Constitutional Law Professor Percival Spring 2002 I. The Judicial Function A. History of Judicial Review 1. Following the American Revolution there was a great distrust of government power and a fear of tyranny. After the Articles of Confederation were found to be too weak, gave too much power to the states, the framers sought a balance between not only the different levels of government (federalism), but also among the branches of the national government (separation of powers). The framers concentrated mostly on articles I and II, and left article III very short. It only outlined that there would be a Supreme Court and that Congress could create inferior courts. Therefore, the boundaries of the judicial function are created mostly from case law and its powers are limited. B. Judicial Review: Courts can interpret the laws and can void laws that conflict with the Constitution 1. Sources of Authority: a. Article III, §1: The judicial power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. b. Article III, §2: The Judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;--to all Cases affecting Ambassadors, other public Ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party;--to Controversies between two or more States;--between a State and Citizens of another State;--between Citizens of different States,--between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects. c. Article VI: (Supremacy Clause) This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land 2. Cases: a. Marbury v. Madison (1803) -The question here was whether the Supreme Court has the power to review legislative acts of Congress to determine constitutionality.
i. Courts interpret the laws and can void laws that conflict with the Constitution ii. the Supreme Court has the power to interpret the Constitution and decide if a law passed by Congress conflicts with it. b. Ex Parte McCardle (1868) – gives Congress full power under the ―exceptions and regulations‖ language of Article III, to limit the Supreme Court‘s appellate jurisdiction i. Congress may eliminate certain avenues for Supreme Court review, but not all avenues because this would destroy the Court‘s essential role in the constitutional plan ii. Although Congress may eliminate Supreme Court review of certain cases within the federal judicial power, it must permit jurisdiction to remain in some lower federal courts iii. If Congress were to deny all Supreme Court review of an alleged violation of constitutional rights, or go even further and deny a hearing before any federal judge on such a claim, this would violate due process of law 3. Today: Supreme Court has limited power a. Congress can expand and limit scope of Supreme Court appellate jurisdiction (Ex Parte McCardle) b. Congress can create inferior courts of limited jurisdiction [art 1 sect 8 cl 9; art III sect 1] c. SC can only hear issues b/f it from litigants with standing B. Jurisdiction and Standing: Supreme Court has the power to review cases initiated in State or Federal Court so long as the suit is justicable and the parties have standing. 1. Sources of Authority: a. Section 25 of Judiciary Act of 1789: ―a final judgment or decree in any suit, in the highest court of law or equity of a State in which a decision in a suit could be had‖ could be ―re-examined and reversed or affirmed in the Supreme Court of the United States…‖ b. Article III, §2: The judicial Power shall extend to all Cases c. Article VI: (Supremacy Clause) This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land
2. Cases: a. Martin v. Hunter’s Lessee(1816) - upholds Sect 25 of Judiciary Act of 1789 i. Supreme Court has the right to review final decisions of state courts ii. Although there is a system of dual sovereignty, the states gave up some rights in the Constitution anyway. If the Supreme Court does not have the final say there would be uniformity in federal law. The Constitution was designed to operate upon the states themselves, and not just the persons within the states b. Michigan v. Long (1983) - Independent and Adequate State Grounds Doctrine i. If state law does not make a ―plain statement‖ that it is based on independent and adequate state grounds the Supreme Court has appellate jurisdiction to review the state court ruling ii. This promotes uniformity in the state‘s interpretation of federal law. iii. Thus, if the state court decision appears to rest primarily on federal law or is interwoven with federal law, absent a clear statement to the contrary, the Supreme Court will assume that there is no adequate state ground 3. Today: a. The Supreme Court steps in where: i. there are issues of conflict between lower federal courts ii. a state strikes down a federal law iii. state case raises a constitutional question, especially if the states are split b. Parties need 3 things to get into court: i. jurisdiction ii. right of action--legal vehicle to get into court iii. standing II. Limitations on Judicial Review A. Sources of Authority: 1. Article III, §2: The judicial Power shall extend to all Cases…and controversies a. limit business of federal courts to questions presented in an adversary context and in a form historically viewed as capable of resolution through the judicial process i. define the role assigned to the judiciary as part of the tripartite federal system B. Case and Controversy – The matter must be definite and concrete, touching the legal relations of parties having adverse legal interests. It must be a real and
substantial controversy admitting of specific relief through a decree of a conclusive character 1. Advisory Opinions a. Flast v. Cohen (1968): Courts do not offer advisory opinions. Art III requires a case or controversy i. court can only hear cases before it and does not like to get involved in political questions (separation of powers issue) b. the court will also NOT review advisory opinions issued by a state court C. Standing – the doctrine of standing concerns both the case and controversy requirement of Article III and ―prudential principles of judicial self restraint.‖ 1. Purpose: to avoid collusive lawsuit 2. Four requirements (a-c according to Article 3, § 2) a. Injury-in-fact (actual or threatened)—chain of causation [there must be a direct and immediate personal injury as a result of the challenged action] b. Injury must be traceable to action challenging [ c. Must be redressable by the judicial relief sought d. must be in zone of interest of statute of amendment that they 3. Assertion of Third Party Rights – absent a federal statute conferring standing, the Court, pursuant to principles of judicial self restraint, will permit only the injured person to claim a violation of his own rights a. Exceptions i. Special Relationship - Craig v. Boren (1976): ―zone of interest‖ test – when the injury suffered by the claimant deters his relationship with the third party, thereby indirectly resulting in a violation of the third party‘s rights [Vendor of beer had standing to assert constitutional rights of males under 21 years of age against a law prohibiting the sale of beer to them] ii. Where it would be difficult for the third party to assert rights – A claimant may assert the rights of a third party where the latter would find it difficult or impossible to vindicate his own rights [A state statute required the NAACP to disclose its membership list. NAACP had standing on its member‘s behalf because if they brought a claim than their name would be known] 4. Taxpayer Standing – Taxpayers generally have no standing to attack allegedly unconstitutional federal expenditures. The theory is that their interest in such expenditures is too remote, indeterminate, and minute, and that nay injury suffered is common among people generally. a. Personal Liability Exception – a taxpayer may attack the validity of a federal tax assessed against her
b. Unconstitutional Spending Program Exception – a taxpayer may challenge a federal expenditure if; i. she alleges that it exceeds a specific constitutional limitation on the taxing and spending power, [Establishment Clause – designed to bar taxation and spending for support of religion for example]; and ii. it is part of a federal spending program 5. Citizenship Standing (Ex. environmental laws) – Persons have no standing as citizens to claim that federal statutes violate the Constitution. Any interest in constitutional governance is only a generalized interest of all citizens, resulting in an abstract injury a. Lujan v. Defenders of Wildlife (Scalia) - Plaintiffs with only a generally viable grievance against the government do not state an Art III case or controversy . Expansive standing standards interferes with the separation of powers. b. Friends of the Earth, Inc. v. Laidlaw Environmental Services (2000) (this case is not in the book) (Ginsburg) You must have a ―reasonable interest‖ in the statutory violation (mostly applies to environmental cases). Citizen suits have long historical roots and prior to this lower courts were requiring actual injury to be found ( had to have cancer b/f they could get an injunction against a polluting company) 6. Legislators‘ Standing – legislators may have standing to challenge the constitutionality of government action if they have a sufficient ―personal stake‖ in the dispute and suffer sufficient ―concrete injury‖ a. Raines v. Byrd (1997) – Members of Congress have no standing to challenge the Line Item Veto Act authorizing the President to cancel (veto) certain spending and tax measures that are part of a bill that he signs into law. 7. Standing of an Association/ Organization – Even if an association has not suffered injury itself, it may have standing to assert the rights of its members in a representative capacity; if a. the members themselves have standing b. the interest asserted is germane to the association‘s purpose, and c. neither the claim asserted nor the relief requested requires that the members participate in the suit D. Mootness—The Court will not review moot cases only cases with a live controversy 1. DeFunis v. Odegaard (1974)-case was moot because sought an injunction to enter law school. By the time the case got to the Court, was beginning his 3rd year. 2. Exception: Capable of Repitition, yet evading review E. Ripeness—The Court will only hear cases there are ripe for review
1. Case has not matured to the point of redressability and may never reach that point. 2. Protects court against giving advisory opinions 3. City of Los Angeles v. Lyons (1983) - case not ripe where sought an injunction against the LAPD using chokeholds on non violent suspects, because it has not happened yet F. Political Question Doctrine (essentially separation of powers); When a case presents a ―political question‖ rather than a justicable controversy, the Court will not the question 1. Criteria - Baker v. Carr (1962)—Courts will not interfere where: a. textually demonstrable constitutional commitment of the issue to coordinate political dept b. lack of judicially discoverable and manageable standards for resolving it c. A need for finality in the action of the political branches d. Difficulty or Impossibility of devising effective judicial remedies. 2. Powell v. McCormack (1969)—Court will interfere where the question is one of constitutional interpretation; here Congress was in violation of Art. I, Sect 6 , Cl. 2 when they did not allow Powell to sit in the 90th Congress 3. Nixon v. US (1993)(judge impeachment case) - Judge facing impeachment argued that his hearing should be in front of the entire Senate and not a subcommittee a. Court held that case was not justicable: it violated elements a and b b. since the Senate has the ―sole‖ power to try impeachments, it must be able to function without interference in these proceedings. Judicial review of the Senate‘s trial would introduce risks of violation of checks and balances, because it would make the Judicial Branch the final reviewing authority of the ―important constitutional check‖ placed on them by the Framers. 4. Goldwater v. Carter (1979)-here members of Congress attempted to sue the president over his withdrawal from a treaty with Taiwan. The court does not like to interfere with struggles between the two political branches so they denied cert. III. History of National Power A. Federalism - refers to the apportioning of power between the federal government and the states. By the time the American Revolution had been waged and won, state governments were fully entrenched. It was unlikely, therefore, that the states would agree to the creation of a powerful central government at the total expense of its self-governing authority. Granting the states specific self-governing powers and rights was not only politically expedient, but also served the Framers' intent to limit the central government's authority. The sharing of power between the states and the national government was one more structural check in an elaborate governmental scheme of checks and balances.
B. Articles of Confederation, 1777 1. In order to have the colonies ban together in conducting the war with England, the Continental Congress adopted the Articles of Confederation 2. Under the Confederation, the United States was governed by a unicameral body of Congress however it possessed limited powers with the majority of the powers vested in the states. C. Constitutional Convention, 1787 1. The founding fathers were in agreement that a new federal government was needed. 2. Ratification by the necessary nine states was completed in 1788 D. The Federalist Papers – a series of 85 letters published in the New York paper from Oct. 1787 to April 1788. 1. written by Alexander Hamilton, John Jay and James Madison. 2. intended as a partisan debate on the side of ratification IV. Sources of National Power A. Necessary and Proper Clause – (Article I, Section 8, Clause 18) – Congress has the power to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this constitution in the Government of the United States, or in any department or officer thereof 1. McCulloch v. Maryland, 1819 – the main question here was the constitutionality of a state law that taxed the activities of the Second Bank of the United States, a federally chartered financial institution. a. whether the Constitution granted Congress the power to charter the bank – yes, the constitution does not limit the Congress to only the powers delegated. The necessary and proper clause implies additional powers b. ―Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the latter and spirit of the constitution are constitutional.‖ c. Who decides appropriate? 2. Power to build roads and canals a. History – at the constitutional convention, Franklin suggested that Congress be given ―a power to provide for cutting canals where deemed necessary.‖ This was struck down. b. In 1817 a bill apportioning funds for roadways was vetoed by the president as not among the enumerated powers. c. How does this decision differ from McCulloch? ~ appropriate?
V. Federal Power under the Commerce Clause A. Article I, Section 8 – Congress shall have the power to lay and collect taxes . . . to pay the debts and provide for the common defense and general welfare of the United States. B. History of the Commerce Clause 1. The Federalist No. 11 and The Federalist No. 42 – One of the principle purposes of the Commerce Clause was to prevent individual states from erecting trade barriers to interstate and foreign trade. 2. Although the general purpose was to give Congress the power too trump such state imposed restraints, the language of the Commerce Clause is broad and describes a general power over commerce among the states. 3. The clause has been interpreted as vesting Congress with the authority to adopt legislation designed to promote an interstate economic agenda that transcends the vision of a common market free from state imposed restraints. 4. Objections to the Commerce Clause – in 1787, there was a proposed amendment requiring a 2/3 vote of each house for federal regulation of commerce as a response from fear from the South that Northern shipping might restrict free access to foreign shipping and foreign markets C. Gibbons v. Ogden, 1824 – established that Congress may preempt state legislation that interferes with its exercise of authority to regulate interstate commerce. 1. Under the Commerce Clause, augmented by the Necessary and Proper Clause, Congress may regulate any commerce that has interstate effects 2. Congress may not, rely on the commerce power to regulate matters that are completely internal to a state 3. The problem with Gibbons v. Ogden is that it did not forsee future problems that would arise, particularly the validity of state regulations of local maters that were potentially subject to federal regulation under the Commerce and Necessary and Proper Clauses D. Cooley v. Board of Wardens – except in those areas which by their nature require a uniform national rule, the states retained a concurrent power to regulate local activities that affect interstate commerce until such a time as Congress may opt to regulate those matters itself 1. This allowed for the expansive view of federal power set forth in Gibbons v. Ogden, while preserving state authority to regulate most local activities when the federal commerce power lay dormant 2. The Court later abandoned the concurrent power approach and divided the activities specifically into whether they were local or interstate. – This
curtailed the Congress‘ ability to regulate local economic activity through the Necessary and Proper Clause as augmented in the Commerce Clause a. Tenth Amendment – ―The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively or to the people‖ b. the underlying assumption was that there was an enclave of activity, internal to the states, that was virtually insulated from congressional regulation E. If there is a conflict between state and federal laws, federal laws will prevail. F. New Deal Power - The Court‘s hostility to the New Deal‘s initial regulatory measures to respond to the Depression inspired President Franklin Roosevelt to attempt to pack the Court. Although this effort failed, the Court soon changed its tune and upheld Congress‘ authority to enact sweeping federal regulatory legislation. Until the Court‘s Lopez decision in 1995, the Court had not struck down a federal law on the grounds that it exceeded Congress‘s commerce clause authority for nearly 60 years. During this period the ban on racial discrimination in public accommodations in the Civil Rights Act of 1964 was upheld against commerce clause challenge in Heart of Atlanta Motel G. Post-Depression Commerce Power [United States v. Darby] – questioned the constitutionality of the Federal Labor Standards Act which prohibited the shipment in interstate commerce of certain products manufactured by employees with less than minimum wage or who worked above the specified maximum hours. 1. While manufacture is not of itself interstate commerce, the shipment of manufactured goods interstate is such commerce and the prohibition of such shipment by Congress is indubitably a regulation of the commerce 2. Congress could regulate intrastate activity that had a substantial effect on interstate commerce 3. Rejected an argument that the Tenth Amendment prevented Congress from enacting the FLSA: ―Our conclusion is unaffected by the Tenth Amendment which provides non delegated powers to the states.‖ *Since the power over commerce was surrendered to the United Sates by the Constitution, and since the FLSA came within the scope of that power, the Tenth Amendment had no bearing on the constitutionality of the FLSA. E. Heart of Atlanta Motel, Inc. v. United States – a motel that serves interstate travelers may be barred from engaging in racial discrimination that may deter persons from traveling, thus having an effect in other states – this is considered interstate commerce F. United States v. Lopez – To be within Congress‘s power under the commerce clause, a federal law must either regulate economic or commercial activity that
can substantially affect interstate commerce or require that the regulated activity be connected to interstate commerce [the court held that a federal statute barring possession of a gun in a school zone does not ―substantially affect‖ interstate commerce, noting that there were no congressional findings to help the Court to evaluate whether the regulated activity had such a substantial effect. G. Katzenbach v. McClung – the court has observed that racial unrest has a generally depressant effect on business. This indicates a broad power in Congress, under the commerce clause, to regulate all forms of racial discrimination, because a locally depressed business will affect those in other states who deal with the local business. [A restaurant that purchases supplies from other states may be barred from racial discrimination under the commerce power, since such discrimination may effect the quantity of the restaurant‘s business] H. Jones v. Laughlin Steel – the court warned that the scope of the interstate power ‗must be considered in the light of our dual system of government and may not be extended so as to embrace effects upon interstate commerce so indirect and remote that to embrace them, in view of our complex society, would effectually obliterate the distinction between what is national and what is local and create a completely centralized government. I. The test today 1. The balancing test – burden of following the regulation weighed against the substantiality if interstate commerce 2. Rational Basis test – Is there a rational basis for Congress finding that a regulation affects interstate commerce? 3. Dormant Commerce Clause – even is Congress has not acted, a state regulation that burdens interstate commerce is unconstitutional a. Milk Cases – discrimination b. Pike v. Bruce Church – balancing test – Is it discriminatory, if so, looks at whether local interest is pretextual or legitimate. If legitimate, looks to whether there are less discriminatory alternatives c. Oklahoma v. Minnows Case – Statute which banned the export of minnows while permitting intrastate consumption thereof was unconstitutional because non discriminatory means were available d. If facially discriminatory, the state bears the burden of proving that the statute is legitimate. i. Maine‘s statute banning the importation of live fish bait was upheld because it further a legitimate state interest in protecting Maine‘s ecology by keeping out unknown parasites
VI. The Taxing Power A. Article 1 §8, clause 1 provides that Congress may ―lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common defence and general Welfare of the United States 1. This text has been interpreted broadly to vest Congress with an almost unreviewable discretion to define the ends to which the power to tax and spend may be applied 2. Independent Powers a. tax subjects b. spend money on activities that it could not regulate directly B. Sonzinsky v. United States, 1937 – defines what constitutes a tax! 1. Does the measure operate as a tax? 2. Does it raise some revenue? – The tax will be upheld under the taxing power if its dominant intent is to raise revenue rather than regulate or prohibit action a. Objective Approach – its dominant intent will be fiscal, despite the apparent regulatory purpose – even a small revenue will be sufficient b. Subjective Approach – looks at the language and operate effect to determine the dominant intent i. Who enforces the tax statute ii. How much detailed activity one must engage in to be subject to the tax iii. Whether intent is required iv. Amount of the tax VII. The Spending Power – If the spending is directed toward the common defence or the general welfare, than it falls within the scope of the Spending Power. A. United States v. Butler – Congress entered into a Contract with farmers to pay them to submit to a regulatory scheme designed to reduce the production of a particular crop. 1. While clearly spending, the court found this as a disguise to regulate production a. the program was not truly voluntary because the farmers who did not cooperate were at an economic and therefore competitive disadvantage B. Modern Law – the Court today is more differential toward congressional exercises of power than it was when Butler was decided. Today, most ‗spending‘ would be allowed under the commerce clause because virtually all acts deal with interstate commerce
VI. The War Power A. Article 1 § 8 grants Congress the power to declare was, to raise and support armies, to provide and maintain a navy, to make rules for the government and regulation of the land and naval forces, and to provide for organizing, arming, disciplining, and calling forth the militia 1. These powers give Congress a wide scope of authority during war B. Woods v. Cloyd W. Miller Co. – Congressional authority under the war power may also continue after cessation of hostilities to remedy evils created by the war C. Post war power is limited so as to swallow up the limits on congressional power VIII. Other General Powers A. International Agreements 1. Article 6, Supremacy Clause – any state or federal statute that conflicts with a treaty provision is invalid 2. Missouri v. Holland – upheld a treaty over state interests 3. United States v. Belmont – The constitutional powers granted to the President in Article II includes the power to make executive agreements (without the consent of Congress) B. Property Powers 1. Article IV § 3 clause 2 provides that Congress shall have the power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the U.S. 2. Kleppe v. New Mexico - the power to determine what is ―needful‖ is vested in the Congress without limitations C. Fiscal Powers 1. Norman v. B&O Railroad – the broad and comprehensive national authority over the subjects of revenue, finance and currency is derived from the aggregate of the powers granted to Congress, embracing the powers to lay and collect taxes, to borrow money, to regulate commerce with foreign nations and among the several States, to coin money and to regulate the value thereof. [Article 1 § 8 par. 5] D. Naturalization 1. Article 1 § 8 clause 4 provides that Congress shall have power to establish a uniform Rule of Naturalization 2. Fourteenth Amendment § 1 provides those naturalized the same rights as native born citizens E. Regulation of Aliens 1. Kleindienst v. Mandel – The authority of Congress over admission, exclusion, and deportation of aliens is absolute. Congress may exclude
aliens altogether, or prescribe the conditions upon which they may come into or remain in the country 2. Congress may authorize the Attorney General to determine that the admission of an alien would be prejudicial to the interests of the U.S., and without a hearing, the government may exclude an alien from the U.S. F. Admiralty Powers 1. Article III § 2 provides that the judicial power shall extend . . . to all cases of admiralty and maritime jurisdiction 2. The interpretation of the admiralty clause sustained the power of Congress to legislate with respect to events or transactions occurring on navigable waters of the United States whether or not the particular event or transaction occurred in interstate commerce Government Action 1. Congress pays for highways 2. Federal tax on airline tickets 3. Congress conditions aid to states for medical programs on state funding of AIDS research 4. Congress adopts a tax to regulate banknotes rather than to raise revenue 5. Congress prohibits hunting on federal lands 6. Congress bars racial discrimination at places of public accommodation Source of Power Spending Power and the Commerce Clause Taxing Power and the Commerce Clause Spending Power
Power to coin money
Property Power
Commerce Clause
IX. State Sovereignty and Federal Regulation - 10th Amendment - Protection Against the Commerce Clause? “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people‖ NOTE- Only powers that the States had prior to ratification are thought to be ―reserved‖10th Amendment is not a substantive limitation on Congress‘ power to regulate private activities, but it does substantially limit Congressional power to use its Commerce power to regulate states.
B. History 1. 1936-1976- Supreme Court did not invalidate a single federal statute on the basis that it violated state/local gov‘t sovereignty. As a result, most thought that10th Amendment was ―dead‖ as a check on Commerce Clause power. a. Constitutional attacks on application of federal regulatory statutes to state activities = uniformly rejected 2. 1976-1985- Change in Supreme Court-began to treat 10th Amendment like an important limit on federal power a. Amendment was held to bar fed. gov‘t from doing anything that would impair states‘ ability to perform their ―traditional functions‖ b. Court began to look at area the Federal gov‘t was trying to regulate with the Commerce Clause to see if it was an area typically governed by the states or by the Fed. (if not one typically governed by states than regulation was generally okay) 3. 1985- The line of cases establishing limit on Commerce Clause power = flatly overruled by Supreme Court- One of greatest reversals of doctrine in modern S. Court history! B. Cases 1. Maryland v. Wirth (1968)- Example were Court maintained application of parts of Fair Labor Standards Act dictating min. wage & overtime for employees of public schools & hospitals (area generally thought to be under state control) a. Dissent- (start to see some indication of change) Justice Douglas & Stewart said that Commerce power could not be exercised in a way that unreasonably interfered w/ state sovereign power. 2. National League of Cities v. Usery- Overturned Wirth- Supreme Court held that 10th Amendment barred Congress from making federal min. wage & overtime rules applicable to state/local employees a. Reasoning- Majority conceded that min. wage/overtime rules, as applied to state employees, clearly affected commerce. – Found that the min. wage/ overtime provisions could be applied to private employees w/o problem BUT when applied to state employees= problem b/c impairs the States‘ integrity or their ability to function effectively in federal system. Did this in 2 ways: b. Cost- Compliance w/ provisions would have cost state & local subdivisions big sums of $- thus impairing their ability to function effectively c. Removal of discretion- stripped states of discretion to decide how they wished to allocate funds available for salaries i. Impact- If wage/hour rules = allowed to stand, Congress would have right to make ―fundamental employment decisions‖ re: state employees, thus leaving little of States separate and independent existence
d. Concurring opinion –of Justice Blackmum- said that saw majority opinion as adopting ―balancing approach‖ that allowed for federal regulation where the federal interest is apparently greater & where state compliance would be essential 3. Hotel v. Virginia Surface Mining & Reclamation Association- defined three requirements needed to make a National League of Cities challenge a. Must be showing that challenged statute regulates ―states as states‖ b. Fed. Legislation must address matters that are indisputably attributes of state sovereignty c. Must be apparent that State compliance w/ law would impair ability to structure integral operations in areas of traditional governmental functions 4. Garcia v. San Antonio Metro. Transit Authority (1985)- Overturned National League of Cities a. Facts- Issue was whether min. wage/overtime provisions of Fair Labor Standards Act s/ apply to locally owned & operated mass transit authorities. (Under National League this question = ―Is municipal ownership and operation of such transit system a ―traditional governmental function‖? b. Majority Holding- Led by J. Blackmumi. said that it was difficult if not impossible to identify a way to distinguish between those things that are ―traditional governmental functions‖ and those that are not. Things change over time and thus what state should do changes over time. ii. National League approach leads to judicial subjectivityinvites an unelected judiciary to make decisions @ state policies it favors & which it doesn‘t iii. Doesn‘t mean no limitations on fed. Gov‘t use of powers to impair state sovereignty- state interests are protected by ―procedural safeguards inherent in structure of federal system‖- not judicially created limits. (Blackmum seems to suggest that structure of political procedure re: elected reps are enough- Congress won‘t take things too far!) c. Significance of Case- Garcia suggests that once Congress acts under Commerce power and thus regulates a state- the fact it is a state being regulated = no practical significance if regulation valid to apply to private party than valid re: state!
5. New York v. United States (1992)- seems to cutback some on broad scope of Garcia s- Addressing low-level radio active waste problemserious issue & 3 states are ―tired‖ of being dumping ground for other states. 1980 Congress got together and passed law that states could get together to develop waste sites- no real teeth to this so in 1985Congress said states must become responsible for their own waste either by building own site or going in w/ other states- gave 3 ―incentives‖. (Most significant = take title incentive whereby if state didn‘t arrange for disposal than would have to take title of waste) a. N.Y. challenges ―take title‖ provision re: 10th Amendment re: forcing state to regulate in a particular area b. Majority Holding- J. O‘Connor- 10th Amendment = violated; Congress can‘t simply commandeer a state to enact a certain statute or tell that have to regulate in a certain manner. 10th Amendment is ―mirror image‖ of Commerce Clause- If states have the power under 10th than Congress = doesn‘t have. 6. Printz v. United States (1997)- (again seems to cut back some on Garcia decision) - In 1993 Congress enacted the Brady Bill w/ purpose of controlling flow of guns- As temporary measure, the law ordered local law enforcement officials to conduct background checks on prospective purchasers a. the court found that Congress can not commandeer the States to enact or administer a federal regulatory program C. The Law Today 1. Congress may not: a. Compel a state to enact or enforce a particular law or type of law b. Compel state/local officials to perform federally specified administrative tasks c. Fits in w/ Garcia- Garcia seems to apply to generally applicable federal lawmaking- 10th Amendment doesn‘t entitle state operations to be exempt just b/c it‘s a state- everyone is being regulated! BUT federal gov‘t can‘t force state/local to enact legislation or force state/local officials to perform particular gov‘t functions b/c not part of generally applicable federal scheme but rather is directed at state’s basic exercise of sovereignty d. HOWEVER- if state chooses to conduct certain activities themselves- Congress may regulate how they do so b/c Congress isn‘t telling state how to regulate its citizens but rather is regulating state as a commercial actor
Hypothetical #1- proposed after N.Y. v. U.S. Bush tribunal- idea that anyone who has person involved in Sept. 11- can be forced to turn over to Sec. Of Defense- Suppose N.Y. state has someone, can fed. Government makes them turn the person over? Violation of 10th? Criminal laws are typically state governed- Certainly for fed. Government to have ability to trump states there must have been some federal crime committed- Could fed. gov‘t require that state and local authorities interview all students in their areas who are in U.S. on visas? – If offered money could Congress do it under spending power? – under NY or Printz could make argument that provision is unconstitutional -Could you make argument that provision comes under war powers? X. State Sovereignty – 11th Amendment ― The Judicial Power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State‖ NOTE- On its face, 11th Amendment seems to say that one state can‘t be sued in federal court by a citizen of a different state, or by a foreigner. A. History 1. Chisholm v. Georgia (1793)- Plaintiff filed suit against GA to collect debt- Supreme Court said there was nothing in Constitution to prevent this action- 11th Amendment passed immediately afterwards to overturn Court decision 2. Idea deepens in Hans. v. Louisiana (1890) – Citizen of LA sues the state- LA says it has ―sovereign immunity‖- Supreme Court says that the suit is barred on 11th Amendment, which indicates that states have sovereign immunity from certain types of suits (even though there is no wording in there re: citizen suing state)- Only way federal court can hear case against state is if state waives sovereign immunity 3. State can waive immunity by: a. State consent b. Congress has power to waive state immunity when it passes certain types of legislation-BUT must unequivocally state that immunity is waived c. Today, most states have waived immunity but punitive damages may still not be sought against them 4. Ex Parte Young (1908)- Minn. State statute alleged to violate 14th Amendment- suit brought against state official who was trying to enforceHolding- When state official is acting unconstitutionally (violating a federal right) – they are acting outside of their official capacity and thus not covered by immunity
5. Edelman v. Jordan (1974)- Suit @ welfare payments = illegally w/held Court makes distinction re: Ex Parte Young- Says that Young idea that can sue state officials but problem is that if allowed to sue for damages would bankrupt states- Thus, can only sue for prospective injunctive relief (re: get officials to abide by law in future)- NOT retroactive monetary damages 6. Fitzpatrick- said Congress had the right to waive immunity when passed legislation re: due process clause (14th) B. Cases 1. Pennhurst State School & Hospital v. Halderman (1984)- District Court ordered state institute to rectify violations of state law. Supreme Court held that the District Court can‘t do this b/c 11th protects state from suits in federal court re: violations of state law (sometimes can be heard coupled with federal crime coming out of same facts). Doesn‘t matter if state sued on state or federal law- state = still immune unless consents or Congress waived immunity 2. Seminole Tribe of Florida v. Florida (1996) - Congress passed statute (IGRA) governing parts of gambling operations being run by Indian tribes. IGRA said that when a state allows non-Indian gambling than it must also negotiate in good-faith w/ any local tribe re: an agreement to let run comparable gambling operations If tribe believed that not operating in good faith- could sue state in federal court. Statute violates 11th Amendment- Said even when Constitution gives Congress complete law making authority over an area-11th restricts judicial power under Article III & Article I can‘t be used to circumvent these Constitutional limits a. Congress doesn‘t have power to waive state immunity based on Commerce Clause or Indian Commerce Clause 3. Alden v. Maine (1999) - Congress had said that Fair Labor Standards Act (min wage/overtime) applies to states as employers as well as private employers- Congress also said that employees could bring FLSA suits against state in state‘s own courts. In this case, worker in Maine did that. Congress has no authority to force Maine courts to hear worker‘s suits, even though suit was based on federal right that Congress did have a right to confer on workers. [state immunity from private suit‘s for money damages in its own courts= fundamental aspect of sovereignty (of 10th Amendment) that states enjoyed before Constitution was ratified and still enjoy today] a. Impact- seems to mean that states have full sovereign immunity from any private suit in the state‘s own courts seeking damages for the state‘s violation of federal law- States seem to have large area where they are insulated from Congressional attempts to give
private individuals damages remedies re: violations of federal rights C. Law Today 1. Over years Supreme Court has interpreted 11th Amendment more broadly than just restricting who can sue state in federal court. Here are some ways scope has been interpreted: a. Suits by citizens of defendant state- Amendment interpreted as barring suits by citizens against own state b. Suits involving Federal question- interpreted to bar suits by private citizens against states, whether based on diversity, alienage, or federal question c. Constitutional embodiment of sovereign immunity-broad reading of Amendment re: that states can‘t be sued by citizens even in case raising federal question- is held to be a constitutional limitation on federal judicial power- not just broad interpretation thus Congress can’t overrule this broad reading (Seminole Tribe) d. Suits in equity- Amendment applies to both suits in law & in equity- can‘t sue to enjoin or order a state to do something (But can sue a state official in private capacity re: enjoining or ordering) e. Suit for injunction against violation of state law- Amendment bars injunctions prohibiting state officials from violating state law (Pennhurst State School Hospital) 2. NOT covered by the 11th amendment: a. Suits against officials for injunctions- doesn‘t prevent suits against private officials where relief sought = injunction against a violation of federal law (Ex Parte Young) b. Suits against officials for money damages- doesn‘t bar suits against state officials for money damages—as long as damages are to be paid out of officials own pockets- Suit is barred where would lead to state being ordered to pay damages out of its pocket!! (even if suit is nominally charged against official rather than state) c. Suits by federal government against state-are not barred d. Suits against cities- are not barred (or against other political subdivisions) e. State agencies and other entities- case law is unclear & inconsistent on when Amendment bars these f. Suits by one state against another- not barred as long as plaintiff state is suing for itself and not merely to protect private interests of individual citizens g. Suits in State Court- Amendment only applies to federal court!!- Does not prevent private citizen from suing in state court
even re: a federal right- (of course, state court must still have jurisdiction over the claim) h. So long as case started in state court not barred from Supreme Court appellate jurisdiction i. Waiver by state- protections of 11th can be waived j. Suits under post-Civil War Amendments-If Congress passed law pursuant to power to enforce post-civil war amendments-& that statute grants private citizen right to sue in federal court- will trump 11th bar 3. . Outside Post-Civil War Amendments- Congress may not abrogate 11th (Seminole Tribe) XI. The Dormant Commerce Clause A. History 1. General - Commerce Clause is the one Constitutional grant that has given rise to substantial litigation re: states‘ powers in Dormant Commerce Clause cases 2. Main Issue- ― Does the mere fact that the Constitution gives Congress the power to regulate interstate commerce prevent a state from taking a particular action which affects interstate commerce, assuming Congress has not actually exercised its power in the subject area in question?‖ NOTE- there is no clear cut answer to this question B. Traditional Approach- Supreme Court adopted middle ground between granting states complete right to regulate were Congress has not chosen to act AND allowing Congress to have exclusive control over power to regulate interstate commerce--- This calls for; 1. Weighing state interests in regulating local affairs against national interest in uniformity & integrated national economy 2. Because limitations imposed by the Dormant Commerce Clause are implicit instead of explicitly- Congress has said limitations on state commerce related conduct imposed by Court may always be reversed by Congress! 3. Supreme Court essentially has to interpret Congress‘ silence on a matter- deference is given to the ideals of Commerce clause C. Gibbons v. Odgen (1824)- (first case Supreme Court interpreted Congressional Silence) NY granted exclusive steamboat operating license to Ogden-Gibbons got federal license to operate ship form NY to NJ but was enjoined from doing so by Ogden‘s monopoly. Thus, Gibbons argued this monopoly violated commerce power. The Court held that the NY monopoly was invalid b/c it conflicted w/ federal commerce power- there are clearly some things that states can‘t do b/c would interfere with interstate commerce
D. Cooley v. Board of Wardens of the Port of Philadelphia (1851)- Court up until this time had been making distinction on state regulation re: whether dealt with interstate commerce or police power—HERE- Court introduced new waywhether subject matter being regulated was ―local‖ or ―national‖ 1. Court affirmed PA law that required ships that entered/left port of Philly to hire local pilot- Thus saying, there are some state regulations that affect interstate commerce that are permissible. 2. States can regulate- those areas = such local nature that require different treatment from state to state. 3. States cannot regulate- those areas that require uniform national treatment 4. Problems with this decisioni. Not easy to distinguish between those ―subjects‖ that require uniform nation treatment & those that need diverse local reg. ii. ―Cooley test‖ doesn‘t consider how extensively states regulation impacted interstate commerce (only looked at subject matter) iii. To correct these problems- Courts began to look closely at impact- direct v. indirect impact on interstate commerce (direct impact=no good) E. Taxation 1. General - fact that state tax burdens Interstate Commerce doesn‘t necessarily mean its unconstitutional To determine whether tax is constitutionala. State taxation is most likely to violate Dormant Commerce Clause- when a state tries to tax operations of business that operates in more than one state b. For multi-state company to successful challenge will have to show ; i. that company‘s business activity doesn‘t have sufficient connection w/ taxing state ii. that tax discriminates against Interstate Commerce iii. tax has led to an unfair cumulative burden c. Min. Contacts- As result of 14th Amendment- non domiciliary company may not be taxed at all unless there are min. contacts between company and state- threshold matter that must be resolved before examining particular tax is equitable 2. Questions to Ask: a. Is tax discriminatory? (can‘t use one rate for local & higher rate for interstate commerce if no difference between 2 classes) b. Is activity being taxed sufficiently related to taxing state c. Is the tax fairly related to benefits? d. Is the tax fairly apportioned in light of local contracts/benefits received by taxpayer? (is there an unfair burden?)
3. Complete Auto Transit, Inc. v. Brady - States may impose a ―Doing Business Tax‖ on persons doing business in the state – both on companies engaged exclusively in interstate commerce as well as on interstate companies engaged in local commerce . . . if four criteria are met; a. the activity taxed must have a ―substantial nexus‖ to the taxing state; b. the tax must be ―fairly apportioned‖; c. it must not discriminate against interstate commerce d. it must ―fairly relate to the service provided‖ by the taxing state F. Discrimination Against Interstate Commerce - to decided validity of state regulation re: Interstate Commerce; 1. Regulation must pursue legitimate state end 2. Regulation must be rationally related to legitimate end 3. Regulatory burden imposed by state on Interstate Commerce & any discrimination on Interstate Commerce, must be outweighed by state‘s interest in enforcing regulation * New Energy Co. of Indiana v. Limbach (1988)- the overall ruling in this case is that the statute in question (dealing with tax credits offered on ethanol) violates the Dormant Commerce Clause b/c it discriminates against Interstate Commerce- on the basis that Ohio‘s justification re: health & commerce- are no more than implausible speculation & thus can‘t justify discrimination. Court here does say that a State can validate a statute that discriminates against IC by showing that a legitimate local purpose exists for the statute that can‘t be achieved through nondiscriminatory alternatives G. Implied Restrictions of Commerce Clause- Transportation - many of early cases re: transportation regulation are not good law now b/c of national highway laws- Initially state highways were maintained by State so had more room to regulate1. Buck v. Kuykendall- (1925)- WA. Statute required all common carriers on highways to get certificates- Court struck down statute on basis that it discriminated against who could use highways- State tried to say statute was to preserve highways but Court found it really was enacted to prohibited competition 2. California v. Thompson (1941)- CA. statute required agents selling transportation on public highways to get license & post bond- Court upheld statute b/c said on its face it appeared to be measure to protect members of public who want to get car who are unable to protect themselves- Thus, presented idea that states can uses licenses as long as they apply to everyone and have legitimate justification (state not using power to try and prevent movement of traffic in CA)
3. South Carolina State Highway Dept. v. Barnwell Brothers (1938)- S.C. Statute prohibited use on state highways of trucks longer than 90 inches & wt. Of 20,000 lbs- Federal district court said statute = violation b/c substantial burden on IC b/c 85-90% of trucks in IC exceeded limitsa. Supreme Court Reversed & Upheld Statute- on basis that regulation applies to both interstate and intrastate trucks b. ―Local Concern”- Court resorted to Cooley idea that highways are a particular local concern 4. Southern Pacific Co. v. Arizona (1945) - Statute prohibited size of trains & authorized penalty for violation- Presents what happens when regulations of 2+ states place a large cumulative burden on Interstate Commerce (not actual conflict necc.) Supreme Court struck down on basis that there is much more national interest w/ trains than highways- Many states had different train lengths & while not contradictory b/c RR could simply follow shortest length & operate in all states—BUT national compliance w/ rule of most restrictive state is a violation b/c it gives most restrictive state authority beyond its borders! 5. Bibb v. Navajo Freight Lines, Inc. (1959)- More like what you would see today- Illinois statute required use of contoured mud flap on trucks & trailers. Statute made illegal use of mud flap in 45states & Arkansas specifically required straight mud flap so truck would not be able to go between Arkansas & Illinois- Presents what happens when actual conflict between regulations of 2+ states. Supreme Court held statute invalid on basis unduly burdensome on Interstate Commerce- no safety reason to justify Illinois mud flapa. Note- typically when have 2+ state regulations that conflictCourt is likely to strike down one- based on need for national uniformity (outweighs states interest in regulating highways, railroads, etc.) H. Insulating In-State Business from Out-Of-State Competition - State‘s are allowed to impose quarantine & inspection laws unless Congress steps in- But can‘t use them to protect in-state ―resources‖ & discriminate against out-of-stateIf state is in good faith pursuing health/safety objective- Court will generally balance benefit / burden (will consider extent of discriminatory effect & if there are alternatives 1. Baldwin v. G.A.F. Seelig, Inc. (1935)- NY trying to set prices to be paid by NY milk dealers to NY milk producers- Also prohibited retails sales in NY of out-of-state milk if had been bought at lower price than set for NY- Unconstitutional because it is discriminatory on its face 2. Minnesota v. Clover Leaf Creamery Co. (1981)- statute prohibited retail sale of milk in plastic containers but allowed other types of
containers to be used- State says environmental reason for statute. Supreme Court overturns state courts striking down of statute. a. Statute is not discriminatory on its face b/c applies to all in and out of staters- Court here accepts local interest as legitimateAcknowledges that statute has slightly more benefit to in-state but relatively slight- Ultimately, statute doesn‘t stop milk from coming in and out of state 3. Exxon v. Maryland (1978)- MD. Passed law prohibiting oil producers/retailers from operating gas stations in MD- Reason = producers/retailers had received special treatment during oil shortageThere are no producers/ retailers in MD, so impact = entirely on out of staters- (and most of those helped = in-staters)- Statute attacked for discrimination, unduly burdensome, & b/c nationwide nature of oil marketing only fed. could reg. a. No discrimination- b/c didn‘t discrim. Against all interstate commerce b. Not unduly burdensome- might cause sales volumes to shift but not problem b/c Commerce Clause protects interstate markets NOT particular interstate firms… c. Not preempted b/c Dormant Commerce Clause may only preempt when lack of national uniformity would hurt flow of goods- but not problem here I. Requiring Business Operations to be Performed in Home State - local regulations that require things to be done in state before product can be shipped out of state- will usually be struck down (Minnesota v. Barber & Foster-Fountain v. Haydel) 1. Pike v. Bruce Church, Inc. (1970) –Arizona statute requires that Arizona cantaloupes be packed in state- Regulation is applied to CA. company shipping uncrated cantaloupes to its CA plant- Arizona claimed they wanted to enhance reputation of (and demand for) Arizona cantaloupes. Statute was held invalid because State‘s interest to enhance reputation of cantaloupes is outweighed by national interest in unencumbered commerce (per se illegal) 2. C & A Carbone v. Town of Clarkstown (1994)- statute for so-called overflow ordinance- requires all waste produced in state to be processed at designated transfer center before leaving locality. Court here doesn‘t even engage in balancing test b/c says the statute is invalid b/c prohibits outstate producers from competing for disposal of garbage- Purpose of statute is to ―hoard trash processing jobs‖ w/in town- Didn‘t matter that lots of instate processors were also deprived of ability
J. Preserving Resources For In-State Consumption –deals w/ deciding what is legitimate protection of resources & what is disguised protectionist regulation? 1. Pennsylvania v. West Virginia (1923)- W. VA passed law that said that every company transporting gas produced in state must take care of domestic/industrial needs of state first- Natural gas is a scarce resource in W. VA. This was held invalid b/c it discriminates against Interstate Commerce - Doesn‘t mean that state can‘t protect resources- just have to do it in away that doesn‘t interfere w/ Interstate Commerce (i.e. ban taking all together or impose large fine on it) 2. Philadelphia v. New Jersey (1978)- Statute prohibits importation of solid or liquid waste into New Jersey on basis that state is running out of landfill space (PA & NY are using NJ sites) this was held to be invalidb/c ―basically a protectionist measure‖ rather than a way to resolve a legitimate local concern – Statute imposes on out-of-state interest the full burden of conserving the State‘s remaining space (might make a difference if state‘s own waste was included) a. “evil of protectionism can reside in legislative means, as well as legislative ends”- Purpose of statute can be legitimate and the statute can still be discriminatory b. Supreme Court did declare waste as an article of commerce c. Quarantine power of states- Attempt to distinguish- quarantine laws ban importation of material that is hazardous at the moment of importation- Although quarantine laws are typically upheldcan‘t be used by state to try and ―legitimize‖ protectionist measure 3. Chemical Waste Mgmt. v. Hunt- Court struck down Alabama law trying to restrict waste entering state by charging higher fees BUT said if state could show that b/c of nature of waste coming from out of state it cost more to process than increased fees might be okay 4. Fort Gratiot Sanitary Landfill, Inc. v. Michigan Dept. of Natural Resources- Statute prevented each county from accepting waste from outside county unless explicitly chose to accept- One county didn‘t adopt plan to allow out of county waste & then denied P‘s application to import out-state waste into county State argued that statute = even handed b/c applies to in & out. Court says invalid- b/c if all localities decided not to allow waste from outside state than would have Philly v. NJ situation a. Holding- Violates Commerce Clause- Statute discriminates on its face- Thus, must justify it under balancing test- & must show that non-discriminatory alternatives are not adequate to preserve state interest- Here- there were other alternatives that could have been used to accomplish purpose (i.e. set limit on # that could be taken by any dealer)
K. Preserving State-Owned Resources For In-State Use - Most of these cases look at the second prong of the analysis, that the statutes. regulations are not discriminatory on their face, but may because of market conditions, be unconstitutional because they may impact more severely on interstate commerce than on local commerce. 1. State as market participant: Reeves, Inc. v. State (1980) - whether, consistent with the commerce clause, US constitution, the state of South Dakota may in a time of shortage, may confine the sale of cement it produces solely to its residents. a. Discriminatory on its face but . . . States can favor their own citizens when the state is acting as a market participant, so South Dakota could supply all local contracts first then supply out of state contracts the South Dakota is market participant, it is competing like any other company, can reserve resources its citizens. (like instate tuition, in the market for education) 2. White v. Massachusetts Council of Construction (1983) - the mayor required all construction projects funded wholly with city funds or with city and federal funds be performed by a work force at least half of which are bona fide residents of the city. a. facially discriminatory but . . . don‘t need to apply the test b/c since the city was acting as a market participant not a regulator, so the commerce clause did not apply the state is not regulating the market 3. South Central Timber v. Wunnicke (1984): illustrates a time when the state crosses the line of the Market Participant Doctrine. a. Facts: Alabama statute requiring buyers of timber sold by the state to process that timber in the state. b. Held unconstitutional because the market participant doctrine did not apply in this case: the state was in reality regulating the processing market L. Limits of Business Entry - A state limiting business activity from out of state is subject to the same type of restricting under the commerce clause as other regulations. 1. the states cannot adopt laws that are essentially protectionist and burden the free flow of commerce even though they are rationally designed to achieve permissive police power objectives. 2. Lewis v. BT Investment Managers, Inc. (keeping national banks out) Florida statute prohibited out of state persons from owning or controlling a bank or trust company located within the state; the same statute also prohibited it from owning businesses furnishing investment advisory services to local banks or trust companies a. it does discriminate on its face (although the state said it did not discriminate against all interest commerce just a certain type)
b. State interest did not out weigh even though it did have a legit. state interest. i. Even though banks have profound local concern , the statute overtly prevents foreign enterprises from competing in local markets, the statute makes out of state location of a bank holding company‘s principle place of operations an explicit barrier to the presence of an investment subsidiary in the state 3. Edgar v. Mite Corp. (1982): restricting take over - An Illinois statute imposed restrictions on corporate takeover not limited to Illinois corporations beyond those imposed by the federal law. This was held to be unconstitutional a. did not discriminate on its face b. but the state law excessively burdened interstate commerce by places a great burden on companies wanting to operate in Illinois. (directly regulated commerce outside of the state M. Interstate Mobility of Persons - The Commerce Clause has been used to invalidate state restrictions of the free movement of people into a state. 1. The power and operation of the nation depends upon the free movement of people from one state to another. Restricting free access to seaports, the national government, etc. would compromise the right of citizens. 2. Crandell v. Nevada - Tax on people leaving the state was unconstitutional. 3. Edwards v. California - California passed a statute making it a misdemeanor to bring any indigent person into the state. Held unconstitutional because indigence is a national burden that must be shared nationally. N. LAW TODAY 1. Modern Test: Balancing - this test balancing the state‘s interest in the regulation against its burden on interstate commerce. a. Does the regulation discriminate on its face? i. if so it is usually held to be per se invalid ii. If not, Maine v. Taylor test: do the burdens on interstate commerce outweigh the state‘s interest in the regulation?
XII. The Privileges and Immunities Clause (and state regulatory power) A. Art. IV §2 provides - ―Every Citizen of each state shall be entitled to all Privileges and Immunities of Citizens in the several States.‖ 1. This has been interpreted as a prohibition against unreasonable discrimination against out-of-state citizens in regard to fundamental national interests. 2. Policy - It is an inherent problem with the federal system, how to reconcile the advantages of a common citizenship with a dispersed sovereignty in a number of independent or largely independent states? 3. Art. IV §2 does not apply to all forms of interstate discrimination. It applies only if fundamental national interests are burdened, i.e. those which bear on the vitality of the Nation as a whole. B. Test asks three questions: (from New Hampshire v. Piper) 1. Is the activity in question ―fundamental‖ in that it is sufficiently basic to the livelihood of the nation as to be within the privileges and immunities protected under Art. IV 2? 2. is there a substantial reason for the discrimination? 3. Does the discrimination bear a close relation to that reason, including consideration of the availability of less restrictive means? C. United Building and Construction Trades Council of Camden County and Vicinity v. Mayor and Council of the City of Camden - This case illustrates difference between dormant commerce clause, and Privileges and Immunities Clause 1. The city passed a statute requiring that 40% of the employees had to be citizens of the city of Camden, who were working on the construction projects that were funded by the city. The City claimed it was having great financial problems, so many people who were paying taxes. moved out of the city, the city was loosing its tax base. through public works projects to require the people who work for construction projects to live in the city. 2. While this is a local matter, as a practical matter it does burden people from out of the state, b/c Camden is close to the boarder, it would have a great effect on people from out of states. 3. This was held Unconstitutional under the Privileges and Immunities Clause the court said it burdens you in the exercise of finding employment, that is fundamental privilege, D. Supreme Court of VA v. Friedman (1988) - VA rule requiring out-of-state lawyers to become permanent residents of the state in order to be admitted to the state bar. This was held to violate the Privileges and Immunities Clause 1. Test a. Is the activity in question must be sufficiently basic to the livelihood of the Nation as to fall within the purview of the P&I clause? b. the court found yes, b/c the practice of law is so fundamental to citizenship that it falls under the protection of the P&I clause. c. Is there a substantial reason for the rule?
d. Does dis. bear a close relation to the rule? e. there are also plenty of non-discriminatory ways to perform their obligations to stay a breast of VA law. XIII. Twenty First Amendment Section 1. The eighteenth article of amendment to the Constitution of the United States is hereby repealed. Section 2. The transportation or importation into any State, territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited Section 3. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by conventions in the several states, as provided in the Constitution, within seven years from the date of the submission hereof to the states by the Congress. A. History: The Twenty First Amendment repealed prohibition 1. Started with 18th Amendment; ratified Jan. 29, 1919; effective Jan. 16, 1920 2. Prohibition was Constitutionally added because it was not clear if Congress had the authority under the Commerce Clause 3. Section 2 of the 18th Amendment allows concurrent federal and state power to enforce; because large percent of population wanted to continue to enjoy liquor the law could not be enforced and it led to corruption of law enforcement 4. The 21st Amendment still allows the state to regulate alcohol (can be a dry state if they choose) B. Intrastate Regulations 1. Gives state governments wide latitude over the importation of liquor and conditions under which liquor is sold or used within the state; state can regulate/own/operate liquor stores if it chooses 2. However, state liquor regulations that constitute only an economic preference for local liquor manufacturers may violate the Commerce Clause 3. Commerce Clause prohibits both outright economic favoritism for local businesses and attempts to regulate out-of-state transactions in order to guarantee the competitive position of in-state businesses. 4. Examples: a. A state sales tax on liquor produced in other states that does not tax sales of locally produced alcoholic beverages violates the Commerce Clause. Bacchus Imports, Ltd. v. Dias, 468 U.S. 263 (1984) b. Hawaii wines were exempt from a 20% excise tax on imported wines i. The 21st Amendment cannot save this tax because the 21st gives the state power to regulate the alcohol with the central purpose of promoting temperance—not to allow economic protectionism c. A state law that requires out-of-state distillers or sellers of alcoholic beverages to affirm that the price the distiller/seller is charging liquor
retailers or wholesalers in the state is no greater than the price the distiller/seller is charging in other states violates the Commerce Clause. Such a price affirmation law directly interferes with and burdens interstate commerce. Brown-Forman Distillers Corp. v. New York State Liquor Authority, 476 U.S. 573 (1986) C. Interstate Regulations 1. Liquor bound for out-of-state destinations is subject to the Commerce Clause D. Conflicts Between State Liquor Laws and Individual Rights 1. Individual rights guaranteed by the Bill of Rights and the Fourteenth Amendment outweigh state liquor control laws 2. ―Excessive drinkers‖ are entitled to procedural due process before the state can post their names in liquor stores. Wisconsin v. Constantineau, 400 U.S. 433 (1971) 3. The Equal Protection Clause prohibits different age minimums based on sex in the sale of liquor. A state cannot permit 18-year-old females to buy beer and prohibit 18-to-21-year-old males from doing so. Craig v. Boren, 429 U.S. 190 (1976) E. Federal Power 1. Twenty-First Amendment does not prohibit Congress from controlling economic transactions involving alcoholic beverages under the federal commerce power. Capital Cities Cable Inc. v. Crisp, 467 U.S. 691 2. The state can regulate the time, place, and sales of liquor—but not advertising of liquor on Cable TV 3. Federal anti-trust law can prohibit a practice of liquor dealers that has the affect of fixing minimum prices. 324 Liquor Corp. v. Duffy, 479 U.S. 335 (1987) 4. Congress may, without violating the Twenty-First Amendment, ―regulate‖ liquor distribution by imposing conditions on the grant of federal funds given under the spending power. South Dakota v. Dole, 483 U.S. 203 (1987) a. ****Note: Watch for a Supreme Court decision regarding Virginia‘s regulation of state-owned liquor stores…residents must purchase out-ofstate wine through the local liquor store…cannot deal directly with out-ofstate merchants—lower court struck the regulation down as unconstitutional in violation of the dormant commerce clause XIV. Supremacy Clause (Preemption) A. Article VI[2]: This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the Supreme law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding
B. History: 1. Gibbons v. Ogden: NY trying to grant a monopoly for transporting passengers across the river, found to conflict with a federal licensing scheme (federal law supreme) 2. Most governmental power is concurrent, belonging to both the states and the federal government 3. Supremacy Clause provides that federal law is supreme and will render conflicting state law void C. Actual Conflict Between State and Federal Laws 1. A valid act of Congress or federal regulation supersedes any state or local action that actually conflicts with the federal rule—whether by commanding conduct inconsistent with that required by the federal rule, or by forbidding conduct that the federal rule is designed to foster D. State Prevents Achievement of Federal Objective 1. The conflict need not relate to conduct; it is sufficient if the state or local law interferes with achievement of a federal objective. This is true even if the state or local law was enacted for some valid purpose and not merely to frustrate federal law E. Preemption 1. Types of Preemption a. Express: Congress enacted a statute that expressly indicates that they want to preempt/bar certain state laws or regulations in an area b. Implied: Congress did not explicitly say so, but court finds that because of the nature of the statutory scheme Congress has set up, that state laws or regulations should be preempted c. Field: Involves circumstances where courts have found that because of the nature and purpose of the regulatory scheme adopted by Congress, it evinces an intent of the federal government to ―occupy the field‖; states cannot regulate it all (Napier v. Atlantic Coast Line R. Co., 272 U.S. 605 (1926): Congress gave ICC power to prescribe rules for the safety of locomotives, and this barred all state regulation of locomotive safety— even with respect to subjects ICC had not issued any regulations for) 2. Conflict: Congress has not done anything to indicate that it wanted to preempt state regulation, but because of the nature of what the state has done, it is impossible to comply with both the federal and state regulations 3. A state or local law may fail under the Supremacy Clause, even if it does not conflict with federally regulated conduct or objectives, if it appears that Congress intended to ―occupy‖ the entire field, thus precluding any state or local regulation. a. In the absence of conflict or express exclusion of state regulation, the courts must determine if Congress intended to occupy exclusively a field of regulation; the courts consider
i. The need for uniformity ii. Legislative history iii. Pervasiveness of the federal regulatory scheme iv. Historical dominance of national or local interest in the area v. Potential for conflict from dual administration vi. Use of a federal regulatory agency to maintain continued regulatory control of an area 4. Courts are split on the preemption issue: struggle between federal and state power…which entity should have more power? (Question now: should federal government preempt state tort law on the issue of punitive damages, etc.?) 5. Pacific Gas & Electric v. California Energy Commission (1983): Voters could vote to bar the state from licensing any new nuclear power plants; but federal government in Atomic Energy Act completely ―occupied the field‖ of nuclear regulation (implied preemption—field preemption because CA said it was motivated by safety concerns); upheld here 6. Gade v. National Solid Wastes Management Association, 505 U.S. 88 (1992): A state which has not opted out of the Federal Occupational Safety Health Act may not regulate worker safety; [presumption against preemption] 7. Geier v. American Honda Motor Co., Inc. 120 S.Ct. 1913 (2000): Court is worried that gov. will find conflicts even when there is no impossibility for the state and federal regulations to coexist; when does presumption against preemption apply?; states are allowed to develop more stringent regulations than those provided by the federal agency with federal approval; Can federal silence constitute preemption? State could not impose tort liability on companies who legally did not install airbags in vehicles the year before the feds said airbags were mandatory 8. United States v. Locke, 120 S.Ct. 1135 (2000): state tried to regulate waterways, an area of historical significant federal presence (overruled) XV. SEPERATION OF POWERS: The Executive Power A. Article II, Section 1…The executive Power shall be vested in a President of the United States of America. 1. Various executive functions may be and are delegated within the ―executive branch‖ by the President or Congress B. Domestic Powers of President 1. Appointment of Officers a. Article II, Section 2, the President is empowered ―with the advice and consent of the Senate‖ to appoint ―all ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein
otherwise provided for…but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.‖ b. Appointment of ―Independent Counsel‖ (Special Prosecutor) i. Under the Ethics in Government Act of 1978, a special prosecutor (i.e. a prosecutor appointed by the federal court upon the attorney general‘s recommendation that alleged government employee misconduct be investigated) is an ―inferior officer,‖ since the prosecutor has limited duties (to investigate and prosecute a narrow range of persons and subjects). Therefore, the Appointment Clause of Article II, Section 2 allows Congress to vest the power to appoint a special prosecutor in the judiciary. ii. The Ethics in Government Act scheme does not give executive powers to the judiciary, since the Act gives the executive branch control of the decision to investigate and the power to dismiss the independent counsel for good cause. Morrison v. Olson, 487 U.S. 654 (1988) iii. ****The Ethics in Government Act was not renewed by Congress following the Starr investigation of President Clinton. It is feared that the Independent Counsel position is too powerful due to its non-removability by the executive branch. The Independent Counsel position is constitutional, but currently there is no statute to provide the means to select that person. c. Although Congress may appoint its own officers to carry on internal legislative tasks, it may not appoint members of a body with administrative or enforcement powers; Buckley v. Valeo, 424 U.S. 1 (1976) d. Commissioned military officers, who are officers of the Untied States appointed by the President and confirmed by the Senate, do not require a second appointment pursuant to the Appointments Clause to serve as military judges. Weiss v. United States (1994) 2. Removal of Officers - Constitution is silent concerning removal except for ensuring tenure of all Article III judges ―during good behavior‖ a. Removal by President: Under the Court‘s decisions, the President probably can remove high level, purely executive officers (e.g. Cabinet members) at will, without any interference from Congress. However, after Morrison v. Olson, it appears that Congress may provide statutory limitations (e.g. removal for good cause) on the President‘s power to remove all other executive appointees. b. Removal by Congress:
i. Limitation on Removal Power: Congress cannot give itself the power to remove an officer charged with the execution of law except through impeachment. ii. Limitation on Powers of Removable Officers: Congress cannot give a government employee who is subject to removal from office by Congress any powers that are truly executive in nature. c. Examples: i. Provisions of the Gramm-Rudman Act vesting in the Comptroller General authority to specify spending reductions binding on the President was found to violate the separation of powers. The Comptroller is an agent of Congress since by earlier legislation he is removable for designated causes (i.e. inefficiency, neglect of duty). Bowsher v. Synar (1986) ii. Myers v. United States, 272 U.S. 52 (1926): A federal statute by which certain postmasters of the United States could be removed by the President only ―by and with the advice and consent of the Senate‖ was found to be an unconstitutional attempt by Congress to involve itself in the removal of an executive official iii. Humphrey’s Executor v. United States, 295 U.S. 602 (1935): Court found that whether Congress can condition the President‘s power of removal by fixing a definite term and precluding a removal except for cause, will depend upon the character of the office. In this case, the Court found that the Constitution did not give the President ―illimitable power of removal‖ over officers of independent agencies, such as the FTC. 3. Pardons - The President is empowered by Article II, Section 2, ―to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.‖ a. This power applies before, during, or after trial, and extends to the offense of criminal contempt, but not to civil contempt, inasmuch as the latter involves the rights of third parties. b. The pardon power cannot be limited by Congress, and includes power to commute a sentence on any conditions the President chooses, as long as they are not independently unconstitutional. Schick v. Reed, 419 U.S. 256 (1974) 4. Legislative Delegation a. Much executive law-making results from congressional delegation of legislative power. Such delegation is constitutional provided Congress exercises the essentials of the legislative function by determining policy and formulating reasonable standards to guide the exercise of executive discretion.
b. Mistretta v. United States, 488 U.S. 361 (1989) i. Congressional legislation creating the United States Sentencing Commission in the Judicial Branch and delegating to it power to formulate sentencing guidelines binding on the courts does not violate separation of powers. The Act set forth the policies and principles governing Commission operations and provides specific directives to govern formulation of the Guidelines. There was, therefore, no violation of the nondelegation doctrine c. Delegation of some rulemaking authority to a Commission located in the Judicial Branch does not violate separation of powers if it does not intrude on the prerogatives of another Branch and is appropriated to the central mission of the Judiciary. Setting sentencing policy is a shared responsibility of the Branches and the Judiciary has always played a role. d. The fact that Article III judges serve on a Commission with nonadjudicatory functions does not violate separation of powers. Article III judges may perform extrajudicial duties if such service does not ―undermine the integrity of the Judicial Branch‖. Nor does the fact that the President appoints and removes members of the Commission for good cause pose a sufficient threat to judicial independence to violate separation of powers 5. Veto Power a. Congress May Override Veto by Two-Thirds Vote: Every act of Congress must be approved by the President before taking effect, unless passed over his disapproval by two-thirds vote of each house (Article I, Section 7) b. President Has 10 Days to Veto i. The President has 10 days (excepting Sundays) to exercise his veto power. If he fails to act within that time: ii. The bill becomes a law if Congress is still in session; or iii. The bill is automatically vetoed if Congress is not in session (pocket veto), Pocket Veto Case, 279 U.S. 655 (1929) iv. Brief recesses during an annual session create no pocket veto opportunity, Wright v. United States, 302 U.S. 583 (1938) c. Legislative Veto Unconstitutional: Immigration and Naturalization Services v. Chadha, 462 U.S. 919 (1983) - The legislative veto evolved as an important mechanism by which Congress has attempted to secure the accountability of executive and independent agencies to whom it must delegate portions of its authority in order to deal with the vast scope of federal programs. In the last 50 years this type of veto mechanism has been placed by Congress in nearly 200 separate laws.
i. This Case: In the Immigration and Naturalization Act, Congress delegated authority to the Attorney General to suspend deportation of aliens. However, Congress reserved control over executive action by allowing either House to review and veto the suspension order. ii. Congress allowed suspension of deportation proceedings to allow flexibility in cases where deportation would result in ―extreme hardship‖ iii. Holding (Burger): It is unconstitutional to authorize by statute a one-House ―veto‖ if such a ―veto‖ constitutes action that is essentially legislative in purpose and effect and which is thus of the kind generally subject to the bicameralism and presentment requirements of Article I. iv. Presentment Clause (Article I, Section 7(3)): Every Order, Resolution, or vote, to which the concurrence of the Senate and House of Representatives may be necessary…shall be presented to the President of the United States… 6. Line Item Veto Unconstitutional - The veto power allows the President only to approve or reject a bill in to; he cannot cancel part (through a line item veto) and approve other parts. a. Rationale: The President‘s veto power does not authorize him to amend or repeal laws passed by the Congress. Clinton v. City of New York, 524 U.S. 417 (1998) b. The silence of the Constitution on the President‘s power to amend or repeal portions of a statute is ―equivalent to an express prohibition‖, Clinton 7. Alternatives to the Veto a. Congressional Review Act: all rules that agencies make must be reported to Congress; there is a special provision for veto of an agency rule whereby the action is then presented to the President…only used once to strike down the OSHA ―ergonomics rule‖ b. Office of Management and Budget: President has this office review agency rules; if President agrees to agency rules there is no sense in Congress legislating against it only to be vetoed 8. Power as Chief Executive a. The President has not inherent domestic law-making powers, at least in b. the absence of extreme emergency. In emergencies, his power as Chief Executive under Article II, Section 1, and his power to ―take care that the laws by faithfully executed‖ (Article II, Section 3), do appear to create some power to act subject to Congressional authority
9. Guide for determining the validity of presidential actions regarding internal affairs (Youngstown Sheet & Tube v. Sawyer, 343 U.S. 579 (1952), Justice Jackson concurring opinion): a. Where the President acts with the express or implied authority of Congress, his authority is at its maximum and his actions are likely valid; b. Where the Presidents acts where Congress is silent, his action will be upheld as long as the act does not take over the powers of another branch of the government or prevent another branch from carrying out its tasks [See United States v. Nixon, 418 U.S. 683 (1974)—President‘s invocation of executive privilege was invalidated because it kept federal courts from having evidence they needed to conduct a fair criminal trial] c. Where the President acts against express will of Congress, he has little authority and his action likely is invalid [The seizure of the steel mills by President Truman to avert a crippling strike during the Korean war was held unconstitutional since Congress had previously legislated regarding the scope of executive power to curtail strikes, Youngstown] C.Executive Orders 1. History: a. Presidents did not issue many executive orders until Teddy Roosevelt, for example creating federal wildlife refuges b. Franklin Roosevelt also issued many executive orders as a result of the Great Depression to manage economy c. President George W. Bush has issued 56 executive orders as of March 2002 2. Recent Rulings a. Under the National Labor Relations Act, companies can replace striking workers. President Clinton issued executive order to all federal agencies not to hire federal contractors who replace strikers with strike breakers. Court struck this order down because the NLRA allowed companies to do this, President cannot change the law. b. President Bush issued executive order saying project labor agreements cannot be required for any federally funded projects, and any project requiring this agreement would not receive federal funds. Court struck it down on the grounds that he was trying to change the law. D. Executive Impoundment 1. The President impounds when he withholds or delays the expenditure of congressionally appropriated funds. This may defeat a congressional program or policy. 2. Court has not ruled on the Constitutionality of impoundment E. Power Over External Affairs 1. War (Shared Power) a. Congress has the power to declare war, to create and regulate the armed forces, and to provide for the general defense. From these express powers
are implied broad powers to prepare for war, to regulate during wartime, and to remedy wartime disruptions. b. Although lacking the power to declare or initiate ―formal‖ war, the President has extensive military powers. c. War Powers Resolution i. Sixty days after the President is required to report the use of the armed forces, such use shall terminate unless Congress affirmatively acts. However, President can then assert he has the power to protect the country ii. Congress may limit the President under its power to enact a military appropriation every two years iii. Whether the War Powers Resolution is an unconstitutional delegation of Congress‘ power to declare war or excessively intrudes on the President‘s power as Commander in Chief, his duty to execute the law and his status as Chief Executive, has not been judicially determined. d. The President may act militarily under his power as commander in chief of the armed forces and militia, under Article II, Section 2, in actual hostilities against the United States without a Congressional declaration of war. e. In The Prize Cases (1863) President Lincoln‘s blockade of southern ports upheld because he has the power to suppress insurrection against the government of a state or the United States f. In Mora v. McNamara, 389 U.S. 934, cert was denied concerning the question of whether or not the Vietnam War was ―illegal‖; Court did not want to get involved i. Note: An executive claim of national security does not justify an injunction against newspaper publication of classified material, at least in the absence of Congressional authorization or direct, immediate, and irreparable damage to the nation. New York Times Co. v. United States (1971) ii. This power includes the establishment of military governments in occupied territories, including military tribunals F. Foreign Relations 1. The President‘s power to represent and act for the United States in day-to-day foreign relations is paramount, United States v. Curtiss-Wright Export Corp. 299 U.S. 304 (1936) 2. The President has the power to appoint and receive ambassadors and make treaties (with the advice and consent of Senate, Article II, Section 3), and to enter into executive agreements.
G. Treaty Power - The treaty power is granted to the President ―by and with the advice and consent of the Senate, provided two-thirds of the Senators present concur.‖ (Article II, Section 2, Clause 2) 1. Supreme Law a. All treaties ―which shall be made under the authority of the United States‖ are the ―supreme law of the land‖ (Article VI, Paragraph 2) b. Any state action or law in conflict with a United States treaty is invalid, regardless of whether it is a state law or a state constitutional provision c. Self-Executing: No treaty has this supremacy status unless it is expressly or impliedly self-executing, i.e. without necessity for congressional implementation d. Non Self-Executing Treaties: Some treaties require the signatory nations to pass legislation to effectuate their ends. This serves as an independent source of Congressional power. e. Conflict with Congressional Acts: Assuming that an act of Congress is within its powers, a conflict between such act and a valid treaty is resolved by order of adoption—the last in time prevails The Chinese Exclusion Case (1889) f. Conflict with Constitution: Treaties are not co-equal with the Constitution. For example, no treaty (or executive agreement) could confer on Congress authority to act in a manner inconsistent with any specific provision of the Constitution, Reid v. Covert, 354 U.S. 1 (1957) 2. Other Limitations a. The Court has never held a treaty unconstitutional b. It is conceivable that the treaty power extends only to subjects plausibly bearing on relations with other countries H. Executive Agreements - President‘s power to enter into agreements with the head of foreign countries is not expressly provided for in the Constitution; however the power has become institutionalized. United States v. Belmont (1937) 1. Executive agreements can probably be on any subject as long as they do not 2. violate the Constitution 3. Executive agreements do not require the consent of the Senate 4. Conflicts a. Conflicting federal statutes and treaties will prevail over an executive agreement, regardless of which was adopted first b. Executive agreements prevail over conflicting state laws 5. Example: The President, with implicit approval of Congress, has power to settle claims of United States citizens against foreign governments through an executive agreement, Dames & Moore v. Regan, 453 U.S. 654 (1981)). When the President acts on a vital issue of foreign affairs with congressional approval and authorization, his constitutional power is maximized.
I. Executive Privileges & Immunities 1. Privileges a. Executive privilege is not a Constitutional power, but an inherent privilege necessary to protect the confidentiality of presidential communications b. Presidential documents and conversations are presumptively privileged, but the privilege must yield to the need for such materials as evidence in a criminal case to which they are relevant and otherwise admissible. This determination must be made by the trial judge after hearing the evidence. i. National Security Secrets: military, diplomatic, or sensitive national security secrets are given great deference by the courts as privileged ii. Criminal Proceedings: In criminal proceedings, presidential communiqués will be available to the prosecution, where a need for such information is demonstrated, United States v. Nixon, 418 U.S. 683 (1974) c. Nixon‘s argument: Presidential talks with aides should be under absolute privilege because the judicial branch should not be able to interfere with the executive branch and the confidential conversations ensure candor d. Court‘s answer: President is not above the law, there is no absolute immunity in situations that infringe on the role of the courts in gathering criminal evidence i. Screening Papers and Recordings of Former President: A federal statute requiring the Administrator of General Services to screen the presidential papers is valid, notwithstanding the privilege, Nixon v. Administrator of General Services, 433 U.S. 425 (1977) ii. Screening by Judge in Chambers: The court will determine in an in-camera inspection which communications are protected and which are subject to disclosure iii. ****Note: The Bush administration thinks the Clinton administration was too liberal in turning over documents to Congress. They are now challenging Congress‘ attempts to get the names of parties present at the energy meetings with VP Cheney as privileged 2. Immunities a. Absolute Immunity for President i. The President has absolute immunity from civil damages based on any action that the President took within his official responsibilities (even if the action was only arguably within the ―outer perimeter‖ of presidential responsibility) Nixon v. Fitzgerald, 457 U.S. 731 (1982)
ii. The President has no immunity from private suits in federal courts based on conduct that allegedly occurred before taking office. Clinton v. Jones, 520 U.S. 681 (1997) Rationale: The immunity is intended only to enable the President to perform his designated functions without fear of personal liability b. Immunity May Extend to Presidential Aides: Presidential aides share in this immunity only if they are exercising discretionary authority for the President in ―sensitive‖ areas of national concern, such as foreign affairs. i. Other aides are entitled only to qualified immunity (good faith defense), they are subject to liability only for violation of clearly established constitutional or statutory rights which would have been known by a reasonable person. Harlow v. Fitzgerald, 457 U.S. 800 (1982) ii. The Attorney General enjoys only qualified immunity even when performing national security functions. Mitchell v. Forsyth, (1985) J. Impeachment 1. The President, Vice President, and all civil officers of the United States are subject to impeachment (Article II, Section 4) 2. The grounds for impeachment are treason, bribery, high crimes, and misdemeanors. Note: Whether high crimes and misdemeanors is limited to criminal offenses or includes some acts of political maladministration or failure to discharge the constitutional duties of the office has not been judicially determined. a. A majority vote in the House is necessary to invoke the charges of impeachment (Article I, Section 2) b. A two-thirds vote in the Senate is necessary to convict. (Article I, Section 3). The Chief Justice presides when the President is tried XVI. The Contract Clause A. Article. I 10: ― no state shall pass any law impairing the obligation of contract‖ 1. Although this does not apply to the federal government (does not mention the feds.) a. The 5th Amendment Due Process clause has been used to ensure procedural due process which would bar unreasonable impairment of substantive vested legal right, but the Court has interpreted this as ―less searching‖ than the state limits under the Contract Clause 2. Application a. ―Contract‖ interpreted broadly, courts could invalidate police power measures b. Today, not a significant limitation on power c. Judicial Construction
d. Applies only against legislative action impairing substantive legal rights e. Applies to both private and public contracts B. Private Contracts 1. Test: a. Does the law substantially impair a pre-existing contractual relationship? b. (Guidelines) i. If it is not designed to deal with a broad generalized economic or social problem ii. If it is a permanent rather than a temporary impairment iii. If the area regulated has never before been subject to regulation by the state iv. If the impairment in question has an extremely narrow focus 2. If this is met, then the government must demonstrate that the law imposes reasonable conditions appropriate to achieving a significant and legitimate public purpose a. In most cases the courts will revert to the legislative judgment. (presumption of validity) 3. Homebuilding and Loan Company v. Blasdell - Depression era law, that said that people did not have to pay their mortgages on time, because people were poor and couldn‘t pay mortgages. - Did this impaired the obligation of contracts? a. The court said no, in light of the emergency was narrowly tailored to the emergency, it was temporary, it imposes reasonable conductions, and the people would still have to pay it effected the value of the contract, even though it would impair the value of the contract b. Elements of when the police power can trump contract clause (applying the above test) i. Emergency need ii. Law enacted to protect a basic societal interest not a favored group iii. The relief was appropriately tailored to the emergency that it was designed to meet iv. The imposed conditions were reasonable v. The legislation was limited to the duration of the emergency 4. Allied Structural Steel v. Spannaus - Allied Structural Steel had pensions with their employees but if fired, they didn‘t have to pay pensions. Minn. made law that said companies had to pay pensions to the state if they closed offices. This legislation was limited to the duration of the emergency a. The court held that that contract clause couldn‘t trump state police power. C. Public Contracts
1. The state may reserve the power to subsequently revise its licenses and other contracts 2. A state may not abandon its sovereign power to legislate for the public health, safety, and well being by a contract and it is does so then any such contract is invalid 3. And while the state may contract away it fundamental powers, it may impair such contracts it this is reasonable and necessary to serve important state interest. 4. US Trust Co. of NW v. NJ - NY and NJ created a compact to create the port authority in order to build tunnels, Once the tunnels were built, people paid tolls this was the security for the bond, if the barrower goes bankrupt, the people were not paid back, the port authority used the tolls to pay back the borrowers, but, later the port authority used the tolls for other purposes and weren‘t paying the bondholders. a. Unconstitutional: the change in contract was not necessary to encourage people to use public transportation AND not reasonable in light of any changed circumstances, protected STATE interest, not PUBLIC interest. Here the court said that it did impair the contract, and can have retroactive laws BUT can‘t do so in a unconstitutional manner D. Energy Reserves Group, Inc. v. Kansas Power & Light Co (1983) - Court set out a new
standard of review re: Contracts Clause challenges that applies to both public & private agreements- more deferential to state legislative judgment than seen in previous casesMakes clear that don‘t have to have emergency like was required in Blaisdell & state just has to have a legit. Purpose to get involved in regulating the area 1. Three Part Testa. Threshold inquiry- whether state law has been a substantial impairment to contractual relationship b. Legitimate Public Purpose- if answer to #1 = yes, than state must show there is a significant & legitimate public purpose for regulation c. “Reasonable & Appropreate”- If state can show legit. Public purpose, court must determine whether the adjustment of rights to contracting parties by statute is based on reasonable conditions & is appropriate to public purpose given for reg i. Note- applies to both public & private situations BUT Court will apply test stricter when state is trying to make its own contractual obligations less.
XVII. The Civil War Amendments - Passed during the reconstruction ear after the Civil War Amendment 13 - 1865, abolishes slavery and involuntary servitude ~ Applies even to private action ~ Been narrowly construed to only apply to formal bondage and forced labor Amendment 14: 1868, establishes people born in this country are citizens of US and the state of residence ~ Rejects that people of other races are not citizens (Dred Scott decision)
~ § 2 provides: No state shall deny the privileges and immunities of citizens of the US ~ The states shall not deprive any person of life, liberty, or property without due process of law or equal protection Amendment 15: - Prohibits denial of franchise because of race or previous condition of servitude. Applies to both fed. and state
A. Slaughterhouse cases (Supreme Court held that Privileges and Immunities Clause of the 14th Amendment did NOT apply to the states) - State wanted to limit the number of butchers, passed law limiting the industry. The suit was brought by butchers who were prohibited from doing anything but work for the monopoly and had to pay fees 1. The Court held that the Privileges and Immunities Clause of the 14th amendment did not make the Bill or Rights applicable to the states: 2. The 13th amendment applies only to bondage and formal servitude it has been narrowly construed 3. The 14th amendment: all persons born or naturalized are citizens of the US and the state of their residenc XVIII. The Incorporation Doctrine - Deals with whether the due process clause makes all of the Bill of rights applicable to the states: A. History 1. Barron v. Baltimore - the takings clause does not apply to the states 2. The Slaughterhouse cases - the court said that the 14th amendment only protects Privileges and Immunities of national citizenship, the states are free to decide which rights apply to state citizenship B. Today, the Court has declared that the 14th amendment does more than just apply the first 8 amendments, they are not limited and can ad other things for fairness. C. 1st Amendment – applies to the States 1. Makes it unlawful for the states to abridge by statute: a. The freedom of speech which the first Amendment safeguards b. Freedom of the press, religion c. Peaceful assembly d. Counsel for accused D. 2nd Amendment - ? 1. right to bear arms 2. Traditional view: the right of the states to have militia E. 3rd amendment – not yet decided 1. Soldiers can‘t be quartered in your house unless by law - It is moot, b/c we are not in practice of quartering soldiers in peoples house F. 4th amendment – applies to the States
1. Unreasonable search procedure: should it apply to the states 2. The issue usually occurs where the state illegally searches your house and finds criminal evidence, if you don‘t exclude the evidence, it will create an incentive to illegally search people‘s houses G. 5th Amendment – applies to the States in part 1. Freedom from self incrimination 2. Right to be indicted by grant jury: historically this was a check against the government, in England - The courts are mindful of the burdens on the states to have to empanel a grand jury (not applied to the States) 3. Takings clause: this is incorporated by the 14th amendment, H. 6th amendment – only partially applies to the State 1. Right to Speedy trial, Public trial, Jury trial 2. Don‘t need 12 people 3. Don‘t have the requirement of a grand jury indictment 4. Unanimous jury also not needed I. 7th amendment – does NOT apply to the States 1. civil representation does not require states to have representation to states. 2. Right to trail by jury trail in civil cases is not applicable to states. 3. The court was unlikely to apply to states because of the $20, would unfairly burden the states. J. 8th Amendment - applies to the States 1. The courts don‘t interpret this that way and bail can be denied, the excessive fines can be applied to the states, 2. In criminal cases, the cruel and unusual punishment, can be applied to the states XIX. Substantive Due Process A. Taken from the 14th Amendment) ― Nor shall any State deprive any person of life, liberty, or property without due process of law‖ B. History 1. There are certain activities that are not enumerated in Constitution, but are considered to be so fundamentally important that the Supreme Court has extended the Due Process Clause to invalidate state regulations that are trying to restrict them. 2. When 14th Amendment was first enacted—not clear whether it limited states power to regulate substantive powers or just procedural powers. As a result: 3. Substantive Due Process has had a varied history a. Rise and active application of substantive due process from 19th century to 1930‘s b. Abandonment of application of substantive due process re: economic regulation in late 1903‘s c. Rebirth of Substantive Due Process re: non-economic interests/ ―right to privacy‖
C. Modern Approach 1. Court has withdrawn almost completely from reviewing state legislature regarding economic regulation for substantive due process violations 2. Minimum Rationality Standard- what applied- Assuming that objective being pursued falls within state‘ s police power (which court has now defined to cover health, safety, or general welfare)—than all that is needed is min. rational relation between means chosen & ends being pursued— 3. There is a presumption of legislative validity unless legislature acts in arbitrary and irrational way 4. It is only when regulation impinges on fundamental rights that Court applies strict standard and may knock down for violating due process (THIS IDEA PERTAINS TO RIGHTS OF PRIVACY & such that we deal with last in semester) D. Beginning of Economic Due Process 1. Munn v. Illinois (1877)- State of Illinois set limit on prices for storage of grain- Said that despite what price would result from free market operations, state was going to have a set limit. Grain operators argued that statute violated due process b/c it took their property w/o due process of law. Court said the storage of grain was affected with a public purpose, thus deferring to legislature‘s judgment on issue that Court said was ―public‖ rather than ―private‖. Court also said that while due process does prevent legislature from taking property, it does not prevent legislature from requiring that the price charged by reasonable a. the 14th Amendment applies to corporations 2. Mugler v. Kansas (1897) - Kansas state law banning alcohol beverages. State law is upheld BUT Court indicated that law would only be valid under state‘s police powers if it truly related to protection of health, safety, or morals AND only if it didn‘t violate ―rights secured by fundamental law‖ 3. Allgeyer v. Louisiana (1897)- LA. had statute that prohibited anyone from buying insurance on LA property from any company outside of LA that was not licensed there. LA. actually brought charges against person for using mail to buy insurance from company in N.Y. State statute interfered with the right to contract and thus could be struck down on due process grounds if the state lacked a legitimate reason for it re: public health, safety, etc. 1. The guarantee of ―liberty‖ in 14th Amendment protects both physical liberty and intangibles such as, right to live and work were want to, earn a living by a lawful calling, and to enter into any contracts to accomplish these goals
4. Lochner v. New York (1905)- Court here refused to defer to legislative findings of fact & rather insisted on reaching its own conclusions on facts regarding the
healthy & safety of bakers. On the request of Union that the long hours worked by bakers were unsafe, NY enacted legislation to protect the health of the bakers that set max. hours in day at 10. Lochner was turned in for violating this statute and thus challenged in on the basis that it interfered with personal rights to contract. State argued that law was (1) a valid labor law and (2) it protected the health & safety of workers a. Test suggested by Majorityi. There must be a close fit between the statute & its objectives— had to be a ―real & substantial‖ relationship between statute & the goals said was achieving (This was missing here b/c bakers could have been protected by less restrictive means) ii. Close scrutiny is paid re: regulation on ―fundamental interest (i.e. freedom to contract) b. Only certain legislative objectives are acceptable i. Regulation of health & safety is fine ii. Readjustment of economic power or economic resources is not okay (Here- NY law was merely a ―labor law‖ that readjusted bargaining power so served prohibited means) c. Legitimacy of Legislature‘s motives is suspect- said that law didn‘t appear to really have been enacted to protect anyone‘s health or safety- but rather to regulate labor conditions. J. Peckham said that subject matter & nature of legislation do not coincide w/ purpose of law Court said would only look at legislatures actual motive & not hypothetical motive to evaluate statute re: substantive due process violation. 5. Muller v. Oregon (1908) - Court here doesn‘t apply bright line rule but rather looks at case- by –case. Although Supreme Court‘s trend during this time was to strike down state regulations (especially economic), in this case Court upheld law barring women from working more than 10 hours in a day- The Court claimed that Women were ―weaker class‖ and therefore needed special protection a. Court seemed to be ―swayed‘ by brief that (1) there was a close fit between statute & objective, and (2) that legislation dealt with acceptable objective (health & safety of women)
E. Modern Approach to Substantive Due Process and Economic Regulation General Note- see Courts trend of striking down regulations that interfere w/ personal rights start to faded after New Deal Legislation is passed – New Deal convinced people that needed aggressive legislative programs to make sure economy survived 1. Nebbia v. New York (1934) - NY had statute that fixed the max & min. prices for sale of milk. State said that had determined after hearings that economic conditions & destructive trade practices jeopardized an adequate milk supply at
reasonable prices to consumers & producers… Said price controls would help alleviate this. Nebia is a grocery store owner who was convicted on selling milk below fixed prices. Brought suit alleging that law deprived him of due process a. Court says there is no closed class of business that are affected by public interest. As long as laws aren‘t arbitrary in their effect than state can regulate any area of business b. 180 degree shift in Court‘s thinking- now as long as valid public interest is behind the law than the state can regulate the business 2. U.S. v. Carolene Products (1938)- Dealing w/ ―Filled Milk Act‖ of CongressAct prohibits the shipment in interstate commerce of skimmed milk products that have any fat or oil in them besides milk fat. Argument was raised by making of Milnut that statute goes beyond Congressional power to regulate interstate commerce &/or it infringes on 5th Amendment . Basis for statute is protecting public from consumer fraud b/c now will know that milk are buying is real milk and nothing else. a. Court upheld Act- on basis that Congress had acted on findings of fact showing that danger to public health re: filled milk- But also said even in the absence of fact supporting legislative judgment, the existence of facts supporting legislative judgment is to be presumed – Regulatory legislation is not unconstitutional unless it is of such character that suggests that it is not based on some rational basis w/in knowledge & experience of legislators b.“Minimum rationality” test proposed- Along with presumption of constitutionality- Encompasses idea that Regulatory legislation is not unconstitutional unless it is of such character that suggests that it is not based on some rational basis w/in knowledge & experience of legislators c. Importance: Court seems to abandon even the ―real & substantial‘ requirement in this case- Seems to indicate that Court is not going to look that stringently at the reason given for legislation as long as there is a real reason for it 4. Ferguson v. Skrupa (1963)- Law that only people who can do debt consolidation are lawyers- Attacked on basis that irrational-Kansas says it is trying to protect morality & trying to protect a lower class of people who are vulnerable. Says b/c lawyers have code of ethics that must abide by than afford lower class people protection. Plaintiff argues that has been doing debt consolidation for years and there is nothing irrational about it- Seems like just way to get more work for lawyers. Court upholds a. If legislation can articulate a purpose than Court is not going to 2nd guess XX. The Takings Clause A. Taking Property
1. Federal and state governments have power to take private property for public use (eminent domain) 2. An exercise of the eminent domain satisfies the ―public use‖ requirement if it is rationally related to a conceivable public purpose. Hawaii Housing Authority v. Midkiff (1983) 3. Example: Interest income generated by funds held in an Interest on Lawyers Trust Account (IOLTA) program used by Texas to provide legal services to the poor, is the ―private property‖ of the owner of the principal. A well-established common law rule states that ―interest follows principal.‖ Therefore, the interest is the property of the owner of the principal even though its economic value may be minimal. In remanding, the Court expressed no view on whether public use of the interest income is a ―taking‖ requiring ―just compensation.‖ Phillips v. Washington Legal Foundation (1998) 4. "Private property" is generally defined by looking to rules and understandings stemming from an independent source such as state law. B. Constitutional Text 1. The Fifth Amendment provides that private property is not to be taken by the federal government without just compensation. The Fourteenth Amendment Due Process Clause has been held to impose a similar obligation on the states. 2. A principal purpose of the Takings Clause is ―to bar government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.‖ Armstrong v. United States (1960) a. What Is a "Taking?" C. Regulatory Takings 1. The concept of taking goes beyond the formal condemnation of property to invalidate any regulation which goes too far. Pennsylvania Coal Co. v. Mahon (1922) a. The mere fact that that property values are diminished by government regulation does not create a compensable taking of property b. If government regulation reasonably advances legitimate public interests and merely diminishes the value of the property, no taking has occurred. Factors to be considered include: i. Economic impact ii. Investment backed expectations iii. Character of the government action *Penn Central 438 U.S. 104 (1978) – Balancing Test
2. Agins v. City of Tiburon, (1980) - A municipal zoning ordinance, enacted after plaintiff‘s purchase of land, which limits the uses of the land is not a ―taking‖ without just compensation in violation of the Fifth and Fourteenth Amendments. The ordinance, as interpreted, did not bar all residential uses. The ordinance substantially advanced the public‘s interest in avoiding the ill effects of urbanization by controlling land development. Plaintiffs share in the benefits and burdens of the controls. The ordinance neither prevents economically viable uses of the land nor extinguishes fundamental attributes of ownership. There has been no denial of ―justice and fairness‖ 3. Eastern Enterprises v. Apfel (1998) - The Court held 5-4 that the federal Coal Act of 1992 establishing a mechanism for funding health care benefits for retired mine workers and their dependents is unconstitutional as applied. Eastern Enterprises was obligated to pay premiums for over 1000 former employees even though it had left the coal industry in 1965. Four justices concluded that the Act violated the Takings Clause, even though no identified property was involved. The economic regulation imposes a severe retroactive liability on a limited class of parties that could not have anticipated the liability and the extent of the liability is substantially disproportionate to the parties‘ experience. The economic burden is substantial, requiring Eastern to pay $50-100 million. It substantially interferes with Eastern‘s investment-backed expectations, operating retroactively based on the company‘s activities 30 to 50 years ago. The Government‘s solution to the problem of funding miners‘ retirement benefits is unusual and unrelated to any employer commitments. D. Categorical (Per Se) Takings 1. If the government physically invades the property on a permanent basis, there is a taking. No specific inquiry into the public interest is required. 2. A “confiscatory taking”, where the regulation “denies all economically beneficial or productive use of land”, is a compensable taking. Just compensation must be paid unless the state can show that the state law of property or nuisance had previously limited the ownership of the property. Lucas v. South Carolina Coastal Council (1992) 3. Loretto v. Teleprompter Manhatten CATV Corp. (1982) - A New York statute which requires owners of rental housing units to permit the installation of cable TV equipment on their property constitutes a state ―taking‖ for which the owner is entitled to just compensation under the Fifth Amendment. Since the cable equipment is affixed to the building, there is a physical occupation which deprives the owner of his rights to possession, use, and disposition of his property. No balancing of interests is required. Requiring the property owner to install equipment such as smoke alarms, which would be owned by the property owner is distinguished. Permanent Physical Occupation is Taking!
4. Lucas v. South Carolina Coastal Council (1992) - State regulations banning housing construction on a coastal island to preserve the state‘s beaches deprived a private property owner of all economically beneficial uses of property and thus could result in a confiscatory taking, requiring compensation regardless of the public interest. Applies only to real property, not personal property ` 5. Palazzolo v. Rhode Island (2001) - Property owner acquired wetlands property after dissolution of his corporation and after Rhode Island Coastal Resources Management Council began to greatly limit development of wetlands property to protect the state‘s coastal properties. Developer sought a permit to fill the wetlands area and develop it into a private beach club. His request was repeatedly denied for failure of the proposal to meet the exception for development—a compelling public purpose. Owner filed suit for denial of all economically viable use of his land (under Lucas), damages $3.1 million. a. Problems: i. Owner could build a house on portion of land for $200,000 (not denied all economic value) ii. Person purchasing land after regulation imposed has no reasonable investment backed expectation under Penn Central b. Holding: i. A takings claim challenging application of land-use regulations is not ripe unless the agency charged with implementing the regulations has reached a final decision regarding their application to the property at issue. ii. Owner‘s acquisition of title after the regulation‘s effective date does not bar his takings claim. Future generations, too, have a right to challenge unreasonable limitations on the use and value of land. c. O‘Connor concurring: Use Penn Central analysis, determine at the time of the regulation what the reasonable investment backed expectation was to determine if taking occurs (should not allow a windfall) d. Scalia concurring: So what if there is a windfall? Real estate developers should get it before the state; if developer is smart and buys land under regulation inexpensively and thereafter gets regulation ruled unconstitutional, later development to the fullest potential is fine
E. Conditional Takings (Exactions) 1. In determining whether government imposition of a condition (exaction) as a price of land development is a taking, two questions are asked: a. Whether there is an "essential nexus" between the legitimate state interest and the condition (exaction), and [Nollan]
b. Whether the government has made sufficient individualized findings establishing that the exaction has a rough proportionality to the impact of the proposed development. [Dolan] 2. Dolan v. City of Tigard (1994) - Government imposition of conditions on a person seeking to use or develop property are limited by the Takings Clause. Under the unconstitutional conditions doctrine, the ―government may not require a person to give up a constitutional right—here the right to receive just compensation when property is taken for public use—in exchange for a discretionary benefit conferred by the government where the property sought has little or no relationship to the benefit. a. A taking of property occurs where a city conditions approval of a business owner‘s application to expand her store and pave her parking lot upon dedication of land for a public greenway along a creek and a pedestrian bicycle pathway. b. There is the ―essential nexus‖ between dedication of land for a greenway which will minimize flooding and the pathway dedication to reduce traffic congestion (Nollan test) c. However, the city‘s findings did not establish the requisite reasonable relationship (no rough proportionality); owner has right to determine who comes on her property and when 3. Rough Proportionality Test a. How great a burden is the exaction on the landowner in proportion to impact of owner‘s development? b. No precise mathematical calculation is required c. There must be an individualized determination d. Burden of producing evidence of a proportional relationship on the city
4. Nollan v. California Coastal Commission (1987) - A state requirement that an ocean-front property owner grant a public easement across his property for beach users as a condition of securing a permit to rebuild a residence on the property is a compensable taking. Assuming that the state might have denied the permit if it reasonably determined that the proposed development would impair legitimate state interests, conditioning of the permit would be allowed only if it served the same governmental purpose as the ban. If it did not serve that objective, it would be a reasonable regulation of land use rather than a compensable taking. 5. City of Monterey v. Del Monte Dunes (1999) The Court did not extend the Dolan rough proportionality test beyond exactions—land-use decisions conditioning approval of development on the dedication of property to public use—in a case where the city‘s repeated denials of permission to develop an ocean-front parcel was challenged as a regulatory taking. Rough proportionality test does not apply to a landowner‘s challenge to denial of development.
F. Remedies for Takings 1. Temporary Takings a. First English Evangelical Lutheran Church of Glendale v. County of Los Angeles (1987) i. Once a court determines that a taking has occurred, the government can amend the regulation, withdrawal the invalidated regulation, or exercise its power of eminent domain ii. Where the government‘s activities have already worked a taking of all use of property, no subsequent action by the government can relieve it of the duty to provide compensation for the period during which the taking was effective b. Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency (2002) A temporary moratorium was placed on development in the Lake Tahoe area to allow for review of new development regulations. Developers say it is a temporary taking for which they deserve compensation. Government says this taking is different because developers knew at the outset that it would only be temporary The temporary moratorium was not a per se regulatory taking. While a permanent deprivation of all use of property is a taking under Lucas, a temporary restriction causing a diminution in value is not because the property will recover value when the prohibition is lifted. Court concluded that fairness and justice would not be better served by adopting a categorical rule that any deprivation of all economic use, no matter how brief, constitutes a compensable temporary taking. Moratoria are an essential tool of successful land use regulation. While a moratorium lasting more than one year should be viewed with special skepticism, the restriction‘s duration is but one factor for the Court to consider in appraising regulatory takings claims. 2. Ground Rules for Just Compensation a. United States v. Miller (1943) i. Owner‘s loss and not the taker‘s gain is the measure of compensation ii. Fair market value is ―what a willing buyer would pay in cash to a willing seller‖ * Where fair market value can be determined it is the normal measure of recovery, United States ex rel. T.V.A. v. XX. Protection of Personal Liberties – Revival of rights that are not specifically mentioned in the Constitution A. Basis For Protection 1. The Fourth Amendment – protects persons, places, and possessions against indiscriminate searches and seizures
2. The Fifth Amendment – protects against self incrimination 3. What about Privacy? – developed from the penumbra of the articles 4. Meyer v. Nebraska – the court said that the liberty protected by due process denoted not merely freedom from bodily restraint, but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and , generally, to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men. * Pierce v. Society of Sisters – upheld a trial court injunction against the enforcement of an Oregon Statute requiring parents to send their children to a public school. Parents have an interests in deciding their children‘s education. 5. Skinner v. Oklahoma – the court held invalid under equal protection a statute providing for compulsory sterilization of criminals convicted two or more times of moral turpitude – The way in which the state defines crimes are discriminatory because it is defined as ―moral turpitude‖ a. ―We are dealing here with legislation which involves one of the basic civil rights of man. Marriage and procreation are fundamental to the very existence and survival of the race‖ 6. Griswald v. Connecticut – the Court invalidated a state law that made it a crime for any person to use contraceptives, including married persons. (moral purity campaign) This infringed on the constitutionally protected right to marital privacy ~ the constitution protects individual decisions in matters of childbearing from unjustified intrusion by the state. Struck down on Privacy Grounds. The court does not want to revive the issue of Due Process. a. Williamson v. Lee Optical Test (refer to Carter‘s Section) – the use of contraceptives is immoral because the purpose of sex is to procreate b. Penumbra – ―The 1st, 3rd, 4th, and 5th amendments have penumbras formed by emancipations from those guarantees that help give them life and substance‖ The 9th amendment provides other rights and this is where they get these rights from. i. courts previous to these were reluctant to use the 9th amendment because they did not want to make up rights
Rights not specifically enumerated are viewed as fundamental rights entitled to constitutional protection
c. Victorian Compromise – moral legislation was not usually enforced - - - society wanted to have this public face of virtue, but realized that these things would take place and it was ridiculous for society to actually enforce this. This is what happened in Griswald, the statute was never enforced. d. How far does this right of privacy go? What about unmarried people? i. Bowers (next semester) – rejects the notion that the right to privacy extend to Homosexuals ii. many states make various sexual acts illegal ~ MD – adultery and oral sex are illegal iii. later extended to unmarried couples as well B. Family and Marital Relationships 1. Moore v. City of East Cleveland, Ohio – ―The Court has long recognized that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment‖ ~ The court here stuck down a housing ordinance making it illegal for a family member, not son . . . to live with the grandmother. (related persons may live together) a. the court recognizes the revival of Lochner type Due Process claims, they explicitly say they do this because it deals with issues involving a family 2. Zablocki v. Redhail - The Court held invalid a law forbidding marriage by person not complying with the court order to support minor children. Laws that interfere directly and substantially with the fundamental right to marry, violates the Equal Protection Clause unless they can withstand rigorous scrutiny. a. arbitrarily denied a fundamental liberty b. the right to marry is one of the fundamental rights of privacy and is the foundation to family in our society does this mean that states cannot do things that make it more difficult to get marry? c. Test: limits are allowed as long as; i. they do not significantly interfere with the fundamental right; ii. the state has a legitimate interest; and iii. it must be closely tailored to the interest (here, there is no out for poor people – therefore the statute is not narrowly tailored to serve the state interest – too broad) [some say that the equal protection clause does not add anything to the constitution]
3. Michael H. v. Gerald D. – A California Law made a child born to a married woman living with her husband to be a child of the marriage. Here, Michael was the father and tried to claim parental rights, but under the law he was not the legal father. The statute was upheld and the Court emphasized that Michael was an adulterous natural father which has not been traditionally protected by our society . . . a. the plurality frames the argument in terms of whether an outsider can challenged the validity on the parental rights of a married couple. ―this is not the stuff of which fundamental rights qualifying as liberty interests are made‖ i. concurring opinion does not agree – they basically generalize whether the law has offered rights to biological parents (rather than the specific rights of adulterous men). They do not think that the court should focus on tradition and history because time change b. in the Dissent, the Justices assert that he has a liberty interest entitled to protection under the Due Process Clause of the Fourteenth Amendment – natural father should have protected rights and no that ―deeply rooted historical‖ ideas are had to determine