Law School Outline - Constitutional Law Outline

Conlaw Outline SOURCES AND METHODS OF JUDICIAL DECISIONS I. Underlying Goal: Judicial decisions must be predictable; not arbitrary and capricious. For our system to work [where citizens respect and rely on the judiciary] judges must use accepted methodologies. 1. Textualist: Look first at the text to find support for your position. a. Support i. J. Black: “no law means NO LAW.” ii. Limits discretion available to judges b. Critique i. When textual ambiguity arises, this methods inadequate. 2. Original Intent [of the Framers]: a. Support: i. Judicial decision-making seems less subjective b/c applying intent of drafters. b. Critiques: i. History reflects its interpreter (Objectivity problem) 1. E.g. Federalist Papers frequently used, but were written after the constiutional Convention and used primarily to advocate ratification. ii. Difficult to comprehend and locate accurately. 1. Reason:: a. Meaning of language has changed since 18th century. iii. Many of the issues that come up were never discussed by framers. 3. Natural Law: a. Popular when Constitution was written. b. Problem i. Modern judges have used NL to justify their own notions of justice. c. Current State: i. NL has generally fallen out of favor, but it can sway borderline arguments one way or another. 4. Pragmatism a. Defined: use bit and pieces of other methodologies; anything that works. i. Rejects notion of a preferred technique for reading the constitution. b. In practice: Pragmatists use text, intent and philosophical arguments to argue for a particular reading. c. Support: i. Affords flexibility (resulting better decisions than any one technique affords). 5. Following Precedent - When and how should the court strictly follow precedent and how do we differentiate the fact that sometimes (albeit infrequently) the court overrules itself. a. Example: Planned Parenthood v. Casey i. Significance: O‟Connor majority argument demonstrates reluctance to overrule precedent. ii. Disposition: Roe not to be overruled b/c underlying technical knowledge and moral understanding behind abortion did not change. iii. Standard: Overruling precedent only justified when: 1. Circumstances change, AND 2. When there is a compelling reason to overrule. iv. Practice: 1. S. Ct. almost never overturns a previous decision concerning statutory construction. 1 a. Rationale: If Court was “wrong” in interpreting what Congress intended a piece of legislation to be, Congress can simply overturn the SC construction by re-writing the statute. 2. S.Ct is much more likely to overturn a constitutional decision in large part b/c amendment process is difficult. v. vi. Arguments in support of following precedent: 1. Furthers stability and predictability in law, resulting in an increase in public confidence and faith in the courts. But see: Scalia dissent 1. We do not have to worry about public perception of Court, but instead explain principles, to justify a decision. 6. Courts as agents of founders or; Courts as partners of legislature (working on same goals). II. Competing interpretations of the Constitution: Formalism v. Functionalism. a. Formalism: Separation of powers strictly construed, in accordance w/ the Constitution‟s text and structure. b. Functionalism: Policy-awareness in interpretation. Focus on fulfilling the goals and purposes of the Constitution (SOPs, for example). SC AUTHORITY TO REVIEW ACTS OF CONGRESS A. Invalidation of Federal Laws: a. Judiciary decides Constitutionality: (holding of Marbury)  If the Supreme Court identifies a conflict b/w a constitutional provision and a federal statute, the Court has the authority (and the duty) to declare the statute unconstitutional and refuse enforcement.  Legal and individual rights reviewable; political acts are not.  How do we differentiate b/w the two? b. Controlling Case: Marbury v. Madison 2 i. ii. iii. Facts: Judge seeking writ of mandamus to compel delivery of his commission by the sitting President. Issue: Which branch of the government shall have the final say in interpreting the constitution. Disposition: Writ not permissible, because statutory authority relied on is unconstitutional and thus unenforceable. The Court says that the withholding of the commission involves a legal right (as opposed to political right), and is thus reviewable in the first place  Establishes that the federal courts have the power of judicial review. iv. Controversy: The Const. does not explicitly give the judiciary the power to declare statutes unconstitutional. c. Arguments For Judicial Review:  Judicial Review is Commensurate with the Purpose of a written constitution 1. It is the purpose of a written constitution to establish a fundamental and paramount law. It follows that any act of the legisl. repugnant w/ the Const. should be declared void. 2. It is the province and duty of the judiciary to say what the law is, including the law set out in the Constitution. To deny courts from declaring legislative acts uncon., we would be saying that they “must close their eyes on the constitution and see only law;” this is counter to the purpose of a written constitution  Counter Arguments: o Judiciary oath: other officers take a similar oath o o Judicial role: SC explicit role is only to adjudicate cases). Supremacy clause: Plain text prohibits only state judges and state law from being at variance with the Constitution). All Cases provision: “Judicial power shall extend to all cases, in Law and Equity, arising under this Constitution" (AIII, §2)  but see judicial power extends to FQ cases, but this does not grant judicial review necessarily o  Political Science arguments for JR:  Framers‟ intent: (despite absence of explicit authorization)  Social policy: counter majoritarianism (Judicial review satisfies the need for a government branch, to protect against the will of the majority and to uphold the constitution). Political utility: Legislature can pass what the constituents want and stay popular.  SC REVIEW OF STATE COURT DECISIONS A. Invalidation of State Laws: 1. General Status of Law: 3    Through its appellate jurisdiction, the Supreme Court may review FQ cases from the state's highest court. State court decisions will stand unless they conflict US const, federal statute, or federal treaty. The S Ct exercises appellate juris. when it reviews the judgment of a state court. The S Ct may not review decisions of state courts that merely adjudicate questions of state law.  (Adequate and independent state grounds doctrine)   Remember that the SC appellate jurisdiction exists only as provided by Congress. Congress can limit their jurisdiction. Keep in mind that state const. can give more rights than US const. 2. Textual Bases of Authority a. All Cases provision: “judicial power shall be extended to all cases, in Law and Equity, arising under this Constitution” (AIII, §2). b. Jurisdiction: Cases affecting ambassadors, and other public ministers and consuls, the SC has original juris.  “In all other cases the SC has appellate jurisdiction, with such exceptions and under such limitations that Congress shall so provide” (AIII, §2). c. Supremacy Clause: Constitution and federal laws made pursuant thereto, and treaties made, are the supreme law of the land;  judges in every state shall be bound thereby, any thing in the constitution or the laws of any state to the contrary notwithstanding (AVI, c2). 3. Controlling Case: Martin v. Hunter‟s Lessee a. Facts: Supreme court decision that a federal treaty is retroactive [and thus supreme over a conflicting state statute] is refused to be enforced by VA courts. b. Disposition: Supreme court can hear appeals on FQs from highest state court; state courts must honor the decisions accordingly. However, the SC cannot merely adjudicate a matter of state law. c. Policy arguments for the SC to hear an appeal from highest state court: i. Uniformity: no SC appellate jurisdiction here would implement a system of strong state authority essentially identical to the Articles of Confederation. ii. Forum Shopping: excessive forum shopping would result from no appellate jurisdiction here, as citizens could find search for varying interpretations of the Constitution for the best advantage. LIMITS ON JUDICIAL POWER A. Congressional limits on jurisdiction: a. Textual Authority: The SC shall have appellate juris. in all cases not mentioned under original juris, “with such exceptions, and under such regulations as the congress shall make” (AIII, §2). b. General Status of Law: Within Const. bounds, Congress has the definitional power to decide what types of cases the Supreme Court may hear. 4 c. Controlling Case: Ex Parte McCardle  Facts: McCardle was imprisoned by a military government imposed by congress as part of post-Civil War Reconstruction. While his case was pending, Congress repealed the statutory right to H.C that he sued under.  At that time, HC petitions could still be brought for individuals in federal custody and a H.C petition could be originated in the SC.   Disposition: Case dismissed. Reasoning: Court held that power to hear habeas cases was not removed- just the extension of that power granted in 1867- therefore court was not deprived of powers originally given, it just had powers added taken away. Commentary: Congress here could remove/modify the jurisdiction of the SC pursuant to AII, §2, so long as the action was otherwise constitutional. Here, it was; because there were other avenues to seek H.C.,  Congress did not violate the suspension clause (AI, §9). "The privilege of Habeas corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it" Generally, if there is no other forum for review congress cannot strip court of Jurisdiction. McCardle- Congress was not completely doing away w/ cts right to hear habeas corpus cases. Rather it was withdrawing that right only where the SC got the case by appeal from the lower courts. (At the time, an original petition for habeas corpus could be done in SC) Therefore the P can still bring suit as an original petition instead of appeal from the lower court. . INS v St Cyr (2001)   i. ii. Facts: Case involves an alien subject to a federal removal order. The issue is does the DC retain J over the case to determine this question of law. The INS held that the amendments to the 1996 statutes under which P was held explicitly remove the cases from judicial review. Holding: Habeas J was not repealed under the new INS Acts Reasoning: The court held that this would create a serious const. ques as there is no other judicial forum for these cases.  At a minimum the Suspension clause protects the writ of habeas corpus as it existed in 1789. Therefore where the Acts discuss judicial review they mean a general broad power of review not a narrow habeas review iv. o o o Rasul v. Bush (2004) Issue: Does Habeas corpus reach outside of the U.S. to protect people? Shanor not completely convinced of the majority reasoning and the distinctions drawn in this case. Says that we have a statue that allows us to reach overseas for jurisdiction. The best distinguish is made by Kennedy: Guantomona bay is different a U.S. territory (we have complete control and an indefinite lease. thus it should be treated as a territorial component of the U.S.), persons being held indefinitely and Izantora did have some legal/court hearing. 5 B. Congressional Reversal of Judicial Holdings: a. General Status of Law:  Neither the executive nor legislative branches may retroactively command courts to reopen or reconsider final judgments already rendered.  However, Congress can pass legislation that has the effect of overturning the decision of an inferior court, so long as the judgment has not reached finality (failure to appeal, or lost appeal, or denied opportunity to appeal). b. Textual Authority: Civil litigation may have an ex-post facto effect] b/c text silent (no crim. ex-post facto laws, nothing on civil] i. Judicial decisions are always retroactive c. Controlling Case: Miller v. French (2000)  Facts: Congressed passed law that stayed relief for prison conditions until certain conditions were met regarding the nature of the relief.   Disposition: Law held constitutional Injunctive v. Monetary Relief and „Finality‟: 1. Injunctive Relief: Congress can alter a court's holding where injunctive relief has been imposed b/c such relief involves a continuing, executory decree that is subject to change due to modification of the underlying law. 2. Monetary Relief: Congress cannot alter a money judgment because the judgment itself is final, as opposed to ongoing injunctive relief. 3. Unclear cases involve characterizing relief as injunctive or monetary, depending upon the desired result (Should Congress be able to overrule or not?) C. Constitutional limitations on judicial power: Justiciability a. Textual Authority: “judicial power shall extend to” certain enumerated categories of “cases and controversies” (AII, §2). (Art. III § 2 cl.1 defines the judicial power of the U.S. as extending to nine enumerated cases or controversies. no other type of cases may enter a federal court. b. General requirement for a “case or controversy:” i. there must be an actual dispute involving the legal relations of adverse parties, and; ii. for which the judiciary can provide some type of effective relief  No collusive suits, where the parties fabricate an actual case & controversy. c. No opinions that are purely “advisory” (in federal, but not all states). i. Congress may not ask the SC to comment upon the constitutionality of proposed legislation ii. the president may not ask the court to render an opinion on the legality of pending legislation. iii. Court can render Declaratory Judgments. It is not merely advisory and is legally binding upon the parties and may be enforced. 1. Has constitutional minimum req: a. An actual dispute b. And relief that is binding or conclusive. 6 Arguments for/against opinions that seem advisory: a. (+): Would allow President and/or Congress to know how courts would rule on the issue. b. (-): The particular facts of a case may present issues that the Congress and/or President will not take into account. D. Further Requirements: "Case & Controversy Limit" Standing, Non-Mootness, Ripeness, and Non-Political Question a. Standing A required showing that the P is the proper party to bring legal action. Requirements: a. Injury in Fact: The P must have suffered, or will suffer, injury of a legally protected interest. Generally, the invasion of any right recognized under the constitution, statues, or the common law is sufficient to etsablish injury in fact. Plaintiff bears the burden of proof i. ii. Concrete injury -not necessarily economic Particularized injury -must adversely affect a citizen or subclass more than others; not generalized harm experienced by all citizens and taxpayers].  An organization may have standing for a particularized injury (Laidlaw). Req’ts: a. One of its members must have standing in their own right b. The interests at stake must be germane to the organization‟s purpose, AND c. Neither claim asserted nor relief requested requires the participation of individual members of a lawsuit. iii. Actual or Imminent injury [as opposed to conjectural or hypothetical]  Aesthetic harm, or an adverse perception of environmental injury, may satisfy injury in fact, even if there is no proof of actual harm (Laidlaw).  Ps must have some geographic connection with the injury (Lujan). b. Causation The injury must be fairly traceable to the Defendant's conduct. c. Redressibility Plaintiff must show that requested relief will alleviate injury i. Government fine (not direct compensation to injured) may satisfy the redressibility element of standing (Laidlaw). Purposes of Standing Requirement: a. Promotes separation of powers [by limiting judicial review] b. Prevents flood of lawsuits by those who only have an ideological stake in the outcome. c. Effective Litigation [ensures that there is a specific controversy and someone with sufficient personal concern to litigate effectively] i. Prevents strike suits by bystanders interested in having statutory or constitutional principles adhered to. Public v. Traditional Adjudication Model a. Distinction: Traditional model limits cases and controversies to individual disputes; the public model allows the adjudication of general public issues, and thus lowers the bar for standing (specifically, the injury in fact and redressibility requirements). 7 1. Public Adjudication Model: Standing in cases involving public issues General Status of the Law: i. Large groups of people may have standing for aesthetic, as opposed to actual or economic harm [public adjudication model]. (Laidlaw) a. Controlling Case: Friends of Earth v. Laidlaw i. Facts: Clean Water Act allowed suits by persons adversely affected by pollution. If the suit is successful, the polluter must pay a fine to the gov’t. P/org. sued under Act because water body situated near members‟ residences looked and smelled bad, even though no evidence of pollution. Disposition: P has standing; injury in fact (aesthetic/perception) and redressibility (government fine) satisfied. But cf. Lujan: An injury must not be too remote. Holding that in a suit regarding environmental effects on another continent, there is no standing). Ps would need some connection to the area, like a plane ticket. ii. iii. b. Arguments for lowered standing req’ts (like PA model): i. Gives teeth to the [assumed] view that lawsuits should be a vehicle for addressing public problems. ii. iii. Deterrence (See: imposition of a government fine in Laidlaw). There is a national good in granting Ps a right to sue on behalf of public interests. c. Arguments against lowered standing req’ts (like PA model): (Scalia Dissent in Laidlaw) i. The purposes behind standing are furthered by an actively injured P. ii. Imposition of government fine does not a meet the requirement of redressibility; standing requires that the P have a financial stake in the litigation. 2. Prudential Standing- Judicially Self-Imposed Limits on the Exercise of Federal Juris. General Status of the Law: Encompasses the general prohibition on a litigant's raising another person's legal rights. Case: Elk Grove Unified School District v. Newdow (2004) i. Facts: Father challenges the school district's policy of reciting the pledge of allegiance as a violation of the First Amendment-because it contains the words "Under God". Father's daughter is the basis of his standing to sue, and the motherwho has sole legal custody objects to the father's suit. Disposition- Case dismissed, Father lacks prudential standing to sue. Reasoning-Court reasons that here the D's standing is based soley on his relationship with his daughter, and he would not be able to sue as a next of friend.  Because his standing is based on family law rights, that are in dispute and resolution of the case could have an adverse effect on the child, it is improper for the court to hear the case.  Asserts that the School district has done nothing to impair the D's ability to expose his religious ideas to his daughter. 8  Ripeness The defendant does not have a right to dictate to others what they can or cannot say to his daughter with respect to religion. 1. Defined: when all the events necessary to give rise to an injury have not happened. When a claimed injury is contingent upon future events occurring. a. Previously suffered harm is ripe. b. Future harm may be ripe, but it must be reasonably probable. Mootness (destroys justiciability; D has the BOP) 1. Defined: Means that during the entire litigation process, the parties must be and remain adverse to one another. The requirements of standing must be satisfied during the entire course of the litigation. If injury in fact, causation, or redressibility are no longer satisfied the mootness doctrine will be triggered. 2. Exceptions (when a case is justiciable, despite the appearance of a non-live issue or controversy) 1. A Wrong Capable of repetition yet evading review When a challenged action is of such short duration that judicial consideration is not likely before the action is over or; when the wrong may recur with respect to the specific party raising the challenge. i. Ex: pregnancy in Roe 2. Collateral consequences [occurring after the incident in question] i. Ex: When a criminal has already served his sentence; not moot b/c he may lose other rights (e.g. Vote, reputation, employment possibilities). 3. Voluntary cessation of Δ of conduct in question, but it is capable of reoccurrence i. See Laidlaw (holding that, even though D ceased operation of the factory, the case was not moot because it was not “absolutely clear” that polluting could not reoccur) Arguments against finding a case moot a. Sunk cost for P [considerable $ invested once case is started] b. BOP failure [D must show cause for dismissal, a burden of proof] b. Political Question (destroys justiciability) Certain kinds of issues will not be decided by the court b/c the const mandates they be decided by other branches or the courts think are best decided by the legislature b/c of the information needed to decide them. 1. Controlling Case: Baker v. Carr (1962) (Racial Gerrymandering) Facts: plea for reapportionment in TN which was required by state con. Ps sought an injunction under the 14th am EQP clause. Guarantee Clause: (These cases are PQ and are not justiciable) Holding: Court held the case was justiciable under the six factors listed below even though it could be considered a guarantee clause issue. The court held it was rather a 14th am issue  and that the power had not been reserved to any co-equal branch of govt b/c issue was w/ a state. 9 a. Factors used in determining if there is a non-justiciable PQ: [Baker Ct. justified its reasoning by saying that none of these apply; avoid a wooden application of these factors] i. Commitment to Another Branch [any issue that the Constitution commits to a coordinate political department] A real issue ii. Lack of Standards [no judicially discoverable and manageable standards for the Ct. to use in resolving the issue] If there are not judicial standards, then the case cannot be justiciable. A real issue Unsuitable Policy Determination [impossible to decide the issue w/o a clear policy determination of a kind clearly for non-judicial discretion]. Lack of Respect for other branches [impossible for Ct. to undertake independent resol‟n w/o expressing lack of respect due co-ordinate branches]. Weak. Political Decision Already Made. Weak. Potential for embarrassment from multiple pronouncements by diff braches on the same ques. Weak. iii. iv. v. vi.  Traditionally foreign affairs, dates of duration of hostilities, validity of constitutional ratifications, and issues relating to the guarantee clause have all been considered PQs 2. Vieth v. Jubelirer 2004 (Political Gerrymandering) Facts: Democrats seek to challenge a Republican lead political redistricting plan in Pennsylvania. Disposition: The issue isn't justiciable. (Not a majority rule) Reasoning: The majority makes a distinction between racial gerrymandering and political gerrymandering. The constitution clearly contemplates districting by political entities in Art. I §4. However, the purpose of segregating voters on the basis of race is not a lawful one is more rarely encountered. Distinction from Baker v. Carr: Baker involved a case of racial gerrymandering which is unlawful, which is uncommon. Here there is lawful redistricting that has been contemplated by the constitution. Race doesn't change and political affiliation can change.  Given the shifting change of politics maybe the courts should stay out of it? A. Constitutional limitations on judicial power: the 11th Amendment General Status of Law:  Private citizens cannot sue a State in federal court under diversity or federal question jurisdiction.    The 11th amendment has been expansively interpreted to incorporate the sovereign immunity under which a state may not be sued in federal court w/o its consent. (State may also not be sued in state court w/o its consent) Congress can abrogate immunity but only with 1. A clear statement of intent to abrogate- Green (1985) 2. When acting pursuant to a valid exercise of power 3. Congress cannot use Article I powers to abrogate state sovereign immunity 10  A state can sue another State in Federal Court, but the state suing must have a direct interest of its own in a legal controversy w/another state. Even if remedy is for residents of the state and not the state itself. Officials of the state – are not insulated from suit Ex Parte Young (1908)  Immunity does not attach to official of the state when only prospective injunctive relief is sought  However if the P is seeking damages the state would have to pay- immunity does attach to the official  Only the state protected- not subsidiaries such as cities and counties  Text barring diversity suits: 11th amendment bars any federal suit “against any one of the states by citizens of another state, or by citizens or subjects of any foreign state.” Repeals Art. III § 2 Citizen v. state & alien v. state diversity clauses. i. Ex‟s  The following examples cannot be brought in federal court. 1. citizen of NY v. St. of California 2. citizen of France v. St. of California 11th does NOT bar suits b/w private citizens and counties/municipalities, or 1. b/w Federal Gov‟t and State, AND 2. b/w State and State. ii. a. Extension to federal questions: i. Controlling Case: Seminole Tribe v. Florida 1. Facts: Federal statute allows NA tribe to sue State in federal court. 2. Disposition: Private suit against a State cannot go forward in a federal court, even if right sued on is federal. Congress cannot use Art.I powers to abrogate state sovereign immunity. b. To get around the 11th Am: i. Bring suit against a state in the court of another state court-not a federal court. ii. Challenge state action under the 14th Am: Congress can use the power of the 14th am §5 to limit state sovereign immunity (because enacted after 11th am and fundamentally changed the power of the fed/ state balance)- Fitzpatrick v Bitzer (1976) iii. iv. Federal gov‟t can sue state on behalf of individuals. Show that state waived/consented to suit in federal court. 1. State removal to federal court is equivalent to a waiver of sovereign immunity (Lapides). 2. Receipt of federal funds is another method for States to waive immunity (so long as this is an express waiver in the federal statute). c. To apply sovereign immunity [11th Am.] expansively, argue: i. Precedent 1. Seminole Tribe, Hans (holding that citizens of the State are still barred from suing that State in federal court, even on a fed. COA) ii. Historic Principle of Sovereignty (Seminole Tribe) [watch it] 1. 11th Am. reflects a fundamental principle; the State has sovereign power that was transferred from Britain after 1776 revolution. iii. 11th Amendment is an expression, not a limit, to state sovereignty 11 d. Arguments against expansion of sovereign immunity [LOST] i. Counter sovereignty argument: America was not founded on principles that the king should be unassailable. ii. iii. Focus on text of 11th Amendment, which restricts immunity to diversity Functionalist argument: We should not prevent Congress from providing a federal forum for suits under federal law. Diversity jurisdiction means the person bringing suit is not a citizen of the state being sued. I. Distribution of National Powers A. Separation of National Powers Framework a. Purposes of a separating government power:  Prevention of Tyranny  Efficient Administration b. Separation of Powers, generally is that Consent is irrelevant  Irrelevant that the branch whose authority has been usurped may have consented to the intrusion. c. FORMALISM- Clear delegated authorities to each division, forbidding crossing the boundary 1. Clear boundaries from the text d. FUNCTIONALISM- Need for an efficient government, so dipping into other branch‟s boundaries can be acceptable B. What POWERS are granted in the Executive Branch?  The Express powers granted to the Executive Branch under Article II §2? 1. Commander-in-chief of armed forces 2. Duty to see that the laws are faithfully executed 3. Treaty-making power (with approval of Senate) 4. Give State of the Union    President makes war, but Congress empowered to declare and fund war. Power to make sure laws are faithfully executed (AII, §3) Executive has few explicit powers, most are implicit. C. At what point is the Executive Branch‟s power at its strongest? Degree of Congressional approval, disapproval or silence: Jackson Three Prong test in cf: Youngstown Sheet & Tube Co. v. Sawyer (Harry Truman makes an executive order and takes over the Steel companies, in light of a potential strike between union members and management) Underlying concept: there is no set line b/w the executive and legislative branches; it fluctuates. a. Scenario 1: President is acting in Accordance with Congress. (President acts pursuant to express or implied authorization of Congress)  This is when his power is STRONGEST  President can impose legislation in accordance with statutory authorization. b. Scenario 2: President is acting when Congress has said Nothing. (Congressional Silence)  President and Congress may have concurrent authority, but precise distribution may be uncertain.  12 1. Variation: Silence may be only silence, but it could be a silence that is pregnant; this category may be number 1, or number 3; it depends on the facts of the case. 2. Practical Application: When threat is imminent, President would probably be allowed to proceed, at least until Congress explicitly counters this authority. a. What is going on today; Youngstown is not deterring executive action in War on Terror. c. Scenario 3: President is acting against express decision of Congress. (actions in contradiction with the express or implied will of Congress.)  Power at its WEAKEST. Executive action is unconstitutional, because Power is at its “lowest ebb”  Youngstown went here, b/c of a provision in the Taft-Hartley Act. D. What are the IMPLIED powers of the Executive Branch? Implied powers come from Article II §1 “The executive Power shall be vested in a President. What powers have the Court found to be WITHIN the Executive Sphere? President has greater authority with respect to FOREGN AFFAIRS (Curtiss-Wright),  Foreign Affairs: a. US v. Curtiss Wright (1936) : The legislature can delegate its powers broadly to the President in matters relating to foreign affairs. i. Facts: Joint resolution in Congress allowed the President to ban the sale of arms to countries engaged in a particular conflict. The President used this authority to charge Defendant with conspiring to sell arms to Bolivia. ii. iii. Disposition: Conviction aff’d Arguments for delegation of foreign affairs power from Congress to President: [WON] 1. Sovereignty/Inherent Power: passes through the President from preConstitutional times (transfer of power from British King to Pres.); adds powers to the President in the realm of foreign affairs. a. Scary: Presidential sovereignty in foreign affairs goes to executive branch before constitution 2. Textual Reasons: (Article II §2):  Executive has the power of Granting treaty power with foreign nations with minimal power to Congress, primary responsibility for foreign affairs devolve upon President. However, Strict textualist would OPPOSE this right as it is not Expressly given by Constitution (Justice Black) Make war (Commander and Chief) Appoint ambassadors    3. Functional Argument: (Policy)  President is in a better position than Congress to deal with problems in foreign affairs.  President alone possesses complete knowledge of often sensitive information concerning foreign governments. 13  Makes it more appropriate for him to issue occasional proclamations concerning foreign affairs with or without congressional approval. 4. In accord with Congress‟ Intent:  Because Congress specifically granted President this power in a statute, meets Justice Jackson‟s qualification for Presidential Power at its strongest.   Congressional intent can be IMPLIED from authorizing power in similar situations (Dames & Moore v. Reagan). President may take cases away from the judiciary if: 1. A legitimate foreign policy purpose is served, and 2. Congress agrees to the delegation of power to the delegation Dames and Moore Facts: As part of the settlement of the hostage situation, President Carter used an Executive Agreement to suspend all contractual claims (even judgments already awarded) against Iran then pending in American Courts.  Congressional approval of related action: Congress previously passed legislation authorizing Pres. to nullify attachments and order the transfer of Iranian assets.  This congressional act, IEEPA, was not specifically on point but is consistent w/the Prez's actions. a. Disposition: Constitutional. i. But cf: Youngstown (delegation of foreign policy power held unconstitutional, although President Truman acted against the express will of Congress – previous legislation prevented). b. Commentary i. If this was implied congressional agreement. As seen here, Foreign affairs silence gives the president the lead role; however, silence on the national front provides congressional authority. ii. This case is similar to Youngstown – but as a result of the forum of action the decision reached is the opposite i. silence = acceptance in foreign affairs ; ii. silence ≠ acceptance in domestic affairs . Executive Agreements: An instrument for exercising foreign policy authority. a. But cf treaties: Treaties require that the president get 2/3 approval of Congress. However, Executive Agreements do not need congressional approval.  Carter's EA could also be seen as a treaty b. Treaties v executive agreements  Treaties require 2/3 Senate approval  Exec agreement is pres alone  Historical practice  Commercial claims look like exec agreements  Resolution of war looks like treaty  However- no factors from the court- lots of pres malleability c. Arguments for upholding an EA 1. Functional utility.  14 d. To argue against upholding an EA [and favoring a treaty instead] 1. Argue that EA‟s reduce the power and authority of the Senate, and cut against the text of the Constitution (requiring 2/3 approval for treaties). 2. Use history to show that type of foreign policy traditionally fell under the purview of treaties. E. What powers have the Court found to be OUTSIDE the Executive Sphere? Executive power is weaker with respect to Domestic issues. (Youngstown Sheet Metal) Domestic Issues: a. Domestic order in wartime context: Youngstown Sheet & Tube Co. v. Sawyer (1952) Executive branch has NO right to Make Laws i. Facts: During Korean War, Pres. Truman seizes steel mills. Congressional rejection of such action prior to seizure. ii. iii. Disposition: Unconstitutional executive action, a SOPs. Formalist argument that executive action impinges on legislative function (majority in Youngstown). Weak precedent. 1. Broad formalist view: There is a clear line b/w legislative and executive powers that cannot be crossed. President cannot make laws, he can only carry them out. a. Congress thus cannot delegate its authority to another branch. 2. Weak argument that actions taken at home detach President from powers as Commander in Chief, which only involve theaters of war overseas. Textual Reasons (Justice Black- “show me text”): a. No where in Article II is this power granted to President. (Expressio Unius) i. President may only Carry out the laws as granted under the Constitution. b. Article I expressly grants this power to Congress Functionalist approach (Dissent): a. Look at surrounding circumstances (Korean War) and see if President‟s actions can be legitimized because promotes government efficiency in time of need. b. Line Item Veto in Executive Branch is Unconstitutional Clinton v. New York (1998) - LIV legislation: Gave president discretion to veto (“cancel”) single items of new tax spending, rather than the entire bill. Cancellations had to occur w/in 5 days of enactment. The only way that congress could restore the vetoed action was to pass more legislation that the president could still veto. Controlling Case: Clinton v. NY (striking down the LIV legislation) 1. FORMALIST arguments against LIV: a. TEXTUAL REASONS: Violation of Presentment Clause. Two reasons: i. President‟s „return‟ occurred after bill was a law; and ii. No opportunity for Congressional override, as required by the Presentment clause. Disapproval bill (a new law passed by simple majority) the only recourse. 15  Separation of powers violation: President is authorizing a different bill than that passed by Congress. a. Bills s/t a LIV are not the product of the “finely wrought procedure designed by the framers.” iii. LIV involves cancellation of the bill’s parts, whereas the Presentment clause req‟s veto of the entire bill. 2. Arguments FOR LIV: Commensurate w/ Constitution: Point out that the bill authorizing LIV passed Congress, and the President did not veto. The authorization passed a Constitutional process, and has legitimacy. i. TEXTUAL ARGUMENT: Power always flows from legislature to executive [President has a duty to faithfully execute the laws passed by Congress] and in this way, the bill is consistent w/ the Constitution. 1. Valid Act of Legislature: The legislature has “created” this executive power, rather than “delegated” its own power. a. LIV limited to budgetary issues: President has historically had the power to refuse to spend funds appropriated by Congress i. Argue that the statute did not delegate legislative power to repeal or amend law, but instead the statute gave the President discretionary spending power. Note historic legitimacy of this Presidential discretion to spend appropriated funds. Using language like “decline,” instead of “cancel” or “veto” would bolster this argument. ii. a. Constitutional silence in re. distribution of powers. b. Functionalist: Delegation is a way for legislature to make law that it could not otherwise make: Example/Explanation: LIV would allow Members to create omnibus bills with a host of politically expedient pork provisions. The President can cut these provisions to encourage fiscal discipline, while the Members could still look good on the home front I. What PRIVILIGES are granted to the Legislative Branch A. Legislative Immunity i. Textual Basis-Speech and Debate clause, AI, §6: “for any Speech or Debate in either House, [members of Congress] shall not be questioned in any other place.” II. What PRIVILEGES are granted in the Executive Branch? Privileges: Shield the President from inquiries concerning whether particular actions taken were lawful or not? (Power- enable President to engage in particular task) A. Does the President possess an absolute EXECUTIVE PRIVILEGE that is immune from judicial review? Limited right to Executive Privilege: A President‟s ability to refuse disclosure of certain information. i. Controlling Case: US v. Nixon 16 1. Facts: President attempted to claim immunity from disclosing info (Tapes) regarding criminal charges. 2. Qualified privilege exists: for “confidentiality of Presidential communication in the exercise of AIII powers.” President Needs spheres of confidentiality to conduct his duties. 3. Holding: In camera inspection ordered. a. Here, the privilege is outweighed by the needs of the criminal justice system. ii. When does the President virtually ALWAYS have an Executive Privilege? a. When President claims a need to protect military, diplomatic, or sensitive national security needs-probably outweighs criminal justice need. (US v. Nixon) When are there issues of such PRESSING NEED, that a court will Overcome the view for an executive privilege? i. Need for due process in Criminal Proceedings Criminal justice system depends on complete presentation of all relevant facts. Exec. privilege is weighed against the interest of Due Process/the need to develop all facts relevant to a criminal trial. 1. Unless information deals with national security or other extremely confidential matter, President will be forced to disclose conversations in a criminal investigation (U.S. v. Nixon).  NOT a Separation of Powers argument because Marbury made Judicial branch the power to determine what the law is, even regarding executive privileges iii. B. Arguments against executive privilege: "Pres. should have to speak" i. No explicit, textual basis in Constitution: 1. Not even immunity regarding military or foreign affairs. 2. Legislative immunity created; the framers could have designed an analogue for the Exec. branch, but chose not to. ii. iii. President would be in the way of judiciary doing its job. (Functionalist, SOP argument) Strong criminal law interest. 1. The need to gather evidence / search for truth that should not be thwarted easily. a. Counterpoint: We restrict factfinding in criminal matters in many ways - examples: i. Miranda ii. Claiming the 5th iii. Time restrictions - speedy trial C. Arguments for executive privilege: "Pres doesn't have to speak" i. President's Need for advice and candor [functional argument] 1. National security a. Counterpoint: in camera inspection (as in Nixon) protects national security. 2. Confidentiality argument - President has a privacy interest, flowing from AII power. 17 a. Formalist argument - part of being President is having this privilege III. Is there PRESIDENTIAL IMMUNITY from civil lawsuits? 1. President has ABSOLUTE immunity from Civil Liability for his OFFICIAL ACTIONS (Nixon v. Fitzgerald). a. President has a lot of worries and responsibilities, Fear of suit might distort some of his decisions in official duties. b. Lawsuit might distract President from his Duties. c. There are alternative remedies other than private lawsuits. i. If civil wrong was bad enough, President can be Impeached. 2. Is there Presidential Immunity from civil liability in his UNOFFICIAL ACTIONS? a. President gets NO immunity for Unofficial Actions, subject to liability even during his term. Controlling Case: Clinton v. Jones (1997) Pres. can be sued in office for unofficial conduct which occurred prior to commencement of his term in office. Facts: Private tort claim against Clinton b/f taking office as Pres. Clinton argues for temporary immunity/stay of litigation until he leaves office. Holding: Stay denied. No const. mandate to stay civil proceedings for unofficial conduct that occurred b/f Presidential term.  Reasoning behind immunity: To prevent the President from being “unduly cautious in the discharge of his official duties.” Jones Court held that this was inapplicable to the Little Rock debacle. Commentary: 1. What is personal and what is official? Isn‟t harassment official? 2. Judicial process outweighs immunity (like in Nixon). 3. Arguments in favor of no civil immunity for Presidents who misbehave b/f taking office: a. Official v. unofficial conduct: Immunity for official acts serves the public interest in enabling such officials to perform their duties without fear that a particular decision may give rise to personal liability.  This is N/A to unofficial acts committed b/f Pres. entered the office: b. There is no textual support for immunity in the constitution. c. There is no precedent that would establish immunity in this case.  Fitzgerald- distinguished because unofficial duties: a. Unofficial actions are NOT distorting President‟s discretion in official duties. b. Still, might significantly distract President from conducting his job (Lewinsky situation). i. Fear is recognized in Breyer‟s concurring opinion. d. Claimant‟s Rights: 1. Claimant has a right to an orderly disposition of her claims, should not have to wait until President is out of office to go to court. 4. Arguments against refusal of immunity [for immunity]: a. Judiciary could interfere w/executive (time constraints from lawsuits), which is a separation of powers problem. 18 A. When is Congress‟ delegation of authority really granting power in itself, and not other branches, thus violating the Separation of Powers? i. What aspects of the legislation resemble a LEGISLATIVE ACT? Legislative Act Any action that affects the rights of those outside Congress o Did the Legislature action have the “purpose and effect of altering the legal rights, duties, and relations of persons outside the legislative branch? (INS v. Chada)  Most Congressional acts are legislative acts. a. Controlling case: INS v. Chada  Facts: According to AI, §8, clause 4, Congress has the duty to “establish a uniform rule of Naturalization.” [and immigration by implication.] Accordingly, Congress delegated the authority to suspend the deportation of aliens to the Atty. general, but each House reserved a legislative veto. Congress trying to "retain" some power in the legislation by having a veto.  Disposition: The Court held a one-House congressional veto to be unconstitutional as violating both the bicameralism principles reflected in Art. I, Sec. Sec. 1 and 7, and the presentment provisions of Sec. 7, cl. 2 and 3. Congress had already legislated this power to the Attorney General. b. Arguments against legisl. veto: [Won]  Textual: Violated the president’s veto power (Art.I §7 cl.2), under the Presentment Clause. [No opportunity to veto]    Textual: Violated bicameral structure of Congress (Art.I §§1&7). Intentionalist: Only 4 ways either House can act alone; framers intended a narrow construction. A form of judicial review [SOP] c. Arguments for legislative veto: [Lost] 1. If Congress has the power to delegate all of its power it should have the ability to hold some of it back. 2. Bill authorizing the legislative veto was presented to both houses and the president, thus initially passing AI req‟ts. a. Ordinary decisions by executive agencies resemble lawmaking, yet it would be absurd to require bicameral approval and a Presidential signature for each. 3. Congress has passed legislation providing for one house vetoes that has not been ruled unconstitutional. ii. If action is found to be a legislative act, did it go through BICAMERALISM and PRESENTMENT? a. Bicameralism and Presentment- requires all legislation to be agreed upon by both Houses and Presented to the President for approval. i. Would NOT requiring Bicameralism and Presentment foreseeably lead to TYRANNY? 19 1. Is the statute close enough to the Bicameralism and Presentment process that it will not likely lead to Tyranny? a. Is the fear of Tyranny addressed by requiring bicameralism and presentment adequately represented? ii. Is there a FUNCTIONAL argument suggesting that Bicameralism and Presentment should not be required? 1. Congress has power to make law, although they delegate authority to another branch, why can‟t they have the right to make sure the law meets their standards? iii. Characterization of delegated duties as executive or legislative NOT overly important. 1. Because all legislative actions appear to be Legislative acts, the MUST be BICAMERALISM and PRESENTMENT. 2. Congress can delegate legislative functions to other parts of government, but NOT to itself (not to one house or a comptroller general) 3. Is Congress delegating authority to OTHER branches? a. This is constitutional 4. Is Congress delegating authority to ITSELF? a. Usually found unconstitutional B. Is the legislation appointing officers to perform duties, introducing a possible APPOINTMENT‟S CLAUSE issue? A. Overview: Appointment [Congress cannot appoint anyone!] 1. Principle officers [ambassadors, other public ministers and consuls, SC Justices] a. Congress cannot appoint. b. President nominates candidates, Senate confirms (AII, §2, cl 2) i. Congress cannot take away this right Is this an INFERIOR OFFICER that Congress may appoint to any branch? a. Factors to determine if it is an inferior officer:  Subject to removal by a higher executive branch official o inferior in rank and authority    Empowered by acts to perform limited duties Limited in jurisdiction Limited in tenure o If it is a temporary position to perform single task and when this task is limited he is terminated. might be inferior. b. Congress may delegate this appointment power to the judiciary, the President alone, or Heads of Departments (Cabinet Officials) (AII, §2). Text: in appointment clause it states “Cg may appoint (give power to another branch) as they think proper” Congress has the right to vest an appointment as it deems proper.  However, cross branch appointments are impermissible: the special prosecutor appointed by the judiciary in Morrison had a quasi-judicial [prosecutorial] role, and thus appointment was constitutional. 20 Morrison v. Olson Facts: Independent counsel provisions allows the attorney general to request the Special Division court appoint an independent counsel.  The counsel can be removed only by the attorney general for good cause or the congress by impeachment c. The Court in Morrison interpreted the text expansively, holding that a special prosecutor was an inferior officer. i. Counterpoint: almost every fed official below Cabinet level may be determined inferior and thus may be appointed by someone who is not the president. B. Overview Removal: Textual Silence on who can remove, this is judge made law.  Congress traditionally cannot participate in the removal of Executive Officers. Myers (post office case) a. Congress cannot completely restrict the President‟s power to remove executive officers. i. However, Congress can establish criteria for the removal of executive officers that have a quasi-judicial or quasi-legislative roles. Humphrey‟s Executor. ii. Restriction allowed in Morrison: 1. The removal restriction: President could not select the prosecutor, define her jurisdiction, or remove her, except for cause. Is Congress‟s restriction on executive removal power constitutional? 1. Test: a. The independence of removal process from executive authority serves some useful function, AND i. Morrison (Special prosecutor assigned to root out executive corruption  restriction of removal power ok). b. The limits on the executive are constitutional. i. Morrison: (1) President had discretion as to whether to apply for an special prosecutor, (2) Special Prosecutor had to follow Justice Dept policy, generally, and (3) President could dismiss IC for good cause. b. Congress itself cannot remove an executive officer for [broad] cause, especially when removal power converts the officer to an agent of the legislature.  Removal on narrower grounds may be ok: Removal for “permanent disability,” “commission of a felony” and other narrow grounds may be constitutional. Bowsher i. Controlling Case: Bowsher v. Synar Facts: Act passed by Congress to reduce deficit that set annual maximum spending figures. In case the spending figures were not met, the Comptroller General was empowered to say which specific cuts were necessary. The President would be mandated to comply. Congress retained broad right to remove the Comptroller General, based on “inefficiency,” neglect of duty,” malfeasance,” etc. Disposition: Unconstitutional Principles: iii. 21   SOP argument: Congress cannot delegate executive power to itself. SOP argument: Exec. officials would be more loyal to Congress if they had to worry about Congress firing them. This removal power converts the Comptroller General into an agent of Congress, and thus is unconstitutional [legislative agent should not carry out executive functions]  Functionalist Approach- Majority in Morrison: a. Need someone to be able to execute laws against executive branch. i. Inappropriate for executive branch to delegate this authority themselves. Formalistic argument: pres MUST maintain ALL control (thus Cg can‟t appoint at all) over all investigations and prosecutions of the law (execute the laws!!) a. If any branches power is limited at all, this is a violation of S/O/P even if they just violate it minimally. (Scalia in Morrison)  C. Legislative „Checks‟ on Executive in Foreign Affairs a. General State of the Law: i. President, as Commander in Chief, has authority to direct troops and therefore run the military. 1. Check: Congress has the power to declare War and to allocate funding. ii. President has power to make treaties 1. Check: Must be ratified by 2/3 of the Senate. b. War Powers Resolution i. FCN: Requires President to consult Congress before it introduces U.S. Armed Forces into hostilities or into situations where hostilities are imminent. 1. Adopted by Congress to limit the Presidential power. ii. Problems 1. Court Interpretation: a. Courts interpret the President‟s power to conduct foreign affairs quite broadly. They interpret Congress‟s role in forein affairs quite narrowly. 2. Text of Constitution: a. No textual authority for legislative power here, except for power to declare war and allocate funding for war. b. §1544(c): Not in accordance w/ Presentment clause (no opportunity for President to veto). 3. Unspecific: a. Congress mandates a report from Pres., but no specifics given as to how long, contents, etcetera. Necessary & Proper A. General state of the law: Federalism and the Relationship b/w State v. Federal Gov’t a. Federal: i. Limited to powers enumerated in the Con.: 1. The 3 fed branches can only exercise powers specifically granted by the Constitution, AND 2. Fed action cannot violate specific limitation in the Con. (ie, Bill of Rights) ii. Congressional Powers (AI, §8) 1. to lay and collect taxes and to provide for the general welfare 2. provide for defense of USA 3. borrow $ on credit of US 22 4. regulate commerce w. foreign nations, and among the states 5. regulate immigration and bankruptcy 6. est. post offices 7. control issuance of patents and copyrights 8. declare war 9. DC law 10. NECESSARY AND PROPER CLAUSE*** [see below] b. State i. Police Power: power to protect health, safety and general welfare of state residents 1. No fed. police power. ii. An action by state gov‟t is valid under fed law unless it violates some specific limitation imposed by the US Con. B. When is power impliedly granted to Congress through the NECESSARY and PROPER CLAUSE? i. Textual Argument  Broad interpretation of “Necessary and Proper” Clause McCulloch v. Maryland Facts: National Bank established to stabilize currency and solve national econ. problems. MD, like other states, adopted anti-Bank measures. MD statute imposed tax on all banks w/o a state charter. Disposition: (1) National Bank deemed constitutional; (2) state tax struck down.  Text (AI, §8): Congress has the power to “make all laws which shall be necessary and proper for carrying into execution the foregoing pwrs [see above], and all other powers vested by this Constitution” in the US government  “Necessary” should be read broadly, meaning “useful/proper/appropriate” as opposed to “absolutely necessary, or indispensable. (McCulloch) a. Congress to pass any law pursuant to this power, unless: i. legislation is prohibited by the Constitution, or ii. legislation does not rationally relate to something expressly provided for by the Constitution. 1. There must be a rational basis for the legislation in the Constitution. a. Common usage of “Necessary” i. Frequently means convenient, useful, essential b. “Necessary” is used differently in another section of Constitution i. Article 1, §10 uses term “Absolutely Necessary” 1. If framers wanted “necessary” to mean absolutely necessary, would have said so as it did elsewhere. c. Location of Clause in the Constitution (Structure) i. Clause is included among the powers Given to Congress, NOT among the Limitations on Congress. 1. Cannot be considered a restraint on Congressional power. d. Underlying purpose of uniformity.  We cannot have a nation of independent and sovereign states that act w/o concert. 23  Representational Reinforcement: State legislatures should not impose burdens on federal government because they are not accountable to all Americans. ii. iii. 1. Narrow interpretation of “Necessary and Proper” Clause a. Expressio Unius i. Constitution expressly grants 17 powers to Congress, if framers wanted this to be among those, they could have said so. b. 10th Amendment i. Any power NOT Delegated to Congress is given to the states 1. Rebuttal: Does not say any power “EXPRESSLY not delegated to Congress,” just “powers not delegated.” Functionalist Argument 1. Allow Congress discretion to choose the means to perform the duties imposed upon it (Means/End Argument). a. As long as END is Legitimate and within the scope of the Constitution, any MEANS which are appropriate, which are plainly adapted to that end, and which are not prohibited by the Constitution, but are consistent with its spirit, are Constitutional b. Courts will not strike down a congressional action so long as Congress has employed a means which is not prohibited by the Constitution and which is rationally related to objectives that are themselves within Constitutionallyenumerated powers. History/ Legislative intent 1. Did the framers intend for the existence of this (a bank in McCulloch)? C. What power do the Individual States have to RESTRICT the Federal Government? (very little) i. Structure Argument:  If Federal Government has the power to create something, the State should not be able to destroy it. a. Supremacy Clause: Federal Constitution and the laws made in pursuance thereof are supreme b. Power to tax = power to destroy (McCulloch) ii. Representation Reinforcement Argument:  States have NO power, by taxation or otherwise, to impede, burden or in any manner control the operations of Constitutional laws enacted by Congress. a. State cannot effect people nationwide Democratic Argument: 1. Identity of citizens is with the Nation as a whole, not the individual states. Any decision made by people of one state must be in accord with the interests in the nation as a whole. a. Can‟t add limitations to an office that affects the entire nation (Term Limits v. Thorton) Textual Limitations on State‟s ability to restrict Federal Government? 1. 10th Amendment only lets states RETAIN powers they already had before Constitution was in place, NOT to add new qualifications (term limits) iii. iv. Commerce Clause 24 I. The Commerce Clause (CC) Power- General State of the Law i. Textual authority: Congress may regulate commerce (AI, §8, cl 3): 1. With foreign nations 2. With Indian tribes 3. Among the states ii. Historical Progression [Roadmap] 1. Pre-New Deal: the C.C power was relatively restricted. a. “The completely internal commerce of a State may be considered reserved for the state itself” (Gibbons).  Manufacturing w/in the state, even if products are exported to other states, not considered interstate commerce [no federal authority to legislate]. b. Courts upheld Congressional action under the CC when the activity regulated had a “substantial economic effect” on interstate commerce  Needed to be more logical & direct  [interpreted as a high bar for Congressional action]. 2. Depression/New Deal: FDR tried to use federal measures to jump-start local economies [trying to stretch the CC power]. Cts eventually responded by lowering the bar for Congressional action. a. Expanded substantial economic effect theory [bar lowered for Congress] Jones and Laughlin. b. Cumulative effect theory:Means that congress may regulate not only acts when taken alone would have a substantial economic effect, but also an entire class of acts, if the class has a substantial economic effect. Even though one act w/in may have virtually no effect.  . (Wickard v. Filburn) 3. Recent Lopez and Morrison Court a. Reverted view of substantial economic effects, focus on the target of legislation. b. Congress must meet a high bar for non-commercial activities. c. Where the activity being regulated is itself commercial, courts are more likely to hold the statue valid. d. The fact that Congress has shown particular findings, but may not weigh much. see morrisson. II. How far can Congress extend its powers under the COMMERCE CLAUSE? i. What is INTERSTATE COMMERCE? 1. Not just buying and selling, but ALL commercial intercourse (Gibbons) a. Differentiate between Interstate and Intrastate commerce. i. Power to regulate commerce that affects matters occurring within a state so long as the activity had some Commercial Connection with another state. ii. Foundational View of the CC: Gibbons v. Ogden Facts: Ogden (state granted monopoly) and Gibbons (federal license) in dispute over who can transport over a certain stretch of Hudson River (from NJ to NY). Injunction issued against Gibbons. Disposition: Injunction against Gibbons unconstitutional.  Majority Rationale: Navigation is commerce, the license is regulation, and this is an interstate [not intrastate] matter.  25  i. Johnson Concurrance: proposed a practically unlimited view of federal power. Principles [still good law]: 1. “Commerce” = not just buying and selling, but “all commercial intercourse” [a variety of components]. 2. Congressional power to regulate interstate commerce included the ability to affect matters w/in a state, so long as the activity had some commercial connection w/ another state. 3. No area of interstate commerce is reserved for state control under the CC a. The regulation of activities affecting interstate commerce may be used to the “utmost extent;” the existence of states have no effect on the wide scope of federal power. b. Exception: State inspection power i. Rationale: 1. Laws act on goods b/f they become IC 2. State has authority [health and general welfare] 4. Implied rejection of the 10th amendment [States and people get powers not expressly delegated to the federal government] a. Critique: state may have good reason for granting the monopoly, and thus limiting the ships traversing the route (lwr. cost, safety). Fed licensing does not have reasons of equivalent weight. III. There are 3 broad categories of activity which Congress may Regulate (Lopez): 1. Is this a case where Congress is Regulating the USE of CHANNELS of interstate commerce? a. Congress can regulate in a way that is reasonably related to highways, waterways, and air traffic  (even if the activity in question is quite intrastate). b. Commerce clause power extends to Purely INTRA-state transactions i. The effect on commerce, NOT the Location of the regulated act, is the basis for the exercise of Federal power (Darby) nnn c. “If it is interstate commerce that feels the pinch, it does not matter how local the operation is that applies the squeeze. (Heart of Atlanta)” 2. Is this a case where Congress is regulating and protecting the INSTRUMENTALITIES of interstate commerce (even if the threat is only from INTRA-state activities)? a. Congress may regulate such things as Railroads- people, machines, and other “things” used in carrying out commerce.  Congress could say that every truck must have a specific safety device, even if the particular truck in question was made and used exclusively within a single state. 3. Is this a case where Congress is regulating those activities that have a substantial effect on interstate commerce? Is there an ECONOMIC ACTIVITY at stake? i. Did this activity have a Substantial Economic Effect on Interstate Commerce (Wickard)? 26   The activity being regulated Must be one that Significantly effects commerce, an INCIDENTAL effect on commerce is not enough. Particular issue does NOT need a substantial economic effect, but will AGGREGATING the issue together have a big impact on ISC? a. Not just the production of individual‟s wheat having an effect, but the aggregate of all wheat producers on the wheat market. i. although the actual effect of overproduction will be small, the combination of all such producers does cause a substantial effect on commerce. ii. Activity is commercial [does not matter if the particular instance fails to affects IC; regulation of commercial activity will probably be upheld under the CC] 1. Cumulative Effect Theory a. Congress may regulate not only acts which taken alone would have substantial economic effect on interstate commerce, but also an entire class of acts, if the class has a culumative effect on IC (even though a single act may have no impact on IC at all). b. Controlling Case: Wickard v. Filburn (Cumulative Effect theory) i. Facts: Farmer has small acreage of winter wheat; he uses for seeding, home consumption, and trades only a small portion. Fed. penalties imposed for exceeding quota. ii. Disposition: Statute upheld under CC: individual consumption would have a cumulative effect on the national wheat market (IC). 2. Moral regulation on commerce under the guise of CC authority a. Heart of Atlanta i. Facts: 1964 Civil Rights Act banned discrimination in places of public accommodation. Plaintiff was owner of motel in Atlanta which refused to rent rooms to blacks. 1. Heart of Atlanta motel was on an interstate highway and advertised to out-of-state clients. 2. Civil Rights Act could not be enforced under 14th Amendment b/c it was a private, not state actor. 3. Effects on IC shown: depressing economic effect on blacks, discouraging them from interstate travel. ii. Disposition: CC power validly exercised. iii. Principles:  The fact that Congressional motive was not purely economic or commercial, but rather moral does not prevent a valid exercise of the CC.  Courts look at the effect of the discriminatory action upon interstate commerce. (whether the practice of racial discrimination affected IC-along w/the aggregate effect of the commercial activity) b. Katzenbach v. McClung i. Facts: Ollie's Barbeque, a much smaller enterprise, not on a highway, who catered mostly to local business traffic. 46% of food bought from supplier who got it out-of-state. ii. Disposition: CC power validly exercised. iii. Arguments for valid exercise of CC 1. Cumulative Effect Theory: discrimination by restaurants (even small and remote ones like Ollie‟s) cumulatively had an impact on interstate commerce. iv. Commentary: Commercial v. Non-commercial 27 1. When a perpetrator is conducting commercial activity, the Court will recognize that the impact on victims could “substantially” affect IC. 2. However, when the perpetrator is not conducting commercial activities and there is no jurisdictional hook, then the impact on victims is not likely to “substantially” affect. iii. Congress may aggregate any economic activity, but not any non-commercial activity.  No amount of Non-economic activity aggregated can have an effect on ISC (Lopez) Congress may regulate any ECNOMIC activity, but cannot regulate any NONCOMMERCIAL activity. 1. Is this activity an economic activity or a non-commercial activity? a. Does it more closely resemble wheat production (economic) or gun possession (non-commercial)? iv. Activity that is non-commercial [must have an obvious connection to IC to fall under the CC power] 1. Controlling Case: US v. Lopez a. Facts: Federal legislation challenged, where it became a federal crime to knowingly possess a firearm in a school zone. b. Disposition: Statute struck down as an improper CC use. i. Dissent: Bright wooden line drawn w/ no attention to good policy. c. Supporting Arguments and Facts, to distinguish from Wickard, Heart, and Katzenbach: i. **3 above cases involved interstate activity, as opposed to infrastate actions here. 1. No interstate jurisdictional hook: a. No req‟t that firearm cross state lines, for example. ii. iii. **Gun possession in zones does not have a substantial effect on interstate commerce. **Non-commercial regulation 1. Possession is the issue here, not commerce, or regulation over the sale of goods. If statute was upheld, there would be no limit to federal power Police powers [crime of illegal gun possession] belong to the state 1. Weak; see “v” below. 2. Courts defer to states in this area, except when state choices directly affect other states [CC may then be exercised] Representational Reinforcement: The statute diffuses responsibility (even though state and federal systems each have some measure of individual responsibility) 1. Federal legislators affecting state policy, yet very little accountability to the citizens of that state. 2. Strong argument iv. v. vi. 28 vii. Legislative Findings-But court finds them unpersuasive US v. Morrison a. Facts: Federal act providing civil jurisdiction for female victims of gender-motivated crimes. b. Disposition: Act not permissible under the CC. c. Commentary: Same outcome as Lopez absent a few missing factual ingredients: i. No legislative history here, unlike in Lopez. ii. No discussion of accountabillity. iii. No discussion of “no limit” argument. iv. No 2nd amendment discussion/relatedness. d. Principles [comparison w/ Heart of Atlanta and Lopez] i. Non-ecomomic activity cannot be regulated under the CC [no substantial relationship with interstate commerce] 1. Courts look at the TARGET (the criminals) as opposed to the beneficiaries (women) of legislation to determine if there is a substantial relationship to interstate commerce: 2. Morrison compared to Heart: a. Morrison: sexual offenders are targeted in the Act. Ct. holds there is no substantial relationship b/w their crimes and interstate commerce i. Even though US maintains that fear of rape keeps women from traveling and thus affects interstate commerce, the court ignores this argument w/ relation to the actions of beneficiaries. ii. They instead focus on the relationship b/w the target and interstate commerce. iii. This is what is wrong w/ this line of decisions (Lopez + Morisson); not enough emphasis on victims. iv. Difference btw Morrison and Heart is whose actions are limited by the regulation. In Heart the perpetrators were connected to commerce and being regulated. In Morrison the victims were the link btw the regulation and the connection to commerce (less commercial actions by women) v. Commerce clause regulations need to focus on the commerce of the person being regulated- therefore the beneficiaries not the focus b. Heart: Perpetrator (discriminating hotel owner) held to substantially affect interstate commerce. i. Also, the activity in Heart [hotel industry] is obviously more “commercial” than in Morrison [rape]. c. Police Power, a distinguising feature between Heart and Morrison / Lopez: i. This is a criminal law and thus in the state sphere (as in Lopez), as opposed to a regulation for hotel owners [Heart]. a. Is there a JURISDICTIONAL ELEMENT at stake? 29 i. ii. Did Congress include some phrase that would directly connect this activity to interstate commerce? (See Lopez; no jurisdictional element) Is there an element of the offense that shows it is within the jurisdictional power of the National government? 1. Offense gives Congress the power to deal with it. Is there an element that Relates to interstate commerce? iii. IV. Are the any OTHER FACTORS that might put this within Congress‟ power to regulate Commerce? If not facially within one of the Three Broad categories of Commerce Clause power, 1. Can Congress RATIONALLY CONCLUDE that this effects ISC (Breyer’s Dissent- Lopez)? a. Question is whether Congress could have a Rational Basis for finding a Significant or Substantial connection to ISC. b. Are there EXPRESS FINDINGS in the statute or legislative history by Congress that the activity being regulated affects commerce? (cf: Lopez) i. May help in really close cases, but Not Too Persuasive ii. Lack of findings may indicate the Congress was NOT doing its job and Constitutional responsibility of finding that the statute is within Commerce power. 2. Is there a NATIONAL NECESSITY to deal with the problem? a. In times of need, there may be more implied power in Congress. 3. Does there appear to be a CORDINTATION PROBLEM? a. Is this something that a state can regulate on its own or do they need national help? b. Could one state do this without being disadvantaged? i. WOULD PEOPLE LEAVE THIS STATE IF THEY DID THIS ON THEIR OWN? i. Are there FACTORS that might suggest that this is NOT within Congress‟ Commerce power? 1. Is the regulation of an area of TRADITIONAL AREA of STATE CONCERN? a. If what‟s being regulated is an activity the regulation of which has traditionally been the Domain of States, and as to which states have expertise, Court is less likely to find that Congress is acting within its Commerce power. b. Education, Family law and Crime are areas of traditional state concern 2. Is this a regulation specifically dealing with gun control? a. Maybe courts have dealt with this too much (Lopez) 3. Is there some need to put a Limit on Congress‟ Power? a. Does it appear that Congress can achieve anything through the commerce clause? Taxing & Spending Powers Thursday, March 31, 2005 5:19 PM I. A. What are Other EXPRESS powers given to Congress? Power to Tax & Spend  Textual Authority: Art I § 8 “1 Congress has the power to „lay and collect taxes…to pay debts and to provide for the common defense and general welfare of US.” 30 a. Taxing: the 16th am gave the fed govt the power to tax incomes directly (huge expansion of fed power) i. Cts are reluctant to put any limits on federal taxation. ii. Shanor - relevance of words “And provide for the common Defense and general welfare of the United States.” - should this be considered a general welfare clause rather than just a power to tax? Rules on taxation:  must be uniform throughout the US Article I, §8, cl. 1  No tax or duty may be laid on exports If tax is penal or prohibitory it is not a true tax and must be analyzed under commerce powers.  Originally the court rejected the use of penalty taxes (Bailey v Drexel Furniture- child labor tax)  Currently the court has upheld a number of these on tobacco, firearms etc. w/o inquiring into the motives of congress. iii. iv. b. Spending: Congress can attach conditions on the receipt of federal funds to further “the federal interest in particular national projects or programs.”  gives Congress power b/c Congress can require that certain things be done in exchange for federal money  Congress can even legislate in areas where Congress could not directly legislate under the Constitution. i. The 10th amendment granting non-enumerated authority to the states and people does NOT limit spending power of Congress. Congress can use its spending power to regulate local areas of interest. c. Controlling Case: South Dakota v. Dole  Facts: Statute withheld federal highway funds (5%) from states that permit individuals younger than 21 to purchase or possess in public any alcoholic beverage. S. Dakota attacked statutes based on 21st amendment (giving states pwr. to regulate alcohol) and 10th amendment. Disposition: Statute upheld; Congress may constitutionally make federal highway funding contingent on states adopting the 21 year old drinking age. Factors to consider when assessing constitutionality of congressional tax scheme: a. General welfare: There needs to be an arguable relationship between what congress spends money for and conceptions of general welfare. [Pursuant to AI§8] b. Unambiguous nature of legislation: if congress desires to condition the state‟s receipt of federal funds, it must do so unambiguously. You must respect the states‟ need to make informed decisions. c. Restriction can‟t be coercive i. Ambiguity in re the line b/w coercion and incentive. ii. Dole does not test the limits of coerciveness. iii. No case has yet found the spending power as used sufficient for coercion   31 d. Conditions on federal grants may be illegitimate if they are not related to interest in national projects or programs i. Dole involved a federal interest in interstate travel safety. e. Other constitutional provisions may provide an independent bar to federal regulation. i. Ex: Conditioning fed money on state activity that is itself unconstitutional (like cruel and unusual punishment) B. Treaty and War powers a. Treaty Power – Treaty power is divided btw 2 braches of fed gov‟t. Pres can make a treaty, but it must be ratified by 2/3 of Congress. Article II §2 i. Cannot violate constitutional guarantees – Reid v. Covert (1957). Treaties are still inferior to the constitution. ii. Treaties can be superceded by legislation b. War Powers = Congress given the power to “declare war” but not “make war” and to tax and spend for national defense. Article I §8 c. Woods v Cloyd W Miller Co (1948)- supports broad war powers of congress i. War not over when hostilities end ii. War power could swallow 9th and 10th ams Congressional Power to Enforcing the Reconstruction Amndmnts. Saturday, April 02, 2005 10:53 PM A. What power does Congress have in ENFORCING the Reconstruction Amendments? B. General Themes 1. Reconstruction Amendments a. 13th Amendment- ban slavery b. 14th Amendment- Equal protection and due process c. 15th Amendment- gives right to vote 2. General State of Law:  The 14th am nullifies state legislation and action that would impair the rights of citizens.  However, Congress did not receive the power to create municipal law for the regulation of private rights. o Therefore until a state law is passed which is adverse to 14th am rights no action can be taken. Actions under the 14th am can only be taken against state laws and actions. o Additionally the 14th am only permits corrective action, not affirmative preemptive legislation.  The 13th am does allow direct action, as opposed to corrective, but in this case the law has little to do with slavery these are (if there is an injury) civil actions which can be addressed by the laws of the states.   The Civil Rights Cases have been distinguished but not overruled In the 60s and 70s the 13th am was read to permit congress to eliminate “badges of slavery” through statutes barring private race discrimination. 32  Governmental entities has always included cities, counties, municipalities, etc; also any govt run entity will apply (utilities, universities etc.) 3. Incorporation of Bill of Rights into 14th Amendment:  The Bill of Rights, through its own force only applies to the federal government.  But, through the incorporation doctrine, the BOR have been absorbed into the Due Process clause. of the 14th amendment, making them applicable to the States.  The following provision of BOR are incorporated into the 14th Amendment:  First Amendment  Freedom of Speech  Fourth Amendmet  Fifth Amendment  Sixth Amendment  Eighth Amendment  prohibition against cruel and unusual punishment. -----------------------------Analytical Framework-TEST i. When can Congress OVERRIDE State Law by using its power to enforce the Reconstruction Amendments? 1. Who has the power to interpret if a state law VIOLATES the Constitution? a. Substantive Theory- Congress has the ability itself to define the Constitutional right. i. Broadest possible theory of Congressional role ii. Overruled in City of Boerne b. Remedial Theory- Once the SUPREME COURT interprets and understands a right, Congress can take actions to remedy violations as a way of enforcing that right i. Congress cannot determine that a State law violates the Constitution, that is the job for the judiciary (Katzenbach- Harlan dissent). c. Generally, Congress has broad remedial powers to counter Constitutional violations. Katzenbach v. Morgan (note: race factor here meant lesser scrutiny of remedial legislation). a. Facts: NY law required literacy for voting. In response, Congress passed §4e of the Voting Rights Act to overturn the literacy ban, especially its effect on Puerto Ricans not literate in English. Proper use of §5 power (14th Am) by Congress? Yes. i. Disposition: Congress may prohibit a facially constitutional state practice, like a literacy voting test, if Congress has merely a reasonable fear that the effect of the statute (not purpose) would interfere with a right guaranteed by a Reconstruction amendment. Katzenbach v. Morgan 1. Federal remedial actions regarding race must withstand a rational basis test [see Hibbs below]. a. Federal Act addressing the discriminatory effect of the NY statute vis a vis illiterate Puerto Ricans was a rational basis for remedial action. 2. Alternative Reading: Congres allowed to establish a scheme/remedies for citizens to exercise their voting rights. b. Functionalist arguments for giving Congress broad remedial powers: 33 i. ii. d. ii. Congress can appreciate all the detriments that come from this voting requirement. Congress has a range of investigatory options, as opposed to the Court which is limited to two diametrically opposed parties. Limit on Remedial Power: Congress has the pwr to “enforce” the constitution, but not the power to determine the scope and meaning of Constitutional rights guaranteed by the Reconstruction Amendments [essentially, Congress cannot say what is or is not a constitutional violation]. With regard to non-suspect classes. City of Boernes v Flores (1997)- congress can enforce but not expand i. Facts: A decision by local zoning authorities to deny a church a building permit was challenged under the Religious Freedom Restoration Act of 1993 (RFRA). The church‟s application for the permit conflicted with the requirements of the designated historic district. ii. iii. Holding: congruence and proportionality test Reasoning: Though §5 is a grant of legislative power it is not unlimited. Congress only has the power to enforce what rights people have, not to determine the substance of those rights. 1. Therefore the question that must be answered is, is the legislation remedial? 2. This must be judged with reference to the historical experience. Also in determining the appropriateness of the legislation there must be congruence btw the means used and the ends achieved. Comparing the voting rights act and the RFRA  There must be a record of persecution or injustice The solution must be in proportion to the problem  intrusion in govt should be as limited as possible  state law should not be so burdened with judicial scrutiny that they cannot regulate for health and welfare. Test: iv. Court holds this does not overrule Katzenbach- how can they be distinguished:  Separation of Powers - Judicial authority to interpret the constitution not congressional.  Federalism Concern – Need to put some limits on Congressional authority. Enforcement clause should not be used by Congress to do whatever they want iii. Boerne test and the 11th Amendment applied to Garrett: [handicapped class] 1. General State of Law a. Congressional remedy is not permissible when it provides jurisdiction for private suits against states [violates the 11th Amendment]. Garrett. b. When class is not suspect or semi-suspect: [as with the disabled]. Either 1 or 2 approaches may be taken: (Garrett) i. State discrimination: 1. Permitted if it has a rational basis. ii. Congressional response: 1. Must survive a strict scrutiny test a. Congressional action must be limited to measures that are almost perfectly fitted to the remedying of actual 34 b. constitutional violations (a compelling interest) by the states. Boerne test for congruence and proportionality is similar. 2. Note: discrimination by the state must be examined to determine the extent of the Constitutional violation, not discrimination by society in general. 2. Controlling Case: University of Alabama v. Garrett [Handicapped class] a. Facts: ADA (Am‟s w/ Disabilities Act) madated states to make facilities handicapped accessible. Provided for private cause of action. Congressional fact-finding tried to show pervasive state discrimination against the handicapped. b. Disposition: Unconstitutional statute. c. Decisions based on 2 principles: i. 11th Am: Provision in the ADA allowing for individual recovery of monetary damages from non-complying states was a violation of the 11th Amendment (states immune from private suits). Boerne Test: Congress had insufficient evidence of state discrimination against handicapped, thus making the legislation disproportionate [failing Boerne test] 1. Ct says that while there may be sufficient evidence of societal discrimination, there is little evidence of state discrimination against the disabled. d. Commentary: i. By keeping the §5 power of Congress constrained, 11th amendment protects the states broadly in relation to 14th Am actions [backwards]. 1. Double Meaning of “State”: 11th Am does not protect municipalities and other local gov‟ts under the word State. BUT 2. These entities may be sued under 14th [14th: “state” = state and local] Greater deference to Congress in exercising power with respect to Due Process Concerns. Controlling Case: Tennessee v. Lane (2004) a. Facts: Paraplegics sue state for denying access to the court system. The court house did not have adequate access for disabled persons. b. Disposition: Statute upheld.  Court held that the title is appropriate response to the history and pattern of unequal treatment of persons with disabilities. The chosen remedy is consistent with due process principles and only requires the states to take reasonable measures to remove architectural and other barriers to accessibility. a. Does not call for an increase in services or ask States to employ any and all means necessary. iv. ii.  c. Distinguished from Garett More findings of discrimination in this case than in Garrett  This case has compelling argument about access to courts and Due process –  Court skirts issue of other government agencies/facilities by focusing just on courts 35  Dissent says that certain parts of title II may not be constitutional in their application to things other than courts, making this case an exception and Garrett the rule.  Reasonable measures goes along with due process principle that w/in limits of practicability state must provide all individuals a meaningful opportunity to be heard Continuum of scrutiny by courts: race most, then gender, and disability is the least 10th Amendments Limit on Congress Sunday, April 10, 2005 12:41 AM A. When does Congressional action intrude too much on Statue Authority, limiting its regulation of the States? Federalism‟s Limits on Congress B. Relevant texts at tension: i. Supremacy Clause (for federal regulation): “The Constitution and the laws of the United States in pursuance thereof . . .shall be the supreme law of the land.” ii. 10th Amendment (for state sovereignty): “The powers not delegated to the United States by the Const., nor prohibited by it to the States, are reserved to the states respectively, or to the people. Differing approaches to the 10th Amendment: a. The 10th Amend has no constraints on Congress and does not create state power. Only a reminder that Congress only may legislate if it has authority under the Constitution. b. The 10th Amendment constrains Congress and protects state sovereignty from fed intrusion, reserving a zone of activity to the states for their exclusive control. Creates State authority. i. Growing interpretation . C. What is a “traditional (state) function” immune from Federal regulation based on the 10th Amendment‟s protection of state sovereignty? 1. Original test in National League of Cities (argued in dissent of Garcia). a. Led to Judicial subjectivity which is bad 2. Abolished in Garcia- too hard to draw lines on what is traditional governmental function. a. The mere fact that Congress (who is elected from states by state controlled qualifications) passed the bill, and the bill was not vetoed by the President (where the State plays a big role in the election), Necessarily means that state sovereignty has not been impaired. i. State sovereignty is protected by procedural safeguards. 3. Therefore, once Congress, acting pursuant to its Commerce power, regulates the states, the fact that it is a State being regulated has virtually NO practical significance. 36   i. If regulation would be valid if applied to a private party, it is also valid as to the State When Congress has subjected the states to generally applicable law, it will be held up. Generally applicable means that it will also apply to private persons. Controlling Case: Garcia a. Facts: Federal minimum wage/overtime standards for mass-transit workers passed under the CC power. The regulations imposed obligations on the state and municipality in question. b. Disposition: SC upholds statute as applied to the states. [Supremacy clause and Commerce Clause]. 1. States that once Congress, acting purusant to its commerce power, regulates the state, that fact that is a state being regulated, has virtually no practical significance. 2. If the regulation would be valid to private partis, it would be valid as to states. c. Principles: i. Congress may impose substantive obligations on states even with respect to traditional state operations. ii. Obligations may be placed on municipalities as well. [no 10th Amendment violation]. d. Commentary: i. Cases following Garcia have been withdrawing from its broad holding: D. Are there any limits on Congress‟ Commerce authority on States‟ Rights? 1. Congress cannot COMMANDEER states (no commandeering government processes). a. Congress cannot compel states to Enact and Enforce a federal regulatory program. i. Not part of the generally-applicable federal scheme. 1. Instead, directed specifically at the state‟s basic exercise of sovereignty. 2. States may not constitutionally consent to give up their sovereignty b. Congress may NOT: i. Force a State to legislate or regulate in certain ways, or ii. Require that State Executive branch personnel perform even ministerial functions. 2. What are the arguments for why Congress cannot commandeer states? a. Accountability- when congress forces a state to regulate a certain way it frustrates federalism by blurring the line of accountability. i. People don‟t know who to blame b. Historical Argument- the federal government under the Constitution regulates individuals NOT states i. However, the Constitution is designed to give the Federal government lots of power. i. Does this case more closely resemble Garcia or New York v. US? 1. How can Garcia, which grants broad powers to Congress, be distinguished from New York v. US, which seems to restrict Congress‟ power? a. Garcia- applies to generally applicable federal lawmaking 37 i. Congress can regulate states and local governments b. New York- Federal government tries to force a state government to enact legislation or regulation, or it tries to force state officials to perform particular governmental functions i. Congress cannot force state or localities to regulate 1. no commandeering government processes i. Controlling Case: New York v. U.S. (1992) a. Facts: Due to a lack of disposal sites and an unequal state disposal burden congress enacted the low level radioactive waste policy act of 1980. States continued to accept waste from other states outside their region for 7 years but could enact a surcharge, and after 7 years the states could refuse the waste. Three incentives were provided by the act for compliance. 1. monetary incentives- some money from surcharge was given to newly complying states. 2. Access incentives- denial of access to other states after new deadline 3. take title provision- the state in which waste is generated that is unable to provide for waste facilities will take title to the waste and be responsible for any damages incurred in relation to the waste. b. Holding: Though the fed govt is limited by the 10th am it has expanded over time due to the commerce clause, the general welfare clause, and the supremacy clause. Under these three powers congress does have the right to regulate disposal of radioactive waste. However here the question is, does congress have the power to use the states as implements of regulation? The con allows congress to act upon individuals, not states. Congress can encourage states to act in a certain manner using the spending power or can offer the choice to states to regulate as requested or be pre-empted, but here in the take title clause congress compels the states to regulate. 1. Monetary incentives in this regulation- okay 2. Access incentives –okay 3. Take title provision- not okay   State of Law: After NY if a regulation specifically regulates states only then congress must be very careful about the policy underlying the legislation Difference btw Garcia and NY i. Garcia is regulating states and private enterprise ii. NY is regulating only the states iii. Garcia is requiring certain actions of the states iv. NY is requiring certain legislation from the states Commandeering issue- govt cannot force a state to enact a certain statute or regulate in a certain manner Congress has the power to regulate individuals not states. Congress can pass law requiring or prohibiting certain acts, it lacks the power directly to compel States to require or prohibit those acts.  i.e. Congress can regulate IC but Congress cannot regulate state's governments' regulation of IC.  Congress can encourage and have incentives  But it cannot coerce a state.   38 Federalism Limits on States Sunday, April 10, 2005 12:42 AM I. Limits on the States in restricting the federal government A. Term Limits  General Status of Law: States have no power to restrict the federal govt (ex: state legislatures cannot overrule a federal statute), which extends to state-imposed term limits on Congressional members. Thornton a. Controlling Case: US Term Limits, Inc. v. Ray Thornton 1. Disposition: TL unconstitutional. 2. Underlying Principles and Arguments a. Functional arguments ignored b. Textual [equally strong either way] Qualifications clauses [AI, §§2-3: age, citizenship and residency req‟ts] i.  Majority: Nothing in Constitutional text indicates that there should be more qualifications.  Dissent: this list is not exclusive; it is the minimum [TL should be allowed].   ii. AI§4 cl4: “Times, places and manner of holding elections for senators and representatives shall be prescribed in each state by the legislature.” [dissent cites, maj. says this is not relevant to term limits]. c. Intent/History Arg. TL are not an “original power” belonging to the states under the 10th i. Amendment, because there was no election qualifications prior to the enactment of our federal government. Precedent Arg. Congress cannot add qualifications for membership to Congress and thus i. States cannot do this either. Powell v. McCormack (black candidate from Congressional Office). Egalitarian Argument People have the right to choose representatives and additional qualifications i. undermine this right. Other Arguments (for Dissent) It is the people in the state who choose, and it is these people who passed a i. state con amendment to limit their choices.  Counterpoint: What about those new to the electoral process that did not get to vote on this? Problems Are state laws disqualifying felons from office Const? [felons DQ themselves, i. to distinguish] Are there implicit structural limitations on what the state can do to federal and ii. vice versa? d. e. f. g. B. Federal Preemption of State Law:   General Status of Law: Preemption doctrine mandates that valid federal law, including statues, treaties, or executive agreements, admin. regulations etc, supersedes (replaces) state law that is inconsistent with: (1) specific terms or (2) overall objectives of the federal law. i. Relevant Textual Authority: Supremacy Clause (Article VI, clause 2): 39  This Con. and the laws of the US which shall be made in pursuance thereof and all treaties made. . . are the supreme law of the land . . . any thing in the constitution or the laws of any state to the contrary notwithstanding. ii. Kinds of conflict that justify pre-emption: [make sure that the exercise of federal authority is Constitutional] 1. Express:  When there is direct conflict in the language and/or purposes of the respective laws, statues, regulations. .  When Congress has pre-empted the entire area where the state provision lies. 2. Implied: Preemption is implied by Congressional intent.  Controlling Case: Geier v. American Honda Corp.  Court held that a administrative regulation with the purpose of promoting increased air bags in car manufacturing pre-empted state common law requiring air bags.  To allow the state law to govern would frustrate the purpose of the federal act; which is to allow gradual development of air bags in cars manuf.  Court held that the preemption was implied in the statue. iii. Presumption v. No presumption for preemption 1. Statutory Area. a. Areas of traditionally state authority [Lopez and Morris]  there is a a presumption against preemption.  Also Administrative agency regulations  presumption against preemption. (dissent Geier)  Are Admin regulations laws of the US? Majority: Congress passed law creating regulatory agency and giving power to create regulations (delegation issue) b. Areas of exclusive federal authority  Presumption for preemption. i. Foreign affairs, for example. c. Middle point is no presumption at all whether federal displaces state law – look at factors and decide (statutory construction not constitutional law  O‟Conner falls into this category – looks at facts of each situation 2. Prejudice of the Justice in question a. 2 extremes: Breyer (presumes fed preempts state) v. Thomas (presumes that fed does not preempt state) C. The Boundary of Preemption Authority: i. Presidential actions [not legislation or any type of agreement] may preempt state law.  Garamendi (CA law requiring disclosure of German banking records preempted by Clinton‟s diplomatic negotiations w/ Germany to assist with Holocaust issues). Dormant Commerce Clause Thursday, April 14, 2005 12:43 AM 40 I. Has a State sought to regulate or tax interstate commerce in a manner that would be better left to Congress? AREA OVERVIEW:  Origins of the Dormant CC [skeptical; Congress more adept for this kind of regulation (Scalia, Rheinquist and Thomas] a. General Status of Law: The DCC is a limitation on state action that violates the CC, only where Congress is silent. The DCC empowers the judiciary to strike down the offending state action. i. “Normal” Commerce Clause distinguished: 1. State violation of the CC can be corrected by judicial action under the Dormant CC.  However, “normal” CC litigation usually involves the challenging of a federal statute (valid use of the CC power?). 2. Contingent nature – Congress can reverse cts holding by passing legislation validating or invalidating a state‟s action. a. Supreme court‟s role is limited to interpreting Congressional silence. Congress is free to respond “thanks, but no thanks.” b. Theories on determining if a State has violated the Interstate Commerce Clause.  Political Theory: The State action is a threat to National unity. o States should act as one nation, never hostile to others.  Q: Is the state trying to make itself separate from the other states and discriminate against other states? Economic Theory: Prevent states from imposing costs on others and keep benefits to themselves o Is the statue discriminatory against or have an adverse effect on interstate commercial transactions?  State cannot enact a law for purpose of regulating interstate commerce (no economic protectionism) ----------------------------------------------------------------------------------------TEST: Q #1: Does the state or local law (facially) DISCRIMINATE against Interstate Commerce?  Q #2: Does the law have the practical affect of regulating out-of-state transactions? a. Analysis Framework: Does the state action discriminate against other states?  Does it affect those who are intra-state as well as those inter-state?  Is the home state treated the same way as states abroad.  If both groups are affected leaning towards not being discriminatory  Does it specifically address Geography? A geographical distinction causes for a presumption of invalidity.  Mention if Congress has been silent; congress can change any DCC ruling.  Does it focus on the out-of-state character of something?  Is yes, law is PROTECTIONIST and illegitimate (City of Philadelphia) b. DCC - Environmental Regulation i. General status of law: The Court may invalidate state laws that facially discriminate against out-of-staters [here, in the area of environmental regulation].  41 ii. Controlling Case: Philadelphia v. New Jersey 1. Facts: NJ closed borders to outside waste trying to be exported to NJ. 2. Disposition: State regulation violates dormant CC. iii. Underlying Principles and Arguments: 1. Facially discriminatory statute [best argument] 2. Purpose of statute was economic [an “interstate commerce service”] as opposed to environmental/health-related. Thus, not falling under the state police power. 3. History: purpose of Const. and discarding of the Art. of Confed. was to tear down protectionist state barriers like the one here. 4. Political Accountability: The Ct does not want NJ legislators to impact the rest of the country. iv.  General Commentary: Economic Argument:  Producers of Waste:  In NJ-win if statue is valid  Out Phil- loss, have few landfills  Treaters  In NJ -lose; less garbage to treat can't raise prices. stablized prices for NJ residents.  Out NJ-win-more demand for their services c. Poss. State Exception: Is there a RIGOROUS SHOWING of NO ALTERNATIVE For the State?  Is there is NO less discriminatory alternatives available?  Strict Scrutiny test: Facially discriminatory regulation also allowed when state interest is compelling  A state may not improve its situation at the expense of its neighbors‟ interests UNLESS no reasonable alternative is available.  Does this resemble a QUARANTINE case? i. Is the law banning the importation of certain materials? 1. Are those materials Hazardous at the Moment of Importation? a. This is sufficient for Quarantine showing. 2. Does the material endanger health only AFTER some amount of time? a. Rehnquist’s Dissent (City of Phil) argues there really is no difference between the two because at some point they will sufficiently danger people‟s health.  Is this like a Maine bate fish case? i. Out of state products are so different than the in state products that not allowing out of state products from entering would protect the home fishes. ii. 21st am. allows facially discriminatory state regulation of liquor Q#3: Is the Law Facially Neutral but placing a BURDEN on Interstate Commerce? Must weigh the interests in a BALANCING TEST: Does the law represent the least burdensome means for the state to achieve its goal? 42 1. What are the LOCAL BENEFITS? a. Law must be rationally related to achieving a legitimate government end such as the promotion of health, safety and general welfare of its citizens. i. How much does this law improve the governmental interest (health or safety)?  Wilson v. The Blackbird Creek Marsh Co. Facts: Federally licensed sloop hit a state-erected dam blocking navigation of a Delaware creek. Captain was drunk [significant consideration]. Disposition: State dam held constitutional [passes DCC analysis]. Principles – Balancing Test Analysis: 1. Court moves away from the Gibbons framework of asking whether there is a substantial effect on interstate commerce. 2. **Now the Court weighs the state interest in regulating its local affairs against the national interest in uniformity and in an integrated national economy. a. Factual application: Strong state interests in regulation; dam drained unhealthy marshes and created wealth in new usable property. Slight federal interest (small waterway, compared to the Hudson R. in Gibbons). b. But-This balancing might be better left to the Congress. 3. Other considerations allowing state law to pass DCC analysis: a. Purpose of dam was health of nearby inhabitants, not regulation of IC b. Non-discriminatory: both state and out-of-state travelers blocked by dam [thus closer to the neutral statutes discussion, at 3 below]. b. How much DEFERENCE do we give to the state legislature‟s regulatory purposes for enacting a law? i. Powel (majority) in Kassel: 1. Less deference will be given to the findings of state legislatures where the local regulation has a DISPROPORTIONATE effect on Out of State residents and business ii. Assess whether the state action‟s PURPOSE is to regulate commerce or if it is a legitimate POLICE POWER designed to protect the health and safety of its citizens? o State could sometimes affect interstate commerce as an Incidental consequence of its exercise of its “Police Powers”  Kassel v. Consolidated Freightways Facts: Iowa statute establishes a 55 ft. max for double long trucks [both in and out-ofstate]. Statute enacted because large trailers likely to jacknife and cause injury. Exceptions allow border cities w/in Iowa to use larger rigs. Disposition: Unconst. statute Underlying principles and arguments: 1. B/c of exemptions the statute is essentially protectionist even though it is not facially discriminatory. 43 a. Exemptions for in-staters elevate the level of scrutiny. 2. Political Accountability: All Iowa citizens are potential accident victims who would support these size limits; they have no incentive to redress the discriminatory effect of this statute for out-of-staters. a. But cf: Exxon i. Facts: state law that retail service stations in MD cannot be run by production/refinement co.‟s [located primarily out of state. ii. Law allowed b/c residents of MD who will have higher prices can respond by voting out the state legislature. 3. Assessing who is benefited and who loses by the statue. For this case:  Truckers:  In Staters: Win  Out-Staters: lose  Citizen Safety:  In Staters- Win  Out-staters: Lose **In staters win in both scenarios. This case is one in which the court's intervention is needed more.(as opposed to the NY case). 2. What are the BURDENS to INTERSTATE COMMERCE? a. Very fact specific: how are out-of-staters burdened by this law? b. See Carbon v. Clarkstown Local ordinance Requiring waste entering or originating in Clarkstown to be processed only at the town facility is an impermissible burden on IC.  O'connor concurrence: states that it is discriminatory against both in & outstaters in favor of one local facility. Not discriminatory against the users.  removes competition  burden on IC, not discriminatory  Have to look at who's hurt and who's benefited when attempting to ask if something is discriminatory. Discrimination against interstate commerce in favor of local business or investment is invalid (Carbone). i. Balance interests of those instate vs. those out of state. 1. If out-of-staters are severely burdened, statute could be deemed discriminatory. Even though it is a city-court held that any discrimination on the basis of geography is essentially discriminating about state lines.   3. Which seems to Prevail? a. State safety regulations will be struck down when a marginal increase in safety causes a substantial burden on interstate commerce. b. But See: Rehnquist (dissenting) in Kassel: 1. Safety regulations are only invalid if the asserted safety justification is merely a pretext for discrimination against interstate commerce.  Shows Great deference to state legislatures Q#4: Does the state or local law fall into the MARKET PARTICIPATION EXCEPTION? 44 Is the State participating in a MARKET (are they acting as private business)? 1. When a state CREATES commerce rather than Regulates it, they are a participant.  A State is a “market participant” (as opposed to a market regulator) when it engages in the buying and selling of goods.  In this capacity the state can discriminate in favor of it‟s own. Doesn‟t have to employ the lowest price producer, free to discriminate in favor of its own citizens.  Analogy – treat state as you treat any other market participant. As market actors, we are free to make our own choices. a. in Hughes v Alexandria Scrap Corp a MD facially discriminatory law was upheld under this doctrine- placing a bounty on MD licensed junked automobiles and placing more stringent documentation requirements on out of state scrap processors- because nothing in the commerce clause prohibits a state from acting in the market and favoring its own citizens. b. in Reeves Inc v Stake a South Dakota policy restricting the sale of cement from a state owned plant to state residents was upheld a market participant can freely exercise discretion in whom he will deal with. c. In White v Massachusetts Council of Construction Employers Inc (1983)- the court rejected a commerce clause challenge to an executive order of the Mayer of Boston that required all construction projects funded in whole or in part by the city to be performed by a work force of at least 50% city residents.  The court held that everyone affected by the order was substantially working for the city which was crucial to the market participant analysis. 2. When will state‟s activities NOT fall into the Market Participation Exception a. Is this a pure NATURAL RESORUCE that is being sold? i. Does it more closely resemble Timber (Alaska) or Cement (Reeves)? 1. Cement is a result of a manufacturing process (unlike trees) b. Is the State attempting to affect parties beyond those it is contracting with (DOWNSTREAM REGULATION)? i. Is the state just selling something, or are they requiring something else (regulation)? 1. Is the State regulating something other than buying and selling? ii. Do the burdens on commerce affect more than those involved in the immediate transaction with the state? 1. The Immediate Transaction is buying products from the state at a reduced rate. 2. Excess Burdens: Is the state requiring purchaser to perform acts that puts out-of-state purchasers at a disadvantage (in order to get the product at a reduced price)? iii. Downstream Regulators : Exception to MPE; i. States that place downstream regulations will fall under the power of the DCC. Defined as restricting the post purchase activity of the purchaser, rather than merely the purchasing activity. South Central Timber v. Wunnike i. Facts: Alaska sold timber, but req‟d that all timber purchsed from the state be processed in a state facility. Almost all timber sent to Japan. ii. Disposition: Statute unconstitutional 45 1. Downstream restrictions on purchased timber made the market participant exception N/A here; Alaska cannot violate DCC, which it did here [state regulation interfering w/ foreign commerce – strict scrutiny analysis] c. Does the state‟s activity Significantly affect FOREIGN COMMERCE? i. Is the state selling its product more to foreign countries than to domestic states? 3. What can the State do if they want to Regulate this activity Consistent with the Market Participation Exception?  Subsidize industry within the state  State themselves can process the natural resource and sell it to whomever it wanted to at whatever price it wanted to.  State can sell the natural resource to processing plants within its state. State Privileges & Immunity Sunday, April 10, 2005 12:43 AM I. State Privileges & Immunity Textual Authority: Article IV §2 cl. 1: “The citizens of each state shall be entitled to all the Privileges and Immunities of Citizens in the several states. Overview of Law: The clause prohibits states from engaging in certain types of discrimination against out-of- staters. o The clause only affects those interests or rights that are deemed fundamental. o But, statue can be upheld if the state can demonstrate that there is a substantial reason for treating out of staters differently. Q#1: Does the challenged law affect a fundamental right, privilege, or immunity that falls within the purview of the clause.  Privileges & Immunities Protected under the Clause: 1. The right to pass through or travel in a state 2. The right to reside in a state for business purposes 3. The right to do business in a state 4. The right to be employed and practice one's profession 5. An exemption from higher taxes or impositions that are paid by the citizens of the state. Q#2: Is the Law's discrimination of a type that is prohibited by the Clause?  Is the law‟s discrimination based on state citizenship or equivalent? Q#3: Does the State have a "substantial reason" that justifies its discrimination against out of staters?  need tight fit btw regulation and evil sought to be remedied to justify the discrimination. 46  The discrimination against non-residents must bear a substantial relationship to the problem the statue is attempting to solve. Controlling Case:  United Building and Construction Trade Council v City of Camden (1984) a. Facts: A municipal ordinance in Camden, NJ requires that 40% of employees of contractors and subcontractors working on city construction projects be Camden residents.  No commerce clause case b/c of market participant exception (see White above).  The Council challenged the ordinance as a violation of the Privileges and Immunities clause. b. Disposition-Ban on out of state discrimination is not absolute. Case remanded to determine if middle class flight concern is a “substantial reason” to justify discrimination against out-of-staters. c. Reasoning: In support of the ordinance it is suggested that 1. the clause only applies to laws passed by a state.  The first argument is rejected- that fact that the ordinance is municipal does not place it outside the scope of the clause. A municipality is a political subdivision of the state. 2. The clause applies only to laws that discriminate on the basis of state citizenship.  The clause is phrased in terms of state citizenship and was designed to place the citizens of each state on the same footing.  Municipal residency classifications are not different from state classification. A person not residing in that state is clearly not residing in that municipality and so will be excluded. Employment is a protected privilege, but public employment is not the same as private.  Under the commerce clause the distinction would be permitted based on the market participant doctrine.  Under this clause the issue is out of state discrimination, not interstate commerce, therefore the fact that Camden is expending its own funds is a factor, but not determinate. d. Camden must have a substantial reason for such discrimination to be allowed. B. Difference btw Privileges and Immunities and Commerce Clause:  Substantial overlap as both deal w/ discrimination against out of staters  P&I- when available is more powerful  Aliens and corporations can not invoke P&I -citizens only  Any person and corps can invoke DCC  P&I requires discrimination + a fundamental concern- unless there is a substantial reason  DCC requires discrimination or burden (high burden to justify discrimination but low burden to justify burdening commerce)  Congress can reverse court decisions on DCC  Congress cannot reverse P&I decisions of court 47  C. Generally DCC is goods and services while P&I is people D. Citizenship Privileges & Immunity Sunday, April 10, 2005 4:15 PM VII. Citizenship, Privileges, and Immunities 1. Origins of the 13th, 14th, and 15th Amendments a. 14th Amendment: i. No state shall abridge privileges or immunities of US citizens ii. No state shall deprive any person of life, liberty or property w/o due process of law iii. No state shall deny any person w/in its jurisdiction of equal protection under the law b. Amendments overrule Dred Scott (AAs not citizens, Missouri Compromise unconstitutional, immense political consequences) i. Parallel to Roe‟s treatment of substantive due process: Judges determine who gets life, liberty and property by infusing their own policy views into the Constitution. 48 2. Federal Privileges and Immunities-14th Amendment P&I [of US citizens, not the Article IV PI‟s of other States] a. Federal privileges or immunities are practically eliminated at early common law (Slaughterhouse Cases) Slaughterhouse Cases 1. Facts: LA passed a state law giving a monopoly to New Orleans area slaughterhouses to a particular company. a. Respective Claims i. Butchers that were not included claimed that the statute deprived them of the opportunity to practice their trade and thereby violated the 14th Amendment (PI clause). ii. The state argues that it can limit where this activity occurs, to protect the health and general welfare of the state. b. PI clause in Article IV not available because it only applies to out of staters. [butchers here were in-state residents] 2. Disposition: Upholding state law, denying federal PI‟s claimed by the butchers. 3. Principles: a. National/State PI Breakdown i. National Privileges or Immunities [14th Amendment] 1. Seaport access 2. High seas 3. Interstate travel ii. State Privileges or Immunities [Article IV] 1. Matters of fundamental concern (Camden) a. Employment/right to earn a living i. [Butchers in Slaughterhouse Cases go here-but remember they weren't out of staters] 4. The circumscribed interpretation of 14th Am. PI has resulted in a very expansive interpretation of due process and equal protection. b. Recent additions to the list of federal privileges and immunities i. “Right to travel” (Saenz) 1. Specifically, the right of a person who has recently become a citizen of a state to enjoy the same privileges of a longer-standing citizens of that state. a. Saenz (striking down state law limiting welfare for people residing in CA for < 1 year to the amount provided by prior state of residence) [CA had very high benefit levels] b. Strict scrutiny analysis [for federal action]: i. Strict scrutiny test used to strike down law denying welfare for new residents completely) the Court was trying to avoid an expansion of strict scrutiny. ii. Thus, this case will probably be read fairly narrowly. Procedural Due Process Sunday, April 17, 2005 49 5:28 PM Procedural Due Process Overview:   Derived from the Due Process clauses of the 5th Am (in case of federal gov‟t) and the 14th Am (in cases of the states). Clauses prevent the gov‟t from depriving any individual of life, liberty or property without due process of law.  Mere negligence is insufficient to support a due process claim; must be something more. Distinction b/w procedural and substantive DP:  Substantive DP is a Constitutional limitation on the substantive power of states to regulate certain areas of human life.   Procedural DP requires the state to have adequate procedures in place before depriving the person of life, liberty or property. Generally: if you win on process, kind of hollow victory b/c only gets you more process. Better to win on substantive ground.  Gov‟t not barred from procedural irregularities unless life, liberty or property are being taken. If none of these interests are implicated, gov‟t can act as arbitrarily as possible.  I. 2-fold inquiry (keep as separate as possible) Step one – Is there a Property or Liberty interest being deprived?  focus is on statutory law as to what constitutes property, life and liberty – includes many public benefits, tax exemption, SS, pensions, licenses to engage in trade. a. General Categories Liberty i. 1. Physical liberty 2. Intangible rights (right to practice one‟s profession, for ex) Property ii. 1. Conventional property 2. Gov‟t Benefits and Employment [stressed in this course]: 3. State-funded education b. c. Might be able to prove relevant in interest by custom. property encompass benefits you are receiving, but not benefits for which you would like to qualify.  Although a person can have a property interest in her claim benefits.  Gov. cannot deny claim to someone who meets the requirements.   Careful: MUST be gov‟t denial cannot implicate procedural due process w/private entities. General Rule & Case Examples: i. General Rule: There are no inherent procedural DP requirements governing the granting of property, but once the property has been given (e.g. employment), there are expectations of process/fairness before it can be legally taken away.  Hypo: President and Congress limit welfare to 24 months. No procedural requirement of hearings: the property right itself has been redefined. (clarify) Government Employment  Refusal to rehire after non-tenured employment period ends: ii. 50 a. No liberty or property interest found when the state refused to give any reason for its decision not to hire a non-tenured teacher who just finished his 1st 1 year K. Roth b. There is a liberty or property interest when state refused to give any reasons for not hiring a non-tenured teacher who just finished his 10th 1 year K (de-facto tenure). Perry  Firing a tenured state employee: a. There is a property interest in continued state employment Loudermill (State did not give employee an opportunity to respond to charges against him until after the termination) i. Rejecting the argument that such a process requirement expands the property interest itself. Cutting off Social Security benefits (Matthews)  iii. Immigrants  Immigrants [“persons”] who enter the country acquire DP and EP rights [not PI‟s – these are reserved for citizens]. Being stopped at the border [or being detained in Gitmo] block the acquisition of these rights. a. Common Law i. Pre 9/11: Zadyvdas Holding that indefinite detention is not permitted when an alien is under final removal order – following detention hearing. i. Post 9/11: Demore Upholding continued detention of a resident alien prior to his deportation hearing) o Distinguished from Zadyvdas – in that case deportation was “no longer practically attainable,” unlike in Demore. o In Zadyvdas, detention was “potentially permanent,” unlike in Demore. The immigrant in Demore was a greater flight risk. Detention was after removal order processed in Zadyvdas. In Demore the detention was b/f removal order processed. Substantive liberty question in Zadyvdas compared to strict procedural due process ques in Demore. o o o II. Step two – If a deprivation, than what is the proper procedure (process) that is due? (Mathews test)   focus is on federal law – what process is due? (constitutional protection) government had total discretion in creating a property right, but once it is created, must follow the Con. procedure before it can be taken away a. If so, what is the process was “due” him prior to the taking?  Balancing Test used to determine if the process in question is required. 51 Assess: 1. The strength of the private interest affected.  The bigger the individual stake in the outcome, the more safeguards to be required 2. The risk of erroneous deprivation of such interest through the procedures used. And the value of any additional or substitute procedures.  Multiply these two 3. The government's interest, including the function involved and the fiscal and administrative burdens that that the additional or substitute procedure would require.  Common Law application of the Balancing Test: 1. In Matthews, the Court held that an evidentiary hearing was not owed to the P b/f disability payments were withdrawn.  Balancing the Facts: i. Unlike welfare, disability benefits are not based on need and recipients may have other forms of income  (Low private interest) ii. Low utility for pre-termination evidentiary hearing. The asesments could be submitted via written documents; no hearing req‟d.  This was a medical decision; creating sympathy is not relevant to the decision. High cost [government burden] iii. 2. State employees that may only be fired for cause have a right to:  Notice of the charges  Some opportunity to respond (not necessarily a full evidentiary hearing).  Loudermill (After doing the Matthews balancing test). a. But cf: when a full evidentiary/predetermination is required: i. Criminal contexts ii. B/f withdrawal of welfare benefits i. Hypotheticals 1. HYPO: Suppose student at state university is dismissed for cheating on an exam. How would you apply due process? a. Property/Liberty interest? Yes – Property [to continue education] i. High interest [stigma of expulsion] b. Utility/Erroneous Deprivation i. Depends on the charge: low if it is failing to meet a GPA minimum, but high if a rape charge c. Cost i. Probably low d. The student would probably have the more persuasive argument. 52 Substantive Due Process Sunday, April 17, 2005 6:55 PM I. Substantive Due Process Overview: Where states limits on human conduct are unreasonably interfere with important human rights that they amount to an unconstitutional denial of liberty. (Insists that the law itself be fair and reasonable)  Economic rights  Period from 1900 to 1937 was characterized, by widespread invalidation of economic  legislation on substantive due process grounds. Economic rights are now generally assessed under rational basis standard and are rarely invalidated.  Personal rights: a. Abortion b. Family and Marriage rights c. Sexual orientation d. Right to Die   Fundamental Right: A non-enumerated right, so fundamental in its nature that it is protected against state intrusion. Incorporation of the BORs a. Bill of Rights originally applied to federal government, but the it is now applied to state action via the 14th Amendment. i. [with a few exceptions] ii. [5th Am. DP applies to federal government by reverse incorporation]. b. Other “fundamental” rights also apply to the state i. But cf: J. Black‟s position that incorporation ends with the BORs. ---------------------------------------------------------------------------------------Analysis Framework: 1. Is the regulation Economic ?  Yes: Use-Rational basis Test/ Great legislature deference 2. Is the regulation Non-Economic? o Is it a Fundamental Right? (see personal rights above)  Yes: Use-Strict Scrutiny Test/Compelling State Interest/Narrowly Tailored  But See: Punitive Damages Cases  No: Rational Basis/Rationally Related/Legitimate Gov. Interest ---------------------------------------------------------------------------------------i. Is the state‟s act an ECONOMIC REGULATION?  Courts give much greater deference to the state legislatures when dealing with economic issues (West Coast Hotel overruling LocKner)  Courts rarely even review state legislative economic regulation for substantive due process violations. Case Law: Lockner 53 i. Lockner (overruling a state law limiting the work hours of bakers for health and safety reasons) a. Disposition: Freedom to K is a liberty interest [or a “fundamental” interest; state action must therefore pass the equivalent of strict scrutiny]. i. Rationale: No “tight fit” b/w legislation and its objectives (there were other ways to protect bakers‟ health, bakers are not a suspect class, the real motive was to interfere w/ the labor market). Overruling of Lockner – New Deal Era Approach: i. West Coast Hotel: state minimum wage upheld. Freedom to contract is protected aspect of liberty but there are essential limitations of liberty in general and freedom to K in the particular.  As long as legislature acted reasonably (not arbitrary or capricious) that is sufficient  Rational basis test ii. Carolene Products: presumption of constitutionality for substantive DP attacks on econ. regulations ii.  Courts do regulate SDP in Punitive Damages area. Case Law: State Farm i. Disposition: Used substantive due process to reverse a jury verdict of 145 million [punitive], where compensatory damages were only 1 million. 1. Rationale: Jury was trying to punish State Farm practices in general, including similar, out-of-state conduct. 2. Used 3 Part test: i. Degree of reprehensibility of D's conduct ii. Disparity between the harm suffered and punitive damages iii. Difference between damages given by the jury and penalties imposed in similar cases. Seems to suggest that jury’s economic policymaking in State Farm is analogous to the state legislature in Lockner. 3. ii. Is there a FUNDAMENTAL RIGHT? Overview: These implied rights are not located in the Constitution o There is usually never a clear Constitutional source for fundamental rights. 1. PRECEDENT: What fundamental rights have the Supreme Court specifically upheld? i. The right to Marry: a. Marriage is a “fundamental” right i. Apply strict scrutiny, or something close to it (“state must show sufficiently important interest and a closely tailored statute...”) in to state laws restricting this right. Zablocki ii. If the statute does not significantly interfere with one‟s ability to marry, it would need only pass a rational basis test. Zablocki. 1. But cf Jost (cutting off dependent child‟s benefits if marriage regulations are not adhered to  Constitutional). 54 b. States cannot make marriage conditional on (1) paying alimony and (2) showing it is likely that child from other relationship is not likely to b/c a “public charge.” This significantly interferes w/ ability to marry. Zablocki i. Reasoning: less restrictive means available to achieve the same result (civil contempt proceedings, for ex.) c. “Traditional” practice and strict scrutiny: i. Scalia opinion in Michael H. says that a fundamental right is found where traditional values apply. This depends on how we characterize the right in question: 1. Applied to gay marriage issue: a. Scalia opposes saying not traditional b. Brennan: tradition is just marriage, generally. 2. Applied to marriage: a. Scalia may agree w/ statute, citing how nuclear family arrangements are the tradition. b. Brennan: family itself is the tradition, which could include nonnuclear relations. d. Theme: the “fundamental rights” of 2 different groups are opposed to each other. ii. Rights of families to live together. Moore  Unrelated people living together as a “family:” State restrictions must pass only a rational basis test. Belle Terre   Nuclear family: state restrictions must pass a strict scrutiny test. Extended family (as in Moore) must pass a heightened scrutiny standard. i. Relevant Facts: East Cleveland Housing ordinance limited dwelling occupancy to members of a nuclear family, imposing criminal sanctions for violations. City found Mrs. Moore in violation b/c she lived with her son and her two grandsons, who are cousins rather than brothers. RACE!! 1. Note: the discriminatory effect of this statute against poor blacks raised the scrutiny level. a. Observation [dissent]: this was a BUPPY community! iii. The right to direct the upbringing of one‟s child: :  Parents have a fundamental DP interest [the oldest liberty interest] in determining which people outside the nuclear family will have access to their children. Troxel i. Any state regulating this right must satisfy what seems to be an elevated scrutiny test [no explicit mention in Troxel]. ii. Relevant facts: Court overruled state court order giving visitation rights to grandparents and “any person” that could “best serve the interest of the child.” Problematic broadness: Note that Court overruled an order granting visitation privileges, which incidentally were opposed by the mother, to potentially non-relatives iii. iv. The right to privacy and the use contraception  Griswold 55  Disposition: Overruled CT statute banning aiding the aiding and abetting of contraceptive use. Rationale: Several of the BOR guarantees [1st, 3rd, 4th, 5th, 9th Am.‟s] protect the privacy interest and create a penumbra or “zone” of privacy. v. The right to Abortion & Bodily Integrity Roe V. Wade   Disposition: women have a fundamental right to privacy in the realm of child-bearing. Therefore, the state legislature has a limited right to regulate, but cannot completely proscribe, abortions. a. Established a trimester framework. i. 1st T – State cannot ban or closely regulate abortions  Rationale: very low mortality rate for mothers; state does not have a compelling interest for regulation. Strict Scrutiny Test ii. iii.  2d T – Police power to protect the mother‟s heath [no flat ban on abortions allowed]. 3d T – Strong state interest in preventing woman to abort.  Fetus is usually viable at this point. Planned Parenthood v. Casey Partial overruling of Roe: a. What was overturned: abortion as a fundamental right, trimester framework [specifically, strict scrutiny for regulation of abortion in the pre-viability phase]. b. Holding: The new standard for abortion regulation is the undue burden standard  Pre-viability; states cannot place an undue burden on the right to have an abortion.  Post-viability: state may proscribe all abortions not needed to protect the health or life of the mother. c. Specific state regulations assessed in Planned Parenthood: o Informed Consent: requiring Dr. to tell woman about the risks of abortion and childbirth, gestational age of unborn child and the nonabortion alternatives. Exception for medical emergencies. Not an undue burden. Parental Notification: for minor. Exception for emergencies. Not an undue burden. Spousal Notification: Undue burden o o  Partial-Birth Abortion 1. Stenburg v. Carhart (overruling state statute banning D&X method) [D&X  collapse and vacuum baby‟s skull.) a. Principles: Statute places an undue burden on right: i. No “health of the mother” exception [undue burden because D&X may be better for mother‟s health] 56 ii. Vagueness [if a part of fetus entered birth canal, this could keep Doc‟s from doing D&E method]. vi. The right to refuse unwanted lifesaving medical treatment:  A competent adult has a 14th Amendment liberty interest not to be forced to undergo unwanted medical procedures, including artificial life-sustaining measures. Cruzan. a. When adult is seriously incapacitated: the state has a compelling interest (certainly counts as a “legitimate state interest”) in preserving the lives of “full people” [as opposed to fetuses]. Cruzan  Relevant Facts: State‟s living will statute required clear and convincing evidence that incompetant would want life support withdrawn  constitutional. [states may at least require this evidentiary standard] 1. Incompetant made alleged prior statements that she would not want to be kept alive in a comatose state. Court held that this did not statisfy the clear and convincing standard. Commentary: Court reluctant to say what is specifically required; deference to state legislatures.  vii. Right to commit Homosexual Acts  Homosexual conduct is a liberty interest under substantive DP. a. There must be a legitimate state interest in enacting anti-sodomy laws directed at homosexuals [overruling Bowers]. b. Controlling Case: Lawrence v. Texas  Relevant facts: TX statute making sodomy in homosexual context criminal.  Controversial Rationale: Lawrence court found no legitimate state interest in statute, but also cited the reversing trends in Europe regarding the sodomy prohibitions. 1. Why Europe?  US has citizens from many areas in the world that treat gay sodomy harshly. 2. This rationale is a new approach for the Court; examine current trends [“growing awareness of liberty”] to decide what the Constitution means.  Homosexual Right to Marry Not given strict scrutiny; court uses rational basis test but finds 2. What fundamental rights have the Supreme Court REJECTED? Overview: Courts are very RELUCTANT to expand the concept of substantive due process beyond those previously upheld (Washington v. Glucksberg) i. No right to commit suicide: Washington v. Glucksberg 1. Majority reserved the question if a patient were terminally ill with unrelievable pain (less of a state interest). 57 2. Even if there is a substantive [liberty] DP right to commit suicide, it is not “fundamental.” Thus state regulation affecting suicide need only a “rational basis,” which the Court found for a ban on physician assisted suicide. a. Controlling Case: Glucksberg i. Relevant Facts: WA statute criminalized physician assisted suicide. ii. Rationale: 1. Only rights or interests deeply rooted in this Nation’s history and tradition. Suicide does not count. 2. Legit. state interest in preventing suicide: a. Inrerest in preserving human life b. Protecting integrity of the medical profession c. Protecting the vulnerable d. Slippery slope leading to involuntary euthanasia. Commentary 1. Court avoids deciding if there is a liberty interest in suicide. 2. The specific methodology in these cases depends on context. iii. 3. TRADITION- has History always treated this right to be lawful or unlawful? a. How broadly or specifically should we analyze the alleged right? i. Level of Generality debate: what is proper level to look at? 1. Scalia View: tradition is Always to be viewed in most narrow context; otherwise Judges are determining laws. 2. Others argue that the right should be looked at broadly (instead of right to abortion, right to control one‟s body) b. Souter View: evolutionary view- things move, and should look at the flow of history. i. Where are we heading now based on historical progression c. Holmes (in Lochner) View- just because action has always been illegal, does not mean it is justified. i. Danger in relying on the past because we‟ve made mistakes in the past . 4. What is the STATE‟S INTEREST in prohibiting this action? 1. Is this a. b. c. a COMPELLING State interest? Preserving the Sanctity of LIFE Great deference to Military actions Is the law NARROWLY TAILORED to achieving this interest? i. Are there any better alternatives to serve this compelling governmental interest? 2. Is this a LEGITIMATE State interest? a. Virtually everything satisfies Legitimate state interests b. Is this law RATIONALLY RELATED to achieving this interest? i. Common sense argument, but Extremely to fail rational basis. 1. Never been a Rational Basis with Teeth in a Substantive due process issue HYPO (pg. 586): Proposed Statute for Age Limit on Artificial Insemination:  Problemic b/c reproduction is a “fundamental liberty interest” 58     If fundamental liberty interest, test is “strict scrutiny” Alternatively, Court could use “undue burden” test (as it used in Casey and Stenberg) –  if it has an undue burden on women, then this statute would be unconstitutional under Stenberg. But, if Court found only a “liberty interest” and not a “fundamental liberty interest,” then Court could apply “rational basis” test (is there any rational basis for legislation?) Shanor: May be other ways for Legislature to approach this  e.g., could pass law denying tax cuts or social security to people who have children when over 65. Equal Protection Sunday, April 17, 2005 10:58 PM I. EQUAL PROTECTION a. Overview: i. EQP does not outlaw all forms of discrimination. The clause just prohibits government from engaging in abritrary and invidious (producing ill will by slighting someone) discrimination. 1. i.e Classifications that cannot be justified on the basis of any legitimate governmental interest and are adopted merely for harming a particular group.  Analysis Framework: Is a state law violating an individual‟s DUE PROCESS RIGHTS? i. General Themes: challenged government action is subject to 1 of 3 levels of scrutiny. 1. STRCIT SCRUTINY- If the action intentionally discriminates against a SUSPECT CLASS or infringes on a Fundamental Right. a. Suspect Class: race, a fundamental right such as the right to vote, marriage. b. Under SC, the law Must be NARROWLY TAILORED to reach a COMPELLING government interest. 2. MIDDLE TIER SCRUTINY- If the action intentionally discriminates against a QUASISUSPECT CLASS. a. Used in gender classifications b. Must be SUBSTANTIALLY RELATED to an IMPORTANT government interest. 3. RATIONAL BASIS TEST- For social and economic regulations involving NOR suspect or quasi-suspect classes, NOR any fundamental right. a. Must be RATIONALLY RELATED to a LEGITIMATE government interest. b. Most laws will pass this rational standard. ii.  Note federal equal protection available under the 5th Amendment [reverse incorporation] P attempting to establish a prima facie case of discrimination must show: i. The law has a disproportionate or disparate impact on a particular group ii. The impact on this particular group is intentional in the sense that it results from a discriminatory purpose or design.  Can use data to show that the law adversly affects a particular group. If it has a HS Diploma requirement? And data shows that most blacks do not have a HS diploma. (not great but an argument) II. 59 III. Is the class being discriminated against a Suspect Class, a Quasi-suspect Class, or Neither? 1. How do you determine when a group is a SUSPECT CLASS? a. TEXT- does the 14th Amendment (equal protection clause) talk about this group? i. Does not expressly talk about any group (including race) b. HISTORY i. 14th Amendment- At the time of its ratification, were the framers concerned or intending to prohibit discrimination based on or against this group?  Race seems to be the essential reason framers passed this amendment ii. Discrimination-Historically, has this group been discriminated against?  This tends to be yes, so not too strong an argument. c. STIGMA/CASTE- will it put a badge of inferiority or result in a class system (would classifications divide groups of people)? i. Immutable- is someone born into this group in that they have no control over it and cannot change it?  Seems unfair to discriminate against something people have no control over. ii. Identifiable- is this a facially identifiable group that can likely result in two distinct classes (blacks and women)? d. REPRESENTATION REINFORCEMENT/ POLITICAL PROCESS i. Does the political process work well in that this group is adequately represented so that they can change the existing discriminatory law? 1. Is this group a political minority? a. Argue all political levels: i. Federal, state and local politics ii. Usually, we trust democracy and legislature to treat people correctly. 1. When we think their role will fail, court has a duty to step in and protect the class that is not adequately protected. IV. What Test has the court established for certain CLASSES? 1. RACE  Broken into 4 main classifications: 1. Race Specific Classifications- Get Strict Scrutiny Test & Suspect Not just AA – see Yick Wo], immigrant aliens, national origin, discrete religious groups (Jews, Muslims, ect).  Legislative intent: there must be intent to discriminate against the disfavored group [purposeful discrimination]: state statute must be  Facially discriminatory o Strauder (holding that a per se rule exists for facially discriminatory statutes, like making black men ineligible for jury service  automatic EP violation) o But see: Korematsu [where facially discriminatory statute passess strict scrutiny] 1. Statutes that are facially discriminatory may be permitted when there is a “grave danger to public safety”/military necessity. 60 2. This precedent allows a loose definition of what is “necessary” to deal with a compelling state interest.  Facially neutral but administered in discriminatory way  Yick Wo (statute requiring board approval is unlawful under EP b/c only 1 of 200 Chinese applicants for laundry license is accepted)  Need to show that the statute's purpose or design is to discriminate. Facially neutral but for a discriminatory purpose. i. May be inferred. ii. Loving v. Virginia (VA statute banning interracial marriage enacted for a discriminatory purpose).  Holding: state law making racial categorization is s/t strict scrutiny even if there is “equal application” – whites cannot marry blacks and vice versa). It failed the test – unconstitutional. Other relevant facts: statute asymmetrical  large number of whites, relatively small number of blacks in VA, and no discussion of other races. i. But cf: collection of race data is generally is not a EP violation. [especially neutral procedures for data collection, procedures that do not subordinate races] a. Race descriptors in law enforcement contexts are not necessarily s/t strict scrutiny [for ex: black male, 5/11, silver handgun]. i. `However, racial profiling of Middle Easterners has survived strict scrutiny in the post 9/11 America. 2. Facially neutral with Disparate Impacts:  A disproportionate racial impact created by state action DOES NOT HAVE a strict scrutiny assessment; UNLESS can show a discriminatory purpose. However, a statute may ban state activities that create a disproportionate impact, racially speaking. Such effects of state action are not protected by EP, though. i. Ex: Title VII of the CR Act, which bans any hiring practice that disqualifies a disproportionate # of AAs, is permitted.  Controlling Case: Washington v. Davis i. Facts: DC police exam challenged b/c black applicants fail it 4x more likely than whie candidates. test given to police officers was NOT race specific (says nothing about a race) ii. Disposition: Court held NO violation of EQP = a showing of disproportionate racial impact is a factor in ascertaining intent, but it can never by itself be sufficient to prove discrim intent. 61   Intent of the law was not to discriminate, but to improve verbal skills among police officers and was narrowly tailored to achieve that goal. Title VII of civil rights act has been interpreted to bar disparate impact unless there is a business necessity. Court holds though that EPQ does not apply to disparate impact. Court says const is more permissive than society might decide that they want to be- const req is different. policy decision by the court- any time a statute is passed it may or may not have a racial impact, this decision gives wiggle room to legislators to make legislation that may or may not have a racially disparate impact Shanor = this is right result; facially neutral. Congress NOT the courts can decide as to being concerned with racial effects   1. Classifications BenifitingMinorities (Benign Discrimination): AFFIRMITIVE ACTION Generally i. Pros: diversity, leveled playing field, better edu. for underrepresented groups ii. Cons: operates by generalization, inc. discrimination, provides disincentives for minority excellence iii. Apply strict scrutiny to discrimination on race, to include Affirmative Action. a. Standard of Review Strict scrutiny – State programs: Croson (striking down state law est. a minority “set aside” for construction sub-Ks) 1. Facts/Disposition: Set aside required 30% minority sub-Ks. a. No compelling objective: i. No evidence of discrimination in the Richmond construction industry, although there was some evidence of nationwide discrimination in the industry. Although only .67% of construction Ks were minorities, there was no evidence to show that the population of qualified minorities in the field were much more than this percentage. b. No narrowly tailored program i. There were also no attempts to take race neutral steps to remedy the problem (loosen bonding req‟ts for new, small companies in the field, for example). 30% is a large and apparently arbitrary quota. 2. Broad Reasoning for imposing S.S. Test: Aff. Action carries stigmatic harm, it stands in the way of a race neutral society, hard to tell motivation (based on supposition of inferiority?).  Strict Scrutiny – Federal programs: Adarand v. Pena-Holds that strict scrutiny applies to Federal Government too. Reasoning for expansion: because the 14th and 5th amendments refer to “persons” generally, we should be skeptical of racial categorizations and be consistent in our treatment of different groups. There is also an interest in congruence across state and federal law. b. Status of Law after Croson [for justifying an Aff. Action scheme] i. State Needs to Show: 62 1. Discrimination by Government – probably a compelling gov‟t objective 2. Discrimination by others – show that program is trying to combat discrimination by these people [not society generally] 3. Societal discrimination – not enough by itself; there must be discrimination in the area to be regulated itself. 4. #s Inferences – should show how #s of qualified minorities are getting less opportunity than their size would indicate. Say why race neutral alternatives not available Try to establish a logical stopping point [perhaps a monitoring scheme that would tell us when the program is not necessary]. ii. iii. c. Affirmative Action in educational contexts Grutter v. Bollinger (U. of Michigan case) (Applying strict scrutiny to the Law school‟s holistic admissions policies  held, constitutional) 1. There is a compelling interest in maintaining a diverse academic environment (discussing how education, and particularly law school, is an avenue to national leadership that should be widely available). a. Dissent (Thomas) says that the compelling state interest is in education, not diversity. 2. Policy is narrowly tailored a. Deference given to admissions officers in establishing this “critical mass” of minority representation [at odds with the concept of strict scrutiny?]. b. All race neutral options need not be exhausted. c. Quotas are patently unconstititional, says Sandra Day. 2. Modification of the political process to make certain types of political action designed to redress discrimination more difficult:  Will be Strict Scrutiny Standard.  Hunter v. Erickson (using this as an alternative to inferring intentional discrimination)  Relevant Facts: Akron referendum resulted in amendment to city charter, which said that any ordinance dealing w/ racial discrimination had to be passed by a majority of voters (immediate passage was the norm).  Court held the referendum invalid because a state can not disadvantage any group by making it more difficult to enact legislation on its behalf. (just as it cannot dillute a person's vote.)  But See: Crawford Allowing an amendment to the CA constitution that prevented state courts from ordering mandatory busing absent a federal court order saying there was an EP problem).  Principle: making political action to redress discrimination more difficult is allowed when states want to return to the federal standard. Reallocation of government decision-making power must be done in a racially-neutral manner. Washington v. Seattle School District No. 1 63 (state action to reverse mandatory busing designed to combat de-facto segregation was held unconstitutional).  Reasoning: There were strong racial overtones associated w/ mandatory busing.  Application of these principles to state ban on preferential treatment for minorities (Prop. 209) Coalition for Economic Equity (9th cir.) (validating Prop 209)  Reasoning: Ban is closer to Crawford: by voting for no racial categorization and classification, CA voters have essentially adopted the EP clause.  As in Crawford, it would be illogical to say that by adopting the 14th Amendment, voters have also violated it. 2. GENDER- US v. Virginia: gender classifications get Intermediate/heightened scrutiny. Standard of Review i. “Intermediate level” of scrutiny for gender 1. Applies to both benign [to benefit women] and hostile classifications based on gender. 2. Basis: There are some enduring and real differences between males and females, while there are no real or enduring differences between races [S.S. Test] 3. Defined: a. Classifications of gender must serve important gov‟t objectives and must be substantially related to the achievement of those objectives. ii. Common Law Variation: Construct or Biology? 1. Construct: Craig: different age requirements for drinking is not closely tailored enough in relation to the different drinking and driving stats for the 2 genders. 2. Biology: Michael M. (sex with minors a crime for men, not for women) a. Application: preventing teenage pregnancy, encouraging reporting rape – female immunity - is a compelling interest; the fact that men are not as accountable by nature in sex equalizes the situation – thus narrowly tailored. b. Compared to Craig, a less close “fit” was required between state‟s rationale and state‟s program [note that pregancies perhaps could be reduced in other ways] c. Court has a more exacting standard for things that are clearly social constructs (i.e., drinking/gender) than things that are biologically based (i.e., pregnancy). i. A closer fit required for former, compared to latter. ii. Tuan Anh Nguyen v. INS: applying middle tier scrutiny to gender discrimination based on biology: 1. Diff stds on based on mother/father  Gov‟t‟s interests in assuring validity of biological and opportunity for an everyday parent-child relationship to develop are compelling and the statute is closely enough related to meet these objectives. iii. Added qualification: any government objective for gender discrimination must have an “exceedingly persuasive justification.” [skeptical scrutiny] 64 1. Controlling Case: U.S. v. Virginia (VA military college denied all women admission  Unconstitutional) 2. Disposition: in establishing the exceedingly persuasive justification (stronger than substantially related), the statue must describe its actual purpose  State objectives cannot rely on overbroad generalizations (most women would not like the military environment, but surely some wouldn‟t mind it). 3. DISABILITY- Cleburne- not considered a suspect class, only has to pass the rational basis test. a. Legislation discriminating against retards must pass “Rational Basis with Teeth.” i. Difficult to establish a Legitimate government interest with respect to retards. 4. SEXUAL ORIENTATION- Romer case established a Rational basis test for gays, but also seemed to be a rational basis with teeth. a. No legitimate state interest was in fact being served b. The means chosen was not rationally related to the (possibly legitimate) interest asserted by the state. 5. WEALTH- discriminating against the poor is No suspect class, so must only pass the rational basis test. 6. ILLEGITIMACY- (Non-marital children) Children born to unwed parents a. Triggers Intermediate scrutiny 7. ALIENAGE- discrimination against non-citizens gets strict scrutiny but has many exceptions and restrictions that often place it into a Quasi-suspect class. 8. AGE- Discrimination against ones age has been held only to require the rational basis Fundamental: Right to Vote, right to be a political candidate, the right for access to the courts, right to interstate migration-trigger strict scrutiny SDP-Privacy and Liberty. Friday, April 29, 2005 9:19 PM I. Federal Judicial Power- Article III-Defines Power of Federal Court A. Authority for Judicial Review-Marbury v. Madison authorizes judicial review of federal law and executive actions. i. The text does not give the courts the power to review the constitutionality of laws adopted by Congress. ii. Other SC decisions est. the authority for Judicial Review for State court decisions and other state actsions. iii. Martin v. Hunter iv. Chon v. Virginia 1. SC est. that federal courts have the power to review constit. of federal actions/ B. Cases & Controversy i. SC has interpreted this to give rise to a series of Limits called Justiciability Doctrines. ii. Four must always be met for a federal court to hear the case. 1. Standing: 65 a. Most Important-Assesses whether the plaintiff is the proper party to bring a manner to the court. Has four requirements. i. Injury-The P must allege and prove that he/she has been or imminently will be injured.  P has to present a personally suffered injury. b. Causation & Redressibility: o The P must allege and prove that the D is the cause of the harm, so that a fav. court decision is likely to remedy the harm. o Prohibits the court from issuing advisor opinions; therefore in order for a plaintiff to have standing, they must have alleged and proved that a remedy will cure their harm. c. No Third party standing- Where P presents claims of others of third parties who are not before the court. i. The injury isn't personally incurred.  Exceptions: Must meet the other standing req. i. TPS is allowed if there is a close rel. between the P and injured third party.  i.e. Dr/Patient relationship ii. TPS is allowed if the injured third party is unlikely to be able to assert his/her own rights. d. No generalized grievances are allowed. P who assert generalized grievances lack standing. But this is misleading, something is not generalized grieveanc if everyone suffers the injury. It refers to a particular type of claim: i. Where the P is a citizen objecting to the Gov. passing a law. ii. Exception: For Tax Payer standing. Taxpayer has standing to challenge, gov. expenditure as violating the establishment clause. 2. Ripeness-Ask the question, may the court grant pre-enforcement review of a statue or regulation? a. When people don't want to violate a law to challenge its enforcement. (Usually a declaratory judgment situations) b. Court will look at: i. Hardship P will suffer w/o reinforcement review; the greater the hardship; the more likely the federal court will hear the case. ii. The fitness of the issues in the record for judicial review-Does the federal court have all that it needs to effectively decide the issue. Would the court be better off waiting for an actual prosecution? 3. Mootness-If events after the filing of the lawsuit end the plaintiff's injury, the case shall be dismissed as moot. A P must present a live controversy-an ongoing injury at all stages. If anything happens to end P's injury the case is dismissed as moot. a. Exceptions: i. Wrongs capable of repitition yet evading review ii. Voluntary cessation-If D voluntariy halts, but is free to resume at anytime; the case will not be dismissed as moot. 4. Political Question-Refers to allegations of constitutional violations that federal courts will not adjudicate. There are some constitutional provisions that are left to the political branches to interpret and enforce. Types of Cases Dismissed: 66 a. Challenges to the President's conduct of foreign policy b. Challenges tot the impeachment and removal process c. Challenges to partisan political Gerrymandering: II. Federal Legislative-Authority of Congress A. Congress Authority to Act: i. May only act only for expressed or implied authority.  Remember no federal police power- can't pass a law for the general welfare. ii. Congress can choose any means not prohibited by the constitution-to carry out its authority.  i.e. Article I says that Congress may raise an army and a navy. -Congress could have bake sale to raise some dough (Necessary Proper power) Taxing Spending & Commerce Clause Powers 1. Congress May Tax & Spend for the general welfare. Congress may adopt any tax, that it thinks will serve the general welfare. same w/tax. a. Can't adopt statues based on this but can enact taxes and appropriate spending. 2. Commerce Clauseiv. v. 10th Amendment-Congress cannot compel state regulatory or legislative activity. Congress Power in the Enforcement Clause: § 5 of 14th Amendment.  Congress cannot expand rights or create new rights, pursuant to § 5.  All Congress can do is act to prevent or remedy violations of rights, already recognized by the courts. And such laws much be narrowly tailored.  Must be proportionate or congruent to remedying proven constitutional violations. iii. B. NO Limit Exists on Congress' ability to delegate Legislative Powers i. Legislative Vetoes ii. Line Item vetoes are unconstitutional. For Congres to act, there must always be bicamerlism (passage by both house and senate and presentment) Legislative Veto-When congress attempts to overturn an executive action, w/o bicameralism or presentment. III. Federal Executive-Authority of Preside & Executive Branch Art. II. A. Foreign Policyi. Treaties & Executive Agreements For a treaty to be effective it must be ratified by the senate; for an executive agreement it does not need senate ratification. ii. President has Broad Powers as commander in chief to use American troops in foreign countries.  The president's use of troops in foreign countries has never been found unconstitutional-usually dismissed as non-justiciable PQ. Federalism-Limit on State Local Power because of national governance and other states Structure of Constit. Protection of Individual Liberties Due Process Equal Protection IV. V. VI. VII. 67 Does the Executive Order violate Separation of Powers? The powers enumerated by the constitution to the Executive Branch under Art.II §2, gives the president power as commander in chief, duty to see that the laws are faithfully executed, and treaty making power. Because the power used by the executive branch in this order is not one of the enumerated powers, the president is basing this authority on implied Executive Powers. Justice Jackson in Youngstown provided a three prong analytical framework for assessing if an Executive action violates the separation of powers. The President's power is strongest when he is acting in accordance with implied authorization of Congress. Here the President's acting against Congress, as the NLRA, specifically states that it will allow employers to hire permanent replacements for economic strikers and the Executive order imputs penalties on those persons who act in accordance with the legislation. Additionally, Congress has not silent on the President's actions, as this resolution failed to pass congress initially. Further, it is likely true that the presedential power in this situation is very weak, because there isn't even a foreign interets likely. Generenally, the President has more latitdue in areas of foregin policy However, a functionalist approach to this argument could be to look at the surrounding circumstances to see if the Presidnt's actions promoste governmental efficiency. Because the President does have powers as Commander in Chief, this action might fall under this enumerated power. Especially consdiering there are n ol Saturday, April 30, 2005 5:23 PM Enforcement Clause-14th & 15th Amendment Sunday, May 01, 2005 1:25 PM THE POWER TO ENFORCE THE RECONSTRUCTION AMENDMENTS – Early Background The Civil War Amendments contain enforcement provisions giving Congress the power to legislate to effectuate the goals of the amendments. o 13th amendment – bands slavery; o 14th – equal protection and due process; o 15th – right to vote without regard to race.  14th and 15th only apply to state (unless have CC). Where gov and private action combine, Congress can reach this activity. Contemporary Test  ALWAYS BEGIN WITH THIS: Under Boerne (1997) Congress does not have the power to redefine the scope of the rights protected by the Civil War amendments in a way that is different from the way the Supreme Court would define their scope. BUT, Congress can seek to remedy or to prevent constitutional violations. Thus Congress may prohibit conduct that is not otherwise unconstitutional but the legislation must be congruent and proportional to the constitutional violation as defined by the courts. City of Boerne (1997) STEP #1.SC Rejects substantive theory : 68  Only the Judiciary can decide the scope of rights encompassed in the constitution, NOT Congress.  Congress cannot make substantive changes in constitutional law. STEP # 2. Judiciary Does Accepts remedial/preventative authority:  Congress has the power to adopt remedies and preventative measures to unconstitutional conduct under § 5 of 14th amendment.  Congress is not limited to judicially invalidated conduct/conduct already declared unconstitutional STEP #3: ADDRESS THREE QUESTIONS FROM FACTS ON THE EXAM: 1. What is the unconstitutional conduct Congress is trying to reach? 2. What    is the Constitutional Standard regarding the conduct? Strict Scrutiny for Race, Alienage etc.. Heightened scrutiny or “abortion” undue burden Apply a Rational Standard to determine unconstitutional discrimination 3. What is the conduct banned by Congress‟ action? THEN DO THE TEST FROM BOERNE: "Congruent and proportional": The action taken by Congress must be consistent with traditional judicial interperation of constitutional violations and the remedy porportional to the violation. If not, the Congressional action is invalid. Congress cannot choose methods to combat state discrimination that are much broader than the discrimination being cured.  Garrett: disability discrimination. Congress passed statute requiring handicap friendly premises in response to occasional violations of the rights of disabled workers. State argued that disabled were not a suspect class (Cleburne). No pattern of state discrimination in employment against them. The duty of accommodation went far beyond what could possibly been required to address the small EP violations the states were allegedly guilty of. Thus not congruent and proportional.  The Court “must police Congress” and the Court “defines the boundaries of the constitution”.  Courts require a “pattern of unconstitutional discrimination” evidenced through legislative records AND legislation that employs means in “congruence and proportionality” to resolving the problem.  Otherwise Congress would have unbridled power to alter and define the scope of unconstitutional practices. Explain how Garrett REINFORCE City Of Boerne:  Court held that Congress had insufficient evidence of state discrimination against handicapped, thus making the legislation disproportionate [failing Boerne test]  Ct says that while there may be sufficient evidence of societal discrimination, there is little evidence of state discrimination against the disabled.  STEP #4: REFER TO: Legislative Record – Court wants to see legislative record revealing a pattern of the unconstitutional behavior STEP #5: NOTE DEFERENCE: Judicial deference based on due regard. “Congress has right in the first instance to decide whether and what legislation is needed to secure the guarantees of the 14th 69 amendment, and its conclusions are entitled to great deference.” BUT Congress CAN‟T substantively alter constitutional rights through legislation. STEP #7: Consider the commandeering problem from NY v. US. a. Directed at state governments? Or general like Garcia? b. Are certain kinds of state actions required? ---------- 70