Law School Outline - Constitutional Law Outline - Kristen

CONSTITUTIONAL LAW OUTLINE PROFESSOR SHANOR – 2003 INTRODUCTION  President George W. Bush‘s Executive Order and Ex parte Quirin  Bush‘s Executive Order sets up military tribunals for alleged terrorists and POWs in war on terrorism.  Bush relies on §821 of U.S. Code – but this was not created to give President authority to create tribunals; this was a Congressional power  Where does President derive power to set up military tribunals? o From Constitutional penumbra and explicit Congressional statute:  Article 2, § 1 – Commander in Chief  Art. 1, § 8, clause 8 – Congress has power to set up courts inferior to Supreme Court, not the President.  Art. 1, § 8, clause 11 – Congress has power to ―make Rules concerning captures on land and water.‖  After Sept. 11, 2001 – Congress passed Act giving President broad power to act against those who plot terrorist schemes against U.S. – does this grant President the power? *** Maybe, maybe not. o Ex parte Quirin – allows military tribunals so long as they do not offend the structures of the Constitution. The question is whether this is granted to President.  Ex parte Quirin is generally strong support for Bush‘s order b/c in 1942 even though there was a declared war, Congress had not given President Roosevelt the power to create military tribunals.  Decision in Quirin: At time of drafting of Constitution, common law would not have recognized the right to trial for those subject to military commissions. Therefore, the 5th and 6th amendments do not extend the right to trial beyond this common law precedent. Court looks to Art. III, § 2.  In Quirin, the Supreme Court heard only the Constitutional issues (habeas corpus), but not the merits of the case itself concerning guilt or innocence. Thus, President Bush used the same language as Roosevelt‘s order precluding judicial review in order to prevent merits of cases from being heard – but Bush cannot prevent Constitutionally based appeals from being heard. BASIC POLITICAL STRUCTURE  ―Checks and Balances‖ – Articles I, II, and III o e.g., Presidential veto; power to impeach the President  ―Separation of Powers‖ – Articles I, II, and III o having the three separate sections in the text suggests separation of powers.  ―Federalism‖ – Article VI, clause 2 – Const. = ―supreme law of the land‖ o In Art. I, Congress gets certain powers and what‘s left goes to states.  ―Individual Rights‖ – in the Amendments (esp. Bill of Rts.) FDR – had a different picture of Constitution – wanted to expand Executive branch. Warren Court – expanded Bill of Rights, so Rights grew in relation to Powers of gov‘t Renquist Court – perhaps a less active court and thus a smaller judiciary; an expansion of States‘ rights relative to Fed. gov‘t. HISTORY OF CONSTITUTION & ITS INTERPRETATION: 1776 – Declaration of Independence 1777 – Articles of Confederation 1781 – end of War  States reverted to semiautonomous status... 1 CONSTITUTIONAL LAW OUTLINE PROFESSOR SHANOR – 2003 1787 – Constitutional Convention and ratification of Constitution  Debate over how much power to give Federal gov‘t versus State gov‘ts  ―Great compromise‖ = bicameral legislature o Senate – each state equally represented (pleasing smaller states) o House – representation based on population (pleasing larger states) 1788 – sufficiently ratified by the states 1789 – Constitution put into use; George Washington elected first President. John Jay = first Chief Justice. June, 1789 – James Madison introduces a Bill of Rights in Congress. What are differences between Articles of Confederation and the Constitution?  Trade – Articles of Confed. were less clear and so gave rise to more trade wars.  No Executive or Judicial branches in the Articles of Confed.  Unicameral congress in the Articles of Confed. (put large states at a disadvantage)  Bicameral legislature in the Constitution  States are dominant in the Articles of Confed. Differences between Madison‘s proposal and the Bill of Rights in the Const.?  Madison did not really think the Bill of Rights was necessary b/c if system of checks and balances really worked then individual rights would be taken care of.  How the Constitution is amended – in Madison‘s proposal the Constitution would be changed by passing legislation that was to delete parts of the Constitution and then replace them with certain other words. The way our Constitution actually works is different – it has been maintained as originally written, and then simply adds Amendments to the end.  Madison‘s first amendment uses different language from our first amendment.  Madison‘s proposal is not generally used as an interpretive guide for the Constitution. It‘s viewed more as a mere first draft. SOURCES & METHODS OF JUDICIAL DECISIONS 1. Textualism – reading the text literally (e.g., ―No law‖ means NO LAW! in 1st Amendment. 2. Original Understanding:  Original intent: what the founders meant to enact (dependence upon Federalist Papers, notes from the Convention, etc.).  Original Meaning: what did the words used mean at the time of enactment; how would people at the time of ratification have interpreted; in a sense, what was actually ratified. 4. Precedent – how have previous courts interpreted that particular clause.  can be trumped by textualism; e.g Casey 5. Prudence/Pragmatics/Public Policy:  "The Constitution is not a suicide pact." How do we expect our government to be run. "A pragmatist uses textual leanings, historical glosses, and philosophical arguments..." 6. Realism – interpretive modes are mere window dressing for personal preference. 7. Natural Law – whatever one believes is just or fair or moral; this tool of interpretation was laid to rest in Calder v. Bull, but it still creeps in through a Justice‘s textual interpretation. Shanor: U.S. Supreme Court has never committed to any single methodology of interpreting Constitution!!! So, you cannot be a methodological purist in regard to the Supreme Court. II. JUDICIAL POWER TO ENFORCE THE CONSTITUTION 2 CONSTITUTIONAL LAW OUTLINE PROFESSOR SHANOR – 2003 (A) INVALIDATION OF FEDERAL LAWS  Marbury v. Madison (1803) – Established by dicta judicial review (judicial supremacy to interpret U.S. laws).  Marbury brought suit seeking a writ of mandamus ordering Madison to deliver his commission as Justice of the Peace for D.C., which had been granted to him by exiting Pres. Adams.  Issues: 1. If there is a right, there is a remedy.  Marbury has a right derived from Congressional act creating justices of the peace and power of President to appoint them.  Remedy = mandamus (analogous to specific performance for gov‘t duty). 2. Is the Executive amenable to suit?  If Executive action is political/ discretionary, then Court does not have power to review; but if Executive action is ministerial/ specific duty then Court does have power to review. This case is the latter. 3. Constitution is Supreme, and the Supreme Court (not Congress) is final interpreter of Constitution.  Sly move by Marshall: Judiciary Act of 1789 gives Court original jurisdiction over mandamus cases, but Const. (Art. III, § 2) says Court only has appellate jurisdiction over this kind of case. When Congressional Act and Constitution conflict, Constitution is supreme! Thus, no mandamus is issued and Jefferson wins so he doesn‘t contest this opinion; but in long run Marshall and Supreme Court score major victory! Syllogism to summarize Marbury v. Madison: Major: Act that goes against the constitution is void. Minor: § 13 of Judiciary Act is against the constitution. Conclusion: Therefore, § 13 is void. 4. Original versus Appellate jurisdiction of the Supreme Court—Article III, § 2:  Original = cases affecting ambassadors, public ministers, counsels; and cases in which a state is a party. Art. III, § 2  Appellate = ―in all other cases [US is a party, cases arising under Const., laws of U.S., Treaties...] the Supreme Court shall have appellate jurisdiction with exceptions and under such regulations as Congress shall make.‖ Art. III, § 2, cl. 2.  Thus, Congress can alter Court‘s appellate jurisdiction! 5. Exceptions clause: Marshall read this to mean that Congress could remove cases entirely from the court‘s appellate jurisdiction, but it does not permit cases to be moved from appellate to the original jurisdiction category. Art. III, §2, cl.2: "In all cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make."  Criticisms of Marshall‘s reasoning in Marbury v. Madison: o argument that Justices take an oath to uphold the Constitution is not very compelling b/c President and Congress also take the same oath. 3 CONSTITUTIONAL LAW OUTLINE PROFESSOR SHANOR – 2003 o Laws of the U.S. gov‘t are the supreme law of the land (Supremacy clause – Art. VI), but this does not necessarily mean that the Supreme Court gets to have final word on what the law is. o Also, nothing to say that the Supreme Court, even though it has the power by the Constitution to be the ultimate appellate authority, should do anything more than simply say A wins or B wins. o Noticeably absent from the opinion are historical practices/ precedent. o Shanor: The other dangerous thing about establishing this process of judicial review is that it encourages the Legislative and Executive to simply pass laws w/o considering their constitutionality b/c they know that if they go too far, then the Court will step in and declare it unconstitutional. (e.g., the current war on terrorism). o If you give Court the power of judicial review and power to overturn laws made by elected officials, then you have weakened your commitment to democracy. o Is Judicial Review Counter-majoritarian? (Problem b/c federal judges are appointed, not elected)  No, 1) The Constitution honors the will of the people and Congressional acts are struck down when they do not honor the will of the people. 2) Protects the democratic process when the will of the people might impede the process (e.g. minorities can't always vote or be heard) o Yes, 1) But that's okay b/c it honors other values, such as. . . -individual rights -stability (not good if it changes all the time) -democracy (B) INVALIDATION OF STATE LAWS  Martin v. Hunter's Lessee (1816) – conflict between Virginia law declaring British land grants null/void and a U.S. treaty declaring British titles valid. VA court contends U.S. Supreme Court appellate jurisdiction does not extend to cases originating in state court. 1. Supremacy Clause (Art. VI) – Const. and laws of U.S. ―shall be the supreme law of the land.‖  this shows Framers foresaw conflicts arising between federal and state courts (esp. when cases originally filed in state court).  Concern for uniformity (if each state interpreted Const., no consistency only state bias). 2. Supreme Court has appellate jurisdiction over state courts.  Art. III, § 2, cl. 2 – ―in all other cases... the supreme Court shall have appellate jurisdiction.‖ [US is a party, cases arising under Const., laws of U.S., Treaties]  ―All cases‖ means all cases! When Supreme Court and state court have concurrent jurisdiction, Supreme Court trumps on issues of U.S. law, Treaties, etc.  State court judges bound b/c they swore to uphold Const.  Critique of Martin v. Hunter’s Lessee decision:  Justice Story expanded the Supreme Court power perhaps more than it can be expanded (e.g., many cases involving U.S. law, statute, or Constitution that are not reviewable by Supreme Court – e.g., military tribunals; decisions made by foreign courts regarding U.S. treaty w/ that foreign court.) 4 CONSTITUTIONAL LAW OUTLINE PROFESSOR SHANOR – 2003  Shanor: ―supremacy clause‖ argument is stronger.  Judiciary Act of 1789 did not give such broad power to Supreme Court to review ―all cases‖ as Justice Story claims. PARITY: (State courts compared to federal courts?) Pro-Federal: 1. Expertise- fed. cts. decide fed. questions all the time 2. Insulation- appointed by Pres. for life; may allow for better decision making 3. Hospitable- more open to enforcing fed. laws against state officials. (C) LIMITS ON JUDICIAL POWER 1. CONGRESSIONAL LIMITS ON APPELLATE JURISDICTION:  Ex Parte McCardle (1869) – McCardle, a white newspaper editor in Vicksburg, was arrested by a General for disturbing the peace. McCardle filed habeas corpus petition, relying on an 1867 Congressional statute granting Supreme Court appellate jurisdiction to hear habeas corpus cases, even ones originating in state court. But Congress quickly repealed this statute. Supreme Court said it therefore had no power to hear the case b/c its appellate jurisdiction is conferred by Constitution "w/ such exceptions and under such regulations as Congress shall make." [Art. III, § 2, cl. 2]  Thus, Congress can regulate and limit the Court’s appellate jurisdiction (although it could not eliminate it entirely).  Shanor: Problem with this decision is that it seems inconsistent with Marbury and other cases asserting judicial review. McCardle seems to suggest that Congress can pass emergency legislation to prevent the Judicial review of Congress’ laws anytime it does not want its laws reviewed. Congress can begin to put in boiler plate clauses to such an effect.  But, in this case, the problem is not so serious b/c there is another avenue McCardle could have (and should have) pursued – namely the 1789 Judiciary Act statute granting jurisdiction over habeas corpus to Supreme Court.  Ex parte Yea[r]ger (1869) – original writs okay; file habeas corpus in the S.Ct. itself.  Felker v. Turpin (1996) – Supreme Court upheld the Antiterrorism and Effective Death Penalty Act of 1996. Found it did not limit power to hear original writs and that limits on its power to hear second and subsequent writs were not unconstitutional.  INS v. St. Cyr (2001) – Supreme Court holds that the minimum content of habeas corpus is what is contained in the Judiciary Act of 1789. If Congress wants to suspend habeas corpus, it must say so explicitly (e.g., ―during X war we are suspending habeas corpus‖). But short of such direct and explicit suspension, an implicit suspension (as in this case which said that judicial review is suspended) will not stand. (Court wants to force Congress to be explicit and to have to think twice about suspending habeas corpus.) Dissent (Scalia) – nowhere does the Const. say that habeas corpus must exist, therefore suspending it does not amount to eliminating it. 5 CONSTITUTIONAL LAW OUTLINE PROFESSOR SHANOR – 2003 Shanor: Bottom line of St. Cyr is that habeas corpus is alive and well, even for illegal immigrants and alleged terrorists (even though St. Cyr was pre-9/11 and St. Cyr was not a terrorist).  Hamdi v. Rumsfeld (2003)  Hamdi was raised in Pakistan, but was born in Louisiana – therefore U.S. citizen.  Hamdi was being held in military prison; filed writ of habeas corpus challenging the gov‘t‘s holding of him unduly.  Justice Dept. claimed Hamdi was captured by the Northern Alliance on the battlefield carrying an AK-47; therefore he can be held even though he has not been charged with any crime.  The Executive is at his most powerful when waging war and thus should be accorded great deference.  The point of this case is that a Court can use discretion in how it applies habeas corpus. In this case, the court says Mr. Hamdi‘s habeas corpus appeal is weak and therefore does not give a searching review of his case (i.e., it does not allow depositions to be taken from people who were on the battlefield, etc.)  Miller v. French (2000) – prisoners filed suit and won an affirmative injunction for prison to improve conditions of inmates (e.g., more meals, more exercise time, etc.) based on 8th Amdt cruel and unusual punishment. After this decision was handed down by Ct. of Appeals, Congress later passed Prison Litigation Reform Act which said that a prison could terminate affirmative injunctions if court did not find that injunction was ―narrowly drawn.‖  Supreme Court holds Congress cannot mess with judicial decisions once they are final; Congress can, however, mess with decisions that are still pending (e.g., McCardle). But, in this case, the decision was final. This is the question of the case!  Congress cannot take away or alter final decisions involving money damages; but Congress can cut off or alter final decisions involving orders and injunctions.  Shanor: In this case, the injunction was an affirmative injunction (ie., it placed new duties on prison officials such as providing more meals, more outside exercise time, etc.); but so would this holding affect a negative injunction (i.e., stopping someone from doing something) in the same way? Wheeling Bridge (discussed in Miller) says YES, that Congress can interfere with negative injunctions. In general, Congressional Acts are seen as changes in the law that operate prospectively (with some exceptions). In general, Judicial Decisions = both prospective and retroactive. The reason is that judges find law that was always there. Judicial decisions simply articulate law that was already there (some exceptions to this also). CONGRESS CANNOT: 1. Eliminate entirely appellate jurisdiction (no precedent on whether all could be eliminated in certain kinds of cases) (writ of habeas corpus is constitutionally protected – Art. I,§9, cl.2) [TEXT] 2. remove anything central to constitutional system [STRUCTURE] 3. violate other constitutional provisions (can't be dependent on race, etc.) 6 CONSTITUTIONAL LAW OUTLINE PROFESSOR SHANOR – 2003 2. THE ―CASE OR CONTROVERSY‖ LIMIT ON JUDICIAL POWER Doctrines: 1. No advisory opinions (would violate separation of powers) (dates back to George Washington). 2. Standing – whether π is a proper party to bring suit. 3. Ripeness – a controversy is not ripe if premature (i.e., inadequately developed factually – e.g., harm anticipated but not yet occurred). 4. Mootness – case that has become irrelevant b/c dispute has ended is moot (e.g., settled). 5. No political questions – Constitution entrusts discretionary decisions to Congress or Executive rather than to the Court. (a) STANDING AND MOOTNESS Friends of the Earth v. Laidlaw (2000) –  Clean Water Act of 1972 allowed for citizens to bring suit once they‘ve given 60 days notice to the state, to Δ and the EPA.  Friends of Earth gave notice; but on last day before 60 days was up, the state and (Δ) Laidlaw reached settlement for $100,000 in civil penalties.  FOE filed suit anyway in Fed. District Court, where further penalties were assessed against Laidlaw.  Supreme Court rules FOE has standing (injuries = inability to use local parks, lakes, etc.; causal connection established; and redressibility = civil penalties/ injunction); and case is not moot (even though state settled with Laidlaw and Laidlaw has since shut down that facility --- b/c further monetary relief or injunction is possible).  Standing:  In Lujan v. Defenders of Wildlife, Court held, to satisfy Art.III standing requirements, (P) must show: 1. ―Injury in fact‖ a. concrete and particularized injury, and b. actual or imminent, not conjectural or hypothetical 2. Causation –―nexus injury‖ the injury is fairly traceable to the challenged action of the Δ; and 3. Redressability – the injury will likely (not supposedly) be redressed by a favorable decision.  Standing is often factually difficult to determine whether there is enough injury, etc. But also difficult b/c there are multiple models of adjudication used: (1) suit of A vs. B; (2) public law model – deputizing citizens as attorneys general to have authority to bring cases on behalf of common good (e.g., Laidlaw, or civil right act, etc.) o Standing issues arise mostly in 2nd model. Has been stretchedeasier to pass standing.  Mootness:  Stringent standard for mootness: ―A case is moot if subsequent events made it absolutely clear that the alleged wrongful behavior could not reasonably be expected to recur.‖  Mootness = ―standing set in a time frame.‖ o Burden of showing mootness is on Δ. ***  In Laidlaw, Court says voluntary cessation of a challenged activity does not deprive a federal court of it power to determine the legality of the practice.  Typical example of mootness = abortion b/c the gestation period for a baby is much shorter than the gestation period for a lawsuit. o To solve this problem, courts have created an exception by asking if this case has the potential for recurrence. If so, case is not moot. Lujan v. Defenders of Wildlife (1992): 7 CONSTITUTIONAL LAW OUTLINE PROFESSOR SHANOR – 2003 Facts: Dept. of Interior revised regs. re: protection of endangered species. Kelly sued b/c habitat of Egyption Crocs. would have suffered from work on dam. Skilbred sued b/c the Mahawli project endagered Asian elephant & leopard. Both women had visited these places with no definite plans to return.  No standing b/c o questionable concrete/particularized injury in fact; o questionable causation o no redressability  Rejection of Citizen Suits based solely on injury to general public. Must be a personal greivance/injury - not general to the public. Otherwise, there would be an upset of the balance of powers. Invites Ct. to sit above the President and question his enforcement of the law.  What if the president has signed off on the citizen suit? Does not matter b/c: o Jimmy Carter cannot sign away R. Reagan's rights as pres. o sep of pwrs is not about protecting pres; its about protecting the people o A citizen cannot force the Executive branch to follow statutory procedure unless the citizen has a specific interest. MOOTNESS 1. doctrine of voluntary cessation-if  unilaterally stops activity, the case is not moot b/c  could begin again (not the same as settlement) 2. if capable of repetition yet evading review, case not moot (abortion) *** SEE Problems & answers – pg. 79. (b) POLITICAL QUESTION  a question or issue that has been entrusted to a coequal branch of the Federal Government, and is thus not justiciable.  Bush v. Gore – a politically charged issue, but not a political question b/c, like Baker v. Carr, it involved 14th Amendment equal protection.  Baker v. Carr (1962) – Sets forth ―one person, one vote standard‖ to deal with gerrymandering. Between 1901 and 1961, Tennessee population grew substantially and redistributed. (Ps) allege that the 1901 Apportionment Act does not abide by constitutional formula (or any logical formula) for the allotment of Representatives and Senators.  This is not a ―political question.‖  Just b/c sounds like political question or has political ramifications does not make it a Political Question.  Determining whether a question falls within the ―political question‖ category:  Separation of Powers – if clearly allocated by Constitution to another branch, then it is a political question  But, deciding this or whether the branch has exceeded the authority it was given by Constitution is a delicate Constitutional interpretation left up to this Court. For example: o Foreign relations: In general, questions involving foreign relations are ―political questions‖ (discretionary power committed to the Exec. and Legislature), but it is a mistake to think that every case or controversy involving foreign relations lies beyond judicial cognizance. 8 CONSTITUTIONAL LAW OUTLINE PROFESSOR SHANOR – 2003 o Dates and duration of hostilities: In general when or whether to engage in war is a ―political question,‖ but if there is an obvious mistake, then the Court can inquire into whether the exigency still exists o Validity of enactments: questions of how an amendment is ratified is a ―political question‖ (Coleman v. Miller); as are other questions about how laws are passed. But it is not true that courts will never delve into legislative records to determine whether or not a law was passed in accordance with legislative formalities. Factors for determining ―political question‖: (balance) 1. Constitutional commitment of the issue to Exec. or Legislature; or 2. Lack of judicially discoverable or manageable standards for resolving the issue; or 3. Impossible to decide w/o an initial prior policy determination; or 4. Impossible to decide w/o disrespecting another branch; or 5. Unusual need for unquestioning adherence to a political decision already made; or 6. Potential for embarrassment from different pronouncements from different branches of government. Δs in Baker v. Carr claim the case invokes the Guaranty Clause.  Court disagrees; but says that even if it did, Guaranty Clause no longer serves as a basis for saying state action is nonjusticiable. ―Guarantee Clause‖ (Art. IV, § 4) "The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence." Luther v. Borden (1849) – used ―Guaranty Clause‖ to say that issue was nonjusticiable.  Civil war in Rhode Island; a decision would have forced the court to name which government was the true government. Ct. held this was a Political Question.  jurisdiction: up to congress to admit new states so up to congress to decide which gov't is legit.  merits-based: republican guarantee clause does not provide a right to (P).  prudential: president already involved so court is not going to get involved. But, Baker v. Carr Court says they don’t need to look at the Guaranty Clause b/c the claim is an equal protection claim.  Appellants invoke 14th Amendment equal protection of their right to vote (to have their votes counted).  14th Amendment focuses on the level of the person  Guaranty clause focuses on the level of the state  Shanor: thus it seems feasible that Court could say that one is justiciable and the other is not. J. Frankfurter‘s Dissent in Baker v. Carr:  Thinks this decision flies in the face of, and reverses, a uniform code established by a dozen cases, including one from 5 years ago that directly the rejected the position taken by the majority.  Thinks disregard of inherent limits on judicial power will erode the legitimacy and authority of the court (―The Court‘s authority – possessed of neither purse nor sword – ultimately rests on sustained public confidence in its moral sanction.‖) 9 CONSTITUTIONAL LAW OUTLINE PROFESSOR SHANOR – 2003  Court should remain detached from political entanglements  Coming up with voting apportionment formulas is not the business of the judiciary – it‘s for the legislature!!!  From its earliest opinions, this Court has consistently recognized categories of cases which do not lend themselves to judicial standards/ remedies: 1. war and foreign affairs 2. matters concerning political institutions of the states 3. Negro disfranchisement 4. abstract questions of political power, sovereignty, gov‘t, etc.  This is a Guaranty Clause case!  What is really asked of the Court in this case is to choose a political philosophy to establish a voting procedure in Tennessee! Nixon v. U.S. (1993) – one of two cases in recent history where Supreme Ct. has found Political Question "The Senate shall have the sole power to try all impeachments" Art. I, § 3,cl. 6 This is not President Nixon—it was a federal district court judge who was being impeached. This is a political question:  jurisdiction: Constitutionally committed to another branch of Gov‘t  Senate has sole power.  prudential: impeachment is a check on the judiciary, so judiciary should not be able to review. 3. THE ELEVENTH AMENDMENT LIMIT ON JUDICIAL POWER Seminole Tribe of Florida v. Florida (1996) – Congress passed the Indian Gaming Regulatory Act (1988) abrogating States‘ 11th Amendment immunity against suits brought by its citizens or citizens of another state. Court holds:  Congress cannot override States’ 11th Amendment immunity, even where, as here, Congress explicitly articulates its intent to do so.  Overruled Union Gas, in which Court had held that Congress could override 11th Amendment immunity when it was acting under Interstate Commerce Clause. (Art.I, § 8, cl. 3)  Exception: Congress can override States’ 11th Amendment immunity when 1) it expressly says it is doing so, and 2) it is acting under 13th, 14th or 15th Amendment power (Fitzpatrick)  affirmative remedial power from 14th Amendment Enforcement Clause (City of Boerne). o these Amendments come after the 11th Amendment – (―later in time‖ = 1st in priority). o can also sue a State if some other basic Constitutional right is being denied.  Note: States can consent to suit and waive 11th Amdt. immunity. Shanor: Problems with Seminole Tribe decision:  Seminole Tribe is a citizen of the state of FL and the 11th amendment does not bar suit in fed. ct. between a citizen and their state.  In fact, even though the face of the 11th amendment doesn‘t suggest it, there is a case that says that 11th amendment does bar a suit between a citizen of a state and the unconsenting state.  You can sue municipalities and county entities w/o any problem from the 11th amendment, but you cannot sue state agencies.  Court gives a literal reading of state, but not a literal meaning of citizen or of foreign state. Why? 10 CONSTITUTIONAL LAW OUTLINE PROFESSOR SHANOR – 2003 Strong states‘ rights theory based in doctrine of ―sovereign immunity‖ which is the broader backdrop to the 11th Amendment. **LOOK TO SETH‘S CLASS NOTES ON THIS ISSUE!  Waiving sovereign immunity-SMJ?  III. THE DISTRIBUTION OF NATIONAL POWERS Separation of Powers  non-involvement of branches that do not possess a specified power Checks & Balances  signifies division and dispersion of a specified power between branches. Supreme Court has played the role of arbitrator – deciding where to draw the line between Executive and Legislative roles. See cartoon – pg. 107 – Does this look like a coequal branch of gov‘t (the Supreme Court as the ―school principal‖)? Purposes of Separation of Powers and Checks & Balances: 1. Prevention of Tyranny (central purpose) – no one branch or person has all the power. 2. Efficiency – originally thought to be more efficient than pure legislative British system. Two modes of analyzing Separation of Power issues: 1. Formalism – demands strict adherence by each branch to the powers granted to it by the Const.  Formalist more narrowly sees separation of powers as a command of the Const. 2. Functionalism – less stringent; but simply focuses on adherence to the purposes of the distribution of powers; separation of power is only violated when one branch takes power at the expense of another branch.  Functionalist sees separation of powers as one tool for fulfilling Constitution‘s goals. Overview: Many separation-of-power issues arise with regard to: 1. President/ Congress boundary line – many separation-of-power issues arise here. Congress’ powers are more specifically articulated (Art. I, §8), while many of President’s powers are implied (in both foreign and domestic areas).  President cannot make laws, only enforce them.  President cannot declare war, only Congress can.  President, not Congress, has power to appoint federal executive officers. 2. Executive Immunity & Privilege –  President has absolute immunity from civil liability for official acts.  President’s assistants and other fed. officials have only qualified immunity from suit.  President has only qualified right to refuse disclosure of confidential info. relating to official duties (may be outweighed by other compelling gov‘t interests). U.S. v. Nixon 3. Legislative Authority  Domestic Affairs  Foreign Affairs I. THE EXECUTIVE BRANCH: Presidential Power: (A) BASIC FRAMEWOK – President/ Congress Boundary line – President cannot make laws, or violate those passed by Congress. President = executor of laws made by Congress. 1. Youngstown Sheet & Tube v. Sawyer (1952) – During Korean War a labor dispute arose in nation‘s steel mills and workers threatened to strike. President Truman issued Executive Order directing Sec. of Commerce to seize many of nation‘s steel mills in order to keep steel production up, which was necessary for war. 11 CONSTITUTIONAL LAW OUTLINE PROFESSOR SHANOR – 2003 Legislative Background: Taft-Hartley Act (1947): allowed President to order workers back to work for a cooling off period. Refused to allow seizure; Selective Service Act (1948) and Defense Production Act (1950): Allowed for seizure, but detailed process to follow & Truman did not follow it.  Majority Opinion (J. Black) – takes a ―textualist‖ and ―formalist‖ approach to say that the President cannot construe his Constitutional powers so broadly: o ―Commander in Chief‖ does not confer such broad power o ―Taking care‖ does not confer such broad power o ―Necessary & Proper‖ clause is granted to Congress, not President. (Art. I, § 8) – Congress has power ―to make all laws which shall be necessary and proper for carrying into execution... all other powers vested by this Constitution in the gov‘t of the U.S., or in any department or officer thereof.‖  President must ground his authority in some Congressional act or Constitutional power.  Justice Jackson’s Concurrence  very often cited today!  ―President‘s powers are not fixed, but fluctuate, depending on their disjunction or conjunction with those of Congress.‖ Thus, three categories: 1. Express (Maximum Power) – When Congress has given its express consent/authorization 2. Absence (―twilight zone‖) – when Congress has not acted, he may have some running room, but not a whole lot. 3. Opposition (minimum power) – this is where President Truman is in this case. When Congress says ―don‘t do this‖ then if President does it, he is relying solely on his Constitutional powers........  In Youngtown, Pres. Truman was operating in 3rd category and thus weak.  Note: This is a functionalist approach, distinct from J. Black‘s. Much more fluid and interactive understanding of role of Const.  Note: Overall, Truman‘s unpopularity at this time may have factored in (but cf. Ex parte Quirin – more popular Pres. and more popular war); or Court simply didn‘t want to grant more domestic power to Exec. just b/c of emergency.  Dissent – believed Pres. Truman‘s order was justified by national emergency and under Commander in Chief role. (B) EXECUTIVE POWERS & PRIVILEGES 1. Executive Powers (a) Domestic Affairs  Clinton v. City of New York (1998) – NY files suit against Pres. and Court strikes down Line Item Veto Act passed by Congress. Court gives very formalist reasoning grounded in Const. text and precedent to say that if Executive were allowed line item veto power, President could essentially override the entire legislative process required by Art. I, § 7 to make law b/c President could change the law (and thus make it different) from what was passed by the Art. I, § 7 steps – which are (1) pass the HR; (2) pass Senate; (3) Pres. either signs it or sends it back to Congress. (―Presentment Clause‖) o Line Item Veto would violate ―Presentment Clause‖ b/c would allow President to sign law then send it back to Congress when it‘s supposed to happen the other way around. o Line Item Veto would over-extend President‘s domestic powers. 12 CONSTITUTIONAL LAW OUTLINE PROFESSOR SHANOR – 2003  Note: alternative to line item veto in spending matters, such as this case, is for President to simply not spend moneys allocated to him – has same effect! *** (b) Foreign Affairs – Constitution gives President substantially greater authority with respect to foreign affairs than with domestic affairs. Art. II, § 2 enumerates a number of powers in foreign affairs (e.g., Commander in Chief, Treaty-making power, appointing of ambassadors, etc.)  U.S. v. Curtiss-Wright (1936) – President proclaimed sale of weapons to Bolivia illegal pursuant to a Joint Resolution of Congress authorizing President to proclaim it illegal to sell weapons to countries engaged in war in the Chaco. Curtiss-Wright Corp. wanted to sell guns to Bolivia and challenged the constitutionality of the proclamation (alleging it amounted to legislative action). o Court holds President has broad power with respect to foreign affairs. o This power is pre-constitutional – came directly from King of England. o States never had foreign affairs power; thus, Exec. foreign affairs power was not carved from state sovereignty. o Thus Exec. foreign affairs power = external sovereignty o Constitution gives president specific foreign affairs powers and system gives president implied powers  ―Curtis-Wright makes it right!‖ – lawyers for Pres. love this decision! Any time there‘s a controversy involving foreign affairs, point to this decision.  Shanor: Basic problem with this decision is that it skips over the Const. and goes right to Natural Law. Who said that the power of the King passed to the President? At the time, there was no President, just a legislature (the Confederation).  Distinguish this broad holding: 1. President acting w/ Congressional approval – see J.Jackson‘s framework in Youngstown. 2. deals w/ foreign affairs 3. look to the facts o Dames & Moore v. Regan (1981) – Pres. Carter invoked International Emergency Economic Powers Act (IEEPA) during the Iranian Hostage Crisis in order to negotiate an ―Executive Agreement‖ to get hostages released (note: not a Treaty and thus not subj. to process of Treaty ratification). Part of agreement was establishing an Iran-U.S. Claims Tribunal. Dames & Moore had a $3M judgment against Iran pre-dating this tribunal and wanted to collect all of it, which will not happen if they‘re subject to the tribunal; so they challenge the President‘s power to suspend claims pending in U.S. courts. o Rehnquist follows Jackson‘s framework in Youngstown combined with Curtiss-Wright: (1) Express Congressional consent? There is statutory authorization for attachments, but not for suspension of claims. (2) Twilight zone‖ of Congressional silence? Sort of – the IEEPA; Hostage Act; and International Claims Settlement Act all imply Congress‘ approval, but no particular Act on point. (3) Opposing Congressional will? No. o Court finds to be operating in #2, but in this case, contrasted to Youngstown, Court interprets Congressional silence as implicit approval. o Shanor: It may be the case that: 13 CONSTITUTIONAL LAW OUTLINE PROFESSOR SHANOR – 2003    Congressional Silence + Foreign affairs = President has authority. Congressional Silence + Domestic affairs = President does not have authority. More narrow holding would be Congr. Silence + necessary incident to resolution of a foreign affairs crisis = Pres. has authority. 2. Executive Privilege  Powers – enable the President to engage in particular tasks.  Privileges – shield the President from inquiries concerning whether particular actions taken were lawful or not.  U.S. v. Nixon (1974) – Watergate tapes were requested by Special Prosecutor as part of a criminal investigation. Pres. filed motion to quash subpoena and claimed executive privilege. Constitutional Crisis b/c no one was sure Nixon would obey order. Nixon argued this was an intrabranch dispute between Exec. appointees – the A.G. and Special Prosecutor. Court says no – that A.G. and S.P. are co-equals.  Exec. Privilege Issue: Nixon argued (1) that separation of powers precludes judicial review of executive privilege; (2) alternatively, that executive privilege trumps subpoena duces tecum.  Court says Exec. Privilege is qualified (not absolute), thus must be weighed against other gov’t interests. In this case, high-stakes gov‘t interest in criminal investigation outweighs it. But, Exec. branch wins some victories:  Court acknowledges extreme deference to Executive Privilege would be given when it concerns matters of National security, protection of military, etc. o Note: strict textual reading of Constitution does not grant Executive privilege, only Congress would have privilege. But argument is that Executive Privilege is functionally necessary to operation of the office.  Deference shown to Executive: o ―in camera‖ inspection of sensitive documents that are returned to the extent they are not needed. o Prosecutor must show need for the documents o There is sensitivity to the President‘s schedule 3. Presidential Immunity: A. Official Actions:  Nixon v. Fitzgerald (1982) – Fitzgerald sued Pres. for improper firing. Court held President has absolute immunity from civil liability when acting in his official capacity. B. Unofficial Actions:  Clinton v. Jones (1997) – Paula Jones brought sexual harassment charges against President Clinton for actions taken prior to his presidency. Clinton claims Exec. Immunity. Court says no. Executive is not immune from civil liability for nonofficial conduct. o Note: Executive Immunity has no textual support in Const., but is derived from Congressional immunity/privilege for official conduct. 14 CONSTITUTIONAL LAW OUTLINE PROFESSOR SHANOR – 2003 o Art. I, § 3, cl. – Impeachment clause – limits Executive‘s criminal liability to impeachment hearings while in office. Framers apparently were concerned that Pres. not face criminal trial while in office. (C) LEGISLATIVE AUTHORITY  Legislative authority = mirror image of Executive authority. o President has more authority in foreign affairs, Legislature has less. o Legislature has more power in domestic affairs, President has less.  Prior to New Deal era, it was generally assumed that Congress could not delegate lawmaking functions (except by establishing an ―intelligible principle‖ by which others could be guided in administering the law).  Panama Refining Co. v. Ryan  A.L.A. Schechter Poultry Corp. v. United States (1935)  Schechter (1935) = the last time the Supreme Court invalidated a legislative delegation.  The Congress typically passes a law and then delegates authority for enforcement to the Executive or to an administrative agency that is overseen by the Executive.  But, if the law is then not enforced as Congress intended it, what can Congress do?  You delegate, but you retain some oversight authority. 1. Domestic Affairs a. Legislative Veto ruled unconstitutional.  INS v. Chadha (1983) – Congress delegated its authority to the Attorney General to suspend deportation of aliens. But, in order to retain some control and oversight, Congress reserved to itself a legislative veto over any decision by the A.G. re: a deportation decision. The veto could be exercised by a resolution passed by either house w/in certain time after A.G.‘s decision.  Court says one-house veto violates the Presentment Clause and the bicameral requirement of Art. I. § 7. (Two-house veto provisions have also been held unconstitutional).  Test for whether action is legislative – if it has ―purpose and effect of altering legal rights, duties and relationships outside the legislative branch‖ it constituted legislative action, and thus must comport with processes set out in Art. I. o Note: There are four areas in which one-house veto is constitutional: 1. Senate is unreviewable in its power to approve Presidential appointees; 2. HR alone can initiate impeachment proceedings; 3. Senate alone can try and convict for impeachment. 4. Senate alone has power to initiate Treaties;  Majority cites Youngstown to re-emphasize the point that Constitutional standards cannot be avoided simply b/c they seem cumbersome or inefficient (by Congress or the President).  Justice Powell‘s Concurrence – one-house veto is unconstitutional b/c it allows Congress to sit as a judicial body and thus overstep its const. limits.  Justice White‘s Dissent – very functionalist approach (in contrast to majority‘s formalism) to argue Congress was just trying to retain some oversight and should have it!  Shanor – problem with Chadha decision is that it gives no guidance as to when a legislative veto is unconst. Legislature continues to hand out vetoes all the time and nothing is done about it. b. Congress cannot reserve to itself the power to remove an executive officer. 15 CONSTITUTIONAL LAW OUTLINE PROFESSOR SHANOR – 2003  Bowsher v. Synar (1986): Gramm-Rudman Act to balance the budget. Comptroller could heavily control spending. Under earlier legislation, Congress reserved itself power to remove Comptroller, so presumably under Congressional control. Comptroller General was under Congressional control but exercising executive power.  Congressional participation in the removal of executive officers (unless by impeachment) is unconstitutional.  Reasoning: The problem is that the Act retains Congressional power of removal over the Comptroller General, who is an Executive agent – i.e., the Act says that the Comptroller is not removeable by the Executive, but only by Congress. The Court says this not right. It‘s a violation of separation of powers. Only the Executive has the power to remove an Executive officer (except that Congress does have the right to remove an Executive officer through impeachment). Art. II, § 2.  Justice White‘s Dissent – again a functionalist approach (in contrast with majority‘s formalism) to say that this is really no big deal b/c Congress could do the budget-cutting function of the Comptroller itself if it wanted. c. Chadha and Bowsher demonstrate that Congress can delegate authority, but cannot simultaneously retain control for itself. Chadha holds Congress to formal process when it legislates, while Bowsher says Congress cannot execute, but only legislate. d. On EXAM  pay attention to what is being done by each branch to make sure it complies with Separation-of-Powers! *** e. Bowsher discusses Myers v. U.S. – a case in which the Court found congressional limits on the President‘s removal of the postmaster unconstitutional. Removal = an exec. act and Art. II vests all Executive authority in the President. f. Appointments clause (Art. II, § 2, cl. 2) allows Congress to vest the appointment and removal of inferior Executive officers in either the Pres. alone, in the Courts, or in heads of departments.  Morrison v. Olsen (1988): Ethics in Government Act of 1978 – allows A.G. to apply for appointment of ―independent counsel‖ to investigate and prosecute highranking gov‘t officials for fed. criminal law violations. Congress aimed to insulate I.C. from executive influence. A.G. performs preliminary investigation and then reports to a ―special court‖ where he can request and receive appointment of I.C.  Once appointed, the I.C. can only be removed by A.G. for ―good cause‖ or by impeachment. Otherwise I.C. is done when investigation is complete or substantially complete.  President challenges but Court says restriction on President’s ability to remove an inferior Executive officer is constitutional b/c of appointments clause (Art. II, § 2, cl. 2). o fact that Judiciary is expert in prosecutorial matters lends further credence to its ability to exercise this cross-branch power. o I.C. is found to be ―inferior officer‖ b/c 1. I.C. is subject to removal by higher exec. branch official (the A.G.). 2. I.C. is empowered by the Act to perform only limited duties. 3. I.C.’s jurisdiction is very limited (just one investigation). 4. I.C.’s tenure is limited. Special Court Special Prosecutor (Independent Counsel (IC)) 16 CONSTITUTIONAL LAW OUTLINE PROFESSOR SHANOR – 2003  Appointed by the Court, but can be removed ―for good cause‖ by Attorney General (but A.G. is very restricted in this removal power – so long as IC is doing a good job, the AG cannot remove him just b/c he‘s uncovering too much. Attorney General President Dissent – Scalia argues Separation-of-powers requires President to maintain complete control over investigation and prosecution of laws. I.C. is not inferior b/c look at how much power he wields! **While the President has power to appoint and fire principal officers, Congress can, through statute, give the authority to appoint/fire inferior officers to the Courts or to Department heads. 2. Legislative Authority in FOREIGN AFFAIRS  Following disenchantment w/ Vietnam war in ‗60s-‗70s, Congress passed a War Powers Resolution in an effort to control future military action by Presidents.  Nixon‘s veto was overridden. Every Pres. since Nixon has said that this War Powers Resolution is unconstitutional, but each has asked Congress for approval for each military action they have undertaken.  War Powers Resolution – Provisions: o Trigger: "imminent involvement in hostilities" o limit on Commander-in-Chief powers to: o declaration of war o specific statutory authorization o attack on U.S. o Consultation o Reporting o Termination of Involvement (60-day limit on unilateral action; concurrent resolution can require w/drawal) o Interpretation (no implied authorization)  Is this Constitutional?  may violate Curtiss-Wright decision.  may infringe on Art. II, § 2 ―Commander-in-Chief‖ power (e.g., §1544(c) of resolution says Congress can pass resolution compelling Pres. to withdraw troops. o But, power to declare war does belong to Congress (Art. I, § 8). IV. CONGRESS’ POWERS (A) THE BASIC FRAMEWORK OF CONGRESS’ POWERS  Art. I, § 8 gives Congress power to:  lay and collect taxes  provide for defense  borrow money  regulate commerce  regulate immigration and bankruptcy  establish post offices and post roads  constitute tribunals inferior to Supreme Court  control issuance of patents and copyrights  declare war  govern D.C. and military bases 17 CONSTITUTIONAL LAW OUTLINE PROFESSOR SHANOR – 2003 ―make all laws necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the Gov‘t of the U.S.‖  Formalist approach = to categorize powers as either Judicial, Legislative, or Executive and proceed from there (e.g., J. Black‘s majority opinion in Youngstown).  Formalists want to guard against co-mingling of powers.  Tend to have a more active view of the Judicial role in maintaining separation of powers  Functionalist – refuses to categorize; but sees powers as chameleon-like; powers able to be modified and adapted (functionalists talk about quasi-powers...)  Functionalists want to guard against one branch aggrandizing itself at the expense of another branch.  Take more passive role concerning the Judiciary – allows powers to change and grow and become quasi-powers --- more deferential to the two political branches  More of an evolutionary and flexible view of the constitution. 1. THE NECESSARY & PROPER CLAUSE  Art. I, § 8, cl. 18 – following 17 preceding clauses enumerating Congressional powers. a. Implied powers – Supreme Court has given broad reading to necessary & proper clause, there by expanding federal power and limiting state power.  McCulloch v. Maryland (1819) – Congress chartered a Nat'l bank, which encountered political opposition by states like Maryland, which passed a statute taxing the Bank and then brought suit (against its in-state cachier, McCulloch) to collect the tax. o ―N&P‖ Clause vs. 10th Amendment o J. Marshall‘s majority opinion: 1. Constitution and federal laws = ―supreme law of the land.‖ (Art. VI). 2. Congress has power to create a National Bank, even though it‘s not an enumerated power. It‘s implied in ―necessary.‖ 3. expansive interpretation of ―necessary‖ to mean ―toward an end‖ or ―calculated to produce an end‖ (not more limited sense of only ―indispensable‖ as MD argued). 4. Maryland cannot constitutionally tax the bank, b/c ―the power to tax is the power to destroy‖ --- if Maryland could tax the federal bank then any state could tax any federal instrument (the post, the mint, ...) o Maryland is a part of the whole (nation) and therefore cannot claim any control or power over the whole. Intergovernmental Tax Immunity update: Jefferson County, Ala. v. Acker (1999) the Supreme Court upheld the county‘s ordinance to tax the salaries of federal employees (in this case federal judges who alleged that this tax interfered with the operation of the federal judiciary). So, the salaries of federal employees can be taxed by states. (B) THE COMMERCE CLAUSE POWER  Art.I,§8,cl3: "To regulate commerce with foreign nations, and among the several States, and with the Indian tribes."  Classical View of Commerce Clause Power = Gibbons v. Ogden: o required a ―direct‖ link btwn Congress’ power and regulation of commerce.  18 CONSTITUTIONAL LAW OUTLINE PROFESSOR SHANOR – 2003  Gibbons v. Ogden (1824) – NY state law gave certain boat owners exclusive navigation of waters within jurisdiction of the state. Ogden (P) received the right to navigate by assignment from an original privilege holder. Ogden navigated the waters between NJ and NY. Gibbons did not have a State privilege, but was operating a boat under a federal statute.  Ogden brought suit and won injunction against Gibbons in State court. Ogden appealed to U.S. Supreme Court.  Court holds ―Commerce‖ has always been understood to include navigation.  Marshall goes through a linguistic exercise, parsing the language of the commerce clause:  ―Commerce‖ means ―intercourse‖; Commercial intercourse includes a variety of components that occur in different states.  ―Among states‖ means ―intermingled with.‖ If two or more states are involved, then commerce clause applies. Note: This will be broadened in Wickard  ―Regulate‖ means ―to prescribe the rule by which commerce is to be governed.‖  Rule: If Congress is exercising its power to regulate, then Congressional Act trumps state law.  Marshall‘s majority opinion  based on Supremacy Clause argument. ***  Johnson‘s Concurrence:  a more purely constitutional argument to say that logically the power to regulate cannot be divided – ―it must reside in one potentate.‖ Thus, when the states granted this power to the federal gov’t they had to have granted all of it, and could not have retained any!  Johnson believes that even if the ―licensing act‖ was repealed tomorrow, Gibbons would have just as strong a case for invalidating the NY state law b/c it is unconstitutional !!! **** Could Congress Eliminate Commerce?  purpose was to promote, so doubtful that it could eliminate it  text‘s use of "regulate" presupposes its existence.  Before and After the New Deal – after a period of more strict interpretation of Commerce Clause in early part of 20th century, Roosevelt ―packed‖ the Court  gave rise to expansion of Commerce Clause Power.  e.g., Commerce Clause was used to uphold the Mann Act (intended to stop interstate prostitution – but stretched to include events that were interstate but where no money was exchanged, e.g., a man running off with a woman to another state – i.e., stretched to include simply immoral acts that had nothing to do with commerce).  Wickard v. Filburn (1942): Agricultural Adjustment Act limited amt of wheat farmer could grow even for his own personal use. (P) Filburn sought to enjoin enforcement of Act b/c part of his crop was in excess of the quota. Aggregation: if everybody does this, it will affect commerce. Coordination: wheat price is set by wheat throughout U.S., not just in 1 state.  Holding: ―Even if the activity be local and may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce.‖  Broad reading of Holding: Commerce clause extends to instances of producing something and selling it within state, or even just producing something for one‘s own consumption it instead of going out and purchasing something instead.  ―Indirect‖ impact suffices. 19 CONSTITUTIONAL LAW OUTLINE PROFESSOR SHANOR – 2003  Heart of Atlanta Motel, Inc. v. U.S. (1964): Motel readily accessible to interstates 75/85; advertised nationally; and approximately 75% of its registered guests were from out-of-state. But it refused to rent rooms to black people.  Determinative test for constitutionality of Congress‘ use Commerce Clause = whether the activity to be regulated is concerns more that one State and has a real and substantial relation to the national interest. o Aggregate effect – in order to make traveling available to the black community, must insist that all hotels are open to them.  Even if Congress’ primary purpose was moral, can still use Commerce Clause to support it. ***  Katzenbach v. McClung (1964): Court used Commerce Clause to uphold application of Civil Rights Act to Ollie‘s Barbeque (a 220 seat restaurant in Birmingham 11 miles from an interstate that did all local business with whites only). Because restaurant bought some of its supplies out-of-state, Court said it affected commerce!  This is a far reach of the commerce clause to apply to what seems to be nearly pure local business!  As long as there is some connection with economics (commerce), then Fed. Gov‘t can enforce moral legislation (which usually only falls within state‘s control). Modern Limits to the Commerce Clause Power – not since before New Deal did Court strike down a Federal Statute passed under Commerce Clause until U.S. v. Lopez:  U.S. v. Lopez (1995): Gun-Free School Zone Act of 1990 – federal offense for any individual to possess a gun w/in 1,000 of a school. Lopez, a 12th grader in Texas is caught bringing a .38 to school. Initially charged with a state law crime. Federal agents step in and charge w/violation of Gun-Free Act.  Gov‘t argues guns in schools zones affect interstate commerce b/c violence, esp. around schools, lowers national productivity.  But Court strikes down Act as exceeding Commerce Clause b/c: 1. No substantial effect on Commerce – or at least no Legislative Findings to indicate a substantial effect. [Shanor: if Congress had done this, perhaps would have been okay.]  If gov‘t‘s ―national productivity‖ argument were allowed, then Congress could mandate federal elementary school curriculum; might even say child-rearing affects national productivity. Too far! 2. No jurisdictional limit which might limit scope of Act to only certain kinds of gun possession [Shanor: if Congress had limited it to guns bought in another state or something, then may have be okay.] 3. Possession of guns ≠ commercial activity  Shanor: Court doesn‘t say, but might have said --- there is no explicit national necessity here as there was in Wickard (where Ct. showed affect on national wheat market).  Kennedy's concurrence: Blurring of Federal-State lines would reduce accountability. If we keep local local and federal federal, then we know where to go when there's a problem.  U.S. v. Morrison (2000): VA Tech female student, who was raped repeatedly by two football players, filed Federal suit under the Violence Against Women Act of 1994. (Δs) football players argued that the Act was unconstitutional. U.S. stepped in to defend constitutionality of the Act.  In passing the Act, Congress based its authority on § 5 of the 14th Amendment and on the Commerce Clause (At. I, § 8). 20 CONSTITUTIONAL LAW OUTLINE PROFESSOR SHANOR – 2003  Court strikes down Act as exceeding Commerce Clause using Lopez reasoning b/c relationship of violence against women and interstate commerce is too tenuous.  strong focus that rape is not economically motivated and not commercial activity.  There were Legislative Findings, but not persuasive to the Court. Thus, Findings alone don‘t guarantee anything.  Holding: ―Congress may not regulate non-economic, violent criminal conduct based solely on that conduct‘s aggregate effect on interstate commerce. The Constitution demands distinction between what is truly national and what is truly local. The regulation and punishment of intrastate violence that is not directed at the instrumentalities, channels, or goods involved in interstate commerce has always been the province of the States. Morrison Court: Three categories of activity Congress may regulate: 1. the use of channels for interstate commerce 2. the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities (e.g., Wickard)  Gibbons v. Ogden would fit in this second category. 3. those activities having a substantial relation to interstate commerce... i.e., activities that substantially affect interstate commerce.  Problem w/ this category = not clear how substantial a relationship is necessary; also, it‘s not clear what relationship to focus on (Court has tended to focus on the target rather than the beneficiaries). HYPO – Would a federal law punishing parents who ―fail to pay past due support obligations with respect to a child who resides in another state‖ be Constitutional w/in Commerce Clause power? Probably yes b/c this clearly has a (1) jurisdictional limit – i.e., it only has jurisdiction over parents living in another state from their child. So, it‘s more limited in scope than the statutes in Lopez and Morrison. It also looks more like a (2) national problem b/c of this – it makes it easier to haul in dead-beat parents. Also, there is nothing more (3) commercial than cash. HYPO: Endangered Species Act – protects the red wolf. Farmers kill lots of red wolves b/c they kill livestock. Is this regulation sustainable under Commerce Clause?  Would Court focus on wolves or on farmers?  Federal Court of Appeals upheld this Act, saying wolves may attract tourism, if they came back there could be a market for red wolf pelts.  Shanor: suggests Supreme Court would reverse if it made it that far. TAXING AND SPENDING POWERS:  Taxing: 16th Amendment (1913) – ―The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the many states, and without regard to any census of enumeration.‖  Gave Congress the power to collect Federal Income Tax (currently over $1 Trillion).  Spending: The Spending Power allows Congress to control things b/c it can require that certain things be done (or not done) in order to receive Federal money. ***  U.S. v. Butler (1936) – Power to tax and spend is an independent power and is not limited to furthering other enumerated grants of Congressional power. [cited in S.D. v. Dole] 21 CONSTITUTIONAL LAW OUTLINE PROFESSOR SHANOR – 2003  South Dakota v. Dole (1987): Congress enacted legislation directing Secretary of Transportation to withhold Federal Highway funds from all States that allow people under 21 to buy alcohol. South Dakota (SD) allowed 19 year-olds to purchase 3.2% beer. State claims unconst., but Court upholds as permissible exercise of Spending Power as long as it falls within the following limitations: 1. must be exercised in pursuit of the ―general welfare.‖ [not really a restriction b/c Court gives Congress deference on this.] 2. conditions must be stated unambiguously so states are able to make choices and be aware of consequences. [really just a rule of construction.] 3. must be reasonably related to federal interests in particular national projects or programs (―nexus‖ requirement‖). ***  This is where discussion focuses: Majority says there is sufficient connection between under 21 alcohol consumption and highway safety; Dissent says there is not a close connection (under 21 drinkers are small part of drunk driving problem).  Shanor: This ―nexus‖ requirement is not much of a restriction b/c Majority allows fairly wide latitude here, but it is some restriction. 4. must not be prohibited by some other ―independent constitutional bar.‖  In this case, Court decides 10th and 21st Amendments are not independent bars. 5. must not be so coercive as to pass from pressure into compulsion.  In this case, all SD would lose would be 5% of its highway funds, thus not coercive.  Shanor: predicts Court will back down from this non-coercive requirement. It‘s not well articulated, and it‘s a slippery slope. Court is likely to say in future that no amount of withheld money is too coercive. HYPO: Consider whether Congress could condition the receipt of any federal funds by a school district on prohibition of guns (or drugs) within 1,000 feet of any school within the district. While Congress could not directly legislate ―no guns w/in school zones‖ rule (see Lopez), it could control guns w/in school zones through spending power – e.g., conditioning receipt of federal funds for school testing on restricting gun possession w/in school zones. o So SPENDING POWER gives Congress a way to creatively regulate those things it cannot regulate directly. HYPO: What about Morrison – since Congress cannot regulate violence against women directly, how could it do so indirectly? o Through funding for women‘s health (hospitals) --- this is probably the best one b/c it‘s powerful enough to get States‘ attention and related enough to pass the nexus requirement. *** TREATY POWER:  In Missouri v. Holland, Justice Holmes wrote, ―Acts of Congress are the supreme law of the land only when made in pursuance of the constitution, while treaties are declared to be so when made under the authority of the U.S.‖ This suggests that treaties may violate constitutional rights (even though the treaty in question in that case did not).  Prior to expansion of Commerce Clause power, the treaty power was an important power.  But, in Reid v. Covert, the Court said there was nothing in the supremacy clause ―which intimates that treaties... do not have to comply with the Constitution.‖ ***  But this is in the context of individual rights, and may not apply to other areas of Congressional authority. So this tool in Congress‘ regulatory toolbox likely still stands. **** 22 CONSTITUTIONAL LAW OUTLINE PROFESSOR SHANOR – 2003  Can Congress do something through Treaties that it could not do through legislation?  e.g., red wolf example --- say Congress could not legislate on red wolves using commerce clause. Could Congress turn to its treaty power and enter a treaty with Canada? o Before Reid, probably no problem, but even after Reid could probably still do this.  Art. VI, cl. 2 – treaties simply have to be made under the authority of the U.S. --- this is the window into trying to use treaty power to do things Congress cannot do through ordinary legislation.  Congress and President can control the domestic effects of treaties by:  enacting another treaty or piece of legislation that supercedes it. WAR POWER:  Congress was given power to ―declare war‖ but not ―make war.‖  Many believe this change in language by framers has dramatically affected balance of power btwn Executive and Congress, esp. in small scale military operations.  Woods v. Cloyd W. Miller Co. (1948) – Court supported broad war power: (1) ―the war power does not necessarily stop with the cessation of hostilities,‖ and (2) the war power, broadly construed, might ―swallow up‖ the other powers and burst free from the 9th and 10th Amendment constraints on Congress (i.e., allow Congress to act beyond Constitutional bounds). o Even after Germany and Japan surrendered after WWII, Court said it was not going to second guess Congress and President relating to war-related actions. o We don‘t have any legislation saying how substantial a connection there must be in order to enact legislation (ie., between the legislation and the war) ----- the closest case Shanor can think of is Youngstown. o Problem with War Power is that Civil liberties become more restricted during war time. Thus it‘s important to determine whether or not we‘re in a permissible/ valid exercise of war power. o See Hambdi case – this may make it to Supreme Court this year. Court is likely to follow Woods and uphold actions of Congress and President. HYPOs: What Art. I powers migh Congress rely on to accomplish the following:  Barring execution of pregnant women  Could use Spending Power (e.g., condition prison construction funds on not executing pregnant women) or on Treaty Power (e.g., enter human rights treaty with France).  Oulawing bungee-jumping  Probably not a regulate-able activity b/c such a ―small potatoes‖ activity, but perhaps could use Spending Power to refuse funding for hospitals, etc. RECONSTRUCTION AMENDMENTS (13th, 14th, 15th) (applied to States):  Enforcement Clause of 14th Amendment – ―The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.‖  The Civil Rights Cases (1883) – Court strikes down Act entitling all persons in the U.S. to the full and equal enjoyment of the accommodations, advantages, facilities, and privileges of inns, public conveyances... theaters, and other places of public amusement  Holdings: (1) Actions of private businesses (even if they serve public functions and are publicly regulated) do not constitute ―state action.‖ 23 CONSTITUTIONAL LAW OUTLINE PROFESSOR SHANOR – 2003 14 Amendment guarantees of Due Process and Equal Protection apply solely to state action. (3) 14th §5 ―Enforcement clause‖ does not give Congress power to regulate solely private conduct. It ―does not authorize Congress to create a code of municipal law for the regulation of private rights...‖ ―Enforcement Clause‖ of 14th §5 only gives Congress power to pass laws to prevent states, by their own actions, from interfering with these rights. (4) 13th Amendment applies to private citizens as well as states (i.e., no one can hold others as slaves), but 13th Amendment only bars ―slavery and involuntary servitude.‖ Court took narrow view of this to find that refusal to allow blacks into public accommodations was not a ―badge of slavery.‖  ―Civil Rts Cases‖ remain good law to this day. This is why the Commerce Clause Power was used in Heart of Atlanta and Ollie‘s Bbque.  Deference given b/c Justices making this decision were appointed by Presidents Lincoln, Grant, Hayes, Garfield, and Arthur – so they would have had intimate knowledge of the 14th Amendment and the events surrounding its passage. (2) th  Katzenbach v. Morgan (1966) – NY law requiring reading ability in English required in order to vote conflicts with Federal Voting Rights Act of 1965 which banned literacy tests.  NY argues 14th Amendment (§5) Enforcement Clause can only be used to prohibit enforcement of a State law that Court finds to be in conflict with 14th Amendment.  Court rejects this argument and holds that §5 of 14th is a positive grant of Congressional power – i.e., Congress can actively pass laws that enforce or expand the provisions of the 14th Amendment.  Congress‘ power is a ―one-way ratchet‖ to expand rights – i.e., Congress could not pass laws to restrict rights or to validate laws such as this NY law. It‘s only a ―rights-enhancing‖ power.  City of Boerne v. P.F. Flores (1997): City denies Catholic church a building permit b/c zoning ordinance placed church in historical district. The Archbishop challenges the zoning ordinance, relying on the Religious Freedom Restoration Act (RFRA).  But, Court upholds zoning and strikes down RFRA as exceeding Congress‘ power under 14th §5 Enforcement Clause. Court holds Enforcement Clause can only remedy unconstitutional state action; it cannot be used to make a substantive change to the constitution or other governing law. In this case, Court concluded that Congress‘ use of Enforcement Clause substantively modified, rather than merely enforced the Free Exercise clause.  Court did not overrule Katzenbach. To distinguish, Court introduced these tests: 1. There must be ―congruence and proportionality‖ between the injury to be remedied and the means adopted to remedy it. 2. Enforcement Clause (14th §5) allows Congress to pass remedial but not substantive legislation.  remedial legislation = corrective of state laws (e.g., Katzenbach)  substantive = changes governing law or Constitutional scheme (as RFRA did). RFRA sought to expand scope of Free Exercise Clause w/o proportional state interest Only laws that target religion are unconstitutional. No clear record of laws targeting religion 1. Is there a pattern of discriminaton? 2. Is remedy congruent and proportional? What Congress makes illegal must be congruent & proportional to what the Ct. has declared Free Exercise clause says discriminating against religion is unconstitutional. 24 CONSTITUTIONAL LAW OUTLINE PROFESSOR SHANOR – 2003 unconstitutional. Congress cannot "rewrite" the Constitution and its powers are limited when it comes to the states.  Effect of Boerne – Congress must rely on affirmative remedial powers that are ―congruent and proportional‖ to end sought. This is still significant power – e.g., dicta in Seminole Tribe of Florida said that only 14th Amendment remedial powers, not the Commerce Clause, could serve as basis for Congressional abrogation of 11th amendment sovereign immunity. **** o But remember: exercise of remedial power must always be ―congruent and proportional‖ to objective sought   Kimel, Jr. v. Florida Board of Regents (2000) – Florida used ―congruent and proportional‖ test to successfully defend against an ADEA claim – i.e., Congress‘ subjecting States to Age Discrim. liability when acting as employers via ADEA was not proportional to any findings that States contributed to problem of Age Discrimination in employment. It was not proportional considering such liability abrogated 11th amendment state sovereign immunity. Congress cannot choose methods that are much broader than the discrimination it seeks to remedy.  IN ANALYZING RECONSTRUCTION AMENDMENT CASES: 1. ID what objective Congress is seeking (what it‘s trying to change); then ask 2. Are the means used ―congruent and proportional‖ to ends sought? V. FEDERALISM’S LIMITS ON CONGRESS & THE STATES 10th Amendment: ―The powers not delegated to the U.S. by the Constitution, nor prohibited by it to the States, are reserved to to the States respectively, or to the people.‖ A. LIMITS ON CONGRESS  Even where Congress has substantive power to regulate the States, there are limits!   These cases deal with tension between substantive Congressional power (e.g., Commerce Clause) and 10th Amendment reservation of power to States. 1. SUBSTANTIVE REGULATION OF THE STATES  Garcia v. San Antonio Metropolitan Transit Authority (1985): OVERRULED National League of Cities which had held that the Commerce Clause did not empower Congress to enforce minimum wage and overtime pay standards of Fair Labor Act against the States ―in areas of traditional [state] gov‘t functions.‖  Upholds the Fair Labor Standards Act as valid exercise of Commerce Clause Power, reasoning that reliance on ―traditional state gov‘t functions‖ to limit substantive Congressional power unreasonably cabins citizens‘ power to make changes. Federalism affords States the opportunity to participate in the political process and thus limit Congressional exercise of Commerce Clause power.  This case allows (P) to sue the States b/c it allows the FLSA (Fair Labor Standards Act) to be applied to the state-run SAMTA (San Antonio Metro Transit Authority). Note: State is simply treated like any other employer. 25 CONSTITUTIONAL LAW OUTLINE PROFESSOR SHANOR – 2003  Dissent argues this leaves Congress to police itself in exercise of Commerce Clause power (and thus undermines principles of judicial review set forth in Marbury).  Shanor: Subsequent decisions have cabined the Garcia decision 2. ―COMMANDEERING THE STATES‖  NY v. US (1992): Low-level Radioactive Waste Policy Act required states to take title to waste if they did not comply with the act. In essence forced states to make certain regulations in order to deal w/ the coordination problem of waste disposal.  Court held Congress cannot ―commandeer‖ States’ legislative processes by compelling them to enact and enforce a Fed. regulatory scheme.  Federal legislation cannot specifically target States alone (rather than simply all producers of radioactive waste, private and public).  Distinguish from Garcia in which States were simply treated the same as other employers.  i.e., Commerce Clause authorizes Congress to regulate interstate commerce, but not States‘ regulation of interstate commerce.  Congress could have accomplished its goad thru Taxing and Spending Power.  Jay Printz v. U.S. (1997): Brady Bill demanded State and local executive (Sheriffs) to perform background checks on prospective gun buyers until national computerized database could be established.  Without particularized Const. authorization, Congress cannot compel a State or local gov’t’s executive branch to perform functions.  Congress can only impose negative limits, not affirmative duties on State executive. SUMMARY  Congress can regulate States if it treats States no differently from private actors (Garcia)  But, Congress cannot target States alone with its substantive power (Printz); nor can it compel State executive branch to perform positive Federal duties, absent particularized Constitutional authorization (NY v. U.S.). i.e., Congress cannot ―commandeer‖ the States. (violates 10th Amendment power reserved to States). 3. STATE SOVEREIGN IMMUNITY: 11th Amendment Limit on Congressional Power  11th Amendment: ―The Judicial power of the U.S. shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another state, or by Citizens or subjects of any foreign states.‖  Seminole Tribe of Florida v. Florida (1996) – Congress passed the Indian Gaming Regulatory Act (1988) abrogating States‘ 11th Amendment immunity against suits brought by its citizens or citizens of another state. Court holds:  States are immune to suits by citizens for money damages in federal courts .  Congress cannot override States‘ 11th Amendment immunity, even where, as here, Congress explicitly articulates its intent to do so, and relied on Commerce Clause Power.  Exceptions: Congress can override States’ 11th Amendment immunity when acting under 13th, 14th or 15th Amendment power  affirmative remedial (as opposed to substantive) power from 14th Amendment Enforcement Clause (City of Boerne). 26 CONSTITUTIONAL LAW OUTLINE PROFESSOR SHANOR – 2003  13 – 15 Amendments come after the 11th Amendment – (―later in time = 1st in priority).  can also sue a State if some other basic Constitutional right is being denied.  Note: 11th Amdt does not bar federal suits brought by one state against another.  Note: Only the State itself is given immunity by 11th Amdt. not its subdivisions (counties, cities, etc.) As in Garcia, in which suit brought against municipal entity.  Note: 11th Amdt only bars suits for money damages, not injunctions!  e.g., citizen can sue state official to enjoin official to stop violating federal law.  Alden v. Maine (1999) – Employees of state of Maine brought suit in State court claiming State was violating Federal Fair Labor Standards Act.  Court held States are immune to suits for money damages by citizens it State’s own court, even though suit is for a federal right.  Note: workers could have brought suit for an injunction or specific performance. (Equity)  Note: Garcia is distinguished b/c suit for damages was brought against City, not state. ***  Federal Maritime Commission v. South Carolina State Ports Authority (2002) – South Carolina Maritime Services, Inc. wanted to berth a gambling boat at port in Charleston, but SC Ports Authority repeatedly denied access b/c it had policy against gambling boats. Maritime Services filed complaint with the FMC, which was referred to an Administrative Law Judge. SC Ports Authority filed motion to dismiss on grounds that as a state agency it has sovereign immunity  Holding: States are immune from suits for damages by citizens brought in Federal Administrative Agency hearings (such as FMC). (11th Amendment)  To hold otherwise would be completely inconsistent with Seminole Tribe and Alden.  NOTE: Under 11th Amendment THERE CAN BE A FEDERAL RIGHT W/O A REMEDY. Other possible ways to attain right: 1. state could consent 2. you can possibly get an injunction, but not money 3. U.S. could sue 4. Conditional spending might force states to waive immunity 5. Good Faith th th B. FEDERALISM’S LIMITS ON THE STATES  U.S. Term Limits, Inc. v. Ray Thornton (1995) – By referendum vote, Arkansas passed an amendment to its state constitution imposing term limits on its candidates for U.S. House (3 terms) and U.S. Senate (2 terms).  Issue was whether ―Qualifications Clause‖ in U.S. Constitution stated minimum requirements or exclusive requirements for Congressional candidates.  Court held that Qualifications Clause stated exclusive requirements and that Arkansas‘ amendment was beyond a State‘s power under the Constitution. To allow States to come up with own requirements would undermine the uniformity of Federalism.  Court drew on Powell which held Congress could not add requirements. PREEMPTION UNDER THE SUPREMACY CLAUSE 27 CONSTITUTIONAL LAW OUTLINE PROFESSOR SHANOR – 2003  Supremacy Clause (Art. VI, cl. 2) – ―The Constitution and the laws of the United States [and all its Treaties] shall be the Supreme Law of the Land, and Judges in every State shall be bound thereby, any thing in the Constitution or Laws of any State notwithstanding.‖ o Thus, Federal law trumps state law. o Supreme Court = final arbiter of Federal and State conflicts (no such institutional authority existed under the Articles of Confederation).  Preemption = when applicable, Federal law overrides state laws that conflict.  What makes preemption hard is determining whether or not the federal law does or was intended to preempt or override state law.  Alexis Geier v. American Honda Motor Co., Inc. (2000) – 1984 Federal Motor Vehicle Safety Standard required some, but not all, cars to have airbags. (P) crashed her 1987 Honda Accord (no airbags) into a tree and was seriously injured. (P) filed suit against Honda under a D.C. common law tort of negligence.  Issue: Whether the federal law was intended to preempt state law? YES.  Court holds Intent of Federal Standards was to provide manufacturers with a range of choices (as made clear by Dept. of Transp.‘s comments accompanying the Standards); thus manufacturer should not be held liable under state tort law for not following specific choices among range of choices given by FMVSS.  If Federal law was intended to preempt, then it preempts.  Dissent: Majority too quickly finds a conflict of laws and invokes preemption.  Shanor: One‘s reading of Preemption is directly related to one‘s understanding of the importance of state law relative to federal law and vice versa.  It really matters whether a judge/justice has a presumption of preemption, a presumption for not preempting, or a deliberate attempt to remain neutral.  Geier is interesting b/c it‘s a statute + a regulation that leads to preemption. The Court probably would not have allowed the statute alone to preempt. VI. ―DORMANT‖ COMMERCE CLAUSE (Judicial Protection of Interstate Commerce)  Commerce Clause = explicit positive grant of power enabling it to pass legislation. (found in Const.)  ―Dormant‖ Commerce Clause = implied negative judicial power to strike down state laws that interfere with interstate commerce. (Judicially created). o Theoretical basis is very shaky but also very old and established: 1. B/c Congress has limited resources and is not able to respond every time a state impinges on interstate commerce. [Shanor: But if Congress didn‘t like this, then it could have passed a framework statute giving Court power to hear such cases and take such action.] 2. B/c interstate commerce so important that Court wanted to throw its weight and influence in the direction of encouraging it; and Court began doing this at a time when interstate commerce was more threatened.  Thompson Willson v. The Black Bird Creek Marsh Co. Delaware legislature gave authorization to Marsh Co. build a dam. (P) crashed his sloop into it and sued 28 CONSTITUTIONAL LAW OUTLINE PROFESSOR SHANOR – 2003  Court says state authorization does not interfere with interstate commerce even though this is a navigable waterway, b/c Congress has not restricted such dams on such waterways.  Shanor: this case is interesting but it does not tell us a lot about where the line is drawn. E.g., would this case have come out the same if this were the Hudson River? Maybe if the damn were already there and a ship just ran into it; but probably not if the damn were about to built, given all of the interstate traffic on the Hudson.  Distinguish from Gibbons:  Gibbons involved a bigger river. Willson involves pre-existing dam + economic interests (in the form of property values that are maintained by the dam) that point toward keeping the dam; whereas in Gibbons, economic analysis would point towards navigable use of waterway.  With ―dormant commerce clause‖ cases – ALWAYS look at economic and political analysis! DORMANT COMMERCE CLAUSE AS PROTECTION AGAINST DISCRIMINATION:  Philadelphia v. New Jersey. (1978) – New Jersey passed a statute prohibiting importation of waste from other states. Affected landfills in NJ, as well as out-of-state Cities with agreements to dump waste in NJ. These cities filed suit in NJ state court.  Court struck down NJ statute b/c:  the statute was facially discriminatory  no compelling state interest (out-of state trash is just as unhealthy as in-state; e.g., quarantine would have been a legitimate interest)  the Nation, not the State, is the economic unit in the United States – thus States cannot engage in ―economic protectionism.‖  A state law with purpose of isolating/ economic protectionism is per se invalid.**  The statute might have been okay if it simply said that all waste (in-state and out-of-state) must be disposed of according to a certain set of standards (environmental, etc...).  South Central Bell v. Alabama (1999) – Court found facially discriminatory and thus invalid a state statute imposing different tax standards on in-state and out-of state companies. FACIALLY NEUTRAL STATUTES WITH EFFECTS ON INTERSTATE COMMERCE:  Kassel v. Consolidated (1981): Iowa banned all trucks over 60ft long. Unconstitutional b/c it burdens w/o substantial safety reasons.  If Facially neutral, so balance the interests local benefit vs. burden on interstate commerce. o Regulations that marginally further public safety, while interfering with commerce substantially (and shifting burden disproportionately to out-of-state residents) are invalid under Commerce Clause. o Note: with facially neutral statutes the presumption is in favor of constitutionality, whereas with facially discriminatory statutes the presumption is unconstitionality.  Carbone v. Town of Clarkston – Town had private company build waste transfer station and required all waste to go there (flow control ordinance). Held unconstitutional.  Facially neutral so balance the interests  local benefits do not outweigh burdens to interstate commerce (even burdens imposed on both in-state and out-of-state waste stations).*** 29 CONSTITUTIONAL LAW OUTLINE PROFESSOR SHANOR – 2003 o Discrimination against interstate commerce in favor of local business is per se invalid, except in narrow class of cases in which a city can demonstrate that it has no other means to advance a legitimate local interest. *** o Court focuses on manner is which ordinance gives the one facility a monopoly on the transfer/sorting industry. o Alternative way for Town to accomplish goal would be to own waste station from the beginning (market participant exception). MARKET PARTICIPANT EXCEPTION:  When a state is acting as a market participant it is exempted from dormant commerce clause and may favor local citizens over out-of-state economic interests.  South-Central Timber Dev., Inc. v. Esther Wunnicke (1984) – Alaska sold timber but required that it be processed at least partially in the state. Not constitutional – no market participant exception – b/c Alaska is not participating in the processing but is still regulating it discriminatorily.  Just b/c timber is state’s raw natural resource does not make it a market participant for processing.  When state attempts to control parties beyond those with whom it is contracting, market participant exception does not apply.  Rule = No downstream regulation – States not allowed to regulate downstream.  downstream regulation = regulating what can be done with product after it‘s bought by consumer.  3 cases in which market participant exception did apply:  Hughes – state was buyer of scrap  Reeves – state was seller of cement  White – state was employer of construction workers State was market participant, not market regulator, b/c acting like a private company.  Rationale for allowing Mkt Participant Exception:  Federalism – Court originally took power from States by creating ―dormant‖ Commerce clause, so in creating this market participation exception the Court is giving some of that power back.  Taxing and Spending – state citizens should be the beneficiaries of their own state‘s spending of its tax dollars. STATE PRIVILEGES & IMMUNITIES  Art. IV § 2 – ―The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states.‖  prevents states from discriminating against out-of-state residents.  No ―market participant‖ exception for states for violation of Privileges and Immunities Clause (Art. IV, § 2).  United Bldg. v. City of Camden (1984) – City ordinance required 40% of employees of contractors and subcontractors working on city construction projects be City residents. City claimed attempting to curb high urban unemployment and flight to suburbs. Court remanded to trial court to determine. [right to labor = fundamental right] o Note: ordinance passed ―dormant‖ commerce clause analysis b/c mkt participant, but could not get past P&I clause. 30 CONSTITUTIONAL LAW OUTLINE PROFESSOR SHANOR – 2003 o Anytime a state/city statute passes dormant comm. clause b/c of mkt participant exception, ask if Privileges & Immunities clause applies. Comparison of Privileges and Immunities versus Dormant Commerce Clause: P&I 1. Fundamental Rights** 2. Concerned with rights of individuals 3. examines people to see who is harmed, etc. Dorm. Comm. Cl. 1. Beyond Fundamental Rights 2. Available to individuals, corporations, etc. – so it‘s broader 3. examines what goods & services are restricted from interstate commerce. City of Camden does not deal with goods and services; it deals with harm to people; therefore it is a ―privileges and immunities‖ case. HYPO: Many States charge higher university tuition for nonresidents than for residents. Do such differential tuition charges violate the Commerce Clause? The Privileges and Immunities clause?  Can say state is a market participant and therefore not subject to D.C.C. But what about Privilege & Immunities clause? Can out-of-state student sue state of Georgia for charging higher tuition? Is cheap education a fundamental right? The student would probably lose b/c there has not been a Supreme Ct. decision that says that cheap education is a fundamental right.  ―Fundamental Rights‖ is a much narrower category than it appears to be on its face. Therefore, the ―Privileges and Immunities‖ clause does not get dragged into every case like you might imagine. Review Problem #1 (pg. 457) – Dormant commerce clause could be applicable to this case b/c has to do with sale of organs and potential exclusion of out-of-state residents. So there is commerce here and there is interstate commerce here issue here. Preference to citizens of the state = could argue that this is explicit discrimination (facial discrim) as in Philadelphia. But, there is no statute and state might use ―market participant‖ argument in order to say that it‘s excepted from (the advertising money it spent ---- this probably a red herring and not really strong argument; but the $1000 could make the state a market participant). Argument would be over whether state is in the ―consent‖ market or in the ―organ‖ market – that is, whether it is paying the $1000 for the consent or for the organ. Shanor: not sure that the argument that state is in the ―organ‖ market is very strong b/c by consenting to give organ to state, person may not necessarily give organ to that state – rather person may die in another state and therefore give organ to the state in which she died in. What about downstream regulation issue? It might be possible to see this as downstream reg. in that after they get the organ, for which they have bargained, they impose restrictions on how it is used subsequently. Shanor: this is probably not downstream reg. Privileges and immunities clause – Is there a fundamental right involved? Perhaps here the argument would be that a right to a new organ is a fundamental organ. Shanor – this is probably not a fundamental right, but it depends on what kind of perspective you bring to bear on this. But there probably is not here. But for argument‘s sake, say that there is a fundamental right here, then it would play out as follows: Why should states‘ own citizens get hearts and lungs rather than citizens of other states? The state would have an uphill battle if organs were viewed as fundamental right. It would be hard to argue that citizens of one state need organs more than other groups of people. CITIZENSHIP PRIVILEGES & IMMUNITIES 31 CONSTITUTIONAL LAW OUTLINE PROFESSOR SHANOR – 2003  Dred Scott v. John Sandford (1856) – This case highlights the regime that the 13th, 14th, and 15th amendments changed. The Court says that descendents of slaves cannot become citizens of the U.S. b/c they were not part of the revolution against England and b/c the framers did not intend for them to be citizens. Court strikes down Missouri compromise as unconst. and says that becoming a citizen of a state ≠ becoming a citizen of the U.S. Only citizens at time of declaration of independence became citizens and their posterity. o Jacksonian Democrats trying to hold on to the past.  The 13th, 14th, and 15th amendments were passed to reverse Dred Scott.  13th – abolished slavery  1st sentence of 14th – established citizenship for all born in U.S. (e.g., gave freed slaves right to sue in fed. court)  2nd sentence of 14th – guaranteed ―privileges or immunities of citizens of the U.S.‖ and provided that states could not deprive ―any person‖ of ―due process of law‖ and ―equal protection of the laws.‖  15th – prohibited U.S. and states from denying the right to vote ―on account of race, color, or previous condition of servitude.‖  Beyond Reversal – Three further amendments addressed other situations alluded to in this case:  19th – gave women the right to vote  24th – abolished poll taxes  26th – set a uniform age of 18 at which citizens were guaranteed right to vote.  §1 of 14th Amendment – ―All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.‖ [Ratified 1868] FEDERAL PRIVILEGES OR IMMUNITIES  Slaughter House Cases (1873) – Louisiana statute gave sole privilege of slaughtering to one Slaughter-house in New Orleans. (Ps) oppose as denying them exercise of their trade, relying principally on the P/I clause of the 14th Amdt.  Court distinguishes between state citizenship and U.S. citizenship and says that use of word ―citizens‖ in 2nd sentence of 14th amdt applies to U.S. citizens but not to state citizens.  Court equates ―privileges and immunities‖ in 14th with ―privileges and immunities‖ in Art. IV §2 as far as citizens of States are concerned.  Court says P/I clause of 14th Amendment does not deal with State laws but rather it deals with ―privileges or immunities‖ in relation to Federal law.  Court concludes 14th Amndt was not intended to degrade State gov‘ts by subjecting them to control of Congress for exercise of powers that have been fundamentally theirs since the beginning (e.g., ―privileges and immunities‖ of citizens in their State...)  ―privileges and immunities‖ are State protected; 14th Amendment did not place ―privileges and immunities‖ in special care of Fed. Gov’t.  Court does say some ―privileges and immunities‖ are reserved to Fed. Gov‘t – i.e., some of P/I clause is not nullified by this opinion – e.g., right to sue, to transact business with gov‘t, to rely on U.S. for protection on high seas or in foreign country, the right to peaceably assemble, to petition for writ of habeas corpus, etc... [trivial rights]  This opinion basically eviscerates the ―privileges or immunities‖ clause of the 14th Amdt.  Court is still hung up in pre-Civil War mode! 32 CONSTITUTIONAL LAW OUTLINE PROFESSOR SHANOR – 2003  Court essentially reduces the 14th Amendment ―privileges or immunities‖ clause to the ―trivial rights‖ outlined above.  Shanor (aside): Interesting point  Ps in this case could have used dormant commerce clause argument, but this was before time of Camden.  The ―Dead Hand‖ of the Slaughter-House Cases – untimely death of the substantive rights that might have been articulated by the ―P or I‖ clause has been the driving force behind 20th century expansive interpretation of other clauses in §1 of 14th amendment – ―equal protection‖ and ―due process.‖  Saenz v. Roe (1999) – Perhaps Court‘s attempt to resuscitate the P/I clause of the 14th. Second time in 125 years that P/I clause used to strike down a state law.  Held that P/I clause protects important right to travel – i.e., for newly arrived citizens of a state to receive same treatment as long-standing citizens of that state.  Struck down CA law saying that newly arrived CA citizens could only receive the amount of welfare they had received in state of former residence until they had stayed 12 months.  b/c ―right to travel‖ involves the citizen’s right to have same ―privileges or immunities‖ as citizens of new state, the discriminatory classification is itself a penalty – and therefore unconstitutional.  Shanor: Court could have decided this case more easily under the Equal Protection clause, as in Shapiro. o Why would Court do this?  Court says Equal Protection rights are not absolute b/c they do not give particular rights, just ―equal‖ rights to others... Court does not like Shapiro too much b/c it‘s a far-reaching EP case and b/c it overlooks some important legitimate state interests.  Shapiro v. Thompson (1969) – Supreme Ct. held it was Constitutionally impermissible for a State to enact durational residency requirements for the purpose of inhibiting migration of needy persons into State. Further held that a classification that had effect of imposing penalty on such migration violated the Equal Protection clause, unless it was shown necessary for a compelling gov‘t interest.  States in these cases were concerned about conferring portable benefits to transitory/ migratory folks. Court essentially held this is not a legitimate reason to discriminate in face of EP (Shapiro) or P/I (Saenz). Shanor: think @ how this would apply to educational benefits, etc.  Different way of looking at Slaughter-House Cases  different states have different sets of ―privileges or immunities‖ and whatever your state offers is what you get (in addition to trivial ones listed by case).  Slaughter-House Cases did not set out a minimum federal standard.  Thus, burden for minimum standards was placed on ―equal protection‖ and ―due process.‖ o But there are problems with this – e.g., ―equal protection‖ is hard way to set minimum standards b/c it is limited to saying that everyone can be equally poor or equally hurt by whatever... o ―Due process‖ is equally awkward way to set minimum standards b/c ―due process‖ is about minimal standards for the way gov‘t can take something away from someone – not setting out an initial set of minimal standards. VIII. DUE PROCESS 33 CONSTITUTIONAL LAW OUTLINE PROFESSOR SHANOR – 2003 PROCEDURAL DUE PROCESS The following cases involve governmental procedures challenged as inadequate to provide appropriate legal processes before someone is deprived of ―life, liberty, or property.‖ Way to do ―due process‖ analysis: 1. Is there a property or liberty interest being deprived? 2. If so, what is the process that is due? 1. Whether there has been a property or liberty deprivation:  Board of Regents v. Roth (1972) – Court held that nonrenewal of a 1-year contract to teach at state university did not require any explanation b/c there was no reasonable expectation of continued employment.  Perry v. Sindermann (1972) – Court held an employee was entitled to attempt to prove he had ―de facto tenure,‖ for such an implied contract would be a property interest under the 14th amendment.  Cleveland Board of Education v. Loudermill (1985) – Loudermill was hired and then fired by Cleveland Board of Education as security guard b/c on his application, he said he‘d never been convicted of felony. School bd. discovered he had been and told Loudermill he was dismissed for dishonesty, but did not give Loudermill opportunity to respond until after he was fired.  Court holds Loudermill had a property interest in continued employment and that some ―opportunity to respond prior to termination‖ is necessary, but does not say that full evidentiary hearing is necessary.  Court rejected Δ‘s argument that such process requirement expanded the property interest itself.  Rehnquist Dissent: believes in the ―bitter w/the sweet‖ argument – i.e., that the job came with the procedures attached to it by the legislature, namely that a pre-termination hearing is not required for dismissal, only ―good cause‖ is required. Rehnquist believes Loudermill should have had to take the ―bitter with the sweet.‖  Shanor: Which is the better view – the ―bitter w/the sweet‖ or the majority view?  there are costs to the majority view – it disincentives gov‘t from creating more jobs or from not farming them out to the private sector where due process requirements do not apply.  Argument against ―bitter w/sweet‖  states could simply always circumvent pretermination hearings by defining jobs as having procedural limitations which preclude pre-termination hearings. 2. What process is due?  Mathews v. Eldridge (1976) – Eldridge had Soc. Security Disability benefits cut off after responding to questionnaire mailer and then making written appeal. o Benefits = property interest. o Court holds an evidentiary is not required before final termination. o Court drew from Goldberg in which Court held that a pre-termination hearing which approximated a judicial trial was necessary before terminating welfare benefits (more dire situation that Mathews). o Due Process requirements are flexible and must be determined according to each situation. To determine, look to three factors: 1. private interest affected (degree of potential deprivation) 34 CONSTITUTIONAL LAW OUTLINE PROFESSOR SHANOR – 2003 2. risk of erroneous deprivation (fairness of procedure and value of additional safeguards) 3. administrative burden on gov’t (public interest) o Here, disability benefits are not based on need and recipients may have other forms of income. Thus, less reason to depart from ordinary principle that something less than an evidentiary hearing prior to termination is required. HYPO: Suppose student at state university is dismissed for cheating on an exam. How would you apply due process? STEP ONE = Is there a property or liberty interest?! One could argue that there is a liberty interest b/c of the stigma of being expelled. But there probably is not a property right to continue one‘s education at a public university unless set out by state statute. STEP TWO = What process is due? Apply Matthews factors: (1) this would be high cost in terms of private interests and (2) risk of erroneous deprivation; and (3) relatively low admin. costs. So, it would probably come out in favor of student. But state could argue that some kinds of reasons for expelling do not require hearing – e.g., not meeting GPA standard, cheating on paper where you can hold the original up to the forgery and easily see (i.e., where risk of erroneous deprivation is low.) HYPO: Assume President and Congress reform welfare to limit benefits to 24 months, at which point recipient gets notice saying ―That‘s it. Get a job.‖ No pre-termination hearing required. Does this violate procedural due process requirements? No. Congress is not required to hold hearings! Citizens have no due process rights in terms of congressional procedure. Your rights end with right to vote – then it is left up to your representative. STEP ONE – Is there a property interest? If Congress re-defines the property right to substantively consist of only 24 months, then there is no issue of termination. So, here the difference is that this is a substantive change to a property interest, and thus we do not get to the procedural issue.  Zadvydas v. Davis (Supplement) – In U.S., aliens were given deportation notice. (P) was detained. (P) filed writ of habeas corpus driven by ―liberty interest.‖  Aliens who come into the country do pick up ―due process‖ rights (b/c 14th amendment includes ―...shall not deprive any person...‖) Aliens who are turned away at the border do not have any due process rights.  By virtue of entering the country, aliens also gain ―equal protection‖ rights. Not ―privileges or immunities‖ b/c these apply to ―citizens.‖ ―Due process‖ and ―equal protection‖ rights apply to all persons though.  Guantanamo Bay cases – courts have held that this is land leased from Cuba that is subject to Cuban sovereignty. Therefore, prisoners held in Guantanamo Bay have never entered U.S. and have therefore not acquired ―due process‖ rights.  U.S. takes in more immigrants per year than rest of world combined. SUBSTANTIVE DUE PROCESS Substantive Due Process = Doctrine that allows Court to strike down substantive state laws that infringe upon certain rights (e.g., Economic and Personal rights) even if there is adequate procedural due processes. Rts. in addition to Bill of Rights. 1. Economic rights 2. Personal rights a. Abortion b. Family and Marriage rights c. Sexual orientation d. Right to Die 35 CONSTITUTIONAL LAW OUTLINE PROFESSOR SHANOR – 2003 Very controversial area b/c: (a) disabling gov‘t from taking action even when it follows majoritarian and const. process; (b) very weak textual support in Const. for such bold use of judicial review power. 1. ECONOMIC RIGHTS (to contract, to property) ------ today repudiated!  Lochner v. People of New York (1905) – Supreme Court struck down NY statute limiting number of hours of Bakery employees as infringing on freedom of contract and therefore a violation of substantive due process.  Court views as liberty interest vs. state police power to promote health, safety, welfare of workers and of bread consumption.  Court looks to Art. I, §10, cl. 1 to find freedom of contract as Constitutionally guaranteed right – in this case to freely sell one‘s labor – and applies what we would today call strict scrutiny, holding there must be more than a small (though rational) health, safety, welfare concern to override liberty interest. Shanor: If you and gov‘t have a K and part way through the gov‘t wants to change the standards, then your contract gets protected and gov‘t cannot do it – it‘s a property right. By contrast, if two private citizens have a K, gov‘t can change regulations part way through the contract, and the owners will be bound by that reg.  West Coast Hotel v. Parish (1937) – Court overrules Adkins and implicitly overrules Lochner in upholding a Wash. state minimum wage statute for women. Court held Constitution does not guarantee freedom of K as an inviolable right. States can infringe on freedom of contract under police power interests in health, safety, welfare. State interest in protecting women with inferior bargaining power outweighed right to freedom of K.  Carolene Products (1938) – Court held a presumption of constitutionality should applied to substantive due process attacks on economic regulations. Court upheld a subst. due process attach on fed. prohibition on interstate shipment of ―filled‖ milk (skim milk w/ non-milk fats).  famous footnote 4 = origin of heightened scrutiny [p. 42]  Modern trend – following West Coast Hotel and Caroline Products, Court has repudiated economic substantive due process of state economic legislative regulation. 2. PERSONAL RIGHTS  Incorporation of Bill of Rights –  Bill of Rights originally only applied as against the Federal Gov‘t.  Court used Due Process Clause of 14th Amendment to apply the Bill of Rights to States.  Palko (1937) (J. Cardozo) – largely responsible.  exceptions: 2nd, 3rd, and 7th amdnts and 5th amdt grand jury requirement not ―selectively incorporated‖ to apply to states.  Reverse Incorporation = use of 5th Amendment Due Process Cl. to apply Equal Protection to the Federal Gov‘t. (Bolling v. Sharpe, 1954) A. Origins of Unenumerated Rights:  Griswold v. State of Connecticut (1965) – Griswold = executive director of Planned Parenthood of CT who gave out ―accessories.‖ Buxston = physician at Yale who was giving out condoms. They were fined $100 each under Connecticut state statute prohibiting use of birth control 36 CONSTITUTIONAL LAW OUTLINE PROFESSOR SHANOR – 2003 devices or aiding and abetting others in using them. Court found statute unconstitutional using penumbra approach to unenumerated rights.  Drawing from 1st, 3rd, 4th, 5th, 9th amendments – Court said none alone provide substantive right that Conn. statute violates, but taken together they create zones of privacy.  J. Goldberg‘s Concurrence: favored using 9th Amendment exclusively to strike down Conn. statute. 9th Amendment was designed by James Madison to be a kind of catch-all, born out of fears that the enumerated Bill of Rights would not be broad enough.  ―The enumeration in the Constitution of certain rights, shall not be construed to deny or disparage others [i.e., other rights] retained by the people.‖  B/c right of privacy in marriage is such an ancient right it must be included in 9th amendment catch-all. ***   J. Harlan‘s Concurrence: 14th Amdnt Due Process protects against invasion of privacy and could have been used exclusively. J. Black‘s Dissent: Nowhere in Const. is right to privacy mentioned and neither 9 th nor 14th amdts can be so construed.  Shanor: Illegitimacy of the penumbra approach from Griswold is that it takes specific constitutional amendments and raises them to a heightened level of generality and then uses that generality to assert whatever the interpreter wants them to assert. *** B. Abortion  Roe v. Wade (1973) – Jane Roe, a single woman from Dallas, brought this action to enjoin TX from enforcing statute (similar to many other states) criminalizing abortion, except in service of saving mother‘s life.  Court acknowledged right to privacy is not explicitly mentioned in Const., but Court has recognized right of personal privacy and guarantee of certain zones of privacy  penumbra approach  Griswold.  9th amendment  J. Goldberg‘s Concurrence in Griswold.  concept of liberty in §1 of 14th amendment  Right of privacy (derived through any of above means) is broad enough to include a woman‘s decision whether to terminate a pregnancy.  State argues fetus = ―person‖ within meaning of 14th amendment.  Court says NO, fetus ≠ ―person‖ or not a ―full person‖ as a mother = ―full person.‖  But State does have interest in both mother‘s health and potential life of fetus, which grow substantially as pregnancy approaches term: Fetus‘ rights change over the course of gestation. 1st trimester – greater risk that fetus will not survive, so less rights for fetus. o abortion decision is up to the woman‘s attending physician. nd 2 trimester – Court gives more discretion/ wiggle room to States to regulate. o e.g., permissible state regulation = qualifications of doctors, licensure, facilities, etc. o this part of the opinion opens door for lots of subsequent legislation. ―Compelling point‖  viability. Point at which State has compelling interest in life of fetus and can proscribe abortion, except when necessary for life of mother.  note: as medicine gets better and better, this compelling point arises sooner and sooner in the pregnancy!!! *** 37 CONSTITUTIONAL LAW OUTLINE PROFESSOR SHANOR – 2003 3 trimester – abortion acceptable only if pregnancy/fetus threatens the mother‘s life or health. (―life or health‖ is not defined in this opinion ---- does this include mental health? psychological well being?)  Summary at end of Roe majority opinion: ―A state criminal abortion statute of the current Texas type, that excepts from criminality only a life-saving procedure for the mother, without regard to pregnancy stage and without recognition of the other interests involved, is violative of the Due Process Clause of the 14th Amendment.‖  Planned Parenthood v. Casey (1992) – Penn. statute put up hurdles to abortions w/o criminalizing it: e.g., Informed consent; 24 hour waiting period; minors must get parental consent or a judicial bypass; married women consent of husband; facilities had to follow reporting guidelines; medical exceptions – e.g., medical emergency.  Court reaffirmed Roe, but limited it by overturning trimester framework and by replacing notion of abortion as a fundamental right with undue burden test:  Summary of Casey holding: 1. Prior to viability, woman has right to choose abortion 2. Law which imposes an undue burden is unconstitutional; but regulations which promote health of woman and do not impose undue burden are okay. 3. After point of viability, State may regulate and even proscribe abortion.  Court holds married women consent from husband = undue burden; but all others okay. o Shanor: What about parental consent; isn‘t there same danger or angry/ abusive parent. Roe used a strict scrutiny approach  required state to show a compelling gov‘t interest for a narrowly tailored statute that precisely met those needs. Casey uses an undue burden test  statute is invalid when it has purpose or effect of placing substantial obstacle in path of woman seeking abortion of pre-viable fetus. o less stringent that ―strict scrutiny‖; more wiggle room for States. rd  Stenberg v. Carhart (2000) – Nebraska statute criminalizing partial birth abortions. Cahart = Nebraska doctor who performs abortions, who brought suit to enjoin state from enforcing statute.  Court decides this statute is unconstitutional for two reasons: 1. it does not include an exception for the mother‘s health; and 2. it imposes an undue burden on woman‘s ability to choose a ―dilation and extraction‖ (D&E) procedure. Shanor: easy way to get around this (for state to make this statute Const.) would be to include mother‘s health exception.  Salerno rule: ―facial challenge‖ = most difficult to succeed b/c it requires challenger to show that under no set of circumstances would the legislation be Constitutional.  Stenberg implicitly changes the Salerno rule b/c the Court strikes down a state statute dealing with abortion and it did so for the WHOLE statute FACIALLY  if it had stayed with Salerno framework then it would have just struck down as applied to these particular plaintiffs or this particular situation. 38 CONSTITUTIONAL LAW OUTLINE PROFESSOR SHANOR – 2003 HYPO (pg. 586): Proposed Statute for Age Limit on Artificial Insemination:  Problemic b/c reproduction is a ―fundamental liberty interest‖  If fundamental liberty interest, test is ―strict scrutiny‖  Alternatively, Court could use ―undue burden‖ test (as it used in Casey and Stenberg) – o 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. C. FAMILY & MARRIAGE  Inez Moore v. City of East Cleveland (1977) – East Cleveland Housing ordinance limited dwelling occupancy to members of a nuclear family, imposing criminal sanctions. City found Mrs. Moore in violation b/c she lived with her son and her two grandsons, who are cousins rather than brothers.  Court held ordinance violated liberty interest in family protected by 14th Amendment Substantive Due Process. (used arbitrary historical standard to define family).  Court applies ―heightened scrutiny‖ (either ―strict scrutiny‖ or ―undue burden‖ test) even though it seems to say it‘s applying rational basis.  Zablocki v. Redhail (1978) – Wisconsin statute said that any WI resident having minor children not in his custody and who he is under obligation to pay support for, may not marry unless applicant proves s/he is complying with support obligation.  Court strikes down b/c: Marriage is a fundamental constitutional right – linked with right to privacy, right to procreate, etc. Thus Court seems to apply strict scrutiny test or close to it ---- ―state must show sufficiently important interest and a closely tailored statute...‖  Shanor: But, this does not mean that every state regulation or prerequisite for marriage must be subjected to rigorous scrutiny.  State can prevent incestuous marriages; can require pre-marital counseling...  Shanor: WI statute could have included a civil fine, or garnishing of wages, and been okay.  Court also says this statute fails under Equal Protection b/c some people are too poor to ever pay all their child support and therefore would never be able to (re-)marry. Substantive Due Process cases: often tensions between different claimants‘ fundamental rights – e.g., Roe‘s fundamental right to abortion wins against fetus‘ right to life b/c mother is more ―full person.‖ We see these tensions in subsequent cases   Troxel v. Granville (2000) – Non-parental visitation statute. Grandparents wanted to visit grandchild after son/father committed suicide. Mother wanted to restrict hours. State restricted hours but mother did not like the hours the State assigned. Tension between parental fundamental right and grandparent fundamental right. Grandparents lose b/c: 1. The statute fails to establish a strong presumption in favor of parents, which substantive due process requires 2. Lower court did not use a strong presumption in favor of mother being a fit parent. Court calls this statute ―breathtakingly broad‖ b/c it holds that State could grant visitation rights to any person whom the State/court thinks it‘s in the best interest of the kids... 39 CONSTITUTIONAL LAW OUTLINE PROFESSOR SHANOR – 2003  Michael H. case – Conflict between biological parent vs. care-giver. Holds care-giver wins over biological parent, but this may not always be the case. D. SEXUAL ORIENTATION  Bowers v. Hardwick (1986) – GA statute criminalizing both hetero- and homo-sexual sodomy, i.e., facially neutral. Court upholds statute by narrowing it and holding that the right to homosexual sodomy is not a fundamental right or liberty interest and therefore not protected by 14th Amendment Substantive Due Process.  Fundamental rts/liberties = only those ―deeply rooted in Nation‘s history and tradition‖ (Inez Moore).  Shanor: note that if statute had limited criminalization to homosexual sodomy it would have run into trouble with Equal Protection. Substantive Due Process analysis: 1. Identify kind of right at issue?  economic right  liberty interest, etc.  Is it a fundamental right or interest? o ―deeply rooted in Nation‘s history and tradition‖ (Inez Moore) o ―implicit in the concept of ordered liberty‖ (Palko) o ―discrete and insular‖ minorities – rel., national, racial, etc. (Carolene P) 2. What kind of test to apply?  If fundamental right, then use heightened scrutiny test (strict scrutiny or undue burden).  If strict scrutiny test, then state must show compelling interest and a narrowly tailored statute.  Powell v. State (GA Supreme Ct. 1998) – 17 year old neice testifies that her uncle raped and sodomized her. Jury used sodomy statute as a kind of compromise b/c it wasn‘t sure enough to convict for rape, so it used sodomy statute to try to send Δ to jail for some time anyway.  GA Supreme Court reverses the sodomy statute at issue in Bowers. Expands privacy rights in Georgia. E. THE RIGHT TO DIE  Cruzan v. Missouri Health Dept. (1990) – Nancy Cruzan suffered severe brain damage in car crash and left in vegetative state, only alive b/c of life support, feeding tube, etc. Family and doctors agreed to remove life support, but hospital would not w/o a court order. Missouri‘s living will statute required ―clear and convincing‖ evidence that person would not want to be kept alive.  Supreme Ct. held a competent person has a liberty interest in refusing unwanted medical treatment, but this statute did not violate it b/c State had compelling interest in safeguarding life (and therefore requiring ―clear and convincing‖ evidence).*** Uses undue burdent test.  J. Stevens‘ Dissent: not even a rational basis for this statute.  Scalia: No const. right to refuse med. treatment; road to suicide which Const. rejects.  Washington v. Glucksberg (1997) – Washington state statute criminalized phys. assisted suicide.  Court upheld statute. 40 CONSTITUTIONAL LAW OUTLINE PROFESSOR SHANOR – 2003  No fundamental right to commit suicide b/c not in the 700+ yr. Anglo-American legal tradition.  Any Due Process Clause liberty interest in suicide ≠ fundamental right.  Court is worried about going down slippery slope – i.e., if it allows facile removal of life support or phys. assisted suicide then suicide becomes easier to view as const.  Note: Oregon today allows phys. assisted suicide. IX. EQUAL PROTECTION OF THE LAWS ―No state shall... deny to any person within its jurisdiction the equal protection of the law.‖ (14th Amdt. §1)  Three ―tiers‖ of Equal Protection analysis: (1) Strict Scrutiny – applied when dealing with a ―suspect classification‖ such as race or a fundamental right such as the right to vote.  Strict scrutiny = gov‘t must demonstrate a ―compelling gov‘t interest‖ and a ―narrowly tailored‖ statute or classification to fulfill that interest. (2) ―Middle Tier Scrutiny‖ – applied when dealing with gender classifications made by gov‘t.  Gov‘t must show ―important gov’t interest‖ which is ―closely related‖ to the gov‘t‘s classification. (3) ―Rational Basis‖ scrutiny – applied to all other gov‘t classifications.  requires only that classification be ―rationally related‖ to some ―legitimate gov’t interest.‖  Court may consider its own hypotheticals—not just the basis proffered by the state.  Origin of heightened scrutiny:  famous footnote 4 from Carolene Products – ―prejudice against discrete and insular minorities‖ calls for ―more searching judicial inquiry‖ b/c usual political processes do not protect such groups. o note: gender and other groups (e.g., homosexuals) may be ―discrete and insular.‖ RACE & THE EQUAL PROTECTION CLAUSE 1. Separate and Unequal  Plessy v. Ferguson (1896) – Louisiana statute requiring RR companies to provide ―separate but equal‖ accommodations. Plessy = mulatto; claims he‘s entitled to every right, privilege, and immunity available to white citizens.  Court upholds statute finding it reasonably reflects social preferences (rational basis); Court reads original intent of Equal Protection as ―separate but equal.‖ Says this does not imply inferiority.  J. Harlan‘s Dissent: ―separate but equal‖ interferes with personal liberty; Const. is color blind; impermissible to create a caste system.  Road to Brown – NAACP formed in 1909  NAACP repeatedly attacked ―Jim Crow‖ (―separate but equal‖) laws one case at a time. But despite minor victories, no end in site to overturn Plessy. 41 CONSTITUTIONAL LAW OUTLINE PROFESSOR SHANOR – 2003  1938 – Thurgood Marshall took leadership of NAACP  1952 – Supreme Court granted cert in four cases arguing school segregation was unconstitutional. The Court was divided and agreed to hear re-argument in next term. Over the summer Chief Justice Vinson died and was replaced by Eisenhower appointee Earl Warren.  Brown v. Board of Education (1954) – Court holds segregation in schools violates Equal Protection of 14th Amdt. Rejects any part of Plessy to contrary of this case.  Segregation in education deprives citizens of Equal Protection of the laws guaranteed by 14th Amendment.  Court uses social science research showing that segregation interferes with educational development  Stigma: feelings of subordination  Court rejects originalist argument  saying cannot turn back clock to 1868, when 14th Amendment was adopted; or to days of Plessy.  Much has changed in United States in regard to public education (i.e., African-Americans are much more educated, etc.)  Education is perhaps most important function of state and local governments.  required for military service  foundation of good citizenship  Criticisms of Brown: overturned precedent and perhaps original intent based on mere social science; judicial activism; weak b/c desegregation didn‘t really happen until 1964.  Brown II – Court required desegregation ―with all deliberate speed.‖ This was not very fast in South. 2. INVIDIOUS DISCRIMINATION – ―SUSPECT CLASSIFICATIONS‖  Race (any racial group per Croson), immigrant aliens, national origin or discrete religious groups (Jews, Muslims – qualify as race) or illegitimate children.  Suspect Class + Legislative Intent = Strict Scrutiny o Show legislative intent by: 1. Facially discriminatory – i.e., by explicit terms (e.g., Strauder) 2. Facially neutral but administered in discriminatory way (e.g., Yick Wo) 3. Facially neutral and administered neutrally, but was enacted for discriminatory purpose – i.e., leg. history (e.g., Loving sort of).  Strauder v. West Virginia (1879) – Strauder was black man convicted of murder who alleges he was denied Const. rights at trial b/c West VA law said no black man was eligible to be member of grand jury.  Court gives a per se rule  if exclusion is b/c of race, then state loses; cannot draw distinction in civil rights.  Yick Wo v. Hopkins (1886) – CA ordinance requiring consent of San Francisco Board of Supervisors in order to operate a laundry. (Ps) = aliens from China.  U.S. Supreme Court strikes down – establishes effects-based test – although facially neutral, the CA statute was used to arbitrarily discriminate against Chinese aliens – thus had discriminatory effect. o evidence = statistics showing different treatment of Chinese and Whites.  14th Amdt is not confined to the protection of citizens. 42 CONSTITUTIONAL LAW OUTLINE PROFESSOR SHANOR – 2003 Note: despite Yick Wo’s invocation of Equal Protection for all persons, not just citizens, immigration may be an exception to normal equal protection principles on the basis that ―the power of Congress over the admission of aliens to this country is absolute.‖ Congress has plenary power over immigration notwithstanding the 14th Amendment.  Korematsu v. U.S. (1944) – As in Hirabayashi (1943 – upholding curfew for JapaneseAmericans) Court upholds exclusion of Japanese-Americans from their homes (i.e., moving them to ―relocation centers‖) b/c:  Grounded on grave danger to public safety (Military/Executive branch – cannot ascertain precisely which Japanese-Americans might still be loyal to Japan.)  Not based on racial antagonism  Critique – Italian-Americans and German-Americans were not locked-up also! This shows the blatant racism at play in this!  Justice Jackson‘s Dissent: Court‘s validation of this kind of violation of civil liberties in the name of military expediency, creates a loaded weapon ready for any authority that can come up with a plausible claim of urgent need.  Court should not be complicit in this kind of racist military operation.\  Loving v. Virginia (1967) – White man and black woman married in D.C. and moved back to Virginia, where they were indicted for violating VA‘s law against interracial marriage.  Supreme Court strikes down statute, even though facially neutral and neutrally applied, b/c it was enacted with unjustified discriminatory legislative purpose. (e.g., different from Yick Wo in which there was an emergency.)  Washington v. Davis (1976) – (Ps) allege that D.C. Police Dept. recruiting procedures discriminate against black applicants (e.g., tests that screen out disproportionately high # of blacks).  Court upholds test b/c it cannot find any discriminatory purpose.  Just b/c a practice or law has racially disproportionate impact does not mean it violates 14th Amndt.  e.g., Strauder holding of unconstitutionality of excluding blacks from jury selection does not mean that just b/c a black person is not on a particular jury panel Equal Protection has been violated  To be invidious discrimination in violation of 14th Amndt, the law or practice must be traced to a racially discriminatory purpose.  not necessary that it be expressly discriminatory; it can be inferred  disproportionate impact is not irrelevant, but it alone is not sufficient  J. Steven‘s Concurrence: Requirement of purposeful discrimination is a common thread in Equal Protection racial discrimination cases, but the line between discriminatory purpose and discriminatory impact is not as bright as the Court opinion makes it seem.  Conundrum – why was discrim. impact + social science data not enough in this case but was enough in Brown? Just a problem. 3. AFFIRMATIVE ACTION  City of Richmond v. Croson (1989) – In attempt to remedy racial discrimination, Richmond passed measure requiring 30% of dollar amount for city construction contracts to go to minority businesses. Court struck down b/c: 1. lack of record (thus message to Cities to develop records!!!) 43 CONSTITUTIONAL LAW OUTLINE PROFESSOR SHANOR – 2003 2. failure to first take race neutral steps (e.g., encourage small businesses, loosen bonding requirements for starting a new business). 3. ―Benign‖ and ―beneficiaries‖ are not tailored closely enough. Too difficult to distinguish between what is benign and what is stigmatizing. 4. Rigid Quota  Croson stands for: benign racial categories must also be subject to strict scrutiny – i.e., compelling interest + narrowly tailored statute.  Note: benign racial discrimination may pass strict scrutiny sometimes. Also, context may make a difference – i.e., business vs. education   Bakke (1978) – Court struck down UC Davis med. school admissions quota system as unconst.  Justice Powell, the ―swing vote,‖ said student body diversity is a compelling interest and race could be used as one of a host of factors even if it tipped the scales in favor of minorities; but schools cannot use quota system – not a narrow enough tailoring.  Shanor: In general, remedying past discrimination is accepted in Affirmative Action cases as a compelling state interest (Bakke¸ Croson, etc.) the problem with this is determining when there is enough evidence of past discrim. and then determining the narrow tailoring of the statute.  Hopwood v. Texas (5th Cir. 1996) – UT Law school had admissions scheme that favored Blacks and Hispanics. School argued it had compelling interest in remedying present effects of past discrimination. 5th Cir. struck down, disagreeing with Powell and saying that race could not be used as a factor at all.  Schools may take into acct. other factors – e.g., socio-econ., athlete, art, academics, etc.  Grutter & Gratz v. Lee Bollinger (Univ. of Michigan Case) (6th Cir. 2002) – On appeal to Supreme Court presently.  District Court relied on Croson to find that ―racial classifications are unconstitutional unless they are intended to remedy carefully documented effects of past discrimination.‖  6th Cir. says ―critical mass‖ ≠ quota, therefore reverses and uphold UM‘s admissions.  The Coalition for Economic Equity v. Pete Wilson (9th Cir. 1997) – Proposition 209 referendum – California Constitutional Amendment (Civil Rts. Initiative) contains provision prohibiting public race and gender preferences in re: to public employment, education, or public contracting. (Ps) seek injunction preventing state from enforcing Prop 209.  Court concludes that the ―equal protection‖ burden imposed by Prop 209 on those who would seek race and gender preference is a burden imposed by the Const. itself. Thus, it cannot be said that a Prop imposing equal protection violates Equal Protection.  Majority says this is not like Hunter and Seattle (in which Supreme Court said that opening up busing issue to state-wide referendum made it unduly burdensome on minorities to access local assistance – essentially the Court said that the game couldn‘t be changed on minorities).  Hunter v. Erikson (1969) – Voters amended charter of City of Aakron to say no housing ordinances dealing w/ racial discrimination in housing could be passed w/o approval from voters.  Court held that legislation which modifies the political process for a racially discriminatory purpose will be held to strict scrutiny. 44 CONSTITUTIONAL LAW OUTLINE PROFESSOR SHANOR – 2003 C. GENDER & THE EQUAL PROTECION CLAUSE  ―Intermediate level‖ of scrutiny for gender  b/c there are some enduring and real differences between males and females. There are no real or enduring differences between races, so it receives strict scrutiny. Race No real diff. Minority More insular Equal protection clause aimed at race Gender Some differences Not minority Less Insular E.P. was not originally aimed at gender Thus, we get a slightly different theory for gender discrimination than for racial discrimination. It does not explain how we get to ―intermediate level‖ scrutiny or what it is.  C raig v. Boren (1976) – Oklahoma statute prohibits sale of non-intoxicating beer to males under 21 and females under 18. Court strikes down statute as violating Equal Protection to males 18-20.  Middle Tier Scrutiny: 2 prong test: (following Reed): 1. challenged classification serves an Important Gov’t interest (traffic safety) 2. means employed are clearly related that end –  stats show a large statistical difference between males and females in relation to drinking and driving, but statute is not closely tailored enough.  Middle tier scrutiny gives A LOT of wiggle room for Justices to differ.  Michael M. v. Superior Court of Sonoma County (1981) – CA statutory rape law makes men alone criminally liable for the act of sexual intercourse. Δ was 17½ and had sex with a girl under 18. He was charged.  Court upheld statutory rape law b/c realistically reflects way that sexes are different with respect to certain situations.  Equal protection does not ―require that all things which are different in fact be treated as though they were the same.‖  Using same middle tier scrutiny: 1. Gov‘t interest (preventing teenage pregnancy; reporting) 2. Closely related (court said was closely enough tailored) o Shanor: could have other ways to insure reporting (e.g., first reporter is not liable...) o Shanor: this could be argued either way  Blackmun‘s Dissent: concerned about real world consequences – may be cases in which evidence insufficient to convict for actual rape, so having statutory rape allows for some punishment.  U.S. v. Virginia (1996) – VMI did not admit women, but was financially supported by state of Virginia. Female high-school student complained. Court holds VMI‘s exclusion of women violated the Equal Protection clause.  following Reed, Court held state must show ―at least that the challenged classification serves important gov‘t objectives and that the discriminatory means employed are substantially related to the achievement of those objectives.‖  But Court added  to defend gender-based government action, the state must demonstrate ―exceedingly persuasive justification.‖  this is added language! (perhaps an attempt to move gender a notch closer to strict scrutiny). 45 CONSTITUTIONAL LAW OUTLINE PROFESSOR SHANOR – 2003  Shanor: This case and the language it adds does not overrule any of the other gender discrim. cases we‘ve read – it simply adds another tool to use when one encounters such a problem.  Scalia‘s Dissent: Public single-sex education is effectively dead b/c of this opinion.  Shanor: not true – this case only says that there must be an equivalent counterpart o also, this case does not say anything about a situation where there is a singlesex school and then an equal opportunity at a school of mixed gender. o Plus, none of this applies to private institutions unless they use federal funds **  Tuan Anh Nguyen v. INS – Court uses same middle tier scrutiny test to uphold a U.S. statute governing acquisition of citizenship for persons born to one U.S. citizen parent and one non-citizen parent when parents are unmarried and child is born outside of U.S. Statute imposes different requirements depending on whether citizen parent is mother or 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. D. FUNDAMENTAL INTERESTS & THE EQUAL PROTECTION CLAUSE  Two kinds of fundamental interests: (1) those explicitly articulated in Bill of Rights; (2) those which history, tradition, values, etc. suggest are important and implicitly granted by Constitution (e.g., marriage).  San Antonio School District v. Rodriguez (1973) – Ps claimed Texas‘ system of financing public education violated Equal Protection b/c it relied on local property taxes. Court rejected this argument:  Poor ≠ a suspect class (not a stable classification; hard to define; not traditionally so), thus poor receive ―rational basis‖ test.  Education ≠ fundamental interest  prohibitively expensive to guarantee.  as  Shanor: This case made it look like Supreme Court was almost heading in the direction of not recognizing any fundamental interests except those in the Bill of Rights.  Plyler v. Doe (1982) – rescues education as a quasi-fundamental interest. Court acknowledges its holding in Rodriguez, but says that education is also not just any old gov‘t benefit. Education is part of gov‘t‘s mission to ―abolish barriers that prevent achievement based on individual merit.‖ 1. Illegal alien children  not their fault that they live in these conditions. 2. No access – these kids have no access to education whatsoever.  absolute deprivation of education approaches violation of a fundamental right.  Illegal aliens = semi-suspect class under E.P.  Court says it‘s using ―rational basis‖ but it seems a little more heightened scrutiny.  Quasi-fundamental right + Quasi-suspect class = slightly heightened scrutiny.  This case does not overturn San Antonio v. Rodriguez, so which is the more important case? No answer to this – just competing law review articles. RATIONAL BASIS & HYBRID VIEW  Bush v. Gore (2000) – voters have some kind of equal protection right to have their votes counted according to uniform standards. Court enjoined FL from continuing its recount of the vote b/c of lack of uniform standards across the state, plus could not be completed in time. If the 46 CONSTITUTIONAL LAW OUTLINE PROFESSOR SHANOR – 2003 decision is made at the state level, then there must be a statewide standard. However, if the decision for counting is made locally, then the localities can have their own standards.  NY City Transit Authority v. Beazer (1979) – NYTA said it would not hire people in methadone treatment programs.  Court says not guided by Carolene Products, and methadone users do not receive benefit of heightened scrutiny.  Court reasons that there is a voluntary component to drug use/ addiction and having to become part of a methadone treatment program.  Shanor: This decision is inconsistent with other case law the Court could have used to reason a heightened scrutiny standard.  By only using rational basis test, Court only asks Δ to show a purpose that could seem rational to the Court; but Court does not ask for supporting evidence (for statistics, data, etc.) as it would with a heightened scrutiny test.  City of Cleburne v. Cleburne Living Center (1985) – Mental retardation ≠ quasi-suspect class  Court uses rational basis test to apply to mentally retarded folks in re: to zoning issues in TX.  Court strikes down the zoning  Shanor: Court talks the talk of rational basis, but uses some kind of higher scrutiny. o The Court looks beyond apparently rational purposes proffered by the state (i.e., junior high schools nearby; it‘s in flood plain so there‘s safety interest). It‘s not good policy, not admirable, but it‘s not utterly irrational. o This is ―rational basis with bite.‖ (Shanor) It‘s nominally rational basis, but Court shifts burden, looks into evidence, etc.  Romer v. Evans (1996) – CO passed constitutional amendment saying: No laws giving nondiscriminatory or preferential treatment to gays/lesbians. This had effect of invalidating a whole slew of earlier laws which gave preferential treatment to gays/ lesbians.  Court struck down claiming to use ―rational basis‖ test.  Gays/Lesbians are not a suspect/protected classno heightened scrutiny.  Court says it‘s irrational to single out a group to not receive protection of laws.  This is a per se denial of Equal Protection – i.e., some group is prohibited from having benefit of nondiscrimination laws.  ―No laws‖ = denial of protection  if Equal Protection means anything, it means you cannot select out a group of people and affirmatively say that they cannot as a matter of law be protected from discrimination (i.e., it would have been okay to just not pass a law protecting gays/lesbians, but to actively block such laws in future is not okay).  Shanor: Court did not use Hunter v. Erickson, or Carolene Products which it could have. This tells us that the Court is sufficiently uncomfortable with this theory that it just wants to dodge it.  This case suggests Court may be changing and may be willing to treat adult sexual relations as ―fundamental‖ for Equal Protection purposes.  Note: A statute/amendment that denies special/preferential treatment to homosexuals— but does not deny other rights—is okay. (See Equality Foundation v. Cincinnati) 47 CONSTITUTIONAL LAW OUTLINE PROFESSOR SHANOR – 2003  HYPO: Shanor: Would a state stat. that said ―no two people of same gender may be granted marriage license‖ be const.?  Yes, b/c this is like Bowers v. Hardwick.  No, b/c marriage = fundamental rt.; gender discrim.; and if law was written ―No law...‖ then it would be like Romer v. Evans. *** Only difference would be that Romer Court was more concerned with maintaining equal employment opportunities for gays. STATE ACTION If no state action, then there can be no inquiry into the merits of the case. Easier cases are ones in which state agency or employee is acting. More difficult cases are ones where we have interaction/symbiosis of private and state agencies – e.g., Hotels, Insurance, etc.  remember Civil Rts. Cases  Shelley v. Kramer (1948) – Court enforcement of racially restrictive covenant = state action. o Shanor: Shelley Court‘s understanding of court as state actor has been very narrowly applied – not expanded to contexts other than race. **Note: Racial case. o Alternative theory Court could have been used here  racially restrictive covenant was like a badge of slavery and thus violated 13th Amdt. This would have done a better job of limiting the holding to race.  Edmundson v. Leesville Concrete Co. (1991) – In a civil case, private litigants cannot exercise their peremptory challenges in a racially discriminatory manner. Court and private citizen in ―symbiotic relationship.‖ (Majority says: Litigants were in the courthouse—gov‘t property & participating in a legal system set up by the state.)  Burton v. Willminton Parking Authority (1961) – Coffee shop refused to serve blacks. Court held that b/c state owned the parking garage on which the coffee shop was located, the two were in a ―symbiotic relationship‖ that gave rise to sufficient state action to allow Equal Protection analysis.  Both Burton and Edmundson have ―race‖ in common. Race is treated differently! Other classes would only be subject to rational basis (middle-tier in the case of women).  Marsh v. Alabama – When private entity takes over state/municipal functions (e.g., a whole town being private) then it is subject to constitutional provisions. ** STATE INACTION  Deshaney v. Winnebago County Dept. of Social Services – Minor suing b/c not adequately looked after by Dept. of Child and Family Services. After DCFS had been contacted, child‘s father beat child to point of brain damage.  Court says NO STATE ACTION here b/c no Const. guarantee to be protected from private actors. State inaction does not trigger constitutional protections.  Court is concerned about protecting State resources. 48 CONSTITUTIONAL LAW OUTLINE PROFESSOR SHANOR – 2003  Note: Different outcome if DCFS had moved child to home for abused children and he was beaten by a counselor. Then there would be state action.  Tougher case  child removed by DCFS to a foster home, which state gives money to foster family, and child is beaten by foster parent. This is a close call. Could go either way. 49