Law School Outline - Constitution Law - Schapiro

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Law School Outline - Constitution Law - Schapiro Powered By Docstoc



Two kinds of issues:
1. Substantive -- what the constitution says 2. Interpretive -- how the court interprets the constitution


Interpretation Arguments:
1. Text -- text or absence of text, an appeal to the unadorned language of the text - the inclusion of one thing is the exclusion of another [ask,does the text address this issue? If so, how? If not, is this dispositive?] 2. Original Intent/Historical argument— Look at historical background. What did the Framers think? What did the ratifiers think? Look at Federalist Papers. Problem: Whose intent to you base interpretation on? 3. Structure – Analysis from particular structures established by the Constitution; including the tri-partite division of govt., (separation of powers), separately existing state and national govts. as political entities (federalism); and the structural role of citizens in the political order. 4. Precedent/Doctrinal-- Once the court has addressed an issue, it should follow it. If the Supreme Court decides something, the legislature cannot override it. [has the Court ever decided this issue before and what did the court say? Is it dispositive?] 5. Prudential arg.—Emphasis on the consequences of adopting particular decision in any given case 6. Natural Law/Ethical Argument-- What is right? Based on broad generalities. Often entails an examination of the ethos of a limited government [what do abstract values tell us? notions of justice and equity?]


Historical Background
1. Articles of Confederation (1781) --Written to regulate between states after Revolutionary War. States maintained a lot of autonomy. No executive or national judiciary. The central government was weak. Problem: There was a lot of commerce between states and states were interfering with interstate commerce via taxes and interference with debt collection. This form of government was too weak. 2. Constitutional Convention (1787) Philadelphia. Met to amend the Articles of Confederation, but decided to draft a new document -


the Constitution. It is sometimes argued that the Constitution is illegal, because it went against the Articles of Confederation. The Articles of Confederation required an unanimous decision directly by the people to amend, but the Constitution was ratified by 9 votes and via conventions of representatives. Political theory underlying constitution 1. Classical Liberalism -- Government should allow each individual to persue own interests. 2. Classical Republicanism -- Government should cultivate virtue and help them overcome their selfinterests to persue the public good. Liked small parties coming together to decide the public good. Skeptical about constitution. Thought national government would be too remote. 3. Madisonian Republicans -- Tried to confront classical liberalism. Three aspects: a. representation & deliberation -- It is good to have higher level of government. The problem with small localized groups is what is today called ―special interests.‖ Representation is practical and good. Higher government makes it harder for small interests to take over. Structural Principles: b. separation of powers c. federalism -- Division of power between state and federal government. Federalists v. Anti-Federalists:  Federalists -- Those who supported the constitution. Supported a sharing of power between the national and state governments.  Anti-Federalists -- Those who were against the constitution. Thought too much power was given to the national government.

I. The Constitution and the Courts
A. Foundations
1. Supreme Court Review of Acts of Congress  Art. III sect. 2 Marbury v. Madison (1803) p.23 ―The cornerstone of American constitutional law‖[Would be justices sought writ of mandamus compelling Jefferson‘s Sec‘y of State to deliver commissions]  Judiciary Act – gave Supreme Ct. jurisdiction to issue writ of mandmus  Conflict with Art. III §2 of Constitution -grants Supreme Ct. original jurisdiction only ―in all cases affecting Ambassadors, other public Ministers


and Consuls, and those in which a state shall be a party‖ -Congress cannot add to Supreme Ct.‘s original jurisdiction -Marshall reads as ceiling Marbury establishes the Court role as an interpretive mechanism in relation to the Constitution. a. Which branch of the federal gov‘t shall have the final say in interpretting the Constitution? b. Marshall’s decision i. Right to Commission: Marbury had a right to the commission, because it is valid once it is signed and sealed, does not have to be delivered. (Marshall could have ended this whole problem by ruling that delivery was necessary in order for it to be valid. Curiously enough, Marshall was the Secretary of State under Adams!) ii. Remedy: Where there‘s a right, there‘s a remedy. Political acts are not entitled to a remedy, but acts specifically required by law are. Political act = Where there are constitutional limits on what President may do, but only he can decide. Ex- choosing cabinet members, or enforcing laws.  Failure to deliver – act required by law, therefore reviewable (as opposed to political act, which is not reviewable) iii. Mandamus not allowed: (a) Judiciary Act Conflicts with Art. III §2 of Constitution Judiciary Act of 1789 : Gave the Supreme Court jurisdiction to issue writs of mandamus to persons holding office. Through this act, Congress is trying to give the Supreme Court original jurisdiction over something not in Article III. Article III, Section 2, Paragraph 2: ―In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the Supreme Court shall have original jurisdiction. In all the other Cases before mentioned, the Supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.‖ iv. Judicial Review of Congressional Acts established

c. Main holding: If Supreme Court finds conflict between a Constitutional provision and a congressional statute, the


Court has the authority (and duty) to declare the statute unconstitutional and to refuse to enforce it. i. Constitution is paramount ii. Province and duty of judicial branch to say what the law is d. Key Parts of Holding (Schapiro): i. Judicial Review of Executive ii. Judicial Review of Legislature e. Analysis: i. Constitution is written, therefore subject to interpretation – someone has to interpret; should be the courts ii. Constitution is law – courts interpret law as the ―least dangerous branch‖ iii. Textual argument – Article III – role of Judicial Branch; Article VI – oath to uphold the Constitution as Supreme Law f. Significant Criticism – Constitution does not say that Courts, not Congress should decide if a statute conflicts with the Constitution [BUT, judicial branch probably safest branch to interpet law] g. Is Judicial Review Countermajoritarian?  Can we really call ourselves a democracy where we allow appointed officials to interpret the constitution? Yes, they‘re appointed by democratically elected officials. Pro-Marshall -(a) legislative failure -- Perhaps the role of the judiciary is to police the democratic process. Sometimes the legislature tries to exclude a minority. (b) will of people is not the will of Congress -- When the Court strikes down a statute of Congress, it is not striking down the will of the people. Judicial review may be contrary to democracy, but we may value uniformity over democracy. (c) the ―Dead Hand‖ -- Intergenerational Problem Constitution is a grip of some group in the past on the present, keeping the present will from being exercised. It seems to have worked so far. 2. Supreme Court Review of State Court Decisions Martin v. Hunter’s Lessee (1816) p.46 [VA confiscated land of British subjects and gave to Hunter. Martin, a British subject, claimed this was ineffective under treaties between US and Britain. VA court hold that π has title] a. Is Supreme Court Constitutionally authorized to review the constitutionality of state ct. decisions?  VA ct argued that if litigation commenced in state courts, then it was up to the state court to say whether the state action violated the federal constitution –


Supreme Ct. had no right to review constitutionality of state ct. decisions – no appellate jurisdiction over state cts. b. Holding: Supreme Court can review Constitutionality of decision by a state’s highest court c. Story reasoning: i. rejected sovereignty argument – Federal Constitution cut back on state sovereignty in numerous respects - Art. III §2 – ―in all cases in law and equity arising under the Constitution‖ the Supreme Ct. has appellate jurisdiction ii. Need/desire for uniformity in Constitutional interpretation *Martin reasoning affirmed in Cohen, which held that Supreme Court could exercise jurisdiction over decisions of the state courts in criminal cases and in cases in which the state was a party

B. Interpretive Method: Overview
Four Models of Role of Supreme Ct. wrt other Branches:  Judicial supremacy – the Constitution means only what the Supreme Court says it means.  Judicial expertise – ―Constitution is law‖ – interpretation of the Supreme Ct. becomes legally binding  Judicial coordinacy – Supreme Ct. interprets in cases before it, but other branches may also interpret  Mere judicial competence – Supreme Ct. says what it wants – no one has to listen to it [Schapiro – Cooper v. Aaron] – desegregation law in Arkansas – suggests that cts. have distinctive role as ultimate guardians of meaning of the Constitution and that other gov‘t officials must not interpret it themselves, but must look to the cts. 1. Types of Justifications McCulloch v. Maryland (1819) p.57 [state of MD tried to tax a branch of the Bank of the United States]  Doctrine of ―implied powers‖, fed. gov‘t may validly exercise power that is ancillary to one of the powers explicitly listed in the Constitution, so long as it does not conflict with specific Constitutional prohibitions (such as Bill of Rights)  Implied powers – Art. I §8 – ―necessary and proper clause‖ a. Issues: i. Did Congress have power to create National Bank? ii. If Bank was Constitutional, did MD have power to tax?  Textual – 1. Nothing in constitution says Congress has power



 

to create bank 2. Can be implied from necessary and proper clause Historical – 1. Established initially, therefore they must have Decided it was Constitutional 2. Heavily debated and considered 3. Accepted initially – expired – accepted again Prudential – Evidence that it was good for the country since it had existed, expired, and reinstated Structural a. Federalism 1. MD argument – Constitution emphasizes individual states- powers granted to states 2. Marshall – Constitution approved by Conventions – represent ―the people‖ not just the states

b. Marshall decision:  Constitutionality: i. Powers of nat‘l gov‘t come directly from the people, not from the states, as MD argued ii. Power to create bank could be implied from explicit grant of other powers (1) Congress had power to create a corporation, if this was incidental to carrying out constitutionally enumerated power of raising revenue (2) Relied upon ―necessary and proper‖ clause Art. I, §8: Congress may ―make all Laws which shall be necessary and proper for carrying into Execution‖ the specific legislative powers granted by the Constit.  Rejected contention that necessary meant ―absolutely necessary‖ or ―indispensable‖  So long as it ―rationally related‖ to a Constitutionally specified objective, it is Constitutional (3) Marshall pointed to other situations where Congress‘ power to carry out constitutionally specified objectives had been liberally interpretted  No specific power to punish etc. (4) Separation of powers principles – examination of judicial branch inot degree of necessity justifying a statute would be an invasion of Congress‘ domain  Only where it was quite clear that no constitutionally-specified object was being punished Holding: Act chartering national bank was valid – it bore a reasonable relationship to various Constitutionally enumerated powers (eg, power to collect taxes, borrow $, regulate commerce)


2. MD tax on Bank unconstitutional  Federal gov‘t is immune from taxation by any state a. power to tax is the power to destroy b. if state tax permitted to destroy/harm the Bank, fed. gov‘t‘s exercise of Constit. Powers (esp. Necessary & Proper Clause) would be thwarted c. Fed. Constit. Must be preserved against such state interference  McCulloch test still used today: *Courts will not strike down a Congressional action so long as Congress has employed a means which is not prohibited by Constit. And which is rationally related to objectives which are within Constitutionally enumerated powers 2. Natural Law Calder v. Bull (1798) p.71 [At the time in Connecticut, the legislature could review judicial decisions. S. Ct. held that ―ex post facto‖ laws are forbidden, but disagreed on the application of natural law.  Schapiro – who you side with depends upon who you trust. If you trust judges, you tend to favor natural law a. Chase---State legislatures are not omnipotent. ―The great first principles of the social compact‖ determine what actions of a legislature could be regarded as a ―rightful exercise of legislative authority.‖ [e.g. punishment of an innocent person, or taking property from A and giving it to B are outside ―reason and justice.‖] b. Iredell—―Natural Justice‘ is not a grounds for invalidation of a law. The ―ablest and purest men‖ differ on the meaning of natural justice so at best courts can only give their own opinion. So long as the legislature acts within their prescribed limits, they are within the public trust.  Natural law = principles of right and wrong; norms and values of the people. Can the constitution be judged by natural law; right and wrong? Is the legislature or the S.Ct. better at judging the traditions and conventions of the people?[Justice Thomas believes in Natural Law, although it is not discussed much today] Does the text of the Const. confer on the S.Ct. the authority to invalidate statutes that do not transgress the judgment specifically attributable to the framers of the Constitution? Is it desirable to authorize judges to invalidate laws on such grounds?  Pro Natural Law: There is an unwritten Constitution consisting of principles of natural law, which is


enforceable against the states even though it cannot be found in the Constitution. The framers (at least some) possibly believed in the existence of a natural law supplement to the Constitution‘s explicit prohibitions. -framers could not write everything into the Constitution  Con Natural Law: The very fact of a written Const. is authority against the position that courts may call on principles of natural justice. -preferences of 9 S.Ct. justices should not be allowed to dictate laws without some finding based on Constitution

C. Limits on Judicial Review
1. Political Control of the Supreme Court a. Constitutional Amendment: Most straight-forward way people can react to a S. Ct. decision, but difficult to get. Art.V -- Amending process may begin only if 2/3 of both Houses propose an Amend, or if the legislatures of 2/3 of the states call a constitutional convention. Must then be ratified by 3/4 of the states. b. The Power to Appoint: Members of the S.Ct. are appointed by the Pres., subject to the advice and consent of the Senate. Pres. attempt to use as a means to further their political goals. i.e..Roosevelt appointed justices in favor of his New Deal as a response to the Court‘s attempts to invalidate aspects of the New Deal. The power of the Senate to advise and consent may affect the composition of the court in two ways: 1. may lead the Pres. to avoid controversial appointees. 2. Senate may refuse to confirm appointees b/c of incompetence, venality, or ideology c. Impeachment: Art. III, Sec. 1: Justices of the S. Ct. may ―be removed from Office on Impeachment, for and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.‖ Impeachment has never been used for a member of the Supreme Ct. d. Life Tenure – Justices appointed to life terms d. Informal Mechanisms and self-imposed Limits: The S.Ct. is reluctant to make decisions that depart too sharply from what is perceives as a political consensus. 2. Congress can limit the Supreme Court’s appellate jurisdicition. Article III §2 -- suggests Congress may put certain limits on jurisdiction of federal courts‘ appellate jurisdiction. Ex parte McCardle (1869) p.81[McCardle published several nasty articles during Reconstruction. He was arrested and charged with libel, disturbing the peace, and impeding Reconstruction. McCardle challenged his arrest claiming that


Congress lacked the power to establish military gov‘t in the states. Lower cts. held for gov‘t, but McCardle appealed to the Supreme Ct. under the 1867 Habeas Corpus Act. Following the oral argument, Congress reapealed the 1867 act – abolishing McCardle‘s rt. to appeal to the Supreme Ct. a. Does Congress have power to limit Supreme Ct.‘s appellate jurisdiction? b. Holding: Congress does have the authority to limit appellate jurisdiction of the S.Ct. Express words of the Const. give Congress the authority to make exceptions to appellate jurisdiction. Art. III, §2 The Supreme Ct’s appellate jurisdiction is conferred by the Constitution ―with such exceptions and under such regulations as Congress shall make‖ c. Limits on the holding: i. Did not withdraw Supreme Ct. right to hear habeas corpus cases – withdrew only where Supreme got case from appeal of lower ct [Person only allowed 1 habeas corpus appeal – District Ct. or Surpreme Ct., but not both] ii. Independent Constitutional Constraints – if limitation on jurisdiction is unconstitutional itself, then it must be unconstitutional iii. Constitutional Structure – Based on Constitution, no need for lower federal ct. system 3. Structural Mechanisms: Advisory Opinions and Standing analysis a. Justiciability 1. Restrictions on the kinds of cases courts can hear. 5 Requirements: i. no advisory opinions: ii. proper standing iii. no political questions iv. ripeness v. not moot i. No advisory opinions: Given to governors etc. to determine if proposed legislation is Constitutional. Permitted in some states, but not in Supreme Ct. Policy reason: No adversary briefing, involves sep. of power. limits and also, lends more credence to the decisions the court does render. Standing: 3 things ya just gotta have when ―standing‖ before the Supreme Court: a. injury in fact – must be particularized and imminent b. nexus/causation -- fairly traceable to challenged conduct c. redressability – Ct. will be able to do something




about injury. Goals of Standing Requirement: *Judicial restraint, separation of powers, concreteness *Attempts to ensure that Π who brings the case has right to do so, is correct Π

Lujan v. Defenders of Wildlife (1992) p.111: illustrates standing analysis [Section 7(a)(2) of the Endangered Species Act of 1973 was originally interpreted to extend to all nations, then in 1983 a revised interpretation was proposed and promulgated in 1986 to mean that the act only applied to actions taken in the U.S. and on the high seas. Shortly thereafter the respondents filed action against the Secretary of the Interior, seeking a declaratory judgement that the reinterpretation was in error and demanding an injunction requiring the Secretary to restore the original interpretation. They claimed they were injured because they would not be able to see the animals when they visited the other countries.] a. Do the respondents have standing? b. Holding: Respondents do not meet three requirements of standing.  Three elements of standing: 1. injury in fact – Πs did not have current plans to return to the countries; therefore, there was not imminent injury. ―Some day‖ intentions do not support actual or imminent injury. 2. causal connection: Πs argued: a. ecosystem nexus: Ct. held any Π claiming injury must from environmental damage must be in the area affected, not ―in the vicinity‖ National Wildlife Federation b. animal nexus: Anyone with interest in animals has standing c. vocational nexus: anyone with a professional interest has standing  Ct. held that all three theories were beyond reason 3. redressability – ―a generalized grievance‖ (one not dealing with individual rts.] is not redressable Raines v. Byrd: [Members of Congress lacked standing in a suit contending the Line Item Veto was unconstitutional] a. Do certain members of Congress have standing before the Court with regard to the Line Item Veto bill. b. Holding: Members did not have standing. Members of a political body, such as a legislature, do not have standing to litigate against an action that they say takes away the political power of that body. c. Reasoning: i. Congressmen were not alleging injury to themselves, as individuals – merely injury to position of members of Congress. ii. Institutional injury was ―wholly abstract‖ and ―widely dispersed.‖ Therefore, did not have the ―concrete and


particularized‖ interest required for standing. Ct. Held: 1. Voting power was not nullified, their votes were given full effect when act was passed. They simply lost the vote. No real dilution of voting power. 2. Plaintiffs have their own remedy: can nullify cancellation, can exempt bills, and even repeal the Act. 3. No suit was brought before due to such disputes 4. Only case law: Coleman is off point since it involved an actual nullification of voting power 5 . Injury therefore is not concrete enough 6. Nor do they have a sufficient personal stake d. Distinguished from Coleman: Would be different if Congressperson‘s vote were truly cancelled – deprived of all its effect *in Raines, Πs had been outvoted – votes had not been nullified iii. Political Question -- Three categories: a. jurisdictional -- textual commitment in constitution to another branch of govt. Nixon v. U.S. (1993) p.130 [Nixon, a fed. judge whom the House had impeached and the Senate convicted based on bribery charges, challenged the procedures used by the Senate. The Senate delegated a committee of senators the job of holding hearings on the accusations against Nixon, who then gave transcript to full Senate and full Senate voted to impeach by more than req‘d 2/3 vote.] a. Did Senate violate requirement of Art. I. §3, Clause 6 that Senate ―try all impeachments‖ by having a committee rather than the full Senate hear the evidence? b. Holding: Non-justiciable political question. Relied on Senate Impeachment Clause: ―the Senate shall have the sole Power to try all Impeachments.‖ Senate by the plain text had the ―sole power‖ to determine what a ―trial‖ was. Ct. could not review. b. merits based -- Are there judicially discoverable standards? Article IV, Section 4 Republican Guarantee Clause ―The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.‖ Baker v. Carr – (1962) p.121 [Voters in Tenn. brought suit challenging a state statute, passed in 1901, that


apportioned the members of the state General Assembly among the state‘s 95 counties. Representation was allotted according to population of registered voters. P‘s claim growth and redistribution of population led to a system of ―arbitrarily and capriciously‖ apportionment. P‘s sought injunction requiring reapportionment or ―at-large‖ election.] a. Does this challenge to apportionment present a nonjusticiable ―political question‖? b. Holding: Claim that malapportionment violated the Equal Protection Clause did not present a political question – therefore it was justiciable. c. Reasoning: i. not all cases involving ―politics‖ present nonjusticiable ―political questions‖ *Brennan‘s 6 Standards for Political Question: 1. textual commitment – commitment to another branch 2. no standards – ―a lack of justicially discoverable and manageable standards for resolving it‖ 3. policy determination – ―the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion‖ 4. lack respect for other branches – ―the impossibility of a court‘s undertaking independent resolution w/o expressing lack of the respect due coordinate branches of gov‘t‖ 5. adhere to political decisions – ―an unusual need for unquestioning adherence to a political decision already made‖ 6. embarassment of multifarious pronouncements – need one voice ii. No Guaranty Clause claim – no relations between the judiciary and other branches of federal gov‘t (this case was b/w judiciary and the states) d. Dissent – Frankfurter *This is a Guarantee Clause question dressed in 14th Amendment clothing. This is the type of case the cts. should not get involved in. c. prudential/deferential -- Court just says it‘s not going to get involved; often in foreign affairs cases. [Souter in Nixon: if the practices are severe enough or irrational enough, then


the courts should get involved (ie, convicting Nixon because he was a bad guy‖) iv. Ripeness—the case must be ready for adjudication [i.e. a suit against a statute that has not yet been enforced may be considered unripe] v. Must not be moot—a case is moot if it raises a justiciable issue at the time of filing, but events since the time of filing have deprived the litigant of an ongoing stake in the controversy. There are several exceptions. 1. Capable of repetition yet evading review [cf. Abortion cases] 2. Voluntary cessation by Δ [Case is not moot since Π could be seeking damages of the Δ might return to her ―old ways] 3. Collateral Consequences [Π could easily have a stake in the ―image‖ or collateral consequences of the action – ie, a criminal who has already served his sentence could still have issues pertaining to his image and the right to vote]

D. Interpretive Problems
1. The Second Amendment A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed. A. Textual – What does ―militia‖ mean? 1. universal militia – everyone would bear arms 2. Focus on ―well-regulated‖ B. Historical – Concern about Revolution – not self-defense – in debate surrounding 2nd Amendment C. Doctrinal – Only one case on point – Miller – Ct. held that weapon was not type guaranteed by 2nd Amendment – not useful to purpose of militia D. Prudential – existence of police force has made individual armament – social cost of distribution of guns to everyone  This illustrates the tension found in the Court‘s interpretive role.

 Federalism  Goals of federalism (as opposed to a single unified government): a. efficiency -- It is important to have ―local solutions to local problems.‖



b. choice -- You can always go to another state, but still remain in the U.S. c. experimentation -- States can act as laboratories and as a result novel and more efficient solutions can be identified in an effort to solve problems. d. participatory democracy -- It is good for people to be active. It‘s hard to be active on a national level. On a local level can have town meetings, etc., get more directly involved, participate in deliberation and debate. e. prevent tyranny -- A centralized govt. may try to take away rights. States can act as barriers to protect rights. Vertical separation of powers. Problems of the federalist system: a. too much power to the states – state tyranny b. not so easy to move – different things in different places c. allows a ―race to the top‖ v. a ―race to the bottom‖

A. The Commerce Power
Article 1, §8: “Congress shall have the power... To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” Era’s of the Commerce Clause: a. Gibbons (1824) b. 1880-1935: pre-court packing i. Hammer (1918) – Congress tried to pass legislation against child labor by prohibiting the interstate commerce of goods made by children. Supremes said this was unconstitutional and beyond Congress‘s authority under the Commerce Clause – motive examination. ii. The Great Depression (1920‘s - 30‘s) and The New Deal iii. Schechter (1935) – NIRA (National Industrial Recovery Act – provided some hourly wage and hour restrictions) Supremes held NIRA unconstitutional and beyond the powers of Congress. Representative of Ct.‘s staunch restrictions on Congress during this era. c. 1937-1995 i. court packing – Due to Roosevelt‘s difficulty in implementing New Deal legislation, he wanted to appoint another justice for every justice over 70 years old. The plan was constitutional, but unwise, because it undermines the judiciary‘s checks and balances. ii. ―switch in time that saved nine‖ -- Justice Roberts switched his vote for some legislation and Roosevelt chose not to add the justices. iii. Wickard v. Filburn (1942)


iv. U.S. v. Darby (1941 v. Heart of Atlanta Motel v. U.S. (1964) Further rejects motive analysis. vi. Katzenbach v. McClung (1964) Rejecting motive analysis. d. 1995 - ? i. Lopez

1. Background, Framework
Gibbons v. Ogden(1824) [NY had granted an exclusive steamboat operating license which was ultimately owned by Ogden. Gibbons obtained a federal license to operate his vessel btw NY and NJ, but was enjoined by the NY cts. from sailing it in NY waters because of Ogden‘s monopoly. Gibbons argued that the NY monopoly violated the federal commerce power.] a. Does Congress have the power under the Commerce Clause to give license to Gibbons to operate the ferry service? b. Holding: NY monopoly invalid because it conflicted with the federal commerce power. (Broad interpretation of what commerce is) c. Reasoning: 1. Congressional Silence: Congress could regulate commerce in a particular way if there was no actual conflict between the state regulation and an act of Congress. Marshall: Congress could legislate all ―commerce which concerns more states than one.‖ 2. Actual Conflict: There was an actual conflict between NY‘s action and a law of Congress: the federal licensing law conflicted with the NY monopoly, and the New York monopoly had to fall under the Supremacy Clause.

2. Rise of the Welfare State
Wickard v. Filburn (1942) [Agricultural Adjustment Act of 1938 allowed Sec‘y of Ag. To set quotas on wheat that would be sold interstate and intrastate, as well as quotas on wheat which would be consumed on the very farm where it was raised. Wheat raised in excess of quota was subject to a per-bushel penalty. Π owned small farm – challenged rt. to set quota on wheat he raised and consumed on his own farm, on the grounds that this was a purely local activity beyond scope of gov‘t control] a. Was Agricultural Adjustment quota for home-grown wheat constitutional under Commerce Clause? b. Holding: Statute upheld. i. Consumption of home-grown wheat is a large and variable factor in the economics of the wheat market. iii. Cumulative effect of Π‘s action – Protection of the


3. Federalism Limits

interstate commerical trade in wheat clearly falls within the commerce power, and the regulation of home-grown wheat is reasonably related to protecting that commerce. U.S. v. Darby (1941) [Darby was charged with violating the Fair Labor Standards Act wich required him to provide a min. wage/max. hour for all employees in industries with goods shipped in interstate commerce.] a. Statute upheld: i. Court will no longer look at motives – just whether this is ―commerce‖ ii. statute is related to a truly national problem which requires federal action iii. If the end is regulation of commerce, then the means is justified (broad power) iv. The 10th amendment is constitutional truism rather than a check on gov‘t (it is simply a restatement that Congress is limited by the Constitution) Heart of Atlanta Motel v. U.S.(1964) [Π was a motel who refused to rent rooms to blacks] a. Was Title II of 1964 Civil Rights Act Constitutional? -provides that ―all persons shall be entitled to the full and equal enjoyment of the goods, services, …and accommodations of any place of public accommodation.‖ b. Holding: Motel could constitutionally be reached by the Civil Rights Act under the Commerce Clause. Racial discrimination discouraged travel by blacks in the aggregate and therefore could be regulated by Congress. Fact that motive was not economic insignificant. Katzenbach v. McClung(1964) [Ollie‘s BBQ – restaurant in Birmingham far from highway, train or bus station. However, 46% of food purchased during previous year had been bought from a supplier who had brought it from out of state] a. Was Congress‘ application of Title II within its Commerce Clause powers? b. Holding: Yes – Title II upheld. Congress would regulate in this instance because: i. it discouraged travel ii. it deterred professionals from moving into areas where such discrimination existed iii. the restaurant purchased food from out of state U.S. v. Lopez (1995) p.154 (5-4 decision)[Gun-Free School Zone Act of 1990, in which Congress made it a federal crime ―for any individual knowingly to possess a firearm at a place that the individual knows, or has reasonable cause to believe, is a school


zone.‖] a. Can Congress regulate possession of guns in school zones under the powers granted in the Commerce Clause? b. Holding: The Court for the first time in 60 years invalidated a federal statute on the grounds that it was beyond Congress’ Commerce power.  Three broad categories of activity Congress may regulate under Commerce Power: 1. Use of channels of interstate commerce 2. Instrumentalities of interstate commerce, or persons or things in interstate commerce 3. Activities which substantially affect interstate commerce a. Economic/commercial activity b. Jurisdictional element – nexus btw regulated activity and ISC c. Reasoning: 1. Little connection to commerce (a) no findings by Congress that regulated activity affected commerce (b) no jurisdictional nexus – Could have made it a crime to possess a gun that had moved in or affected interstate commerce instead of banning possession of all guns, even those that had not affected interstate commerce 2. Majority held that activity must ―substantially affect‖ interstate commerce – Effect was not present (a) Possession of guns in schools was not in itself a ―commercial‖ activity (b) Rejected gov‘t argument that possession in schools does have a ―substantial effect‖ on commerce *Gov‘t argument: i. Possession in school may result in violent crime ii. violent crime affects functioning of nat‘l economy – costs of crime, reduces willingness to travel, reduces schools‘ abilities to educate – less economically productive students result d. Concurrence: (Kennedy and O‘Connor) 1. need for political accountability 2. separation of powers important – intrudes upon an area traditionally left to the states e. Dissent, Breyer: Applied rational basis test and


accepted the Govt‘s argument that gun related violence in schools interfered with economic viability. He rejected the commercial/non-commercial distinction, because the line b/w the two would be too hard to draw.  Scope of Lopez: relevant factors: (Schapiro) 1. non-commercial activity 2. no jurisdictional element 3. lack of express findings or legislative history 4. traditional areas of state concern i.e. education, schools, crime, etc. 5. involved gun control 6. lack of national necessity: 40 states had already passed identical legislation on their own, so why should Congress pass it? Perhaps the court recognized the Gun Free School Zone Act as cheap politics, and felt it was doing no real harm by striking it down 7. no coordination problem: no reason states could not do this themselves 8. need to set some limit on Congress’ power – slippery slope B.

Spending Power
Article I, §8 gives Congress the power to ―lay and collect pay the Debts and provide for the common Defense and general Welfare of the United States. ...”  Congress‘ spending power is fairly broad. Butler (1936)[in which court held no limits exist on taxing/spending power of Congress to achieve the general welfare, even though no other enumerated power is being furthered 1. Conditional Spending: When Congress gives money to states, but only to spend a certain way. This is a tremendous power now that there‘s a national income tax.  Limits on Congress’ conditional spending power: 1. General welfare 2. Unambiguous – if Congress places condition on receipt of funds, it must do so in a way that allows the states to knowingly exercise their choices. 3. Related to Spending – must be related to the federal interest in the particular national projects or programs 4. No independent Constitutional bar – can not achieve through spending that which you could not otherwise achieve South Dakota v. Dole (1987) [Congress enacted law that said it could withhold 5% of a state‘s highway money if it didn‘t have a drinking age of 21. S.D. claimed this interfered with


its own exclusive powers under the 10th and 21st (repealing prohibition) Amendments.] a. Is statute valid under taxing/spending power of Congress? b. Holding: Statute is valid. Even if Congress could not do this directly, it can do it indirectly by using conditional spending to achieve the same results. Congress cannot use conditional spending to induce states to pass laws that would themselves violate the constitutional rights of individuals. c. Reasoning: Only questioned 4th limit on conditional spending – no independent constitutional bar to activity d. Dissent, O‘Connor: O‘Connor calls for a stricter standard for relatedness. Congress should be able to tell the state how to spend the money that‘s conditioned, but cannot blackmail the state into enacting some policy. i.e it could tell the state how the roads should be built using the highway money, but cannot condition receipt of the funds on the state changing regulations on other areas of its social and economic affairs based on tenuous/tangential relationship to highway use.

C. Power to Enforce Reconstruction Amendment
Amend. XIV, Section 5. “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” City of Boerne v. Flores (1997) p. 18 supp. [Church denied a building permit by local zoning authorities. Church challegenged based on Religious Freedom Restoration Act.] a. Was RFRA beyond the scope of Congress‘ Reconstruction powers (14th Amendment)? b. Holding: RFRA is unconstitutional. Congress can not use its 14th Amendment enforcement powers to prevent local gov’ts from unintentionally burdening individuals’ religious freedom in certain ways. c. Reasoning: 1. ―Congress has been given the power ‗to enforce,‖ not the power to determine what constitutes a constitutional violation. 2. RFRA modified the scope of the free exercise clause, rather than merely enforcing that clause. 3. RFRA was so out of proportion to any supposed remedial or preventive object that it cannot be understood as responsive to, or designed to prevent, unconstitutional behavior. Instead, substantive change – therefore, invalid. d. The govt. made two args.. First, the legislation was only preventative and remedial. Second, the Congress‘ power is not


limited to preventative and remedial powers. The Court rejected both of these arguments in deciding the case. *Power to interpret the Constitution remains in the Judiciary. Katzenbach v. Morgan (1966) p.259 [difficult to reconcile with Flores][Court upheld Voting Rights Act] a. Does this overstep Congressional power under section 5? b. Holding: no – statute upheld

D. Implied limits on Congress’s Powers
National League of Cities v. Usery (1976) p.266 (NOT GOOD LAW!!) -Court held that the 10th Amendment barred Congress from making federal minimum-wage and overtime rules applicable to state and municipal employees. Congress could apply these regulations to private employers under the commerce power, but when applied to state employees, they violated the independent requirement imposed by the 10th Amend. that ―Congress may not exercise power in a fashion that impairs the States‘ integrity or their ability to function effectively in the federal system.‖ Congress could not impose on ―traditional govt. functions‖ and interfere w/ state sovereignty. Garcia v. San Antonio Metro Transit Authority (1985) p.267 [same statute as Nat’l League applied to employees of a municipally owned and operated mass-transit system.] a. Does Congress have power to apply minimum wage and overtime provisions of the federal Fair Labor Standards Act to employees of a municipally-owned and operated mass transit system? b. Holding: Blackmun changed his vote from Nat’l League and caused overruling of National League of Cities. Problem was line drawing of what is a ―traditional govt. function.‖ This does not mean that the federal govt. is unlimited in its right to use its delegated powers to impair state sovereignty. However, state sovereignty interests are protected by “procedural safeguards inherent in the structure of the federal system,” not by “judicially created limitations on federal power.‖ If the regulation would be valid if applied to a private party, it is also valid as to the state.  ―political safeguards of federalism‖ c. Dissent: This holding ―effectively reduces the 10th Amendment to meaningless rhetoric when Congress acts pursuant to the Commerce Clause.‖ New York v. U.S. (1992) p.270 [Congress enacted the Low-Level


Radioactive Waste Policy Amendments Act of 1985; attempting to force each state to make its own arrangements for disposing of the low-level radioactive waste.] Regulate in accord with federal plan or: 1. monetary – no subsidy 2. access – denied access to sites 3. take title to LLRW (Low Level Radioactive Waste] a. Does Congress have power to force a state to enact a certain statute or regulate in a certain manner? b. Holding: (O‘Connor) Court had problem with #3. #1&2 are okay, because gave states a choice, but #3 is not. Congress cannot force states to adopt regulation or force to take title. Ct. found this vioated 10th Amendment: Congress may not ―commandeer the legislative processes of the States by directly compelling them to enact and enforce a federal regulatory program.‖  Accountability argument: When Congress forces a state to regulate a certain way, it frustrates federalism by blurring the line of accountability; people don‘t know who to blame.  Historical argument: The federal govt. under the constitution regulates individuals, not states. The Articles of Confederation could regulate states. Counterargument: Constitution meant to give federal govt. more power.  Purpose of federalism is to protect individuals. Counterargument to holding was that all the states negotiated together and agreed, so NY waived its rights. The majority said this was not a good argument because it doesn‘t serve the purpose of federalism--protection of individuals.  Different from Garcia: Garcia act affected all states equally; acted on states as employers, not states. Printz v. U.S. –Supp.25 [Brady Bill – ordered local law enforcement officials to conduct background checks on prospective handgun purchasers, until a national computerized system for doing these checks could be phased in. CLEOS sued – could not force to perform background checks.] a. Can federal government compel states to enact or administer a federal regulatory program? b. Holding: (Scalia) No. Supremes decided in NY v. US that the federal government ―may not compel the States to enact or administer a federal regulatory program.‖ c. Reasoning: (1) No distinction between compelling a state to make policy and compelling state executive branch officers to perform ministerial tasks.  Intolerable incursion into state sovereignty (2) Did not seem to rely on any particular constitutional provision


– general principle of state sovereignty (3) No history of doing so d. Stevens‘ Dissent: (1) Commerce Clause grants authority to regulate handguns (2) Necessary and proper clause gives Congress right to require police officers to act (3) No textual argument against power to do so

E. Dormant Commerce Clause
Certain principles help facilitate dormant commerce clause discussion: 1. preemption/consent -- All regulations affecting interstate commerce written by states can be overriden by Congress. Simultaneously, Congress can pass laws granting states the right to pass laws regulating Commerce. Congress can also essentially override courts also in commerce. Congress may consent to state regulation 2. theories -- How to tell if violate CC; purposes served: a. political -- The threat is a threat to national unity. Would be disruptive to the country as a nation. Is the state trying to make itself separate from other states; discriminate against other states? b. political/economical -- cost exporting - states imposing costs on other states; benefit accrued by some by imposing costs on others; interference w/ national market c. process based theory -- taxation w/o representation. Tax or cost on others not represented in local govt. 1. Protection against discrimination a. Facial discrimination is ―per se invalid.‖ Examine facial intent of statute. Phili v. NJ Exceptions: 1) quarantine cases - rigorous showing of no alternative, 2) market participant doctrine b. Balance burden on interstate commerce with local benefits Philadelphia v. New Jersey (1978) p.302 [NJ statute prohibited the importing of solid or liquid waste into the state. NJ landfill operators and out-of-state users sued to have the statute invalidated on the ground that it discriminated against interstate commerce.] a. Was NJ statute invalid in that it discriminated against interstate commerce? b. Holding (Stewart) 1) When there is ―direct discrimination‖ the law is per se invalid. [a.k.a. facial discrimination] This statute treats garbage differently based solely on


where it comes from and constitutes a clear violation of the dormant commerce clause. It is a protectionist measure which ―imposes on out-of-state commercial interests the full burden of conserving the State‘s remaining landfill space....[It is an attempt] by one state to isolate itself from a problem common to many by erecting a barrier against the movement of interstate trade.‖ 2) There are several exceptions to the principle that a state cannot discriminate against out of state commerce: a) Quarantines—import of materials which are hazardous at the moment of importation—or where there is a rigorous showing of no alternative means [i.e. Maine case involving a ban on bad fish] Giving in-staters monopoly violates CC b/c deprives out-of-staters of chance to compete. C & A Carbone, Inc. v. Clarkston (1994) p.307 [To ensure a guaranteed flow of waste to it‘s waste transfer station, the Clarkston enacted a ―flow control ordinance‖ to require all solid waste within the town go to the station. Carbon was a private recycler w/in the town, which collected waste from elsewhere in NY and NJ. W/o the ordinance, Carbon would have shipped the waste out of the state at a lower cost.] a. Can state and local govt. use their regulatory power to favor local enterprise by prohibiting patronage of out-ofstate competitors or their facilities? b. Holding: Discrimination against interstate commerce in favor of local business or investment is invalid, except where the municipality can prove that it has no other means to advance a legitimate local interest. Small scale discrimination is a violation of the Commerce Clause. c. Reasoning: The purpose of the Commerce Clause is to prevent local protectionism. Clarkston argued it doesn‘t discriminate where waste comes from. Ct. argued that the article of commerce is the service, not the waste itself. By prohibiting out of staters from processing the waste of the town‘s residents, it is invalid per se. (e) Clarkston claimed necessary to protect environment. The Ct. found Clarkston had other alternatives, such as uniform safety regulations. The need for financing of the faculty is not justification. Clarkston could finance it through taxes or municipal bonds. O’Connor, concurring: She doesn‘t‘ believe it


discriminates against interstate commerce, b/c all treated the same. But she does believe it puts ―an excessive burden on interstate trade.‖ Souter, dissenting: Doesn‘t protect local business, b/r aids govt. responsibility, therefore it is outside the Commerce Clause. Other cases protected local business, just b/c it was local. Clarkston has other reasons. Monopolies are prohibited by statute, not the constitution. The Constitution only protects right to compete independent of location. In other cases, the out-of-staters bore the economic burden, but the people of the city are bearing the burden here. Carbone presents no evidence that out-ofstaters were harmed. Clarkston is just protecting a govt. interest. Hypo: What if a city imposes benefits upon another state? i.e. Clarkstown says ―all of our trash must be sent to Massachusetts‖ Is there facial discrim? not in favor of residents but in favor of Mass. and against other states....probably = a violation (no one would ever do this by the way) Hypo. II: What happens when you say you can only buy one from one person who just so happens to be instate? Do you aggregate effects? Carbone says that person=city=state. Alternatively, what if the competitive bidding/auction is really a sham? key problem in dormant commerce clause cases: Does the court look at the symbolism of restricting where waste goes? 2. Market Participant Doctrine – When a state acts as a market participant rather than as a sovereign regulator of markets the limitations of the dormant commerce clause do not apply. When a state is participating in the marketplace rather than regulating it, the state is treated just like a private party. Like private market participants a state, when acting as a market participant, may discriminate against ISC. i. Issues in evaluating market participation: (1) What is the market? The court defines the market narrowly so as to avoid interference with ISC. [as a general rule, when states create commerce rather than simply regulating existing commerce, they are participating in a market] (2) downstream regulation – acceptable in:


Hughes -- favor in-state scrap processors Reeves -- sell cement only to state residents; regulation on sale of goods based on where you are White -- construction contracts had to be more than 50% city residents unacceptable: Southcentral -- state attempts to affect parties beyond those with whom it is contracting; consequences outweigh ―market participatory‖ consequences Why is downstream okay? There has to be an end; we don‘t want the exception to swallow the whole. Limitation on market participant exception: South-Central Timber Development v. Wunnicke (1984) p.323{Alaska sold raw timber to a Japanese company, requiring that the timber be processed in Alaska. The Japanese company claimed this violated the Commerce Clause. The ct. of appeals denied the injunction, finding congressional authorization for the requirement.] a. Can a state make requirements on what will be done with a product it has sold after it leaves the state? b. Holding: The market participant doctrine does not apply when a state is imposing vertical restraints, restricting what will be done with the product after the transaction, and the action has an affect on foreign commerce. Alaska had an alternative; could have processed it themselves and sold it as processed timber. The benefit of this regulation was on the in-staters, the cost was on the out-of-state processors c. Dissent (Rehnquist]: The state could have imposed the same restrictions in a number of other ways which would be under the market participant doctrine, so the court is being unduly formalistic by holding this path forbidden. South Central compared to Reeves 1) Raw resource: The timber here was a raw natural resource, whereas the cement in Reeves was the end-product involving much labor and capital 2) Down-stream regulation is not allowed: The burdens imposed on commerce went beyond the sale of the materials by the state, since the terms imposed by the state prevented a buyer to re-sell the logs out of state unless they were processed in state. The ―market participant doctrine is limited only to the particular market that the state is


participating (i.e. sales not processing). 3) Alaska has burdened foreign commerce.  Facially neutral statutes with significant effects on interstate commerce a) South Carolina Highway Dept. v. Barnwell (1938){South Carolina prohibited the use on state highways of trucks wider than 90 inches or weighing more than 20,000 lbs.]  There was clear evidence that the vast majority of trucks used in interstate commerce exceeded one or both of these limitations, so the regulation clearly burdened interstate commerce. Supreme Court upheld the regulation saying that this was a strictly local matter and that it was within the state’s power.

b) Southern Pacific Co. v. Arizona (1945)[Arizona prohibited the operation of trains having more than 14 passenger cars or 70 freight cars. An interstate railroad operator sued, on the grounds that the regulation violates the commerce clause.]  The Court held that the statute violates the dormant commerce clause. Most trains are longer than this, and trains have to switch/break up before crossing the state line—thereby destroying national uniformity. Besides, the contribution to safety is negligible unlike South Carolina. ISC is clearly being discriminated against since intrastate trains do not have to break up their cars.  Distinguish between Barnwell and Southern Pacific: 1. Contribution to safety of SC truck limitations was substantially clearer than the contribution of the Arizona train-length limit 2. Highways involved in Barnwell were created by the state, and were of intensely ―local‖ concern, whereas the railroads were not state-constructed 3. SC truck limitation, at least when viewed superficially, affected both interstate and intrastate truckers in approximately equal measure, whereas the Arizona statute clearly burdened interstate railroads much more heavily than intrastate ones. *Therefore, Southern Pacific can be looked at as a case in which interstate commerce was clearly discriminated against, whereas the truck regulation scheme in Barnwell can be seen as merely burdening, but not discriminating against, that commerce c) Kassel v. Consolidated Freightways Corp.(1981) p.359 [Iowa passed a law saying that all trucks passing though the state must be less than 55 feet in length, or 60 feet for doubled



trailors. Consolidated claimed that other states allow for longer trucks and this hindered their interstate shipping. Under the law, city‘s near Iowa‘s border can allow for longer trucks, and Iowa based trucks can leave the state. Conflicting evidence existed as to safety despite a 14 day bench trial. Powell (for a plurality wrote that the ―border cities exemption helped demonstrate the state was not interested in safety but was interested in keeping larger trucks off their roads] a. Do benefits outweigh burden so that burden on ISC is justified? b. Holding:Balancing Test: cost v. benefits: Benefits do not outweigh burden. Minimal safety benefits. Burden on ISC is too great and safety benefits minimal. c. Concurrence: This rule was discriminatory. Questions left after holding: Is it really the Court‘s job to weigh the costs and benefits? Shouldn‘t that be left to the legislature?

Separation of powers is not in the text of the constitution, rather it is a structural argument. It supports strong independent branches. Checks and balances prevents each branch from becoming tyrannical, but interferes with the separation of powers. A.

Executive Authority
General Framework 1. The President cannot make law. The Steel Seizure Case....Presidential Seizure Youngstown Steel & Tube Co. v. Sawyer (1952) p. 392 [Around the time of the Korean War there was a disagreement about a new collective bargaining agreement between steel companies and employees. Union gave notice of intention to strike. President issued Executive Order 10340 for the Secretary of Commerce to seize the steel mills. The Secretary ordered the presidents of the various seized companies to serve as operating managers for the U.S. The next morning the President sent a message to Congress reporting his action. 12 days later he sent another message. Congress took no action. The companies obeyed the orders but brought suit in district court against the Secretary. The district court ordered a temporary restraining order prohibiting the Secretary from continuing the seizure. On the same day, the district court‘s order was stayed by the court of appeals.] a. Was President Truman acting within his constitutional power


when he issued an order directing the Secretary of Commerce to take possession of and operate most of the Nation‘s steel mills? b. Holding: Truman overstepped his constitutional powers. The Constitution gives Congress alone the power of lawmaking, in both good and bad times. c. Reasoning: (Black) Textual analysis: The President may have power to issue this type of order in 2 instances: 1) an act of Congress grants the authority 2) or the Constitution grants the authority It didn‘t come from Congress, so if it came from anywhere, it came from the Constitution. (Black was influenced by a fear of tyranny based on WWII.) d. The Govt. argued: 1. presidential power is implied from aggregate of his powers under the Constitution. Article II: ―The executive Power shall be vested in a President....‖ that ―he shall take Care that the Laws be faithfully executed‖ and that he‖ shall be ―Commander in Chief of the Army and Navy of the U.S.‖ 2. The President‘s power may come from his being Commander in Chief by citing cases which allow broad powers to military commanders engaged in day-to-day fighting in a theater of war. The Court would not interpret these powers as broadly as a power outside theater of war. President‘s power does not come from the several constitutional provisions that grant executive power to the President. The President is to execute laws, not be a lawmaker. His part of lawmaking is limited to recommendations of good law and veto of bad law. Constitution says Congress has to make the laws. Article I. This order directs that a presidential policy be executed in the manner prescribed by the President. He has no authority to do this. Congress has the authority to do what‘s in the order, but the President does not. The Constitution does not subject the lawmaking power of Congress to Presidential or military supervision or control. Congress‘s inaction is not law. Congress can‘t waive its right to act by letting the President act. e. Frankfurter concurrence: Glass of History Theory: Congress has rejected governmental seizure of plants. Since 1916 has granted seizure 16 times, but always w/ limitations and safeguards. This shows that Congress finds seizure to be a drastic act. Taft Hartley Act of 1947 shows Congress made a conscious choice of how it wanted to formulate legislation dealing with industrial conflicts. (But Truman refused to use it, b/c it had been enacted over his veto.) f. Jackson concurrence: (Not so textual, more flexible, sharing of power) ―Presidential powers are not fixed but fluctuate, depending upon


their disjunction or conjunction with those of Congress.‖ He divides such fluctuations into three categories: (1) When President acts with Congress’s authorization, presidential powers are at their maximum. If his acts are then unconstitutional, it means the Federal Govt. as a whole lacks the power. Jackson says not this one b/c Congress didn‘t grant Pres. authority. (2) If Congress is silent on the issue, the pres. powers are uncertain.. Then any test of the power depends on the circumstances. Jackson says not this one b/c Congress has considered seizures already. (3) When Pres. acts against Congress’s will, his power is at its lowest. The Pres. can only sustain his exclusive power if a court disables Congress to act on that subject. Under #3 his order would only be ok if it is beyond the power of Congress. The Solicitor General says power comes from three clauses of Executive Article: 1. ―The executive shall be vested in a President of the U.S.‖ Solicitor General argues this means Pres. capable of all powers the federal govt is capable. Court argues, then why did the framers bother to specify some of his powers. Allowing him unlimited power would lead to totalitarianism. 2. ―The President shall be Commander in Chief...‖ Solicitor argues the Pres. sent the troops abroad, so he has the duty to ensure they have steel. Court argues that Pres.‘s power over foreign affairs is not so unlimited that it is enlarged to include internal affairs just b/c he has sent armed forces to some foreign venture. Constitution expressly give Congress power to ―support Armies‖ and ―provide and maintain a Navy‖. 3. ―He shall take Care that the Laws be faithfully executed.‖ Jackson argues this must be balanced with Fifth Amendment Due Process Clause. Ours is a government of laws, not men. Congress makes the laws, not the President himself. *Solicitor General also argued Pres. power is implied from custom in crisis or emergency. Court argues, the framers knew emergencies would arise, but did not make express provisions for times of crisis. Emergency power might kindle emergencies. Court should not add emergency provision if framers left it out. *Jackson says in order to preserve free government, the Executive must be under the law and the law may be made by parliamentary deliberations. ―Implied power either has not beginning or no end.‖ Jackson feared tyranny. g. Douglas concurrence: Until Congress ratified the seizure it is not lawful. The present exercise of power by the Pres.


would be an expansion of Article II. h. Vinson dissent: Also Glass of History: The order is necessary in emergency to maintain the status quo until Congress can act. The execution of the legislative programs requires steel. A work stoppage would have jeopardized our national defense. Marshall said that the Constitution is intended to endure for ages so must adapt. Vinson mentions other presidential actions taken to enforce laws where Congress may not have expressly provided for the particular method. Pres. was just acting to preserve the legislative programs of Congress until it could act. There must be authority for the President to act in emergency, or else chaos and the problems under the Articles of Confederation will reoccur. 2. President can act in field of international relations w/o congress’s approval. U.S. v. Curtiss-Wright Corp. (1936) p. 474 [Joint resolution of Congress authorized the President to ban the sale of arms to countries engaged in particular conflict. Pres. Roosevelt proclaimed such an embargo and CW was charged with conspiring to sell arms to Bolivia, one of the countries to which the embargo extended. CW challegened JR. a. Was the JR an unconstitutionally broad delegation of legislative power to the President? Assuming (but not deciding) that the challenged delegation, if it were confined to internal affairs, would be invalid, may it nevertheless be sustained on the ground that its exclusive aim is to afford remedy for a hurtful condition within a foreign territory? b. Holding: Supremes upheld JR and resulting presidential embargo. The powers of the Federal Government are different with respect to internal and external affairs. President is granted special powers in foreign affairs. c. Reasoning 1.) Division of power b/w states and Fed. govt.: Federal govt. has exclusive authority over foreign affairs; didn’t come from states, rather from Great Britain. The purpose of the Const. was to give the Federal Govt. powers which had belonged to the state govts. The states never had international powers. 2.) President is the sole organ of govt. w/ regard to foreign affairs. The President alone has the power to speak or listen as a representative of the nation. He alone negotiates the treaties. Therefore, President doesn‘t need act of Congress to exercise in the field of international relations as he is doing here. To avoid embarrassment, Congress must often accord Pres. power to act in int‘l relations. He is better informed of situations abroad because of his confidential sources; diplomats, etc.  How Does Curtis-Wright compare to Steel Seizure Case?


The language of the two opinions seems contradictory. However, two distinctions can be made on the facts of the case: 1. there was Congressional approval in this case. 2. the subject at hand dealt with foreign affairs, an issue the Court tends to afford great deference to the president since it requires the nation to speak in one voice. 3. Congress shifts to Jackson analysis: tri-partite test. (for foreign affairs only?) Dames & Moore v. Regan (1981) [As part of the settlement of the hostage situation, Pres. Carter took a number of actions affecting the claims of American creditors against Iran. The action which posed the most difficult constitutional issue was his suspension of all contractual claims against Iran then pending in American courts; such claims were to be later arbitrated by an international tribunal.] a. Was the suspension of claims beyond the Executive Authority in this case? b. Holding: The President’s actions were within his constitutional authority. Although Congress had never explictly delegated power to suspend such claims to the President, it had implicitly authorized that practice by a long history of acquiescing in similar presidential conduct. c. Reasoning: (Rehnquist) Ct. applies Youngstown (Steel Seizure) analysis but says Jackson‘s three categories oversimplified, b/c don‘t always fit neatly in one. In this case the Pres. was reacting to international crisis which Congress could not have been expected to anticipate. Upholding Pres. authority is supported by ―long-continued practice, known to and acquiesced in by Congress‖, the fact that the plaintiff had alternative forum - the claims tribunal, and the fact that Congress did not disapprove – acquiesced as a result of silence after the act.  Tension between this and Youngstown: In Youngstown, the Ct. concluded that Congressional silence within statutes regarding pertinent issues was indicative that they disapproved of granting the Executive such authority. Here, the Court concludes that statutory silence equals acquiescence. Further, In Youngstown, the Ct. held that Congress‘ subsequent lack of response to the President‘s acts was not indicative of acquiescence. Here, they did. *** Generally, Jackson framework used. For sure, a more lenient test is to be applied for foreign affairs matters.


Test: 1) Congress approves = good 2) Congressional silence = further analysis a) statutory language in related legislation b) subsequent congressional acquiescence c) role of history, is this an area where the pres. has traditionally had broad power? Presidential Immunity 4. To what extent is immunity granted for Presidential Acts?  Generally, absolute immunity is granted for damage claims resulting from official acts. However, injunctive relief is available for illegal official acts. Non-official acts result in no immunity and are prone to liability. Nixon v. Fitzgerald (1982) Fitzgerald brought an action against President Nixon on the ground that he had been discharged from a government position because he had exercised his right to freedom of speech. The Court held, by a five-to-four vote, that the President was immune from an action for damages resulting from acts conducted in his official capacity. The Court worried that: 1) lawsuits would raise unique risks to the functioning of govt. 2) prominence of the pres. would make him an easy target U.S. v. Nixon (we didn‘t read) – Nixon climed that he did not have to release the Watergate tapes because they were protected by the presidential immunity privilege. Accordingly, the tapes were not subject to subpoena the president had been served with. The Court held: 1) with respect to immunity, there was no such right in this context 2) There was privilege of confidentiality pertaining to presidential communications, however, it was not absolute—but when the privilege asserted is simply ―general‖ (as opposed to ―specific‖ privileges like national security), then the privilege can be outweighed by the need to develop facts for a criminal trial. Youngstown (1952) The Ct. granted injunctive relief against Pres. Truman based on the unconstitutionality of his acts. See above.


Clinton v. Jones (1997) There is no immunity afforded to the president for acts conducted in a non-official capacity.

Clinton‘s lawyers argued that the nature of the presidency requires a trial to be postponed to the end of his presidency. Otherwise, the president‘s official capacity would be subject to constant distraction. Hence, rendering undue judicial constraint over the effectiveness of the Executive Office and violating separation of powers principles. The Court disagreed: 1st, exposing the president to judicial processes has happened in numerous occasions in the past. Further, it is unlikely that a flood of merit-less litigation would result. 2nd, if flood does result, much of it will be weeded out by summary judgement. Further, Congress can always pass act providing president with temporary immunity if such problems arise.


 Distinguish from Nixon v. Fitzgerald: Clinton was not President at time of alleged incident

B. Legislative Authority
Congressional Power and the Administrative State 1. Bicameralism and Presentment requirement. INS v. Chadha (1983) p.431 [Art.I, Sec. 8 gives Congress the right to establish rules of naturalization, and by implication, immigration. Congress has always had the power to allow some aliens to stay in the United States despite a deportation order by the Attorney General. However, Congress had always done this by going through the process of drafting a so-called ―private bill‖ and specifically allowing the alien to remain. Rather than go through this over and over again, Congress placed a provision in the Immigration and Nationality Act to allow the House of Representatives to pass a resolution vetoing the decision of the Attorney General/INS/executive branch. Chadha was given permission to stay in the U.S. but the House vetoed and had him deported. He sued. a. Could Congress grant this power to itself—and hence, was the power to pass the resolution was a ‗legislative‘ action requiring bicameralism and presentment? b. Holding: (Formal argument)Typical one-house legislative veto was unconstitutional on two counts: 1. Bicameralism -- Art. I, §1 and 7 -- Both houses must pass a bill before it can become law. 2. Presentment Clause-- Art.I, § 7, cl.2 requires that every bill be presented to the President for has signature, so that he may


have the opportunity to veto it. Is this legislation? It affects the legal rights of someone outside of Congress. a. presumptively, acts of Congress are legislative b. The actions which can be undertaken by only one house are clearly defined (i.e. impeachment, treaties, appointments, committee hearings - art.II §.7 cl.2) c. something constitutes an exercise of legislative power if it has the ―purposes and effect of altering the legal rights, duties, and relations of persons…outside the legislative branch.‖ d. one-house veto effectively displaces ―private bill‖ legislation Dissent, White: (Functional argument) White compares a private bill and the legislative veto. He finds that they are virtually identical (one house approves each, the executive branch gets to make the decision) and the only thing that the legislative veto lacks is approval by one of the houses. That doesn‘t seem to be much of a threat to tyranny, especially since the President and Congress had a consensus on (and both favored) the existing system. Furthermore, Congress is not really delegating anything to itself—they have the power and are just limiting how much they give to the President. This is useful and we should be careful to protect what is useful. It preserves Congress‘s ability to delegate. I.e. McCullough v. Maryland. **Majority‘s counter to White: Not what‘s useful, rather what is constitutional; we must prevent tyranny.  Schapiro Analysis: functionally, we want to have a system which separates laws from enforcing them. We want somebody else (the executive) to enforce the law because otherwise the legislature would not have to pass laws which applied to themselves. Furthermore, we want our laws to be clear (allowing Congress to subsequently reinterpret/refine the law does not allow us to determine what our responsibilities are.) Finally, the real problem here is not that Congress is increasing its power—Congress doesn‘t actually gain any power which it didn‘t have otherwise---it‘s just that we‘re concerned about the particular manner in which Congress our laws to be clear (allowing Congress to subsequently reinterpret/refine the law does not allow us to determine what our responsibilities are.) Finally, the real problem here is not that Congress is increasing its power—Congress doesn‘t actually gain any power which it didn‘t have otherwise---it‘s just that we‘re concerned about the particular manner in which Congress is exercising this part of its power (it seems dangerous).


**Questions left after holding; Is legislative veto really a threat of tyranny? We want to separate functionally the making of laws and the enforcement of laws. Here Congress is making and enforcing. We want to make sure the laws apply to the lawmakers; that the laws are enforced against the lawmakers. We expect clear rules from legislation; we achieve this by having somebody else enforce. Would be secret law making if we let Congress enforce its own laws. Legislative veto still existed after Chada, just had to be exercised by both houses. 2. Congress cannot assign executive powers to a legislative officer. Bowsher v. Synar (1986) p.446 [The Gramm-Rudman Act was designed to achieve certain budgetary goals by the year 1991. If those goals were not being met, the Comptroller General could implement automatic cuts which Congress was forced to carry out. The Comptroller General however, could be removed from office by Congress according to an act passed 80 years earlier.] a. Can Congress have an officer it can remove performing executive functions, or it this a violation of separation of powers? b. Holding: Supreme struck down automatic-reduction provisions of the Act. c. Reasoning: 1) The Act uses the Comptroller‘s ―executive powers‖ because executes laws and makes decisions interpreting laws. 2) executive powers may not be vested by Congress in itself or its agents because Congress is limited to legislative rather than executive functions 3) because Congress can remove the comptroller general, he is an agent of Congress 4) therefore, the Comptroller may not constitutionally exercise the executive powers give to him in the Act 5) The Act‘s automatic budget reduction mechanism which is based on the Comptroller‘s exercise of his executive powers must be invalidated d. Concurrence: (Stevens and Marshall): The comptroller is exercising legislative power by determining budgetary considerations. Since Congress cannot delegate part of its legislative power to the executive branch (Chada), Congress cannot give these powers to the Comptroller. This legislative action lacks bicameralism and presentment. e. Dissent, White: Disagrees that Congressional power to remove equals agency. To him, this case should be approached


from the very common-sense standard of preventing branches from ―encroachment or aggrandizement‖ of another branch. Here, there was no threat of one branch threatening the power of another. Schapiro: Even though Congress might not be drastically increasing its powers and threatening tyranny, we still want them to go through some procedural hoops. Morrison v. Olson: (1988)-p.455{Statute in question required Attorney General to investigate any allegations of wrongdoing against certain high level members of the Executive Branch, and to apply to a special federal court for the appointment of a special prosecutor if he found ―reasonable grounds to believe that further investigation or prosecution is warranted. Once appointed, special prosecutor could only be removed by the Attorney General and only ―for good cause, physical disability, mental incapacity, or any other condition that substantially impairs the performance of her duties‖.] a. Does Act violate separation of powers principle? b. Holding: No. The act is constitutional. c. Reasoning: 1)Because the Attorney General could terminate the special prosecutor for a ―good cause‖, the Executive Branch ―retains ample authority to assure that the counsel is competently performing her statutory responsibilities‖ 2)Congress did not delegate control of independent counsel to itself d. Dissent(Scalia) – Prosecution is an executive function; executive function must be controlled by President; Independent counsel not controlled by President. *must hold Executive branch accountable

A. Background, Early Substantive Due Process
1. History  Bill of Rights was originally interpreted to apply to the federal govt., and not to states, because it was written to protect from tyranny of the national govt. Incorporation, The Rise and Fall of Lochner -- Barron v. Baltimore (1833) p.804 -- S.Ct. held the rights guaranteed in Bill of Rights (the first eight amendments) do not apply to the states. The framers feared the national govt., not the states. People could control state govt.  14th Amendment (1868). 14th Amendment changed traditional analysis since it had a due process clause which applied to the states. The amendment created a debate between individuals who believed the amendment should involve total


incorporation and others who advocated selective incorporation.  Specifies limitations on state power  Broad restrictions on state authority  Will not tolerate states doing terrible things to citizens  Slaughter-House cases (1873)read Privileges and Immunities Clause as not applying to states – state power not limited by P&I clause. 2. The incorporation debate a. Total Incorporation -- 14th Amend. meant to incorporate all of the Bill of Rights. Advantage: very simple – no case by case analysis b. Selective Incorporation -- ―Fundamental Rights‖ approach. The term ―liberty‖ used in the 14th Amendment is to be interpreted by judges without regard to the Bill of Rights. The analysis extends to those rights which are ―fundamental to the ―very essence of the scheme of ordered liberty.‖ Selective incorporation now commands a majority of the Court and only a few rights from the original amendments have not been incorporated against the states. -- Historical evidence exists for both. Little by little, by the end of the 1960‘s basically all of the Bill or Rights were incorporated. -- Two rights still not incorporated: 1. rt. to grand jury, and 2. rt. to a civil jury trial. -- No definite ruling on 2nd Amend.(rt. to bear arms) and 3rd Amend.(rt. not to have troops quartered in your house). 3. Substantive Due Process -- There are some things the govt. just can‘t do. 14th Amend. protects some substantive rights. a. The rise of substantive Due Process Lochner v. N.Y. (1905) p.817 [Legislative issue: New York prohibited bakery workers from working more than ten hours daily or sixty hours per week. Lochner was convicted and fined for employing a baker for more than sixty hours per week. The Court, 5 to 4, reversed his conviction.] a. Was NY statute an abridgement of liberty of contract and therefore a violation of Due Process? b. Holding: (Justice Peckham) Statute unconstitutional – violation of DP clause of 14th Amendment c. Reasoning: 1) not valid labor law – police power extended only to public welfare, not a sufficiently public concern, bakers as a class were not in need of special protection


2) not a health and safety measure – Bakers not an endangered group; working long hours did not affect public health/safety wrt bread production  In every such case, it must be asked whether the law is ―a fair, reasonable, and appropriate exercise of [the police power] , or is it an unreasonable, unnecessary and arbitrary interference with the right of the individual to his personal liberty or to enter into those contracts...which may seem to him appropriate or necessary for the support of himself and his family.‖  Only legislature‘s actual motive will be examined – not hypothetical motive d. Dissent:(Harlan): States should be free to enact any measure reasonably related to health. The New York legislature ―reasonably‖ concluded that there was material danger in this instance and it is not the province of the court to second-guess that reasoning. d. Dissent, Holmes: Holmes believed the majority based its opinion on Laissez faire economic analysis and not constitutional grounds. b. Lochner Criticisms: i. Instrumentalities argument – broad reading of ―liberty to include the ―right‖ to contract ii. Substantive -- Court used the right procedure, just got it wrong : the right to contract is not a fundamental right. The court was too concerned with laissez faire economic analysis. iii. Means-end scrutiny – even though there is freedom to contract, state has right to protect health and safety c. Lochner was overruled by West Coast Hotel under Roosevelt’s New Deal when Court was more deferential to the legislature. West Coast Hotel v. Parrish (1937) Washington enacted a minimum wage law for women. the hotel owner contended the law violated substantive due process because it infringed liberty of contract. The court held that the law reasonably furthered a legitimate public purpose since the ―denial of living wage is not only detrimental to worker health and well being but casts a direct burden for their support upon the community.‖ If gov’t wants to interfere to correct economic inbalances, it can do so. Since the decision


came in the midst of the court-packing fight, Justice Roberts became the ―switch in time‖ that saved nine by changing his vote. d. If a fundamental right is involved, strict scrutiny applies. 1. Generally, the rigid standard for protection of groups under the equal protection clause is also triggered if a fundamental right is burdened (regardless of the characteristics of the people who are burdened.) The Court has recognized three general areas where fundamental rights are at stake: a) the right to vote (and the related right to participate as a candidate) b) the right to use the courts; c) the right of interstate migration e. What is a fundamental right? Meyer v. Nebraska (1923) -- Statute which prohibited any other language but English to be used in schools held unconstitutional. Pierce v. Society of Sisters (1925) -- Law requiring children to go to public schools held unconstitutional because interferes with liberty of parents to raise and control children free from state interference.

B. Modern Substantive Due Process
1. The Right to Privacy Griswold v. Connecticut (1965) p.941 [Connecticut prohibited the use of contraceptives as well as aiding and counseling others in their use. s were director of Planned Parenthood and its medical director who were convicted of counseling married persons in the use of contraceptives] a. Is CN statute unconstitutional as a violation of right to privacy? b. Holding: (Douglas) Court held the statute unconstitutional because it violated the right to privacy. [Amendments 1, 3, 4, 5] Sources: 1. text – generalizing 2. tradition – Griswold – violation of marital relationship -interfere with autonomy(self-definition) -intrusion into home -unusual law(Conn. was the only state that banned) 3. precedent - none c. Reasoning:


1. Several of the Bill of Rights guarantees protect the privacy interest and create a ―penumbra‖ or ―zone‖ of privacy – right of married persons to use contraceptives fell within this penumbra 2. Privacy implications of proof in prosecutions d. Goldberg concurrence 9th Amend. says the inclusion of some rights does not mean that those are the only rights. He found the right of ―marital privacy‖ to be a fundamental right. e. Harlan Concurrence: Focuses on 14th Amendment. 14th A. does not just incorporate the Bill of Rights, but also protects those basic values ―implicit in ordered liberty.‖ Ordered Liberty -- We must balance the demand of liberty in an organized society. Harlan was careful to stop short of finding a general right to privacy of sexual relations. He explicitly rejected the idea that adultery, homosexuality, fornication and incest were protected by the same right to privacy. Because the state encourages and permits marriage, it should not be able to regulate it. But these others are forbidden, so can be regulated. f. Black’s Dissent: Nowhere in the constitution does it give the court the right to invent new rights. Black is a strict total incorporation proponent and believes the Bill of Rights are the only fundamental interests. He also believes in natural law.  Fundamental right – strict scrutiny -must be narrowly tailored to advance compelling gov‘t interest

Eisenstadt v. Baird (1972) p.954 -- Court applied rational basis to statute prohibiting the sale of contraceptives to unmarried couples and held statute unconstitutional because it treats married and unmarried couples differently. If cannot prohibit sale to married couple, can‘t prohibit sale to unmarried because couple is made up of individuals each with a separate intellectual and emotional makeup. ―If the right of privacy means anything, it is the right of the individual, married or single, one has to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.‖ 2. Abortion Roe v. Wade (1973) p.955 [Texas made it a crime to ―procure an abortion‖ except upon ―medical advice for the purpose of saving the life of the mother.‖ Jane McCorvey, who the Court assigned the identity of Jane Roe, challenged the validity of the statute.]


a. Is statute banning abortion a violation of right to privacy? b. Holding (Blackmun): Invalidated Texas’ nearly complete ban on abortions on privacy grounds. c. Reasoning: i. Right to privacy is a ―fundamental right‖ under the 14th Amendment. The legislature has only a limited right to regulate and may not completely proscribe abortions. ii. Trimester Framework: Court divided pregnancy into trimesters: 1. During first trimester, a state may not ban, or even closely regulate abortions. Decision is left to the woman and her doctor. The mortality rate for mothers having abortions during first trimester is lower than that of full-term pregnancies, so state has no compelling interest in protecting the mother‘s health. 2. During the second trimester, the state may protect its interest in the mother‘s health by regulating the abortion procedure in ways that are ―reasonably related‖ to her health. State may not protect fetus‘ life. 3. During the third trimester the fetus becomes ―viable‖ -has a ―capability of meaningful life outside the mother‘s womb.‖ Therefore the state does have a compelling gov.t interest in protecting the fetus. But abortion must be permitted if necessary to preserve the life or health of the mother. Planned Parenthood of Southeastern Penn. v. Casey (1992) p.990[At issue – PA statute placing a number of significant restrictions on abortion, such as a requirement that the woman will wait for 24 hours after receiving from a doctor certain information about abortion, and a requirement that a married woman notify her husband of her intent to abort.] a. Was PA statute Constitutional? b. Holding: i. Upheld informed consent ii. struck down spousal notification iii. Upheld parental consent iv. upheld record-keeping c. Reasoning: [Joint opinion written- O‘Connor, Souter, and Kennedy] 1. Constitution places limits on States‘ right to interfere with a person‘s most basic decisions about family and parenthood


2. Decision should be left to woman alone – personal decision 3. Stare decisis – court should not lightly overturn precedent a) Roe not unworkable b) Reliance c) Legitimacy of court would be undermined – should not surrender to political pressure 4. Undue burden standard – ―only where state regulations imposes an undue burden on a woman‘s ability to make [the decision whether to abort] does the power of the state reach into the heart of liberty protected by the Due Process Clause. -trimester approach rejected -regulations must attempt to protect a compelling governmental interest -any pre-viability abortion regulation must survive strict scrutiny  REAFFIRMED: i. recognition of ―the right of the woman to choose to have an abortion before viability and to obtain it without undue interference from the state‖ ii. a confirmation of the State‘s power to restrict abortions after fetal viability, if the law contains exceptions for pregnancies endangering the woman‘s life or health iii. a recognition of the state‘s ―legitimate interests from the outset of pregnancy in protecting the health of the woman and the life of the fetus…‖  OVERTURNED 1. Abortion‘s status as a fundamental right 2. State‘s almost complete inability to regulate first trimester abortions 3. Trimester framework d. Dissents: [Rehnquist, White, Scalia, Thomas] *would have upheld all the provisions of the PA statute Rehnquist: no fundamental right to abortion; stare decisis need not be applied Scalia: right to abortion not protected by the Constitution; also rejected stare decisis in this case 1. Constitution does not say anthing wrt abortion


2. Long standing traditions of American society have permitted it to be legally prohibited Other Privacy Rights Bowers v. Hardwick (1986) p. 1030 [ challenged GA statute making it a crime to perform or submit to ―any sexual act involving the sex organs of one person and the mouth or anus of another.‖ Statute on face did not distinguish between heterosexual and homosexual activities] a. Does the Federal Constitution confer a fundamental right upon homosexuals to engage in sodomy? b. Holding: Statute upheld against substantive due process attack (5-4) c. Reasoning: (White) 1) Cases recognizing right of privacy for matters of family, marriage, or procreation did not bear any resemblance to right of homosexuals to practice sodomy 2) Not a fundamental right -fundamental rights are those liberties which are implicit in the concept of ordered liberty -historical outlaw on sodomy 3) Privacy of home irrelevant 4) Court should be reluctant to expand substantive reach of 5th/14th Amendments when not rooted in Constitution *Compelling state interest to preserve conventional morality d. Dissent (Blackmun): The dissenters argued for recognition of an expansive right that all individuals have in controlling the nature of their intimate associations with others. Also, analysis included the right to engage in intimate relations which were nonreproductive. Justice Blackmun argued for the a right to be let alone. Right to Die Cruzan (1990) 1. Court assumes right of competant people to refuse medical treatment 2. Right to die by refusing food and hydration 3. Is there such a right that involved refusing medical treatment? Glucksberg (1997)-suppl.143[Washington statute – ban on promoting a suicide attempt – statute made it a felony] a. Does the liberty specially protected by the due process clause include a right to commit suicide which itself includes a right to assistance in doing so?[very high level of generality] b. Holding: No right to commit suicide.


c. Reasoning: 1) no traditional/historical right – longer history of making suicide a crime 2) no fundamental right a)not deeply rooted in history and tradition b) distinguished from Cruzan – forced medication battery at CL; long tradition protected decision to refuse unwanted medical treatment – suicide has never included similar protection 3) State had to show ban on suicide was rationally related to a government interests -interest in preserving human life -protect medical profession -protect vulnerable groups    No generalized right to commit suicide Left open to ―as applied‖ cases States are free to permit assisted suicide

A. Introduction: Race and the Constitution-- History of the
14th Amendment -- The 14th Amendment was motivated by concerns about race. 1. Race and the Constitution: When the Constitution was ratified, slavery existed. Slavery was provided for in the constitution. It required that states return escaped slaves. Says Congress cannot bar the importation of slaves. But it never mentions the word ―slavery.‖ 2. Dred Scott (1857) -- First case addressing slavery by the S.Ct  Supreme Ct. held Mo. Compromise unconstitutional – territories could not outlaw slavery  Blacks could not be citizens, therefore Supreme Court did not have jurisdiction 3. Civil War 4. 13th Amendment (1865) -- Banned slavery. 5. 14th Amendment (1868) – Equal Protection Clause  First sentence ―All persons…‖ – Dred Scott overruled  ―shall not deny any person within jurisdiction Equal Protection of the laws‖ 6. 15th Amendment (1870) -- Right to vote regardless of race. 7. Civil Rights Act (1875) -- Prohibited private owners of public places from discriminating. S.Ct. held unconstitutional because Congress only had power over state actions, not over private actions. (Civil Rights cases 1883) Plessy v. Ferguson (1896) p. 513 -- The Court upheld a Louisiana law


calling for separate-but-equal accommodations for white and black railroad passengers. Plessy was 7/8 Caucasian. Court felt it could not force integration of social settings. 1. Ct. applies reasonableness standard and decides statute is reasonable 2. No badge of inferiority. If inferior, that‘s just a label the black people put on it, don‘t blame the law. 3. People don‘t like to mingle and there‘s nothing the law can do about it.  Dissent, Harlan: Statute infringes on personal liberties. The law is designed specifically to keep blacks from white coaches. 1) purpose/context 2) constitution is colorblind Brown v. Board of Education I (1954) p. 523 – *Ct. explicitly rejected “separate but equal” doctrine – at least with respect to public education *overruled Plessy Segregation held unconstitutional: 1. badge of subordination – purpose of segregation 2. social science -- segregation interferes with educational development 3. stigma -- segregation feeds a feeling of inferiority Reasoning: Even where all black, all white schools were equal with respect to tangible factors, intangible factors prevented black students from receiving equal education. Things arising out of Brown I: 1. overruled Plessy: Two ways of ignoring stare decisis: 1) just say it was wrong 2) say things have changed. Court said education is more important than it used to be. 2. originalism: 14th Amend. -- As the time the Equal Protection clause was put into the constitution, there was segregation. Therefore, racial segregation was in existence when the 14th Amend. was written and segregation was implicitly accepted by writers. You could argue we don‘t interpret the constitution as ratifying the status quo. 4. Cold War: The brief for Brown talked about the Cold War and the fight against communism. Moral purity of the nation was important; beacon to the rest of the world. Much of the rest of the world is not white It is a problem to say U.S. has a superior society with racial segregation. It is a blemish on U.S. reputation. This wasn‘t long after WWII claiming victory over the Nazis and facism and racial superiority and religious segregation. Hard to make argument that US was supreme world power when allowing segregation Bolling v. Sharpe (1954) -- D.C. schools were run by the


federal govt. and it was argued that the 14th Amend. only applied to states, not the federal govt. Court held it would be unthinkable for segregation to exist in D.C. schools when it was prohibited in states. Out of necessity, the Equal Protection Clause must apply to the federal govt. Brown v. Board of Education II (1955) p.530 -- Implementation of Brown I. Court held Brown I needed to implemented ―with all deliberate speed.‖ This didn‘t mean now, just had to start implementing. Why did the Court decide not now? -- administrative problems -- slower process might lead to better social reconciliation – people were not used to integration – ―all hell‘s going to break loose‖ B.

Rational Basis Scrutiny -- Are the means rationally related to the

end; a legitimate government purpose? Generally, if not a suspect class, Court uses a very deferential standard. Basically lets govt. do what it wants.  Rational Basis Review: 1. rationally related to 2. legitimate government interest Application of Rational Basis Review 1. When there’s no suspect classification, Court will uphold statute if there is some rational relation b/w legitimate govt. objective and means. New York City Transit Authority v. Beazer (1979) -p.561 [The NYC Transit Authority refused to employ persons who use methadone. The District Court found this violated the Equal Protection Clause. Ct. of appeals affirmed.] a. Does TA‘s refusal to employ individuals who use methadone violate the Equal Protection Clause? c. Holding: No matter how unwise the decision not to employee methadone users, the Constitution does not authorize the federal court to interfere in policy decision. This policy does not circumscribe a class of persons or create a likelihood of bias on the part of the ruling majority. The specifications created by TA serve the general objectives of safety and efficiency. Classifications are valid if they bear a rational relationship to objectives. On the whole, it is rational – tough luck if you are part of the group toward which bias is shown overinclusive – not all methodone users unemployable; just


as good as other people at doing their job underinclusive -- does not include epileptics, recovering alcoholics, groups who present similar concerns. Means-ends test: Are the means rationally related to the end? Depends on how you define the end. We have to police the ends the govt. is looking to. 2. ―One Step at a Time‖ approach Railway Express Agency v. NY (1949) p.570 -- Statute said you can‘t pay people to advertise on their trucks, but can advertise on their own trucks. Objective of statute was to rid the streets of distracting ads. Challenged as underinclusive - both types of ads are distracting. Court upheld statute and said can do step-by-step and don‘t have to do all at once. 3. Special interests Williamson v. Lee Optical (1955) -- Statute said opticians can‘t make new glasses without prescription. Can‘t even take old glass and put in new frame. Court held this did not violate equal protection. -if there is some rational basis, court will not 2nd guess the intent 4. Empirical Connection Minnesota v. Clovver Leaf Creamery Co. (1981) -- Statute banned sale of milk in plastic containers. Okay to sell in paper containers. Govt. argued paper more environmental. Court held constitutional because ct. will not interfere w/ policy decisions. City of Cleburne v. Cleburn Living Center (1985) p. 577 (One of the only cases striking down a regulation using rational basis.) [The City required a special use permit for operation of a group home for mentally retarded people, but not for nursing homes, sanitariums, hospitals, or homes for convalescents or aged.] a. Has the city violated the Equal Protection Clause by requiring a special use permit only for homes for the mentally retarded? b. Holding: Regulation is a violation of Equal Protection Clause. c. Reasoning:  ct. does not say mentally retarded are suspect class  zoning ordinance is underinclusive and arbitrary Court says it‘s using rational basis, but may actually be applying strict scrutiny. Requiring a permit in this case appears to rest upon an irrational prejudice against the mentally retarded. (Emanuel--The court uses more rigorous review than ―mere rationality‖ normally given to purely economic regulations.) The


City‘s concern for resident‘s fears is not a permissible basis for treating the mentally retarded differently when the fear is unsubstantiated. The concern about it being across the street from a junior high is irrational because the school is attended by 30 mentally retarded students. The concerns of the home being on a flood plain, about who would take legal responsibility and the size and number of people are all no different than concerns the city would have for any other group. (Emanuel--this reasoning rejects the ―one-step-at-a-time‖ approach) Stevens concurring: He asks himself whether an unbiased lawmaker would believe the classification serves a legitimate public purpose that transcends the harm to the members of the disadvantaged class. Marshall concurring in judgment, dissenting in part: This case was held invalid on heightened scrutiny grounds, not rational basis grounds. 5. Stated v. actual purpose: Court does not look for actual purpose. U.S. Railroad Retirement Board v. Fritz (1980) p.579 [Before 1974, retired persons could receive both Social Security and railroad retirement system benefits. In 1974, Congress restructured the system in order to make it financially sound by eliminating future accrual of dual benefits. The Appellees claim that depriving ―inactive‖ workers while still giving benefits to ―active‖ employees violated the equal protection of the 5th Amendment‘s due process clause. The District Court agreed and held in violation of equal protection and not ―rationally related‖ to purpose of insuring the solvency of the R.R. retirement system.] a. Does Congress‘s taking of benefits from some past employees, but not taking from present employees violate equal protection of the 5th Amendment due process clause? b. Holding: So long as there was a ―plausible‖ reason for Congress to have made the classification scheme it did, lowest-level equal protection review was satisfied; it was ―constitutionally irrelevant whether this reasoning in fact underlay the legislative decision, since the Ct. had ―never insisted that a legislative body articulate its reasons for enacting a statute. Process based attack: Petitioner argued this was just special interest legislation. Court won‘t strike down just for that reason. The Court has consistently refused to invalidate on equal protection grounds legislation which is simply deemed unwise. Therefore, the plain language of the statute ―marks the beginning and the end of our inquiry.‖ Congress could have eliminated the benefits to all, so it can eliminate from some.


Legitimate govt. interest? Statute was designed to benefit career R.R. workers. Congress‘s purpose could have been to keep benefits for those who are more entitled to them = equitable. It is doing so by giving benefits to those who pursue careers in the R.R. industry. The Court has never required the legislature to articulate its reasoning. The Congress was not misled. 1) identify legitimate gov‘t interest 2) see if scheme is rationally related to legitimate gov‘t interest Stevens concurring: There must be a correlation b/w the classification and either the actual purpose or a legitimate purpose the court reasons to have been the motivation of the legislation. In this case, the court need not look further than the actual motivation; the congressional purpose was to eliminate dual benefits. Instead of doing in immediately, it chose to phase them out. Brennan dissenting: 1. What is the purpose? 2. Is the classification rationally related? The purpose here is not rationally related. The purpose of the 1974 act was to retain benefits to those who‘ve already earned them. The classification deprives some and not others. Need to go beyond the plain language, b/c the plain language does not give the purpose. Can‘t deduct the purpose from the results as the Court did here. The actual purpose must be the primary basis for analysis under the rational basis test. Congress was misled. If we don‘t find the actual purpose, we will end up with a tautology. 6. Selectively enforced legislation will be subject to rational basis review. Court is similarly deferential to executive enforcing, as to legislature writing law.  Rational Basis: 1) differential standard 2) problem of tautology 3) actual purpose/any purpose 4) process – rationally related to gov‘‘t interest

C. Strict Scrutiny: Race
Race-Specific Classifications that Expressly Disadvantage Racial Minorities.

WHY WE APPLY STRICT SCRUTINY TO RACE: 1. history – 14th Amendment – race was a central concern 2. stigma/caste – immutable, identifiable 3. political process – certain types of prejudices blind us to underlying interests – some groups will always lose in political process


Strauder v. West Virginia (1879) p.595 [Strauder, a black man, was convicted of murder by an all white jury in West Virginia, where blacks were not allowed to serve on juries.] a. Does every citizen of the U.S. have a right to a trial of an indictment against him by a jury selected and impaneled without discrimination against his race or color? b. Holding: The 14th Amendment was designed to assure blacks the enjoyment of civil rights that under the law are enjoyed by white persons, and prevent states from depriving blacks of equal protection. This means laws in States shall be the same for blacks as they are for whites. Every citizen is entitled to a trial by a jury selected without discrimination against color. Wrong to limit jury service based on race, but would be OK based on gender, property ownership, etc. Facially discriminatory Korematsu v. U.S. (1944) p.596 [Involved a post-Pearl Harbor military order excluding all persons of Japanese ancestry from certain areas of the West Coast, and resulting in their effective imprisonment. The order was applied against citizens as well as non-citizens.] a. Was it beyond the war power of Congress and the Executive to exclude those of Japanese ancestry from the West Coast War area at the time they did? b. Holding: Ct. upheld the order, despite its suspectness. c. Reasoning: There was a compelling need to prevent espionage and sabatoge, and there was no practical and sufficiently rapid way for the military to distinguish the loyal from the disloyal. All legal restrictions which curtail the civil rights of a single racial group are immediately suspect, but not necessarily unconstitutional. Courts must subject them to rigid scrutiny. Pressing public necessity may sometimes justify the existence of such restrictions. Exclusion of those of Japanese origin was deemed necessary b/c of the presence of an unascertained number of disloyal members of the group. The military authorities concluded that curfew provided inadequate protection and ordered exclusion. It was impossible to immediately segregate the loyal from the disloyal. Hardships are part of war. Citizenship has its responsibilities as well as its privileges. To cast the case into outlines of racial prejudice, without reference to the real military dangers which were presented, merely confuses the issue. Racial classifications are entitled to strict scrutiny. d. Murphy, Dissent: We must respect military decisions, but there must also be limits on military discretion. Military decisions must still be subject to judicial determination of reasonableness. This exclusion of all Japanese was not


reasonable. It was based on racial prejudice. Doesn‘t even pass rational basis scrutiny. e. Jackson, Dissent: The majority seems to be saying that military decisions are not subject to the constitution. He disagrees. Irony of Korematsu: Majority said it passed strict scrutiny and the minority said it didn‘t even pass rational basis review. Non-Race-Specific Classifications that burden minorities. a. Racially discriminatory impact gets rational basis review. Washington v. Davis (1976) p. 610 -- Court held verbal test to get on Washington D.C. police force was not unconstitutional. Test was neutral – served other ends – purpose was not to discriminate. The test had a racially discriminatory impact, but must have a racially discriminatory purpose to get strict scrutiny. Racially disparate impact gets rational basis. Examine intent of statute. How do we prove intent to discriminate? Look at effects – if they are bad enough, maybe intent to discriminate can be shown. b. Have to prove there was racially discriminatory purpose in your case. McClesky v. Kemp (1987) p.623 -- Black man convicted of murder tried to prove with statistics that Georgia uses the death penalty in a racially discriminatory manner, and therefore his equal protection rights have been violated. Court held he must show he was specifically discriminated against. Court applied rational basis review. Dissent: May be a place for discretion, but if biased, must get rid of it d. Selective Indifference is somewhere b/w purpose and intent. There are different views at to what standard should apply. *Rational Basis – facially neutral with mere disparate impact *Strict Scrutiny – 1. Facial discrimination 2. intentional discrimination – even if ―facially neutral‖ 3. race specific classifications that disadvantage racial minorities Race-Specific Classifications that are Facially Neutral. => Strict Scrutiny


Loving v. Virginia (1967) p.635 -- Virginia miscegenation statute held unconstitutional. S.Ct. rejected argument that statute fair because treats blacks and whites equal. Strict scrutiny applied because state was classifying based on race. To be upheld, statute had to have some permissible objective, independent from the racial discrimination the 14th Amendment is trying to eliminate. *falls in between categories *facial discrimination – mentions race in statute *facially neutral but should apply strict scrutiny Washington v. Seattle School District (1982) p.637 – [Local school board was using busing to integrate schools. Statewide initiative said local school boards could not use busing to integrate.] *S.Ct. held this is a race specific classification and is subject to strict scrutiny. It may appear on its face to be neutral, but it made it more difficult for certain racial and religious minorities to achieve legislation that is in their interest. Relocation of governmental decision-making power must be done in a racially-neutral manner. This holding did not up hold bussing per se; if state had reasserted control over all local school matters, probably would have been constitutional. Crawford v. Los Angeles Board of Education (1982) p.643 [Amendment to California state constitution prevented state courts from ordering mandatory busing unless a federal court would order such busing to redress a violation of the 14th Amend.] a. Court upheld amendment, holding that since the state had gone further in enforcing the right to racially-balanced schools than the federal constitution required, it should be free to return in part to the federal standard. There was no evidence of discriminatory intent. Distinctions between the two cases: -- Crawford was not trying to restructure the political process. -- Crawford was not about process, rather whether you have a right to de facto or de jure segregation. -- Mere repeal is not subject to strict scrutiny. Selectively changing the political process is subject to strict scrutiny.


CEE v. Wilson[Prop. 209- provides that the state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethicity, or national origin in the operation of public employment, public education, or public contracting.] *practical effect was to eliminate affirmative action a) unconstitutional under Seattle School district – gets strict scrutiny Race-Specific Classifications that benefit racial minorities. (Affirmative Action) Summary of cases statute standard const./uconstit. Fullilove(1980) federal ? const. Croson (1989) city strict unconst. Metro Broad.(1990) federal intermediate const. Adarand (1995) federal strict ? Bakke, Regents of the University of California v. (1978) p.649 -- UCDavis set aside 16 seats for minorities. There was no majority opinion, Powell wrote the controlling opinion. Powell said this particular kind of quota is unconstitutional, but a plan that merely uses race as a plus would be constitutional. Strict scrutiny for these quotas. Powell‘s two compelling state interests: 1. remedial -- remedy prior discrimination 2. diversity in education Fullilove v. Klutznick (1980) p.650 -- Federal govt. act required that 10% of funds granted for construction projects had to be used for minority contracts. Act was held constitutional. No clear standard of review was set out. No majority opinion. City of Richmond v. Croson Co. (1989) p.652 –[City had a set aside program virtually identical to that in Fullilove, which required set aside 30% of city contractor‘s subcontractors to be minorities.] Standard: Strict scrutiny because city didn‘t show compelling govt. interest. Holding: Remedying past discrimination is a compelling govt. interest when show past discrimination. City didn‘t show any prior discrimination. City showed statistics showing city 50% minority, but only .67% of the subcontractors were minorities. O‘Connor said you can‘t use societal discrimination (general societal biases people have) for enacting racial preferences. Plan has to be narrowly tailored. There were other ways city could have accomplished the same thing; could have used race neutral


means to help those truly disadvantaged. Perhaps 30% was too high. Justifications for strict scrutiny: 1. history/purpose of 14th Amend. -- 14th Amend. written to make everybody equal, but since not equal can use affirmative action to bring blacks up. 2. stigma/caste 3. political process -- if process arguably hinders minorities, then apply strict scrutiny Argument for rational basis for affirmative action: Default standard is rational basis; give deference to the legislature. But if there is racial subordination involved, then use strict scrutiny. Affirmative action does not involve racial subordination, so use rational basis. Argument for strict scrutiny for affirmative action: Default standard is rational basis unless race involved. Race is involved in affirmative action, so strict scrutiny applies. Adarand Construction Inc. v. Pena (1995) p.672 -- Overrules Metro Broadcasting. Strict scrutiny applies to race classifications by city, state, and federal gov‘t. Used socially and economically disadvantaged groups for preferences, but they were based on race; assumed socially and economically disadvantaged if minority. Court held that Congressionally-authorized race-conscious affirmative action programs must be subject to strict scrutiny. Doesn‘t matter whether it‘s a state or the fed. govt. It may be upheld if it is necessary to achieve a compelling governmental interest. Three principle factors used by O‘Connor: 1. skepticism - heightened 2. consistency - colorblind 3. congruence - fed.=state, 5th=14th Hopwood v. Texas (1996) (US Ct. of Appeals – 5th Circuit) – [U TX law school – discriminates in favor of minority applicants, giving substantial racial preferences in admissions program] a. Does 14th Amendment permit law school to discriminate in this way? b. Holding: Any consideration of race or ethnicity by the law school for purposes of achieving a diverse student body is not a compelling interest under the 14th Amendment *Remedying past discrimination is a compelling govt. interest, but diversity is not because it lumps all minorities


together and furthers stereotypes. Compelling govt. interests: 1. remedial - remedying past discrimination-- yes a. not mere social discrimination b. Court has not decided whether applies to private actors, but O‘Connor implied that it would c. problem of proof - statistics not enough, but can be evidence 2. diversity - not sure if is a compelling govt. interest a. Hopwood --no b. Baake -- one concurrence said yes (Neither of these were S.Ct.) C.

Intermediate Scrutiny: Gender -- Substantially related to a

govt. interest Development of Intermediate Scrutiny 1. How are gender and race similar and different? a. history/purpose of 14th Amendment i. no heightened scrutiny: Was written motivated by race concerns. There was evidence of gender discrimination at the time was written. Women couldn‘t vote. Discrimination continued after 14th Amendment ii. for heightened scrutiny: There is a history of discrimination against women. At the time 14th A. was written there was segregation in schools, but Brown changed that. Practice at time of 14th A. too narrow. b. stigma/caste -- immutable, history of discrimination against women (strongest case) c. political process -- Women couldn‘t vote, but can vote now. Old discriminatory laws still linger; it‘s harder to repeal a law than pass a law. Women are not a discrete and insular minority. Groups unwilling to make alliances with women. Women are underrepresented. 2. Why don’t we use strict scrutiny for gender? a. We‘re less concerned about it. b. There is a real difference b/w men and woman, there is not real difference b/w blacks and whites. c. Frontiero v. Richardons Craig v. Boren (1976) p.703 -- Discriminated against men with regards to beer. Govt. objective was to prevent drunk driving. This is an important govt. interest, but the means are not substantially related to the end. U.S. v. Virginia (1996) –suppl.82 [VMI is a public institution that did not admit women. Created a separate school for women. Is this


an adequate remedy?] Standard: ―exceedingly persuasive justification‖ used by Ginsberg. Rhenquist felt this was more than intermediate - substantially related to important govt. interest. VA justifications: 1. diversity of educational options/single sex opportunity 2. unique adversative approach Ginsberg: response to interests: 1. different opportunity for men than for women a. only for men b. not the actual purpose 2. adversative approach: We can‘t generalize that woman won‘t want to do it also. The goal is supposedly to create citizen soldiers, but this is not the only means to that end. The remedy VMI set up is inadequate. Lacks the endowment and prestige. Scalia‘s Dissent: Tradition --- We‘ve always had single sex military schools. They existed when the 14th A. was written. Court is there to preserve values.

E. Sexual Orientation
Is homosexuality a suspect class? Some argue it can‘t be, because can‘t make a suspect class out of a class of criminals. Should discrimination against homonsexuals be subject to heightened scrutiny? Bowers v. Hardwick is a BIG problem! 1. There is a history of discrimination against homosexuals. 2. Stigma --You can‘t really change being homosexual and it‘s such a central part of identity that it seems wrong for the govt. to ask. Not identifiable. 3. Political process -- Heterosexuals can‘t identify with homosexuals to be with them in the political process. Homosexuals can hide. Watkins v. United States Army (1990) p.765 -- (Was vacated and decided on a different ground, but makes a compelling argument for strict scrutiny for homosexuals.) Facts: Watkins enlisted in the Army at 19 and on his initial medical form checked ―yes‖ to homosexual tendencies. His homosexuality never interfered with his performance. In 1981 new Army regulations came into effect and he was given notice of dismissal because he was homosexual. Interests given: Soldiers don‘t like homosexuals and they will affect their performance. Majoritarian morality -- it’s okay for majority to impose morality. Emotional attachments undermine military. Security risk. Holding: (Norris) The fact that homosexuals are an unpopular group is no justification; the same was once true of blacks. This is not a


compelling govt. interest. Can’t use immorality as a compelling govt. interest. Loving case tried to do the same. The other interests are compelling govt. interests, but not narrowly tailored to meet the end. Overinclusiveness is not okay under strict scrutiny (is okay under rational basis). If make being homosexual grounds for discharge, make it a security risk. Dissent, Reinhardt: He is a very liberal judge, but believes if we can criminalize it, we can‘t protect it. Steffan v. Perry (D.C. Cir. 1994) p.771 Facts: Steffan was discharged from the Naval academy for being gay. Standard: Rational basis Holding: He won under rational basis below, but this court was deferential to military conduct. The military is assuming homosexuals will engage in conduct. Steffan argued it‘s irrational to make that assumption. Dissent: In rational basis, probably okay to assume may have propensity to commit a crime. Romer v. Evans (1996) –suppl.p.106 Facts: Amendment to Colorado constitution that protected homosexuals was enjoined by trial and Col. S.Ct. Standard: rational basis – very hard to fail rational basis test Holding: Selectively disenfranchising: Makes it more difficult for one group to get protection from govt. = denial of equal protection. Desire to harm politically unpopular group is not a legitimate govt. interest. Animosity towards the group is irrational. Cleburn Taking away from a group political power at a local level. Seattle School District. Impact: Says there is something wrong with discrimination against gays, but doesn‘t say how wrong. Could just be removal of political power, or could be more. Court clearly applies rational basis, but it‘s a different kind of rational basis. Dissent(Scalia) – historical argument – hostility towards gays has been OK, therefore it is OK now

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