Law School Outline - Constitutional Law- Shanor

CONSTITUTIONAL LAW Professor Shanor Spring 1999 I. THE JUDICIAL POWER TO ENFORCE THE CONSTITUTION - The Con authorizes a federal court system in Article III, which provides that federal courts shall have judicial power over all “cases and controversies”: 1. 2. 3. 4. 5. 6. 7. Arising under the Con, laws, or treaties of the US. Of admiralty and maritime jurisdictions. In which the US is a party. Between 2 or more states. Between a state and citizens of another state. Between citizens of different states. Between citizens of the same state claiming land under grants of different states; and 8. Between a state or citizens thereof and foreign states, citizens, or subjects. Summary of hierarchy used in rendering SC decisions 1. Text 2. Precedent (likely to follow own decisions) 3. Structure (how text supposed to be interpreted) 4. History (intent of the framers) 5. Policy A. Invalidation of Federal Law – Which branch of the gov’t shall have the final say in interpreting the Con.? – Marbury v. Madison (1803) 1. Facts: Marbury brought suit directly to the Supreme Court for a writ of mandamus compelling Pres. Jefferson’s Sec. of State (Madison) to deliver his commission for Justice of the Peace for Wash., D.C. Marbury’s commission had been signed by Pres. Adams, but not delivered by the time that Adams left office. The Jefferson admin. refused to honor the appt. because it had not been delivered by the end of Adams’ term. 2. The Opinion: 4 sections (a) Do these justices have a right to the commissions? Yes, entitled once they were signed by the President. (b) Is there a remedy for the violation of that right? Yes, this is an act that is specifically required by law and is not a political act which is not reviewable by courts. (c) Is the writ of mandamus the appropriate remedy? Yes, equitable remedy is proper. (d) Does the Supreme Court have the juris. to issue the writ? No, Amanda’s and Julie’s Con Law Outline -1- i. Judiciary act allows: The Judiciary Act provided that the S.C. would have juris. to issue writs to persons holding office under the authority of the US. Thus, the Act itself explicitly authorized the relief. ii. At odds with Con.: However, Marshall concluded that this grant of juris. was in conflict with Art.III, section 2 which does not grant the S.C. original juris. in this case. 3. Marshall’s holding: If the S.C. identifies a conflict between a Con. Provision and a congressional statute, the Court has the authority and the duty to declare the statute uncon. and refuse to enforce it. 4. Criticism: No where in the Con. does it say that the courts and not Congress ought to decide whether a given statute is in conflict with the Con. 5. Class Discussion: If Marshall had determined that Marbury was a public minister than Art. III would have given the court original juris. B. Invalidation of State Law – Martin v. Hunter’s Lessee (1816) 1. The S.C. exercises appellate juris. when it reviews the judgment of a state court. The S.C. may only determine whether a state court has reached a decision that is not in conformity with the Con., but it may not review decisions of state courts that merely adjudicate questions of state law. 2. S.C. can review the const. of a decision by the state’s highest court. (a) Sovereignty argument rejected (Art. I, sect.10): Con. cut back on state sovereignty in numerous respects and there is no reason to presume that state judiciaries were immune from this set of limitations. (problem is that doesn’t explicitly say that is applies to state judiciaries) (b) “All Cases” provision of Art.III provides fed. Courts shall have judicial power arising under treaties of the US. (problem – does not really apply to all cases – ie. Foreign countries) (c) Supremacy Clause (Art.VI): Federal Law is supreme. (problem-doesn’t say who must interpret it to be supreme, could state interpret on its own?) (d) Uniformity: There needs to be uniformity in decisions throughout the nation, otherwise diff. states would come up with diff. interpretations. C. Sources and Methods of Judicial Decisions  The power of state governments might be called inherent - a state government has the general police power to protect the health, safety, and general welfare of state residents.  For an action by the federal government to be valid it must: (1) it must fall within one of the powers explicitly enumerated within the Con. and (2) it must not violate any particular limitation on federal power listed in the Constitution. 1. Introduction – U.S. v. Miller (1939) 2. Natural Law – Calder v. Bull (1798) Amanda’s and Julie’s Con Law Outline -2- (a) All justices agreed that this was not an ex post facto law, but Justice Chase says the act of the legislatures are limited by concepts of natural law, and can be invalidated by the S.C. upon such grounds. Justice Iredell rejects this reasoning in his concurrence. Natural law is too abstract a concept upon to base S.C. decisions. 3. Language, Structure and Purpose – McCulloch v. Maryland (1819) (a) Facts: Congress chartered the 2nd bank of the US in 1816. Maryland passed a statute that imposed a tax upon all banks operating in Maryland that were not chartered by the state. The state brought action against the bank to collect the tax, but the S.C. held the tax to be uncon. (b) Doctrine of Implied Powers: Although the federal government may act only where it is affirmatively authorized to do so by the Con., the authorization does not have to be explicit. The fed. gov’t may exercise power that is ancillary to one of the powers explicitly stated in the Con., so long as this power does not conflict with specific Con. provisions. (c) Necessary and Proper Clause (Art. I, §8): Congress may “make all laws that shall be necessary and proper for carrying into execution” the specific legislative powers granted by §8 or other parts of the Con. (d) The opinion was divided into two parts: 1) Does Congress have the power to create a National Bank? and 2) If Congress does have the power to create the bank, was Maryland’s tax on it Const.? i. Marshall decided that Congress did have the power to create a national bank (b/c of enumerated power to tax, borrow money), relying on the necessary and proper clause. He rejected the notion that “necessary” meant “absolutely necessary” which greatly expanded the power of Congress. Conclusion: as long as the means is rationally related to a constitutionally specified object, the means is also Con. as long as it does not violate any specific prohibition. ii. Maryland statute taxing the bank was uncon. b/c federal gov’t is immune from taxation by any state, unless Congress consents. Also interfered with a valid federal activity and thus must be uncon. (e) Modern Approach: Courts will not strike down a statute so long as Congress has employed a means which is not prohibited by the Con. and is rationally related to objectives that are themselves within Con. enumerated powers. 4. History and First Principles – U.S. Term Limits v. Thornton (1995) (a) Facts: Voters in Arkansas modified the state con. to prohibit any person from appearing on the ballot for Congress from that state if he or she had previously served three terms in the House or two in the Senate. 22 other states had adopted similar provisions. Amanda’s and Julie’s Con Law Outline -3- (b) Qualifications Clause: sets specific requirements for membership in Congress i. Art. I, §2 cl. 2: requires each member of the House to be at least 25, a citizen of the US for at least 7 years, and a resident of the state from which he is elected ii. Art. I, §3 cl. 3: requires each member of the Senate to be at least 30, US citizen at least 9 years, and a resident of the state iii. Time, Places, and Manner (Art. I §4 cl. 1): state gets to set these (c) Justice Stevens (majority) struck down Ark. statute because it was beyond the states’ constitutional authority and would undermine the framework of federalism. i. Reaffirmed Powell v. McCormack, which established that Congress could not add qualifications for membership to those contained in the qualifications clause. Although this is not the same situation, it goes to the intent of the framers that the Con. should establish fixed qualifications. ii. 10th amendment only lets the states retain powers they already had before the enactment of the Con., and the power to add qualifications was not an original power of the states. iii. Democratic principles dictated that the states not be permitted to add qualifications for membership in the national legislature. The right to choose representatives belongs to the people, not the states. Thus, the states should not be able to add qualifications. iv. Not a ballot-access restriction authorized by Time, Places, and Manner clause because it is not merely a regulation, but a method of exclusion. (d) Justice Thomas (dissenting): believed that because the Con. was silent on this issue, the federal gov’t lacked the power to prescribe the rights of the states. Qualifications clause set up minimum requirements, but sets no limitation on additional requirements imposed by the states. 5. Precedent – Planned Parenthood v. Casey (1992) (a) Facts: re-examining central holding of Roe v. Wade (b) Voting blocks: 5-4 to maintain Roe as precedent but 7-2 to allow state to regulate more strictly than Roe. Opinion reaffirms the essential holding of Roe and examines the force of stare decisis. (c) Balancing Test: principles that must be taken into account when deciding on whether to overrule precedent. If all answers are no, the case will likely not be overruled. i. Has the central rule established by the previous case become unworkable? ii. Could the rule be removed without serious injury to those who have relied upon it? iii. Has the growth of the law left the previous case’s rule a doctrinal anachronism discounted by society? iv. Have the premises of fact changed so significantly to render the holding insignificant? v. Will the overruling of the previous case put doubts into the general public’s mind as to the effectiveness of the court? Amanda’s and Julie’s Con Law Outline -4- D. Limits on the Judicial Function 1. Congressional Limits – Article III suggests that Congress may place certain limits on both the SC appellate juris. and on the juris. of the lower federal courts. First, Art. III, §2 states that in all cases not falling within the SC’s original juris. (but falling within the federal judicial power), the SC shall have “appellate juris. both as to law and fact with such exceptions and under such regulations as the Congress shall make.” The lower federal courts do not exist until created by Congress (Article III § 1). (a) The SC agreed that Congress had this power in Ex Parte McCardle (1868). i. Facts: McCardle imprisoned by a military gov’t imposed by Congress as part of post-Civil War reconstruction. He brought a habeas corpus action in federal circuit court charging that the Reconstruction Acts were uncon. The circuit court rejected claim, he then appealed under an 1867 Congressional statute authorizing the grant of habeas corpus by federal circuit courts and authorizing appeal to the SC in such cases. Before SC handed down decision, Congress passed law repealing the portion of the 1867 Act which allowed appeals to the SC. ii. Holding: The SC upheld Congress’s restriction of SC juris. The Court relied on Art. III, §2 and concluded that SC had no juris. This is not contrary to Art.I §9 which says “:privilege of habeas corpus shall not be suspended” b/c lower courts could still hear the case, and the SC could still hear an original case just not on appeal. Congress can restrict appellate review, but may not eliminate the power of the SC to review the categories listed in Art.III §2 cl.1. (b) Plaut v. Spendthrift Farms (1995) i. Facts: Plaut sued for violation of Federal Security Laws in district court. Under the Lampf rule (suit must be brought within 1 year after violation discovered and within 3 years of the violation), the suit was dismissed in accordance with Lampf and was not appealed. Subsequently Congress passed an act allowing final judgments dismissed under the Lampf statute of limitations to be reopened. ii. Holding: To allow Congress to overturn final judgments is an unconstitutional violation of separation of powers. Congress may not decide with retroactive legislation that the law applicable to a case was different than the court said it was. This act would have been completely acceptable, however, if it only affected cases that were still in the system, e.g. on appeal. The SC draws the line on Congress’s ability to regulate its jurisdiction at final judgments. 2. Limits Imposed by the Judiciary – The SC must find a matter to be justiciable in order to hear the case, when it is not a “case or controversy” within Art.III. (a) Advisory Opinions (non-binding interpretation of law which indicates how the SC would rule if litigation should develop) Amanda’s and Julie’s Con Law Outline -5-  The SC does not give advisory opinions, but may issue declaratory judgments under a Congressional Act, if there is an actual case in which the parties want their relative rights declared. (b) Ripeness: A controversy is not ripe if it is premature.  It is not yet justiciable if it has not yet become sufficiently concrete to be worthy of adjudication. (c) Mootness: A case that has become irrelevant because the dispute between the parties has ended is said to be moot.  If case is no longer active then court would basically be issuing an advisory opinion, which it does not do.  A moot case may be adjudicated if: i. there is a continuing controversy concerning damages for no longer continuing conduct or ii. if the controversy is one which is “capable of repetition, yet evading review” (E.g. Roe was no longer pregnant when case went to SC) or iii. voluntary cessation by : not necessarily moot because  might return to old ways. (d) Standing (litigant must have a sufficient stake in the controversy) i. Elements of Standing:  Injury in fact: The  must show he has suffered or will suffer some concrete injury, or invasion of a legally protected interest. Must be actual or imminent, not too far in the future or too speculative. Need not be economic injury (e.g. damage to environment where one lives or pursues recreational activities).  Causation in fact: The challenged action must be a “but for” cause of the injury.  Redressability: A favorable decision in the suit will redress the injury. ii. Lujan v. Defenders of Wildlife (1992)   challenging federal agency action that will have effect of endangering certain species abroad. SC says no standing because no injury in fact without concrete plans or airline tickets! No redressability because foreign countries do not have to follow US law.  Justice Blackmun (Dissent): says that actual or imminent injury is satisfied with the evidence that ’s may take a return trip to the project areas. Very liberal view! Everyone can sue!!! (e) Political Question: Baker v. Carr (1962)  When the Con. entrusts a discretionary decision to Congress or the President, rather than to the court, the decision is said to be a political question. i. Holding: The constitutionality of legislative appointment schemes is not a political question. ii. There are 6 factors, and at least one must be present for an issue to be considered a non-justiciable political question. Amanda’s and Julie’s Con Law Outline -6- 1. Commitment to another branch: A “textually demonstrable constitutional commitment of the isue to a coordinate political department.” 2. Lack of standards: A lack of “judicially discoverable and manageable standards for resolving the issue.” 3. Unsuitable policy determination: “The impossibility of deciding the issue without an initial policy determination of a kind clearly for nonjudicial discretion.” 4. Lack of respect for other branches: “The impossibility of a court’s undertaking independent resolution without expressing lack of respect due coordinate branches of government.” 5. Political decision already made: An “unusual need for unquestioning adherence to a political decision already made.” 6. Multiple pronouncements: The potential for “embarrassment from many pronouncements by various departments on one question.” II. THE DISTRIBUTION OF NATIONAL POWERS A. Introduction 1. The general purposes behind separation of powers and checks and balances are: 1) the prevention of tyranny and 2) efficiency of administration. 2. Gen. Framework of Exec.: Youngstown Sheet and Tube v. Sawyer (1952) (a) Express powers: Art.II §2 enumerates pres. power (b) Implied powers: Art.II §1 “executive power shall be vested in the President” (c) Facts: During the Korean War, Pres. Truman sought to avert a strike in the nation’s steel mills. He issued an executive order directing his sec. of commerce to seize the mills and operate them under federal direction. Congressional approval of the seizure order was not requested. The steel companies sought an injunction to prevent the seizure. (d) Justice Black (majority): President does not have the power to make law, may only carry out laws. The order coming from the Pres. without congressional approval was a direct usurpation of congressional lawmaking authority. Formalistic Opinion: Power of the President must come from Congress or the Constitution-here it did not derive from any explicit power. Not under commander-in-chief power because it was too far removed from the actual war. (e) Justice Jackson (concurring): Functionalist argument: the President’s powers are not fixed but “fluctuate depending on their disjunction or conjunction with that of Congress.” This policy-flexible approach was adopted by the SC in Dames & Moore. 3 categories: i. Where the President acts pursuant to express or implied authorization of Congress, in which case his authority is at its maximum. ii. Where the Pres. acts in the absence of either a congressional grant or denial of authority, in which case “there is a zone of twilight in which he and Congress have concurrent authority or in which its distribution is uncertain.” Amanda’s and Julie’s Con Law Outline -7- iii. Where the Pres. acts in contradiction to the express or implied will of Congress; in this case his power is at its lowest ebb. (Jackson’s thought steel seizure fell into this category and therefore could not be Con. justified) (f) Dissent: The temporary seizure was justified because of the emergency nature of the situation and in order to preserve temporarily the status quo until Congress could act. 3. Implied Acquiescence by Congress: Dames & Moore v. Regan (1981)  Congress may sometimes be found to have impliedly acquiesced in the Pres. exercise of power in a certain area. When such a situation exists, it might be enough to tip the balance in favor of a finding that the Pres. acted within the scope of this authority. (a) Facts: In trying to settle the hostage crisis, Carter suspended all contractual claims against Iran then pending in US courts. (b) Holding: The court found that the President’s act was Con. even though Congress had never explicitly delegated to the Pres. the power to suspend such claims. It found that it had implicitly authorized that conduct by a long history of acquiescing in similar presidential conduct. Followed Jackson’s analysis in Youngstown to determine that the silence in-context impliedly gave the power to the President. Had the Court adopted Black’s formalist approach, decision probably would have come out the other way because neither the Con. nor Congress granted this power to the President. (c) Other possible problems: could be treated as a political question or have a problem with ripeness. Also, SC probably desired a certain outcome and made it fit. B. Executive Powers and Privileges 1. Executive Powers-Domestic Affairs i. Clinton v. City of New York (1998) (a) The SC ruled that the Line-Item Veto Act as implemented by Congress violated the Presentment Clause method of enacting or repealing statutes. After a bill has passed both houses but before it has become a law it must be presented to the president according to the Presentment Clause (Art.I §7 cl.2). The act failed to follow this procedure in at least 2 ways. 1. The President’s “return” of the bill occurred after the bill had been signed into law, rather than before, as the Presentment Clause requires. (Act gave pres. power to sign bill and then cancel any individual item within 5 days of enactment) 2. The cancellation could apply to only part of the bill, whereas the presentment clause requires veto of the entire bill. (b) If the Act were valid it would authorize the Pres. to create a diff. law than that intended by Congress. (c) Dissent: Congress had merely given the Pres. the discretion to spend or not to spend a particular item. It was no different than authorizing the Amanda’s and Julie’s Con Law Outline -8- Pres. to have discretion over money spent on a particular item. Did not truly give the Pres. a line-item veto. Faked out SC with name of the Act. ii. Chamber of Commerce v. Reich (District Court 1996) Clinton’s executive order under the precurement act held to conflict with the National Labor Relations Act. Court does not examine the constitutionality of order, merely uses statutory interpretation. The NLRA limited the President’s power to act. Not appealed by government because didn’t want to set bad law if upheld by SC. 2. Executive Powers-Foreign Affairs: US v. Curtiss-Wright Export Corp. (1936) i. Facts: A joint resolution of Congress authorized the Pres. to ban the sale of arms to countries engaged in a particular conflict. Roosevelt proclaimed such an embargo and Curtiss-Wright was charged with conspiring to sell arms to Bolivia. CW challenged the joint resolution as being a uncon. broad delegation of legislative power to the President. ii. Holding: The SC upheld the resolution. The need for negotiation plus the president’s special access to sources of information required “a degree of discretion and freedom from statutory restriction which would not be admissible were domestic affairs alone involved.” President would be better able than Congress to determine whether Bolivia was in fact engaged in the conflict. iii. Broader delegation of lawmaking power by congress to the Pres. will be tolerated in the area of international affairs than in the domestic area. The more precise the standards laid down by Congress to guide the executive branch or administrative agencies, the less likely it is that excessive delegation will be found. 3. Executive Privileges – Pres. does not have express immunity like Congress has in Speech and Debate Clause. Several presidents have tried to invoke executive privilege to justify their refusal to disclose information that they claimed to be confidential. i. US v. Nixon (1974)  Facts: In the Watergate scandal Nixon was issued a subpoena to deliver several tapes. He refused to do so and moved to quash the subpoena on grounds of executive privilege.  Holding: SC upheld the concept of executive privilege but held that the privilege was a qualified one, not absolute. In this case the privilege was overcome by the needs of the pending criminal investigation. Held that when the claim of privilege was a general one and not related to a need to protect “military, diplomatic, or sensitive national security secrets”, then it was merely a qualified privilege. ii. Clinton v. Jones (1997)  Holding: There is no immunity, not even qualified, for acts done by the president completely unrelated to the carrying out of his job. Amanda’s and Julie’s Con Law Outline -9-  Rationale for immunity: immunity serves the public interest in enabling officials to perform their designated functions effectively without fear that a particular decision may give rise to personal liability. This does not apply to unofficial acts.  SC rejected claim that judiciary is burdening the president’s performance of his duties by subjecting him to trial and is therefore a violation of the separation of powers. SC said that this burden was no greater than other litigation burdens to which presidents had always been subjected. C. Legislative Authority – Has Congress overstepped its bounds relative to the executive branch? 1. Domestic Affairs  The legislative veto is a device that enables Congress to monitor actions by the executive branch, including administrative agencies. Typically such a legislative veto provision is included as part of a congressional statute delegating certain powers to federal agencies. After an agency takes a certain action, if Congress disagrees the veto provision in the original bill allows one or both houses to cancel that administrative action by means of a resolution. The resolution is not presented to the president and he may not veto it.  Summary of two cases- Congress must delegate all of its power, it cannot hold any back. Why? Formalist answer: The Con. does not work that way, cannot absorb the functions of other branches of gov’t. Functionalist answer: When delegate most but not all, accountability seems to flow to the pres. when in fact it is Congress who is accountable. When all power is delegated, accountability becomes clear. When don’t delegate all, violate the Presentment and Bicameral Regulations Clauses. i. INS v. Chadha (1983)  Facts: Art.I §8 gives Congress the right to establish rules of naturalization and by implication, immigration. To lighten Congress’ burden in this area, Congress delegated to the Atty. general the authority to suspend the deportation of aliens in certain situations. Congress reserved itself a legislative veto by resolution of either house over each decision of the Atty. general.  Holding: The SC held that a typical one-house legislative veto was uncon. because it violated the president’s veto power (Art.I §7 cl.2) and the bicameral structure of Congress (Art.I §§1&7).  Other Theories for holding it uncon.: 1)Was a judicial function. 2) Legislative veto was an executive act.  Dissent: If Congress had the power to delegate all of its power it should have the ability to hold some of it back. Also, the legislative veto was in the bill and the bill was presented to both houses and the president. ii. Bowser v. Synar (1986)  Facts: The Gramm-Rudman Act gave an active role to the Comptroller General in carrying out automatic cutback provisions. Congress also retained the right via the statute to remove the comptroller general. Amanda’s and Julie’s Con Law Outline - 10 -  Holding: Congress cannot reserve itself the power to remove an executive officer. The fact that he is removable by Congress makes him a member of the legislative branch and therefore cannot carry out executive functions. Uncon. because no presentment and no bicameral approval. Under Humphrey’s Executor limiting the president’s power to remove a member of the executive branch is acceptable. iii. Morrison v. Olson (1988)  Facts: Statute gave the Atty. General the power to appoint a special prosecutor and once the appointment was made the prosecutor was only removable by the Atty. General and only for good cause.  Holding: Consistent with Chadha and Bowser because Congress delegated all of its authority and retained no power. The SC held that neither the removal provisions nor the act taken as a whole so restricted the President’s powers as to violate the separation of powers principle. Congress may limit the president’s right to remove even a purely executive officer, as long as the removal restrictions are not of such a nature that they impede the president’s ability to perform him Constitutional duty.  Dissent: Scalia argued that the Act violated the separation of powers because it required that the president maintain complete control over the investigation and prosecutions of violations of law. 2. Foreign Affairs-War Powers Resolution III. CONGRESS’ POWERS IN A FEDERAL SYSTEM  Internal Limits of Congress: clause might define a specific subject matter, such that Congress would lack power (1) to do anything other than regulate (2) anything other than interstate and foreign commerce.  External Limits: clause might grant plenary power to Congress, by allowing it to do anything reasonably regarded as regulation of interstate or foreign commerce, but other provisions of the Constitution, such as the first amendment, might bar the exercise of a power concededly granted  note: external limits are more clear and thus more easily enforced than internal limits A. The Classical View of the Commerce Clause 1. Federalism deals with the vertical issues of power between Congress and the States. This addresses three problems: (a) Does Congress have exclusive power? (b) Do the States have exclusive power? (c) Do they have concurrent power? 2. THE COMMERCE CLAUSE – (Art.I §8 cl.3) “Congress has the power to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” 3. Gibbons v. Ogden (1824) Amanda’s and Julie’s Con Law Outline - 11 - (a) Facts: Ogden acquired by a grant from the NY legislature monopoly rights to operate steamboats btw. NY and NJ. Gibbons started operating a service on the same waterway in violation of Ogden’s monopoly (G’s boats were licensed under a federal statute). (b) Holding: Injunction against Gibbons invalid on the ground that it was based upon a monopoly that conflicted with a valid federal statute and thus violated the Supremacy Clause (Art.VI, cl.2). (c) Broad view of the Commerce Power because SC concluded that Congress could legislate with respect to “all” commerce which concerns more states than one. Commerce includes not only buying and selling but all commercial intercourse (navigation in this case). (d) This Congressional power included intrastate activities as long as the activity had some commercial connection with another state. (e) The state has no power under the commerce clause. The Tenth Amendment is no bar to Congress’ power to regulate interstate commerce. No area of interstate commerce is reserved for state control-it is the exclusive domain of Congress. Thus, when Congress legislates in this area, states are forbidden from acting contrary to that. B. The Commerce Clause Power During and After the New Deal  The second major expansion of CC power may be termed the “cumulative effect theory.” Congress may regulate not only acts which taken alone would have a substantial economic effect in interstate commerce, but also an entire class of acts, if the class has a substantial economic effect, even though one act within it may have virtually no impact at all.  Modern view: Court now gives extreme deference to Congress, and SC will make two inquiries-> (1) Commerce affected – is there any rational basis supporting congressional finding that a regulated activity affects commerce AND (2) Means – will ask whether the means selected by Congress is reasonably adapted to the end sought to be achieved. 1. Wickard v. Filburn (1942) (a) Facts: The Agricultural Adjustment Act of 1938 permitted the sec. of agriculture to set quotas for the raising of wheat on every farm in the country. The Act allowed not only the setting of quotas on wheat sold interstate and intrastate but also quotas on wheat consumed on the farm it was raised. Filburn challenged the government’s right to set the quotas because his own consumption of his wheat was a purely local activity. (b) Holding: Statute was upheld for two reasons. i. Consumption of wheat has a market effect because the more wheat that is consumed on the farm, the less wheat that is bought in commerce from other farmers. ii. Although the ’s effect on the market may be trivial, but a big problemo when everyone does it!!! Protection of the interstate commercial trade in wheat clearly falls within the commerce power. Regulation of homegrown wheat is reasonably related to protecting commerce. Amanda’s and Julie’s Con Law Outline - 12 - 2. Heart of Atlanta Motel v. US (1964) (a) The federal commerce power can reach civil rights legislation. It does this by covering any establishment which serves interstate travelers or which buys food, a substantial portion of which has moved in interstate commerce. (b) Facts: Hotel near expressway refused to rent rooms to blacks and serviced mostly interstate travelers and solicited business in the national media. (c) Holding: SC held that the motel could constitutionally be reached by the Civil Rights Act under the Commerce Clause. “The power of Congress to promote interstate commerce also includes the power to regulate the local incidents thereof, including local activities in both the states of origin and destination which might have a substantial and harmful effect upon that commerce.” (d) Ollie’s Barbeque (aka Katzenback v. McClung): local restaurant bought 46% of its food from a supplier who had bought it from out of state. Wickard rationale. C. Modern Limits – US v. Lopez (1995) 1. First time in 60 years that the SC limited Congress’ Commerce power. 2. Facts: Congress made it a federal offense under the Gun-free School Zones Act of 1990 “for any individual to knowingly possess a firearm at a place the individual knows, or has reasonable belief, to be a school zone.”  was caught and arrested in violation of the statute. 3. Holding: Since Act neither regulated a commercial activity nor had any connection to interstate commerce, it was ruled unconstitutional. It was not enough that the activity merely affected interstate commerce. The activity being regulated must “substantially affect interstate commerce.” 4. Three broad categories of activities that Congress can regulate even if the threat that they are trying to curb originates from intrastate commerce: (a) the use of the channels of interstate commerce (b) instrumentalities (person or things) (c) activities 5. The Significance of Lopez (a) Substantial effect: the activity must have more than an incidental effect on interstate commerce to be regulated. (b) Commercial transactions: where the transaction being regulated is itself a clearly commercial or economic one, the court will continue to allow Congress to regulate. (c) Jurisdictional element: Congress must have drafted the statute in a way that create a jurisdictional nexus between the activity and commerce. (d) Slippery Slope (police power argument): if this regulation was allowed then Congress would have unlimited power (e) State Area: federal government would be intruding on areas traditionally left up to the states such as education, crime D. Other Congressional Powers 1. Spending Power – South Dakota v. Dole (1987) Amanda’s and Julie’s Con Law Outline - 13 -  2. 3. 4. 5. Spending power clause - “to lay and collect taxes...to pay the debts and provide for the common defense and general Welfare of the US…” (Art.I §8) (a) Facts: Congress withheld federal highway funds from states that permitted individuals under 21 to purchase or possess any alcoholic beverage. SD challenged statute on the grounds that it interferes with its own powers under the 10th & 21st Amendments. (b) Congress may regulate indirectly by using its spending power and withholding funds until a state complies. Limitations on this power: i. must be in pursuit of the general welfare ii. condition must not be ambiguous-state must exercise its choice knowingly iii. conditions must be related to the federal interest in the project iv. must not be an independent constitutional bar Treaty Power – Places power of sovereignty in both executive and legislative branches especially where Congress enacts domestic legislation to enforce a treaty. Limited to core federal issues, ie. diplomacy, war, foreign relations. War Power – allows Congress to legislate: (a) may overcome prohibitions and restrictions within the Con. such as suspending habeas corpus, etc. (9th Amendment) (b) for provision of material and soldiers Power to tax – Congress has the first bite at income, states must work around federal tax system. The Power to Enforce Reconstruction Amendments (a) Katzenbach v. Morgan (1966) i. Facts: Congress passed the 1965 Voting Rights Act which provided that no one who has successfully completed 6th grade in Puerto Rico may be denied the right to vote because of inability to read or write English. A group of voters in NY brought suit, challenging the constitutionality of the Act on the basis that the Act infringed upon NY’s right to impose an English literacy test for voting. ii. Holding: Congress could prohibit states with a history of voting rights violations from applying literacy tests. SC found that the NY statute was in violation of the 14th Amendment Equal Protection Clause and the Voting Rights Act was a valid enactment to secure “non-discriminatory treatment by government” in voting. iii. Congress was allowed to expand individual rights under the Equal Protection Clause (14th Amend.) as long as they were acting to broaden §§1-5, but cannot go the other way (ONE-WAY RATCHET). iv. The SC did not expressly grant Congress the power to define the substantive scope of the Equal Protection Clause. Looked at Congress’ ability in making factual determinations, not its ability to determine the constitutionality of those same determinations. (b) City of Boerne v. Flores (1997) i. Facts: Congress passed RFRA, relying on its §5 of the 14th Amendment power, which required local government not to pass a criminal law if it Amanda’s and Julie’s Con Law Outline - 14 - substantially interfered with someone’s right to freedom of religion. City wouldn’t give Flores permit to expand his Church to fit more people. ii. Holding: SC held that RFRA was unconstitutional because Congress has been given the power to enforce not the power to determine what constituted a constitutional violation. Congress did not have the power to define substantive aspects of the 14th Amendment, only to pass legislation to remedy violations of the 14th Amendment. iii. Need proportionality between federal legislation and the need for federal legislation. RFRA was disproportional because too broad. iv. This case places a lot more authority in SC hands and less to Congress. Counteracts Katzenbach’s one-way ratchet by saying that it can’t expand. E. Congressional Regulation of the States – 10th Amendment as Limit on Congress’ Power 1. Garcia v. SAMTA (1985) (a) The issue was whether the minimum wage and overtime provisions of the federal Fair Labor Standards Act should be applied to employees of a municipally owned and operated mass transit system. What is a traditional state function and are these traditional functions exempt? (b) The significance is that it is a state being regulated has virtually no practical significance – if the regulation would be valid as applied to a private party, it is also valid as applied to the state. No violation of the 10th Amendment. 2. New York v. US (1992) (a) Congress may not: 1) compel a state to enact or enforce a particular law or type of law or 2) compel state or local officials to perform federally specified administrative tasks. (b) Facts: Congress attempted to force each state to make its own arrangements for disposing of radioactive waste. The take title incentive provided that any state that didn’t arrange for waste disposal would be required to take title of it and would be liable for damages incurred in connection with disposal of the waste. (c) Holding: SC found that take title provision violated the 10th Amendment because Congress may not commandeer the legislative process of the states by directly compelling them to enact and enforce a regulatory program. The other two incentives were Con. because they were a valid exercise of Congress’ spending power. 3. Garcia is general legislation (does not specifically regulate states, just labor regulations). New York is state specific legislation. Distinction is when states are singled out as entities the sovereignty issue is important. Where Congress passes a generally applicable law, the 10th Amendment does not entitle a states own operation to an exemption merely because it is a state that is being regulated along with all the other private entities. Amanda’s and Julie’s Con Law Outline - 15 - F. Eleventh Amendment Limit on Congress’ Power – Seminole Tribe of Florida v. Florida (1996)  “The judicial power of the US 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.” (11th Amendment)  Under Hans v. Louisiana, a citizen of a state cannot sue his own state  11th Amendment applies to federal question as well as diversity suit 1. Facts: Congress passed the Indian Regulatory Gaming Act to govern Indian gambling. This statute required that the state must negotiate in good faith with the Indians regarding gambling and that the Tribe may sue the state in federal court if the state refused to negotiate. 2. Holding: The IRGA violated the 11th Amendment, stating that “even when the Con. vests in Congress complete law-making authority over a particular area, the 11th Amendment restricts the judicial power under Art.III and Art.I cannot be used to circumvent the Con. limits placed on federal jurisdiction.” Art.I gives Congress the full authority to regulate commerce with Indian tribes but it cannot allow a tribe to sue a state in federal court. 3. Two-Step Test: For Congress to pass legislation subjecting a state to suit by individuals: (a) Congress’ act must be explicitly clear that this abrogation of a state’s 11th Amendment rights was in fact their intention and (b) Congress must have the power to act under the Con. 4. Could possibly use §5 of the 14th Amendment to circumvent the restriction placed on Art.III by the 11th Amendment. IV. JUDICIAL PROTECTION OF THE MARKET – THE “DORMANT” COMMERCE CLAUSE  These cases involve situations in which Congress has not exercised legislative power pursuant to the Commerce Clause. Rather, the SC is considering whether to invalidate state regulations on the theory that what the state has done is inconsistent with the Con. framework in which Congress was given the power to regulate interstate commerce.  Usually these cases have a political & economic component requiring an investigation of whether the state law has an adverse effect on interstate commerce, or in political cases, whether the citizens of a state are trying to impose burdens on those outside of the state.  Congress can pass legislation to change the law if they disagree with the SC holding.  The mere existence of the federal commerce power restricts the states from discriminating against, or unduly burdening, interstate commerce. A. Origins – Willson v. Black Bird Creek Marsh Co. (1829) Amanda’s and Julie’s Con Law Outline - 16 - 1. Facts: DE authorized construction of a dam that blocked the navigation of a creek. Owners of a federally licensed ship broke the dam in order to pass the creek and were sued by the owners of the dam. 2. Holding: DE action was not “repugnant to the power to regulate commerce in its dormant state” and did not conflict with an act of Congress. (a) SC said DE was protecting health and property value, not trying to regulate interstate commerce. Court gave more leeway than it would have if the purpose were only commercial (Gibbons). (b) DE action was not discriminatory against interstate commerce; both vessels traveling in intrastate and interstate activity were barred from navigating the creek. 3. Must balance the police power of a state against federal commerce power. Balancing Test Rationale: importance of interstate activity? Whether it is discriminatory? What are the local purposes? B. Protection Against Discrimination  Modern test: 1. In order to avoid violating the dormant commerce clause, a state regulation which affects interstate commerce must satisfy each of the following: a. Regulation must pursue a legitimate state end; AND b. Regulation must be rationally related to that legitimate state end; AND c. Regulatory burden imposed by the state on interstate commerce must be out-weighed by the state’s interest in enforcing regulation 2. Application of test: a. Legitimate state end distinguished between economic benefits (not legitimate) and health, safety, and welfare (legitimate). b. Rational relation means that only some relation is required; it does not have to be the best means to an end; courts typically defer to legislative finding in this regard. c. Balancing test in (c) is skewed towards finding of constitutionality if (a) and (b) are met; however, if there is a less burdensome means to meet the state end, the court may find the national interest outweighs the state interest 3. Courts especially frown on intentional discrimination (facially discriminatory) against out-of-staters; likely to strike down if their intent is to discriminate or if it has a discriminatory effect 4. Key exception: state acting as market participant 1. City of Philadelphia v. New Jersey (1978) (a) Facts: NJ prohibited the importation of solid waste into the state. (b) Holding: SC struck down the NJ act. i. Law was basically a discriminatory protectionist measure, rather than a way of resolving legitimate local concerns. Attempt to isolate NJ from a problem common to many by erecting a barrier against the movement of interstate trade. Amanda’s and Julie’s Con Law Outline - 17 - ii. Stands for the proposition that a clearly facially discriminatory piece of legislation will be unconstitutional unless the state can show an extremely strong countervailing interest.(per se invalid) iii. State may no longer maintain or improve its environment at the expense of its neighbors’ environmental or economic interests, unless no reasonable alternatives are available. 2. C & A Carbone, Inc v. Town of Clarkstown (1994) (a) Facts: Town enacted a flow control ordinance in which all of the trash generated in the town was to go to a particular waste transfer station. Carbone owned a recycling center in the town who is forced to use the new waste transfer station and does not wish to because he must pay higher than market rates for its use (and must pass on the higher cost to his out-of-state customers). (b) Holding: Ordinance discriminated against interstate commerce because it deprived out-of-staters of the opportunity to the processing, and deprived those in town of the opportunity to take their garbage elsewhere. 3. The Market Participant Exception – South-Central Timber Development v. Wunnicke (1984)  A state becomes a market participant when it spends money to run an enterprise or subsidize private business.  The market participant doctrine takes state activity outside area regulated by the commerce clause for four reasons: 1. It is a voluntary action, not a power. 2. Congress only has the power to regulate, and when a state participates as a market participant, it is not regulating. 3. Collective action: the political unit should be able to tax or benefit its people. 4. Federalism issues: Hughes started the MP doctrine by giving power to the states.  As a market participant, a state still does not have complete immunity. When a state affects parties beyond those with whom it is contracting, the SC may conclude that the regulatory consequences of the state’s actions outweigh its market participatory consequences. In that case, traditional dormant commerce clause analysis must be applied.  A state body may monopolize an activity for itself, but may not delegate monopoly to a private business and still keep the benefits of the doctrine. (a) Facts: Alaska sold timber from state owned lands at below market prices, but required that the purchaser process the timber within Alaska. (b) Holding: Market participant doctrine did not apply and it violated the commerce clause. i. Rule: The market participant exception will only apply where the effects of the state’s terms are limited to the particular market in which the state is a participant, not to a broader one. Amanda’s and Julie’s Con Law Outline - 18 - ii. Restraints on foreign commerce, natural resources, downstream regulation are less likely to be considered under the market participant doctrine. iii. Once timber is in private hands, the state can no longer regulate who touches it. State can refuse to sell to anyone else or use subsidies, but may not require anything to be done after it has sold the resource. iv. A state can avoid commerce clause scrutiny by being a market participant or directly appropriating. LINE IS FUZZY. (c) Market Participant v. Market Regulator 4. Privileges and Immunities – United Building & Const. Council v. Camden (1984)  A state may not use the market participant doctrine as a defense against violation of the Privileges and Immunities Clause (Art. IV). “The Citizens of each state shall be entitled to all the privileges and immunities of citizens in the several states.”  P&I Clause bars any type of state conduct, regulatory or otherwise, which discriminates against out-of-staters (people not corporations) on matters of fundamental concern (E.g. employment and interstate travel). (a) Facts: Camden passed a city ordinance stating that 40% of all workers on city funded construction projects must consist of city residents. (b) Holding: SC remanded the case for further findings on whether Camden violated P&I Clause. Two-part Test to determine whether the discrimination of non-residents is a fundamental right and therefore unacceptable: i. Must balance the type of discrimination versus the type of evil that the state is trying to combat (E.g. not a violation of P&I to require police to live in the town they work). 5. Differences between Dormant Commerce Clause and Privileges & Immunities Clause 1. DCC = discrimination and effects on interstate commerce (broad) 2. Products 3. Implied 4. Reversible 1. P&I = fundamental rights 2. People 3. Direct Restraint 4. Irreversible C. Facially Neutral Statutes with Effects on Interstate Commerce  A statute that is evenhanded on its face may nevertheless turn out to be disproportionately burdensome on some or all out-of-state business. When this impact is accidental, and does not derive from the fact that the burdened firms are out-of-staters, the court will normally uphold the statute. Not likely to be upheld if protectionist or does not advance a legitimate safety interest (Kassel). Amanda’s and Julie’s Con Law Outline - 19 - 1. Exxon Corporation v. Maryland (1978) (a) Facts: Maryland passed a law prohibiting oil producers or refiners from operating retail gas stations in Maryland. No gas is produced or refined in MD, therefore the rule affected out-of-state companies only. The majority of retailers left unharmed were in-state business people. (b) Holding: Statute did not discriminate against interstate commerce. Not all out-of-state companies were affected. Interstate commerce was not burdened by the statute because the flow of goods in the interstate market remained the same. (c) Dismissed the notion that because the market for gasoline is nationwide it may not be regulated by a state. The DCC may preempt an entire field from state regulation only when a lack of national uniformity would impede the flow of interstate goods. (d) The Commerce Clause “protects the interstate market, not particular interstate firms, from prohibitive or burdensome regulation.” 2. Kassel v. Consolidated Freightways Corp. (1981)  Transportation regulations done in the name of public safety are not likely to be upheld if motivated by discriminatory or protectionist impulses. (a) Facts: Iowa passed a statute limiting length of trucks on highway. (b) Holding: SC refused to uphold Iowa statute. Must weigh state regulatory concern in light of extent of burden imposed on the course of interstate commerce. Iowa imposed this burden without any significant countervailing safety interest. Court unwilling to uphold statute that seems motivated by discriminatory or protectionist impulses. (c) Shanor is skeptical about striking down some ordinances, but not about others that are shown through litigation to affect interstate commerce. These areas are better suited for the legislative and not the judicial branch. D. Preemption – Gade v. National Solid Wastes Mgmt. Assoc. (1992)  Express: state says it is superseding state statutes (problem is trying to interpret ambiguous statutes)  Conflict: if the congressional statute and the state action are in actual conflict, the state regulation is automatically invalid (if it is impossible to satisfy both)  Federal occupation of the field: if Congress is found to have made a decision to occupy the entire field, the Congress can pre-empt states even if there is no actual conflict  Congressional Consent: Congress may consent to state action that would otherwise violate the Commerce Clause, including discrimination against the out-of-staters (there can never be consent to violating the Equal Protection Clause or Due Process Clause)  Preemption rules are derived from the Supremacy Clause. Amanda’s and Julie’s Con Law Outline - 20 - 1. Facts: Congress passed the Occupational Safety Act. Illinois then required workers to be qualified to work with hazardous waste, imposing stricter standards than the OSA. 2. Holding: The OSA regulations pre-empt the Illinois safety regulations. If Congress preempts an area and leaves a route for state change, the state must take that route or follow the congressional legislation. 3. Preemption can be used when a conflict arises with a state law to fill in those gaps. Congressional intent is the filler. V. PRIVILEGES AND IMMUNITIES AND DUE PROCESS A. Privileges and Immunities 1. 14th Amendment – “No state shall make or enforce any law which shall abridge the P&I of citizens of the US.” 2. 14th Amendment bars a state from abridging any citizens rights of “national” citizenship whereas the P&I clause in Article IV protects the rights of state citizenship, but only when a non-resident of the state is not treated the same as a resident with respect to an important state right. 3. Passage of the 14th Amendment after the Civil War was created to: (a) fundamentally realigned the power of the federal government relative to the power of the states AND (b) created judicially enforceable rights for citizens against states 4. Slaughter-House Cases (1872) (a) Facts: LA passed a law giving a monopoly to New Orleans area slaughterhouses to a particular company. Butchers that were not included claimed that the statute deprived them of the opportunity to practice their trade and thereby violated the 14th Amendment. (b) Narrow view of the 14th Amendment P&I Clause – made it practically null and void. (c) Butchers could not have sued under the P&I Clause of Article IV because it only applies to non-residents against a state. (d) Fundamental civil rights, including the right to practice one’s trade, were the domain of the states not federal. If the state law did not protect then party is out of luck. Protection on the high seas and access to seaports are national rights. (e) However, the rights that could have been given through the P&I Clause have been given through the Due Process and Equal Protection Clauses. B. Procedural Due Process – derives from the 5th Amendment (federal) and 14th Amendment (states)  Government must act with procedural correctness when affecting “life, liberty, and property” (need notice and opportunity to be heard). If none of these interests are implicated, then the government can act with as much unfairness as it wishes. Amanda’s and Julie’s Con Law Outline - 21 -  Right to hearing only if you have an entitlement: 1. property seems to encompass benefits you are receiving, but not benefits for which you would like to qualify 2. government had total discretion in creating a property right, but once it is created, must follow the Con. procedure before it can be taken away  Two questions: 1. Whether claimant has a right to life, liberty, and property? 2. If one of the three affected, what process is due to the claimant (use Mathews test)? 1. Cleveland Board of Education v. Loudermill (1985) (a) Facts:  lied on job app. and became a “classified civil servant” who could only be terminated for cause. Ohio statute provided admin. review after termination, but provided no procedure before termination.  was fired before responded to charges. (b) If a legislature creates a life, liberty, or property interest, it cannot define the procedures in which that right may be denied. The procedure is subject to Con. standards of due process. (c) Holding:  was denied due process when deprived of his property interest with “some kind of hearing.” This case distinguished from Goldberg because it involved a welfare recipient and thus required a “full evidentiary hearing.” SC uses Mathews balancing test and determines that additional procedures are required though because it is an administrative setting, there is a lower standard of procedures required. (d) Two underlying views of why due process is not controlled by state law: i. need to have a minimum standard of fairness (more accurate results) ii. dignitary interest in the termination of benefits, jobs, etc. is so strong that state interests are overridden to protect individuals 2. Mathews v. Eldridge (1976) (a) Can disability benefits be terminated without a prior evidentiary hearing? Yes (b) Mathews balancing test: (not balancing test of actual costs and benefits but of the procedures connected with termination of the benefit conferred by regulations) i. Private interest that will be affected by official action. ii. Risk of erroneous deprivation of such interest through the procedures used, and value of additional or substantive safeguards. iii. Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. (c) Shanor’s problems: Amanda’s and Julie’s Con Law Outline - 22 - i. Disagreement as to whether you look at the deprivation to this claimant or the class as a whole. ii. How can one weigh individual’s interest versus government’s interest? Inherently immeasurable. C. Substantive Due Process  14th Amendment has been interpreted to relate to procedure and as a limitation upon the substantive power of state legislatures to regulate various areas of economic and non-economic rights.  If a state regulation is found to be an undue interference with liberty (person’s freedom of contract or right to privacy), the regulation is stricken as a taking of liberty without due process of law.  Equal protection component of the 14th amend. has been reverse incorporated into the Due Process Clause of the 5th amend.  Fundamental rights definition: 1. “implicit in the concept of ordered liberty” 2. “so rooted in the traditions and conscience of our people as to be ranked fundamental” 3. If the right is not fundamental all needed is a rational relation between the means chosen and the objective (virtually no scrutiny, usually gives deference to the legislature). 4. If a fundamental right, then strict scrutiny must be applied: a. Compelling state interest b. Relation between the objective and the means must be narrowly tailored. 1. Incorporation (a) Selective incorporation (fundamental rights view): i. Idea that liberty (as used in the 14th amendment) is to be interpreted by judges without regard to the Bill of Rights. Only those aspects of liberty that are “fundamental” are protected. ii. Most proponents of this view contend not only that the Bill of Rights is not automatically incorporated, but also it does not set the outside limits on the 14th amendment concept of liberty either. (b) Total incorporation: i. Idea that all of the guarantees specified in the Bill of Rights are made applicable to the state by the 14th amendment. ii. Belief that Bill of Rights sets the outer limits on the 14th amendment concept of liberty. (c) Total incorporation plus: Amanda’s and Julie’s Con Law Outline - 23 - i. Idea that all of the guarantees of the Bill of Rights are made applicable to the state by the 14th amendment, but other non-Bill of Rights guarantees should be part of that amendment. (d) Modern approach: i. selective incorp./fundamental rights approach has always held a majority ii. virtually entire BOR has been incorporated except:  5th amend. prohibition of criminal trial without grand jury indictment  7th amend. right to jury trial in civil cases  8th amend. prohibition on excessive fines and bail has only been implicit. 2. Economics (a) Lochner v. NY (1905) i. Facts: NY passed law limiting number of hours a baker could work, based on the police power of general welfare. ii. Holding: SC held that the law interfered with “liberty of contract” and thus a violation of due process. iii. SC struck down the NY statute based on: 1. suspect motives of the legislature (regulating labor conditions and not protecting the health and safety of workers)  Disparate impact resulting from pretextual purposes asserted by the legislature 2. no general welfare protection b/c baking is not dangerous (so as to distinguish from case where states are allowed to limit miners’ hours) 3. economic theories (laissez-faire economy and freedom to contract) 4. slippery slope argument (everyone will become a protected class) iv. Provides strict test: 1. It required a very close fit between the statute and its objectives. There had to be a “real and substantive” relationship between the statute and the goals for which it was to serve. 2. Only certain legislative objectives were acceptable. Regulations of health and safety were permissible, but readjustments of economic power or resources were not. (b) West Coast Hotel Co. v. Parrish (1937) i. Facts: Washington passed minimum wage law for women. ii. Holding: The statute was upheld. The law conceded that the law interfered with the liberty of contract. The Ct. found that the Amanda’s and Julie’s Con Law Outline - 24 - state’s interest in redressing the inferior bargaining power of women with the marketplace outweighed the freedom of contract. iii. The SC overruled Atkins, which held that a state establishing a min. wage was a violation of the freedom of contract. iv. Significance: In a reversal of the principles laid out in Lochner, the court held that a readjustment of economic bargaining power in order to enable workers to obtain a living wage was a legitimate limitation on the freedom of contract. 3. Privacy – Griswold v. Connecticut (1965) (a) Facts: Connecticut statute forbade the use of contraceptives and the aid of others in their use of contraceptives. ’s were directors of Planned Parenthood. (b) Holding: Struck down statute because the right of married people to use contraceptives fell within the penumbra of privacy rights. (c) Penumbra/zone theory = rights implicit in the purposes of the amendments. Derived from Amendments 1,3,4,5, and possibly 9. Skinner v. Oklahoma established the right to privacy as a fundamental right even though not explicitly established in the Constitution. (d) Eisenstadt v. Baird (1972) extends privacy right to unmarried individuals through the Equal Protection Clause. (e) Negative privacy theory = the right to be left alone. Positive privacy theory = law’s role in forming “the totality of a person’s life”, “It’s yo! thing, do what you want to do.” (f) Justice Harlan (concurring): This is where privacy rights stands today. 14th Amendment due process clause protects those basic values “implicit in the concept of ordered liberty”. Privacy is a liberty interest protected by the 14th Am. which cannot be infringed upon by the states without a compelling interest. States should not be allowed to use the criminal law to regulate the intimate details of the marital relations. Rejects idea that other types of sexual relations are protected by this notion of privacy right. 4. Abortion (a) Roe v. Wade (1973) i. A woman’s right to privacy is a fundamental right under the 14th Amendment. ii. Trimester Framework: 1st trimester = absolute right, no govt regulation; 2nd trimester = state can do some regulation to protect maternal health; 3rd trimester = state can prohibit except to save the mother’s life, compelling state interest when fetus is viable. iii. Abandons Griswold penumbra theory because it is more of a bodily integrity and decisional autonomy issue than privacy issue. (b) Planned Parenthood v. Casey (1992) i. Reaffirms Roe’s central holding. Amanda’s and Julie’s Con Law Outline - 25 - ii. Abortion status no longer a fundamental right.  Even though not fundamental, a woman’s right to choose still receives special constitutional protection. iii. Trimester framework overturned.  Pre-viability = States may regulate abortion so long as they don’t place an undue burden or a substantial obstacle to the woman’s right to choose. This period will continue to become shorter as technology increases. Expands states rights as viability happens earlier in a pregnancy (less right to choose for women).  Viability to birth = States interest in life of fetus can override the woman’s right to choose an abortion. However, state cannot prohibit a woman from obtaining an abortion if it is necessary to protect the health or life of the mother. iv. Use undue burden test, not strict scrutiny anymore because not a fundamental right. Look at purpose and effect of law and whether it presents a substantial interference (use factors such as time) with a woman’s liberty interest. v. Specifics of Casey: In Casey, it was an undue burden to require spousal notification. Not an undue burden to require parental or judge consent for minors, informed consent, 24 hour waiting period, distribution of literature, and public information about abortion clinics. 5. Family (a) Moore v. City of East Cleveland (1977) i. Holding: Zoning regulations that prevent family members (even extended ones) from living together are invalid. This right does not extend to unrelated people (Belle Terre). ii. Right of family members to live together was a liberty interest. iii. State interests were legitimate but only marginally advanced by the ordinance (not narrowly tailored). (b) Zablocki v. Redhail (1978) i. Statute required person who pays child support to meet two requirements before being permitted to remarry. ii. Holding: Unconstitutional because a violation of the fundamental right to marry. Used strict scrutiny. iii. Mostly determined by equal protection. State interest was legitimate but unnecessarily interfered with the right to marry (not narrowly tailored). 6. Non-Traditional Liberty Interests (a) Sexual Orientation – Bowers v. Hardwick (1986) i. Facts: GA statute prohibits sodomy. Statute did not distinguish between heterosexual and homosexual behavior. Amanda’s and Julie’s Con Law Outline - 26 - ii. Holding: The majority asserted that the court should regard as fundamental only those liberties that are either “implicit in the concept of ordered liberty” or deeply rooted in this Nation’s history and tradition. Homosexual activity was not within either of these categories. iii. Court used a rational basis test. Legislation must be rationally related to the interest and the means employed. Burden on the challenger. iv. Dissent: Could have argued the right to be left alone, but majority instead decided to argue (and deny) the fundamental right of sodomy. v. Many view this case as stopping the expansion of liberty interests under substantive due process. There should be “great resistance to expand the substantive reach of the 5th and 14th Amendments, particularly if it requires redefining the category of rights deemed to be fundamental.” (b) The Right to Die  Assisted suicide = Making suicide available to the patient.  Euthanasia = Mercy killing  Several propositions: 1. A competent adult has a 14th Amendment liberty interest in not being forced to undergo unwanted medical procedures, including artificial life-sustaining procedures. 2. The state has an important counter-veilling interest in preserving life. At the very least, this interest entitles the state to require, before it pulls the plug, “clear and convincing evidence” that a now-incompetent patient would have voluntarily decided to decline the life sustaining procedures. 3. Terminally ill patients do not have a general liberty interest in committing suicide. Nor do they have the right to recruit a 3rd person to help them. i. Cruzan v. Director, Missouri Dept. of Health (1990)  There is a liberty interest in refusing unwanted medical procedures if competent. If not competent, need clear and convincing evidence, such as a living will. ii. Washington v. Gluckburg (1997)  No fundamental right to commit suicide.  Used rational basis test and determined that there was a rational relation between the statute and the state’s interests. Approach for Substantive Due Process (SDP): 1. Is there a liberty, property, or life interest being infringed upon? Amanda’s and Julie’s Con Law Outline - 27 - 2. If yes, is it a fundamental right based upon the tradition of our nation’s history or implicit in the concept of ordered liberty? (Bowers) 3. If yes, has there been an undue burden placed upon it? How to distinguish between SDP and Equal Protection: SDP: Where the law limits liberty of all persons to engage in some activity. Equal Protection: Where the law treats certain classes differently from others. When is a liberty interest become fundamental? 1. Analysis of the history and traditions of the US (a) Harlan’s traditional analysis is based on natural law (broad view) (see concurrence in Griswold) (b) Scalia has a narrow view; looks to see when an amendment was ratified and looks for empirical evidence via positive law. (14th Amendment ratified in 1868- what laws were on the books then? If not protected then, it is not a fundamental liberty interest.) (c) Bowers held that homosexual sodomy is not a liberty interest rooted in the history and tradition of the US. Lochner held the right to contract is a fundamental liberty right rooted in the history and tradition of the country. VI. EQUAL PROTECTION  14th Amendment limits state action; 5th Amendment limits federal action. Both use same test to determine if constitutional.  Two components of equal protection: 1. Treat similarly situated individuals equally. 2. Treat those who are not similarly situated differently.  Consider carefully when legislation: 1. Restricts ordinary political processes. 2. Targets particular minorities. 3. Curtails processes that protect minorities. A. Three Tiers of Equal Protection Analysis 1. Strict Scrutiny: When dealing with a “suspect classification” such as race or fundamental right, the court applies strict scrutiny. (a) Must prove a “compelling governmental interest” about which it has made the classification and that it has “narrowly tailored” its classification to fulfill that interest. (b) Burden on the government. (c) Footnote 4 of US v. Carolene Products established theory of heightened (strict) scrutiny. 2. Intermediate/Middle Tier Scrutiny: Court applies this when dealing with gender classification. (a) The government objective must be important and the means must be substantially related to that objective. Amanda’s and Julie’s Con Law Outline - 28 - (b) Burden on the government. 3. Rational Basis: Applied to all other governmental classification. Requires only that the classification be “rationally related” to some “legitimate governmental interest.” Burden on the challenger.  If a legislative classification is classified as suspect, strict scrutiny is likely to be “fatal in fact” to the legislation. Conversely, if a legislative classification is classified as nonsuspect, rational basis scrutiny will validate all but the most irrational legislation.  For strict or middle tier scrutiny to be applied, there must be intent on the part of the government to discriminate. A discriminatory effect or disparate impact alone is not enough. Intent may be shown by: 1. A law that is discriminatory on its face or 2. A discriminatory application of a facially neutral law or 3. A discriminatory motive behind the law. B. Race and the Equal Protection Clause 1. Separate but Unequal? (a) Plessy v. Ferguson (1896) i. Facts: LA law called for separate but equal accommodations for white and black RR passengers. ii. Holding: Separate but equal treatment does not violate the EPC.  Separate does not mean unequal.  Social and economic equality was not a goal of the EPC, only political/civil equality. iii. Dissent: Although it appeared facially, neutral, it was meant to exclude blacks. The law interfered with the personal freedom of blacks. “The Constitution is color-blind.”  Harlan’s famous dissent is not only a call for racial equality but for a Constitution not subject to change with judicial and societal whims. iv. Congress could have used the CC to regulate transportation facilities. (did not do so until 1964) (b) Brown v. Board of Education (1954) i. Facts: Challenge to the separate but equal doctrine as applied to public education. ii. Holding: Court rejects the separate but equal doctrine, at least in so far as public education is concerned. iii. Even if separate schools were equal in tangible factors, intangible factors necessarily prevented children in all black schools from receiving equal educational opportunities. Separate facilities are inherently unequal. iv. Court based its decision on social science research, and not only the legislative history and the 14th Am. The Court focused on the feeling of inferiority that segregation created for black students. Amanda’s and Julie’s Con Law Outline - 29 - v. Sweatt v. Painer started the trend that separate facilities were not equal. UT law school was ordered to admit a black student. vi. Institutional reasons for overruling Plessey: Court could not police every facility to see if it was equal. The only way to police equality is to forbid separation. vii. Remediation: Desegregation had to be done with “all deliberate speed.” However, it was not until the Civil Rts. Am in 1964 that southern schools really desegregated. viii. Pre-Brown public education was semi-legal, semi-social segregation. In this case, court firmly planted desegregation in public education as a legal right. (c) Other related issues i. Desegregation vs. Integration  In response to the history of state enforced segregation, the court said it would apply a presumption against schools that are substantially disproportionate in their racial composition.  Once school officials have achieved full compliance there would be no need for intervention by the court. ii. De Facto vs. De Jure Segregation (see page 486)  De Jure segregation: segregation because of the laws (officially maintained segregation); has to be this for EP to looked under strict scrutiny.  De Facto segregation: segregation due to other factors, including demographics. Similar to disparate impact- incidental segregation. Non-intentional segregation.  Even though this won’t get you strict scrutiny, circumstantial evidence can be used to prove de jure discrimination. iii. Ending Judicial Oversight  Court can relinquish supervision and control of school districts in incremental stages before full compliance. Court can stop controlling integration if there is no way to totally integrate because of incidental demographics of the area. 2. Invidious Race Discrimination  Invidious is based on prejudice or tending to denigrate the disfavored class.  Three ways to show purposeful discrimination 1. The law discriminates on its face 2. The law, although neutral on its face, is administered in a discriminatory way (must be intentional) 3. The law, although neutral on its face and administered in a nondiscriminatory way, was enacted with a discriminatory purpose. The law’s legislative history, law’s disparate impact or other circumstantial evidence can show this. Amanda’s and Julie’s Con Law Outline - 30 - FACIAL DISCRIMINATION (a) Strauder v. Virginia (1879) i. Facts: State law provided that in order to be eligible as a juror, he must be white. ii. Holding: Law on its face is discriminatory. When a law is found to be discriminatory on its face, the court will not require that it be shown to have an actual discriminatory impact. iii. The mere risk of disparate impact was enough, given the facial discrimination. (b) Korematsu v. US (1944) i. Facts: Post-Pearl Harbor military order excluding all persons of Japanese ancestry from certain areas of the West Coast, and imprisoning them. Applied to citizens as well as non-citizens. ii. Holding: Court upheld the order, despite its suspectness. The court applied the strict scrutiny test because of it was facially discriminatory by race. However, the court held that the law passed the strict scrutiny test because of the compelling need to prevent espionage and sabotage. iii. If the Court had used the Strauder rationale, the case would have come out differently. It would have been invalid per se. iv. This was an over-inclusive law but it was fine. There was no practical and efficient way to distinguish the loyal from the disloyal. v. This was also under-inclusive because it did not put all subversives in jail. vi. This was the last case in which racial or ethnic classifications survived strict scrutiny. STATUTE WITH A DISCRIMINATORY PURPOSE (c) Loving v. Virginia (1967) i. Facts: VA statute prohibits marriage between whites and nonwhites. ii. Holding: Statute violates EPC. The statute contains a racial classification. It was not facially discriminatory, and was neutrally applied. However, it still had discriminatory intent and purpose. iii. It was a discriminatory purpose b/c the legislative history showed that the statute was enacted to preserve racial integrity of citizens. iv. The state had no compelling interest once strict scrutiny was applied. v. On SDP grounds, strict scrutiny would also apply because the right to marry is a fundamental right. Amanda’s and Julie’s Con Law Outline - 31 - FACIALLY NEUTRAL STATUTE WITH DISCRIMINATORY ADMINISTRATION VS. EFFECT (d) Washington v. Davis (1976) i. Facts: Suit brought by unsuccessful black applicants for positions as DC policemen. They had failed a written, which blacks failed 4x as much as whites. They claimed this differential impact made the hiring process violative of EP even though those who composed or selected the test had no intent to discriminate against blacks. ii. Holding: Racial discrimination only violates the EPC where is a product of discriminatory purpose. While a showing of disproportionate racial impact is a factor in ascertaining intent, it can never by itself be sufficient to prove discriminatory intent. (invidious) iii. Strict scrutiny does not apply because:  all races affected equally,  not about race (at least facially)  state interest (strong interest in competent policemen) 3. Affirmative Action  Non-invidious discrimination. Strict scrutiny should be applied to race-conscious affirmative action programs. Closes doors for others Affirmative Action (+) Opens doors Economic Effects Economic Effects Racism Backlash Remedy of Past Discrim. Stereotyping Extinguish Underclass Redistr. of Wealth Redistr. of Wealth Reduces Merit based Anti-Racism choices Promotes Diversity Affirmative Action (-) (a) City of Richmond v. J.A. Croson, Inc. (1989) i. Facts: Statute passed requiring prime contractors on construction contracts funded by the city to subcontract at least 30% of the dollar amount of the contract to one or more Minority Business Enterprises (had to be at least 51% owned by minorities to be an MBE). ii. Court applied strict instead of intermediate scrutiny because must apply strict scrutiny even when racial categorization is benign. O’Connor said “absent searching judicial inquiry into the justification of such race based measures there is simply no way of determining what classifications are benign or remedial and what classifications are in fact motivated by illegitimate notions of racial inferiority or racial politics.” Amanda’s and Julie’s Con Law Outline - 32 - iii. Court said that minority program failed strict scrutiny because the program was not narrowly tailored and not supported by sufficient evidence of previous discrimination. iv. Failed Compelling governmental interest (strict scrutiny-step 1):  Law can only remedy present (at the time of the legislation) effects of past discrimination.  State has burden of proof to show that the remedy is necessary to remedy the past discrimination and that the specific findings showed a need for the law. v. Failed Narrowly Tailored test (strict scrutiny – step 2):  Must be tailored to the area of discrimination.  Other race neutral alternatives? Must explore alternatives before adopting a race conscious program.  Remedy over inclusive? vi. Two different ways of looking at non-invidious racial discrimination cases:  Colorblind Constitution: Anti-affirmative action because shouldn’t make racial distinctions except for a darn good reason.  Anti-Subordination Principle: Affirmative action works against the subordination of discriminated classes so it is good.  No consensus as to which one is correct view of Supreme Court. vii. Court federalized the holding of Croson in Adarand Constructors v. Pena (1995). Held that racial classifications imposed by the federal government must be analyzed using strict scrutiny, overruling Metro Broadcasting v. FCC. Used reverse incorporation of the 14th Amendment into the 5th Amendment to do this. However, only partially overruled Fullilove on the rationale that Congress is subject to less strict scrutiny than regulatory agencies and state legislatures. (b) Hopwood v. State of Texas (5th Circuit - 1996) i. Facts: UT Law school admissions process. ii. Under Croson and Adarand rationale: When looking at affirmative action cases, race may not be used as a factor at all in Public University admissions unless the consideration of race is narrowly tailored to reverse present effects of past discrimination by the particular unit of the university now making admissions decision. iii. Interest in diversity is not compelling enough to discriminate on the basis of race. iv. The Bakke standard was intermediate scrutiny, but then Croson and Adarand changed affirmative action standard to strict scrutiny. Thus 5th circuit sought to apply strict scrutiny analysis because it most likely figured that the change in the composition of the Supreme Court would uphold this analysis. Amanda’s and Julie’s Con Law Outline - 33 - (c) Coalition for Economic Equity v. Wilson (9th Circuit - 1997) i. Facts: Prop. 209 required that the state abandon affirmative action. ii. The majority relied on Hunter v. Erickson in which the court held that when a state allocates governmental power non-neutrally, explicitly identifying and utilizing race in the decision making process, this places special undue burdens on racial minorities. C. Gender  Gender, alienage, and illegitimacy classifications must withstand intermediate scrutiny. The government objective must be important and the means must be substantially related to that objective.  Under intermediate scrutiny, the court can only look at the objectives that motivated the legislature to pass the particular legislation.  Intermediate scrutiny likely to be satisfied is there is no available alternative that would carry out the asserted objective as well or better, but without causing needless disadvantage to anyone.  Both invidious and benign gender discrimination are tested by intermediate scrutiny. 1. Craig v. Boren (1976) (a) Facts: Oklahoma statute prohibited the sale of 3.2% beer to males under 21 and females under 18. (b) Holding: Intermediate scrutiny established for gender classifications. Governmental interest in traffic safety was not substantially related to the gender-based differential. Court held it unconstitutional (c) Based its decision on Reed, which refused to label gender as a suspect classification and instead required that classifications based upon sex have a fair and substantial relation to the important governmental interest being promoted. (d) Physical (Biological) differences v. Stereotypical differences. Court uses a more lenient view when assessing a law about real differences. 2. Michael M. v. Sonoma County Superior Court (1981) (a) Facts: Statutory Rape case. Men, but not women, liable for sex with a partner under 18. (b) Holding: Used intermediate scrutiny but decided that the legislation was substantially related. Classifications and distinctions based upon sex which are not invidious in nature but merely reflect the reality of differences between men and women are not always unconstitutional. Gender based differential is substantially related to the state’s interest in preventing teenage pregnancy and protecting young women. 3. US v. Virginia (1996) (a) Facts: VMI all-male training school excluded women. Offered another school for women with a less vigorous program. Amanda’s and Julie’s Con Law Outline - 34 - (b) Court is especially likely to strike down a gender-based classification that seems to be based upon faulty generalizations or stereotypes about the differing abilities and interests of the two sexes. (c) Holding: Exclusion of women violated the equal protection clause and program offered did not redress the injury. Gender-based classifications cannot be based on stereotypes. (d) Program offered for women was not a good substitute because “must place the victims in the position they would have occupied in the absence of discrimination.” (e) Court now requires “exceedingly persuasive justification” for any gender- based classification and will review it with skeptical scrutiny (heightened standard of intermediate scrutiny). However, this justification for gender-based standard must “describe actual state purposes, not rationalizations for actions in fact differently grounded.” D. Rational Basis Review  Applies to all other governmental classification. Brian Cook’s suggestions include age, wealth, and sexual orientation (whatever floats your boat).  Requires only that the classification be “rationally related” to some “legitimate governmental interest.”  As long as there is one conceivable objective which is legitimate and rationally related to the means chosen, the possibility of another illegitimate objective will be ignored by the court.  Burden on the challenger to prove that relation is utterly irrational.  Probably only stricken if purely arbitrary.  Lowest level of review.  Lots of deference to the legislature. 1. NYC Transit Authority v. Beazer (1979) (a) Facts: NYCTA refuses to hire those who use methadone. (b) Holding: Upheld statute because it had a legitimate goal rationally related. Statute did not create bias towards a specific group of people. Methadone users are not a protected class because it is a voluntary class. It is not an immutable characteristic subject to prejudice and not historically discriminated against. (c) All laws make distinctions that may be over and underinclusive. Law does not need to fit perfectly with its stated purpose. Such overlap is not constitutionally significant. (d) The court says this statute is a permissible “policy choice” by the city which “does not circumscribe a class of persons characterized by some unpopular trait or affiliation.” 2. San Antonio Independent School District v. Rodriguez (1973) (a) Facts: Texas system of financing public schools relied mainly on local property taxes. Districts with higher property tax base spend more per pupil on education. Amanda’s and Julie’s Con Law Outline - 35 - (b) Holding: Poor are not a suspect class. Education is not a fundamental right. Therefore use rational basis test. Upheld statute because statute is rationally related. (c) Court gives great deference to legislatures in matter of public education. (d) Majority says fundamental rights = rights “explicitly or implicitly guaranteed by the Constitution” and upheld the three tiers approach. (e) Marshall (dissenting) = focus on “extent to which constitutionally protected rights are dependent on interests not mentioned in the Constitution” and suggests a “sliding scale” approach. (f) The Supreme Court of Texas, 15 years later, decided that the Texas school financing system violated the state constitution’s “free and equal” education clause. 3. Plyler v. Doe (1982) (a) Facts: Texas statute denied local school districts fund for education of illegal-alien children. (b) Holding: Children of illegal aliens are entitled to equal protection, regardless of the legality of his presence. If illegal alien-children are to be denied a free education given to other children within the borders, the state must justify the denial by showing that it furthers some substantial state interest. Applied intermediate scrutiny. Although education is not a fundamental right, total deprivation is definitely more important than other social welfare benefits – mere rationality not enough. (c) Significance of the case: Total denial of education may be a quasi or semi fundamental right. Illegal alien children (or anyone totally denied of an education) may be a quasi-suspect class. (d) Inconsistency with Rodriguez: Rodriguez stands for the proposition that there is no fundamental right to education and thus no strict scrutiny. Plyler says education should be subject to a higher standard than mere rationality, but still not strict scrutiny. They look inconsistent, but also the facts can be distinguishable. In Rodriguez, the issue was how much money per capita was spent on a child’s education, whereas in Plyler, the issue was a total denial of education. 4. City of Cleburne v. Cleburne Living Center (1985) (a) Facts: Town refused to grant a special use permit as required by a municipal zoning ordinance before a group home for the mentally retarded could be operated. (b) Holding: Court refused to treat the mentally retarded as a suspect (or quasi-suspect) class because there has been no showing of any prejudice in legislation towards the mentally retarded, mentally retarded are not politically powerless, classification would have to be greatly expanded if expanded here. (c) The legislation still could not pass the mere rationality standard because the city could provide no legitimate state purpose other than irrational prejudice. Amanda’s and Julie’s Con Law Outline - 36 - (d) Even though the court still uses the mere rationality standard, it seems to apply the test with more rigor to those groups biologically defined (E.g. mentally ill, handicapped). These groups are more easily definable than economic classifications.  Rodriguez, Plyler, and Cleburne seem to stand for the proposition that the court is no longer expanding the scope of suspect classes and fundamental rights. However, the court has heightened the rational basis standard in certain instances. 5. Romer v. Evans (1996) (a) Facts: Colorado passed Amendment 2 which stipulated that the state or any subdivision may not enact, adopt, or enforce any statute, regulation, or policy that prohibits discrimination against gays. (b) Holding: Court struck down statute finding that the state asserted no legitimate interest and the means chosen by the state were not rationally related to the possibly legitimate state interest that the state asserted. (c) Statute intending to harm a politically unpopular group cannot constitute a legitimate governmental interest. VII. STATE ACTION A. Inaction and Judicial Action 1. DeShaney v. Winnebago (1989) (a) Facts: Boy beaten by father until in a coma. State had given custody to father and not taken boy away despite warnings that boy had been beaten. (b) Holding: No duty on the part of the state to act on behalf of boy not under state care. State did not deprive the boy of liberty under the 14th Amendment. Only father did that, so can’t hold state liable. Nothing in the due process clause requires the state to protect individuals from the deprivation of life, liberty, and property by another individual; only says that state cannot infringe on these rights. (c) State is not liable under due process when it fails to act (there may be a tort remedy for negligence). 2. Shelley v. Kraemer (1948) (a) Facts: Black family bought house in neighborhood with a racially restrictive covenant. Neighbors sued to enjoin black family from moving into house. (b) Holding: Judicial enforcement of racially restrictive covenants would constitute state action and violate the 14th Amendment. (c) Counter-argument = State courts should be a neutral forum for enforcing contracts. Should only violate Equal Protection clause if the court only enforced white contracts and not black contracts. B. State Involvement with Private Entities Amanda’s and Julie’s Con Law Outline - 37 -  “State Involvement” Doctrine: A private individual’s conduct may be transformed into “state action” if the state is heavily involved in those activities. This is the “state involvement” branch of state-action doctrine.  To determine nexus between private individual and government, look to government sufficient involvement in, encouragement of, or benefit from private actor’s conduct.  Examples include: 1. The state “commands” or “requires” the private party’s actions; 2. The state “encourages” the private party’s actions; 3. The state and the private actors have a “symbiotic” or “mutually beneficial” relationship; 4. The state is “entangled” with the private actor (E.g. they act together to carry out the action being challenged).  When dealing with equal protection in a racial context, the Court is more expansive in finding state action where it otherwise would not be found. 1. Burton v. Wilmington Parking Authority (1961) (a) Facts: Restaurant run by a private company refused to serve blacks. State agency was the lessor of the property under a 20-year lease. (b) Holding: Court agreed that the state agency involvement in the contract made the discrimination “state action.” (c) All constitutional rights are incorporated into a lease when the government is the lessor. (d) The court said that there was a close enough nexus between the state actor and the private actor. 2. Jackson v. Metropolitan Edison (1974) (a) Court refused to find that the conduct of a highly state regulated electric utility monopoly was state action. Insufficient relation between the challenged activities of the utility and its monopoly status. (b) Court said that there was not a sufficient nexus. The case reflects the changing composition of the court, which is why it seems inconsistent with Burton. C. Public Functions  “Public Function” Doctrine: Under the public function doctrine, if a private individual or group is entrusted by the state to perform functions that are traditionally viewed as governmental in nature, the private individual becomes an agent of the state, and his acts constitutes state action. Therefore, his acts must obey the Constitution. 1. Marsh v. Alabama (1946) Amanda’s and Julie’s Con Law Outline - 38 - (a) Facts: Jehovah’s witness was charged with criminal trespass for distributing literature. (b) Holding: Court held that operation of a town, even though owned by a private entity, constituted a public function. If ordinary towns could not ban literature under the 1st Amendment, neither can this town. (c) Court said that privately owned town cannot ban religious literature distribution. Whereas the court has since said that shopping centers can ban such literature. (d) Things that states are prohibited from doing under the Constitution may also trigger constitutional analysis when done by private individuals. Amanda’s and Julie’s Con Law Outline - 39 -