to assure that allegedly benign motivations are not in fact motivated by illegitimate notions of racial inferiority or simple racial politics and to assure that they do not inflict ―stigmatic harm‖ on those they are intended to benefit.‖ 4 More relaxed standard cases: In an earlier case, Fullilove v. Klutznick (1980) [768], the court had applied a more relaxed standard of review in upholding a similar MBE set-aside program adopted by Congress. In Metro Broadcasting v. FCC (1990) [784], decided one year after Croson, the court again rejected the use of SS for benign race-conscious measures mandated by Congress and ruled that such measures should be tested under the intermediate scrutiny, like gender. 5 Adarand Constructors v. Pena (1995) [786] FACTS: Construction contract preference to MBE‘s HELD: 1) All racial classifications imposed by whatever state, federal or local government actor, must be analyzed by a reviewing court under strict scrutiny.‖ Need narrowly tailored measures furthering compelling gove rnmental interests. a) Distinguish Bakke: Education vs. Business b) O‘Connor in Wygant, ―at least in the field of education, diversity clearly serves as a compelling governmental interest‖ c) Strict Scrutiny is not ―strict and theory and fatal in fact‖ 6 What constitutes a compelling interest? a) Must seek to rectify the effects of identifiable racial discrimination, societal discrimination alone is not sufficient b) Must have a strong bases in evidence that remedial action was necessary 7 When is a classification narrowly tailored? a) Adopted as a last resort after all race-neutral remedies were examined and found inadequate, and b) The use of race must be no more extensive than necessary. Gender Discrimination 1 Introduction: Ours is the only major written Constitution with a Bill of Rights that lacks a provision explicitly declares the equality of the sexes (Original text never referred to women at all) 2 Standard of Scrutiny: Laws that classify on the basis gender are ―quasi-suspect‖ and are subject to intermediate scrutiny under the EP protections of the Fifth and Fourteenth Amendments. a) Gender discrimination is unconstitutional unless it is shown to be supported by an ―exceedingly persuasive justification.‖ Mississippi University for Women v. Hogan (1982). 3 United States v. Virginia (1996), the burden of justification is demanding and requires the defender of the measure to convincingly demonstrate that the classification serves important and legitimate government objectives that do not rely on archaic or overbroad generalizations about the different talents, capacities, or preferences of males and females a) Reasons can‘t be invented post hoc in response to litigation – Virginia. 4 Acceptable means under the intermediate test: the discriminatory means must be ―substantially related‖ to the achievement of these objectives. 5 Gender classifications get intermediate scrutiny even if they burden men rather than women. a) Mississippi Univ. v. Hogan (1982) [656], the Court held that the fact that a law discriminates against males rather than against females does not exempt it from scrutiny or reduce the standard of review. (1) RATIONALE: Stereotypes about the proper role of men rely on stereotypes about women. In Mississippi, for example, the school barred men from entering the nursing school. (nursing for girls) b) Craig v. Boren (1976) [659]: Craig, a male, challenged, an Oklahoma statute, which denied beer sales to males under 21 and females under 18. The state objective—traffic safety—is clearly important. However, the relation between this objective and the statute is based on statistical evidence fraught w/ shortcomings and is inadequate to show that sex represents a legitimate, accurate proxy for the regulation of drinking and driving. 6 Comparing the Tests for Gender and Race Discrimination a) Laws drawing distinctions based on physical differences b) AA more easily justified in the case of gender than in race – past societal discrimination could be a sufficient interest to justify it c) Court has left open the possibility that the principle of separate but equal could allow a state to operate separate undergrad institutions for men and women even though racially segregated schools is unconstitutional. 7 The court has been unwilling to recognize any new bases of classification as being suspect or quasi-suspect for EP purposes. As a result, the ―list‖ is limited to race, national origin, and alienage, while only gender and legitimacy are deemed to be quasi-suspect and subject to intermediate scrutiny. a) E. More Free Outlines: http://c.finamore.home.comcast.net or http://finamore.net 38 Fundamental Rights 1 Equal Protection and Fundamental Rights (strict scrutiny) 2 Two types of fundamental rights under EP: a) DP liberties – i.e. interests that qualify as fundamental liberties under the DP clauses of the 5 th and 14th amendments. (1) These included enumerated rights, like speech and religion, and nonenumerated ones like the freedom to marry (Loving v. Virginia), the right to choose whether to bear or beget a child (Eisenstadt? Roe?), and the right to determine one‘s family living arrangements (Zablocki?). b) EP liberties – consist of certain implied liberty interests that are deemed to be fundamental for EP purposes even though they do not enjoy fundamental status under the DP clause: (1) The right to vote (Harris v. McRae, Rice v. Cayetano, the freedom to travel, and perhaps the liberty to obtain a basic education. XVI. State Action Doctrine A. Introduction 1 Definition: 14th amendment only limits the power of a state to transgress the procedural and substantive rights created by §1 of the Amendment; it does NOT impose any constitutional restraints on purely private activities. a) First established in the Civil Rights Cases 1883, in which the court overruled the Civil Rights Act, which applied to private actors, because the 14th A only applied to state action. b) Consistent w/ most constitutional limitations, which can only be asserted against government actors, i.e. the BoR only regulates government action. c) Exception: the 13th amendment abolishes slavery both in private and public spheres 2 Easy case of state action: when the state or any of its subdivisions either directly or through an employee is implicated in the action. 3 Tougher cases: Even if the actor is not technically a state actor, there will be ―state action‖ if either: a) The state is intimately involved in the private activity it can be transformed into state action b) The state delegates its power to a private entity or person 4 Underlying question in every state action case: is the state sufficiently implicated in the challenged activity to warrant an application of the 14th Amendment? a) This is generally a fact bound inquiry and varies from case to case B. Private Performance of a Public Function 1 If a state permits a private party to exercise what is clearly governmental power, then the activity of the private party will be treated as state action for purposes of the 14th Amendment. a) Marsh v. Alabama (1946) [871]: town that was owned/operated by a private company prohibited a Jehovah‘s Witness from distributing literature. The town, by monopolizing all governmental functions, had taken on the character of a governmental actor and was therefore, subject to the same First Amendment restraints applicable to state/local governments. b) Lloyd Corp. v. Tanner (1972): Ct. tried to distinguish case from Logan even though the facts were very similar. Emphasized the unique nature of the facts in Marsh, particularly the pervasive scope of the company‘s authority, suggesting a narrow ambit for the public function doctrine. 2 Jackson v. Metropolitan Edison Co. (1974) [876] Ct refused to find state action in claim by P who sought to enforce the 14th A due process rights against a privately owned utility company that had terminated her services, arguing that it provided ―essential public service.‖ a) Rule: State action could only be found where the private entity exercised powers traditionally exclusively reserved to the states. (1) State was NOT implicated in the alleged discriminatory decision. (2) The fact that the private entity is (1) regulated; and (2) a natural monopoly, does NOT convert it into state action. After all, the state isn‘t granting them a monopoly for their benefit, merely regulating them so they don‘t charge monopoly prices. (3) No symbiotic relationship (like in Burton). 3 Flagg Bros. v. Brooks (1978) [897] Rejected public function argument: Private sale of stored goods under state law permitting such a sale is not state action, since the resolution of disputes in the commercial world is not the ―exclusive prerogative of the sovereign.‖ a) Rejected nexus claim, that the warehouseman‘s proposed sale was ―properly attributable to the state b/c the State has authorized and encouraged it in enacting the UCC.‖ The court has never held that the States mere acquiescence in a private action converts that action into that of the State. b) Refuses, like in Moose Lodge/Jackson, to construe State‘s inaction as ―authorization‖ or ―encouragement‖ of the private action. More Free Outlines: http://c.finamore.home.comcast.net or http://finamore.net F. 39 C. Judicial Enforcement of Private Agreements 1 Shelley v. Kramer (1948) (Judicial enforcement of a covenant restricting the sale of real property to members of the Caucasian race). Held, that the agreement to discriminate did not violate the amendment since it was between private parties, but the judicial enforcement transformed the agreement into state action. a) Problem following Shelley: If the critical element is the judicial enforcement, it would seem whenever there is judicial enforcement of a private agreement the private agreement will be attributed to the state. b) Modern reading of Shelley: The critical element of Shelley wasn‘t simply the judicial enforcement of a particular type of private agreement; it was the interposition of the judiciary between these two parties, essentially forcing the seller to discriminate on the basis of race 2 Evans v. Abney (1970) - As long as the court itself does not discriminate or require discrimination, the enforcement of the terms of a discriminatory bequest, under otherwise neutral principles of law, will not transform that private activity into state action. Joint Activity Between a State and Private Party: The Nexus Approach 1 If a private party and a state engage in joint activity that results in the deprivation of another‘s constitutional rights, the activity of the private party may be deemed state action. 2 Based on the nature and the scope of the relationship between the private party and the state. a) Concerted or conspiratorial activity between a state actor and a private actor directed toward depriving another individual or his or her constitutional rights. [Adickes v. Kress] b) The creation of a mutually beneficial relationship between state and a private actor in which the private actor takes action that would violate the 14 th if undertaken by the state. 3 Burton v. Wilmington (1961) [885], FACTS: Coffee Shop located w/in parking garage owned by an agency of Delaware refused to serve black patrons food. HELD: lessees of state property whose leases further state interests and which form an integral part of a state operation are required to comply with the 14 th a) State has put itself into a position of interdependence w/ Eagle, having mutual benefits. Here, the restaurant constituted a ―physically and financially integral‖ and indispensable part of the State‘s plan to operate its project as a self-sustaining unit.‖ b) State could‘ve required Eagle to agree to a covenant not to discriminate. 4 Interdependence Critical: Moose Lodge v. Irvis (1972) [889], where Ct held that a liquor license issued by the state was not a sufficient nexus between the state and the private actor to warrant treating the club‘s activities as state action. a) Nothing approaching the symbiotic relationship between lessee and lessor in Burton. b) No state regulation mandating/deciding upon the specific activity being challenged. c) State regulation or state licensing scheme alone is not sufficient, state must be responsible State Endorsement of Private Conduct 1 Cases in which the state has authorized or encouraged private conduct in a way which would violate the 14 th A if engaged in by the state. 2 Reitman v. Mulkey (1967) [891], An amendment to the CA Constitution that legalized private acts of racial discrimination in the sale or rental of housing. The effect of the provision was not only to repeal thenexisting fair housing laws, but also to immunize racial discrimination in housing from all future ―legislative, executive, or judicial regulation at any level of state gov‘t.‖ This did constitute state action—the provision at issue affirmatively authorized and encouraged acts of racial discrimination.[contrast Reitman w/ reasoning in Flagg! – purely economic, this involves race] Lugar Test and No State Action Cases 1 Blum v. Yaretsky (Medicaid patients sued nursing home for violation of procedural d.p. when they were transferred to downgraded nursing facilities.) No state action, b/c: a) Privately owned nursing facility doesn‘t perform public function. Medicaid funding not enough b) Mere acquiescence is insufficient to transfer action to the state. State must be ―responsible‖ for the act. 2 Rendell-Baker v. Kohn (1982) (Held that a private school, whose income was derived primarily from public sources and which is regulated by public authorities could not be considered as engaging in a state action when it discharged certain employees. Receiving public funds alone is not enough 3 Lugar v. Edmonson Oil Co (1982): (Pursuant to state law, creditor attached debtor‘s property in an ex parte proceeding. The writ was issued by a state clerk and was executed by the Sheriff. LUGAR TEST: a) The deprivation must be caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the State, or by a person for whom the State is responsible b) The party charged w/ the deprivation must be a person who may fairly be said to be a state actor. This may be b/c he is a state official, b/c he has acted together w//obtained significant aid from state officials, or b/c his conduct is otherwise chargeable to the state. [easily satisfied here] (This part encompasses the four categories discussed above) D. E. F. More Free Outlines: http://c.finamore.home.comcast.net or http://finamore.net 40 Application of the Lugar Test: Edmonson v. Leesville Concrete Co. (1991) [901] Found requisite state action in a decision taken by a non-governmental actor. Here, use by a private litigant in a civil proceeding of peremptory challenges to exclude jurors on the basis of their race constituted state action a) The claimed constitutional deprivation resulted from the exercise of a right or privilege having its source in state authority. Easily satisfied since peremptory challenges were created by the state b) The private litigant was held to be a government actor. Look to standards/factors used in past cases: (1) The extent to which the actor relies on governmental assistance and benefits [Burton: jt. activity between state and private party] (2) Whether the actor is performing a traditional gov‘t function [Terry, Marsh: private performance of a public function, U.S.O.C.] (3) Whether the injury caused is aggravated in a unique way by gov‘t authority [Shelley: judicial enforcement of private agreements] (4) State endorsement of a private function [Reitman] Congressional Enforcement of the Civil War Amendments Limitations of Civil Rights Laws 1 13th, 14th, and 15th amendments all have an enforcement clause granting Congress the power to enforce the provisions of the underlying Amendment. 2 These laws contain both civil and criminal provisions and they fall into two groups: a) Reaches only action “under color” of law; b) Reaches private conspiracies, w/o any state nexus requirement on the face of the statutes. 3 Three central concerns that arise out of these statutes: a) The sources of constitutional rights; b) Vagueness; c) Statutory construction. Enforcement of the Thirteenth Amendment 1 Both (1) Self-executing; and (2) Applicable to state and private actors a) Despite the self-executing nature of the amendment, authors knew legislation would be needed to enforce it. §2 gives Congress this authority: “Congress shall have power to enforce this article by appropriate legislation.” 2 Civil Rights Cases (1883), Held that the 13th A, while it prohibits slavery by the State and private parties, the ―badges of slavery‖ only include a very narrow list of factors: Compulsory service of the slave for the benefit of the master, restraint of his movements except by the master‘s will, disability to hold property, to make contracts, to have a standing in court, to be a witness against a white person, and such like burdens and incapacities, were the inseparable incidents of the institution. [No longer have this. Overruled in Jones]. 3 Jones v. Alfred H. Mayer (1968) [920] FACTS: Controversy arose out of a private company‘s refusal to sell a home to an African-American couple. Couple brought suit under 42 USC §1982, a statute passed pursuant to the Thirteenth Amendment: ―All citizens of the United States shall have the same right, in every state and territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold and convey real and personal property. a) Held, that the scope of the congressional power to enforce the Thirteenth Amendment is measured by the rationality of a congressional determination that the activity being regulated or prohibited is a badge or incident of slavery. b) This is a deferential standard designed to recognize the broad latitude of the authority vested in Congress by §2. 4 Runyon v. McCrary (1976), Held that §1981 prohibits private, commercially operated, nonsectarian schools from denying admission to prospective students b/c they are black. a) §1981 prohibits racial discrimination in the making and enforcement of private Ks. D‘s actions clearly fall w/in this prohibition. b) The 1st A. rights of freedom of association allows parents to send their children to schools that promote racial segregation, but does not protect the actual practice of excluding certain races from such schools. The Constitution places no value on discrimination. Equal access by all races will not inhibit teaching. Enforcement of the 14th Amendment 1 §5 provides: ―The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.‖ a) The scope of the 14th A enforcement power under is as broad in its context as is the authority vested in Congress by the Necessary and Proper Clause in Art. 1 §8. 2 Katzenbach v. Morgan (930) FACTS: Voting Rights Act provided that no person who has successfully completed the sixth primary grade in an accredited school in Puerto Rico in which the language of instruction 4 XVII. A. B. C. More Free Outlines: http://c.finamore.home.comcast.net or http://finamore.net 41 was other than English shall be denied the right to vote in any election because of inability to read or write HELD: (1) May be viewed as remedial action for nondiscrimination (2) Rational Basis test a) Problem that Court has not yet spoke on literacy tests. This appears to be a prophylactic measure. Oregon v. Mitchell (937) FACTS: Challenges to Voting Rights Act that prohibited denying to any citizen the right to vote in any election on account of age if such citizen is eighteen years of age or older HELD: (1) age provision upheld for federal election (2) provision held unconstitutional as applied to states (3) ―No function is more essential to the separate and independent existence of the States than the power to determine within the limits of the Constitution the qualifications of their own voters for state, county, and municipal offices Modern Trend: Court is much less deferential toward infringements on the traditional prerogatives of the states – e.g. congressional abrogation of 11th amendment immunity and commerce power restrictions. Under these new standards, if Congress creates a nonparallel statutory right, the exercise of power will be upheld only if the statutory right is a) ―congruent‖ with judicially recognized constitutional rights; and b) ―proportional‖ in terms of the remedy it provides. City of Boerne v. Flores (940) FACTS: Free Exercise Clause claim brought by members of the Native American Church who were denied unemployment benefits when they lost their jobs because they had used peyote. Previous case Smith held, applicable laws may be applied to religious practices even when not supported by a compelling governmental interest [neutral application]. Religious Freedom Restoration Act sought to require any application that substantially burdened the free exercise of religion to fall under strict scrutiny. HELD: (1) Any suggestion that Congress has a substantive, non-remedial power under the 14th Amendment is not supported by our case law (2) While preventive rules are sometimes appropriate remedial measures, there must be a congruence between the means used and the ends to be achieved. The appropriateness of remedial measures must be considered in light of the evil presented. [legislation under 14th A must be directed at harm] (3) Contrary expectations to stare decisis will be disappointed. United States v. Morrison (949) FACTS: Violence Against Woman Act provides a federal civil remedy to victims of gender motivated criminal acts. Congress supports with Commerce Clause and 14th Amendment HELD: (1) Petitioners § 5 argument is founded on an assertion that there is pervasive bias in various state justice systems against victims of gender-motivated violence – voluminous findings. (2) Prophylactic legislation under §5 must have a “congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end.” (3) Section 13981 is not aimed at proscribing discrimination by officials which the 14th Amendment might not itself proscribe; it is directed not at any State or state actor, but at individuals who have committed criminal acts motivated by gender bias. a) MUST HAVE STATE ACTION, THIS IS ABOUT PRIVATE ACTION b) TELLS WHERE WE ARE AFTER BOERNE c) STATE OFFICIAL INACTION IS NOT ENOUGH 3 4 5 6 More Free Outlines: http://c.finamore.home.comcast.net or http://finamore.net